Marriage, privacy and the law: The special marriage act debate

Abstract

This paper critically examines the constitutional dimensions of the Special Marriage Act (SMA), 1954, with particular focus on its implications for interfaith, inter-caste, and queer relationships in India. While the SMA was originally enacted to provide a secular and egalitarian legal framework for marriage beyond religious prescriptions, its current structure still reinforces heteronormativity by excluding same-sex and non-binary unions. Drawing upon recent Supreme Court decisions—including Supriyo v. Union of India (2023), Navtej Singh Johar v. Union of India (2018), and K.S. Puttaswamy v. Union of India (2017)—the paper explores the evolving jurisprudence around the right to marry, the right to privacy, and protection from discrimination under Articles 14, 15, 19, and 21 of the Indian Constitution. It argues that although the judiciary has affirmed the dignity and autonomy of LGBTQ+ individuals, it has refrained from declaring marriage as a fundamental right, especially for same-sex couples, citing institutional limitations and legislative prerogatives.

The study also interrogates the gendered language of the SMA, particularly in Section 4, which continues to define marriage in heterosexual terms, thereby marginalizing transgender and queer persons seeking legal recognition of their unions. It addresses the limitations of judicial activism in remedying these exclusions and emphasizes the role of the legislature in ensuring substantive equality in marital rights. Finally, the paper underscores the urgent need for statutory reform to uphold the constitutional promise of dignity, privacy, and equality for all individuals, regardless of gender or sexual orientation, while warning against regressive outcomes that could undermine the original intent of the SMA in fostering social integration.

Introduction

Marriage is a personal and intimate decision, forming the foundation of an individual’s life. In India, the Special Marriage Act (SMA), 1954, was enacted to provide a legal framework for interfaith and inter-caste marriages. While the act aims to promote social harmony, it has been criticized for infringing upon the fundamental rights of individuals, particularly under Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty, including the right to privacy.

Marriage in India is a social, religious, and legal union between two people. The Special Marriage Act of 1954 allows citizens of India to register their marriage, regardless of their religion.^[1]

Understanding the Special Marriage Act, 1954:

The Special Marriage Act 1954, provides a special form of marriage for couple belonging to different religion and different caste. The Special Marriage Act allows for marriage without a religious ceremony. SMA was designed to facilitate marriages between individuals belonging to different religions or castes without requiring them to convert. Unlike religious personal laws, the SMA provides a secular framework for marriage registration. However, certain provisions in the act, particularly those related to the public notice of intended marriage, have raised concerns about privacy violations and undue interference in personal choices.^[2]

The Special Marriage Act was enacted to provide a legal framework for civil marriages, independent of religious customs. Unlike personal laws that govern marriages within specific religious communities, the SMA allows individuals to marry without renouncing their faiths. It has been instrumental in fostering interfaith and inter-caste marriages, which are often met with societal resistance in India.^[3]

Right of transgender to marry under Personal Law as well as Special Marriage Act

In the case of Supriyo v Union of India (2023 SC) The court discussed that the right to marry a person of their choice applies to transgenders also the court said  that the laws which govern marriage in the country specify conditions which the Bride and the bridge-groom must satisfy for their marriage to be recognized, This is true for the personal laws as well as The SMA , the structure of these enactments also regulate marriage between a husband and a wife. They use the words “Bride”, “Groom”, Wife, Husband, Male, Female, Man and Women.^[4] These legislations regulate, the heterosexual marriages in India.

