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What is the process for registration of Marriage under the Special Marriage Act ?

Updated: May 11

A brief overview of the Special Marriage Act, 1954

Traditional Indian society highly values marriage, often prioritizing the union of families over individuals. Social norms dictate marriage within the same caste or social status, discouraging inter-caste and inter-religious unions. The Special Marriage Act of 1954 was introduced to address these barriers, allowing couples to marry regardless of caste or religion. This act aimed to uphold secularism and provide a civil alternative to religious marriage laws. However, amendments were necessary to align the law with modern constitutional principles. The updated act allows couples to marry without renouncing their religious beliefs and facilitates registration while preserving their identities.


This legislation enables a unique form of marriage through registration, allowing individuals to retain their religious identity without the need for conversion. Unlike traditional arranged marriages within the same caste or community, the Act seeks to legalize interfaith and inter-caste unions. The Certificate of Registration provided by the Act serves as official proof of marriage. It encompasses provisions for special types of marriages, their registration, and divorce, as outlined in the preamble.


special marriage act process and procedure

Regarding its applicability:

1. The Act extends to all Indian states and Indian nationals residing abroad, enabling individuals from diverse religious backgrounds such as Muslims, Hindus, Parsis, Sikhs, or Christians to marry under its provisions.

2. It covers not only interreligious or inter-caste marriages but also intra-faith marriages, offering the option to register marriages performed according to personal laws.

3. Unlike personal laws that mandate customs and ceremonies for solemnizing marriages, the Special Marriage Act, 1954 simply requires the consent of two individuals to marry, without any ritual obligations.

4. It applies nationwide and includes marriages among Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists, offering a uniform process of marriage regardless of religion.


Requirements

The Special Marriage Act eliminates the need for elaborate rituals and ceremonies typically associated with Indian weddings. Instead, it prioritizes the crucial aspect of mutual consent between the marrying individuals, disregarding factors such as caste, religion, or race.


To marry under this Act, the parties must inform the district's Marriage Registrar of their intention to wed, with at least one party residing in the district for 30 days before submitting the notice. Following a 30-day waiting period, the marriage can be solemnised. However, objections from related parties, if deemed reasonable by the registrar, can lead to the cancellation of the marriage. Additionally, both parties must give their consent before the marriage officer and three witnesses for the marriage to be considered valid. These are the fundamental requirements for a valid marriage under the Special Marriage Act that all Indians should be familiar with.


Section 4 of the Special Marriage Act, 1954 outlines the essential requirements for a lawful marriage:

1. Polygamy is prohibited, and a marriage is considered null if neither party has a living spouse at the time of marriage.

2. Both parties must be mentally sound and capable of making their own decisions at the time of marriage.

3. The legal age of marriage must be reached by both parties, with the female being at least eighteen years old and the male being at least twenty-one years old.

4. The parties must not be closely related or in a prohibited relationship, the specifics of which are determined by tradition and outlined in Schedule one of the legislation.


Conditions for Marriage under the Special Marriage Act, 1954:

Under the Special Marriage Act, 1954, specific qualifications must be met before a marriage can be solemnized, as outlined in Chapter II, Section 4. These prerequisites are similar to those for customary marriages and comparable to Section 5 of the Hindu Marriage Act, 1955. 

  • Firstly, both parties must be monogamous, meaning neither should have a living spouse at the time of marriage. 

  • Secondly, both parties must be mentally sound and capable of making decisions, without any mental illness or recurring insanity. 

  • Thirdly, the man must be at least twenty-one years old and the woman at least eighteen years old. 

  • Lastly, the parties must not be blood relatives within the forbidden degrees of kinship. 

Any violation of these conditions specified in Section 4 of the Act will invalidate the marriage.

Registration of Marriage under the Special Marriage Act in India: In India, marriages can be registered either under personal laws (such as 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, regardless of their religion, unlike personal laws. It permits both solemnization and legal registration of marriages. Even if both parties belong to the same religion, they can choose to register their marriage under this Act. Here is a step-by-step guide to applying for a marriage under the Special Marriage Act:


Step 1: Eligibility Check

  • Both parties must be Indian citizens.

  • Neither party must have a living spouse at the time of marriage, and any previous marriages must be legally dissolved.

  • Both parties must freely consent to the marriage and meet the age requirements (female: at least eighteen years old, male: at least twenty-one years old).

