Notice of Intended Marriage under the Special Marriage Act

A marriage under the Special Marriage Act begins with a written notice to the Marriage Officer. The notice is recorded, made open to inspection and published, so that anyone with a lawful objection can raise it within thirty days. The procedure was designed to prevent marriages in breach of section 4, but in practice publication has exposed interfaith and inter-caste couples to pressure and violence, leading courts to curb it. This note covers sections 5 and 6, the residence requirement, publication, and the leading decisions on privacy.

1. Giving Notice: Section 5

Figure 1: From notice to the objection period

• Text, s.5. When a marriage is intended to be solemnized under the Act, the parties shall give notice in writing, in the Form in the Second Schedule, to the Marriage Officer of the district in which at least one of them has resided for not less than thirty days immediately before the notice.
• Both parties. The notice is given by both parties, and contains particulars such as name, condition, occupation, age, dwelling place and length of residence.
• Residence. Thirty days' residence by one party is enough. The rule ties the marriage to a district where the parties are known, so that objections can realistically be raised.
• Lapse. If the marriage is not solemnized within three calendar months of the notice, the notice lapses and fresh notice is needed (s.14, Topic 6)

2. Notice Book and Publication: Section 6

• s.6(1). The Marriage Officer keeps all notices with the records of his office and enters a true copy in the Marriage Notice Book, which is open for inspection at all reasonable times without fee by any person desiring to inspect it.
• s.6(2). He publishes every notice by affixing a copy at a conspicuous place in his office.
• s.6(3). If either party has not been permanently residing within his district, he sends a copy to the Marriage Officer of the district where that party permanently resides, who also publishes it.
• Purpose. Publication starts the thirty-day period within which any person may object under s.7 (Topic 5)

3. Privacy and the Courts

Figure 2: Judicial limits on publication

• Pranav Kumar Mishra v Government of NCT of Delhi (2009). The Delhi High Court held that the practice of sending notices to the residences of the parties had no authority in the Act and endangered couples. It directed Marriage Officers not to dispatch notices to the applicants' homes.
• Safiya Sultana v State of Uttar Pradesh (2021). The Allahabad High Court held that mandatory publication violated the rights to privacy and liberty. Parties may now request in writing whether or not to publish; without such a request, the Marriage Officer must not publish the notice or entertain objections, and should proceed with the marriage.
• Verification survives. Even without publication, the Marriage Officer may verify identity, age, consent and competence to marry, and may call for proof where there is doubt.
• Status. Safiya Sultana binds authorities in Uttar Pradesh. Elsewhere, the statutory procedure continues to apply unless the local High Court has held otherwise.

4. Frequently Asked Questions

What is the residence requirement for giving notice under the Special Marriage Act?

Under s.5, notice must be given to the Marriage Officer of the district in which at least one of the parties has resided for a period of not less than thirty days immediately preceding the date of the notice.

Is publication of the notice of intended marriage mandatory?

The Act provides for it in s.6. In Safiya Sultana v State of Uttar Pradesh (2021), however, the Allahabad High Court held that publication is optional: unless the parties request publication in writing, the Marriage Officer must not publish the notice or entertain objections.

5. Related Topics

• Topic 5: Objection to Marriage and Inquiry. What follows publication.
• Topic 26: Interfaith and Inter-caste Marriages: Constitutional Protection. Privacy and protection of couples.