Special Marriage Act and anti-conversion Ordinance: Cause and effect relationship, judgment by Allahabad High Court, and a few suggestions

The judgment dated January 12 passed by the Allahabad High Court is historic in many ways. It is the first judgment which dealt with and tried to iron out the legal asymmetry which had crept into the Special Marriage Act (SMA), 1954 with the passage of time. It has brought the SMA in tune with the present times and also with the recent judgments by the Supreme Court.

Though the Court was dealing with a habeas corpus petition, which has a very limited scope, the Single Judge did not let himself be bogged down by procedural niceties and decided a challenging issue concerning constitutional rights of individuals and their right to make personal choices without intervention of the State.

In its judgment, the Court held Section 6 and 7 of SMA to be directory in nature and that it will be optional for couples to have the notice of their marriage published. In case they choose against publication of notice, then the marriage officer shall proceed to solemnize their marriage, the Court held.

Even the Supreme Court is seized of similar matter. On September 16, 2020, it issued notice in a petition filed by Nandini Praveen, a law student from Kerala, challenging Sections 6(2), 6(3), 7, 8, 9 and 10 of the Special Marriage Act primarily on the ground that these sections violate the right to privacy of marrying couples.

On January 6, the Supreme Court issued notice in a petition challenging the constitutional validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance and the Uttarakhand Freedom of Religion Act. However, it declined to entertain a transfer petition filed by the Uttar Pradesh government seeking transfer of cases pending before the Allahabad High Court challenging the Ordinance.

From the public discourse of the leaders in these states, it can unmistakably be made out that these laws have primarily been enacted to stop inter-religious marriages.

Though SMA and the so-called "love-jihad laws" seemingly operate in different fields, there is an uncanny cause and effect relationship between them. SMA was enacted as a secular law which allows any two persons to marry regardless of caste or religion, but the provisions are such that a marriage can take place only with the approval of the respective families of the couple. The mandatory publication of notice to marry and 30 days waiting period for objections from the general public affords sufficient time to the parents as well as vigilante groups to ensure that a marriage does not take place. While making all the personal details of the couple public, the 30 day wait also takes its toll on the life and liberty of the couple.

On the other hand, if one partner agrees to convert to the religion of the other, then the marriage can be solemnized as per the rites of that religion within a few hours and that is a perfectly valid marriage. Given the nature of provisions of the SMA, inter-faith couples are virtually left with no choice but to convert in order to marry. Now, the motive of the governments is to foreclose even this mode through the enactment of these laws. The State of Himachal Pradesh already has a similar law, while the States of Haryana and Madhya Pradesh are in the process of enacting a similar law.

Right to privacy and right to marry

A nine judge Bench of Supreme Court in its judgment in KS Puttaswamy v. Union of India held the right to privacy is a fundamental right of citizens of India and thus propounded a new Constitutional jurisprudence. In the very next year, the Supreme Court added new dimensions to the right to privacy. In Navtej Singh Johar vs. Union of India, it held that consensual homosexual sex between two adults is not illegal. In Joseph Shine vs. Union of India, it struck down Section 497 of the Indian Penal Code and decriminalized adultery. These judgments gave a sense to the citizens that India has entered into a new era of personal freedom, where the State shall have minimal interference in the matters of personal choice and discretion.

Further, in Shakti Vahini v. Union of India (2018) and Shafin Jahan v. Ashokan KM (2018), the apex court held that the right of two adults to get married is recognized under Articles 19 and 21 of the Constitution.

Allahabad High Court judgment

The judgment by the Allahabad High Court strikes at the root cause which forces inter-faith couples to take the conversion route. Whatever the political rhetoric may be, the fact is that these youngsters are drawn towards each other for reasons which have nothing to do with religion. The directions given in the judgment, if implemented properly, will render the entire effort of obsessively promulgating and enforcing "love-jihad laws" futile and inter-faith couples will be free from the trap being laid by the governments.

The Uttar Pradesh government, which has followed its Hindutva agenda with missionary zeal, may not let go of the things so easily and there is a good chance that the judgment will be challenged before the Division Bench and the matter may finally end up in the Supreme Court.

It is in this context the the prima facie observations of Chief Justice of India SA Bobde, while issuing notice in the petition filed by Nandini Praveen, become relevant. He had said,

“Your plea is that this is a violation of the privacy of the couples. But imagine if children run away to get married, how the parents would know about the whereabouts of their children? If wife runs away, how would the husband come to know?

For example, if one or both persons intending to get married have run away from their respective spouses, should it be kept secret by the marriage officer, who has an obligation under law to inquire into the legitimacy of the alliance by inviting objections from the public by putting up the information on the notice board? The moment that provision is deleted, it could lead to abuse of existing marriages. You must also suggest a solution."

There can be any number of arguments to counter these prima facie reservations/observations by the Bench. But a career lawyer is given to the habit of satisfying the queries that emanate from the Bench.

Suggestions

In my view, when two adults of legally marriageable age appear before the marriage officer, their marriage should be registered and a provisional marriage certificate should be issued to the couple forthwith. The marriage officer may then publish notice and proceed as per the provisions of the SMA.

The author makes the following suggestions which proceed on the premise that marriage under SMA is a civil contract:

1. A couple may approach the marriage officer along with the competent witnesses and present the application/notice to marry. The couple shall furnish their valid proof of identity and age. The couple and witnesses shall sign a declaration as per Section 11 of the SMA that the couple fulfils the conditions to marry.

2. The marriage officer shall issue a provisional marriage certificate immediately after complying with provisions of Section 12 of SMA (where a couple avow to take each other as husband and wife) which shall remain valid for 60 days.

3. The required number of witnesses may be reduced to two from three.

4. Thereafter, the marriage officer may proceed in terms of Section 5 to 14 of the SMA by publishing notices, entertaining and deciding objections.

5. In case no objection is received, then the marriage certificate shall be issued after 30 days of publication of such notice which may be collected by the couple on any working day.

6. Any objection can be dealt with by the Registrar as per the provisions of SMA. The couple and witnesses may be permitted to be represented by an advocate. The personal presence of the couple and witnesses should be ordered only when it is necessary and by way of a reasoned order.

7. The cost to be imposed on objectors for filing false objections, which at the present is only Rs.1,000, should be increased substantially. The penalties/prosecution of the couple and witnesses in case of false information is already provided for under Section 43 to 45 of the Act.

It will be fallacy to assume that once a provisional certificate is issued, then that cannot be undone. Section 24 of SMA itself provides for such eventuality where if any information is found false, then the marriage may be declared null and void. In the view of the author, a small change in the scheme of the SMA to bring it in consonance with the judgments cited above may not even tantamount to legislation. Once the legal sanction is granted, it is unlikely that any couple would like to keep their marriage a secret and any publication then should not bother them. It will also ensure that parties to the marriage do not have to change their religion.

The author is a practicing Advocate at the Punjab & Haryana High Court with more than 18 years of standing at the Bar is a alumni of Panjab University, Chandigarh.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench