30-day notice under Special Marriage Act not mandatory: Allahabad HC

The Allahabad High Court on Wednesday (January 13) said that the publication of notice of intended marriage under the Special Marriage Act is not mandatory, as it infringes on the privacy of the couple.

The court gave the judgment while hearing a habeas corpus petition which alleged that a girl has been detained against her wishes to marry her boyfriend who is from another religion. The couple, both majors, however, told the court that the 30-day notice in the Act not only infringes on their privacy but also interferes with their choice of choosing a partner.

The court said the publication of the notice will be based on the choice of the couple and not otherwise.

The Special Marriage Act requires the marriage officer to give a 30-day public notice after receiving application from both the parties, to see if there is objection to the marriage.

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The court said the bride and the groom can write to the marriage officer on whether they want to publish the 30-day notice or not. The court said the marriage officer cannot publish any such notice, neither entertain objections if the couple do not want the notice to be published, and needs to conduct the wedding.

Justice Vivek Chaudhary while pronouncing the order said the publication of the notice without the consent of the public “invades the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.”

“Thus, this court mandates that while giving notice under Section 5 of the Act of 1954 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 of 1954. 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,” the court said.

The court, said that the marriage officer should also verify the identity, age and consent of the couple as well as their “competence to marry under the said Act.”

“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,” the court said.

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The judgment comes as a relief for several interfaith couples in the wake of rising vigilantism against inter-religious marriages after the enactment of the anti-conversion law in Uttar Pradesh. As many as 16 cases have been filed under the law since its introduction on November 28, 2020.