JAMIA MILLLIA ISLAMIA UNIVERSITY

THE SPECIAL MARRIAGE

SUBMITTED BY
JIJO RAJ P
B.A LL.B (V Semester)
SECTION B
JAMIA MILLIA ISLAMIA

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 ACKNOWLEDGEMENT

The present work on the Special Marriage Act is an effort to throw some light on presentation
skills.
My work would not have been possible to come to light without the able guidance, supervision
and help by a number of people. I convey my heartfelt affection to all those people who helped
and supported me during the course of completion of my project.
I convey my thanks to my Professor Kahkashan Danyal for her guidance and supervision without
which I would not be able to complete this work.
I would also thank my institution, faculty members and my seniors without which the project
would have been a distant reality.

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 TABLE OF CONTENTS

1. Acknowledgement. 2

2. Introduction. 4

3. Essential Conditions. 6-7

4. Registration of Marriage. 7-9

5. Nullity of marriage and divorce. 9-12

6. Succession. 12-13

7. Positive Features. 13-14

8. Inconsistencies. 14-15

9. Conclusion. 15-16

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 INTRODUCTION
Marriage is considered to be a sacred institution in India and it is an integral part of our culture.
India is a diverse country and people from a large number of religions and cultures are residing
here. Caste and religion have a great influence in our society. Inter-caste marriage is still
considered a taboo in many places of our country. India follows a very rigid structure of the caste
system. People are expected to marry within their caste and whoever marries out of their caste and
defy the traditional barriers are shunned in the society. There are a number of honor killings
reported every day and unfortunately, they show pride in doing so. Thus, there came a grave need
for a law to safeguard the interests of those people who rose above these caste and religious divides,
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 caste and religion. It provides for a civil Marriage of two Indians, without the
need of repudiating their respective religion.

The Special Marriage Act provides for a civil or non-religious form of marriage between a man
and a woman belonging to same or different communities. The marriage under this act is popularly
known as “civil marriage” or “court marriage”. It enables individuals to get married outside of
their respective community mandates. The act provides legitimacy to inter-community and inter-
caste marriages. It provides a purely secular and non-ritualistic ceremonial marriage and rules out
caste and religious barriers to marriage. Many community based laws did not provide for inter-
caste or inter-community marriages but this rule enables individuals to get married out of their
community mandates. This act prevails not only in cases of inter-religious or inter-caste marriages
or love marriages but it is also applicable on same religion marriages. This act also offers an option
to register marriages performed as per one’s own personal laws.

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The special marriage Act provides for a civil and non-religious form of marriage between a man
and woman belonging to the same or different communities. Marriage under this act is popularly
known as “civil marriage” or “court marriage”. This Act extends 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 the Act extends who are in the State of Jammu and Kashmir.1

Under this Act, any unmarried, widowed or divorced man and woman who wishes to marry, are
above the age of 21 and 18 respectively, are not insane or chronically epileptic, and are not related
to one another by blood or by marriage in any of the ways specified in a list attached to the Act,
can approach the marriage officer (also known as registrar of marriages) of the district in which
one of them has resided for at least 30 days prior to the date on which they give notice that they
wish to be married. They have to jointly give in writing a notice that they wish to be married within
three months.

In the notice, they have to state their names, addresses and marital status. The marriage officer
then puts up the notice on a public notice board in his or her office which is normally situated in
the district court. If the man and woman concerned are not permanent residents of that district, the
marriage officer also sends a copy of the notice to the district of which they are permanent
residents, where it is similarly displayed.

Any person may raise an objection to the proposed marriage, within 30 days of the notice being
put up, on the ground that one of the conditions under the Special Marriage Act (minimum age,
single status, sanity and non-relatedness of the parties) has been violated. The objection has to be
given in writing to the marriage officer. The officer, who is also an executive magistrate, will
enquire into the objection and decide within 30 days whether or not it is valid. In the course of the
investigation, the officer has the powers, which a civil court normally has, to examine witnesses
and documents and receive evidence. If the officer upholds the objection, either party to the
intended marriage may appeal to the district court within 30 days, and the court’s decision will be
final.

