How The Special Marriage Act Is Killing Love

There was no contact for some days after that. Then Mohit began hanging out at the shop again and she would sneak up to the terrace of her house for a stolen chat.

He gave her a mobile phone–her first. But when her brother saw her talking on it and complained to his father, she got a “really bad beating,” Amreen said. Mohit stopped coming to the store. Then one night, he managed to sneak on to the terrace to give Amreen another phone but the village dogs barked, and they got caught.

“My father beat me with his belt,” said Amreen. “He said he would shoot me if I met Mohit again. I was locked up inside a room and given no food for days.”

When she turned 18, Amreen’s family fixed her marriage with her elder sister’s brother-in-law. Somehow, Mohit found out and told the brother-in-law that he was in love with Amreen. That marriage was called off.

On 6 January this year, without bothering to inform her, Amreen’s father got her engaged to another man. The wedding was fixed for 30 March. She wept. She stopped eating. It did not matter.

Mohit had managed to smuggle another phone to Amreen and this time she kept it at a relative’s house. As soon as she could get away, she called and told him about her impending wedding.

On the night of 16 March, Amreen fed the village dogs some sleeping pills given to her by Mohit, slipped out of her room, scaled the nine-foot wall around her house and ran away with Mohit who was waiting outside for her.

Mohit had already got in touch with an NGO, Dhanak for Humanity. Amreen was sent to a women’s shelter in Delhi and the local police station back at Meerut was informed that she had chosen to stay there until her marriage to Mohit.

Then on 22 March the nation went into a total lockdown, as a response to the Covid-19 pandemic.

“There was nothing we could do except wait,” said Mohit who had also left his home because it wasn’t safe for him there and was staying with a distant relative.

On 20 May after the lockdown had eased somewhat, the two went to the special district magistrate’s office in Lajpat Nagar, Delhi. But the guard wouldn’t let them in, saying there was nobody inside. They returned 10 days later but still couldn’t get a date.

The counsellors at Dhanak advised Mohit to file a writ petition in the Delhi High Court. On 10 June, the court instructed the special district magistrate to give a date for the marriage. On 25 June, Mohit and Amreen finally submitted the paperwork required for a marriage license and just over a month later, on 29 July they were finally husband and wife.

Amreen’s family remains implacable. They claim she stole Rs 350,000 when she ran away from home, a charge she denied. The couple said the family has threatened to kill them both and it is not safe for them to return home. “I didn’t even attend my sister’s wedding in April,” said Mohit who has managed to get a job as a helper at a medical store in Delhi.

But they have no regrets. “When you write about us,” said Mohit with a flourish of romance, “Call us Mohreen.”

Mohit sent me this poem, A Decision, written by him. “If rituals were made for us to be happy, why not just change the ones that don’t?”

Special Marriage Act’s Arbitrary (And Extra-Legal) Procedures

The course of love in India has seldom run smooth.

Marriages in contemporary times continue to be ‘fixed’ by families with overriding considerations of religion, caste, gotra, astrological alignment, skin colour, family background, status. Rules of endogamy ensure that marriages take place not just within the same faith, but within the same caste.

These “arranged” marriages, sanctioned by parents and the larger community, continue to make up the bulk of all marriages that take place in India. Findings by the Lok Foundation-Oxford University surveys administered by the Centre for Monitoring Indian Economy (CMIE) and analysed by data journalist Rukmini S, show that 93% of respondents had arranged marriages—not very different from the generation aged between 80 and 90 where 94% had had arranged marriages.

But what of that minority that falls in love, and falls in love outside socially-prescribed boundaries of caste and religion?

One barometer of the existing social disapproval of interfaith marriage can be seen in the outrage over a television ad by jewelry brand, Tanishq. The ad depicts a fictionalized interfaith marriage where the Muslim mother-in-law of a visibly pregnant Hindu daughter-in-law is celebrating the baby’s impending arrival with a customary godh bharai (baby shower) ceremony.

Outrage over the ad by right-wing groups on social media led Tanishq to hastily withdraw the ad—a fact that did not deter a vigilante mob from threatening its Gujarat showroom which then pasted an “apology” on its display window.

The Special Marriage Act was enacted back in 1954 for those in interfaith relationships, or even those who just wanted a secular marriage.

Under the provisions of this Act, couples must give 30-day notice, a copy of which is to be displayed in “some conspicuous place” in the office of the marriage officer, usually a district magistrate. This was done in the interest of transparency and to enable those with legitimate objections, an existing spouse for instance, to come forward.

But, said lawyer Saurabh Kirpal, “It’s not as if a spouse is hanging around outside the magistrate’s office to examine notices. In any case there are legal provisions and remedies against bigamy and the other prohibitions under the SMA.”

