Special Marriage Act’s Notice Regime and Judicial Denial of Protection

**Alok Singh

When law becomes a tool of surveillance, it ceases to be a shield of liberty.

In the last blog, I explored the need for a specialised law to tackle honour killings. There are two critical legal factors that indirectly contribute to the perpetuation of honour killings and allow society to interfere in (selective) couples’ personal space. First, being the mandate of publication under Section 6 of the Special Marriage Act,1954; second, being the judicial denial of the couple’s protection. 

Notice Provision under the Special Marriage Act 

The first factor that contributes to honour killing and social ostracism is the notice provision of the Special Marriage Act (SMA). This law was passed in 1954 to provide for a special form of marriage and to regulate the registration and divorce. The SMA was a secular and progressive legislation that allowed for the solemnisation of marriage irrespective of caste or religion. However, its publication mandate, particularly the requirement that a notice of intended marriage be displayed in a “conspicuous place” at the registrar’s office, has turned the law into a tool of surveillance and danger, thereby defeating the law’s intended purpose. 

Under Sections 5–6 of the SMA, intending spouses must file a “Notice of Intended Marriage” and publish it for 30 days. In practice, the registrar affixes a copy in a “conspicuous place” in the office (and even in the couple’s home district, if they recently moved). The conspicuous place is not defined under the law; however, as per the general understanding, it means the place where something can be seen so it can be observed and easily seen by interested and disinterested parties. This 30-day public notice, inherited from colonial-era laws, was originally justified as a safeguard against fraud or underage elopement. These provisions are also acting as a time period to prevent “runaway” couples from secretly marrying without family consent and, if they choose, “obstruct the intending couple from marrying”. In other words, the law viewed interfaith and inter-caste unions through a lens of public morality, requiring notice to alert parents and society at large. This mechanism “ensured that the notice was sent to the hometown of the parties, where it was easier for the families to find out and obstruct the intending couple from marrying”. This implies that the legislature prioritised family/society involvement, and the couple’s own autonomy and privacy were secondary, even if, legally, families have no veto.

By contrast, no personal law in India imposes such a notice requirement. Although the Indian Christian Marriage Act, 1872, provides for similar provisions, it does not allow anyone to inspect the record of notices. A Hindu or Muslim couple can wed under their own laws without filing any public notice. 

The imposition of public notice on interfaith unions, while faith-based marriages face no such rule, is unjustified and a clear violation of the equality doctrine under Article 14 of the Indian Constitution, as this doesn’t pass the test of intelligible differentia and rational nexus prongs. The classification distinguishes between personal law marriages (under which no notice is required) and SMA marriages (which require 30-day public notice), but this basis fails because the SMA applies to all couples, regardless of faith, making the classification both overinclusive and underinclusive. Additionally, the rational nexus requirement remains unmet as the government justifies notice as a means of preventing fraud and bigamy; however, the Hindu Marriage Act prevents identical harms without requiring any public notice, implying that the notice has no rational connection to fraud prevention.  Further, under the indirect discrimination doctrine, the neutral law (SMA) violates Article 14 as this has a disparate impact on vulnerable groups – the same very group the SMA was designed to protect. This is a clear discriminatory provision considering the fundamental right of a person to choose a partner of their choice, irrespective of caste or religion.  

For example, a Hindu marriage can be registered instantly under Section 8 of the Hindu Marriage Act, whereas for inter-religious marriages, the law has created this hurdle of notice and publication. The question is  “Why is the thirty-day notice period only for the SMA? If it is to prevent fraud, it should be applicable to other marriage acts,” calling the special requirement “discriminatory”.

Beyond the legislature’s intent, the mechanics of the notice regime work like this: after one spouse files the notice (with a 30-day residence in the district), the Marriage Officer records it in a notice book and posts copies in public view. During the 30 days, anyone can inspect the notice and file a written objection on statutorily recognised grounds (bigamy, insanity, underage, prohibited kinship). If an objection is raised, the officer must hold an inquiry; otherwise, the marriage may be solemnised once the period elapses. The intent is to check identity and consent and “to verify identification, age, legalities and valid consent” before marriage. But the same safeguards (age certificates, affidavits, family consent) apply to all couples, so why single out those under the SMA?

