# Smt. Safiya Sultana & Anr v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 564
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-12
- **Case number:** Habeas Corpus Writ Petition No. 16907 of 2020
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-safiya-sultana-anr-v-state-of-u-p-ors-46781
- **Pages:** 32

## Headnote

A. Constitution of India,1950 - Article
226
-
unlawful
custody
of
dentenu/daughter
by
father-
she
converted
into
Hindu
religion
and
married to her husband who Belongs to
Hindu religion-both appeared before
the
court-her
father
accepted
her
decision
as
she
is
adult-marriage
solemnized under Special Marriage Act,
1954-the said Act requires a 30 days
notice to be published and invite
objections from the public at largesuch notice would be an invasion in
privacy and violative of fundamental
rights-such notice shall be optional-if
the party intends it can make a request
to the Marriage Officer to publish or
not to publish a notice. (Para 1 to 49)

B. The law would be assessed not with
reference to its object but on the basis
of
its
effect
and
impact
on
the
fundamental rights. The mere fact that
the law provides for the deprivation of
life or personal liberty is not sufficient
to
conclude
its
validity
and
the
procedure.
The
quality
of
reasonableness does not attach only to
the content of the procedure which the
law
prescribes
with
reference
to
Article 21 but to the content of the law
itself. (Para 22 to 44)

The petition is disposed of. (E-5)

List of Cases Cited:

## Text

_Characters 0–39,876 of 112,129. This is a partial read: ask again with offset=39876 for what follows._

564 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)01ILR A564
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.01.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Habeas Corpus Writ Petition No. 16907 of 2020

Smt. Safiya Sultana & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Adarsh Kumar Maurya, Archana Singh

Counsel for the Respondents:
----

A. Constitution of India,1950 - Article
226
-
unlawful
custody
of
dentenu/daughter
by
father-
she
converted
into
Hindu
religion
and
married to her husband who Belongs to
Hindu religion-both appeared before
the
court-her
father
accepted
her
decision
as
she
is
adult-marriage
solemnized under Special Marriage Act,
1954-the said Act requires a 30 days
notice to be published and invite
objections from the public at largesuch notice would be an invasion in
privacy and violative of fundamental
rights-such notice shall be optional-if
the party intends it can make a request
to the Marriage Officer to publish or
not to publish a notice. (Para 1 to 49)

B. The law would be assessed not with
reference to its object but on the basis
of
its
effect
and
impact
on
the
fundamental rights. The mere fact that
the law provides for the deprivation of
life or personal liberty is not sufficient
to
conclude
its
validity
and
the
procedure.
The
quality
of
reasonableness does not attach only to
the content of the procedure which the
law
prescribes
with
reference
to
Article 21 but to the content of the law
itself. (Para 22 to 44)

The petition is disposed of. (E-5)

List of Cases Cited:

1. Shakti Vahini Vs U.O.I. & ors.(2018) 7
SCC 192

2. Satyawati Sharma Vs U.O.I. (2008) 5 SCC
287

3. Kashmir Singh Vs U.O.I.,(2008) 7 SCC
259

4. Lata Singh Vs St. of U.P. & anr.,(2006) 5
SCC 475

5. Arumugam Servai Vs St. of T.N.,(2011) 6
SCC 405

6.
Bhagwan
Dass
Vs
St.
(NCT
of
Delhi),(2011) 6 SCC 396

7. Vikas Yadav Vs St. of U.P. & anr.,(2016)
9 SCC 541

8. Asha Ranjan Vs St. of Bih.,(2017) 4 SCC
397

9.
Shafin
Jahan
Vs
Asokan
K.M.
&
ors.,(2018) 16 SCC 368

10. Justice K.S. Puttaswamy(Retd.) & anr.
Vs U.O.I. & ors.,(2017) 10 SCC 1

11. A.K. Gopalan Vs St. of Madras,(1950)
AIR SC 27

12. Kharak Singh Vs St. of U.P.,(1963) AIR
SC 1295

13. Maneka Gandhi Vs U.O.I.,(1978) 1 SCC
248

14. M.P. Sharma Vs Satish Chandra,(1954)
AIR SC 300

15.
Rustom
Cavasjee
Cooper
Vs
U.O.I.,(1970) 1 SCC 248
1 All. Smt. Safiya Sultana & Anr. Vs. State of U.P. & Ors.
565
16. Ram Jethmalani Vs U.O.I.,(2011) 8 SCC
310

