Supreme Court slams sections of Special Marriage Act requiring prior notice

The very object of the Special Marriage Act is to protect couples; but these provisions lay them open to invasion by society, observes Chief Justice of India D.Y. Chandrachud

Updated - April 21, 2023 01:04 am IST

Published - April 20, 2023 10:56 pm IST - NEW DELHI

A Constitution bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud and also comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, P.S. Narasimha, and Hima Kohli amid a hearing of a batch of petitions demanding legal validation for same-sex marriages, at the Supreme Court in New Delhi on April 19, 2023.

A Constitution bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud and also comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, P.S. Narasimha, and Hima Kohli amid a hearing of a batch of petitions demanding legal validation for same-sex marriages, at the Supreme Court in New Delhi on April 19, 2023. | Photo Credit: PTI

The Supreme Court on April 20 said provisions of the Special Marriage Act which mandate a 30-day prior notice of intent to marry is steeped in patriarchy and exposes vulnerable couples to an “invasion” by the society.

A Constitution Bench headed by Chief Justice of India D.Y. Chandrachud said forcing couples to put their intention to get married out in the open harked back to the era of the British Raj.

“The very object of the Special Marriage Act is to protect couples. But these provisions lay them open to invasion by society, by District Magistrates and Superintendents of Police,” Chief Justice Chandrachud observed orally.

Also Read: SC implicitly contemplated ‘stable, marriage-like relationships’ between same-sex persons while decriminalising homosexuality

The Bench, also comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha, are hearing petitions to legally validate same-sex marriages by allowing them to be conducted under the Special Marriage Act of 1954.

However, senior advocate A.M. Singhvi and advocate Shadan Farasat said the mandate of prior and open notice of the intent to marry was sheer anathema to privacy, individual dignity and personal autonomy and choice. He urged the court to strike down these provisions.

Senior advocate Raju Ramachandran said these provisions were “retrograde and obnoxious”. He said how one of the provisions required fresh notice of intent to be put up in the public domain if the marriage was not solemnised within three months.

“The marriage would not have happened the first time because the parents would have kidnapped them. Now, when they have got together again and want to get married, they have to put up a fresh notice,” Mr. Ramachandran submitted.

Justice Bhat said the provisions date back to when “women did not have an agency… They are a throwback to the British era. They are based in patriarchy”.

Also read: The various petitions around same sex marriage

Mr. Ramachandran said the court should lay down a protocol to protect couples as it did in the Shakti Vahini judgment of 2018 in which it had declared honour killing was murder, plain and simple.

In a separate portion of the day-hearing, Chief Justice Chandrachud referred to how domestic abuse in heterosexual marriages could have a psychological impact on children. The government had conveyed its anxiety about the psychological impact living with gay or lesbian parents would have on children.

“In a heterosexual marriage, the father could come home under the influence of alcohol and thrash the mother for money in front of the child… So, there are no absolutes,” Chief Justice Chandrachud said.

Also Read: State cannot discriminate against individuals over sexuality, says Supreme Court

Senior advocate K.V. Vishwanathan said marriage was a union of two souls and it was misogynistic to even argue that the object of marriage was procreation.

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