Mutual Divorce under HMA, 1955
Author: Happy Kushwah Edited by: Shadrack Chai INTRODUCTION Mutual divorce under the Hindu Marriage Act, of 1955, is a legal provision allowing couples to end their marriage amicably. Introduced as…
SPECIAL MARRIAGE ACT,1954
Author-Masooma Naqvi, Amity University, Uttar Pradesh INTRODUCTION India is a country of replete history and culture, which often find themselves intertwined with each other. It is home to 7 major religions of the world and various others. With the kind of diversity that is prevalent in India, it will not be possible nor correct to establish boundaries for love and limit them to one's own religion. Unfortunately, so was not the mindset of the architectures of personal laws. Religion became one of the biggest barriers to love. In most personal laws, be it The Hindu Marriage Act, 1955 or Sharia which is the codified law for Muslims, inter-faith and even inter-cast marriages are prohibited and are not considered to be valid. These marriages are not formally recognized, which further adds to the deprivation of rights that a married couple is entitled to. Some of these rights include adoption, inheritance, etc. It was through the Special Marriage Act of 1954, that these restrictions were lifted to give love a fair chance. Keywords- Marriage, Inter-Faith, Inter-Caste, Certificate, Personal Autonomy
Meaning, Definition & Explanation
Special Marriage Act permits people belonging to different religions to come together into a bond of marriage. It also upholds the spirit of secularism which is laid down in the constitution and also instills the quality of tolerance among individuals. The Act was passed in 1954 and made on the lines of colonialism, as the legislation was first passed in 1872. Later, when India gained independence the Special Marriage Act of 1954 was passed for newly independent India. The act is a ray of hope for inter-faith couples especially those who struggle to get their marriages recognized by personal laws. The most distinctive feature of the act lies in its inclusivity. It is also open to intra-faith couples to register their marriages outside of their personal laws. It also seeks to give legal status and protection to the marriage of those who are barred by religion and caste. IMPORTANT PROVISIONS- The act extends to the whole of India. It also includes Indian citizens domiciled elsewhere. There are certain requirements that the act requires- Section 4 of the act talks about these requirements. The marriages do not require any specific religious ceremony to enter into a bond of marriage under this act, however, that choice is upon the individuals to decide. The marriage is entered into in the form of a civil contract. For the purpose of the act, the State Government has the power to appoint one or more marriage officers by notification in the official gazette as mentioned under Section 3 of the Indian Marriage Act of 1954. There are certain requirements that the act lays down Section 4 of the act talks about these requirements. these include the following:- a] Neither of the parties should have a "living spouse"- The first subclause states that the parties of this union must not already be married to someone who is alive. b] (i) Neither party is “incapable of giving a valid consent to it in consequence of unsoundness of mind[1]”- The parties to the union must be of sound mind in the sense that they should give their valid consent for the union. (ii) Neither party is though capable of giving valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; - The parties must be competent to enter into the union, in the sense that they must not be suffering from any mental disorder that deems them unfit for fulfilling their respective roles in the union., c] the male must be minimum 21 years of age and woman must be minimum 18 years of age d] the parties should not come under the spectrum of prohibited relationships. Prohibited relations are further defined under section 2(b) of the act. these include relationships between – a) Half blood and Full Blood and Uterine blood- When people have the same father and same mother, they are said to be a full blood relation. When people have the same father but different mothers, they are said to be in a half blood relation. when people have the same mother but different fathers they are said to be related by uterine blood. b) it also includes "illegitimate as well as legitimate blood relations" c) It also includes relation by adoption. Section 5 of the act requires the parties to notify to the District Marriage Officer, and at least one of them have to be residing in the district 30 days prior to this notice. Section 7 of the allows any objection to the marriage from anyone in case it defies any provision mentioned in section 4 of this act, within the period of thirty days. Section 11 of the said act requires the parties and three other witnesses to sign a declaration form and further countersigned by the Marriage Officer. Section 13 of the act requires the Marriage Officer, after the marriage has been solemnized to enter the certificate in the Marriage Certificate Book. The certificate must be signed by the parties and three other witnesses. Section 14 says that if after notifying the marriage officer the marriage has not been solemnized within three months of issuing the notice, the notice shall lapse a new notice has to be filed. The Marriage Officer cannot solemnize the wedding under such circumstances. Section 15 lays down provisions even for those couples that have not been married under this act to get their marriages registered. However, they must fullfill the following conditions. i) They have had their nuptials and have been living together as a married couple since then. ii) They are both above 21 years of age at the time of registration. iii) Their relation is not prohibited. iv) They are of sound mind. v) The marriage should have been a monogamy. Section 23 and Section 27 talk about Judicial Separation and Divorce respectively under this act.IMPORTANT CASES
Safia Sultana vs State of Uttar Pradesh[2]
The case was concerned with issues of privacy. The Special Marriage Act of 1954 required the parties to compulsorily notify about their marriage. The petitioner under this case pleaded that the above-mentioned subclause was a direct invasion of privacy and should be made a choice for the parties to take. The right to privacy comes within the ambit of the Right to Life and Liberty under Article 21 of the Indian constitution. This clause also invited unnecessary intervention from third parties to add hurdles to the process of marriage. The Allahabad High Court held that must not be mandatory for the parties to issue a public notice but a choice.Lata Singh vs State of Uttar Pradesh[3]
This case laid emphasis on an individual’s right to choose a partner of their choice. The case revolves around the petitioner who by her own choice married a man, belonging to a different caste. This marriage was objected to by her brothers who even allegedly beat up the husband’s mother and uncle. The Supreme Court gave orders to the police to protect and arrest those who threatened the petitioner and her husband and they were protected under this act.CONCLUSION & COMMENTS
The Special Marriage Act to this day continues to be a boon for people who want to enjoy the bliss of marriage but are rendered helpless by the societal barriers that exist. These barriers include not only caste and religion but also superstitions and judgments as well. It serves as a beacon of hope for tolerance and inclusivity in a country as diverse as India. Its inclusive nature is also seen in the fact that the act not only lays down provisions for couples married under this act but also for couples married under their respective personal laws to get their marriages registered. It gives people a chance to solemnize and register their marriages and also grants them protection from all that troubles them from their right to marital bliss. It seeks to protect the secular spirit of the country and also relieve the country from old prejudices. This act also proves to be a pioneering example of the social progress that is being brought in India.REFERENCES
- Books / Commentaries / Journals Referred
- Special Marriage Act 1954- Universal/ Lexis Nexis
- Online Articles / Sources Referred
- Cases Referred
- a) Safiya Sultana v State of UP (Uttar Pradesh) AIR 2021 All 56 b) Lata Singh vs State of Uttar Pradesh AIR 2006 SC 2522; (2006) 5 SCC 475; 2006 (56) ACC 234
- Statutes Referred
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- Constitution of India 1950
- Special Marriage Act 1954
- Hindu Marriage Act 1955
- Muslim marriage Act 1939
- Special Marriage Act 1954 Section 4
- Safiya Sultana v State of UP (Uttar Pradesh) AIR 2021 All 56
- Lata Singh vs State of Uttar Pradesh AIR 2006 SC 2522; (2006) 5 SCC 475; 2006 (56) ACC 234
