Marriages have always been one of the most integral institutions of any society related to humankind. The nature and meaning of marriage have been evolving with changing times. The tradition of marriage was initially started as an alliance of two individuals for the purpose of economic or political and procreational objectives. Over a period of time, more substance and meaning got attached to marriage and it became a fundamental basis of every religion and society. Today, the fundamentals of marriage as an institution have advanced from just companionship to a symbiotic relationship where two individuals grow together personally and professionally with their off-springs.The main aim behind the enactment was to help enable the solemnization and marriage registration of special marriages and to provide the provisions in the case of divorce in these special marriages.
NEED FOR SPECIAL MARRIAGE ACT, 1954
In a society like India, where diversity of cultures and religions co–exist; despite having diversity within the population, people tend to prefer such association within their own faith and religion. The concept of inter faith or inter religion marriage has been rejected and outcasted. The rights of individuals who opt for inter faith and inter religion marriages have remained subjugated by the members of their community. In order to protect inter faith and inter religion marriages, the Special Marriage Act, 1954 was introduced. The main aim behind the enactment was to help enable the solemnization and marriage registration of special marriages and to provide the provisions in the case of divorce in these special marriages. This Act allows inter – faith or inter – religion marriages for all Indian nationals and extends to the whole of India including the State of Jammu and Kashmir. This Act gives an individual the freedom to retain his own religion and not to convert to a different religion in order to marry someone outside of their religion and faith.
PRE REQUISITES FOR SOLEMNIZATION OF MARRIAGE REGISTRATION UNDER SMA, 1954
The Special Marriage Act, 1954 specifically lays down the conditions that are required to be fulfilled in order to solemnize a marriage and can be found in Section 4 of this Act that are mentioned as follows:
- Both the parties should not have a spouse living at the time of the marriage.
- Both the parties should be able to give their free consent at the time of marriage and shall not be barred to do so by the reason of insanity. Also, even if the parties freely consent at the time of marriage, none of the parties should be suffering from any mental disorder of such nature that makes them unfit for sustaining the marriage or for procreation. Furthermore, none of the parties, at the time of marriage should be suffering from recurrent attacks of insanity.
- At the time of marriage, the female should have attained the age of 18 years and the male should have attained the age of 21 years respectively.
- Both the parties should not be within the degree of prohibited relationships mentioned in Schedule I of the Special Marriage Act, 1954. Prohibited relationships are defined in Section 2(b) of the Act. (However, if the customs of at least one of the parties are such that allow them to get married despite the fact they fall within the degrees of prohibited relationships, then such marriage may be solemnized under this Act).
If all these conditions are met, then a couple can solemnize their marriage under this Act without having to worry about their faith, religion or traditions as this Act protects their marriage and gives them the liberty to be with the ones they choose. The only requirement apart from the ones stated above are the willingness of both the parties and the parties can simply get their marriages solemnised and registered without getting into the hassle of performing ceremonies and customs that are otherwise extremely important in personal laws.
At the time of the marriage registration, following are the documents that would be required by the Marriage Officer:
- An application form duly signed by both the parties to the marriage.
- Proof of residence of both the parties to the marriage.
- Birth documents like birth certificate or matriculation certificate or passport confirming the age of the parties to the marriage.
- Rs. 150 has to be submitted to the district cashier and a receipt has to be submitted along with the application form.
- One marriage photo of the couple if the marriage is already solemnized and 2 passport size photos of both the parties to the marriage.
- A certificate from the religious institution verifying the solemnisation of marriage in case the couple performed their marriage at a religious institution.
- A wedding invitation if the parties have already solemnized their marriage.
- An affirmation from both the parties stating that they do not fall in the degrees of prohibited relationship.
- A divorce decree to be attached along with the application form if either or both the parties to marriage have been divorced prior to their marriage under Special Marriage Act, 1954.
- If either of the parties to the marriage is a widow/widower, death certificate has to be attached along with the application form.
- An affidavit stating the date, time and place of the marriage, marital status and nationality of both parties shall be attached along with the application form.
- At the time of meeting at sub-registrar’s office, 2 witnesses each must be present from both the parties to the marriage.
- If the marriage has already been solemnized, then 2 witnesses each from both the parties to the marriage must be present at the meeting at sub-registrar’s office.
PROCEDURE TO SOLEMNIZE THE MARRIAGE
The procedure to solemnize the marriage has been laid down in Section 5 to Section 14 of the Act.
Issuance of mandatory notice
Section 5 makes it compulsory for the parties to issue a written notice to the Marriage Officer of a district where at least one of the two parties have resided for not less than 30 days from the date of issuance of the said notice.
Record of the notice and it’s publication
Under Section 6, a record of all the notices has to be maintained by the Marriage Officer in the Marriage Notice Book where a true copy of such notice has to be entered and shall be open to inspection for anyone who wishes to inspect the same. This section further mandates the Marriage Officer to fix a copy of such notice at a conspicuous part of his office and if the parties issuing such notice do not reside in the district of the Marriage Officer that the parties have issued the notice to, then the Marriage Officer is duty bound to transfer the copy of such notice to the Marriage Officer of the district that the parties reside in and such Marriage Officer is required to follow the same procedure.
