Special Marriage Act, 1954 | Family Law - CLAT PG PDF Download

Introduction

Marriage has always been considered very important in Indian society. It is seen not just as a bond between two people, but also as a union of two families. Over time, many rules and traditions have developed around marriage.

• In India, when choosing a life partner, social factors play a big role. For instance, many people prefer to marry within the same caste or social group, and marrying outside one’s caste is often looked down upon. Similarly, inter-religious marriages can lead to social ostracism, with couples facing severe backlash from their communities.
• To address the challenges faced by interfaith and intercaste couples, the British government introduced the Special Marriage Act, 1954. This act aimed to uphold secularism and provide a legal framework for marriages that did not conform to specific religious laws.
• Despite its good intentions, the original laws had several shortcomings and did not align well with contemporary Indian society. The Special Marriage Act, 1954, was thus amended to better accommodate inter-caste and inter-religious marriages, allowing couples to retain their religious identities while marrying.

A Brief Overview of the Special Marriage Act, 1954

• Introduced in 1954 as a significant secular initiative in independent India, the Special Marriage Act aims to regulate marriages that cannot be solemnized due to religious traditions.
• Applicable to all Indian nationals, whether residing in India or abroad, with the exception of the State of Jammu and Kashmir.
• Facilitates inter-religious and inter-caste marriages without the need for religious conversion or rejection.
• Provides a Certificate of Registration as universal evidence of marriage.
• Encompasses provisions for special forms of marriage, registration, and divorce.

Objectives of the Special Marriage Act, 1954

• A specific type of marriage
• Documentation of certain marriages
• Separation

Purpose of the Special Marriage Act, 1954

• To establish consistent legal measures for inter-caste and inter-religious marriages, protecting the rights of individuals who wish to marry outside their community.
• To provide legal frameworks for marriage, prerequisites for validity, dissolution of inter-faith marriages, and marriage registration.
• Aim to safeguard fundamental rights and reduce social issues like honour killing and love jihad.
• Acknowledge the rights of children born out of such marriages.

Elements of the Special Marriage Act, 1954

• Inclusivity: Unlike previous marriage laws, this Act is applicable to all Indian citizens regardless of religion or caste, allowing anyone to marry under its provisions.
• Legal Transaction: The Act treats marriage as a legal transaction, eliminating the need for rituals or ceremonies. Marriages are conducted through court procedures, emphasizing legal recognition over traditional practices.

Applicability of the Special Marriage Act, 1954

• The Act applies to all Indian states and territories, including Indian nationals residing abroad.
• It is inclusive of individuals from various faiths such as Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists.
• The Act facilitates not only inter-religious and inter-caste marriages but also intra-faith marriages, providing an option to register marriages according to personal laws.
• While personal laws may require certain customs and ceremonies, the Special Marriage Act does not mandate any specific rituals, focusing instead on the mutual consent of the parties involved.
• Marriages under the Act are uniform across different faiths, eliminating the need for distinct court marriage processes based on religion.

Requirements for Marriage under the Special Marriage Act

• The Special Marriage Act does not require the elaborate rituals, customs, and ceremonies often associated with Indian marriages. The only fundamental requirement for a valid marriage under this Act is the consent of both parties.
• Unlike traditional practices, where factors like caste, religion, and race may pose barriers, the Special Marriage Act allows couples to marry regardless of these distinctions as long as both parties are willing to marry each other.
• To initiate a marriage under this Act, both parties must file a notice of intention to marry with the district's Marriage Registrar. At least one of the parties must have lived in the district for at least 30 days prior to filing the notice.
• After the notice period of 30 days expires, the marriage can be solemnized. However, if any person related to the parties raises a legitimate objection, the registrar has the authority to cancel the marriage.
• For the marriage to be valid, both parties must give their consent in the presence of the marriage officer and three witnesses. These are the essential requirements for a valid marriage under the Special Marriage Act that every Indian should be aware of.

Important Sections of the Special Marriage Act, 1954

Section 4: Basic Requirements for a Valid Marriage

• Prohibition of Polygamy: A marriage is considered null and void if either party had a living spouse at the time of the marriage. Polygamy is strictly forbidden.
• Mental Competence: Both parties must be of sound mind, capable of making their own decisions, and mentally sane at the time of marriage.
• Legal Age: The female party must be at least 18 years old, and the male party must be at least 21 years old at the time of marriage application.
• Prohibited Relationship: The parties should not be in a prohibited relationship as defined by the customs of the individuals involved. The degrees of prohibited relationships vary by tradition.
• Consent: Both parties must provide valid consent to the marriage. Consent should not be influenced by factors such as caste or religion.

Section 5: Notice Requirement

• Written Notice: Parties intending to marry must give written notice to the Marriage Officer of the District.
• Residency Requirement: At least one of the parties must have lived in the district for at least 30 days immediately before the date of the notice.
• Application Format: The application must be filed in the format specified in Schedule Two of the Act.

Section 6: Publication of Notice

• Notice Publication: The original and genuine copy of the notice must be entered in the 'Marriage Notice Book' by the Marriage Officer.
• Public Notice: After receiving the application, the Marriage Officer will publish a public notice for 30 days to invite objections to the marriage.
• Common Objections: One of the most common objections addressed is non-compliance with the Act's criteria or requirements.

