Family Law: Research Paper

The Individual, the Community and the State:

A love triangle

This paper delves into the intricate dynamics between the individual, the
community, and the state within the context of civil (inter-religious)
marriage legislation in colonial and post-colonial India. Drawing from
historical documents, legislative debates, and contemporary legal cases, it
explores the negotiation between the state and the community in shaping
and implementing these laws. It further explores how these laws manifest
in today’s society, often at the cost of individual autonomy. The notions of
love, morality, caste, and purity intersect with individual, communal and
state aspirations and ultimately shape the landscape of civil marriage in
India.

Name: Smriti Sultania

Course: LLB Hons. (Trimester III)
Roll No.: LLBH/23074
Subject: Family Law
Substantive word count: 2697
“That it really began in the days when the love laws were made. The laws that lay down who
should be loved, and how, and how much.”
-Arundhati Roy, God of Small Things

1. Introduction
Marriage in contemporary society is delineated into two primary categories: religious and civil.
Religious marriage is solemnized by religious authorities, while civil marriage occurs under
state jurisdiction. India operates with both civil marriage legislation and a plethora of personal
laws governing family matters, including marriage, tailored to specific religious communities.
The cornerstone of India's civil marriage framework is the Special Marriage Act of 1954, which
offers a secular alternative applicable to individuals regardless of religious affiliation. This Act
allows people of different religions to marry each other, a luxury not available in the personal
laws.

However, the Act has been deemed to be oppressive with stringent bureaucratic procedures and
uncooperative Marriage Officers acting as impediments to its implementation. It is known to
create hurdles in the solemnization of inter-faith marriages, going against its very intent. To
better understand these impediments, this paper aims to examine the evolution of civil marriage
laws in India, the aspirations and scepticism behind their enactment and their manifestation in
the contemporary society. Through this analysis, it also comments on the changing relationship
between the individual, the state and community vis-a vis civil legislation of inter-faith couples.
Contemporary legislations and the social milieu are further used to substantiate these claims.

2. History of Civil Marriage legislation

The history of the demand for state recognised inter-faith marriages is a long one. In the late
1860s, Keshub Chandra Sen of the Brahmo Samaj submitted a petition to the colonial
government requesting a legislation which would allow the members of his community to
marry according to their conscience.1 However, rather than addressing this specific appeal, the
Governor General's Legislative Council began contemplating the implementation of a broader
civil marriage law applicable to all Indians. This law would grant individuals the freedom to
marry outside their religious customs in a more secular form. Governor General Maine
advocated for this broader approach, as he contemplated that that young educated individuals

1
Government of India Legislative Proceedings 1868, 19 Sept. 277-82, Asia Pacific and Africa Collections, British
Library
who would renounce their religious ties would continue to seek legal validation for their unions.
Thus, he argued for a comprehensive legislative solution to address the evolving societal
dynamics surrounding marriage. He believed that this was the natural progression of society
that was evolving from customary to contractual obligations.2

Maine was soon to be disappointed by what would unfold later. In his understanding, religious
faith was an inherent aspect of one's identity, which could be voluntarily renounced in
adulthood. Therefore, if members of the Brahmo Samaj stopped adhering to Hindu customs,
they ceased to be considered 'Hindu'. However, in India, the idea that individuals could opt out
of their religious communities or rituals was an ‘anathema’ to the society. The colonial
government's attempt to grant individuals this right sparked public outrage. Local governments
and native administrators vehemently opposed Maine's proposed legislation, reflecting
widespread disapproval among the populace.3

2.1 Social Scepticism regarding Civil Marriage Laws

2.1.1 Sexual Policing

The opposition to the bill was multi-fold ranging from issues of public morality, purity of the
clan and the fear of legitimising community transgressions. Inter-caste marriages were seen as
marriages driven by 'lust', leading to moral degradation.4 Mody in one of her works pens down
the words of a brahmin to substantiate this claim: “Love is a gift from God, gifted to two people
on the day of their marriage. Love isn't something that one does, that is lust. Love is given only
by God.”5

Such reasonings further exclude the stake that an individual has in choosing one’s life partner.
It is seen as their duty to marry according to the choice of their parents and the community at
large. Inter-caste or inter-religious marriages were seen as driven by impure desires and
passionate attachments, highlighting apprehensions about the erosion of moral values. We can
see the manifestation of these fears when it was proposed that a clause to distinguish such
marriages from criminal acts like abduction, seduction, or elopement which are punishable

2
Parvez Mody, ‘Love and the Law: Love-Marriage in Delhi’ [2002] 36(1) Modern Asian Studies 235
3
Ibid., 223-256
4
Louis Dumont, 1998 [1970o], Homo Hierarchicus: The Caste System and Its Implica-
tions (Oxford University Press: Delhi)
5
Parvez Mody, ‘Love and the Law: Love-Marriage in Delhi’ [2002] 36(1) Modern Asian Studies 225 line 18
under the Indian Penal Code.6The conflation of such marriages with criminal acts underscores
the sexual policing of individuals by their community members.

