Marriage and Divorce under the Special Marriage Act 1954

Submitted by asandil on 3/18/2023

India has long been a nation of many different cultures and secularism. Likewise, marriage has long maintained a hallowed place in Indian society, with people holding the union of two people as a couple in the highest regard. Marriage nowadays is a union of two families rather than two people because of the various standards and ethics that the institution of marriage has amassed throughout history. There is typically a high amount of social participation when choosing marriage partners. There has been a steady increase in the proportion of people making connections outside of their own groups as a result of modernization, westernization, liberal education, and intellectual independence. Contrarily, inter-religious unions are frowned upon, and people who choose to marry someone who does not share their religious convictions and traditions risk becoming social misfits or being socially shunned for doing so. The couple’s problems have become so bad because of various vigilante groups that they now need to fight for a very long time to protect their lives and safety.

Religious laws in India have not been able to accommodate and regulate marriages between interfaith or intercaste couples who do not want to associate and solemnize their marriage according to any specific religious laws since the Hindu Marriage Act of 1955, or the registration of marriages under the Muslim personal laws, since the colonial era. The Special Marriage Act passed in 1954, and 1872, respectively was developed by the British Government in India in response to this impediment which prevented two consenting, eligible adults from getting married. This law was intended to safeguard society’s revered secularism. The present Special Marriage Act, of 1954, was so created and put into action in accordance with colonial legislative guidelines in newly independent India. This was crucial to maintaining the nation’s tight-knit secular fabric after it was severely damaged by the repercussions of the 1947 partition.

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Special marriage act 1954- Introduction

The special marriage Act passed in 1954, entered the legal system as one of the most major secular measures of independent India. The Act was designed as a piece of legislation that governs marriages that cannot be solemnized because of religious customs. A unique sort of marriage by registration is established by this piece of legislation. The unique aspect of marriage is that no one has to change their religion or abandon it. A universally accepted form of proof of marriage is the Certificate of Registration issued under the Act.

No matter if they reside in India or elsewhere, all Indian Citizens are subject to the Act. The State of Jammu and Kashmir is not covered by the provisions of this Act, however, residents of that state who have their primary residence in another state are still eligible for these benefits.

Purpose of the Special Marriage Act, 1954

The Act’s goal is to create uniform legal protections for people who want to wed outside of their caste or religion. The Act advances the interests of all Indians by creating a mechanism for interfaith unions.

The Act specifies requirements for a legitimate marriage, the dissolution of an interfaith union, marriage registration requirements, and other rules. As a result, the enactment of the aforementioned legislation was passed in an effort to uphold people’s fundamental rights and give them the freedom to choose their spouses. The Legislation also aims to recognize the rights of the children born from such marriages and lessen the possibility of social problems like love jihad and honor killing.

Elements of the Special Marriage Act, 1954

The following factors, which were incorporated into the Act, Fundamentally altered how society views interfaith and intercaste marriages:

This Act applies to all Indian citizens, regardless of religion or caste, in contrast to the previous marriage regulation. This means that anyone who wants to marry someone else can do so in accordance with the aforementioned laws.

No rites or ceremonies are performed since the Act views marriage as a legal transaction. The marriage is consummated legally- through a judicial marriage- in line with the law.

Difference between the special marriage act and the Hindu Marriage act

Learn about the differences between the Hindu Marriage Act and the Special Marriage Act

Hindu Marriage Act

Special Marriage Act

This applies only to the Hindus.

Applicable to all the citizens of India irrespective of caste, race, religion, ethnicity, etc.

Provides an opportunity for registration to an already solemnized marriage

Offers solemnization for the marriage as well as for registration by a marriage officer.

Registration of marriage is optional or desirable.

Mandatory to get the registration done within a time frame.

All marriages must be solemnized through traditions and rituals, especially with the saptapadi.

Traditional rituals are essentially not required for the solemnization of marriage, but it is desirable.

Eligibility For Special Marriage

Under the Special Marriage Act, of 1954, a marriage cannot be solemnized until certain conditions are met. Chapter II, section 4 provides a description of these requirements. The requirements for this specific type of marriage are very similar to section 5 of the Hindu Marriage Act 1955 and are not dissimilar from those for regular customary marriages.

Before submitting an application for the Special Marriage Act, all of the following requirements must be met;

  • Indian citizens are required for both parties to the intention.
  • Neither party may have a spouse who is still alive at the time of the marriage. Before applying under this Act, the prior marriage must be lawfully dissolved if one or both of the parties have participated in it.
  • Free and full consent must be granted to both parties.
  • The intended parties must abide by the age restriction stated in this Act. The male and female must both be at least twenty-one years old when they apply for marriage. The female must be at least eighteen years old.
  • If the intended parties fit the definition of a prohibited connection as defined by the customs governing one of the parties, the Act forbids the solemnization of a marriage. The severity of forbidden relationships varies amongst customs. The First Schedule of the Act contains a thorough list of relationships that may be deemed illegal. The exception is if a custom regulating at least one of the parties permits marriage as intended, in which case it may be solemnized.

Procedure of Marriage When Both Parties Are Indian.

  • The parties must submit a notice of intended marriage in the required format to the Marriage Registrar of the district where at least one of the parties has resided for a period of not less than 30 days immediately before the day on which such notice is provided.
  • The Marriage Registrar then publishes or posts the notice and invites any objections. The marriage may be solemnized once 30 days have passed since the publication date of the notice of intending marriage unless someone objects to it.
  • The designated Marriage Office is where the marriage can be legally recognized.
  • On the date of the hearing, both parties must be present along with three witnesses.

