INTRODUCTION
A constitutional document can describe as a legal document whose introduction letter, or Preamble, was amended by the 42nd Amendment in 1976. As a result, three words were added to the Preamble. A secular nature is evident, one of them, which gives India a new title – “Secularism”. As per the term “Secularism”, India does not have a religion. Instead, the people of India are free to practice whatever religion they wish; and according to Article 25[1] of the Indian Constitution, every citizen has freedom of practice, professes conscience, and propagation of their belief. As we all know, people in India belong to a wide range of religious groups, such as Hindus, Muslims, Christians, Jain, Sikhs, Buddhists, and others. In this way, every religion has its customs and practices, which leads to the formation of personal laws. Consequently, the personal laws, consistent with Article 13[2], pertain to a specific group or class of people. Therefore, in some instances, such as in the cases of interfaith marriages, it leads to a conflict between Personal Laws and Special Laws, i.e., “who will prevail over whom?”. Before answering this, let us take a glance at the following points.
PRESENCE OF INTERFAITH MARRIAGES
Marriage between couples of different religions is known as interfaith marriage or ‘mixed marriage’.[3] Interfaith weddings typically created civil marriages. However, they can also establish religious marriages in specific cases, depending on each of the two parties’ religious doctrines; some religions forbid interfaith marriage, while others allow it with varying degrees of permissibility. In recent years, so many people have chosen to marry outside of their faith, either with the help or against the wish of their family.
But, in India, neither the Census reports of interfaith marriages nor national representative surveys have been conducted to confirm that such marriages occur. However, some studies have been done by the researchers such as International Institute for Population Sciences students and faculty recently published a paper in 2013 examining; how the extent of mixed marriages in India, assessed by analysing data from the “India Human Development Survey (IHDS) 2005”. According to the research, the highest proportion of inter-faith marriages exists in the young age group compared to other groups. The study has also stated that in the state of Punjab, the prevalence of interfaith marriage has the highest percentage. However, as per the Pew Research Center survey, most Indians prohibit interfaith marriages. In the report, 80% of the Muslims interviewed; said that it was necessary to stop people from their community from marrying into another religion.[4] Around 65% of Hindus felt the same. But the question arises: what if a couple performs an interfaith marriage then, ‘does their marriage receive any legal recognition?’. If so, “by what statute – Personal or Special?”.
STAND OF INDIAN CONSTITUTION
According to Article 16 of the Universal Declaration of Human Rights, marriage is a Human Right.[5] Such Chapter, in India, controlled, majored, and exercised by the Statutory enactments of Personal laws such as the Hindu Marriage Act, the Muslim Marriage Act, and the Indian Christian Act. But, there is one special law for the recognition of the Marriage, i.e., The Special Marriage Act. An Act of the Parliament of India called the Special Marriage Act, 1954 provides that civil marriages can take place for citizens of India and Indian nationals living abroad, regardless of their religious beliefs. But what if couples, irrespective of their religion, marry as per personal laws? If so, they can get legal recognition under Article 21[6] of the Indian Constitution. HOW?
Article 21[7] of the Indian Constitution deals with the Right to life. But in the Year 2006, the first case came into the picture i.e., Lata Singh vs the State of U.P.[8], the Supreme Court stated, “An intrinsic part of Article 21 of the Constitution would be the freedom of choice in marriage”.[9] Later in the case of Shakti Vahini Vs Union of India,[10] the court held that when two adults consensually choose each other as life partners, it is a manifestation of their choice, referred to under Article 19[11] and Article 21[12] of the constitution. And the recent case, Shafin Jahan vs UOI,[13] the court referred to Article 16 of the Universal Declaration of Human Rights and held that the right to marry a person of one’s choice is integral to Article 21 of the Indian constitution. Ultimately, the Grundnorm and the Supreme Court rulings recognise that one can marry as per one’s choice beyond the personal laws.
