In Bangladesh, inter-religious marriage, that is, a marriage performed between two persons, each of whom professes a different religion, is governed by the Special Marriage Act, 1872. While the Act has served a valuable role for over a century, some of its provisions appear to be incongruent with the realities of modern society. A combined reading of sections 2, 10 and the Second Schedule suggests that a person professing the Christian, Jewish, Hindu, Muslim, Parsi, Buddhist, Sikh or Jaina religion must sign a declaration renouncing his/her religion to perform an inter-religious marriage with another person who professes any of those aforementioned religions (who must also renounce his/her religion). On the contrary, persons professing the Hindu, Buddhist, Sikh or Jaina religion are not required to renounce their religion for an inter-religious marriage inside this group. Which means that, for example, a Hindu man and a Muslim woman must renounce their religion in order to perform an inter-religious marriage whereas, a Hindu man and a Buddhist, Sikh, or Jaina woman need not renounce their religion for such a marriage.
By 19th-century standards, the introduction of a law that permitted interfaith marriages was indeed a progressive step forward. However, the requirement of renunciation of religion as a condition for marriage is at odds with the modern principles of liberalism, individualism, and personal autonomy. It operates as an enforced apostasy for persons professing the Christian, Hindu, Muslim, Jewish, Parsi, Sikh or Jaina religion who marry under this Act. Although apostasy is not punishable in Bangladesh, it remains a concept associated with social disapproval. This practice of enforced apostasy also goes against the freedom of religion guaranteed under Article 41 and creates discrimination on the ground of religion under Article 28(1) of the Constitution of Bangladesh.
The Act also contains discriminatory provisions related to succession and adoption. According to Section 24, the succession of individuals practicing the Hindu, Buddhist, Sikh, or Jaina religions who marry under this Act is controlled by the provisions of the Succession Act, 1925. However, the Act contains no direction or framework for the succession of persons professing the Muslim, Christian, Parsi, or Jewish religions who marry under this law, leaving a legal void concerning the inheritance of these groups.
Additionally, Section 25 prevents members of the Hindu, Buddhist, Sikh, or Jaina religions who marry under this Act from adopting children, which further adds to the discriminatory treatment of religious communities.
Apart from these discriminatory provisions, the Act suffers from certain other discrepancies. For example, according to Section 2(2) of the Act, marriage may be celebrated between a man who has completed the age of eighteen years and a woman who has completed the age of fourteen years. This provision effectively legitimises the marriage of minors, which is both unlawful and punishable under the Child Marriage Restraint Act, 2017.
The Special Marriage Act, 1872, still relies on the outdated provisions of the Divorce Act of 1869 on the matters of divorce. As a result, marriages solemnised under the Special Marriage Act of 1872 are still subject to the gender-biased stipulations of the 1869 Act, which imposes a significantly heavier burden of proof on women seeking divorce compared to men.
Under Section 10 of the Divorce Act, a husband can file a petition with the Court to dissolve the marriage on the sole ground of his wife’s adultery. In contrast, a wife must prove not only that her husband has committed adultery but also that it was accompanied by incest, bigamy, remarriage cruelty, or desertion. This additional requirement for women shows the unequal standards, as wives are unable to seek divorce solely on the grounds of adultery, unlike their male counterparts.
In contrast, inter-religious marriages in India are governed by the more progressive and inclusive Special Marriage Act of 1954. The Third Schedule to the Act allows individuals of any faith to enter into an inter-religious marriage without the need to renounce their religion. Section 21 further assures that the Indian Succession Act of 1925 governs property inheritance for persons married under this Act and their children, leaving no room for ambiguity. The Act allows adoption for married couples and does not rely on the 1869 Divorce Act. Instead, it provides its own divorce provisions, granting equal grounds for both men and women. Thus, the Act neither discriminates on the basis of religion, nor does it contain any gender-biased provisions that confer preferential divorce rights upon men. In order to make our law responsive to the needs of contemporary society, its discriminatory provisions should be amended, and a more comprehensive framework encompassing the issues of divorce, judicial separation, etc. should be established.
About the author :
Oishe Rahman is currently pursuing a Master of Laws (LL.M.) at the University of Dhaka, where she also completed her Bachelor of Laws (LL.B.). She is an apprentice lawyer under the supervision of Dihider Masum Kabir, Deputy Attorney General at the Supreme Court of Bangladesh.