ACKNOWLEDGEMENT

A project is a joint endeavor which is to be accomplished with utmost compassion, diligence

and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time. This project would not have
been completed without combined effort of my revered Faculty- in-charge of the subject DR.
Ashok Panditrao Wadje whose support and guidance was the driving force to successfully
complete this project. I express my heartfelt gratitude to him. Also due to my parents, family,
siblings, my dear friends and all those who helped me in this project in any way. Last but not
the least; I would like to express my sincere gratitude to our Family Law teacher for
providing us with such a golden opportunity to showcase our talents.

It was truly an endeavor which enabled me to embark on a journey which redefined my

intelligentsia, induced my mind to discover the intricacies involved.

- SOUMIKI GHOSH

-Roll No. 10

- 3rd Semester

- B.A. LL.B (Hons.)

1
 TABLE OF CONTENTS

Acknowledgement ………………………………………………………....1

Research Methodology ………………………………………………………..

………….…………3

Hypothesis……………………………………………………………….....3

Limitations……….…………………………………………………………3

Research Questions
………………………………………………………………………..…….3

Introduction…………………………………………………………….......4

Impact of Special Marriage

Act………………………………………………………………………….6

Infirmities within Special Marriage

Act………………………………………………………………………….9

Analysis……………………………..…………………………………….14

Conclusion &
Recommendations………………………………………………………...16

Bibliography……………………………………………………………....18

2
 Research Methodology

This project report is based on Descriptive Research Methodology. Secondary and Electronic
resources have been largely used to gather information and data about the topic. Books and
other reference as guided by Faculty have been primarily helpful in giving this project a firm
structure. Websites, dictionaries and articles have also been referred. Doctrinal as well as
non-doctrinal research in order to collect qualitative and quantitative data was also used. The
doctrinal research includes the use of literary sources while interview of people,
questionnaires and observation will form the part of non-doctrinal research.

Hypothesis

The purpose of this thesis is to provide an introduction to Infirmities of Special Marriage Act,
its basic concept along with some landmark cases and an introduction to laws relating to
Divorce.

Limitations

The researcher has based her research to the theory given by some of the eminent jurists and
their interpretations relating to “Divorce in Hindu Marriage”.

Research Questions

 What are the theories regarding Special Marriage Act?

 What are the public opinion regarding Special Marriage Act?

 What are the impact and infirmities of the Special Marriage Act?

 What are the reasons of adopting the concept of Special Marriage Act in India?

3
 INTRODUCTION

‘Marriage’ is considered a sacred institution in our Indian subcontinent.  It is an integral part

of our culture. India is a diverse country and thus has people from a number of religions and
cultures, residing here.

When it comes to marriages in India, arranged marriages are considered the best way to get a
boy and a girl to tie the marital knot. Indian parents are the ones who take utmost interest in
it, right from the girl or boy they want their child to get married to, till the date and time of
marriage. This is so because there prevails this thinking that they are a lot wiser and
experienced than their children, and will decide the best for them. Indians consider marriage
as an auspicious culmination of two souls, that they decide every ritual of marriage according
to the astrological positioning of the stars of the bride and the groom.

 Earlier, marriages were commenced where the bride and the groom were unaware of who
they were getting married to, as every decision was taken by their respective parents and
meeting of bride and the groom was not a practice that prevailed (though this was in the
ancient times), now times have changed and every decision relating to marriage is taken by
the bride and groom themselves.

 We are aware of the extent of influence that caste and religion have in our country. And
when it comes to marriage, it is considered the most important criteria for a properly
solemnized marriage. Parents select the prospective bride/groom for their children from the
same caste as theirs. Inter-caste marriage is still considered a taboo in many places in our
country. India follows a very rigid structure of the caste system. People are expected to marry
within their caste and whoever marries out of their caste and defy the traditional barriers are
shunned in the society. There are number of honour killings reported every year (highest
being in the states of Haryana) and unfortunately, they show pride in doing so. Thus there
came a grave need for a law to safeguard the interests of those people who rose above these
caste and religious divides, to marry for love. So the Parliament enacted the Special
Marriage Act, 1954 which provides for a special form of marriage for the people of India and
all Indian nationals in foreign countries, irrespective of the caste and religion they follow.

