GS Paper II

News Excerpt:

An estranged Parsi wife of a prominent Hindu industrialist is seeking legal advice on her alimony rights, their marriage was solemnised under the Special Marriage Act (SMA) and not the Hindu Marriage Act (HMA).

Key issues related to SMA:

• Alimony and maintenance: Right to Equality

• Section 36 deals with interim support, while Section 37 addresses permanent alimony and maintenance.
• Under Section 37 of SMA, only the wife can claim permanent alimony and maintenance from the husband, whereas according to Section 25 of HMA, either party, i.e., the husband or the wife, can claim permanent alimony and maintenance.
• The condition that only women are eligible for alimony under SMA violates the Right to Equality.

• Notice period: Right to Privacy

• Under Section 7 (Objection to marriage), any person can object to the marriage before thirty days from the date of the notice’s publication.
• This provision is often used to harass consenting inter-religious couples and has been challenged several times for endangering the lives of such couples.
• In 2009, the Delhi High Court, underlining the right to privacy, struck down the practice of posting the notice of intended marriage under the SMA to the residential addresses of both parties through the police station of the concerned jurisdiction to verify their addresses.
• In 2021, the Allahabad High Court ruled that couples seeking to solemnise their marriage under the SMA, 1954 can choose not to publish the 30-day notice of their intention to marry.

• Property and Inheritance:

• Section 26, which deals with succession under the SMA, recognises the validity of children born to people married under the SMA.
• The offspring of such marriages are not entitled to ancestral property.
• They can only obtain a share of their parents’ self-owned or inherited property.

Positive aspects of SMA:

• No need for conversion:

• Laws, such as the Muslim Marriage Act 1954, and the Hindu Marriage Act (HMA) 1955, require either spouse to convert to the religion of the other before marriage.
• SMA allows individuals from different religions to marry without the need to convert.
• Succession rights under SMA:
• Rights about the succession of property of a person married under this Act, or that of their children, are governed by the Indian Succession Act 1925.
• Children born under the SMA have equal rights over both parents’ properties, as opposed to unequal rights of sons and daughters under religious laws.

Way Forward:

• Awareness campaigns and initiatives should be started to inform people about the legal provisions and procedures followed in the Special Marriage Act.
  • Thus helping individuals make informed decisions when opting for such marriages.
  • It would bring more inclusivity and diversity to the institution of marriage.
• Authorities should look towards providing security to the couples opting for marriages under the act.
  • This would negate the chances of honour killings, which are quite prevalent.
• The government could strive to speed up and improve the procedure to make marriages easier under the SMA.
  • The 30-day notice rule has been a contentious subject. This requirement could be done away with or made optional by the government.