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SPECIAL MARRIAGE ACT, 1954
43 of 1954
9th October, 1954
STATEMENT OF OBJECTS AND REASONS "This Bill revises and seeks to replace the Special Marriage Act of 1872so as to provide a special form of marriage which can be taken advantage of by any person in India and by all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess. The parties may observe any ceremonies for the solemnization of their marriage, but certain formalities are prescribed before the marriage can be registered by the Marriage Officers. For the benefit of Indian citizens abroad, the Bill provides for the appointment of Diplomatic and Consular Officers as Marriage Officers for solemnizing and registering marriages between citizens of India in a foreign country. 2. Provision is also sought to be made for permitting persons who are already married under other forms of marriage to register their marriages under this Act and thereby avail themselves of these provisions. 3. The bill is drafted generally on the lines of the existing Special Marriage Act of 1872and the notes on clauses attached hereto explain some of the changes made in the Bill in greater detail."-Gaz. of India, 28-7-1952, Pt. II-section 2, Ext.. p. 41. Amending Act 32 of 1963.- Under the Special Marriage Act, 1954, marriage can lake place between en two persons who are not within the degrees of prohibited relationship. Ordinarily, such marriage takes place between persons professing different faiths or belonging to different communities or groups and the question of prohibited degrees between the parties does not normally arise. There may however, be some cases where marriage is solemnized under the Special Marriage Act between persons professing same faith and belonging to the same group or family. In such a case, marriage cannot take place between the parties who are within the degrees of prohibited relationship. 2. Under the Hindu Law also, marriage is normally prohibited between persons who are within the degrees of prohibited relationship or who are sapindas of each other. But in some parts of India and in. some tribes and communities, there is a well-recognised custom which permits marriage between persons within the degree of prohibited relationship. In the Hindu Marriage Act, 1955, a specific provision was, therefore, inserted to save such custom. In the Special Marriage Act, however, marriage between persons within the degrees of prohibited relationship is totally prohibited and no exception has been made on grounds of custom or usage as in the Hindu Marriage Act. It is, therefore, considered necessary that a specific provision should be inserted in the Special Marriage Act to permit marriage between persons within the degrees of prohibited relationship, if there is a well-recognised custom applicable to one of the parties under which such marriage is permissible, hence, the Bill-Gaz. of Ind., 7-8-1962, Pt. II-section 2, Hxt., p. 603. Amending Act 68 of 1976-The Hindu Marriage Act, 1955 (25 of 1955), became law on the l8th May, 19S5. It applies to all Hindus, Buddhists, Jainas or Sikhs. It applies also to all other persons who are not Muslims, Christians, Parsis or Jews unless they establish that they were not governed by Hindu Law, custom or usage prior to the Act. Since the passing of the Hindu Marriage Act, various suggestions for amending the same as well as the Special Marriage Act, 1954, were received from some Members of Parliament and the general public. The Special Marriage Act, 1954, being a civil law applicable to all, has necessarily to keep pace with any reform of matrimonial laws. The law commission was requested to examine the matter and they have presented the Fifty-ninth Report which contains their recommendations.
The Bill seeks to amend both the Acts aforesaid so as to implement, with necessary modifications, the recommendations contained in that Report. The Committee on Status of Women in India have generally supported the amendments proposed by the? Law
Commission and suggested, inter alia, the incorporation of a suitable provision for mutual consent in the Hindu Marriage Act more or less on the lines of a provision in that' behalf in section 28 of the Special Marriage Act. It is, however, felt that when once the parties have chosen to move the court for divorce by mutual consent, it is not necessary to make them wait for a further period of one year to obtain relief. This period of waiting is, therefore, proposed to be reduced from one year to six months. The committee has further suggested that having regard to the frequent violations of the provisions of the Child Marriage Restraint Act, it is necessary to provide in the Hindu Marriage Act a suitable provision conferring the right of repudiation on girls who are subject to such marriages, whether the marriage was consummated or not. The right of repudiation is proposed to be conferred on such girls subject to their exercising the same before attaining the age of 18 years. To avoid multiplicity of litigation and consequent delay, it is also proposed to apply the amended law ill relation to all pending proceedings under the relevant Acts. Notes on clauses appended to the Bill indicate the changes proposed to the statutes. The objects of the legislation are mainly, (1) to liberalise the provisions relating to divorce; (2) to enable expeditious disposal of proceedings under the Act; and (3) to remove certain anomalies and handicaps that have come to light after the passing of the Acts. The Bill seeks to achieve the abovementioned purposes.-Gaz. of India, 29-3-1976, Pt. II,section 2, Ext., p. 780. An Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. BE it enacted by Parliament in the Fifth Year of the Republic of India as follows.-
CHAPTER 1 PRELIMINARY
OBJECTS AND REASONS "The Act is to have extra territorial operation so as to permit of marriages between citizens of India being solemnized outside India."-S.O.R. "This law should also apply to persons permanently residing in any part of India outside the State of Jammu and Kashmir who may, for the time being, be in that State in the same manner as it applies to such persons outside India."- J.C.R
SECTION 01: SHORT TITLE, EXTENT AND COMMENCEMENT
(1) This Act may be called The Special Marriage Act, 1954.
