India is a diverse country where people of all faiths coexist peacefully while upholding the ideals of the Constitution. Marriage is a significant event in a person's life and is considered a holy bond between two people. Marriages in India are governed by religious laws such as the Hindu Marriage Act of 1955 and the Christian Marriage Act of 1872.
While there is nothing wrong with having different personal standards for other religions, our Indian Constitution promotes a secular society that safeguards religious freedom and belief. Furthermore, Article 44 of the Constitution mandates that the State works develop a Uniform Civil Code for Indians.
The process under the Special Marriage Act of 1954
The Special Marriage Act of 1954, which extends to all Indians regardless of faith, can be reasonably assumed to be a precursor to the Uniform Civil Code. The law applies to all Indian citizens, irrespective of their religious beliefs. It also applies to Indian citizens who reside overseas. The Special Marriage Act allows for interfaith and intercaste marriages between two consenting adults, as long as the male is at least 21 years old and the female is at least 18 years old.
According to the legislation, the state government can designate one or more marriage officials for the entire or portion of the State. Any person wishing to solemnize their marriage under the Special Marriage Act must serve a written notification to the Marriage Officer according to Section 5 of the Act. Both parties to the marriage must file the notification, and one of them must have lived in the district of the relevant Marriage Officer for at least 30 days. This notification is included in the Act's Second Schedule.
Section 6 of the Act specifies that the notification mentioned above must be retained by the Marriage Officer and journaled in a 'Marriage Notice Book' and that this book must be available for examination by 'any' person who wishes to do so without charge.
The Act also stipulates that anybody can object to the marriage being solemnized. After receiving the objection, the Marriage Officer has 30 days to conduct the inquiry and reach a conclusion, beginning when the objection was submitted. The marriage will not be solemnized until the Marriage Officer decides on the expressed concerns. Under the Code of Civil Procedure, 1908, the marriage officer has all the powers of a civil court while investigating. Also, under Section 193 of the Indian Penal Code of 1860, any procedure before him shall be deemed a judicial process.
Furthermore, to solemnize the marriage, the parties must sign a statement with three witnesses in the presence of the Marriage Officer, who will also sign the declaration. Suppose the marriage is not solemnized within three months after the parties' notice or within 3 months of the appellate court's ruling under section 8(2). In that case, the Officer will not be able to do so until a new notice is submitted to him.
Void and voidable marriage under the Special Marriage Act
The Act specifies two reasons for declaring a marriage null and invalid, on which any spouse may submit a petition against the other spouse, namely:
- Any partner violated the requirements set out in Section 4 of the Special Marriage Act. The respondent was impotent at the time of the marriage and continues to be so when the complaint is filed.
- If the respondent has intentionally refused to consummate the marriage, the marriage is voidable.
- The respondent was pregnant by someone other than the petitioner at the time of marriage, and the petitioner was unaware of it; the proceedings must begin within the first year of the marriage; and, finally, marital intercourse has not taken place between the couple with the petitioner's consent after the discovery of the ground for voidability.
- The permission of either party was obtained via fraud or coercion, and the petition must be filed within one year after the coercion or the discovery of the deception. Finally, when the conditions mentioned above are identified, the petitioner must not be living with their spouse.
The statute allows any party to file a divorce petition with the court for various reasons. A divorce petition can be filed if one of the parties has consensual sexual intercourse with someone other than their spouse. Similarly, if one of the parties has abandoned the other for more than two years, if one of the parties has been convicted of a crime that carries a sentence of seven years or more, or if one of the parties has a mental disorder.
The legislation also allows the wife to file a divorce petition because her husband was convicted of sodomy, bestiality, or rape after their marriage.
Special Marriage Act of 1954 and the Special Marriage Act of 1872
In many aspects, the 1954 Special Marriage Act differs from its predecessor in 1872. The most significant change was eliminating the requirement to renounce one's faith to solemnize a marriage under this Act. The permissible ages for the bride and groom were also raised from 14 to 18 and 21 years, respectively. If either partner has not reached the age of 21 for the solemnization of marriage, the legislation of 1872 included a clause requiring parental approval. The 1954 statute repealed this provision. The time period necessary to be completed as a resident of the Registrar's concerned district was 14 days under the Act of 1872. The Special Marriage Act of 1954 raised this to 30 days, and the Registrar was renamed Special Marriage Officer. In addition, under the Act of 1872, any individual had 14 days to file an objection to a notice issued by the registrar/special marriage officer. The Act of 1954 further expanded the time limit to 30 days.
Issues with the Special Marriage Act and Indian Courts' Reactions
This law was created to make interfaith and intercaste marriages easier, but it has now evolved into legislation that infringes an individual's fundamental rights. Section 4(c) of the legislation establishes an age limit for male and female consenting parties to the marriage, indicating that the law considers them adults capable of making life decisions.
However, Sections 5, 6, and 7 of the legislation nullify this provision by referencing the publication of a notice for 30 days, implying that their decision to marry is evaluated not just by their parents but by "anyone" who desires to.
In K.S Puttaswamy v. Union of India, the Supreme Court ruled unambiguously that the right to privacy is a basic right under Article 21. The right to privacy is also violated by this clause, which allows anybody to meddle in a marriage between two consenting adults. The freedom to marry with one's choice was supported in Shakti Vahini v. Union of India, and a person's decision was described as an essential aspect of dignity.
The Special Marriage Act was a forerunner of its time. It permits two consenting individuals from different religions to marry each other. The legislation, however, has its own set of issues, ranging from time constraints to lengthy procedures. Specific clauses of this legislation violate the Indian Constitution's Part III, which protects fundamental rights. The regulations that require providing notices exposing private information about married couples should be amended since they violate the right to privacy.
Additionally, the penalty for making false objections to a marriage should be significantly enhanced to dissuade persons from filing false objections and causing unnecessary delays in marriage registration. Many people's worries would be alleviated by these changes, improving the law's efficacy.
Anti-conversion legislation is a hot subject in India. As previously said, if we examine them in light of the Constitution and certain Supreme Court and High Court decisions, we will determine that they are not unconstitutional. However, when we evaluate them in light of recent court decisions upholding the freedom to select one's life partner and the right to privacy, these regulations appear to be problematic. It is necessary to resolve the ambiguities in these laws.