Special Marriage Act in Absence of Uniform Civil Code

  • Shambhavi Singh
  • Show Author Details
  • Shambhavi Singh

    Student at Bennett University (School of Law), India.

Abstract

The Uniform Civil Code (UCC) requires the definition of one law for whole India, which would be appropriate to people of all faith, in issues regarding marriage, separation, inheritance, and adoption. The code goes under Article 44 of the Constitution of India, which sets out that the state will attempt to make sure about a Uniform Civil Code for the residents all through the region of India. On the question of bringing uniform civil code in India, a report by the Law Commission of India in the year 2018 expressed that the Uniform Civil Code is "neither necessary nor attractive at this stage" in the country, secularism can't repudiate the plurality in the country. In a country like India which is such huge pluralistic society, Uniform Civil Code might be disruptive to the integrity and harmony of the society. It would be wrong to force people to follow one law and will also be huge disrespect of the faith of people. So, how do we protect the interests of the citizen who rise above the religious boundaries and decide to do inter-faith marriages. The Special Marriage Act, 1954 gives a common or uniform marriage to all citizen of India irrespective of their religion and caste. In this manner it allows any Indian citizen to have their marriage outside the domain of a particular strict religious law. While presenting the Bill in the Lok Sabha C.C. Biswas articulated that the said bill was an endeavour to set down uniform regional law of marriage for the entire country. The first step towards Uniform Civil Code. The question that lies here is whether in absence of uniform civil code in India, the Special Marriage Act is the best alternative that we have in order to protect the interests of people in inter-faith marriages.

Type

Research Paper

Information

International Journal of Law Managment and Humanities, Volume 4, Issue 3, Page 295 - 301

DOI: https://doij.org/10.10000/IJLMH.11451

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.

Copyright

Copyright © IJLMH 2021

I. Introduction

This paper talks about Uniform Civil Code and its implementation as well as it critically analyses the scope of Special Marriage Act. Marriage is viewed as a very pious establishment in our India. It is a basic piece of our way of life. India is a different country and, in this manner, has individuals from various religions and societies, living here. Being a secular country, it gets little complex to manage to secure constitutional and personal rights of every citizen.

II. Personal laws

Personal law is characterized as a law that applies to a specific class or gathering of individuals or a specific individual, in view of the religions, belief, and culture. India is a country where there are multiple caste and religion. These laws are made by considering various traditions followed by that religion, they are supported by scripture laws. The laws of the country allow each and every person to practice their personal religious laws just it should not be violating any fundamental rights. Special marriage act is a civil alternative which can be opted voluntarily by a person in place of personal laws.

Hindu law was codified by Parliament of India during the 1950s, eradicating particular practices, however imbalances between men and women still exists in the law. [2] Whereas Muslim Laws has yet to be codified by the parliament. The Special Marriage Act is a civil alternative of the Personal Laws.

III. Uniform civil code (ucc) and its implementation

Uniform Civil Code is defined under Article 44 of Directive Principles in the Constitution of India. It expresses that the obligation of the state is to get its citizen a uniform civil code which in simple words can be stated as one common law for whole India. It aims to govern all the personal matter in the same way irrespective of the religion. Directive Principles are mere directions that a state can implement for the good governance and it does not need to be mandatorily followed.  In, Balwant Raj v. Union of India[3], Justice Dhawan stated-

“The rights revered in the order standards are not justiciable however, these standards have been made ” crucial in the administration of the country” under Article 37 which gives that it will be the obligation of the state to apply them in making laws. The expressions ” making of laws” is adequately wide to incorporate their understanding and consequently the courts should decipher the laws in the light of the Directive Principles.”[4]

As per the Constitution, India is a secular which means state would not differentiate its citizen on the basis of religion. Justice Jag Jeevan Reddy in the case of S R Bomai v. Union of India[5] stated that, religion is the matter of individual faith and belief and can’t be blended in with secular exercises, it can be managed by the State by establishing a law.

In the case of Mohd. Ahmed Khan v. Shah Bano Begum[6], it was held by the Hon’ble Supreme Court that-

“There is no contention between the arrangements of section 125 and those of the Muslim Personal Law on the topic of the Muslim husband’s obligation to give support to a separated from wife who can’t look after herself.”

After alluding to the Quran, holding it to the best expert regarding the matter, it held that there was no uncertainty that the Quran forces a commitment on the Muslim husband to make arrangement for or to give upkeep to the separated from wife. Shah Bano moved toward the courts for getting maintenance from her husband. At the point when the case arrived at the Supreme Court of India, seven years had slipped by. The Supreme Court Conjured Section 125 of the Code of Criminal Procedure, which applies to everybody paying little heed to rank, doctrine, or religion. It decided that Shah Bano be given support. The court also expressed disappointment for not achieving Uniform Civil Code yet.