Couples’ Safety and Privacy

The mandatory posting of names, ages, occupations, addresses and often photos and signatures on public boards (or even on government websites, as some states did earlier) has repeatedly endangered couples. Media reports and think tanks document instances of cases of harassment following SMA notices, especially terming the consenting marriages as “love jihad”. 

The interfaith couple whose SMA notice with their names, photo and address circulated on social media, the allegations of “love jihad” surfaced and urged protests. Such public shaming and incitement forced police to offer protection to the couple. As local officials noted, since the notice is a public document, “not much can be done” to prevent its wider spread, indirectly denying accountability. Another incident occurred where, despite already having high court-ordered police protection, their notice and details still leaked online. In Kerala, activists exposed systemic misuse of SMA notices. The state had been uploading notices (with photos and addresses) to its registry website. The anti-social elements use interfaith couple SMA notices to harass them by reposting them with communal slurs like “love jihad” on Facebook and WhatsApp to bully them. In effect, the notice regime has invited moral policing where the community or extremist groups monitor registry boards for “suspect” unions and then mobilise anger. The notice requirement enforces intrusive public scrutiny. It is argued that mandating public notice “exerts unnecessary social pressure” and “interferes with [the couple’s] right to choose whether or not to marry.” 

Critics argue that SMA notices violate fundamental rights. Privacy and liberty are core to deciding one’s life partner: the Supreme Court has explicitly held that choosing a spouse is protected under Article 21 of the Constitution. Forcing a couple to broadcast their intentions and personal details publicly clashes with that right. In Pranav Kumar Mishra v. Delhi (2009), Justice S. Ravindra Bhat noted that “the unwarranted disclosure of matrimonial plans by two adults entitled to solemnise it…may, in certain situations, jeopardise the marriage itself”. The SC also observe that the publishing provision under the SMA is violative of the privacy of individuals intending to marry. 

The Allahabad High Court also found that publishing a marriage notice “would invade the fundamental rights of liberty and privacy, including… freedom to choose for marriage without interference”. In fact, the Allahabad court explicitly held SMA’s Sections 6–7 as directory, not mandatory. The Law Commission’s reports, No. 242 of 2012, as well as those of 1974 and 2008, also recommended scrapping the notice period entirely, stating that the gap between notice and marriage registration “should be removed” to simplify the process. 

When the SC has already declared the khap panchayat illegal, as it summons couples, adjudicates their relationships, pronounces punishments, and trespasses upon criminal law and fundamental rights. Allowing society (including uninterested parties) to investigate or intervene after reading marriage notices leads to the formation of pseudo-khaps that determine the sanctity of marriages.

Legal Protection for Couples 

The State has a duty to protect the fundamental rights of an individual (even against hostile audiences). Although this is a general rule, in the case of couples’ safety and for the protection of their right to marry of their choice, it is the duty of the state to protect them from a hostile society; especially, the police must protect inter-caste couples and provide safe houses. The SC in Devu G Nair vs State of Kerala issued guidelines urging courts to avoid moralising issues related to interfaith, intercaste, and LGBTQ+ couples, while highlighting the need to provide immediate interim protection for such couples. Although the SC has made clear that police protection must be provided for endangered couples, the High Courts show uncertainty in providing protection. In some instances, the HCs allow for the protection of the life and limb of the couple, whereas they often reject nearly similar threats. 

Some examples of liberal High Courts being where the Rajasthan HC provided judicial protection to the couple on account of a threat, the Madras HC also granted protection recognising the adults’ autonomy, and the Punjab & Haryana HC’s decision to provide protection was upheld by the SC. 