(2) It 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 this Act extends who are2[in the State of Jammu and Kashmir.]
(3) It shall come into force on such3date, as the Central Government may, by notification in the Official Gazette, appoint.
SECTION 02: DEFINITIONS
In this Act, unless the context otherwise requires,-
4[ * * *]
(b) "degrees of prohibited relationship"-a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship; Explanation 1.- Relationship includes,- (a) relationship by half or uterine blood as well as by full blood; (b) illegitimate blood relationship as well as legitimate; (c) relationship by adoption as well as by blood; and all terms of relationship in this Act shall be construed accordingly. Explanation II.-- "Full blood and "half blood" – two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives. Explanation III.- "Uterine blood" - two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands. Explanation IV.- In explanations II and III, "ancestor" includes the father and "ancestress" the mother. 4[ * * *]
(d) "district", in relation to a Marriage Officer, means the area for which he is appointed as such under sub-section (1) or sub-section (2) of section 3-;
5(e) "district court" means in any area for which there is a city Civil Court, that court, and in any other area, the principal civil court of original jurisdiction and includes any other civil court which may be specified by the State Government by notification in the Official Gazette as having jurisdiction in respect of the matters dealt with in this Act.]
(f) "prescribed" means prescribed by rules made under this Act;
e[(g) "State Government", in relation to a Union territory, means the administrator thereof.]
SECTION 03: MARRIAGE OFFICERS
-
(1) For the purposes of this Act, the State Government may, by notification in the Official Gazette, appoint one or more Marriage Officers for the whole or any part of the State.
7[(2) For the purposes of this Act, in its application to citizens of India domiciled in the territories to which Act extends who are in the State of Jammu and Kashmir, the Central Government may, by notification in the Official Gazette, specify such officers of the Central Government as it may think fit to be the Marriage Officers of the State or any part thereof.]
CHAPTER 02: SOLEMNIZATION OF SPECIAL MARRIAGES
OBJECTS AND REASONS "Apart from the fact that the provisions of this Act, if passed, will apply to all persons marrying there under irrespective of the religion they may profess, the other changes of importance which have been made in this clause, as compared with section 3 of Act 3 of 1872, are the following, namely :- (a) the addition of a new condition relating to idiocy and lunacy; (b) the raising of the age limit for marriage....; (c) the provision for marriages abroad between citizens of India."-
S.O.R.OBJECTS AND REASONS Sub-section (3).- "In cases where a marriage is sought to be solemnized before a Marriage Officer other than the Marriage Officer within whose jurisdiction the parties are permanently residing, it is essential that the notice should be given in the place of permanent residence also, and sub-el. (2) (now sub- sec. (3)) makes provision in this behalf.-J.C.R.OBJECTS AND REASONS Sections 8-,9-and10-.- "The Joint Committee feel that it would not be in the interests of the parties to an intended marriage or in the public interest .that Courts should be invested with jurisdiction in the matter of objections to any such marriage. Such objections should ordinarily be disposed of by the Marriage Officers themselves within a specified period, the parties being given a right of appeal if aggrieved by the decision of the Marriage Officer. The Marriage Officer should also have the usual powers for holding inquiries with respect to such matters."-J.C.R.
SECTION 04: CONDITIONS RELATING TO SOLEMNIZATION OF SPECIAL MARRIAGES
Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely :-
(a) neither party has a spouse living;
8[(b) neither party-
(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(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
(iii) has been subject to recurrent attacks of insanity12[***].]
(c) the male has completed the age of twenty-one years and the female the age of eighteen years;
9[(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 10[(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.]11[Explanation. - In this section, "custom", in relation to a person belonging to any tribe, community, group or family, means any rule which the State Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe, community, group or family: Provided that no such notification shall be issued in relation to the members of any tribe, community, group or family, unless the State Government is satisfied-
(i) that such rule has been continuously and uniformly observed for a long time among those members;
(ii) that such rule is certain and not unreasonable or opposed to public policy; and
(iii) that such rule, if applicable only to a family, has not been discontinued by the family.']
SECTION 05: NOTICE OF INTENDED MARRIAGE
When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule 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.