If no objection is made, or the objection is overruled, the marriage can take place a month after the
notice was put up, either at the marriage officer’s office or at any other nearby place such as a

1
Chapter I, Section 1, the Special Marriage Act, 1954.

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home or public hall for an additional fee. The man and woman have each to sign a declaration that
they, are legally single, above the required marriageable age, and are not related to each other
within prohibited degrees (unless the custom of their community permits such related persons to
marry). These declarations have to be signed by three witnesses. The man and woman also have
to say to one another in the presence of the marriage officer and three witnesses, in any language
understood by both: “I, ____ take thee ____, to be my lawful wife (or husband).” In addition, the
parties may have any other form of solemnization of marriage they desire such as exchange of
garlands or rings, reading of vows or signing of contract, or any religious ceremony. If not, the
above verbal and written declarations are sufficient to constitute a marriage. The marriage officer
issues a marriage certificate signed by both parties and the three witnesses, and also enters the
same in a marriage certificate book, also signed by the parties and witnesses. This is a registered
marriage, of which written evidence exists both with the spouses and in the marriage officer’s
records.

People who are married under other laws (such as by a Hindu, Muslim or Christian ceremony)
can also, after both reach the age of 21, register their marriage under the Special Marriage Act,
after which all its provisions will apply to them. The formalities for doing so are the same as
detailed above. This enables persons married by other ceremonies to get written evidence of their
marriage, in case they fear that the legality of their marriage or legitimacy of their children is likely
to be challenged in court, say, in the case of a property dispute. If the marriage is not conducted
within three months of giving notice, a fresh application has to be filed.

ESSENTIAL CONDITIONS

Section 4 of the Special Marriage Act,1954 provide with some essential conditions which are to
be satisfied for the conduction of marriage under the Act. The essential conditions specified in this
act are as follows;

a) Neither party has a spouse living.

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 ii) though capable of giving a valid consent, has been suffering from
mental disorder of such a kind or to such an extent as to be unfit for
marriage and the procreation of children; or
c) the male has completed the age of twenty-one years and the female the age
of eighteen years.
d) the parties are not within the degrees of prohibited relationship:
Provided that where a custom governing at least one of the parties permits
of a marriage between them, such marriage may be solemnized,
notwithstanding that they are within the degrees of prohibited relationship:
and;
e) where the marriage is solemnized in the State of Jammu and Kashmir, both
parties are citizens of India domiciled in the territories to which this Act
extends.

So, the essential conditions specified under the section 4 of The Special Marriage Act,1954 for the
solemnization marriage under this Act are, Firstly, neither party should have a spouse living at the
time of the marriage.2 Secondly, the physical and mental capacity of the both the parties should be
as per the section requires.3 Thirdly, the age of the parties i.e. the male has completed the age of
twenty-one and the female has complete the age of eighteen. 4 Fourthly, the parties are not within
the degree of prohibited relationship provided that custom governing one of the parties permits
such a marriage between them.5

REGISTRATION OF MARRIAGE

The Special Marriage Act, 1954 requires certain preliminaries to the solemnization of marriage.
The marriage under this Act is essentially civil marriage and is required to complete the civil
formalities. Parties who intended to get married under the Special Marriage Act shall give a notice
in writing in the specified form to the Marriage Officer of the district in which at least one of the

2
Chapter II, Section 4 (a), the Special Marriage Act, 1954.
3
Chapter II, Section 4 (b), the Special Marriage Act, 1954.
4
Chapter II, Section 4 (c), the Special Marriage Act, 1954.
5
Chapter II, Section 4 (d), the Special Marriage Act, 1954.

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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.6

The Marriage Officer is required to keep all the notices with the record of his office and to enter a
true copy of every such notice in Marriage Notice Book and the Book is open to all for inspection.7
The notice of marriage is also to be published by the Marriage Officer.8 Before the expiration of
thirty days from the date on which the notice was published any person can object to the marriage
that it would contravene any of the conditions mentioned in section 4 of the act.9 After the expiry
of thirty days from the date on which the notice was published the marriage may be solemnized.
Before the marriage is solemnized the parties and three witnesses shall sign a declaration in the
form give below, and the declaration shall be counter signed by the Marriage Officer.10Thus the
marriage is solemnized after completing all the steps mentioned above.

