SPECIAL MARRIAGE ACT, 1954; VIOLATION OF ARTICLE 14, 15 AND 21

ABSTRACT
Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical Union.
When two souls thus unite, a new soul comesinto existence. That is how, the life goes on and on and on this planet.(Justice S. Saghir Ahmad).
Thus,The Special Marriage Act, 1954 accommodates a common marriage of two Indians, without the need of denying their separate religion.
The Act accommodate common marriage that would empower people to get hitched outside of their individual group commands, numerous
group based laws did not accommodate entomb – group or bury – position relational unions. Numerous a period marriage outside of one's own
rank or religion brings about social exclusion. The Act gives authenticity to such relational unions. However, there are some discriminatory
provisions in Special marriage act, 1954 that affect right to privacy of the parties which is held to be an aspect of right to life under article 21 of
Indian constitution since the identity of parties are put on public domain at the time when the parties need security to protect their life because
even now a days intercaste and inter religion marriages are not that easy in India and if privacy of such parties is released publicly it is also
violative of article 14 article 15 as such step becomes hurdle in the way of parties.

Keywords :- Marriage, sacred union, The Special Marriage Act, 1954, dicriminatory,public domain, privacy, relational union.

INTRODUCTION

 India’s Special Marriage Act, 1954 provides refuge to consenting adults belonging to different faiths, and wishing to marry each other. In a
country where honour killings sponsored by the khap panchayats is common, it is not surprising that couples who are from different religions either
elope or adopt a third religion. Inter faith marriages were and are still considered as a taboo and the society eschews those who marry outside the
caste or community, further honour killing is reported every year in India. Interestingly, from the statistics of United Nations, One in five cases of
honour killing internationally every year are from India. The Special Marriage Act of 1954 was brought forth considering these scenarios. It came
into practice when there was a lot of bubbling anger against the reformed Hindu laws.

However, still Being a secular Act it plays a key role in liberating individuals from the traditional coercive requirements of marriage. However, many
of its provisions are inconsistent with its objectives. Despite knowing about the practical problems our Parliament has not shown any seriousness in
addressing them through appropriate amendments which is great need of the time.

SPECIAL MARRIAGE ACT, 1954

The Special Marriage Act of 1954 gives any Indian national, irrespective of their religion, the tools to have legal marriage. It is a special legislation to
provide for a special form of marriage by registration and since this marriage comes under civil contract therefore there is no need of any religious
ceremony or rites to be performed.The Special Marriage Act, 1954 can also be utilized by couples who do not want their marriages to be governed by
the various personal laws that are linked to religion. The marriage is special because one does not have to renounce their religions. It dodges the
taboo surrounding inter religion marriages.

Unlike the traditional arranged marriages which include two families belonging to same caste or same community, the Act aims at inter alia
providing for legalizing inter religious and inter caste marriages. The certificate of registration under the Act has been considered as a general proof
of marriage. The Act as stated in the preamble provides a special form of marriage in certain cases, for the registration of such and certain other
marriages and for divorce.

The Act lays down certain simple criteria about the bride and bridegroom for the marriage to be fulfilled:
~ neither should have a spouse who is alive;
~ both should be of sound mind;
~ the bride has to be at least 18 years of age and the bridegroom at least 21 years;
~ the bride and the bridegroom should not be in a prohibited relationship.

Other than this, three witnesses have to be present while the oath ceremony is being taken in front of the Registrar of Marriages, who then gives a
court marriage certificate approved by the Government.

PROVISIONS WHICH ARE HURDLE IN GETTING MARRIED (VIOLATION OF ARTICLE 14, 15 AND 21)

