Special Marriage Act, 1954

Introduction:

India is a land of different religions with various traditions and customs. Each religion has its traditions, customs, and usages in marriage. Certain problems arose where either party profess different religions or belong to different communities. Hence, to recognize the marriages and to solve the matrimonial disputes between the couples the Special Marriage Act,1954 was enacted.  

A marriage can take place between two persons who are not in a Prohibited degree of relationship. Marriages under the Special Marriage Act are not governed by personal laws.

Scope

Under this Act, a marriage can take place between two persons who belong to different faiths or different communities and also in some cases between persons professing the same faith/ community. But such marriage should not be within the Degrees of Prohibited Relationship. This Act includes Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists marriages.

Besides Indian citizens, this Act also applies to Indian nationals who live abroad. With respect to the succession of the property to people married under this act Indian succession applies to them.

History

The British Government enacted the Special Marriage Act, 1872. According to the 1872 Act, the parties may observe any ceremonies for their marriage but certain formalities were prescribed in that Act. Marriage should be registered by the “Marriage Officers” appointed by the British Government. Also, this Act of 1872 made provision which permits people who already married in other forms of marriage for registering their marriages under the Act.

After Independence, the Law Commission made a recommendation to make a Special Marriage Act combining the 1872 Act and also keeping in view of the inter communities/religion/national marriages. As a result “The Special Marriage Act, 1954” was enacted repealing the Special Marriage Act,1872.

Structure of Special Marriage Act, 1954

The Special Marriage Act, 1954 hereafter referred to as the Act has 51 Sections housed in Eight Chapters and 5 Schedules.

Chapter –I  (Sections 1 -3) is the “Preliminary”

Chapter –II (Sections 4 -14) narrates about “Solemnization of Special Marriages”

Chapter –III (Sections 5 -18) states about  “Registration of Marriages celebrated in other Forms”

Chapter –IV (Sections 19 -21A) states about “Consequences of Marriage under this Act”

Chapter –V (Sections 22 & 23) narrates about “Restitution of Conjugal Rights and Judicial Separation”

Chapter –VI (Sections 24-30) narrates about “Nullity of Marriage and Divorce”

Chapter –VII (Sections 31-41) narrates about “Jurisdiction and Procedure”

Chapter –VIII (Sections 42-51) narrates about “Miscellaneous Provisions”

SCHEDULES:

Schedule-I: The List of Degrees of Prohibited Relationship

Schedule-II: Notice of Intended Marriage

Schedule-III: Declaration to be made by the Bridegroom

Schedule-IV: Certificate of Marriage

Schedule-V: Certificate of Marriage celebrated in other Forms.

Solemnization of Special Marriages (Sections 4 -14)

Sec 4 of the Act imposes certain conditions for a valid marriage. They are:

• This Sec 4 makes MONOGAMY compulsory i.e., either the bride or groom should have a spouse at the time of marriage. Else, the marriage performed becomes null and void. 
• Either the bride or the groom should not be an Idiot or Lunatic.
• The bridegroom should have completed the age of 21 Years and the bride the age of 18 years at the time of marriage.
• Either the bride or the groom should not be in any form of prohibited relationship i.e., there should not be any blood relationship between them such as half/ uterine blood, full blood, or even relationship by adoption and by blood.

Procedure for the Marriage (Sections 4- 14)

• Notice of Intended Marriage (Sec 5): For marriage to get solemnized both the bride and the groom should give a notice in writing to the Marriage Officer in the mentioned Form as in the Schedule-II of the Act. It should be given to the concerned Authority where at least one of the parties has been residing in that area for at least 30 days prior to giving the notice. 
• The officer keeps notices in the marriage notice book and makes a publication.  
• Unless the marriage is objected to within 30 days from the date of notice, it is said to be solemnized. (Sec 7)
• In the cases of objection the marriage officer inquires and if the officer finds that to be true then refuses to solemnize the marriage. (Sec 8)
• The concerned authority (marriage officer) has the powers as a civil court under CPC,1908 like summoning, inspection, receiving evidence, and issuing commissions for examining witnesses. It is as judicial proceedings. (Sec 9)
• Both the bride and the groom should sign the Declaration form before the concerned marriage officer and in the presence of 3 witnesses (Sec 11)
• When the marriage is solemnized they will be given a Certificate of Marriage signed by the bride, bridegroom, and the 3 witnesses. (Sec 13)

Restitution of Conjugal Rights & Judicial Separation

Section 22 of the Act narrates about Restitution of Conjugal Rights. In marriage, the primary obligation is to cohabit. This right is called “consortium” right. If a spouse makes an infringement of this obligation without any justifiable excuse, then the other may go to court to restore his conjugal rights. The burden of proving depends on the person who has withdrawn from another.

Sec 23 of the Act provides that a petition for Judicial separation may be filed in court on the grounds of Divorce or if complying with the decree for restitution of conjugal rights fails.

Void Marriages and Legitimacy of Child of Void Marriages

Sec 24 narrates about void marriages as if any of the conditions of the valid marriage mentioned under Sec 4 of the Act has not been fulfilled or if the other person (respondent) was impotent at the time of marriage and at the time of institution of the suit.

Sec 26 states that any child of such marriage will be a legitimate child whether the marriage is valid or void.

