The Special Marriage Act, 1954: A critique

Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical Union. When two souls thus unite, a new soul comes into existence. That is how, the life goes on and on and on this planet. - Justice S. Saghir Ahmad

Introduction

India is a country with divergent cultural gaiety and religious affinity of people living together exhibiting ‘unity in diversity’. Institution of marriage and value oriented family system are signifying features of Indian culture. The Supreme Court stated that every young man or a woman, has a right to marry cannot be accepted in the absolute terms. Having regard to the age and the biological needs, a person may have a right to marry. Arranged marriage, (that to,) or intra caste marriage is the generally accepted norm in the Indian society. ‘Love marriage,’ ‘inter caste’ or ‘inter religious,’ marriage or ‘registered’ / ‘Court marriage’ is generally is a rarity. Parents customarily select bride or groom to their children in the same caste or religion. The society eschews those who marry out of their caste or community. Honour killings have been reported every year in India. Interestingly, from the statistics of the United Nations, one in five cases of honour killing internationally every year are of India. On the other hand, there are some NGOs helping the performance of love marriages and extending protection for such love marriages.

There is indeed a call for a law to provide a legal shelter for the interests of such people. Usha M, Apte stated that inter-caste marriages were prevalent even in the period of Rig Veda. The Hindu Marriage Act, 1956 and the Special Marriages Act, 1954 (the S M Act 1954) made the marriage between persons belonging to different castes and religions as valid marriage. Thus, it may be stated that ‘inter-caste’ and ‘inter- religious’ marriages are legally permitted in India and can be performed under the S M Act 1954.

In this article the authors aim to provide a general perspective and a critique on the Special Marriages highlighting the problems with judicial perspective on various issues under the S M Act. An attempt is also made to bring about the need to settle some controversial issues.

The Special Marriage Act, 1954

The Special Marriage Act, 1954 [The S M Act,1954], is a special legislation to provide for a special form of marriage by registration. The marriage is special because one need not convert or renounce the religion. Unlike the traditional arranged marriages which include two families belonging to same caste or same community, the Act aims at inter alia providing for legalizing inter-religious or inter-caste marriages. The Certificate of registration under the Act has been considered as a general proof of marriage. The Act as stated in the preamble provides a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce.

The major objectives which may be culled out from the Preamble of the Act are:

(i) a special form of marriage in certain occasions,
(ii) for registration of certain marriages,
(iii) for divorce.

Some Special Marriages under the Secular Law

The S M Act is a secular law which enables any person living in India to get married under that Act, irrespective of the religion he follows. A study conducted in Bengaluru revealed that in building secular bonds, there's a massive spurt in marriages registered under the Special Marriages Act, 1954 in the past couple of years. It was found that there has been rise in inter-caste and inter-religion marriages as the Act provides for secular marriages, unlike the laws dictated by religion. As per the data obtained from the department of stamps and registrations 2,624 marriages were registered in 2013-14 under the Act and the number jumped to 10,655 in the subsequent year. In 2015-16, up to January, the number had touched 8,391 i.e. 306% increase from 2013-14 to 2014-15. It has been reported that nowadays, many marriages are inter-religious and inter-caste and mostly beyond the purview of religion-based marriage laws. The S M Act provides an opportunity to marry as per the Constitution. There are an increasing number of people belonging to different religions marrying under the S M Act. But all marriages registered under the S M Act are not necessarily inter-caste and inter-religious. Rohan Menezes and his wife Tania, both Christians by birth, opted to register their marriage under the S M Act.

There have been instances of adults belonging to two different religions marrying with the consent of their families, as per the rituals of either one religion or both. But if they want to register their marriage, it can only be done under the S M Act. While special marriages are gaining attraction, there are people those who prefer to stick to a particular religious marriage law, notwithstanding differences like region or caste. Amartya Pal, a Bengali Hindu who wanted to marry Mona Sarode from Pune, opted for a simple registered marriage under the Hindu Marriage Act 1955, instead of worrying about the different rituals of their home states and other complications.

Application of the Act

The S M Act applies to every state of India except Jammu and Kashmir. Besides Indians this Act also extends to the Indian nationals living in foreign countries. Under this Act the basic requirement for a valid marriage is consent of the parties and doesn’t require any kind of customs, rituals or ceremonies to be performed as marriage is considered as a civil contract under this Act. Any kind of caste, community or religious differences cannot terminate their union. Parties intending to marry irrespective of the faith they follow may be a Hindu, Sikh, Jew, Muslim, Christian, Buddhist, Jain or Parsi can perform their marriage under this Act. Thus, the S M Act 1954 applies to all persons of all religions. This legislation permits parties from all religions, caste or community to marry. In case if the parties go for divorce, it should be governed by the S M Act 1954. The Act in contrast to other personal marriage laws, allows marriage without converting to the partner’s religion. The Act provides for solemnization of special marriages, registration thereof, consequences of marriage under the Act, restitution of conjugal rights, judicial separation and nullity of marriage and divorce. It also provides for jurisdiction of Courts and procedure to be followed.

In Robin v. Jasbir Kaur the husband is a Christian whereas the wife is a Sikh and the marriage between them took place as per Hindu rites. The question was whether the marriage is valid for the purposes of granting maintenance under Section 125 Cr.P.C. It was held that a Hindu can marry a Christian under the S M Act. Accordingly, such a marriage cannot be held to be void on the ground that it was not performed according to the provisions of Section 6 the Indian Christian Marriage Act, 1872. The High Court ruled that it cannot be held that the marriage between the husband and the wife, who are Hindu and Christian respectively, is not valid for purposes of granting the relief u/s 125 Cr.P.C. The Court took a lenient view in order to enforce the welfare provision under Section 125 Cr.P.C.

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