the-special-marriage-act-and-the-recent-controversy-summary

Context: The recent remarks by the Chief Ministers of Uttar Pradesh and Haryana indicate that they want to ban religious conversion for the sole purpose of marriage.

More on the news: The Himachal Pradesh Freedom of Religion Act, 2019, and the Uttarakhand Freedom of Religion Act, 2018, both prohibit conversion for the sole purpose of marriage.

Background:

  • About SMA: The Special Marriage Act, 1954 (SMA) was enacted to facilitate the marriage of couples professing different faiths and preferring a civil wedding. 
  • Practical problems in registering such marriages
    • The law’s features on prior public notice being given and objections being called from any quarter place a question mark on the safety and privacy of those intending to marry across religions. 
  • Opting for conversion: Many settle for marriage under the personal law of one of them, with the other opting for religious conversion. 
    • The Hindu Marriage Act: Is applicable to any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. 

Conditions for a valid marriage under SMA: 

  • The marriage of any two persons may be solemnised under the SMA, subject to the man having completed 21 years of age and the woman 18
  • Neither should have a spouse living, both should not be suffering from any mental disorder of a kind that renders them unfit for marriage and procreation. 
  • They should not be within the degrees of prohibited relationships - i.e. not be related in such a way that their religion does not permit such marriages. 
  • Parties to an intended marriage should give notice to the marriage officer of the district in which one of them had resided for at least 30 days. 
  • The notice will have to be entered in a Marriage Notice Book and a copy of it displayed at a conspicuous place in the office. 

Objections to the marriage under the law:

  • Any person can object to the marriage within 30 days of the publication of the notice on the ground, if it contravenes one of the conditions for a valid marriage. 
  • The marriage officer has to inquire into the objection and give a decision within 30 days. 
    • If s/he refuses permission for the marriage, an appeal can be made to the district court and the court’s decision will be final. 
  • When a member of an undivided family who professes Hindu, Buddhist, Sikh or Jaina religions, gets married under SMA, it results in his or her “severance” from the family. 

Hurdles faced by couples:

  • Provisions relating to notice, publication and objection: Have rendered it difficult for many people intending to solemnise inter-faith marriages. 
  • Objection by family members: Publicity in the local registration office may mean that family members objecting to the marriage may seek to stop it by coercion. 
  • Political propaganda: Reports of right-wing groups coercing the intending couples.

Issues:

  • Violate the privacy of the couples: These provisions have been challenged in the Supreme Court recently on the grounds that they violate the privacy of the couples, their dignity and right to marry. 
  • Violates the right to equality: In the case of Hindu and Muslim marriage laws, there is no requirement of prior notice and such a requirement in the SMA violates the right to equality of those opting for marriage under it. 

Way ahead:

  • The Allahabad High Court: In a recent ruling, declined to grant police protection to a couple, citing that conversion should be based on change of heart and conviction and not be solely for the purpose of marriage. 
  • The Law Commission of India: Recommended that every person who has converted may be allowed to send a declaration within a month to the officer who registers marriages in the area, and it may be confirmed in person after 21 days. 
  • Best practice: The Kerala Registration department decided to discontinue the practice of uploading marriage notices on its websites following complaints that these were being misused for communal propaganda. 

Source:https://www.thehindu.com/news/national/the-hindu-explains-why-are-states-opting-for-legislation-on-freedom-of-religion/article33049893.ece

Image Source: Women’s Web