This article has been written by Ms Simran Priyadarshini, a 5th year BA LLB student of SOA National Institute of Law, SOA University, Bhubaneswar.

ABSTRACT

India is a secular nation that is home to numerous religions. To facilitate this diverse need, India enacted the Special Marriage Act in 1954 which enabled couples of different religions to solemnise marriage benefit of their personal laws.

Yet Special Marriage Act has a lot of innately special provisions that are used as a way to discourage interfaith marriage.

Since its creation, the Act intended to safeguard the secular mandate of the constitution has, due to its more harsh requirements than other personal laws, been mostly used as a tool to harass couples that fall under its purview.

Moreover, several Indian states have passed anti-conversion legislation that targets married couples who convert.

The Act and the Bills coupled together make solemnising marriage between people of different religions manifold convoluted.

The tenets of the constitution resting on the pillars of fundamental rights are violated by these manifesting arbitrary legislations

This paper gives a national analysis of how such laws came into existence and shines a light on how these unconstitutional legislation are a blot on the secular mandate of the nation.  

INTRODUCTION

Interfaith marriage, often known as “Mixed Marriage” or Interreligious Marriage is the union of two people who practice different religions. In certain cases, interfaith marriages may be recognized as religious marriages even if they are frequently recognized as civil unions. This is dependent on the tenets of each of the two party’s respective religions; some forbid interfaith unions, while others have differing thresholds for acceptance.

While some major religions remain silent on the matter, others permit it under certain ceremonial and customary restrictions. Resistance to interfaith marriage may be a way for ethno religious communities to isolate themselves. Each partner in an interfaith marriage usually practices their own religion. The choice of religion to raise the children in can be one problem in these kinds of relationships.

What requirements must individuals meet in order for an interfaith marriage to be deemed lawful?

Remember the following requirements when getting married.

Both the individuals:

1. Are of sound mind and able to give their legitimate assent to the marriage.
2. Must not be having any mental illness that would make you unsuitable for marriage and parenthood.
3. Have not experienced repeated bouts of epilepsy or insanity.
4. The woman must be at least eighteen years old, and the guy must be at least twenty-one.
5. You shouldn’t be in any way involved in a relationship that is prohibited.

What about customary marriages?

Rules controlling customs and marriage solemnization can be established by the state government when those customs pertain to an individual belonging to a tribe, community, group, or family.

This is not required in situations when:

1. For an extended period, the members have consistently adhered to these customs.
2. There is nothing against public policy in the customs or rules.
3. Only a family is subject to the customs or rules, and the family is still upholding the tradition.

Under the Special Marriage Act, how does one go about registering an interfaith marriage?

1. Provide the Marriage Officer with notice.
2. The couple must give written notice to the Marriage Officer of the district where at least one of them has resided for at least thirty days prior to the notification date in order to execute a marriage under the Special Marriage Act.
3. After both parties sign an application for marriage registration, the Marriage Officer will publish a notice to the public, grant thirty days for objections, and consider any objections that are received within that time frame.
4. All such notices shall be retained by the Marriage Officer along with their files, and a true copy will be entered in a Marriage Notice Book that is available for anyone to view at any reasonable time and for no charge.
5. Every such notice will be published by the Marriage Officer, who will affix a copy to a prominent location within their office. The Officer is required to forward a copy to the Marriage Officer of the district in which one of the couples does not reside continuously if one of them does not.
6. Sign a marital vows declaration.
7. In front of the marriage officer, the couple and three witnesses must sign a declaration prior to the marriage being performed. It must also be signed by the Marriage Officer.
8. The marriage ceremony and marriage certificate are performed.
9. The Marriage Officer will record the details in a certificate in the Marriage Certificate Book once the marriage has been performed and all requirements have been met. This certificate will be signed by the couple and three witnesses. After then, the certificate will be irrefutable proof of a valid marriage.

How are weddings between people of different religions formally recognized?

