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Report No. 212

C. Inter-Religious Civil Marriages

The Special Marriage Act is available also for inter-religious marriages and does not exempt any community from its provisions in this respect.

The Hindu Marriage Act 1955 applicable to the Hindus, Buddhists, Jains and Sikhs does not allow them to marry outside these four communities. So, if any member of these communities wishes to marry a person not belonging to these communities, the only choice available would be the Special Marriage Act 1954.

The Muslim law allows certain inter-religious marriages to be governed by its own provisions. Under this law a man can marry a woman of the communities believed by it to be Ahl-e-Kitab (People of Book) - an expression which includes Christians and Jews and may include followers of any other monotheistic faith. Since Muslim law only permits an inter-religious marriage and does not require that such a marriage must take place under its own provisions, it does not come in conflict with the Special Marriage Act 1954.

The Indian Christian Marriage Act 1872 says that apart from ChristianChristian marriages the marriage of a Christian with a non-Christian must also be solemnized under this Act (Section 4). The Special Marriage Act on the other hand says that any two persons (whatever be their religion) can marry in accordance with its provisions. There is, thus, a conflict-of-law situation in respect of marriage of a Christian with a non-Christian.

Unlike the first Special Marriage Act of 1872 the 1954 Act contains its own elaborate provisions on divorce, nullity and other matrimonial remedies. The Indian Divorce Act 1869 would therefore not apply to marriages governed by it. The Indian Divorce Act, however, says that it will apply even if only one party is a Christian. This is another conflict-of-law situation.

In view of these conflicts of various personal laws, all equally recognized in India, it will be in the fitness of things that all inter-religious marriages [except those within the Hindu, Buddhist, Sikh and Jain communities] be required to be held only under the Special Marriage Act 1954. Even if such a marriage has been solemnized under any other law, for the purposes of matrimonial causes and remedies the Special Marriage Act can be made applicable to them. Such a move will bring all inter-religious marriages in the country under uniform law. This will be in accordance with the underlying principle of Article 44 of the Constitution of India relating to uniform civil code.

The word "Special" in the caption of the Act needs reconsideration. In 1872 when the first law of civil marriages was enacted a non-religious marriage could be regarded as "special" as the parties to such a marriage had to denounce their religion. Marriage by religious rites was then the rule and a civil marriage could be only an exception. Now in the twenty-first century calling non-religious civil marriages "special" has little justification.

Being a uniform law which the parties to any intended marriage can opt for irrespective of their religion or personal law, it need not be described as a law providing for a "special" form of marriage. It projects such marriages as unusual and extra-ordinary and creates misgivings in the minds of the general public.



Laws of Civil Marriages in India - A Proposal to Resolve certain Conflicts Back




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