SC says one-month notice under Special Marriage Act patriarchal

New Delhi, April 20

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The Supreme Court on Thursday questioned the rationale behind the requirement of notice inviting objections under the Special Marriage Act (SMA), 1954, saying it was patriarchal and enabled the police and other authorities to invade an individual’s privacy.

On the third day of hearing on petitions seeking recognition for same-sex marriage before a five-judge Bench led by CJI DY Chandrachud, senior counsel AM Singhvi said the requirement of a prior notice for parties to a marriage under the SMA was “unconstitutional”.

“It’s unconstitutional because even before a formal entry into marriage, you are invading my privacy by directing me that I must declare my intention in public domain for objections to be invited. Which married couple in the heterosexual world has to announce first to the world that we intend to marry? Why should I?” senior counsel AM Singhvi, who represented one of the petitioners, told the Bench, which also included Justices SK Kaul, SR Bhat, Hima Kohli and PS Narasimha.

As Justice Bhat said the provision was “based on patriarchy” and it was created at a time when women didn’t have agency, Singhvi termed it “an invitation to disaster and violence”. “If the object (of the SMA provision) was to protect from their personal law… you are virtually laying them open to invasion by society, by Collectors and District Magistrates and Superintendents of Police,” said the CJI.

Justice Chandrachud said, “Constitutionally and socially as well, we have already reached the stage which postulates that your very act of decriminalising homosexuality, does contemplate that, therefore, people who belong to the same sex would be in stable marriage-like relations.”

Terming the SMA requirement of 30-day notice as “totally retrograde and obnoxious”, senior lawyer Raju Ramachandran said it amounted to the requirement of “giving a notice to exercise my fundamental rights”. “It’s designed for parental bodies and other busy bodies to create roadblocks,” he added.

The CJI said there was a real likelihood that this would disproportionately affect situations in which one of the spouses either belonged to a marginalised community or minority. “It has a disproportionate impact on those who are the most vulnerable sections of our society,” he said.