Between Consent And Control: The Constitutional Paradox Of The SMA
- IJLLR Journal
- 42 minutes ago
- 2 min read
Nitish Sen, Birla School of Law, Birla Global University
Atulya Shree Tripathi, Birla School of Law, Birla Global University
ABSTRACT
Indian people can marry across caste, community, or religious boundaries without converting or renunciating their faith thanks to the Special Marriage Act, 1954 (SMA), which was created as a progressive, secular substitute for religious personal laws. Seven decades after it was hailed as a constitutional victory for individual autonomy, the Act now directly contradicts the fundamental rights it was designed to defend. Sections 5, 6, and 7, which are nearly exact replicas of the colonial Special Marriage Act of 1872, require couples to publicly reveal their names, ages, addresses, occupations, and intended marriage details. This exposes them to the wrath of their families, Khap panchayats, vigilante groups, and honor-based violence.
This essay makes several arguments that the notice-and-publication process is unconstitutional. First, according to the nine-judge panel in K.S. Puttaswamy (2017), it infringes against the right to privacy, which is now a component of Article 21. Every aspect of the proportionality test is violated by the mandatory distribution of sensitive personal data: there is no less invasive option when identity, age, and consent may be discreetly confirmed using passports, Aadhaar, or affidavits. Second, it creates a de facto "social veto" mechanism that permits any third party to object and postpone solemnization, undermining the fundamental right to marry the partner of one's choice, which has been consistently upheld in Lata Singh (2006), Shafin Jahan (2018), and Shakti Vahini (2018).Third, it violates Article 14 by subjecting only interfaith and intercaste couples to an onerous process, while Hindus, Muslims, Christians, Parsis, and others who marry under personal laws are exempt. This leads to hostile discrimination against a class that is already vulnerable.
The study shows how, in modern India, the notice provision—which was initially meant to prevent bigamy and coercion—has grown to be the biggest procedural trigger for honor crimes, forced separations, false criminal prosecutions, and social exclusion. The 30-day window is frequently used by hostile families and caste groups to track down, threaten, kidnap, or destroy couples, according to empirical reality.
As a result, the paper argues that Sections 5, 6, and 7 may be overturned for violating Articles 14, 15, 19, and 21 inasmuch as they require public notice and third-party complaints. Alternatively, in order to preserve the SMA as a truly freeing statute, immediate legislative reform is necessary. Dr. B.R. Ambedkar's ideal of individual dignity over social morality and constitutional morality are gravely betrayed by the persistence of these colonial remnants. SMA reform is now required by the constitution rather than being a matter of policy.
