This article encompasses the important sections and landmark cases pertaining to the Special Marriage Act, 1954.
Introduction
In India, marriage is regarded as the most sacred bond between two persons. India, being a secular country and a home to numerous religions and customs, is impossible to keep them closely packed. Mingling into different religions is bound to happen. The Special Marriage Act, 1954 (hereinafter the Act) is an Act of the Parliament of India with an objective to provide provisions for civil marriage for people of India and all Indian nationals in foreign countries, irrespective of religion or faith followed by either party.
The Act originated from a piece of legislation proposed during the late 19th century. In 1872, H.S. Maine introduced Act III of 1872, which legalized the marriage between two persons, belonging to different religions, as per their will under the new Civil Marriage Law. However, it was inadequate. In 1954 Parliament enacted the Special Marriage Act, 1954 to provide for registration and validation of special forms of marriage in India.
The new enactment has three major objectives:
- To provide for the special form of marriage in certain cases;
- To provide for the registration of certain marriages; and
- To provide for Divorce
Applicability
The Act extends to the whole of India except the State of Jammu and Kashmir and also applies to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir. It also applies to the Indian nationals living abroad.
Conditions For Solemnizing A Special Marriage (S.4)
A marriage between any two “persons” is said to be solemnized if the following conditions are fulfilled:
- Neither party has a living spouse,
- Neither party is incompetent to give valid consent or is unfit for marriage and the procreation of children or is subject to recurrent attacks of insanity,
- The age of Male is 21 years and above and that of the female is 18 years and above,
- Neither party is within the degrees of prohibited relationship unless s/he legally is governed by a customs which allows so.
In the case of Marian Eva v. State of Himachal Pradesh AIR 1993 HPT, it was held that the word “persons” in this section clarifies that either one of the parties or both the parties don’t need to be a citizen of India i.e., marriages under this Act may be solemnized between two citizens of India, two foreigners or between a citizen and a foreigner.
Procedural Requirements
In India, marriages are celebrated no less than like a festival. It is regarded as a sacred bond for eternity between two people. Generally, it takes 2-5 days for a wedding to be completed with all the concerned rituals. However, under this Act, marriages do not require such rituals and ceremonies to be followed.
- Consent of the Parties: The consent of both parties to the marriage is sine qua non as, marriage is a social contract and without consent, no contract can be binding.
- Notice of Registration: persons who have applied for marriage are required to file a written notice in prescribed form before the concerned District Marriage Officer.
- Place and time of Registration: Notice should be filed in the District where one of the two parties have been residing for more than 30 days immediately preceding the issue of notice.
Process Of Registration
- Give notice of intention to Marriage Officer before 30 days of marriage.
- If no objection is received within these 30 days, then visit the concerned Marriage Officer of the district.
- The marriage officer solemnizes the marriage.
- Marry within 90 days from the date of solemnization of marriage by the marriage officer.
- The marriage officer will admin the oath, solemnize the marriage, and issue the certificate of marriage.
- The couple and three witnesses must sign on declaration and certificate.
Power Of Enquiry
In case any objection is received, marriage officers are granted the following rights:
- Summoning and enforcing witnesses’ attendance.
- Examining the witnesses on oath.
- Demanding documents to produce.
- Demanding the evidence on affidavits.
- Issue of commissions for the witness scrutiny.
Unreasonable Objections
On receiving the objections, if the marriage officer is of the view that the objection s/he has received is unreasonable and is not made in good faith, the person objecting may have to pay costs up to Rs. 1,000. The received sum shall be awarded to the persons who had applied for the registration of marriage.
Objections In Jammu & Kashmir
Any objections regarding a proposed marriage made in Jammu and Kashmir State will be addressed by the respective Marriage Officer to the Central Government. The Central Government inspects the case on its conditions and communicates its decision to the Marriage Officer, who then implements the decision ordered by the governing body.
Solemnization Of Marriage
After the objections have been cleared (if any), the marriage may be solemnized at the expiry of 30 days. The published notice is valid for 3 months. Before the marriage is solemnized, the parties and three witnesses should sign declarations in the prescribed form in the presence of the marriage officer. Marriage can be solemnized in any form opted by the parties. Earlier marriages could be solemnized either within a reasonable distance from the office of the marriage officer or at such other place as the parties may wish. As per the recent judgments and ongoing pandemic situations, registration of marriages can be done through online mode as well.
Void And Voidable Marriages
Section 24, Void marriages:
Any marriage solemnized under this Act shall be null and void by the decree of nullity if any of the following condition applies:
- Unfulfillment of any of the conditions under the (a), (b), (c), and (d) of S. 4 of the Act
- Respondent was impotent at the time of marriage and the institution of the suit.
In the case of Harendra Nath Burman v. Suprova Burman AIR 1989 HPT, it was held that conditions regarding age under section 4(c) read with S. 24 of the Act, under age renders the marriage null and void, no amount of estoppel against the appellant for his false representation as to age would render it valid.
Section 25, Voidable Marriages
Any marriage solemnized under this Act shall be voidable and may be annulled by the decree of nullity on grounds given below:
- Respondent willfully refuses to consummate the marriage
- The respondent being pregnant at the time of marriage by some other person
Provided, no decree shall be granted under the above condition unless proved that:
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- Consent of either party was obtained by coercion or fraud
Provided, no decree shall be granted under the above condition unless proved that:
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Divorce
Although the grounds are similar to that of the Hindu Marriage Act, 1955, it does not includes grounds such as the conversion of religion, etc.
Grounds Available For Both Parties
- Consensual extramarital intercourse (adultery)
- A complete repudiation of marital obligations (desertion)
- either spouse convicted for seven years or more for an offense under India Penal Code (divorce can’t be granted if the petition is filed after the completion of three years of the imprisonment.