Section 8: Objections to Marriage

• Right to Object: Any individual may raise objections to the intended marriage after the notice is published.
• Investigation of Objections: Upon receiving an objection, the Marriage Officer is responsible for investigating and addressing the objection appropriately.

Section 11: Declaration of Marriage

• Signing of Declaration: The declaration of marriage must be signed by the parties involved and three witnesses.
• Verification by Marriage Officer: The declaration must be checked and signed by the Marriage Officer.

Section 12: Place of Solemnization

• Location of Marriage: The marriage may be solemnized in the Marriage Officer's office or within a reasonable distance from the office.
• Additional Costs: If the marriage takes place outside the Marriage Officer's office, additional costs may apply.

Section 13: Marriage Certification

• Marriage Entry: The marriage officer records the marriage in the 'Marriage Certificate book' after the marriage is solemnized.
• Issuance of Marriage Certificate: A Marriage Certificate is issued to the parties involved once the marriage is registered.

Section 16: Registration of Marriage

• No Religious Rites Required: The procedure for registration of marriage under this section does not mandate any religious rites.
• Solemnization by Government Designated Officer: The marriage is solemnized by a Marriage Officer appointed by the Government.
• Notice to Marriage Officer: The parties to the marriage must provide notice to the Marriage Officer in the prescribed manner.

Section 26: Validity of Children Born to Couples Married Under the Act

• Children's Rights: Children born to couples married under the Special Marriage Act, 1954, are considered legitimate and retain ownership of property even if the marriage is declared null and void.
• Inheritance Rights: These children are not entitled to ancestral property but can inherit shares of their parents' self-owned or inherited property.

Conditions of the Special Marriage Act, 1954

The Special Marriage Act, 1954 outlines specific conditions that must be met for a marriage to be solemnized. These conditions are similar to those in the Hindu Marriage Act, 1955.

Key Conditions

• Monogamy: Both parties must be monogamous, meaning neither can have a living spouse.
• Mental Capacity: Both parties should be of sound mind and capable of making their own decisions.
• Age: The male must be at least 21 years old and the female at least 18 years old at the time of marriage.
• Prohibited Relationships: Parties should not be within the degrees of forbidden kinship.

If any of these conditions are violated, the marriage will be considered null and void.

Changes with the Emergence of Special Marriage Act in India

Succession to the Property

• Married individuals under the Special Marriage Act (SMA) or any marriage registered under this Act, along with their children, are governed by the Indian Succession Act for property succession.
• If the married parties are Hindus, Buddhists, Sikhs, or Jains, the Hindu Succession Act will govern the succession to their property.

Registration of Marriage under the Special Marriage Act in India

• In India, marriages can be registered either under personal laws (like the Hindu Marriage Act, 1955, or the Muslim Marriage Act, 1954) or under the Special Marriage Act, 1954.
• The Special Marriage Act allows individuals from different religious backgrounds to marry. It applies to all Indian citizens regardless of their religion.
• Unlike personal laws that only allow the registration of already solemnized marriages, the Special Marriage Act provides for both solemnizations and legal registrations.
• Even if both parties belong to the same religion, they can choose to register their marriage under the Special Marriage Act.

Step-by-Step Procedure for Special Marriage Act in India

Step 1: Eligibility Check

• Both parties must be Indian citizens.
• Neither party should have a living spouse at the time of marriage. If either or both parties were previously married, the earlier marriage must be legally dissolved before applying under this Act.
• Both parties must be capable of giving free and full consent to the marriage.
• The parties must meet the age requirements: the female should be at least 18 years old, and the male should be at least 21 years old at the time of application.
• The marriage cannot be solemnized if the parties are within the degree of prohibited relationships according to the customs governing either party. The First Schedule of the Act provides a list of prohibited relationships, but a marriage can be solemnized if at least one party's custom allows it.

Step 2: Reach out to the concerned Marriage Officer

• The application should be submitted to the district marriage officer in the district where either party has a permanent residence (having lived there for at least 30 days prior to the notice submission).
• The application should be in the format set out in the Second Schedule of the Act.
• The format includes details such as the names and marital status of both parties and the date of the notice.

Step 3: Public Notice and Objections

• Once the marriage officer receives the application, a thirty-day public notice will be issued to allow for objections to the intended marriage.
• Objections usually relate to non-compliance with the conditions specified in Section 4 of the Act.
• If no objections are raised and the conditions are met, a marriage certificate will be entered in the Marriage Certificate Book, signed by both parties and the witnesses.
• The marriage is considered duly solemnized and registered after completing all the above steps.

Documents Required

• Proof of Age
• Address Proof
• Affidavit regarding Marital Status
• Non-Relationship within prohibited degrees
• Passport size Photos
• Notice of Proposed Marriage

A written notice must be issued to the district's Marriage Officer where at least one party has resided for the last thirty days. The marriage is typically scheduled to take place within three months from the date of the notice. The notice will be published by displaying it prominently in the Marriage Officer's office, and a copy will be attached to a Marriage Notice Book for public inspection.

Special Marriage Act 1954 Application Form

Period of Objection

• Any objections to the marriage based on factors like age, consent capacity, or incest must be submitted to the Marriage Officer within 30 days of the notice being published.
• The Marriage Officer is required to conduct an inquiry into the validity of the objections within a 30-day period.
• If the objections are found to be valid, the marriage cannot be solemnized during this time.
• If the Marriage Officer decides against the marriage, either the bride or groom can appeal to the district court within thirty days of the refusal.
• If there are no valid objections, the marriage can proceed after the objection period.

