Inter-caste marriages: SC "EMPOWER IAS"

Context: 

• Educated youngsters are showing the way forward to reduce caste and community tensions in India by tying the knot in intermarriages, the Supreme Court said in a judgment.

 

Background:

• The judgment came in a case filed by a lady who married a man against her family’s wishes.
• The investigating officer, on a complaint filed by her relatives, directed her to leave her husband and be present at the police station. 
• The court quashed the case against the couple.
• It directed the police authorities to not only counsel the investigating officers but devise a training programme to deal with such cases for the benefit of the police personnel.

 

Key highlights:

• Privacy, a fundamental right: The Bench referred to the Hadiya case and the Constitution Bench judgment in which privacy was declared a fundamental right under Article 21 of the Constitution.
  • Intimacies of marriage lie within a core zone of privacy.
• The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Departure from norms: Educated younger boys and girls are choosing their life partners, which, in turn, is a departure from the earlier norms of society where caste and community play a major role.
• Consent of the family or community or clan is not necessary once the two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy.
• SC quoted B.R. Ambedkar’s Annihilation of Caste, in which he said, “I am convinced that the real remedy is intermarriage. 

 

Key Points

• Special Marriage Act (SMA), 1954:
  • The Special Marriage Act is a central legislation made to validate and register interreligious and inter-caste marriages in India.
  • It allows two individuals to solemnise their marriage through a civil contract.
  • No religious formalities are needed to be carried out under the Act.
• Provisions of the Special Marriage Act:
  • Section 4: There are certain conditions 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 capable of giving consent; should be sane at the time of marriage.
    • The parties shall not be within the prohibited degree of relations as prescribed under their law.
    • While considering the age,  the male must be at least 21 and the female be 18 at least.
• Procedure mentioned: The SMA prescribes an elaborate procedure to get the marriage registered.
  1. One of the parties to the marriage has to give a notice of the intended marriage to the marriage officer of the district where at least one of the parties to the marriage has resided for at least 30 days immediately prior to the date on which such notice is given.
  2. Such notice is then entered in the marriage notice book and the marriage officer publishes a notice of marriage at some conspicuous place in his office.
  3. The notice of marriage published by the marriage officer includes details of the parties like names, date of birth, age, occupation, parents’ names and details, address, pin code, identity information, phone number etc.
  4. Anybody can then raise objections to the marriage on various grounds provided under the Act. If no objection is raised within the 30 day period, then marriage can be solemnized. If objections are raised, then the marriage officer has to inquire into the objections after which he will decide whether or not to solemnize the marriage.

 

Hurdles faced by couples:

Section 5 and 6:

• •  
• Under these sections, the parties wishing to marry are supposed to give a notice for their marriage to the Marriage Officer in an area where one of the spouses has been living for the last 30 days. Then, the marriage officer publishes the notice of marriage in his office.
• Anyone having any objection to the marriage can file against it within a period of 30 days. If any such objection against the marriage is sustained by the marriage officer, the marriage can be rejected.

 

What are the Criticisms of SMA i.e. the hurdles faced by inter-faith couples?

• Practical Difficulties: The provisions relating to notice, publication and objection have rendered it difficult for many people intending to solemnise inter-faith marriages. 
• Vulnerable to coercive tactics by family: Publicity in the local registration office may mean that family members objecting to the union may seek to stop it by coercion. 

• Danger posed by fringe groups: 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.
• Intrusion of Privacy: The law’s features on prior public notice being given and objections being called from any quarter, places a question mark on the safety and privacy of those intending to marry across religions. 
• Violation of Right to Equality: In the case of Hindu and Muslim marriage laws, there is no requirement of prior notice and, therefore, such a requirement in the SMA is considered as violation of the right to equality of those opting for marriage under SMA.
• Pushes for religious conversion: Due to complexities involved in SMA, the intending couple finds it easier to settle for marriage under the personal law of one of them, with the other opting for religious conversion.  While conversion to Islam and Christianity has formal means, there is no prescribed ceremony for conversion to Hinduism.

 

The Uniform Civil Code

• A uniform civil code here refers to a single law, applicable to all citizens of India in their personal matters such as marriage, divorce, custody, adoption and inheritance.
• The Constitution in Article 44 requires the State to strive to secure for its citizens a Uniform Civil Code (UCC) throughout India. However, no action has been taken in this regard till date.
• Uniform Civil Code seeks to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen.

 

 

Way Forward

• 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.
• 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.
• UCC 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.
• 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.