Voidable Marriages and Legitimacy of Child of Voidable Marriages

Sec 25 narrates about voidable marriage. If of the parties to marriage request the marriage to be avoided/annulment then it is a voidable marriage. The grounds are being pregnant by some person at the time of marriage; the consummation of marriage, if the consent was obtained by coercion or fraud.

Sec 26 states that any child of such voidable marriage will be a legitimate child whether the marriage is valid or voidable marriage.

Divorce

The grounds for divorce are mentioned in Sec 27. The grounds which are mentioned in that section are the same as that of the grounds for divorce in personal laws such as adultery, desertion, imprisonment for 7 years or more, cruelty, unsound mind, venereal diseases, leprosy, if the person has not been heard as alive for 7 years or more, if no cohabitation. Except conversion of religion is a ground for divorce in personal laws which is not a ground in the case of Special Marriage Act,1954. Sec 29 narrates that a divorce petition cannot be filed within1 a year from the issuance of the certificate of their marriage.

Permanent Alimony and Maintenance

Sec 37 of the Act lays down that the husband provides to the wife for her maintenance monthly or periodically. If the wife is re-married then the Court may vary, modify such order.

The maintenance amount shall be purely at the Court’s discretion. The court shall consider certain factors before deciding.

Case Laws

Marriage Solemnization Outside India

(1) Dr.Abdul Rahim Under vs. Smt.Abdul Rahim Undre[1]

Facts of the case:

• The appellant a Muslim. The defendant was a Hindu Woman. Both were in England and they married a secular marriage and registered their marriage in England.
• Later, they came back to India and the wife changed her religion from Hindu to Islam. After few years, the appellant gave talaq to his wife. This was challenged by his wife.
• Question arose whether Muslim Personal laws or the Special Marriage Act would apply.

Judgment of the Case:

• It was held that their marriage done in England was secular and it is equivalent to the solemnization of marriage under the Special Marriage Act.
• Therefore, their personal laws would not apply in their case. Hence, the appellant could not give unilateral talaq.

Wife not Entitled the Reservation of the Husband’s Caste after Marriage

(2) Valsamma Paul (Mrs.) vs. Cochin University and Others[2]

Facts of the case:

• The appellant was an educated Syrian Catholic (a Forward Class). She married a Latin Catholic (Backward Class). The Cochin University invited applications for the post of Lecturers from Latin Catholics.
• Mrs.Paul was selected for the said post under the reservation. Her appointment was challenged.
• Kerala High Court held that Mrs.Paul was not entitled to reservations as she belongs to the Forward Class. The appellant appealed in the Supreme Court.

Judgment:

• The Supreme court upheld the decision of the Kerala High Court.
• It held that claiming for reservation basing on voluntary mobility to reserved class through inter-caste/religion marriage or adoption is not valid.

Re-Marriage of Divorced Person

(3) Bisvanath Mitra vs. Anjali Mitra[3]

• The petitioner has obtained the divorce decree under the Special Marriage Act 1954, but within one year from the date of decree she married the petitioner and therefore it was not a valid marriage.
• The court held the marriage was void ab initio. As per Section 30 of the special marriage Act, marriage within one year of obtaining decree is void.
• As the marriage is void hence, the plea for judicial separation is not valid and it is rejected.

  Notice of Intended Marriage

(4) Giby George And Anr. vs Marriage Officer[4]

• In this case Judge gave a direction to the marriage officer to receive the application and register the marriage without waiting for 30 days.
• The officer was directed to issue a certificate of marriage within time. 

   Maintenance

(5) Sri Amar Kumar Pal vs Smt. Sutapa Pal[5]

• The husband decided to separate himself from the wife and filed the matrimonial suit for divorce. The wife was getting a sum of Rs.2500/- per month towards maintenance as per Section 125 of Cr P.C.
• The moment the summons of matrimonial suit was served upon the wife, under Section 36 of the Special Marriage Act, 1954 for her maintenance.
• She claimed a sum of Rs.25,000/- per month as alimony pendent lite as the monthly income of her husband is more than Rs.70,000/- per month. The husband contended that the wife has inherited, movable and immovable properties from her father and therefore, has sufficient income to sustain herself.
• Hence, the Court held that it does not find that the order impugned in both the revision applications and needs to be set aside or modified.

Recent Petition Regarding Details Publication

Recently a writ petition was filed by Nandini Praveen regarding the details being publicized including their personal details like names, date of birth, occupation, parent’s names, and details.

A bench led by Chief Justice of India S.A.Bobde issued a notice asking the government’s responsibility for the wide publication of personal details of the parties of marriage who wants to marry under the Act.[6]

Conclusion

Thus, the form of marriage under this Act is secular and contractual. Personal laws are not attracted. Two persons can marry under this Act irrespective of their religion. Also, it is a civil marriage by registration. Even marriages not solemnized can be registered. Thus, this Act intends to facilitate those progressive people who wish to transcend the barriers of religions and castes in terms of marriage.

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References:

[1] AIR 1982 Mah 243

[2] (1996) 3 S.C.C. 545

[3] AIR 1975 Cal 45

[4] AIR 2007 Ker 152, I (2008) DMC 220

[5] C.O. 2183 of 2017

[6] https://www.thehindu.com/news/national/supreme-court-seeks-centres-reply-on-plea-challenging-provisions-of-special-marriage-act/article32621742.ece