The laws which are incidental to Marriage such as Domestic Violence Act (Section -498’A’), Dowry Prohibition Act, seek to address the hetero-patriarchal nature of relationship, between Man and the Women. The gender of the person is not the same as their Sexuality. A person is a transgender person by virtue of their gender Identity. A transgender person may be Hetero-sexual, Homosexual or any of the other Sexuality. If a transgender person is in the Heterosexual relationship and wishes to marry their partner, provided the other requirements with respect to valid marriage are meted out, such a marriage would be recognized by law governing marriage. This is because one would be the bride or the wife in the marriage and the other party would be the bride-groom or the husband. Since, a transgender person can be in a Hetero-sexual relationship like a Cis-male or Cis-female a union between a Trans woman and a Trans man or a Trans woman and a cis-man or a Trans man with a cis women can be registered under the marriage laws. Any other interpretation of laws governing marriage would be against Article-15 of Constitution of India.^[5]

Whether Special Marriage Act is Constitutional or Unconstitutional

Special Marriage Act a Special form of marriage for couples belonging to different Religion and Different castes, section-4(A) & (B) used the words gender Neutral i.e., ‘Party’. However, section-4(C) stipulates that the male must have completed the age of 21 years and the female must have completed the age of 18 years. Section-4(D) stipulates that the parties should not be within the degree of prohibited relationship.^[6]This is read with section-2(b) which defines the degree of prohibited relationship include a man and any of the person mentioned in part-1 of the schedule and a woman and any of the persons mentioned in part-2 of the first schedule. Therefore, it can be seen that special marriage act is applicable only upon Heterosexual relationship i.e., relationship between opposite sexes. It was alleged that the words male and female should be read as spouse. So as to make it gender neutral. It was also alleged that the special marriage act is violating the fundamental right of same sex couples i.e., Article-14,15 & 21.

The Court discussed the same in 2 situations:

1. If the court finds that a provision is contrary to the part-3 of Constitution of India. It shall declare that it is void or read it down by deleting phrases or adding words or substitute phrases to save it from being declared as void. If this court holds that sction-4 is unconstitutional because, it is excluding the marriage between the same sex couples then, the court either strikes down section-4 of Special marriage act or follow the workability model submitted by the petitioners.^[7]  If the court follows the 1^st approach the purpose of progressive legislation such as Special marriage act would be lost.

The Special marriage act was enacted to enable the persons of different religion and different caste to marry. If Special marriage act is held void for excluding the same sex couples. Then, it would take India back to the pre-independence era where 2 persons belonging to different religion and cast were unable to celebrate love in the form of marriage. Such a judicial verdict would not only have the effect of taking the Nation back to the era when it was full of social inequality and religious intolerance. It would also push the court to choose between eradicating one form of discrimination and prejudice at the cost of permitting another.

1. If the court states and read the words, into the provision of Special marriage act and the provisions of other allied laws such as Indian Succession Act ,1925; Hindu Succession Act 1956; It would in effect enter into the realm of legislature. Therefore, the Supreme court is not equipped to undertake an exercise of such wide amplitude because of its Institutional Limitations. The Court would be redrafting the law in the garb of reading words into the statutes.^[8]Therefore, it is duty of legislature to do the necessary changes within the Special Marriage Act. It is for the parliament to determine and for such determination, the parliament has access to varied sources of information.

Right to Freedom of Speech & Expression & to Form intimate Associations.

In the case of, Navtej Singh Johar v. Union of India, (2018 SC), It was held that section- 377(Indian penal code) infringes upon the freedom of Queer person protected under Article-19(1)(a) Constitution of India. The freedom of Speech and Expression is not limited to expression words Rather, it also includes other forms of expression such as Manifestation of complex Identities of person through the expression of their Sexual Identity and Choice of partners and expression of sexual desire to the consenting parties.^[9] The Court said that freedom to choose a partner and freedom to enjoy their society which are essential components of the right to enter into a union would be rendered futile if the relationship were to be discriminated against. Therefore, the state must recognize multiple entitlements which flow from a law-abiding relationship of this kind. A failure to recognize such relationship would result into systematic discrimination against such couples. Unlike Heterosexual couples who may choose to marry, the same sex couples are not conferred with the right to marry by statute. To Remedy this a committee should be set up chaired by the cabinet secretary which will be available to look into the rights of such couples. (In January 2024, this committee has been setup)

