The five-judge Constitution Bench led by the Chief Justice of India (CJI) DY Chandrachud hearing the marriage equality petitions agreed with the petitioners raising concerns about certain provisions of the Special Marriage Act (SMA), 1954, which mandates that couples publish their private details for public scrutiny. On Thursday, April 20, the third day of the hearing, the bench observed that the provision is based on patriarchy and leads to invasion of privacy.
Any couple intending to get married under the SMA is required to give notice to the marriage officer of the district where at least one of the couple has lived for at least 30 days. This notice of intended marriage is then put up on the notice boards of the registration office where they submit the notice, as well as in their respective hometowns or place of residence, for one month. Within this period, any person can express objection to the union of the couple, in which case an inquiry will be held. It is only after 30 days that the marriage is solemnised by the marriage officer, given that no one raises any objection.
Advocate AM Singhvi, arguing for one of the petitioners, pointed out that the notice requirement does not exist in any other personal laws and contended that the requirement was unconstitutional. “This part is unconstitutional because before a formal entry into a marriage, you are invading my privacy by asking me to declare my intention to marry in public domain for objections to be invited. It is not there in any personal laws. Why should I do that? It is my personal decisional autonomy. It’s the heart of my privacy to decide with whom I associate with, when, how, and after how much time into matrimonial union – be it of the same sex or opposite sex,” he argued, asserting that it was “an invitation to disaster and violence”.
While Justice S Ravindra Bhat pointed out that it was based on patriarchy and that the laws were made when women did not have agency, the CJI said, “The object [of notice regime] was to protect. Now, you’re virtually laying them open to invasion by society, by Collectors, District Magistrates, Superintendent of Police.”
Singhvi further argued that the notice regime also hits at individual decisional autonomy, privacy and individual dignity, which are Constitutional core values. “This is not to be struck down only for same sex couples but it should be struck down per se – for heterosexuals and non-heterosexuals,” he contended.
Senior advocate Raju Ramachandran, appearing for another petitioner, elaborated on the history of the notice regime. “It originated in a 1753 act of the British Parliament, whose name speaks for itself – ‘Act for the better preventing of clandestine marriages, 1753’. The notice provision which originated in a preventive statute now continues through SMA, which is an enabling statute. Also, the 30-day notice period is the longest ever. It was three Sundays in the 1753 act,” he explained and added that the notice requirement amounts to seeking notice to exercise fundamental rights.
“If my fundamental right to marry is read into Article 21, I cannot be asked to give notice of the exercise of my fundamental right at a future date, in the context of a notice regime that is designed to enable parental families and other bodies to create roadblocks,” he argued.
CJI Chandrachud observed that this was not the “least intrusive way” to ensure that people don’t enter into void marriages. “There is a very real likelihood that this will disproportionately affect situations in which one of the spouses belongs to a marginalised community,” he said, while Justice Kohli added that this would be equally true for heterosexual couples. Advocate Ramachandran, contending that the provision was “retrograde” and “obnoxious”, said that it should be struck down for everyone.
In 2022, a PIL petition was filed at the apex court challenging the provisions of SMA that mandated notice publication. However, the court dismissed the petition asking, “Challenging the constitutional validity in this petition is abstract. Suppose we take up this challenge to these provisions in abstract at your instance and pronounce against you, would that bind everybody, including a person who may have a genuine grievance to raise?” As the petitioner was directly affected by the law, the court said that it cannot be considered as a PIL.
The petitioner in the case was Athira Sujatha, one of the persons who got married under SMA and was doxxed by a vigilante group in Kerala. The marriage notices were publicly accessible on the Kerala Registration website, which several right-wing groups accessed and uploaded across social media platforms, branding the relationships as ‘love jihad’.
A few days after TNM reported on this issue back in 2020, the then Kerala Minister of Public Works and Registration G Sudhakaran directed that the notices shall only be displayed in the registration office and need not be uploaded online.