FAMILY LAW-I

SPECIAL MARRIAGE ACT AND ITS FEATURES

Submitted to: Prof. B.S. Manjunath

Submitted by: Madhurima Singh

BA01300034
II year B.A.L.L.B., (Hons.), 3rd Semester

INDEX
1. Acknowledgement
2. Introduction
3. Conditions for marriage
4. Ceremonies
5. Effect of the marriage
6. Civil marriage registration
7. Remedies
8. Advantages to Hindus marrying under this Act
9. Remarriage of divorced persons
10. Matrimonial reliefs under the Special Marriage Act, 1954
compared with those under the Hindu Marriage Act, 1955
11.The Marriage Laws (Amendment) Act, 2001 [No. 49 of
2001] Amendments To The Special Marriage Act, 1954
12. Proposed Amendments Marriage Laws (Amendment) Bill
2010 (Bill No. XLI Of 2010) in Special Marriage Act, 1954.
13. Bibliography

ACKNOWLEDGEMENT

I take this opportunity to express my sincere gratitude to each and every person who has
directly or indirectly helped me through this project. My experience has been fulfilling and
rewarding. I also extend my sincere thanks to Mr. B.S. Manjunath, Faculty, Tamil Nadu
National Law School, Trichy for giving me the opportunity to work on this topic and carry
out my project work. It is a pleasure to express my sincere gratitude for his continuous
support and guidance which helped me in accomplishing this project successfully. I thank
him for providing his invaluable time, support, and co-operation to complete the project
work.

INTRODUCTION
The Special Marriage Act, 1954 is an Act of the Parliament of India enacted to provide a
special form of marriage for the people of India and all Indian nationals in foreign countries,
irrespective of the religion or faith followed by either party.1 The Act originated from a piece
of legislation proposed during the late 19th century.
In 1872 Act III, 1872 was enacted but later it was found inadequate for certain desired
reforms, and Parliament enacted a new legislation. Henry Sumner Maine first introduced Act
III of 1872, which would permit any dissenters to marry whomever they chose under a new
civil marriage law. In the final wording, the law sought to legitimize marriages for those
willing to renounce their profession of faith altogether ("I do not profess the Hindu, Christian,
Jewish, etc. religion"). Overall, the response from local governments and administrators was
that they were unanimously opposed to Maines Bill and believed the legislation encouraged
marriages based on lust, which would inevitably lead to immorality.2
The Special Marriage Act, 1954 replaced the old Act III, 1872. The new enactment has 3
major objectives:
1. To provide a special form of marriage in certain cases,
2. To provide for registration of certain marriages and,
3. To provide for divorce.3

1
2
3

"Special Marriage Act (iloveindia.com)". Archived from the original on 2010-09-24

Perveez Mody, Love and the Law: Love-Marriage in Delhi, Modern Asian Studies 36:1 (2002): 223-256
"Divorce, under the Special Marriage Act, 1954 (valkilno1.com)". Archived from the original on 2010-09-24.

CONDITIONS FOR MARRIAGE

The conditions for marriage necessary under this Act are as follows (Section 4):

1. The parties should not have a spouse living.

2. Neither parties should not be an idiot or lunatic.
3. The bridegroom must be 21 years old and the bride should be 18 years of age.
4. The parties must not be within the prohibited degree of relationship mentioned in the first
schedule of the Act.
5. Where the marriage is solemnised outside the territories to which Act applies, both parties
should be citizens of and domiciled within the territories to which the Act applies.

