This article is written by Sonali Chauhan , a student of Lloyd Law College, Greater Noida; and Jaya Vats, a practising advocate, Delhi. The author, in this article, has discussed the concept of the Special Marriage Act.
It has been published by Rachit Garg.
Table of Contents
Marriage has traditionally held a sacred place in Indian society, with people placing the union of two individuals as a couple on a very high pinnacle. Throughout history, the practice of marriage has accumulated so many norms and ethics that it has resulted in a union of two families rather than two individuals. When picking partners for marriage, there is frequently a significant level of social involvement. In many regions of India, for example, marriage between members of the same social status or caste has become a norm, while inter-caste marriages are strongly prohibited. Inter-religious marriages, on the other hand, are frowned upon, with individuals being outcasts or socially boycotted simply for marrying someone of their choice who does not share their religious beliefs and customs. Various vigilante organisations have further exacerbated the couples’ troubles to the point where they must engage in a protracted battle to guarantee that their lives and safety are not jeopardised.
Since the Hindu Marriage Act of 1955 , or the registration of marriages under Muslim personal laws, religious laws in India have not been able to accommodate and regulate marriages between interfaith or inter-caste couples who do not want to associate and solemnise their marriage according to any particular religious laws since the colonial era. Taking note of this stumbling barrier that stopped two consenting eligible adults from marrying, the British Government in India created the Special Marriage Act, 1954, 1872 , in order to protect the cherished principle of secularism in the society. The current Special Marriage Act, 1954, 1954 , was thus framed and implemented along the lines of the colonial statutory provision in newly independent India, which was highly essential to ensure that the secular fabric of the nation remained tightly knit after it had been significantly torn due to the after-effects of the partition of 1947.
As a result, the government of newly independent India’s only rationale for enacting this special legislation was to find an effective alternative to earlier colonial law and provide a straight–jacket remedy to individuals who wanted separate provisions for solemnisation and registration of marriages through a civil contract, since the ‘ Right to Marry ’ has also been included as a Fundamental Right under Right to Life and Personal Liberty under Article 21 of the Indian Constitution .
Nevertheless, the laws that were framed during the colonial era and thus were incorporated into a specific legislation, had a large number of loopholes and did not fit perfectly into the constitutional setup of modern-day India. Thus, the legislation was in a desperate need of being amended in order to fit into the current society setup. Hence, the Special Marriage Act, 1954 of 1954 was enacted to facilitate inter-caste and inter-religious weddings, in which the couple is not needed to abandon their faith in order to marry. Registration might even take place while they preserve their religious identity.
As one of independent India’s most significant secular initiatives, the Special Marriage Act, 1954 was brought into the Indian legal system in 1954. The Act was intended to be a piece of legislation that controls weddings that could not be solemnised due to religious traditions. The Act applies to all Indian nationals, whether they live in India or outside. The State of Jammu and Kashmir is not included in the scope of this Act, although persons domiciled in other states but residing in Jammu and Kashmir would be eligible for these provisions.
It is a piece of law that establishes a special type of marriage by registration. Marriage is unique in that there is no requirement to convert or reject one’s religion. Unlike conventional arranged weddings, which include two families from the same caste or community, the Act aspires to legalise interreligious or inter-caste marriages. The Act’s Certificate of Registration has been regarded as universal evidence of marriage. As stated in the Preamble, the Act allows for a special form of marriage in specific circumstances, registration of such and other marriages, and divorce.
The following are the key goals that may be derived from the Act’s Preamble:
The purpose of the Act is to establish consistent legal measures to protect those who want to marry across castes or religions. By establishing a system for inter-faith marriages, the Act serves the interests of all Indian people.
The Act includes provisions for lawful marriage, prerequisites for a valid marriage, dissolution of an inter-faith marriage, marriage registration, and other regulations. As a result, the enactment of the aforementioned legislation intended to protect people’s basic rights and enable them to pick their married partners. The Act also intends to reduce the threat of societal ills such as honor killing and love jihad, as well as to acknowledge the rights of children born out of such marriages.
The Act, via the use of the following elements, drastically revolutionised society’s perception of inter-caste and inter-faith marriages in the following ways:
The Special Marriage Act, 1954 extends to all Indian states as well as Indian nationals living in other countries. Individuals of diverse faiths, such as Muslims, Hindus, Parsis, Sikhs, or Christians, can marry under this Act. The Act applies not only to interreligious or inter-caste marriages or love marriages but also to intra-faith marriages and provides an option to register marriages performed in accordance with the couple’s personal laws. The fulfillment of customs and ceremonies to solemnise the marriage is a requirement of personal laws, whether Hindu or Muslim law, however, the Special Marriage Act, 1954 does not demand the performance of any rituals or ceremonies; rather, the single requirement for being married is two persons having permission.
It applies to the whole of India except the State of Jammu and Kashmir and applies also to citizens of India domiciled in the territories to which this Act extends who are (in the State of Jammu and Kashmir). Marriages between Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists are all covered under the statute. As a result, there is no distinct court marriage for different faiths; rather, it is a uniform process of being married regardless of religion.
Since Indians believe in marriages with proper rituals, customs, and ceremonies that include pomp and show & extravagant celebrations, none of them is required by the Special Marriage Act. The fundamental requirement under this Act for a valid marriage is the consent of both parties to the marriage. If both parties to the marriage are willing to marry each other, that’s enough; caste, religion, race, etc. can’t act as a barrier to their union here. For marriage under this Act, the parties must file with the district’s Marriage Registrar a notice stating their intention to marry each other in which at least one of the parties to the marriage has lived for at least 30 days prior to the date on which such notice is filed. After the expiry of 30 days from the date that such notice was published, the marriage is then said to be solemnized. But if any person related to the parties objects to this marriage and the registrar finds that it is a reasonable cause of objection, on such grounds he can cancel the marriage. For a valid marriage, the parties must also give their consent to the marriage before the marriage officer and three witnesses. These are the basic requirements for a valid marriage under the Special Marriage Act that every Indian must know about.
