A petition has been filed before the Kerala High Court challenging the provision under the Special Marriage Act, 1954 (Act) which mandates a 30-day waiting period for registration of marriage after submission of notice of the intended marriage.
The plea moved by a couple said that Section 5 of the Act prescribing the 30-day period is unconstitutional, arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution.
The couple had submitted the notice of their intended marriage under Section 5 of the SMA on January 5 this year to the respondent marriage officer.
Since one half of the couple has to return to Muscat for work on January 24, they approached the Court seeking directions to the marriage officer to conduct an enquiry on the notice as per Section 8 of the Act within 2 days without waiting for 30 days and register the marriage before January 23.
After hearing the matter today, Justice VG Arun said that he would pass orders on Thursday, January 19.
He opined that the issues raised by the petitioners require consideration by the Court. However, he concurred with the respondents that this is not a matter where an interim order can be passed without holding substantial hearings.
In their plea, the petitioner-couple contended that the 30-day notice period under Section 5 of the Act is only directory and not mandatory in nature. Therefore, they argued that it cannot be held as mandatory as the Allahabad High Court did in its 2020 judgment in Safiya Sultana through husband Abhishek Kumar Pandy & Anr. v State of UP.
It was pointed out that the only purpose of notice of intended marriage is to enable any person to object to the marriage on the ground that the marriage would contravene any of the conditions mentioned in Section 4 of the Act.
However, since any such contraventions can be ascertained by other means or by conducting an enquiry as provided under Section 8, the petitioners argued that there is no justification in waiting for 30 days calling for objections from the public.
“Such a time restriction for marriage depending on third party objections is archaic and unreasonable and volative of Articles 14 and 21,” the plea stated.
Further, the petitioners submitted that the Act itself contains checks and balances for false details under Sections 44 and 45 which prescribe the punishment under the Indian Penal Code for bigamy or signing false declarations.
According to the petitioner, the 30-day waiting period casts an unreasonable restriction on one’s right to marriage and right to choose a partner as well as the rights to privacy, liberty, free will and consent which are facets of Article 21.
The petitioners also argued that the intention of the legislature while designing the statute was to make the 30-day period a directory provision.
In this regard, it was pointed out that when the statute was enacted in 1954, technological advancements especially in communication were not as developed as they are now.
“The advancement of technology, facilities of easy enquiry and change in social conditions are relevant for interpretation of the provisions. It would be unreasonable to force the present generation living with current advancements to follow the norms and period adopted by earlier generations due to conditions prevailing then,” the plea said.
It was also submitted that the 30-day period can be waived by the Court and the petitioners pressed for the same to be done in their case.
The petitioners were represented by advocates KM Firoz and Geo Paul.
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