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Is the Special Marriage Act, 1954 a Precursor to the Uniform Civil Code?


Authored by - Sania Vinayan

Keywords - Special Marriage Act, Uniform civil code, Directive Principles


Abstract


This article discusses the Special Marriage Act of 1954 along with the Uniform Civil Code. This Act was introduced in India after several years of its independence. Since then, there has been no other step towards uniform laws due to various social and political reasons existing in the country.


Introduction


India is home to several major religions in the world. The religions include Hinduism, Christianity, Islam, Judaism, etc. These religious communities, while residing on the same land, have differing views on subjects of morality, and belief and lifestyle. Keeping this reality in mind, the makers of the Constitution drafted civil laws that catered to each community. But their goals were initially to have uniform laws that were commonly applicable to every citizen in India. This can be inferred by the inclusion of the Uniform Civil Code (UCC) in our Constitution under Article 44 of Directive Principles of State Policy[1]


But it is a directive principle, hence, it is only a guideline to the State. But the mere fact that the concept of UCC was introduced in the Constitution – a document made after almost three years of deliberation by the Constituent Assembly, indicates that the founding fathers wished to direct the country towards a Uniform Civil Code.


What is the Uniform Civil Code?


Uniform Civil Code (UCC) is mentioned in our Constitution under Article 44 of Directive Principles of State Policy.[2] It means that common rules shall be applied to all citizens of the country irrespective of their religion. In other words, we can say that it means one country one rule[3]. Minority groups are mostly the ones in opposition to a rule like this.[4] They worry that the UCC will be a way of applying rules that cater to the religion of the majority in the country.


In the words of former Chief Justice of India Y V Chandrachud “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies” (Mohd. Ahmed Khan vs Shah Bano Begum and Ors, 1985)[5]

The debate surrounding the Uniform Civil Code first surfaced during the case of Mohd. Ahmed Khan vs Shah Bano Begum and Ors. The crux of the debate was that Article 44 of the directive principles directly contradicts the right to practice and profess the religion of their choice.


Special Marriages Act, 1954 (SMA, 1954)


The notable point is that the Indian Parliament recognized the necessity of a separate Act in certain cases within seven years of its independence. It offered a special form of marriage for all Indian nationals regardless of the faith of either of the parties. This characteristic of the SMA followed the principle of a uniform code. This allowed solemnization of marriages between persons who did not stand by any religion. It also catered to people who wanted an inter-caste or inter-religious marriage. A marriage performed under this Act is a civil contract. Since it does not need the criteria of religion, there is no necessity of any ritual or ceremony for the contract to be valid. The Special Marriage Act has a very special feature of marriage officers.[6] Any person, including Parsis, Muslims, Sikhs, Hindus, Christians, or Jew can also marry under this Act. This Act only allows monogamous marriages and needs the groom to be of at least 21 years old and the bride must be 18 years of age.[7]


Is the Special Marriage Act a Precursor to a UCC?


The passing of the Special Marriages Act of 1954 can be seen as a step towards a UCC in India as it deals with the area of marriage which is essentially a civil matter. Although marriage under this Act is an option and not mandatory, there has been no other legislation that is driven towards the UCC over the past 60 years. India only has a uniform criminal code. This means that areas of laws governing civil matters like marriage, divorce, adoption, inheritance, and other personal and familial matters are still subject to an individual’s religion and customs.


Conclusion


Laws are the reflection of the social realities of society. For decades, India’s reality lies in the fact that people are disinclined towards a common law. Every religious community in the country intends to live by their religious customs, no matter how jarring it may be for people of other beliefs. Although the Constitution states that India strives to be a secular country[8], its legislations do not closely reflect those values. These legislations reflect the various beliefs of the people of the country. It is also important to keep in mind that although the law is an instrument of social reform, it cannot be used unwisely. Social reforms are a slow and gradual process. If laws are imposed on people who are not ready for that kind of change, it can lead to anarchy.


It has been more than 60 years since the legislature has been "working towards” a unified code of law. But there has arguably been only one substantive step taken towards it, which is the Special Marriages Act of 1954 that is called a precursor to the UCC. But will the UCC in its entirety be finally adopted in India? When will India be secularised in its truest sense?


1. Mohd. Ahmed Khan vs Shah Bano Begum and Ors , AIR 945, 1985 SCR (3) 844 (Supreme Court of India April 23rd, 1985 ).

2. In the absence of UCC- Special Marriage Act is a better bet for women by Dr. A. Krishna Kumari Electronic copy of this paper is available at http://ssrn.com/abstract=956233

3. Legal service India http://www.legalserviceindia.com/articles/ucc.htm

Special Marriage Act of 1954, Indian Kanoon, https://indiankanoon.org/doc/4234/

4. Mohd. Ahmed Khan vs Shah Bano Begum and Ors 1985 AIR 945, 1985 SCR (3) 844 https://indiankanoon.org/doc/823221/

References


[1] Constitution of India, Article 44 of the Directive Principles.

[2] Supra 1

[3] http://www.legalserviceindia.com/articles/ucc.htm

[4] In the absence of UCC- Special Marriage Act is a better bet for women by Dr. A. Krishna Kumari Electronic copy of this paper is available at http://ssrn.com/abstract=956233

[5] Mohd. Ahmed Khan vs Shah Bano Begum and Ors 1985 AIR 945, 1985 SCR (3) 844

[6] Special Marriage Act, 1954

[7] Supra 3

[8] Preamble to the Constitution of India