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Family law -1 Project on:Special marriage act as a precursor of uniform civil code
Submitted To: Mr.Saiwal sathyarthi Submitted By: Katyayani singh Roll No.: 423 Semester: III, 2nd Year.
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ACKNOWLEDGEMENT
The present project on the special marriage act as a precursor of uniform civil code has been able to get its final shape with the support and help of people from various quarters. My sincere thanks go to all the members without whom the study could not have come to its present state. I am proud to acknowledge gratitude to the individuals during my study and without whom the study may not be completed. I have taken this opportunity to thank those who genuinely helped me.
With immense pleasure, I express my deepest sense of gratitude to Mr.saiwal sathyarthi , Faculty for Family Law, Chanakya National Law University for helping me in my project. I am also thankful to the whole Chanakya National Law University family that provided me all the material I required for the project. Not to forget thanking to my parents without the co-operation of which completion of this project would not had been possible.
I have made every effort to acknowledge credits, but I apologies in advance for any omission that may have inadvertently taken place.
Last but not least I would like to thank Almighty whose blessing helped me to complete the project.
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RESEARCH METHODOLOGY
Method of Research:
The researcher has adopted a purely doctrinal method of research. The researcher has made extensive use of the library at the Chanakya National Law University and also the internet sources.
Sources of Data:
The following secondary sources of data have been used in the project1. Cases 2. Books 3. Websites
Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical.
Mode of Citation: The researcher has followed a uniform mode of citation throughout the course
of this research paper. 3|Page
List of Cases
1. Mohd. Ahemad Khan V Shah Bano Begum and Ors 2. Smt. Sarala Mudgal, President, Kalyani &Ors 3. John Vallamattom & Anr. V. UOI 4. Smt. Seema v. Ashwani Kumar
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CONTENTS
INTRODUCTION CONCEPT OF UNIFORM CIVIL CODE SPECIAL MARRIAGE ACT APPLICATION OF SPECIAL MARRIAGE ACT UNDER INTER RELIGIOUS CIVIL MARRIAGES PROHIBITED DEGREE OF RELATIONS UNDER SPECIAL MARRIAGE ACT APPLICATION OF THIS ACT IN LAW OF SUCCESSION REGISTRATION UNDER SPECIAL MARRIAGE ACT CONSEQUENCE OF THIS ACT CONCLUSION BIBLIOGRAPHY
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Introduction
Uniform civil code of India is a term referring to the concept of an overarching Civil Law Code in India. A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion, caste and tribe. This supersedes the right of citizens to be governed under different personal laws based on their religion or caste or tribe. Such codes are in place in most modern nations. The common areas covered by a civil code include laws related to acquisition and administration of property, marriage, divorce and adoption. This term is used in India where the Constitution of India attempts to set out a uniform civil code for its citizens as a Directive Principle, or a goal to be achieved. In India, most family laws are determined by the religion of the parties concerned Hindus, Sikhs, Jains and Buddhists come under Hindu law, whereas Muslims and Christians have their own laws. Muslim law is based on the Sharia. The personal laws of other religious communities were codified by an Act of the Indian parliamentThe Indian Parliament also enacted the Special Marriage Act, 1954, as an Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorces under this Act. This enactment of solemnizing marriage by registration is resorted to by Hindus, non-Hindus and foreigners marrying in India who opt out of the ceremonial marriage under their respective personal laws. Registration is compulsory under this enactment. Divorce can also be obtained by non-Hindus under this Act. This legislation governs people of all religions and communities in India, irrespective of their personal faith.
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JUDICIAL TREND
In Mohd. Ahemad Khan V Shah Bano Begum and Ors1, the sc has been held that Article 44 of our constitution has remained a dead letter. There is no evidence of any official activity for framing a common code for the country. A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. It is the State which is in charged with the duty of securing a UCC for the citizens of the country and unquestionably, it has the legislative competence to do so. A beginning has to be made if the constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the Courts because; it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of Courts to bridge the gap between personal laws cant take the place of a common civil code. Justice to all is a far more satisfactory way to dispensing justice than justice from case to case. Smt. Sarala Mudgal, President, Kalyani &Ors. V UOI2 Kuldip singh,j. The state shall endeavor to secure for the citizens a UCC throughout the territory of India is an unequivocal mandate under Article 44 of the constitution of India which seeks to introduce a uniform personal law is a decisive step towards national consolidation. There is no justification whatsoever in delaying indefinitely the introduction of a personal law in the country. Article44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society. John Vallamattom & Anr. V. UOI3 V.N.Khare, CJI,Article 44 is based on the premise that there is no necessary connection between religion and personal law in a civilized society. Article 52 of the constitution confers freedom of conscience and free profession, practice and propagation for religion. The aforesaid two
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AIR1995 SC153
AIR2003 SC2902
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provisions viz., Article 25 and Article 44 show that the former guarantees religious freedom whereas latter divests the religion from the social relations and personal law. It is no doubt that marriage, succession and the like matters are of a secular character cant be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation.
