Love, marriage, law: A special act

freedom to choose partner

Illustration: On Canva by Ekta Sawant

The Special Marriage Act, 1954, which replaced the Special Marriage Act of 1872, is a civil law that provides for marriages of persons irrespective of faith or religion. The law allows the parties to observe any ceremonies for the solemnisation of their marriage and also permits persons who are already married under other forms of marriage to register their marriages under the Act. 

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The law was brought in to ensure that religion and caste do not come in the way of people choosing their partners. In fact, the fundamental requirement under this Act, for a valid marriage, is the consent of both parties concerned, irrespective of their religious beliefs or caste. 

Under the Act, the basic requirements for a valid marriage are almost identical to that of marriages under other personal laws. The Act mandates that notice of a marriage be available for public scrutiny for 30 days. The notice, therefore, is displayed in “some conspicuous place”, usually on the notice board of the marriage registrar’s office. 

Display versus privacy

In some states including Delhi, Rajasthan and Haryana, the practice is for the notice to be sent to the residential addresses of the couple intending to marry. 

These are nothing but bureaucratic hurdles with unmistakable patriarchal and communal underpinnings. Incidentally these requirements have been struck down by the Delhi and Rajasthan High Courts as “not warranted or authorised by law” and that they “amount to a breach of privacy of the individuals”. There are also numerous reports that show how this formality has been used by right-wing organisations to interfere with and harass inter-faith couples. 

The Special Marriages Act provides no scope for any interference with the choice of the consenting adults, either from the family or others. Even the provision mandating public notice of 30 days has been challenged before the Supreme Court on the ground that it violates the right to privacy of the parties.

A most personal, intimate decision

We must bear in mind here that the notions of relationships and marriage, from a legal point of view, have undergone a remarkable change. Much like the right to divorce, marriage has moved from being a contract between families to the autonomy of individuals to choose. The Supreme Court has repeatedly asserted that every individual has the right and autonomy to choose their partner and marry a person of their choice. 

The Supreme Court, in Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors., while decriminalizing same-sex relationships held: “There can be no doubt that an individual also has a right to a union Under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional”

The Court emphasized on an individual’s right to privacy stating that: “Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice.” 

In the same judgment, the Supreme Court recognised that in the contemporary world “even marriage is now not equated to procreation of children” and further, held that “the protective mantle of privacy covers certain decisions that fundamentally affect the human life cycle. It protects the most personal and intimate decisions of individuals that affect their life and development. Thus, choices and decisions on matters such as procreation, contraception and marriage have been held to be protected.”

Consensual is not criminal

In fact, the Supreme Court in the Navtej case, held that criminalising of consensual acts between individuals who wish to exercise their constitutionally-protected right to sexual orientation is an illegal action of the State, denying its citizens the right to intimacy, while going on to hold that the every individual has the right of choice of partner as well as the freedom to decide on the nature of the relationship that the individual wishes to pursue. 

In the Shafin Jahan case, the Supreme Court set aside a Kerala High Court judgment which annulled the marriage of a twenty-four year old woman with a man of her choice in a habeas corpus petition instituted by her father in the name of “love jihad”, while holding that a woman’s right to choose a life partner is an expression of autonomy in the sphere of “intimate personal decisions” and the “absolute right of an individual to choose a life partner is not in the least affected by matters of faith”

In Lata Singh v. State of U.P. [(2006) 5 SCC 475], the Supreme Court held that even live-in relationships are not a crime and directed the administration and police authorities throughout the country to ensure protection to persons in inter-caste or inter-religious marriages. 

Protect such couples

In the context of the various “honour killings” taking place, the Supreme Court in Shakti Vahini vs. Union of India (UOI) and Ors. [AIR 2018 SC 1601], prescribed a slew of recommendations to ensure the protection of couples who enter into inter-caste or inter-religious marriages. The court even prescribed a law on the lines of abolition of ‘sati’ and ‘dowry’ to fight the social menace of ‘honour killings’. While holding that when two adults consensually choose each other as life partners, it is a manifestation of their choice — recognized Under Articles 19 and 21 of the Constitution — that needs to be protected. This cannot succumb to the conception of class, honour or group-thinking, which remotely do not have any legitimacy.

In fact, it is discernible that the strength of our Constitution lies in its guarantee of protection to each individual in the matter of their choice of partner and intimacies within or outside marriage.

Proposed laws unconstitutional

This being the case, instead of protecting inter-caste and inter-faith marriages, new laws are being proposed that undermine in entirety, not only the Special Marriage Act , but the Constitution itself. 

Bharatiya Janata Party-ruled state governments across the country have promised these laws to prevent so-called love-jihad. The Uttar Pradesh government has already passed an Ordinance titled Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020. Its purpose and use are writ large on three incidents that took place after it came into force. 

A Muslim man and his brother were arrested when he and his wife, a 22-year-old Hindu woman, tried to get their marriage registered at Moradabad. They were accosted by the Bajrang Dal who forced the three of them to the police station. The woman’s pleas that she had married him out of her own free will were given no regard to. 

In another incident, a 21-year-old Muslim man was arrested from Aligarh despite pleas from his 21-year-old partner that she loved him. The bogey of love-jihad has received a legal fillip from the BJP which is hell bent on enforcing religious apartheid. 

These laws are not merely communal and contrary to the law laid down by the Courts. They suffer from a gross lack of constitutional morality, which, we must remember, is not limited to the mere observance of the core principles of constitutionalism in the literal text. It must embrace within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society. The divisiveness they uphold is anathema to the idea of fraternity and democracy itself. 

Babasaheb Dr. B.R. Ambedkar in “The Annihilation of Caste”, while speaking of the need for social endosmosis — which is fraternity — equates it to democracy itself. “An ideal society should be mobile, should be full of channels for conveying a change taking place in one part to other parts. In an ideal society there should be many interests channels for conveying a change taking place in one part to other parts. In an ideal society there should be many interests consciously communicated and shared. There should be varied and free points of contact with other modes of association. In other words there must be social endosmosis. This is fraternity, which is only another name for democracy. Democracy is not merely a form of government. It is primarily a mode of associated living, of conjoint communicated experience. It is essentially an attitude of respect and reverence towards one’s fellow men.”

It is this associated living that finds a legal channel in the form of the Special Marriage Act. It has the protection of the State through directions of the Courts. By bringing new laws that oppose this fraternity, the State is not only legitimising the actions of khap panchayats and extremist religious organisations, but in fact, taking over their role.

– Clifton D’rozario and Maitreyi Krishnan

About Clifton D'rozario 4 Articles
The author is a Bengaluru-based advocate with Manthan Law
About Maitreyi Krishnan 1 Article
Maitreyi Krishnan is a Bengaluru-based advocate