India is a place of variety, where people of all religions coexist peacefully
while adhering to the Constitution's values. Marriage is a significant event in
a person's life; it is also regarded as a sacred connection between two
individuals. In India, weddings are governed by religion-specific legislation,
such as the Hindu Marriage Act of 1955 or the Christian Marriage Act of 1872.
While there is nothing wrong with having distinct personal rules for various
religions, our Indian Constitution supports a secular society that protects
religious freedom and belief. Additionally, Article 44 of the
Constitution states that the state shall endeavour to establish a Uniform
Civil Code for Indian people.
The Special Marriage Act of 1954, which applies to
people of India irrespective of their religion can be safely inferred as an
initial step towards the Uniform Civil Code. The Special Marriage Act permits
interfaith and inter-caste marriages between two consenting adults, provided
that the male is at least 21 years old and the female is at least 18 years old.
The law is applicable to all citizens of India, regardless of their faith. It
also applies to Indian nationals residing in other nations.
Conditions to be fulfilled under the Special Marriage Act
To solemnise a marriage under The Special Marriage of 1954 certain conditions,
have to be fulfilled. Section 4 of the act enumerate these conditions:
- There must not be a living spouse of either party.
- Both parties must be capable of giving consent, i.e., they must be of
sound mind and must be fit for procreation.
- Male should be of age 21 or above and Female should be of age 18 or
- The parties must not be in prohibited degree of relation, these
relationships are enumerated in the First Schedule of the Act. Exception
to this is when a custom, which governs any of the party or both of the
party, permits the marriage between the two, then the marriage will be valid
irrespective of the prohibited degree of relation.
Process under the Special Marriage Act of 1954
The law states that the State government may appoint one or more marriage
officers for the whole or part of the concerned state. Section 5 of the
Special Marriage Act states that any person willing to solemnize his/her
marriage under this act must submit a written notice to the Marriage Officer.
The notice has to be submitted by both the parties and one of the parties must
be residing for at least 30 days in the district of the concerned Marriage
Officer. The notice is mentioned in the Second Schedule of the act.
Section 6 of the law states that the aforementioned notice has to be preserved
by the Marriage Officer and has to be affixed in a 'Marriage Notice Book' and
it is also stated that this book must be open to inspection by 'any' person who
desires for the same and that too without any fee. The law also states that a
copy of that notice must be published at any conspicuous place in the office of
the Marriage Officer.
The law also states that anyone can raise objection to the solemnization of the
marriage The notice that is published has the purpose of inviting objections (if
any). Anyone can raise objection within 30 days of the publication of the
notice, on the grounds mentioned in Section 4 of the act. If no objections
are raised within the mentioned period of 30 days, then the Marriage will be
The Marriage Officer, after receiving the objection has to
complete the investigation and arrive at a decision within 30 days, starting
from the day on which the objection was raised. The marriage will not get solemnised until the Marriage Officer arrive at a decision regarding the
objections raised. If she is satisfied that the objections raised are
reasonable and true then she can cancel or refuse to solemnise the marriage on
that ground. Any of the parties to the intended marriage can approach the
district court, which has jurisdiction on the district of the Marriage Officer,
to appeal the decision of the Officer and the order by the Officer has to
confirm to the order of the district court.
The Marriage officer while investigating is vested with all the powers similar
to civil court under Code of Civil Procedure, 1908. Also, any proceeding
occurring before him will be considered a judicial proceeding under Section 193
of the Indian Penal Code of 1860. The law also states that if the Officer
considers that the objection is not reasonable and is filed with bad motives or
malice, then she may impose a fine on the objecting party.
Further, it is necessary that to solemnize the marriage, the parties to the
marriage with 3 witnesses have to sign a declaration in the presence of the
Marriage Officer, who will also sign that declaration. It is also to be
noted that if the marriage is not solemnized within 3 months of the notice given
by the parties or within 3 months of the decision delivered by the appeal court
under section 8(2), then the Officer cannot solemnize the marriage until a new
notice has been given to him.
