NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

PERSONAL LAW – II

TOPIC – SPECIAL MARRIAGE ACT AND ITS IMPACT ON

PROPERTY RIGHTS

SUBMITTED TO SUBMITTED BY
MR.AKSHYA VERMA PARUL PRIYA NAYAK
(Assistant Professor ) ( 18ba074)
 TABLE OF CONTENT
Introduction .............................................................................................................................. 3
Marriage and Its Registration under Special Marriage Act .......................................... 4
Hindu Law ....................................................................................................................... 4
Muslim Law .................................................................................................................... 5
Christian Law .................................................................................................................. 6
Bigamy ................................................................................................................................. 7
Bigmay shall not apply if : .............................................................................................. 8
Conditions ....................................................................................................................... 9
Legitimacy of children........................................................................................................ 9
Succession Rights .............................................................................................................. 10
Restriction on Divorce during 1st year of marriage ...................................................... 11
The general and legal Understanding ............................................................................. 11
Conclusion .............................................................................................................................. 13

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 INTRODUCTION
The Special Marriage Act of 1954 played a major role in the development of the thought
process of the citizens by creating a law which truly does not look at one’s caste, religion, belief
system in the area of law which is dominated by statutes and legislations which have such a
bias. By providing for inter-caste and inter-religion marriages the notion of singularity was
bought forward by the law where choice prevailed over all, and the diverse culture of India
accommodated for the same. The Special Marriage Act of 1954 was introduced in order to
secularize the personal law matters of marriage and the related concepts of the same. The Act
provides in detail provisions for marriages of citizens belonging to different religions, castes
or non-believers. The registration therefore takes place without recognition as to the religion
that the marrying parties follow. The Act applies to all those citizens of India who reside in the
country, and does not differentiate on the basis of the religion Hindu Marriage Act, Parsi
Marriage and Divorce Act or others. Further, even citizens of the country who reside outside
(NRIs) can be brought under the purview of this Act.

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MARRIAGE AND ITS REGISTRATION UNDER SPECIAL MARRIAGE ACT
In 1954 Special marriage Act if parties are same religion but if marriage is inter community or
inter religious marriage which are not often allowed under personal law . Under special
marriage act , 1954 wef 9th october 1954 the objective of preamble is to provide a special from
of marriage in certain cases of registration and divorce. Advantage of the parties don’t convert
, an uniform family law applies to them that goverened by Indian Succession Act 1925. People
those who are belonging from two different religion or domiciled in India or Aboard can marry
, even people who are from same religion and those who are married couple can register for
marriage.

Hindu Law
The term Hindu has its origin not on the basis of the religion Hinduism but geography. Hindu
term came from Sindhu , it was a term to denote people who were settled around the Sindhu
river ( present Day Indus river) .Later Sindhu became Hindu and the term was used to identify
people who were not Muslims or Christians so in a way the definition of Hindu was more of
negative (i.e. who is not a Hindu) rather than positive (i.e. who is Hindu ).

The word shruti derived from the word Sru which means to hear and signifies what is heard
from the veda . The shrutis consists 4 Vedas and upanishads dealing chiefly with religious
rites and the means of attaining these knowledge and moksha for salvation. The four Vedas
are “Rig Veda” contains mostly eulogies of good laws of sacrifices. “Sam Vedas” consists of
prayers composed Mantra intended to be chanted at sacrifices. “Yajur Veda” are more
frequently associated with ritual and endowed with magic properties. “Athara Veda” consists
of magic charms. The word Smriti means what was remembered and is believed to be the
recollection of Rishis handed down to us. Smritis do not contain purely law (they actually deal
with religious and moral law there is is a mixture of loll religion and morality). The smritis are
of two kinds they are Prose style is called “Dharma sutra” In Poetry style is called
“Dharma Shastra” . Commentaries and digest are the record of the traditional custom
recorded in the Smriti as well as new customs. The principal commentaries are Mitakshara
and Dayabhaga .Customs is a habitual course of conduct observed uniformly and voluntarily
by the people concerned. Kind of Customs local custom which are applicable to a particular
locality like a country, state, district, Town or village binding on the resident of that locality.
Class custom which are applicable to a particular caste our community or the followers of a
particular profession or occupation. Family custom are those customers which are applicable
to a particular family only and do not apply to any person who are not member of such family.

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Legislation is a modern source of Hindu law it has been an important factor in the direction of
reforming Hindu law. It was difficult to find fixed principles of law on several areas. The
British government passed a certain act which have effect of changing the religious nature of
Hindu law at several instances.

