Your plea is that this is a violation of the privacy of the couples. But imagine if children run away to get married, how would the parents know about the whereabouts of their children? If [a] wife runs away, how would the husband come to know?” Chief Justice of India S.A. Bobde said this year, in response to a PIL challenging the 30-day notice period of the Special Marriage Act of 1954.
The Special Marriage Act is a civil law enacted in 1954 that allows the solemnisation of marriages between any two individuals without religious customs, rituals, or ceremonial requirements. More importantly, the Special Marriage Act critically creates provisions for the marriage of interfaith couples without religious conversions — a requirement for marriages under personal laws such as the Hindu or the Muslim marriage acts. There exist some critical fundamental differences between civil marriages under the Special Marriage Act when compared to marriages under personal laws. These provisions are most problematic for couples who wish to marry against the wishes of their families.
Difference between marriage under Special Marriage Act and personal laws
The first difference and a critical requirement under the Special Marriage Act is the 30-day notice period. Under this, applications are usually accepted at the Sub-Divisional Magistrate’s (SDM) office, or with a marriage officer located in the district where one of the individuals reside. After checking the application, a notice is sent to the couple’s permanent address (an address most young people share with their parents and families), along with being displayed at the SDM’s notice board.
Many couples who elope prefer to marry outside of their local jurisdiction to avoid familial pressure, and although provisions allowing this do exist, notices are still sent to the marriage officer of the local district. Such displays have also made couples (especially interfaith couples) a target of familial and societal harassment from vigilante groups. Such a clause is absent if one plans to marry under personal law, thus the existence of it under the Special Marriage Act is discriminatory and violates the right to equality (Article 14).
Second, marriage under the Special Marriage Act requires an extra witness – three, instead of two in the case of marriage registration under personal laws. Witnesses play an important role under the Act, as they can be called to testify in case any objections are raised during the 30-day notice period. This extra responsibility might make one think twice before agreeing to be a witness, adding an extra layer of complexity in the overall process.
Despite these issues, couples who choose to use the Special Marriage Act find that there is a complete lack of transparency around the process. In addition, many states such as Delhi have made the registration process completely online, which accentuates issues of access, since this requires basic legal/computer literacy and facilities such as internet services. A lack of this can result in corruption and potential harassment by middlemen, especially in the case of interfaith couples.
On surveillance and deterrence
The 30-day notice period, the requirement for an extra witness, and the need to inform families are elements that are absent under personal laws. Marriages under personal laws are possible with immediate effect without parents’ knowledge or permission. Evidently, systematic biases exist for couples who wish to marry under the Special Marriage Act.
Lawmakers’ perspective towards such unjust requirements also speaks volumes about how the Special Marriage Act is perceived. Justice Bobde’s response to the 30-day notice period, quoted at the beginning, highlights the multiplicity of identities that lawmakers hold — here, as parent and judge.
Additionally, by referring to consenting adults as ‘children’ and inviting objections under the Special Marriage Act, lawmakers like Justice Bobde cease to see young people as decision-makers of their own lives. For many women, marrying a partner of their choice is an attempt to get out of an abusive familial life. In this situation, the notice defeats the right to choose one’s partner by informing and inviting objections from the family, as well as the larger society.
By justifying such clauses and installing checks at every step of the Special Marriage Act, the monitoring of young people’s lives by parents is now getting validity in the law through arguments that prioritise surveillance over an individual’s privacy. The Puttaswamy judgment declared privacy as a constitutionally protected right, reiterating that “personal choices governing a way of life are intrinsic to privacy and that the pursuit of happiness is founded upon autonomy and dignity.”
However, this right is regularly flouted and put aside when it comes to surveillance of the state over its citizens.
Intersection of Special Marriage Act and ‘Love Jihad’
The Uttar Pradesh government has already cleared a law against forceful religious conversions. The law, however, is now being used to target consenting interfaith couples, including those whose parents’ agree to the marriage. Other states, such as Madhya Pradesh and Haryana, are now contemplating laws on ‘Love Jihad’ or ‘anti-conversion’, which use the garb of forced conversions to target inter-faith marriages and require individuals to take special permissions if they wish to convert their religion in order to marry under personal laws. Contrary to the premise of the Special Marriage Act that accepts the existence of interfaith relationships, the current ‘Love Jihad’ laws create scenarios that suggest that every case of inter-faith marriage is actually a case of forced conversion.
Keeping in mind the complexities of the Special Marriage Act highlighted above, and the criminalisation of interfaith marriages in the name of forced conversions, couples are being forced to choose between the devil and the deep blue sea. This twin monitoring from the law and the extreme Right is performing its intended task of discouraging interfaith marriages and maintaining religious ‘purity’.
All in all, the discourse around marriage in India ceases to place adult individuals at the center. Familial and societal forces have always played a role in deciding young people’s futures. By making the implementation of the Special Marriage Act so complex, the law is further complicating the lives of young people who have decided to choose their own partners. Lastly, the attitude of the law is reflected in the name of the act itself — the ‘Special’ Marriage Act. A marriage that is deemed special because it is seen as an anomaly, something that is out of the ordinary and deserves constant scrutiny.
The author is a feminist researcher and activist. She is currently working as the Program Coordinator – Gender Justice at Oxfam India.