4
The object of the legislators in enacting the Special Marriage Act was to attempt to lay down
a uniform law for the entire territory of India. Inter-religious marriages are usually performed
under this law, however, same religion marriages may also be performed if the parties so
choose. This Act was enacted in reformative spirit to encourage people to give up their cast
oriented sentiments and accept inter-religious marriages. But this was done with caution and
the initial Act contained a provision which said that those who married under this Act would
no longer remain legal part of the joint family that they were before. This shall be further
explained in the final research project. This was done so that interests of both groups
remained ‘balanced’. Although this Act is a step towards realizing the objective of having a
uniform civil code in the country, the procedure to be followed to marry and register the
marriage is cumbersome because of which not many marriages take place under this Act.
Marriage is a civil contract under Special Marriage Act, not requiring performance of any
ceremonies. There are other conditions to be satisfied in this Act for the marriage to be
validly registered which conflict with the personal laws of the religion the parties belong to.
For example, first cousin marriages though acceptable as a valid marriage under Hindu and
Muslim personal laws are void marriages under Special Marriage Act. Therefore, such
marriages cannot be registered. There is conflict with regard to the age of majority to get
married as well. A number of such infirmities in the law will be highlighted.

5
 IMPACT OF SPECIAL MARRIAGE ACT

Overall Analysis of the Special Marriage Act

When enacted in 1954, the Special Marriage Act was intended – and indeed was in those
times – a reformatory law which was in sync with the aspirations and vision of our Directive
Principles. By legalizing inter-caste and inter-religious marriages, India had taken a laudable
and progressive step towards integration of the country through integration of the people. The
Special Marriage Act is a special legislation which was enacted to provide for a special form
of marriage by registration where the parties to the marriage are not required to renounce
his/her religion, which they would have had to in order to marry under any of the personal
laws. Therefore, this statute is often considered as recognition of the independence of the
individuals from the collective coercive diktats of marriage. The reality however, is quite
different. Prima facie, no aberrations are observable in the object and reasons clause of the
Act. But the procedure laid down in the Act is rather cumbersome, time consuming and is in
some cases inconsistent with the criterion specified in personal laws. For instance, the
minimum age of the male should be 21 and the female 18, which is inconsistent with most if
not all of the personal laws where both parties can be lawfully married even before they attain
18 years of age. The process of performance of the marriage, its registration and grant of
marriage certificate is unnecessarily lengthy and cumbersome. According to S.5 of the Act
the parties to be married must notify the Marriage Officer of the district in which at least one
of the parties has resided for a minimum of 30 days. The first step itself causes an
unnecessary delay, rendering speedy marriage in case of an emergency impossible. It also
increases the possibilities of the couple being tracked by their family members, if they did not
obtain their consent to get married. Further, S. 6 of the Act requires the Marriage Officer to
enter the notice of such intended marriage in the Marriage Notice Book which will be open to
inspection by any person desirous of doing so, without any fee or charge. The procedure
further demands the Marriage Officer to display such notice in a conspicuous part of the
room. Such procedure not only makes the couple vulnerable to familial pressure tactics but
also to extremist religious and fundamentalist groups who would then strive to prevent the
marriage. The argument adopted for defending such procedure is so that any objections to the
marriage may be recorded (S.7). However, the reality is that it merely makes it easier for
right wing groups to locate and harass these innocent couples whose only crime is to belong
to different castes or different religions and get married despite that. Such procedure grants

6
an indirect license to these Officers to prevent or delay the marriage at the very least, since
objections may be recorded on the flimsiest of grounds. Also, the punishment for baseless
objections is very light i.e. Rs.1000 fine payable to the couple. 1 So, there is hardly any
deterrence in this regard which is rather worrisome since it does not accord such acts the
proper weight that an offence should have. A strange fact regarding filing of objections with
the Marriage Officer is that as per S.10 of the Special Marriage Act, the Marriage Officer
may refer the objections to the Central Government which would revert the matter to the said
officer after conducting suitable enquiry and giving its decision. Personal laws governing
marriage do not have such a clause and it is in fact absurd for the Central Government to be
involved in a matter as individual and personal as marriage. Except for Delhi, every other city
follows the dangerous practice of sending intimation to the families of the couple getting
married which makes it easier to locate them, putting their very lives in danger in some cases.
It seems as if the Special Marriage Act has too many rules and safeguards which though well-
meaning certainly cause discomfort to the couple intending to marry by way of unwarranted
interference.