Section 4 of the Special Marriage Act, 1954 addresses the numerous requirements for a lawful marriage. It specifies four basic requirements for a legitimate marriage:
The degree of banned relationship is determined by the conventions of the persons involved and differs from one tradition to the next. Schedule one of the legislation outlines the degrees of banned connections; nonetheless, in typical circumstances, the norms governing persons take precedence. The marriage will only be lawful if all of these prerequisites are met. Other prerequisites for a lawful marriage include the permission of the parties, with both parties entering into the marriage providing acceptable consent. The willingness of both parties is taken into account. The caste or religion of either party is not taken into account and will not operate as a barrier.
Section 5 of the Act specifies that the parties must give written notice to the Marriage Officer of the District and that at least one of the parties must have lived in the district for at least 30 days immediately before the date of such notification. The application must be filed in accordance with the required format, which is listed in schedule two of the act.
According to Section 6 of the Act, the original and genuine copy of the notification must be submitted in the ‘Marriage Notice Book.’ After the Marriage Officer receives the application, he or she will publish a thirty-day public notice to see whether there are any objections to the marriage. Non-compliance with any of the Act’s criteria or requirements is one of the most common objections dealt with.
Section 8 of the legislation stipulates that anybody may object to the intended marriage after the notice is published. When a Marriage Officer receives an objection, he or she must do the necessary investigation and deal with it correctly.
According to Section 11 of the Act, the declaration of marriage must be signed by the parties to the marriage and three witnesses, and it must be checked and signed by the Marriage Officer.
According to Section 12 of the Act, the marriage may be solemnised in the Marriage Officer’s office or within a reasonable distance of the office. If the marriage takes place outside of the Marriage Officer’s office, there should be additional costs paid.
Section 13 of the Act deals with marriage certification. The marriage officer enters the marriage in the ‘Marriage Certificate book’ and issues a Marriage Certificate when the marriage is solemnised.
There are no religious rites necessary under Section 16 of the Act which defines the procedure for registration of marriage. The marriage under this Section is solemnised by a Marriage Officer designated by the Government, and the relevant parties to the marriage must provide notice to the Marriage Officer in the appropriate way.
Section 26 of the Act recognizes the validity of children born to people who married under the Special Marriage Act, 1954. They retain ownership of the property even after the marriage is declared null and void. The offspring of such marriages are not entitled to ancestral property. They can only obtain a share of their parents’ self-owned or inherited property.
Under the Special Marriage Act, 1954 of 1954, certain circumstances must be met before a marriage can be solemnised. These qualifications are outlined in Chapter II, Section 4. The prerequisites for this particular sort of marriage are not dissimilar to those for regular customary marriages and are fairly comparable to Section 5 of the Hindu Marriage Act, 1955 .
As a result, any violation of any of the conditions stated in Section 4 of the Act will render the union null and void.
Another important point that why every Indian should have knowledge of SMA (Special Marriage Act) is that the succession to the property of persons married under this act or any marriage registered under this act and that their children will be governed under the Indian Succession Act. But if the parties to the marriage belong to Hindu, Buddhist, Sikh, or Jain religions, then the Hindu Succession Act will govern the succession to their property.
In 2006, India’s Supreme Court made it necessary to enrol all relational unions. A marriage can be registered in India either under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. The Hindu Marriage Act is relevant to Hindus, although the Special Marriage Act is suitable for all Indian residents regardless of their religion applicable to the Court marriage.
In India, all marriages can be registered either under their respective personal laws (Hindu Marriage Act, 1955/Muslim Marriage Act, 1954) or under the Special Marriage Act,1954. A marriage under the Special Marriage Act, 1954 enables people from two distinct religious backgrounds to unite in the marriage bond. Unlike personal laws, the Special Marriage Act’s applicability extends to all Indian citizens regardless of their religion. Although marriage laws allow only the registration of an already solemnized marriage under personal laws, the Special Marriage Act provides for both solemnizations and legal registration. The Special Marriage Act has designed a simple means of legally registering a marriage between two people of different religions, but even if both the concerned parties belong to the same religion, they may choose to register the marriage under this Act. This is a step-by-step procedure to apply in India for a Special Marriage Act.
All the given eligibility criteria should meet before applying for the Special Marriage Act:
The district jurisdiction may be invoked in which either of the two parties has a permanent residence (must live there for at least 30 days prior to the notice being submitted). To apply, reach the chosen district marriage officer (either the intending husband or the intending wife resides). The application should be written in accordance with the format set out in the Second Schedule. For reference, the format is also set out below:
NOTICE OF INTENDED MARRIAGE
To Marriage Officer for the ………………District. We hereby give you notice that a marriage under the Special Marriage Act, 1954, is intended to be solemnized between us within three calendar months from the date hereof.
Witness our hands this …………………………………………..day of ………………….19.
Once such an application has been received by the marriage officer, duly signed by both parties, the officer shall then issue a thirty-day public notice to raise objections to the intended marriage if any. The objections generally relate to non-compliance with the conditions referred to in Section 4 of the Act (also referred to in Step 1). If the conditions are duly met and no such objections are raised, a marriage certificate should be entered in the Marriage Certificate Book. Here, both the intending parties and the witnesses are required to sign.
The marriage under this Act can be said to be duly solemnized and registered after having completed all of the above steps. Please note that you may also need certain documents along with three witnesses on the day of solemnization. An illustrative list has been provided here:
Any couple wishing to make use of the fruits of this Act is required to issue a written notice to the district’s “Marriage Officer” where for the last thirty days at least one of the parties to the marriage has resided. The marriage is usually scheduled to take place within three months from the date of issue of notice. The notice thus received will be published by displaying it in a noticeable place in the office of the Marriage Officer. A copy of the notice must also be attached to a “Marriage Notice Book” that anyone can inspect.
