Tahir Mahmood

Jurist & former chairman, national commission for minorities

The nation is passing through a crucial period in our history and this court cannot remain silent in matters of great public concern such as the present one’, observed the Supreme Court in a writ petition seeking quashing of criminal proceedings against a young girl and her husband for the ‘crime’ of contracting an inter-caste marriage (Lata Singh vs State of UP, 2006). Deciding the case, the court further held: ‘This is a free and democratic country and once a person becomes major he or she can marry whosoever he or she likes. If the parents of the boy or girl do not approve of an inter-caste or inter-religious marriage, the maximum they can do is to cut off social relations with the son or the daughter, but they cannot commit or instigate acts of violence against the person who undergoes such a marriage.’

Taking cognisance of the growing intolerance for such marriages in society, the court issued a general order: ‘We direct that the administration and police authorities throughout the country will see to it that if any major boy or girl undergoes inter-caste or inter-religious marriage with a major woman or man, the couple is not harassed by anyone, nor subjected to threats or violence, and anyone who gives such threats or commits or instigates violence is taken to task by instituting criminal proceedings against him or her.’

The court’s deep concern for lawlessness did not change the situation. Society continues to witness similar cases of communal tension and violence emanating from such marriages. The latest case of this nature comes from a Haryana village. A shopkeeper’s daughter left her family to marry a tailor of a different religious community. Some people blocked a highway and forced shopkeepers to keep shutters down, demanding that the girl be ‘returned’ to her parents. On being approached by the couple to seek protection, the state High Court directed the police to provide the same, but the couple did not surface for fear of persecution.

The problem of law and order results from interfaith marriages due to the misuse of various personal laws and disuse of the secular law of civil marriages, both of which are widespread. The latter law is contained in the Special Marriage Act 1954, of which people of all communities are either ignorant or deliberately avoid using, believing it to be repugnant to their religion. In 1872, when solemnisation of marriages by religious rites was the order of the day, and none of the prevailing personal laws allowed an interfaith marriage, our British rulers had enacted the Special Marriage Act under which any two persons (irrespective of religion and caste) could contract a civil marriage in a court on declaring that they did not profess any religion. This condition, though seen as a mere formality, kept religious-minded persons away from the Act. In 1922, the Act was amended to provide that if parties to an intended interfaith marriage were from the Hindu, Buddhist, Jain and Sikh communities, they could marry without declaring detachment from religion. For the other communities, the law remained unchanged.

In the eighth year of Independence, the 1872 Act was replaced with the Special Marriage Act 1954, enabling parties to an intended interfaith marriage to remain in their respective religions and yet become husband and wife. To facilitate inter-caste marriages, its provisions are made available also to parties professing the same religion. To couples already married as per religious rites, the new law gives the option of transforming their marriage into a civil marriage by voluntarily registering it under its provisions. This is an option which makes both parties’ personal laws inapplicable to them.

Ignoring or avoiding the new Special Marriage Act, interfaith marriage still generally takes place after one of the parties converts to the other’s religion. In many cases, parents of the parties insist on changing religion, even if they know that it is unnecessary under the law. And there begins the trouble. What creates problems is, in fact, not an interfaith marriage by itself, but conversion from one to another religion — more so if it is from the majority community’s religion to Islam or Christianity. Although the Constitution guarantees freedom of conscience to all, for some sections of the majority community conversion has been and remains a very sensitive issue.

The remedy for the situation lies in educating people that change of religion is not at all necessary for the sake of marrying outside one’s community. The advantages of civil marriages contracted under the 1954 Act over religious marriages solemnised under personal laws are also to be given wide publicity. People are to be told that a Muslim woman — born or convert — on marrying a Muslim man under the said Act escapes the potential risks of bigamy and extrajudicial divorce on his part. Such a marriage also attracts application of the Indian Succession Act of 1925 to the wife’s inheritance rights, which are far more liberal than in Muslim law. Also, procedural provisions of the Act causing undue publicity of an intended civil marriage need to be suitably amended.

In a recent case reported this month, the Supreme Court set aside a directive of the Allahabad High Court given to an interfaith couple being harassed by their relatives that they should register under the 1954 Act their marriage duly solemnised according to religious rites. Technically, the High Court was wrong, but going by the advantages of civil marriages over religious marriages, its direction, if followed, would have clearly been in the interest of the female party. I do recommend a law to the effect that every interfaith marriage, with or without conversion, must be solemnised only under the Special Marriage Act 1954. This may at least reduce, if not eliminate, social tensions resulting from conversion for the sake of marrying outside one’s community.