PROVISION OF SPECIAL MARRIAGE ACT, 1954 UNDER FAMILY LAW

This article is written by Chhavi Tripathi of 3^rd Semester of Atal Bihari Vajpayee School of Legal Studies, an intern under Legal Vidhiya

ABSTRACT

Marriage in Indian society transcends the union of two individuals; it’s a harmonious blend of traditions, a cultural mosaic, and the coming together of families. However, India’s diverse social fabric brings forth unique challenges, including inter-caste and love marriages that may face familial resistance. In response to this, the Special Marriage Act, of 1954, emerged as a beacon of hope. Unlike traditional ceremonies bound by religious constraints, this legislation offers a secular and inclusive approach to matrimony. It enables couples to unite without concern for their faith, caste, or creed, emphasizing unity above all else. The Act provides a uniform and straightforward method for solemnizing and registering marriages throughout India, catering to people of all religions and communities.  This article delves into the Act’s objectives, the essentials for its application, and the detailed procedure for marriage under its purview. It highlights the Act’s role in rectifying void and voidable marriages, ensuring legality and authenticity in the institution of marriage. Moreover, the Act’s provisions for divorce offer couples an equitable path out of matrimony should they find themselves at an impasse. In a nation marked by its diverse heritage, the Special Marriage Act, of 1954, stands as an emblem of love’s triumph over societal divisions. It fosters the spirit of unity and offers a legal framework for couples to marry regardless of their backgrounds, symbolizing India’s evolving ethos of inclusivity and love.

Keywords: Marriage in Indian society, Inter-caste marriages, Love marriages, Familial resistance, Special Marriage Act, 1954, Secular marriage, Inclusive approach, Unity in marriage, Uniform marriage procedure.

INTRODUCTION

Marriage in Indian society is a significant and culturally rich institution with deep-rooted traditions and social importance. It plays a crucial role in the lives of individuals and families in India. It is not only the union of two individuals, it’s a union of two families.  In Indian society, marriages are seen as a way of forging bonds between families, communities, and even castes.

So, there is diversity between communities, statuses, religions, castes and many more societal diversities at present time. For example, Hindu marriages involve ceremonies like “saptapadi” (seven steps), while Muslim marriages follow the “nikah” ceremony. Sikh, Christian, and other religious communities also have their unique customs. In India, most of the marriage is performed in one caste only. As in today’s society, inter-caste marriage is also evolving as love marriages. Due to this sometimes conflict occurs when parents are not agreeing on the marriage. So, for this, the provision of the Special Marriage Act, of 1954 is there.

Special Marriage Act, 1954 is a brief form of legislation that provides for a special form of marriage by registration. It is unique in that there is no requirement to convert or reject one’s religion. It is primarily designed for couples who wish to marry without regard to their religion, caste, or creed. The act offers a secular and uniform method of solemnizing marriages throughout India and applies to people of all religions and communities[1].

The Act lays down the procedure for both solemnization and registration of marriage, where either the husband or wife or both are not Hindus, Buddhists, Jains, Sikhs, or any religion.

WHAT SETS IT APART?

The Special Marriage Act of 1954 distinguishes itself from other marriage laws in India by offering a distinct marriage option available to all Indian citizens, both within the country and abroad, regardless of their religious beliefs or faith.[2]

It is different from the Hindu Marriage Act as The Hindu Marriage Act applies to Hindus, Buddhists, Jains, and Sikhs. The Special Marriage Act, of 1954, acknowledges the institution of marriage as a sacred bond, with its provisions respecting the customs and traditions associated with different religions. The Special Marriage Act, on the other hand, applies to all religions and recognizes marriage as a civil contract. Based on the principles of secularism, it provides a uniform law for all Indian citizens.[3]

The Muslim Marriage Act recognizes marriage as a contract and lays down the ceremonies and rituals that must be performed for the marriage to be valid. The Act has laid down legal provisions about valid marriages, invalid unions, marriages that can be annulled, guidelines for registration, grounds for divorce, matters related to maintenance and child custody, as well as regulations concerning subsequent marriages.[4]

OBJECTIVES

The objective of the Special Marriage Act 1954 is to provide for and safeguard the people who are willing to do inter-caste marriage or inter-religious marriage there can be many reasons behind this that their parents not agreeing on the same family not supporting, acting for all the citizens of India by providing a mechanism to institute interfaith marriages[5].

