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Special Marriage Act, 1954

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The Special Marriage Act, 1954
Parliament of India
  • An Act to provide a special form of marriage on certain cases, for the registration of such and certain other marriages and for divorce.
CitationNo.43 of 1954
Enacted byParliament of India
Assented to9 October 1954
Commenced1 January 1955
Status: In force

The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for secular civil marriage (or "registered marriage") for people of India and all Indian nationals in foreign countries, irrelevant of the religion or faith followed (both for inter-religious couples and also for atheists and agnostics) by either party.[1] The Act originated from a piece of legislation proposed during the late 19th century. Marriages solemnized under Special Marriage Act are not governed by personal laws and is considered to be secular.[2]

Background

Henry Sumner Maine first introduced Act III of 1872, which would permit any dissenters to marry whomever they choose under a new civil marriage law. In the final wording, the law sought to legitimize marriages for those willing to renounce their profession of faith altogether ("I do not profess the Hindu, Christian, Jewish, etc. religion"). It can apply in inter-caste and inter-religion marriages.[3] The Bill faced opposition from local governments and administrators, who believed that it would encourage marriages based on lust, which would inevitably lead to immorality.[4]

The Special Marriage Act, 1954 replaced the old Act III, 1872. The new enactment had three major objectives:

  1. To provide a special form of marriage in certain cases,
  2. to provide for registration of certain marriages and,
  3. to provide for divorce.[5]

Applicability

  1. Any person, irrespective of religion.[6]
  2. Hindus, Muslims, Buddhists, Jains, Sikhs, Christians, Parsis, or Jews.[6]
  3. Inter-religion marriages.[6]
  4. Entire territory of India and extends to intending spouses who are both Indian nationals living abroad.[6]
  5. Indian national living abroad.[7]
  6. Foreign national and Indian national within India.

Procedure

The marriage performed under the Special Marriage Act, 1954 is a civil contract. There is no need for rites or wedding ceremonies.[8]

The parties have to file a Notice of Intended Marriage on a specified form to the Marriage Registrar of the district in which one of the parties resides. The party must have resided there for at least thirty days immediately preceding the filing.[9]

The notice is published and a thirty-day waiting period is required during which objections may be raised to the marriage. At the conclusion of the waiting period, the marriage may be solemnised at a specified Marriage Office.[9]

Marriage is solemnised by each party declaring "I, (A), take thee (B), to be my lawful wife (or husband)," in the presence of the Marriage Officer and three witnesses.[9] A marriage certificate is issued directly by the Registrar of Marriage appointed by the Govt. of India.

Conditions for marriage

  1. Each party involved should have no other subsisting valid marriage. In other words, the resulting marriage should be monogamous for both parties.[9]
  2. The groom must be at least 21 years old; the bride must be at least 18 years old.[9]
  3. The parties should be competent in regard to their mental capacity to the extent that they are able to give valid consent for the marriage.[9]
  4. The parties should not fall within the degree of prohibited relationship.[10]

Succession to the property

Succession to the property of person married under this Act or customary marriage registered under this Act and that of their children, are governed by Indian Succession Act.[11] However, if the parties to the marriage are Hindu, Buddhist, Sikh or Jain religion, the succession to their property will be governed by Hindu succession Act.

The Supreme Court of India, in 2006, made it required to enroll all relational unions. In India, a marriage can either be enlisted under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. The Hindu Marriage Act is pertinent to Hindus, though the Special Marriage Act is appropriate to all residents of India regardless of their religion applicable at Court marriage.

Judicial review

Supriyo v. Union of India

Main article: Supriyo v. Union of India

The petition requested the Supreme Court to recognise the marriage between any two persons, regardless of gender identity and sexual orientation, and declare the notice and objection provisions as void, by enforcing the fundamental rights guaranteed under Articles 14, 15, 19 and 21 of the Indian Constitution.[12][13][14][15][16][17]

Nikesh P.P. & Sonu M.S filed a petition with Kerala High Court on 24 January 2020. Dr Kavita Arora & Ankita Khanna filed a petition with Delhi High Court on 8 October 2020 and they were joined by other petitioners over the course of time.[13][14] On 6 January 2023, their petitions were transferred to Supreme Court to be heard along with Supriyo v. Union of India (2023).[18][19] Additionally, most of the petitioners challenged the notice and objection provisions of the Special Marriage Act and the Foreign Marriage Act of 1969 which hurt vulnerable minorities.[15][17]

