family & property law

Court Marriage & the Law – a Form of Civil Marriage

Marriage and Divorce

Marriages are made in heaven. In Salamat Ansari vs. the State of UP [2020 SCC OnLine All 1382, decided on 11-11-2020], the right to live with a person of his/her choice irrespective of religion professed by them is intrinsic to the right to life and personal liberty. The law recognises the major adult has the fundamental right to choose their partner. The personal laws of every religion make such union possible but in the case of secular marriages too India has offered a legal platform. India is a secular country and a wide number of religions are freely practised. The major religions practised include Hinduism, Islam, Sikh and Christianity. People solemnise marriages in accordance with religious rituals and ceremonies, which are mostly codified by statutory personal laws. Therefore, the matrimonial laws in India, including laws on marriage, divorce and other connected issues, are essentially governed by the personal laws of the parties depending on their religion, which are codified by statute in most cases:
  • Hindu: The Hindu Marriage Act 1955.
  • Muslim: The Muslim marriage is a contract under Muslim law.
  • Christian: The Indian Christian Marriage Act 1872 and the Divorce Act 1869.
  • Parsi: The Parsi Marriage and Divorce Act 1936.
In addition to the above, the Special Marriage Act 1954 applies to all persons of all religions. This is civil legislation and parties from all religions, castes or communities can elect to marry under it. For marriage conducted under the Special Marriage Act, a divorce would then be governed by the Special Marriage Act 1954 and succession would arise under the Indian Succession Act. It extends to the whole of India except the State of Jammu and Kashmir and applies also to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir. The article examines the scope of the law.

History of the Special Marriage Act

The Special Marriage Act, 1954 is the successor legislation of the Special Marriage Act, 1872 which did not recognize inter-religion marriages. Under the Special Marriage Act, 1954 two persons belonging to different religions can solemnize their marriage Act without renouncing their religions. In 1954 the first Special Marriage Act of 1872 was repealed and replaced with a new law bearing the same title. This is an optional law, an alternative to each of the various personal laws, available to all citizens in all those areas where it is in force. The religion of the parties to an intended marriage is immaterial under this Act; one can marry under its provisions both within and outside one’s community.

The Special Marriage Act does not by itself or automatically apply to any marriage; it can be voluntarily be opted for by the parties to an intended marriage in preference to their personal laws. It contains its own elaborate provisions on divorce, nullity and other matrimonial causes and, unlike the first Special Marriage Act of 1872, does not make the Divorce Act 1869 applicable to marriages governed by its provisions.

The Foreign Marriage Act 1969 facilitates the solemnization of civil marriages by Indian citizens outside the country, with another citizen or with a foreigner. This Act also is not concerned with the religion of the parties to an intended marriage; any person can marry under its provisions either within his or her own community or in a different community. For carrying its purposes the Foreign Marriage Act empowers the Central Government to designate Marriage Officers in all its diplomatic missions abroad. All the religion have a choice between personal law and the Special Marriage Act. The Indian Christian Marriage Act 1872, however, says that all Christian marriages shall be solemnized under its own provisions [Section 4].

Concept of a Secular Marriage

India is Secular Country which means our Country has no state religion. The word SECULAR was added to the Constitution by the Parliament in 42nd Amendment, 1976. This Act is to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce for people who wish to marry each other from the two different religions/ tribe/ caste/communities it was very difficult. In 1872, the then British Government had enacted the Special Marriage Act 1872 providing for a form of marriage wherein the parties had to renounce their respective religions and enter in a secular marriage after completing the formalities of the Act. After attaining independence, and in light of the provisions of the Constitution of India, it became imperative to enact legislation for addressing inter-religious marriages laws. The Special Marriage Act of 1954 was enacted with the object of enabling persons of different religious observations to enter into a valid marriage without giving up their respective religions. The basic requirement of the Act is a thirty-day notice given before the marriage is solemnized and other conditions as mentioned later in the article.

Court Marriage: It is said to be a Court Marriage as the Marriage is solemnized in front of a Marriage Officer who is having his Jurisdiction. Such marriage is solemnised in front of the Marriage Officer as it is conducted under the Special Marriage Act, 1954. A Marriage Officer is appointed by the State under a notification in the Gazette of India. The Marriage Officer has the power of a civil court with respect to the following:

(a) summoning and enforcing the attendance of witnesses and examining them on oath;

(b) discovery and inspection;

(c) compelling the production of documents;

(d) reception of evidence of affidavits; and

(e) issuing commissions for the examination of witnesses;

and any proceeding before the Marriage Officer shall be deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code.

Section 3 (1) of the Special Marriage Act provides for the Marriage Officers.―For the purposes of this Act, the State Government may, by, notification in the Official Gazette, appoint one or more Marriage Officers for the whole or any part of the State.

