“You too will marry a boy I choose,” are the famous opening lines of Vikram Seth’s classic A Suitable Boy where Mrs Rupa Mehra is underscoring the importance of a family-approved match to her daughter Lata who responds with the most non-committal “Hmm”. For most people in India, marriages are not made in heaven, but much in Mrs Mehra’s vein, are the result of family negotiations and balancing of family proprieties and priorities.
In this context, the Special Marriage Act, 1954 was radical since it gave precedence to individual interests over community interests by specifically permitting inter-faith marriages. It also allowed couples within the same faith to opt into progressive, secular marriage law.
However, many of the Special Marriage Act’s provisions remained imperfect. The Allahabad’s High Court’s January 13 decision, however, brings the story of the Special Marriage Act full circle by making the individual the true repository of rights.
History of the secular marriage law
The origins of secular marriage law in India can be traced to the British Act III of 1872 which required the parties to the marriage to renounce their religion before entering a civil marriage. Perveez Mody, a social anthropologist, has argued that the need for excommunication was to account for community interests since inter-faith marriages were otherwise considered transgressive.
The post-independence Special Marriage Act did away with such renunciation and focused on the rights of the individual. This was in line with the thinking behind the Indian Constitution as well, which places the individual at its very heart.
However, this shift was incomplete since the Special Marriage Act incorporated procedures such as requiring the parties to the marriage to give a month-long notice which was published publicly and provided for a subsequent hearing on objections to the marriage.
Mody has also argued that while this was justified as a means for preventing bigamous marriages, it was ultimately a concession to community interests since it allowed family members to marshal their forces and raise objections to the match. In practice, this provision has made marriage under the Special Marriage Act very bureaucratic and difficult to solemnise, especially for couples who marry each other in the face of opposition from family members.
News reports are full of instances where the notice procedure proves an impediment for run-away couples to solemnise their marriage since it effectively delays the entire process and allows an opportunity to family members or other groups to prevent the marriage.
Further, often over-zealous marriage officers create further roadblocks by insisting on police verification or sending notices to people’s homes. It is in this context, where many inter-faith couples prefer converting and marrying under personal law instead of opting for the Special Marriage Act. Marriage under personal laws does not require any such notice. This aspect of religious conversion has led to controversies such as “love jihad” and the enactment of laws in various states to purportedly tackle forced religious conversions.
The High Court decision
The Allahabad High Court’s decision becomes extremely significant in this background. The court was hearing a petition by an inter-faith couple who married under personal law after conversion and the parents of the woman were preventing the couple to live together. They expressed their inability to opt for the Special Marriage Act due to its invasive notice procedure for marriage which they argued violated their right to privacy.
Acknowledging the social importance of the issue, the court inquired into the constitutionality of the mandatory procedure and held that it would necessarily fall foul of the guarantees of decisional autonomy arising out of the fundamental rights of liberty and privacy which the Supreme Court has time and again recognised.
In the process, the High Court undertook a detailed examination of the Supreme Court’s decisions on issues ranging from violence against inter-faith and inter-caste couples to the decriminalisation of homosexuality and the right to privacy.
Ultimately, the High Court concluded that individual autonomy and, specifically, autonomy in making decisions about the intimate aspects of one’s life, such as marriage, was constitutionally sacrosanct. However, in a pragmatic move instead of striking down the procedure, the High Court interpreted it in a constitutionally permissible way and held that such a procedure would now be optional and only be necessary if the parties asked for it in writing.
This ruling, if effectively implemented, is likely to have a significant impact in Uttar Pradesh since marriage officers in that state would no longer be able to force couples to publish notice and would instead be legally required to proceed with the solemnisation of marriage without such publication. However, it remains to be seen how marriage officers in other states treat this decision of the Allahabad High Court since it is likely to be of only persuasive value for them.
Towards a modern marriage law
By declaring the publication of notice procedure as optional, the High Court has finally done away with any concession to community interests which was retained at the time of the Special Marriage Act’s enactment. This brings the history of the Act, which started with a requirement of religious renunciation, come a full circle and makes the individual the repository of rights in a real sense.
However, other provisions of the Special Marriage Act such as restitution of conjugal rights which allow for forceful cohabitation as well as the absence of progressive concepts such as divorce due to the irretrievable breakdown of marriage and common marital property means that the Special Marriage Act falls short of propelling an equal vision of marriage in today’s context.
One hopes that the Allahabad’s High Court’s progressive decision speeds up debates on overhauling the Special Marriage Act and leads to the enactment of a truly modern marriage law.
Akshat Agarwal is a Research Fellow at the Vidhi Centre for Legal Policy.