In interfaith marriages, question of privacy, a need to move with the times

The Punjab and Haryana High Court has asked Haryana to ‘modify, simplify’ its court marriage checklist and cut down state interference.

Written by Sofi Ahsan | Chandigarh | Published: July 30, 2018 12:30:20 am
In interfaith marriages, question of privacy, a need to move with the times In April 2009, Delhi High Court directed the Marriage Officer in Delhi to not send notices to the residences of a couple, because the procedure was without any authority of law and amounted to “breach of the right to privacy”. (Representational Image)

The Haryana government’s Court Marriage Check List (CMCL) for registration of a marriage under the Special Marriage Act is violative of the right to privacy, and an act of excessive executive action, Punjab and Haryana High Court has ruled. In an order passed on July 20 (released July 25), Justice Rajiv Narain Raina said that the procedure for marriage “must reflect the mind-set of the changed times in a secular nation promoting inter-religion marriages instead of the officialdom raising eyebrows and laying snares and land mines beneath the sacrosanct feet of the Special Marriage Act, 1954”.

Lawyers say that the CMCL — a list of conditions that need to be fulfilled prior to registration of an interfaith marriage in Haryana — has kept couples away from Marriage Officers because the rules end up exposing them to hostile members of their families or communities, who may try to separate them.

Interfaith marriage law

Parliament passed The Special Marriage Act, 1954, to provide a way to register the marriage of two individuals of different faiths. The persons intending to marry have to give 30 days’ notice in writing to the Marriage Officer of the district in which either of them has lived for at least 30 days before the date of giving notice. The Marriage Officer must keep the notice in a Marriage Notice Book, a public document anyone can inspect, and “affix a copy (at) some conspicuous place in his office”. The idea is to invite objections; to ensure that “neither party has a spouse living”, or is “incapable of giving a valid consent… in consequence of unsoundness of mind”, and that “the male has complete the age of twenty-one years and the female the age of eighteen years”, etc. The marriage is allowed or rejected after adjudication by the Marriage Officer on the objections, if any, at the end of 30 days.

Haryana’s conditions

In addition to the conditions laid down in the Act, Haryana has a 16-point checklist for interfaith couples seeking to marry under the Act. Among them is a provision that allows officials to send the notice for objections to the “home address” or permanent address of the applicants, and one that requires the tehsildar to physically verify applicants’ addresses and prepare a “verification report” for the District Marriage Officer. Also, the couple must get the notice published in a national newspaper. Another condition, which was raised in the case before Punjab and Haryana High Court, is that the couple should not be staying at one place under one roof at the time of applying.

The case in the HC

One among the Hindu-Muslim couple is from Faridabad and the other from Gurgaon; both are pursuing careers as cost accountants. Since the Hindu woman was facing opposition from her family, they approached the High Court seeking directions that the Gurgaon Marriage Officer should desist from sending notices of their intended marriage to their parents, and that no information on their intentions should be published in a newspaper. The couple had earlier faced problems in registering their marriage in Faridabad, too.

Advocate Tanu Bedi, who represented the couple, argued that the CMCL conditions were “highly offensive, insensitive, arbitrary, primitive and out of sync with rapidly changing social order”, and that the condition that the couple should not live at a single place amounted to moral policing despite the courts having recognised live-in relationships. She told the court that in earlier instances of interfaith marriages, tehsildars had been found to be passing judgment, in their reports, on the “character” of the couple after speaking with their neighbours.

The court’s order

Justice Raina directed the Gurgaon Marriage Officer to consider the temporary address of the couple instead of their permanent address for the purpose of jurisdiction, to not send any advance notice to the parents, and to dispense with the physical verification condition. “It is suggested to the State of Haryana to suitably modify and simplify the CMCL to bring it in line with the Act by minimal executive interference. It may restrict the list to conditions which account for fundamental procedure avoiding unwarranted overload of obstructions and superfluity,” the court said.

Elsewhere in India

In April 2009, Delhi High Court directed the Marriage Officer in Delhi to not send notices to the residences of a couple, because the procedure was without any authority of law and amounted to “breach of the right to privacy”. In February 2018, Rajasthan High Court, on the basis of this ruling, directed Marriage Officers in the state to not send notices to the residences of applicants.

Punjab has a procedure similar to Haryana’s. In addition to the provisions of the 1954 Act, officials in Punjab also seek the response of parents, police verification, and a newspaper notice. Police verification of interfaith couples is a precondition for registration of marriages in Chandigarh as well.

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