[This is a post by Shreya Singh, Contributing Member.]
Marriage is considered as a sacred institution in India which is governed by codified personal laws. The Supreme Court of India has recently accepted a petition challenging the constitutionality of Section 6 under the Special Marriage Act, 1954 contending that the provision violates the Right to privacy, equality and non-discrimination vested in the Constitution of India. The Special Marriage Act, 1954 is distinct from other personal laws as it provides rules and regulations regarding marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party.
The Apex court has agreed to examine the provisions which obligate the Marriage Officer to publish a notice of an intended marriage allowing people to come forward and object the intended marriage within 30 days of the date of publication of the notice. The details include their names, date of birth, age, occupation, parents’ names and details, address, pin code, identity information, phone number, etc. which is a particular requirement of the Act. It also mentions that anyone can raise an objection to the marriage, and gives significant power to the marriage officer to investigate them as well.
The provision invades privacy and violates fundamental rights
The right to privacy was recognised by the Supreme Court in the nine-judge bench landmark judgement in the case of K.S. Puttaswamy v. Union of India (2017). The Supreme court declared that right to privacy is a fundamental right and is an intrinsic part of the right to life and liberty under Article 21 of the Constitution of India, contending that it is the responsibility of the sovereign State/Nation to protect the privacy of an individual. Therefore, the State must not intervene in the personal lives of the people and the choices made by them which includes a person’s decision of whom he/she should marry. On the contrary, the said provisions of the Special marriage act, 1954 obligates the marriage officer to put personal details of the couple in the public domain for other people to decide whether the potential solemnisation of marriage is acceptable or not.
The notice of marriage not only invades the private lives and liberty of the individuals but also jeopardizes the marriage as it may endanger the life or limb of the couple due to parental interference. In the case of Lata Singh v State of UP (2006), a two-judge bench of the apex court, in the landmark judgement stated as follows:
“This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence.”
In the case of Shakti Vahini v. Union of India(2018), the Supreme court held that the right to choose a life partner is a fundamental right under Article 21 and does not require the consent of anyone else other than the two legally competent persons (adults) for the solemnisation of marriage. The disclosure of marriage between inter-faith/inter-caste couples can invite religious conflicts amongst both the communities and may lead to physical violence and honour killings. A prominent example of such violence is the Khaap Panchayat in western Uttar Pradesh, Haryana and Delhi and the honour killings practised by them. The publishing of intended marriage mentioned in the Special Marriage Act may attract such communal conflicts and unfortunate blood-shed which will only create hatred amongst religious communities.
It is observed that there is an inconsistency in the personal laws for the solemnisation of marriage under the Hindu Marriage Act,1955, does not demand a notice of intended marriage to be published which is contrary to the Special Marriage Act, 1954. This clearly proves the arbitrary nature of the laws and its failure in satisfying reasonable classification under Article 14 of the Constitution. The provision also violates Article 15 of the constitution of India as it promotes inequality in the society and discriminates people on grounds of religion, race, sex, caste and place of birth.
Uniform Civil Code: Need of the hour
The conflicting provisions in the personal laws have been a prominent issue in India. The conflicting requirements of multiple laws create unnecessary confusion in the judiciary and give rise to the arbitrary nature of judgements. The establishment of a Uniform Civil Code can bring relief to conflicts regarding the inconsistency of personal laws as it will apply equally to all the citizens of India regardless of their religion. It would help in bringing about a positive change in society by preventing communal violence and maintaining peace and harmony.
In India, marriage is hardly considered as a private affair between two consenting adults. It is believed in India that – “Marriage isn’t a union of two people; but the union of two communities/families”. Marriage is still a victim of patriarchy as it is driven by the notion that choosing a desired partner against the standards that have been set by society is unacceptable. The romanticisation of marriage being a topic of communal-union must not penetrate and affect the private lives and the choices made by individuals.
There have been progressive decisions made by the state of Kerala regarding this issue as they have recently issued a circular to bring a halt to the publication of notice of marriage and this has been supported by high courts of Delhi and Rajasthan as well. The Supreme court must consider these progressive examples to make a rational decision and help in bringing about a significant change in Indian society.