Section 13 of the Special Marriage Act, 1954 provides compulsory registration of the marriage
without which a marriage cannot be regarded as valid. Section 13 states that after the marriage has
been solemnized the Marriage Officer shall enter a certificate in the Marriage Certificate Book and
this shall be signed by the parties to the marriage and the three witnesses and this shall be
conclusive evidence of the marriage. Section 15 provides registration of marriages celebrated in
other forms. For registration of marriage the parties have completed the age of twenty-one years
at the time of registration.11 Thus creating an age barrier for the registration of marriage.

The unique feature of the Special Marriage Act, 1954 is that any marriage solemnized in any other
form under any other law, Indian or foreigner, between any two persons may be registered under
the Act12 on the fulfillment of certain conditions.13 The conditions are as follows;

1. a ceremony of marriage has been performed between the parties and

6
Chapter II, Section 5, the Special Marriage Act, 1954.
7
Chapter II, Section 6(1), the Special Marriage Act, 1954.
8
Chapter II, Section 6(2), the Special Marriage Act, 1954.
9
Chapter II, Section 7, the Special Marriage Act, 1954.
10
Chapter II, Section 11, the Special Marriage Act, 1954.
11
Chapter II, Section 15(d), the Special Marriage Act, 1954
12
Chapter III, the Special Marriage Act, 1954.

13
Chapter III, Section 15, the Special Marriage Act, 1954.

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 2. neither party has at the time of registration more than one spouse
living;
3. neither party is an idiot or a lunatic at the time of registration;
4. the parties have completed the age of twenty-one year at the time of
registration;
5. the parties are not within the degrees of prohibited relationship;
6. the parties have been residing within the district of the Marriage
Officer for a period of not less than thirty days immediately preceding
the date on which the application is made to him for registration of the
marriage.

The compulsory registration of marriage would check child marriages or non – age marriages,
bigamous marriages and fraudulent marriages. Registration must be made compulsory to avoid
alleged marriages and to prove status of women and the legitimacy of children born out of that
wedlock. Because of non – registration of marriage, a woman who has given herself physically,
emotionally and otherwise gains nothing but stands to lose everything if the marriage is denied by
the men. The children born out of the alleged wedlock also go through the mental trauma because
of their doubt on his paternity. This assault on children’s sensibilities can be easily avoided if there
is certificate of registration of marriage between his mother and father.

NULLITY OF MARRIAGE AND DIVORCE

Chapter IV of the Special Marriage Act, 1954 deals with nullity of marriage and divorce. Section
24 deals with void marriages while section 25 deals with voidable marriages. Section 27 describes
the grounds for divorce and section 28 talks about divorce by mutual consent.

VOID MARRIAGES

Section 24 explains what marriages are void marriages. According to section 24,

(1) Any marriage solemnized under this Act shall be null and void (and may, on a petition
presented by either party thereto against the other party, be so declared) by a decree of nullity
if,

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 (i) any of the conditions specified in Clauses (a), (b), (c) and (d) of
Sec. 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
the Act within the meaning of Sec. 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 Sec. 15.

Provided that no such declaration shall be made in any case where an appeal has been preferred
under Sec.17 and the decision of the District Court has become final.

VOIDABLE MARRIGES

Section 25 of the act deals with voidable marriages. According to Section 25,

Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of
nullity, if-

(i) the marriage has not been consummated owing to the willful refusal
of the respondent to consummate the marriage; or
(ii) the respondent was at 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 Cl.(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) that proceedings were instituted within a year from the date of the
marriage; and
(c) the marital intercourse with the consent of the petitioner has not taken
place since the discovery by the petitioner of existence of the grounds a
decree.

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Provided further that in the case specified in Cl.(iii), the Court shall not grant a decree if,

(a) proceedings have not been instituted within one year after the coercion
had 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.