For the purposes of this Act, in its application to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir, the Central Government may, by notification in the Official Gazette, specify such officers of the Central Government as it may think fit to be the Marriage Officers for the State or any part thereof.

It extends to the whole of India except the State of Jammu and Kashmir and applies also to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir

Conditions of Marriage Eligibility of Bride & Groom under this Act are:

  • Age of Male of 21 years and female of 18 years at least.
  • There is no Living Spouse of either of the parties.
  • Both parties don’t fall into a Degree of Prohibited relation.
  • Capable of giving valid Consent (not of unsound of mind)
  • Without any Mental disorder to an extent to be unfit for marriage and affecting procreation of Children.
  • Without any recurrent insanity attacks.

Process of Marriage

  • Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage by the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objections and after hearing any objection received within that period, shall, if satisfied that all the conditions mentioned in section 15 are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the form specified in the Fifth Schedule, and such certificate shall be signed by the parties to the marriage and by three witnesses.
  • Notice: Under section 6 (2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.

In a significant judgment affecting inter-faith couples seeking to get married under the Special Marriage Act, 1954, the Allahabad High Court has ruled that it would be optional and not mandatory for them to publish a notice about their intended marriage. Justice Vivek Chaudhary mandated that while giving notice under Section 5 of the Special Marriage Act, 1954 it shall be optional for the parties to the intended marriage to make a request in writing to the marriage officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act.

The provisions under the Special Marriage Act requiring parties to an intended marriage to publishing their private details for public scrutiny 30 days prior to the intended marriage violates the right to privacy of the parties, a petition filed before the Supreme Court said.

 

  • Section 10 gives power to the Marriage Officer in order to take opinion during resolving any objection made to such marriage, may involve Central Government to a given final decision. In case of no objection, the Marriage is solemnized by signing a declaration form as per the 3rd Schedule of the Act by the Bride, Groom, three witnesses and the Marriage Officer.

High Court Judgment dated 23rd March 2018 of ‘ Mohammed Atique vs. Aprajita Sharma, CM(M) 140/2017 It’s a landmark case of Delhi High Court.  The Delhi High Court Held that under paras:

“ 10.1. The Special Marriage Act, 1954 provides a special form of marriage, its registration and divorce. A marriage between any two persons belonging to any religion or creed may be solemnized under this Act. Being a secular Act, it plays a key role in liberating individuals from the traditional requirements of marriage. It provides for a civil law of marriage that would enable individuals to get married outside of their respective community mandates.

10.2. The Special Marriage Act 1954 is not concerned with the religion of the parties to an intended marriage. Under the Act, any person, whichever religion he or she professes, may marry either within his or her community or in a community other than his or her own, provided that the intended marriage, in either case, is in accord with the conditions for marriage laid down in the Act. No religious rituals or ceremonies are required from the marriage to be completed under the Special Marriage Act. It is up to the parties to decide whether they want to do marriage rituals or not. The marriage solemnized under the Special Marriage Act is registered and a Certificate of Marriage is given to the parties. The Certificate shall be signed by the parties to the marriage and witnesses which is deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized.

10.7. When a person solemnizes marriage under this law then the marriage is not governed by personal laws but by Special Marriage Act. The rights and duties arising out of marriage are governed by the Special Marriage Act and the succession is governed by the Indian Succession Act, 1925, and not by personal laws.

10.8. Having married under the Special Marriage Act, if a person contracts a second marriage, he shall be deemed to have committed an offence under Section 494 or 495 IPC. ”

Conclusion

The Special Marriage Act is available also for inter-religious marriages and does not exempt any community from its provisions in this respect. The Hindu Marriage Act 1955 applicable to the Hindus, Buddhists, Jains and Sikhs does not allow them to marry outside these four communities. So, if any member of these communities wishes to marry a person not belonging to these communities, the only choice available would be the Special Marriage Act 1954. The Muslim law allows certain inter-religious marriages to be governed by its own provisions. Under this law, a man can marry a woman of the communities believed by it to be Ahl-e-Kitab (People of Book) – an expression which includes Christians and Jews and may include followers of any other monotheistic faith.  The Indian Christian Marriage Act 1872 says that apart from Christian- Christian marriages the marriage of a Christian with a non-Christian must also be solemnized under this Act (Section 4). The Special Marriage Act on the other hand says that any two persons (whatever be their religion) can marry in accordance with its provisions. Unlike the first Special Marriage Act of 1872 the 1954 Act contains its own elaborate provisions on divorce, nullity and other matrimonial remedies. The Indian Divorce Act 1869 would therefore not apply to marriages governed by it. The Indian Divorce Act, however, says that it will apply even if only one party is a Christian.

Image source: Photo by Ben Rosett on Unsplash

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