CEREMONIES
The formalities for a Civil Marriage under the Special Marriage Act begin with a notice
which has to be given by the bride and the bridegroom to the Marriage Officer of the district
in which one of them had been residing immediately previous to the notice for at least 30
days. The Marriage Officer is supposed to record the notice in the Marriage Notice book and
then affix a copy of the notice to a conspicuous part of his office and sends a copy to the
Marriage Officer of the district in which the party giving the notice has permanent residence
and it would be affixed by that officer also in his office. When the notice is thus published by
the Marriage Officer, 30 days time is given for any person to raise any objections to the
intended marriage. From the date of receipt of objections within 30 days the Marriage Officer
should enquire into the objections. If he upholds the objections, either party to the intended
marriage may prefer an appeal to the District Court whose decision shall be final. When there
is no objection, or the objection has been rejected, the parties with 3 witnesses sign in the
presence of the Marriage Office declaring to the effect that they are unmarried and are not
related within the prohibited degrees and have completed 21 years (bridegroom) and 18 years
(bride) of age respectively. Then the marriage is solemnized in any form, which the parties
choose to adopt. But this form, whatever it may be, should include a declaration by each

party to the effect; I take thee to be my lawful wife or husband. The parties and the three
witnesses then sign the certificate of solemnisation. The solemnisation should be completed
within three months from the date of the notice. Otherwise the notice lapses and a new notice
will have to be issued.

EFFECT OF THE MARRIAGE

a) If the Hindu marrying under the Special Marriage Act of 1954 was prior to the marriage of
a member of Hindu joint family, the effect of his family is to server him from that family.
That is, he becomes a divided member. He will not have the right of survivorship in that
family. (Section 19)

b) He will not lose his share in the joint family property. He will not forfeit his claim to
inherit the property of any person, which he could otherwise have inherited. That is, in this
respect his position would have that of convert from Hinduism who can claim the benefit of
the Caste Disabilities Removal Act of 1850 (also called the Freedom of Religion Act). Before
that Act, as a result of conversion a Hindu lost his right to inherit in the Hindu family, to
which he belonged prior to his conversion. That Act removed that consequence and preserved
his righto inherit such relations. A similar result is attained by a marriage under the Special
Marriage Act. (Section 20).

c) Succession to the property of persons marrying under the Act of 1954 as also succession to
the property of the issue of the marriage would be governed by the Indian Succession Act,
1925 (Omitting Chapter III Part V dealing with Parsi intestates). That is, the principles of
intestate succession applicable to Christians will apply. (Section 21)

Under Section 21-A of the Special Marriage Act, 1954, where both parties to the marriage
are Hindus, Section 19 and Section 22 will not apply. The result is that their succession will
be governed by the Hindu Succession Act, 1955.

CIVIL MARRIAGE REGISTRATION

The marriage under Special marriage Act is a civil marriage by registration. The certificate of
the Marriage Officer that this has been done is conclusive evidence of the factum of marriage
under the Act. Even marriages not solemnised under this Act may be registered under the
Act. The parties applying for registration should have been residing within the jurisdictional
area of the Marriage Officer for not less than 30 days immediately prior to their application.
They should have completed age of 21 years at the time of the registration. The effect of
registration under this Act is that the marriage would be deemed to have been solemnised
under this Act.

REMEDIES
A) GROUNDS FOR JUDICIAL SEPARATION:
Under Section 27-A every ground for divorce is a good ground for alternative relief of
judicial separation with 1 exception. Not being heard of for seven years or more is not an
alternative ground for judicial separation in a petition for divorce. But under Section 23
where the petition itself is only for judicial separation, any ground which would suffice for
divorce (including the ground of not being heard for seven years as alive) would also suffice
for the petition of judicial separation. Further, failure to comply with a decree for restitution
of conjugal rights is a good ground for judicial separation. To serve as a ground for divorce
the decree should remain uncomplied with for 1 or more year. There is no such waiting time
when the remedy sought is only judicial separation.

B) GROUNDS FOR DIVORCE:

Either husband or wife can file a petition for divorce on the ground that the respondent :1. Had a voluntary sexual intercourse with a 3rd person.
2. Is undergoing sentence of imprisonment for seven years or more for an offence under the
IPC.
3. Had deserted the petitioner for 2 years prior to the petition

4. Has treated the petitioner with cruelty

5. Has been incurably of unsound mind or suffering from mental disorder to such an extent
that petitioner cannot be reasonably expected to live with respondent.
6. Has been suffering from venereal disease in a communicable form.
7. Has been suffering from leprosy, the disease not having been contracted from the
petitioner.
8. Has not been heard of as being alive for 7 years or more.
9. Has not resumed cohabitation for 1 year or more after the passing of a decree for judicial
separation against the respondent.
10. Has failed to comply with a decree for restitution of conjugal rights for one year or more.

