JUNE 4, 2024
The Madhya Pradesh high court judgment holding that the marriage of a Hindu girl and a Muslim boy would be invalid even under the Special Marriage Act (SMA) is regressive and against the purpose of law, lawyers said.
“The said judgement, apart from being regressive, also fails to consider the very purpose of the Special Marriage Act, 1954. The SMA was enacted to provide a comprehensive remedy and solution to those individuals who chose to get married to someone of a different faith/belief system,” said Rohini Musa, an advocate on record, Supreme Court.
Justice GS Ahluwalia of the Madhya Pradesh high court on May 27 refused to protect an interfaith couple who wished to get their marriage registered under the SMA. The judge reasoned that a marriage between a Muslim man and a Hindu woman would be invalid as per Islamic personal law – even if it was under the SMA.
“As per Islamic law, the marriage of a Muslim boy with a girl who is an idolatress or a fire-worshiper is not a valid marriage,” Justice Ahluwalia said. “Even if the marriage is registered under the Special Marriage Act, the marriage would be no more a valid marriage and it would be an irregular (fasid) marriage,” the judgment said.
According to Radhika Gaggar, a partner at Cyril Amarchand Mangaldas, the court has looked at this issue from the perspective of Muslim personal law.
“The Special Marriage Act is a legislation that is intended to apply irrespective of the religion of the parties involved,” she said. “Interfaith (including between a Hindu and a Muslim) marriages solemnised under the Special Marriage Act have been previously accepted by courts in the country.”
What is the Special Marriage Act?
In India, personal laws depend on the religion a person follows. The marriage of Hindus is governed by the Hindu Marriage Act, of Christians by the Indian Christian Marriage Act, and of Parsis by the Parsi Marriage Act. Muslims follow the Muslim Personal Law (Shariat) Application Act, 1937.
Other aspects such as divorce, inheritance, and adoption are governed by laws such as the Hindu Succession Act, the Indian Succession Act and the Hindu Adoption and Maintenance Act.
However, there were no laws governing interfaith marriages nor were there any laws granting legal sanctity to civil marriage (conducted by a government official). Thus, the Special Marriage Act was introduced in 1954 to govern civil marriages between Indian nationals — in India and abroad — regardless of religion.
The SMA extends to all Indian states and Indian nationals living in other countries, and applies to all individuals, irrespective of religion, as a result of which anybody can marry under this act. Even people belonging to the same faith can marry under the SMA.
“The Special Marriage Act, 1954, recognizes marriage between any two persons if it fulfils the conditions relating to the solemnization of special marriages as per Section 4,” family law practitioner Devika Deshmukh said. “This includes a Hindu and a Muslim or even Muslims who may wish to marry each other as per the Special Marriage Act and not be governed by their personal laws. The intention of the Special Marriage Act was to deviate from the personal laws, and it was in fact made for situations just as the one at hand.”
To marry under the provisions of the SMA, the act states that:
1. Neither of the parties must have a living spouse. If either party has been married previously, it is essential that the earlier marriage is dissolved legally before applying to marry under the SMA.
2. Both parties must be in a position to grant free and full consent to the marriage.
3. At the time of applying for marriage, the female should be at least 18 years old, and the male must have completed 21 years of age.
4. The solemnization of marriage is not allowed if the parties are within the degree of prohibited relationships as per the customs of any of the parties. These may vary. In Hindu law, marriage between brother and sister, uncle and niece, aunt and nephew, or the children of siblings is prohibited.
“The Madhya Pradesh high court’s decision will not only impact the petitioners but also contribute to the broader legal discourse on interfaith marriages,” said Shyam Gopal, a partner at Traya Law Partners. “Particularly in the context of validity of marriages registered under the Special Marriage Act, the high court has held such a marriage between people of two particular faiths will be no more a valid marriage but an irregular (fasid) marriage. The high court’s decision may perhaps be challenged before the Supreme Court as the Special Marriage Act provides a secular framework for the solemnisation and registration of marriages.
Courtesy: MoneyControl / ANI