Some Enacted Hindu Laws as follows:

1. The Hindu Widows Remarriage Act , 1856

2. The Special Marriage Act , 1872 ( Reappealed by Act 43 of 1954)

3. The Hindu Marriage act 1955

4. The Hindu succession Act 1956

5. The Adoption and Maintenance Act , 1956

Judicial decision constituted an important and source of law. A“precedent is not a merely and
evidence of law but also source of law and the courts are bound to follow the precedents.
Legislation and Judicial decisions are not source they have modified and supplemented the
pure Hindu Law and now they have they have emerged as important sources of the present
Hindu”law.

Equity as a branch of legal system, may be said to be mean the principles or rules emerging in
the course of administration of justice particularly in those cases, where an account of
inadequacy of law, the judges evolve certain general principle on the basis of justice and
fairness and propriety .

Muslim Law
Muslim law is divine law as opposed to man made law which are passed by legislatures. It is a
concept of ones of god unlike Hindus which believe in plurality of gods. Muslims believe that
Mohammed was the last prophet sent by god (Allah) and Quran is the only revealed book of
Allah . Muslims acknowledge religious preachers and leaders after Mohammed but they were
not considered prophets. In Islamic society was not divided on basis of castes like Hindu
society and everyone was considered as an equal in the eyes of god.

Muslim Marriage is a contract and there are no ceremonies required for marriage in Muslim
Law, only the conditions for a valid contract of marriage must be fulfilled which are :

• The parties must have the capacity to contract marriage

• There should be a proposal

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The proposal (ijab) and Acceptance(qubul) should be there for a valid Muslim nikah. There
should be two male witness oR one male and two female witness. Proposal and acceptance
should be without be without ambiguities and should be made by the parties themselves or by
other on their behalf. The proposal and acceptance should be expressed in one meeting. A
assurance to marry in future does not constitute a proposal.

• There should be acceptance of proposal

• There should be no impediments to the marriage

Capacity to contract marriage any Muslims with sound mind who has attained the age of
puberty has a capacity to marry. The persons who are not of sound of mind or who have not
attained puberty can be married by their guardians.

Marrying a person from different religion

▪ A women cannot marry any man who is not a muslim under muslim law

▪ A sunnai mohammedan can marry a non Muslim women if she is Kitabai ( If the religion
is revealed through a divine book then it is called kitabia, Hinduism is not kitabia)

▪ A shia mohammedan cannot marry a non Muslim women even if she is a Kitabia.

If the other person converts to Islam before marriage then there is no bar.

Christian Law
“The Indian“Christian Marriage Act 1872 provides that every marriage both parties to which
are, or either party to which is, Christian shall be solemnized in accordance with its provisions.
The Indian Christian Marriage Act 1872 is obsolete in so far as it makes a distinction between
“Christians” .and “Indian Christians” .It also makes separate provisions for followers of various
Churches including Church of England .Church of Scotland and Church of Rome. The Act
provides separate rules for the solemnisation and registration of marriages of Indian Christians
and other”Christians”1.

1
The Indian Christian Marriage Act, 1872

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BIGAMY
Bigamy may be defined as the act of marrying one person while legally married to another .In
other words, bigamy may be defined as a second marriage by a person during the lifetime of
the partner and during the subsistence of the first marriage. In Hindu law, marriage is
considered to be sacrosanct, a holy union of two persons.

Before “the enactment of Hindu Marriage Act , 1955 , polygamy among Hindu men was
common and enjoyed social acceptance. But this position changed with Hindu Marriage Act
coming into force in the year 1955”2.

“Section 5(i) of the“said Act stipulates that marriage can be solemnised between any two
Hindus if “neither party has a spouse living at the time of the marriage” , and section 11 declares
a marriage void if it is in contravention of section5(i)[4].Further, section 17 provides that the
provisions of sections 494 and 495 of the Indian penal code shall apply where either of the
parties has a spouse living at the time of the marriage. Section 11 of the Act declares second
marriage to be null”and void”3.

Further, section 17 provided that the provisions of the sections 494 and 495 of the Indian Penal
code shall apply where either of the parties has a spouse living at the time at the marriage.

But unfortunately, “Muslims laws though they do not recognize polyandry, do allow polygamy
as per their personal laws. The shariat act 1937 , refers to the Sharia law as the law of the land
for the Muslims. Muslims are governed by whatever is specified in the Quran. Which states
that a man can marry up to four women at the time , only if he can take care of them. Therefore
, currently , all religions and their personal laws, except Islam , prohibit bigmay”4.

“Section 494 of IPC – Marrying again during lifetime of husband or wife. Whoever , having a
husband or wife living , marries in any case in which such marriage is void by reason of its
taking place during the life of such husband or wife, shall be punished with imprisonment of
either description for a term which may extend to seven years , and shall also be liable to fine”5.