Void, Voidable Marriage and Divorce under Special Marriage Act of 1954
The law mentions 2 grounds for considering a marriage void, where either of the
spouses can file a petition against the other spouse on these 2 grounds,
- Any spouse was in contravention of the conditions mentioned under
section 4 of the Special Marriage Act.
- The respondent was impotent at the time of marriage and is also at the
time of the institution of the suit.
The marriage shall be voidable if 
- The respondent has wilfully refused consummation of marriage.
- The respondent was pregnant at the time of marriage by some person other
than the petitioner and the petitioner was ignorant of the fact, the
proceedings have to get started in the first year of the marriage, lastly
marital intercourse has not taken place between the couple with the consent
of petitioner after the discovery of the ground to voidability.
- The consent of either party was taken under fraud or coercion, further,
the petition must be instituted within 1 year after coercion or
alternatively the fraud had been discovered. lastly, the petitioner must not
be living with the spouse after the elements mentioned above are discovered.
The definition of fraud and coercion mentioned in the Indian Contract Act of
1872 will be consulted.
The law provides for moving a petition before the court by either of the party
on several grounds. If one of the parties had voluntary sexual intercourse with
someone other than the spouse then a divorce petition can be moved. Similarly,
if one of the parties has deserted the other party for more than 2 years, if one
of the parties is convicted for an offence that has a punishment of 7 years or
more if one of the parties is suffering from mental illness.
The law also provides provisions for placing a divorce petition by the wife on
the grounds that the husband was convicted for sodomy, bestiality or rape after
Special Marriage act of 1872 was the precursor of the 1954 act. The followers of
Keshubh Chandra Sen and the Brahmo Samaj started to demand a special law for
solemnizing marriage between different sects or believers in the Brahmo
Samaj. Henry Sumner Maine, a law member, was more than willing to support
Instead of introducing a law specifically for the 'Brahmos',
Henry introduced a pan India law that allowed any dissenter to marry of her/his
choice (This was the first draft in the series of three that will eventually
shape itself as Special Marriage Act of 1872). It was also referred to as
the Native Marriage Bill. It stated that two natives, who dissented to marry
according to the rites of religions such as Hindu, Muhammadan, Buddhist, Parsi
or Jewish could solemnize their marriage under this legislation.
invited backlash from a majority of people who considered it repugnant that
'some certain individual could refuse to perform religious rites with the help
of a legislation enacted by a colonial power'. Henry defended this decision
of including all 'natives' on two grounds, that first, the Brahmo Samaj was
still evolving and hence could not be defined for legal purposes
and second, there were people who renounced Hinduism but were not part of Brahmo
Samaj, hence making a law excluding non-followers of Brahmo Samaj would again
draw a catena of pleadings from these dissenting groups.
In 1871, J.F.
Stephen, a law member, drafted the second bill in the series which was named
'Brahma Marriage Bill'. This bill was identical to the petition and the draft
that was sent by the 'Keshubites'. It was only restricted to members of Brahmo
Samaj. This time the flak came from Adi-Brahmo Samaj, who stated that the
members of Brahmo Samaj did not renounce 'Hinduism' as a whole but only evil
practices of Hinduism. They also stated that the Government was not correct in
accepting the demands or practices of a breakaway sect.
Finally, the third
and final bill was moved to correct the above-mentioned anomalies. Although it
had minor changes but it was successfully passed into an act. It was identical
to the first draft that was proposed by Henry Maine. It also included people
who were renouncing Christianity in its ambit. The significant breakthrough was
the moderation of tone in the statute and a change in the requirement to marry
also. It went saying 'people who do not profess any religion' instead of
'objection to a particular religious rite'. This meant that the law did not
legitimize the dissenters who were against the religious rites per se but
allowed people who renounced their religion altogether to solemnize their
India threw off the colonial yoke in 1947 and turned a new leaf, in 1950 we
enacted and gave ourselves the Constitution of India which was created by our
own freedom fighters and great intelligentsias of our country. Our Constitution
acts as a guiding light while making any legislation in India, thus it is
important to understand the values of our Constitution.
