The Supreme Court on Monday issued notice in a plea filed by the Madhya Bharat Arya Pratinidhi Sabha and stayed a Madhya Pradesh High Court order which had directed the Arya Samaj to solemnise marriages in accordance with provisions of the Special Marriage Act, 1954.
The petitioner society was constituted in 1951 and is the nodal authority with jurisdiction over all Arya Samaj Mandir affiliated to it in Madhya Pradesh.
The Bench of Justice K.M. Joseph and Justice Hrishikesh Roy heard the matter.
The Arya Samaj was founded by Swami Dayanand Saraswati in 1875 with an objective to undertake religious and social reforms. Since then, Arya Samaj has been working for eradication of superstition, casteism, promotion of education/girl-education, widow re-marriage. Arya Samaj has been solemnizing marriages as per Vedic rituals since more than a century before the codification of Hindu Personal Laws.
Senior Advocate Shyam Divan, who along with Vanshaja Shukla appeared for the petitioner society, submitted that if Arya Samaj Temples are solemnizing a marriage of two Hindus, in consonance with Section 5 and 7 of the Hindu Marriage Act, then there is absolutely no requirement to comply with provisions of the Special Marriage Act. Therefore, the High Court failed to appreciate the legislative scheme of the Arya Marriage Act and the Hindu Marriage Act. He further referred to the Section 2(a) of Hindu Marriage Act that the act applies to any person who is a Hindu by religion in any forms or development, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
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It is submitted that neither the Arya Marriage Act nor the Hindu Marriage Act provide any prerequisite conditions similar to Sections 5 to 8 of the Special Marriage Act for solemnizing a marriage between two Arya Samajists. Therefore, the High Court has wrongly directed that Arya Samaj Temples should solemnize the marriages after complying with the provisions of Sections 5, 6, 7 and 8 of the Special Marriage Act, which provide for prerequisite conditions viz, notice of intended marriage, publication of notice, marriage notebook, objection to marriage and the procedure.
The matter arose when a couple filed a writ petition before Madhya Pradesh High Court seeking protection from the State and to take appropriate action against persons concerned. The couple’s marriage has been solemnized at a self-styled Arya Samaj temple, the Arya Mool Shankar Samaj. Subsequently, the couple impleaded Madhya Bharat Arya Pratinidhi Sabha and Arya Mool Shankar Samaj Samiti.
On 9.12.2020, a single-judge bench of Madhya Pradesh High Court disposed of the writ petition and directed the Society to amend its guidelines by incorporating the provisions of Section 5,6, 7 and 8 of the Special Marriage Act, 1954 within a month. Arya Mool Shankar Samaj Samiti was restrained from performing any marriages.
The petitioner then filed a review petition on the ground that the petitioner while solemnising marriages is bound to follow the Hindu Marriage Act, 1955 and not the Special Marriage Act, 1954 and therefore the single judge’s order is not sustainable in law. The said petition is still pending.
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Meanwhile, Arya Mool Shankar Samaj Samiti filed a writ appeal before the Division Bench of the High Court which upheld the single judge’s order dated 9.12.2020 and further directed that that no one other than the competent authority under the Special Marriage Act, 1954 can issue marriage certificates.
Further, the petitioner contended that the order passed by the Madhya Pradesh High Court deserves to be set aside for the following reasons:
➢ The High Court committed an error in transgressing into the domain of Legislature.
➢ That neither the Arya Marriage Act nor the Hindu Marriage Act provide any prerequisite conditions similar to Sections 5 to 8 of the Special Marriage Act, for solemnizing a marriage between two Arya Samajists.
➢ The impugned judgment is violative of the petitioner’s fundamental right guaranteed under Article 14 and 25, 26 of the Constitution. The High Court wrongly treats the Arya Samajists as a separate class of persons distinct from the group of all others Hindus under the Hindu Marriage Act, by imposing additional conditions for solemnization of marriages, notwithstanding the fact that the Act treats all the Hindus including Arya Samajists homogenously – such classification does not pass the test of reasonableness and therefore is violative of Article 14 of the Constitution.
➢ The High Court has ignored the fact that Section 6 of the Hindu Marriage Act, which required the consent of guardians for solemnization of marriages has been omitted from the Act in the year 1989
➢ While solemnising the marriage, it is bound to follow the Hindu Marriage Act, 1955 and not Special Marriage Act, 1954
➢ The Couple did not seek any prayer to the effect that the provisions of Special Marriage Act should be applicable to Arya Samaj Marriage.
In 2013, an adult Hindu girl whose marriage was solemnized at an Arya Samaj Mandir, moved a Habeas Corpus Petition before the High Court for seeking protection from the petitioner, her husband.
The High Court disposed of the petition in favour of the girl and further passed certain directions to be followed by all Aya Samaj Mandirs, regarding solemnisation of Arya Samaj marriages, such as prior intimation to the parents of the bride and groom, the concerned police station and Collector in advance, presence of five friends and relatives each etc.
A writ appeal was filed by the petitioner against the said order wherein the Division Bench allowed the Appeal on the ground that the petitioner was not made a party and that the judgment was against the provisions of the Hindu Marriage Act, 1955.
On 26.08.2016, the petitioner society issued exhaustive directions to all Arya Samaj Temples affiliated to it to comply with the Hindu Marriage Act, 1955, while solemnising marriages, and to strictly follow procedure with respect to the proof of age of the parties and their mutual consent.
The plea before the Supreme Court was filed by Advocate-on-Record Vandhaja Shukla.
Case Name- Secretary, Madhya Bharat Arya Pratinidhi Sabha Vs State of Madhya Pradesh & Ors
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