Professional Documents
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Goes Awry
B. Sivaram ayya*
T h e A ct con stitu tes th e first and the on ly step taken tow ards the
g o a l o f a u niform civil co d e en visaged under article 4 4 o f the Indian C ons
titu tio n . A la s, in th e cou rse o f tw o decades the g o vern m en t has n ot m uster
ed sufficient cou rage and p o litica l will to take further step s tow ards that
go a l. The reasons are n o t far to seek . T h e first is surrender o f the p o li
tical process to forces o f con servatism and reaction under th e pretext o f
“ p ragm atic ap proach ” ^ or w o rse still, osten sib le con cern for the feelings
o f m inorities. T he secon d is th e fear that issues lik e so cia l ju stice to w o
m en and con seq u en t ch an ges in personal law s w ill resu lt in loss o f votes
than a gain in votes. N o w ond er that in th e last tw o d ecad es even m odest
m easures suggested by • th e Law C om m ission s in their reports on the C o n
verts’ M arriage D isso lu tio n A ct, 1866 and the C hristian m atrim on ial causes
have been gathering d u st on th e sh e lv e s .
* M-L- (Andhra), L.L.M . (Yale), D.C.L- (M cG ill), Reader, Faculty of Law, University
o f Delhi.
1. V Parliwnenta’-y Debates, House o f the People, 7797 Pt. II (1954).
2. K. Subba Rao, Foreword in Devadason, Christian l.aw in India, (1974). He says;
“Its (State’s) neglect o f this constitutional duty is hailed as a democratic approach. At
best it is only a pragmatic approach, at the worst it has political overtones ”
3. A.I-R. 1968 All. 14.
THE SPECIAL M A R RIAG E ACT, 1954 GOES A W R Y i< /
II
(0 It is- w ell know n that in S outh India m arriage b etw een clo se
relations is p erm itted under th e personal law . 1 h e m arriages
tak e p lace under the H in d u M arriage A ct. B u t su p p osin g the
parties thereto w an t to m arry under the p ro v isio n s o f th e
Special M arriage A c t, su ch a m arriage w ill n o t be perm itted
b ecau se they cou ld fall w ithin th e p roh ibited d egree o f relation
ship. T o avoid su ch difficulties, it is p ro p o sed to bring custom
a lso under section 4 o f the S pecial M arriage Act."
The secon d ju stification viz., that the late R ajagopalachari had suggested
the am endm ent, is based on an equally flim sy ground. B eyon d d oub t
the late R ajaji had a razor-edge intellect and had expressed his view s on a
variety o f topics lik e th e B .C .G . vaccin ation, birth co n tro l, eco n o m ic p o li
cies, state cap italism , com m u n ists, etc., w hich w ere often controversial.
R ajaji’s view n otw ith stan d in g th e am en dm en t is n o t a step in the right
direction.
III
11. J.D.M . Derrett, Religion, Law and the State in India 327-28, f.n- 2 (1968).
12. Supra note 9 at col. 3268
13. S. 21 reads;; “ NotwithstaadiDig aay restrictioQS contained in the Indian Succession
A ct (X XX IX o f 1925), with respect to its application to members o f certain communities,
succession to the propeity o f any person whose marriage is solemnized under this Act, and
to the property of the issue o f such marriage shall be regulated by the provisions o f the said
A ct, and for the purposes of this section that Act shall have effect as if chapter HI of part V
(Special Rules for Parsi Intestates) had been omitted therefrom.”
1 ♦. The Law Commission o f India, Fifty ninth Report 98 (1974). Hereinafter cited as the
Fifty-ninth Report.
T R t S p e c i a l m a r r i a g e a c t , 1954 g o e s a w r y 315
22- It may be pointed that views were expressed that a marriage between a Christian
and a non-Christian should be permitted under the Indian Christian M a rria g e Act. See, the
Law Commission, Fifteenth Report 3 and Twenty-second Report 4. Muslim organizations-
passed resolutions to the effect that the Special Marriage Act should not be applied
to Muslimg.
318 the HINDU M ARRIAG E & SPECIAL MAR RIAG E ATS