DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

2016-17

FAMILY LAW
FINAL DRAFT ON
INFIRMITIES IN SPECIAL MARRIAGE ACT (1954)

Submitted by – Submitted to –

Vinay Sheel Ms. Samreen Hussain

B.A.LLB (Hon) Semester III Asst. Professor (Law)

Roll no. 166

 ACKNOWLEDGEMENT

I would like to extend my sincere thanks to

My teacher and my mentor Ms. Samreen Hussain for giving me this

wonderful opportunity to work on this project and for his able guidance
and advice,

Vice Chancellor, Dr. Gurdeep Singh Sir and Dean (Academics),

Professor C.M. Jariwala for their encouragement and Enthusiasm;

My seniors for sharing their valuable tips;

And my classmates for their constant support.

 INTRODUCTION

The object of the legislators in enacting the Special Marriage Act was to attempt to lay down a
uniform law for the entire territory of India. Inter-religious marriages are usually performed
under this law, however, same religion marriages may also be performed if the parties so choose.
This Act was enacted in reformative spirit to encourage people to give up their casteist
sentiments and accept inter-religious marriages. But this was done with caution and the initial
Act contained a provision which said that those who married under this Act would no longer
remain legal part of the joint family that they were before. This shall be further explained in the
final research project. This was done so that interests of both groups remained ‘balanced’.
Although this Act is a step towards realizing the objective of having a uniform civil code in the
country, the procedure to be followed to marry and register the marriage is cumbersome because
of which not many marriages take place under this Act. Marriage is a civil contract under Special
Marriage Act, not requiring performance of any ceremonies. There are other conditions to be
satisfied in this Act for the marriage to be validly registered which conflict with the personal
laws of the religion the parties belong to. For example, first cousin marriages though acceptable
as a valid marriage under Hindu and Muslim personal laws are void marriages under Special
Marriage Act. Therefore, such marriages cannot be registered. There is conflict with regard to
the age of majority to get married as well. A number of such infirmities in the law will be
highlighted.
 IMPACT OF SPECIAL MARRIAGE ACT

Overall Analysis of the Special Marriage Act

When enacted in 1954, the Special Marriage Act was intended – and indeed was in those times –
a reformatory law which was in sync with the aspirations and vision of our Directive Principles.
By legalizing inter-caste and inter-religious marriages, India had taken a laudable and
progressive step towards integration of the country through integration of the people. The
Special Marriage Act is a special legislation which was enacted to provide for a special form of
marriage by registration where the parties to the marriage are not required to renounce his/her
religion, which they would have had to in order to marry under any of the personal laws.
Therefore, this statute is often considered as a recognition of the independence of the individuals
from the collective coercive diktats of marriage. The reality however, is quite different. Prima
facie, no aberrations are observable in the object and reasons clause of the Act. But the procedure
laid down in the Act is rather cumbersome, time consuming and is in some cases inconsistent
with the criterion specified in personal laws. For instance, the minimum age of the male should
be 21 and the female 18, which is inconsistent with most if not all of the personal laws where
both parties can be lawfully married even before they attain 18 years of age. The process of
performance of the marriage, its registration and grant of marriage certificate is unnecessarily
lengthy and cumbersome. According to S.5 of the Act the parties to be married must notify the
Marriage Officer of the district in which atleast one of the parties has resided for a minimum of
30 days. The first step itself causes an unnecessary delay, rendering speedy marriage in case of
an emergency impossible. It also increases the possibilities of the couple being traced by their
family members, if they did not obtain their consent to get married. Further, S. 6 of the Act
requires the Marriage Officer to enter the notice of such intended marriage in the Marriage
Notice Book which will be open to inspection by any person desirous of doing so, without any
fee or charge. The procedure further demands the Marriage Officer to display such notice in a
conspicuous part of the room. Such procedure not only makes the couple vulnerable to familial
pressure tactics but also to extremist religious and fundamentalist groups who would then strive
to prevent the marriage. The argument adopted for defending such procedure is so that any
objections to the marriage may be recorded (S.7). However, the reality is that it merely makes it
easier for right wing groups to locate and harass these innocent couples whose only crime is to
belong to different castes or different religions and get married despite that. Such procedure
grants an indirect license to these Officers to prevent or delay the marriage at the very least, since
objections may be recorded on the flimsiest of grounds. Also, the punishment for baseless
objections is very light i.e. Rs.1000 fine payable to the couple.1 So, there is hardly any deterrence
in this regard which is rather worrisome since it does not accord such acts the proper weight that
an offence should have. A strange fact regarding filing of objections with the Marriage Officer is
that as per S.10 of the Special Marriage Act, the Marriage Officer may refer the objections to the
Central Government which would revert the matter to the said officer after conducting suitable
enquiry and giving its decision. Personal laws governing marriage do not have such a clause and
it is in fact absurd for the Central Government to be involved in a matter as individual and
personal as marriage. Except for Delhi, every other city follows the dangerous practice of
sending an intimation to the families of the couple getting married which makes it easier to
locate them, putting their very lives in danger in some cases. It seems as if the Special Marriage
Act has too many rules and safeguards which though well-meaning certainly cause discomfort to
the couple intending to marry by way of unwarranted interference.