Right to Marry

The court has discussed the concept of Institution of marriage. A marriage is a voluntary union of mind, body & soul. The Main purpose of marriage is not to facilitate sexual relations or procreation, although it is one of the purpose, marriage has emotional and associational components to it. A Heterosexual couple may not have biological children because of their age, fertility and simply because they choose not to but still the Marriage continues to be a marriage even if it is a typical (contrary to normal norm) or runs contrary to the notion of an ideal marriage that a person may have different religion may have different understanding of marriage. The concept of Marriage is no more static Rather, it has undergone a sea change over a period of time, Special marriage act was enacted to enable the solemnization of marriage independent of personal law. Parliament was conscious of limiting and restrictive character of Special marriage act (1872) and enacted special marriage act (1954) which was more permissive legislations. The Families or the relatives of the couples who enter into inter-caste or inter-faith marriages would frequently inflict violence upon them, even to the extent of murdering then, which is commonly known as Honor killing.^[10]

In the case of Shakti Vahini v. Union of India (2018 SC) the court took note of the violence against the couple in Inter-caste and Inter-faith Marriages.  Therefore, the court directed the state machinery to take preventive as well as remedial measures to protect such couples who wished to marry.

In the case of Shafin Jahan v. Asokan K.M (2018 SC), the court upheld the right to choose one’s own life partner under Article-21 of the constitution, but the court did not discuss whether right to marriage is a fundamental right or not. Marriage was earlier purely a social institution unregulated by the state but there are 2 prominent reasons that now the state regulates marriage relations-

1. Regulating the sexual conduct of the persons through marriage i.e., It promotes exclusive relationship with the partner based on the conditions for valid marriage.
2. The state intends to regulate social order by regulating marriages as it is the center of the property devolution i.e., Rules of succession. Therefore, the state regulates marriage to create a space of equal living and recognizes marriage as a unit for purpose of law.^[11]

Can the State Regulate Intimate Relationship between the same sex couples?

This was discussed in the case of Navtej Singh Johar v. Union of India & K.S Puttaswamy v. Union of India (2017 SC) wherein the court held that the Intimate relationship is shielded from the state Regulation because, such relationship takes place in private space and decision taking in private space in exercise of an Individual’s Autonomy i.e., Choice of partner or procreation are private activities. That’s why state have identified certain areas, that are private but where the interest in democratizing that space overrides the interest of privacy e.g., domestic violence act. On considering the above-mentioned judgements, the court said, neither of these judgements have addressed the issue that whether the constitution recognizes right to marry or not. Therefore, in this case the court held that the constitution does not expressly recognize a fundamental right to marry. However, it respects the choice of a person with whom they want to enter into a relationship.^[12]

Conclusion

Special marriage act cannot be declared as unconstitutional as the court cannot either strike down the constitutional validity of Special marriage act or read words into the Special marriage act because of institutional limitations. The SC cannot read words into the provision of Special marriage act and the provision of other allied acts such as Indian Succession Act, Hindu Succession Act etc., because that would amount to judicial legislation. The court in the exercise of power of judicial review must steer clear of matters particularly those impinging on policy which falls in the legislative domain.

The court has recognized the right of a queer couple to exercise the choice to enter into a union. This relationship is protected from external threat (e.g., from families, police etc.,). Discrimination on the basis of sexual orientation will violates their article-15. Therefore, the state must enable the LGBTQ+ Community to exercise their rights under the Constitution. They have the rights to freedom from coercion from their family, Agencies of state like police & other persons.

^[1] Special Marriage Act, 1954.

^[2] Article 21, Constitution of India

^[3] Lata Singh v. State of UP., (2006,SC)

^[4] Domestic Violence Act, 2005; Dowry Prohibition Act, 1961.

^[5] Domestic Violence Act, 2005; Dowry Prohibition Act, 1961.

^[6] Navtej Singh Johar v. Union of India, (2018 SC).

^[7] Shafin Jahan v. Asokan K.M., (2018 SC).

^[8] Indian Penal Code, Section 377

^[9] Shakti Vahini v. Union of India, (2018 SC).

^[10] Shafin Jahan v. Asokan K.M., (2018 SC).

^[11] K.S. Puttaswamy v. Union of India, (2017 SC).

^[12] Articles 14, 15, and 21, Constitution of India.