This act includes all the provisions regarding valid marriage, dissolution of interfaith marriages, registration of marriage and others. Hence the main aim is to safeguard people’s fundamental rights and empower them to choose their life partners or marital partners. The Act also intends to reduce the threat of societal ills such as honour killing and love jihad, as well as to acknowledge the rights of children that arise out of such marriages.

The apex court has ordered also the promulgation of the mechanism to provide safety under the purview of the Special Marriage Act[6].

ESSENTIALS

• Both parties should not be married or not have any subsisting valid marriage. This is for both parties the resulting marriage should be monogamous.
• The male (groom) should be 21 years old and the female (bride) should be a of minimum 18 years old.
• They should be competent to get married they should not be of unsound mind concerning their mental capacity to the extent that they can give their valid consent for the marriage.
• The parties should not fall into a prohibited relationship.

Section 4 of the Special Marriage Act 1954 provide the essential of a valid marriage

• Polygamy is prohibited and if found that either party has a living spouse at the time of marriage, it will be declared null and void
• The parties involved in the wedlock should be of sound mind and should be able to make their own decisions.
• Either party must not suffer from any kind of mental disorder making them unfit for marriage as well as procreation of children
• Additionally, the Act also stipulates that a marriage is considered null and void if both the male and female parties have not attained the legal age of majority, which is 21 for males and 18 for females. Furthermore, the Act prohibits marriages between individuals within the degrees of prohibited relationship.[7]

APPLICABILITY

The Special Marriage Act, of 1954, is applicable throughout India, except the state of Jammu and Kashmir. However, it also extends to Indian citizens domiciled in the regions covered by this Act, even when they are in the state of Jammu and Kashmir.[8]

PROCEDURE FOR MARRIAGE

The person (male and female) who wants their marriage or wishes to marry whether they are Hindu or Muslim can register their marriage given in the Special Marriage Act, 1954 which is mentioned in section 16 of this act. The marriage can only be solemnized by the Marriage Officer appointed by the government rather than any following religious ceremony. The prescribed  procedure involves:

• A notice of intent to marry by the couple to the District Marriage Registrar. Subsequently, the Registrar will publish this notice in a specified manner, provided that at least one of the parties intending to marry has resided in the relevant jurisdiction for a minimum of 30 days before submitting the notice.
• The notice of marriage, as published by the marriage officer, comprises comprehensive information about the parties involved, encompassing their names, dates of birth, ages, occupations, parental details, addresses, PIN codes, identification particulars, phone numbers, and more.
• Any objections if raised will be further investigated by the Marriage Registrar and anybody can raise an objection to the marriage within 30 days if objections are found to be valid then the marriage will not be processed and vice versa. It is on the registrar to ensure that all the conditions of a valid marriage are fulfilled or not.
• If there are no objections raised about the special marriage, the marriage is solemnized after a waiting period of one month from the date of the notice’s publication.
• Following the marriage solemnization, the Marriage Registrar registers the marriage details, and a marriage certificate is issued to the couple. This certificate is signed by the parties to the marriage and three witnesses.[9]

The Court Marriage is a consortium of two souls where an oath ceremony is performed By the Special Marriage Act, 1954, a marriage ceremony takes place before the Registrar of Marriage, with the presence of three witnesses. Subsequently, a court marriage certificate is directly issued by the Registrar of Marriage, who is appointed by the Government of India. Commonly, we can say that marriage is solemnized between a man and a woman before a court of law.

VOID AND VOIDABLE MARRIAGES

VOID MARRIAGE

A void marriage is a void that is from the beginning (void ab initio) it does not exist. It is said marriage because two people solemnize and undergo the ceremonies of marriage.

