DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY LUCKNOW
2015
FAMILY LAW
SYNOPSIS ON
INFIRMITIES IN SPECIAL MARRIAGE ACT (1954)
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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, ice !hancellor, "r. #urdeep Singh Sir and "ean $%cademics&, 'rofessor !.M. (ariwala for their encouragement and )nthusiasm* My seniors for sharing their valuable tips* %nd my classmates for their constant support.
INTRODUCTION
+he object of the legislators in enacting the Special Marriage %ct was to attempt to lay down a uniform law for the entire territory of India. Interreligious marriages are usually performed under this law, however, same religion marriages may also be performed if the parties so choose. +his %ct was enacted in reformative spirit to encourage people to give up their casteist sentiments and accept interreligious marriages. -ut this was done with caution and the initial %ct contained a provision which said that those who married under this %ct would no longer remain legal part of the joint family that they were before. +his shall be further explained in the final research project. +his was done so that interests of both groups remained balanced/. %lthough this %ct is a step towards reali0ing 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 %ct. Marriage is a civil contract under Special Marriage %ct, not re1uiring performance of any ceremonies. +here are other conditions to be satisfied in this %ct for the marriage to be validly registered which conflict with the personal laws of the religion the parties belong to. 2or example, first cousin marriages though acceptable as a valid marriage under Hindu and Muslim personal laws are void marriages under Special Marriage %ct. +herefore, such marriages cannot be registered. +here is conflict with regard to the age of majority to get married as well. % number of such infirmities in the law will be highlighted.
IMPACT OF SPECIAL MARRIAGE ACT
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3hen enacted in 4567, the Special Marriage %ct was intended 8 and indeed was in those times 8 a reformatory law which was in sync with the aspirations and vision of our "irective 'rinciples. -y legali0ing intercaste and interreligious marriages, India had taken a laudable and progressive step towards integration of the country through integration of the people. +he Special Marriage %ct 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 re1uired to renounce his9her religion, which they would have had to in order to marry under any of the personal laws. +herefore, this statute is often considered as a recognition of the independence of the individuals from the collective coercive diktats of marriage. +he reality however, is 1uite different. 'rima facie, no aberrations are observable in the object and reasons clause of the %ct. -ut the procedure laid down in the %ct is rather cumbersome, time consuming and is in some cases inconsistent with the criterion specified in personal laws. 2or instance, the minimum age of the male should be :4 and the female 4;, which is inconsistent with most if not all of the personal laws where both parties can be lawfully married even before they attain 4; years of age. +he process of performance of the marriage, its registration and grant of marriage certificate is unnecessarily lengthy and cumbersome. %ccording to S.6 of the %ct the parties to be married must notify the Marriage days. +he 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. 2urther, S. ? of the %ct re1uires the Marriage
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 >> fine payable to the couple.4 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. % strange fact regarding filing of objections with the Marriage of the Special Marriage %ct, the Marriage
India is still a reluctant receptor of intercaste and interreligious marriages, although the situation has improved considerably since 4567. More and more marriages are being solemni0ed under this %ct, even by parties from the same religion. -ut a large population is still against interreligious and intercaste marriages which makes it imperative to alter S.?$:& 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 re1uire 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. !asteism and religiosity are so deeply entrenched in the consciousness of society that advocates, Marriage 46.
Magistrates advice couples against marriage under the Special Marriage %ct. %lthough there are 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. 'eople often prefer marrying under the Muslim Marriage %ct, 456A since it has the simplest procedure and the formalities take no more than half a day. +his could be one possible reason for the mass conversions of girls to Islam in Cerala.:
INFIRMITIES WITHIN THE ACT
%s has been categorically stated above that although the %ct was initially created with the intention to facilitate interfaith marriage, it has not served its purpose effectively. In fact, it deters people from marrying under this %ct 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 %ct. % comparison of the said %ct in relation to the Hindu Marriage %ct, 4566 and Muslim Marriage %ct, 456A shall be done to highlight the infirmities in the %ct. M*++#*8%: M*++#*8% /&%+ M3#" L* +he legal incidents of marriage in Islam are very simple. Marriage may be performed without
any ceremony or rites. @either writing nor any religious ceremony is necessary. +he main re1uirements for a marriage under Muslim have been stated as follows= 8 4. % Muslim marriage re1uires proposal $Ijab& from one party and acceptance $ubul& from the other as is re1uired for a contract. -oth the proposal and the acceptance must be done in the same meeting. Moreover there can be no marriage without free consent and such consent should not be obtained by means of coercion, fraud or undue influence. 2 Izzie ‘Of Indian Marriage Laws and Conversions: The Case of Saifeena’ ( Muslimah Media Watch, 27 Fer!ar" 2#1$%D httpE99www.patheos.com9blogs9mmw9:>4=9>:9ofindianmarriagelawsand conversionsthecaseofsaifeena9G accessed on 4; March :>46.
