Special Marriage Act

Step-1: Eligibility Check

All the given eligibility criteria should meet before applying for the Special Marriage Act: 

1. Both the intending parties must be Indian citizens.
2. At the time of the marriage, neither of the parties must have a living spouse. Where either or both of the parties have been involved in an earlier marriage, it is essential that the earlier marriage is dissolved legally before applying under this Act.
3. Both parties must be in a position to grant free and full consent to the marriage.
4. The intending parties shall adhere to the age limit laid down in this Act. At the time of applying for marriage, the female should be at least eighteen years old, and the male must have completed the age of twenty-one.
5. The Act prohibits marriage solemnization if the intending parties fall within the degree of prohibited relationships as per the customs governing any of the parties. The degrees of prohibited relationship vary from custom to custom. The Act’s First Schedule provides for a comprehensive list of relationships that may be considered prohibited. However, the rule is that it may be solemnized if a custom governing at least one of the parties allows marriage as intended.

Step-2: Reach out to the concerned Marriage Officer

The district jurisdiction may be invoked in which either of the two parties has a permanent residence (must live there for at least 30 days prior to the notice being submitted). To apply, reach the chosen district marriage officer (either the intending husband or the intending wife resides). The application should be written in accordance with the format set out in the Second Schedule. For reference, the format is also set out below:

NOTICE OF INTENDED MARRIAGE

To Marriage Officer for the ………………District. We hereby give you notice that a marriage under the Special Marriage Act, 1954, is intended to be solemnized between us within three calendar months from the date hereof.

A, B. Unmarried

Widower

Divorcee

C.D. Unmarried

Widow

Divorcee

Witness our hands this …………………………………………..day of ………………….19.

(S.d.) A.B. (S.d.) C.D.

Step-3: Public Notice and Objections 

Once such an application has been received by the marriage officer, duly signed by both parties, the officer shall then issue a thirty-day public notice to raise objections to the intended marriage if any. The objections generally relate to non-compliance with the conditions referred to in Section 4 of the Act (also referred to in Step 1). If the conditions are duly met and no such objections are raised, a marriage certificate should be entered in the Marriage Certificate Book. Here, both the intending parties and the witnesses are required to sign.

The marriage under this Act can be said to be duly solemnized and registered after having completed all of the above steps. Please note that you may also need certain documents along with three witnesses on the day of solemnization. An illustrative list has been provided here:

1. Proof of Age
2. Address Proof
3. Affidavit with regard to Marital Status
4. Non-Relationship between the parties within the degree of prohibition.
5. Passport size Photos.

Notice of Proposed Marriage

Any couple wishing to make use of the fruits of this Act is required to issue a written notice to the district’s “Marriage Officer” where for the last thirty days at least one of the parties to the marriage has resided. The marriage is usually scheduled to take place within three months from the date of issue of notice. The notice thus received will be published by displaying it in a noticeable place in the office of the Marriage Officer. A copy of the notice must also be attached to a “Marriage Notice Book” that anyone can inspect.

Special Marriage Act 1954 Application Form

Period of Objection

Any objections to marriage regarding age, consent capacity, incest, etc. may be addressed to the Marriage Officer within 30 days of the notice being published. The Marriage Officer is mandated to conduct an inquiry into its validity within a 30-day window period of time, during which the marriage can not be solemnized in case of any objections. If the marriage officer finds that the objection is valid and decides against the marriage of the parties concerned, the bride or groom may, within thirty days of such refusal, appeal to the district court. If all the objections concerned are dealt with, a declaration must be signed by the bride, groom, and any three witnesses in the presence of the Marriage Officer, who would then countersign it. The marriage will be solemnized upon the cessation of the objection period in the absence of any objections.

Power of Enquiry

In receiving an objection, marriage officers are granted the following rights: 

1. Summoning and enforcing witnesses’ attendance.
2. Examining the witnesses on oath.
3. Demanding documents to produce.
4. Demanding the evidence on affidavits.
5. Issue of commissions for the witness scrutiny.

