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The high courts of Allahabad and Madhya Pradesh give conflicting rulings on interfaith marriages under the Special Marriage Act

In the month of May this year, two starkly contradictory rulings were issued on the interpretation of the Special Marriage Act (SMA) and personal laws, which could have significant consequences for interfaith couples planning to marry under the SMA and seeking police protection. On May 27, the Jabalpur bench of the Madhya Pradesh High Court passed a judgment dismissing the plea for police protection of the interfaith couple who were threatened by relatives and planned to get married under SMA. The judgment written by Justice GS Ahluwalia states that under Islamic personal law, a marriage between a Muslim man and a Hindu woman would be invalid/irregular (fasid) unless a Hindu woman converts to Islam (or Christianity or Judaism). and the provision under Section 4 of the Special Marriage Act provides that “if the parties are not in a prohibited relationship, only a marriage can be solemnized.” The court therefore interpreted the invalid/irregular marriage (fasid) as a prohibited relationship under Article 4 of the SMA. Notably, in this case, the husband and wife had filed an affidavit stating that neither intends to convert their faith and that they will continue to follow their existing faith.

On May 14, Justice Jyotsna Sharma of the Allahabad High Court issued a separate order on the interfaith couple’s petition seeking police protection, a plea to prevent unwanted interference by the family members and directed the police to ensure that police protection is provided to the interfaith couple. . The couple had prayed before the court that they intended to marry each other under the Special Marriage Act (SMA) without converting their religion. Moreover, petitioners alleged that they cannot move freely and complete their marriage registration process under SMA due to the threats they face from family members and anti-social elements.

The prosecution had opposed their plea, arguing that the couples got married according to the marital agreement, which is not recognized by law and therefore no protection can be provided. While the judge agreed with the prosecutor that “a contractual marriage is absolutely invalid under the law,” she also said, “However, the law does not prevent the parties from applying for a judicial marriage under the Special Marriage commission, without conversion.” Thus, the court in effect granted interim relief to the petitioners who were living as husband and wife in a live-in relationship by providing them with police protection even as it asked the petitioners to solemnize their marriage under SMA before the next date of hearing , that is, July 10. The ruling made it clear that interfaith couples can marry under the Special Marriage Law, without invoking any personal law, provided they do not intend to convert their religion.

The problematic interpretation of the Madhya Pradesh High Court regarding SMA and personal laws

The Special Marriage Act, 1954 (SMA) was enacted for the specific purpose of allowing interfaith and interfaith couples to marry and register their marriage as such without relying on the respective personal laws of the parties, which largely lines are conservative and restrictive, and directly or indirectly aimed at ensuring endogamy. The Statement of Objects and Reasons for the SMA Bill noted that the objective of the Bill is “to provide a special form of marriage which can be benefited by all in India and by all Indian citizens abroad, irrespective of creed. which each party to the marriage may profess.” The result is that the judgment of the Supreme Court MP is contrary to the objectives of the SMA, and furthermore, the interpretation of Section 4 of the SMA is flawed as reported Through The print. Section 4(d) of the SMA states that special marriages may be solemnized under the law, provided that “the parties are not within the degrees of prohibited relationship.” It also explains that “where a custom governs at least one of the party’s marriage licenses, such marriage may be solemnized despite being within the degrees of prohibited relationship.” The provision therefore clearly reveals its facilitating and liberal nature, in contrast to the restrictive provision interpreted by the court. It is significant that this subject is being discussed with the lawyers The print ruled that “prohibited relationships” as stated in Article 4 of the law have nothing to do with “difference in religion” as interpreted by the court, but are instead aimed at restricting marriages between blood relatives or consanguineous relationships. The court therefore misinterpreted the “prohibited relationship”, which does not include interfaith relationships.

Furthermore, the court relied heavily on Islamic personal law to reject the petitioners’ plea and conclude that interfaith couples cannot marry under the SMA if the woman converts to Islam. The court’s reasoning in this case is based on Islamic personal law, which classifies marriage into three different categories, namely valid (sahih), invalid (fasid) and void (batil). While batil marriages are illegal and irreparable ab-initio, fasid marriages are invalid/irregular due to external circumstances and can be remedied to make it valid. In the present case, the only way to remedy the invalid marriage under Islamic personal law would have been for the girl to convert to Islam (or Christianity or Judaism), but this cannot take place because the couple has already informed of their marriage. decision not to change their religion. As a result, the court concluded that a marriage under personal law would not be possible in the present case, and given the court’s interpretation of Article 4 of the SMA, it noted that the request cannot be maintained because the valid marriage cannot take place due to non-compliance with the provisions of Islamic personal law and SMA. The judgment reads: “A marriage under the Special Marriage Law would not legalize marriage, which is otherwise prohibited under personal law. Section 4 of the Special Marriage Act states that if the parties are not in a prohibited relationship, only a marriage can be solemnized.”

The judgment cites the Mullah Principles of Mahomedan law to highlight the issue of forbidden marriage due to “difference of religion” in the personal law, and quotes from multiple editions of Mullah to underline that “(1) a Mahomedan man is not can only enter into a valid marriage, but also with a Mahomedan woman, but also with a Kitabia, that is to say a Jewess or a Christian, but not with an idolater or a fire worshiper. However, a marriage with an idolater or a fire worshiper is not invalid, but only irregular.” It further states that “since Hindus are idol worshipers, which includes the worship of physical images/statues by offering flowers, ornaments, etc., it is clear that the marriage of a Hindu woman to a Muslim man is not regular or valid (sahih) marriage, but merely an irregular (fasid) marriage.” Moreover, the order also states that under Islamic personal law, fasid marriage has no legal effect before consummation, and even after consummation, it does not create legal inheritance rights between husband and wife.

Apart from the undue and excessive reliance on the personal law, the judge also rejected the petitioners’ argument that Nikah would not be mandatory under the personal law as they want to solemnize a marriage under the Special Marriage Act. Moreover, it did not address the judgment of the Supreme Court in the case of Lata Singh vs. State of UP (Writ Petition (Crl.) 208 of 2004), on which the petitioners relied to seek police protection.

Dismissing the petition, the court said: “Under Mahometan law, the marriage of a Muslim boy with a girl who is an idolater or a fire worshiper is not a valid marriage. Even if the marriage is registered under the Special Marriage Act, the marriage would no longer be a valid marriage, but an irregular (fasid) marriage.” Curiously, it also raised the issue of live-in relationship and said, “It is not the case of the petitioners that if the marriage is not solemnized, they are still interested in a live-in relationship. It is also not the case of the petitioners that petitioner No. 1 would accept the Muslim religion.”

You can read the judgment of the Madhya Pradesh High Court here:

You can read the judgment of the Allahabad High Court here:

Related:

Allahabad HC: Repeated rejection of pleas for police protection of interfaith couples, here’s why it’s problematic | CJP

Allahabad High Court quashes FIR against couple accused of ‘conversion’ charges, upholds freedom of choice | CJP

CJP and other rights groups challenge Maharashtra Govt GR to set up committee to “monitor interfaith marriages” | CJP

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