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Challenging the Special Marriage Act, 1954

Posted on August 31, 2022 by admin1  1438

In News

  • Recently, the Supreme Court dismissed a writ petition challenging provisions of the Special Marriage Act (SMA).

About the petition

  • The petition challenged the Constitutional validity of certain provisions of the SMA under which couples seek refuge for inter-faith and inter-caste marriages. 
  • The writ petition has called these provisions violative of the right to privacy guaranteed under Article 21 of the Constitution as they require couples to give a notice of 30 days before the date of marriage inviting objections from the public. 
  • The petition claims that the provisions contravene 
    • Article 14 on prohibition of discrimination on grounds of religion, race, caste and sex as well as, 
    • Article 15 on right to equality as these requirements are absent in personal laws.

Formalizing marriage in India

  • In India, a marriage can either be enlisted under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. 
    • The Hindu Marriage Act is pertinent to Hindus.
    • The Special Marriage Act is appropriate to all residents of India regardless of their religion applicable at Court marriage.

More about the Special Marriage Act, 1954

  • About:
    • The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage or “registered marriage”.
    • The Act deals with inter-caste and inter-religion marriages. 
      • Inter caste marriage is a marriage between people of two different castes.
      • Inter religion marriage is a marriage between people of two different religions.
    • The fundamental requirement under this Act for a valid marriage is the consent of both parties to the marriage. 
  • Applicability:
    • Any person, irrespective of religion.
    • Hindus, Muslims, Buddhists, , Sikhs, Christians, Parsis, or Jews can also perform marriage under the Special Marriage Act, 1954.
    • Inter-religion marriages.
    • This Act is applicable to the entire territory of India and extends to intending spouses who are both, 
      • Indian nationals.
      • Indian national living abroad.
  • Conditions for marriage:
    • Each party involved should have no other subsisting valid marriage. 
    • In other words, the resulting marriage should be monogamous for both parties.
    • The groom must be at least 21 years old; the bride must be at least 18 years old.
    • The parties should be competent in regard to their mental capacity to the extent that they are able to give valid consent for the marriage.
    • The parties should not fall within the degree of prohibited relationship.

More about the procedure of SMA & the controversial provisions:

  • Notice of 30 days:
  • The SMA requires couples getting married under it to give a notice to the Marriage Officer 30 days before the date of marriage.
  • Such a notice is then entered into the Marriage Notice Book maintained by the Marriage Officer, which can be inspected by “any person desirous of inspecting the same”. 
  • Displaying the notice & objections:
    • These notices have to be also affixed at a “conspicuous place” in the office of the Marriage Officer so that anyone can raise an objection to the marriage.  
    • The process for making an objection such as:
      • If either party has a living spouse, is incapable of giving consent due to “unsoundness of mind” or 
      • Is suffering from mental disorder resulting in the person being unfit for marriage or procreation. 
  • Inquiry procedure:
    • The act also specifies the inquiry procedure to be followed after an objection has been submitted.

Issues & criticisms

  • Making personal information public:
    • The provisions, by throwing the personal information of the individuals open to public scrutiny, seriously damage one’s right to have control over her or his personal information and its accessibility. 
    • By making the personal details of the couple accessible to everyone, the very right of the couple to be the decision makers of their marriage is being hampered by the state.
  • Misuse by anti-social elements:
    • These public notices have been used by anti-social elements to harass couples getting married.

Similar controversial provisions in states

  • Haryana:
    • The Haryana government has laid down 16 pre-requisites which ask couples to issue a notice in a newspaper and that such notices be sent to their parents. 
  • Maharashtra and Kerala:
    • The Maharashtra Department of Registration and Stamps publicly shares the details of couples marrying under SMA on its website and so did the Kerala government.
  • Others:
    • In certain States, couples have to seek a no-objection certificate from their parents.

Source: TH

 
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