PERSONAL LAWS LEAD TO THE CONTEMPT OF GRUNDNORM
According to Article 21 of the Indian Constitution, one has the Right to Marry a person of their choice. But, personal laws put a restriction on their rights. How? For instance, a Hindu Boy aged 25 years married a Muslim Girl aged 16 years, according to the Hindu Marriage Act, 1955, without the conversion.[14] However, in the HMA, the marriage of Hindu and Non-Hindu, does not get any recognition unless conversion has been done. But, both the girl and boy satisfied the criteria of being eligible for marriage and; the Supreme law of the land gave recognition to them as per their fundamental rights and the precedents stated by the Supreme Court of India. Therefore, they should get legal recognition, but personal laws put restrictions. The Actual ground of the existence of personal laws is to grant legal recognition to appropriate customs, although, in such exceptional cases, these laws become a hindrance. But, it was removed by the Supreme Court in various cases that are as follows:
- “Intimacies of marriage lie within a core zone of privacy, which is inviolable, and even matters of faith would have the least effect on them.”[15]
- “There is no bar to the inter-caste marriage under the Hindu Marriage Act or any other law.”[16]
- “In 2014, the Supreme Court expressed that the State is duty-bound to protect the Fundamental Rights of its citizens, and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.”[17]
- “The choice of a partner, whether within or outside marriage, lies within the exclusive domain of each individual. An absolute right of an individual to choose a life partner does not affect by matters of faith. Non-acceptance of her choice would simply mean creating discomfort to the constitutional right by a constitutional court which meant to be the protector of fundamental rights.”[18]
CONCLUSION
Based on the points above, we can conclude that marriage is an individual choice that must be instituted by the couple. Similarly, a sound-minded adult couple is capable to know right and wrong for themselves, so society should not intervene in this right of marriage and life, even if it’s against the personal law, as marriage is a part of the right to life, mentioned in Article 21. Therefore, any personal law restricting a couple from marriage cannot possibly prevail. Otherwise, it will violate Article 21 i.e., the fundamental right, and such violation of the Right makes it void in nature as per Article 13 of the Indian Constitution.
In addition, Specific laws have been given preference over personal laws by the Supreme Court of India, which has binding authority over all other decisions of any court; specific laws are legally too of a higher pedestal than personal laws in every case. Hence, to save dignity in our society, we must not forget that Dignity comes with the freedom of choice too, and everyone has the right to choose, which cannot be based on social approval or societal pressure.
Author(s) Name: Tanisha Vijayvergiya (Lovely Professional University, Jalandhar)
References:
[1] The Constitution of India, 1949, Art 25.
[2] The Constitution of India, 1949, Art 13.
[3] Sultan Khan and Shanta B. Singh, ‘10 Interfaith Marriages and Marital Stability amongst the Indian Diaspora in the Durban Metropolitan Area, South Africa’ (2015) Int Stud Relig Soc 177, 178.
[4] Jonathan Evans And Neha Sahgal, ‘Key findings about religion in India’ (PEW, 29 June 2021) <https://www.pewresearch.org/fact-tank/2021/06/29/key-findings-about-religion-in-india/> accessed 7 May 2022.
[5] Universal Declaration of Human Rights, Art. 16.
[6] The Constitution of India, 1949, Art 21.
[7] The Constitution of India, 1949, Art 21.
[8] Lata Singh vs. State of U.P., (2006) 5 SCC 475.
[9] Devika Sharma, ‘Erosion of Choice, but dignity should remain intact: How are Courts saving young adults’ choice of marriage?’ (SCC Online, 25 March 2022) <https://www.scconline.com/blog/post/tag/inter-caste-marriage/> accessed 7 May 2022.
[10] Shakti Vahini Vs Union of India, AIR 2018 SC 1601.
[11] The Constitution of India, 1949, Art 19.
[12] The Constitution of India, 1949, Art 21.
[13] Shafin Jahan vs. UOI, (2018) 16 SCC 368.
[14] The Hindu Marriage Act, 1955, S 2(1)(c).
[15] Laxmibai Chandaragi B v. State of Karnataka, (2021) 3 SCC 360.
[16] Lata Singh v. State of U.P., (2006) 5 SCC 475.
[17] K.M.K.Samy vs The Superintendent Of Police, (2014) 4 SCC 786.
[18] Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368.