Power of Enquiry

• When an objection is raised, marriage officers have the authority to:
• Summon and enforce the attendance of witnesses.
• Examine witnesses under oath.
• Request the production of documents.
• Demand evidence through affidavits.
• Issue commissions for witness examination.

Unreasonable Objections

• If a marriage officer deems an objection to be unreasonable and made in bad faith, the person making the objection may incur costs up to Rs. 1,000. This amount will be awarded to the parties intending to marry.

Objections in Jammu & Kashmir

• Objections to a proposed marriage in Jammu and Kashmir State are addressed by the Marriage Officer to the Central Government.
• The Central Government reviews the case and communicates its decision to the Marriage Officer, who then implements the decision.

Solemnization of Marriage

• Once objections are resolved, the marriage can be solemnized after 30 days.
• The notice is valid for 3 months.
• Before the marriage, the parties and three witnesses must sign declarations in the presence of the marriage officer.
• The marriage can be solemnized at a location chosen by the parties, either near the marriage officer's office or elsewhere.

Procedure for solemnization of marriage

• Notification to Marriage Registrar: Both parties must send a written notification to the Marriage Registrar in the district where at least one party has lived for 30 days.
• Publication of Notice: The Marriage Registrar publishes the notice by posting it in a prominent place in his office.
• Objection Period: Any individual can object to the marriage within 30 days of publication based on the grounds specified in Section 4 of the Act.
• Solemnization: If no objections are raised, the marriage will be solemnized after 30 days. If an objection is raised, the Marriage Registrar must investigate before proceeding.
• Signing of Declaration: Before solemnization, the parties and three witnesses must sign a declaration in the prescribed form in the presence of the Marriage Officer.
• Marriage Ceremony: The marriage can be solemnized in the Marriage Registrar's office or another agreed-upon location.
• Marriage Certificate: After the ceremony, the Marriage Officer records the details in the Marriage Certificate Book, which serves as proof of marriage.
• Objection Rights: Any person can object to the marriage within 30 days of notice publication if it violates Section 4 requirements.

Registration of Marriage Celebrated in Other Forms

• Marriages celebrated outside the prescribed provisions can be registered by a marriage officer under Chapter III of the Act.
• A marriage ceremony must have been conducted under any of the Acts, and the couple must have led a marital life.
• The conditions for marriage conduct specified in this Act apply.

Implications on Family Membership

• A member of an undivided family practicing Hinduism, Buddhism, Sikhism, or Jainism will be forced to separate from the family upon marriage under this Act.
• Such a family member will no longer be part of the family hierarchy after the marriage proceedings are concluded.

Restitution of Conjugal Rights

• Restitution of conjugal rights is the fundamental duty of spouses to live together and fulfill marital obligations.
• The right to cohabit is known as the consortium right, which encompasses society, comfort, and affection.
• Historically, it derived from the husband’s quasi-proprietary right over the wife, including her society and services.
• Over time, the concept of consortium evolved into mutuality.
• Neither party can enforce conjugal rights through force, and a husband cannot seize and detain his wife.
• If one spouse violates this obligation without justification, the other can seek legal recourse to restore conjugal rights.

Section 22 of Chapter V of the Special Marriage Act, 1954

• Section 22 of the Special Marriage Act, 1954, outlines the conditions under which a petition for restitution of conjugal rights can be filed.
• If either the husband or wife withdraws from the society of the other without a reasonable excuse, the aggrieved party may petition the district court for restitution of conjugal rights.
• The court, upon being satisfied with the truth of the petition and the absence of legal grounds for denial, may decree restitution of conjugal rights.
• If there is a dispute regarding the reasonableness of the withdrawal, the burden of proof lies with the person who withdrew from society.

Elements of Section 22

• Respondent's withdrawal from petitioner's society.
• Withdrawal without reasonable cause.
• Burden of proving reasonable cause lies with the respondent.
• Filing of petition in the district court.
• Court's satisfaction with the truth of the statement and absence of reasons for denial.

Corresponding Law

• Section 22 aligns with Section 9 of the Hindu Marriage Act, 1955, Section 36 of the Parsi Marriage and Divorce Act, 1869, Section 32 of the Divorce Act, 1869, and Section 13 of the Matrimonial Causes Act, 1965.

Withdrawal from Society

• Withdrawal from society, as mentioned in the section, refers to the same concept as consortium or cohabitation, meaning living together as husband and wife in a place known as the matrimonial home.
• Withdrawal from the other spouse's society implies a complete loss of consortium, such as desertion.
• Society withdrawal involves two elements: animus and factum.
• Animus refers to the intention to end cohabitation, while factum signifies the actual act of separation by the withdrawing spouse.

Cohabitation

• Cohabitation does not necessarily require both parties to live under the same roof.
• There can be instances of cohabitation where the parties see each other as much as possible despite not living together.
• Kay v. Kay, (1904): A husband may cohabit with his wife even if he is away for visits or business, as the conjugal relationship is not determined by physical proximity.
• G v. G, (1930): A husband cannot be deemed to have deserted his wife without reasonable cause simply because he is compelled to live apart from her due to work obligations.

