The special marriages act of 1954 is being challenged over privacy concerns
by a writ petition filed by a law student of kerala. Marriage as defined in
sociological theorem is as a socially supported and sanctified union
involving to individual as partners in a personal relationship
The special marriages act is a special provision which lays down the provisions
for the marriage of individuals belonging to two different religion. Because
every religion have their own marriage acts and they are governed by them
accordingly and for the individuals those who wish to marriage in different
religion this process is being governed under the special marriages act of 1954.
The petitioner Nandini Pravin sought the direction of the apex court to quash
some of the sections of this act. Nandini argued against section 5 chapter 1 of
this special marriages act for placing a notice to-be-wed couples in the public
Section 4 of the act defines the condition relating to solemnizing of special
marriages which include some clauses which have to be fulfilled by the parties
getting married, they are as follows:
- Neither party has a spouse living.
- Incapable of giving a valid concern to eat in consequences of unsound
- The capability of giving a valid consent.
- Males age must attain 21 years and above age and females must attain the
age of 18 and above.
Section 6 of the special marriages act lays down that the marriage official
shall put up a notice for the same and any person can put up objections within
30 days to the marriage officer.
Section 7 of the the act related to objection to marriages any person may come
to the marriage officer to object the marriage on the ground that is contravene
one or more conditions specified in the section 4 chapter 1 of special marriage
This is a brief discussion about the act to give a reader holistic approach to
understand the nuances of the condition. Now we will be looking into to the
privacy aspect and the concerns that is being raised.
Recently and 9 judges bench KS Puttaswamy v. Union of India
the supreme court
rules that the privacy is to be protected as an intrinsic part of the right to
life and personal liberty under article 21 as a part of freedom guaranteed by
part 3 of the constitution. And it can be only taken away by the procedure
established by law and it should be just, fair and reasonable.
There are several marriages act including the Hindu marriage act Muslim marriage
act Christian marriage act parsi marriage act. In all the above marriage act
there is is a sanctification that is being provided by the state as well as the
society because they are the main stakeholders of marriage not just because they
are involved into it but also so the legal rights and obligations that is being
provided after the marriage is sanctified and other rights that is being intact
to or after marriage.
For example in Hindu marriage there is a ritual called Kanyadaan where in the
father of the female gives her daughter to the men and his family and the male
counterpart take the baraat to the girls family all this process is done mainly
to get the sanctification and validation from the community members as well as
But when it comes to special marriages act nothing of that thing is been done
and the information that is being raised under section 5 to put up a notice is
merely done to get the objections only under section 4 of the special marriages
act this provision in my opinion is truly in tune with the conventional and
traditional credos of marriage.
Otherwise there are several other options like cohabitation where in not a
single member of the society is going to question on the living status of the
couple but when a marriage is taking place there is a necessary involvement of
the community member as well as the society.
All that is being asked in section 4 of the special marriages act is a basic
information that has to be provided to the the marriage officer and the
objections will be entertained only if that goes against the realm of section 4
of the bare act. (as said by the high court of punjab and haryana in a verdict of
In my opinion prime face it looks that there is no infringement of privacy on
the part of this act and it is high time now that the centre should enact or
make the positive injunction injected by making a law on uniform civil code
which is given under article 44 of the constitution. That will help to
consolidate all the marriages act making it one ,that will help in streamlining
the marriages in India.
Even the apex court of the country several times have raised this concern to
make a uniform civil code in various cases like Shah Bano, Sarla Mudgal and
Justice Vikramalso said the same in the 2015 Christian divorce case.
At the cessation i would like to quote the words of justice Vikram Singh Slathia
which is very apt in today's situation it is:
without a uniform civil court labelling India to be secular nation is just an
illusion. Uniform civil code is necessary for India so that the same laws are
valid for every citizens without taking religion into consideration.
Written by: Vivek Raj