Anatomy of the Special Marriage Act
Author(s): Kameshwar Choudhary
Source: Economic and Political Weekly , Dec. 28, 1991, Vol. 26, No. 52 (Dec. 28, 1991), p.
2981, 2983
Published by: Economic and Political Weekly
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parents, relatives, caste and community
Anatomy of the Special Marriage Act people to trace and harass the would-be
couple. Hence, it is necessary to repeal this
Kameshwar Choudhary section of the act and make it easy to ap-
proach any court in the country to facili-
tate easy marriage and evade the interven-
In principle the Special Marriage Act recognises the independence tion of retrogressive conscience and
of individuals and is intended to enable their liberation from the collectivities.
traditional , coercive collectivities in the matter of marriage. But It is very easy to raise objections to
speçial marriages. According to the act,
the conditionalities attached and procedure prescribed for special
"any person may, before the expiration of
marriages provide enough time and scope for family ; caste and
thirty days from the date on which any
community to harass those who wish to take recourse to the act .
such notice has been published . . . object
to the marriage on the ground that it
FOLLOWING the attainment of in- of the act outnumber the positive ones.would contravene one or more of the con-
dependence measures were initiated to One of the conditions of special mar-ditions specified... [Section 7]. On
riage is that 'the male has completed the
change the inegalitarian social structure receipt of the objection the marriage of-
age of twenty-one years and the female the
prevailing in the country. The independent ficer has to postpone the soleminisation
age of eighteen years' [Section 4(c)]. Here,
identity of the individual was recognised of marriage and conduct an inquiry into
it is assumed, that man and woman at-
and it was possible at least in principle, the matter. If the objection is upheld,
tain
to act according to the individual will intheir necessary physical and meňtal either party to the intended marriage may
the arena of state, thus facilitatingmaturity
the by the age mentioned above and, appeal to the district court. This pro-
emergence of an enlightened citizenry.hence,
But they are capable of taking decisions cedure may take more than the stipulated
only a half-hearted effort was made inregarding
this marriage without the inter- three months (from the date of notifica-
ference of traditional collectivities. But
direction in the domain of civil society. tion of the marriage in the court) within
The consequences of this shortcoming this
areprovision is largely nullified by other which the marriage has to be solemnised
clauses under the act. There is no scope failing which a fresh application for mar-
illustrated by events like the recent hanging
in Mehrana of a Jat girl and two Harijan for immediate marriage in the (civil) court riage has to be made [Section 14].
boys, one of whom wanted to marryunder the this act. The male and the female The punishment for invalid objection
girl disregarding archaic tradition ofintending
en- to marry have to apply in is very light. According to the act if "the
dogamy. Only a few months ago a post- writing to the court [Section 5]. Their objection made to an intended marriage
graduate boy and a graduate girl had marriage
to is solemnised only after one is not reasonable and has not been made
face harrowing situations as a result ofmonth
the if no objection is raised to it in this in good faith he (the marriage officer)
period [Section 7(2)]. Moreover, it is the
refusal by many magistrates at Tis Hazari may impose on the person objecting costs
Court in Delhi even to record án affidavit
duty of the marriage officer to display a by way of compensation not exceeding
for their marriage. The simple reason copy
was of the announcement of intended one thousand rupees and award the whole
that the couple belonged to different marriage at some conspicuous place in his or any part thereof to the parties to the
religious communities. Such cases office
are [Section 6(Ž)]. Thus the period of intended marriage. . [Section 9 (2)].
multiplying day by day though as a one month between solemnising the mar-
rule It is crucial to modify the aspect of the
riage and its notification gives ample
they remain unreported. This is a telling act. There has to be some deterrent for
commentary on the various lacunaescope and to the members of family, caste and unreasonable and mala fide objections. In
shortcomings in the Special Marriagereligious
Act community to raise objections, such cases provision should be made for
cause
(1954). In fact, there is an urgent need ofharassment and in some cases even imprisonment for a minimum period of
amending the act to make it comprehen-cause physical harm to the persons inten- five years and a varying amount of fine
sive and progressive enough so thatding theto marry. Therefore, it is essential according to the economic status of the
that the provisions of a month's gap are
individual is extricated from the strangle- objecting party. Moreover, this whole
hold of traditional, regressive, casteistannuled.
and amount should be awarded to the parties
communal conscience and develops a Another major obstacle to special mar- to the marriage.
modern, secular scientific human self. Three witnesses are required for solem-
riage is the clause relating to residence.
Traditional arranged marriages involve nisation of special marriages [Section 11].
Application to the court for marriage can
two families belonging to the same caste This need not be made obligatory. The
be made only if at least one of the par-
or community, hence, the social domain ties has resided in the district where procedure could be simplified so that the
of marriage is circumscribed which partly parties intending to marry have to sign a
application for marriage is made for a
contributes to the prevalence of the evil period of not less than 30 days immediate-
marriage declaration to the effect that all
of dowry. In contrast, the special marriage conditions under the act have to be in the
ly preceding date of application [Section
solemnised under the 1954 act is basically presence of the marriage officer and this
5]. Moreover, in case either of the parties
'a marriage between any two persons' declaration is countersigned by the latter.
is not a permanent resident of the district
[Section 4]. Thus, in principle, the act in which the parties move the court for It is also essential that the act provides
recognises the independent identity of an for punishment of marriage officers who
marriage, the marriage officer of the con-
individual and liberates him/her from the refuses to solemnise marriages or harass
cerned court has to inform the court in
traditional coercive collectivities in the the intending parties despite fulfilment of
the district within whose limits such party
matter of marriage. But the conditiona- all necessary conditions. The nature of
is a permanent resident so that a copy of
lities attached and procedure prescribedthe announcement of the intended mar-punishment could involve suspension/
for special marriages do not make it easy dismissal from service, fine and imprison-
riage is displayed at some conspicuousment.