17. Navtej Singh Johar & ors. Vs U.O.I.
(2018) 10 SCC 1

18. Ashok Gupta Vs St. of U.P.,(1997) 5
SCC 201

19. Githa Hariharan Vs RBI,(1999) 2 SCC
228

20. N. Kannadasan Vs Ajoy Khose,(2009) 7
SCC 1

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. The present Habeas Corpus Petition
is filed by Petitioner no.1-wife through
Petitioner no.2-husband, claiming that
detenue-Petitioner no.1, Smt. Safia Sultana,
who after converting to Hindu religion and
renamed as Smt. Simran, married Petitioner
no.2 as per Hindu rituals. However
respondent No.4, her father, is not
permitting her to live with her husband.
They both are adults, duly married with
their free will and desire to live together.
Thus the custody of the detenue by her
father is illegal. The Court directed for the
presence of the detenue and her father.
They both appeared in person, wherein, the
Petitioner no.1 accepted the averments
aforesaid and had shown her desire to live
with her husband. The Respondent no.4father of the detenue also fairly accepted
that since she is an adult, has married with
her choice and wanted to live with her
husband, he also accepts her decision and
wished both of them best for their future.

2. This matter could have come to an
end at this stage, but, for the views
expressed by the young couple while
interacting with the Court on their personal
appearance, the young couple expressed
that they could have solemnized their
marriage under the Special Marriage Act,
1954 but the said Act requires a 30 days
notice to be published and objections to be
invited from the public at large. They
expressed that any such notice would be an
invasion in their privacy and would have
definitely
caused
unnecessary
social
pressure/interference in their free choice
with regard to their marriage. The personal
laws do not impose any such condition of
publication of notice, inviting and deciding
objections
before
solemnizing
any
marriage. They further state that such a
challenge is being faced by a large number
of similarly situated persons who desire to
build a life with a partner of their own
choice. Learned counsel for petitioners also
stated that the situation may become more
critical with notification of Uttar Pradesh
Prohibition of Unlawful Conversion of
Religion Ordinance, 2020, as the same
prohibits
conversion
of
religion
by
marriage to be unlawful. Learned counsel
for petitioners further argues that looking
into the changing pattern of the society,
amendments made to the Special Marriage
Act, 1954 as well as the law declared by
the Supreme Court in the last around a
decade with regard to privacy, liberty and
freedom of choice of a person, provisions
of Special Marriage Act, 1954, directing
publication of a notice before marriage and
inviting public objections, require a revisit
to understand whether now with the said
change they are to be treated as mandatory
or directory in nature.

3. It is further submitted that such
young couples are not in a position to raise
these issues before solemnizing their
marriages as any litigation further attracts
unnecessary attention which invades into
their privacy and also causes unnecessary
social pressure upon them with regard to
their choice of a life partner.
566 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Since, the issues raised by the
petitioners and their counsels involves right
of life and liberty of a large number of
persons, therefore, this Court is duty bound
to consider their submissions. Suffice
would be to refer to the judgment of the
Supreme Court in Shakti Vahini vs. Union
of India and others1. The relevant
paragraph reads:

"44. The concept of liberty has to be
weighed and tested on the touchstone of
constitutional sensitivity, protection and the
values it stands for. It is the obligation of
the constitutional courts as the sentinel on
qui vive to zealously guard the right to
liberty of an individual as the dignified
existence
of
an
individual
has
an
inseparable
association
with
liberty.
Without sustenance of liberty, subject to
constitutionally valid provisions of law, the
life of a person is comparable to the living
dead having to endure cruelty and torture
without protest and tolerate imposition of
thoughts and ideas without a voice to
dissent or record a disagreement."

5. As the issue involves interpretation
of a Central Act, Sri Surya Bhan Pandey,
learned Assistant Solicitor General of India
was also requested to assist the Court.
Heard Sri Adarsh Kumar Maurya, Smt.
Archana Singh, learned counsels for
petitioners, Sri S.B. Pandey, learned
Assistant Solicitor General assisted by Sri
Amresh Rai and Sri Santosh Kumar
Mishra, learned AGA-I for the State.

