India is a place of variety, where people of all religions coexist peacefully while adhering to the Constitution's values. Marriage is a significant event in a person's life; it is also regarded as a sacred connection between two individuals. In India, weddings are governed by religion-specific legislation, such as the Hindu Marriage Act of 1955 or the Christian Marriage Act of 1872.

While there is nothing wrong with having distinct personal rules for various religions, our Indian Constitution supports a secular society that protects religious freedom and belief. Additionally, Article 44 of the Constitution[1] states that the state shall endeavour to establish a Uniform Civil Code for Indian people.

The Special Marriage Act of 1954, which applies to people of India irrespective of their religion can be safely inferred as an initial step towards the Uniform Civil Code. The Special Marriage Act permits interfaith and inter-caste marriages between two consenting adults, provided that the male is at least 21 years old and the female is at least 18 years old. The law is applicable to all citizens of India, regardless of their faith. It also applies to Indian nationals residing in other nations.

Conditions to be fulfilled under the Special Marriage Act

To solemnise a marriage under The Special Marriage of 1954 certain conditions, have to be fulfilled. Section 4[2] of the act enumerate these conditions:

1. There must not be a living spouse of either party.
2. Both parties must be capable of giving consent, i.e., they must be of sound mind and must be fit for procreation.
3. Male should be of age 21 or above and Female should be of age 18 or above.
4. The parties must not be in prohibited degree of relation, these relationships are enumerated in the First Schedule of the Act.[3] Exception to this is when a custom, which governs any of the party or both of the party, permits the marriage between the two, then the marriage will be valid irrespective of the prohibited degree of relation.

Process under the Special Marriage Act of 1954

The law states that the State government may appoint one or more marriage officers for the whole or part of the concerned state. Section 5[4] of the Special Marriage Act states that any person willing to solemnize his/her marriage under this act must submit a written notice to the Marriage Officer. The notice has to be submitted by both the parties and one of the parties must be residing for at least 30 days in the district of the concerned Marriage Officer. The notice is mentioned in the Second Schedule of the act.[5]

Section 6 of the law states that the aforementioned notice has to be preserved by the Marriage Officer and has to be affixed in a 'Marriage Notice Book'[6] and it is also stated that this book must be open to inspection by 'any' person who desires for the same and that too without any fee. The law also states that a copy of that notice must be published at any conspicuous place in the office of the Marriage Officer[7].

The law also states that anyone can raise objection to the solemnization of the marriage The notice that is published has the purpose of inviting objections (if any). Anyone can raise objection within 30 days of the publication of the notice, on the grounds mentioned in Section 4 of the act.[8] If no objections are raised within the mentioned period of 30 days, then the Marriage will be solemnized.[9]

The Marriage Officer, after receiving the objection has to complete the investigation and arrive at a decision within 30 days, starting from the day on which the objection was raised. The marriage will not get solemnised until the Marriage Officer arrive at a decision regarding the objections raised.[10] If she is satisfied that the objections raised are reasonable and true then she can cancel or refuse to solemnise the marriage on that ground. Any of the parties to the intended marriage can approach the district court, which has jurisdiction on the district of the Marriage Officer, to appeal the decision of the Officer and the order by the Officer has to confirm to the order of the district court.[11]

The Marriage officer while investigating is vested with all the powers similar to civil court under Code of Civil Procedure, 1908. Also, any proceeding occurring before him will be considered a judicial proceeding under Section 193 of the Indian Penal Code of 1860.[12] The law also states that if the Officer considers that the objection is not reasonable and is filed with bad motives or malice, then she may impose a fine on the objecting party.[13]

Further, it is necessary that to solemnize the marriage, the parties to the marriage with 3 witnesses have to sign a declaration in the presence of the Marriage Officer, who will also sign that declaration.[14] It is also to be noted that if the marriage is not solemnized within 3 months of the notice given by the parties or within 3 months of the decision delivered by the appeal court under section 8(2), then the Officer cannot solemnize the marriage until a new notice has been given to him.[15]

Void, Voidable Marriage and Divorce under Special Marriage Act of 1954

Void Marriages

The law mentions 2 grounds for considering a marriage void, where either of the spouses can file a petition against the other spouse on these 2 grounds[16], namely:

1. Any spouse was in contravention of the conditions mentioned under section 4 of the Special Marriage Act.
2. The respondent was impotent at the time of marriage and is also at the time of the institution of the suit.