Any objections to marriage regarding age, consent capacity, incest, etc. may be addressed to the Marriage Officer within 30 days of the notice being published. The Marriage Officer is mandated to conduct an inquiry into its validity within a 30-day window period of time, during which the marriage can not be solemnized in case of any objections. If the marriage officer finds that the objection is valid and decides against the marriage of the parties concerned, the bride or groom may, within thirty days of such refusal, appeal to the district court. If all the objections concerned are dealt with, a declaration must be signed by the bride, groom, and any three witnesses in the presence of the Marriage Officer, who would then countersign it. The marriage will be solemnized upon the cessation of the objection period in the absence of any objections.
In receiving an objection, marriage officers are granted the following rights:
If the marriage officer believes that the objection he/she has received is not reasonable and is not made in good faith, the person making the objection may be on the receiving end of objective costs of up to Rs. 1,000. The sum received will be awarded to the parties of the proposed marriage for this purpose.
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 own conditions and communicates its decision to the Marriage Officer, who then implements the decision ordered by the governing body.
After clearing objections, the marriage may be solemnized at the expiry of 30 days, if any field. The 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.
In whatever form the parties may choose to adopt, marriage can be solemnized. The marriages can be solemnized either within a reasonable distance from the office of the marriage officer or at such other place as the parties may wish.
The Special Marriage Act, 1954 of 1954 mandates various preliminaries and civil requirements before marriage may be solemnised. Both intending parties to the marriage must send a written notification to the Marriage Registrar of the district in which at least one of the parties to the marriage has lived for a minimum of 30 days. When the Marriage Registrar obtains the notice of marriage, he must publish it by affixing a copy to a prominent location in his office. The Marriage Registrar is required to maintain all notices with records in his office and to register a genuine copy of each such notice in the ‘Marriage Notice Book,’ which is available to everybody for examination without charge. Any individual may object to the marriage before the expiration of thirty days from the date of publication on the grounds that it violates the requirements established in Section 4 of the Act.
Following the completion of the thirty-day objection period, the marriage will be solemnised, unless it has already been opposed to by any individual. In any case, if an objection is raised against an intended marriage, the Marriage Registrar cannot solemnise the marriage until he has investigated the matter of objection and reached a decision that the earlier raised objection will not prevent the marriage from being solemnised, or the prior objection is withdrawn by the individual raising it. However, if the marriage officer validates the objection and refuses to solemnise the marriage, any of the intended parties may file an appeal with the district court within the local limits of the marriage officer’s office within thirty days, and the decision of the district court on such appeal will be binding, and the marriage officer must act in accordance with the court’s decision.
Before the marriage may be solemnised, the intended parties and three witnesses must sign a statement in the prescribed form in the presence of a Marriage Officer, and the declaration must also be notarized by the Marriage Registrar himself. Following this, the marriage can be solemnised in the Marriage Registrar’s office or wherever else the parties prefer. In front of the Marriage Officer and three witnesses, each party must state to the other partner in any language known by the parties, “I, (X), accept the (Y), to be my lawful wife (or husband).” After the marriage is solemnised, the Marriage Officer writes the facts on a certificate which he keeps in a ‘Marriage Certificate Book’ also called the Marriage Registration Record which has to be duly signed by the newlyweds along with the three witnesses and serves as definitive proof of the marriage.
Before the expiration of 30 days from the date on which any such notification has been published under sub-section (2) of Section 6 , any person may object to the marriage on the grounds that it would violate one or more of the requirements mentioned in Section 4.
Any marriage celebrated, with the exception of those solemnized in accordance with these provisions, may be registered by a marriage officer under Chapter III of the Act, subject to the condition that a marriage ceremony has been conducted for the parties under any of the Acts and that the couple has since led a marital life. Besides that, the conditions for the conduct of marriage specified in this Act shall apply.
Any member of an undivided family who professes the religion of Hinduism, Buddhism, Sikhism or Jainism would be forced to separate from such a family, i.e. a family member married under this Act would not be considered a part of the family hierarchy after the marriage proceedings under this Act were terminated.
On marriage, it is the parties ‘ primary duty to live together in order to fulfill their marital obligations. This right to cohabit with one another is called the’ consortium’ right. Husband and wife have the right to each other’s society, comfort, and affection. The origin of the action seems to lie in the husband’s early concept of law having a quasi-proprietary right over the wife. It included the society of his wife as well as its services. The consortium notion presumed a distinct footing of mutuality with the passage of time. Conjugal rights can not be enforced by either party’s actions, and by force, a husband can not seize his wife and detain her. If a spouse makes an infringement of this obligation without any justifiable cause, the other may go to court to restore his conjugal rights.
Section 22 of Chapter V of the Special Marriage Act, 1954, sets out the conditions under which a petition for restitution of conjugal rights would be based.
Explanation: Where a question arises as to whether there was a reasonable excuse for withdrawal from society, the burden of proving a reasonable excuse is on the person who withdrew from society.
The section’s elements are as follows:
In the district court, the petition is filed.
The court is satisfied with the truth of the statement, and there is no other reason to deny the relief.
This section is consistent with Section 9 of the Hindu Marriage Act, 1955, Section 36 of the Parsi Marriage and Divorce Act, 1869, Section 32 of the Divorce Act, 1869, and Section 13 of the Matrimonial Causes Act, 1965.
The word ‘society’ that occurs in the section means the same thing as consortium or cohabitation, i.e. living together as husband and wife in a place called ‘matrimonial home’. It is therefore evident that withdrawal from the other’s society would mean withdrawal from the matrimonial home by either spouse that would involve a total loss of consortium such as desertion. Society withdrawal involves two elements: animus and factum. This means that the withdrawing spouse intends to put an end to the cohabitation and, secondly, the mere intention of withdrawal would not amount to withdrawal unless it is combined with the factum of separation on the part of spouse’s withdrawn.
