Parley | Has the Special Marriage Act failed to protect inter-faith couples?

It has not achieved the kind of success it was intended to achieve for many reasons

Updated - January 01, 2021 11:04 am IST

Published - January 01, 2021 12:15 am IST

(FILES) In this file photo taken on December 1, 2020, a civil right activist holds a placard during a demonstration condemning the decision of various Bharatiya Janata Party (BJP) led state governments in the country for the proposed passing of laws against "Love Jihad" in Bangalore. - In India's most populous state, the BJP government is on a mission to protect women against "love jihad", the conspiracy theory that Muslims are luring Hindu brides with the aim of conversion and national domination. (Photo by Manjunath Kiran / AFP)

(FILES) In this file photo taken on December 1, 2020, a civil right activist holds a placard during a demonstration condemning the decision of various Bharatiya Janata Party (BJP) led state governments in the country for the proposed passing of laws against "Love Jihad" in Bangalore. - In India's most populous state, the BJP government is on a mission to protect women against "love jihad", the conspiracy theory that Muslims are luring Hindu brides with the aim of conversion and national domination. (Photo by Manjunath Kiran / AFP)

The Special Marriage Act (SMA), 1954 , is seen as a progressive law enacted to help inter-faith couples. But with States such as Uttar Pradesh and Madhya Pradesh framing laws that target inter-faith 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 inter-faith 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:

Why was this legislation needed in the first place?

Faizan Mustafa: The original Special 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 renouncing one’s religion was not compatible 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 removed. 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 inter-faith marriage, as well as others, could register under the SMA. The effect of the SMA is that once your marriage 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, mutual consent was not available. Only registering one’s marriage under the SMA gave them the right to divorce by mutual consent, so they would be advised to register their marriage under the SMA. The SMA was also used for inter-religious marriages, but not so often. I think the process and procedure are seen as tedious.

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Faizan Mustafa: 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 society, 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.

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At the same time, if someone wants to use the SMA for the purpose of inter-faith 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.

Veena Gowda: 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 itself 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.

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Can the SMA do a better job of protecting inter-faith couples?

Veena Gowda: A marriage is a civil contract. Civil law is not meant to protect people against violence or against societal 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 observing who’s marrying whom, but the law did not anticipate this.

Also, this need for protection is not merely in the case of inter-faith marriage, it’s there in the case of inter-caste marriages as well. If a so-called higher caste person is marrying 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 so-called 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 provide protection. On the contrary, with the SMA, the state seems to be saying we’re going to increase surveillance on inter-faith marriages.

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How so?

Veena Gowda: What does the SMA actually envisage? 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 inter-religious marriage, then the parents will be informed. Today, what do the ‘love jihad’ ordinances do? If it’s an inter-religious 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 details about your age, address, etc., which makes inter-faith 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.

Also read | ‘Love jihad’ not defined under law, says Centre

But isn’t it the other way round — that it’s only because the SMA is unable to do its job in cases of inter-faith marriage that one party ends up converting so that they can marry under a personal law?

Veena Gowda: 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 inter-religious, it is always the woman who’s adjusting to the family that she is going 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.

Faizan Mustafa: 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. Moreover, hardly any convictions been reported under these laws.

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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 Supreme Court judgment in Rev. Stanislaus (1977) in which the Court held that you cannot convert because ‘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 public mischief” and must be overruled. This judgment should be reviewed as it is now contrary to the privacy judgment .

The SMA is a Central law, and the anti-conversion ordinances are happening at the State level. Don’t they conflict with each other?

Veena Gowda: 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 conflict.

Also read | Supreme Court seeks Centre’s reply on plea challenging provisions of Special Marriage Act

Is it possible to amend these anti-conversion laws so that they cease to be patriarchal and anti-women?

Veena Gowda: 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.

Faizan Mustafa: 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 outnumber 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, protecting the rights of adult individuals to marry whoever they want, the U.P. government promulgated an ordinance that undermines constitutional rights, particularly of Hindu women. The primary purpose of these ordinances is to discipline Hindu women and control their bodies and sexuality. It undermines their agency.

The Hindu Explains | What are the provisions of the Special Marriage Act?

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 under 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 extreme 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 ‘sacramental’ nature of Hindu marriage, our courts have been over-emphasising this element of “saving” a marriage — this should not be the sole objective. Their goal should be to ensure that two individuals happily 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.

Also read | Inter-faith couple seeks removal of objection provision in Special Marriage Act

Veena Gowda: 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 property. On the other, we are getting laws that control which religion you follow 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.

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; Faizan Mustafa is Vice-Chancellor of NALSAR University of Law, Hyderabad

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