Matrimonial Home

• Shastri law emphasized the wife's obligation to live with her husband and submit to his authority.
• The husband's exclusive right to establish a matrimonial home was based on custom reflecting societal norms of the time.
• The husband's right was not a legal principle but a practical consideration due to his role as the primary breadwinner.
• Modern Indian law, influenced by the Constitution,grants equal rights to both spouses, allowing them to pursue their careers.
• Today, the choice of matrimonial home should be decided amicably between husband and wife.

Case Reference

• In various court cases, the issue of withdrawal from society, particularly regarding a wife's job, was debated.
• Tirath Kaur v. Kirpal Singh, Gaya Prasad v. Bhagwati, and Kailashwati v. Ayodhya Prakash cases supported the husband's right to decide the matrimonial home.
• Contrarily,S. Garg v. K. M. Garg argued that a wife should not be forced to live where her husband does and can pursue her employment freely.
• The choice of matrimonial home should be settled through mutual agreement rather than one party's dominance.

Without Reasonable Excuse

• The burden of proof regarding reasonable excuse for withdrawal from society lies with the respondent.
• A petition for restitution will fail if the respondent withdrew with a reasonable excuse.
• Reasonable excuse under modern matrimonial law includes scenarios where the petitioner is guilty of misconduct such as having another wife, cruelty, or adultery.
• If the petitioner’s conduct makes cohabitation impossible for the respondent, it constitutes a strong ground for relief.

Jurisdiction

• District Court has the authority to handle petitions for restitution of conjugal rights.
• District Court is defined as the principal civil court of original jurisdiction and includes civil courts in cities where such courts exist.
• An aggrieved party can approach the District Court if any of the following conditions are met:
• The marriage took place within the local limits of the court.
• The husband and wife currently reside together within the court's local limits.
• Both spouses last lived together within the local limits of the court.

Judicial Separation

In English law, before the Reformation, the church viewed marriage as a sacrament, making divorce impossible.

The ecclesiastical courts granted "divorce a mensa et thoro," allowing separation without remarriage. This concept evolved into judicial separation, enabling parties to live apart while preserving the marriage bond.

Section 23 of the Special Marriage Act

• Petition for Judicial Separation: A petition for judicial separation can be filed by either the husband or wife in the District Court.
• Grounds for Petition: The petition can be based on the same grounds as those for divorce or for failure to comply with a decree for restitution of conjugal rights.
• Decree for Judicial Separation: If the court is satisfied with the petition's validity, it may grant a decree for judicial separation.
• Effect of Decree: The decree allows the petitioner to live separately from the respondent, and the court can rescind the decree if deemed just and reasonable.

Corresponding Law

• Hindu Marriage Act, 1955: Section 10 provides similar grounds for judicial separation.
• Parsi Marriage and Divorce Act, 1936: Section 34 aligns with the provisions of judicial separation.
• Divorce Act, 1869: Section 22 is in accordance with judicial separation principles.
• Matrimonial Causes Act, 1965: Section 12 corresponds to the grounds for judicial separation.

Grounds for Judicial Separation

• Adultery: The respondent has committed adultery.
• Desertion: The respondent has deserted the petitioner without cause for two years preceding the petition.
• Imprisonment: The respondent has been imprisoned for seven years or more for an offence under the Indian Penal Code.
• Cruelty: The respondent has treated the petitioner with cruelty.
• Unsound Mind: The respondent is incurably of unsound mind.
• Venereal Disease: The respondent is suffering from a communicable form of venereal disease.
• Leprosy: The respondent has suffered from leprosy not contracted by the petitioner.
• Presumption of Death: The respondent has not been heard from for at least seven years as being alive.
• Additional Grounds for Wives:
  • Rape, Sodomy, or Bestiality committed by the husband since marriage.
  • No cohabitation for at least one year after a decree or maintenance order against the husband.
  • Failure of the husband to comply with a decree to restore conjugal rights.

The grounds for judicial separation are similar to those for divorce under Section 27 of the Act.

Power of the Court

• The District Court must be satisfied with the truth of the statements made in the petition for judicial separation.
• If the court is convinced, it will pass a decree for judicial separation, allowing the parties to live apart.
• The court has the authority to rescind the decree of judicial separation upon subsequent application by either party if it deems it fair and reasonable to do so.
• In cases where the petitioner fails to establish grounds for divorce, but facts support a ground for judicial separation, the court can grant a decree for judicial separation even if not explicitly requested in the petition.
• This principle was upheld in the case of Bhagwan v. Amar Kaur, AIR 1962 Punj 144.

Effect of Decree

• A decree of judicial separation allows the parties to live separately without the obligation of cohabitation, while maintaining their marital status.
• Neither party can remarry until a divorce decree is obtained.
• Either party may file for divorce on the grounds of no resumption of cohabitation for a period of one year or more following the judicial separation decree.

Nullity of Marriage

Nullity of marriage pertains to the validity of a marriage based on certain impediments existing before the marriage. These impediments can affect the capacity to marry and determine whether a marriage is valid or not.

There are two types of impediments:

• Absolute Impediments: If there are absolute impediments, a marriage is considered void ab initio, meaning it is invalid from the very beginning.
• Relative Impediments: If there are relative impediments, a marriage is voidable, allowing one of the parties to annul it if they choose to do so.

