Secular In Paper, Communal In Practice -The Legal Irony Of Sarika Sen Judgement

About The Authors

This article is written by 3rd year BA LLB students of Govt law college Thiruvananthapuram

INTRODUCTION

FACTS

potential social boycott the family would be subjected to, if the intended marriage is
solemnized.

ISSUE

JUDGMENT
Hon’ble Shri Justice Gurpal Singh Ahluwalia of the Hon’ble High Court of Madhya Pradesh
at Jabalpur ruled on the Sarika Sen v. State of Madhya Pradesh case on the 27th of May,2024.

The case at hand involves the marriage of two individuals, a Mohammedan man and a Hindu
woman, thus causing it to fall under prohibited degrees of relationship under Personal Law.
Hon’ble Sir Ahluwalia quoted Mulla to emphasize that difference of religion causes muslim
marriages to be irregular or fasid, ie, a Mohammedan man can validly marry a Mohammedan
woman or a Kitabia, but not an idolatress or fire worshipper.

The concept of Void, Valid and Irregular marriages was delved into at large, and also into the
actual interpretation of the term ‘fasid’ which was being contented much as invalid, and not
irregular. Therefore, the changes over time in the interpretation of fasid was considered.
Justice Ahluwalia drew a comparison between void (batil) and invalid (fasid) marriages to
facilitate this purpose. A void marriage is one that is void in itself with absolute prohibition,
whereas an invalid marriage is not one that is unlawful in itself, but for something else, with
only a temporary/relative prohibition, arising from an accidental circumstance. In this journey
of observation, Sir Ahluwalia, after citing Mulla’s principles through the ages, came to a
consensus that marriages prohibited by religious differences is not batil, but fasid, ie,
marriage of a Mohammedan man with an idolater or fire worshipper was neither Valid, nor
Void, but merely Irregular, and that any child born out of such a wedlock would be entitled to
claim a share in the father’s property. Further the case of Chand Patil v. Bismillah Begum²,

and points from Tahrir Mahmood’s Muslim Law in India & Abroad, and Syed Ameer Ali’s
Mohammedan Law were quoted to conclude the facts as to the legitimacy of the issue born of
such marriages. To further back that the Nikah of a Muslim man with an idolater was merely
irregular and not void, Sir Ahluwalia cited AAA Fyzee’s Outlines of Muhammadan Law
which also cited Mulla’s principles. High Court rulings such as Aisha Bi v. Saraswathi
Fathima³, and Ihsan Hassan Khan v. Panna Lal⁴ were quoted to affirm the same.

In his final statements, Hon’ble Justice Shri Ahluwalia stated that under Personal Law,
performance of mandatory rituals for solemnizing a marriage could be challenged, but not so
for a marriage carried out under the Special Marriage Act. However, he stated that marriage
under the Special Marriage Act would not legalize the marriage otherwise prohibited under
Personal Law, effectively citing Section 4 of SMA, which puts down the prohibited degrees
of relationship. Thus as per Mohammedan Law such a marriage between a Mohammedan
man and an idolatress or fire worshipper was not valid, but irregular, even if registered under
SMA, as it falls within the prohibited degrees of relationship (Section 4) and since the
Petitioners did not wish to have a live-in relationship if the marriage was not registered, and
also considering that Petitioner No. 1 had firmly decided to not accept Islam, the court ruled
that no case was made out warranting interference, and dismissed the petition.

ANALYSIS

Let’s break down this judgment. The court, through an uncalled application of Muslim Law,
refused to grant a Hindu female and a Muslim male necessary relief pertaining to
solemnization of their marriage. The Special Marriage Act, 1954 was enacted to facilitate
marriages irrespective of faith in India. The statement of objects and reasons reveals the
legislative intent of the act which is to provide a special form of marriage which can be taken
advantage of by any person in India and all Indian nationals in foreign countries irrespective
of the faith which either party to the marriage may profess. Section 4 states the conditions
relating to the solemnization of marriages as per the Act. This section begins with a
non-obstante clause that establishes Special Marriage Act’s overriding effect over other legal
frameworks relating to solemnization of marriages.

In the present case, the High Court of Madhya Pradesh has adopted a hypothetical
construction of the SMA, 1954 which is inconsistent with the secular object of the Act. The
judgment caused prejudice to the petitioners who are of the legal age and have every right to
marry as per this Act. Furthermore, there are no other mitigating conditions that cause a legal
hindrance to the same. The Supreme Court in Lata Singh v. State of UP⁵ broadened the scope
of Article 21 to include Right to Marry as a fundamental right and directed the State to
provide protection to individuals against threats particularly in interfaith marriages. The
decision in the instant case turns a blind eye not only towards the petitioner’s right to marry
but also to their protection and security. This misapplication not only distorts the intent of the
Act but also creates confusion regarding the legal framework governing interfaith marriages.

The misapplication and misinterpretation of the statute is twofold. Firstly, the concept of fasid
marriage doesn’t come within the purview of Special Marriages. Justice Ahuluwalia applied
the concept of fasid (irregular) marriage to negate the intended marriage of the petitioners.
However, it must be noted that the concept of fasid marriages applies exclusively to
marriages under the Muslim Law, and not to those under Special Marriage Act, 1954. By
conflating Mahomedan Law with a marriage intended for registration under the SMA, 1954,
the High Court has disregarded the Act’s secular nature, which guarantees marital rights
irrespective of religious affiliations. The secular nature of the Act, mandates that marriages
registered under it are governed solely by its statutory provisions, rendering references to
personal law concepts, such as fasid marriage, irrelevant. Secondly, the court has
misinterpreted Section 4(d) of the Act, by considering fasid marriage as a form of prohibited
degree of relationship. This misinterpretation creates a dubiety around the definition of
prohibited degrees of relationship which is well defined in Section 2(b). While the judgment
is supposedly backed by precedents, its relevance to the case at hand is fatuous. All these
precedents are instances of Muslim Marriages unlike the present case which is of an interfaith
marriage. Furthermore, the blatant ignorance towards landmark decisions of the Supreme
Court in this regard cannot be overlooked.

The HC of Madhya Pradesh has transgressed its jurisdiction by invoking Islamic personal law
to invalidate a marriage sought to be solemnized under the SMA, 1954, when, in the first
place, the HC was called upon to adjudicate on whether the petitioners are entitled to

protection from threats, false charges as well as follow up guard through a writ of mandamus.
Further, it is pertinent to note that the Court decided on a marriage that is not yet registered.
Hence, this judgment is flawed at many levels. By labelling the marriage as irregular and
denying the petitioners their right to marry, the Madhya Pradesh High Court has failed to
uphold its role as the protector and guarantor of fundamental rights. This judgment remains a
dangerous precedent lurking in the dark reality of a regressive society calling for a reality
check on whether we are merely secular on paper while communal in practice!

FOOTNOTES