Response and attitude of the society towards the Special Marriage Act

India is still a reluctant receptor of inter-caste and inter-religious marriages, although the
situation has improved considerably since 1954. More and more marriages are being solemnized
under this Act, even by parties from the same religion. But a large population is still against
inter-religious and inter-caste marriages which makes it imperative to alter S.6(2) if not repeal it
altogether. Most couples are in danger of being confronted and harassed by fundamentalist
elements and putting up notices announcing intended marriages only heightens these dangers.
Moreover such a complex procedure would require to parties to hire a lawyer to perform the
marriage which would only add to the cost the parties have to incur by living in a different city
altogether for a month. Casteism and religiosity are so deeply entrenched in the consciousness of
society that advocates, Marriage Officers and even District Magistrates and Additional District
Magistrates advice couples against marriage under the Special Marriage Act. Although there are

1
Kameshwar Choudhary, ‘Anatomy of the Special Marriage Act’ (1991) Economic and Political Weekly 2981
<http://www.epw.in/system/files/pdf/1991_26/52/anatomy_of_the_special_marriage_act.pdf> accessed 17 March
2015.
no official statistics, people prefer conversion to one of the partner’s religions to get married
rather than subject themselves to the cumbersome procedure and risk getting caught by their
family members or fundamentalist outfits. People often prefer marrying under the Muslim
Marriage Act, 1957 since it has the simplest procedure and the formalities take no more than half
a day. This could be one possible reason for the mass conversions of girls to Islam in Kerala.2

INFIRMITIES WITHIN THE ACT

As has been categorically stated above that although the Act was initially created with the
intention to facilitate inter-faith marriage, it has not served its purpose effectively. In fact, it
deters people from marrying under this Act due the unnecessarily lengthy and complicated
procedure that has to be followed, leading them to convert rather than face the hassle of getting
married under this Act. A comparison of the said Act in relation to the Hindu Marriage Act, 1955
and Muslim Marriage Act, 1957 shall be done to highlight the infirmities in the Act.

Marriage:-
Marriage under Muslim Law
The legal incidents of marriage in Islam are very simple. Marriage may be performed without
any ceremony or rites. Neither writing nor any religious ceremony is necessary. The main
requirements for a marriage under Muslim have been stated as follows3 –

1. A Muslim marriage requires proposal (Ijab) from one party and acceptance (Qubul) from
the other as is required for a contract. Both the proposal and the acceptance must be done
in the same meeting. Moreover there can be no marriage without free consent and such
consent should not be obtained by means of coercion, fraud or undue influence.

2
Izzie ‘Of Indian Marriage Laws and Conversions: The Case of Saifeena’ (Muslimah Media Watch, 27 February
2013)
< http://www.patheos.com/blogs/mmw/2013/02/of-indian-marriage-laws-and-conversions-the-case-of-saifeena/>
accessed on 18 March 2015.
3
‘Essentials of Valid Muslim Marriage’ (WebIndia123, 21 March 2014)
<http://www.webindia123.com/law/family_law/muslim_law/essentials_of_valid_marriage.htm accessed 19 March
2015.
 2. In case of legal incompetence like minority or unsoundness of mind, a guardian may
validly enter into a contract for marriage on his/her behalf.
3. Just as in case of contract, entered by a guardian, on attaining majority, so can a marriage
contract in Muslim Law, be set aside by a minor on attaining the age of puberty.
4. The parties to a Muslim marriage may enter into any ante-nuptial or postnuptial
agreement which is enforceable by law provided it is reasonable and not opposed to the
policy of Islam. Same is the case with a contract.
5. The terms of a marriage contract may also be altered within legal limits to suit individual
cases.
6. Under Shia law, no witnesses are required for the marriage to be held valid, however,
under Sunni law it is essential for the proposal and acceptance to take place before two
male Muslim adults or one male and two female Muslim adults being of sane mind.