  • The marriage cannot take place if the parties fall within the prohibited degrees of relationship as per their customs, unless the custom allows for such a marriage.


Step 2: Reach out to the Marriage Officer

  • Contact the Marriage Officer in the district where either party has resided for at least 30 days prior to submitting the notice. The application should follow the format provided in the Second Schedule.


Step 3: Public Notice and Objections

  • Upon receiving the application, the Marriage Officer issues a 30-day public notice for objections to the intended marriage. Objections typically relate to non-compliance with the conditions specified in Section 4 of the Act.

  • If no objections are raised and all conditions are met, the marriage certificate is entered in the Marriage Certificate Book, signed by both parties and witnesses.


After completing these steps, the marriage is considered duly solemnized and registered. Certain documents and three witnesses may be required on the day of solemnization, including proof of age, address proof, affidavit regarding marital status, and non-relationship within prohibited degrees. Couples must issue a written notice to the district's Marriage Officer, where at least one party has resided for the last thirty days, and the marriage is typically scheduled within three months from the date of notice issuance. The notice is displayed in the Marriage Officer's office, and a copy is attached to the Marriage Notice Book for public inspection.


Period of Objection:

  • Any objections to marriage, such as age, consent capacity, or incest, must be raised with the Marriage Officer within 30 days of the notice being published.

  • Within a 30-day window, the Marriage Officer conducts an inquiry into the validity of objections, during which the marriage cannot be solemnized if objections are raised.

  • If objections are found valid, either party may appeal to the district court within 30 days of refusal by the Marriage Officer.

  • Once objections are addressed and cleared, the bride, groom, and three witnesses sign a declaration in the presence of the Marriage Officer, after which the marriage can be solemnized.


Power of Enquiry:

  • Marriage officers have the authority to summon witnesses, examine them under oath, demand documents, affidavits, and issue commissions for witness scrutiny.


Unreasonable Objections:

  • Those making unreasonable objections may be liable for costs up to Rs. 1,000, awarded to the proposed marriage parties.


Solemnization of Marriage:

  • After objections are cleared, marriage can be solemnized 30 days after the notice is issued, valid for 3 months.

  • The parties and witnesses sign declarations before the Marriage Officer, and the marriage can be solemnized either near the officer's office or at another preferred location.


Procedure for solemnization of marriage:

  • .Section 5 mandates that prior to marriage notification, written notice must be submitted to the District Marriage Officer, with at least one party residing in the district for 30 days. The application must conform to the prescribed format outlined in Schedule two. Following the submission, the Marriage Officer publishes a public notice lasting 30 days, in accordance with Section 6, to address any objections to the marriage. Section 8 facilitates the investigation and resolution of objections by the Marriage Officer.

  • Under Section 11, both parties and three witnesses are required to sign the marriage declaration, which must be verified by the Marriage Officer. Section 12 permits marriage solemnization either at the Marriage Officer's office or a nearby location, subject to additional fees if conducted outside the office.

  • Section 13 governs marriage certification, wherein the Marriage Officer records the marriage in the Marriage Certificate book and issues a certificate upon solemnisation. In accordance with Section 16, no religious rites are necessary for marriage registration, which is overseen by a designated Marriage Officer.

Registration of Marriages Celebrated in Other Forms:

  • Any marriage, except those solemnized under specific provisions, can be registered by a marriage officer under Chapter III of the Act, given that a marriage ceremony has been conducted and the couple has lived as married since.

Implications on Family Membership:

  • A member of an undivided family practicing Hinduism, Buddhism, Sikhism, or Jainism would be compelled to separate from such family after marriage under this Act.


Restitution of Conjugal Rights:

  • Upon marriage, it is the duty of parties to live together to fulfill marital obligations, known as the consortium right.

  • Either party can seek restitution of conjugal rights if the other has unreasonably withdrawn from the society.

  • Section 22 outlines the conditions for such a petition, which the district court may grant if satisfied.


Withdrawal from Society:

  • 'Society' means cohabitation or living together as husband and wife.

  • Withdrawal involves intention and separation.


Cohabitation:

  • Parties need not necessarily live under the same roof but must maintain a conjugal relationship.


Matrimonial Home:

  • Traditionally, the husband had the right to establish the matrimonial home, but now both parties have equal say.