6. For the purpose of the present case,
following sections of Special Marriage Act,
1954 are of relevance:

"4.
Conditions
relating
to
solemnization
of
special
marriages:
Notwithstanding anything contained in any
other law for the time being in force
relating to the solemnization of marriages,
a marriage between any two persons may
be solemnized under this Act, if at the time
of the marriage the following conditions
are fulfilled, namely:―

(a) neither party has a spouse living;

(b) neither party―

(i) is incapable of giving a valid
consent
to
it
in
consequence
of
unsoundness of mind; or

(ii) though capable of giving a valid
consent, has been suffering from mental
disorder of such a kind or to such an extent
as to be unfit for marriage and the
procreation of children; or

(iii) has been subject to recurrent
attacks of insanity

(c) the male has completed the age of
twenty-one years and the female the age of
eighteen years;

(d) the parties are not within the
degrees of prohibited relationship:

Provided
that
where
a
custom
governing at least one of the parties
permits of a marriage between them, such
marriage
may
be
solemnized,
notwithstanding that they are within the
degrees of prohibited relationship; and

(e) where the marriage is solemnized
in the State of Jammu and Kashmir, both
parties are citizens of India domiciled in
the territories to which this Act extends.

5. Notice of intended marriage: When
a marriage is intended to be solemnized
under this Act, the parties to the marriage
shall give notice thereof in writing in the
form specified in the Second Schedule to
the Marriage Officer of the district in
which at least one of the parties to the
marriage has resided for a period of not
less than thirty days immediately preceding
the date on which such notice is given.

6.Marriage
Notice
Book
and
publication: (1) The Marriage Officer shall
1 All. Smt. Safiya Sultana & Anr. Vs. State of U.P. & Ors.
567
keep all notices given under section 5 with
the records of his office and shall also
forthwith enter a true copy of every such
notice in a book prescribed for that
purpose, to be called the Marriage Notice
Book, and such book shall be open for
inspection at all reasonable times, without
fee, by any person desirous of inspecting
the same.

(2) The Marriage Officer shall
cause every such notice to be published
by affixing a copy thereof to some
conspicuous place in his office.

(3) Where either of the parties to an
intended marriage is not permanently
residing within the local limits of the
district of the Marriage Officer to whom
the notice has been given under section
5, the Marriage Officer shall also cause
a copy of such notice to be transmitted
to the Marriage Officer of the district
within whose limits such party is
permanently residing, and that Marriage
Officer shall thereupon cause a copy
thereof
to
be
affixed
to
some
conspicuous place in his office.

7. Objection to marriage: (1) Any
person may, before the expiration of
thirty days from the date on which any
such notice has been published under
sub-section (2) of section 6, object to the
marriage on the ground that it would
contravene one or more of the conditions
specified in section 4.

(2) After the expiration of thirty
days from the date on which notice of an
intended marriage has been published
under sub-section (2) of section 6, the
marriage may be solemnized, unless it
has been previously objected to under
sub-section (1).

(3) The nature of the objection shall
be recorded in writing by the Marriage
Officer in the Marriage Notice Book, be
read over and explained if necessary, to
the person making the objection and
shall be signed by him or on his behalf.

8.
Procedure
on
receipt
of
objection: (1) If an objection is made
under section 7 to an intended marriage,
the Marriage Officer shall not solemnize
the marriage until he has inquired into
the matter of the objection and is
satisfied that it ought not to prevent the
solemnization of the marriage or the
objection is withdrawn by the person
making it; but the Marriage Officer shall
not take more than thirty days from the
date of the objection for the purpose of
inquiring into the matter of the objection
and arriving at a decision.

(2) If the Marriage Officer upholds
the objection and refuses to solemnize
the marriage,
either party
to
the
intended marriage may, within a period
of thirty days from the date of such
refusal, prefer an appeal to the district
court within the local limits of whose
jurisdiction the Marriage Officer has his
office, and the decision of the district
court on such appeal shall be final, and
the Marriage Officer shall act in
conformity with the decision of the
court.

46. Penalty for wrongful action of
Marriage Officer: Any Marriage Officer
who knowingly and wilfully solemnizes a
marriage under this Act,―

(1) without publishing a notice
regarding such marriage as required by
Section 5, or

(2)
within
thirty
days
of
the
publication of
the notice of
such
marriage, or

(3) in contravention of any other
provision in this Act, shall be punishable
with simple imprisonment for a term
which may extend to one year, or with
fine which may extend to five hundred
rupees, or with both."
568 INDIAN LAW REPORTS ALLAHABAD SERIES

7. The society has an ever changing
phenomenon. It keeps changing with time
as per its new needs, expectation and other
changing aspects. The very purpose of law
is to serve the society as per its
requirements; therefore, the law also keeps
evolving with the changes in society. Thus,
it would be appropriate, before coming to
the Special Marriage Act, 1954 and its
present relevance, to briefly visit the
history and development of the law with
regard to civil marriages in India.