Response and attitude of the society towards the Special Marriage Act

India is still a reluctant receptor of inter-caste and inter-religious marriages, although the
situation has improved considerably since 1954. More and more marriages are being
solemnized under this Act, even by parties from the same religion. But a large population is
still against inter-religious and inter-caste marriages which makes it imperative to alter S.6(2)
if not repeal it altogether. Most couples are in danger of being confronted and harassed by
fundamentalist elements and putting up notices announcing intended marriages only
heightens these dangers. Moreover such a complex procedure would require to parties to hire
a lawyer to perform the marriage which would only add to the cost the parties have to incur
by living in a different city altogether for a month. Caste and religiosity are so deeply
entrenched in the consciousness of society that advocates, Marriage Officers and even
District Magistrates and Additional District Magistrates advice couples against marriage
under the Special Marriage Act. Although there are no official statistics, people prefer
conversion to one of the partner’s religions to get married rather than subject themselves to
the cumbersome procedure and risk getting caught by their family members or fundamentalist
outfits. People often prefer marrying under the Muslim Marriage Act, 1957 since it has the

1
Kameshwar Choudhary, ‘Anatomy of the Special Marriage Act’ (1991) Economic and Political Weekly 2981

7
simplest procedure and the formalities take no more than half a day. This could be one
possible reason for the mass conversions of girls to Islam in Kerala.2

2
Izzie ‘Of Indian Marriage Laws and Conversions: The Case of Saifeena’ (Muslimah Media Watch, 27 February
2013)

8
 INFIRMITIES WITHIN THE ACT

As has been categorically stated above that although the Act was initially created with the
intention to facilitate inter-faith marriage, it has not served its purpose effectively. In fact, it
deters people from marrying under this Act due the unnecessarily lengthy and complicated
procedure that has to be followed, leading them to convert rather than face the hassle of
getting married under this Act. A comparison of the said Act in relation to the Hindu
Marriage Act, 1955 and Muslim Marriage Act, 1957 shall be done to highlight the infirmities
in the Act.

Marriage:-
Marriage under Muslim Law
The legal incidents of marriage in Islam are very simple. Marriage may be performed without
any ceremony or rites. Neither writing nor any religious ceremony is necessary. The main
requirements for a marriage under Muslim have been stated as follows3 –

1. A Muslim marriage requires proposal (Ijab) from one party and acceptance (Qubul)
from the other as is required for a contract. Both the proposal and the acceptance must
be done in the same meeting. Moreover there can be no marriage without free consent
and such consent should not be obtained by means of coercion, fraud or undue
influence.
2. In case of legal incompetence like minority or unsoundness of mind, a guardian may
validly enter into a contract for marriage on his/her behalf.
3. Just as in case of contract, entered by a guardian, on attaining majority, so can a
marriage contract in Muslim Law, be set aside by a minor on attaining the age of
puberty.
4. The parties to a Muslim marriage may enter into any ante-nuptial or postnuptial
agreement which is enforceable by law provided it is reasonable and not opposed to
the policy of Islam. Same is the case with a contract.
5. The terms of a marriage contract may also be altered within legal limits to suit
individual cases.
6. Under Shia law, no witnesses are required for the marriage to be held valid, however,
under Sunni law it is essential for the proposal and acceptance to take place before
3
‘Essentials of Valid Muslim Marriage’ (WebIndia123, 21 March 2014)

9
 two male Muslim adults or one male and two female Muslim adults being of sane
mind.

Marriage under Hindu Law

The essentials for a marriage under Hindu law to be married have been laid down under the
Hindu Marriage Act, 1955 as follows –

1. Both parties must be Hindus.

2. Monogamy: None of the parties should have a spouse living at the time of marriage.
3. Sound Mind: The parties must be of sound mind and not suffering from any mental
incapacity.
4. Degrees of Prohibited Relationships: The parties must not have a relationship that
prohibits marriage between the two. However, if a valid custom allows such marriage,
there is nothing to restrict them from doing so.

