A problematic order from the Madhya Pradesh High Court has given rise to the likelihood of a misinterpretation of the law around inter-faith marriages and a calling into question the scope of the Special Marriage Act, 1954. If unresolved, this could potentially lead to consequences contrary to the objectives of the Act, which sought to provide a viable legal avenue for inter-religious marriages.
The issue has risen out of a petition that sought protection for an inter-faith marriage, jointly filed by an unmarried Hindu-Muslim couple before the Madhya Pradesh High Court. While hearing the arguments, the High Court went into the question of whether such a marriage of “a Muslim boy with a Hindu girl” under the Act would constitute a “valid marriage or not”. The High Court then proceeded to not grant police protection to the unmarried couple on the grounds that theirs would amount to an invalid marriage. By doing so, the High Court has reversed the gains in the jurisprudence on the right to choice of partner and has rewritten the well-settled objectives of the Special Marriage Act.
Erroneous considerations
It is common practice that when a petition seeking police protection is filed under Article 226 of the Constitution of India, the High Court looks into the violation of rights of the petitioners and the extent of threat faced by them. Such petitions are usually filed by couples in inter-faith and inter-caste marriages. However, it is now seen that even in cases of unmarried persons, High Courts have extended them protection after considering the various threats emanating from society. In similar circumstances, Justice N. Anand Venkatesh of the High Court of Madras recognised the precarious situation encountered by same-sex couples and granted police protection to a lesbian couple.
Similarly, the Punjab and Haryana High Court granted police protection to a live-in couple holding that “the key issue at hand is not the legality of the petitioners” relationship, qua which they may be liable for civil as well as criminal consequences in accordance with law, but whether they are entitled to protection of their fundamental right under Article 21 of the Constitution”.
In contrast, the Madhya Pradesh High Court, without weighing in on the real and apparent dangers faced by an inter-faith couple and adjudicating on the prayer for protection based on a threat assessment, has gone into the merits of an impending marriage itself. Even if the couple does not get their marriage registered, their claim for protection ought to have been decided in accordance with Article 21 of the Constitution, which provides for the protection of the right to life and liberty of an individual.
Dilution of the Special Marriage Act
Another serious concern is that the order passed by the Madhya Pradesh High Court goes against the very basis and objects of the Special Marriage Act. The order refers to a precedent from the Supreme Court of India in Mohammed Salim vs Shamsudeen (2019), a case which dealt with the issue of property succession arising out of a marriage between a Muslim man and Hindu woman under the Mohammedan Laws. This judgment should never have been considered as a precedent in either deciding the validity of an inter-faith marriage or for police protection.
The order also goes into Section 4 of the Special Marriage Act which excludes marriages between persons within the “prohibited degrees of relationship”. The reliance of the Madhya Pradesh High Court on this prohibition is entirely untenable and factually flawed as this provision only bars marriages between those who are related. By doing so, the High Court failed to recognise that the objective of the Act is to facilitate marriage between any two Indian nationals “irrespective of the faith with either party to the marriage may profess”.
The India of today and special marriages
The Madhya Pradesh High Court order assumes importance in the current social and political climate, where there is a real threat of vigilantism against inter-faith and inter-caste marriages, which do not have the sanction of the parents. The love jihad conspiracy, right-wing propaganda and consequent vigilantism have directly challenged our constitutional morality. While these are yet to be resolved, there is also a batch of petitions challenging unconstitutional provisions within the Special Marriage Act, such as prior notice which are pending before the Supreme Court. Tying these together is a common thread of individual autonomy, liberty, and equality. The Supreme Court in Shafin Jahan vs Asokan K.M. (2018), held that “intimacies of marriage lie within a core zone of privacy, which is inviolable”. Dealing with a case of inter-faith marriage, Justice D.Y. Chandrachud, as he was then, wrote that “social approval for intimate personal decisions is not the basis for recognising them” and further, that “the Constitution protects personal liberty from disapproving audiences”.
The ratio decidendi of the Shafin Jahan case has the effect of prioritising the absolute right of an individual to choose a life partner over any consideration of faith or caste-based diktats. With the spirit of this judgment having been lost sight of in recent years, it is wholly necessary for constitutional courts across the country to keep in mind that the arc of jurisprudence bends towards autonomy, privacy and liberty.
Manuraj Shunmugasundaram is a media spokesperson for the Dravida Munnetra Kazhagam (DMK) and advocate practising before the High Court of Madras. He appeared for the petitioners in the case where the Madras High Court granted protection to a same-sex couple. Haripriya Venkatakrishnan is an advocate practising before the High Court of Madras