Section 24 of the Special Marriage Act provides the condition by which the marriage can be said to be void

Section 4 states that:

Any marriage conducted under the provisions of this Act can be declared null and void through a decree of nullity if any of the following conditions are met, and a petition is filed by one party against the other:

(i) Any of the conditions mentioned in clauses (a), (b), (c), and (d) of section 4 has not been met, or

(ii) The respondent was impotent both at the time of the marriage and at the time of the suit’s initiation.

• It is not permissible to have a living spouse at the time of marriage.
• Both parties should be capable of giving consent; and should be sane at the time of marriage.
• The parties should not be within the prohibited degree of relationship.
• The age of a man should be 21 years while the age of a woman must be 18 years. .

1. The provisions of this section do not apply to marriages deemed solemnized under this Act, as defined in Section 18. However, the registration of any such marriage under Chapter III may be invalidated if the registration contravenes any of the conditions specified in clauses (a) to (e) of Section 15. It’s important to note that no such declaration shall be made if an appeal has been filed under Section 17, and the District Court’s decision has become final.:

Grounds for declaring marriages as void:

• Both parties should not have a living spouse at the time of marriage and the first marriage should be valid.
• There should be a valid consent from both the parties.
• The male party should be at least 21 years of age, and the female party should be at least 18 years of age.
• Marriages are considered valid only when the parties are not within the degrees of prohibited relationship.
• If the respondent was impotent both at the time of marriage and at the time when the suit was initiated, the marriage may be declared null and void. It’s important to note that the burden of proving impotence rests with the petitioner’s wife in such cases.[10]

VOIDABLE MARRIAGE

Voidable marriages are marriages that are valid until and unless they are avoided. Only one of the parties to the marriage may request to avoid the marriage if both parties request to avoid the marriage, then it will become void. If one of the Parties dies before the annulment, no one can challenge the marriage and will remain valid forever.

The grounds for the legal implication of the voidable marriage are given in section 25 of the Special Marriage Act 1954-

1. The marriage has not been consummated due to the willful refusal of the respondent to consummate the marriage, or
2. The respondent was pregnant by someone other than the petitioner at the time of marriage, or
3. In the case where the Consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1872), it becomes a valid ground for the legal implications of the voidable marriage.

However, in the case specified in clause (II), the court can only grant a decree if it is satisfied that-

1.  The petitioner was unaware of the facts alleged at the time of the marriage.
2.  The legal proceedings were initiated within a year from the date of the marriage.
3.  Marital intercourse with the consent of the petitioner has not occurred since the petitioner discovered the grounds for a decree.

Additionally, in the case specified in clause (III), the Court will not grant a decree under certain circumstances:

d. proceedings have not been instituted within one year after the coercion has ceased or, as the case may be, the fraud had been discovered, or

e. The petitioner will not be granted a decree if, in the case specified in clause (III), they have willingly and with their free consent continued to live with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, after the discovery of the fraud. [11]

DIVORCE

The grounds of divorce are as follows:

• Adultery
• Desertion has occurred for a minimum period of two years
• The Respondent has been sentenced to imprisonment for a minimum period of seven years
• Cruelty
• Unsound Mind
• Venereal Disease
• Leprosy
• Presumption of Death
• Another ground for seeking divorce under the Special Marriage Act, of 1954, is when the respondent-husband has been found guilty of committing rape or outraging a woman’s modesty.[12]

Divorce by mutual consent, To obtain a divorce by mutual consent, the following steps must be followed:

• Both parties must present a joint petition for divorce to the district court.
• The petition must be filed because they have been living separately for one year or more, and they have not been able to live together if the parties mutually agree that the marriage should be dissolved.
• The divorce petition can be filed only after one year from the date of the marriage certificate being entered in the Marriage Certificate Book. In certain situations, relaxation of the grounds for divorce may be considered, particularly when the petitioner can demonstrate exceptional hardship or when the respondent’s behaviour exhibits exceptional depravity.
• The petition seeking divorce by mutual consent could be presented to a District Court, within whose jurisdiction, either, the marriage was solemnized, the respondent resides, or in case the wife is the petitioner, where she is residing, the parties to the marriage last resided together, or the petitioner resides, in cases where the respondent is residing outside the territories to which the Act extends
• To seek a divorce by mutual consent under the Special Marriage Act, 1954, both parties must jointly make a motion requesting a decree of divorce between 6 months and 18 months after the date when the divorce petition was initially presented.
• Before passing a decree of divorce, the District Court considers the following, among other aspects: that the petition has not been withdrawn yet, that a marriage has been solemnized under the Act, that the averments in the petition are true, that consent for divorce has not been obtained by force, fraud or undue influence it’s important to establish that there has been no undue or unwarranted delay in initiating the divorce proceedings.[13]

