SC, HC on Marriage

Recently there have been many issues that are cropping up relating to marriage, some of them are inter- religion marriages, inter caste marriages, marriages between same sex etc.  In the law, there are acts related to every religion like Hindu Marriage Act, Muslim Marriage Act, and Special Marriage Act. In certain Hindu communities marriage between different castes is still  taboo, and there have been many honour killings of the young married couple relating to inter caste marriages,  or in certain cases inter religion marriages. Most of the time the inter caste/religion couples get blessings of their parents, but sometimes matters even go to court.

In the Hindu community either the marriage takes in front of family and friends with a priest performing the marriage rituals or marriage takes place in a temple in a private ceremony with a priest performing the rituals. In Hindus also there are many communities that follow different marriage rituals performed by priests in different ways, and one of them is marriage performed by a priest of Arya Samaj Mandir. Arya Samaj is a Hindu sect that was founded by Swami Dayanand Saraswati, and they do not perform idol puja, but believe God is one.

Few years back, a inter caste marriage took place in Arya Samaj Mandir in MP, which was opposed by the parents, and the matter went up to the High Court, and in the meantime, the couple was under police protection. The High Court gave the judgment that the registration of Arya Samaj Mandir wedding is in line  Special Marriage Act (SMA), and as the couple never gave the notice under SMA, hence their marriage is not valid. Whereas the contention of Arya Samaj was that with respect to Arya Samaj marriage, the Hindu Marriage Act (HMA) 1955, and Arya Marriage Validation Act (AMA) 1937, hold the field. HC issued specific directions to Arya Samaj to amend its guidelines to incorporate sections 5,6,7 and 8 of SMA-which cite prerequisite conditions like giving notice of the intended marriage, publication of the notice, maintenance of marriage notebook, objection to marriage within a month. This single bench judge order was upheld by two judge bench afterward, and further directed that marriage certificates will have to be issued by a competent authority in accordance with the SMA

Madhya Bharat Arya Pratinidhi Sabha, which has jurisdiction over all Arya Samaj Mandirs in MP, approached the Supreme Court (SC) against the decision of the HC. In its petition, they questioned a High Court (HC) order that had directed it to amend its guidelines for registration of Arya samaj Weddings in line with SMA.

The senior advocate who was appearing for Sabha argued in SC, that HC had committed an error in transgressing into the domain of legislature-it had directed the petitioner to comply with SMA provisions and solemnize all weddings performed at Arya Samaj temples under the SMA, when no such requirement has been imposed by the legislature.

Before giving the order, the SC bench asked the Sabha’s advocate, whether Arya Samaj temples performed marriages of  Hindus only, which was confirmed by the advocate. The Sabha’s main contention was that the HC erred by equating certificates issued by Arya Samaj temples, as per the HMA, with the certificate of marriage issued by the competent authority under SMA. Whereas the certificate issued by Arya Samaj temples is a mere acknowledgment of the fact that the two individuals were wedded in the presence of authorized persons of the Arya Samaj organization and does not, at all, intend to be recognized as a certificate under SMA. The Sabha’s advocate further added the HC fell in error because it treated Arya Samajis as a class separate and distinct from Hindus under the HMA, which treats all the Hindus including Arya Samajists homogeneously.

The HC also glossed over the fact that since 1989 amendment of HMA, prior approval of a guardian is not required for the solemnization of marriage of consenting adult Hindus.

The SC prima facie accepted the view of the Madhya Bharat Arya Pratinidhi Sabha, that weddings solemnized under the Arya Samaj tradition do not need registration under the SMA 1954. The SC stayed the HC order directing the Sabha to amend its guidelines in accordance with the act.

I failed to understand how the learned judges of MP HC erred, and believed that the Arya Samajis are not mainline Hindus, and the marriage solemnized by them should come under SMA. It looks like  even the standard and quality of HC judges to interpret the law is questionable, in a simple case like this where they erred and treated Arya Samajis differently from mainline Hindus, and treated the marriage solemnised by Arya Samaj temple to come under SMA.

Friends, what is your view on this matter.

Anil Malik

Mumbai, India

6^th April