The conditions for marriage under SMA are clear. Both must be of legal age. Both must be of sound mind. Neither must have a living spouse. And the parties cannot be in a legally prohibited relationship (siblings, for instance).

There is absolutely no scope in the law for either parental objection or any other objections to inter-caste or interfaith marriages.

But of late, marriage documents, including public notices with details of names, addresses and phone numbers, have become a red flag for right-wing activists.

In Kerala, an interfaith couple, Hindu woman and Muslim man, who married on 15 July under the SMA, found their details splashed on social media, including on Facebook groups as evidence of “love jihad”. Although the couple was already married when the social media “revelation” blew up, their details were available online on a public domain for anyone to download.

As it turns out, details of as many as 120 interfaith couples had been leaked on social media by vigilante groups. The Kerala government responded swiftly and has since 25 July stopped the practice of uploading marriage applications on its website.

But this is not the experience in every state.

In Lucknow, capital of UP, S, who asked that her name not be used, applied in October 2019 to the district magistrate’s office to get married under the SMA. There was no parental opposition to her marriage but she wanted a secular marriage minus religious rituals, she said. Within a few weeks, a policeman knocked at the door of her house. Would she mind coming to the station? Would her father?

At the police station the father and daughter were separately asked a barrage of questions: Why get married in court? If everyone was happy with the marriage, then why not from home?

Over a month later, when S hadn’t heard back from the registrar’s office, she decided to go ahead with a Hindu marriage. The trouble and procedural delays just weren’t worth it, she said.

There’s a small postscript to S’s happily-ever-after.

A month after her marriage, the police visited her again at her matrimonial home. Was she happy, they wanted to know. She was, she replied. So, if she wasn’t facing any problems would she mind signing an affidavit to that effect? S did as asked but wondered: “Was I being singled out simply because mine was a love marriage? How many other marriages does the police check up on?”

It is neither legal nor the job of marriage officers to put procedural roadblocks in the way of an intended marriage, but this is what happens very often on the ground. “In Uttar Pradesh it is routine to call couples and often their parents to the police station, particularly in cases of inter-religious marriages,” said Lucknow-based lawyer Renu Mishra of the Association for Advocacy and Legal Initiatives (AALI).

In Delhi too it was routine to send a copy of the SMA notice to the residential addresses of the couple intending to marry through the local police station. In 2009, the Delhi High Court agreed with Pranav Kumar Mishra’s petition opposing this practice. “The unwarranted disclosure of matrimonial plans,” ruled the court was “completely whimsical” and “without authority of law”.

It took a court case in Rajasthan (Kuldeep Singh Meena v. State of Rajasthan, 2018) to stop the practice of posting an intended notice of marriage to the homes of the couple.

In Haryana, executive overreach resulted in a practice of not just dispatching notices to the residences of the couple, but publishing it in a national newspaper as well. This was challenged in the Punjab and Haryana High Court by an interfaith couple where the Hindu woman petitioner argued that since she faced virulent opposition to her intended marriage by her parents, the state’s seemingly arbitrary procedural “checklist”, including a pre-condition that the couple could not be “staying at one place (under one roof)”, to be verified by the local tehsildar, at the time of applying for a license violated her right to privacy.

The condition, argued the petition, amounted to moral policing at a time when live-in relationships were judicially recognized by courts. Hearing the case, the court agreed that the terms and conditions imposed by the state government “largely violate the rights to privacy of the petitioners”. Such provisions, it observed, “appear particularly offensive excessive executive action beyond the purview of the Act and have, therefore, to be ignored.”

There are at present two legal challenges to the provisions of the SMA, asking a couple that intends to marry to publish their private details for public scrutiny. The first was admitted in the Supreme Court on 4 September, and the second in the Delhi High Court on 7 October.

The Supreme Court petition filed by senior advocate Kaleeswaram Raj on behalf of a law student from Kerala, challenges SMA provisions on two grounds. The first, it violates privacy which has been upheld to be a fundamental right (K.S. Puttaswamy v. UOI) And the second, it is discriminatory since notice periods and official enquiries are absent in customary Hindu and Muslim marriage.

“The personal laws and practices of Hindus and Muslims don’t require a notice period, so it is curious that it should be there in a secular law,” said Kaleeswaram. Moreover, he added, “Personal, individual details given to the marriage officer and required to be published not only violates privacy, but is against human dignity and the autonomy of two adults with decision-making capacity.”

Advocate Utkarsh Singh who has filed the challenge in the Delhi High Court agrees. “The idea of a notice period is to ensure transparency. But these conditions—neither party must have a living spouse, both must be of sound mind etc—prevail in religious marriages as well. So, if religious marriages are not put to the test, then why a marriage under the SMA?”

Court Rulings And Ground Reality

Parveen Ansari and Ram Yadav had been friends from school and stayed in touch even after she completed her graduation and he his engineering degree from Uttar Pradesh.

