One kiss provokes another ban: Some reflections on the Madhya Pradesh High Court’s judgment

A kiss provokes another, and a judgment on who can kiss whom may provoke similar regulation of marriages and relationships, feels Imtiaz Akhter.

—

IN a recent judgment, the Madhya Pradesh High Court, while refusing to provide protection to an interfaith couple seeking to marry under the Special Marriage Act, 1954, stated that such a marriage would be "fasid" under Muslim Personal Law, and interpreted fasid to mean 'invalid' and not 'irregular', hence such a marriage was void.

The judgment appears to not only be unconstitutional, but the ratio of the judgment is such that it can be used as a tool to curtail the fundamental rights of those heteronormative couples who seek to enter into inter-religious, inter-caste or inter-class marriage.

Instead of affording protection, including police protection but not limited to it, the judgment takes a potshot at those who appeared as victims before it.

What is even more surprising is that the court that heard this matter was no ordinary municipal court with very limited power. It was a constitutional court with exclusive plenary powers.

The writ powers of high courts under Article 226 of the Indian Constitution are so wide that if need be, they can even shake the heavens.

This being the case it is expected that a constitutional Court will function and think like one. It is disturbing to see a constitutional court thinking and theorising like a municipal court where judgments are often based on unrelated moralism and formal legalism.

A careful reading of the judgment reveals a few things both factually and legally.

Also read: Supreme Court's recent decisions on abortion pregnant with semantics, not necessarily justice

These points may be enumerated below:

• Petitioner no. 1 (Hindu girl) wanted to marry petitioner no. 2 (Muslim boy). Both being adults, as the same has not been disputed in the pleadings, approached the marriage officer to get their marriage registered. Due to the objections raised by respondent no. 5 (a relative of one of the parties), the marriage was not solemnised even if the same was sanctioned by their respective hearts.
• Both the petitioners then approached the high court to seek 'security' from members of petitioner no.1's family; to provide follow-up guard to the petitioners when they approach the concerned officer responsible for officiating the marriage and, lastly, the petitioners wanted to seek protection from being implicated in false criminal cases that could be lodged against them, such as the kidnapping of the petitioner no.1 or other related offences.

From the perusal of the above facts and the reliefs sought, it is amply clear that the petitioners being adult citizens belonging to different religious, caste or even possible class groups had approached the court when the situation was dire. The court, instead of providing security, ended up missing the forest for a tree.

The judgment in question is a fairly detailed one insofar as the question of marriage under Muslim law or Mahomedan law is considered.

The 14th Edition of Principles of Mahomedan Law by Sir Dinashah Fardunji Mulla, Chapter XIV, Ss. 250 deals with the definition of marriage in Muslim law. It states: "Marriage (nikah) is defined to be a contract which has for its object the procreation and legalising of the children."

Hedaya by Baille further clarifies that marriage according to the Mahomedan law is not a sacrament but a civil contract.

Ss. 253. deals with valid, irregular and void marriages. It reads, "A marriage may be valid (sahih) or irregular (fasid) or void from the beginning (batil)."

Also read: High court cannot pass Order on the principle of irretrievable breakdown of marriage: Supreme Court

Ss. 259. states, "A Mahomedan male may contract a valid marriage not only with a Mahomedan woman but also with a kitabia, that is a Jewess or a Christian, but not with an idolatress or a fire-worshipper. A marriage however with an idolatress or a fire-worshipper, is not void but merely fasid (irregular)."

A Mahomedan woman cannot contract a valid marriage except with a Mahomedan male. She cannot contract a valid marriage even with a kitabi, that is a Christian or a Jew.

A marriage, however, with a non-Muslim, whether he is a kitabi that is a Christian or a Jew, or a non-kitabi, that is an idolater or a fire-worshipper, is irregular, not void.

Further Ss. 207 deals with the effects of an irregular (fasid) marriage. Long story cut short, it says that even a fasid marriage creates a set of rights and corresponding obligations upon the parties.

