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The Stagnant State Of The Special Marriage Act, (1954)

Considering the fact that India is well known for its cultural diversity with numerous groups of people from different backgrounds co-existing with each other, as well as the state's secular values, it follows that a congregation of legislature must exist to facilitate such co-existence.

When the Special Marriage Act (SMA)was enacted in 1872 by the British Government, it was the result of push by the Brahmo Samajists who refused to get married under Hindu rites[1]; they were a group of upper caste Bengali Hindus whose mission was to change the face of Hinduism in the 19th century[2].

However, the SMA of 1872 also provided that, in order to register a marriage under this act, the parties must not profess any of the mainstream religions that pervade Indian society[3]. This, according to Rao, was one of the first steps toward removing the restrictions on marriage from different religions[4].

After independence, the Act was passed once again in 1954 allowing the solemnization of marriages between "any two persons"[5]. It is important to keep in mind that the sole purpose of the SMA was not to cater to those looking to get married outside of their religion or caste; since the SMA does not require any religious ceremonies, any couple merely looking to forgo the traditional rituals would find convenience in registering under it.

Over the decades, however, a myriad of problems has arisen in the functioning of this statute. For instance, there have been significant numbers of honor killings as well as stress faced by couples who, in certain cases, do not end up solemnizing their marriage (as discussed later). As one examines the scheme of the SMA more closely, it becomes evident that such problems are rooted in the SMA itself, and that certain provisions of the statute must be reconsidered.

Inconvenient Notice Period
The first issue we find with the SMA is the inconvenience caused by the length of the procedure for application. The parties must notify a marriage officer of their intention to get married, following which they must wait a period of 30 days before their marriage is registered[6]. This results in a significant delay in marriage for any couple intending to get married under the Special Marriage Act. Furthermore, during this period, a notice of the couple's marriage is published conspicuously for the general public to see[7].

If one of the parties is not a permanent resident of the district of the marriage office whom they are notifying, a notice would also be sent to a marriage officer in their place of permanent residence for publication[8]. Anyone can object to the intended marriage and, as a consequence, the marriage officer would have to investigate such objection to ensure whether it holds true or not[9].

Therefore, the waiting period becomes the initial 30 days of notice period plus an additional 30 days for the marriage officer to investigate any objections. This essentially provides scope for an endless submission of objections from anyone who happened to see the published notice and an endless waiting period.

Socio-political Status Quo
As we know, Indian society has rigid expectations when it comes to marriage. The restrictions on marriage can be divided into 4 points.
  1. First, we have the notion that a child, after growing up, honors and shows devotion to his/her parents by marrying an individual they choose. The following quote from honorary magistrate Lachmi Narain illustrates this well,

    When ... the uneducated respectable people of all classes and creeds, that their daughters have legal liberty to go to the Registrar and declare to marry a man of any caste or religion in an open kachari [court], without the consent of their parents or guardians, they will unquestionably practice infanticide. [...] Parents would rather kill her in her cradle than allow, when of age, to disgrace the family[10].
  2. Second, we have the concept of marriage being synonymous with union between two families rather than between two individuals[11]. This is a feature not only of Hinduism but also Islam. In both religions, one family gifts the girl to the boy[12]. In Islam, this is a contract, while in Hinduism, it is a sacrament for the union of two souls[13]. Any marriage that falls outside such an arrangement would be viewed as inappropriate.
  3. Third, we have marriages that fall under the categories of inter-religion, inter-caste, and the like[14]. There is a strong social stigma associated with marrying outside of one's caste, wherein it is a disgrace to a higher caste family if their child were to marry someone from a lower caste. Furthermore, the emergence of theories such as that of love jihad[15] tells us how problematic it is for marriage between Hindus and Muslims. Hindus have also classified some marriages as prohibited entirely, such as sapinda and sagotra[16].
  4. Lastly, 'love marriages' are considered to be lustful and immoral, as opposed to the good and moral way of having the parent's consent and going through the relevant rites and ceremonies. In fact, this condemnation is an ancient feature of Hinduism, wherein 'Gandharva' marriage, a form of marriage in which any two lovers who choose each other can marry without the consent of their parents, is considered to be immoral.

Undesirable Combination of the Two
Considering the social climate of the country, we can see why the abovementioned provisions of the SMA can be all the more problematic. Naturally, the couples that fall within these less approved categories of society would look to the SMA to get married, only to be met with the provision that the notice of their marriage would be published in their place of permanent residence.

