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30-day notice for interfaith marriage optional, says HC

The Times of India logo The Times of India 13-01-2021 Ravi Singh Sisodiya
a group of people walking in front of a building © Provided by The Times of India

LUCKNOW: The Allahabad high court’s Lucknow bench has ruled that it should be optional rather than mandatory for an interfaith couple to give 30 days’ prior notice to a marriage officer to register their wedding under the Special Marriage Act, 1954.

Enforcing a notice period on the couple is tantamount to intruding on their fundamental right to privacy and liberty, the court said.

“If the couple doesn’t want to go for publication of the 30-day notice, the marriage officer has to solemnise their wedding forthwith,” Justice Vivek Chaudhary said while disposing of a habeas corpus petition filed by a Hindu man married to a woman who was born Muslim but converted before the wedding.

Petitioner Abhisekh Kumar Pandey alleged that his wife Sufia Sultana was being held captive by her father because she converted and got married according to Hindu rituals.

Justice Chaudhary based his judgment on three key observations. First, the law must keep evolving with time and societal change. Second, it shouldn’t violate anyone’s privacy, a fundamental right underscored in several orders of the Supreme Court. Lastly, when there is no provision of a 30-day notice period to get married under various personal laws, why should this be mandatory under the Special Marriage Act?

The court, however, clarified that the onus would be on the marriage officer to verify the identity, age and valid consent of the couple and their eligibility to marry under the relevant law. “In case the marriage officer has any doubt, it shall be open for him to ask for appropriate details or proof as per the facts of the case,” the court said.

Responding to an earlier directive, the father of Sufiya alias Simran had produced his daughter in court. During the course of the hearing, she and Abhisekh told the court that they were consenting adults who had married of their free will because they wanted to live together. Simran's father thereafter gave his personal consent to their marriage.

While the case was amicably closed, the court took notice of the fact that under the Special Marriage Act, it is mandatory to give 30 days’ notice for an interfaith couple to legalise their union.

Abhisekh and his bride had pleaded before the court that any such notice would be an invasion of their privacy and cause unnecessary social pressure and interference in their decision to marry. They also pointed out that many interfaith couples face the same challenge.

The petitioner’s counsel said the circumstances had become even more difficult for couples in Uttar Pradesh under the Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which treats conversion through marriage as illegal and punishable.

He argued that in the light of changes in society, amendments to the Special Marriage Act and various judgments of the Supreme Court in regard to the privacy, liberty and freedom of choice of a person, it is imperative to revisit the provision for a 30-day notice period and understand whether this is to be treated as mandatory or directory in nature.

Citing various orders of the Supreme Court and recommendations of the Law Commission of India in 2008, the court concluded: “...the procedure of publication of notice and inviting objections to the intended marriage in Act of 1954 thus has to be such that would uphold the fundamental rights and not violate the same...No reasonable purpose is achieved by putting the provision of 30 days notice publication under the Special Marriage Act.”

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