On the other hand, there are instances where the HCs deny the protection. For example, the Allahabad HC denied 8 appeals in a week for providing protection to interfaith couples. Interestingly, the order lacks a proper reason or legal support for the denial. In cases like (2024:AHC:4900, 2024:AHC:5683, the court denied the protection as the solemnisation was not in accordance with the law (Unlawful Conversion of Religious Act, 2021). Another ground taken was that there was no proof of marriage on record, or they lacked a valid marriage certificate. 

The problem with all these judgments is that the HCs did not follow a uniform standard; further, they moralised the issue explicitly and denied it on moral/ethical grounds. The argument that a marriage is not valid under the Unlawful Conversion of Religion Act is not compelling enough to dismiss it entirely. This is especially true given that the Delhi High Court has permitted couples to marry even in the absence of a formal marriage establishment, recognising the autonomy of consenting adults, and granted protection even in the absence of strict marriage formalities. This judicial inconsistency exposes couples to arbitrary outcomes and highlights the urgent need for clear, rights-based guidelines to ensure courts do not substitute personal moral beliefs for the constitutional mandate to protect individual liberty and safety.

Current Debates and Reforms

The compulsory notice has spurred legal challenges and policy changes. Beyond court cases, activists and some states are pushing reforms. Kerala’s 2020 move to keep notices off the web was a direct response to privacy concerns. Public interest litigations (PILs) have challenged Sections 5–7 of the SMA on grounds of privacy and equality. However, the writ petition by Athira R. Menon has been denied, and another by Nandini Praveen (W.P. (C) No. 000983/2020) is still pending before the Supreme Court. Even in the Supriyo case, the petitioners sought a declaration that Sections 5–10 and 46 of the Special Marriage Act, 1954, were unconstitutional for violating Articles 14, 15, 19, and 21 of the Constitution. However, the court did not address this issue and remained silent on the matter.

The Centre’s contention that the notice and 30-day period are important to verify the credibility of objections or parties is not justified, as the same can be checked without exposing all personal data publicly. Until any law is changed, the notice regime remains technically in force. Even in practice, its impact is being diluted gradually as the couples and courts now treat publication as optional or directory (Allahabad HC). However, it is crucial that there be reform in the current law; otherwise, the ambiguity and uncertainty will remain. 

Simultaneously, dialogue on marriage laws is broadening. Interfaith couples under the SMA face significant challenges, followed by state-level “anti-conversion” or “love jihad” laws that have heightened risks for couples. For example, the Uttar Pradesh Anti-Conversion Law requires public display of notice for conversion before marriage, complicating the marriage process for these couples.

Some suggestions for reforms are: 

1. Amend the Special Marriage Act to make public notice directory and publication should occur only on request by the parties; 
2. Prohibit public posting (also web-posting) of personal details and photographs, and the registers must use unique file IDs and internal records accessible only to the registrar and authorised officials; 
3. The provision that ‘anyone’ can check the register should be removed and restricted to interested parties only, who must prove their direct relation to either of the couple or establish their interest in the marriage between the couple.
4. Data minimisation, i.e., only names and age declarations should be recorded publicly (if any), other important information like addresses and photographs should be stored confidentially and released only on judicial order; 
5. Guidelines must be issued for registrars regarding mandatory anonymisation practices and secure storage.  
6. Guidelines should be issued for the judicial officers as well, specifying a ‘uniform’ procedure to be followed for interim protection. If there is a credible threat, then immediate police protection must be provided, and expedited review of protection petitions should be ensured. 
7. A governmental study should be conducted to map notice-related harms and guide legislative change. 

Conclusion 

The SMA’s notice regime, which was intended to provide an administrative safeguard, now functions as an instrument of societal surveillance that jeopardises couples’ autonomy, dignity, privacy and life. Legislation should be interpreted narrowly or reformed so that it does not become a weapon for mob enforcement/imposition of social norms. Immediate actions, such as data minimisation, prohibiting web posting, offering an opt-out for publication, and enforcing uniform interim protection standards, must be taken to align the Act with constitutional rights.

**Alok Singh is a second year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow. His area of interest lies in IPR, Constitutional law and TMT. 

Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.