ARTICLE – CRITICAL NOTE ON THE JUDGEMENT GIVEN IN SAFIA SULTANAN V.

STATE OF UTTAR PRADESH 2021, ON THE ISSUE ON MANDATORY NOTICE TO BE

ISSUE FOR INVITING OBJECTIONS UNDER SPECIAL MARRIAGE ACT 1954

Special Marriage Act of 1954 is a unique and secular legislation that allows individuals to marry
the person of their choice irrespective of caste or religion and is also applicable to Indian nationals
living abroad. This Act applies to Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists
marriages. The act applies to all Indian states, except Jammu & Kashmir.

Recently the Allahabad High Court in the case of in Safia Sultana v. State of Uttar Pradesh (2021)
has held that it is not mandatory to publish a 30 days notice of intended marriage under special
marriage act of 1954.

The laws involved in the present case are the Court referred to Section 4 (Conditions relating to
solemnization of special marriages); Section 5 (Notice of intended marriage); Section 6 (Marriage
notice book and publication); Section 7 (Objection to marriage); Section 8 (Procedure on receipt
of objection); and Section 46 (Penalty for wrongful action of Marriage Officer) of the Special
Marriage Act.

SECTION 5 AND 6 - Under these sections, the parties wishing to marry are supposed to
give a notice for their marriage to the Marriage Officer in an area where one of the spouses
has been living for the last 30 days. Then, the marriage officer publishes the notice of
marriage in his office.

Anyone having any objection to the marriage can file against it within a period of 30 days.
If any such objection against the marriage is sustained by the marriage officer, the marriage
can be rejected.

The issue that is of focus here is whether it is reasonable to keep it mandatory for the parties to
publish a 30 days’ notice for their intended marriage under special marriage act of 1954?

The court in the case of Safia Sultana v. State of Uttar Pradesh (2021) held that , While giving
notice under Section 5 of the Act of 1954 it WILL BE OPTIONAL for the parties to the intended
marriage to make a request in writing to the Marriage Officer of the concerned district to publish or
not to publish a notice under Section 6 and follow the procedure of objections as prescribed under
the Act of 1954.
The court further said that, in case they do not make such a request for publication of notice in
writing, while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any
such notice or entertain objections to the intended marriage and proceed with the solemnization of
the marriage. But the court also added that , it shall be open for the Marriage Officer, while
solemnizing the marriage to verify all the details .

If we look into this issue, some of the opposing arguments are:

Arguments in favor of this case – removal of Arguments against the removal of 30days
mandatory publication of 30days notice notice

 invades right to privacy and personal  could increase cases of cheating

liberty  can facilitate forceful conversion
 test of reasonability – if the personal
laws like Hindu Marriage Act and
Islamic shariat laws do not have this
condition , then why does a secular
legislation require it
 right to marry person of choice
without family or society or state’s
interference
 change in social conditions , 150yrs old
laws cannot be expected to continue
without modifications to suit the needs
of the present generation
 will decrease the cases of conversion
 removes hindrances to inter caste and
inter-religion marriages
 relief to couples from vigilante groups

ARGUMENTS AGAINST

There are some arguments made by groups against the removal of mandatory notice like :
Doing away with the public notification of the marriage could increase the cases of
cheating, for example cases of duping by a married spouse.

It can possibly facilitate anti social activities such as forceful conversion.

ARGUMENTS IN FAVOR – suppor t

The publication of the 30 days notice will be an invasion in the parties privacy and would cause
unnecessary social interference in their free choice with regard to their marriage. The mandatory
publication of notice acts as an invitation to society and state interference in the personal matters ,
right and space of the citizens.

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 Act of 1954 should be such that
would uphold the fundamental rights and not violate the same, in particular – article 14 right to
equality , article 19 right to freedom , article 21 – right to privacy and personal liberty . The
publication of notice as a mandatory condition and a period of 30days is per se invasion of right to
privacy is an alienable right in the present age . As was pointed out in the case of puttaswamy vs.
union of India , Privacy is the ultimate expression of the sanctity of the individual.