8. A Bill was introduced by Sir Henry
Maine for the first time proposing a law for
inter-cast and inter-religion marriages in
India. The proposed Bill permitted any two
citizens of India to marry under the same
instead of their respective personal laws.
The Bill was vehemently opposed in the
legislature and was vastly modified before
it was enacted and enforced on 22nd March
1872 as "Special Marriage Act, 1872 (Act
of 1872)". The law, as passed, provided
that any two persons after declaring
complete severance from their respective
faith can marry under the Act of 1872. The
Act of 1872 was amended in the year 1923
and thereafter it became permissible for the
individuals to marry under the same
without renouncing their religion.2 Section
2 of the Act of 1872 provided the
conditions to be fulfilled before any
marriage could be performed. Section 6 of
the said Act provided procedure for a
public notice to be made and thereafter
Sections 7 and 8 and further sections
provided the procedure for deciding the
objections, if any, filed against the
proposed marriage which could be filed by
any person.

9. With the independence of India and
coming into force of a secular Constitution
in January, 1950, the Parliament proceeded
to revisit the personal laws and laws with
regard to marriages and thus along with
other enactments, it also passed the Special
Marriage Act, 1954 (Act of 1954). Under
the Act of 1954 any two Indians living
wheresoever, and whether professing the
same or different religions (or no religion at
all),
could
solemnize
their
marriage
provided that they fulfilled the conditions
provided under Section 4 of the said Act.
Act of 1954 also provided that an existing
marriage, solemnized under whatever law,
could be registered under the new law, if
the same fulfilled the conditions provided
therein. After registration, the marriage
stood covered under the provisions of Act
of 1954 and not under the personal law
wherein it was initially solemnized. The
Act of 1954 also prescribed rights of
persons
concerned
with
regard
to
separation, divorce and inheritance etc.
including
judicial
procedures
for
enforcement of the same and thus came in
force a complete code with regard to civil
marriages in India. The Act of 1954 was
also amended from time to time as per the
changing needs of the society. The
procedure of publishing a notice and
inviting objections from public at large, as
was provided under Act of 1872 was, thus,
also adopted by the Act of 1954 with minor
variations.

10. The golden rule of interpretation
of statute is that so far as possible plain
reading of the provisions should be
accepted.
Further,
if
any
penal
consequences are provided the provision
would be mandatory in nature. In view of
aforesaid, more specifically in view of the
punitive consequences under Section 46,
the publication of notice under Section 6
and inviting objections and decision
thereupon under Section 7 was treated as
mandatory. Thus the Marriage Officers
1 All. Smt. Safiya Sultana & Anr. Vs. State of U.P. & Ors.
569
have always published a notice of intended
marriage and invited objections. Marriages
under the Act of 1954 were only
solemnized after a period of thirty days of
notice or after decision on the objections, in
case filed.

11. The question raised before this
Court is, whether the social conditions and
the law, as has progressed since passing of
Act of 1872 and thereafter Act of 1954 till
now, would in any manner impact the
interpretation of Sections 5, 6 and 7 of the
Act of 1954 and whether with change the
said sections no more remain mandatory in
nature. This argument is based on another
principle of interpretation, that, an ongoing
statute should be interpreted on the basis of
present day's changed conditions and not
on old obsolete conditions. The Supreme
Court considered the said principle in
Satyawati Sharma vs. Union of India3.
The Supreme Court, referring to its earlier
judgments, held:

"32. It is trite to say that legislation
which may be quite reasonable and
rationale at the time of its enactment may
with the lapse of time and/or due to change
of
circumstances
become
arbitrary,
unreasonable and violative of the doctrine
of equity and even if the validity of such
legislation may have been upheld at a given
point of time, the Court may, in subsequent
litigation, strike down the same if it is
found that the rationale of classification
has become non-existent. It is trite to say
that legislation which may be quite
reasonable and rationale at the time of its
enactment may with the lapse of time
and/or due to change of circumstances
become
arbitrary,
unreasonable
and
violative of the doctrine of equity and even
if the validity of such legislation may have
been upheld at a given point of time, the
Court may, in subsequent litigation, strike
down the same if it is found that the
rationale of classification has become nonexistent. In State of Madhya Pradesh vs.
Bhopal Sugar Industries [AIR 1964 SC
1179], this Court while dealing with a
question
whether
geographical
classification due to historical reasons
could be sustained for all times and
observed: (AIR p.1182, para 6)

"6. ..Differential treatment arising out
of the application of the laws so continued
in
different
regions
of
the
same
reorganised, State, did not therefore
immediately attract the clause of the
Constitution prohibiting discrimination.
But by the passage of time, considerations
of necessity and expediency would be
obliterated, and the grounds which justified
classification of geographical regions for
historical reason may cease to be valid. A
purely temporary provision which because
of compelling forces justified differential
treatment when the Reorganisation Act was
enacted cannot obviously be permitted to
assume permanency, so as to perpetuate
that treatment without a rational basis to
support it after the initial expediency and
necessity have disappeared."

