Specifications of the Special Marriage Act

The Origin and Compromises of Special Marriage Act, 1954:

The Special Marriage Act came into force in 1954 in addition to the series of reforms to personal laws in India which was considered as a priority by Jawaharlal Nehru. The Special Marriage Act came into existence as legislation to govern marriages that could not be performed due to religious customs which are different in case of inter-caste marriages.

This act also comes to rescue for couples who belong from the same community and don’t want their marriage governed by relevant personal laws and can be registered under the Special Marriage Act after performing the religious rites

There was a similar law during 1872 but it has some problematic elements which included renunciation of a religion by anyone getting married under it.

Now anyone can get married under the Special Marriage Act and there is no need to give up your religion and also there are proper provisions regarding divorce, custody of children and alimony. This act came into force to avoid cultural issues for marrying outside against one’s religion or caste.

This act came during the time when Nehru was involved in a struggle with Hindu conservatives who were not satisfied with the proposal of reforming the Hindu personal law as well as with the idea of unrestricted inter-religious marriages.

As a conclusion, the Special Marriage Act came to include a number of provisions in order to serve as a compromise between Nehru and the conservatives, out of which two are given as:

A notice period is required before marriage is conducted, and this makes the process more complicated.

If a Hindu, Buddhist, Sikh or Jain gets married out of the community, they will not be considered the part of the undivided family anymore i.e. they cannot get the ancestral property if they get married to a Muslim, Christian etc.

Conditions for getting married under Special Marriage Act:

The Special Marriage Act applies to entire India except for Jammu & Kashmir. However, citizens of India residing in Jammu & Kashmir, but are from another state can also get married in accordance with the Special Marriage Act. Also, the language of the core provisions of the Special Marriage Act is gender-neutral. However, other provisions ask for one party to be male and the other female and this act was intended to apply on heterosexual marriages.

Section 4 of the Special Marriage Act asks for the following conditions to be fulfilled for a couple to get married under this act:

Neither of the parties has a living spouse.

Neither of them is incapable of giving consent to the marriage due to an unsound mind.

Neither of them has been through recurrent attacks of insanity.

The man should be 21 years or older and then the girl should be 18 years or older.

They are not under the ‘degrees of prohibited relationship’. Also, this concept doesn’t allow marriage between first cousins, and other relations by marriage.

If a couple wants to get married under the Special Marriage Act, the conditions are same under Section 15 of the act.

Steps to register a marriage under the Special Marriage Act

If a couple wants to get married or get their marriage registered under the Special Marriage Act which will be an inter-faith marriage, the following steps will be undertaken:

A notice has to be given in writing to the ‘Marriage Officer’ of the district by the couple in which at least one of them has to be residing in the district for the last 30 days. As per section 5 of the Special Marriage Act, the marriage is scheduled to happen within three months from the date of the notice.

After the notice has been received by the Marriage Officer, it will be published by displaying it in their office in a noticeable place. Also, a copy has to be kept in a ‘Marriage Notice Book’ which can be checked by anyone free of charge under Section 6 of Special Marriage Act.

Within 30 days of the notice has been published, anyone can object to the marriage if it contradicts any of the conditions of the marriage such as age, capacity to consent, etc. As per Section 7 of the Special Marriage Act, if there are no objections, the marriage can be finalized by the end of the 30-day period.

Under section 11 of the Special Marriage Act, after the objections have been resolved, the couple and the three witnesses have to sign a declaration in the presence of the Marriage Officer who will also countersign it.

After this, the marriage can be legalized usually at the Marriage Officer’s office in the district court. As per section 12 of the Special Marriage Act, each party has to say the confession to each other to accept the other person as the lawfully wedded husband or wife in the presence of the Marriage Officer and the three witnesses in any language understood by the parties.

After the solemnization is done the Marriage Officer registers the details in a certificate which has to be signed by the parties to the marriage as well as the three witnesses. With compliance to section 13 of the Special Marriage Act, the certificate is entered in the ‘Marriage Certificate Book’ which is the evidence of the marriage under this act.

Misuse of the 30-day objection period

Under the Special Marriage Act, a marriage can only take place after the notice period explained by it. However, no other marriage law in India implies any requirement to provide notice to any government or to random parties to object to the marriage. The requirement was included in the Special Marriage Act to provide an opportunity for the families of bride or groom to know about the coming wedding and make attempts to dissuade the couple. It prevents any escape because of the 30-day residency requirement and the Marriage Officer will publish the information.

This step is burdensome as well as dangerous and defeats the motive of the Special Marriage Act as many inter-faith marriages still take place under the circumstances where the families or the communities object to the union and the lives of the couple are at risk. Also, the local authorities will find a way to impose more difficult conditions on the couple taking the benefit of the notice requirement.

For instance, Haryana’s Court Marriage requires the notice to be sent to the home address of the couple and published in a national newspaper. Also, the bride and the groom should not be staying together at this time which is not a condition in case of Special Marriage Act.

Such requirements are not essential and also attack the couple’s privacy. Privacy, being a fundamental right cannot be violated without law and should also satisfy the proportionality and legitimacy requirements of notice to be sent to one’s family or the couple to be living separately, satisfy neither.

Rulings of the court to help couples from being harassed

Courts have made these additional requirements as illegal. Also, the Special Marriage Act was enacted in order to ensure a special form of marriage for any Indian national belonging to different faiths or for a civil form of marriage.

In February 2018, the Rajasthan High Court stated that the Special Marriage Act only requires the notice to be displayed on a display board at the Marriage Officer’s office. Also, the high court made it clear that authorities cannot impose additional requirements on couples.

In July 2018, the Punjab and Haryana High Court highlighted that the Special Marriage Act has to be implemented in a way so as to promote interfaith marriages.

Although the Special Marriage Act itself has some of the objections to be raised against an approaching marriage, however, the objections can only be made on the grounds specified under Section 4 of the Special Marriage Act.