Furthermore, they are forced to endure one month of apprehension about people from a specific caste or religion harassing them or even attacking them. Even after their marriage is registered, they are still open to such insecurity since their information has already been published. In some cases, the mere spreading of a rumour, and even the victims of sexual assault are subjected to violence, sometimes even death, by their own family so as to not bring dishonour to the community/family[17].

The phenomenon of honour killings is not only propagated by khaps in village areas, but is also seen among educated people in cities[18]. It has reached the point of being on par with the mafia wherein networks of people actively seek out and interfere with the lives of such couples through a community effort[19]. In fact, the Law Commission proposed a bill to include such killings under section 300 of the IPC[20]. The public notice of marriage with all the information of the couple would only enhance the capacity for such crimes tenfold, not only by the respective families of the couple but also by anyone who happens to see the notice.

Legislation is Unclear of its Intentions
The SMA, from its first enactment in 1872 to the second in 1954 has been subjected to rigorous political forces and discussion[21]. As mentioned previously, it was first considered upon the protests of the Brahmo Samaj during colonial rule[22]. However, as it went through the Governer General's Legislative Council, the focus was quickly taken away from the Brahmo Samajists[23]. It was declared that making a provision only for a specific group of people would warrant an endless influx of requests from other such groups as well[24]. Instead, the British legislators decided to pass an Act that facilitated marriage for those who renounced their religion entirely[25].

Essentially, the fear was that an Act that allowed people to get married freely, i.e civil marriage, would erode the fabric of Indian society since the sacrament of marriage was now being presented as a civil procedure[26]. Over the course of nearly a hundred years several attempts were made to curtail the liberal provisions of the act.

For instance, suggestions were made to the effect of curbing the rights of the couples when it comes to adoption, allowing the father of a son who marries into another religion to adopt a son for the performance of last rights, curbing the claims of a man who marries into another religion toward his Hindu joint family, etc[27]. Towards the end, there were also suggestions of not only publishing notice of the marriage in newspapers, but also sending a notice directly to the parents of the couples[28].

Effect of this Conflict on Current Legislature
During the enactment of 1872, the explicit reasoning behind the provision of notice period was the deterrence of couples that run away from home[29]. Initially, a 14 day period was suggested[30]. However, this was increased on the grounds that it would be too easy for couples to run away from their homes and get married.

As we know, the same provision exists in the 1954 version of the Act; however, the reasoning behind the second version was the deterrence of bigamous marriages[31]. Another addition to the 1954 version of the SMA is the requirement that at least one of the parties to marriage should have resided in the district of application for 30 days or more; this provision was not in the 1872 version[32].

As we can see, there are significant problems with the legislature. The idea for the Special Marriage Act had started out with a specific intention, but the final product was the result of multiple objects, resulting in the enactment being steered in a different direction altogether. It was more of a desperate attempt to find some sense of balance between the liberals and conservatives amidst which the practical impact on the people seems to have been forgotten.

The intention of the legislature seems to have been to allow for civil marriage procedures; however, as couples who register themselves under the Act discover, certain provisions are actually set out to prevent the same.

An important area of consideration here is the violation of the Constitution. As per the provisions of the SMA, the couple's complete information including their names, age, occupation, address, length of residence, etc are displayed publicly and conspicuously.

This is violative of the right to privacy which has been declared as a fundamental right under Article 21 by the Supreme Court in the case of KS Puttuswamy v. Union of India[33]. This is all the more problematic, considering the above discourse on the current socio-political climate of the nation, as well as the emphasis on data crime today[34]. These crimes occur on digital platforms and are protected by the Information Technology Act, 2000. However, in the present case, no illegal attempts to acquire data are necessary; they are conveniently displayed at the Marriage Officer's office.

Additionally, the provision that anyone is permitted to raise objections against the pending marriage is violative, not only of the right to privacy, but also that of freedom and expression[35]; people should be allowed to marry any individual they choose.

Safiya Sultana v. State of UP[36]
The case of Safiya Sultana v State of UP was one of the first judgements to criticise the SMA. In this case, an inter-religion couple who had registered their marriage under the Hindu Marriage Act (HMA), deviating from the issues before the court, complained about the problems with the SMA and how they were deterred from registering their marriage under the same.

