Introduction
The Special Marriage Act of 1954 aims to replace the Special Marriage Act of 1872 to offer a special form of marriage accessible to any person in India. The words “any person” provide a wide ambit, remedial to the aggrieved masses by the personal laws. Marriages through the Special Marriage Act occur between persons of different faiths, groups or communities. Although the prima facie need and the explicit mention of the said legislation have been provided, in the middle of 2024, some seventy years after the law was made, the need to discuss the same persists. In light of the facts stated, the article will analyse the judgment of Sarika Sen v. State of Madhya Pradesh by the Madhya Pradesh High Court Jabalpur bench by Justice G.S. Ahluwalia, highlighting an issue relating to the Special Marriage Act and personal laws.
The Judgment of Madhya Pradesh High Court
The debate about the provisions of a special act in contravention of personal laws is not new to Indian jurisprudence. It rolls back to the 2022 incident when the issue was raised between the Prevention of Children from Sexual Offences Act (POCSO) and Personal Laws, which is still awaiting a judgment under the Supreme Court stamp. The case this time revolves around interfaith marriages. The incident involves a Hindu woman and a Muslim man who sought to register their marriage under the Special Marriage Act (SMA), for which they gave a notice under Section 5. However, their families raised objections, as per Section 7. They then came to the court for police protection from their families. The court declined to grant the couple protection, as even if the marriage could be registered under SMA, it would be fasid (invalid/irregular) under Muslim personal law. The court also used some case laws to support its reasoning, which the article delves into.
Critical Analysis of the Justice Ahluwalia Lens
A judgment of 2019 of the Apex Court of Law in India in the case of Mohammed Salim v. Shamsudeen received the highest precedence in the present case to answer the res integra of marriage validity between a Hindu girl and a Muslim boy. The facts of this case were that Mohammad Ilias was married to Saidat and later married Valliamma. The dispute was registered due to the property and inheritance rights as it was claimed that Valliamma is not a legally wedded wife of Md. Ilias as she was a Hindu ((e) difference of religion). The judgment quoted the 21st edition of Mulla and defined marriage (nikah) as a civil contract in Islamic Law, wherein a Mahomedan male cannot marry a fire-worshipper or idolatress. If so, the marriage will be fasid and not batil (void), as conversion may remove the objection.
However, this case does not involve the SMA, as it was never claimed that the couple married through it; secondly, as Md. Ilias was already married to Saidat under Islamic Law; he could not marry anyone under Section 4(a) of SMA, and thus, the judgment is appropriate in its reasoning not to view the marriage with Valliamma any other ambit but Islamic Law.
The paragraphs of judgments of High Courts during the pronouncement of Md. Salim v. Shamsudeen was cited again in the recent case. They were Aisha Bi v. Saraswathi Fathima and Ihsan Hassan Khan v. Panna Lal; however, without delving into the intricacies, they cannot be used as precedent in both these cases, as neither these involved marriages under SMA, nor the alleged Hindu women being the Muslim men’s first wives.
Section 4 of SMA seeks that marriages can only be performed if not within the purview of a ‘prohibited relationship’. The proviso in the Section and the definitional clause in the act, Section 2 (b), explains the prohibited relationship listed in the First Schedule, which has nothing to do with case or religion but blood relationships.
The judgment in Muskan Singh v. State (NCT of Delhi) noted that the right to marry is fundamental to human liberty. It emphasised that the right to marry a person of choice is highlighted in the Universal Declaration of Human Rights and is also a key element of Article 21 of the Constitution of India. In Supriyo v. Union of India (2023), it was further interpreted that, although the Constitution does not explicitly recognize a fundamental right to marry, many constitutional values, including the right to life and personal liberty, encompass the value of marital relationships. These values, at the very least, involve respect for an individual’s choice regarding whether and when to enter into marriage and the right to choose a marital partner. Similarly, in Shafin Jahan and Shakti Vahini, the court held that no state or non-state entity could interfere with the right to marry and that religion and caste should not obstruct a person’s right to choose whom to marry. In the present case, the couple would not be protected as the marriage would be irregular just because the petitioner denied conversion or live-in. The order is unjustified as it indirectly impedes the couple from marrying under SMA.
The pronouncement also failed to analyse the petitioners’ submission that the Special Marriage Act would override personal laws. Thus, the marriage would not be invalid or irregular as the judgments the court cited were considering cases related to marriage under Islamic Law, even though one of the spouses was a Hindu. However, the present case in front of the Madhya Pradesh High Court stands distinct because the plea is for marriage under the provisions of the Special Marriage Act and not under Islamic Law. The SMA in Section 4 states, “Notwithstanding anything contained in any other law for the time being in force relating to the solemnisation of marriage.” Thus, the legislation incorporated in 1956 itself clarifies that the Special Marriage Act would override any other law to perform marriage between ‘any two persons.’ Therefore, Nikah is not required (as submitted by the petitioners) in this case, and if so, then there exists no need to match rules and make it in consonance with the Islamic Law as it was committed by the Madhya Pradesh High Court.
Conclusion
The judgment of the Madhya Pradesh High Court indirectly pressures the petitioner to either refrain from marrying or to convert, emphasising that the marriage would be invalid under Islamic Law rather than appropriate under the Special Marriage Act. This ruling is both legally and morally flawed; it contradicts the SMA, which should take precedence over personal laws and morally, it is expected that the court protects citizens’ rights. The judgment fails to safeguard the petitioners and infringes on their Right to Life under Article 21.
In a case of Calcutta High Court, Ashok Kr. Todi v. CBI, where a Muslim boy married a Hindu girl and later committed suicide, the court identified four Ps as the sources of pressure: Power of money, Police, Politicians, and Poverty. The court ruled that these pressures constituted abetment to suicide, highlighting the severe consequences of such societal pressures. Similarly, the judgment in Lata Singh v. State of UP highlighted the need for society to transcend caste and religious biases.
In the present case, the petitioners face backlash from four Fs: Family, Future, Freedom, and Fundamental Rights. In this onerous situation, life turns worse with the judgment when the primary concern for the court should have been prioritising their safety, but the order was far from that and quite otherwise.
The country experienced two very different high court judgments on similar facts; where in the Madhya Pradesh High Court, protection was denied, and in the Allahabad High Court, a bench of Justice Jyotsana Sharma in Sunita v. State of U.P. protected a couple who wished to marry under SMA as they from a different religion. Given the same, the Supreme Court must step in to set a clear precedent, reaffirming the primacy of the Special Marriage Act over personal laws.
The post is written by Priyal Bansal, 2nd Year BALLB Student at Dr Ram Manohar Lohiya National Law University, Lucknow.