SPECIAL MARRIAGE

ACT, 1954
 Aims

◦ Meant to promote inter-religious marriages, hence applicable to all citizens.

◦ People of the same faith can also choose to marry under SMA
◦ Provides a complete framework for civil marriage & divorce.
◦ Provides for registration of of religious marriages as well.
 History of the SMA
◦ Keshab Chandra Sen of the Brahmo Samaj wanted to enact a marriage law for the Brahmo
community which did away with ritualistic requirements of a traditional hindu marriage
◦ The Keshubites as they called themselves argued that as a theist sect of reformist hindus
who believed in inter-caste marriage. They requested the enactment of a law that would
allow for marriages between brahmos.
◦ Henry Maine supported this and saw the Brahmo petition as a step towards evolutionary
progression where marriages based on caste and kinship would give way to marriages based
on individual choice. Drafted the Native Marriage Bill. The law was applicable to all who
did not want to get married as per the rites of their religious communities and were not
Christian.
◦ Lot of opposition because of the idea that one could simply abandon certain aspects of their
faith did not sit well with a majority of Indians. Finally a new bill III of 1872 was brought
in with a few critical modifications- a) it applied to Christians b) it applied to those
individuals who did not “profess to have renounced or have been excommunicated” from
their religious sect.
The 1872 bill required the surrender of one’s religious faith to be
able to marry under the law. This was done as a concession to the
more conservative elements opposing the bill in the hope that the
requirement to renounce one’s faith would lead to fewer people
using these provisions to get married.
The reason the 1872 bill was also strongly opposed was because it
would promote marriages outside of the community, promote
elopement and legitimize marriages based on lust, profligacy and
immorality.
 Post-Independence
-But when after independence this law was enacted in
1954, Nehru got rid of this requirement of having to
renounce one’s faith in order to be able to have a civil
marriage.
- Yet procedural snags continued to inform the
workings of the law.
 Overview of SMA

◦ Chapter I: Preliminary (definitional clauses, applicability)

◦ Chapter II: Solemnization of Special Marriages
◦ Chapter III: Registration of Marriage Celebrated in Other forms
◦ Chapter IV: Consequences of Marriage under this act
◦ Chapter V: Restitution of Conjugal Rights and Judicial Separation
◦ Chapter VI: Nullity of Marriage and Divorce
◦ Chapter VII: Jurisdiction and Procedure
 Marriage Officers

◦ 3. Marriage Officers.―(1) 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.
 Section 4: Solemnization of Special
Marriages
◦ Section 4 in The Special Marriage Act, 1954
◦ 4. Conditions relating to solemnization of special marriages.—Notwithstanding anything contained in any other law for the
time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized
under this Act, if at the time of the marriage the following conditions are fulfilled, namely:—
◦ (a) neither party has a spouse living;
◦ [(b) neither party—
◦ (i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
◦ (ii) though capable of giving a 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; or
◦ (iii) has been subject to recurrent attacks of insanity 2[***];]
◦ (c) the male has completed the age of twenty-one years and the female the age of eighteen years;
◦ (d) the parties are not within the degrees of prohibited relationship
◦ Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be
solemnized, notwithstanding that they are within the degrees of prohibited relationship; and]
 Sec 4 (contd)..
….
◦ [Explanation.—In this section, “custom”, in relation to a person belonging to any tribe, community, group or
family, means any rule which the State Government may, by notification in the Official Gazette, specify in this
behalf as applicable to members of that tribe, community, group or family: Provided that no such notification shall
be issued in relation to the members of any tribe, community, group or family, unless the State Government is
satisfied:

◦ (i) that such rule has been continuously and uniformly observed for a long time among those members;
◦ (ii) that such rule is certain and not unreasonable or opposed to public policy; and
◦ (iii) that such rule, if applicable only to a family, has not been discontinued by the family.]
Procedure for Solemnization of Marriage
Sec 5 • Notice of Marriage
Sec 6 • Marriage Notice Book & Publication
Sec 7 • Objection to Marriage
Sec 8 • Procedure on Receipt of Objection
11& • Declaration by Parties and Witnesses & Solemnization
12
Sec
13
• Certificate of Marriage
 Section 5

◦ 5. Notice of intended marriage.―When a marriage is intended to be solemnized under this Act, the
parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule
to the Marriage Officer of the district in which at least one of the parties to the marriage has
resided for a period of not less than thirty days immediately preceding the date on which such notice
is given.
 Section 6
◦ 6. Marriage Notice Book and publication.—
◦ (1) The Marriage Officer shall keep all notices given under section 5 with the records of his office and
shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be
called the Marriage Notice Book, and such book shall be open for inspection at all reasonable times,
without fee, by any person desirous of inspecting the same.
◦ (2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to
some conspicuous place in his office.
◦ (3) Where either of the parties to an intended marriage is not permanently residing within the local limits
of the district of the Marriage Officer to whom the notice has been given under section 5, the Marriage
Officer shall also cause a copy of such notice to be transmitted to the Marriage Officer of the district
within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a
copy thereof to be affixed to some conspicuous place in his office.
Vivian Varghese v. State of Kerala, HC
2015
◦ Can an Indian citizen marry a foreigner u SMA?
◦ Do the requirements u/6(3) need to be fulfilled in this context?

