Government response awaited on law on inter-faith marriages

Provisions that threaten right to privacy and marry must be be struck down, urges plea

January 16, 2022 09:13 pm | Updated January 17, 2022 10:32 am IST - NEW DELHI

Activists wave placards as protest against the tabling of the Protection of Right to Freedom of Religion Bill, in Bengaluru. File

Activists wave placards as protest against the tabling of the Protection of Right to Freedom of Religion Bill, in Bengaluru. File

The law that governs inter-faith marriages in the country, the Special Marriage Act (SMA), 1954, is being challenged for endangering the lives of young couples who seek refuge under it. More than a year after a writ petition was moved before the Supreme Court, seeking striking down of several of its provisions, the government is yet to submit its response.

“The Court has admitted our petition and it was heard once on September 16, 2020. A notice was issued to the Centre and we are awaiting its counter-affidavit,” says advocate Kaleeswaram Raj.

Twenty-seven-year old Aafreen Ansari* was under tremendous pressure from her family to get married. But she was already in love with a Hindu boy and the idea of an inter-faith marriage was vehemently opposed by her parents. So, without any further delay, she and Mohan Sharma*, decided to have a court marriage under the SMA around August 2020.

“We needed to marry urgently. Our circumstances didn’t allow us to wait any longer. My parents were already suspicious and I was worried that they would restrict my movement,” says Ms. Aafreen.

She and Mr. Sharma went online and submitted their application. When they reached the Sub-Divisional Magistrate’s (SDM) office for the verification of their documents, the staff dissuaded them in multiple ways.

“They were rude, and they deleted our application on flimsy grounds, which delayed the whole process for us. They threatened to stop our marriage over a spelling error. And then they told us we were required to wait for 30 days and issue a notice inviting objections to our marriage from the public and that this notice would be stuck on the court premises,” recounts Ms. Aafreen.

Section 5 of the SMA requires a person marrying under this law to give a notice of intended marriage, and Section 6(2) says it should be affixed at a conspicuous place at the office of the marriage officer. Section 7(1)allows any person to object to the marriage within 30 days of the publication of the notice, failing which a marriage can be solemnised under Section 7(2).

Such was the terror of being discovered, that the couple approached the Delhi High Court a few days later, challenging Sections 6 and 7 of the Act. The couple is now married, but the court is yet to give its decision.

It was a near-identical experience for Rida Khan (26)*.

“When I decided to marry under the SMA, I expected a supportive and sensitive environment that would enable us to marry peacefully. But what we encountered was vastly different and dragged us into a situation we wanted to escape. The staff at the SDM’s office were determined to create roadblocks, find faults in our affidavit, and reject it to harass us. The SDM asked why we had come to him and threatened to send a notice to our families, informing them of our impending marriage,” says Ms. Rida.

The law doesn’t require such a notice to be sent to the families, but there are often instances where marriage officers and State governments go over and beyond the law to scuttle these marriages.

A fortnight later, on March 13, 2020, Ms. Rida’s family received the notice and all hell broke loose. Ms. Rida was confined to her room, her phone snatched away, and outsiders barred from meeting her. A habeas corpus by her boyfriend in the Delhi High Court reunited the couple six days later, when the court asked them to resume their marriage formalities.

Following another petition from her, the 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 despatch notices to the families of the couple seeking to marry under the SMA. The Delhi government, too, in December issued a warning to all SDMs in the State.

Some State governments can also be overzealous in implementing the law.

Haryana, for instance, created a checklist for marriages under the SMA, with 16 criteria that require a couple to publish a notice inviting objections in a newspaper and that such notices be sent to their parents. But even without such over-reach, several provisions in the law put the lives of these couples in grave danger.

“Some States require couples to also seek a no-objection certificate from their parents. The Maharashtra (Department of Registration and Stamps) publicly shares the details of these couples on its website, from where communal elements can access them and start threatening the couples. The SMA for inter-religious couples is often their last resort, and they want to get married as soon as possible as parents and hatemongers can prevent these unions. When couples can’t even have a civil marriage, they are left with no option but to flee,” explains Asif Iqbal, Founding Member of NGO Dhanak, which helps inter-faith, inter-caste, same sex and trans couples.

All eyes are now on the Supreme Court, where a petition in the Nandini Praveen vs. Union of India in September 2021 has sought that these and a few other provisions be struck down as they violate the right to privacy, and the right to marry. Until the apex court decides, couples will be forced to knock on the door of courts to seek protection from a law that was framed with the intent to safeguard their interests.

(* names changed to protect the identity of the subjects )

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