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Special Marriage Act 1872 was amended to make it available to Hindus, Sikhs, Buddhists and Jains for marrying within these four communities without renouncing their religion5. As so amended, the Act remained in force until after independence.
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when the first law of civil marriages was enacted a non-religious marriage could be regarded as special as the parties to such a marriage had to denounce their religion. Marriage by religious rites was then the rule and a civil marriage could be only an exception. Now in the twenty-first century calling non-religious civil marriages special has little justification. Being a uniform law which the parties to any intended marriage can opt for irrespective of their religion or personal law, it need not be described as a law providing for a special form of marriage. It projects such marriages as unusual and extra-ordinary and creates misgivings in the minds of the general public.
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Thus, in respect to prohibited degrees in marriage in an intended civil marriage to be regulated by the Special Marriage Act 1872 personal laws of the parties, common or different, remained in force.
In each of the two lists of prohibited degrees there are 37 entries. The relations mentioned in the first 33 entries in each list are regarded as prohibited degrees in marriage under all other laws, both codified and uncodified. These entries, therefore, do not inhibit any person of whatever
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religion from opting for a civil marriage. Thus all first cousins paternal and maternal, parallel and cross are placed by the Special Marriage Act in the category of prohibited marital relationship. The Special Marriage Act 1954 makes a provision for relaxation of the rule of prohibited degrees in marriage. To the condition that parties to an intended civil marriage must not be within prohibited degrees of marriage the Act adds the following proviso: Provided that where a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnized notwithstanding that they are within the degrees of prohibited relationship. [clause (d) of Section 4] The word custom as used in this Proviso is defined by the Act in the following terms: In this section custom in relation to a person belonging to any tribe community, group or family, means any rule which the State Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe, community, group or family. [Explanation to Section 4].8
The position of first cousins under the Special Marriage Act 1954 is in accord with the Hindu Marriage Act 1955 which also does not allow marriage with any first cousin. Relaxation of the net of prohibited degrees on the ground of custom is also permissible under that Act, but it does not require a gazette notification by the State Government in this regard. In Muslim law all first cousins both on the paternal and maternal sides are outside the ambit of prohibited degrees in marriage. Personal law of the Jewish and Bahai communities also permit marriage with a cousin. Under Christian law marriage with a cousin may be permitted by a special dispensation by the Church. It is doubtful if the expression custom as defined in the Special Marriage Act would include also personal law of the parties. And even if it does, the condition of recognition by the State Government through a gazette notification would have to be satisfied. Another important point worth noting here is that under the Hindu Marriage Act 1955 marriage with second cousins (fathers first cousins children) is also not allowed due to the restriction known as sapinda relationship [Section 5(v)]. The Special Marriage Act 1954, however, does not place any second cousin in its two lists of prohibited degrees in marriage. The consequence of these legal
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Ibid 5
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provisions is that if a Hindu, Sikh, Buddhist or Jain wants to marry a second cousin he can do so under the Special Marriage Act, though his personal law (now contained in the Hindu Marriage Act 1955) does not permit it. On the contrary, if a Muslim wants to marry a first cousin he cannot do so under the Special Marriage Act 1954 although the Muslim personal law unconditionally permits such a marriage. Members of all those other communities whose law allows, or may allow, marriage with a first cousin are also in the same position as the Muslims. The discrimination between various Indian communities inherent in this legal situation is too clear to be ignored.
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This provision was uniformly applicable to whoever opted for a civil marriage, whether within or outside ones community. As a result, all personal laws of succession ceased to apply in the cases of civil marriages. .
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(i) Where both parties to a civil marriage are Hindu, Buddhist, Sikh or Jain the Hindu Succession Act will apply.
(ii) Where only one party is a Hindu, Buddhist, Sikh or Jain and the other party belongs to any other religion the Indian Succession Act will apply.
(iii) Where a Muslim opts for a civil marriage, whether within or outside the Muslim community the Indian Succession Act will apply.
(iv) Where a Parsi opts for a civil marriage, whether within or outside his community the general inheritance law under the Indian Succession Act will apply -- not the Parsi succession law as incorporated in that Act.
(v) Where a Christian opts for a civil marriage, whether within or outside the Christian community, the Indian Succession Act will apply.
Under the impact of the Marriage Laws (Amendment) Act 1976, thus, citizens of India opting for a civil marriage are classified into three categories, viz.:
(a) Hindus, Buddhists, Sikhs and Jains marrying within these four communities;
(b) Hindus, Buddhists, Sikhs and Jains marrying outside these four communities; and
(c) All other citizens marrying either within or outside their respective communities.
