Special Marriage Act.docx

Special Marriage Act, 1954 The main reason behind passing the Special Marriage Act, 1954 was to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party.[1] The Act originated from a piece of legislation proposed during the late 19th century. In 1872 Act III, 1872 was enacted but later it was found inadequate for certain desired reforms, and Parliament enacted a new legislation. Henry Sumner Maine first introduced Act III of 1872, which would permit any dissenters to marry whomever they chose under a new civil marriage law. In the final wording, the law sought to legitimate marriages for those willing to renounce their profession of faith altogether ("I do not profess the Hindu, Christian, Jewish, etc. religion"). Overall, the response from local governments and administrators was that they were unanimously opposed to Maine’s Bill and believed the legislation encouraged marriages based on lust, which would inevitably lead to immorality.[2] The Special Marriage Act, 1954 replaced the old Act III, 1872. The new enactment has 3 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.[3]

Applicability of the Special Marriage Act, 1954 1. Any person, irrespective of religion.[4] 2. Hindus, Buddhists, Jains, Sikhs can also perform marriage under the Special Marriage Act, 1954.[4] 3. The Muslim, Christian, Parsi, or Jewish religions can also perform marriage under the Special Marriage Act, 1954.[4] 4. Inter-caste marriages are performed under this Act.[4] 5. This Act is applicable to the entire territory of India (excluding the states of Jammu and Kashmir) and extends to intending spouses who are both Indian nationals living abroad.[4]

Requirements under the Special Marriage Act, 1954 1. The marriage performed under the Special Marriage Act, 1954 is a civil contract and accordingly, there need be no rites or ceremonial requirements.[5] 2. The parties have to file a Notice of Intended Marriage in the specified form to the Marriage Registrar of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.[6] 3. After the expiration of thirty days from the date on which notice of an intended marriage has been published, the marriage may be solemnized, unless it has been objected to by any person. 4. The marriage may be solemnized at the specified Marriage Office.[6] 5. Marriage is not binding on the parties unless each party states "I, (A), take thee (B), to be my lawful wife (or husband)," in the presence of the Marriage Officer and three witnesses.[6]

[edit] Conditions for marriage under the Special Marriage Act, 1954 1. Each party involved should have no other subsisting valid marriage. In other words, each party should be monogamous.[6] 2. The bridegroom must be at least 21 years old; the bride must be at least 18 years old.[6] 3. The parties should be competent in regards to their mental capacity to the extent that they are able to give valid consent for the marriage.[6] 4. The parties should not fall within the degree of prohibited relationship.[7]

[edit] Discrepancies between Hindu law and the Special Marriage Act, 1954 Over a period of time, the Judiciary has noticed certain discrepancies caused by the parallel regimes of Hindu law and the Special Marriage Act, 1954. Most recently, in February 2008, the High Court issued notices to the State Governments of Punjab and Haryana seeking to destroy a few conflicting provisions in the Hindu Marriage Act (1955) and the Special Marriage Act, 1954. One of the conflicting provisions highlighted by the High Court was that under the Special Marriage Act, 1954, a marriage solemnized was void if either of the parties to the marriage had not attained the requisite age, but such a marriage solemnized under the Hindu Marriage Act would not be void (though punishable under the Child Marriage Restraint Act). Likewise, after attaining puberty, if a marriage is contract under the Muslim Law then such marriage is also valid and liable to be registered. If any dispute arises regarding the validity of marriage then the registration is the strongest source to prove that the marriage is valid[