Void Marriage

A void marriage is one that is not legally recognized from the beginning. Even though two individuals may undergo marriage ceremonies, if they lack the capacity to marry, the marriage is invalid. In such cases, the marriage does not create any legal consequences.

In the context of void marriages:

• No court decree is necessary to declare a marriage void.
• When a court decree is issued, it merely acknowledges the marriage's nullity.
• The court's decree does not make the marriage void; it is already a fact that the marriage is void.
• According to Section 24 of the Special Marriage Act, 1954, either party can petition for nullity of marriage.

Under Section 24 of the Special Marriage Act, a marriage solemnized under this Act can be declared null and void by a decree of nullity if:

• Any of the conditions specified in clauses (a), (b), (c), and (d) of section 4 have not been fulfilled.
• The respondent was impotent at the time of the marriage and at the time of instituting the suit.
• Section 24: Corresponding to Section 11 of the Hindu Marriage Act, 1955, Section 18 and 19 of the Indian Divorce Act, 1869, and Section 9 of the Matrimonial Causes Act, 1965.

Grounds for Void Marriage

• A marriage may be declared void by a decree of nullity on the following grounds:
• Any of the conditions stated in clauses (a), (b), (c), and (d) of section 4 of the Act have not been fulfilled. Such conditions are as follows:
• At the time of marriage, neither party has a spouse living. The first marriage ought to be a valid marriage.
• Neither party is unable to give valid consent.
• The male should have 21 years of age, and the female should have 18 years of age.
• The parties are not within the degrees of prohibited relationship.
• The defendant was impotent at the time of marriage and at the time of the institution of the suit. The initial responsibility in the case of impotency is on the petitioner’s wife to prove the respondent husband’s impotence.

Voidable Marriage

• A voidable marriage is considered valid until one party chooses to annul it. If one party does not seek to annul the marriage, it remains valid. If one party dies before the annulment, the marriage remains valid forever. All legal implications of a valid marriage apply unless it is avoided.
• Grounds for voidable marriages are outlined in Section 25 of the Special Marriage Act.
• A marriage solemnized under this Act is voidable and can be annulled by a decree of nullity if:
• The marriage has not been consummated due to the willful refusal of the respondent to consummate it.
• The respondent was pregnant by someone other than the petitioner at the time of marriage.
• The consent of either party to the marriage was obtained by coercion or fraud as defined in the Indian Contract Act, 1872.
• In the case of pregnancy (clause ii), the court will not grant a decree unless:
• The petitioner was unaware of the facts at the time of marriage.
• Proceedings were initiated within a year of the marriage.
• Marital intercourse with the consent of the petitioner has not occurred since discovering the grounds for the decree.
• In the case of coercion or fraud (clause iii), the court will not grant a decree if:
• Proceedings were not initiated within a year after coercion ceased or fraud was discovered.
• The petitioner lived with the other party as husband and wife after coercion or fraud was discovered.

Corresponding Law

This section corresponds to Section 12 of the Hindu Marriage Act, 1955, Section 19 of the Divorce Act, 1869, Section 32 of the Parsi Marriage and Divorce Act, 1936 and Section 9 of the Matrimonial Causes Act, 1965.

Grounds for Voidable Marriage

Non-consummation of marriage

• If the marriage has not been consummated due to the respondent's deliberate refusal, it is a ground for annulment.
• In the case of Sunil K. Mirchandani v. Reena S Mirchandani, where the couple lived together for about 5 months and the husband expressed satisfaction with their sexual relationship, annulment under Section 25(1) of the Act was not justified.

Pre-marriage pregnancy

• A child born during a valid marriage or within 280 days after its dissolution is presumed legitimate unless proven otherwise.
• The petitioner can initiate proceedings based on the respondent's pregnancy at the time of marriage by someone other than the petitioner only if:
• The petitioner was unaware of the pregnancy at the time of marriage.
• Proceedings were initiated within a year of the marriage.
• No marital intercourse occurred with the petitioner's consent after the facts were discovered.

Coercion or Fraud

• If consent to the marriage was obtained through coercion or fraud as defined in Section 15 and 17 of the Indian Contract Act 1872, the marriage can be annulled.
• Coercion involves threats or unlawful acts to compel someone into an agreement.
• Fraud involves deceiving or inducing another party into the contract through false statements, concealment of facts, or other deceptive acts.
• In cases of coercion or fraud, the court should not grant a decree of nullity if:
• The proceedings were not initiated within one year after coercion ended or fraud was discovered.
• The petitioner continued living with the respondent after the coercion or fraud was revealed.
• The petitioner’s acceptance of such acts or omissions will be presumed, and their right to such claims will be waived.

The legitimacy of Children of Void or Voidable Marriages

• Section 26 aims to give children born from void or voidable marriages legitimacy before a nullity decree is passed.
• When a decree of nullity is issued for a void or voidable marriage, it is treated as a decree of dissolution for the purpose of conferring legitimacy on children born before the decree.
• However, such children have rights to their parents' property but not to the property of any other person. Legally, they are considered not to be legitimate children of their parents.

Divorce

Grounds for Divorce

• Adultery: The respondent has committed adultery since the marriage was solemnized. Adultery involves consensual sexual intercourse between a married person and someone of the opposite sex, other than the spouse, during the marriage. A single act of adultery can be sufficient ground for divorce. It is not necessary to prove that the respondent was "living in adultery."
• Desertion: The respondent must have deserted the petitioner without cause for at least two years before the divorce petition was filed. Desertion means the intentional permanent abandonment of one spouse by the other without consent and without reasonable cause. It is a continuing offense and must exist for two years immediately before the petition is presented. The essential elements of desertion include the intention to desert, physical separation, and animus. Constructive desertion occurs when one spouse is compelled to leave the matrimonial home by the conduct of the other.