Under the Special Marriage Act, a marriage can be solemnized without following any set format or requirements. However, there are still two options:

1. When religious rites are not what you and your spouse desire:

The couple may elect to simply register their marriage with the marriage officer instead of holding any religious ceremony. ‘I, [your name], take thee [your spouse’s name] to be my lawful wife/husband.’ is a statement that you and your spouse must utter to each other after deciding on the manner of marriage. Three witnesses and the marriage officer must witness this.

1. If you and your partner wish to have religious ceremonies during your wedding:

As long as it complies with personal law, you are free to perform any religious ceremony and then file your marriage under the Special Marriage Act. There is just one requirement: from the day of the ceremony to the registration date, you and your spouse must have been residing together as husband and wife.

Major Provisions of the 1954 Special Marriage Act

The Special Marriage Act, 1954, Section 4, lists the many conditions for a valid marriage.

It outlines the following four prerequisites for a valid marriage:

1. It makes a marriage void if neither partner had a spouse living at the time of the marriage and outlaws polygamy.
2. The married couple needs to be in good mental health. When they get married, the parties need to be rational and capable of making their own decisions.
3. The legal age of majority must have been attained by both spouses. When filing for marriage, the male and female parties must both be at least twenty-one years old and at least eighteen years old, respectively.
4. Before being married, the parties shouldn’t be too close or have any prohibited relationships with one another.

The extent of a prohibited relationship is based on the customs of the individuals involved and varies depending on the culture. The levels of prohibited relationships are listed in Schedule One of the Act; nevertheless, in most cases, the laws pertaining to individuals are more important. These conditions must all be satisfied for the marriage to be deemed legal. The consent of the parties, with both entering into the marriage providing appropriate consent, is another requirement for a legal marriage. Both sides willingness is taken into consideration. Neither party’s caste nor religion is taken into consideration or will act as a barrier.

According to Section 5 of the Act, at least one of the parties must have resided in the district for at least 30 days prior to the date of the notification, and the parties must give written notice to the Marriage Officer of the District. The format that is specified in schedule two of the act must be followed when filing the application.

The original and authentic copy of the notification must be placed in the “Marriage Notice Book,” under Section 6 of the Act. The Marriage Officer will issue a thirty-day public notice following the application’s receipt to ascertain whether any parties are opposed to the marriage. One of the most frequent objections addressed is non-compliance with any of the criteria or requirements of the Act.

Anyone may object to the planned marriage after the notice is issued, according to Section 8 of the law. When a Marriage Officer receives an objection, it is their responsibility to properly investigate and address the matter.

The parties to the marriage and three witnesses must sign the declaration of marriage, which also needs to be verified and confirmed by the marriage officer in accordance with Section 11 of the Act.

The marriage may be consummated at the Marriage Officer’s office or within a reasonable travel of the office, per Section 12 of the Act. There should be additional fees if the marriage is not consummated in the marriage officer’s office.

The Act’s Section 13 addresses marriage certification. When a marriage is solemnized, the marriage officer records the union in the “Marriage Certificate book” and provides a Marriage Certificate.

According to Section 16 of the Act, which outlines the process for registering a marriage, no religious ceremonies are required. The government appoints a Marriage Officer to officiate marriages under this section, and the relevant parties to the marriage must provide the Marriage Officer the necessary notice.

The validity of children born to individuals who married under the Special Marriage Act of 1954 is acknowledged under Section 26 of the Act. Even in the event that the marriage is ruled void, they continue to be the owners of the property. Such marriages do not grant inheritance rights to their children. Only a portion of their parents inherited or self-owned property is available to them.

The Legal and General Understanding

Marriages performed within one’s own caste are generally regarded as sacred and auspicious; but, the legal components of marriage, as previously described, do not diminish their sacredness or validity under this act. Every citizen has the legal right to marry and lead a happy life with any partner of their choosing under the terms of our law. However, many disagree with and endorse this viewpoint. Some people find it legitimate, while others don’t. This state of affairs has been brought about by the influence of arranged weddings on love marriages, and despite the fact that more regulations and rulings have been made in this area, the attitudes of those who favor caste and religious marriages have not much changed.

Difference between the Hindu Marriage Act and Special Marriage Act

While the Special Marriage Act covers all Indian citizens, the Hindu Marriage Act solely pertains to Hindus.

