All You Need to Know About: Allahabad High Court’s Judgement on SMA

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Introduction

Marriage is a social institution, and in India, marriage is considered very sacred. In which a boy and girl get the right to live a family life. Many religious people in India have marriages between them, and for this, the Special Marriage Act 1954 has been formed in India. Under this, people who belong to different religions can marry. Such marriages are conducted in the court by Sub-Divisional Magistrate (SDM) or additional district magistrate (ADM). But at present, getting married between people of two different religions is becoming a bit difficult. Because in many places, the marriage of a girl or boy is done by converting their religion, which is known today by the name of ‘Love Jihad.’ To prevent these incidents, first Uttar Pradesh has passed an ordinance called ‘Uttar Pradesh Vidhi Dharma Conversion Prohibition Ordinance,’ which is in discussion these days because this ordinance is partially harming the couple who live their lives in peace. Under which a couple has asked for help from Allahabad High Court and as a result, Allahabad High Court has given some Judgment which is in the interest of all the couples and all those who will marry in different religion will no longer have trouble in their ‘right to privacy.’

Understanding Special Marriage Act, 1954

Before discussing the Special Marriage Act 1954, we need to know how marriages occur in India. According to the Hindu Marriage Act and the Muslim Personal law, people can marry under their respective customs. Also, people can marry under the Special Marriage Act. The main difference between all these is that under the Hindu Marriage Act, the only two Hindu adults (a girl and a boy) can marry each other with their proper consent. Under Muslim Personal Law, only two Islam adults (a girl and a boy) can Nikah with his proper consent in front of the Maulvi. Under the Special Marriage Act, two adults of any religion can marry each other without changes their religion before marriage or after marriage. For example, Indian Actor Safi Ali Khan and Actress Karena Kapoor did their marriage under the Special Marriage Act without changes their religion. Even now, not Kareena or Safi changed their religion after their marriage along. Whatever method a couple uses for marriage, it does not matter whether the marriage is done under Hindu Marriage Act, Muslim Personal Law, and Special Marriage Act. Subsequently, a wife gets all the rights over her husband.

Conditions for the marriage in the Special Marriage Act[1]: – to get married, it is necessary that a boy and girl are not already married. According to Indian law, a boy must be 21 years of age to marry, and a girl must be 18 years old. This age applies to every religion, and if marriage is less than this age, it is considered a legal offense. A boy and girl must not have any mental issues, and also, they should give free consent for marriage without any undue influence.      

Further, whoever wants to marry under the Special Marriage Act, 1954 would be given notice thereof in writing form specified, and deposit the age documents along with the affidavit to the District Civil Court of their jurisdiction. Couples desirous of getting married are informed about their marriage by the marriage officer of the district on the information board. The notice lasts for thirty days from the date given, and if anyone has objections from the party’s wedding within these thirty days, they will come to the marriage office and describe their objection as per the procedure. After the expiry of the thirty-day notice, no one has any objection to the party’s marriage. Therefore, the parties appear before the SDM or ADM for the marriage with the two marriage witnesses and the registrar. Parties take the oath before the SDM or ADM, and by them issued the marriage certificate to the parties.

In the end, people and lovers of any religion who are in love can marry each other without converting and leaving their religion under the Special Marriage Act, 1954. The marriage is conducted by a sub-divisional magistrate or additional district magistrate in the court, which does not involve any pundit, maulvi, and pastor. There are only two marriage witnesses are required.

Controversy regarding Uttar Pradesh Prohibition of Unlawful Conversion of Religion ordinance 2020.

There is no law in India against marrying one religion to another because India is a secular country. Recently, the Uttar Pradesh Cabinet has drafted an ordinance regarding conversion and inter-caste marriage. This ordinance will check whether its sole purpose is to convert a girl’s religion and marry her. Because in any case, it happens, then the guilty can be imprisoned for up to ten years.

According to the “Uttar Pradesh Vidhi Virudh Dharma Sam Parivartan Pratishedh Adhyadesh 2020” (Prohibition of unlawful religion conversion), the marriage will be declared ‘Sunya’ (Null and void) if the “sole intention” was to “change a girl’s religion.” And guilty could be imprisoned for up to ten years. If it is found that any girl’s conversion regarding religion has been done through coercion, torture, or deception, then it will be a non-bailable offense. Also, the guilty would face fined fifty thousand rupees.

The UP government has decided in the matter of religious conversion that the guilty can be fined a minimum of fifteen thousand rupees or imprisoned for one to five years. In case of religious conversion of Scheduled Caste / Scheduled Tribe girl or under eighteen years of age, the convict may face a fine of twenty-five thousand rupees or imprisonment from one to ten years.