In 1954, the Special Marriage Act was enacted. It is astonishing to know that
India was still a nascent democracy when the law was brought in. Independent
India was only 7 years old and the wounds of partition were still fresh. Against
this backdrop, the Nehru Government passed the secular law. It is important to
understand that our constitution promotes freedom of belief and conscience and
also promotes secularism. This law of 1954 can be understood as pursuing a
It would not be wrong to say that the Special Marriage Act of 1954 took
inspiration from the act of 1872, due to the fact that many provisions are
similar to the act, not to forget the name of the law itself. Many new
provisions were added into the act of 1954 that were present in the act of 1872.
It is also important to note that the Act of 1872 provided a provision for widow
remarriage and in that, it exempted them from taking consent irrespective of her
Changes in Special Marriage Act of 1954 in comparison to the Special Marriage
Act of 1872
The Special Marriage Act of 1954 is dissimilar to its predecessor of 1872 in
many ways. The foremost change was the removal of the condition of renouncing
one's religion to solemnize the marriage under this Act. The permissible age of
bride and bridegroom were also increased from 14 years and 18 years to 18 years
and 21 years respectively. The act of 1872 had a provision of taking consent
from the parents if either party has not completed 21 years of age for the
solemnization of marriage. The act of 1954 removed this requirement.
In the Act of 1872, the time period that was required to be completed as a
resident of the concerned district of the Registrar was 14 days. This was
increased to 30 days in the Special Marriage Act of 1954 and also the
'Registrar' became Special Marriage Officer
. Also, the time period in which
any person can raise objection to the notice published by the registrar/special
marriage officer was 14 days in the case of Act of 1872.
This time period was
also increased to 30 days in the Act of 1954. Interestingly, the justification
given for the 14-day period in the 1872 act was 'to help parents trace their
children who have eloped to marry out of their own choice' but in the Act of
1954, the reason given for a 30-day time period was to 'trace and prevent
The Special Marriage Act of 1954 also introduced provisions for divorce between
the married couple under this act, which were absent in the law of 1872. The act
of 1954 also has the section 6(2) which states that the Special Marriage Officer
shall affix every notice received at any conspicuous place in her office. This
requirement was absent in the act of 1872. Also, provisions for restitution of
conjugal rights and for judicial separation were also inserted in the
act of 1954, which were not present in the act of 1872.
Issues with the Special Marriage Act and the Response of Indian Courts
This law was framed to facilitate interfaith and inter-caste marriages but it
has now become legislation that violates certain fundamental rights of the
citizens. The law in section 4(c) prescribes a certain age limit for male and
female consenting parties to the marriage, which means that the law considers
them major and able to take decisions of their life.
But the sections 5,6 and 7
of the law annuls this provision by mentioning about publishing a notice for 30
days which essentially means that their choice or decision to marriage is being
scrutinized not only by their parents but by 'anyone' who wishes to. Also, the
fine of only 1000 rupees, which too is the upper limit, for malevolent claims is
negligible when compared to the nuisance it creates to the consenting parties.
This provision of allowing anyone to interfere in the marriage between two
consenting adults is also violative of the right to privacy. The Supreme Court
in K.S Puttaswamy vs Union of India has categorically held that the right to
privacy is also a fundamental right under article 21. In Shakti Vahini vs
Union of India the right to marry with one's choice was upheld and termed
the choice of an individual as an inalienable part of dignity.
It is a common notion in India, specifically amongst the rural population, that
a girl marrying outside her religion or caste is considered to be bringing shame
to the 'honor' of her family, which in turn, often leads to honor killings or
violence against the girl. The provisions of the act giving a 30-day period to
raise objections may lead to acts of violence against the consenting parties.
The Supreme court in Lata Singh vs State of U.P.
 was dealing with an issue
where a lady named, Lata was subject to harassment by her relatives for her
choice to marry a man outside their caste. The Hon'ble court held that Lata was
not unjustified in marrying a man outside her caste and violence or acts of
harassment must not be committed against people who are willing to carry out
such types of marriages, the most parents can do is that they may break off
their social ties with their children. The court also provided her with police
In Shafin Jahan vs Ashokan K.M
., the Supreme Court held that right to marry
is one's integral choice. The court also stated that it is not only a
fundamental right but also a human right recognized by the United Nations in its
Universal Declaration of Human Rights. The provision to display private
information of the consenting parties, the law has opened the doors for various
unwanted dabbling from different third party that may have ulterior motives.