The Parliament of India Act of 1955 established the Hindu Marriage Act. A marriage that has already been formally consummated may be registered under the Hindu Marriage Act. It makes no mention of a Registrar being in charge of solemnizing marriages. The Registrar in whose jurisdiction the marriage is solemnized or the Registrar in whose jurisdiction any of the parties has resided for at least six months prior to the marriage date must receive an application from the parties to the marriage. Within one month of the marriage date, the spouses must appear before the Registrar with their parents, guardians, or other witnesses. A clause allows the Registrar to excuse a delay for up to five years, and then the District Registrar in question.

The Special Marriage Act, 1954 is a law passed by the Indian Parliament that established a unique type of marriage for all Indian residents living abroad as well as those who are citizens of India, irrespective of their respective religions. A marriage official must register a marriage and perform a solemnization under the Special Marriage Act. The marriage officer in whose jurisdiction at least one of the parties has resided for at least 30 days prior to the date of the notification must be notified by the parties to the proposed marriage. It ought to be placed in a prominent location in his office. Copies of the notice for comparable publishing should be given to any other Marriage Officer who may reside in the same region as either party. The marriage may be formally consummated one month from the date of the notice’s publication if no objections are raised. If there are any objections, the marriage officer must investigate them and decide whether to solemnize the marriage or reject it. Following the solemnization of the marriage, registration will take place.

After providing a 30-day public notice, any marriage that has already been celebrated may also be registered under the Special Marriage Act, subject to specific requirements.

 

Support for Wife and Children: In accordance with the 1954 Special Marriage Act

Alimony while the case is pending in court:

In cases where the District Court in a Special Marriage Act of 1954 proceeding determines that the wife lacks sufficient independent income to cover her support and the costs of the proceeding, the wife may, at the request of the court, order the husband to pay her the costs of the proceeding. During the course of the previous proceeding, the wife may request a weekly or monthly payment from the husband, with consideration given to his income, as deemed reasonable by the court.

Alimony and Maintenance for eternity

Any court with jurisdiction under the Special Marriage Act of 1954 may order the husband to secure the wife’s maintenance and support, if needed, by charging the husband’s property with the gross amount or the monthly or periodic payment of money for duration not to exceed her life. This can be done at any time during the decrees passing or afterwards.

The District Court may, in each party’s case, amend, adjust, or cancel any such order in a way that the Court may find reasonable if it becomes convinced that there has been a change in the circumstances of either party at any point after it has issued an order under subsection (1).

Subsection (3) The District Court may, in the instance of the husband, change, revise, or revoke any such order and in any way the Court may think fit if it is satisfied that the wife for whom an order has been made under this section has remarried or has not led a chaste life.

Maintenance Amount

The Court will have sole discretion over the amount of maintenance. When determining the amount of maintenance, the court will consider the following factors:

• the parties status and position; 
• the claimant’s reasonable preference; 
• If the claimant lives apart, if this is a reasonable living arrangement for them; 
• The amount of money the claimant has in their estate, including any income they receive from it, from their own sources of income, or from other sources; or

Any more pertinent details and conditions.

The stated subject is complicated by nature. The Special Marriage Act of 1954, the Code of Civil Procedure of 1908, the Limitation Act of 1963, the Evidence Act of 1872, the Code of Criminal Procedure of 1973, and other relevant laws, judgments, and citations from the Hon’ble Supreme Court of India and the High Courts should all be reviewed in these kinds of situations. Even yet, the issue of how rules, rulings, and citations should be implemented is a little more nuanced since it necessitates a careful analysis of the relevant procedural laws, substantive laws, and court precedents in relation to a particular set of facts and circumstances.

Penalties and offenses under the Special Marriage Act 1954 

An individual who, while married, arranges for their own marriage to be solemnized under this Act shall be deemed to have committed an offence under Section 494 or Section 495 of the Indian Penal Code, 1860, as the case may be, and the marriage so solemnized shall be void. Section 43 of the Special Marriage Act, 1954 addresses the penalty for a married person marrying again under this Act.

