Laws like the Special Marriage Act were enacted at a time when women did not have agency and public notice envisaged under the law inviting objections to an intended marriage is patriarchal and enables invasion of privacy, the Supreme Court said on Thursday.
The observations were made by a Constitution Bench led by Chief Justice of India (CJI) DY Chandrachud and also comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli while hearing a batch of petitions that have prayed for legal recognition of same-sex marriage.
The bench specifically discussed Sections 5, 6 and 7 of the Special Marriage Act which require marriage officers to display the said public notice in a conspicuous place or the notice board in their office 30 days prior to their marriage, to invite or entertain objections.
The details of the notice include the couple’s names, phone numbers, date of birth, age, occupation, addresses and other information regarding their identities.
Senior Advocate Abhishek Manu Singhvi, appearing for the petitioners, pointed out that no such provisions exist in personal laws of various religions.
He argued that the 30-day notice period inviting objections to the marriage directly impinge on the fundamental rights of the petitioners.
“Before a formal entry into marriage you are invading my privacy saying that I have to declare my intention to marry to the world. This notice and objection aspect is the violation of my personal, decisional autonomy … [it is] a relic of the Raj”, Singhvi stressed.
Justice Bhat then opined,
“This is only based on patriarchy. These laws were made when women did not have an agency.”
The CJI weighed in stating,
“This is like laying them open for invasion by the society including the Superintendent of Police, the District Magistrate etc.”
Singhvi concurred and added that it should be struck down, since the same was completely disproportionate, discriminatory and violative of the right to privacy.
Senior Advocate Raju Ramachandran, also for the petitioners, later during the hearing said that if the right to marry is read into Article 21 (protection of life and personal liberty), such notices cannot stand. It should be struck down for being ‘obnoxious’ and ‘retrograde’, he added.
The CJI then opined that if the intent of the same was only to curb void marriages, it might be the least restrictive method. However, he made it clear,
“There is a very real likelihood that this section will disproportionately impact if one member is from a marginalized or minority community and this it impacts one of the most vulnerable sections of our society. Regarding the protocol we have to be careful that we dont empower these officers to possess personal and private information of these individuals but we have to see that they are protected, yes.”
The hearing is in progress.
Interestingly, the Supreme Court had, in August 2022, refused to entertain a PIL challenging the provisions of the Special Marriage Act requiring publication of couples’ details 30 days before the intended marriage in public domain.
The Kerala High Court had in February this year opined that the legislature should reconsider whether the provisions were essential in the present day and age.
The Delhi High Court had last year observed that once two consenting adults decide to live together as husband and wife, nobody is entitled to interfere including their family members.