This would hamper the freedom to marry a person of one's own choice as held
in Common Cause vs Union of India
 by the Hon'ble Supreme Court.
There are no similar provisions that mandate the publication of personal
information of the intending couples in any other personal law, except the
Indian Christian Marriage Act, 1872. Sections 6 and 7 of the Act, which provide
an opportunity to any individual to inspect the marriage notice diary that
contains private information of the consenting parties and a provision to raise
objection respectively are also peculiar and unfounded in any other statute
dealing with a similar subject matter.
There is no justification for the same. Although unreasonable classification is
prohibited under our constitution, Article 14 of the constitution states
that any reasonable classification has to pass the requirements of intelligible differentia
(must have a logical reason behind differentiation) and reasonable connection
must be rationally connected to the aim sought to be achieved) If a
classification passes both of these tests, it is determined that it does not
violate the Constitution.
If we apply the aforementioned twin-test of reasonable classification to these
provisions, we find that the only difference between people marrying under the
Special Marriage Act and other personal laws is that the former deals with
interfaith and inter-caste marriage and the latter deals with marriage between
people from the same religion. A person marrying outside her caste/religion
cannot be subject to the extinguishment of her fundamental rights.
There is no
nexus of this condition with the objective, i.e., to facilitate interfaith
marriage in India, on the contrary, this discourages interfaith marriage by
adding this cumbersome and problematic requirement to the registration of
marriage. This cannot be used as a justification for discrimination, and if it
is used as the foundation for separate legislation, it is considered
In a progressive judgement, Allahabad High Court held that publication of
notice under sections 6 and 7 is not mandatory and the intending couple can
choose whether to publish or not. It further observed that this requirement of
publication is against the fundamental rights of the individuals. Recently a
petition was filed before the supreme court against the provisions of the
Special Marriage Act that mandate publication of the notice given by the
Anti-Conversion Laws in different states
Anti-Conversion Laws or the so-called "love jihad" laws are state-level
legislation formulated to regulate religious conversions. They were first
introduced in the colonial era by various princely states to preserve or protect
the Hindu identity from forced Christian conversions. The Indian government
after independence tried to enact anti-conversion laws. First, such an attempt
was made in 1954, which failed in the lower house only. Again, in 1960 a new and
similar bill was introduced to keep a check on Hindus converting to non-indic
religion (Christianity, Islam, Zoroastrianism and Judaism). This bill also
failed to see the light of the day.
At present, these are the following states with anti-conversion laws namely:
Odisha, Uttarakhand, Arunachal Pradesh, Madhya Pradesh, Chhattisgarh, Gujarat,
Uttar Pradesh, Jharkhand, and Himachal Pradesh. These laws are broadly identical
with only slight variations. Odisha was the pioneer in introducing an
anti-conversion law in India.
These different laws around the state may have different provisions or
punishments but their main aim remains the same, that is to put a stop to
religious conversion carried out forcefully, fraudulently, by allurement or by
inducement during the marriage.
The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2020 has
inverted the principle of "innocent until proven guilty
" to "guilty until proven
" as it shifts the onus of proving oneself innocent on the accused, and
the Government has justified this mentioning that it is only the accused who has
some special knowledge to the facts and circumstances of the matter. One
more peculiar requirement of this Uttar Pradesh ordinance is that it mandates a
period of 60 days for raising objections.
In the case of Reverend Stainislaus vs State Of Madhya Pradesh
, the Hon'ble
Supreme Court while examining the constitutionality of anti-conversion laws of
Madhya Pradesh and Odisha held that right to propagate religion does not include
the right to convert under article 25 of the Indian Constitution. It upheld
the constitutionality of the two laws.