33. In Narottam Kishore Dev Verma
vs. Union of India [AIR 1964 SC 1590] the
challenge was to the validity of Section 87B of the Code of Civil Procedure which
granted exemption to the rulers of former
Indian States from being sued except with
the consent of the Central Government. In
the course of judgment, it was observed as
under: (AIR p.1593, para 11)

"11. ..If under the Constitution all
citizens are equal, it may be desirable to
confine the operation of Section 87-B to
past transactions and nor to perpetuate the
anomaly of the distinction between the rest
of the citizens and Rulers of former Indian
States. With the passage of time, the
570 INDIAN LAW REPORTS ALLAHABAD SERIES
validity of historical considerations on
which Section 87-B is founded will wear
out and the continuance of the said section
in the Code of Civil Procedure may later be
open to serious challenge."

34. In H.H. Shri Swamiji Shri Admar
Mutt Etc, vs. The Commissioner, Hindu
Religious
&
Charitable
Endowments
Department [1979 (4) SCC 642] this Court
was called upon to consider the validity of
the continued application of the provisions
of the Madras Hindu Religious Endowment
Act, 1951 in the area which had formerly
been part of State of Madras and which
had latter become part of the new State of
Mysore (now Karnataka) as a result of the
State Re-organisation Act, 1956. While
declining to strike down the legislation on
the ground of violation of Article 14 of the
Constitution, the Court observed: (SCC
p.658, para 29)

"An
indefinite
extension
and
application of unequal laws for all time to
come will militate against their true
character as temporary measures taken in
order to serve a temporary purpose.
Thereby, the very foundation of their
constitutionality shall have been destroyed
the foundation being that Section 119 of the
State
Reorganisation
Act
serves
the
significant purpose of giving reasonable
time to the new units to consider the special
circumstances obtaining in respect of
diverse units. The decision to withdraw the
application of unequal laws to equals
cannot be delayed unreasonably because of
the relevance of historical reasons which
justify the application of unequal laws is
bound to wear out with the passage of time.
In Broom's Legal; Maxim (1939 Edition,
page 97) can be found a useful principle
"Cessante Ratione Legis Cessat Ipsa Lex",
that is to say, "Reason is the soul of the
law, and when the reason of any particular
law ceases, so does the law itself."

32. In Motor General Traders vs. State
of Andhra Pradesh (supra), validity of
Section 32(b) of the A.P. Buildings (Lease,
Rent and Eviction) Control, Act, 1960 was
considered. By that Section it was declared
that the provisions of the main Act will not
apply to the buildings constructed after
25th August, 1957. The Court noted that
exemption had continued for nearly a
quarter century and struck down the same
despite the fact that validity thereon had
been
upheld
by
the
High
Court
in Chintapalli Achaiah vs. P. Gopala
Krishna Reddy [ AIR 1966 AP 51]. Some of
the observations made in the judgment are
worth noticing. These are:

"16. What may be unobjectionable as
a transitional or temporary measure at an
initial
stage
can
still
become
discriminatory
and
hence
violative
of Article 14 of the Constitution if it is
persisted in over a long period without any
justification."

"24. ... What was justifiable during a
short period has turned out to be a case of
hostile discrimination by lapse of nearly a
quarter of century....We are constrained to
pronounce upon the validity of the
impugned provision at this late stage
because of grab of Constitution which it
may have possessed earlier has become
worn out and its unconstitutionality is now
brought to a successful challenge".

"24. ... As already observed, the
landlords of the buildings constructed
subsequent to August 26, 1957 are given
undue preference over the landlords of
buildings constructed prior to that date in
that the former are free from the shackles
of the Act while the latter are subjected to
the restrictions imposed by it. What should
have been just an incentive has become a
permanent bonanza in favour of those who
constructed buildings subsequent to August
26, 1957. There being no justification for
1 All. Smt. Safiya Sultana & Anr. Vs. State of U.P. & Ors.
571
the continuance of the benefit to a class of
persons
without
any
rational
basis
whatsoever, the evil effects flowing from
the impugned exemption have caused more
harm to the society than one could
anticipate. What was justifiable during a
short period has turned out to be a case of
hostile discrimination by lapse of nearly a
quarter of century. The second answer to
the above contention is that mere lapse of
time does not lend constitutionality to a
provision which is otherwise bad. "Time
does not run in favour of legislation. If it is
ultra vires, it cannot gain legal strength
from long failure on the part of lawyers to
perceive and set up its invalidity. Albeit,
lateness
in
an
attack
upon
the
constitutionality of a statute is but a reason
for exercising special caution in examining
the arguments by which the attack is
supported."