Objection to marriage
Section 7 allows any person to object the union of the 2 parties within 30 days from the issuance of the notice and in such a situation, the Marriage Officer is required to record the nature of objection in writing in the Marriage Notice Book which is then read to the person raising the objection and is duly signed by him or by someone on his behalf. The most commonly raised objections include the parties to marriage to be in contravention of Section 4 of this Act. However, if no objection is raised, then such marriage may be solemnized under this Act.
Procedure to deal with the objections received
Section 8 lays down the procedure for an objection received. This section makes it binding on the Marriage Officer to inspect the matter of objection within 30 days of receipt of such objection and if the Marriage Officer is convinced that the objection holds no substance or the person making the objection withdraws the objection raised by him/her, the Marriage Officer can then solemnize the marriage.
However, if the Marriage Officer upholds the objection, then the aggrieved party may prefer an appeal against the same within 30 days from the date of such refusal in the district court and in such a scenario, the decision of the district court shall be final and binding.
Powers of the Marriage Registration Officer
Section 9 confers powers to the Marriage Officer in respect of the inquiries that he is required to conduct under Section 8 of the Act giving the Marriage Officer all the powers vested in a Civil Court under CPC, 1908 while trying a suit and the proceedings conducted before the Marriage Officer shall be treated as a Judicial proceeding within the meaning of Section 193 of Indian Penal Code, 1908. This section further empowers the Marriage Officer to impose penalties if he finds the objection raised to be unreasonable and mala fide.
Procedure to deal with objections received by Marriage Registration Officer abroad
If an objection is made to a Marriage Registration Officer in the State of Jammu and Kashmir, then such Marriage Registration Officer under Section 10 shall first inquire the matter and then communicate his findings and record to the Central Government. Central Government then, after making inquiry into the matter and seeking advice as it thinks fit, shall give its decision to the Marriage Registration Officer in writing who shall be bound to follow the same.
Section 11 makes it imperative for the parties and 3 witnesses to sign a declaration specified in Schedule III of this Act in the presence of the Marriage RegistrationOfficer which is then countersigned by the Marriage Registration Officer before the solemnization of the marriage.
Place and form of solemnization
Section 12 describes the place and form of solemnization of marriage and states that the marriage can either be solemnized at the office of the Marriage Officer or at any place within a reasonable distance from the office upon the payment of the stipulated fee. Furthermore, the parties are at liberty to choose the way they want to solemnize their marriage however it is mandatory for them to say – “I (A), take thee (B), to be my lawful wife (or husband)” in presence of the marriage officer and 3 witnesses.
Marriages on virtual platform
In Vasmi Sudarshini v. Sub Registrar, WP ( MD ) No. 15511 of 2022, the Hon’ble Madras High Court while citing various historical references, foreign laws and international covenants, permitted a couple to solemnize their marriage on a virtual platform under Special Marriage Act, 1954 stating – “Section 12(2) does not preclude virtual presence of the parties. Right to Marry is a fundamental right and Section 12 and 13 of this Act shall be construed to effectuate this right.”
Marriage Registration Certificate
Once the marriage has been solemnized, a marriage certificate has to be entered into the book called Marriage Certificate Book in accordance with Section 13 and the parties to the marriage and the 3 witnesses are required to sign such certificate which would act as conclusive evidence of the solemnization of such marriage under this Act.
When marriage not solemnized within 3 months, new notice issued
Section 14 specifies that if a marriage is not solemnized within 3 months from:
- Date of the issuance of notice; or
- the date of decision of an appeal preferred under Section 8(2); or
- the date of decision of the Central Government where record of the case was transmitted to the Central Government.
Then a new notice will have to be issued to the Marriage Officer and the entire procedure will have to be followed again in order to solemnize the marriage under this Act.
STRIKING DOWN NOTICE UNDER SECTION 5, SMA, 1954
It is important to note that Section 5 was recently challenged in the Allahabad High Court in Smt. Safiya Sultana Thru Husband Abhishek Kumar Pandey and Anr. Vs. State of U.P., Thru Secy Home and Ors. Habeas Corpus No. – 16907 of 2020, where the Hon’ble Allahabad High Court held that Section 5 that made it mandatory for the parties to get a notice issued for the intended marriage and gave liberty to raise objections to the said union is violative of the privacy of the parties and if no such provision is mandatory in other Acts like the Hindu Marriage Act 1955 etc, then the same should be the case for the marriages solemnized under the Special Marriage Act and made it optional for the parties. As a consequence of this, Section 6 – 10 also become optional and can only function if the parties opt for issuance of the notice under Section 5.
LGBTQ AND SMA, 1954
Special Marriage Act, 1954 has been enacted with a view to help solemnize and register special forms of marriages in certain cases, however, it only applies to opposite sex. This Act is completely silent on same sex marriages and its constitutionality has recently been challenged in the Hon’ble Supreme Court in Supriyo @ Supriya Chakraborty & Anr. Vs. Union of India W.P.(s) Civil No(s).1011/2022 on the ground that it is ultra vires of the Constitution. It is further argued that it negates the purpose of decriminalizing same sex relationships if same – sex couple cannot even enjoy the social recognition and legal rights that flow from a marriage. The case is currently pending before the Hon’ble Supreme Court of India.
Special Marriage Act, 1954 not only protects the rights of people who want to marry outside their faith or religion but also lays the guidelines and procedures and paves a way for them to lead a life on their own terms without being stigmatised. Special Marriage Act, 1954 acts as an umbrella to the marriages that otherwise could not be performed, legitimised and accepted given their special circumstances.
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