DIVORCE

Section 27 of the act enshrines the ground for divorce. Section 27 of the Act reads as,

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce
may be presented to the District Court either by the husband or the wife on the ground that
the respondent-
(a) has, after the solemnization of the marriage had voluntary sexual
intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two
years immediately preceding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more for
an offence as defined in the Indian Penal Code (45 of 1860); or
(d) has since the solemnization of the marriage treated the petitioner with
cruelty; or
(e) has been incurably of unsound mind, or has been suffering
continuously or intermittently from mental disorder of such a kind,
and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent.
(f) has been suffering from venereal disease in a communicable form; or
(g) has been suffering from leprosy, the disease not having been
contracted from the petitioner; or
(h) has not been heard of as being alive for a period of seven years or
more by those persons who would naturally have heard of the
respondent if the respondent had been alive;

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In addition, a wife can also sue for divorce on the grounds that the husband has, after marriage,
committed rape, sodomy or bestialityi; or that she is living apart from him, has obtained a court
order for payment of maintenance by him to her, and has, since then, continued to live apart for a
year or more.14

Section 28 of the Act deals with Divorce by Mutual Consent. According to section 28,

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for
divorce may be presented to the District Court by both the parties together on the ground
that they have been living separately for a period of one year or more, that they have not
been able to live together and that they have mutually agreed that the marriage should be
dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the meantime, the District
Court shall, on being satisfied, after hearing the parties and after making such inquiry as
it thinks fit, that a marriage has been solemnized under this Act and that the averments in
the petition are true, pass a decree declaring the marriage to be dissolved with effect from
the date of the decree.

SUCCESSION

Two Hindus, Sikhs, Buddhists or Jains who marry under the Special Marriage Act will continue
to be governed by the Hindu Succession Act in matters relating to inheritance of property. If a
Hindu, Buddhist, Sikh or Jain marries a member of any other community under this Act, the former
will be presumed to be separated from the Hindu undivided family. However, if two members of
any other community, for example, two Muslims, marry under this Act, they will be governed in
matters of inheritance and succession by the Indian Succession Act and not by the laws of their
own community, for example, by Muslim law.

The Indian Succession Act does not make any distinction between ancestral property and self-
acquired property as in the Hindu Succession Act, and the former gives the daughter equal
inheritance rights with the son. Thus, Hindus (Buddhists, Sikhs and Jains are defined as Hindus

14
Chapter IV, Section 27(1-A) (i). the special marriage Act, 1954.

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for succession purposes) are the only community exempted from the clause that provides for those
married under The Special Marriage Act to be governed by the Indian Succession Act in matters
of succession. Therefore, for Hindus who marry under the Special Marriage Act, it is essential to
make a will if they wish to leave property equitably to spouse, sons and daughters.

POSITIVE FEATURES

Marriage under the Special Marriage Act automatically ensures registration of marriage. It
provides one with indisputable written evidence of marriage, to establish one’s legal status and
that of one’s children. Such evidence is often especially needed by the woman in order to claim
inheritance rights and maintenance rights in the event of separation, or to sue for bigamy. Marriage
merely by religious ceremony is relatively more difficult to prove in a court of law, especially if
years have passed, the witnesses have died and the other spouse denies the legality of the marriage.
Therefore, it is desirable to register one’s marriage under the Special Marriage Act in addition to
whatever other marriage ceremony or contract, religious or otherwise, one may wish to perform.

As far as divorce and related provisions are concerned, the Hindu Marriage Act has the same
provisions, so two Hindus do not benefit substantially in this regard by marrying under the Special
Marriage Act. However, others, such as Muslims and Christians, can take advantage of the Act’s
provisions. If two Muslims marry under this Act, the man cannot remarry or get a verbal divorce,
even though he remains a Muslim. Similarly, two Christians who wish to divorce and cannot do
so due to the archaic provisions of the Indian Christian law, can register their marriage under the
Special Marriage Act, and subsequently divorce by mutual consent. Of course, this can happen
only if both spouses are willing to be governed by the provisions of the Special Marriage Act.

In matters of succession, most Christians gain nothing by marrying under the Act as they are
already governed by the Indian Succession Act, Muslims can choose to be governed by the Indian
Succession Act by marrying under this Act. Hindus, however, are not allowed this choice, if they
marry a Hindu under this Act. The only way they are allowed to opt out of the Hindu succession
law is by marrying a member of another religious community surely a somewhat absurd position.

The Special Marriage Act allows members of different religions to marry without renouncing or
changing their respective religions. Marriage under the Special Marriage Act can be more easily
performed by people whose marriage is, for whatever reason, opposed by their families or

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communities. Marriage under the Special Marriage Act has the advantage of being very simple,
easily understandable by both parties and flexible. The parties can devise their own ceremony or
contract in addition to that laid down in the Act. The formalities laid down by the Act are equal
for both man and woman. The woman does not have to make any special vow of obedience or the
man of protection, nor does either have to make any denunciatory gestures, as is the case in certain
other marriage ceremonies.