SPECIAL GROUNDS FOR WIFE:

1. Husband being guilty of rape, sodomy or bestiality.
2. Though order for separate maintenance was passed against husband, he has not resumed
cohabitation for one year or upwards.

C) DIVORCE BY MUTUAL CONSENT:

Divorce is possible under the Special Marriage Act, 1954 by mutual consent. If the husband
and wife are living separately for one year or more and are not able to live together, then they
may mutually agree that the marriage should be dissolved. A petition for divorce may be
presented by both the parties stating these facts. Then they should wait for 6 months.
Thereafter before the expiry of 18 months from the petition, they should jointly move the
Court for a decree. The Court may, thereupon, pass a decree declaring the marriage to be
dissolved with effect from the date of the decree. No petition for divorce can be presented
unless at the date of the presentation of the petition one year has passed since the date of
entering the certificate of marriage in the Marriage Certificate Book (Section 29). In case of
exceptional hardship this rule may be relaxed by the Court.

ADVANTAGES TO HINDUS MARRYING

UNDER THIS ACT
Two Hindus may validly marry under the Special Marriage Act of 1954. Under the original
Special Marriage Act of 1872, the party to a Special Marriage had to make a declaration that
he was not a Hindu. That requirement is no longer there. The advantages of a marriage under
this Act are the following:
APPLICATION OF INDIAN SUCCESSION ACT, 1925:
(i) When one of the parties to Special Marriage dies, though he or she is a Hindu, Succession
to his/her property would be governed not by Hindu Law but by the rules applicable to
Christians under the Indian Succession Act of 1925. These latter rules are more scientific and
agreeable to modern notions of nearness of relationship than the ancient rules of Hindu Law.
(ii) The husband becomes severed from his joint family. So if he dies, his share in joint
family property would not be taken by his surviving brothers. The widow can claim the
property. This was a distinct advantage to the wife marrying under the Special Marriage Act.
The Hindu Marriage Act of 1955, however, has improved the position of the widow for she
can now claim inheritance to the coparcenary property of her husband. The rules of
succession under this Act are also consonant to modern notions. So by Section. 21-A of the
Special Marriage Act it is now provided that where both parties to the marriage are Hindus
(which includes Buddists, Sikhs and Jains), there would be no automatic severance of
jointness and the rules under the Indian Succession Act would not apply.

REMEDIES:
DIVORCE BY MUTUAL CONSENT:
Under Section 28 of the Special Marriage Act, 1954, if a couple whose marriage has been
solemnised under this Act have lived separately for a period of one year or more and unable
to live together, they may jointly petition to the Court to dissolve their marriage. The court
would wait for six months, to see whether the parties change their minds and withdraw their
petition. Thereafter before the expiry of 18 months, the parties may jointly move the Court
and the Court may declare their marriage to be dissolved. The remedy of divorce by mutual

consent was not available under the Hindu Marriage Act of 1955. It is an advantage from one
point of view as it points to an easy way out of an unhappy marriage. The remedy of divorce
by mutual consent under the Hindu Marriage Act, 1955 only since 1976.

REMARRIAGE OF DIVORCED PERSONS

EFFECT OF DIVORCE DECREE: - In Biswanath Mitra v. Anjali Mitra4 the marriage of A
with B was dissolved in 1958 under the Special Marriage Act, 1954. The Act prescribes a
period of one year before the parties can remarry. However A married C before the expiry of
the period and she had children of this marriage. In a proceeding by her for judicial
separation from C, on the ground of cruelty, it was held that her marriage was void as it was
performed before the expiry of one year from the date of dissolution of her previous
marriage. The children were no doubt pronounced legitimate by granting a decree of nullity.
According to this decision, the first marriage of A would come to an end only when the
waiting period for remarriage expires. This is no doubt anomalous for the marriage is deemed
to continue to be valid even after the Court has ended it by solemn decree.
The anomaly has now been removed. The Special Marriage Act has been amended. The one
year waiting period has been dropped. Section 30 provides that divorced persons may
remarry as soon as the divorce decree becomes final.

