Analysis of Special Marriage Act, 1954

(Uniform Civil Code)

Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to
mental, psychological, physical union. When two souls thus unite, a new soul comes into existence.
That is how, the life goes on and on and on this planet.

_Justice S. Saghir Ahmed.

India is a country with divergent cultural gaiety and religious affinity of people living together
exhibiting ‘unity in diversity’. Institution of marriage and value oriented family system are signifying
features of India culture. The Supreme Court stated that every young man or a woman, has the right
to marry cannot be accepted in the absolute terms. Arranged marriage that to or intra cast marriage
is the generally accepted norm in the Indian society. ‘Love marriage, inter cast marriage o inter
religious marriage or registered/court marriage is generally is a rarity. The society eschews those
who marry out of their cast or community. Honour killings have been reported every year in India.
Interestingly, from the statistics of the United Nations, one in five cases of honour killing
internationally every year are of India. On the other hand, there are some NGOs helping the
performance of love marriages and extending protection for such love marriages.

There is indeed call for a law to provide a legal shelter for the interests of such people. Usha M Apte,
stated that inter caste marriages were prevalent even in the period of Rig Veda. The Hindu Marriage
Act, 1956 and the Special Marriages, 1954 (the S M Act 1954) made the marriage between persons
belonging to different castes and religions as valid marriage. Thus, it may be stated that, ‘inter-caste’
and ‘inter-religious’ marriages are legally permitted in India and can be performed under the S M Act
1954.

The Special Marriage Act 1954 is a special legislation to provide for a special form of marriage by
registration. The marriage is special because one need not to convert or renounce the religion.
Unlike the traditional arranged marriages which include two families belonging to same caste or
same community, the Act aims at inter alia providing for legalizing inter-religious or inter-caste
marriages. The Certificate of registration under the Act has been considered as a general proof of
marriage. The Act stated in preamble provides a special form of such and certain other marriages
and for divorce.

The major objectives which may be culled out from the Preamble of the Act are:

1. A special form of marriage in certain occasions,

2. For registration of certain marriages,
3. For divorce.

The issue of one changing his/her faith just for the sake of matrimony while the two person can
marry under the Special Marriage Act 1954 which is one of the earliest endeavours towards the
UNIFORM CIVIL CODE.
The Special Marriage Act is the legislation made to validate and register interreligious and inter caste
marriages in India. It allows two individuals to solemnise their marriage though a civil contract. No
religious formalities are needed to be carried out under the Act.

The Special Marriage Act came into effect in 1954 permitting any individual belonging to a faith to
marry another person belonging to a different faith provided there are certain conditions. The
conditions are laid down in section 4 of the Act. It says that neither of the parties should have a
spouse living. Both the parties should be sane at the time of marriage. The parties shall not be within
the prohibited degree of relations as prescribed under the Law. While considering the age, the male
must be at least 21 and the female be 18 at least.

In case all of these conditions are fulfilled, the parties are supposed to give a notice for their
marriage to the Marriage Officer in an area where one of them has been living for the last 30 days.
Anyone having any objection to the marriage can file against it within a period of 30 days, after a 30
days period of considering the objections, the marriage is permitted with 3 witnesses required to
sign the registration of marriage. Anyone who believes that either of the given parties do not fulfil all
the required conditions can file an objection against the marriage and the marriage officer can reject
the marriage.

The act only validates the marriage of two people belonging to different faiths, but there is no
punishment for those who forcibly convert the other partner just for the sake of marriage. The
Special Marriage Act was meant to facilitate inter religious marriages but it actually creates hurdles.
Legally, India has a clear route to inter religious marriage: the special marriage act 1954, under
which a couple, no matter what their caste or religious background, can marry without any need for
conversion.

Other hurdles in Special Marriage Act are:-

Notice period, unlike religious personal laws- 1 month.

The fact that the exact location and date of the marriage of is publicly known means that physical
force can easily be used to stop the ceremony.

Act stipulate that an application for marriage can be made only in a place where at least one of the
parties reside.

If either of the parties is not a permanent resident of the place, the act says that the marriage officer
has to inform the court in the district within whose limits that party is a permanent resident.
In effect, what this means that marriage officers must send a letter to the permanent address of the
parties, informing them that their son or daughter is about to do the unthinkable: exercise his or her
fundamental right to marry someone of his or her choosing.

In practice, therefore, by making sure that parent as well as caste or community leaders are aware of
the time and location of the intended marriage well in advance, the Indian State acts like super Khap
Panchayat, by making sure that society decides whether the couple should get married or not.

If a Hindu (which includes Sikhs, Jains and Buddhists) marries a non-Hindu, he/she cannot inherit
ancestral property.

Interestingly, this provision applies only to Hindus; the law does not bother to punish Muslims or
Christians in a similar manner. It seems that while the Indian republic hates the idea of an
interreligious marriage in general, one involving a Hindu gives it special heartburn.

Way Forward:-

1. Effective implementation and amendment:

India has a strong set of laws but they are needed to be implemented strictly.
In the purview of interfaith marriages, the idea should be to eradicate the core issue;
coerced conversion.
Moreover, the special marriage act 1954 is now a 66 years old law and it definitely needs to
undergo certain changes now.
2. Separating religion and personal matters:
Religion and personal matters are something to be dealt with separately, moreover,
marriage and conversion of religion are two things and should definitely not be
interconnected.
3. Uniform Civil Code as the silver bullet:
A Uniform Civil Code for all personal matters; marriage, succession, divorce etc of all the
communities including all the citizens shall be there leaving aside the religion.
Issues such as marriages are secular in nature, therefore, a Uniform Law can regulate them.
4. Articles 44, 25 and 26:
Article 44 mentioning the Uniform Civil Code and articles 25 and 26 are often believed to be
contradictory. The balance with these articles is something that is rarely discussed and
needs more attention now.
Religion today has gone far beyond the faith in the almighty and has become quite
antagonistic, where people want to impose their values and beliefs on others. The time is
right to bring in the UNIFORM CIVIL CODE, by having consultation at a wider level with all
the stake holders.