$ )ssentials of alid Muslim Marriage/ $ WebIndia123, :4 March :>47& DhttpE99www.webindia4:=.com9law9familyFlaw9muslimFlaw9essentialsFofFvalidFmarriage.htm accessed 45 March :>46.
:. In case of legal incompetence like minority or unsoundness of mind, a guardian may validly enter into a contract for marriage on his9her behalf. =. (ust as in case of contract, entered by a guardian, on attaining majority, so can a marriage contract in Muslim aw, be set aside by a minor on attaining the ag e of puberty. 7. +he parties to a Muslim marriage may enter into any antenuptial 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. 6. +he terms of a marriage contract may also be altered within legal limits to suit individual cases. ?. Jnder Shia law, no witnesses are re1uired 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. M*++#*8% /&%+ H#/& L*
+he essentials for a marriage under Hindu law to be married have been laid down under the Hindu Marriage %ct, 4566 as follows 8 4. -oth parties must be Hindus. :. MonogamyE @one of the parties should have a spouse living at the time of marriage. =. Sound MindE +he parties must be of sound mind and not suffering from any mental incapacity. 7. "egrees of 'rohibited BelationshipsE +he 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. %ccording to S.A of the Hindu Marriage %ct, 4566 a Hindu marriage may be solemni0ed according to the customary rites of either of the parties. In the case of Chandrabhagbai Ganpati v. S.N. Kanwar 4, 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 !ourt that the marriage was legal notwithstanding & :>>; MB :4 $-om&.
the fact that the marriage ceremonies did not include saptpadi. % marriage is presumed to have been duly solemni0ed if it is shown that performance of some of the ceremonies usually observed on the occasion of marriage have taken place. In other words, if the marriage is shown to have in fact taken place, ceremonies are presumed to have been duly performed.6 However, mere fact of joint living for a long time without any ceremonies would not constitute a valid marriage.? M*++#*8% /&%+ S6%7#*3 M*++#*8% A7$
Marriage under the Special Marriage %ct does not stand on ceremony and is a secular law which prescribes the procedure for a court marriage. S.6 of the %ct provides for a notice to the Marriage days immediately preceding the date on which notice is given. S.? prescribes that notices shall be entered in the marriage notice book by the Marriage
+he marriage was solemni0ed* or +he respondent at the time of the presentation of the petition resides* or +he parties to the marriage last resided together* or +he 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 %ct extends or has not been heard of being alive for A years by those who would have naturally heard of him, were he alive.
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+herefore, it can be clearly observed that the procedure for marriage is rather lengthy and time consuming under SM% whereas, under the Hindu and Muslim personal laws it is far more easier with relaxed standards, so much so that not even registration of the marriage is re1uired. +his makes SM% the least preferred mode of marriage.;
D#+7%:
Initially, SM% was the only law that provided for a divorce based on mutual consent. However, after the 45A? amendments, S.4=- of HM% lays down the conditions and procedure for a mutual consent divorce. Jnder the Hindu Marriage %ct, 4566 S.4= lays down the grounds of divorce other than mutual consent. "ivorce can be obtained on the following grounds 8 4. :. =. 7. 6. ?. A. ;. 5.