Uniform Civil Code is majorly being pushed by women. It is regularly seen that personal laws of practically all religions are prejudicial towards women. Men are normally allowed upper particular status in issue of inheritance and succession. Uniform civil code can help in bringing both the genders at standard.

Major reason why Uniform Civil Code seems still a distant dream is pluralism in Indian Society. The contention depends on the way that India invests wholeheartedly in its respectability inside diversity. For looking after the diversity of nation, we need to regard each minority individual decisions and laws are respected equally. That is the thing that has driven this country to live in harmony for a long length of time.

The inquiry that we need to pose to ourselves is that if the infringement of individual laws is worthy. One question which quite often raised by the people who are against implementation of Uniform Civil Code is that how is the government going to decide that what laws should be improved and what laws fit consummately inside the skeleton of UCC. Numerous religious communities, especially minority see Uniform Civil Code as an infringement on their right to religious freedom which is a fundamental right. They dread that a typical code will disregard their customs and force rules which will be for the most part directed and affected by the majority[7]. For the current government to completely carry out a useful Uniform Civil Code, it is important that they define a code that is satisfactory to every one of the religions.

A report by the Law Commission of India in the year 2018 expressed that the Uniform Civil Code is “neither necessary nor attractive at this stage” in the country, secularism cannot repudiate the plurality in the country. In a country like India which is such huge pluralistic society, Uniform Civil Code might be disruptive to the integrity and harmony of the society.

IV. Special marriage act- a civil alternative

The Special Marriage Act, 1954 (hereinafter referred to as “The Act”) is a significant milestone in the secularization of the personal laws in India.[8] The Act gives a common or uniform marriage to all citizen of India irrespective of their religion and caste. In this manner it allows any Indian citizen to have their marriage outside the domain of a particular strict religious law. While presenting the Bill in the Lok Sabha C.C. Biswas articulated that the said bill was an endeavour to set down uniform regional law of marriage for the entire country. [9]

The hon’ble Allahabad High Court, while giving a request in a habeas corpus observed that it is perplexing that one should change one’s religion just for the sake of marriage. It stated that-

“However, under the Constitution, a citizen has the privilege to pronounce, practice, or engender the religion of his/her decision to the others only for marriage and that’s it. Marriage is one thing belief is another. On the off chance that two individuals from various religions choose to wed, the special marriage act is available to them.”[10]

Inter-religion marriage is a marriage between individuals having a place with two distinctive religion. The Special Marriage Act is exceptional enactment that was ordered to accommodate a unique type of marriage, by enlistment where the gatherings to the marriage are not needed to repudiate his/her religion.

For marriage under this Act, the gatherings need to record a notification communicating their expectation to wed one another, with the Marriage Registrar of the region in which in any event one of the gatherings to the marriage has dwelled for at any rate 30 days going before the date on which such notification is being documented. The marriage is then supposed to be solemnized after the expiry of 30 days from the date on which such notification has been distributed. Be that as it may, if any individual identified with the gathering’s objects to this marriage and the Registrar discover it to be a sensible reason for complaint, at that point he can drop the marriage on such grounds. For a substantial marriage, it is additionally necessitated that the gatherings give their agree to the marriage before the Marriage official and three observers.[11]

Since it is realized that between castes or between religion relationships are as yet thought to be no-no in our country the foundation of the Special Marriage Act was of extraordinary criticalness. These relationships energize correspondence among the residents and thus its individuals attempt to collaborate more with one another and comprehend and regard one another and their disparities. It sets a model for others that how love and regard can make a free and cheerful age, which is over the position framework and its indecencies.

The Hon’ble Supreme Court has featured the need of enlisting all relationships of Indian residents having a place with different religions in their individual States following the solemnization of the marriage in its judgment in Seema v. Ashwani Kumar[12]. The court observed that-

 “the marriage of all people who are citizens of India having a place with different religions ought to be made obligatorily registrable in their particular states where the marriage is solemnized. In the event that the marriage is enlisted the debate concerning solemnization of marriage can be kept away from, it will secure women’s privilege identifying with marriage an extraordinary broaden.”