This seems to be an unreasonable classification as all personal laws have the same legal status in the country. The Muslims and Parsis give utmost importance to their personal laws of succession. The Muslim law of inheritance is drawn direct from the Holy Quran and therefore a predominant section of Muslims wants to adhere to it. The prospect of losing it in case they go in
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for a civil marriage greatly inhibits them and compels them to remain away from the Special Marriage Act 1954. The Parsis had got their religion- based law of inheritance codified in the form of the Parsi Succession Act 1865 which was, on their demand, preserved even under the new consolidating law called the Indian Succession Act 1925. For this reason no Parsi wants to make use of the Special Marriage Act 1954 as it would deprive them of their law of succession. There seems to be no reason why the Special Marriage Act 1954 should at all make a provision regarding succession law to be applied in case of civil marriages. Under the old Special Marriage Act 1872 parties to a civil marriage had to dissociate themselves from religion and so any community-specific law of succession could not apply in any such case. As this would create a vacuum, it was unavoidable to make the Indian Succession Act 1865 applicable to them. But, this is not the case under the new Special Marriage Act 1954 under which there is no need to renounce religion in any case of a civil marriage. So, succession to the properties of the parties may well continue to be governed by their respective personal laws, whether they belong to the same community or to two different communities especially since in this country there is no concept of a married couples joint property. It may, of course, be made possible for any individual to opt for the Indian Succession Act 1925 irrespective of whether his or her marriage is a civil marriage or a religious marriage governed by a personal law. But the present linkage between civil marriages and the applicable law of succession serves no purpose. On the contrary, for certain communities it is a discouragement and a serious inhibition against opting for a civil marriage.
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10
RIGHTS AND DEVELOPMENT bulletin by Centre for Development and Human Rights
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Act, 1939. Certain state governments can make rules for registration of Muslim marriages either under the Kazis Act, 1888 or the Mohammedan Marriage and Divorce Registration Act 1876. The latter was enforced in Bengal, Orissa and Bihar in 1876, enabling voluntary registration of marriages and divorce. It remains applicable in Bihar and Jharkhand, while Orissa and Assam have enacted it as the Orissa Muhammadan Marriages and Divorce Registration Act, 1949 and the Assam Moslem Marriages and Divorce Registration Act, 1935 (which was reenacted by Meghalaya) respectively. Nonregistration, however, does not affect the validity of a Muslim marriage.
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Discrepancies between Hindu law and the Special Marriage Act, 1954
Over a period of time, the Judiciary has noticed certain discrepancies caused by the parallel regimes of Hindu law and the Special Marriage Act, 1954. Most recently, in February 2008, the High Court issued notices to the State Governments of Punjab and Haryana seeking to destroy a few conflicting provisions in the Hindu Marriage Act (1955) and the Special Marriage Act, 1954. One of the conflicting provisions highlighted by the High Court was that under the Special Marriage Act, 1954, a marriage solemnized was void if either of the parties to the marriage had not attained the requisite age, but such a marriage solemnized under the Hindu Marriage Act would not be void (though punishable under the Child Marriage Restraint Act). Likewise, after attaining puberty, if a marriage is contract under the Muslim Law then such marriage is also valid and liable to be registered. If any dispute arises regarding the validity of marriage then the registration is the strongest source to prove that the marriage is valid
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Conclusion
A net analysis of the various propositions and view points discussed above drives home the ideal solution that for Indians there is needed one indigenous Indian law applicable to all its communities which coexist democratically. Analytically speaking, the answers to the social issues discussed above are within the system. Codification of a unified civil code may be the ultimate solution. Other measures will only tide over time. Judicial verdicts will keep the momentum going. Accommodating personal laws of all religions under such a code is an uphill task. It may take time. The legislature will ultimately have to perform this onerous duty of drafting the Code. Religion will have to keep pace with law. Unity in India exists in its diversity. Times have moved ahead, but personal laws have not kept pace. The courts in India perform a Herculean task in carving out solutions on a case to case basis. The executive and the legislature arms of the government in India however now need to contribute to provide the much needed solutions. In the e-age today, the path to progress must be chartered with harmony at home. As the largest democracy in the world, India has an opportunity to be a role model in various aspects of family laws. Maybe, with further changes and amendments in some aspects, a better role model to emulate may emerge in the Indian sub continent.
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BIBLIOGRAPHY
1. 211LAW COMMISSION REPORT 2. 212 LAW COMMISSION REPORT 3. PROF KUSUMS, FAMILY LAW -1 , LEXIS NEXIS BUTTERWORTHS WADHWA ,NAGPUR, ed.3rd 4. Uniform Civil Code: An Unfulfilled Vision by Aditi dani,(last accessed 17/10 2011), http://jurisonline.in/2010/03/uniform-civil-code-an-unfulfilledvision/ 5. Uniform civil code by Gauri kulkarni,(lasr accessed 18/10 2011) http://legalserviceindia.com/articles/ucc.htm
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