Introduction
In the month of May this year, two starkly contradictory judgements have been delivered on the interpretation of Special Marriage Act (SMA) and personal laws which can have significant bearing on interfaith couples intending to marry under SMA and seeking police protection. On May 27, the Jabalpur bench of Madhya Pradesh High Court gave a verdict rejecting the police protection plea of the interfaith couple facing threats from family members and intending to marry under SMA. The verdict written by Justice G.S. Ahluwalia said that under Muslim personal law, a marriage between a Muslim man and a Hindu woman would be invalid/irregular (fasid) unless a Hindu woman converts to Islam (or Christianity or Judaism) and the provision under Section 4 of the Special Marriage Act provides that “if the parties are not within prohibited relationship then only marriage can be performed.” Thus, the court interpreted invalid/irregular marriage (fasid) as prohibited relationship under Section 4 of the SMA. Notably, in this case, the man and woman had filed an affidavit submitting that neither of them intends to convert their faith and they will continue to follow their existing faith.
On May 14, the Allahabad High Court bench of Justice Jyotsna Sharma delivered a separate order on the petition of the interfaith couple seeking police protection plea to avoid unwanted interference by the relatives and directed the police to ensure that police protection is provided to the interfaith couple. The couple had prayed to the court that they intend to marry each other under Special Marriage Act (SMA) without converting their religion. Furthermore, the petitioners claimed that they are unable move freely and complete their marriage registration process under SMA due to threats faced by them from the relatives and anti-social elements.
The prosecution had opposed their plea, arguing that the couples got married as per marriage agreement, which is not recognised in law, and therefore, no protection can be given. While the judge agreed with the prosecution that “marriage through agreement is definitely invalid in law”, she also said that “However, law does not prevent the parties from applying for court marriage under the Special Marriage Committee, without conversion.” Thus, the court effectively provided an interim relief to the petitioners who were living in live-in relationship as husband and wife by providing police protection to them even as it asked the petitioners to solemnise their marriage under SMA by the next date of hearing, i.e., July 10. The judgement made it clear that interfaith couples can marry under Special Marriage Act, without relying on any personal law, provided they do not intend to convert their religion.
The problematic interpretation of Madhya Pradesh High Court regarding SMA and personal laws
The Special Marriage Act, 1954 (SMA) was enacted with the specific purpose of allowing interfaith and interreligious couples to marry and register their marriage as such without relying on the parties’ respective personal laws, which are broadly speaking conservative and restrictive, and directly or indirect aimed at ensuring endogamy. The statement of objects and reasons for the SMA Bill had noted that the purpose of the Bill is “to provide a special form of marriage which can be taken advantage of by any person in India and by all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess.” Resultantly, the MP High Court verdict flies in the face of the objectives of the SMA, and furthermore, its interpretation of Section 4 of the SMA is flawed as reported by ThePrint. Section 4(d) of the SMA states that special marriage can be solemnised under the Act, provided that “the parties are not within the degrees of prohibited relationship”. It also explains that “where a custom governing at least one of the party’s permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship”. Thus, the provision clearly reveals its facilitative and liberal nature unlike the restrictive one interpreted by the court. Significantly, speaking with the lawyers on the subject ThePrint found that “prohibited relationship” as mentioned in Section 4 of the Act has nothing to do with “difference in religion” as interpreted by the court, but it is instead aimed at restricting marriages among blood relatives or consanguine relationships. Thus, the court has wrongly interpreted “prohibited relation”, which does not include inter-religious relationships.
Moreover, the court has heavy relied on Muslim personal law to reject the petitioners’ plea and conclude that interfaith couple cannot marry under SMA under the woman converts to Islam. The court’s reasoning in this case is based on Muslim personal law, which classifies marriage into three distinct categories, namely, valid (sahih), invalid (fasid), and void (batil). While batil marriages are unlawful ab-initio and irremediable, fasid marriage are invalid/irregular due to extraneous circumstances and can be remedied to make it valid. In the present case, the only way to remedy the invalid marriage under Muslim personal law would have been for the girl to convert to Islam (or Christianity or Judaism), but this cannot take place, as the couple had already informed the court about their decision to not change their religion. As a result, the court concluded that marriage under personal law would not be possible in the present case, and given the court’s interpretation about Section 4 of the SMA, it noted that the petition cannot be maintained as the valid marriage cannot take place due to non-compliance with the provisions of the Muslim personal law and SMA. The judgement reads, “marriage under Special Marriage Act would not legalise the marriage which otherwise is prohibited under personal law. Section 4 of Special Marriage Act provides that if the parties are not within prohibited relationship then only marriage can be performed.”
The verdict cites Mulla Principles of Mahomedan Law to underline the issue of prohibited marriage due to “Difference of religion” in the personal law and quotes from multiple editions of Mullah to underscore that “(1) A Mahomedan male may contract a valid marriage not only with a Mahomedan woman, but also with a Kitabia, that is, a Jewess or a Christian, but not with an idolatress or a fire-worshipper. A marriage, however, with an idolatress or a fire-worshipper, is not void, but merely irregular.” It further states that “since Hindus are idol worshippers, which includes worship of physical images/statues through offering of flowers, adornment, etc., it is clear that the marriage of a Hindu female with a Muslim male is not a regular or valid (sahih) marriage, but merely an irregular (fasid) marriage.” Additionally, the order also states that as per the Muslim personal law, fasid marriage has no legal effect before consummation, and even after consummation, it creates no legal rights of inheritance between husband and wife.
Apart from undue and excessive reliance on the personal law, the judge also rejected the argument raised by the petitioners that since they want to perform marriage under the Special Marriage Act, Nikah would not be required under the personal law. Moreover, it did not address the Supreme Court judgement in the case of Lata Singh Vs. State of U.P. (Writ Petition (Crl.) 208 of 2004), which the petitioners relied on to seek police protection.
As the court dismissed the petition it said that “As per Mahomedan law, the marriage of a Muslim boy with a girl who is an idolatress or a fire-worshipper, is not a valid marriage. Even if the marriage is registered under the Special Marriage Act, the marriage would be no more a valid marriage and it would be an irregular (fasid) marriage.” Curiously, it also brought up the issue of live-in relationship and said that “It is not the case of petitioners that in case if marriage is not performed, then they are still interested to live in live-in relationship. It is also not the case of petitioners that petitioner No.1 would accept Muslim religion.”
The Madhya Pradesh High Court judgement may be read here:
The Allahabad High Court judgement may be read here:
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