This article has been written by Ritu Janjani, a student, Dharmashastra National Law University, Jabalpur.
Marriage is considered to be a sacred practice in almost all the religions and is also among one of the ten sanskaras of the hindu religion, however Intercaste and Interreligious marriages are only a recent new as all of us know that such practices were once and even now at certain places of our country considered to be a taboo. As, in several instances some informal bodies as khap panchayats seemed to have set a trending detriment of excommunication of the couples or their families. For that matter even, Honor Killings are not yet extinct from the Indian society.
Since the recent times, the Apex court has took notice of the issue and through several judgements is determined to take action against such inhumane practices and recognize the Freedom of Choice one has to choose one’s spouse irrespective of the religion, caste or any other ground. Now is the time when even the sexual identity of a person is no more an impediment to fulfill one’s sexual desires.
Intercaste marriages were permitted in India during the British era and were also legally recognized. Mixed marriage could be performed only as a custom or as a civil marriage under the Special Marriage Acts, 1872-1923 or under the Arya Marriages Validating Act, 1937. The inter sub-caste marriages by the Hindu Marriage (Removal of Disabilities) Act, 1946. In the case of Venigopal Chetti v. Venugopal Chetti , Kidwai J. proceeded to consider various authorities on the point and also the provisions of the Hindu Marriages Validity Act and came to the following conclusion :
“These authorities clearly establish the proposition that there is no rule of Hindu Law which forbids the subsistence of a marriage, one of the parties to which is a non-Hindu that is to say that the Hindu Law does not refuse to recognise a conjugal union merely by reason of a difference of religion.”
In the judgement by MARKANDEY KATJU, J. in Lata Singh vs State Of U.P. & Another was given in the following words “The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes.”
Earlier, The Hindu Marriage Disabilities Removal Act 1946 was passed with the object to remove certain disabilities and doubts under Hindu Law in respect of marriages between Hindus and S.2 of the Act read as-Notwithstanding any text, rule or interpretation of the Hindu Law or any custom or usage, a marriage between Hindus, which is otherwise valid, shall not be invalid by reason only of the fact that the parties thereto,—
(a) belong to the same gotra or pravara, or
(b) belong to different sub‑divisions of the same caste.
THE CURRENT STATUS as to the validity of intercaste/interreligious marriages is that such marriages and the marriages with a foreign national are governed under the Special Marriage Act 1954. Marriage with a foreign national is sometimes governed under the SPA and sometimes under the Foreign Marriage Act 1969.Some of the important provisions of both the Acts are enlisted below.
For a marriage to solemnized under the Special Marriage Act, a thirty days prior notice needs to be given in the district where either of the parties has resided for atleast a period of thirty days immediately preceeding to the date of such notice. Then a record of such notice is kept and a copy thereof is affixed at some conspicuous place in the office. Meanwhile, objections if any, by any person to such marriage on the grounds of contravention to Section 4 of the Act are paid heed to.
As per S.12 of the Act, the marriage may be solemnized at the office of the marriage officer or at any other place within the reasonable distance as the parties may desire. Once the marriage is solemnized, the marriage officer shall enter a certificate in a prescribed format to be kept with him as an evidence to marriage and the certificate shall be signed by both the parties and three witnesses.
The succession to property of persons married under this act or any marriage registered under this act and that of their children will be governed under the Indian Succession Act. But, if the parties to the marriage belong to Hindu, Buddhist, Sikh or Jain religions, then the succession to their property will be governed under the Hindu succession Act.
With regard to marriages under the Foreign Marriage Act 1969, the marriage can be solemnized between two parties one of whom necessarily shall be a citizen of India or where both or one of the parties is an NRI and may be solemnized before a marriage officer in a foreign country. The conditions requisite for such a marriage are similar to the conditions mentioned under the Special Marriage Act.