Documents Required for Special Marriage

  • Application form in the prescribed format with the prescribed fee.
  • Passport Size Photographs of Marrying Persons.
  • Date of Birth Proof of Marrying Persons.
  • Residential Proof of Marrying Persons.
  • Residential Proof and PAN Card of Three Witnesses
  • Death certificate or divorce decree whichever is applicable, in case one of the parties had any marriages in the past.

Special Marriage of an Indian And a Foreign National

if an Indian citizen intends to marry someone who is a foreign national, then their marriage can be solemnized under Special Marriage Act, in India before a Marriage Registrar in India or a Marriage Officer in a foreign country.

Eligibility Criteria:

  • At least one of the parties should be an Indian citizen.
  • The bride and groom must be 21 years of age; the bride must be 18 years of age.
  • Neither party has a spouse living,
  • Neither party is an idiot or a lunatic,
  • The parties are not within the degrees of prohibited relationship
  • Each party involved should not have any other subsisting valid marriage.

Documents Required:

  • Application form duly signed by both parties.
  • Documentary evidence of the date of birth of parties.
  • Copy of Passport of both parties with valid Visa.
  • Residential Proof of both parties.
  • Documentary evidence regarding a stay at the district in India of one of the parties for more than 30 days (Proof of stay or report from the concerned SHO).
  • N.O.C. or Marital Status certificate from the concerned embassy or Consulate in India by a foreign partner.
  • Death certificate or divorce decree whichever is applicable, in case one of the parties had any marriages in the past.

Procedure:

  • The Marriage Officer of the district, where at least one of the parties to the marriage has resided for a period of not less than 30 days immediately preceding the date on which such notice is given, shall receive written notice from the parties to the marriage in the form specified, and the notice shall state that the party has so resided.
  • The office of the Marriage Registrar verifies each piece of paperwork.
  • The laws of foreign countries shall not conflict with the laws of India.
  • The marriage is subsequently announced, and any objections are then invited.
  • The marriage may be formally celebrated if there are no objections after the notice posting period has passed.
  • At least three witnesses must be present for the marriage to be legally recognized.
  • The Marriage Registrar also enters and approves the marriage certificate.

Divorce

The special marriage act also provides laws to file a divorce petition which a person can only file only when his/her marriage has been solemnized under the Act. The Act provides for several Instances whereby the parties may desire to terminate the marital bond, such grounds are divided into three parts.

Grounds for divorce

  1. Mutual Consent

Before the district court, both couples in a marriage may jointly file a divorce on the basis that:

  • they have resided independently for at least a year.
  • they have been unable to cohabitate;
  • they have agreed that their marriage should be dissolved on an amicable basis.

both parties must file a motion with the court asking for a divorce ruling no later than six months after the petition is presented, but no later than eighteen months. the following considerations must be made by the court before issuing a divorce decree;

  • The withdrawal of the appeal has not occurred.
  • The marriage must be legally constituted in line with the Act’s rules
  • The veracity of the petition’s allegations.
  • That neither party’s divorce-related consent was gained unfairly, coercively, or under influence.
  • That the petition was filed within the time limit.

The Court will issue a decree for divorce once it is pleased with the aforementioned factors. it is crucial to remember that the petition can only be submitted after the marriage has been solemnized for a year, or from the date written on the wedding certificate in the marriage certificate book.

  1. For Both Parties

Adultery

the grounds of adultery will only require one instance of consenting extramarital sex. it should be noted that attempting to do so does not automatically entail adultery. Although the Act lists adultery as a reason for divorce, it is supported by conventional religious principles because doing so frequently undermines the sanctity and stability of marriage.

Desertion

The term, “Complete renunciation of martial obligations” is the definition of desertion. A spouse’s intentional withdrawal from the marriage for a continuous period of two years without a good reason can be the basis for a divorce petition. the abandoned spouse, however, must not have approved of such a departure. intention to desert as well as actual physical or mental abandonment is required to establish the grounds for desertion.

Imprisonment

The other spouse may submit a divorce petition for this reason if the other spouse is convicted of an offense under the Indian Criminal Code for a period of seven years or longer. However, if the petition is submitted three years or more into a seven-year or longer sentence, the divorce order will not be issued.

Cruelty

The ‘cruelty’ term is constructed according to the definition laid down in Russell v. Russell (1897 AC 395). Cruelty, in accordance with this definition, is any act, conduct, or behavior that endangers another person’s life, harms their health, or reputation, or causes them mental suffering. Here, behavior and conduct are more important than the spouse’s intentions since such behavior and conduct must be so severe that no reasonable person should be able to endure it.

Insanity

If one of the couples is having any kind of mental disorder to such an extent that it is not reasonable possibly to live with him, then the other one can file a petition for divorce. nonetheless, if a person suffered a mental illness without telling their spouse before the marriage was solemnized, the marriage would be considered voidable.

Venereal Illness

Sexually transmitted illnesses are the most prevalent name for these conditions. there are adequate grounds for filing a divorce petition if one spouse has a venereal illness that is contagious and severe. Such a party, however, must not have gotten the illness from his or her spouse. the Act makes no mention of the disease’s duration to subsist nor does it mention curability or lack of it.

  1. Only for the wife

The wife may seek divorce on any of the following grounds;

  • If the husband has committed an offense relating to rape, sodomy, or bestiality. A decree of divorce shall, however, be granted only when the husband’s guilt is proved before the court of law and he’s convicted for committing such an offense.
  • If cohabitation has not resumed even after one year of the passing of the decree of maintenance in favor of the wife.