in practice. The act provides enough time
place in the office of the latter [Section
and scope for family, caste and communi- Such changes in the act would go a long
6(3)].
ty to harass individuals who intend to take way in liberating the individual from the
recourse to it. In fact, the negative features Such requirements make it very easy for coercion ánd oppression of primordial,
Economic and Political Weekly December 28, 1991 2981
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collective conscience and traditions and facilitate a free individual choice in mat- follow as a result of their increasing in-
make for free citizens in a true sense. The ter of marriage. This would certainly make debtedness to the wealthy countries of the
Indian state has to remove these anomalies some basic contribution to the making of world.
in civil society. It has to take steps to Indian nationhood even if only gradually.
Two years ago, UNlCEF's State of the
World's Children had drawn attention to
Banning Child Labour the disastrous effects these policies were
having on children of third world nations.
Krishna Kumar These effects are likely to surface sharply
in our country in the coming years, with
the burden of the new, so-called open
The Supreme Court's order banning child labour in 'beedi9
economy falling on the shoulders of the
manufacturing is a modest achievement which will need sustained
poorest sections of society, both directly
vigilance and struggle if it is not to fizzle out. by way of steep inflation in the price of
essential necessities, and indirectly by way
THE recent order issued by the Supreme ed by making primary education com- of the state's virtual abdication of educa-
Court banning child labour in 'beedi' pulsory. A strong plea along this line has tional and health-related responsibilities,
manufacturing marks a culminationrecently of ' been made by the American especially the responsibility to improve the
the sustained efforts made over the last political scientist Myron Weiner whose system. Unprecedented amounts of
decade to highlight the oppression of child book on child labour and the Indian state foreign funds are currently being pumped
workers. These efforts included studies of is circulating faster in its Indian reprint into elementary education. In the absence
the conditions of child workers and also than any word against child labour spoken of structural reforms, especially those
earlier by an Indian, be it Kamladevi relating to the powers of officials vis-a-
legal actions initiated by concerned in-
Chattopadhyay or Sheela Barse, has.
dividuals and groups. That it is a modest vis the teachers, such liberal inflow of
achievement, which will need sustainedWeiner says in unabashed Orientalist style hard currencies can only be expected to
vigilance and struggle if it is not to fizzle that Indians view child labour in a highly make the education system more corrupt
out, is inherent in the court's cautious in- ambivalent manner because of factors and unaccountable. The old dream of
junction to the states giving three years to rooted in their culture. Weiner's analysis compulsory primary education seems to
phase out child labour in the beedi trade. has no room for issues like the direction have today even less of a chance of
Time has no definite meaning or value that Indian economic planning is takingbecoming reality than it had some years
in our society. Politicians and bureaucrats under the leadership of ideas flowing fromago. As Yash Aggrawal of the National
are fond of believing that public memory America, and surely Weiner wastes noInstitute of Educational Planning and
is short; the fact is that administrators also words in the eight pages he uses delinea-Administration has pointed out in a
rarely show ready memory of their own ting the American example on the con-published analysis, the situation has not
commitments. Indeed, the new accepted tinued exploitation, abuse and co-optive been becoming brighter but grimmer. The
ideology of development calls upon education of America's black children. Supreme Court can hardly be expected to
people to remind the government of their Nor does he have anything to say of the throw life into a state's memory which has
rights. It is in this context that one worries economic adjustment policies that many all but lost track of its meaningfulness for
about the fate of beedi-making children. countries like India have been forced to children.
If their legal right to freedom from the
oppressive conditions of beedi manufac-
turing has to depend on individuals or in-
stitutions eager to take up their cause in
public interest, then there is not much r TOWARDS INDEPENDENCE 1940 - 1947 BFMWWP
hope for these children in many areas of Asok Mitra HUiBmÍÍÍ
the country where vigilant voices, whether Asok Mitra travels down memory lane for the benef
personal or institutionalised, are non-
recounts his days as an Indian member of the Civi
existent. One fears that not only will these
new insight into the infamous Bengal famine of 1
children continue to roll beedis in op-
tacit encouragement of partition and gives an acut
pressive conditions and for a pittance of
Mountbatten and Nehru,
a wage; it is not unlikely that thei^ parents
will become victims of blackmail at the pp 168 • Demy 8vo • hb • Rs. 200.00
THE NEW INDIA 1948 - 1955
-hands of inspectors who will use the ban
order to extort the price of keeping Asok Mitra
children's lucrative activity unreported. The early years of freedom saw winds of change sweep over the country
It is hardly unfair to say that in the bringing in its wake fresh challenges and new responsibilities to a member of
present-day scenario the judiciary is the Indian Civil Service. The author provides a clear picture ofiiyiia's relations
serving mainly a psychological role by with the newly formed Pakistan, the Indo-Pak border problems, the famous
issuing orders such as this one. The order Howrah Riot and its aftermath, the First Five Year Plan and Community
may bring no change whatsoever in the Development Projects,
lives of the lakhs of children rolling pp 156 * Demy 8vo • hb • Rs. 175.00
beedis, but it certainly puts a precious
mouthful of breath into the sinking heart r%| POPULAR PRAKASHAN
of liberal faith. At a time when the state I TmS 35-C Pt M.M.Malaviy a Marg, Tardeo - Bombay 400 034
seems to have lost all but nominal interest
in improving the social destiny of children,
many arguing for a total ban on child
labour still believe that this can be achiev-
Economic and Political Weekly December 28, 1991 2983
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