2.1.2 Caste

Further, erasing caste distinctions was an unacceptable state of affairs in India. Kali Prasanna
Banarji in his petition emphasized India's pride in its unmixed bloodlines and the proverbial
chastity and purity of its women.7 It was believed that Indian daughters were supposedly naïve
and pre-disposed to trust men of bad character. Lachmi Narain, an Honorary Magistrate, further
went on to express his disbelief at the notion of daughters bringing shame through civil
marriages. He predicted a surge in infanticide if daughters were allowed to ‘disgrace’ their
family when they came of age and therefore argued against granting such freedom.8

2.1.3 Communal Norms

The third objection was with state interference in matters perceived to be regulated solely by
the community. It was argued that marriage was a sacred realm belonging exclusively to
religious communities. With civil marriage laws, individuals who entered into ‘mock
marriages’ disregarding community norms, would now receive legitimacy from the state which
would further encourage individuals to challenge community sanctions.9 Thus, the state would
effectively dilute the community’s authority to punish rebellious individuals through social
ostracization. These very concerns manifested when a revised bill solely focusing on
Keshubites Rights of Marriage were proposed. While other members of the Brahmo Samaj
considered themselves a part of Hinduism, having only abandoned idol worship, the Keshubite
sect had diverged significantly by advocating inter-caste/religious marriages, challenging
Hinduism's core tenets. Thus, granting Keshubites the right to legitimate marriages through the
law would profoundly legitimize the stance of a breakaway sect reduce the fear of communal
isolation.10

2.2 The First Civil Marriage Act

6
NAI, 'Act III of 1872', p. 245. 'Petition from Babu Kali Prasanna Banarji’
7
Ibid
8
NAI, 'Act III of 1872', p. 243. 'Petition of Lachmi Narain'.
9
Nandini Chatterjee, ‘English Law, Brahmo Marriage, and the Problem of Religious Difference: Civil Marriage
Laws in Britain and India’ (2010) Comparative Studies in Society and History Vol. 52, No. 3 p. 532-34 <https://www-
jstor-org.eresources.nls.ac.in/stable/pdf/40864788.pdf?refreqid=fastly-
default%3A81b5cdb9f8e60c9d52e84ce65326be70&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=
&initiator=&acceptTC=1> accessed 13 May 2024
10
Ibid p.533
To accommodate these concerns, the final Act – Act III of 1872 - was introduced as watered-
down version of the initial bill proposed by Lord Maine. It mandated that couples entering into
civil marriages must renounce their religious affiliations, effectively isolating themselves from
their communities. A mandatory declaration stating that the couple did not profess the
Christian, Jewish, Hindu, Muhamedan, Parsi, Buddhist, Sikh or Jaina religion had to be signed
by them.11 The state in effect endorsed the prevailing public opinion that community
membership entailed marriage arranged by the community, while self-arranged civil marriages
were deemed relevant only for individuals who had rejected their community's authority.
Despite the provision for opting into the bill being entirely discretionary, the communities'
preferences took precedence even though it was the individuals who would primarily be
affected by such legislation.

In her work ‘Critical Events’12, Veena Das argues against theories portraying communities
solely as spaces for face-to-face interaction. She contends that it is misplaced to romanticize
communities as spaces that resist homogenizing pressures and state intrusions. Communities
can and do exert control over individuals' lives akin to state influence. Das redefines
communities as political actors, emphasizing their authority to shape collective histories,
regulate bodies and sexuality through customs. While, their collective existence offers
individuals shared traditions to navigate the world, Das warns of communities' potential threat
to individual selfhood. The Act of 1872 shows the struggle between the state and the
community in shaping and dominating an individual’s life. It is telling from the fact that the
individual had to literally and legally leave his community behind if it took shelter under the
state law.