Interestingly, there has been a debate that these anti-conversion laws threaten
the secular fabric of India but we saw that the Supreme court has upheld the
constitutionality of these laws. Also, in the case Digbijay Missal vs State of
, the Orissa High court upheld the legality of sections 4 and 5 of the
Orissa Freedom of Religion Act, 1967. The Supreme court in the case of Lily
Thomas vs Union of India
 and Sarla Mudgal V. Union of India
 held that
religious conversion carried out solely for the marriage and that mala fide
intentions do not pass the muster of legal scrutiny.
Equally important is to mention Article 18 of the Universal Declaration of Human
rights, which guarentees the right to convert. It says that everyone has a
right to renounce one religion and convert to a different religion. However, it
does not provide an individual with a right to convert another person to her
religion. Also, the Anti-Conversion laws do not prohibit all religious
conversion per se, but only those which are carried out by force, allurement or
Conversion by these methods, certainly, cannot be understood as protected
under article 25 of the Indian Constitution. The Allahabad High Court in Noor
Jahan case held that marriage that is solemnized with the sole
objective/purpose of conversion, then such marriage does not hold water.
Although, the judgement delivered in the Noor Jahan case was declared as not
laying down 'good law' in the Salamat Ansari vs State of Uttar Pradesh case.
Article 25(1) mentions that everyone has a right to profess, propagate and
practise one's religion. This right is not absolute and the same Article 25(1)
subjects the abovementioned right to public order, health and morality.
Religious conversions that are carried out by allurement, fraud or force can
disturb the public order and also cannot be considered moral.
The Uttar Pradesh Prohibition of Unlawful Religious Conversion Act of 2021 gives
ample amount of time to the family and relatives to track down the consenting
couples and turn their marriage down. Further, the law prohibits marriage solely
for the purpose of religious conversion. This might be problematic since it
would give wide leeway to the officers to decide whether the marriage was solely
for conversion or not.
The Supreme Court has in Shafin Jahan vs Union of India
, affirmed that the right
to marry is one's integral choice and is a fundamental right under Article 21 of
the Indian Constitution. Also, In K.S. Puttaswamy Case the Hon'ble held that
the right to privacy is a fundamental right and the right to choose a life
partner is one of its facets.
Very recently, the Allahabad High Court noted
that the approval from district authorities is merely directive and not
mandatory, it also went on to observe that the consent of family is not
mandatory and a marriage between two consenting adults is a highly private
matter and nobody can interfere in their choice to select a life partner. In the
case of Salamat Ansari , the Allahabad High Court held that right to choose
a life with a person of one's choice is an intrinsic part of the right to life
and personal liberty and interference with the same would seriously violate the
right to freedom of choice of two individuals.
Although, the Special Marriage act and the various anti-conversion state laws
have different operations and objectives but they have a peculiar similarity.
The Special Marriage Act was implemented to cater to the needs of people who
wanted to solemnize interfaith marriages in India, whereas the anti-conversion
laws are implemented to curb the menace of unlawful or forced conversion by the
It is important to note that these laws are harsher than the
Special Marriage Act in terms of the procedure and punishment. For instance, the
Uttar Pradesh Prohibition of Unlawful Religious Conversion Act of 2021 mandates
a 60-day waiting period before the intending couples can solemnize their
marriage, whereas the Special Marriage Act provides for a 30-day time period,
which is also not very commendable but is still less tiring than that of U.P.
The Special Marriage Act is a law that was ahead of its time. It allows
interfaith marriage between two consenting adults. Although, the law has its own
share of problems, ranging from time limits to cumbersome processes. Also, we
saw that some of the provisions of this act violate the fundamental rights
enshrined in Part III of the Indian Constitution. There is a need to amend the
provisions that mandate issuing notice revealing private information of the
intending couples as it violates the right to privacy.
Also, the time period of
30-days must also be removed and the process of registration of marriage under
this act has to be made hassle-free and faster. The 30-day time period gives
ample time to the family and relatives to track the couple and stop the
interfaith marriage. The same was recommended by the 19th Law Commission in its
Also, the penalty for making mala fide objections to the marriage
must also be increased substantially to deter people from making unscrupulous
objections to cause unnecessary delay in the registration of marriage. These
modifications would assuage the concerns of many individuals and will also
increase the effectiveness of the law.
