By Nihit Nagpal and Devika Mehra
Introduction
India is a diverse country, home to many languages, cultures, customs and religions. To protect an individual’s right to practice his/her own religion[1], personal laws were enacted like Hindu Marriage Act 1955, the Indian Christian Marriage Act 1872, Muslim Personal Law (Shariat) Application Act, 1937 and the Parsi Marriage and Divorce Act 1936 for solemnization of Marriage and other related matters. Though these acts allow a person to get married by his own customs but how would an inter-religion be solemnized and how do these marriages be registered and recognized before government. Therefore, Special Marriage Act 1954 was enacted to provide a special form of marriage in these cases and for the registration of such and certain other marriages and for divorce.
Registration of Marriage under Special Marriage Act
A marriage between any two persons will be solemnized in this Act under Section 4, if at the time of the marriage the following conditions are fulfilled:-
- Neither party has a living spouse;
- Neither party is of unsound mind or is suffering from mental disorder which makes him unfit for marriage and procreation of children or has been subject to recurrent attacks of insanity.
- The male has completed the age of 21 years and the female the age of 18 years; and
- The parties are not within the degrees of prohibited relationship.[2]
Before the solemnization of marriage, the parties to the marriage are to give notice in writing to 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.[3]
Marriages solemnized under the Special Marriage Act and marriages that fall outside its scope i.e. solemnized under different personal law, are registered under Section 15 of the Act. Provided that a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since, and the conditions of Section 4 of the Act are fulfilled. Furthermore, the parties should 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.[4] The Hon’ble Kerala High Court[5], observed that Section 5 of the Special Marriage Act requires one of the intending spouses to have resided within the territorial limits of the jurisdictional Marriage Officer for at least 30 days before submitting the notice of intended marriage. Thereafter, the intending spouses have to wait for another 30 days to solemnize the marriage as per Section 4. Thus, it is pertinent to engage the attention of law makers on whether for the larger number of youths residing and employed out of India and coming to their native place only for short vacations and marriages conducted during the short holidays the abovementioned waiting period is essential or not.
According to Section 6 of the Act, after the marriage has been solemnized, the Marriage Officer shall enter a certificate in a book called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses. This certificate will be conclusive evidence of the fact that a marriage under this Act has been solemnized.[6]
Divorce under Special Marriage Act
Similar to all personal laws, Special Marriage Act has provisions for Divorce and the parties registered under this act can file for the same under Section 27, which states that a petition for divorce can be presented by either by the husband or the wife on the grounds of ―
- The respondent had voluntary sexual intercourse with any person other than his or her spouse, after the solemnization of the marriage.
- After the solemnization of the marriage, desertion of petitioner for a continuous period of at least 2 years immediately before filing of the petition.
- The respondent is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code.
- The respondent has since the solemnization of the marriage treated the petitioner with cruelty.
- The respondent 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.
- The respondent has been suffering from venereal disease in a communicable form.
- The respondent 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.
A wife may also present a petition for divorce to the district court on the ground –
- That after the solemnization of their marriage, her husband has been found guilty of the offence of rape, sodomy or bestiality or
- A decree or order has been passed against the husband awarding maintenance to the wife and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.
The Hon’ble Supreme Court[7] observed that under Section 27 of the Special Marriage Act, the party to a marriage has been given the right to obtain divorce if the other party to whom he or she was married was suffering front venereal disease in a communicable form. Therefore, it is person’s moral and legal duty to inform the woman with whom the marriage is proposed that he was/is not physically healthy and that he was/is suffering from a disease which was likely to be communicated to her.
The Special Marriage Act also takes a progressive step, keeping in mind the issues of unwanted litigation and overburdened Courts, by including a Mutual Divorce provision under Section 28, which states that 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, and that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved.
No-Fault Divorce
The concept of No Fault Divorce is an upcoming one in Indian Law that has helped ease the process of divorce laws in India. The concept states that marriages could end not because of any fault of either partner, but simply due to irreconcilable differences in the marriage.[8] Even though there is no specific legislature for this concept the courts have begun to recognize this concept as a valid ground for divorce in India.[9]
Conclusion
The Special Marriage Act’s distinguishing feature is its acceptance of all kinds’ marriages to be registered and certified under the act, whether such marriages be inter-caste and inter-religion without the perquisite of change of their religion. The Hon’ble Kerala High Court[10] observed the same and held that in Rule 6 of the Kerala Registration of Marriages (Common) Rules, 2008 the only condition of registration of marriages is the solemnization of the same and the religion is not a consideration for registration of marriages.
Furthermore, the most recent question that has been raised with regards to Special Marriage Act is that whether same-sex marriages can be recognized and registered under the Act, the Hon’ble Supreme Court has transferred such similar petitions to itself. Therefore, day is not far where the Special Marriage Act would be truly be inclusive, making no distinctions based on caste, religion, or sexual orientation.
[1] Article 25 of the Constitution of India
[2] Section 4 of the Special Marriage Act 1954
[3] Section 5 of the Special Marriage Act 1954
[4] Section 15 of the Special Marriage Act 1954
[5] Bijy Paul vs The Marriage Officer and Ors., 2023 LiveLaw (Ker) 49
[6] Section 13 of the Special Marriage Act 1954
[7] Mr. ‘X’ vs Hospital ‘Z’, Appeal (civil) 4641 of 1998
[8] Naveen Kohli vs Neelu Kohli AIR 2006 SC 1675
[9] Sivasankaran vs Santhimeenal 2021 SCC OnLine SC 702
[10] Lalan P.R. & Anr. vs Chief Registrar General of Marriages (Common) & Anr., 2022 LiveLaw (Ker) 520
Dhruvil Singh Rathore, Intern at S.S. Rana & Co. has assisted in the research of this article.
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