SPECIAL MARRIAGE ACT

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• For many interfaith couples, the only option to marry under a secular personal law is through the Special Marriage Act of 1954.

Special Marriage Act (SMA), 1954

• The original Special Marriage Act was enacted in 1872, following a campaign launched by Brahmo Samaj for simpler marriage ceremonies in the 1860s.
• Under the 1872 act, the requirement of renouncing one’s religion was not consistent with modern ideas of liberalism, individualism and autonomy of the individual.
  • Therefore Special Marriage Act of 1954 was passed to replace the 1872 Act and the requirement to renounce one’s religion was removed.
• The applicability of the Act extends to people of all faiths, including Hindus, Muslims, Sikhs, Christians, Sikhs, Jains, and Buddhists.
• Section 4 of the Act requires that at the time of marriage, “neither party has a spouse living” or is “incapable of giving a valid consent to it in consequence of unsoundness of mind”.
  • Even if both parties are capable of giving valid consent, it requires that they do not suffer from any mental disorder that renders them “unfit for marriage and the procreation of children”.
• Section 5 of the Act requires couples getting married to give notice to the Marriage Officer 30 days before the date of marriage.
  • The notice can be inspected by “any person and anyone can object to the marriage”.
• As per Section 6, a copy of the notice given by the parties will be kept under the “Marriage Notice Book” which will be open for inspection.
  • Upon receiving the notice, the marriage officer shall publish it in “some conspicuous place in his office” to invite any objections to the marriage within 30 days.
• Section 7 deals with “Objection to marriage” and allows any person “before the expiration of 30 days from the date of the notice’s publication” to object to the marriage on the ground that it would violate one or more of the conditions specified in the Act.
  • If an objection has been made, the Marriage Officer cannot solemnize the marriage until he inquired about the matter of the objection and is satisfied.
• The law was the first step toward a Uniform Civil Code. The objective was that if we want a liberal, modern, secular and progressive law, we first start the experiment voluntarily.
  • Therefore, those going for an inter-faith marriage could register under the SMA.
  • Once your marriage is registered under SMA, your religion’s laws won’t apply.

How the Special Marriage Act is different from religious codes of marriage?

• The Special Marriage Act of 1954 (SMA) governs a civil marriage where the state approves the marriage rather than the religion.
• In India, issues of personal law such as marriage, divorce, and adoption are governed by codified religious laws.
  • These laws, such as the Muslim Marriage Act, of 1954, and the Hindu Marriage Act, of 1955, require either spouse to convert to the religion of the other before marriage.
  • However, the Special Marriage Act enables marriage between inter-faith or inter-caste couples without giving up their religious identity or resorting to conversion.

Concern

• The Special Marriage Act was enacted to help inter-faith couples. But, the provisions like the need to give prior notice, and inviting ‘objections’ goes against its original objective and also open the doors to violent moral policing by vigilante groups.
• The SMA did not achieve the kind of success it was intended to achieve; very few marriages get registered under the SMA demonstrating that society is not yet ready to accept inter-faith marriage.
• The provisions of public notices under the act have been used by anti-social elements to harass couples getting married.

Way Forward

• The state needs to focus on promoting and protecting the rights of women within marriage and aim for a more equal, progressive law.
• We have to think about where our legal system is advancing. On the one hand, we are thinking about the possibility of same-sex marriages. On the other, we are upholding laws that control whom you can fall in love with and who you can’t, and which Caste or religion you need to follow when you intend to marry.

https://indianexpress.com/article/explained/everyday-explainers/swara-bhaskar-special-marriage-act-8451763/