Grounds for Divorce under Indian Law

In India, divorce can be sought on various grounds as specified in different personal laws. Here are the key grounds for divorce:

Imprisonment

• If the respondent is sentenced to seven years or more of imprisonment for an offense under the Indian Penal Code, the petitioner can seek divorce.
• However, divorce cannot be granted on this ground unless the respondent has already been imprisoned for at least three years out of the seven years before the petition is filed.

Cruelty

• The petitioner must prove that they have been subjected to cruelty by the respondent since the marriage. Cruelty is not explicitly defined in the law but generally refers to conduct that poses a risk to life, limb, or health (physical or mental).
• The petitioner needs to demonstrate that the respondent's behavior is intolerable and has caused harm to their health or a reasonable fear of such harm. The standard of proof is based on the preponderance of probabilities, not beyond a reasonable doubt as in criminal cases.

Unsoundness of Mind

• If the respondent is of unsound mind due to a mental disorder that is incurable, the petitioner can seek divorce. The burden of proof lies with the petitioner to show that the respondent's mental condition makes it unreasonable to live together.
• The petitioner must prove that the unsoundness of mind is continuous or intermittent and severe enough to warrant divorce. The court will not interfere with the degree of unsoundness of mind but will consider its impact on the marriage.

Venereal Disease

• If the respondent is suffering from a communicable venereal disease, the petitioner can file for divorce. If the disease was not contracted from the petitioner, it may be presumed that the respondent committed adultery.
• The burden of proof shifts to the respondent to disprove adultery by providing medical evidence that they did not have the disease, contracted it innocently, or did not commit adultery.

Leprosy

• If the respondent is suffering from leprosy, the petitioner can seek divorce. It is not necessary to prove that the disease is communicable from the petitioner.

Not Heard as Being Alive

• If the respondent has not been heard from as being alive by close relatives for at least seven years, it is presumed that the respondent is dead. The burden of proof lies with the person asserting that the respondent is alive.

Husband is Guilty of Rape, Sodomy or Bestiality

• The wife can file a petition in the District Court if her husband is guilty of rape,sodomy, or bestiality since the marriage. These acts are also grounds for criminal prosecution.
• However, the husband’s criminal conviction is not sufficient for divorce. The petitioner must prove the offense anew, either by presenting witnesses or by the husband admitting guilt. The court will decide on the need for corroborative evidence.

Decree or Order of Maintenance Obtained by the Wife

• The wife can file for divorce on the grounds that she has obtained a decree or order of maintenance, and since the passing of such decree or order, she has been living apart from her husband without resuming cohabitation.

No Resumption of Cohabitation after a Decree of Judicial Separation

• If the parties have not resumed cohabitation for at least one year after a decree of judicial separation, either party can file for divorce. The law aims to provide time for possible reconciliation.
• A single act of cohabitation does not indicate the resumption of cohabitation. Each case is decided based on its unique facts and circumstances.

Non-Compliance with a Decree for Restitution of Conjugal Rights

• If there has been no restitution of conjugal rights between the parties for a period of not less than one year after a decree of restitution of conjugal rights has been passed, either party can file for divorce.

Divorce by Mutual Consent

• Section 28 of the Special Marriage Act deals with divorce by mutual consent for marriages solemnized or registered under the Act.
• Key Points:
  • Both parties must jointly present a petition for divorce to the District Court.
  • The grounds for divorce include living separately for one year or more, inability to live together, and mutual agreement to dissolve the marriage.
  • The petition can be filed only after one year from the date of the marriage certificate, except in cases of extraordinary hardship or misconduct by the respondent.
  • The petition can be submitted to the District Court where the marriage was solemnized, where the respondent resides, where the wife resides (if she is the petitioner), or where the parties last resided together.
• Timeline:
  • Between 6 months and 18 months from the date of filing the petition, both parties must jointly request a decree of divorce.
• District Court Considerations:
  • The petition should not be withdrawn.
  • The marriage must be solemnized under the Act.
  • The petitioner’s statements must be true.
  • The divorce consent should not be obtained through force, fraud, or undue influence.
  • There should be no unnecessary delay in starting the proceedings.

Grounds for Divorce under the Indian Penal Code

Imprisonment

• The respondent must be subject to a decree of imprisonment for seven years or more for an offence under the Indian Penal Code.
• A decree for divorce on this ground shall not be granted unless the respondent has already been imprisoned for at least three years out of the seven years or more before the petition is presented.

Cruelty

• The petitioner must prove that they have been treated with cruelty by the respondent since the solemnization of marriage.
• Cruelty is not explicitly defined in the Act but is understood to encompass conduct that poses a risk to life, limb, or health (physical or mental) or creates a reasonable apprehension of such danger.
• The petitioner must demonstrate that the respondent's behavior is intolerable and has caused harm to their health or a reasonable fear of such harm.
• The standard of proof is based on the preponderance of probabilities, not beyond a reasonable doubt as in criminal cases.