Cohabitation does not necessarily mean that parties live together under the same roof, but there may be cohabitation states where they see each other as much as they can and yet are not separated.
Kay v. Kay, (1904), A man may cohabit with his wife even if he is away or on a visit or on business because it does not determine the conjugal relationship in any form.
G v. G, (1930), A husband can not be considered to have deserted his wife without reasonable cause because he is forced to live away from her because of his work in life.
Shastri law was based on the principles that the wife is bound to live with her husband and submit herself to his authority. This rule of law that gave the husband the right alone to set up a matrimonial home in preference to the wife was based on a custom that reflected the condition of the age in which the custom was practised. Moreover, the husband’s right to establish a matrimonial home is not a law proposition; it is simply a proposition of ordinary good sense arising from the fact that the husband is usually the bread earner and has to live near to his work. It becomes quite natural in such circumstances that the husband should have the right to choose a matrimonial home. India’s Constitution gives both sexes equal status, so both have equal rights to pursue their careers. Now the casting vote on the choice of the matrimonial home is not with the husband or wife, but it is a matter that has to be decided in a friendly manner between them.
In several cases, the question as to what amounts to withdrawal from society came to our courts in an interesting way: does the refusal of the wife to give up her job in the husband’s case amount to withdrawal from the husband’s society? In several cases, the question came before the Punjab High Court for consideration and in the affirmative, it was answered. In the cases Tirath Kaur v. Kirpal Singh AIR 1964 Punj 28, Gaya Prasad v. Bhagwati AIR 1966 MP 212 (DB), and Kailashwati v. Ayodhya Prakash 1977 HLR 175, The courts held that the husband had the right to decide the matrimonial home and that the wife had to resign and live with him. The other view, which is contrary to this extreme opinion, as held in S. Garg v. K. M. Garg, AIR 1978 Del 296, is that the wife can not be prevented from taking up employment in the present social scenario and can not be forced to live in the same place where her husband lives. None of the parties shall have a casting vote, and the matter shall be settled by agreement between the parties, by process of giving and taking and by reasonable accommodation.
The burden of proving that he/she has withdrawn with a reasonable excuse would be on the respondent once the petitioner proves that the respondent has withdrawn from his/her society. A restitution petition will fail if the respondent is found to have withdrawn from the petitioner’s society with a reasonable excuse to do so.
It will be a reasonable excuse or reasonable cause under the modern matrimonial law:
If there is a reason for this, the respondent may claim any matrimonial relief. So if the petitioner is found to have another wife (Parkash v. Parmeshwari, AIR 1987 P & H 37), is guilty of cruelty (Bejoy v. Aloka, AIR 1969 Cal 477), or is adulterous (Laxmi Malik v. Mayadhar Malik, AIR 2002 Ori. 5) the petition will fail.
If the petitioner is guilty of any matrimonial misconduct, then it is not sufficient to be the ground for matrimonial relief but sufficiently weighty and serious.
If the petitioner is guilty of such an act, omission or conduct that makes a living with him impossible for the respondent.
The jurisdiction under the section to entertain a petition for restitution of conjugal rights rests with the district court. The District Court has been defined in S. 2(e) the Act. It means the principal civil court of original jurisdiction and a civil court of the city where such court exists. An aggrieved party may invoke the jurisdiction of a district court if any of the following qualifications are fulfilled:
Under English law, before the Reformation, the church considered the marriage as a sacrament which made it impossible to obtain a divorce. The ecclesiastical courts in the case of a marriage validly contracted granted ‘divorce a men’s et thoro,’ i.e. divorce from bed and board, which did not allow the parties to remarry. This solution was not divorce, i.e. it didn’t dissolve the marriage. This solution is now called judicial separation, allowing the parties to live separately from each other, without dissolving the marriage bond, with the option of re-uniting and re-living together if conditions change subsequently.
Section 23 of the Special Marriage Act provides for the relief of judicial separation.
(1) A petition for judicial separation may be presented to the District Court either by the husband or the wife:
(a) on any of the grounds specified in sub-section (1) and sub-section (1A) of Section 27 on which a petition for divorce might have been presented, or
(b) on the ground of failure to comply with a decree for restitution of conjugal rights; and the Court, on being satisfied of 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.
(2) 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 of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
This section is in accordance with Section 10 of the Hindu Marriage Act, 1955, Section 34 Parsi Marriage and Divorce Act, 1936, Section 22 of the Divorce Act, 1869 and Section 12 of the Matrimonial Causes Act, 1965.
A district court shall lodge a petition for judicial separation from either the husband or the wife on any of the grounds that the respondent:
Where the petitioner is the wife, on the additional ground, she can file a petition for judicial separation:
That since the solemnization of marriage her husband has been guilty of Rape, Sodomy, or Bestiality; or
That there has been no cohabitation between her and the husband for not less than one year after passing a decree or maintenance order against her husband in her favour, or
That her husband has failed to comply with a decree to restore conjugal rights.
The aforementioned grounds are similar to divorce grounds under Section 27 of the Act.
The District Court must be satisfied with the truth of the statements made in such petition upon presentation of the petition. If the court is satisfied, a judicial separation decree will be passed. The parties are free to live apart from one another after the passing of the decree. However, if it considers it fair and reasonable to do so, the court may rescind the decree of judicial separation upon subsequent application by either party. In a petition for divorce, if the petitioner fails to establish the alleged ground for divorce, although facts establish a ground for judicial separation, the court has the power to pass a decree for judicial separation, even though no such prayer has been made in the petition, as held in Bhagwan v. Amar Kaur, AIR 1962 Punj 144.
