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Why is the 30-day notice period under Special Marriage Act being opposed?

The Special Marriage Act mandates marriage officials to issue a public notice soliciting objections to an impending marriage 30 days before the ceremony

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When will we stop hearing these homilies about the ‘sanctity of marriage’? Photo: iStock

BS Web Team New Delhi

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The Supreme Court of India recently heard a number of petitions seeking legal recognition of same-sex marriage, during which the constitution bench reviewed some parts of the Special Marriage Act (SMA), 1954.

The SMA mandates marriage officials to issue a public notice soliciting objections to an impending marriage 30 days before the ceremony.

Meanwhile, on Thursday, April 20, the bench stated that the provision is patriarchal and violates people's privacy.

Let's find out what it's all about.

30-day notice under Special Marriage Act

Any couple wanting to marry under the SMA must notify the marriage officer in the district where at least one of the two has lived for at least 30 days.

This notice of intended marriage is then posted for one month on the notice boards of the registration office where the notice is submitted. It is also posted in their respective hometowns or places of residence.

During this time, anyone can oppose the couple's union, and an inquiry will be convened. If no one objects, the marriage is solemnised by the marriage officer after 30 days.

'An invitation to disaster and violence'

In court, senior advocate Abhishek Manu Singhvi pointed out that this requirement did not exist in any other personal legislation and maintained that it was unconstitutional.

He also called the law an "invitation to disaster and violence" and stated that it is at the heart of his privacy to decide with whom he associates, when, how, and after how long time into the married union, whether of the same or opposite sex.

'Law based on patriarchy'

While Justice S Ravindra Bhat noted that it was based on patriarchy and that the rules were enacted when women lacked agency, Chief Justice of India (CJI) DY Chandrachud stated that the purpose of the notice system was to protect.

You're now almost inviting society, collectors, district magistrates, and the superintendent of police to infiltrate them, CJI Chandrachud said.

Singhvi further claimed that the notice regime violates individual decisional autonomy, privacy, and individual dignity, all of which are basic Constitutional values.

This should not be struck down only for same-sex couples but for heterosexuals and non-heterosexuals, Singhvi contended.

History of the notice regime

This requirement was inspired by a 1753 British Parliament act titled 'Act for the better prevention of clandestine marriages, 1753.' The notice clause, which began as a preventative act, is now carried over into SMA, which is an enabling statute. Another petitioner's senior attorney, Raju Ramachandran, said the notice requirement was like asking for notice to exercise one's fundamental rights.

CJI Chandrachud stated that this was not the "least intrusive way" to prevent people from entering into void marriages.

Meanwhile, Justice Kohli said that this would be true for heterosexual couples as well.

In 2022, the SC rejected a petition against the notice period

A petition was filed at the Supreme Court in 2022, challenging the clauses of the SMA that mandated notice publication.

The court, however, dismissed the plea, adding that "Challenging the constitutional validity in this petition is abstract."

Since the petitioner was personally affected by the statute, the court said it could not be termed a PIL.

Athira Sujatha, one of the individuals who married under SMA and was doxxed by a vigilante group in Kerala, was the petitioner in the case.

The marriage notices were publicly available on the Kerala Registration website, which various right-wing organisations accessed and shared on social media channels, characterising the relationships as "love jihad."

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First Published: Apr 24 2023 | 2:48 PM IST

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