Special Marriage Act has Not Achieved the Kind Of Success It Was Intended to Achieve for Many Reasons
By G.
Sampath
January 01,
2021
The Special
Marriage Act (SMA), 1954, is seen as a progressive law enacted to help
interfaith couples. But with States such as Uttar Pradesh and Madhya Pradesh
framing laws that target interfaith 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. Can the SMA come to the rescue of
interfaith couples, who, in addition to the old challenge of parental
opposition, today also have to contend with the bogey of ‘love jihad’? Faizan
Mustafa and Veena Gowda explore this question in a conversation moderated
by G. Sampath. Edited excerpts:
Faizan Mustafa and Veena Gowda
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Why was this legislation needed in the first place?
Faizan
Mustafa: The
original Spe cial 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 renounc ing one’s religion was not compati ble 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
re moved. 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
interfaith marriage, as well as others, could register under the SMA. The
effect of the SMA is that once your mar riage is registered under it, your
religion’s personal laws won’t apply.
How
would you assess the SMA’s impact so far?
Veena
Gowda: 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, mu tual
consent was not available. Only registering one’s marriage under the SMA gave
them the right to di vorce by mutual consent, so they would be advised to
register their marriage under the SMA. The SMA was also used for
interreligious marriages, but not so often. I think the process and procedure
are seen as tedious.
FM: The SMA did not achieve the kind
of success it was intended to achieve. But that is a comment on how unprepared
we are, as a socie ty, when it comes to uniform laws. 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.
At the same
time, if someone wants to use the SMA for the pur pose of interfaith
marriage, the state has no business asking them to put up a notice informing
the whole world whom they want to marry. 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.
VG: I would say, rather than uniformity,
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 it self 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 interfaith couples?
VG: A marriage is a civil contract.
Civil law is not meant to protect pe ople against violence or against so
cietal reaction. What does the SMA provide for? It says that if you follow the
procedure and register your marriage, the consequences of the marriage will be
determined by the SMA. It is not there to protect you. But the situation has
changed, and people seem to be watching and ob serving who’s marrying whom,
but the law did not anticipate this.
Also, this
need for protection is not merely in the case of interfaith marriage, it’s
there in the case of inter-caste marriages as well. If a so called higher
caste person is marry ing 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 socalled 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 pro vide protection. On the contrary,
with the SMA, the state seems to be saying we’re going to increase surveillance
on interfaith marriages.
How so?
VG: What does the SMA actually en
visage? If I’m getting married to somebody, I’ll go fill a form, I give a
notice. If these essentials are complied with, then they have to register it. But
over a period of time, certain States have decided that if it’s an
interreligious marriage, then the parents will be informed. Today, what do the
‘love jihad’ ordinances do? If it’s an interreligious marriage, and I want to
convert, then I have to fill a declaration form, go before a magistrate, and
the magistrate will conduct an inquiry. In the form, you have to fill in all
the de tails about your age, address, etc., which makes interfaith couples
extremely insecure. So, the spirit of what the SMA was meant to be is not only
being diluted, these ‘love jihad’ laws are completely contrary to it.
But isn’t
it the other way round— that it’s only because the SMA is unable to do its job
in cases of interfaith marriage that one party ends up converting so that they
can marry under a personal law?
VG: As they say, in India, you don’t
just marry your partner, you marry the family itself. But when it comes to
rights, then you’re married only to the partner! So it’s not only about the
procedure of the SMA. Society itself is so patriarchal that whether a marriage
is inter-caste or interreligious, it is always the woman who’s adjusting to the
family that she is go ing into – it’s the woman who leaves her natal home to
go into the matrimonial home. So, in that sense you are always accommodating
the family that you are marrying into. So the SMA is not the only problem.
FM: People look down upon SMA
marriages as ‘Sarkari’ marriages. That’s also why many do not register their
marriages and just go for a private Hindu ceremony or a nikah. The acceptance
of the involvement of a state institution in marriage is still very low in our
society. People think marriage is a personal matter. Today, however, the state
is trying to dictate terms in this purely personal matter. Which religion one
believes in, and whether one changes religion — it’s none of the state’s business
to know or monitor. One may convert to another religion because of marriage, or
even for no reason. There is no authority under our law available to the state
to examine the cause or rationality of somebody’s conversion. Yet, strangely,
more than half a dozen States in India have these anti-conversion laws, and they
all have titled these ‘freedom of religion laws’ even though they curtail
religious freedom. Mo reover, hardly any convictions been reported under these
laws.
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. But we then got a regressive Su preme Court judgment in Rev. Stanislaus
(1977) in which the Court held that you cannot convert be cause ‘propagation’
of a religion does not extend to conversion. In fact, India’s foremost
constitutional expert H.M. Seervai said that this judgment is “productive of
great pu blic mischief” and must be over ruled. This judgment should be re
viewed as it is now contrary to the privacy judgment.
VG: Whoever chooses to register their
marriage under the SMA may continue to do so. The anti-conversion laws occupy a
different space: they talk about conversion, which the SMA does not concern
itself with. So, there is no conPict.
Is it
possible to amend these ant conversion laws so that they cease to be
patriarchal and ant women?
VG: We know the history of conversions
in our country. They were, in a way, also to get away from very oppressive
situations. So, these laws ought to go.
FM: This whole bogey of ‘love jihad’
is now almost 90 years old. It was in the 1920s that people in U.P. started
writing that there is a concerted conspiracy by the Muslims to out number
Hindus by marrying Hindu women and then producing a great number of children.
This is the work of right-wing organisations. Though there have been some
progressive judgments of the divisional benches of the Allahabad High Court,
pro tecting the rights of adult indivi duals to marry whoever they want, the
U.P. government promulgated an ordinance that undermines constitutional rights,
particularly of Hindu women. The primary pur pose of these ordinances is to
disci pline Hindu women and control their bodies and sexuality. It undermines
their agency.
Also, it
is problematic to have this notion of “sanctity of marriage” incorporated into
law. It’s there even in the SMA. There is a provision un der Section 29 of the
SMA, which says that you cannot file a petition for divorce within one year of
your marriage except when there is ex treme hardship. If marriage is a civil
contract, and if parties think that they cannot live together because they are
not compatible, why have this restriction?
Under the
influence of the ‘sacra mental’ nature of Hindu marriage, our courts have been
overemphasising this element of “saving” a marriage — this should not be the
sole objective. Their goal should be to ensure that two individuals hap pily
live together, and if they cannot happily live together, let them gracefully
walk out of a painful marriage. Sustaining a marriage should not be the concern
of the public authorities, the courts, or of the law.
VG: We have to think about where our
legal system is moving. On the one hand, we were thinking of the possibility of
same sex marriages, of making marriages contractual, and if we can have
matrimonial proper ty. On the other, we are getting laws that control which
religion you fol low when you intend to marry, and decide for you who you can
fall in love with and who you can’t. This is not two steps back but hundreds of
steps back.
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Faizan
Mustafa is Vice-chancellor of NALSAR University of Law, Hyderabad
Veena
Gowda is a women’s rights lawyer who has been practising in the High Court of
Bombay, Family Court and other trial courts for more than two decades
Original
Headline: Has the Special Marriage Act failed to protect inter-faith couples?
Source: The Hindu
URL: https://newageislam.com/interview/special-marriage-act-achieved-kind/d/123956
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