Voidable Marriage

The marriage shall be voidable if [17]

1. The respondent has wilfully refused consummation of marriage.
2. The respondent was pregnant at the time of marriage by some person other than the petitioner and the petitioner was ignorant of the fact, the proceedings have to get started in the first year of the marriage, lastly marital intercourse has not taken place between the couple with the consent of petitioner after the discovery of the ground to voidability.
3. The consent of either party was taken under fraud or coercion, further, the petition must be instituted within 1 year after coercion or alternatively the fraud had been discovered. lastly, the petitioner must not be living with the spouse after the elements mentioned above are discovered. The definition of fraud and coercion mentioned in the Indian Contract Act of 1872 will be consulted.

Divorce

The law provides for moving a petition before the court by either of the party on several grounds. If one of the parties had voluntary sexual intercourse with someone other than the spouse then a divorce petition can be moved. Similarly, if one of the parties has deserted the other party for more than 2 years, if one of the parties is convicted for an offence that has a punishment of 7 years or more if one of the parties is suffering from mental illness.[18]

The law also provides provisions for placing a divorce petition by the wife on the grounds that the husband was convicted for sodomy, bestiality or rape after their marriage.[19]

Historical background
Special Marriage act of 1872 was the precursor of the 1954 act. The followers of Keshubh Chandra Sen and the Brahmo Samaj started to demand a special law for solemnizing marriage between different sects or believers in the Brahmo Samaj.[20] Henry Sumner Maine, a law member, was more than willing to support this pleading.

Instead of introducing a law specifically for the 'Brahmos', Henry introduced a pan India law that allowed any dissenter to marry of her/his choice (This was the first draft in the series of three that will eventually shape itself as Special Marriage Act of 1872)[21]. It was also referred to as the Native Marriage Bill. It stated that two natives, who dissented to marry according to the rites of religions such as Hindu, Muhammadan, Buddhist, Parsi or Jewish could solemnize their marriage under this legislation.

This bill invited backlash from a majority of people who considered it repugnant that 'some certain individual could refuse to perform religious rites with the help of a legislation enacted by a colonial power'.[22] Henry defended this decision of including all 'natives' on two grounds, that first, the Brahmo Samaj was still evolving and hence could not be defined for legal purposes and second, there were people who renounced Hinduism but were not part of Brahmo Samaj, hence making a law excluding non-followers of Brahmo Samaj would again draw a catena of pleadings from these dissenting groups.[23]

In 1871, J.F. Stephen, a law member, drafted the second bill in the series which was named 'Brahma Marriage Bill'. This bill was identical to the petition and the draft that was sent by the 'Keshubites'. It was only restricted to members of Brahmo Samaj. This time the flak came from Adi-Brahmo Samaj, who stated that the members of Brahmo Samaj did not renounce 'Hinduism' as a whole but only evil practices of Hinduism. They also stated that the Government was not correct in accepting the demands or practices of a breakaway sect.[24]

Finally, the third and final bill was moved to correct the above-mentioned anomalies. Although it had minor changes but it was successfully passed into an act. It was identical to the first draft that was proposed by Henry Maine.[25] It also included people who were renouncing Christianity in its ambit. The significant breakthrough was the moderation of tone in the statute and a change in the requirement to marry also. It went saying 'people who do not profess any religion' instead of 'objection to a particular religious rite'. This meant that the law did not legitimize the dissenters who were against the religious rites per se but allowed people who renounced their religion altogether to solemnize their marriage.[26]

India threw off the colonial yoke in 1947 and turned a new leaf, in 1950 we enacted and gave ourselves the Constitution of India which was created by our own freedom fighters and great intelligentsias of our country. Our Constitution acts as a guiding light while making any legislation in India, thus it is important to understand the values of our Constitution.

In 1954, the Special Marriage Act was enacted. It is astonishing to know that India was still a nascent democracy when the law was brought in. Independent India was only 7 years old and the wounds of partition were still fresh. Against this backdrop, the Nehru Government passed the secular law. It is important to understand that our constitution promotes freedom of belief and conscience and also promotes secularism. This law of 1954 can be understood as pursuing a similar objective.

