Judicial Activism and Marriage Laws

The Allahabad High Court has ruled that the provision of publication of notice of intended marriage under the Special Marriage Act, 1954, is not mandatory.
The court, in a significant judgment delivered on January 12, said making such publication mandatory “would invade the fundamental rights of liberty and privacy, including within its sphere the freedom to choose for marriage without interference from state and non-state actors, of the persons concerned”.
A Bench of Justice Vivek Chaudhary mandated that while giving notice under Section 5 of the Act, it shall be optional for the parties to the intended marriage to make a request in writing to the marriage officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act.
In case the parties do not make such a request, the officer “shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnisation of the marriage”.

The Bench directed the Senior Registrar of the court to send a copy of the order to the Chief Secretary of Uttar Pradesh to forthwith communicate the same to all the marriage officers in the State and other authorities concerned as soon as possible.
The requirement of publication of notice under Section 6 and inviting or entertaining objections under Section 7 can only be read as the directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise, the court observed in the 47 page judgment.
The interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in the Act of 1954 has to be such that would uphold the fundamental rights and not violate them, the court said.
The court was disposing off a habeas corpus writ filed by a Muslim woman who married a Hindu man after converting as per Hindu rituals.

Source: TH

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