2
Hindu Marriage Act , 1955

3
Section5(i)[4] The Indian Penal Code 1860
4
The shariat Act ,1937

5
(494) , The Indian Penal Code, 1960

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Bigmay shall not apply if :
• The first husband or wife is dead , or

• The first marriage has been declared void by the court of competent jurisdiction, or

• The first marriage has been dissolved by divorce, or

• The first spouse has been absent pr not heard of continually for a space of seven years. The
party marrying must inform the person with whom he or she marries of this fact.

Classification of offence

Punishment “Imprisonment for 7 years and fine , non- cognizable – bailable – and triable by
magistrate of the first class and compoundable by the husband or wife of the person so
marrying with the permission of the court”.

Section 495 of IPC : “Same offence with concealment of former marriage from person with
whom subsequent marriage is contracted”6:

The section punishes a person who commits bigamy by concealing the former marriage from
the person with whom he contracts the subsequent marriage.

Punishment : Criminal shall be punished with simple or rigorous imprisonment extending up

to ten years , and shall also be liable to fine.

The “section contemplates that the offender must commit the offence of marrying again during
the lifetime of the husband or wife, as the case may be, as defined in section 494. The offender
must do so after having concealed the fact of the former marriage from the person with whom
the subsequent marriage is contracted . The offence under the section is naturally more serious
that the one under section 494, the fact of” concealment.

No court shall take cognizance of the offence, under section 495 except upon a complaint made
by some person aggrieved by such offence.

The points requiring proof under Section 495 are:

• The accused had already been married;

• Such marriage was legal ;

• The person with whom he was married was still alive

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(495) , The Indian Penal Code, 1960.

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• The accused married another person

Conditions
Conditions of marriage under special marriage act 1954 Neither party is incapable of giving a
valid consent to it in the consequence of unsoundness of mind , has been suffering from mental
disorder and has been subjected to have attacks of instantly and epilepsy.

• The bride must have completed 18 years of age and the bridgegroom has completed 21
years of age.

• The parties are not within the degree of prohibited relationship.

• Neither there party has a spouse living

LEGITIMACY OF CHILDREN
Marriage is a backbone of every society because it helps society continuing by adding unit into
it. Moreover, it is one of the most important phase in every personal life because it unites two
persons of different sex for whole life and arises some matrimonial rights and obligations
between them. It gives legitimacy to the child born out of their wedlock. These things are
possible only in case of valid marriage.

But if marriage is void or voidable marriage in the situation will be different section 11 of
Hindu Marriage Act 1955 deals with the provisions of void marriage and section 12 of
Hindu Marriage Act 1955 deals with the provision of voidable marriage.

According “to Hindu marriage Act , 1955 a void marriages no marriage. It is void ab initio i.e.
it does not exist from its very beginning. It is a marriage only because parties to it have
undergone the ceremonies of marriage but as they absolutely lack of the capacity to marry they
cannot be considered husband wife. It does not create any rights and obligation and confer the
status of husband and wife”7.

According to this act it is not necessary to get decree of nullity of marriage in case of void
marriage. Even when the court passes it decree it merely declares that marriages null and void.
It is not a decree of court which renders such a marriage void. Parties to marriage sought this
decree just to avoid subsequent to get the initially reliefs.

7
Hindu marriage Act , 1955

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According to this the grounds given under Section – 11 applies only to the marriages
solemnized after commencement of this Act i.e. after 18 may ,1955. Moreover , this Act
provides the provisions regarding criminal liability in case of void marriage.

Whereas according to Hindu Marriage Act 1955 avoidable marriage is a valid marriage until
it is avoided by any of the party to marriage. It remains valid and binding and continues to
subsist for all purpose unless decree annuls it. According to Section 12 the aggrieved spouse
can get the decree of nuility of marriage if another spouse is unable to consummate the
marriage because of importance or if other spouse is suffering from mental disorder or if the
consent of spouse has been obtained by fraud or of its famous female spouse the fact pre -
marriage pregnancy.

According to Section 16 of Hindu Marriage Act 1955, “if any child born out of a void
marriage or a voidable marriage which has been declared null and void that child will be
considered legitimate child. But, that child will inherent the property of his parent only and
have not inherit the property of ancestors his parents. The main aim of the section to protect
the child from being considered as a bastard”8.

SUCCESSION RIGHTS
Hindu Succession Act governs intestate succession of male and female Hindus. If some-one
who is a Hindu dies without executing will or other testament this act tells us the procedure
how his property has to be distributed among the legal heirs and who are those legal heirs and
order of succession.