It would not be wrong to say that the Special Marriage Act of 1954 took inspiration from the act of 1872, due to the fact that many provisions are similar to the act, not to forget the name of the law itself. Many new provisions were added into the act of 1954 that were present in the act of 1872. It is also important to note that the Act of 1872 provided a provision for widow remarriage and in that, it exempted them from taking consent irrespective of her age.

Changes in Special Marriage Act of 1954 in comparison to the Special Marriage Act of 1872

The Special Marriage Act of 1954 is dissimilar to its predecessor of 1872 in many ways. The foremost change was the removal of the condition of renouncing one's religion to solemnize the marriage under this Act. The permissible age of bride and bridegroom were also increased from 14 years and 18 years to 18 years and 21 years respectively. The act of 1872 had a provision of taking consent from the parents if either party has not completed 21 years of age for the solemnization of marriage. The act of 1954 removed this requirement.

In the Act of 1872, the time period that was required to be completed as a resident of the concerned district of the Registrar was 14 days. This was increased to 30 days in the Special Marriage Act of 1954 and also the 'Registrar' became Special Marriage Officer. Also, the time period in which any person can raise objection to the notice published by the registrar/special marriage officer was 14 days in the case of Act of 1872.

This time period was also increased to 30 days in the Act of 1954. Interestingly, the justification given for the 14-day period in the 1872 act was 'to help parents trace their children who have eloped to marry out of their own choice' but in the Act of 1954, the reason given for a 30-day time period was to 'trace and prevent bigamous marriages'.[27]

The Special Marriage Act of 1954 also introduced provisions for divorce between the married couple under this act, which were absent in the law of 1872. The act of 1954 also has the section 6(2) which states that the Special Marriage Officer shall affix every notice received at any conspicuous place in her office. This requirement was absent in the act of 1872. Also, provisions for restitution of conjugal rights[28] and for judicial separation[29] were also inserted in the act of 1954, which were not present in the act of 1872.

Issues with the Special Marriage Act and the Response of Indian Courts

This law was framed to facilitate interfaith and inter-caste marriages but it has now become legislation that violates certain fundamental rights of the citizens. The law in section 4(c) prescribes a certain age limit for male and female consenting parties to the marriage, which means that the law considers them major and able to take decisions of their life.

But the sections 5,6 and 7 of the law annuls this provision by mentioning about publishing a notice for 30 days which essentially means that their choice or decision to marriage is being scrutinized not only by their parents but by 'anyone' who wishes to. Also, the fine of only 1000 rupees, which too is the upper limit, for malevolent claims is negligible when compared to the nuisance it creates to the consenting parties.

This provision of allowing anyone to interfere in the marriage between two consenting adults is also violative of the right to privacy. The Supreme Court in K.S Puttaswamy vs Union of India[30] has categorically held that the right to privacy is also a fundamental right under article 21[31]. In Shakti Vahini vs Union of India[32] the right to marry with one's choice was upheld and termed the choice of an individual as an inalienable part of dignity.

It is a common notion in India, specifically amongst the rural population, that a girl marrying outside her religion or caste is considered to be bringing shame to the 'honor' of her family, which in turn, often leads to honor killings or violence against the girl. The provisions of the act giving a 30-day period to raise objections may lead to acts of violence against the consenting parties.

The Supreme court in Lata Singh vs State of U.P.[33] was dealing with an issue where a lady named, Lata was subject to harassment by her relatives for her choice to marry a man outside their caste. The Hon'ble court held that Lata was not unjustified in marrying a man outside her caste and violence or acts of harassment must not be committed against people who are willing to carry out such types of marriages, the most parents can do is that they may break off their social ties with their children. The court also provided her with police protection.

In Shafin Jahan vs Ashokan K.M.[34], the Supreme Court held that right to marry is one's integral choice. The court also stated that it is not only a fundamental right but also a human right recognized by the United Nations in its Universal Declaration of Human Rights. The provision to display private information of the consenting parties, the law has opened the doors for various unwanted dabbling from different third party that may have ulterior motives. This would hamper the freedom to marry a person of one's own choice as held in Common Cause vs Union of India[35] by the Hon'ble Supreme Court.

