Christian and Parsi Law, and the Special Marriage Act

Parsi law

The Parsi Marriage and Divorce Act 1936. Marriage requires the Ashirvad ceremony performed by a priest in the presence of two Parsi witnesses; the Act was amended in 1988 to equalise the grounds of divorce and to introduce divorce by mutual consent.

The distinctive institution is the Parsi Matrimonial Court, constituted under the Act, in which matrimonial suits are tried with the aid of delegates chosen from the community, which is a form of participation by the community in the adjudication of its own family disputes.

Succession. Chapter III of Part V of the Indian Succession Act 1925 contains special rules for Parsi intestates, which were amended in 1991 to give the widow, widower and children equal shares.

Why it matters here. Both reforms were carried with the support of community bodies, which is the pattern reformers point to as the alternative to a code imposed from outside.

The Special Marriage Act 1954

What it is. A statute under which any two persons may marry, whatever their religion, without either renouncing their faith.

Section 4, the conditions. Neither party has a spouse living; neither is incapable of giving valid consent by reason of unsoundness of mind, or though capable of giving consent has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children, or has been subject to recurrent attacks of insanity; the male has completed twenty-one years and the female eighteen; and the parties are not within the degrees of prohibited relationship, unless a custom governing at least one of them permits it.

The notice procedure, which is the criticised part. The marriage officer publishes the notice of intended marriage for thirty days, and any person may object on the ground that it would contravene a condition in section 4. The requirement of publication has been criticised at length as exposing couples marrying across religious lines to interference by their families and by others.

Section 15 and 16. A marriage already celebrated under any other law may be registered under the Act, whereupon the parties come within it.

Section 19. A member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion is deemed to effect a severance from the family upon marrying under the Act. That is a real consequence: it removes the person from the coparcenary.

Section 21. Notwithstanding anything contained in the Indian Succession Act 1925, succession to the property of a person married under the Act, and of the issue of such a marriage, is governed by that Act.

Section 21A, inserted in 1976. Where both parties to a marriage under the Act profess the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 do not apply, so they neither sever from the joint family nor lose the application of Hindu succession law.

Why the Act is central to the uniform civil code argument. It already provides a common civil law of marriage, divorce and succession, available to everybody, and almost nobody uses it. That fact cuts both ways: it shows that a uniform code is possible, and it shows that making one available is not the same as making people want it.

A worked example

Priya, a Hindu, and Tariq, a Muslim, wish to marry without either converting.

The route. The Special Marriage Act. Notice to the marriage officer of the district where one of them has resided for at least thirty days; publication for thirty days; objections, if any, decided by the officer; then solemnisation before three witnesses.

The conditions. Section 4: no subsisting spouse; capacity to consent; twenty-one and eighteen; not within the prohibited degrees unless a custom governing one of them permits.

The consequences. Their marriage is governed by the Act for divorce, and by section 21 succession to their property and to that of their children is governed by the Indian Succession Act 1925 rather than by either party's personal law. If both had been Hindus, section 21A would have kept Hindu succession law applicable.

And if Priya belongs to an undivided family. Section 19 severs her from it, unless section 21A applies.

The problem the example exposes. The thirty-day publication is a real deterrent for exactly the couples the Act exists for, and the reform most often proposed for this statute is its removal.

What this does NOT mean

It does not mean Christian and Parsi law are unreformed. Both were substantially amended, in 2001 and in 1988 and 1991 respectively.

It does not mean the Special Marriage Act is a uniform civil code. It is optional, it covers only those who choose it, and it does not touch adoption or guardianship.

And it does not mean opting into it is costless. Section 19 severs a Hindu, Buddhist, Sikh or Jaina member from an undivided family unless both parties are of those faiths.

Quick revision

Christian law: Indian Christian Marriage Act 1872; Divorce Act 1869, amended 2001 to equalise section 10 grounds, add section 10A mutual consent and remove High Court confirmation; Indian Succession Act 1925, widow one third with lineal descendants, half without, children equal; section 118 struck down in John Vallamattom. Parsi law: Parsi Marriage and Divorce Act 1936, Ashirvad ceremony, amended 1988; Parsi Matrimonial Court with delegates; Indian Succession Act Chapter III of Part V, amended 1991 for equal shares. Special Marriage Act 1954: any two persons; section 4 conditions; thirty-day notice and publication, much criticised; sections 15 and 16 registration of an existing marriage; section 19 severance from a joint family; section 21 succession under the Indian Succession Act; section 21A, inserted 1976, disapplies 19 and 21 where both are Hindu, Buddhist, Sikh or Jaina.

Test yourself

1. What did the amendment of 2001 change in Christian divorce law? It equalised the grounds in section 10 of the Divorce Act 1869 so that a wife no longer had to prove adultery coupled with another matrimonial offence; it introduced divorce by mutual consent in section 10A after two years of separation; and it abolished the requirement that a District Court decree be confirmed by the High Court.

2. Set out the conditions in section 4 of the Special Marriage Act. Neither party has a spouse living; neither is incapable of giving valid consent by unsoundness of mind, or though capable is suffering from a mental disorder unfitting them for marriage and the procreation of children, or is subject to recurrent attacks of insanity; the male has completed twenty-one and the female eighteen years; and the parties are not within the degrees of prohibited relationship, unless a custom governing at least one of them permits.

3. What do sections 19, 21 and 21A of that Act do? Section 19 deems a member of an undivided family professing the Hindu, Buddhist, Sikh or Jaina religion to be severed from the family on marrying under the Act. Section 21 applies the Indian Succession Act 1925 to succession to the property of a person so married and of the issue of the marriage. Section 21A, inserted in 1976, disapplies both where both parties profess one of those four religions.

4. Why is the Special Marriage Act central to the uniform civil code debate? Because a common civil law of marriage, divorce and succession, open to everybody irrespective of religion, has existed since 1954 and is very little used. That shows both that a uniform code is workable and that availability is not the same as acceptance.

5. What is the most criticised feature of the Act, and why? The requirement in the notice procedure that the marriage officer publish the notice of intended marriage for thirty days and entertain objections. It exposes couples marrying across religious or caste lines to interference from families and from others, which deters precisely the marriages the Act exists to make possible.