Without Reasonable Excuse:

  • The burden of proving withdrawal with a reasonable excuse lies with the respondent, failing which a restitution petition may fail.


Jurisdiction: The district court has jurisdiction over restitution petitions if the marriage was solemnised or the parties last lived together within its local limits.



Divorce Process under the Special Marriage Act:

Mutual Consent Divorce allows couples to file together after living separately for a year, subject to certain conditions and considerations by the District Court. Remarriage is allowed after divorce unless there's an appeal or petition pending, dismissed, or finalised.


Judicial Separation under the Special Marriage Act:

Under the Special Marriage Act, Section 23 allows for judicial separation based on various grounds, similar to those for divorce. The District Court can grant this decree if it finds the statements in the petition to be true and sees no legal reason to deny it. Parties are free to live apart, and the court may rescind the decree upon subsequent application.


Grounds for judicial separation include adultery, desertion, imprisonment, cruelty, incurable mental illness, communicable venereal disease, and absence for seven years without contact. Additional grounds for the wife include the husband's commission of certain offences or failure to comply with conjugal rights restoration. Judicial separation doesn't dissolve the marriage but allows for separate living. Either party can petition for divorce if there's no cohabitation for one year or more after the separation decree. Nullity of marriage refers to invalid marriages due to certain impediments, categorised as absolute or relative, which render the marriage void or voidable.


Concept of Void and Voidable Marriages:

Void marriages are invalid from the start due to unfulfilled conditions like bigamy or lack of consent. Voidable marriages can be annulled if not consummated, if one party was pregnant by someone else at marriage, or if consent was obtained by coercion or fraud. Children of void or voidable marriages are deemed legitimate until a nullity decree is passed. 


Alimony and Maintenance Provisions 

Permanent alimony and maintenance provisions under the act empower courts to order husbands to provide financial support to their wives, either as a lump sum or periodic payments, for a duration not exceeding the wife's lifetime. These orders can be altered or canceled by the court based on changes in circumstances or if the wife remarries or does not maintain chastity. The court considers various factors in determining the maintenance amount, including the parties' positions, the claimant's preferences, and their financial situations.


Implications on Property Succession under the Special Marriage Act

  1. Unified Succession Regulation: Regardless of their religious affiliation, individuals marrying under the Special Marriage Act or registering their marriage under it fall under the purview of the Indian Succession Act for property succession.

  2. Potential Loss of Customary Rights: Hindus and Muslims marrying under the Special Marriage Act lose customary property rights associated with their respective religious laws. These may include provisions for ancestral property and inheritance regulations unique to Hindu and Muslim personal laws.

  3. Section 26 recognises the legitimacy of children born from marriages under the Act, granting them property rights even in cases where the marriage is annulled. However, they are not entitled to ancestral property, only to their parents' self-owned or inherited property.


Frequently Asked Questions (FAQs) about Special Marriage Act:

Q1: What is the Special Marriage Act of 1954?

Answer): The Special Marriage Act of 1954 is a legislation in India that allows individuals to marry outside the constraints of caste, religion, and community. It provides a legal framework for interfaith and inter-caste marriages.


Q2: Who can get married under the Special Marriage Act 1954?

Answer): Any two individuals, regardless of their religion, caste, or nationality, can marry under the Special Marriage Act 1954. It is commonly chosen by couples who wish to marry without adhering to traditional societal norms.


Q3: What are the benefits of marrying under the Special Marriage Act 1954?

Answer): Marrying under the Special Marriage Act 1954 allows couples to maintain their individual identities and rights to ancestral property without any alterations based on caste or religion. It also provides legal recognition and protection for the marriage, including provisions for maintenance and divorce.


Q4: Are there any drawbacks or challenges associated with the Special Marriage Act 1954?

Answer): Yes, some drawbacks include the mandatory 30-day waiting period from the date of notification before solemnising the marriage, which can be seen as too long. Additionally, couples may face societal pressure and harassment due to the public notice requirement.


Q5: How does the Special Marriage Act 1954 protect individuals' rights and autonomy?

Answer): The Special Marriage Act 1954 upholds individuals' rights to marry according to their own choices, free from external interference or coercion. Judicial decisions have emphasised the importance of protecting individuals' autonomy and privacy in marital decisions.

 

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