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KEY TAKEAWAYS

The High Court of Allahabad held that it was up to the married duo to determine whether or not a public notification of opposition could be issued subsequent to their union under the Special Marriage Act, 1954 .

The decision was enacted by the Tribunal of Justice Vivek Chaudhary in recognition of complaints that the Right To Privacy of inter-faith spouses is breached and that excessive social intervention is aroused when such a notification is given under the 1954 Act.

The Court recognized that, on the one side, unions under personal laws take place without any intervention from any corner, even though they are afterwards to be declared invalid.

Section 6 and 7 of the Special Marriages Act, 1954 requires to be wedded duos, under this legislation to provide a notice 30 days prior to their set wedding date and entertain objections, if any.

The case at hand is Smt. Safiya Sultana Thru. Husband Abhishek Kumar Pandey & Anr vs. State Of U.P. Thru. Secy. Home, Lko. & Ors.

FURTHER DETAILS ABOUT THE JUDGEMENT

The judgment was enforced after thoroughly recounting the context of the 1954 statute, as well as the numerous decisions of the Supreme Court which followed on interfaith marriages, constitutional autonomy and the right to privacy.

The provision of issuance of a notification pursuant to Section 6 and the invitation/entertainment of opposition pursuant to Section 7 of the Special Marriage Act may only be interpreted as a directory in form, to be applicable only on the requirement of the parties to the marriage and not otherwise.

When providing notice pursuant to Section 5 (Notice of planned marriage) of the 1954 Act, it is optional for the parties to the marriage to make a proposal in correspondence to the Marriage Officer to print, or not to release, a notice pursuant to Section 6 and to obey the protocol of the objections laid down in the 1954 Act.

In the event that a pair fails to make such a proposal for publishing of a written notice, the Marriage Officer shall not print any such document or raise objections to the union in question and shall lead to the formalization of the marriage

It shall be available to the Marriage Officer, at the time of the cohabitation to check the identity, age and legal approval of the applicants or else their eligibility to marry under the said Act. In the event of any ambiguity, it is accessible to him to inquire for sufficient details/proof as per the details of the matter.

If a couple, of their own free will, wishes to have more knowledge about their spouses, they can certainly opt for publication of the notification under Section 6 and further proceedings in respect of the opposition to be pursued. Such issuance of a notification and further prosecution will not be in violation of their human rights, as they are following the same free will.

The Court stated that, even though there is a breach of any statutory provision in a marriage entered into under the Special Marriage Act, the same legal implications will follow as in a marriage made in compliance with personal rules, i.e. "the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws."

BACKGROUND

Before the Session, there was a married couple, initially of separate faiths. In this situation, the female converted to Hinduism and wed her Hindu spouse under Hindu personal laws.

The father of the girl was hostile to the union. The petition before the Court demanded her freedom from custody of her parent. In spite of the fact that the woman was an adult and had established her own free will, the Court permitted the appeal before her.

That being said, a significant issue occurred with respect to the Court's evaluation after the couple told the Court that they would have solemnized marriage under the Special Marriage Act rather than the personal rules, had it not required a public notice of protest to be issued 30 days before the marriage.

Such a note will intrude on their right to privacy and cause undue social strain or intervention, the pair said. No such requirement has been put under personal rules, it has been pointed out.

The Court also recognized that this was a problem impacting a significant number of related individuals who wish to create a life with a partner of their own choosing. Furthermore, it was argued that the question would become more important with the announcement of the Uttar Pradesh Prohibition of the Unlawful Conversion of the Religion Ordinance of 2020, which forbids the conversion of faith by marriage.

SPECIAL MARRIAGE ACT, 1954

The SMA is a law that requires weddings to be celebrated without any religious traditions or practices. Persons from various castes or sects or states are married under the SMA in which marriage is celebrated by way of registration.

The primary aim of the Act was to resolve inter-faith marriages and to define marriage as a legal entity free from all religious formalities, which required solely the practice of registration.

CONCLUSION AND PRECENDENTS

Given the arrival of the newly formed legislation by the Uttar Pradesh Government, Uttar Pradesh Prohibition of the Unlawful Conversion of the Religion Ordinance of 2020, more commonly known as the 'Love Jihad Law' brings a climacteric change in the perception of people towards interfaith unions. The duos, despite being legitimized, are under a constant radar and face issues with the societal expectations and boulders.

The precedents quoted in the case were:

To download the original copy of the judgment: Click here


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