THIRTY DAYS NOTICE AND SCOPE FOR HARRASMENT

1) Section 5 of the Act is the first hurdle which deals with the notice of intended parties requiring at least one of them must have resided in the
district for a period of not less than 30 days immediately preceding the date on which such notice is given to the Marriage Office of the
district.
 There is an opinion that the notice period may either be reduced or waived contemplating discretion to be exercised by the Court.
Though this period is for checking the bigamy of either of the parties it would leave a space for the community or caste people to
harass the couple. This Act came into force, at a time where it was expected to stand as a legal protector of interests of the couple who
are getting married under this Act but this period specified under this section made them find their own enemy to surrender them. if
any boy or girl who is a major trying to undergo inter-caste orinter-religious marriage with a woman or man who is a major, the
parents and other relatives try in all respects to eschew that and the couple are generally harassed or subjected to threats andmostly
 with acts of violence often ending their lives.The time gap of 30 days in this section mayin a way vitiate the purpose for which it was
laid down in reality might spoil the very situation ofconducting the marriage and might land the couple in trouble.
 It have been seen in many cases that some enthusiastic marriage officer have sent notices to permanent addresses of the parties and
sought verification of addresses through the Station House Officer which is not required at all under the Act. Haryana’s Court
requires the notice to be sent to the home of the couple and published in national newspaper. Also, the couple should not be living
together in the 30 day notice period this is not a requirement under the Special Marriage Act, 1954.
 It has to be noted that no other marriage in India implies any requirement to provide notice to any government or to any random
parties to object to the marriage therefore this section is discriminatory in terms of objecting as it prevents escape because of 30-days
residency requirement and Marriage officer will publish the information. It is also violative of article 15 because when people of two
religion and caste marries then there is not much problem as compared to couples who belong to different caste and religion whose
life to live become more threatened just because they are from different religions and such provision which exists in India which is
believed to be a democratic and secular country where equality prevails in constitution whithout any discrimination on the basis of
caste,colour,race,sex, religion should be repealed.
 Further, local authority finds the way to impose more difficult conditions on the couple taking the benefit of notice requirement.Thus,
in this perspective it violates Article 21.
 In Pranav Kumar Mishra and Anr. V. Govt of Nct of Delhi and Anr, the first and second petitioner are citizens of India. They are
permanent residence of Delhi. The both being of marriagable age as required under the provisions of special marriage Act intend to be
married approached office of Registrar of Marriages and obtained necessary forms. They were informed of the procedures
whereby the copy of the “Notice of Intended Marriage”( as required under section 5 of the Act) would be displayed on the
Notice Board of the Registrar’s office for information to public at large and for inviting objections. They were also told that
another copy of Notice of Intended Marriage would be send at the respective addresses of the intended parties and a notice
may also be sent through the S.H.O of the police station of the concerned jurisdiction for the purpose of verification of the
residential address. The petitioner challenges the procedure adopted as being arbitrary and illegal. It was said by Justice S Ravindra
Bhat that the unwarranted discloser of matrimonial plans by two adult entitled to solemnize it may, in certain situation, jeopardize the
marriage itself. In certain instances, it may even endanger the life or limb of one at the other party due to parental interference”.
Further dispatching the notice at the residence of parties would breach the Right to privacy, which every individual is entitled to.

ANNOUNCEMENT OF MARRIAGE

2) According to Section 6 of S.M Act, 1954 it is the duty of the Marriage Officer to display a copy of the announcement of the marriage in the
office at some discernible place. Also, if either of the parties is not a permanent resident of the district in which they move the court for
marriage, themarriage officer of the concerned court has to inform the court in the district in which the party is a permanent resident so that
 later on the announcement of intended marriage would be displayed at a perceptible place in that office. These prerequisites make it very easy
for parents, caste orcommunity people to spot the couple and harass them.

 Sections6(2) and 6(3): The provisions under the Act require parties to an intended marriage to publish their private details for public
scrutiny 30 days prior to the intended marriage.The details being publicised include their names, date of birth, age, occupation,
parents’ names and details, addresses, pin codes, identity information and phone numbers.The provisions throwing the personal
information of the individuals open to public scrutiny, seriously damage one's right to have control over her or his personal information
and its accessibility,
 Thus, this provision violates the right to privacy of the parties. The right to privacy is held to be an aspect of the right to life
under Article 21 of the Constitution.
 The requirement is also in violation of right to equality under Article 14 of the Constitution since no other laws prescribe such a
requirement.

OBJECTION TO MARRIAGE

3) Section 7 of Special Marriage act, 1954 provides for Objection to marriage- It says that marriage is solemnized after a month provided that
no objection is raised. According to this section it is very easy to raise objection for special marriage. On an objection to marriage the
marriage officer goes into an inquiry into the matter with the postponment of the solemnization of marriage. If this objection is upheld either
part can appeal to the district court. From the date of the notification of marriage in the court, this drawn-out procedure takes more than three
months within which the marriage has to be solemnized. Failing so, the marriage officer should not solemnize the marriage until the parties
have to come up with a fresh application to the marriage as described in section 14 of Special Marriage Act.

4) Section 19 of Special Marriage Act, 1954 feels like a punishment for marrying someone from a different religion. It says that if any one of the member
hails from undivided family (i.e. joint family) who professes the Hindu, Buddhist, Sikh or Jain religion, he will have to sever himself from the family
altogether. It can be said that due the absence of such special priviledge under Special Marriage Act 1954, there is no equality before law and it is
subject to discrimination among one category of couples who want to go for intercaste and inter reiligion marriage for their right to property
hence Article 14 is violated .
 Supreme court held that intercaste marriages are in “national interest” as a unifying factor in a nation where caste system is “curse”.The Infact, it
is dividing the nation at the time when we have to be united to face the challenge before the nation. Intercaste marriage are in fact, in national
interest as they will result in destroying the caste system in India,” a Bench of Justice Markandeya Katju and Gyan Sudha Mishra held in
judgement. Therefore such negative provisions as mentioned in section 19 should be repealed to encourage practice of intercaste marriage.