Held:

a) The Special Marriage Act does not contain any prohibition for solemnization of the marriage, if one of
the parties is a foreigner. Sec 4 contemplate marriage between “any two persons”.
b) S 6(3) does not need to be fulfilled since the person is a foreign citizen and not residing in India.
c) Just because the govt had not enacted any provision appointing Marriage Officers in embassies abroad
could not disable a person residing abroad from entering into a marriage with an Indian citizen.
 Section 7

◦ (1) Any person may, before the expiration of thirty days from the date on which any such notice has
been published under sub-section (2) of section 6, object to the marriage on the ground that it would
contravene one or more of the conditions specified in section 4.
 Section 8
◦ 8. Procedure on receipt of objection.―(1) If an objection is made under section 7 to an intended
marriage, the Marriage Officer shall not solemnize the marriage until he has inquired into the
matter of the objection and is satisfied that it ought not to prevent the solemnization of the
marriage or the objection is withdrawn by the person making it; but the Marriage Officer shall not take
more than thirty days from the date of the objection for the purpose of inquiring into the matter of the
objection and arriving at a decision.
◦ (2) If the Marriage Officer upholds the objection and refuses to solemnize the marriage, either party to
the intended marriage may, within a period of thirty days from the date of such refusal, prefer an appeal
to the district court within the local limits of whose jurisdiction the Marriage Officer has his office, and
the decision of the district court on such appeal shall be final, and the Marriage Officer shall act in
conformity with the decision of the court.
 Section 11&12

11. Declaration by parties and witnesses.—Before the marriage is solemnized the parties and three
witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the
Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer.

12. Place and form of solemnization.—(1) The marriage may be solemnized at the office of the
Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may
desire, and upon such conditions and the payment of such additional fees as may be prescribed.
(2) The marriage may be solemnized in any form which the parties may choose to adopt:
Provided that it shall not be complete and binding on the parties unless each party says to the other in the
presence of the Marriage Officer and the three witnesses and in any language understood by the parties,
—“I, (A), take the (B), to be my lawful wife (or husband).”
 Section 13

◦ 13. Certificate of marriage.―(1) When the marriage has been solemnized, the Marriage Officer shall
enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for
that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the
parties to the marriage and the three witnesses.
◦ (2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the
Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has
been solemnized and that all formalities respecting the signatures of witnesses have been complied with
 Perveez Mody, Intimate State

“Court marriages are legal but are far from easily available”
Safiya Sultana v. State of UP, All HC,
2021
Safiya converted to hinduism and married a hindu person under the SMA. Father detained her did not let
her live with husband. In this case the Allahabad HC held that the requirements of Section 6 & 7 of
publication of notice and entertaining objections are not mandatory and to be given effect to only on the
request of the parties to the marriage. The provisions have to be interpreted in light of the present day
social conditions.
 Chapter III: Registration of Marriage
Celebrated in Other Forms
◦ 15. Registration of marriages celebrated in other forms.—Any marriage celebrated, whether before or after the commencement of
this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (III of 1872) or under this Act, may be registered
under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled,
namely:—
◦ (a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever
since;
◦ (b) neither party has at the time of registration more than one spouse living;
◦ (c) neither party is an idiot or a lunatic at the time of registration;
◦ (d) the parties have completed the age of twenty-one years at the time of registration;
◦ (e) the parties are not within the degrees of prohibited relationship:
◦ Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law,
custom or usage having the force of law governing each of them which permits of a marriage between the two; and
◦ (f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days
immediately preceding the date on which the application is made to him for registration of the marriage.
 Section 16

◦ 16. Procedure for registration.—Upon receipt of an application signed by both the parties to the
marriage for the registration of their marriage under this Chapter 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.
 Section 18

◦ 18. Effect of registration of marriage under this Chapter.—Subject to the provisions contained in
sub-section (2) of section 24, where a certificate of marriage has been finally entered in the Marriage
Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be
a marriage solemnized under this Act, and all children born after the date of the ceremony of marriage
(whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to
be and always to have been the legitimate children of their parents:
◦ Provided that nothing contained in this section shall be construed as conferring upon any such children
any rights in or to the property of any person other than their parents in any case where, but for the
passing of this Act, such children would have been incapable of possessing or acquiring any such rights
by reason of their not being the legitimate children of their parents.
24. Void marriages.―(1) Any marriage solemnized under this Act shall be null and void 5[and may,
on a petition presented by either party thereto against the other party, be so declared] by a decree of
nullity if―

2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this
Act within the meaning of section 18, but the registration of any such marriage under Chapter III may
be declared to be of no effect if the registration was in contravention of any of the conditions
specified in clauses (a) to (e) of section 15:
 Deepak Kumar Krishna & Anr v. District
Registrar & Ors,
Issue: Whether S.15(f) and S. 16 are mandatory or directory in nature?

Held:

i) S. 15(f) is directory in nature. Based on a reading of S. 24(2), which conspicuously excludes s. 15(1)
(f). Therefore non-compliance with this section would not deem the solemnization of the marriage
void under the act nor will it render the registration granted invalid.
ii) Section 16 is mandatory in nature since it is a clear statutory procedural requirement. It is a literal
requirement that cannot be waived by the Marriage Officer. The intent behind this section is giving
time to ascertain whether the parties have complied with S. 15 of the act.
iii) Merely because a law causes hardship it cannot be interpreted in a manner to defeat its object.
 Consequences of marriage under SMA
◦ Section 19- A Hindu, Sikh, Buddhist or Jain who is a member of a joint family marries under this Act it
would result in the severance of his portion of the joint family property. In other words, marriage under
SMA amounts to involuntary and automatic partition.

◦ Section 20- CDRA protects the property rights of those who have become apostates. This protection shall
also apply to anyone marrying under SMA. Therefore, people getting married under SMA do not lose
their rights of inheritance and property rights vis-a-vis their natal family.

◦ Section 21- For a person who marries under SMA, their property will devolve unto the heirs under the
Indian Succession Act, 1925 and not their personal law. The property of the children of such parents who
get married under SMA, will also devolve according to the ISA, 1925.

◦ Exception- 21A (Where both parties are Hindus, Buddhists, Sikhs or Jains, Section 19, 20 and 21 will
not apply)