12. Following Satyawati Sharma3 in
case of Kashmir Singh vs. Union of
India4 the Supreme Court holds:

"55.
The
superior
courts
must
remember a well-known principle of law
that the Court while construing an ongoing
statute must take into consideration the
changes in the societal condition. It would
be a relevant fact. (see Satyawati Sharma3)

68. For the purpose of giving an
effective and meaningful construction of the
provisions, the court is bound to take into
consideration the situational change...

72. We, therefore, are of the opinion
that in view of the situational change, a
meaning which could be attributed in the
year 1925 cannot be given the same
meaning today. For the aforementioned
purpose, Sections 40 and 70 of the Act must
be
read
together.
Therefore
a
holistic reading of the entire Act would be
necessary."

13. Thus this Court is required to
consider the changes in the social and legal
aspects, if any, that may impact the
interpretation of the provisions of the Act
of 1954.

Reports of the Law Commission of
India:

14. Touching upon the Act of 1954,
the changes occurring in the society over a
period of time and need for consequential
changes to be brought in law is aptly
emphasised and followed by the Law
Commission of India (Law Commission) in
its following reports.

15. In its 59th report submitted in the
year 1974, the Law Commission, while
proposing amendments in the Act of 1954
as well as in the Hindu Marriage Act, 1955,
states:

"1.11: The object of law, whether
personal or public, must be to sustain the
stability of the society and help its
progress: -

The structure of any society, which
wants to be strong, homogeneous and
progressive, must, no doubt, be steady but
not static; stable but not stationary."

"1.16: It may sound platitudinous but
is nevertheless true that revision of laws is
a ''must' in a dynamic society like ours
which is engaged on the adventure of
creating a new social order founded on
faith in the value-system of socio-economic
justice enshrined in our Constitution. With
the changing times, notions of fairness and
justice
assume
newer
and
wider
dimensions, and customs and beliefs of the
people change. These, in turn, demand
changes in the structure of law; every
progressive society must make a rational
effort to meet these demands. Between the
572 INDIAN LAW REPORTS ALLAHABAD SERIES
letter of the law and the prevailing customs
and the dictates of the current value-system
accepted by the community, there should
not be an unduly long gap. Ranade often
said that the story of social reform, which
involves reform in personal law, is an
unending
story;
it
continues
from
generation to generation. Each generation
contributes to the continuance of the effort
of social reform; but the effort is never
concluded and the end is never reached in
the sense that no further attempt to reform
is required. It is in that sense that we
believe that the revision of personal laws,
and indeed, of all laws, has to be
undertaken by modern societies. These
thoughts have been present in our mind
when we embarked upon the present
inquiry"

"1.20: In any civilised and progressive
society, marriage is an institution of great
importance. It is the centre of a family which in
turn, is a significant unit of the social structure.
Children who are born of marriage, also
contribute to the stability of the institution of
marriage."

16. Concluding the said report, the Law
Commission
proposed
Marriage
Laws
(Amendment)
Bill
of
1974
suggesting
amendments in the Act of 1954 as well as in the
Hindu Marriage Act, 1955. The Act of 1954 was
duly amended in the year 1976.

17. The Law Commission again submitted
a report No.212, in the year 2008, titled "Laws of
Civil Marriages in India - A Proposal to Resolve
Certain Conflicts". After taking into consideration
the changes in the social norms as well as in law,
the
Law
Commission
made
seven
recommendations with regard to Act of 1954.
Relevant for our purposes are:

"1. The word "Special" be dropped
from the title of the Special Marriage Act
1954 and it be simply called "The Marriage
Act 1954" or "The Marriage and Divorce
Act 1954." The suggested change will
create a desirable feeling that this is the
general law of India on marriage and
divorce and that there is nothing "special"
about a marriage solemnized under its
provisions.
It
is
in
fact
marriages
solemnized under the community-specific
laws
which
should be
regarded
as
"special."

2. A provision be added to the
application clause in the Special Marriage
Act 1954 that all inter-religious marriages
except those within the Hindu, Buddhist,
Sikh and Jain communities, whether
solemnized or registered under this Act or
not shall be governed by this Act.