The necessary enlistment of marriage would check under age marriage or non – age relationships, bigamous relationships, and deceitful relationships. Enlistment should be made necessary to maintain a strategic distance from supposed relationships and to demonstrate the situation with ladies and the authenticity of kids resulting from that wedlock. Due to non – enrolment of marriage, a lady who has given herself genuinely, inwardly, and in any case acquires only stands to lose everything if the marriage is denied by the men. Compulsory registration is the most unique as well as the best feature of the act.

The act does have its own limitations and inconsistencies. On account of Pranav Kumar Mishra v. Govt. of NCT, delhi, the hon’ble Delhi High Court, noticed:

“the exceptional marriage Act was sanctioned to empower a unique type of marriage for any Indian public proclaiming various beliefs or craving a uniform type of marriage. The outlandish exposure of wedding plans by two adults qualified for solemnize it might, in specific circumstances, endanger the actual marriage. In specific occurrences, it might even jeopardize the life or appendage of either party because of parental obstruction. In such conditions, if such a technique is being embraced by the specialists, it is totally unusual and without the authority of law.”

Despite of its inconsistencies, Special Marriage Act is the only Civil Alternative that respects the rights of inter-faith marriages.

V. Conclusion

From the abovesaid discussion, it is on the right track to infer that a mainstream India needs a uniform Civil Code yet a pressing need to constrain any Uniform Civil Code on a populace impervious to change isn’t required. Most individuals are not genuinely prepared to receive mainstream laws not the same as strict traditions. The Uniform Civil Code can be effectively presented just once we accomplish improved degrees of proficiency, mindfulness on a few socio-policy-centred issues and authentic conversations and expanded social and strict versatility. A definitive point of improving the Uniform Civil Code ought to be for guaranteeing equity, solidarity, and respectability of the country and equity between the two people. While executing the UCC all through the country we should take into light the thought of the way that the issues of the minority strict gatherings ought to be appropriately tended to including frailty of complete loss of distinguishing inside Indian culture. While we are still far from getting a Uniform Civil Code. Until then Special marriage act is the best alternative that we have in order to protect the interests of people in interfaith marriages. The above examined general and lawful parts of the Special Marriage Act holds high significance not just for individuals who have enlisted their marriage under the demonstration yet in addition to every one of the residents of the country to have a superior comprehension of the law and treat the relationships between various positions and religions to be similarly hallowed and propitious like the relationships between one’s own caste.

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VI. Bibliography

  1. V Parliwnenta’-y Debastes, House of the People, 7797 Pt. II (1954)
  2. https://timesofindia.indiatimes.com/india/why-india-doesnt-have-a-uniform-code/articleshow/60200314.cms
  3. Balwant Raj v. Union of India AIR (1968) All 14.
  4. Keshavananda Bharati v. State of Kerala and Another, AIR (1973) SC 1461.
  5. S R Bomai v. Union of India, AIR 1994 SC 1918.
  6. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945
  7. “How Muslim fears wsere allayed, and the UCC became a directive principle”. Archived from the original on 11 September 2017. Retrieved 13 September2017.
  8. “The Special Marriage Act, 1954 Goes Awry” by B. Sivaramayya,
  9. Zoya Khan @ Smt. Rinki Ganesh Kashaul @ Pinki Kashaul v. State of UP, HABEAS CORPUS No. – 22388 of 2018.
  10. D.M. Derrett, Religion, Law and the State in India 327-28.
  11. Seema v. Ashwani Kumar, AIR 2006 SC 1158.

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[2] Uniform civil court: Why India doesn’t have a uniform code: India News – The Times of India, https://timesofind ia.indiatimes.com/india/why-india-doesnt-have-a-uniform-code/articleshow/60200314.cms (last visited May 6, 2021)

[3] Balwant Raj v. Union of India AIR (1968) All 14.

[4] Id. at 17. Referred to with approval by Beg, J., in Keshavananda Bharati v. State of Kerala and Another, AIR (1973) SC 1461.

[5] S R Bomai v. Union of India, AIR 1994 SC 1918.

[6] Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.

[7]   “How Muslim fears were allayed, and the UCC became a directive principle”. Archived from the original on 11 September 2017. Retrieved 13 September 2017.

[8]  “The Special Marriage Act, 1954 Goes Awry” by B. Sivaramayya, Page 1.

[9] Supra Note 2.

[10] Zoya Khan @ Smt. Rinki Ganesh Kashaul @ Pinki Kashaul v. State of UP, HABEAS CORPUS No. – 22388 of 2018.

[11] J.D.M. Derrett, Religion, Law and the State in India 327-28, f.n- 2 (1968).

[12] Seema v. Ashwani Kumar, AIR 2006 SC 1158.

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