Written by Prianka Rao

A Constitution Bench of the Supreme Court is currently hearing a batch of petitions on the recognition of same-sex marriage in India. Among other aspects, the Court is examining arguments for a neutral reading of the Special Marriage Act, 1954 (SMA) to enable the recognition of a marriage between any two persons. In this context, the Court remarked that the SMA’s provisions, which require a couple intending to marry to provide 30 days prior notice, is “invasive” and “patriarchal”. This examination of the SMA has, once again,  brought to the fore some inherent issues with the statute.

On the face of it, the SMA appears to be the appropriate starting point for recognising the right to marry for same-sex persons in India. After all, the SMA was intended to be an inclusive marriage statute, an alternative to other religion-specific marriage laws, such as the Hindu Marriage Act. At the time of the SMA’s introduction in Parliament as a Bill in 1953, the then law minister, in his opening remarks, had characterised the proposed law as a “non-communal and non-sectarian measure, it is meant to be all-pervasive…”

A plain reading of the SMA states that a marriage may be solemnised between any two persons, provided the man is over 21 years and the woman is over 18 years. This is subject to certain other factors such as not having a living spouse, being of sound mind, having the capacity to give valid consent, etc. Section 5 of the SMA requires an intending couple to give 30 days prior notice to the marriage registrar within the jurisdictional limits of either party’s current residence. This includes submitting private information, such as the names, photographs, and addresses of both parties which, in many jurisdictions, are displayed on a public notice board, and made available for any party to examine (Section 6) and raise objections to (Section 7). This implies that any individual or group, with no relationship to the couple, but with the sole intent to harass, is able to easily obtain personal information about the couple, file an objection (on grounds such as having a living spouse as laid down in Section 4) and trigger the process of inquiry by the Marriage Officer — all of this without connection or real cause in order to further delay and disrupt the process.

One could argue that, perhaps, the SMA, a progressive law, wasn’t intended to be discriminatory or invasive, at the time of its introduction. In fact, an earlier version of the law, introduced in 1872 with the support of the Brahmo Samaj movement, was considered path-breaking at the time. Other unverified sources state that the purpose of the notice period was, in fact, to protect the parties, especially the woman, from marrying a man who had a living spouse, or from being duped in other ways. The rationale was that marriages under personal laws typically include the participation of the family and wider community — this allows for the “verification” of the groom’s background and past. Since the SMA is couple-centric, the state has attempted to step in and perform this role of family and community. Such an invasion by the state is, without a doubt, patriarchal, violates fundamental rights, and has no place in modern society.

In 2018, the Supreme Court, in KS Puttaswamy v. Union of India, affirmed that the right to privacy is a fundamental right. In doing so, it held that equality, dignity, autonomy and personal choices are intrinsic to privacy. Further, in decisions such as Shakti Vahini (guidelines for the protection of young couples against honour killings and protection of fundamental rights), Shafin Jahan (prohibiting the state from interfering in the choice of partner) and Navtej Johar (which decriminalised consensual same-sex relationships between adults and expanded on notions of liberty, sexual autonomy and privacy) the Supreme Court has reinforced the right to individual autonomy, choice and self-determination in one’s personal life. It may be argued that the 30-day notice period requirement and related provisions of the SMA fly in the face of these fundamental rights recognised by the Supreme Court.

Further, various NGOs and rights-based groups have documented the effects of the SMA’s notice period on adult interfaith couples intending to marry. The notice can trigger law enforcement, the groom is charged with an attempt to kidnap, and the couple is often chased across state boundaries in an attempt to “rescue” the woman and “reunite” her with her family. It has also been reported that it is the fear of such intimidation that acts as a stumbling block for interfaith couples to register under the SMA, leaving them with no choice but for one party (often the woman) to convert to the religion of the other in order to marry quickly and quietly. Further, over the last decade, with the love-jihad bogey having rapidly gained momentum, and legislation to prevent “forced conversions”, the fear of the Special Marriage Act being weaponised against couples with lesser privilege, social mobility and no family support is not an unfounded one.

The SMA can provide an excellent starting point for the expansion of marriage rights to recognise the right of same-sex couples. However, if the 30-day notice period is retained, it may be used against same-sex couples as well, weakening in practice a right to marry that may have only been won on paper. In August 2022, the Supreme Court dismissed a petition (Athira Menon) to examine the validity of the 30-day notice period under the SMA. With the remarks of the CJI and other members of the bench a few days ago, one is hopeful that the Court will be open to a reading of the SMA that expands its scope to permit all persons who wish to marry under its ambit without fear of state and society.

The writer is a lawyer and policy researcher based in New Delhi