%dultery !ruelty "esertion !onversion to another religion Incurably of unsound mind or suffering intermittently from mental disorder Suffering from virulent and incurable form of leprosy Suffering from a communicable venereal disease Benunciation of the world Has not been heard of being alive for A yrs
S.:A of the Special Marriage %ct has been couched in the same exact words as in the Hindu Marriage %ct, albeit with a slight difference of two additional grounds of divorce i.e. on grounds of indulging in rape, sodomy or bestiality and noncohabitation for a year or above after passing of a maintenance order under S.4; of H%M%, 456? or S.4:6 !r'!. Jnder both the statutes it was laid down that neither party to the marriage should be idiot or lunatic. -ut violation of this condition rendered marriage null and void under the Special Marriage %ct, but only voidable under the Hindu Marriage %ct.5 ) Sandeep (oshi, !ourt Marriages @ot an )asy %ffair/ $/i-es #) India, 47 >:& DhttpE99timesofindia.indiatimes.com9city9chandigarh9!ourtmarriagesnotaneasy affair9articleshow9:645?7>:.cmsKreferralL'MG accessed 4A March :>46.
* 'aras "iwan, Marriage and "ivorce aw Beforms +he Marriage aws $%mendment& %ct, 45A?N/ $ &BC India+ *ega!!( 0ddi'tive, 45AA& DhttpE99www.ebcindia.com9lawyer9articles9AAv:a4.htm G accessed 45 March :>46.
2or obtaining a mutual consent divorce under SM% or Hindu law the following three conditions have to be satisfied4> 8 4. +he parties have been living separately for a period of atleast one year :. +hey have not been able to live together and =. +hey have mutually agreed to have the marriage dissolved S.: of the "issolution of Muslim Marriages %ct, 45=5 lays down nine different grounds for divorce exercisable by the wife. %part from these grounds, other grounds mentioned in the uran i.e. Kh$!a and "$barat can also be procedures of divorce. 3hile Chula is the absolute right of the woman to obtain a divorce from her husband, Mubarat is a mutual consent divorce. 2urther, the triple tala1 form of divorce by the husband has been laid down by the uran $/a!a$!0hsan and /a!a$!asan& as well as that in customary practice $/a!a$!Biddat & are also valid and recogni0ed forms of divorce in India. I/-%+#$*/7%:
-efore the Marriage aws $%mendment& %ct, 45A? if a Hindu performed a civil marriage then he9she would be effectively severed from his9her religion and from the coparcenary whose member he9she was at the time of the marriage. +his deterred Hindus from registering their marriages under the secular SM% and only those who rebel against the wishes of their family +he %mendment %ct, 45A? modifies this conse1uence so that, if both the parties to the civil marriage are Hindus then it will not affect their severance, but if only one of them is a Hindu, then it will still effect severance of status. 44 3hen both parties are believers of different religions, marriage between them neither effects severance from their religions nor disentitles them from any claim they may have had in the property of their parents or ancestors. +he inheritance will devolve on them as per the Indian Succession %ct, 45:6. 2urther, all their offspring would be governed by the Indian Succession %ct but would not be entitled to inherit or have any rights over the properties of anyone except their parents. +hat is, no entitlement to inherit from grandparents, uncles or aunts etc. 2urther, if two people following the same religion get married
1# Cusum, ,a-i!( *aw *e't$resI $=rd edn, exis @exis -utterworths 3adhwa, :>44&. 11 'aras "iwan, !eremonial alidity of Hindu MarriageE @eed for Beform / $45AA& : S!! (::.
