JAMIA MILLIA ISLAMIA

THE INDIAN DIVORCE ACT, 1869

AND
THE SPECIAL MARRIAGE ACT, 1954

Submitted By,
Name :- Hritikka Kak
Student ID :- 201901747
B.A. L.L.B. (Vth Semester) (Regular)
Faculty Of Law, Jamia Millia Islamia
Submitted To :- Prof. Kahkashan Y. Danyal
 CONTENTS
 Acknowledgment
 The Indian Divorce Act, 1869
 Introduction
 The Indian Divorce Act – An Outline
 Grounds For Dissolution Of Marriage

 Documents Required To File A Divorce

 Procedure For Filling A Divorce
 Types Of Divorce Petitions
 Divorce With Mutual Consent
 Alimony Or Maintenance Issues
 Custody Of The Child
 Property Rights
 Duration Of Divorce

 Divorce Without Mutual Consent

 Petition By Husband
 Petition By Wife
 Contents Of Petition
 Dismissal Of Petition
 Decree For Dissolving The Marriage
 Confirmation Of Decree For Dissolution
 Verification By High Court
 Petition For Decree Of Nullity
 Juridical Separation
 Application For Juridical Separation
 Separated Wife
 Alimony
 Computing Amount Of Alimony

 Factors That Influence The Amount Of Alimony

 Property Settlements
 Child Custody
 Adultery
 Desertion
 Conversion
 Presumption Of Death
 Cases Realted The Indian Divorce Act, 1869
 Amardeep Singh Vs Harveen Kaur
 Y Narasimha Rao Vs Y Venkata Lakshmi
 Suman Kapur Vs Sudhir Kapur
 Naveen Kohli Vs Neelu Kohli
 Vinita Saxena Vs Pankaj Pandit
 Conclusion
 The Special Marriage Act, 1954
 Introduction
 Conditions For Marriage
 Applicability
 Requirements For Marriage

 Succession To The Property

 Registration Of Marriage Under The Special Marriage Act In India
 Nullity Of Marriage
 Void Marriage

 Grounds Of Void Marriage

 Voidable Marriage
 Grounds Of Voidable Marriage
 Restitution Of Conjugal Rights

 Judicial Separation
 Grounds For Judicial Separation
 Cases Related The Special Marriage Act, 1954
 Subhransu Sarkar Vs Indrani Sarkar
 Conclusion
 Bibliography

ACKNOWLEDGMENT
I would like to express my special thanks of gratitude to my teacher
Prof. Kahkashan Y. Danyal, who gave me the golden opportunity to
do this wonderful project on the topic The Indian Divorce Act, 1869
and The Special Marriage Act, 1954. This also helped me in doing a
lot of research and I came to know about so many new things. I am
really thankful to Ma’am for her guidance and support. Secondly, I
would also like to thank my parents and friends who helped me a lot
in finishing this project within the time period. I am making this
project not only for marks but to also increase my knowledge.

Thank You.

THE INDIAN DIVORCE ACT, 1869

INTRODUCTION
The Indian Divorce Act governs divorce among the Christian couples in India. Divorce is the
legal dissolution of the marital union between a man and a woman. According to this act, the
separation is granted by the court of law after receiving a petition from either wife or
husband. Divorce is followed by granting alimony, child custody, and child visitation,
distribution of property and distribution of debts. Before opting for a divorce, the Christian
couple should be aware of the fact that a divorce procedure in our country. In this article, we
will look at The Indian Divorce Act in detail.

THE INDIAN DIVORCE ACT – AN OUTLINE

The Indian Divorce Act was drafted into the Indian legal system in the year 1869. In India
divorce rules and procedure varies according to the community of the couple. As stated
above divorce among Christians is governed by the Indian Divorce Act, 1869, Hindus,
Buddhists, Sikhs and Jains by the Hindu Marriage Act, 1955, Muslims by the Dissolution of
Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and the
civil and inter-community marriages by the Special Marriage Act, 1956. The State of Jammu
and Kashmir is excluded under the ambit of this divorce Act, though residents domiciled in
other states but residing in Jammu and Kashmir would qualify for these rules and provisions.

GROUNDS FOR DISSOLUTION OF MARRIAGE

Section 10 of the Indian Divorce Act contains grounds on which a court may dissolve a
marriage. In order to avail a divorce, the husband or wife must file a petition before the
District Court. This is basically the court under whose jurisdiction the parties solemnized their
marriage or they reside or last resided together. The court may grant a divorce under any of the
following grounds:
 When one of the parties commits adultery.
 If a party ceases to be a Christian.
 In case of a party being of unsound mind for two years.
 If a party has been suffering from leprosy or a venereal disease for two years.
 In case of a party wilfully refusing to consummate the marriage.
 When a party has deserted the spouse for two years or more.
 In case of a party treating the spouse with cruelty.
Apart from these grounds, the wife can present a petition of divorce on additional grounds. For
example, she can file for divorce if her husband has, after marriage, been guilty of rape,
bestiality, etc.

