Relevance: GS-1: Salient features of Indian Society, Diversity of India, Social empowerment, communalism, regionalism & secularism.

Key phrases: mixed marriage, Article 21, Special Marriage Act, Liability, Severance from family, Uniform Civil Code

Why in News?

• Special Marriage Act (SMA), 1954 which governs inter-faith marriages in the country is being challenged for endangering the lives of young couples who seek refuge under it.
• Its more than a year and the government is yet to submit its response of the writ petition which was moved before the Supreme Court, seeking striking down of several of its provisions.
• Delhi High Court in August 2021 slapped the SDM with a contempt notice for disregarding a 2009 order of the court requiring marriage officers to not dispatch notices to the families of the couple seeking to marry under the SMA.

Inter-faith Marriage:

• Interfaith marriage, sometimes called a “mixed marriage”, is marriage between spouses professing different religions.
• For individuals who choose interfaith marriage, love is their sole motivation and relationship is generally viewed in terms of individual compatibility.
• The right to marry is a part of the right to life under Article 21 of the Indian Constitution, it is a universal right and it is available to everyone irrespective of their gender.
• A forced marriage is illegal and is invalidated in different personal laws on marriage in India, with the right to marry recognized under various religious laws.
• The Special Marriage Act, 1954 (SMA) was enacted to facilitate the marriage of couples professing different faiths, and preferring a civil wedding.
• The proportion of inter-religious marriages is highest at 2.8 % among the women of the young age group (15-19) than other age groups which decrease with increasing age at marriage with 2.3 % for those in the age group 20-24, 2 % for 25-29 and 1.9 % for those above 30.

Special Marriage Act of 1954:

The law allows the solemnization of marriages without any religious customs or rituals. The law solemnizes marriages by the way of registration. Allahabad High Court observed the Special Marriage Act as ‘one of the earliest endeavors towards Uniform Civil Code.

• Application: The Act is applicable to all Indian citizens and Indian nationals who live in abroad.
• Age: The marriage of any two persons may be solemnized under the SMA, subject to the man having completed 21 years of age and the woman 18.
• Consent: Neither should have a spouse living; both should be capable of giving valid consent, should not suffer from any mental disorder of a kind that renders them unfit for marriage and procreation.
• Liability: They should not be within the degrees of prohibited relationship — that is, they should not be related in such a way that their religion does not permit such marriages.
• Registration: Parties to an intended marriage should give notice to the ‘marriage officer’ of the district in which one of them had resided for at least 30 days.
• Objections: Any person can object to the marriage within 30 days of the publication of the notice on the ground that it contravenes one of the conditions for a valid marriage.
• Publication: The notice will have to be entered in a ‘Marriage Notice Book’ and a copy of it displayed at a conspicuous place in the office. The Notice Book is open for inspection at all reasonable times without a fee.
• Inquiry and approval: The marriage officer has to inquire into the objection and give a decision within 30 days. If he refuses permission for the marriage, an appeal can be made to the district court. The court’s decision will be final.
• Severance from family: Also, the Act says that when a member of a Hindu undivided family, gets married under SMA, it results in his or her “severance” from the family.

Issues related to the SMA law:

• Practical Difficulties: The provisions relating to notice, publication and objection have rendered it difficult for many people intending to solemnize inter-faith marriages.
• Vulnerable to coercive tactics of the family members: The objection provision may be used by the family members objecting to the union to seek to stop the marriage by coercion.
• Danger posed by fringe groups: There have been reports of right-wing groups opposing to inter-faith marriages. And misusing these data for communal propaganda.
• Intrusion of Privacy: The public notice provision places a question mark on the safety and privacy of those intending to marry across religions.
• Pushes for religious Conversion: Due to complexities involved in SMA, the intending couple finds it easier to settle for marriage under the personal law of one of them, with the other opting for religious conversion. While conversion to Christianity and Islam has formal means there is no prescribed ceremony for conversion to Hinduism.
• Violation of right to Equality: In the question of Hindu and Muslim marriage laws, there is no requirement of prior notice and therefore such a requirement in SMA is considered as violation of right to equality of those opting for marriage under SMA.
• Conflict with Anti-Conversion Laws passed by a few States.

Judicial pronouncement regarding interfaith marriages and forcible conversions:

• The Rev Stanislaus vs Madhya Pradesh case: Supreme Court said Article 25 does provide freedom of religion in matters related to practice, profess and propagate, but the word propagate does not give the right to convert and upheld the laws prohibiting Conversion through force, fraud, or allurement.
  • Based on the above case it is clear that forcible conversion or conversion through fraud and allurement is against the Right to Freedom of Religion.
• Sarla Mudgal case: The court had held that the religious conversion into Islam by a person from non-Islamic faith is not valid if the conversion is done for the purpose of polygamy.
• Lily Thomas case: In this case Court observed that marrying another woman after converting to Islam is punishable under the bigamy laws.
• Hadiya Case: Supreme Court said that the right to marry a person of one’s choice is integral to Article 21 (right to life and liberty) of the Constitution
• Allahabad High Court, in the case, Noor Jahan Begum @ Anjali Mishra and another vs. State of U.P. and Others observed that one shouldn’t change one’s faith just for the sake of matrimony. As two persons professing different religions can marry under the Special Marriage Act.
• But in the most recent judgment, Allahabad High Court itself overturned its previous judgment, calling the decision “bad in law”. The division bench of the Allahabad high court said on November 11, that judgment does not take into account the right to life and personal liberty of mature adults.

Conclusion

• Marriage is an extremely personal affair. The right to marry a person of one’s choice or to choose one’s partner is an aspect of constitutional liberty as well as privacy.
• The issue of conversion can be resolved by actually agreeing to not convert.
• Marriage done solely for the purpose of conversion and conversion by misrepresentation, force, fraud, undue influence, inducement, allurement should be discouraged.
• In short, we should be focusing on dismantling the barriers of religion, caste and other divisions rather than bring up more barriers in these endeavors as is the attempt now.

Sources: The Hindu , Indian Express

Mains Question:

Q. Recently we have seen furor over interfaith marriages. In this context discuss the features of Special Marriage Act and also mention the issues in the Act which need to be worked upon. Support your answer with the recent judicial pronouncements?