In a diverse country like India, demarcations such as religion and caste play a rather important role when it comes to the solemnization and registration of marriage. Intermarriage lies at the heart of intergroup relations. Even though people belonging to a multitude of religions, castes, and subcastes have coexisted, there has been a spike in the number of inter-religious and inter-caste marriages. With the onset of changing mindsets of the people in India, our legal system has had to grant legal validity and frame laws for marriages between consenting parties who belong to different religions or castes.
The Special Marriage Act of 1954 applies to individuals throughout the territory of India, except those belonging to the state of Jammu and Kashmir. Under this act, individuals can register their marriages without renouncing their religion. This Act includes marriages between Hindus, Muslims, Sikhs, Christians, Parsis, Jains, and Buddhists. Aside from this, this Act is also applicable to Indian nationals living abroad.
The Need and importance of the Special Marriage Act of 1954 in India
It is secular in nature
The Special Marriage Act ignores the religious boundaries of the involved parties. This enables people of different faiths to form marital alliances legitimately. This act provides for completely different recourse where there are no religious requirements, which are of paramount consideration in personal laws. Thus, a sound-minded person of any religion, having attained the prerequisite age, can validly solemnize his/her marriage without any hindrance.
It acts as a uniform civil code
The term “Uniform Civil Code” mandates a commonly enforceable set of laws that apply to marriage, divorce, adoption, inheritance, and other matters relating to family law. India has been successful in enforcing the concept of a uniform civil code in only a few areas, and the special marriage act is one of them. One of the drawbacks of having personal laws is that they fail to recognize some “extraordinary” circumstances. The Special Marriage Act provides validity to marriages that do not fall under the ambit of personal laws.
It sets individuals free from traditional and orthodox practices
The Special Marriage Act is the kind of legislation that aims at liberating individuals from the traditional practises of marriage and the coercive aspects of the institution of marriage, such as caste and religion. It recognises people as individuals within society, irrespective of their faith. It can be validly concluded that the marriage prescribed under this Act is not ritual-centric and is not based on age-old customs and ceremonies.
It mandates the registration of every marriage performed under this Act.
The Special Marriage Act has declared that it is compulsory for any marriage solemnised under this act to be registered. It is the one and only ceremonial essential that has been prescribed by this act. Interestingly, it is not necessary for the parties to follow different religions to get married under this act. Even if two Hindus decide to solemnise their marriage under this act, registration of the marriage is mandatory.
It protects the right to property of the parties.
Important aspects of the Special Marriage Act:
Solemnisation of Special Marriages
According to Section 4 of the Special Marriage Act, the conditions that need to be fulfilled for the solemnisation of special marriages are:
- Neither of the parties should have a living spouse.
- Both parties must have reached the appropriate and legally mandated age to consent to a marriage.
- Both parties in the marriage should be of sound mind. Recurring insanity and mental disorders that may hinder their decisions or affect the upbringing of a child will be deemed unfit for marriage.
- The parties should not be related by blood. The parties should not be subjected to the kind of relationship that is covered under “prohibited relationships,” as this can be grounds for the dissolution of the marriage.
It is a known fact that personal marriage laws only allow the registration of an already solemnised marriage, but the Special Marriage Act provides a means for both the solemnisation and the legal registration of the marriage. The Special Marriage Act has set certain criteria that the parties should satisfy before applying for solemnisation and registration of the marriage. They include:
- Both parties need to have Indian citizenship.
- Neither of the parties should have a living spouse. In the case of a previous marriage, the couple should have been legally separated (divorced) for the individual to be eligible to apply for another marriage under this act.
- Both parties should be capable of granting free, fair, and undivided consent to the marriage.
- Both parties should satisfy the age limits of the act.
- The first schedule of the Special Marriage Act provides a list of relationships that are considered to be “prohibited.” In general, the act denies marriage to individuals whose relationship falls under the previously mentioned category. However, the marriage may be solemnised if the custom of either party permits the marriage as intended.
A written notice must be issued to the district’s (“marriage officer”) in which either of the parties has been residing for at least thirty days when a couple wants to solemnise their marriage under this act. The marriage usually takes place within three months from the date of the issue of the notice. The marriage can be solemnised in whatever way the parties choose to do so.
Registration of marriages celebrated in other forms
Any marriage, with the exception of those solemnised in accordance with the provisions of the Special Marriage Act, may be registered by a marriage officer under Chapter III of the Act, provided that the parties have had a marriage ceremony conducted for them under any of the Acts and that they have lived as a married couple since then. Aside from that, the other marital criteria set forth in this Act will be duly applicable.
Restitution of Conjugal Rights and Judicial Separation
Conjugal rights refer to the rights that are created by marriage. This includes the couple having the right to each other’s comfort, society, and affection.
Section 22 of Chapter V of the Special Marriage Act covers the conditions under which a petition for restitution of conjugal rights can be filed.
When either party to the marriage has withdrawn from the other’s society without reasonable cause, the aggrieved party may file a petition in the district court for restitution of conjugal rights. If the court is satisfied that the statements made in the petition are true and that there is no legal reason why the application should not be granted, it may pass a decree for restitution of conjugal rights.
In this scenario, the burden of proof to provide a reasonable excuse for withdrawal from society lies with the party withdrawing from their conjugal rights.
Further, judicial separation is granted under Section 23 of the Special Marriage Act.
A petition for judicial separation may be presented in front of the District Court by either party on the grounds that have been specified for divorce (adultery, desertion, imprisonment, cruelty, veneral diseases, sodomy, unsound mind, etc.) and for failing to comply with a decree for restitution of conjugal rights; and the Court, upon being satisfied of the truth of the statements made in such a petition and that there is no legal reason why the application should not be granted, may order judicial separation.
Nullity of Marriage and Divorce
According to Section 24 of the Special Marriage Act, a marriage can be declared null and void on the following grounds:
- Either party has a living spouse.
- impotence of either party to legally consent to the marriage.
- Either of the parties does not meet the age criteria set by the act.
- Unsoundness of mind
- The parties are in an illegal relationship.
Some additional grounds for declaring a voidable marriage under the act null and void are:
- Willful refusal of a party has led to the marriage not being consummated.
- impregnation of the respondent by an individual outside the marriage.
- Consent of either party was obtained by fraud or coercion as defined under the Indian Contract Act, 1872.
The Special Marriage Act has been crucial in validating inter-religion and inter-caste marriages, which is a step forward in the direction of achieving secularism in the dimension of marriage. Unfortunately, the downside of this act is that when the Special Marriage Act was passed in 1954, it was met with widespread opposition. There was a lot of uproar regarding this measure as soon as it was passed, especially among religious minorities like Muslims. These religious minorities believe it is a deliberate move to curtail their religious freedom and impose a secular code. As much as this is a reasonable concern in religions such as Hinduism, the question of whether it has assisted in social reform and altered gender interactions in societies becomes crucial. On the other hand, several discriminatory components of the Hindu cultural ethos that regulate Hindu marriage, divorce, and married life, on the other hand, are rarely examined. Similarly, Muslim personal laws have more often than not been discriminatory towards women. The Special Marriage Act of 1954 has overcome these issues by not paying any heed to the religion of the parties, thus ensuring equality.