This article has been written by Miss Vasundhara Sharma, a 2nd year student of Kirit P Mehta School of law , NMIMS
I)ABSTRACT –
Imagine a world where there is no law , no interference by the state for any matter , no judiciary , only religion which depicts the right and wrong of life , it will certainly become difficult to even imagine a startling thing like this , imagine everything happening only according to religion in terms of education , marriage etc. Imagine those people who are compelled to marry within their own realms when deep down inside they probably love someone else and are being coerced by parental pressure and religion to live in a particular manner , if it would not have been for ‘The Law’ we probably would not have witnessed the validity of Section 377 of the IPC being upheld or how inter caste marriages are being encouraged by the government to discard away with the narrow mindset of ‘class and caste’ and that is where the birth of the Special Marriage act is being taken place.
Different religions have different traditions and values when it comes to marriage which is considered as an auspicious ceremony. There are different laws , values , morals and customs for each religion however the law is unique and there is a concept of special marriage act introduced in 1954, this is the kind of marriage where the state sanctions the marriage and not the religion , it was observed that before 1956 the concept of inter caste marriages were forbidden and people who did not obey this law of marrying within their caste were often outcasted , it was not until 1957 did inter caste marriage actually started becoming popular and acceptable although there are still certain barriers to it today. The Special Marriage Act had a unique purpose and objective where there was interference of the law in order for the meeting of two people of different castes for a common marriage conducted without any religious ceremonies.
Keywords – Religions , unique , inter caste , interference of law
II)INTRODUCTION
The concept of marriage has held an integral part in the Indian Society where this concept of individuals becoming one has been placed on a high pinnacle. , as stated above there are different norms , values , customs and traditions in every aspect of religions and each one has its own faith and beliefs and a unique way when conducting important ceremonies , for instance the Christians get married under the blessings of a priest where there is a custom that if any person objects to the marriage of two people the marriage can get temporary dismissed until the issue has been further looked into , the same way the Hindus get married under the blessings of a ‘pandit’ followed by customs like ‘The 7 Pheras’ etc , thus there are different laws governing the marriage , the Christians have The Christian Marriage Act of 1872 and the Hindus have the Hindu Marriage Act of 1955. The concept of inter-caste marriage is still prohibited in different parts of India till today , while marrying in the same caste has become a norm , this is again one of the underlying causes which give rise to discrimination and casteism which are again huge problems that the Indian society faces till today.
The problem of not being able to marry outside one’s caste had caused a huge barrier which is why the British formulated the Special Marriage Act of 1954 to ensure that secularity being maintained in India post the independence , there was a conflict which arose as the ‘Right to Marry had been explicitly mentioned under Article 21 of the Indian Constitution and here there were barriers being created , thus the government of newly independent India had to introduce and enact the Special Marriage Act left by the Britishers in order to abide by the rules and regulations of the Indian Constitution. The Special Marriage Act was introduced to facilitate the inter caste marriages and this was done by the process of a ‘court marriage’ where no traditions , rules or norms of either religion was carried out by the two people getting married , thus is controlled weddings that could not be solemnized due to the various religion customs and traditions.
This act laid the foundation of a special marriage being taken place by way of registration , this kind of act did not coerce either of the people getting married to have any form of conversion of religion and provided a Certificate of Registration in order for it to be a universal evidence. It has a certain objective and purpose i.e. safeguarding a system of inter faith marriages at the same increasing awareness and encouraging people to do the same , the government also passed certain schemes like inter caste couples receiving an amount of 50,000 as a way of providing incentives but also making sure by way of checks and balances that people do not just marry for the sake of money so other registrations and procedures are followed to ensure and uphold the validity of marriage as quoted by the Social Justice minister that ‘Encouraging inter caste marriages is one of the shackles of breaking away from the caste hierarchy still prevalent today’.
III)IMPORTANT SECTIONS –
There are certain sections which are essential to know under this act –
Certain sections are similar to those of section 5 of the Hindu Marriage Act , there are certain conditions which must be followed under this act –
Starting with Section 4 of the act , it talks about the essentials needed to be fulfilled in order to have a lawful marriage to begin with the sections are the following –
1) Both parties should have a monogamous marriage i.e. neither of the parties should be married to another at the commencement of the marriage
2) The parties should not be unsound minds and fit in order for them to understand and make their own decisions.
3) The legal age of the male should be 21 years and that of the female should be of 18 years
4) The parties should not be related to one another in any way i.e. in terms of blood relations
Section 5 talks about how it is made mandatory for the parties to give a written notice to the Marriage Officer of District and how it is essential that one of the parties must have lived in that part of the district for a minimum 30 days.
Section 6 talks about how a genuine copy of the notification must be submitted in the ‘Marriage Notice Book’ after which the publishing of the ‘Marriage Officer’ will publish the notice and see whether there are any objections to the marriage or not and then only proceed with the further steps.
