Himanta Biswa Sarma Has Secularised Muslim Marriages In Assam With A Legal Sleight Of Hand

On 23 February 2024, Assam state government repealed the Assam Muslim Marriage and Divorce Registration Act (MMDRA) of 1935. The Himanta Biswa Sarma cabinet took the ordinance route (Assam Repealing Ordinance, 2024) for doing away with this British-era law.

One of the intended goals of the decision was to bring to end, the menace of child marriages in the northeastern state.

Jayanta Malla Baruah, a cabinet minister in the Assam government, announced the decision that henceforth, Muslim marriages would be registered under the secular Special Marriage Act (SMA),1954. A direct corollary is that before registration, marriages will have to comply with the provisions of the act. 

Significance Of Registration Under SMA

Special Marriage Act, 1954, was introduced to provide protection to individuals whose marriages are subject to rigorous notions of the community they belong to.

If a citizen of India belonging to any caste or religion marries someone without family and societal acceptance, the SMA provides them protection.

In the last seven decades, it has come quite handy in extending legal sanctity and state’s protection for inter-faith and inter-caste couples. Celebrities using it to solemnise their marriage has accorded even more credence to the act.

Though the SMA prioritises individual’s choice over broader societal norms, few restrictions are also imposed under it.

Two of these restrictions are the reasons why the Sarma government’s decision to register Muslim marriages under SMA hints at a legal sleight of hand.

Section 4(a) of SMA, 1954 makes it compulsory for parties to not be in any marital relationship before registering their marriage. During the National Family Health Survey (NFHS) 2019-21, 3.6 per cent of respondent Muslim women in the state said that they had to suffer the plight of polygamy. Due to its approval by Muslim Personal Law, Muslim women in polygamous relationships do not approach legal mechanisms.

Under the SMA, the Sarma government has made it compulsory for Muslim husbands to get divorce before applying for the registration of a new marriage. 

Similarly, Section 4(c) of SMA, 1954 provides for the least marriageable age of women to be 18 years and men to be 21 years. This is in stark contradiction to MMDRA, under which child marriage was legitimate.

The repealed act provided legal sanctity to child marriage in Assam’s Muslim community (34 per cent of state) in the name of personal law for minority.

The now repealed law was a big reason why NFHS 2019-21 pinned Assam as the fifth worst performing state in stopping the menace of child marriage. At the time of survey, 31.8 per cent of marriages in Assam were from child marriage.

In the past the Sarma-led government did launch crackdowns on these marriages. Thousands of arrests were made as well, but they were ineffective as the law (MMDRA) made for 34 per cent of the state’s population sanctioned child marriage.

Now, with the registration process changed, the scope of availing legal loopholes for crimes such as child marriages has been extremely narrowed, if not totally outlawed.

Chief Minister Sarma took to social media platform X explaining this aspect of his government’s decision.

Secularisation Of Muslim Marriages

A closer observation reveals that now Muslim marriages will not have a special status in the name of ‘protection of minority’, which anyway, has become a sham tool for minority appeasement politics.

By indirectly imposing prohibitions on child marriage and polygamy, the government has ensured that Muslim marriages need to subscribe to rules of equality of religion in the absolute sense.

Moreover, the ordinance has also resulted in elimination of posts of 94 special Muslim marriage registrars, also called kazis in the state. They will now be taken over by religion-neutral District Commissioners and District Registrars.

In other words, the Muslim community has been asked to subscribe to the secular principles of the state.

Before Introduction Of Uniform Civil Code

The ordinance is one more step in the direction of Uniform Civil Code (UCC) in Assam. In January 2024, Chief Minister Sarma had said that Assam would introduce the UCC after Uttarakhand. 

A district judge contacted by Indian Express said that in order to introduce UCC, Sarma government will need to repeal all laws in contravention to it.

Alternatively, Assam could bring UCC, declaring its prevalence over existing personal laws in case of conflict. The government has chosen a bottom-up approach by introducing a quasi-UCC mechanism for Muslim marriages in the state.

It will keep political volatility under control.