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In News

• Recently, the Supreme Court of India dismissed a writ petition challenging provisions of the Special Marriage Act (SMA), 1954 that requires couples to publicize their intention to marry by giving public notice 30 days after their marriage.
• Petitioner lawyers said that they were would adopt an alternative approach through Public Interest Litigation (PIL).

 

Arguments by the Petitioner

• According to the petitioner, these provisions violate the right to privacy guaranteed under Article 21 of the Indian Constitution because the act instructs couples to give 30 days of public notice before their marriage.
  • The provisions contradict Article 14 and Article 15 of the Indian Constitution.
  • Article 14 provides for equality before the law or equal protection of the laws within the territory of India.
    • It states: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
  • Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth
    • The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.

Special Marriage Act (SMA), 1954

• The original Special Marriage Act was enacted in 1872, following a campaign launched in 1860 by Brahmo Samaj for simpler marriage ceremonies.
  • Its requirement of renouncing one’s religion was not consistent with modern ideas of liberalism, individualism and autonomy of the individual.
  • Therefore the 1954 law replaced the 1872 Act, and the requirement to renounce one’s religion was removed.
• The law was the first step toward a Uniform Civil Code. The objective was that if we want a liberal, modern, secular and progressive law, we first start the experiment voluntarily.
  • Therefore, those going for an inter-faith marriage could register under the SMA.
  • Once your marriage is registered under SMA, your religion’s laws won’t apply.
• The provision under the law requires couples getting married to give notice to the Marriage Officer 30 days before the date of marriage.
  • The notice can be inspected by “any person and anyone can object to the marriage.

 

Concern

• The Special Marriage Act (SMA), 1954, was enacted to help inter-faith couples. But, the provisions like the need to give prior notice, and inviting ‘objections’ goes against its original objective and also open the doors to violent moral policing by vigilante groups.
• The SMA did not achieve the kind of success it was intended to achieve; very few marriages get registered under the SMA demonstrates that society is not yet ready to accept the inter-faith marriage.
• The provisions of public notices under the act have been used by anti-social elements to harass couples getting married.

 

Way Forward

• The state needs to focus on promoting and protecting the rights of women within marriage and aim for a more equal, progressive law.
• We have to think about where our legal system is advancing. On the one hand, we are thinking about the possibility of same-sex marriages. On the other, we are upholding laws that control to whom you can fall in love with and who you can’t, which Caste or religion you need to follow when you intend to marry.

 

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