3. The definition of "degrees of
prohibited relationship" given in Section 2
(b) in the Special Marriage Act 1954 and
the First Schedule detailing such degrees
appended to the Act be omitted. Instead, it
should be provided in Section 4 of the Act
that prohibited degrees in marriage in any
case of an intended civil marriage shall be
regulated by the marriage law (or laws)
otherwise applicable to the parties.

4. The requirement of a gazette
notification for recognition of custom
relating to prohibited degrees in marriage
found in the Explanation to Section 4 of the
Special Marriage Act 1954 be deleted."

18. Again the Law Commission
submitted report No.242, in the year 2012,
titled "Prevention of Interference with the
Freedom of Matrimonial Alliances (in the
name of Honour and Tradition): A
Suggested Legal Framework." It states:

"4.1 The autonomy of every person in
matters concerning oneself - a free and
willing creator of one's own choices and
decisions, is now central to all thinking on
1 All. Smt. Safiya Sultana & Anr. Vs. State of U.P. & Ors.
573
community
order
and
organization.
Needless to emphasize that such autonomy
with
its
manifold
dimensions
is
a
constitutionally protected value and is
central to an open society and civilized
order. Duly secured individual autonomy,
exercised on informed understanding of the
values integral to one's well being is deeply
connected to a free social order. Coercion
against individual autonomy will then
become least necessary.

4.2 In moments and periods of social
transition, the tensions between individual
freedom and past social practices become focal
points of the community's ability to contemplate
and provide for least hurting or painful
solutions. The wisdom or wrongness of certain
community perspectives and practices, their
intrinsic impact on liberty, autonomy and selfworth, as well as the parents' concern over
impulsive and unreflective choices - all these
factors come to the fore-front of consideration."

19. It recommended to simplify the
procedure under the Special Marriage Act. It
says:

"9: it is desirable that the procedure under
the Special Marriage Act is simplified. The time
gap between the date of giving notice of
marriage and the registration should be
removed and the entire process of registration
of marriage should be expedited. The domicile
restriction should also be removed. We are
aware, that already an amendment is proposed
to the Special Marriage Act by the Government
of India by introducing a Bill in the Parliament.
It is, therefore not necessary to make a detailed
study and give specific recommendation on this
aspect."

20. It summarily recommended:

"11.1 In order to keep a check on the
high-handed and unwarranted interference
by the caste assemblies or panchayats with
sagotra,
inter-caste
or
inter-religious
marriages, which are otherwise lawful, this
legislation has been proposed so as to
prevent the acts endangering the liberty of
the couple married or intending to marry
and their family members. It is considered
necessary that there should be a threshold
bar against the congregation or assembly
for the purpose of disapproving such
marriage / intended marriage and the
conduct of the young couple. The members
gathering for such purpose, i.e., for
condemning the marriage with a view to
take necessary consequential action, are to
be treated as members of unlawful
assembly for which a mandatory minimum
punishment has been prescribed.

11.2 So also the acts of endangerment
of
liberty
including
social
boycott,
harassment, etc. of the couple or their
family members are treated as offences
punishable
with
mandatory
minimum
sentence. The acts of criminal intimidation
by members of unlawful assembly or others
acting at their instance or otherwise are
also made punishable with mandatory
minimum sentence.

11.3 A presumption that a person
participating in an unlawful assembly shall
be presumed to have also intended to
commit or abet the commission of offences
under the proposed Bill is provided for in
Section 6.

11.4 Power to prohibit the unlawful
assemblies and to take preventive measures
are conferred on the Sub-Divisional /
District Magistrate. Further, a SDM/DM is
enjoined
to
receive
a
request
or
information from any person seeking
protection from the assembly of persons or
members of any family who are likely to or
who have been objecting to the lawful
marriage.

11.5 The provisions of this proposed
Bill are without prejudice to the provisions
574 INDIAN LAW REPORTS ALLAHABAD SERIES
of Indian Penal Code. Care has been taken,
as far as possible, to see that there is no
overlapping with the provisions of the
general penal law. In other words, the
criminal acts other than those specifically
falling under the proposed Bill are
punishable under the general penal law.

11.6 The offence will be tried by a
Court of Session in the district and the
offences are cognizable, non-bailable and
non-compoundable.

11.7 Accordingly, the Prohibition of
Interference
with
the
Freedom
of
Matrimonial Alliances Bill 20___ has been
prepared in order to effectively check the
existing social malady."

21. It appears that the Bills proposed
by the Law Commission in its reports No.
212 (year 2008) and 242 (year 2012) are
still pending for consideration.