So far as male Hindu it’s Section 6 (Coparcenary Property) Sec 8 (Self Acquired Property).
Female a Hindu it’s Sec 15.

2005 Act removed three concept of pious obligation and also removed the rider on daughters
in claiming share in dwelling house.

2005 Act also conferred Coparcenary status on the daughter of a Coparcenary.

The recent Judgement of Apex Court cured the problem of daughters whose father died prior
to 9/9/2005.

Daughters to get share in the ancestral property show two things First: Properties are available
for partition( rest of the coparceners i.e, brothers did not partition the properties as on

8
(16) of Hindu Marriage Act 1955

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20/12/2004 and Second:if they say so,the Partition must be either a registered one or by way
of a decree of a Court)

Infact no partition suit by daughter shall be dismissed because she, if not entitled in her
independent capacity of as coparcenar atleast she is entitled to share out of the share of her
deceased father under Sec 6(3) of HSA.

Many Judges denied share to daughters by dismissing the suits based on Prakash Vs Pulvati
Judgement. Thanks to the Apex Court for putting an end to the controversy. I personally feel
Partition suit shall not be dismissed unless the defendants succeed in proving the plea of ouster.
If it is dismissed it’s either the mistake of Judge or Counsel Representing the Plaintiff.

RESTRICTION ON DIVORCE DURING 1ST YEAR OF MARRIAGE

Under “Hindu Marriage Act, divorce can be sought from the Family Court under Section 13 of
Hindu Marriage Act however the divorce petition is maintainable only after the expiry of oNE
YEAR from the date of the marriage. But there is provision under Section 14 of the Act which
empowered the Court to waive off this one year period under exceptional circumstances. The
petitioner has to give some cogent reasons for waiving off this period. In case the petition is
filed within one year from the date of the marriage, the court may dismiss it as not maintainable
or may adjourned till date when one year period is going to expiry”9.

THE GENERAL AND LEGAL UNDERSTANDING

It is very difficult to investigate into the origin of marriage. It appear to be a pre historic
arrangement. But it has given a push for a disciplined life. Many historical information are
mere imagination of many historians.

Is the definition of marriage is limited to one man one woman relationship? or can it be a part
of multicultural activities where, more than two persons are involved. is fixing a person for a
limited period can also be considered as marriage? There are also instances where, more than
two women or men are involved in a single marriage, or if we want to call it as first marriage.
Are we in a discussion to analyse it or whether we are thinking of finding good or bad with
such practices.

Mythological or historical facts or information about marriages will differ from one culture to
another, and from one country to the other. We cannot justify one, and find fault with another,
without knowing the environmental facts, or information.

9
The Special Marriage Act, 1954

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Time and situations are different, including cause and effect. let us try to arrive at a positive
opinion, about every type of marriages, instead of pick and choose, our opinion, and project it.

We know that marriage is a universal concept, linked to all cultures in one way or the other.
Cultural labels may be there for different marriages. But all are for a disciplined life. Let us
honour it.

Let us also do not think about a life without the custom of marriage, even though exception
may be there.

Responsibilities are more for women than men, suffering also contribute to their
responsibilities. It is not known why nature has made this issue non-compromising, a non-
balancing set-up for the living race.

If marriage is abolished, men are the beneficiaries, a diminishing rate of population will set in,
and also an un-organised life with frequent clashes like animals. The time has not come to think
of an alternative to married life.

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 CONCLUSION
The Special Marriage Act of 1954 is the only secular personal law in India other than the
Guardians and Wards Act. This Act aims at providing a uniform law of marriage across all
boards and does not distinguish citizens in the matter of the “holy union” of two people. The
concept of inter-caste marriages and inter-religious marriages found certain backing and
support after the enactment of this law which provides for a wide ambit of provisions which
aim at completely covering all aspects of marriage which one may deem important during the
course of marriage and hurdles in the same. In understanding the law it is also important to
understand that the Act is different from the Hindu Marriage Act which is the most prevalent
law for marriage in the country. The Hindu Marriage Act specifically caters only to the Hindus,
Sikhs, Jains and Buddhists whereas the Special Marriage Act covers under its purview, all
citizens of the country. The laws also have procedural differences with regard to solemnization
and registration of marriage as well as minute changes such as the ones as seen in the case of
Dawn Henderson v. D Henderson, 1970 above. It is to be noted that in case of conflict, the
specific law prevails over the general law, i.e. the Hindu Marriage Act prevails over the Special
Marriage Act of 1954. In conclusion, the Special Marriage Act of 1954 which proved as the
need of the hour during the time of its enactment still persists to be an important facet of the
personal laws as well as secular laws in India.

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