In the case of Minoti Anand v. Subhash Anand, The husband sought to claim that the parties had married initially under the Foreign Marriage Act as per Hindu Vedic Rites and, therefore, their marriage can be dissolved only under the Hindu Marriage Act. However, their marriage has not been registered under the Hindu Marriage Act. Their marriage has been registered under the Foreign Marriage Act. Since under section 14(2) of the Foreign Marriage Act, the registration certificate is deemed to be conclusive evidence of the fact that the marriage is solemnised under the Foreign Marriage Act, no evidence with regard to the fact that the marriage was solmnised under the Hindu Marriage Act can, therefore, be allowed under section 4 of the Evidence Act because such fact stands proved by virtue of the deeming provision. Hence it must be taken to be proved conclusively that it was solemnised under the Foreign Marriage Act and not Hindu Marriage Act.
In the case of Joycee Sumathee v. Robert Division Brodie The appeallant, an Indian citizen was married to a foreign national in the office of Her Majesty’s Political Agent at Bahrain. On the grounds of desertion, the wife seeked divorce under S.27 of the Special Marriage Act. Having scrutinised the oral and documentary evidence on record, the court was fully satisfied that the marriage between the appellant and the respondent was solemnized and recorded by the office of Her Majesty’s Political Agent at Bahrain and thereafter they lived as husband and wife until the respondent left India. She is, therefore, entitled to a decree for divorce under Section 27 of the Special Marriage Act read with the provisions of the Foreign Marriage Act, 1969.The trial court however, dismissed the petition holding that as the marriage was not registered as envisaged by Section 17 of the Foreign Marriage Act, the appellant is not entitled to any relief under the Special Marriage Act. The court further stated that the Applications under the Foreign Marriage Act read with Special Marriage Act, are few and far between. The Foreign Marriage Act, 1969 makes provision for solemnisation of foreign marriages.
The worst scenario observed in the cases of marriage with an NRI was the deprivation of the rights of a woman on desertion and to prevent them from exploitation when the decree of annulment is obtained from the foreign courts, the Ministry of External Affairs in 2019 introduced a bill in the Rajya Sabha. According to the provisions of the Bill, the compulsory registration of marriage within thirty days of marriage in India or abroad would provide better enforcement of rights of the deserted spouse under various family laws. Similarly, the Amendment to the Passport Act would empower the Passport Authority to impound or revoke the passport of NRI, if it is brought to his notice that the NRI has not registered his marriage within 30 days from the date of marriage.
It was in the case of Neeraja Sharaph vs. Jayant V. Saraph in 1994 the court for the first time realised the need for such a legislation.
Some other problems associated with inter community marriages are associated with the rights of the children in the matters of inheritance, reservations etc.
Under the muslim law, a muslim boy is allowed to marry a muslim girl of any sect or a kitabia girl. However, even inter-faith marriages under sunnis is not void (Batil) but irregular (Fasid) which can be.But a marriage performed between a shia male and a non- muslim female who is even kitabia is void in any case except, for a muta marriage with a kitabia or a fire worshipper.
Regarding The succession of property on interfaith marriages between a hindu and a muslim the supreme court has in the case of Mohammed Salim vs Shamsudeen settled the law that the child born out of such marriages is legitimate and is entitled to the property of the father. Under the principles of Shariat, it has been stated that a Nikah between a Mahomedan male and a Hindu female (Hindu religion followers are generally considered as idol or fire worshippers) is not void but merely irregular and the irregularity can be rectified by the wife converting to Muslim, Christian or Jewish Religion, or the husband adopting the Muslim faith. Although, mere consummation of such marriages, entitles the wife of dower i.e. a widow’s share of her husband’s estate but she yet does not derives the rights of inheritance. However, the children born out of such wedlock are legitimate as in a valid marriage and possess the right to inherit the father’s property.
In the case of Rameshbhai Dabhai Naika vs State Of Gujarat & Ors the question that once again arose before the Court was what would be the status of a person, one of whose parents belongs to the scheduled castes/scheduled tribes and the other comes from the upper castes, or more precisely does not come from scheduled castes/scheduled tribes and what would be the entitlement of a person from such parents to the benefits of affirmative action sanctioned by the Constitution. The Gujarat High Court has proceeded on the basis that the issue is settled by the decisions of the Court in Valsamma Paul v. Cochin University and others, (1996) 3 SCC 545 followed by Punit Rai v. Dinesh Chaudhary, (2003) 8 SCC 204 and Anjan Kumar v. Union of India and others, (2006) 3 SCC 257. In this case, the petitioner’s father was a Hindu whereas the mother was a tribal. The petitioner lost his tribal certificate on the ground that his father did not belong to the tribal caste.