Unsoundness of Mind

• The respondent must be of unsound mind, and the condition should be incurable.
• The burden of proof lies with the petitioner to establish that the respondent has a mental disorder, either continuously or intermittently, to such an extent that cohabitation is unreasonable.
• It must also be proven that the unsoundness of mind is incurable.
• If the court determines that the respondent's unsoundness of mind is incurable, it does not consider the degree of unsoundness for decision-making, as stated in legal precedents.

Venereal Disease

• The respondent must be suffering from a communicable form of venereal disease.
• If the disease is not contracted from the petitioner, and the petitioner provides evidence of not having intercourse with anyone other than the respondent, it establishes a prima facie case of adultery against the respondent.
• The burden then shifts to the respondent to disprove the prima facie case by providing medical evidence to show that:
• The respondent did not have the disease,
• The respondent innocently contracted the disease, or
• The respondent did not commit adultery.
• Only the doctor who examined the respondent can provide evidence to this effect.

Leprosy

• The respondent must be suffering from leprosy, and the disease should not be contracted from the petitioner.
• Proving the communicable nature of the disease is not necessary.

Not Heard as Being Alive

• If the respondent has not been heard by close relatives as being alive for a period of not less than seven years, it is presumed that the person is dead.
• The burden of proof lies with the person asserting that the respondent is alive.

Husband is Guilty of Rape, Sodomy or Bestiality

• The wife can file a petition in the District Court on the grounds that her husband has been guilty of rape, sodomy, or bestiality since the solemnization of marriage.
• These acts are also grounds for criminal prosecution.
• However, the husband’s conviction for these criminal offenses is not sufficient for a divorce decree.
• The commission of the offense must be proven anew, either by the petitioner providing witnesses or by the respondent admitting guilt.
• The court will determine whether any evidence needs corroboration.

Decree or Order of Maintenance Obtained by the Wife

• The wife can file a divorce petition on the grounds that she has obtained a decree or order of maintenance.
• Since the passing of such decree or order, she has been living apart from her husband and has not resumed cohabitation.

No Resumption of Cohabitation After a Decree of Judicial Separation

• The parties have not resumed cohabitation for at least one year after the passing of a decree of judicial separation.
• The legislature intends to give time for potential reconciliation between the parties.
• If there is no change of mind from either party, the right of cohabitation should not be maintained.
• Each case is decided based on its unique facts and circumstances.
• A single act of cohabitation does not equate to the resumption of cohabitation.

Non-Compliance with a Decree for Restitution of Conjugal Rights

• There has been no restitution of conjugal rights between the parties for a period of not less than one year after the decree of restitution of conjugal rights has been passed.

Divorce by Mutual Consent

• Under section 28 of the Act, a petition for divorce by mutual consent can be filed with the District Court by both parties.
• Key Points:
  • Both parties must present the petition together.
  • Grounds for divorce include living separately for one year or more, inability to live together, and mutual agreement to dissolve the marriage.
  • The petition can only be presented after one year from the date of marriage registration, except in cases of extraordinary hardship or respondent's depravity.
  • The petition can be filed in the district court where the marriage was solemnized, where the respondent resides, where the wife resides (if she is the petitioner), where the parties last resided together, or where the petitioner resides if the respondent is outside the Act's jurisdiction.
  • Within 6 to 18 months of filing, both parties must jointly seek a decree of divorce.
• DISTRICT COURT CONSIDERS:
  • The petition has not been withdrawn.
  • The marriage was solemnized under the Act.
  • The petitioner's claims are true.
  • The consent for divorce was not obtained through force, fraud, or undue influence.
  • There was no undue delay in starting the proceedings.
• ALIMONY AND MAINTENANCE:
  • The Act includes provisions for alimony and maintenance during and after the proceedings.
  • Parties can agree on terms related to alimony or maintenance, which should be incorporated in the pleadings to avoid future disputes.
  • It is advisable for parties to discuss alimony and maintenance arrangements with their advocates to safeguard their interests.

Restriction on Divorce during 1st year of the marriage

• Under the Special Marriage Act, a person cannot apply for divorce within the first year of marriage unless there are exceptional circumstances.
• The court may allow a divorce petition before the one-year mark if the petitioner faces extreme hardship or the respondent exhibits extreme misconduct.
• If a petitioner misrepresents facts to file for divorce early, any court order may be rendered effective only after one year.

Can they remarry?

• Parties married under the Special Marriage Act, 1954 can remarry after the dissolution of their marriage, provided there is no right of appeal, or the appeal is dismissed.

The General and Legal understanding

• There is a societal belief that marriages within one’s own caste are more sacred, while the legal framework supports the validity of marriages under the Special Marriage Act regardless of caste or religion.
• The law upholds the right of every citizen to marry anyone of their choice, promoting the idea of a happy life together.
• Despite legal advancements, societal mindsets regarding arranged versus love marriages remain deeply rooted, with ongoing debates about the legitimacy of inter-caste and inter-religion marriages.

Difference between the Hindu Marriage Act and Special Marriage Act

Hindu Marriage Act

• Applicable only to Hindus.
• Enacted in 1955.
• Allows registration of already solemnized marriages.

Special Marriage Act

• Applicable to all Indian citizens regardless of religion.
• Enacted in 1954.
• Provides for both solemnization and registration of marriages.
• Marriages can be registered after giving a 30-day public notice.