The judgment correctly notes that there has been a semantic shift in the meaning of the Arabic word 'fasid'. The word has come to mean irregular and not void, as once it used to mean in the judicial lexicon.

What is so special about marriages under the Special Marriage Act?

Having discussed in painstaking detail the various aspects of marriage law in Muslim law in India; the judgment then takes a leap of faith while discussing the plain meaning of the words "prohibited relationship" as used in Section 4 of the Special Marriage Act, 1956.

A bare reading of the preamble of the Special Marriage Act, tells us that it is an "Act to provide a special form of marriage in certain cases". The law as we can see was crafted so that those who are desirous of choosing one's lifetime partner from the prohibited Other caste, religion or class can do so.

Also read: 2023: A 'customary' judgment

India is notorious around the world for its caste hierarchy. The notion that caste is blood and blood must always remain pure is quite commonplace. It is with this idea that Manu wrote his famous and influential juridical text Manusmriti or Laws of Manu.

This is an idea that found much resonance not only in the works of German Philosopher Friedrich Nietzsche (1844–1900) who fulsomely praised Manu and his laws but also in the laws later made in the Third Reich. The raison d'être for creating the Special Marriage Act was precisely to counter this Manuwadi ideology.

Section 4 of the Special Marriage Act deals with the conditions relating to the solemnisation of special marriages. Clause (d) states the condition that the "parties are not within the degrees of prohibited relationship". The next clause states that this condition can be waived where the custom governing at least one party permits the marriage.

Even the word "degrees of prohibited relationship" has been defined in section 2(b) Explanation I (a) (b) (c), that is, relationship by half or full blood, legitimate or illegitimate blood relationship or relationship by adoption as well as by blood.

Further the word "relationship" has also been defined in the Concise Law Dictionary by P. Ramanatha Aiyar, Reprint Edition, 2004, pp. 731 as, "being related by blood or affinity".

From the above, it is clear that the judgment introduces a prohibition that does not exist even in the law itself. It also seeks to wrongly place reliance on the judgment of the Supreme Court in Mohammed Salim (D) Through Lrs. versus Shamsudeen (Dead) Through Lrs, Civil Appeal No. 5158 of 2013.

The judgment in question has no applicability as it deals with questions of inheritance.

Also read: 'No fundamental right to marry' will have foreboding, far-reaching consequences

The Madhya Pradesh High Court uses the weak precedent to give a legal fan to the fire of "love jihad".

Personal laws versus fundamental rights

The most unfortunate part of the judgment under scrutiny is that it seeks to create a false binary between 'personal laws' and 'fundamental rights'. The parties before it were 'victims' within the meaning of Section 2 (wa) of the Code of the Criminal Procedure, 1973.

The rights of the parties to form a family by way of marriage cannot be curtailed by showing them the wrong principles of law. Moreover, if there is a conflict between fundamental rights and personal laws, there have been occasions such as in Shah Bano and Daniel Latifi cases, where fundamental rights were placed on a higher pedestal than personal laws.

Overall, this is a case where the court, instead of taking the corrective route, took the wrong one. It ended up curtailing the rights of the parties to form a union thus sending a wrong signal to the lower judiciary.

Can fundamental rights be waived by the court so casually? Merely because the marriage in question is irregular, can the courts refuse to enforce the fundamental rights under Articles 14 and 21 of the Constitution of India?

Conclusion

The judgment, notwithstanding the author's intention, is bound to add oil to the fire. It will disproportionately impact those couples who dare to defy societal norms and marry a person of their choice.

This is not quite in consonance with the idea of India. The founding fathers of the Constitution of India supported the idea of miscegenation, that is why a progressive law like the Special Marriages Act was enacted, taking a path different from laws like the Hindu Code Bill of 1956.

The ratio of the judgment seeks to negate this very idea. One only hopes that this judgment remains a stray incident in the otherwise vibrant history of the Indian judiciary.

Perhaps the judge, while authoring the judgment, could have taken note of the words uttered by the master French Novelist Marcel Proust (1871–1922) in his celebrated multi-volumed novel Remembrance of Things Past (1913) that, "one kiss provokes another".