See also

References

  1. ^ "Special Marriage Act - Special Marriage Act 1954, Special Marriage Laws In India". I Love India. Retrieved 14 March 2022.
  2. ^ "'Marriages under Special Marriage Act not governed by personal laws'". The Hindu. 29 March 2018.
  3. ^ "10 things every Indian should know about the Special Marriage Act,1954". 9 December 2014.
  4. ^ Perveez Mody, "Love and the Law: Love-Marriage in Delhi," Modern Asian Studies 36:1 (2002): 223-256
  5. ^ "Divorce, under the Special Marriage Act, 1954". valkilno1.com. Archived from the original on 27 May 2010. Retrieved 24 September 2010.
  6. ^ a b c d "Registered Marriage Under Special Marriage Act, 1954". Tax4India. Archived from the original on 3 January 2010. Retrieved 24 September 2010.{{cite web}}: CS1 maint: bot: original URL status unknown (link)
  7. ^ "MEA Guidance on Indians Marrying abroad" (PDF).
  8. ^ "Place And Form Of Solemnisation, Registered Marriage". Tax4India. Archived from the original on 3 January 2010. Retrieved 24 September 2010.{{cite web}}: CS1 maint: bot: original URL status unknown (link)
  9. ^ a b c d e f "The Special Marriage Act, 1954". DelhiAdvocate. Archived from the original on 31 October 2010. Retrieved 24 September 2010.{{cite web}}: CS1 maint: bot: original URL status unknown (link)
  10. ^ "Necessary conditions for a registered marriage". Tax4India. Archived from the original on 3 January 2010. Retrieved 24 September 2010.{{cite web}}: CS1 maint: bot: original URL status unknown (link)
  11. ^ http://indiankanoon.org/doc/552306/ Bombay High court judgment reported by Indian Kanoon
  12. ^ Guruswamy, Menaka; Katju, Arundhati; Borthakur, Shristi (14 November 2022), Supriyo a.k.a Supriya Chakraborty & Abhay Dang versus Union Of India thr. Its Secretary, Ministry of Law and Justice. (PDF) (Writ Petition (Civil)), Supreme Court of India{{citation}}: CS1 maint: location missing publisher (link)
  13. ^ a b Perumpallikuttiyil, George Varghese; A.R., Dileep; P.J., Joe Paul; Srinath, Manu; George, Rajan G. (24 January 2020), Nikesh P.P. & Sonu M.S. versus Union Of India thr.Its Secretary, Ministry of Law and Justice. (PDF) (Writ Petition (Civil)), High Court of Kerala{{citation}}: CS1 maint: location missing publisher (link)
  14. ^ a b Katju, Arundhati; Dhar, Surabhi (5 October 2020), Dr. Kavita Arora & Ankita Khanna versus Union Of India thr. Its Secretary, Ministry of Law and Justice. (PDF) (Writ Petition (Civil)), High Court of Delhi{{citation}}: CS1 maint: location missing publisher (link)
  15. ^ a b Deshwal, Puneet (20 February 2023). "Supreme Court Issues Notice In Plea Seeking Recognition Of Transgender Persons Under Special Marriage Act 1954". www.verdictum.in. Retrieved 22 February 2023.
  16. ^ Bhatia, Gautam; Saxena, Utkarsh; Sekhri, Abhinav; Jain, Hrishika (15 December 2022), Utkarsh Saxena & Ananya Kotia versus Union Of India thr. Its Secretary, Ministry of Law and Justice. (PDF) (Writ Petition (Civil)), Supreme Court of India{{citation}}: CS1 maint: location missing publisher (link)
  17. ^ a b "Same-Sex Couples Already Vulnerable, Public Notice Of Intended Wedding Under Special Marriage Act A Deterrent: Plea In Supreme Court, Notice Issued". www.livelaw.in. 6 January 2023. Retrieved 27 February 2023.
  18. ^ "Supreme Court transfers to itself all petitions on same-sex marriage". The Hindu. 6 January 2023. ISSN 0971-751X. Retrieved 13 February 2023.
  19. ^ Supriyo a.k.a Supriya Chakraborty & Abhay Dang versus Union Of India thr. Secretary Ministry of Law and Justice, W.P.(C) No. 1011/2022 (Supreme Court of India 6 January 2023).
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