SUGGESTIONS:-
  The provision of a month gap as mention in section 5 should be annulled so as to prevent the parties from being harassed.
 The need for such a provision as mention in section 19 is inexplicable especially when such severance could result in deprivation of
inheritance and other rights of the couple intending to marry under this so called secular Act.
 Repeal of section-7- The procedure should be made easy to the couple to approach any court in country to facilitate for a simple and
easy going marriage.The couple being asked to approach only the court in their places create an image of restriction on their part and
delaying the marriage, the circumstances in which the coupleare in every time doesn’t give them the possibiltiy to approach the court
they are required to approach. So there is need a repeal Section7 of the S M Act,1954.

CONCLUSION-

The Supreme Court ruled in Lata Singh‟s case, 64  that ours is a free and democratic country, andonce person becomes a major, he or she can
marry whom so ever he or she likes. The maximum that relatives can do if they disagree with the the intercaste marriage of their children is to cut
cuff all bonds with them. But they cannot give threat or commit or instigate Acts violence and cannot harras the person who undergo such intercaste
or inter religious marriages. The Court issued orders for the copies of the judgement to be sent to all the State High Courts and chief secretaries,
home secretaries and Director general of police in all states and Union Terrioties of circulation. But years passed on since the judgement was
delivered and yet the curse still happens to exist. Therefore the inconsistencies need to be curbed for the interest of marrying parties in respect of
article 21, article 14 and article 15.

REFERENCE:-

III B.A. LLB Sec-

‗A, Alliance School of Law, Alliance University, Bengaluru, Prof. Dr. Mohan R Bolla, Professor of Law. Alliance University, Bengaluru. S. Saghir
Ah5

 Dr. Paras Diwan in his 2nd Edition of "Law of Marriage and Divorce" stated at page 75 that in inter-caste andinter-sect marriages in anuloma form
a male of superior caste marries a female of inferior caste; and in pratilomamarriage a male of inferior caste marries a female of superior castemad J.
SC.,Mr. 'X' vs Hospital ' 

See ‗Just 5% of Indian marriages are inter  caste: survey‘ the Hindu, November 13, 2014 available at

http://www.thehindu.com/data/just-5-per-cent-of-indian-marriages-are-intercaste/article6591502.ece  Markandey  Katju J., SC., in Arumugham

Servai v. State of Tamil Nadu AIR 2011 SC 1859 has criticized the Khap panchayats (known as katta panchayats in Tamil Nadu) decreeing ‗honour
killings‘ and other atrocities against girlsand boys for inter caste marriages. The Apex Court observed: ―We sometimes hear of `honour' killings of
suchpersons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable insuch killings, and in fact
they are nothing but barbaric and shameful acts of murder committed by brutal, feudalminded persons who deserve harsh punishment. Only in this
way can we stamp out such acts of barbarism".Read Nupur Basu, ‗Honour killings: India's crying shame,‘ available at

http://www.aljazeera.com/indepth/opinion/2013/11/honour-killings-india-crying-shame-20131127105910392176.html

 A Delhi- based NGO Love Commandos have come to the rescue of many such couples. See ‗Here comes Love

Commandos: NGO provides couples with shelter,‘ available at

http://www.hindustantimes.com/india/here-comes-love-commandos-ngo-provides-couples-with-shelter-help/story-
iaMhjS6S5JphoDavQMnDfP.htmlandwww.bbc.com/news/magazine-1828099Z'  1998 ‘8 SCC 296.

 Mr Michael Gerard Ferris v. Mrs Svetlana Alexandrovna, case decided by Justice S.Abdul Nazeer, KarnatakaHigh Court on 14 July, 2016,
available at   judgmenthck.kar.nic.in/judgments/.../1/CRLRP411-13-27-05-2013.pdf

47 Asad Ali, ‗The battle for Love and the Special Marriage Act,‘ Hindustan Times. ―This is only to ensure a window of natural justice,‖ says
Shukla. He adds, ―If either party concerned is already married and trying to suppress such information, then any third-party has that time to raise
an objection to the marriage. If any objection at all is
raised  tothe marriage within  that period, the marriage officer will consider all aspects  of  the case before allowing the marriage to be
solemnised.‖ For details- http://www.hindustantimes.com/brunch/the-battle-for-love-and-the-special-marriage-
act/story-  28uQ3vGKkH0UrVAaKaHCrI.html. In the High Court of Delhi, WP(C) No.748 of 2009,

available at  https://indiankanoon.org/doc/26886784/

 Lata Singh v. State of UP, AIR 2006 SC 252265 Ibid.66

AIR 2009 SC 2840

Available at-

https://www.womensweb.in/2020/02,

Legalservice.in

The Hindu
The indianexpress.in