There are no similar provisions that mandate the publication of personal information of the intending couples in any other personal law, except the Indian Christian Marriage Act, 1872. Sections 6 and 7 of the Act, which provide an opportunity to any individual to inspect the marriage notice diary that contains private information of the consenting parties and a provision to raise objection respectively are also peculiar and unfounded in any other statute dealing with a similar subject matter.

There is no justification for the same. Although unreasonable classification is prohibited under our constitution, Article 14[36] of the constitution states that any reasonable classification has to pass the requirements of intelligible differentia (must have a logical reason behind differentiation) and reasonable connection (The differentiation must be rationally connected to the aim sought to be achieved) If a classification passes both of these tests, it is determined that it does not violate the Constitution.

If we apply the aforementioned twin-test of reasonable classification to these provisions, we find that the only difference between people marrying under the Special Marriage Act and other personal laws is that the former deals with interfaith and inter-caste marriage and the latter deals with marriage between people from the same religion. A person marrying outside her caste/religion cannot be subject to the extinguishment of her fundamental rights.

There is no nexus of this condition with the objective, i.e., to facilitate interfaith marriage in India, on the contrary, this discourages interfaith marriage by adding this cumbersome and problematic requirement to the registration of marriage. This cannot be used as a justification for discrimination, and if it is used as the foundation for separate legislation, it is considered discriminatory.

In a progressive judgement[37], Allahabad High Court held that publication of notice under sections 6 and 7 is not mandatory and the intending couple can choose whether to publish or not. It further observed that this requirement of publication is against the fundamental rights of the individuals. Recently a petition was filed before the supreme court against the provisions of the Special Marriage Act that mandate publication of the notice given by the intending couples.[38]

Anti-Conversion Laws in different states

Anti-Conversion Laws or the so-called "love jihad" laws are state-level legislation formulated to regulate religious conversions. They were first introduced in the colonial era by various princely states to preserve or protect the Hindu identity from forced Christian conversions.[39] The Indian government after independence tried to enact anti-conversion laws. First, such an attempt was made in 1954, which failed in the lower house only. Again, in 1960 a new and similar bill was introduced to keep a check on Hindus converting to non-indic religion (Christianity, Islam, Zoroastrianism and Judaism). This bill also failed to see the light of the day.[40]

At present, these are the following states with anti-conversion laws namely: Odisha, Uttarakhand, Arunachal Pradesh, Madhya Pradesh, Chhattisgarh, Gujarat, Uttar Pradesh, Jharkhand, and Himachal Pradesh. These laws are broadly identical with only slight variations. Odisha was the pioneer in introducing an anti-conversion law in India.[41]

These different laws around the state may have different provisions or punishments but their main aim remains the same, that is to put a stop to religious conversion carried out forcefully, fraudulently, by allurement or by inducement during the marriage.

The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2020 has inverted the principle of "innocent until proven guilty" to "guilty until proven innocent" as it shifts the onus of proving oneself innocent on the accused, and the Government has justified this mentioning that it is only the accused who has some special knowledge to the facts and circumstances of the matter.[42] One more peculiar requirement of this Uttar Pradesh ordinance is that it mandates a period of 60 days for raising objections.

Analysis
In the case of Reverend Stainislaus vs State Of Madhya Pradesh[43], the Hon'ble Supreme Court while examining the constitutionality of anti-conversion laws of Madhya Pradesh and Odisha held that right to propagate religion does not include the right to convert under article 25[44] of the Indian Constitution. It upheld the constitutionality of the two laws.

Interestingly, there has been a debate that these anti-conversion laws threaten the secular fabric of India but we saw that the Supreme court has upheld the constitutionality of these laws. Also, in the case Digbijay Missal vs State of Orissa[45], the Orissa High court upheld the legality of sections 4 and 5 of the Orissa Freedom of Religion Act, 1967. The Supreme court in the case of Lily Thomas vs Union of India[46] and Sarla Mudgal V. Union of India[47] held that religious conversion carried out solely for the marriage and that mala fide intentions do not pass the muster of legal scrutiny.