Lastly, it is notable, that along with the judicial advancements in this regard, the policymakers have also timely intervened by the means of various schemes at the central level (Notably the The scheme, started in 2013 and known as the ‘Dr Ambedkar Scheme For Social Integration Through Inter Caste Marriage’) and at the state level are meant to enable such couples who have taken a “socially bold step” to settle down in the initial phase of their married life and to promote inter caste marriages, citing it to be a great step towards removal of social disparities, differences and intolerance among the people of different caste, religion or community.
- Minoti Anand v. Subhash Anand, 2016(1) ALL MR 408
- the Foreign Marriage Act, 1969
- Joyce sumathi v. Robert Division Brodie, Air 1982 AP 389
- CHAPTER IV CASTE AND LAW DURING BRITISH PERIOD https://shodhganga.inflibnet.ac.in/bitstream/10603/132576/8/08_chapter%204.pdf
- Samarth Trigunayat Inter-caste & Inter-Religious Marriages: Social And Legal Issues last accessed on 20 March 2020
- https://www.lawctopus.com/academike/inter-caste-inter-religious-marriages-social-legal-issues/ last accessed on 20 March 2020
- Hariharan Social Alteration in the Institution of Marriage in India https://www.lawctopus.com/academike/social-alteration-in-the-institution-of-marriage-in-india/ last accessed on 21st March 2020
- UP khap panchayat bans jeans, mobile phones for girls, The Hindu (09/08/2014), available at http://www.thehindu.com/news/national/other-states/uttarpradeshcommunity-panchayat-bans-jeans-mobile-phones-for-girls/article6298539.ece, last seen on 25th March 2020
- Arumugam Servai vs. State of Tamil Nadu [reported in (2011) 6 SCC 405],
- (2006) 5 SCC 475)
- Neerja Saraph vs Jayant V.Saraph, 1994 SCC (6) 461
- Rameshbhai Dabhai Naika v. State of Gujarat (2012) 3 SCC
- Govt To Give Rs 2.5 Lakh Incentive To Every Inter-Caste Marriage Involving A Dalit, Removes Income Cap https://www.outlookindia.com/website/story/govt-to-give-rs-25-lakh-incentive-to-every-inter-caste-marriage-involving-a-dali/305229 last accessed on 29th March 2020
- Government plans to hike incentives for inter-caste couples, says minister
- https://www.thehindu.com/news/national/other-states/maharashtras-helping-hand-for-inter-caste-marriages/article25914302.ece last accessed on March 18th 2020
- Laws Related to Getting Married Abroad- Foreign Marriage Act, 1969 By Anjali Dhingra -June 2, 2019 https://blog.ipleaders.in/marrying-a-foreigner-in-india/
- How Can An Indian Get Married To A Foreigner In India? By Avani Mishra -July 26, 2018 https://vakilsearch.com/advice/can-indian-get-married-foreigner-india/ last accessed on 26th March 2020
- Supreme Court on the Rights of Inter-faith (Hindu-Muslim) Children Available at https://privateclient.cyrilamarchandblogs.com/2019/05/supreme-court-rights-of-inter-faith-hindu-muslim-children/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration
- Bill introduced on NRI marriages in Parliament Available at https://economictimes.indiatimes.com/nri/nris-in-news/bill-for-nri-men-to-compulsory-register-marriage-within-30 days/articleshow/67945156.cms#:~:text=The%20Bill%20is%20an%20outcome,Ministry%20of%20Law%20and%20Justice.&text=This%20would%20provide%20much%20needed,women%20married%20to%20NRIs%20worldwide.
- Lata Singh vs State Of U.P. & Another Writ Petition (crl.) 208 of 2004
- Venigopal Chetti v. Venugopal Chetti (LR 1909 p. 67)
- Image from https://www.iamexpat.de/expat-info/family-kids/marriage-partnerships-germany