under SM% 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 %ct, 45:6. ANALYSIS
SM% 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. %nother aspect that differentiates SM% from personal laws is that marriage must be registered to be valid whereas, it need not be under personal laws. +he reason for this is the differential ages in marriage. Jnder Hindu law the bride must be atleast 46 yrs and the groom atleast 4; yrs of age, under Muslim law the girl is eligible for marriage as soon as she attains puberty and same goes for the boy. -ut under SM% both the parties $of same religion& have to be :4 yrs of age to get their marriage registered. +his creates a lot of problems for those under :4 with respect to registration of their marriage. Moreover, this differentiation in the age of marriage prevents registration since child marriages, though prohibited by the 'rohibition of !hild Marriages %ct, :>>?, are valid under personal laws. +here is an urgent need to revise and amend both personal laws as well as SM% to reconcile them with each other and facilitate registration of marriages. 2ollowing inconsistencies and infirmities have been noticed in the Special Marriage %ct, 4566 8 4. %ge of partiesE 'arties marrying under SM% and belonging to different religions must be of 4; yrs and :4 yrs for the woman and the man respectively, while parties of the same religion marrying under SM% must both be :4 yrs of age for their marriage to be registered. :. InheritanceE -oth parties following the same religion marry under SM%. +hey will be governed by their personal laws in matters of inheritance and succession and do not have the option of choosing to abide by the secular Indian Succession %ct. =. 'rocedureE +his is a major contention with SM%. +he procedure prescribed is so lengthy and cumbersome and the repercussions are sometimes so dangerous to the point of being lifethreatening that couples prefer conversion rather than marrying under this socalled secular law. @ot only is the procedure excruciatingly tiresome, the Marriage
ways/ and not indulge in such a union as if it were a sin that they were committing. More often than not these
ILIOGRAPHY OOKS
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Cusum, ,a-i!( *aw *e't$resI $:nd edn, exis @exis -utterworths 3adhwa, 4555& Cusum, ,a-i!( *aw *e't$resI $=rd edn, exis @exis -utterworths 3adhwa, :>44& "iwan, ' "#dern ind$ *aw $%llahabad aw %gency, :>47&
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3alter 'intens $ed&, Internati#na! &n'('!#pedia #) *aws+ ,a-i!( and S$''essi#n *aw
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vol = $Cluwer, :>4:&
ARTICLES •
"iwan, ', !eremonial alidity of Hindu MarriageE @eed for Beform / $45AA& : S!! (::
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(oshi, S, !ourt Marriages @ot an )asy %ffair/ $/i-es #) India, 47 >:& DhttpE99timesofindia.indiatimes.com9city9chandigarh9!ourtmarriagesnotaneasy affair9articleshow9:645?7>:.cmsKreferralL'MG accessed 4A March :>46.
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"iwan, ', Marriage and "ivorce aw Beforms +he Marriage aws $%mendment& %ct, 45A?N/ $ &BC India+ *ega!!( 0ddi'tive, 45AA&
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DhttpE99www.ebcindia.com9lawyer9articles9AAv:a4.htmG accessed 45 March :>46 Cameshwar !houdhary, %natomy of the Special Marriage %ct/ $4554& )conomic and 'olitical 3eekly :5;4 DhttpE99www.epw.in9system9files9pdf94554F:?96:9anatomyFofFtheFspecialFmarriageFact. pdf G accessed 4A March :>46
WESITES AND REPORTS •
Beview of aws and egislative Measures %ffecting 3omen/ $Nati#na! C#--issi#n )#r W#-en, 4> 2ebruary :>46& DhttpE99ncw.nic.in9frmBeportaws:7.aspxG accessed 4> 2ebruary :>46
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aw !ommission, ind$ "arriage 0't 155 and Spe'ia! "arriage 0't 154 $aw !om @o 65, 45A7& DhttpE99lawcommissionofindia.nic.in9644>>9report65.pdf G accessed 5 2ebruary :>46
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Swaraj, C, Inconsistencies in Special Marriage %ct/, *ega! Servi'es India, :>.>4.47 D httpE99www.legalservicesindia.com9article9article9inconsistenciesinspecialmarriage act45674?:?4.htmlG accessed 5 2ebruary :>46
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Izzie ‘Of Indian Marriage Laws and Conversions: The Case of Saifeena’ (Muslimah Media Watch , 27 Fer!ar" 2#1$% D httpE99www.patheos.com9blogs9mmw9:>4=9>:9ofindianmarriagelawsand conversionsthecaseofsaifeena9G accessed on 4; March :>46
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)ssentials of alid Muslim Marriage/ $WebIndia123, :4 March :>47& DhttpE99www.webindia4:=.com9law9familyFlaw9muslimFlaw9essentialsFofFvalidFmarriag e.htm accessed 45 March :>46