3. Eighty-two years later

Following Independence, the Special Marriage Act of 1954 was enacted to modify certain
aspects of the 1872 legislation. The requirement for individuals to formally renounce their faith
was eliminated, allowing two consenting adults to marry regardless of their religious
background.13 This development marked a significant shift where 'communities' relinquished
their power to ostracize, and the state intervened to uphold the secular rights of individuals
choosing interfaith marriages. It is argued that the 1872 law symbolized the victory of

11
Act III of 1872
12
Veena Das, ‘Critical Events: An Anthropological Perspective on Contemporary
India’ [1995] <https://archive.org/details/criticaleventsan0000dasv> accessed 10 May 2024
13
The Special Marriage Act,1954
communal forces to expel dissenting individuals, whereas the 1954 law demonstrated the state's
success in equalizing 'communities' and granting direct rights to individual citizens.14

3.1 Provisions of the Act

However, this faith in the 1954 bill to grant individual autonomy seems misplaced. While the
community ceased to be perceived as the 'other' that the state needed to navigate, their vested
interests continued to be voiced through orthodox legislators. Despite the Nehruvian
government's strong majority, it faced several hindrances in bringing progressive changes to
the bill.15 For instance, despite debates urging its removal, the clause16 which dealt with married
individuals' severance from joint families, remained intact. Further, the Act required a
minimum stay period of thirty days in the district where the marriage was to be registered.
Initially, the Joint Committee Report recommended a fourteen-day period, but concerns raised
during Lok Sabha discussions led to an extension of thirty days.17 This was done to ensure that
‘runaway’ couples do not resort to such marriages without adequate notice to their parents.18
While the reasons ranged from preventing false declarations of age and previous marriages, the
idea that families and communities were central to such arrangements was all too clear. Further,
there was also the demand to restrict such registration to the permanent residence of the parties
to ensure that ‘interested’ parties are informed of the same.19 Eventually, the residential
requirement was shifted from fourteen days to thirty days in the 1954 bill. Similarly, the
notification period for objections to such marriage was also increased from fourteen days to
thirty days.20

3.2 Intention of the Act

It is important to note at this point that Nehru had reluctantly given into such demands to make
sure that the Special Marriage Act sees the light of day. He viewed the legislation as “the first
step towards bringing some uniformity”21 and “building up a nation”22. He believed that this

14
Parvez Mody, ‘Love and the Law: Love-Marriage in Delhi’ [2002] 36(1) Modern Asian Studies p. 240 line 24
15
Teruaki Fujito, ‘Marriage and Secularism: Parliamentary Debates on the Special Marriage
(Amendment) Bill of 1921 and the Special Marriage Bill of 1952’ <
file:///C:/Users/HP/Downloads/Marriage_and_Secularism_Parliamentary_De.pdf> accessed on 10 May 2024
16
Clause 19, Chapter IV, Special Marriage Act, 1954
17
Lok Sabha Debates, 1 September 1954, col. 835
18
Ibid col. 836
19
Ibid
20
ibid
21
Lok Sabha Debates, 14 September 1954, col. 1858.
22
ibid
would only be possible if we “break down the…caste barriers…that keep each group apart”.23
This was important to develop the concept of ‘national’ which was much talked about.
Regarding the intention of the bill, he was extremely clear. He stated – “(the) one basic question
you must be prepared to face clearly and squarely is: whether you will permit marriages
between two persons who do not profess the same religion. I concede this is an innovation in
the marriage law of this country. But this is the fundamental basis of this legislation.”24 We can
therefore gauge that Nehru wanted to facilitate inter-religious marriages even if a few measures
were introduced to make sure the Act is not exploited.

4. How has the legislation manifested half a decade later?

However, in contemporary India, the prevalence of civil marriages has remained very low. A
significant majority of marriages still occur within the same community/religion as a
considerable portion of society continues to disapprove of them. Opting into the Special
Marriage Act has been incredibly difficult due to its oppressive provisions. The clause requiring
thirty days residential and notice period are usually used to harass couples. Their personal
details such as caste, religion and addresses are displayed outside in a conspicuous place
outside the marriage room. It is also further sent over to the residential address provided by the
couple and to the district court where they permanently reside to verify age and marriage status.
However, such practices commonly expose the fleeing couples to the wrath of their family and
community.25

The complexity of the procedures also attracts touts who help to navigate the requirements of
the provision through dubious means. Many clerks and magistrates openly express their
disapproval for such marriages and expect bribes to forward the process of obtaining
certificates. It is all the worse for minority communities as they are more vulnerable and open
to exploitation. Many a times court officials give them forms of personal bills, claiming that
there is no provision for their religion in the Special Marriage Act.26 Mody highlights an
incident wherein a couple was asked to changed their faith to the Hindu religion even when
they explicitly desired to register under the Special Marriage Act. They were harassed for
seeking parental approval (there is no such requirement in the bill) despite furnishing adequate

23
ibid
24
Ibid
25
V Siddhartha, ‘Special Marriage Act’ (1992) Economic and Political Weekly Vol. 27, No. 3 p. 66 < https://www-
jstororg.eresources.nls.ac.in/ > accessed 10 May 2024
26
Parvez Mody, ‘Love and the Law: Love-Marriage in Delhi’ [2002] 36(1) Modern Asian Studies p. 252
proof of residence in the concerned district. Their notice to marry was not accepted without
any justifications and they were physically stopped from going to the higher authority to
complain of this injustice. Delaying, denying and bribing are common occurrences in the court
with regards to this bill, making it practically unusable and inaccessible.

