Special Marriage Act

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Topic: General Studies 1:

• Social empowerment
• Salient features of Indian Society, Diversity of India.

In News: The Allahabad high Court, while issuing an order in a habeas corpus writ petition recently, said it is disturbing that one should change one's faith just for the sake of matrimony when two persons professing different religions can marry under Special Marriage Act which is ‘one of the earliest endeavours towards Uniform Civil Code. 

The order has come days after another HC judge had observed in another case that religious conversion just for the sake of marriage was not acceptable.  

• The court made the comments after finding that a Muslim woman had converted to Hinduism, and a month later married as per Hindu rituals. 
• It had found such an expedient conversion unacceptable, citing a similar 2014 verdict in which the court had questioned the bonafides of conversions without change of heart or any conviction in the tenets of the new religion. 
• Although the court strayed from the issue at hand, its objective was to underscore that conversion should not become a device. It is indeed salutary as a principle that inter-faith couples retain their religious beliefs separately and opt for marriage under the Special Marriage Act.

Meanwhile, four states MP, UP, Haryana and Karnataka are considering bringing a legislation to deal with cases of “love jihad”.

Special marriage Act in India

In a marriage under the Special Marriage Act, 1954 allows people from two different religious backgrounds to come together in the bond of marriage. The Special Marriage Act, 1954 lays down the procedure for both solemnization and registration of marriage, where either of the husband or wife or both are not Hindus, Buddhists, Jains, or Sikhs.

All marriages in India can be registered under the respective personal law Hindu Marriage Act, 1955, Muslim Marriage Act, 1954, or under the Special Marriage Act, 1954. It is the duty of the judiciary to ensure that the rights of both the husband and wife are protected.

What is the issue?

However, registration of such a marriage under the law requires the marriage officer to first issue a 30-day public notice — with details like name, occupation, age and address — about the intended marriage for invitation of objections from public.

• The objections are limited to technical aspects like soundness of mind, age and existence of any spouse of the parties intending to register the marriage but the notice at times becomes a reason for life threats for couples fleeing their homes and wanting to marry as per their own choice.
• Section 6 violates the fundamental right to privacy. Such an apprehension is not unwarranted even though the problem lies not in the spirit but the misuse of the clause.
• Earlier this year in Kerala, notices of inter-faith marriages under the Special Marriage Act were reported to have been circulated on social media by right-wing groups as instances of ‘love jihad’ and led to communal tensions in some places. There is thus the possibility of bureaucratic corruption leading to such sensitive data falling in unscrupulous hands. The consequences, the tradition of honour killings shows, can be lethal for the couple.

In brief, this calls for urgent attention on two pertinent issues: 

• The constitutionality of making personal information available online
• The scourge of stoking communal hatred using the reprehensible tag, ‘love jihad.’

PIL against 30-day notice period under Special Marriage Act

There is no such provision under personal laws with regard to same-faith marriages.

• The “objections can be mitigated on the basis of certificates issued by government hospitals” and that the procedure is discriminatory in nature, intended to discourage interfaith marriages like theirs.
• The petition contends it is “of paramount importance in the current scenario that couples opting for cross-community marriages are adequately protected”.
• The petition has also urged the court to declare as “illegal, null, void and unconstitutional” the provisions of the Act which lay down the procedure of 30 day notice for inviting objections.

The Way Forward

Public Notice: Instead of issuing a public notice, can the marriage registrar be authorized to examine the veracity of the application and alert the authorities only when mala fide intent is suspected? Here toso, there must be serious deliberations on the method of assessment of such applications so that a routine examination does not get transformed into an act of surveillance.

Love Jihaad: It is important to note that no term called ‘love jihad’ is defined in current Indian laws. During the Parliamentary session in the Lok Sabha in February 2020, Minister of State for Home Affairs G Kishan Reddy pointed this out and had even acknowledged that no case of ‘love jihad’ has been reported by any of the central agencies. Article 25 of the Constitution provides the freedom to profess, practice and propagate religion subject to public order, morality and health. Various courts have upheld this view, including the Kerala High Court.

The ruling of the Punjab and Haryana High Court, which said that the State and its institutions must not be seen as “laying snares and landmines” in the path of consenting adults from different faiths, must be taken as a model to emulate. The tension, however, lies elsewhere. Marriage still requires a societal seal of approval of what is essentially a deeply personal bond. Such approval is predicated upon the possibility of interference.

Note:

Habeas corpus: A writ of habeas corpus (which literally means to "produce the body") is a court order demanding that a public official (such as a warden) deliver an imprisoned individual to the court and show a valid reason for that person's detention.

Connecting the Dots:

1. The loud politics of ‘love jihad’
2. Uniform Civil Code
3. What is the philosophy behind ‘Love Jihad’? Discuss.