Marriage under Hindu Law

The essentials for a marriage under Hindu law to be married have been laid down under the
Hindu Marriage Act, 1955 as follows –

1. Both parties must be Hindus.

2. Monogamy: None of the parties should have a spouse living at the time of marriage.
3. Sound Mind: The parties must be of sound mind and not suffering from any mental
incapacity.
4. Degrees of Prohibited Relationships: The parties must not have a relationship that
prohibits marriage between the two. However, if a valid custom allows such marriage,
there is nothing to restrict them from doing so.

According to S.7 of the Hindu Marriage Act, 1955 a Hindu marriage may be solemnized
according to the customary rites of either of the parties. In the case of Chandrabhagbai Ganpati
v. S.N. Kanwar4, the issue whether saptpadi was mandatory for a legal marriage arose and it was
held that by the trial court as well as the High Court that the marriage was legal notwithstanding
the fact that the marriage ceremonies did not include saptpadi. A marriage is presumed to have
been duly solemnized if it is shown that performance of some of the ceremonies usually

4
2008 MLR 21 (Bom).
observed on the occasion of marriage have taken place. In other words, if the marriage is shown
to have in fact taken place, ceremonies are presumed to have been duly performed. 5 However,
mere fact of joint living for a long time without any ceremonies would not constitute a valid
marriage.6

Marriage under Special Marriage Act

Marriage under the Special Marriage Act does not stand on ceremony and is a secular law which
prescribes the procedure for a court marriage. S.5 of the Act provides for a notice to the Marriage
Officer of the district when a marriage is said to be solemnized under this Act, in which one of
the parties of the marriage should have resided for a period not less than 30 days immediately
preceding the date on which notice is given. S.6 prescribes that notices shall be entered in the
marriage notice book by the Marriage Officer and such book can be inspected by any person
without fee at a reasonable time. The Marriage Officer shall publish such notice and affix a copy
of the same at some conspicuous place in the office. If the parties are not permanent residents in
the local district, then the notice has to be transmitted to the place where the other party resides
permanently. The object of this publication is to register objections, if any. Every petition under
S.31 of the SMA has to be presented to the district court within the local limits of whose
ordinary civil jurisdiction7 –

i) The marriage was solemnized; or

ii) The respondent at the time of the presentation of the petition resides; or
iii) The parties to the marriage last resided together; or
iv) The petitioner is residing at the time of the presentation of the petition in a case where
the respondent is at that time residing outside the territories to which this Act extends
or has not been heard of being alive for 7 years by those who would have naturally
heard of him, were he alive.

Therefore, it can be clearly observed that the procedure for marriage is rather lengthy and time
consuming under SMA whereas, under the Hindu and Muslim personal laws it is far more easier

5
Bai Diwali v. Moti 22 Bom 509 (1898).
6
Surjit Kaur v. Garja Singh AIR 1994 SC 135.
7
Kluwer, International Encyclopedia of Laws: Family and Succession Law, vol 3
with relaxed standards, so much so that not even registration of the marriage is required. This
makes SMA the least preferred mode of marriage.8

Divorce:-

Initially, SMA was the only law that provided for a divorce based on mutual consent. However,
after the 1976 amendments, S.13B of HMA lays down the conditions and procedure for a mutual
consent divorce. Under the Hindu Marriage Act, 1955 S.13 lays down the grounds of divorce
other than mutual consent. Divorce can be obtained on the following grounds –

1. Adultery
2. Cruelty
3. Desertion
4. Conversion to another religion
5. Incurably of unsound mind or suffering intermittently from mental disorder
6. Suffering from virulent and incurable form of leprosy
7. Suffering from a communicable venereal disease
8. Renunciation of the world
9. Has not been heard of being alive for 7 yrs

S.27 of the Special Marriage Act has been couched in the same exact words as in the Hindu
Marriage Act, albeit with a slight difference of two additional grounds of divorce i.e. on grounds
of indulging in rape, sodomy or bestiality and non-cohabitation for a year or above after passing
of a maintenance order under S.18 of HAMA, 1956 or S.125 CrPC. Under both the statutes it
was laid down that neither party to the marriage should be idiot or lunatic. But violation of this
condition rendered marriage null and void under the Special Marriage Act, but only voidable
under the Hindu Marriage Act.9