The U.P Cabinet minister Sidharth Nath Singh said regarding that ordinance. It will come to maintaining the normal law and order in Uttar Pradesh. Additionally, justice for women, especially for Scheduled Caste/Scheduled Tribe women. Also, he said we have found more than a hundred cases of changes in religion. And by lying, deceiving, forcing, or forcing the heart to do all this to change the religion of a girl. So, it is necessary to have a law in this context. Last year, the U.P State Law Commission submitted a report on the subject to Chief Minister Yogi Adityanath, along with a draft ‘U. P freedom of Religion Act, 2019.’ It proposes that ‘ Conversion is done for a sole purpose of marriage to be declared null and void.’

Now, what is happening controversy has started on that ordinance. Because as we know, India is a secular state but, due to that ordinance, has arrived distress the right to choose a life partner. If lovers of different religions want to marry each other, they are afraid of the ordinance, due to which they cannot choose the partner of their choice. Uttar Pradesh’s ordinance is unconstitutional, which is clearly violating Article 19 of the Constitution of India. For this, the Public Interest Litigation is also in place in the Allahabad High Court. In addition, the Allahabad High Court has taken note of certain sections of the ‘Special Marriage Act’, which is negatively affecting the lives of some peaceful couples. Consequently, in the case of Safia Sultan v. Uttar Pradesh, the court ruled in favor of the couple.

Allahabad High Court’s take on the issue

After the Religion changes ordinance passed by the ‘U. P government, the Allahabad High Court paying attention to the ordinance.’ They found that an important issue under a case is that the notice of the people getting married by the marriage officer is put on the notice board of the marriage office according to the Special Marriage Act and asked ‘ whether anyone has any objection this marriage. All this is the exploitation of the right to privacy of those who marry. Because the decision of two people to get married is their own, there is no need to seek the opinion of others in this marriage. Which indicates exploitation of the ‘right to choose.’ Therefore, this is a matter in front of Allahabad High Court, which is a deep issue.

Critical Analysis

According to the Uttar Pradesh Government, there is an earlier judgment of the Allahabad High Court in favor of the U.P ordinance. ‘Conversion just for the sake of marriage cannot be accepted[2].’ Therefore, The U.P Government said that we would ensure adherence to the earlier ruling of the Allahabad High Court, and also bring a strict law to put a check on the ‘Love Jihad.’ Presently, in the case of Safiya Sultan v the State of U.P, the Allahabad High Court observed that the earlier verdict does not set down a good law in society.

Presently, in the case of Safiya Sultan v the State of U.P, the Allahabad High Court observed that the earlier verdict does not set down a good law in society. Now, the Court said the ‘right to live’ with a person of his/her choice irrespective of religion professed by them, is intrinsic to the right to life and personal liberty. Interfering in a personal relationship would be a serious breach of the ‘right to freedom of choice of two persons.’ ‘We fail to understand if the law permits two-person even of same-sex to live together peacefully.’ Then, neither any individual nor a family nor even the state can have the right to objection their relationship of two major independent individuals. That observed by the Judges together.

Also, the Judges refer to the Supreme Court’s Judgement in K.S. Puttaswamy v Union of India. Which deals with the ‘right to privacy’ of an individual. ‘The autonomy of an individual is the capacity to makes a decision on vital matters of concern to life.’ Indeed, the opinion of the Center has told Parliament that the word ‘Love Jihad’ is not defined under any present law, and no case has been reported by any central agency. Also, the Census does not record any interfaith marriages, and the center has not convicted any nationally representative survey to find out about such marriages. Although, only BJP ruled states make a law on the ‘Love Jihad.’

In the case of Safiya Sultan v. The State of UP (Habeaus Corpus), a Muslim girl, Safiya, married a Hindu boy, Abhishek. Following the new ordinance passed by the UP government, Safiya’s father lodged an FIR against Abhishek, her daughter’s husband, stating that her daughter was a minor and had been converted and got married. When both sought help from the Allahabad High Court, the court asked why you did not marry under the Special Marriage Act and converted and got married. His lawyer said that if he had done this, he would have had to apply for his marriage a month in advance, the notice of marriage would remain on the notice board for thirty days so that all those who objected to that marriage would come forward and this notice would come to also their homes. Which would threaten their privacy and life. Because all this is not possible in a love marriage, so they converted and got married. The court found his point to be true since Safia was not a minor. The court decided that henceforth the notice will be with the consent of the married people from now.

Conclusion      

Conclude, this ordinance directly violates the right to privacy, freedom of choice of the life partner, and personal liberty. This is a deep issue, due to that Allahabad High court take note some sections of the special marriage act, 1954. Also, they had ruled that from now the notice of marriage on the notice board of the marriage office is not mandatory. It up to couples, whether they want to publish it or not. We may hope this ordinance would be challenged in the Supreme Court of India.


[1]Conditions relating to solemnization of special marriage, under Section 4 of the Special Marriage Act.

[2] Noor Jahan Begum @Anjali Mishra & Anr. v. State of U.P. & Ors (2014),

Author: Aditya Kohli, Dharmashastra national law university, Jabalpur, M.P.

Editor: Kanishka Vaish, Editor, LexLife India.

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