According to S.7 of the Hindu Marriage Act, 1955 a Hindu marriage may be solemnized
according to the customary rites of either of the parties. In the case of Chandrabhagbai
Ganpati v. S.N. Kanwar4, the issue whether saptpadi was mandatory for a legal marriage
arose and it was held that by the trial court as well as the High Court that the marriage was
legal notwithstanding the fact that the marriage ceremonies did not include saptpadi. A
marriage is presumed to have been duly solemnized if it is shown that performance of some
of the ceremonies usually observed on the occasion of marriage has taken place. In other
words, if the marriage is shown to have in fact taken place, ceremonies are presumed to have
been duly performed.5 However, mere fact of joint living for a long time without any
ceremonies would not constitute a valid marriage.6

Marriage under Special Marriage Act

Marriage under the Special Marriage Act does not stand on ceremony and is a secular law
which prescribes the procedure for a court marriage. S.5 of the Act provides for a notice to
the Marriage Officer of the district when a marriage is said to be solemnized under this Act,
in which one of the parties of the marriage should have resided for a period not less than 30
days immediately preceding the date on which notice is given. S.6 prescribes that notices
shall be entered in the marriage notice book by the Marriage Officer and such book can be
4
2008 MLR 21 (Bom).
5
Bai Diwali v. Moti 22 Bom 509 (1898).
6
Surjit Kaur v. Garja Singh AIR 1994 SC 135.

10
inspected by any person without fee at a reasonable time. The Marriage Officer shall publish
such notice and affix a copy of the same at some conspicuous place in the office. If the
parties are not permanent residents in the local district, then the notice has to be transmitted
to the place where the other party resides permanently. The object of this publication is to
register objections, if any. Every petition under S.31 of the SMA has to be presented to the
district court within the local limits of whose ordinary civil jurisdiction7 –

i) The marriage was solemnized; or

ii) The respondent at the time of the presentation of the petition resides; or
iii) The parties to the marriage last resided together; or
iv) The petitioner is residing at the time of the presentation of the petition in a case
where the respondent is at that time residing outside the territories to which this
Act extends or has not been heard of being alive for 7 years by those who would
have naturally heard of him, were he alive.

Therefore, it can be clearly observed that the procedure for marriage is rather lengthy and
time consuming under SMA whereas; under the Hindu and Muslim personal laws it is far
easier with relaxed standards, so much so that not even registration of the marriage is
required. This makes SMA the least preferred mode of marriage.8

Divorce:-

Initially, SMA was the only law that provided for a divorce based on mutual consent.
However, after the 1976 amendments, S.13B of HMA lays down the conditions and
procedure for a mutual consent divorce. Under the Hindu Marriage Act, 1955 S.13 lays down
the grounds of divorce other than mutual consent. Divorce can be obtained on the following
grounds –

1. Adultery
2. Cruelty
3. Desertion
4. Conversion to another religion
5. Incurably of unsound mind or suffering intermittently from mental disorder

7
Kluwer, International Encyclopedia of Laws: Family and Succession Law, vol 3
8
Sandeep Joshi, ‘Court Marriages Not an Easy Affair’ (Times of India, 14 October 2002)

11
 6. Suffering from virulent and incurable form of leprosy
7. Suffering from a communicable venereal disease
8. Renunciation of the world
9. Has not been heard of being alive for 7 yrs

S.27 of the Special Marriage Act has been couched in the same exact words as in the Hindu
Marriage Act, albeit with a slight difference of two additional grounds of divorce i.e. on
grounds of indulging in rape, sodomy or bestiality and non-cohabitation for a year or above
after passing of a maintenance order under S.18 of HAMA, 1956 or S.125 CrPC. Under both
the statutes it was laid down that neither party to the marriage should be idiot or lunatic. But
violation of this condition rendered marriage null and void under the Special Marriage Act,
but only voidable under the Hindu Marriage Act.9

For obtaining a mutual consent divorce under SMA or Hindu law the following three
conditions have to be satisfied10 –

1. The parties have been living separately for a period of atleast one year
2. They have not been able to live together and
3. They have mutually agreed to have the marriage dissolved

S.2 of the Dissolution of Muslim Marriages Act, 1939 lays down nine different grounds for
divorce exercisable by the wife. Apart from these grounds, other grounds mentioned in the
Quran i.e. Khula and Mubarat can also be procedures of divorce. While Khula is the absolute
right of the woman to obtain a divorce from her husband, Mubarat is a mutual consent
divorce. Further, the triple talaq form of divorce by the husband has been laid down by the
Quran (Talaq-ul-Ahsan and Talaq-ul-Hasan) as well as that in customary practice (Talaq-ul-
Biddat) are also valid and recognized forms of divorce in India.