CONCLUSION

In conclusion, the Special Marriage Act, of 1954, stands as a significant piece of legislation under family law, offering a unique avenue for individuals of diverse backgrounds and faiths to solemnize their marriage without religious constraints. It promotes the principles of secularism and individual choice, facilitating interfaith and inter-caste marriages while safeguarding the rights and dignity of the parties involved. Over the years, the Act has played a pivotal role in fostering social harmony and inclusivity, aligning with the evolving dynamics of a pluralistic society. It underscores the importance of personal freedom and equality, making it an essential legal framework for ensuring matrimonial harmony in a diverse and multicultural nation.

REFERENCES

• Diwan, Dr. P. (2023) Modern Hindu Law. 26th edn. Faridabad, Haryana: Allahabad Law Agency.
• Syed, Khalid Rashid (2022) Muslim Law. 6th edn. Lucknow, (U.P.): EBC.
• Indulia B, “Special Marriage Act, 1954: Too Special to Be Constitutional | SCC Blog” (SCC Blog, February 20, 2021) https://www.scconline.com/blog/post/2021/02/20/special-marriage-act/
• Garg R, “Special Marriage Act, 1954 : All You Need to Know About” (iPleaders, November 3, 2022) https://blog.ipleaders.in/special-marriage-act/

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[1]Special Marriage Act, 1954 (2023) Wikipedia. Available at: https://en.wikipedia.org/wiki/Special_Marriage_Act,_1954 (Accessed: 03 November 2023).

[2] Hindu marriage act vs special marriage act – what is the … Available at: https://marriageregistrationmumbai.in/hindu-marriage-act-vs-special-marriage-act-what-is-the-difference-between-them/ (Accessed: 03 November 2023).

[3] Hindu marriage act vs special marriage act – what is the … Available at: https://marriageregistrationmumbai.in/hindu-marriage-act-vs-special-marriage-act-what-is-the-difference-between-them/ (Accessed: 04 November 2023).

[4] Vyasan, N. (2023) Matrimonial laws India: Here’s what you need to know, News18. Available at: https://www.news18.com/lifestyle/matrimonial-laws-india-heres-what-you-need-to-know-7434943.html (Accessed: 04 November 2023).

[5] Supplementary material- Special Marriage Act 1954 notes (2021) Get legal India. Available at: https://getlegalindia.com/special-marriage-act/ (Accessed: 04 November 2023).

[6] Lata Singh vs. State of U.P (, AIR 2006 SC

2522)

[7] Section 4 in the special marriage act, 1954 – Indian kanoon. Available at: https://indiankanoon.org/doc/594580/ (Accessed: 04 November 2023).

[8] Section 1 of the special marriage act, the word “except the state of Jammu and Kashmir” omitted by Act 34 of 2019 section 95 and the 5^th schedule (w.e.f 31/10/ 2019)

[9] Law, F Special type of marriage for the people of India where they can marry irrespective of their religion or caste, Free Law: Get Free Headnotes & Judgments. Available at: https://www.freelaw.in/legalarticles/Special-Marriage-Act 1954#:~:text=In%20Section%204%20of%20the,been%20performed%20under%20this%20Act. (Accessed: 04 November 2023).

[10] Section 15 of special marriage act, 1954

[11] Section 25 of special marriage act, 1954 (see also corresponding laws section 12 of Hindu marriage act,1955,   section 19 of the divorce act,1869, section 32 of the Parsi marriage and divorce act,1936 and section 9 of the matrimonial causes act, 1965).

[12] Section 27 of the special marriage act,1954

[13] Section 28 of special marriage act.

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