Equally important is to mention Article 18 of the Universal Declaration of Human rights[48], which guarentees the right to convert. It says that everyone has a right to renounce one religion and convert to a different religion. However, it does not provide an individual with a right to convert another person to her religion. Also, the Anti-Conversion laws do not prohibit all religious conversion per se, but only those which are carried out by force, allurement or fraud.

Conversion by these methods, certainly, cannot be understood as protected under article 25 of the Indian Constitution. The Allahabad High Court in Noor Jahan[49] case held that marriage that is solemnized with the sole objective/purpose of conversion, then such marriage does not hold water. Although, the judgement delivered in the Noor Jahan case was declared as not laying down 'good law' in the Salamat Ansari vs State of Uttar Pradesh[50] case.

Article 25(1) mentions that everyone has a right to profess, propagate and practise one's religion. This right is not absolute and the same Article 25(1) subjects the abovementioned right to public order, health and morality. Religious conversions that are carried out by allurement, fraud or force can disturb the public order and also cannot be considered moral.

The Uttar Pradesh Prohibition of Unlawful Religious Conversion Act of 2021 gives ample amount of time to the family and relatives to track down the consenting couples and turn their marriage down. Further, the law prohibits marriage solely for the purpose of religious conversion. This might be problematic since it would give wide leeway to the officers to decide whether the marriage was solely for conversion or not.

The Supreme Court has in Shafin Jahan vs Union of India, affirmed that the right to marry is one's integral choice and is a fundamental right under Article 21 of the Indian Constitution. Also, In K.S. Puttaswamy Case[51] the Hon'ble held that the right to privacy is a fundamental right and the right to choose a life partner is one of its facets.

Very recently, the Allahabad High Court[52] noted that the approval from district authorities is merely directive and not mandatory, it also went on to observe that the consent of family is not mandatory and a marriage between two consenting adults is a highly private matter and nobody can interfere in their choice to select a life partner. In the case of Salamat Ansari [53], the Allahabad High Court held that right to choose a life with a person of one's choice is an intrinsic part of the right to life and personal liberty and interference with the same would seriously violate the right to freedom of choice of two individuals.

Although, the Special Marriage act and the various anti-conversion state laws have different operations and objectives but they have a peculiar similarity. The Special Marriage Act was implemented to cater to the needs of people who wanted to solemnize interfaith marriages in India, whereas the anti-conversion laws are implemented to curb the menace of unlawful or forced conversion by the way marriage.

It is important to note that these laws are harsher than the Special Marriage Act in terms of the procedure and punishment. For instance, the Uttar Pradesh Prohibition of Unlawful Religious Conversion Act of 2021 mandates a 60-day waiting period before the intending couples can solemnize their marriage, whereas the Special Marriage Act provides for a 30-day time period, which is also not very commendable but is still less tiring than that of U.P. act.

Conclusion
The Special Marriage Act is a law that was ahead of its time. It allows interfaith marriage between two consenting adults. Although, the law has its own share of problems, ranging from time limits to cumbersome processes. Also, we saw that some of the provisions of this act violate the fundamental rights enshrined in Part III of the Indian Constitution. There is a need to amend the provisions that mandate issuing notice revealing private information of the intending couples as it violates the right to privacy.

Also, the time period of 30-days must also be removed and the process of registration of marriage under this act has to be made hassle-free and faster. The 30-day time period gives ample time to the family and relatives to track the couple and stop the interfaith marriage. The same was recommended by the 19th Law Commission in its 242nd report.

Also, the penalty for making mala fide objections to the marriage must also be increased substantially to deter people from making unscrupulous objections to cause unnecessary delay in the registration of marriage. These modifications would assuage the concerns of many individuals and will also increase the effectiveness of the law.

Anti-conversion laws in India are always a topic of debate. As discussed earlier, if we see them from the perspective of the constitution and also certain judgements of the Supreme Court and High Courts, we would find that they are not unconstitutional. However, if we consider them after considering judgements where the right to choose a life partner and the right to privacy is affirmed, then these laws look problematic. There is a need to solve the ambiguities present in these laws.

Also, it is important that the state machinery must use these laws sparingly and not for their political gains or for settling personal vendetta. The constitutional validity of these laws will be judged by the Supreme Court, as the matter challenging the validity of the Uttar Pradesh Prohibition of Unlawful Religious Conversion Act of 2021 is already before the Hon'ble court.

