To overcome the individual’s difficulty because of limitations of the personal laws, the SMA was introduced, where, marriage between any two persons belonging to any religion or creed may be solemnised. The SMA, being secular in nature, plays a key role in liberating individuals from the traditional requirements of marriage. As per the SMA, any person, whichever religion he or she professes, may marry either within his or her community or in a community other than his or her own, provided that the intended marriage, in either case, is in accord with the conditions for marriage laid down in the SMA.

How marriage solemnised in the UK became a talking point in India

In the Dr. Abdur Rahim Undre vs Padma Abdur Rahim Undre case, the marriage between a Muslim boy and a Hindu girl, who were Indian citizens, was solemnised under the British Marriage Act, 1949 (“BMA”), in 1966, in the United Kingdom. They returned to India in 1969.

On April 20, 1978, the husband gave “talaq”, which was challenged by his wife before the High Court of Bombay on the ground that the marriage was monogamous and secular in nature; the marriage performed under the secular law of England cannot be dissolved under the personal law as the parties are governed by Special Marriage Act, and therefore, the alleged talaq was invalid.

The relevant portion of the judgment delivered by the Division Bench of Bombay High Court is as under: “No civil marriage validly performed and solemnised, according to any law in force can be treated as a religious marriage, by introducing elements of formalities of personal law. The character of marriage remains unaffected by such external factors. Because, a civil marriage validly performed, has an overriding effect on all other religious forms of marriages.”

The judgement continued: “When the parties have solemnised a legal and valid marriage as per the British Marriage Act, it is difficult to hold that the said marriage should also be treated as Nikah Fasid. When the parties with open eyes have chosen a specific form of marriage, it cannot be held that they concurrently also intend to enter into another form of marriage. To impute such an intention is contrary to well-established principles of justice, equity and good conscience”.

“....If such a contention is accepted then even a secular and monogamous marriage solemnised as per provisions of the Special Marriage Act, 1954 could be termed as Nikah Fasid' and a secular and monogamous marriage between two Muslims or between two, Muslim husband and non-Muslim wife, will become impossible even if they desire to solemnise such a secular and monogamous marriage.”

This case became a landmark as it unfolded the importance of the SMA as the marriage was solemnised in May 1966 under the BMA which was monogamous and secular in nature and such a secular law is also available in India in the form of SMA. Both parties are Indian citizens, and they came to India in 1969 and have been living in India together. In such a situation, the lex domicilli in case of such secular marriage will be the Special Marriage Act and not the Personal Law of the husband

Landmark cases

In Anwar Ahmed v. State of Uttar Pradesh, the applicant solemnised his first marriage under Mohammedan law and he contracted his second marriage under the Special Marriage Act. The Allahabad High Court held that the second marriage under the Special Marriage Act is an offence punishable under Section 494 of the Indian Penal Code notwithstanding that the Personal Law permits a Muslim male to contract four marriages.

In Lata Singh v. State of UP, the Apex Court held that “…This is a free and democratic country, and once a person becomes a major, he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage, the maximum they can do is that they can cut-off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.”

In Sarla Mudgal v. Union of India and Others, the relevancy of Article 44 of the Constitution of India, was discussed, wherein, it was observed that Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27. 

The Supreme Court in K.S. Puttaswamy v Union of India case emphasised the right to privacy Article 21 wherein, the “right of choice of a family life” is observed as a fundamental right. Further, in Shafin Jahan v Ashok KM, the right to marry a person of one’s choice is considered a part of Article 21. It was observed that the Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Therefore, the right to marry a person of one’s choice is integral to Article 21 of the COI.

The Supreme Court in Shakti Vahini v. Union of India case has rightly said that “Right to choose a life partner is a fundamental right, consent of family, community, clan not necessary for the marriage between two adults.”

In the Joseph Shine v. Union of India case, Justice Indu Malhotra observed, “The State must follow the minimalist approach in the criminalisation of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices.”

Current situation

In 2020, the Governor of Uttar Pradesh promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which was impliedly termed as ‘Love Jihad’ Ordinance. Many times, it has been observed that people opt for conversion in order to escape the tedious process provided under the Special Marriage Act to get their marriage registered. However, this Ordinance can also delegitimise such unions and can create a chilling effect on individuals who are in the quest to surpass blockades of religious and social divisions.

The judgment delivered by the High Court of Madhya Pradesh is not only contrary to the essence and/or intention of the SMA but also the rights of an individual to choose life – partner or religion, privacy, integrity, personal liberty, human dignity as has been explicitly enshrined under Article 21 of the Constitution where the Act itself gives the liberty to the individuals of any religion to solemnise marriage under the Act. This judgment might act as a deterrence for inter-faith couples.

Sanya Singh is a practising lawyer based out in New Delhi. She pursued a B.A. LL.B. (Hons.) from NUSRL, Ranchi and holds a keen interest in civil and commercial litigation.