The decree of judicial separation entitles the parties to live separately, and cohabitation is not compulsory on either party as the essential of the marital relation. But it does not break husband and wife’s marital status. No one is able to remarry until the divorce decree. Each party may submit a divorce petition to the district court on the ground that there has been no resumption of cohabitation as between the parties for a period of one year or upwards after passing a judicial separation decree.
The law of nullity refers to impediments to premarriage. The subject matter of impediments to marriage is covered under the capacity to marry. If there are certain impediments, parties are unable to marry each other. If they get married, despite impediments, their marriage may not be valid. These impediments are generally split into two:
These impediments classify the marriage into Void and Voidable Marriages.
A void marriage is not marriage, i.e. from the beginning, it does not exist. It is called marriage because there are two people who have undergone ceremonies of marriage. Since they absolutely lack the capacity to marry, they can not become husband and wife just by undergoing marriage ceremonies. In other words, avoid marriage does not give rise to any legal consequences. No court decree is required in respect of void marriages. Even when a decree is passed by the court, it simply declares the marriage to be null and void. It is not the court’s decree that makes such a marriage void. It is an existing fact that the marriage is void and the court is merely making a factual judicial statement. In accordance with Section 24 of the Special Marriage Act, 1954, either party can make a petition for nullity to marriage.
(i) any of the conditions specified in clauses (a),(b),(c) and (d) of section 4 has not been fulfilled, or
(ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit.
(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of Section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of Section 15:
Provided that no such declaration shall be made in any case where an appeal has been preferred under Section 17, and the decision of the District Court has become final.
This section corresponds to Section 11 of the Hindu Marriage Act, 1955, Section 18 and 19 of the Indian Divorce Act, 1869 and Section 9 of the Matrimonial Causes Act, 1965.
A marriage may be declared void by a decree of nullity on the following grounds:
So long as it is not avoided, a voidable marriage is perfectly valid. Only one of the parties to the marriage may request it to be avoided. If one of the parties refuses to demand the annulment of the marriage, the marriage will remain valid. If one of the parties dies before the annulment, no one can challenge the marriage, and it will remain valid forever. All the legal implications of a valid marriage flow as long as it is not avoided. The grounds for voidable marriages are set out in Section 25 of the Special Marriage Act.
(i) the marriage has not been consummated owing to the willful refusal of the respondent to consummate the marriage, or
(ii) the respondent was it the time of the marriage pregnant by some person other than the petitioner, or
(iii) 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);
Provided that, in the case specified in clause (ii) the Court shall not grant a decree unless it is satisfied-
(a) that the petitioner was at the time of the marriage ignorant of the facts alleged.
(b) those proceedings were instituted within a year from the date of the marriage. and
(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.
Provided further that in the case specified in clause (iii), the Court shall not grant a decree if:
(a) 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
(b) The petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.
This section corresponds to Section 12 of the 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.
Non-consummation of marriage: Due to the respondent’s willful rejection, the marriage has not been consummated. In Sunil K. Mirchandani v. Reena S Mirchandani, where the parties had lived together for about 5 months, and a letter written by a husband to wife indicates his satisfactory sexual relationship with her, there could be no basis for an annulment of marriage under Section 25(1) of the Act.
Pre-marriage pregnancy: The presumption of law is that a child born during the continuity of a valid marriage or within the gestation period of 280 days after the dissolution is legitimate unless there is strong evidence to prove otherwise. The petitioner’s right is somewhat limited to initiate proceedings on this ground of the respondent’s pregnancy at the time of marriage by an individual other than the petitioner. In such cases, the court shall not issue a nullity declaration unless it is satisfied:
Coercion or fraud: if either party’s consent to the marriage has been obtained by coercion or fraud as described in Section 15 and 17, respectively, of the Indian Contract Act 1872, the marriage can be avoided.
Section 15 describes coercion as committing or threatening to commit, any act forbidden by the Indian Penal Code or any unlawful detention or threat of detention of any property, to the prejudice of any person, with the intention of causing an individual to enter into an agreement.
Section 17 of the Indian Contract Act describes fraud, which implies and involves any of the following acts committed by a party to a contract or his connivance, or by his agent, with the intention of deceiving or inducing another party or his agent to enter into the contract:
In Gitika Bagchi v. Subhabrota Bagchi, AIR 1999 Cal 246, where the wife concealed the fact that she was 3 years older than her husband, it amounted to fraud as provided in Section 25(iii) of the Act. In Asha Qureshi v. Afaq Qureshi, AIR 2002 MP 263, hiding of fact by the wife that she was previously married and widowed at the time of the second marriage is a material fact, and as such, it amounts to fraud committed on her second husband, he is entitled to a decree of nullity.
The court should not issue a decree of nullity in case of coercion or fraud unless proceedings were not initiated within one year after the coercion had ended or the fraud had been detected.
The petitioner lived with the respondent with his or her free consent after the coercion been ended or the fraud had been detected.
In such cases, the petitioner’s acquiescence to such an act or omission will be assumed, and the petitioner’s right to such scores will be waived.
Section 26 aims to give the children begotten a status of legitimacy before the nullity decree is passed. Where a decree of nullity is issued for void or voidable marriage, it shall be considered to be a decree of dissolution for the specific purpose of conferring the status of legitimacy on the children begotten before the decree is issued. But the child from such a union shall have right on the parents’ property but no rights in or to the property of any person. In those cases, the child is considered not to be a legitimate child of his parents by a legal fiction.
Divorce puts an end to marriage; the parties return to their unmarried status and are free to marry again. The grounds for divorce are set out in Section 27 of the Act.
The District Court is the proper forum for filing a divorce petition on any of the following grounds:
The respondent to the case has committed adultery since the solemnization of the marriage. Adultery is the matrimonial offence in which a married person and a person of the opposite sex, other than the wife, have consensual sexual intercourse during the subsistence of the marriage, as held in Dawn Henderson v. D Henderson, AIR 1970 Mad 104 (SB). In view of provision (a) of cl. (1) of s. 27 of the Act, a single act of adultery may constitute an adequate ground for divorce. As required in Section 13 of the Hindu Marriage Act, 1955, it is not necessary to prove that the respondent was ‘living in adultery’.