8
Sandeep Joshi, ‘Court Marriages Not an Easy Affair’ (Times of India, 14 October 2002)
<http://timesofindia.indiatimes.com/city/chandigarh/Court-marriages-not-an-easy-
affair/articleshow/25196402.cms?referral=PM> accessed 17 March 2015.
9
Paras Diwan, ‘Marriage and Divorce Law Reforms [The Marriage Laws (Amendment) Act, 1976]’ (EBC India:
Legally Addictive, 1977) <http://www.ebc-india.com/lawyer/articles/77v2a1.htm> accessed 19 March 2015.
For obtaining a mutual consent divorce under SMA or Hindu law the following three conditions
have to be satisfied10 –

1. The parties have been living separately for a period of atleast one year
2. They have not been able to live together and
3. They have mutually agreed to have the marriage dissolved

S.2 of the Dissolution of Muslim Marriages Act, 1939 lays down nine different grounds for
divorce exercisable by the wife. Apart from these grounds, other grounds mentioned in the Quran
i.e. Khula and Mubarat can also be procedures of divorce. While Khula is the absolute right of
the woman to obtain a divorce from her husband, Mubarat is a mutual consent divorce. Further,
the triple talaq form of divorce by the husband has been laid down by the Quran (Talaq-ul-Ahsan
and Talaq-ul-Hasan) as well as that in customary practice (Talaq-ul-Biddat) are also valid and
recognized forms of divorce in India.

Inheritance:-

Before the Marriage Laws (Amendment) Act, 1976 if a Hindu performed a civil marriage then
he/she would be effectively severed from his/her religion and from the coparcenary whose
member he/she was at the time of the marriage. This deterred Hindus from registering their
marriages under the secular SMA and only those who rebel against the wishes of their family
The Amendment Act, 1976 modifies this consequence so that, if both the parties to the civil
marriage are Hindus then it will not affect their severance, but if only one of them is a Hindu,
then it will still effect severance of status. 11 When both parties are believers of different
religions, marriage between them neither effects severance from their religions nor disentitles
them from any claim they may have had in the property of their parents or ancestors. The
inheritance will devolve on them as per the Indian Succession Act, 1925. Further, all their
offspring would be governed by the Indian Succession Act but would not be entitled to inherit or
have any rights over the properties of anyone except their parents. That is, no entitlement to
inherit from grandparents, uncles or aunts etc. Further, if two people following the same religion

10
Kusum, Family Law Lectures-I (3rd edn, Lexis Nexis Butterworths Wadhwa, 2011).
11
Paras Diwan, ‘Ceremonial Validity of Hindu Marriage: Need for Reform ’ (1977) 2 SCC J-22.
get married under SMA they will be governed by their respective personal laws and do not have
an option of choosing to be governed by the secular Indian Succession Act, 1925.

ANALYSIS

SMA as a concept is very practical, logical and in fact the need of the hour. However, there are
inconsistencies among the provisions as compared to the personal laws especially with regard to
the age of marriage and procedure for marriage. Another aspect that differentiates SMA from
personal laws is that marriage must be registered to be valid whereas, it need not be under
personal laws. The reason for this is the differential ages in marriage. Under Hindu law the bride
must be atleast 15 yrs and the groom atleast 18 yrs of age, under Muslim law the girl is eligible
for marriage as soon as she attains puberty and same goes for the boy. But under SMA both the
parties (of same religion) have to be 21 yrs of age to get their marriage registered. This creates a
lot of problems for those under 21 with respect to registration of their marriage. Moreover, this
differentiation in the age of marriage prevents registration since child marriages, though
prohibited by the Prohibition of Child Marriages Act, 2006, are valid under personal laws. There
is an urgent need to revise and amend both personal laws as well as SMA to reconcile them with
each other and facilitate registration of marriages. Following inconsistencies and infirmities have
been noticed in the Special Marriage Act, 1955 –