They declared that, had they availed the SMA, their privacy would definitely have been invaded, and surely would have been harassed by various social groups who are against inter-religious marriage. The court proceeded to take on an extensive discussion, obiter nonetheless, as to the unconstitutionality of the SMA. After examining at length the various rules regarding privacy and marriage in India, two conclusions were reached.
  1. Notice Period Violated Right to Privacy:
    If there are any violations of section 4 of the SMA, they can be dealt with later on through court proceedings. Therefore, the waiting period is entirely unnecessary. As a solution, the court offered that the notice period could be made optional for couples looking to register their marriage.
  2. Inequality of procedure:
    The personal laws also have restrictions on marriage. However, they have no waiting period and give couples quick marriages. Therefore, it is a violation of the fundamental right to equality.
However, making the notice period optional would render it pointless since no couple would want their information to be distributed publicly.

Shafin Jahan v. Ashokan K.M[37].
The problems of unconstitutionality were also echoed in the case of Shafin Jahan v Ashokan K.M. Herein, the High Court had agreed with the Hindu father's contention that his daughter had been forced to convert to Islam and marry a Muslim man, annulled the marriage, and sent the daughter back to her father's house.

The Supreme Court criticized this judgement and reversed it entirely. It was declared that choosing a spouse is an essential part of making decisions toward building one's personhood and identity. While the law does regulate marriage by classifying the required conditions for it and setting up remedies during circumstances of failure, the choice of partners is one avenue that is nobody's to dictate except the two people involved.

This was not the only significant source of criticism for the Act. In a consultation paper in 2012, the Law Commission of India proposed to do away with the 30 day notice period entirely[38]. Discussing the issue of rising numbers of honour killings in society, the Commission suggested that in addition to regulating the unlawful assemblies involving panchayats and the like, the Special Marriage Act should be amended to remove the waiting period before the registration of marriage.

Article 44 of the Constitution envisions a Uniform Civil Code (UCC) for all the citizens of India[39]. Today, there is only a handful of legislation that conforms with this concept, the SMA being a prominent participant. Therefore, it may be argued that this is what gives the SMA value and that for this reason, the statute must be preserved. However we must examine the strength of the SMA as a statute in determining the extent to which it really does justice to the UCC.

It is true that the SMA is the only legislation that provides people with an alternative to the traditional forms of marriage. In the personal laws of India, such as the Hindu Marriage Act, 1955, Muslim Personal Law, etc, there are no provisions for people from different faiths to marry each other. This bolsters Article 25 of the Constitution since. It also echo's the one law for all call of the UCC.

Registration of marriage is an essential element of the SMA, unlike its personal law counterparts. In the latter, people face a myriad of problems when it comes to upholding their rights. A good example is the problem of bigamy that has plagued Hindu marriages. Herein, the ceremonies of Homa and Saptapadi are the essentials of marriage[40].

Unless these are proved, a marriage cannot be proved[41]. As a result, there have been several cases in which men leave their first marriage and remarry[42]. However, the first wife fails to take legal action due to the sheer difficulty of proving that the second marriage did in fact occur[43]. In some cases, the validity of her own marriage is questioned, and the case thrown out[44]. The second wife also struggles to enforce her rights for the same reasons[45]. This problem is curbed under the SMA.

Living up to the UCC
Despite the benefits it offers and its parallels with the UCC, the SMA does not come close to the idea of an effective UCC. One of the significant challenges that legislators must tackle if they intend to implement a UCC is to make a law that appeases all groups of society since it would be mandatorily applicable to everyone regardless of their religion or any other social identity[46]. The SMA, on the other hand, is optional for couples[47].

Moreover, it is a rather unpopular route for marriage; only 8,292 marriages were registered in 2020 under the SMA as opposed to the 108,523 under the HMA[48]. Another issue is that the UCC is purported to provide substantive laws and guidelines, while the SMA simply provides procedural instructions[49]. For example, only guidelines for the procedure related to property division are given rather than actual rules as to the division of property[50]. For the latter, the SMA directs us back to personal law[51].

We must also examine the current state of Constitutionality. In 2018, the Law Commission of India observed that the UCC "neither necessary nor attractive at this stage"[52]. It was argued that conflict among the personal laws does not necessarily have to be resolved through the abolition of all forms of difference.