The statute’s Section 44 emphasizes bigamy’s penalties in additional detail. It stipulates that anyone whose marriage is formally dissolved under this Act and who enters into another marriage while their spouse is still alive will face the consequences outlined in Sections 494 and 495 of the Indian Penal Code, 1860 for the crime of remarriage during a spouse’s lifetime, and the cohabitation they enter into will be null and void.

The Special Marriage Act, 1954, Section 45, describes the penalties for signing a false declaration or certificate. It states that the offence specified in Section 199 of the Indian Penal Code, 1860 is committed by anybody who makes, signs, or attests any declaration or certificate required by or under this Act that contains a false statement that he either knows or believes to be false or does not believe to be true.

Views from the judiciary’s bench regarding the 1954 Special Marriage Act

In the landmark case of Lata Singh v. State of UP, 2006, the Supreme Court instructed the state governments to create a structure to safeguard individuals who enter into marriage under the Special Marriage Act, 1954. As the petitioner in this case married outside of her caste, she attempted to have the petition filed by her enraged brother rejected. Because of this, the Supreme Court decided that the petitioner, who is 24 years old, is of legal age and has the right to select her marriage.

The Rajasthan High Court upheld this reasoning in Kuldeep Singh Meena v. State of Rajasthan, 2018, ruling that the Special Marriage Act, 1954 only calls for a notice to be posted on the notice board at the Marriage Officer’s office. The High Court makes it very clear that in addition to the requirements outlined in the Special Marriage Act of 1954, authorities cannot place additional demands on couples.

“The Special Marriage Act, 1954 was intended to permit a special form of marriage for any Indian person professing multiple faiths or preferring a civil form of marriage,” the Delhi High Court said in the 2009 case of Pranav Kumar Mishra v. Govt. of NCT of Delhi. In some cases, the marriage itself may be jeopardized if two people who are authorized to solemnize the marriage disclose the marital arrangements without permission. In certain situations, it could put the life or limb of one or both individuals in danger due to parental intervention. If the authorities choose to use such a strategy in these circumstances, it is completely discretionary and devoid of legal authority.

The Supreme Court of India heard a case in 2018 called Shafin Jahan v. Asokan K.M. and Others, in which it addressed the issue of unhindered marriages and ruled that “the constitution respects the freedom and sovereignty which inheres in each individual.” This entails having the capacity to make decisions regarding aspects of one’s identity and personality. The individual has complete control over who they choose as a companion, whether they are married or not. The basic, unbreakable zone of privacy is where marriage intimacy exists. Religion has no bearing whatsoever on an individual’s final freedom to select a life partner.

According to the Allahabad High Court’s ruling in Sufiya Sultan and Ors. v. State of U.P. and Ors, 2021, after providing notice under Section 5, the couple must request in writing from the relevant Marriage Officer whether they wish to publish a public notice under Section 6 and proceed with the objection procedures under Section 7.

 

CONCLUSION

The caste system is not a new concept in Indian society. History shows that the prevalent caste system caused vast civilizations to fall from power. Its end could not be predicted, but its beginning might not be far off. If a suitable version of the Special Marriage Act, 1954 was passed, people would be free to marry the person of their choice regardless of caste, community, religion, or cultural taboos. The Special Marital Marriage is intended to protect the couple as much as possible in light of the community’s anger. Laws pertaining to legitimate marriages, voidable marriages, registration procedures, divorce grounds, child status, support, and remarriage have all been established by the Act. The idea was to create a universal code that would reduce the gaps that are deeply ingrained in society and eat them up like termites.

Despite all the efforts, society still favors burdening and harassing couples. The current imperative is to educate and involve people about how differences only serve to impede progress and that interfaith marriage is merely a matter of personal choice rather than an offense.

REFERECES:

1. Special Marriage Act, 1954
2. Constitution of India, 1950
3. https://www.legalserviceindia.com/legal/article-12088-special-marriage-act-1954-facilitating-interfaith-and-inter-caste-unions-in-india.html#:~:text=People%20of%20different%20culture%20and,any%20religious%20traditions%20or%20practices.
4. https://en.wikipedia.org/wiki/Interfaith_marriage