Introduction
Shakespeare's famous line, "The course of true love did never run smooth," aptly describes the turbulence faced by couples seeking marriage in India without conforming to societal standards, values, and constraints. The institution of marriage is viewed differently across religions and castes in India. The dominant caste system has historically enforced strict boundaries, prohibiting marriages outside one's caste. Those who attempted to defy these norms faced numerous challenges and cultural rejection.
To address this, the legislature enacted the Special Marriage Act, which allows inter-caste and inter-religion marriages in India and allows marriages by registration without requiring either party to renounce their religion. In this blog different aspects of the Special marriage with respect to the inter-faith marriage and the shortcoming of the legislation.
Marriage under the Special Marriage Act
Section 4 of the Special Marriage Act (SMA), 1954 states, “A marriage between any two persons may be solemnized under this Act if, at the time of the marriage, neither party has a living spouse, both parties are of sound mind, the male has completed the age of twenty-one years, and the female the age of eighteen years, and the parties are not within the degrees of prohibited relationship.”
In the Indian subcontinent, marriage is viewed as a sacred institution and a fundamental aspect of cultural identity. Due to its diversity, India is home to people of many different cultures and faiths. Traditionally, arranged marriages are considered the most effective way to marry a boy and a girl. Indian parents are heavily involved in every aspect, from selecting the prospective bride or groom to deciding the marriage date and time.
In ancient times, the bride and groom were often unaware of each other until their marriages were arranged by their parents. However, today, the bride and groom jointly make decisions regarding their marriage. The influence of caste and religion is significant in India, especially when it comes to marriage. It is common for parents to choose a spouse for their child from the same caste, and inter-caste marriages remain taboo in many parts of the country. The caste system is strictly upheld, and those who marry outside their caste often face community hatred. Honor killings, particularly in Haryana, are tragically common and carried out with a misplaced sense of pride.
Recognizing the need to protect the rights of those who marry for love despite caste and religious barriers, the Parliament enacted the Special Marriage Act, 1954. This law established a special form of marriage for all Indian nationals, regardless of caste or religious affiliation, whether residing in India or abroad.
Conditions of Marriage
Like ordinary marriage within the same faith, specific conditions must be met for a marriage under the Special Marriage Act (SMA). The eligibility criteria are as follows:
- The bride must be at least 18 years old and the groom at least 21 at the time of the wedding. This is the minimum legal age for marriage.
- Both parties must be monogamous, meaning they must both be single and have no living spouses.
- Both parties must be of sound mind at the time of marriage to make their own decisions.
- The parties must not be related by blood, as marriages between close relatives are prohibited.
In Lata Singh v State of UP [1], the Supreme Court asked the state governments to establish a framework to protect individuals getting married under the Special Marriage Act. The petitioner sought to dismiss a complaint filed by her angry brother against her inter-caste marriage. The Supreme Court ruled that, as the petitioner was 24 years old and of legal age, she had the right to choose her spouse.
Shafin Jahan v Asokan K.M. [2], often referred to as the Hadiya Case, is another significant ruling. The Supreme Court acknowledged the right to choose a spouse as a fundamental freedom. The Kerala High Court had previously stated that an unmarried girl is the father's property and incapable of making good decisions in her early 20s. The Supreme Court later reversed this erroneous ruling, declaring that Hadiya was free to choose her own path and live her life as she saw fit. The Supreme Court emphasized that the freedom to marry the partner of one's choice is expressly guaranteed by Article 21 of the Indian Constitution.
Effect of Special Marriage Act
Succession of Property
Marriages registered under the Special Marriage Act (SMA) and their children are subject to the Indian Succession Act, which governs property succession. This is a crucial reason for every Indian to be aware of the SMA. However, if one or both parties to the marriage adhere to the Hindu, Buddhist, Sikh, or Jain faiths, the Hindu Succession Act governs their property succession.
