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

Judiciary is the guardian of fundamental rights but what, when the judiciary itself shuts its door, revealing the grim reality of the apparent hypocrisy of what is secular in paper but communal in practice. A recent example is the decision of the High Court in Sarika Sen v. State of Madhya Pradesh¹, which concocted an imbalance while addressing the overlap between Special Marriage Act, 1954 and Muslim Laws of Marriage. This article is an analysis of the legal paradox of this judgment in the broader realm of the pluralistic society of India.

FACTS

The instant case revolves around the petitioner, Sarika Sen, a Hindu female (Petitioner 1) and her lover, a Muslim male (Petitioner 2) who decided to solemnize their marriage as per the Special Marriage Act, 1954. Upon objections raised by the petitioner’s father, they were not in a position to appear before the marriage officer for registration of the intended marriage. As a result, they approached the High Court of Madhya Pradesh through a writ petition
seeking mandamus directing the Respondent authority to:

a) provide security to the petitioners from the family members of petitioner no.1.
b) provide follow-up guard to the petitioners for appearing before the Marriage Registration Officer i.e. Additional Collector Anuppur.
c) not register any false cases against petitioner No.2 in respect of kidnapping or other related offences.

The petitioner’s father opposed the petition on the account that the petitioner left the house by taking jewellery and cash of all the family members. He further raised concerns of potential social boycott the family would be subjected to, if the intended marriage is
solemnized.

ISSUES

Whether the petitioners are entitled to police protection ?
Whether a Muslim male and Hindu female can solemnize their marriage under Special Marriage Act, 1954 ?

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 Lal⁴were 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