In the case of adultery, the court must be satisfied that adultery has been committed, beyond a reasonable doubt. But adultery can, if ever, be proven very rarely by direct evidence of the witness. Therefore, in most cases, the evidence must be circumstantial in nature and depends on the probabilities of the situation. However, as in the case of Jyotish Chandra Guha v. Meera Guha, AIR 1970 Cal 266 (DB), in the absence of wife’s reciprocity, the mere production of love letters written by a person to a wife will not prove adultery.
The respondent must have deserted the petitioner without cause for at least 2 years before the petition was submitted. In essence, desertion means intentional permanent forsaking and abandonment of one spouse by the other without the consent of the other and without reasonable cause. It is a complete repudiation of the marriage obligations. Desertion is not a withdrawal from a place, but from a state of things that are necessary for marital life. It is a continuing offence and must exist for two years immediately before the petition is presented. The essential elements of desertion are factum or intention to desert or physical separation and animus. All these ingredients must remain in place during the statutory period. The Doctrine of Constructive Separation is one when one spouse is compelled to leave the matrimonial home by the conduct of the other. The spouse that drives out is guilty of desertion. There is no significant difference between the case of a man who intends to stop cohabitation and leaves his wife and the case of a man who compels his wife to leave him with the same intention through his conduct.
In Geeta Jagdish Mangtani v. Jagdish Mangtani, 2005 SC 3508, on the ground that the husband had inadequate income, the wife had abandoned him after seven months of marriage. She began to live with her parents and gave birth to a child. She did not attempt to rejoin the husband and continued her job as a teacher. She knew about the husband’s income status before marriage. Desertion on her part has been proved under the circumstances. Due to the unpalatable atmosphere in the matrimonial home, the wife left the matrimonial home in Sunil Kumar v. Usha, AIR 1994 MP 1, and the reign of terror that prevailed there drove her out. She was held not guilty of desertion.
The respondent is subject to a seven-years or more imprisonment decree for an offence laid down in the Indian Penal Code. On this ground, however, no decree for divorce shall be granted unless the respondent has already been imprisoned for at least three years out of the said period of seven years or more prior to the petition being presented.
Since the marriage solemnization, the petitioner must have been treated with cruelty by the respondent. The term’ cruelty’ was not defined in the Act and could be attached to it as such a broad meaning. Russell v. Russell, [1897] AC 395, laid down the legal position of cruelty in divorce proceedings. The legal concept of cruelty is usually described as the conduct of such a character as to have caused risk to life, limb or health (physical or mental) or to give rise to a reasonable apprehension of such danger.
In a divorce proceeding on the grounds of cruelty, the petitioner must prove that the respondent has behaved in such a way that the petitioner can not be called upon to endure in the circumstances and that misconduct has caused injury to health or a reasonable apprehension of such injury. The standard of proof required is the preponderance of probability and not beyond all reasonable doubt as in criminal proceedings.
The respondent must be of unsound mind, which is incurable. The burden of proof lies with the petitioner that the respondent is of unhealthy mind or has suffered from such a kind of mental disorder continuously or intermittently and to such an extent that it is not reasonable to expect the petitioner to live with the respondent. The petitioner will also need to prove that the unsoundness of mind is incurable. If the court finds that the respondent’s unsoundness of mind is incurable, it does not interfere with the degree of unsoundness of mind for decision-making purposes, as stated in Lock v. Lock, [1958] 1 WLR 1248.
The respondent must be suffering from venereal disease in a communicable form. Where it is not contracted from the petitioner who provides evidence that he or she has not had any intercourse with any person other than the respondent, it is a prima facie case that the respondent had committed adultery. It is then up to the respondent to refute the prima facie case against him by calling for medical evidence to demonstrate that:
The respondent should have been suffering from leprosy and the disease must not be contracted from the petitioner. Proving the disease have a communicable nature is not necessary.
The respondent has not been heard by people who are closely related to the respondent as being alive for not less than seven years. If the person is not heard of for 7 years by those people who would naturally have heard of him being alive, then it is presumed that the person is dead. The burden of proving that the respondent is alive lies with the person who asserts it.
The wife can make a petition at the District Court on the ground that her husband has been guilty of rape, sodomy, and bestiality since the solemnization of marriage. These are also grounds for prosecution on criminal charges. However, the husband’s conviction on these grounds of criminal offence is not enough to grant a divorce decree. The commission of the offense must be proven de novo either by the petitioner calling witnesses or by the respondent admitting guilt; the court will decide whether any evidence is desirable to be corroborated.
The wife can also file a divorce petition on the ground that she has obtained a decree or maintenance order and since the passing of such decree or order, she has been living apart and has no resumed the cohabitation between her and her husband.
The parties have not resumed cohabitation for at least one year after the passing of a decree of judicial separation. The legislature’s intention to give such space and time to the parties so there would be a possibility of reconciliation between the parties. In the absence of any such change of mind of the parties, the legislature believes that for any further period there is no justification for keeping the right of cohabitation available to the parties. Based on their peculiar facts and circumstances, each case has to be decided. A single act of cohabitation does not mean the resumption of cohabitation.
There has been no restitution of conjugal rights between the parties for a period of not less than one year after the decree of restitution of conjugal rights has been passed.
Under section 28 of the Act, which deals primarily with provisions relating to obtaining a divorce by mutual consent in respect of a marriage solemnized and/or registered under the Act, a petition for divorce may be filed with the District Court by mutual consent. The following are some key points to consider when seeking a divorce by mutual consent:
They lived separately for a period of one year or more.
That they were not able to live together.
That they agreed to dissolve the marriage mutually.
The marriage was solemnized.
