Special Marriage Act

Special Marriage Act

Special Marriage Act

The Special Marriage Act was drafted into the Indian legal system in the year 1954 as one of independent India’s most prominent secular measures. The Act was designed to be a legislation that governs marriages which couldn’t be solemnized under the various religious customs. The Act is applicable to all Indian citizens, whether residing in India or abroad. The State of Jammu and Kashmir is excluded under the ambit of this Act, though residents domiciled in other states but residing in Jammu and Kashmir would qualify for these provisions.

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 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 a marriage between them, the marriage can be solemnized under this Act.

Note: Prohibited relationship refers to incest and marriages between first cousins and certain relations by marriage.

Notice of Proposed Marriage

Any couple wishing to avail the fruits 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.

Period of Objection

Any objections to the marriage, with respect to age, capacity to consent, incest, etc, may be addressed to the Marriage Officer within 30 days of the publication of the notice. In case of any objections, the Marriage Officer is mandated to conduct an inquiry into its validity within a 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.

Powers of Enquiry

The marriage officers are vested with the following rights on receiving an objection:

  • Summoning and enforcing the attendance of witnesses.
  • Examining the witnesses on oath.
  • Demanding the production of documents.
  • Demanding the evidence on affidavits.
  • Issuing of commissions for the scrutinization of witnesses.

Unreasonable Objections

If the Marriage Officer is of the opinion that the objection received by him/her is not reasonable and isn’t made in good faith, the person who made the objection could be on the receiving end of objective costs of up to Rs. 1,000. The sum received for this purpose would be awarded to the parties of the proposed marriage.

Objections in Jammu and Kashmir

Any objections with respect to a proposed marriage made in the State of Jammu and Kashmir will be addressed to the Central Government by the respective Marriage Officer. The Central Government inspects the case on its own terms and conveys its decision to the Marriage Officer, who will then implement the decision ordained by the governing body.

Solemnization of Marriage

The marriage is solemnized either at the office of the respective Marriage Officer or some other places designated for this purpose. As a ritual of legitimacy, every party is obligated to assent to the marriage in the presence of the Marriage Officer and the three witnesses.

Registration of Marriage Celebrated in Other Forms

Any marriage celebrated, with the exception of the ones solemnized under these provisions, could be registered under Chapter III of the Act by a Marriage Officer, subject to the condition that a ceremony of marriage was conducted for the parties under any of the Acts and the couple has been leading a marital life since then. Apart from this, the conditions specified in this Act for the conduct of marriage shall apply.

Implications on Family Membership

Any member of an undivided family professing the religion of Hinduism, Buddhism, Sikhism or Jainism would be forced to sever from such family, i.e. the family member married under this Act wouldn’t be considered a part of the family hierarchy after the cessation of marriage proceedings under this Act.

Succession to Property

The rules pertaining to 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 pertaining to 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.

Judicial Separation

A judicial separation is a de facto separation of a married couple which has no bearing on the legality of the marriage. If the couple wishes to involve themselves in such a marital affair, a petition for this purpose must be lodged to the District Court by either the husband or wife.  The court will determine its ruling based on the validity of the petition.

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 by means of 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.

Legitimacy of Children

The laws concerning marriage describe legitimate children as 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.

Grounds of Divorce

If any of the party 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 a period of at least two years.
  • The respondent is facing an imprisonment for seven years or more.
  • 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 a period of 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

Re-marriage of divorced persons can be enacted in the absence of any right of appeal against the decree.

Alimony

If it appears to the District Court that the wife of a divorced, judicially separated or void marriage does not receive any income that fulfills her requirements, it may direct the husband to remit the expenses of her proceedings by giving due consideration to the income of the husband.

Penalty for the Marriage Officer

Any marriage officer who willfully solemnizes a marriage under these provisions without maintaining compliance with the provisions of this Act could be incarcerated for a period of one year and/or imposed with a penalty of Rs. 500.

For Further Reading:

The Hindu Marriage Act

The Indian Christian Marriage Act

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Post by Sreeram Viswanath

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