Maintenance For Wife & Children: Under Special Marriage Act, 1954

Alimony During The Pendency Of The Case In The Court

• If the District Court finds that the wife lacks sufficient independent income for her support and the necessary expenses of the proceeding under the Special Marriage Act, 1954, it may order the husband to cover the costs of the proceeding.
• The court may also direct the husband to provide weekly or monthly amounts during the proceeding, considering the husband's income.

Permanent Alimony and Maintenance

• The court may, at the time of passing a decree or later, order the husband to secure the wife's maintenance and support, potentially through a charge on the husband's property, for a specified period not exceeding her lifetime.
• If there is a change in circumstances for either party after the order, the court can modify or cancel the maintenance order as deemed reasonable.
• If the wife for whom the order is made remarries or does not lead a chaste life, the court may alter or cancel the order in favor of the husband.

Amount of Maintenance

• The court has discretion in determining the maintenance amount, considering factors such as the parties' positions and status, the claimant's fair preferences, and the claimant's estate value and income.
• Other relevant facts and circumstances may also influence the maintenance amount decision.

Offences and punishment under the Special Marriage Act, 1954

Section 43

• Section 43 of the Special Marriage Act, 1954 addresses the penalty for a married person who marries again under this Act.
• It states that anyone who, while married, arranges for a marriage to be solemnized under this Act shall be considered to have committed an offense under Section 494 or Section 495 of the Indian Penal Code, 1860, as applicable.
• The marriage solemnized in such a case shall be deemed void.

Section 44

• Section 44 of the Special Marriage Act, 1954 pertains to the penalties for bigamy.
• It states that anyone whose marriage is solemnized under this Act and who contracts another marriage during the lifetime of their spouse shall face penalties as outlined in Sections 494 and 495 of the Indian Penal Code, 1860.
• The cohabitation resulting from such a marriage shall be considered void.

Section 45

• Section 45 of the Special Marriage Act, 1954 deals with the punishment for signing a fraudulent statement or certificate.
• It states that anyone who makes, signs, or attests any declaration or certificate required by this Act, containing a false statement known or believed to be false, commits an offense under Section 199 of the Indian Penal Code, 1860.

Benefits of the Special Marriage Act, 1954

• Marriage does not necessitate caste alteration for spouses.
• Rights to ancestral property remain intact as caste and religion are unchanged.
• Property acquired by the couple is passed on to their children under the India Succession Act, 1925.
• The Act prevents child marriage and discourages polygamy.
• It safeguards women's rights to refuge and support.
• Unlike the previous Marriage Act of 1872, it allows for divorce, emphasizing mutual consent.
• It legalizes marriage in court, even under unusual circumstances, and considers the wife's income when determining maintenance (alimony).

Drawbacks of the Special Marriage Act, 1954

• While it allows marriage beyond societal norms of caste, religion, and faith, certain provisions seem to restrict individual freedom.
• It applies stricter criteria for interfaith marriages despite promoting marriages across religious lines.
• The requirement of a 30-day notice period before marriage can be seen as a hindrance.
• The extended notice period may expose couples to potential harassment from relatives or communities.
• The Act's implementation can inadvertently expose couples to threats, undermining its intended purpose.
• Instances of right-wing groups opposing interfaith marriages highlight the Act's challenges in practice.
• Overall, the Act's drawbacks may outweigh its benefits, necessitating reforms to align with secular ideals and support couples choosing to marry under it.

Judicial Perspective on the Special Marriage Act, 1954

Lata Singh v. State of UP, 2006

• The Supreme Court directed state governments to protect individuals marrying under the Special Marriage Act, 1954.
• The petitioner's intercaste marriage was upheld, emphasizing her legal right to choose her spouse at 24.

Kuldeep Singh Meena v. State of Rajasthan, 2018

• The Rajasthan High Court upheld that the Special Marriage Act, 1954 only requires a notice at the Marriage Officer's office.
• Authorities cannot impose additional conditions beyond what is specified in the Act.

Pranav Kumar Mishra v. Govt. of NCT of Delhi, 2009

• The Delhi High Court emphasized the Special Marriage Act, 1954 allows a civil form of marriage for individuals of different faiths.
• Unwarranted exposure of marital arrangements could jeopardize the marriage, especially in cases of parental interference.
• Authorities acting arbitrarily undermine the legal power of the marriage.

Shafin Jahan v. Asokan K.M. and Others, 2018

• The Supreme Court upheld individual freedom and sovereignty in choosing a life partner, irrespective of religious considerations.
• Marriage choices are within the fundamental zone of privacy.

Sufiya Sultan and Ors. v. State of U.P. and Ors, 2021

• The Allahabad High Court clarified that couples can request public notice publication under Section 6 when giving notice under Section 5.
• Objection procedures under Section 7 are also at the couple's discretion.

Conclusion

• The caste system has deep historical roots in Indian society, contributing to the decline of powerful empires.
• Enacting a robust version of the Special Marriage Act, 1954 could empower individuals to marry regardless of caste, community, religion, or cultural norms.
• The Act aims to protect couples from societal backlash while establishing legal frameworks for various aspects of marriage, including registration, divorce, and remarriage.
• The goal is to create a universal code that addresses deep-seated societal divides.
• Despite efforts, societal pressures and harassment persist, highlighting the need for awareness and understanding that interfaith marriage is a personal choice, not a transgression.