Inheritance:-

Before the Marriage Laws (Amendment) Act, 1976 if a Hindu performed a civil marriage
then he/she would be effectively severed from his/her religion and from the coparcenaries
9
Paras Diwan, ‘Marriage and Divorce Law Reforms [The Marriage Laws (Amendment) Act, 1976]’ (EBC India:
Legally Addictive, 1977)
10
Kusum, Family Law Lectures-I (3rd edn, Lexis Nexis Butterworths Wadhwa, 2011).

12
whose member he/she was at the time of the marriage. This deterred Hindus from registering
their marriages under the secular SMA and only those who rebel against the wishes of their
family The Amendment Act, 1976 modifies this consequence so that, if both the parties to the
civil marriage are Hindus then it will not affect their severance, but if only one of them is a
Hindu, then it will still effect severance of status. 11 When both parties are believers of
different religions, marriage between them neither effects severance from their religions nor
disentitles them from any claim they may have had in the property of their parents or
ancestors. The inheritance will devolve on them as per the Indian Succession Act, 1925.
Further, all their offspring would be governed by the Indian Succession Act but would not be
entitled to inherit or have any rights over the properties of anyone except their parents. That
is, no entitlement to inherit from grandparents, uncles or aunts etc. Further, if two people
following the same religion get married under SMA they will be governed by their respective
personal laws and do not have an option of choosing to be governed by the secular Indian
Succession Act, 1925.

ANALYSIS

SMA as a concept is very practical, logical and in fact the need of the hour. However, there
are inconsistencies among the provisions as compared to the personal laws especially with
11
Paras Diwan, ‘Ceremonial Validity of Hindu Marriage: Need for Reform ’ (1977) 2 SCC J-22.

13
regard to the age of marriage and procedure for marriage. Another aspect that differentiates
SMA from personal laws is that marriage must be registered to be valid whereas, it need not
be under personal laws. The reason for this is the differential ages in marriage. Under Hindu
law the bride must be at least 15 yrs and the groom at least 18 yrs of age, under Muslim law
the girl is eligible for marriage as soon as she attains puberty and same goes for the boy. But
under SMA both the parties (of same religion) have to be 21 yrs of age to get their marriage
registered. This creates a lot of problems for those under 21 with respect to registration of
their marriage. Moreover, this differentiation in the age of marriage prevents registration
since child marriages, though prohibited by the Prohibition of Child Marriages Act, 2006, are
valid under personal laws. There is an urgent need to revise and amend both personal laws as
well as SMA to reconcile them with each other and facilitate registration of marriages.
Following inconsistencies and infirmities have been noticed in the Special Marriage Act,
1955 –

1. Age of parties: Parties marrying under SMA and belonging to different religions must
be of 18 yrs and 21 yrs for the woman and the man respectively, while parties of the
same religion marrying under SMA must both be 21 yrs of age for their marriage to
be registered.
2. Inheritance: Both parties following the same religion marry under SMA. They will be
governed by their personal laws in matters of inheritance and succession and do not
have the option of choosing to abide by the secular Indian Succession Act.
3. Procedure: This is a major contention with SMA. The procedure prescribed is so
lengthy and cumbersome and the repercussions are sometimes so dangerous to the
point of being life-threatening that couples prefer conversion rather than marrying
under this so-called secular law. Not only is the procedure excruciatingly tiresome,
the Marriage Officers and other personnel handling registration of such marriages
assume the title of self-declared marriage counselors who repeatedly advise the
couple getting married to ‘mend their ways’ and not indulge in such a union as if it
were a sin that they were committing. More often than not these Officers send notices
to the families of the couple stating their intention of marriage, current address etc.
Personal laws do not require any notice of intending marriage to be posted practically
inviting objections. This exposes such couples to the wrath of fundamentalist groups
who then either inform the parents or attempt to convince or force the couple to desist
from marrying each other.

