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Special Marriage Act (3 November 2020)

Special Marriage Act (3 November 2020)

Why in News:

Special Marriage Act earliest effort towards uniform code: Allahabad HC

Context:

The Allahabad high Court, while issuing an order in a habeas corpus writ petition recently, said it is disturbing that one should change one's faith just for the sake of matrimony when two persons professing different religions can marry under Special Marriage Act which is ‘one of the earliest endeavours towards Uniform Civil Code. The order has come days after another HC judge had observed in another case that religious conversion just for the sake of marriage was not acceptable.  The court made the comments after finding that a Muslim woman had converted to Hinduism, and a month later married as per Hindu rituals. Meanwhile, four states MP, UP, Haryana and Karnataka are considering bringing a legislation to deal with cases of “love jihad”.

Background:

Unlike Madhya Pradesh and nine other states, Uttar Pradesh does not have a law outlawing religious conversion. Last year, the UP State Law Commission submitted a report to the Adityanath government making the case for such a law and included a draft statute, the UP Freedom of Religion Bill.

Summary of the Debate

What is the case?

  • A Hindu girl named, Pooja had married Shavez on August 5, 2020, but her father Pramod was against the marriage and had illegally detained his daughter and was not allowing her to live with Shavez.
  • The habeas corpus writ petition was filed challenging her alleged detention.
  • The court directed that she be produced before the court.
  • The petitioner, Pooja alias Zoya, who had changed her religion to marry Shavez, was produced before the court under police custody as per an earlier order on September 24.
  • When the court asked the petitioner, she said she was a major and wanted to go with her husband Shahwez.
  • She categorically indicated her clear choice to stay with her husband whom she claimed to have married.
  • Recording her statement, the court directed Pooja alias Zoya to be set at liberty forthwith and said she is free to stay with whomsoever she wants and go wherever she likes.

What is the Love Jihad?

  • Love Jihad is an Islamophobic conspiracy theory alleging that Muslim men target women belonging to non-Muslim communities for conversion to Islam by feigning love.
  • The concept rose to national attention in India in 2009 with alleged conversions first in Kerala and subsequently, in Karnataka.
  • Citing an Allahabad High Court ruling, which said religious conversion for the sake of marriage is unacceptable, UP Chief Minister Adityanath said his government would come up with a law to deal with love jihad.
  • Last week, Nikita Tomar, a 21-year-old college student, was shot dead outside her college in Ballabhgarh by a man. The victim’s family has alleged that the man was pressuring her to convert to Islam in order to marry him. Some Hindu outfits have alleged that the woman’s murder is a case of “love jihad”.
  • A day after Uttar Pradesh Chief Minister Yogi Adityanath announced to formulate a law against “love jihad”, his Haryana counterpart Manohar Lal Khattar said his government is also contemplating “legal provisions” against it to ensure such incidents are not repeated.

Provisions under the Special Marriage Act, 1954:

  • The Special Marriage Act is a law which allows solemnization of marriages without going through any religious customs or rituals.
  • People from different castes or religions or states get married under this Act in which marriage is solemnized by way of registration.
  • The provisions under the Special Marriage Act were made in 1954 replacing the earlier legislation and it permit any person to whatever religion he may belong, to whatever faith he may belong to marry any other person of a different caste, of a different religion provided there are certain conditions which are fulfilled and those conditions are laid down in section 4 of the Act.
  • It says that Neither of the party has a spouse living and it is capable of giving consent that is it is not insane or it does not suffer any mental disorder, it is not within the prohibited degree of relations as prescribed under their law in case of male, he is 21 year of age and in case of female, it is at 18 year of age. In case these conditions are fulfilled, then they are supposed to give a notice to the marriage officer in an area where one of the party is living for the last 30 days that they want to marriage.
  • The marriage officer is supposed to display this notice at a conspicuous place in his office so that if anybody has got any objection to this marriage, he can file an objection within a period of 30 days and they after considering the objection, if any, then the marriage officer can permit marriage and three witnesses are required to sign the marriage certificate or the register of marriage.
  • This requirement of notice has been prescribed because this is a special law, it basically govern a marriage between people belonging to different religion, different caste and different faith, not necessary that the people of the same faith cannot marry under this Act, but for them there are special laws available, for example- for Hindus, Buddhist, Sikh or Jain, the Hindu Marriage Act is there, for Christians, Parsi and Muslims, there is a separate law.
  • This special law was made when persons of different faith want to marry and this requirement of notice was there that any person who feels that the parties don’t fulfill any of the requirements which are prescribed under section 4 of the Act are not complied with, if that objection is there, marriage officer can reject the marriage barring that probably this marriage cannot be rejected and the marriage officer is supposed to register the marriage and two people can live together.
  • Constitution does not differentiate on the basis of religion, race, caste of any person, so this law give effect to the provision of the constitution when it permits the marriage between the different faith.

