Indian Society
Special Marriage Act 1954
- 17 Jan 2022
- 6 min read
For Prelims: Special Marriage Act (SMA), 1954, Fundamental Rights
For Mains: Special Marriage Act (SMA), 1954,, K.S. Puttaswamy v UOI (2017), Right to Privacy, Personal Liberties.
Why in News
Recently, the law that governs inter-faith marriages in the country, the Special Marriage Act (SMA), 1954, is being challenged in the Supreme Court.
- In 2021, petitions were filed to strike down several of its provisions.
The Special Marriage Act (SMA), 1954
- Itis the legislation made to validate and register interreligious and inter-caste marriages in India.
- It allows two individuals to solemnise their marriage through a civil contract.
- No religious formalities are needed to be carried out under the Act.
- This Act includes Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists marriages.
- This Act applies not only to Indian citizens who belong to different castes and religions but also to Indian nationals who live abroad.
About the Current Petition
- Section 5 of the SMA requires a person marrying under this law to give a notice of intended marriage.
- 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).
- Due to these provisions breaching personal liberties, several inter-faith couples approached the Court, challenging Sections 6 and 7 of the Act.
Key Points
- About Interfaith Marriages:
- The matrimonial relationship developed between two individuals having different religious faiths.
- Although marrying into a different religion is a matter of choice for an adult, there are certain issues regarding the same.
- Issues with Interfaith Marriages:
- Interfaith marriages are believed to be a forced conversion of one of the spouses (mostly women).
- As per the Muslim Personal law, in order to get married to a non-Muslim, conversion of religion is the only way.
- Hindu religion allows only monogamy and those who want to marry a second time take another course.
- There is no provision regarding caste determination of children born out of such marriages.
- The Special Marriage Act, 1954 is not compatible with backwardness of the society.
- There is debate over the validity of Article 226 in the context of annulling the interfaith marriage by the high court.
- Article 226: Power of high courts to issue certain writs.
- Challenges with Contemplating Laws for Interfaith Marriages:
- Against Fundamental Rights: Interference of the law in an individual’s choice of marriage violates the existing fundamental rights such as:
- Right to equality (Article 14),
- Right to Freedom & Personal Liberty (Article 19),
- Freedom of Religion and Right to Life (Article 25 and Article 21).
- Against Secularism: Indian Constitution enshrines secularism as one of the cardinal principles.
- Article 25 of the Indian constitution provides the freedom to practice any religion of one’s choice.
- Hence, in India inter-faith marriages are allowed as the constitution allows one to convert to a different religion from what one was born with and further the personal laws of the religion have provisions.
- Asymmetrical With Various Supreme Court’s Judgements:
- The Supreme Court in Shafin Jahan v Ashok KM (2018), has upheld the right to marry a person of one’s choice as a part of Article 21.
- According to the Supreme Court, the Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere.
- Therefore, the right to marry a person of one’s choice is integral to Article 21 of the Constitution.
- Further, Supreme Court in K.S. Puttaswamy v UOI (2017) judgement held that “right of choice of a family life” as a fundamental right.
- The Supreme Court in Shafin Jahan v Ashok KM (2018), has upheld the right to marry a person of one’s choice as a part of Article 21.
- Patriarchal Roots: This shows the law has deep-seated patriarchal roots, wherein women are infantilised, placed under parental and community control, and denied the right to take life decisions, should those decisions not be agreeable to their guardians.
- Against Fundamental Rights: Interference of the law in an individual’s choice of marriage violates the existing fundamental rights such as:
Way Forward
- In order to avoid inclusion of any further laws, there should be acceptance of the special marriage act, 1954 at the mental and social level.
- The rights should not be exploited; conversion of religion for marriage only is not at all wise.