The objective of Special Marriage Act, which was enacted in the year 1954, is to provide safeguard to the people who want to marry the ones they love by rising above the restrictions placed on them due to the religious and caste divides and for this purpose it provides a special form of marriage for all the Indian nationals irrespective of their religion and caste.
Though primarily this Act works as a facilitator of such marriages but there a deeper dive into the act shows that several provisions need to be looked into and amended keeping in view the negative effect that they hold. This takes us to Section 7 of the Act which says that any person, before the expiration of 30 days from the date of notice given by the parties to the marriage, under Section 5, may object to the marriage if it contravenes the conditions laid down in Section 4. This Subjects the will of parties to the marriage to the objections of any person and deprives them of their right to choose freely. This unnecessary intervention also infringes some fundamental rights enshrined in the constitution and hence calls for an amendment to the said section.
CONSTITUTIONAL CHALLENGES
Many constitutional contentions form a basis of arguments demanding the strike down of Section 7 of the said Act. Firstly, the aforementioned Section affects the fundamental Right to Choose. There are several cases where the Supreme Court has laid down that a person has the right to choose his/her partner. In the recent case of Mahesh Chand Sharma v. State of Rajasthan[i], the Hon'ble Supreme Court has held:
“…right to choose a partner for whom one has affection, cannot be denied or controlled by State or its authorities. Any rule which is understood in a manner to deprive her of the said right would impinge upon her right to privacy and sovereignty over her body would amount to violence her fundamental right.”
Apart from the fundamental right to choose one`s life partner this Section by allowing unnecessary meddling by any person also affects the Right to Privacy of that person. The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual’s privacy. Not even the state or the law can control the choice of partner or restrict the unbound ability of an individual to decide on these matters. They form the essence of personal liberty under the Constitution.[ii] The law can prescribe what are the requirements for a valid marriage and remedies when a relationship runs ashore but subjecting the choice of a partner of a person to opposition by any person is in violation of personal liberty. In the case of Lata Singh v. State of U.P.,[iii] it has been cleared out that:
If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut-off social relations with the son or the daughter.
Section 7 not just impacts the Right to Choice and Right to Privacy which has been emphasized as being integral to human existence but also the Right To Dignity. It has been laid down by the Supreme Court that when two people marry out of their volition, they pick their path; they consummate their association; they feel that it is their objective and they have the right to do so. This is an inseparable part of dignity.[iv]
Besides the third-party involvement, the waiting period also acts as a barrier in the free exercise of the right to marry as the parties are required to wait for 30 days before they can get their marriage registered. This provision has been held to be mandatory and therefore no different analysis can be made depending on the circumstances of different cases.[v] Even in matters involving urgency, the Certificate of Marriage is issued but this period of objection is not be waived off. The Officer is open to objections for the statutory period of 30 days after such issuance and if on the raising of any valid objection the parties are found not to be entitled to registration, it can be recalled and the parties are required to surrender the original Certificate of Marriage issued to them.[vi]
HOAX RULE OF MARRIAGE OFFICER
The purpose behind the estimated period of 30 days in Section 7 is to establish whether the parties have complied with the requirements laid down in Section 4 or not.[vii] The said conditions are the requisites of a party to solemnize a marriage under this act. The license of opinions from the public to decide if these conditions have been conformed with is uncalled for as the same can be checked upon by the Marriage Officer who is appointed under this act is for the facilitation of marriage and to ensure the provisions of the act are followed. If need being the powers to such officer should be extended but disposable hitches in law like the involvement of third parties should be eliminated.
CONCLUSION
The object of laws in a country is to maintain peace and order, they should be simple and not complicated. Once a person attains the majority, he/she should be allowed to marry the person of their choice and the law should not hinder their decision. Where a law is found to be placing unreasonable restrictions on the rights of its citizens, it makes it an obligation of the Constitution to prevent the same and protect its people. The soul of our Constitution is embracing the plurality and diversity of our society. The ambit of marriage, including the choices that a person makes whether or not to marry someone and whom to marry, are outside the authority of the State. Hence, it should be left upon the parties to decide whom they wish to marry without asking for interference from third parties. In case of any encroachment, it is a duty of the Courts as the sentinel on qui vive to avidly guard the right to liberty of a person.
Section 7 of the Special Marriage Act is a hoax by the legislature, on one hand, it gives them free choice of marriage on the other it takes away such right by the involvement of society. Therefore, it is fundamental to re-evaluate this law. Keeping in mind the changing arena, the following changes should be incorporated into this Act:
· The Marriage Officer should be the authority responsible to check if the parties are competent to marry as per the requirements under Section 4 each other or not.
· The involvement of third parties in the form of objections from any person, under Section 7, should be removed.
· The limitation of 30 days on the parties for registration should be re-estimated.
ENDNOTES
[i] AIR 2019 RH 0098 [ii] Shafin Jahan vs. Asokan K.M. and Ors, 2019 (3) SCJ 245 [iii] Lata Singh v. State of U.P., (2006) 5 SCC 475 [iv] Shakti Vahini vs. Union of India, (2018) 7 SCC 192
[v] Sidharth Swaminathan vs. Sub Registrar, AIR 2014 Ker 195
[vi] John Roji vs. Marriage Officer, I (2005) DMC 320
[vii] Deepak Krishna v. District Registrar, 2007 (3) KLT 570
ABOUT THE AUTHOR
This blog has been authored by Samiksha Sharma, who is a Final year B.A., LL.B. (Hons.) student at Rajiv Gandhi National University of Law, Punjab.
[PUBLICATION NO. TLG_BLOG_20_8204]
Comments