Conclusion:

Religion today has gone well beyond just faith in the almighty and that is something that we should seriously look at and consider. The Special Marriage Act addresses the issue of inter-caste and inter-religious marriages but it does not look at punishment for forced conversion. The Special Marriage Act is over 60 years old and it needs to be looked into yet again and needs to be abreast with the times. Along with the law, we need to make sure that the implementation of the law is facilitated.

Important points made by the Guests

J. Sai Deepak, Advocate, Supreme Court

  • As long as you convert but not for marriage, then there is no problem, but if you convert for marriage then there is a problem then the question that arises.
  • The underlying problem whether one wants to admit it or not because one wants to be pragmatic and optically right, it’s important that the question of religious conversion is at the heart of the issue.
  • This is not a concern that has been raised by one particular community. In January 2020, the Syro-Malabar Church of Kerala specifically admitted that the Christian girls were being targeted and killed in the name of love jihad.
  • While the intention behind the proposed legislation seems to be well placed, the idea should be to address the root cause in a more panoramic fashion as much as possible.
  • There is a judgement of Supreme Court in Rev Stanislaus vs Madhya Pradesh, 1977, which involved effectively the anti-conversion laws of Madhya Pradesh and Odisha in 50s and 60s, wherein the Supreme Court has specifically recognized that conversions create law and order issues if they are not of a free will because at the end of the day, it affects the central question of demographics.
  • The intent of the UCC and the intent of the Special Marriage Act of 1954 are slightly different, the Special Marriage Act of 1954 has to be necessarily looked at with the Indian Succession Act for a very different reason, while the Special Marriage Act was introduced not just to promote interfaith or intercaste marriages, but to ensure that the definitions of marriage and notions of marriage of communities are not changed to accommodate these kind of marriages. Therefore, the rights of individual are protected at the same time the rights of communities to preserve their definitions of marriages are also protected.
  • As a consequence of it, there is a separate succession Act to ensure that these marriages have access to different kinds of succession rules.
  • India is not a nation state, it’s a civilization state at the end of the day which means that you have to recognize civilization as a diversity as a reality not just as an academic talking point which means succession laws, marriage laws are bound to be diversed.

P. K. Malhotra, Former Secretary, Ministry of Law and Justice, GoI

  • In the past, in the number of cases of Supreme Court or many High Courts has said that don’t go beyond the requirement, which are laid down under the Special Marriage Act, because Haryana, Rajasthan and M.P did similar thing which was struck down by the court.
  • If we make a uniform law under the Uniform Civil Code, most of the problem can be taken care of. The number of times Supreme Court has itself has made observation that the time is right when the government should take steps in this regard and number of PILs are also filed before the Supreme Court for the implementation of the UCC, but the courts have said that ‘This is a policy matter on which we cannot give a direction, it is a policy decision to be taken by the government because there are many aspects once you bring in the UCC into force which are to be taken into consideration’.
  • When, these Special Marriage Act was made, there was an objective of making this particular law because if people from different communities want to marry probably neither the Hindu Marriage Act nor the Parsi, Christian, Muslim Marriage Act permitted that kind of marriage because there are certain rituals to be followed and those rituals are not required to be followed under the Special Marriage Act.
  • At that also, when Pandit Nehru came out with this idea and because it was found that at that time, bringing UCC is not a possibility, therefore, this Special Marriage Act was brought enacted by the Parliament with the objective to protect the fundamental right of the individual young people who want to marry but belong to different religion or different community.

Lalitha Kumaramangalam, Former Chairperson, National Commission for Women

  • The Special Marriage Act 1954 exist to make sure that marriage between inter-caste people and between inter-religious marriages are legal and valid, but what it does not have is any punishment that is meted out to people who force one or the other partner to convert for the sake of marriage.
  • The term love jihad came about not because somebody was voluntary converting from one religion to another, that is not illegal in any case in India. The term came about because partners more specifically women than the men but sometimes men too were forcefully converted in order to marry somebody whom they from another caste and another religion and they didn’t have a choice.
  • No individual should be forced to convert in order to marry somebody they want to marry and for that there is no penalty or no punishment under the law.
  • Post conversion is much more than merely a social issue. Religion is today also far too much about money, about politics, about several other things which are not normally accepted in the public, but the fact is that unfortunately, religion has also in many ways become too violent in many parts of the world.
  • There is a feeling that unless we have a majority, our voices will stop being heard, our communities will die out, etc. The word secularism is very misused, the original dictionary meaning of the word is that where state and religion is separate, but in a country like India, state and religion is hardly separate.

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