1. Age of parties: Parties marrying under SMA and belonging to different religions must be
of 18 yrs and 21 yrs for the woman and the man respectively, while parties of the same
religion marrying under SMA must both be 21 yrs of age for their marriage to be
registered.
2. Inheritance: Both parties following the same religion marry under SMA. They will be
governed by their personal laws in matters of inheritance and succession and do not have
the option of choosing to abide by the secular Indian Succession Act.
3. Procedure: This is a major contention with SMA. The procedure prescribed is so lengthy
and cumbersome and the repercussions are sometimes so dangerous to the point of being
life-threatening that couples prefer conversion rather than marrying under this so-called
secular law. Not only is the procedure excruciatingly tiresome, the Marriage Officers and
other personnel handling registration of such marriages assume the title of self-declared
marriage counselors who repeatedly advise the couple getting married to ‘mend their
 ways’ and not indulge in such a union as if it were a sin that they were committing. More
often than not these Officers send notices to the families of the couple stating their
intention of marriage, current address etc. Personal laws do not require any notice of
intending marriage to be posted practically inviting objections. This exposes such couples
to the wrath of fundamentalist groups who then either inform the parents or attempt to
convince or force the couple to desist from marrying each other.

The non-acceptance of inter-caste and inter-religious marriages in our country has given SMA a
bad name, labeling it a provision under which those couples who do not have any other option or
haven’t been blessed by their families get married. Such archaic notions prevent progress in the
society, creating multiple problems for liberal thinking people who promote individual freedom
to marry whomever one chooses opposed to familial involvement in choosing a ‘suitable’
partner. There is an immediate need to alter the thought process of people for the benefit of the
society and the rights of individuals. Personal laws often downplay womens’ rights, sidelining
them over preference to the male gender. Secular laws applicable to all is the answer to this
conundrum and laws must become the catalyst to change and influence public thought.
 BIBLIOGRAPHY

BOOKS

 Kusum, Family Law Lectures-I (2nd edn, Lexis Nexis Butterworths Wadhwa, 1999)
 Kusum, Family Law Lectures-I (3rd edn, Lexis Nexis Butterworths Wadhwa, 2011)
 Diwan, PModern Hindu Law (Allahabad Law Agency, 2014)
 Walter Pintens (ed), International Encyclopedia of Laws: Family and Succession Law,
vol 3 (Kluwer, 2012)

ARTICLES

 Diwan, P, ‘Ceremonial Validity of Hindu Marriage: Need for Reform ’ (1977) 2 SCC J-
22
 Joshi, S, ‘Court Marriages Not an Easy Affair’ (Times of India, 14 October 2002)
<http://timesofindia.indiatimes.com/city/chandigarh/Court-marriages-not-an-easy-
affair/articleshow/25196402.cms?referral=PM> accessed 17 March 2015.
 Diwan, P, ‘Marriage and Divorce Law Reforms [The Marriage Laws (Amendment) Act,
1976]’ (EBC India: Legally Addictive, 1977)
<http://www.ebc-india.com/lawyer/articles/77v2a1.htm> accessed 19 March 2015
 Kameshwar Choudhary, ‘Anatomy of the Special Marriage Act’ (1991) Economic and
Political Weekly 2981
<http://www.epw.in/system/files/pdf/1991_26/52/anatomy_of_the_special_marriage_act.
pdf> accessed 17 March 2015

WEBSITES AND REPORTS

 ‘Review of Laws and Legislative Measures Affecting Women’ (National Commission

for Women, 10 February 2015) <http://ncw.nic.in/frmReportLaws24.aspx> accessed 10
February 2015
 Law Commission, Hindu Marriage Act, 1955 and Special Marriage Act, 1954 (Law Com
No 59, 1974) <http://lawcommissionofindia.nic.in/51-100/report59.pdf> accessed 9
February 2015
 Swaraj, K, ‘Inconsistencies in Special Marriage Act’, Legal Services India, 20.01.14
< http://www.legalservicesindia.com/article/article/inconsistencies-in-special-marriage-
act-1954-1626-1.html> accessed 9 February 2015

 Izzie ‘Of Indian Marriage Laws and Conversions: The Case of Saifeena’ (Muslimah
Media Watch, 27 February 2013)
< http://www.patheos.com/blogs/mmw/2013/02/of-indian-marriage-laws-and-
conversions-the-case-of-saifeena/> accessed on 18 March 2015
 ‘Essentials of Valid Muslim Marriage’ (WebIndia123, 21 March 2014)
<http://www.webindia123.com/law/family_law/muslim_law/essentials_of_valid_marriag
e.htm accessed 19 March 2015