Oct 15, 2020 10:03 UTC
Oct 15, 2020 at 10:03 UTC
Overview: Special Marriage Act 1954
A special marriage (prevalently known as a common marriage or an enrolled marriage) is a marriage solemnized under the Special Marriage Act, 1954. The Special Marriage Act addresses marriages of inter-caste and inter-religion. India follows the caste system’s rigid structure, and marriage between religions is still considered a taboo in the country. The Special Marriage Act, 1954, was passed by Parliament, which requires the people of India to marry regardless of their religion for a special type of marriage.
Conditions required for Special Marriage
Section 4 of SMA has given few conditions to solemnize special marriages. The conditions are:
- A person marrying under the Special Marriage Act cannot have any other spouse,
while the marriage is subsisting. Re-marriage after death of a spouse is, of course, permissible.
- The bridegroom must be at least 21 years of age and the bride at least 18 years of age. Breach of this requirement renders a special marriage null and void (apart from its being an offence under the Prohibition of Child Marriage Act).
- The parties should be mentally fit, i.e., they must be sane at the time of marriage in order to be able to decide for themselves.
- They should not be related to themselves through blood relationships, i.e. they should not be subjected to prohibited relationships that otherwise act as a ground for dissolving their marriage.
Formalities to be filled for special marriage
Section 5 provides –
When a marriage is to be performed in compliance with this Act, the parties to the marriage shall inform the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given in writing, in the manner set out in the Second Schedule.
Section 12 states that the marriage shall take place in the office of the Marriage Registrar, but the laws stipulate that it shall be solemnized at the residence of the parties upon payment of the prescribed fee. The notice of the planned marriage shall be issued to the marriage officer of the district under whose jurisdiction one of the parties has resided in the east for a period of thirty days prior to the date of the notice. Also, the marriage should be performed in the following manner: in the presence of the marriage officer and three witnesses, the parties should say to each other: “l (A), take thee (B), to be my lawful wife (or husband)”.
As per Section 16 no sacraments are required, and marriage shall be performed by the Marriage Officer appointed by the Government and notified to the Marriage Officer by the parties concerned in the prescribed manner.
The applicants, together with three witnesses, must sign a declaration in the form specified. After being satisfied that all the conditions set out in Section 15 of the Act have been met, the marriage certificate shall be registered in the Marriage Certificate Book in the manner set out in the Fifth Schedule and the parties to the marriage and three witnesses shall sign such certificate. The Marriage Officer shall enter these details in the Register maintained by him and shall make a public notice of opposition. The Marriage Officer shall enter this information in the Registry maintained by him and shall give a public notice of objection.
Following the formalization of a special marriage, a 30-day notice is issued so that objections, if any, to the proposed marriage can be addressed by the Marriage Registrar. This is provided under Section 7 of the Act which states the objection to the marriage, provided that the objections should be raised in accordance with Section 4 of the Act. The marriage is then solemnized by the Marriage Registrar in the presence of the witnesses by having all parties to sign the statutory declaration if no objections are raised. If the objections to the proposed marriage are presented, the objections must be resolved.
The marriage certificate shall be then registered in the marriage certificate book by the marriage officer at the time of the formalization of the marriage.
Annulment of Marriage
Specified under Section 24 of the Act on the petition of either party to marriage, the decree of nullity can be declared null and void on the following grounds:
- Neither side has a living spouse
- A special marriage could be nullified by the court on the basis that it has not been consummated due to the impotence of the other party.
- Unable to offer valid consent for lack of soundness of mind or mental disorder, or unfit for child reproduction
- Parties are under the age
- The Parties shall be in relation to the prohibited degree
Section 24 (1) of the Act says that the husband or wife can file a petition for judicial separation, which may be presented to the district court on the grounds:
• which are specified under sub-section (1) and (1A) of Section 27 on which a petition for divorce might have been presented
• that the order for the restoration of conjugal rights has not been complied with, and on the ground that the court is pleased with the truth of the claims contained in that petition and that there is no legal ground for which the appeal may not be granted, the judicial separation may be decreed accordingly.
Under Section 24 (2) when an order for judicial separation is passed, the parties are no longer obligated to cohabit with each other, even if the formal bond of marriage persists. The basis for divorce is the non-resumption of cohabitation for at least one year after such a decree.
In order to end a marriage, divorce is filed by the couples, in order to return to the status of being single and have the freedom to remarry.
Section 27 of the Act provides grounds on which a divorce petition can be filed:
- Adultery: Adultery is a matrimonial crime in which a married individual and an individual of opposite gender, other than husband or wife, have consensual sexual intercourse during the period of marriage.
Courts generally require very strong evidence before holding that a spouse has committed adultery. Of course, direct evidence of adultery would be rarely forthcoming, and it becomes necessary to give evidence of intimate association, romantic letters, frequent meetings and so on.