The judgment pronounced in the present case is undoubtedly a progressive judgment. In case
publication of notice is held mandatory, as per the law declared today, it would be an invasion in
the fundamental rights of liberty and privacy, including the sphere of freedom to choose for
marriage without interference from state and non-state actors, of the persons concerned. Further,
note should also be taken of the fact that marriages in India can be performed either under the
personal laws or under the Act of 1954.. These marriages under any personal law do not require
publication of any notice or calling for objections with regard to such a marriage. Then on what
grounds and as per the test of reasonability does the present requirement of publication of notice for
marrying under a SECULAR legislation can be held valid.

Some claim that there is a possibility of cheating and concealment of important facts in case of no
publication of notice , but what needs to keep in mind here is that Even if a marriage takes place in
violation of any of the conditions of Section 4, legal consequences would follow and the courts can
decide upon the same, including declare such a marriage to be void, as they do under the personal
laws. There is no apparent reasonable purpose achieved by making the procedure to be more
protective or obstructive under the Act of 1954, than procedure under the other personal laws, more
particularly when this discrimination violates the fundamental rights of the class of persons
adopting the Act of 1954 for their marriage, it is violating of article 14 .
The judgment is not backsliding by not complying with the requirements of the law, and to that
extent, self-defeating for the very purpose of solemnizing a civil marriage under secular legislation
in India. As the society keeps changing with time as per its new needs, expectation and other
changing aspects. The very purpose of law is to serve society as per its needs and circumstances.
Therefore, the law also has to keep evolving with the changes in society. The removal of mandatory
publication of notice would in no way defeat the very purpose of a civil marriage under secular
legislation , as the need to declare their status under section10-12 and if any irregularities are found
at the later stage , the court can take the appropriate action in the same manner as it does in cases of
marriage solemnized under personal laws. The purpose of the Special Marriage Act was to ensure
that there are no unnecessary hindrances in the personal matters of citizens and religion or caste do
not become an issue in a democratic state. It is also unreasonable to expect the generation of today
with the evolution in laws and rights of today , to follow a law made 150 yrs back , which now does
not meet the test of reasonability .

In the case of Lata Singh Union of India, it was held that , Once a person becomes a major he or
she can marry whosoever he/she likes. Every individual has a right to marry the person of their
choice without unnecessary family or societal pressure and interference. One of the inherent
aspects of Article 21 of the Constitution would be the freedom of choice in marriage.
“The consent of the family or the community or the clan is not necessary once the two adult
individuals agree to enter into a wedlock , it is a manifestation of their choice which is recognized
under Articles 19 and 21 of the Constitution.” [Shakti Vahini Union of India, (2018) 7 SCC 192]
“Neither the State nor the law can dictate a choice of partners or limit the free ability of every
person to decide on these matters…. Social approval for intimate personal decisions is not the basis
for recognising them.” [Shafin Jahan Asokan K.M., (2018) 16 SCC 368]

LOOPHOLE , CONCLUSION AND WHAT NEEDS TO BE DONE

The notice requirement is an easy tool for harassment and patriarchal control by family, caste
panchayats and religious goons. And thus the present judgment comes as a ray of hope for inter-
faith couples .

However the present judgement also creates a loophole , the court in has noted that the marriage
officer, while solemnising any marriage under the Act, may verify the identification, age and
valid consent of the parties, or their otherwise competence to marry under the said Act. It further
notes that in case he has any doubt, it shall be open for him to ask for appropriate details/proof
as per the facts of the case.This observation has potential to allow backdoor entry of caste and
community control. A marriage officer may still allow delays and harassment by demanding
honourous verification and proofs, especially against those couples who opt out of publication of
notice and who may be seen as marrying against wishes of their family. As even today ,across
every caste and class , Love marriages are seen as ‘socially deviant’.

In a country struck by centuries of caste violence and community honors, the spirit and purpose
of the Constitution warrants that the state has a positive obligation to encourage such
marriages.The current judgment still allows scope of permit system in matters of choice and
autonomy. The order may give some breathing space for freedom, yet a lot more is required to
be done , from removal of 30 days notice period by the Supreme court to the removal of need to
have a 30 days domicile by parties in that area.