When her brother’s friend saw the two of them hanging out together, Parveen’s family responded by looking for a suitable match for her. Rather than marry someone her parents had picked, Parveen decided to marry Ram.

In March 2020, just before the lockdown, after her parents got her engaged, Parveen managed to sneak away from home and go to the special magistrate’s office in Dwarka, Delhi. “I can’t tell you how much the magistrate scared us,” said Parveen. “He said, ‘Why are you doing this? Get married in an Arya Samaj temple. If you insist on getting married in court, we will have to send a notice to your house and the police will come’.”

But the couple said they had the papers and were prepared to give notice. On their way out, a clerk in the office asked for a small bribe and said the notice would not be sent home.

Nonetheless, 20 days later, the notice arrived at home. “My brother would have killed me that day, but my father restrained him,” said Parveen. Her phone was taken away, she was locked up at home and Ram had to move a habeas corpus (literally, “produce the body”) petition in the Delhi High Court. Under court orders, Parveen was able to leave home on 19 March, but three days later, when the lockdown was imposed, their marriage plans had to be postponed. After a two-month wait, they were finally married only on 20 May.

Writing on Love and Law- Love Marriage in Delhi Perveez Mody, a lecturer at the University of Cambridge, notes: “The process is extremely open ended…anyone who wishes to obstruct the marriage can do so with considerable ease.”

The marriage notice is pasted by a clerk on a corridor on what Mody calls a “wall of infamy”. Couples eager to keep the news from their parents, bribe clerks to either not put up the notification on the board or peel it off so that it is not legible, she writes.

Parveen had a narrow escape. But between 2014 and 2015, the National Crime Records Bureau (NCRB) recorded a 792% spike from 28 to 251 “honour” killings with Uttar Pradesh alone accounting for 68% of these killings.

These murders, committed by the family members of a couple for transgressing caste and religious boundaries, are not recorded under a separate category and the 2017 NCRB report, published after a year’s delay, left out honour killings (along with lynchings) altogether since it deemed the available data to be “vague”.

Anecdotally, it is clear that “honour” killings continue–even during the lockdown. On 27 March, M. Sudhakar, 24, returned from Chennai to his village in Tiruvannamalai district, Tamil Nadu from Chennai and was killed allegedly by his wife’s relatives for marrying outside his caste.

The problem of these so-called “honour” killings is so grave that in 2012 the Law Commission suggested a separate law and even drafted a bill: Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of honour and tradition).

Seven years later, only Rajasthan in 2019 passed a special law for “honour” killings. The Bill never came up in Parliament.

In 2018, a three-judge Supreme Court bench headed by then Chief Justice Deepak Misra while hearing a plea filed by the NGO Shakti Shalini for steps to prevent “honour” killings passed extraordinary guidelines to protect couples.

The Court ordered the setting up of special cells across the country to attend to calls from couples in distress. It asked state governments to establish safe houses in every district for couples who might need it. It listed detailed steps for police to prevent such crimes. And it outlined remedial measures to ensure effective investigation as well as security to the couple and family.

“It was a beautiful judgement,” said advocate Rahul Mehra who appeared for Shakti Shalini. “Unfortunately, courts can only give directions. But these are not implemented or, if implemented, then in a completely lopsided and arbitrary manner.”

This was not the first time that the apex court was intervening to protect the right of consenting adults to live as a couple, free of harassment from their families.

In Lata Singh v State of UP (2006), a two-judge bench of the apex court was unequivocal: “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence.”

Lata Singh had married outside her caste and although she and her husband had had a child, Thakur brothers were not prepared to accept her marriage.

Not only did they threaten her, they physically assaulted her husband’s mother and uncle, took forcible possession of his property and even got the husband’s relatives, including sisters, arrested on trumped up kidnapping charges.

Lata Singh approached the Rajasthan Women’s Commission, the National Human Rights Commission, the U.P. chief secretary, NGOs, including AALI, and anyone who could help. Finally, it was the Supreme Court to the rescue as it ruled that no offence was made out against Lata Singh. It quashed the cooked-up trials, revoked arrest warrants and ordered UP police to protect Lata Singh, her husband and his relatives from violence.

The case of Lata Singh is a cautionary tale that tells of the enormous, sometimes insurmountable, gap between legal protections, including a judgment, and ground reality. A social worker familiar with the case told Article 14 that the property usurped by the brothers is still a matter of legal dispute and even now, 14 years after the Supreme Court judgment, Lata Singh continues to live in Rajasthan, afraid of the repercussions should she ever return to UP.

Memories of Hadiya linger.