SECTION 06: MARRIAGE NOTICE BOOK AND PUBLICATION
(1) The Marriage Officer shall keep all notices given under section 5-with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same.
(2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.
(3) Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the carriage Officer to whom the notice has been given under section 5-, the Marriage Officer shall also cause a copy of such notice to be transmitted to the Marriage Officer of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.
SECTION 07: OBJECTION TO MARRIAGE
(1) Any person may, before the expiration of, thirty days from me date on which any such notice has been published under sub-section (2) of section 6-, object to the marriage on the ground that it would contravene one or more of the conditions specified in section 4-.
(2) After the expiration of thirty days from the date on which notice of an intended marriage has been published under sub-section (2) of section 6-, the marriage may be solemnized, unless it has been previously objected to under sub-section (1).
(3) The nature of the objection shall be recorded in writing by the Marriage Officer in the
Marriage Notice Book, be read over and explained, if necessary, to the person making the objection and shall be signed by him or on his behalf.
SECTION 08: PROCEDURE ON RECEIPT OF OBJECTION
(1) If an objection is made under section 7-to an intended marriage, the Marriage Officer shall not solemnize the marriage until he has inquired into the matter of the objection and is satisfied that it ought not to prevent the solemnization of the marriage or the objection is withdrawn by the person making it; but the Marriage Officer shall not take more than thirty days from the date of the objection for the purpose of inquiring into the matter of the objection and arriving at a decision.
(2) If the Marriage Officer upholds the objection and refuses to solemnize the marriage, either party to the intended marriage may, within a period of thirty days from the date of such refusal, prefer an appeal to the .district court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district court on such appeal shall be final, and the Marriage Officer shall act in conformity with the decision of the Court.
SECTION 09: POWERS OF MARRIAGE OFFICER IN RESPECT OF INQUIRIES
(1) For the purpose of any inquiry under section 8-, the Marriage Officer shall have all the powers vested in civil court under the Code of Civil Procedure, 1908-, when trying a suit in respect of the following matters, namely :-
(a) summoning and enforcing the attendance of witnesses and examining them on oath;
(b) discovery and inspection;
(c) compelling the production of documents;
(d) reception of evidence on affidavits; and
(e) issuing commissions for the examination of witnesses; and any proceeding before the Marriage Officer shall be deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code-. Explanation.- For the purpose of enforcing the attendance of any person to give evidence, the local limits of the jurisdiction of the Marriage Officer shall be the local limits of his district.
(2) If it appears to the Marriage Officer that the objection made to an intended marriage is not reasonable and has not been made in good faith he may impose on the person objecting costs by way of compensation not exceeding one thousand rupees and award the whole or any part thereof to the parties to the intended marriage, and any order for costs so made may be executed in the same manner as a decree passed by the district court within the local limits of whose jurisdiction the Marriage Officer has his office.
SECTION 10: PROCEDURE ON RECEIPT OF OBJECTION BY MARRIAGE OFFICER ABROAD
- Where an objection is made under section 7-to a Marriage Officer13[in the State of Jammu and Kashmir in respect of an intended marriage in the State] and the Marriage Officer, after making such inquiry into the matter as he thinks fit, entertains a doubt in respect thereof, he shall not solemnize the marriage but shall transmit the record with such statement respecting the matter as he thinks fit to the Central Government, and the Central Government, after making such inquiry into the matter and after obtaining such advice as it thinks fit, shall give its decision thereon in writing to the Marriage Officer who shall act in conformity with the decision of the Central Government.
SECTION 11: DECLARATION BY PARTIES AND WITNESSES
Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer.
SECTION 12: PLACE AND FORM OF SOLEMNIZATION
(1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within .a reasonable distance there from as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed.
(2)' The marriage may be solemnized in any form which the parties may choose to adopt:
Provided that it shall not be complete and binding on the parties, unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,- "1. (A), take thee (B), to be my lawful wife (or husband)."
SECTION 13: CERTIFICATE OF MARRIAGE
(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.
(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.
SECTION 14: NEW NOTICE WHEN MARRIAGE NOT SOLEMNIZED WITHIN THREE MONTHS
Whenever a marriage is not solemnized within three calendar months from the date on which notice thereof has been given to the Marriage Officer as required by section 5-, or where an appeal has been filed under sub-section (2) of section 8-, within three months from the date of the decision of the district court on such appeal or, where the record of a case has been transmitted to the Central Government under section 10-, within three months from the date of decision of the Central Government the notice and all other proceedings arising there from shall be deemed to have lapsed, and no Marriage Officer shall solemnize the marriage until a new notice has been given in the manner laid down in this Act.
