Description
Context: The Special Marriage Act (SMA), 1954, is seen as a progressive law enacted to help inter-faith couples.
Real issue:
- States such as Uttar Pradesh and Madhya Pradesh framing laws that target inter-faith marriage, the procedural requirements of the SMA — such as the need to give prior notice, and allowance for ‘objections’ — seem to be undermining its original intent by opening the doors to violent moral policing by vigilante groups.
Why was this legislation needed in the first place?
- The original Special Marriage Act was enacted in 1872.
- It was moved by an eminent jurist and Legislative Council member named Henry Maine.
- It was enacted following a campaign launched in 1860 by Brahmo Samaj, especially Keshab Chandra Sen, for simpler marriage ceremonies.
- But it had one problem: it required that two people of different faiths who wish to get married must renounce their respective religions.
- By 19th century standards, the mere fact that this law paved the way for inter-faith marriages was a good first step.
- But its requirement of renouncing one’s religion was not compatible with modern ideas of liberalism, individualism and autonomy of the individual.
- So the 1954 law replaced this 1872 Act, and the requirement to renounce one’s religion was removed.
- Basically, this law was the first step towards a Uniform Civil Code.
- The thinking was that if you wanted a liberal, modern, secular and progressive law, let us start the experiment on a voluntary basis.
- So, those going for an inter-faith marriage, as well as others, could register under the SMA.
- The effect of the SMA is that once your marriage is registered under it, your religion’s personal laws won’t apply.
Assess the SMA’s impact:
- It has not been sufficiently used.
- It is often used when people are going abroad.
- For two Hindus married under the Hindu Marriage Act, the certificate used to be called a ‘Memorandum of Marriage’, which was not recognised by certain countries while issuing a visa.
- So, people would then register their marriage under the SMA. Also, earlier, under the Indian Divorce Act, applicable to Christians, mutual consent was not available.
- Only registering one’s marriage under the SMA gave them the right to divorce by mutual consent, so they would be advised to register their marriage under the SMA.
- The SMA was also used for inter-religious marriages, but not so often as the process and procedure are seen as tedious.
- The SMA did not achieve the kind of success it was intended to achieve.
- The fact that very few marriages get registered under the SMA demonstrates that society is not yet ready to involve public institutions in what are purely private relationships.
- When the SMA was enacted, the notice requirement was meant to ensure that the man did not already have a spouse and does not marry a minor.
- But now it has become an invitation to moral policing by right-wing groups.
- The Supreme Court has finally admitted a petition where the constitutionality of this provision will be examined. If the right to privacy judgment is taken into consideration, there is no way this notice requirement can be sustained as constitutional.
- Equality is the real issue. For instance, what are the matrimonial rights that women have within a marriage? It’s just a right to maintenance, and given the manner in which courts pass these orders, it is usually ₹500 or ₹1,500.
- And we have still not progressed towards what we would like as matrimonial property.
- The state should focus on what rights women can get within a marriage, and aim for a more equal, progressive law and not engage itself so much with the manner in which marriages are performed.
- How I wish to legalise my marriage should be of no concern to the state.
Can the SMA do a better job of protecting inter-faith couples?
- A marriage is a civil contract.
- Civil law is not meant to protect people against violence or against societal reaction.
What does the SMA provide for?
- It says that if one follow the procedure and register marriage, the consequences of the marriage will be determined by the SMA.
- The situation has changed, and people seem to be watching and observing who’s marrying whom, but the law did not anticipate this.
- The need for protection is not merely in the case of inter-faith marriage, it’s there in the case of inter-caste marriages as well.
- If a so-called higher caste person is marrying someone from a marginalised caste, then, there have been writ petitions filed over the years, asking the court for protection because the family will react, and there could be so-called honour killings.
- But offering this kind of protection is not the role of civil law, as it then becomes criminal law, and the state must provide protection.
- On the contrary, with the SMA, the state seems to be saying we’re going to increase surveillance on inter-faith marriages.
- The word “propagate” in Article 25 of the Constitution was inserted to assure Christian minorities. For them, it is an article of the faith to take the gospel to the other people.
- A regressive Supreme Court judgment in Stanislaus (1977) in which the Court held that you cannot convert because ‘propagation’ of a religion does not extend to conversion.
- Under the influence of the ‘sacramental’ nature of Hindu marriage, our courts have been over-emphasising this element of “saving” a marriage — this should not be the sole objective.
- Sustaining a marriage should not be the concern of the public authorities, the courts, or of the law.
https://www.thehindu.com/opinion/op-ed/has-the-special-marriage-act-failed-to-protect-inter-faith-couples/article33465955.ece?homepage=true