While studying in a hostel at a homeopathic college, Akhila, the 24-year-old only child of K.M. Asokan and Ponnamma converted to Islam and subsequently married Shafin Jahan in 2016. Despite the assertions of Hadiya, as Akhila now chose to call herself, before the Kerala High Court that she had converted of her own free will and could not, as her father claimed, be whisked off to Syria simply because she did not have a passport, the court annulled her marriage. A “girl aged 24 years is weak and vulnerable”, the court ruled, assuming the role of “parens patriae” (literally, parent of the nation).

It took a Supreme Court order in 2018 for Hadiya’s marriage and autonomy—not to mention dignity—to be restored.

Like Hadiya, Shruti Meledath had fallen in love with her fellow student, Anees Hameed. On 16 May 2017, Shruti left for Delhi with Anees, converted to Islam and married him.

Shruti’s parents, meanwhile, filed a missing person’s complaint with the Kerala police at Pariyaram Medical College. On 20 June, the police nabbed the couple from Sonepat, Haryana, where they had been living. They were flown back to Kerala and produced separately before the magistrate at Payyannur.

Shruti was handed over to her parents who promptly dispatched her to a yoga kendra in Ernakulam. There she was kept as an “inmate” along with 40 other women. A weeping Shruti was later to tell the court how she and the other women were slapped and kicked if they disobeyed commands. When she cried for her husband, yoga kendra employees stuffed a piece of cloth in her mouth to silence her.

A distraught Anees first moved a lower court for a search warrant for Sruthi and then filed a habeas corpus petition at the Kerala High Court. Only then was Sruthi freed from her illegal confinement at the yoga centre.

The court noted that Sruthi was indeed the lawful wife of Anees, according to their Special Marriage certificate and applauded her “extraordinary courage” while decrying her parents’ attempt to “deflect the course of justice by misleading litigations”.

Whose Marriage Is It Anyway?

Assam’s finance and health minister Hemanta Biswa Sharma, of the BJP is convinced that “Many Muslim boys create fake Facebook accounts with Hindu names and post pictures of themselves at temples. A girl gets married to one such boy, only to discover later that he is not from the same religion.”

There can be no legal validity to a marriage under such false pretexts. But, reported TimesNow, Sharma told a BJP Mahila Morcha meeting on 11 October that “Assamese girls are becoming victims of love jihad.”

The doxxing of the personal details of interfaith couples by vigilante groups on Facebook, which has 240 million users in India, that comb through various sources including the marriage registrars’ offices, is not new. In April 2018, details of a 21-year-old Hindu student and her Muslim boyfriend were revealed. Online groups such as Hindu Against Love Jihad [sic] and Girls–Beware of Love Jihad abound.

The “love jihad” trope is the right-wing’s conspiracy theory of a sinister plot whereby Muslim men snare and entrap innocent Hindu women to marrying them with a purpose of converting them. In October 2018, the National Investigation Agency (NIA) found no evidence of “love jihad” in Kerala and shut its investigation, ordered by the Supreme Court while hearing the Hadiya matter.

Procedural problems with SMA often leave interfaith couples with no choice but for one of them to convert to the religion of the other so that they can get married, noted the 2018 Law Commission report.

Since there is no notice period required by religious marriages, the Law Commission report recommends: Scrap the notice period or put in place adequate protections for the couple.

To get married under the SMA, the first stop for couples is the marriage officer. It is this official who must be satisfied that all papers are in order. But very often it is the marriage officer who proves to be the biggest stumbling block. “The objections begin from the marriage officer,” said advocate Uttkarsh Singh.

“You shouldn’t have to choose between your religion and love,” said Asif Iqbal who in 2005 founded Dhanak For Humanity as a forum where interfaith couples could come together and speak about their problems, gradually expanding its scope to assisting such couples.

“When two people want to get married, they want to do so by any means,” said Asif. “There are so many cases where people opt for conversion rather than go for the hassle of getting married under the SMA.”

At the heart of the debate on the SMA and whether its provisions are perverting its original intention, lies a simple question: the right of adult individuals to choose their partner.

Several human rights treaties including the Universal Declaration of Human Rights and the Convention for Elimination of All Forms of Violence Against Women to which India is a signatory have held that a woman’s consent to marriage is her inviolable right. The Supreme Court of India has upheld the right to choose one’s partner for marriage under Article 21 of the Constitution in the landmark judgment of Lata Singh, discussed above.

And, yet, in terms of social attitude, marriage in India is rarely understood to be a private affair between two consenting adult individuals as much as it is a community-sanctioned union between two families, said lawyer Seema Misra of AALI. “Marriage is a patriarchal construct that is threatened by the idea that a daughter, or son, might exercise a choice that goes against the grain of what society permits or considers suitable.”

(Namita Bhandare is a gender writer and on the editorial board of Article14. Surbhi Karwa is an alumnus of National Law University, Lucknow and National Law University, Delhi)

First published in Article-14 on October 19, 2020


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