AIR 1975 Cal. 45

MATRIMONIAL RELIEFS UNDER THE

SPECIAL MARRIAGE ACT, 1954 COMPARED
WITH THOSE UNDER THE HINDU MARRIAGE
ACT, 1955

Before 1976 amendments

There is a provision for divorce both under the Special Marriage Act, 1954 and Hindu
Marriage Act, 1955. But there is a vital difference of policy in the approach to this social
problem. Under the Special Marriage Act, 1954, the policy is to facilitate divorce. This act is
voluntarily availed of by progressive people who wish to transcend barriers of religion and
caste for their marriage. If such people find that the foundered, they should have adequate
scope for dissolution of the marriage. So divorce is made comparatively easier.
The Act of 1955 governs all Hindu Marriages compulsorily unless the parties solemnise their
marriage under the Special Marriage Act of 1954. So the provisions for divorce are stricter
under the Act of 1955. Thus while nothing short of living in adultery was sufficient for
divorce under the Act of 1955, mere commission of adultery is sufficient under the Act of
1954. Further the Act of 1955 contains a special provision for Divorce by consent under s.
23 of the Act. There was no comparable provision under the Act of 1955, till the Amendment
of 1976.
Under the Hindu Marriage Act of 1955 there are two grounds for divorce, which do not
afford ground for any matrimonial relief under the Act of 1954. These are: (1) Change of
religion (2) Renunciation of the world by joining a religious order. Since the parties marrying
under the Act of 1954 are likely to be of progressive outlook, these are not recognised as
grounds for relief under the Act. The Act of 1955 provides that the wife may seek divorce if
her husband had taken another wife before the Act came into force. No such problem can
arise under the Act of 1954.
Barring these special considerations, the provisions for divorce under the Act of 1955 have
been virtually borrowed from the Act of 1954 and are identical.

1976 Amendments

The Marriage Laws (Amendment) Act of 1976 has introduced profound changes both in the
Special Marriage Act, 1954 and the Hindu Marriage Act, 1955. The object of the
Amendments is to assimilate the provisions under the two Acts and to streamline the law as
to divorce.
Hindus can avail themselves of the relief of divorce under Hindu Marriage Act, 1955, or
under the Special Marriage Act, 1954. The provisions of the Act of 1954 are applicable only
if the parties solemnise or register their marriage under that Act. In other cases Hindus are
governed by the Act of 1955.
Prior to the Amendment of 1976 the provisions for divorce under these two Acts displayed
considerable dissimilarities. The Amending legislation of 1976 removed the divergences and
assimilated these provisions. Thus divorce by mutual consent previously available only under
the Special Marriage Act has been applied also to the Hindu Marriage Act. The period of
time over which a disability should have extended has either omitted altogether (e.g. virulent
leprosy and communicable venerable disease: period of 3 years omitted) or has been
uniformly reduced to the same period under both Acts (e.g. non-compliance with decree for
restitution of conjugal rights; non-resumption of cohabitation after passing of decree for
judicial separation); 2 years period reduced to 1 year; Desertion: Period reduced from 3 years
to 2 years (under Special Marriage Act). To both Acts new grounds are added which are
especially available to the wife; e.g. non-cohabitation for 1 year after decree for separate
maintenance under Hindu Adoption and Maintenance Act or order.

THE MARRIAGE LAWS (AMMENDMENT) ACT,

20015
[No. 49 of 2001]
AMMENDMENTS TO THE SPECIAL
MARRIAGE ACT, 1954
AMMENDMENTS OF SECTION 36:
In Section 36 of the Special Marriage Act, 1954 (43 of 1954) (hereafter in this chapter
referred to as the Special Marriage Act), the following proviso shall be inserted, namely:
Provided that the application for the payment of expenses of the proceedings and such
weekly or monthly sum during the proceeding under Chapter V or Chapter VI, shall, as far as
possible, be disposed of within sixty days from the date of service of notice on the husband.