Several petitioners have submitted requests to eliminate the thirty-day notice and residential
requirement in response to such ground realities. In 2021, the Allahabad High Court27 ruled
that the mandated notice period under Sections 5 and 6 of the 1954 Act is not obligatory. It
emphasized that even if violations of conditions outlined in Section 4 (regarding age and
marital status) occur, legal consequences would ensue, and courts could intervene later and
hold these marriages void. Emphasis is laid on the fact that personal laws have similar
provisions regarding age and marriage status, but have no such notice period for objection.

The court further questioned the rationale behind imposing more protective and obstructive
procedures under the 1954 Act, which already witnesses fewer marriages compared to other
personal laws. This discrimination was considered a violation of the fundamental rights of
individuals choosing the 1954 Act for their marriage. In 2023, the notice period was again in
contention in the landmark case of Supriyo28, wherein the judges orally commented that such
a provision had patriarchal undertones and should be done away with. However, it chose not
to rule upon this provision as the constitutionality of this provision did not necessarily require
a constitution bench ruling and a regular bench would be sufficient to look into it.

4.1 The Role of the State

The Centre in response to the Allahabad High Court ruling and a similar PIL filed in the Delhi
High Court, stated that the 30-day notice period is fair and reasonable and is placed keeping
the mind the interests of various other parties involved. The past couple of years have also seen
more oppressive laws on inter-religious marriages like the the Uttar Pradesh Prohibition of
Unlawful Religious Conversion Law, 2020; Madhya Pradesh Freedom of Religion Act,2021;
and the Himachal Pradesh Freedom of Religion (Amendment) Act, 2022. These laws have been
criticised for targeting inter-faith unions by making the process of religious conversion
extremely cumbersome. For example, section 729 of the Uttar Pradesh Act mandates that any
person desiring religious conversion should give an advance notice of sixty days to the District

27
AIR 2021 ALLAHABAD 56
28
Supriyo @ Supriya Chakraborty vs Union Of India 2023 INSC 920
29
The Uttar Pradesh Prohibition of Unlawful Religious Conversion Law, 2020
Magistrate that such conversion is proposed to be performed. Once notice is received a police
enquiry is conducted as to the real intention of such conversions. Section 930 mandates that a
converted couple should send a declaration of conversion within sixty days of such conversion.
This copy is exhibited on the notice board of the office, having details like the permanent
address, the present place of residence, the religion from and to which they have converted etc.
They have to further present themselves before the district magistrate within 21 days to confirm
the contents of the declaration. Section 4 further allows any aggrieved person to file an FIR if
such conversion is done through undue influence, allurement, misrepresentation etc. Therefore,
a surge of such anti-conversion laws in the present times makes these couples unable to secure
legal protection, further discouraging inter-faith unions.

5. Conclusion

The State’s hesitation in not reducing the oppressive provisions of the Act after several supreme
court rulings on the Right to Privacy and Individual autonomy, is indicative of its own
reservations. Further, increasing laws on hindering inter-faith unions and conversions is state
paternalism in its worst form. The Special Marriage Act of 1954 started off as a legislation that
was constantly negotiating with the communities and later, orthodox legislative members to
gradually decrease strict notions of caste and religious purity. However, the state today
legitimises such moral policing by putting in provisions of enquiry and opening notice period
windows for objections by aggrieved people. The state has become a hostile opponent of
individual autonomy.

Nehru believed that true nation building has no scope for such caste barriers and they should
gradually give way to a more unified society. Since our childhood we have heard phrases like
‘Hindu, Muslim, Sikh, Isai aapas me hai bhai bhai’ which essentially means that we are diverse
yet united. However, today we need to rethink to what extent does this phrase still hold true.
With honor killings becoming a recurring phenomenon in the Indian society, it is safe to say
that our diversity has become all the more prominent with passing years. While the society
always had notions of morality, caste, chastity and purity embedded into their very existence,
when did the state stop being a secular actor. At this point we should ask ourselves if the state
is still negotiating with the communities or mirroring them ostensibly?

30
ibid