In 2006, the Supreme Court ruled that all marriages must be registered. Marriages in India can be registered under either the Special Marriage Act of 1954 or the Hindu Marriage Act of 1955. The Hindu Marriage Act applies exclusively to Hindus, whereas the Special Marriage Act is applicable to all Indian citizens, regardless of religion, for marriages performed in court.
Registration of Marriages Under SMA in India
Marriages in India can be registered under the Special Marriage Act of 1954, the Hindu Marriage Act of 1955, or the Muslim Marriage Act. The Special Marriage Act of 1954 permits marriages between people of different religious backgrounds. Unlike personal laws, the Special Marriage Act applies to all Indian citizens, regardless of religious affiliation.
While ordinary marriage laws only allowed the registration of marriages already solemnized under personal laws, the Special Marriage Act permits both legal registration and solemnization of marriages. The SMA was designed to provide an easy way for couples of various religions to register their marriage, but it can also be used by individuals of the same denomination. The process for registering a marriage under the Special Marriage Act in India is detailed here.
Analysis of provision of Special Marriage Act
Under the terms of the Special Marriage Act (SMA), a marriage requires the consent of both parties. According to Section 5 of the Act, the parties must file a notice with the district magistrate where either party has resided for at least 30 days prior to the notification. After a waiting period of 30 days, the marriage can be formally solemnised with the approval of both parties. If the marriage is not solemnised within three months of the notice date, the notice will expire, and a new notice will need to be given.
Once the parties successfully consent to the marriage in front of the marriage officer with no objections (Section 7), and with the signatures of three witnesses (Section 11), and fulfil all Section 4 requirements, the marriage is officially recognised. These requirements include both parties being capable of giving valid consent, neither party having a living spouse legally married to the other party, and neither party being in a prohibited relationship with the other party. After legal registration and marriage, the partners receive a Certificate of Marriage in accordance with Section 13 of the Act. This document is also recorded in the Marriage Certificate Book.
In the 2013 case of Vahab v HadiyaFirdouse, it was decided that the party asserting the legitimacy of the registration or marriage must provide evidence of it. However, if the conditions of Section 4 of the Act have not been met, or due to impotence, the marriage shall be deemed void or null. The marriages will also be deemed null and void if one or both parties refuse to complete the union, if the respondent was pregnant at the time of the marriage, or if the consent was not given in accordance with Sections 24 and 25 of the Act.
The court ruled in the case of Sunil K. Mirchandani v Reena Mirchandani [3] that a marriage that is voidable cannot be legally annulled if there is evidence of satisfaction with their shared sexual relationship. The offspring of such a marriage, who will be considered legitimate, are granted rights to the parents' property under this Act. The marriage will have no impact on the parties' succession rights, which are established in accordance with Section 20. These rights, deriving from marriages under this Act, are governed by the Indian Succession Act, according to the decision in the 2010 case of Bilquis Zakiuddin Bandookwala v Shehnaz Shabbir Bandukwala.
Sodomy, venereal disease, adultery, cruelty, and other reasons stated in Section 27, as well as judicial separation (Section 27A) or mutual agreement (Section 28), are grounds for divorce in marriages covered by this Act. In this context, the G v G decision from 1930 is significant, as it determined that if a husband must live apart from his wife owing to employment and there is no other acceptable reason, he is not guilty of desertion. Additionally, the Court in Dawn Henderson v D Henderson, 1970, stressed an important distinction regarding adultery, pointing out that under this Act, a single act of adultery is sufficient grounds for divorce, as opposed to the Hindu Marriage Act, where there must be proof of "living in adultery."
The Act also addresses other issues in this context, including alimony, the parties' subsequent marriages, child custody, and other issues that naturally arise during the divorce process. The court ruled in S. Garg v K.M. Garg [4], 1978, that the woman may work and was not obligated to reside solely with her husband. The Act also includes penalties and punishment for bigamy, fraudulent declarations, and improper actions by marriage officials.