- Cruelty
- Insanity
- Venereal disease
- Leprosy
- Presumption of death
- Non-resumption of Cohabitation after a decree of Judicial Separation
- Non-compliance with a decree for restitution of conjugal rights
Grounds Of Divorce Available Only To The Wife
- Husband has “committed” an offense of rape, sodomy, or bestiality. However, a decree of divorce cannot be passed until his guilt is proved before the court of law and he’s convicted for committing such an offense.
- If cohabitation has not resumed even after one year of the passing of the decree of maintenance in favor of the wife.
Divorce By Mutual Consent
Both the parties to a marriage may jointly present a petition for divorce before the District Court on the following grounds:
- they have been living separately for a minimum period of one year;
- they have not been able to live together; and
- They have mutually decided that their marriage should be dissolved.
Judicial Separation
Section 23. Either husband or wife can file a petition for judicial separation in a district court with competent jurisdiction.
- on any of the grounds specified in sub-section (1) and sub-section (1A) of Section 27 (divorce) on which a divorce petition might have been presented, or
- Failure to comply with a decree for restitution of conjugal rights; and the Court, on being satisfied with the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.
Where the Court grants a decree for judicial separation, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfied with the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
Maintenance
S. 36 (Alimony pendent lite) of the Act makes provision for the wife to seek expenses from the husband if it appears to the district court that she does not have independent income sufficient for her support and necessary expenses of proceedings under Chapters V or VI of that Act.
S. 40 of the Act empowers the court to may apply at the time of passing any decree under the Act or anytime subsequent thereto order that the husband pays the plaintiff a gross or monthly sum for his maintenance and support. Any order made under this section can be modified or rescinded by the district court at the instance of the husband if it is shown that the wife has remarried or is not leading a chaste life. In Ramachandra Anand Suryavanshi v. Kalindi Ramchandra Suryavanshi, AIR 1991 Bom 315; it was held that even when a husband’s petition for divorce is dismissed, the wife is entitled to make an application for permanent alimony under S. 37.
The amount of maintenance shall be virtuously based on the Court’s discretion. The following factors are being taken into consideration while deciding such an amount:
- position and status of the parties;
- fair preference of the claimant;
- If the claimant resides separately, whether the claimant is justified in doing so;
- The value of the claimant’s estate and any income derived from that property or the claimant’s income or any other source;
Any other relevant facts and circumstances.
Such cases are dealt with only after reviewing all the relevant provisions of the law on maintenance, i.e. the Special Marriage Act, 1954, The Code of Civil Procedure, 1908, The Limitation Act, 1963, The Evidence Act, 1872, The Code of Criminal Procedure, 1973, Other Acts & Judgments and Citations of the Hon’ble Supreme Court of India and the High Courts.
Latest Updates And Landmark Judgements
- In the recent landmark case of Safia Sultana v. State of Uttar Pradesh AIR 2021, Allahabad High Court in an important judgment held that publication of notice and invitation to objections before a couple decides to marry under the Special Marriage Act is no longer mandatory. The court observed that these rules went against fundamental rights and infringed upon one’s ability to choose to marry without intervention. Justice Chaudhary held that it will be optional for those entering a marriage under this Act to publish such notice through a written request by the couple to the marriage officer if they want such a notice to be published.
| https://www.livelaw.in/top-stories/notice-of-intended-marriage-publication-optional-special-marriage-act-allahabad-high-court-168356 |
- Keeping in mind the current pandemic scenario, the Supreme Court in India recently dismissed an appeal filed by the State of Haryana challenging Punjab and Haryana High Court’s order of granting marriage certificates under this Act through video conferencing. The division bench comprising of Justice Indira Banerjee and Justice V. Ramasubramaniam, orally observed that “Law has to march along with technology”.
| https://www.livelaw.in/top-stories/marriage-under-special-marriage-act-can-be-registered-through-video-conferencing-supreme-court-179190 |
- The Central Government of India informed the High Court of Delhi that the notice under this Act verifies the credibility of persons.
| https://www.livelaw.in/news-updates/delhi-high-court-special-marriage-act-notice-ultravires-constitution-169643 |
Conclusion
Under this Act, any two persons of the opposite sex, irrespective of their religion can register their marriage and get married. In other words, it provides for the validity of the marriage between men and women irrespective of caste and religious restrictions. However, as per the testimonies of persons entering into marriages under this Act, marriage is regarded as agony to perform under this Act. However, the process has been simplified through the latest judgment of the Allahabad High Court and the Supreme Court of India. The Act protects the rights of the people to enter into Inter-caste marriages. In India, where practices like honor killing aren’t yet abolished entirely, the enactment of such Act is all the more significant. Most of the provisions of this Act are similar to other acts for marriages in India.
FAQs
Which marriage comes under the Special Marriage Act?
The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage (or “registered marriage”) for people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party.
What is matrimonial relief?
Matrimonial Relief deals with the different solutions available to a spouse from another spouse accordingly. The petitioner may get relief from the respondent in a proceeding for divorce or Judicial Separation or Restitution of Conjugal Rights.
How many grounds are there for divorce?
The Special Marriage Act, 1954 as amended under the Marriage Laws (Amendment) Act, 1976 recognizes the following eight fault grounds for divorce:
- Adultery
- Two years desertion
- Respondent undergoing a sentence of imprisonment for seven years or more for n offense under IPC, 1860
- Cruelty
- Venereal diseases in a communicable form
- Leprosy
- Incurable insanity or continuous or intermittent mental disorder, and
- Presumption of death
Can a husband claim maintenance from his wife under the Special Marriage Act?
Sections 24 and 25 make provision for maintenance to a party who has no independent income sufficient for his or her support, and necessary expenses. This is a gender-neutral provision, where either the wife or the husband may claim maintenance.