The Delhi High Court can now test the constitutional validity of provisions of the Special Marriage Act (SMA), 1954, which requires mandatory issuance of public notice for inviting objections to the intended marriage.
The development comes in the backdrop of a Supreme Court order on December 19. The top court had dismissed a 2024 petition by the Ministry of Law and Justice, which had sought transfer of a petition that challenged the constitutional validity of sections 6 and 7 of the SMA from the Delhi HC to the top court.
Section 6 mandates public notice for inviting objections to the intended marriage. Section 7 deals with consideration of objections raised, which may also lead to authorities then not solemnising the marriage.
Following the SC’s dismissal, the Delhi HC, which has had a petition pending since 2020 challenging the SMA provisions, will hear the issue afresh.
The petition was by an interfaith couple whose marriage was opposed by their parents.
The couple, represented by advocate Utkarsh Singh, in their petition, had highlighted that the 30-day period (mandated under the Act) offers an opportunity to their families “to discourage an intercaste or an inter-religious marriage” and that the “procedural tediousness forces couples to adopt alternate measures of marrying in a religious place of worship or converting to another religion to marry”.
It was also submitted that such issuance of prior notice inviting objections, “which is wholly a private affair, is a sheer breach of privacy of the [persons applying for marriage,” jeopardising their life and liberty.
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The HC issued notice to the Delhi government in October 2020.
By August 2022, the Delhi government had not filed its response to the petition. In the same month, a bench of then Justice Vibhu Bakhru (now Karnataka High Court Chief Justice) and Justice Amit Mahajan had ruled that the “court does not consider it apposite to await any response” from the Delhi government.
It had then heard arguments at length, as also recorded in a court order.
In December 2023, the Delhi HC was informed that the Law Ministry had decided to move a petition in the SC for transfer of the case from the High Court. The SC was examining a similar issue — constitutional validity of SMA Section 6 — in a petition by law student Nandini Praveen. The SC had issued notice in this case in September 2020; it continues to remain pending before the apex court.
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A month later, in January 2024, the Ministry filed the petition in SC seeking transfer of the Delhi HC case. It cited that it may lead to multiplicity of proceedings if similar petitions are filed at different high courts.
“… the likelihood of similar petitions being filed before the other High Courts cannot be ruled out. Thus, it is the apprehension of the Petitioner Department that in the event of contrary views taken in the aforesaid matter, the same may lead to confusion and multiplicity of proceedings,” the transfer petition had stated.
The Centre also said any confusion on the issue “would adversely affect the effective functioning of Marriage Officers designated under the SMA”. It submitted that if the pending Delhi HC petition is not transferred to the SC, the Ministry “would be put through wastage of resources, which is public money and manpower, in addressing the same/similar legal issue before different Courts.”
On November 19 this year, nearly two years after the Ministry filed the transfer petition before the SC, a division bench of Justices Vikram Nath and N V Anjaria dismissed the Centre’s request, considering the “facts of the case and grounds on which transfer has been sought”.
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On April 1 last year, with Solicitor General Tushar Mehta appearing on behalf of the Ministry, a division bench of the SC of Justices Vikram Nath and Sandeep Mehta had issued notice on the transfer petition.
5 times SC allowed/refused to club or transfer petitions from different HCs
The Supreme Court under Article 139A is empowered to transfer cases “involving the same or substantially the same questions of law”, which are pending before it and are pending before one or more High Courts, after the SC is satisfied that such questions are substantial questions of general importance.
-In 2022, the SC had turned down a request by the Centre, along with that by others, seeking transfer of petitions pending before different High Courts challenging the constitutional validity of the Payment of Bonus (Amendment) Act, 2015.
With the amendments, the Act had raised the salary limit for coverage under the Act; it had also raised the wage ceiling for calculating bonus payments.
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Reasoning that the pending petitions at the various HCs may involve “substantially the same questions of law”, the SC had noted that it would be appropriate for it “to have the benefit of views of jurisdictional High Courts” before the top court takes up the issue.
-In September this year, the SC had transferred to itself pleas challenging anti-conversion laws of various states before various high courts. This request for transfer, sought by the petitioners — given that a petition challenging the anti-conversion law was already pending before the SC — was initially opposed by the Attorney General on the ground that the laws are state legislations and state High Courts must hear the matters first.
-In September 2025, the SC transferred all petitions pending before various high courts — Delhi, Karnataka, and Madhya Pradesh — challenging the constitutional validity of the Promotion and Regulation of Online Gaming Act, 2025, which imposes a blanket ban on online money games, regardless of whether it involves skill or chance.
-In March 2020, the SC had transferred to itself all writ petitions before the Delhi HC challenging the Central Vista redevelopment project. The transfer had come a week after a division bench of the Delhi HC had allowed the DDA to notify the proposed land-use changes in the city for the project. In an ex-parte order, the HC had stayed a single judge’s order that had directed DDA to make changes in the Delhi Master Plan 2020-2021 only after approaching the court.
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Aggrieved by the division bench order, one of the petitioners, Rajeev Suri, challenged it in the SC. Following this, the SC clubbed it with other pending petitions on the same issue before the Delhi HC. While a request for transfer was not made formally by either party, they did not oppose it either.
-In November and December 2022, three same-sex couples moved the SC seeking legal recognition of same sex marriage under various marriage laws (Special Marriage Act and Hindu Marriage Act).
At the time, with multiple petitions pending before other high courts (Delhi and Kerala), senior advocate Menaka Guruswamy had sought a transfer of these pleas from the HCs so they could be heard by the SC directly. The SC had allowed the request. In January 2023, it had transferred the pending pleas from the high courts to itself.