Anti-conversion laws in India are always a topic of debate. As discussed
earlier, if we see them from the perspective of the constitution and also
certain judgements of the Supreme Court and High Courts, we would find that they
are not unconstitutional. However, if we consider them after considering
judgements where the right to choose a life partner and the right to privacy is
affirmed, then these laws look problematic. There is a need to solve the
ambiguities present in these laws.
Also, it is important that the state
machinery must use these laws sparingly and not for their political gains or for
settling personal vendetta. The constitutional validity of these laws will be
judged by the Supreme Court, as the matter challenging the validity of the Uttar
Pradesh Prohibition of Unlawful Religious Conversion Act of 2021 is already
before the Hon'ble court.
- Constitution of India 1950, art 44.
- ibid, s 4.
- ibid, sch 1.
- Special Marriage Act 1954, s 5.
- ibid, sch 2.
- ibid, s 6(1).
- ibid, s 6(2).
- ibid, s 7(1).
- ibid, s 7(2).
- ibid, s 8(1).
- ibid, s 8(2).
- Special Marriage Act 1954, s 9(1).
- ibid, s 9(2).
- ibid, s 11.
- ibid, s 14
- ibid, s 24.
- ibid, s 25.
- ibid, s 27(1)(a)- (1)(e).
- Ibid, s 27(1A).
- Mody, P., Love and the Law: Love-Marriage in Delhi Modern Asian Studies,
vol. 36, no. 1, (2002), p. 228.
- ibid, 229-230.
- ibid, 229.
- ibid, 231.
- ibid, 232.
- ibid, 232.
- ibid, 234.
- Special Marriage Act 1954, s 22.
- ibid, s 23.
- K.S. Puttaswamy and Another v. Union of India and Others (2017) 10 SCC 1.
- Constitution of India, art 14.
- Shakti Vahini vs Union of India (2018) 7 SCC 192.
- Lata Singh vs State of Uttar Pradesh AIR 2006 SC 2522.
- Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368.
- Common Cause v. Union of India (2018) 5 SCC 1.
- Constitution of India, art 14.
- Safiya Sultana v. State of U.P. 2021 SCC OnLine All 19.
- Amit Jaiswal, 'Special Marriage Act and anti-conversion Ordinance: Cause
and effect relationship, judgment by Allahabad High Court, and a few
suggestions' (Bar and Bench,14 February
- James Andrew Huff, Religious Freedom in India and Analysis of the
Constitutionality of Anti Conversion Laws, 10(2) Rutgers J. L. & Religion 1,
4 (2009), http://www.lawandreligion.com/sites/lawandreli
gion.com/files/A10S-6Huff.pdf , archived at https://perma.cc/7Z7Y-9U8Q.
- Aniruddha Shrivastava, An Analysis of Anti-Conversion Laws in India, (2021)
- Manimugdha S Sharma, 'History of Anti-Conversion laws in India' Times of
India (29 November,
- Utkarsh Anand, ''For collective good': UP defends 'love jihad'' Hindustan
Times (New Delhi, 8 January
- Rev. Stainislaus vs State Of Madhya Pradesh 1977 AIR 908.
- Constitution of India, Art 25.
- Digbijay Missal vs State of Orissa AIR 2015 Ori 36.
- Lily Thomas vs Union of India (2000) 6 SCC 224.
- Sarla Mudgal vs Union of India (1995) 3 SCC 635.
- International Covenant on Civil and Political Rights (adopted 16
December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 18.
- Noor Jahan Begum @ Anjali. vs State Of U.P. MANU/UP/2907/2014.
- Salamat Ansari and Ors vs State of Uttar Pradesh and Ors 2020 SCC OnLine
- K.S. Puttaswamy and Another v. Union of India and Others (2017) 10 SCC 1.
- Omar Rashid, 'Allahabad High Court bats for interfaith couples' (The
Hindu, 19 November 2021) https://www.thehindu.com/news/national/other-states/marriage-registrar-cannot-withhold-registration-insisting-on-conversion-approval-by-authorities-says-allahabad-hc/article37574074.ece.
- Salamat Ansari and Ors vs State of Uttar Pradesh and Ors 2020 SCC OnLine