14
CONCLUSION & RECOMMENDATIONS

15
Marriage is viewed as a holy organization in India. It is a fundamental piece of our way of
life. India is a nation which subsequently has individuals from various religions and societies,
dwelling here. We know about the degree of impact that rank and religion have in our
country is still thought about an unthinkable in numerous spots in our nation. India takes after
an exceptionally unbending structure of the position framework. Individuals are required to
wed inside their position and whoever weds out of their station and challenge the customary
hindrances are avoided in the general public. There are various respect killings revealed
ordinary and tragically, they demonstrate pride in doing as such. Accordingly there came a
grave requirement for a law to defend the interests of those individuals who transcended these
station and religious partitions, to wed for affection. So the parliament authorize the Special
Marriage Act, 1954 individuals of India and every single Indian national in outside nations,
regardless of the rank and religion. On the premise of Research issue, the analyst infers that
Registration is a 1954 accommodates obligatory enlistment as without the enrollment
marriage won't be legitimate. The one of a kind component of the Special Marriage Act, 1954
is that any marriage solemnized in some other shape under some other law, Indian or
nonnative, between any two people can be enlisted under the Act. Enlistment of marriage is
obligatory under the Indian Christian Marriages Act, 1872.Parsi Marriage and Divorce Act,
1936 makes important Registration of Marriages yet without enrollment the marriage does
not wind up invalid. In Muslim law, a marriage is viewed as a common contract and the Qazi,
or administering cleric, likewise records the terms of the marriage in a nikahnama, which is
given over to the wedded couple i.e. there is an arrangement of private enlistment of
marriage. Under Section 8 of the Hindu Marriage Act 1954, there exists an arrangement for
enrollment of relational unions. Be that as it may, it's left to the contracting gatherings to
either solemnize the marriage before the sub-recorder or enlist it subsequent to playing out
the function in congruity with Hindu convictions.

The non-acceptance of inter-caste and inter-religious marriages in our country has given
SMA a bad name, labeling it a provision under which those couples who do not have any
other option or haven’t been blessed by their families get married. Such archaic notions
prevent progress in the society, creating multiple problems for liberal thinking people who
promote individual freedom to marry whomever one chooses opposed to familial
involvement in choosing a ‘suitable’ partner. There is an immediate need to alter the thought
process of people for the benefit of the society and the rights of individuals. Personal laws
often downplay women's’ rights, sidelining them over preference to the male gender. A

16
secular law applicable to all is the answer to this conundrum and laws must become the
catalyst to change and influence public thought.

BIBLIOGRAPHY

17
BOOKS

 Kusum, Family Law Lectures-I (2nd edn, Lexis Nexis Butterworths Wadhwa, 1999)
 Kusum, Family Law Lectures-I (3rd edn, Lexis Nexis Butterworths Wadhwa, 2011)
 Diwan, PModern Hindu Law (Allahabad Law Agency, 2014)
 Walter Pintens (ed), International Encyclopedia of Laws: Family and Succession
Law, vol 3 (Kluwer, 2012)

ARTICLES

 Diwan, P, ‘Ceremonial Validity of Hindu Marriage: Need for Reform ’ (1977) 2 SCC
J-22
 Joshi, S, ‘Court Marriages Not an Easy Affair’ (Times of India, 14 October 2002)
 Diwan, P, ‘Marriage and Divorce Law Reforms [The Marriage Laws (Amendment)
Act, 1976]’ (EBC India: Legally Addictive, 1977)

 Kameshwar Choudhary, ‘Anatomy of the Special Marriage Act’ (1991) Economic

and Political Weekly 2981

WEBSITES AND REPORTS

 ‘Review of Laws and Legislative Measures Affecting Women’ (National

Commission for Women, 10 February 2015)

 Law Commission, Hindu Marriage Act, 1955 and Special Marriage Act, 1954 (Law
Com No 59, 1974)
 Swaraj, K, ‘Inconsistencies in Special Marriage Act’, Legal Services India, 20.01.14

 Izzie ‘Of Indian Marriage Laws and Conversions: The Case of Saifeena’ (Muslimah
Media Watch, 27 February 2013)
 ‘Essentials of Valid Muslim Marriage’ (WebIndia123, 21 March 2014)

18