Controversial Provisions of the Special Marriage Act
Registration of Marriages: A Privacy Violation
According to Article 21 of the Indian Constitution, a nine-judge bench in the landmark case of K.S. Puttaswamy v Union of India [5] ruled that the Right to Privacy is a crucial aspect of the Right to Life. However, several provisions of the SMA, 1954, conflict with the right to privacy for couples planning to marry under this act.
To solemnise and register their marriage under the SMA, 1954, couples must make a written public notice to the district's marriage officer where they have resided for at least thirty days. This notice is recorded in the marriage officer's files and made available for public inspection and comment. This provision makes almost all relevant personal information about the individuals, including their names, contact information, employment, and residence, available to anyone who chooses to review the documents. This provision infringes on the fundamental right to life protected by Article 21 of the Indian Constitution in two significant ways.
First, the public display of the notice severely compromises the couple's privacy, leaving their personal data unprotected. As a result, the couple may be subjected to attacks from vigilantes, pressure from religious organisations, family pressure, radicals, etc., who may try to influence their decision to marry during the thirty-day period.
Second, the couple becomes vulnerable to anti-social forces who could attempt to destroy their life and liberty to prevent the marriage. Any traditionalist or extremist with access to the information could cause significant harm. Numerous such incidents, including honour killings, have occurred throughout history, as seen in the case of Lata Singh v State of U.P. [6], where the couple faced extreme persecution for marrying someone of their choice.
Similarly, in the case of Mayakaur Baldevsingh Sardar v The State of Maharashtra [7], an entire family was destroyed, and the couple's basic right to marriage and cohabitation was revoked because they belonged to different castes. Such harsh penalties for merely marrying outside social norms are a high price to pay in a democratic and liberty-loving country like India. These incidents demonstrate a failure on the part of the state and government to act in accordance with the needs of modern society.
Given the aforementioned SMA, 1954, provision, the Allahabad High Court rightly highlighted that compromising someone's private data is dangerous in the modern era. Couples may choose not to post a 30-day notice for marriage registration to avoid interference from both state and non-state actors, as the court has correctly established. This ruling has shed light on the importance of protecting the basic right to marry, established in the "Hadiya Case," without being obscured by other procedures or statutory limitations. However, the Supreme Court or the legislature has yet to issue any orders or precedents.
Right to Equality: Another Fundamental Right Hampered
As previously mentioned, the law grants everyone the right to peruse the notice book containing details about the couple planning to marry and to raise any concerns. Such a clause does not exist in any other laws governing marriage based on religious views. The requirement to marry outside one's faith or caste thus serves as the only distinction between getting married under this regulation and getting married under any other religious rule, which cannot be used to separate people.
Categorising couples based on their religion or caste and imposing a requirement for public notification is unreasonable, discriminatory, and in breach of the reasonable grounds for equality provided in the Indian Constitution. It only perpetuates colonial-era norms that have lost their relevance in modern society. Couples of the same religion who prefer to marry under this act rather than their religious laws must also follow other procedural criteria and guidelines.
Conclusion
The Special Marriage Act, created to protect couples fundamental right to marry and their freedom of choice, requires significant updates. Firstly, the law should respect the right to privacy by safeguarding the sensitive data couples disclose for marriage registration, avoiding arbitrary public display. Secondly, couples need protection from societal threats, with the Act incorporating punitive measures for rule violations to ensure its effective enforcement and integrity.
Upholding the Rule of Law is crucial, requiring a robust legal framework that protects fundamental rights tied to individual life and freedom in a democracy like India. Thus, the Act must be revised to meet the needs of contemporary couples and 21st-century India, eliminating outdated colonial provisions and ensuring relevance to modern society.
[1] AIR 2006 SC 2522.
[2] AIR 2018 SC 1933.
[3] AIR 2000 Bom 66.
[4] AIR 1978 Delhi 296.
[5] AIR 2017 SC 4161.
[6]AIR 2006 SC 2522.
[7] 2007 12 SCC 654.