End-Notes:

1. Constitution of India 1950, art 44.
2. ibid, s 4.
3. ibid, sch 1.
4. Special Marriage Act 1954, s 5.
5. ibid, sch 2.
6. ibid, s 6(1).
7. ibid, s 6(2).
8. ibid, s 7(1).
9. ibid, s 7(2).
10. ibid, s 8(1).
11. ibid, s 8(2).
12. Special Marriage Act 1954, s 9(1).
13. ibid, s 9(2).
14. ibid, s 11.
15. ibid, s 14
16. ibid, s 24.
17. ibid, s 25.
18. ibid, s 27(1)(a)- (1)(e).
19. Ibid, s 27(1A).
20. Mody, P., Love and the Law: Love-Marriage in Delhi Modern Asian Studies, vol. 36, no. 1, (2002), p. 228.
21. ibid.
22. ibid, 229-230.
23. ibid, 229.
24. ibid, 231.
25. ibid, 232.
26. ibid, 232.
27. ibid, 234.
28. Special Marriage Act 1954, s 22.
29. ibid, s 23.
30. K.S. Puttaswamy and Another v. Union of India and Others (2017) 10 SCC 1.
31. Constitution of India, art 14.
32. Shakti Vahini vs Union of India (2018) 7 SCC 192.
33. Lata Singh vs State of Uttar Pradesh AIR 2006 SC 2522.
34. Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368.
35. Common Cause v. Union of India (2018) 5 SCC 1.
36. Constitution of India, art 14.
37. Safiya Sultana v. State of U.P. 2021 SCC OnLine All 19.
38. Amit Jaiswal, 'Special Marriage Act and anti-conversion Ordinance: Cause and effect relationship, judgment by Allahabad High Court, and a few suggestions' (Bar and Bench,14 February 2021) https://www.barandbench.com/columns/special-marriage-act-and-anti-conversion-ordinance-cause-and-effect-relationship.
39. James Andrew Huff, Religious Freedom in India and Analysis of the Constitutionality of Anti Conversion Laws, 10(2) Rutgers J. L. & Religion 1, 4 (2009), http://www.lawandreligion.com/sites/lawandreli gion.com/files/A10S-6Huff.pdf , archived at https://perma.cc/7Z7Y-9U8Q.
40. Aniruddha Shrivastava, An Analysis of Anti-Conversion Laws in India, (2021) 2(1) IJLMH https://www.ijilr.org/wp-content/uploads/An-Analysis-of-Anti-Conversion-Laws-in-India.pdf.
41. Manimugdha S Sharma, 'History of Anti-Conversion laws in India' Times of India (29 November, 2020) https://timesofindia.indiatimes.com/india/explained-history-of-anti-conversion-laws-in-india/articleshow/79472537.cms.
42. Utkarsh Anand, ''For collective good': UP defends 'love jihad'' Hindustan Times (New Delhi, 8 January 2021) https://www.hindustantimes.com/india-news/for-collective-good-up-defends-love-jihad/story-O4J7iBG0SsbTEKuX3m1hRO.html.
43. Rev. Stainislaus vs State Of Madhya Pradesh 1977 AIR 908.
44. Constitution of India, Art 25.
45. Digbijay Missal vs State of Orissa AIR 2015 Ori 36.
46. Lily Thomas vs Union of India (2000) 6 SCC 224.
47. Sarla Mudgal vs Union of India (1995) 3 SCC 635.
48. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 18.
49. Noor Jahan Begum @ Anjali. vs State Of U.P. MANU/UP/2907/2014.
50. Salamat Ansari and Ors vs State of Uttar Pradesh and Ors 2020 SCC OnLine All 1382.
51. K.S. Puttaswamy and Another v. Union of India and Others (2017) 10 SCC 1.
52. Omar Rashid, 'Allahabad High Court bats for interfaith couples' (The Hindu, 19 November 2021) https://www.thehindu.com/news/national/other-states/marriage-registrar-cannot-withhold-registration-insisting-on-conversion-approval-by-authorities-says-allahabad-hc/article37574074.ece.
53. Salamat Ansari and Ors vs State of Uttar Pradesh and Ors 2020 SCC OnLine All 1382.