Rather, according to the Commission, the problem must be dealt with head on by making amendments to the discriminating laws that are creating problems. In its recommendations, the Commission not only furthered their contentions through changes to the specific areas of personal law, but also added that the 30 day notice must be deleted. This stance of the Commission further pushes the substance behind the SMA into the dirt.

As we have established from the discussion thus far, the existence of the SMA as a statute creates problems from multiple angles. By itself the provisions are inconvenient in that they make couples wait for a significant period of time to get their marriage registered. This is also unconstitutional since such a provision is not to be found in any other laws of marriage. In addition to this, the provision simultaneously adds fuel to the fire of today's socio-political climate by facilitating communal violence and harassment. The problem erodes the Constitution further by curtailing the rights of people to choose their spouse.

In searching for success of the SMA in other areas, we are further disappointed; the representation of Article 44 of the Constitution is only an illusion. In reality, the essence of the SMA does not match that of the UCC. Ultimately, it is evident that a long journey of reform is awaiting the Act, especially considering that the reasoning behind the legislation is not concrete and congruent.

Since making the notice period optional would be pointless, it should be removed entirely. As the Safiya Sultana judgement observed, violations of the Act can be dealt with by the officer in charge at any later time. This step must be taken even if other problem areas are ignored. Otherwise, the SMA is simply a statute that lures people who see it as their only option, only to make them jump through hoops.

  1. T.S. Rama Rao, 'Conflict of Laws in India' (1958) 23 (2) Zeitschrift f�r ausl�ndisches und internationales Privatrecht 259, 264
  2. Nandini Chatterjee, 'English Law, Brahmo Marriage, and the Problem of Religious Difference: Civil Marriage Laws in Britain and India' (2010) 52 (3) Comparative Studies in Society and History 524, 529
  3. Ibid
  4. T.S Rama Rao
  5. Special Marriage Act 1954, s4
  6. Ibid s5
  7. Ibid s6
  8. Ibid s6
  9. Ibid s8
  10. Perveez Mody, 'Love and the Law: Love-Marriage in Delhi' 36 (1) Modern Asian Studies 223
  11. S. Nambi, 'Marriage, mental health and the Indian legislation' 47 (1) Indian Journal of Psychiatry 3
  12. Perveez Mody
  13. Ibid
  14. Lauren A. Corwin, 'Caste, Class and Love-Marriage: Social Change in India' 39 (4) Journal of Marriage and Family 823
  15. Charu Gupta, 'Hindu Women, Muslim Men: Love Jihad and Conversions 44 (51) Economic and Political Weekly 13
  16. Arun Laxmanrao Navalkar v Meena Arun Navalkar AIR 2006 Bom 342
  17. Yogesh Dharangutti, 'Prevention of Honour-Killings via The Special Marriage Act 6 (3) Journal of Positive School Psychology 3235
  18. Ibid
  19. Ibid
  20. Law Commission, Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework (No. 242, 2012)
  21. Yogesh Dharangutti
  22. Nandini Chatterjee
  23. Perveez Mody
  24. Ibid 229
  25. Ibid 232
  26. Ibid
  27. Ibid
  28. Ibid
  29. Yogesh Dharangutti
  30. Ibid 3239
  31. Perveez Mody 234
  32. Yogesh Dharangutti 3240
  33. AIR 2018 SC 237
  34. Suraksha P, 'More than 3500 people arrested in over 14000 cybercrime complaints in 2021' (Economic Times, 7th Dec 2022)  <> accessed 16 April 2023
  35. Constitution of India 1950, art 19 (1)(a)
  36. AIR 2021 Allahabad 56
  37. AIR 2018 SC 1933
  38. Law Commission 24
  39. Constitution of India 1950
  40. Hindu Marriage Act 1955, s 7
  41. Flavia Agnes, 'Hindu Men, Monogamy and Uniform Civil Code' 30 (50) Economic and Political Weekly 3238
  42. Ibid
  43. Ibid
  44. Ibid
  45. Ibid
  46. Brijraj Deora, 'SPECIAL MARRIAGE ACT (1954) AS A PRECURSOR OF UNIFORM CIVIL CODE' CNLU LJ (9) 2020-21 234, 262
  47. Ibid
  48. Department of Stamps and Registration <> accessed 16 April 2023
  49. Brijraj Deora n 241
  50. Ibid
  51. Ibid
  52. Krishnadas Rajgopal, 'Uniform civil code neither necessary nor desirable at this stage, says Law Commission' (The Hindu, 31 August 2018)

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