INCONSISTENCIES

The Special Marriage Act is usually resorted to by couples whose marriage is disapproved of by
their families. These are often inter-caste, inter-regional, or inter-religion marriages, and it was to
facilitate them that the Act was passed. However, many of its provisions are inconsistent with its
objectives.

1) Section 5 of the Act is the first hurdle which deals with the notice of intended parties requiring
at least one of them must have resided in the district for a period of not less than 30 days
immediately preceding the date on which such notice is given to the Marriage Office of the district.

2) Section 6 requires the Marriage Office to make copies of all notices open for inspection at all
reasonable times, without fee, by any person desirous of inspecting the same, and to publish every
notice by affixing a copy at some conspicuous place in the office. If either of the parties to an
intend marriage is not a permanent resident in the district in which the notice has been given, then
the Marriage officer of that district has to send the notice to Marriage Officer of the district in
which the parties may have permanent residence and that officer, in turn, has to publicize it.

3) Section 7 enables any person before the expiry of 30 days from the date on which such notice
has been published, to object to the marriage on the grounds that it will contravene one or more of
the conditions specified in section 4 viz neither party has a spouse living, neither party is incapable
of giving a valid consent in consequence of unsoundness of mind, the requirement of minimum
age and that they are not within the prohibited relationship.

4) Sections 8 requires the Marriage Officer to inquire into the objection and satisfy himself that it
does not prevent the solemnization of the marriage. If the objection is upheld within 30 days, either

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party to the intended marriage can appeal to the district court, whose decision shall be final.

5) Section 19 is punitive in character. It says that the marriage solemnized under this Act of any
member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion shall be
deemed to effect his severance from such family.

These provisions are clearly in breach of the parties right to privacy as most of the couple who
get married under these Act because of their family is being opposed to their marriage. It may
happen that those who object the marriage intend to harass the couple to be married and even force
them to retract from their intended marriage, hence these provisions are open invitations to harass
the parties.

In the case of Pranav Kumar Mishra v. Govt. of NCT, Delhi , Justice Ravindra Bhat observed
that “the special marriage Act was enacted to enable a special form of marriage for any Indian
national professing different faiths or desiring a civil form of marriage. The unwarranted disclosure
of matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize
the marriage itself. In certain instances, it may even endanger the life or limb of one or the other
party due to parental interference. In such circumstances, if such a procedure is being adopted by
the authorities, it is completely whimsical and without authority of law.”

CONCLUSION

In a diverse country like India where people follows different religious beliefs, customs and caste,
an act like the Special Marriage Act has a great significance. It allows a person to marry another
belonging to another caste or religion without renouncing their respective religion. It rules out
caste and religious barriers to marriage. It gives legality to inter-caste and inter-religious marriages.
It helps in avoiding caste and religious barriers to such marriages and will help in regulating caste
and religion based inequalities.

Special Marriage Act also ensures the compulsory registration of marriages. The compulsory
registration of marriage would check child marriages or non – age marriages, bigamous marriages
and fraudulent marriages. It also helps to prove status of women and the legitimacy of children
born out of that wedlock.

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The Special Marriage Act is usually resorted to by couples whose marriage is disapproved of by
their families. These are often inter-caste, inter-regional, or inter-religion marriages, and it was to
facilitate them that the Act was passed. However, many of its provisions are inconsistent with its
objectives. Section 5 of this Act is the first hurdle which deals with the notice of intended parties
requiring at least one of them must have resided in the district for a period of not less than 30 days
immediately preceding the date on which such notice is given to the Marriage Office of the district.

Some provisions of this act are clearly in breach of the parties right to privacy as most of the couple
who get married under these Act because of their family is being opposed to their marriage. It may
happen that those who object the marriage intend to harass the couple to be married and even force
them to retract from their intended marriage, hence these provisions are open invitations to harass
the parties.

The legislatures should make necessary amendments to which helps to safeguard the interests of
those people who rose above these caste and religious divides and marry a person belonging to
another caste or religion.

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