Section 8 deals with the consequences of ‘objection’ so if any person has any objection to the marriage of the two people the Marriage Officer will take the necessary steps for the investigation
Section 11 deals with the signatories of the parties along with three witnesses present which must be checked and signed by the Marriage Officer.
Section 12 deals with the location or the venue of the marriage i.e. it should either be conducted within a reasonable distance from the office of the Marriage officer or outside , if it is being taken place outside there will be additional costs.
Section 13 deals with the ‘certification’ which will be issued to the parties via an officer after which the marriage will be declared valid and legal
Section 16 deals with the religious ceremonies which is not made mandatory for a marriage to be turned as legal , it is solemnized by the officer itself i.e. in a way it is sanctioned by the state itself
Section 26 is one of the unique features which talks about the validity of the children born under this act of 1954.
1) The children are allowed to retain ownership of the property
2) The off springs are not entitled to any ancestral properties
3) They are allowed to obtain a share of the property
Certain questions pertaining to the Special Marriage Act and the parties do arise , starting with under the Special Marriage Act there is a provision which does not allow the parties who have a legal marriage to file for a divorce during the 1st year of marriage ,it is left to the discretion of the Judge who is dealing with the case or the Officer in charge who analyze the magnitude and harm done and then give their respective judgements , in certain cases of exceptions if one party has suffered extreme hardships in the form of abuse or neglect in any way the authorities may decide accordingly to grant permission to proceed with the divorce. Speaking in terms of this act the next questions pertain to the remarrying under this act , there is a provision which allows to remarry under the conditions that the marriage between the parties have been dissolved , there is no right to appeal and that it has been dismissed if any , after which the parties may proceed to remarry.
There is a general and legal understanding to this perspective under this act , the ‘right to marry’ has been given to every citizen of the country under the Constitution , there also has been certain latest amendments and changes in terms of the freedom of choosing the person to marry , which was often neglected and people were not really allowed to have a love marriage which has been opposed in various religions whereas the law opposes it and in fact has also passed a judgment which states that parents will no longer be allowed to interfere within their children’s life when it comes to the ‘love marriage’ of their children , today there is more acceptance of the concept of arranged marriage in most religions.
The concept of inter caste marriage has been long since opposed and there has been a long battle that has been fought in terms of the marriageability between two people who have different faiths and religions , this was one of the causes of discrimination and hierarchy which gave rise to social inequality and increased the magnitude between the rich and poor , In fact the first ever inter caste marriage was on 1937 where it was still those times when it was considered ‘sinful’ , the marriage was between Manu Gandhi and Surendra Mashruwala. The concept of ‘Kuznet Curve’ is also related to this aspect where it has been explained that as a country is developing there will be increasing effects of social inequality and barriers between different people related to caste , rich and poor and gender but the turning point here is that as and when the country has developed the social inequality will start decreasing and there will come a time where the barriers will no longer be there , this can be seen in terms of the inter caste marriage as well , as and when the government is introducing new schemes the concept of inter caste marriage has become valid ,even though there is some opposition the views and perspectives are changing.
IV)JUDICIAL SEPARATION–
Every marriage has certain problems as the common saying goes ‘No marriage is perfect’ and it is expected from both sides of the parties to compromise with one another and share the responsibilities in order for it to make it easier to have a work life balance. The common question that arises in the mind is that – What is things don’t work out ? There is a separation remedy which is granted on the basis of the case along with the discretion provided by the judge.
Section 23 of this act of 1954 provides remedies in terms of a judicial separation , although there are differences between The Hindu Marriage and Special Marriage Act the grounds for Restitution of Conjugal Rights and Judicial Separation mostly remain the same , but the grounds for Judicial Separation are the following –
1) If the person has committed Adultery according to Section 497 of the IPC
2) Deserted the Spouse without any reason ( Restitution of Conjugal Rights being taken place)
3) If has treated the partner in terms of any abuse , violence or cruelty
4) Has been of unsound mind
5) Has suffered from leprosy not contracted by the other partner
6) There has been no cohabitation for a year or more
All of the above-mentioned grounds can be subjected to divorce according to Section 27 of this Act
V)OFFENSE AND PUNISHMENT-
The law has certain obligations to fulfill and when any kind of wrong doing is happening in the society the law will punish severely depending on the intensity and the magnitude of the case and what weightage it holds in the society in terms of the values , morals, ethics etc. Punishments is mentioned in Section 53 of the Indian Penal Code , it mainly talks about the following punishments being given which varies from case to case –
1) Imprisonment which can be simple or rigorous
2) Fines
3) Forfeiture of Property
4) Death Penalty (Rarest of the rare cases)
Under the Special Marriage Act there are punishments , Section 43 deals with the penalty of the person who commits the offense of bigamy as mentioned under Section 494 or 495. Section 44 of the act of 1954 highlights the punishments.
As the law and country is developing people are getting more creative in terms of tricking other people for monetary gains , Section 45 deals with the punishment for creating a fraudulent marriage certificate which is again mentioned in Section 199 of the IPC.
