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Insights into Editorial: Why are States opting for legislation on ‘freedom of religion’?

SMA_1954

 

Context: The story so far:

The Special Marriage Act, 1954 (SMA) was enacted to facilitate the marriage of couples professing different faiths and preferring a civil wedding.

However, some practical problems arise in registering such marriages. The law’s features on prior public notice being given and objections being called from any quarter place a question mark on the safety and privacy of those intending to marry across religions.

Many settle for marriage under the personal law of one of them, with the other opting for religious conversion. Even this option is now under threat, as recent remarks by the Chief Ministers of Uttar Pradesh and Haryana and a Karnataka Minister indicate. All of them want to ban conversion for the sole purpose of marriage.

Features of the Special Marriage Act, 1954 (SMA):

The Special Marriage Act, 1954 is an Act of the Parliament of India enacted to provide a special form of marriage for the people of India and all the Indian nationals living abroad, irrespective of their religion.

  1. The marriage of any two persons may be solemnised under the SMA, subject to the man having completed 21 years of age and the woman 18.
  2. Neither should have a spouse living; both should be capable of giving valid consent, should not suffer from any mental disorder of a kind that renders them unfit for marriage and procreation.
  3. They should not be within the degrees of prohibited relationship — that is, they should not be related in such a way that their religion does not permit such marriages.
  4. Parties to an intended marriage should give notice to the ‘marriage officer’ of the district in which one of them had resided for at least 30 days.
  5. Any person can object to the marriage within 30 days of the publication of the notice on the ground that it contravenes one of the conditions for a valid marriage.
  6. The notice will have to be entered in a ‘Marriage Notice Book’ and a copy of it displayed at a conspicuous place in the office. The Notice Book is open for inspection at all reasonable times without a fee.
  7. The marriage officer has to inquire into the objection and give a decision within 30 days. If he refuses permission for the marriage, an appeal can be made to the district court. The court’s decision will be final.
  8. Also, the Act says that when a member of a Hindu undivided family, gets married under SMA, it results in his or her “severance” from the family.

Article 25: Freedom of Conscience and Free Profession, Practice and Propagation of Religion:

Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion.

  1. Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires.
  2. Right to Profess: Declaration of one’s religious beliefs and faith openly and freely.
  3. Right to Practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas.
  4. Right to Propagate: Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion.

What are the hurdles faced by couples?

  1. The provisions relating to notice, publication and objection have rendered it difficult for many people intending to solemnise inter-faith marriages.
  2. Publicity in the local registration office may mean that family members objecting to the union may seek to stop it by coercion.
  3. In many cases, there may be a threat to the lives of the applicants. There have been reports of right-wing groups opposed to inter-faith marriages keeping a watch on the notice boards of marriage offices and taking down the details of the parties so that they can be dissuaded or coerced into abandoning the idea.
  4. In July, the Kerala Registration department decided to discontinue the practice of uploading marriage notices on its websites following complaints that these were being misused for communal propaganda.
  5. However, the notices will be displayed on the notice boards of the offices concerned.
  6. These provisions have been challenged in the Supreme Court recently on the grounds that they violate the privacy of the couples, their dignity and right to marry.
  7. In the case of Hindu and Muslim marriage laws, there is no requirement of prior notice and, therefore, such a requirement in the SMA, say experts, violates the right to equality of those opting for marriage under it.

What are the other options for registration of inter-faith marriages?

  1. Many opt for inter-faith marriages through the relevant law of the faith of one of the parties.
  2. This will involve one of them converting to the religion professed by the other.
  3. While conversion to Islam and Christianity has formal means, there is no prescribed ceremony for conversion to Hinduism.
  4. The Hindu Marriage Act is also applicable to “any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion”.
  5. In a recent ruling, the Allahabad High Court declined to grant police protection to a couple, of whom the bride was a Muslim who converted to Hinduism, citing past precedents that said conversion should be based on change of heart and conviction and should not be solely for the purpose of marriage.
  6. Based on a Kerala High Court recommendation, the Law Commission of India had recommended in 2010 that every person who has converted may be allowed to send a declaration within a month to the officer who registers marriages in the area, and it may be confirmed in person after 21 days.
  7. However, this recommendation was not made applicable to States that have a Freedom of Religion Act (which are essentially anti-conversion laws).

States against conversion for the sake of marriage:

Even though Uttar Pradesh (U.P.) and Karnataka have spoken about a separate enactment, at least two States have legal provisions to the effect.

The Himachal Pradesh Freedom of Religion Act, 2019, and the Uttarakhand Freedom of Religion Act, 2018, both prohibit conversion by misrepresentation, force, fraud, undue influence, inducement, allurement and ‘by marriage’.

There is a separate section in both laws under which, not conversion for the purpose of marriage, but marriage has done solely for the purpose of conversion, may be declared null and void by a family court based on a suit by either party.

The U.P. State Law Commission has recommended a similar Freedom of Religion law in the State and favours a provision under which marriages solemnized solely for the conversion of one of the parties may be nullified by a family court.

Conclusion:

It is indeed salutary as a principle that inter-faith couples retain their religious beliefs separately and opt for marriage under the Special Marriage Act.

However, this principle cannot be used to derogate from personal choice or become a ruse to interfere in the individual freedom to forge matrimonial alliances.