The Special Marriage Act, 1954, which replaced the Special Marriage Act of 1872, is a civil law that provides for marriages of persons irrespective of faith or religion. The law allows the parties to observe any ceremonies for the solemnisation of their marriage and also permits persons who are already married under other forms of marriage to register their marriages under the Act.
The law was brought in to ensure that religion and caste do not come in the way of people choosing their partners. In fact, the fundamental requirement under this Act, for a valid marriage, is the consent of both parties concerned, irrespective of their religious beliefs or caste.
Under the Act, the basic requirements for a valid marriage are almost identical to that of marriages under other personal laws. The Act mandates that notice of a marriage be available for public scrutiny for 30 days. The notice, therefore, is displayed in “some conspicuous place”, usually on the notice board of the marriage registrar’s office. Display versus privacy
In some states including Delhi, Rajasthan and Haryana, the practice is for the notice to be sent to the residential addresses of the couple intending to marry.
These are nothing but bureaucratic hurdles with unmistakable patriarchal and communal underpinnings. Incidentally these requirements have been struck down by the Delhi and Rajasthan High Courts as “not warranted or authorised by law” and that they “amount to a breach of privacy of the individuals”. There are also numerous reports that show how this formality has been used by right-wing organisations to interfere with and harass inter-faith couples.
The Special Marriages Act provides no scope for any interference with the choice of the consenting adults, either from the family or others. Even the provision mandating public notice of 30 days has been challenged before the Supreme Court on the ground that it violates the right to privacy of the parties. most personal, intimate decision
We must bear in mind here that the notions of relationships and marriage, from a legal point of view, have undergone a remarkable change. Much like the right to divorce, marriage has moved from being a contract between families to the autonomy of individuals to choose. The Supreme Court has repeatedly asserted that every individual has the right and autonomy to choose their partner and marry a person of their choice.
The Supreme Court, in Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors., while decriminalizing same-sex relationships held: “There can be no doubt that an individual also has a right to a union Under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional”.
The Court emphasized on an individual’s right to privacy stating that: “Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy willfully to another individual and their intimacy in privacy is a matter of their choice.” In fact, the Supreme Court in the Navtej case, held that criminalising of consensual acts between individuals who wish to exercise their constitutionally-protected right to sexual orientation is an illegal action of the State, denying its citizens the right to intimacy, while going on to hold that the every individual has the right of choice of partner as well as the freedom to decide on the nature of the relationship that the individual wishes to pursue.
In the Shafin Jahan case, the Supreme Court set aside a Kerala High Court judgment which annulled the marriage of a twenty-four year old woman .