A brief analysis of The Special Marriage Act, 1954

India follows a very rigid caste system. People are expected to marry within their caste. In some places in India, whoever marries out of their caste and deny their traditions are shunned by the society. Thus, there came a grave need for a law to safeguard the interests of those people who rose above these caste and religious divides, in order to marry for love. So, the Parliament enacted The Special Marriage Act, 1954 which provides for a special form of marriage for the people of India and all Indian nationals in foreign countries,  irrespective of the religion or faith followed by either party.

What are the conditions for a valid marriage under this Act? Who are governed by this Act? What is the procedure for solemnization and registration of marriage under this Act? What are the grounds for divorce under this Act? These are some of the questions that this write-up aims to answer.

 

Q: Who are governed by this Act?

A: Any person in India and all Indian nationals in foreign countries

Q: What are the conditions for a valid marriage under this Act?

A: 

  1. Any two persons belonging to different religions may marry under this Act without changing their religions.
  2. Neither party should have a spouse living at the time of marriage. Widow, widower and a divorcee may exchange wedding vows under this Act.
  3. Neither party should be incapable of giving a valid consent in consequence of unsoundness of mind.
  4. Neither party should be suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children.
  5.  Neither party should be suffering from incurable insanity.
  6. Parties should not be within degrees of prohibited relationship.
  7. Age: Bridegroom: 21 years &Bride: 18 years.

Q: What is the procedure for solemnization and registration of marriage under this Act?

A:  

  1. No religious ceremonies are required.
  2.  The marriage is solemnized a by Marriage Officer appointed by the Government.
  3.  Parties to the marriages shall give notice to the Marriage Officer in the prescribed manner.
  4.  Marriage Officer enters this information in the Register maintained by him and a public notice of this information is given by the Marriage Officer.
  5.  The Marriage is to be performed after 30 days of this public notice and before expiry of two months from issue of notice.
  6.  Before marriage the applicants and three witnesses shall sign a declaration in the form specified.
  7.  Marriage shall not be complete and binding unless each party says to the other in presence of Marriage Officer and three witnesses “I (A) take thee (B) to be my lawful wife/husband (in any language understood by the parties).”
  8.  The marriage is thus completed and recorded in a book kept for that purpose. The entry is signed by the applicants and the witnesses.

Q: What are the grounds for divorce under this Act?

A: Parties may belong to different religions when they perform marriage under this Act, but they will have similar ground for getting a divorce, as mentioned below:

  1.  Respondent had voluntary sexual intercourse with any person other than the spouse after the marriage.
  2.  Respondent has deserted the petitioner for a continuous period of not less than two years.
  3.  Respondent being sentenced to imprisonment for seven years or more for any offence.
  4.  Respondent has treated the petitioner with cruelty.
  5.  Respondent has been incurably of unsound mind.
  6.  Respondent has been suffering from venereal disease.
  7.  Respondent has been suffering from incurable form of leprosy.
  8.  Respondent not heard of as being alive for a period of more than seven years.
  9.  The respondent-husband has been convicted for rape or outraging modesty of any female.
  10.  Wife may also get divorce on the ground that there was no resumption of cohabitation for period of one year or more since passing of decree or order for maintenance.

Q: Question of legitimacy of children

A: A marriage is said to be void, where the conditions mentioned in point no.4 of conditions to be fulfilled for a valid marriage are not met with, and the children from such marriages who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act as mentioned in Section 26 of the Act.

Q: What about Succession Rights?

A: Another important point to be noted about Special Marriage Act is that, the succession to property of persons married under this Act or any marriage registered under this Act and that of their children will be governed by the Indian Succession Act. But, if the parties to the marriage belong to Hindu, Buddhist, Sikh or Jain religions, then the succession to their property will be governed by the Hindu Succession Act.

Q: Is there a restriction on filing for divorce in the first year of marriage?

A: Any person married under the Special Marriage Act  must know about this important provision of the Act. The parties cannot petition for divorce to the District court unless and until one year has expired from the date of their marriage as registered in the marriage books. But, in cases where the court is of the opinion that the petitioner has suffered exceptional hardships or the respondent has shown exceptional depravity on their part, a petition for divorce would be maintained, but if any misrepresentation is found 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 the order to take effect only after the expiry of 1 year, as mentioned in Section 29 of the Act.

Q: Can the divorced couple remarry?

A: Yes. Talking about the option of remarriage available to marriages of persons registered under the Special Marriage Act, one important thing that has to be paid attention to is that, where the marriage has been dissolved and there is no right of appeal available, or there is no petition made for it in the required period, or appeal if presented is dismissed, then the parties may remarry, as provided by the Act.

 

This article has been authored by Anurag Mishra, 1st Year, Symbiosis Law School, Hyderabad.

 

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