New Delhi: The Madhya Pradesh High Court ruled against providing protection to an interfaith couple seeking to marry under the Special Marriage Act, 1954, stating that under Muslim Personal Law, the marriage between a Muslim man and a Hindu woman is considered invalid.
The court’s decision was based on the interpretation of Muslim Personal Law, which deems the marriage of a Muslim man to a Hindu woman, who is an idol or fire worshipper, as invalid or irregular, thus categorising it as a “prohibited relationship”.
“As per Mahomedan law, the marriage of a Muslim boy with a girl who is an idolatress or a fire-worshipper is not a valid marriage. Even if the marriage is registered under the Special Marriage Act, the marriage would no longer be a valid marriage and it would be an irregular (fasid) marriage,” Justice G.S. Ahluwalia said in a 14-page order dated 27 May, rejecting the couple’s petition for police protection.
The court was hearing a petition of a Hindu woman and a Muslim man who sought police protection so that they could safely meet with a marriage officer to register their union under the Special Marriage Act.
The SMA allows for the “registration” of marriages with a marriage officer regardless of one’s religion. However, the Act says that any marriage, which is within a “degree of prohibited relationship”, cannot be solemnised under the Act.
According to the petitioners, although they were in love, they were unable to formalise their marriage under the SMA due to their inability to present themselves before the marriage officer owing to an objection raised by unnamed respondents in their petition.
They also expressed their desire to follow their respective religions, without interfering with another’s. The couple also argued that being a secular law, SMA would override personal laws. However, the judge refused to accept this contention.
Meanwhile, the legal experts ThePrint spoke to called Justice Ahluwalia’s interpretation of the term “prohibited relationship” flawed and against several judicial precedents that protected interfaith couples
They argued that the SMA is designed to enable inter-religious marriages, especially against familial opposition, and that the term “prohibited relationship” within the SMA pertains to “blood relationship” and not “prohibition due to difference in religion”.
In this background, ThePrint explains the judgment, the contours of the Muslim Personal Law and the concerns expressed by experts on the derogation of the law.
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‘Erroneous and flawed interpretation’
Under Muslim law, marriage is considered a civil contract with three distinct classifications — a valid marriage (sahih), an irregular or invalid marriage (fasid), and a void marriage (batil). Marriage with a deity or fire-worshipper is not a void or batil marriage, but merely invalid.
According to the HC judgment, “Mahomedan male may contract a valid marriage not only with a Mahomedan woman but with a Kitabia — that is a Jewess or a Christian — but not with an idolatress or a fire-worshipper.”
Citing Mulla’s Principles of Mahomedan Law, the judgment distinguished between void and invalid marriages, with the former being unlawful from the very beginning and the latter being invalid due to specific circumstances, which can be cured.
One of the reasons given in Mulla to treat a marriage under Muslim law as irregular or invalid is when a marriage is prohibited by reason of difference of religion. The reason why such a marriage is described as irregular or invalid is because the reason for it being one is curable. Meaning thereby, if one of the two partners accepts or embraces the faith or the other, then such a marriage can become valid.
In the present case, however, the MP HC said, the Hindu woman did not intend to convert and, therefore, the marriage would remain an irregular one, which cannot be legalised under the SMA because the union would remain a prohibited one in the Muslim Personal Law.
The court also cited Section 4 of the SMA, stating that marriages prohibited under personal law cannot be solemnised under this legislation. “Section 4 of [the] Special Marriage Act provides that if the parties are not in a prohibited relationship, then only marriage can be performed,” the court said.
The High Court also cited a 2019 Supreme Court ruling to clarify the nature of an irregular marriage under Muslim law. However, the SC did not classify such a marriage as a “prohibited relationship”.
The 2019 SC ruling dealt with the issue of whether a child born out of such an irregular marriage would be an illegitimate one. Holding it in the negative, the judgment said the child out of this union would enjoy ordinary rights under the law.
Meanwhile, according to senior advocate Geeta Luthra, the HC judgment defeats the purpose of SMA, which has been enacted to help interfaith couples marry.
“It is an erroneous and flawed interpretation. A marriage under SMA is irrespective of religion. The only question you can look at is whether such a marriage is permissible under SMA,” Luthra said.
She explained the term “degree of prohibited relationship” used in Section 4 of SMA is where somebody is related by blood and in consanguinity.
“These are not those relationships where a Muslim marries a Hindu. This interpretation has never happened. Court after court gives inter-religion marriage protection, as long as you are 18 and 21 and you are not married before. Court has a duty to give the right to privacy to every human being under the constitution and protection under the law,” she said.
Echoing Luthra, Supreme Court advocate Aparna Bhat told ThePrint, “Prohibited relationship in SMA is someone with common ancestors and does not apply to inter-faith unions. SMA came into force to assist people from different religions to marry each other without any hurdle,” she said.
According to her, all personal laws restrict respective community members for various reasons to marry people from other religions. “To overcome this, the SMA was enacted. If within the SMA the courts cannot give protection then the Act is of no consequence to anyone,” Bhat added.
Akshat Jain is a student of the National Law University, Delhi, and an intern with ThePrint.
(Edited by Richa Mishra)
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If the two persons are truly in love, then this is a non-issue. Either the man can get married by going to a Arya Samaj temple or the woman can convert to Islam and get married in a Nikkah. Generally, the Hindu woman is pressured to convert to Islam, which is a one way street.
Of course SMA is there. But my experience with SMA is, it is a bureaucratic exercise. Better go for SMA registration after having children! It looks like one of the parties is not exactly in love in this case and it is a marriage of convenience. Why ask the government for protection then?
This level of social devolution should be by default expected when you vote in a dictator who fools people in the name of religion to the top.