VI)DRAWBACKS –
The Special Marriage Act is a unique piece of law which has granted the rights of inter caste and inter faith marriages to be conducted , there are still certain aspects which appear to cause trouble in an individual’s life as well as the society. It is seen that the negative features of this act exceeds the benefits making it extremely problematic. Some of the problems include the following aspects-
1) There is no quick procedure for the marriage, instead there is a waiting period of 30 days delaying the process even more.
2) The Interval time for the parties of marriage is 30 days compared to other acts where there is an ‘instant gratification’ being taken place.
3) The acceptance of the societies in certain districts is that of a rebellious one thus there is exposure which may lead to instances of pressure to the parties to abandon this entire concept of marriage.
VII)JUDICIAL PERSPECTIVES –
The Supreme Court in the landmark decision of Lata Singh v. State of UP, 2006 directed the state governments to establish a framework to protect individuals marrying under the Special Marriage Act, 1954. In the current instance, the petitioner sought to have the petition filed by her furious brother dismissed since the petitioner had an inter-caste marriage. As a result, the Supreme Court determined that the petitioner, at the age of 24, is of legal age and can choose her spouse.
In Kuldeep Singh Meena v. State of Rajasthan, 2018 the Rajasthan High Court confirmed this rationale, holding that the Special Marriage Act, 1954 simply requires a notice to be shown on the display board at the Marriage Officer’s office. The High Court makes it very apparent that authorities cannot impose extra obligations on spouses in addition to the conditions established in the Special Marriage Act, 1954.
The Delhi High Court in case of Pranav Kumar Mishra v. Govt. of NCT of Delhi, 2009 held that “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.” Unwarranted exposure of marital arrangements by two individuals authorized to solemnize it may undermine the marriage itself in certain circumstances. Due to parental meddling, it may potentially jeopardize one or both parties’ life or limb in some cases. In such circumstances, if such a method is taken by the authorities, it is wholly arbitrary and without legal power.
The question of marrying without interference came up before the Supreme Court of India in the case of Shafin Jahan v. Asokan K.M. and Others, 2018 in which the Court declared, “The constitution respects the freedom and sovereignty which inheres in each individual.” This involves the ability to make choices about parts of one’s personality and identity. The choice of a partner, whether within or outside of marriage, is entirely up to the person. Marriage intimacies exist within the fundamental zone of privacy, which is impenetrable. The ultimate right of a person to choose a life partner is unaffected in the least by religious considerations.
In the case of Sufiya Sultan and Ors. V. State of U.P. and Ors, 2021 the Allahabad High Court stated that, while giving notice under Section 5 it is up to the couple to request in writing to the concerned Marriage Officer if they want to publish a public notice under Section 6 and follow the objection procedures under Section 7.
The intriguing subject of whether a wife’s unwillingness to resign from her work in her husband’s case constitutes withdrawal from the husband’s society has come up in our courts on several occasions. The Punjab High Court received the question in many cases for deliberation, and it was answered in the yes. The courts determined that the husband had the right to choose the marital residence and that the woman was required to resign and move in with him in the instances of Tirath Kaur v. Kirpal Singh AIR 1964 Punj 28, Gaya Prasad v. Bhagwati AIR 1966 MP 212 (DB), and Kailashwati v. Ayodhya Prakash 1977 HLR 175.The other view, which is contrary to this extreme opinion, as held in S. Garg v. K. M. Garg, AIR 1978 Del 296, is that the wife can not be prevented from taking up employment in the present social scenario and can not be forced to live in the same place where her husband lives. None of the parties shall have a casting vote, and the matter shall be settled by agreement between the parties, by process of giving and taking and by reasonable accommodation.
VIII)CONCLUSION–
In conclusion to the above act it can be said that just as different religions have different customs and traditions , A Special Marriage Act has been drafted in order to facilitate the easy process of inter caste marriages which do not mandate any tradition or rituals for any marriage to be legal it can be sanctioned by the state and still be a legal one. The problem of Caste has always been one of the major problems prevalent in the Indian Society. There are many benefits to this act however the negative prospects of this act exceeds the beneficial aspects of it making this act less effective although this act does solve this issue of inter caste marriages where people can do a court marriage instead of the rituals and ceremonies thus solving the issue of one person having to convert to another religion in order for the marriage to uphold some validity and legality , however the introduction of this act has solved the issue of ‘marriage’ in general and also protects and upholds the constitutional validity of Article 21 of the Constitution.
IX) REFERENCES –
1) https://lddashboard.legislative.gov.in/actsofparliamentfromtheyear/special-marriage-act-1954
2) https://www.drishtiias.com/daily-updates/daily-news-analysis/special-marriage-act-1954-4
3) https://www.indiatoday.in/information/story/what-is-special-marriage-act-all-you-need-to-know-1776395-2021-03-06
4) https://indianexpress.com/article/explained/everyday-explainers/swara-bhaskar-special-marriage-act-8451763/
5) https://www.ourlegalworld.com/important-case-laws-on-special-marriage-act-1954/
6) https://blog.ipleaders.in/special-marriage-act/