Compelling parties to give notice of inter-faith marriage violates their right to privacy
The interpretation of provisions of Special Marriage Act containing the procedure of publication of notice and inviting objections to the intended marriage has to be read in such manner that would uphold the fundamental rights and not violate the same. If they are held to be mandatory, it would invade in 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. In India, majority of marriages are performed under the personal laws by a priest of the religion followed by the parties. Such marriages under any personal law do not require publication of any notice or calling for objections with regard to such a marriage. However, under Ss. 6 and 7 of the Act the persons intending to solemnize a marriage are required to give a notice and the Marriage Officer thereafter is made duty bound to publish the notice for a period of 30 days and invite objections with regard to the same. If a marriage takes place in violation of any of the conditions of S. 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. Law must keep evolving with time and societal change. Enforcing a notice period on couple would tantamount to intruding on their fundamental right to privacy and liberty.
However, in case, such individuals applying to solemnize their marriage under the Act themselves by their free choice desire that they would like to have more information about their counterparts, they can definitely opt for publication of notice and further procedure with regard to objections to be followed. Such publication of notice and further procedure would not be violative of their fundamental rights as they adopt the same of their free will. Therefore, the requirement of publication of notice and inviting/entertaining objections can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.
Thus, the High Court mandated that while giving notice under the Act, 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 and follow the procedure of objections as prescribed under the Act. In case they do not make such a request for publication of notice in writing, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnization of themarriage.