CHAPTER 03 REGISTRATION OF MARRIAGES CELEBRATED
IN OTHER FORMS
OBJECTS AND REASONS Section 15(e). Proviso.- "In the opinion of the Joint Committee, the scope of this clause should be widened so as to include within it marriages which, although hit by the rule of prohibited degrees as defined in the Bill, are valid under the personal law applicable to the parties."- J.C.R.
SECTION 15: REGISTRATION OF MARRIAGES CELEBRATED IN OTHER FORMS
Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872, or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely :-
(a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;
(b) neither party has at the time of registration more than one spouse living;
(c) neither party is an idiot or a lunatic at the time of registration;
(d) the parties have completed the age of twenty-one years at the time of registration;
(e) the parties are not within the degrees of prohibited relationship; Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two, and
(f) 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.
SECTION 16: PROCEDURE FOR REGISTRATION
Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this Chapter, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objections and after hearing any objection received within that period, shall, if satisfied that all the - conditions mentioned in section 15-are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the form specified in the Fifth Schedule, and such certificate shall be signed by the parties to the marriage and by three witnesses.
SECTION 17: APPEALS FROM ORDERS UNDER SECTION 16
Any person aggrieved by any order of a Marriage Officer refusing to register a marriage under this Chapter may, within thirty days from the date of the order, appeal against that order to the district court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district court on such appeal shall be final, and the Marriage Officer to whom the application was made shall act in conformity with such decision.
SECTION 18: EFFECT OF REGISTRATION OF MARRIAGE UNDER THIS CHAPTER
Subject to the provisions contained in sub-section (2) of section 24-, where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents :
Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents.
CHAPTER 04: CONSEQUENCES OF MARRIAGE UNDER THIS ACT
OBJECTS AND REASONS "The Joint Committee gave very anxious consideration to this clause as this had been made the subject of attack in many of the opinions received on the ground that it penalises marriages under this law. After careful consideration the Joint Committee have decided to retain this clause in its original form, particularly because it has the desirable effect of simplifying the law of succession. Were the clause to be omitted the share in the joint family property of a person marrying under this law will necessarily have to devolve on the survivors, which would mean that the daughters will be left out of account. Moreover, one of the chief reasons why persons marry under this law is that in case of intestate succession, the Succession Act will apply and it would be extremely inconvenient to have different laws of succession applicable to different types of property. Severance from the joint family does not, of course, prevent the parties from reuniting if they so desire."-J.C.R.OBJECTS AND
REASONS "With respect to clause 19 [now section 20-],the Caste Disabilities Removal Act, 1850, provides that so much of any law or usage as may be held in any way to impair or affect any right of inheritance of any person by reason of his or her renouncing or having been excommunicated from the communion of any religion or being deprived of caste shall cease to be enforced as law."-S.O.R.
SECTION 19: EFFECT OF MARRIAGE ON MEMBER OF UNDIVIDED FAMILY
The marriage sole minized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from such family.
SECTION 20: RIGHTS AND DISABILITIES NOT AFFECTED BY ACT
- Subject to the provisions of section 19-, any person whose marriage is solemnized under this Act, shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850, applies.
SECTION 21: SUCCESSION TO PROPERTY OF PARTIES MARRIED UNDER ACT
Notwithstanding any restrictions contained in the Indian Succession Act, 1925, with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this section that Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestates) had been omitted there from.
SECTION 21A Special provision in certain cases
Where the marriage is solemnized under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, section 19-andsection 21-shall not apply and so much of section 20-as creates a disability shall also not apply.]
CHAPTER 5 RESTITUTION OF CONJUGAL RIGHTS AND
JUDICIAL SEPARATION
SECTION 22: RESTRICTION OF CONJUGAL RIGHTS
When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district Court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.15[Explanation.- Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]
SECTION 23: JUDICIAL SEPARATION
(1) A petition for judicial separation may be presented to the district Court either by the husband or the wife,-
(a) on any of the grounds specified16[in sub-section (1)17[and sub-section (IA)] of section 271on which a petition for divorce might have been presented; or
(b) on the ground of failure to comply with a decree for restitution of conjugal rights; and the court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.
(2) Where the court grants a decree for judicial separation, it shall be no longer obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
CHAPTER 6 NULLITY OF MARRIAGE AND DIVORCE
OBJECTS AND REASONS In section 29-, "a provision has been included restricting petitions for divorce during the first three years after marriage as, in the opinion of the Joint Committee, the parties should be given a full opportunity to make the marriage a success."-J.C.R.
SECTION 24: VOID MARRIAGES
(1) Any marriage solemnized under this Act shall be null and void 18[and may, on a petition presented by either party thereto against the other party, be so declared] by a decree of nullity if-
(i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 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.
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