Unreasonable Objections

If the marriage officer believes that the objection he/she has received is not reasonable and is not made in good faith, the person making the objection may be on the receiving end of objective costs of up to Rs. 1,000. The sum received will be awarded to the parties of the proposed marriage for this purpose.

Objections in Jammu & Kashmir

Any objections regarding a proposed marriage made in Jammu and Kashmir State will be addressed by the respective Marriage Officer to the Central Government. The Central Government inspects the case on its own conditions and communicates its decision to the Marriage Officer, who then implements the decision ordered by the governing body.

Solemnization of Marriage

After clearing objections, the marriage may be solemnized at the expiry of 30 days, if any field. The notice is valid for 3 months. Before the marriage is solemnized, the parties and three witnesses should sign declarations in the prescribed form in the presence of the marriage officer.

In whatever form the parties may choose to adopt, marriage can be solemnized. The marriages can be solemnized either within a reasonable distance from the office of the marriage officer or at such other place as the parties may wish.

Procedure for solemnisation of marriage

The Special Marriage Act, 1954 of 1954 mandates various preliminaries and civil requirements before marriage may be solemnised. Both intending parties to the marriage must send a written notification to the Marriage Registrar of the district in which at least one of the parties to the marriage has lived for a minimum of 30 days. When the Marriage Registrar obtains the notice of marriage, he must publish it by affixing a copy to a prominent location in his office. The Marriage Registrar is required to maintain all notices with records in his office and to register a genuine copy of each such notice in the ‘Marriage Notice Book,’ which is available to everybody for examination without charge. Any individual may object to the marriage before the expiration of thirty days from the date of publication on the grounds that it violates the requirements established in Section 4 of the Act. 

Following the completion of the thirty-day objection period, the marriage will be solemnised, unless it has already been opposed to by any individual. In any case, if an objection is raised against an intended marriage, the Marriage Registrar cannot solemnise the marriage until he has investigated the matter of objection and reached a decision that the earlier raised objection will not prevent the marriage from being solemnised, or the prior objection is withdrawn by the individual raising it. However, if the marriage officer validates the objection and refuses to solemnise the marriage, any of the intended parties may file an appeal with the district court within the local limits of the marriage officer’s office within thirty days, and the decision of the district court on such appeal will be binding, and the marriage officer must act in accordance with the court’s decision.

Before the marriage may be solemnised, the intended parties and three witnesses must sign a statement in the prescribed form in the presence of a Marriage Officer, and the declaration must also be notarized by the Marriage Registrar himself. Following this, the marriage can be solemnised in the Marriage Registrar’s office or wherever else the parties prefer. In front of the Marriage Officer and three witnesses, each party must state to the other partner in any language known by the parties, “I, (X), accept the (Y), to be my lawful wife (or husband).” After the marriage is solemnised, the Marriage Officer writes the facts on a certificate which he keeps in a ‘Marriage Certificate Book’ also called the Marriage Registration Record which has to be duly signed by the newlyweds along with the three witnesses and serves as definitive proof of the marriage. 

Before the expiration of 30 days from the date on which any such notification has been published under sub-section (2) of Section 6, any person may object to the marriage on the grounds that it would violate one or more of the requirements mentioned in Section 4.

Registration of Marriage Celebrated in Other Forms

Any marriage celebrated, with the exception of those solemnized in accordance with these provisions, may be registered by a marriage officer under Chapter III of the Act, subject to the condition that a marriage ceremony has been conducted for the parties under any of the Acts and that the couple has since led a marital life. Besides that, the conditions for the conduct of marriage specified in this Act shall apply.

Implications on Family Membership

Any member of an undivided family who professes the religion of Hinduism, Buddhism, Sikhism or Jainism would be forced to separate from such a family, i.e. a family member married under this Act would not be considered a part of the family hierarchy after the marriage proceedings under this Act were terminated.