Generally, the courts need very clear evidence before holding that a partner has committed adultery. Surely, clear evidence of adultery has become hard to find, and it becomes important to provide evidence of intimate association, romantic letters, regular meetings, and so on. In the case of Sari v. Kalyan, it was held that adultery may be proven by predominance of proof and need not be proved beyond reasonable doubt as it is difficult to proof the act of adultery by solid evidence, so circumstantial evidence would have to be adequate.
- Cruelty: From the day marriage ceremony, the applicant must have been cruelly handled by the respondent. The word ‘cruelty’ was not described in the Act and could be used as such a broad definition. So, the defined the legal role of cruelty in divorce proceedings given in Russell v. Russell , has been followed. The legal definition of cruelty is generally defined as an action of a nature that has caused a risk to life, limb or health (physical or mental) or has led to a rational apprehension of that threat.
- The respondent was suffering from venereal disease.
- Desertion: the respondent left the applicant for a continuous period of not less than two years.
- The respondent suffered from an incurable form of leprosy.
- Death presumption: the respondent has not heard of being alive for more than seven years.
- Respondents shall be sentenced to prison for seven years or more for any offence.
- The respondent was incurably of an unsound mind.
- The wife can also be divorced on the ground that there has been no resumption of cohabitation for one year or more following the implementation of a decree or a maintenance order.
- The respondent-husband was convicted of crimes such as rape or outrage of the modesty of any person.
- A married couple can also get divorced through mutual consent as mentioned under Section 28 of the Act.
It is to be noted that as stipulated in Section 29 of the Act, a married couple cannot get divorced during the 1st year of their marriage,
Jurisdiction of Courts
The court competent to grant divorce and matrimonial reliefs are:
(a) The district court or (in cities having City Civil Court) the City Civil Court.
(b) Any court subordinate to the district court invested by the State Government with
jurisdiction under the Act.
According to Section 30 an individual whose marriage was dissolved by decree under the Special Marriage Act of 1954 may remarry after the period of appeal against the decree has expired. If an appeal has already been lodged, the party cannot re-marry until the appeal has been resolved.
Maintenance of Spouses (Section 36 and Section 38)
Where, in any proceeding under Chapter V or VI, it appears to the district court that the wife does not have sufficient independent income to support her and the required costs of the proceeding, she may, on her application order the husband to pay the costs of the proceeding to her and, during the proceeding, on a weekly or monthly basis, such amount as having regard to the income of the husbands, it may appear to be reasonable. But, provided that the application for payment be disposed of within sixty days from the date of service of notice on the husband.
A court authorized to grant alimony relief under the Act shall be allowed to grant maintenance (interim or permanent) in favor of the wife and against the husband for amounts that the court finds fair in the circumstances. Such an order may be handed down by the Court, if the action alleged is for annulment of marriage, restoration of marital rights, judicial separation or divorce. The economical and financial needs of the parties and other circumstances of the case filled are considered by the court.
The amount of maintenance shall be the sole discretion of the Court of Justice. In determining the amount of maintenance, the court shall take due account of the following considerations, namely:
• The equal choice of the applicant
• The role and status of the parties concerned
• If the applicant lives separately if the applicant is justified in doing so
• The price of the estate of the claimant and any revenue obtained from that property or from the revenue of the claimant or from any other source
In case of re- marriage: An order for maintenance in favor of a party can be rescinded by-the court if it is shown that party has re-married or is leading an immoral life.
Custody and Legitimacy of Children
Section 26 provides the conditions of legitimacy of the children born in void and voidable marriages i.e. born before the marriage has been nullified by a decree.
Any offspring of an invalid marriage, and indeed any offspring of an invalid marriage born or conceived before a nullity declaration is made, shall be considered to be a legitimate child of the parties, although that child shall not have the right to the property of any other person as such other than the parents.
The court nullifies a marriage if:
(a) it is bigamous
(b) anyone of the party is of unsound mind or has any disorder,
(c) the boy is below the age of 21 and the girl is below the age of 18
Section 38 of the act approves the custody of the child if both parents belong to different religions or have taken part in court marriages. Under this Act, the court may, at any time, issue temporary orders, judgments, amendments, etc. relating to the preservation of the child and may dispose of the outstanding decree within 60 days from the date of operation of the notification.
The inter-caste and inter-religion marriage are dealt by the Special Marriage Act, 1954 in India. It is known that marriages in India are considered sacred, spiritual, and referred to as a ‘holy union’. Religion and rank have always been given importance by the citizens of India and it is an unsaid social perception that inter-caste and inter-religion marriages are a sin. If anyone married a person from other caste, then they are often subjected to murder, excommunication and violence to protect the family’s name in the society and caste. The Parliament therefore, brought in the Special Marriage Act of 1954 for citizens of India and for every single Indian national of outside nations, regardless of rank or religion. The Act provides citizens with provisions in cases of the procedure for inter-caste and inter-religion marriages, with divorce of such marriages, with alimony, legitimacy and custody of the child and more such provisions to help such marriages.