A misreading of the civil marriages law

Jun 12, 2024 09:14 PM IST

The May 27 judgment smacks of a grotesquely confused understanding of the Special Marriage Act (SMA), 1954. Originally enacted eight decades earlier to facilitate inter-religious and inter-caste marriages, this Act required both parties to an intended marriage to declare their disaffiliation from religion. As the Constitution assertively protected citizens’ rights to equality and religious liberty, it was imperative for the State to re-enact this law sans the requirement of abdication of religion. Hence, a new law was put on the statute book, enabling men and women professing different religions but wishing to get married to do this without having to give up their respective faiths, and without becoming followers of the same religion by conversion. Of course, the new Act offers the option of civil marriage also to parties belonging to the same community if they wish to avail its multifarious benefits.

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In the current case, the parties decided to get married under the SMA without either changing their religion. As per the procedure laid down in the Act, they jointly gave notice of the intended marriage to a marriage officer of the competent jurisdiction who duly published the notice to wait for objections, if any. Section 7 of the Act clearly specifies that objections can be filed only if the objector believes that it will be against any of the mandatory conditions for the validity of marriage under the Act laid down in Section 4 — that the parties should not have a spouse living, should not be mentally incapable of giving valid consent, should have completed the prescribed minimum age, and should not be within the “degrees of prohibited relationship” as specified in a Schedule.

The woman’s relatives, knowing they would not be able to stop the marriage by raising any legally tenable objection, began dissuading the parties from pursuing their case before the marriage officer. They threatened filing several criminal cases — against the woman for having stolen their precious jewellery and cash, and against the man for forcibly kidnapping her. Frightened, the prospective bride and groom jointly approached the HC, seeking relief and police protection for duly proceeding with their case before the marriage officer. The woman’s father vehemently opposed the petition claiming that, since the man belonged to a different religion, if the desired marriage took place “he and his family would be boycotted by the society”. The learned judge did mention this ridiculous plea in his judgment, but kept mum about its prima facie inadmissibility under the law.

In the case of an interfaith marriage desired under the SMA, provisions of their respective personal laws on the validity or invalidity of such a marriage would obviously be absolutely irrelevant. It does not require any special legal acumen to understand this clear legal position, yet the judge chose to decide the case on the basis of the rules of Muslim law (personal law of the man, the second petitioner). Although such a marriage is also prohibited under Hindu law (personal law of the woman, the first petitioner), he chose not to speak about it. Taking pains to emphasise the invalidity of the desired marriage under Muslim law, and giving a bizarre twist to the condition under the SMA that the parties to an intended marriage should not be within the degrees of prohibited relationship, he ruled that since the desired marriage was prohibited under Muslim law, it could not be solemnised under the Act either.

Based on wholly misconceived premises, the decision was conspicuously erroneous. It resulted in grave injustice to two innocent citizens who had sought the court’s help for peacefully exercising their constitutionally protected right to live together as husband and wife. The Supreme Court (SC)’s Mohammad Salim decision of 2019, which the judge extensively cited, related to inheritance rights of the child of a Hindu-Muslim marriage and had hardly any relevance to the matter before him. The petitioners had specifically invoked the SC’s dictum in the Lata Singh case (2004) — “this is a free and democratic country and once a person becomes a major he or she can marry whosoever he or she likes” — but the learned judge chose not to say a word about it. Nor could he recollect the apex court’s emphatic verdict that it is the parties to an intended marriage “who decide best on whether they should accept each other into a marital tie” and that the “society has no role to play in determining our choice of partners” (Shafin Jahan, 2018).

The judge thought it fit to point out that the parties had not shown interest in a live-in partnership without marriage, nor had indicated that the girl “would accept Muslim religion”. Did he mean to say that had the parties done so he could have granted the desired relief? The wisdom of making these concluding remarks before finally dismissing the petition was indeed bewildering.

Tahir Mahmood is former chairman, National Minorities Commission, and member, Law Commission of India.He is professor of eminence and chairman, Institute of Advanced Legal Studies, AmityUniversity. The views expressed are personal