The Madras High Court recently delivered a judgement stating that the marriage between a Christian man and a Hindu woman under Hindu marriage laws is invalid since one of them was not a Hindu, meaning the Christian man should have converted to Hinduism. Thus the court ruled their marriage invalid.
Alternatively, it suggested that the woman could have converted to Christianity and the couple could have married under Christian law. And if neither wanted to convert, they should have gone for the Special Marriages Act, the court said.
The verdict has been received with much displeasure as at the first look, the court seems to be suggesting that one among the couple would have to convert for a legally valid marriage. This has upset many people.
The order however is strong on law. The Hindu Marriages Act does mandate that both the bride and the groom be Hindus. Further, the judgment does say that there is no stopping a couple from getting married without conversion as there is always the Special Marriages Act. So the judges were indeed right.
The judgment also brings to the fore the marked differences between the marriage laws of different religions.
Section 5 of Hindu Marriage Act states that a â€śmarriage may be solemnized between any two Hindusâ€ť.
According to the Indian Christian Marriage Act 1872, however, â€śevery marriage between persons, one or both of whom is a Christian, or Christians, shall be solemnized.â€ť So here, only one has to be necessarily a Christian.
According to the Islamic law, one has to be a Muslim, and the other from any faith which does not mandate idol worship, since it is a strict no in Islam.
It is due to such differences in the marriage laws, and that there will be individuals who would want to get married without converting their religion, that the Special Marriages Act was enacted.
According to the Special Marriage Act 1954, any two people who have attained the age of 18 in case of a girl and 21 years for a boy can file a notice to the marriage registrar of the district for their wedding.
The Madras HC order should be appreciated in wanting to encourage the Special Marriages Act. The awareness about the Act is very low and often either the man or the woman are forced to convert to marry under a particular religionâ€™s law. But is a marriage under Special Marriages Act easy?
Recounting her own experience of wanting to get married under the civil law, journalist Neha Dixit talks about how even lawyers at civil courts are not very encouraging of the Act thanks to the procedures it entails.
For one, the act entails that a 30-day notice is given to the court before the wedding can take place. This is ostensibly to verify the background of the bride and the groom, but only ends up creating hurdles for the couples as in some cases they would want the marriage to happen immediately.
There is also a requirement for a long list of documents to prove the identity of the couple, and a mandatory rule that three witnesses be brought along for the execution of the marriage.
Any person is allowed to inspect the wedding, which can become a hurdle for a couple who have eloped or their families are against the wedding.
If either of the parties is not from the same district then the marriage officer sends the marriage notice to their particular districts and the marriage officer of that area publicises it.
The act also allows any person to object to the wedding before the expiry of 30 days from the date the notice was published. The reasons for objecting the wedding can be that either party has a spouse living, neither party is incapable of giving a valid consent in consequences of unsoundness of mind or the requirement of minimum age. Often, false objections are raised to delay or stop the marriage.
If within 30 days the objection is not withheld then either of the parties can move the district court and the final appeal will come from there. But the process can be a lengthy and time consuming one.
This act also states that the marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion shall be deemed to affect his severance from such family. Such provisions in the Special Marriages Act only end up in harassing the couple rather than encouraging them into a civil marriage.
Ironically, the recent Madras HC judgment said that the woman was free to go to any place at her will and that as per law, she did not need care and protection. But if she had decided to get married under Special Marriage Act, she would have needed protection from the law itself.