The respondent resides, or where the wife resides, in the case where the wife is the petitioner.
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.
Thus, the provisions and procedures under the Special Marriage Act for acquiring divorce by mutual consent are relatively straightforward and fairly simple.
However, parties wishing to obtain a divorce by mutual consent must bear in mind that the Act also contains provisions dealing with the granting of alimony and maintenance, both permanent and during the pendency of the proceedings. In cases of divorce by mutual consent, the parties may agree on the terms relating to the payment of alimony or maintenance and the same may be incorporated in the pleadings before the Court. However, care must be taken to incorporate the appropriate provisions in the pleadings in order to avoid future misunderstandings or litigation. Therefore, while discussing the various issues related to seeking a divorce by mutual consent with their advocates, it is advisable that the parties should specifically discuss their arrangement and alimony and maintenance arrangements, and take appropriate steps to ensure that their interests are safeguarded.
Any person who is married under the Special Marriage Act must be aware of this important provision of the Act. Unless and until one year has expired from the date of their marriage as recorded in the marriage books, the parties may not apply for divorce in the District Court. However, in cases where the court considers that the petitioner has suffered exceptional hardship or the respondent has shown exceptional depravity on his part, a request for divorce would be retained, but if there is any misrepresentation on the part of the petitioner to apply for divorce before the expiry of 1 year, the court may, if any order has been passed, state that order to take effect only after the expiry of 1 year, as mentioned in Section 29 of the Act.
Speaking of the option of remarriage available for marriages of persons registered under the Special Marriage Act, 1954, one important thing to bear in mind is that, where the marriage has been dissolved, and there is no right of appeal available, or there is no petition for it within the required period, or where the appeal is dismissed, the parties may remarry as provided by the parties.
The general understanding is that only marriages are sacred and auspicious which are done in one’s own caste, whereas the legal aspects of it as discussed above doesn’t make marriages any less sacred or valid under this act. Our Law, under its provisions, gives every citizen the right to marry and have a happy life with any person of their choice. But many support this opinion and criticize it. Some people think it’s valid; some don’t. The effect of arranged marriages on love marriage has brought about this situation which, even after judgments and laws have been passed more frequently in this regard, has not brought about a major change in the mindsets of people who support marriages within religion and caste.
The Hindu Marriage Act only applies to the Hindus, whereas the Special Marriage Act extends to all Indian citizens.
The Hindu Marriage Act was enacted in 1955 by the Parliament of India Act. The Hindu Marriage Act allows for an already solemnized marriage to be registered. It does not provide for Registrar for solemnization of a marriage. Parties to the marriage must apply to the Registrar in whose jurisdiction the marriage is solemnized or to the Registrar in whose jurisdiction either party to the marriage has resided for at least six months immediately before the date of marriage. Both parties must appear with their parents or guardians or other witnesses before the Registrar within one month from the date of marriage. There is a provision for the Registrar, and subsequently, the District Registrar concerned to condone delay for up to five years.
The Special Marriage Act, 1954, is an Act of the Parliament of India enacted to provide the citizens of India and all Indian nationals in foreign countries with a special form of marriage, regardless of the religion or faith practised by either party. The Special Marriage Act provides for marriage solemnization as well as registration by a marriage officer. The parties to the intended marriage must notify the marriage officer in whose jurisdiction at least one of the parties has resided for at least 30 days prior to the date of the notice. It should be put in his office at some conspicuous place. If either party lives in another Marriage Officer’s area, a copy of the notice for similar publication should be sent to him. If no objections are received, the marriage may be solemnized after the expiry of a month from the date of publication of the notice The Marriage Officer has to enquire into them if any objections are received and make a decision either to solemnize the marriage or to refuse it. Registration will be made after the marriage has been solemnized.
Any marriage already celebrated, subject to certain conditions, may also be registered under the Special Marriage Act after giving a 30-day public notice.
Maintenance For Wife & Children: Under Special Marriage Act, 1954
Alimony During The Pendency Of The Case In The Court
Where, in any proceeding under the Special Marriage Act, 1954, it appears to the District Court that the wife does not have enough independent income for her support and the required expenses of the proceeding, the wife may, at the request of the court, order the husband to pay her the costs of the proceeding and, in the course of the preceding proceeding, weekly or monthly, such amount should regard to husband’s income, which the court may seem reasonable.
Any court exercising jurisdiction under the Special Marriage Act of 1954 may, at the time of the passing of any decree or at any time after the decree, order the husband to secure the wife’s maintenance and support, if necessary, by charge on the property of the husband, such gross sum or such monthly or periodic payment of money for a period of time not exceeding her life.
If the District Court is satisfied that there is a change in the circumstances of either party at any time after it has rendered an order pursuant to subsection (1), it may, in either party’s case, alter, adjust or cancel any such order in such a manner as it may appear to the Court to be reasonable.
(3) Where the District Court is satisfied that the wife for whom an order has been made pursuant to this section has remarried or has not lived a chaste life, it may, in the case of the husband, change, alter or cancel any such order and in such a manner as the Court may deem appropriate.
The maintenance amount shall be purely the Court’s discretion. The court shall take due account of the following factors in deciding the amount of maintenance, namely:
Any other relevant facts and circumstances.
By its very nature, the captioned subject is complex. In such cases,after reviewing the relevant provisions of the law, 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. Even otherwise, the question of how rules, decisions, and quotations are to be applied is rather more complicated as it requires a thorough examination of substantive laws, procedural laws and precedents of the Court in a given set of facts and circumstances.
Section 43 of the Special Marriage Act, 1954 discusses the penalty for a married person marrying again under this Act, which states that anyone who, while married, procures a marriage of himself or herself to be solemnised under this Act shall be deemed to have committed an offence under Section 494 or S ection 495 of the Indian Penal Code , 1860 as the case may be, and the marriage so solemnised shall be void.