Restitution of Conjugal Rights

On marriage, it is the parties ‘ primary duty to live together in order to fulfill their marital obligations. This right to cohabit with one another is called the’ consortium’ right. Husband and wife have the right to each other’s society, comfort, and affection. The origin of the action seems to lie in the husband’s early concept of law having a quasi-proprietary right over the wife. It included the society of his wife as well as its services. The consortium notion presumed a distinct footing of mutuality with the passage of time. Conjugal rights can not be enforced by either party’s actions, and by force, a husband can not seize his wife and detain her. If a spouse makes an infringement of this obligation without any justifiable cause, the other may go to court to restore his conjugal rights.

Section 22 of Chapter V of the Special Marriage Act, 1954, sets out the conditions under which a petition for restitution of conjugal rights would be based.

22. Restitution of conjugal rights – When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply to petition to the district court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Explanation: Where a question arises as to whether there was a reasonable excuse for withdrawal from society, the burden of proving a reasonable excuse is on the person who withdrew from society.

The section’s elements are as follows: 

1. The respondent withdrew from the petitioner’s society.
2. Without reasonable cause, the respondent has withdrawn.
3. The burden of proving a reasonable cause lies with the respondent. 

In the district court, the petition is filed. 

The court is satisfied with the truth of the statement, and there is no other reason to deny the relief.

Corresponding Law

This section is consistent with Section 9 of the Hindu Marriage Act, 1955, Section 36 of the Parsi Marriage and Divorce Act, 1869, Section 32 of the Divorce Act, 1869, and Section 13 of the Matrimonial Causes Act, 1965.

Withdrawal from Society

The word ‘society’ that occurs in the section means the same thing as consortium or cohabitation, i.e. living together as husband and wife in a place called ‘matrimonial home’. It is therefore evident that withdrawal from the other’s society would mean withdrawal from the matrimonial home by either spouse that would involve a total loss of consortium such as desertion. Society withdrawal involves two elements: animus and factum. This means that the withdrawing spouse intends to put an end to the cohabitation and, secondly, the mere intention of withdrawal would not amount to withdrawal unless it is combined with the factum of separation on the part of spouse’s withdrawn.

Cohabitation

Cohabitation does not necessarily mean that parties live together under the same roof, but there may be cohabitation states where they see each other as much as they can and yet are not separated. 

Kay v. Kay, (1904), A man may cohabit with his wife even if he is away or on a visit or on business because it does not determine the conjugal relationship in any form. 

G v. G, (1930), A husband can not be considered to have deserted his wife without reasonable cause because he is forced to live away from her because of his work in life.

Matrimonial Home

Shastri law was based on the principles that the wife is bound to live with her husband and submit herself to his authority. This rule of law that gave the husband the right alone to set up a matrimonial home in preference to the wife was based on a custom that reflected the condition of the age in which the custom was practised. Moreover, the husband’s right to establish a matrimonial home is not a law proposition; it is simply a proposition of ordinary good sense arising from the fact that the husband is usually the bread earner and has to live near to his work. It becomes quite natural in such circumstances that the husband should have the right to choose a matrimonial home. India’s Constitution gives both sexes equal status, so both have equal rights to pursue their careers. Now the casting vote on the choice of the matrimonial home is not with the husband or wife, but it is a matter that has to be decided in a friendly manner between them.

Case Reference

In several cases, the question as to what amounts to withdrawal from society came to our courts in an interesting way: does the refusal of the wife to give up her job in the husband’s case amount to withdrawal from the husband’s society? In several cases, the question came before the Punjab High Court for consideration and in the affirmative, it was answered. In the cases Tirath Kaur v. Kirpal Singh AIR 1964 Punj 28, Gaya Prasad v. Bhagwati AIR 1966 MP 212 (DB), and Kailashwati v. Ayodhya Prakash 1977 HLR 175, The courts held that the husband had the right to decide the matrimonial home and that the wife had to resign and live with him. The other view, which is contrary to this extreme opinion, as held in S. Garg v. K. M. Garg, AIR 1978 Del 296, is that the wife can not be prevented from taking up employment in the present social scenario and can not be forced to live in the same place where her husband lives. None of the parties shall have a casting vote, and the matter shall be settled by agreement between the parties, by process of giving and taking and by reasonable accommodation.