Writ Petition has been filed before the Kerala High Court challenging the provision of the Special Marriage Act requiring a 30-day waiting period after the submission of the notice of intended marriage. The Petition seeks a declaration that the mandatory waiting period is unconstitutional, or alternatively, a declaration that the 30-day period after the submission of notice of intended marriage under Section 6 and all related provisions of the Act are merely directory and cannot be strictly enforced.
Justice V G Arun, recognizing that the matter requires a thorough examination, made the observation,
A lot of changes and liberalisation has taken place even in our customs and practices. Yet another aspect is that a large number of youngsters are employed abroad. Such people come back to their native place only on short vacations and instances are many where the marriage is conducted during the short holidays. The Special Marriage Act requires one of the intending spouses to have resided within the territorial limits of the jurisdictional Marriage Officer for at least 30 days before submitting the notice of intended marriage. Thereafter, the intending spouses have to wait for another 30 days to solemnise the marriage. Whether this waiting period is essential in view of the revolutionary changes in the information technology sector and changes in the social set up itself are matters that should engage the attention of the law makers.
The Writ Petition was filed by a couple who were denied the ability to solemnize their marriage without the 30-day waiting period required under the provisions of the Special Marriage Act, 1954. The first petitioner is employed in Oman and it would only be feasible for the second petitioner, who resides in Italy, to accompany the first petitioner after obtaining a visa if the marriage was performed before January 13. Due to the 30-day waiting period after the submission of the notice of intended marriage, as mandated by the Act, the petitioners sought recourse from the Court.
The Counsel for the Petitioners, Advocate K. M. Firoz, requested an interim order, arguing that without a directive to perform the marriage without the 30-day requirement, the Writ Petition would become moot.
The Counsel argued that due to the significant changes in social norms since 1954, the Act should be interpreted in a progressive manner. The Counsel cited a decision made by a Division Bench of the Allahabad High Court, in which the court held that the notice under Section 5 of the Act was optional and granted the parties the freedom to make a written request to the Marriage Officer regarding the publication of a notice under Section 6 and to follow the objections procedure outlined in the Act. The Division Bench further stated that if the parties do not make a request for notice publication in writing when giving notice under Section 5, the Marriage Officer should not publish the notice or entertain objections to the intended marriage and should proceed with the solemnization. During this process, the Marriage Officer should verify the identification, age, and valid consent of the parties and their eligibility to marry under the Act.
..”progressive approach is adopted by the Apex Court also, by relaxing the six months waiting period after submission of joint petition under Section 13 B(2) of the Hindu Marriage Act, 1955 and of the one year waiting period between marriage and submission of divorce petition”, the Counsel argued, adding that with the advancement of technology, it is now possible to verify and ascertain whether any of the objectionable factors in Section 4 exists, within a short span of time.
Counsel for DSG, S Manu, submitted to the Court that the 30-day period specified in Section 5 of the relevant legislation is intended to provide a chance to object to the intended solemnization. He argued that this statutory provision has been in effect for over 50 years and should not be disregarded in considering the request for interim relief. In support of his argument, Mr. Manu cited the Supreme Court decision in Health for Millions v Union of India and others and the ruling by the High Court in the case of Ajmal Ashraf M. and another v State of Kerala and another.
The Government Pleader, Advocate S Appu, raised similar arguments to those of DSG. He argued that the Marriage Officer is obligated under the Special Marriage Act to conduct an investigation when objections to the proposed solemnization are found to be valid. If an individual is dissatisfied with the refusal to solemnize the marriage after such an investigation, they may file an appeal. Advocate Appu maintained that these statutory provisions should not be weakened. To support his arguments, the Government Pleader relied on the Supreme Court decision in Bhaurao Shankar Lokhande and another v. The State of Maharashtra and another.
After considering the arguments presented, the Court determined that the matter required further examination. However, the Court concurred with DSG’s argument that the grant of an interim order would result in a stay of the provision’s implementation.
This court cannot also ignore the Division Bench and Single Bench decisions holding the time stipulated in Section 5 to be mandatory, reasoned the Court while declining the prayer for interim relief.
The matter has been posted for after a month.
Case Title: Bijy Paul v. The Marriage Officer and Ors.
