Rework Special Marriage Act for love and liberty’s sake

Sometime in 2014, responding to all the rhetoric around ‘love jihad’, the actor Saif Ali Khan wrote: “Intermarriage is not jihad, intermarriage is India.”

It’s such a romantic idea, belied by reality. Inter-caste marriage still hovers at 5-6%. Marrying across faiths, or transgressing gotra rules still invites terrible violence in parts of this country.

The Special Marriage Act, a law of marriage “between any two persons”, liberates individuals from crushing collectivity. Anyone can marry anyone they choose. It smears the lines that divide us.

But in practice, the Act requires couples to jump through extra hoops to marry outside tradition and community. The Supreme Court is now hearing a plea that seeks to end the mandatory publicising of the couple’s private details for a month, for all to see and anyone to obstruct.

As the petitioners point out, this doesn’t square with the right to privacy. When I got married, a “notice of intended marriage” with our pictures, names, addresses and phone numbers was pinned to the office wall. A friend who visited the office sent me a picture of the peeling notice nearly a year after the event.

For many couples, though, this piece of paper can have devastating effects. One month is enough for families, community busybodies, faith and caste border forces to harass the couple. Public officials, cut from the same conservative cloth, often go along.

The Special Marriage Act was enacted in 1954, as a newly free nation tried to centre the individual, forge a common citizenship, and give women more substantive rights. Nehru and Ambedkar and others pushed this civil family law for those who wanted to step outside their community’s laws. It was resisted by conservative legislators even within the Congress. These strings were attached to the law in its difficult passage through Parliament.
The anxieties and yearnings around personal freedom are plain to see in the movies of the 1950s. And yet, romantic love was the core cinematic dream, as cultural scholar Aarti Wani details in her book Fantasy of Modernity. A modern India was imagined through the subversions and border-crossings of romance, the audacity of falling in love in a social context where most people did not have that option.

The Special Marriage Act embodies that ambivalence — its many conditions undercut its intention. Apart from the time requirement, the residence clause makes it hard for couples to evade unwelcome attention. The law must be redesigned with its original enabling purpose in mind. There could be higher penalties for who raise invalid objections, and disciplinary action against officials who side with social bullying. As a civil law, there is no reason to keep same-sex couples out of its ambit.

And yet, while hearing this petition, the court observed that without this notice period, parents wouldn’t know the whereabouts of their eloping offspring, and a husband wouldn’t know if his wife was marrying another man. This is a bewildering statement. After all, whatever the logic of the patriarchal family, when adult citizens decide to marry in our constitutional republic, parental opinion is beside the point. There are laws to address fraud and bigamy. If no notice is required for marriage under personal law, why should marrying under a secular law outside the canopy of community arouse this special suspicion?

In times when interfaith love is cast as ‘love jihad’, this stamping and hissing chorus is even more oppressive. A few years ago in Karnataka, Hindutva activists piled on to a local paediatrician whose daughter was marrying her Muslim boyfriend, until the young woman shut it down, saying: “It’s my wish”.

But “my wish”, meri marzi, coming from a woman is an earthshaking idea in our culture. In a society stacked by caste and religion, the control of marriage and mating is essential to keep each community sealed and intact. If women do what they want with their bodies and lives, what happens to purity, property, lineage?

Anyone who claims to care about a uniform civil code in good faith should be invested in a better Special Marriage Act. It’s the least we can do, for love and liberty.