Development of Law:

22. Lata Singh Vs. State of U.P. and
another5 was one of the initial cases which
came up before the Supreme Court raising
the issue of the right of a person to marry
of his own choice. In the said case
petitioner solemnized her marriage, with
her own free will, with a person of another
caste. The said marriage was strongly
opposed by her brothers and they also
committed violence upon her and her
husband. Condemning the same, Supreme
Court held:

"17. The caste system is a curse on the
nation and the sooner it is destroyed the
better. In fact, it is dividing the nation at a
time when we have to be united to face the
challenges before the nation unitedly.
Hence, inter-caste marriages are in fact in
the national interest as they will result in
destroying the caste system. However,
disturbing news are coming from several
parts of the country that young men and
women who undergo inter-caste marriage,
are threatened with violence, or violence is
actually committed on them. In our
opinion, such acts of violence or threats or
harassment are wholly illegal and those
who commit them must be severely
punished. This is a free and democratic
country, and once a person becomes a
major he or she can marry whosoever
he/she likes. If the parents of the boy or
girl do not approve of such inter-caste or
inter-religious marriage the maximum
they can do is that they can cut off social
relations with the son or the daughter, but
they cannot give threats or commit or
instigate acts of violence and cannot
harass the person who undergoes such
inter-caste or inter- religious marriage.
We,
therefore,
direct
that
the
administration/police
authorities
throughout the country will see to it that if
any boy or girl who is a major undergoes
inter-caste or inter-religious marriage with
a woman or man who is a major, the
couple are not harassed by anyone nor
subjected to threats or acts of violence, and
anyone who gives such threats or harasses
or commits acts of violence either himself
or at his instigation, is taken to task by
instituting criminal proceedings by the
police against such persons and further
stern action is taken against such persons
as provided by law." (emphasis supplied)

23. Again the issue was considered in
the cases of Arumugam Servai vs. State of
Tamil Nadu6and Bhagwan Dass vs. State
(NCT of Delhi)7. In both the cases,
brutality was caused by "khappanchayat" or
family
members
against
the
persons
solemnizing marriage with their own
choice. The Supreme Court referring to the
case of Lata Singh5strongly condemned
1 All. Smt. Safiya Sultana & Anr. Vs. State of U.P. & Ors.
575
and criticized such atrocious acts and
directed the State authorities to take
immediate steps in all such cases.

24. In Indian Woman Says GangRaped on Orders of Village Court
Published in Business and Financial
News Dated 23-1-2014 in Re8 the Supreme
Court found the right of freedom of choice
in marriage to be a fundamental right and
an inherent aspect of Article 21 of the
Constitution of India. The court declared:

"16. Ultimately, the question which
ought to consider and assess by this Court
is whether the State police machinery could
have
possibly
prevented
the
said
occurrence. The response is certainly a
"yes". The State is duty bound to protect
the Fundamental Rights of its citizens;
and an inherent aspect of Article 21 of the
Constitution would be the freedom of
choice in marriage. Such offences are
resultant of the State's incapacity or
inability to protect the fundamental rights
of its citizens." (emphasis supplied)

25. Another case of honour killing
came up before Supreme Court in Vikas
Yadav vs. State of U.P. and another9.
Again Court held:

"75. One may feel "My honour is my
life" but that does not mean sustaining
one's honour at the cost of another.
Freedom, independence, constitutional
identity, individual choice and thought of
a woman, be a wife or sister or daughter
or mother, cannot be allowed to be
curtailed definitely not by application of
physical force or threat or mental cruelty
in the name of his self-assumed honour.
That apart, neither the family members nor
the members of the collective has any right
to assault the boy chosen by the girl. Her
individual choice is her self-respect and
creating dent in it is destroying her
honour. And to impose so called brotherly
or fatherly honour or class honour by
eliminating her choice is a crime of
extreme brutality, more so, when it is done
under a guise. It is a vice, condemnable
and deplorable perception of "honour",
comparable
to
medieval
obsessive
assertions." (emphasis supplied)

26. In Asha Ranjan vs. State of
Bihar10, the Supreme Court again declared
the right of a person in choosing a partner
to
be
legitimate
constitutional
right
recognized under Article 19 of the
Constitution of India. The judgment reads:

"61. ...choice of woman in choosing
her partner in life is a legitimate
constitutional right. It is founded on
individual choice that is recognized in the
Constitution under Article 19, and such a
right is not expected to succumb to the
concept of "class honour" or "group
thinking". It is because the sense of class
honour has no legitimacy even if it is
practised by the collective under some kind
of a notion." (emphasis supplied)

27. Supreme Court considered the
matter of the honour killing and right to
marry at length in the case of Shakti
Vahini1. The relevant paragraphs of the
said judgment read as under: