Special Marriage Act

Introduction

India is known as the land of culture and tradition and is one of the oldest civilizations in the world. Indian culture is rich and unique in its ways. In India manners and etiquettes, the style of communication, values and beliefs are vital components of the culture.  This means something like a Marriage that holds a lot of meaning in individual life also comes with a lot of rituals and customs to perform. this diverse culture also comes with religious beliefs and practices that are practised by people but sometimes becomes huddle in getting married in inter-caste and inter-religion. Here where laws come in to help people who want to get married in different religions. This act is known as the Special Marriage Act, 1954. Unlike personal laws, the Special Marriage Act’s applicability extends to all Indian citizens regardless of their religion. Despite this act, there are other personal laws for marriage but these personal laws are only for particular religions.

This Act prevails over whole  India which especially helps youths to get married to their own choice regardless of religion barrier. The Special Marriage Act is, therefore, a special law enacted to provide for a unique form of marriage by registration wherein the parties to the marriage do not have to renounce their religion.

Notice of Proposed Marriage

Any couple wishing to avail of the perks of this Act is required to issue a notice in writing to the “Marriage Officer” of the district where at least one of the parties to the marriage has been residing for the last thirty days. The marriage is generally scheduled within three months from the date of issue of notice. The notice so received will be published in the office of the Marriage Officer by displaying it in a conspicuous place. A copy of the same must also be attached to a “Marriage Notice Book,” which could be inspected by anyone.

The recent judgment related to 30 days period notice

30-day notice period not mandatory under Special Marriage Act: Allahabad High Court

Section 5 of the Special Marriage Act, the legislation that allows solemnisation of marriages irrespective of the religion of the couple, requires parties to give a 30-day public notice of their intention to marry.

The Special Marriage Act to provide a framework for inter-caste and inter-religious marriages was originally enacted in 1872. Despite changes and versions, the 1954 law retained the Victorian-era protectionist provisions.

Justice Chaudhary took up the issue of notice under the Special Marriage Act being violative of fundamental rights when he recognised that this provision is often an impediment to inter-faith couples wanting to marry under the secular law.

The court also noted that despite the secular law for marriage, a majority of marriages in the country happen as per religious customs. It said that when marriages under personal law do not require a notice or invitation for objections, such a requirement is obsolete in secular law and cannot be forced on a couple.

APPLICABILITY

The Special Marriage Act (SMA), 1954

• It is the legislation made to validate and register interreligious and inter-caste marriages in India.
• It allows two individuals to solemnise their marriage through a civil contract.
• No religious formalities are needed to be carried out under the Act.
• This Act includes Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists marriages.
• This Act applies not only to Indian citizens who belong to different castes and religions but also to Indian nationals who live abroad.

Solemnization of Marriage

Marriage is solemnization when there is assent from both parties with three witnesses. It could be done either at the office of the respective Marriage Officer or some other place designated for this purpose. The mutual concern is important and the conditions must be fulfilled which is laid down in this act. To get the marriage to solemnize according to this act.

Conditions for marriage

Marriages under this Act are endorsed based on the following conditions:

• Neither of the parties has a living spouse.
• Neither of the parties is incapable of consenting to the marriage owing to an unsound mind.
• Neither of the parties is affected with any mental disorder which renders them unfit for marriage and the procreation of children.
• Neither of the parties is subject to constant attacks of epilepsy or insanity.
• The bridegroom and the bride have attained the age of 21 and 18 respectively.
• The parties are not within the confines of a prohibited relationship. It may be noted though that if a custom governing at least one of the parties doesn’t prohibit marriage between them, the marriage can be solemnized under this Act.

Period of objection

If there is any objection regarding the marriage in respect of age, consent of the parties or any prohibited relationship etc could be addressed within the 30 days of the publication of the notice. Inquiry Could be done by a marriage officer regarding objections within the window of 30 days. during which the marriage cannot be solemnized.  If the Marriage Officer discovers that the objection is valid and decides against the marriage of the concerned parties, the bride or groom may appeal to the district court within thirty days of such refusal. If all the concerned objections are dealt with, the bride, groom, and any three witnesses need to sign a declaration in the presence of the Marriage Officer, who would then countersign it. In the absence of any objections, the marriage will be solemnized upon the cessation of the objection period.

Grounds of Divorce

If any of the parties is seeking a divorce from a marriage, a petition for the same must be presented to the District Court either by the husband or the wife on the following grounds:

• The respondent had extramarital sexual affairs with any person after the solemnization of marriage.
• The respondent has deserted the petitioner for at least two years.
• The respondent is facing imprisonment for seven years or more. The respondent is subject to a 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 before the petition is presented.
• The respondent has treated his/her partner in a cruel manner.
• The respondent is of an unsound mind or has been suffering from any mental disorder that renders him unfit to live with the other person.

Divorce by Mutual Consent

The parties to a marriage may also present a petition for divorce to the District Court stating that they have lived separately for one year or more and found that they are not in a position to spend their life in unanimity, due to which they have mutually consented to the dissolvent of the marriage

Succession to Property

The rules about the succession of a person married under this Act is governed by the Indian Succession Act, except if the parties to the marriage belong to the religions of Hindu, Buddhist, Sikh or Jain. The provisions about the latter are covered under the Hindu Succession Act.

Restitution of Conjugal Rights

If the parties to the marriage under this provision are unreasonably withdrawn from the society of the other, the aggrieved party may file an application to the District Court for restitution of conjugal rights. The Court may decree the restitution of conjugal rights based on the validity of the petition and the relevant legal grounds.

When a Marriage Gets Void

A marriage under this Act will be deemed void if:

• Any of the obligations of the Act weren’t met by either of the parties.
• The respondent was impotent at the time of marriage.
• The marriage is consummated due to the willful refusal of the respondent to consummate it.
• The consent of either of the parties was obtained using coercion or fraud.
• The respondent was pregnant by any person other than the petitioner.

In this context, a petitioner refers to either of the party who wishes to abate his/her marriage with the other person, who is known as the respondent.

The right of the petitioner to file divorcé is affected in the event of the following circumstances:

• The petitioner was ignorant of the facts alleged.
• The proceedings were instituted within a year from the date of marriage.
• The petitioner has spent his/her marital life with the other with or without free consent.

Amount of Maintenance

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:

The position and status of the parties;

The fair preference of the claimant;

If the claimant resides separately, whether the claimant is justified in doing so;

The value of the claimant’s estate and any income derived from that property or the claimant’s income or any other source;

Any other relevant facts and circumstances.

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.

Case Laws

Maintenance defined

Maintenance requires — (i) in all cases provisions relating to food, clothes, housing, education and medical care and treatment; (ii) in the case of an unmarried daughter also the appropriate expenses and incidents of her marriage, Section 3(b), Hindu Adoption and Maintenance Act, 1956.

Maintenance should also include a residential provision. Maintenance is provided to allow the lady to live the way she was accustomed to, more or less. Therefore, the definition of maintenance must include food and clothing provision and the like, taking into account the fundamental need of a roof over the head, Mangat Mal v. Punni Devi, (1995) 6 SCC 88.

Wife defined

“Wife” Contains a woman who was divorced by or obtained divorced from her husband and not remarried, Section 125(1) Explanation (b), CrPC 1973.

“Wife” means a legally wedded wife under Section 125 CrPC and also involves a divorced wife, D. Velusamy v. D. Patchaiammal,(2010) 10 SCC 469.

Maintenance only to legally wedded wife

Only a woman who is legally married has a right to maintenance. A Hindu woman who marries a Hindu male who has a living wife is not entitled to maintenance because the marriage is void, Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, (1988) 1 SCC 530.

Maintenance to ‘previous wife’

A Muslim husband who contracts another marriage or takes a mistress is liable to pay maintenance to the previous wife who is also entitled to live separately, which is payable from the date of the other marriage. Regardless of religion, the husband can not alleviate his liability by offering to take back the wife and maintain her, Begum Subanu v. A.M. Abdul Gafoor,(1987) 2 SCC 285.

Restriction on Divorce during 1st year of the marriage

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.

Legitimacy of Children

The laws concerning marriage describe legitimate children like those who were born on account of the marriage of the couple. This distinction isn’t taken away as a consequence of a void marriage as the children continue to be legitimate, though the custodial rules may change.

Conclusion

The motive of the enactment of this Special Marriage Act is to provide freedom to young people to get married to their life partner without any impediment of religious conversion to get married to someone. As there are personal laws to help people to get married, but these personal laws only support marriage which is confined within their religion. It is where the Special Marriage Act comes for Inter-Cast marriage and Interreligious marriage without any conversion of their religion. These personal laws support the old ways of marriage which come with a lot of restrictions for a new generation of the country.

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.

Any marriage already celebrated, subject to certain conditions, may also be registered under the Special Marriage Act after giving a 30-day public notice.