Notice And Its Publication Mandatory Under Special Marriage Act, 1954
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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By Sunil Garodia
First publised on 2021-01-14 06:28:36
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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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The Allahabad High Court has ruled that the 30-day notice period for marriages under the Special Marriage Act, 1954 has to optional rather than mandatory and has directed that the marriage officer under the Act will have to solemnize the wedding immediately if the couple does not opt for getting their notice published. Although Justice Vivek Chaudhary has based his decision on several arguments, one thinks that it goes against the letter of the law and is likely to be quashed if challenged.
The provisions of the Special Marriage Act, 1954 are very clear. Section 5 of the said Act says that "when a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given." Thereafter, Section 6 of the Act says that "(1) The Marriage Officer shall keep all notices given under section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same. (2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office."
There is no ambiguity in these two sections of the said Act about the procedure of giving notice and its subsequent publication. Neither is it intended to be optional. The couple intending to solemnize its wedding under this Act has to mandatorily give a notice and the registrar has to mandatorily make the required entries and publish the same at a "conspicuous place in his office" and make it available for inspection to anyone willing to see the same. All parties are bound by the existing provisions of law to adhere to this well laid out procedure if their marriage is to be solemnized under this Act.
Now, Justice Chaudhary has ruled that the couple can give in writing that they do not want their notice to be published and the marriage officer has to solemnize their wedding without publishing their notice. Both these actions would be illegal under the existing provisions of the said Act. The legislature had incorporated the notice period in the Act to prevent weddings where either of the parties could use untruths and misrepresentations to contravene the conditions for such marriages as laid down in Section 4 of the said Act. While Justice Chaudhary has now put the onus on the marriage officer to verify that the conditions under section 4 are not contravened, one feels that it is something that is beyond his remit and not what the legislature intended. It will complicate matters further and the marriage officer will now seek additional documents from the couple which they might not be in a position to provide. This will make the process lengthy and complicated and defeat the purpose of the law.
Justice Chaudhary is spot on when he argues that laws must keep evolving with time and factor in societal changes and must not intrude of the privacy of citizens as guaranteed by the constitution. But making laws is the exclusive domain of the legislature and the judiciary can only interpret the same. Justice Chaudhay has tried to change the meaning of the law and has intended to do what the legislature did not want to. In doing so, he has tried to make law, something he has no right to. If the provisions of the Special Marriage Act, 1954 relating to giving notice of marriage and its publication intrude upon the privacy of individuals, they need to be challenged for that and the competent court needs to examine their constitutional validity and pronounce its judgment on that. A writ petition challenging the provisions of the Special Marriages Act, 1954 in so far as they require the parties to the marriage to establish their identity by disclosing their private details which are open for public scrutiny is pending before the Supreme Court. Until the Supreme Court strikes down the offending sections, notice for marriage under the Act has to be given and has to be published mandatorily.
