Special Marriage Act, 1954
The Special Marriage Act (SMA), 1954 is an Indian law that provides a legal framework for the marriage of people belonging to different religions or castes.
It governs a civil marriage where the state sanctions the marriage rather than the religion.
The Indian system, where both civil and religious marriages are recognised, is similar to the laws in the UK’s Marriage Act of 1949.
The applicability of the Act extends to the people of all faiths, including Hindus, Muslims, Sikhs, Christians, Sikhs, Jains, and Buddhists
The Act provides for the registration of marriages, which gives legal recognition to the marriage and provides a number of legal benefits and protections to the couple, such as inheritance rights, succession rights, and social security benefits.
It forbids polygamy and declares a marriage null and void if either party had a spouse living at the time of the marriage or if either of them is incapable of giving a valid consent to the marriage due to unsoundness of mind.
The minimum age to get married under the SMA is 21 years for males and 18 years for females.
Section 5 of the Act specifies that the parties must give written notice to the Marriage Officer of the District and that at least one of the parties must have lived in the district for at least 30 days immediately before the date of such notification.
Section 7 of the Act allows any person to object to the marriage before the expiration of 30 days from the date of the notice's publication.
Personal laws, such as the Muslim Marriage Act, 1954, and the Hindu Marriage Act, 1955, require either spouse to convert to the religion of the other before marriage.
However, the SMA enables marriage between inter-faith or inter-caste couples without them giving up their religious identity or resorting to conversion.
But, once married as per the SMA, an individual is deemed severed from the family in terms of rights like the right to inheritance.
Need for prioritizing personal autonomy and protect inter-faith couples
It is common practice that when a petition seeking police protection is filed under Article 226 of the Constitution of India, the High Court looks into the violation of rights of the petitioners and the extent of threat faced by them.
Such petitions are usually filed by couples in inter-faith and inter-caste marriages.
However, it is now seen that even in cases of unmarried persons, High Courts have extended them protection after considering the various threats emanating from society.
In contrast, recently the Madhya Pradesh High Court, without weighing in on the real and apparent dangers faced by an inter-faith couple and adjudicating on the prayer for protection based on a threat assessment, has gone into the merits of an impending marriage itself.
Even if the couple does not get their marriage registered, their claim for protection ought to have been decided in accordance with Article 21 of the Constitution, which provides for the protection of the right to life and liberty of an individual.
The Madhya Pradesh High Court order assumes importance in the current social and political climate, where there is a real threat of vigilantism against inter-faith and inter-caste marriages, which do not have the sanction of the parents.
The love jihad conspiracy, right-wing propaganda and consequent vigilantism have directly challenged our constitutional morality.
While these are yet to be resolved, there is also a batch of petitions challenging unconstitutional provisions within the Special Marriage Act, such as prior notice which are pending before the Supreme Court.
Tying these together is a common thread of individual autonomy, liberty, and equality.
Dealing with a case of inter-faith marriage, Justice D.Y. Chandrachud, as he was then, wrote that “social approval for intimate personal decisions is not the basis for recognising them” and further, that “the Constitution protects personal liberty from disapproving audiences”.
It is wholly necessary for constitutional courts across the country to keep in mind that the arc of jurisprudence bends towards autonomy, privacy and liberty.
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