AMMENDMENT OF SECTION 38:

In Section 38 of the Special Marriage Act, the following proviso shall be inserted, namely:
Provided that the application with respect to the maintenance and education of the minor
children, during the proceedings, under Chapter V or Chapter VI, shall, as of service of notice
on the respondent.

PROPOSED AMMENDMENTS BY MARRIAGE

LAWS (AMMENDMENT) BILL 2010 (Bill No. XLI
OF 2010) in Special Marriage Act, 1954.
5

Received the assent of the president on September 21, 2001 and published in the Gazette of India, Extra Part
11, Section 1

AMMENDMENT OF SEC. 28:

Section 28, in sub-section (2), for the words, brackets and figure on the motion of both
parties made not earlier than six months after the date of the presentation of the petition
referred to in sub-section (7) and not later than eighteen months after the said date, if the
petition is not withdrawn in the meantime. The words, brackets and figure Upon receipt of
a petition under sub-section (1) shall be substituted.

Sec. 28-A Divorce on ground of irretrievable breakdown of marriage1. A petition for the dissolution of marriage by a decree of divorce may be presented to
the District Court by either party to a marriage [whether solemnized before or after
the commencement of the Marriage Laws (Amendment) Act, 2010] on the ground
that the marriage has broken down irretrievably.
2. The Court hearing a petition referred to in sub-section (1) shall not hold the marriage
to have broken down irretrievably unless it is satisfied that the parties have lived apart
for a continuous period of not less than three years immediately preceding the
presentation of the petition.
3. If the Court is satisfied on the evidence, as to the fact mentioned in sub-section (2),
then unless it is satisfied on all the evidence that the marriage has not broken down
irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.
4. In considering, for the purpose of sub-section (2), whether the period for which the
parties to a marriage have lived apart has been continuous, no account shall be taken
of any one period (not exceeding three months in all) during which the parties
resumed living with each other, but no other period during which the parties lived
with each other shall count as part of the period for which the parties to the marriage
lived apart.
5. For the purpose of sub-sections (2) and (4), husband and wife shall be treated as living
apart unless they are living with each other in the same household, and reference in
this section to the parties to a marriage living with each other shall be constructed as
reference to their living with each other in the same household.

Sec. 28-B Wifes right to oppose petition on grounds of hardship1. Where the wife is the respondent to a petition for the dissolution of marriage by a
decree of divorce under Section 28-A, she may oppose the grant of a decree on the
ground that the dissolution of the marriage will result in grave financial hardship to
her and that it would, in all the circumstances, be wrong to dissolve the marriage.
2. Where the grant of a decree is opposed by the virtue of this section, then

If the court finds that the petitioner is entitled to rely on the ground set out in
Section 28-A; and

If apart from this section the Court would grant a decree on-the petition
The Court shall consider all the circumstances, including the conduct of the

parties to the marriage and interests of those parties and of any children or of other
persons concerned, and if, the Court is of the opinion that the dissolution of the
marriage shall result in grave financial hardship to the respondent and that it would in
all the circumstances be wrong to dissolve the marriage, it shall dismiss the petition,
or in an appropriate case stay the proceedings until arrangements have been made to
its satisfaction to eliminate the hardship.

Sec. 28-C Restriction on decree of divorce affecting childrenThe Court shall not pass a decree of divorce under Section 28-A unless the Court is
satisfied that adequate provision for the maintenance of children born out of the
marriage has been made consistently with the financial capacity of the parties to the
marriage.
Explanation- In this section, the expression children means

Minor children;

Unmarried or Widowed daughters who have not the financial resources to support
themselves; and

Children who because of special condition of their physical or mental health, need
looking after and do not have financial resources to support themselves.

Amendment to Sec.40-A-

In Section 40-A of the Special Marriage Act in sub-section (7), after the word and figures
Section 27, at both the places where they occur, the words, figures and letter or
Section 28-A shall be inserted.

BIBLIOGRAPHY

Prof. GCV Subba raos family law in India.