Section 44 of the statute further highlights the penalties for bigamy. It states that anyone whose marriage is solemnised under this Act and who contracts any other marriage during the lifetime of his or her wife or husband shall be subject to the penalties provided in Sections 494 and 495 of the Indian Penal Code, 1860 for the offence of getting married again during the entire life of a husband or wife, and the cohabitation so contracted shall be void.
The punishment for signing a fraudulent statement or certificate is detailed in Section 45 of the Special Marriage Act, 1954. It says that anybody who makes, signs, or attests any declaration or certificate required by or under this Act that contains a false statement that he either knows or believes to be false or does not believe to be true commits the offence stated in Section 199 of the Indian Penal Code, 1860.
The Special Marriage Act, 1954, along with its implementation, has provided significant benefits to the two individuals who are marrying, and these benefits are as follows:
Although the Special Marriage Act, 1954 of 1954 permits couples to reject society’s traditional conventions and marry outside the human-made limits of caste, religion, and faith, certain aspects of the Act appear to cause trouble and limit an individual’s freedom to marry a partner of his or her own choice.
The Special Marriage Act, 1954 of 1954 permits citizens of India and Indian nationalities in foreign countries to marry beyond man-made boundaries of religion, caste, and community, but it also regards such weddings with caution by applying criteria that do not apply in interfaith marriages.
There is no option for a quick procedure for instant marriage; instead, the couple must wait 30 days from the day the notification was issued. If there have been no previous objections to such notification, the union can be solemnised at the conclusion of the thirty-day period.
In addition, the Act compels intended spouses to wait one month following the publication of the notice, which is believed to be the time of objection. This interval, however, appears to be too prolonged for people who are constantly threatened by their relatives and communities. The Act gives family, caste, and society ample time and space to harass persons who intend to use it. Despite the fact that it allows two consensual adults to marry without regard for the faiths to which they belong, the law does not make it simpler in practice, since it appears that such couples still want community acceptance to confer validity to their marriage.
It is difficult to understand how couples married under the Special Marriage Act, 1954 of 1954 differ from those marrying under their own laws. There appears to be a misalignment between the goal intended by this Act and the methods taken to attain it through its provisions.
Due to the exposure in the local registration office, family members who are opposed to the union may try to halt it by pressure. In such circumstances, the candidates’ lives may be jeopardised. There have been instances of right-wing organisations opposing interfaith weddings while keeping an eye on marriage office notice boards and taking down the data of the parties in order to pressure them into abandoning the notion.
As a result, it appears that the Act’s negative features exceed its beneficial aspects. Some changes to the Act must be made in light of the problems that have been identified in order to accomplish the vision of secularism and to encourage those couples who wish to marry under this Act by providing them with legislation that is just, fair, and reasonable, and that does not bend with age or socio-cultural oppression. Only then can couples of all religions and groups be encouraged to marry under this Act, allowing the country to attain its ideal of secularism in its genuine sense.
The Supreme Court in the landmark decision of Lata Singh v. State of UP, 2006 directed the state governments to establish a framework to protect individuals marrying under the Special Marriage Act, 1954. In the current instance, the petitioner sought to have the petition filed by her furious brother dismissed since the petitioner had an intercaste marriage. As a result, the Supreme Court determined that the petitioner, at the age of 24, is of legal age and can choose her spouse.
In Kuldeep Singh Meena v. State of Rajasthan, 2018 the Rajasthan High Court confirmed this rationale, holding that the Special Marriage Act, 1954 simply requires a notice to be shown on the display board at the Marriage Officer’s office. The High Court makes it very apparent that authorities cannot impose extra obligations on spouses in addition to the conditions established in the Special Marriage Act, 1954.
The Delhi High Court in case of Pranav Kumar Mishra v. Govt. of NCT of Delhi, 2009 held that “ the Special Marriage Act, 1954 was intended to permit a special form of marriage for any Indian person professing multiple faiths or preferring a civil form of marriage. ” Unwarranted exposure of marital arrangements by two individuals authorised to solemnise it may undermine the marriage itself in certain circumstances. Due to parental meddling, it may potentially jeopardise one or both parties’ life or limb in some cases. In such circumstances, if such a method is taken by the authorities, it is wholly arbitrary and without legal power.
The question of marrying without interference came up before the Supreme Court of India in the case of Shafin Jahan v. Asokan K.M. and Others, 2018 in which the Court declared, “ The constitution respects the freedom and sovereignty which inheres in each individual. ” This involves the ability to make choices about parts of one’s personality and identity. The choice of a partner, whether within or outside of marriage, is entirely up to the person. Marriage intimacies exist within the fundamental zone of privacy, which is impenetrable. The ultimate right of a person to choose a life partner is unaffected in the least by religious considerations.
In the case of Sufiya Sultan and Ors. v. State of U.P. and Ors, 2021 the Allahabad High Court stated that, while giving notice under Section 5 it is up to the couple to request in writing to the concerned Marriage Officer if they want to publish a public notice under Section 6 and follow the objection procedures under Section 7.
In Indian society, the caste system is not a fresh notion. History demonstrates that massive empires lost their hold owing to the prevailing caste system. The beginning of which could not be determined, but the conclusion of which may be near. Individuals would be able to marry the person of their choice regardless of caste, community, religion, or cultural taboos if a competent version of the Special Marriage Act, 1954 was enacted. Bearing in mind the community’s wrath, the Special marital Marriage is meant to safeguard the couple to the greatest extent feasible. The Act has established laws for lawful marriage, invalid marriage, voidable marriage, registration procedure, reasons for divorce, support, child status, and remarriage. The goal was to develop a universal code that would minimise the gap running deep in the society and devouring it like a termite.
Regardless of all the attempts, society prefers to impose burdens and harass spouses. The need of the hour is to raise information and engage people about how the difference would only stifle progress, and that interfaith marriage is just a personal decision, not a sin.
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