DOCUMENTS REQUIRED TO FILE A DIVORCE

The following documents have to be furnished for filing a divorce in India according to
the Indian Divorce Act, 1869 :-
 Address proof of husband.
 Address proof of wife.
 Marriage certificate.
 Four passport size photographs of the marriage.
  Evidence for proving spouses are living separately since more than a year.
 Evidence of the failed attempts of reconciliation.
 Income tax statement for the last two to years.
 Details of the profession and present remuneration.
 Information relating to family background.
 Details of property and other assets owned by the petitioner.
PROCEDURE FOR FILLING A DIVORCE
The procedure is regulated for filing a divorce in India is generally regulated by the
provision of Code of Civil Procedure, 1908. The procedure for seeking a divorce is initiated
by filing a petition which is followed by affidavits from both the partners in the district court.
The petition must state the following details :-
 Name of the parties.
 Status and domicile of the parties.
 Date and place of marriage.
 A principal permanent place where the parties cohabit.
 Place where the parties last resided together.
 Names of the children of the marriage (if any) with the date of birth.
 The ground of seeking divorce or separation.
 The facts and details by which the petitioner seeks the relief.
 That the parties are not deceiving the court by collaborating.
 The averments made are verified after six months couple has to re-appear in the front
of court after filing a second motion petition for mutual consent divorce.
 After hearing from both the husband and wife, if the judge is satisfied that all essential
grounds are filing the recruitments and meeting the needs of divorce, the couple grants
a mutual divorce decree.
 Custody of child, alimony to wife and litigation expenses will be considered on issuing
a decree for divorce.

TYPES OF DIVORCE PETITIONS

A Christian couple can get a Divorce with Mutual Consent (no-fault divorce or mutual
divorce), or either spouse may file for Divorce without the Mutual Consent of the other (fault
divorce) as per Indian divorce act.
 Divorce with Mutual Consent :- When the couples agree to a divorce, the courts will
consider a divorce with mutual consent as per. Section 10A of Indian Divorce Act,
1869, requires the couple to be separated for at least two years, the couple only needs
 to provide that they have not been living as husband and wife during this period. The
couples should be separated for over a year. The couple should able to prove that they
have not been able to live together. Matters of children’s custody, maintenance and
property rights need to be agreed to mutually.
 Alimony or Maintenance Issues :- There are three aspects regarding which the
couples have to reach a consensus. One is alimony or maintenance issues. As per
divorce law, there is no minimum or maximum limit of support.
 Custody of the child :- The second consideration will be the custody of the child.
Child custody in the mutual consent divorce can also be shared or joint or exclusive
depending upon the understanding of the spouses.
 Property Rights :- The third is property. The couples must decide who gets which
part of the property (both movable and immovable property). Regarding the bank
accounts, everything must be divided.
 Duration of Divorce :- The duration of divorce by mutual consent varies from six to
18 months, depending on the decision of the court.
 Divorce without Mutual Consent :- According to Indian Diverse act, either the
husband or wife can file the petition for dissolution of Marriage. The conditions when
they can file the petition are explained in detail below:
 Petition by Husband :- Any husband can present a petition to the District Court or
the High Court, praying that his marriage needs to be dissolved on the ground that
his wife has been guilty of adultery since the solemnization of marriage. According
to this act, such marriage might be solemnised according to the Christian Marriage
Act.
 Petition by Wife :- Any wife can present a petition to the District Court or the High
Court for dissolution of marriage. The wife can file such petition under any of the
following circumstances :-
i. If her husband has exchanged his profession of Christianity for the profession of
some other religion.
ii. If the husband went through a form of marriage with another woman.
iii. If her husband has been guilty of incestuous adultery since the solemnization of
marriage.
iv. In case of bigamy with adultery.
v. In case of marriage with another woman with adultery.
vi. In case of rape, sodomy or bestiality.
vii. In case of adultery coupled with such cruelty as without adultery would have
entitled her to a divorce a Mensa et toro.
viii. In the case of adultery coupled with desertion, without reasonable excuse, for two
years or more.
  Contents of Petition :- Every such petition should contain as distinctly as the nature
of the case permits, the facts on which the claim to have such marriage dissolved is
founded.
 Dismissal of Petition :- The court will dismiss the petition for any of the following
cases:
i. In case of evidence for any petition is not satisfied by the court or the petitioner’s
case has not been proved.
ii. If the court is not satisfied that the alleged adultery has been committed, find that
the petitioner has, during the marriage, been accessory to, or conniving at, the
going through of the said form of marriage, or the adultery of the other party to
the marriage, or has condoned the adultery complained of.
iii. If the petition is prosecuted in collusion with either of the respondents and any of
the said cases, the court will dismiss the petition.
When the District Court dismisses a petition under this act, the petitioner can present a
similar petition to the High Court.
 Decree for Dissolving the Marriage :- In case the court is satisfied, and the evidence
of a case of the petitioner has been proved, the court will pronounce a decree declaring
such marriage to be dissolved. According to this act, the Court will not be bound to
pronounce such decree for the following cases:
i. If it finds that the petitioner has been guilty of adultery.
ii. If the petitioner has been guilty of unreasonable delay in presenting or prosecuting
such petition.
iii. In case of cruelty towards the other party to the marriage.
iv. In case of having deserted or wilfully separated himself or herself from the other
party before the adultery complained and without reasonable excuse.
v. In case of such wilful neglect or misconduct towards the other party as has
conducted to the adultery.
 Confirmation of Decree for Dissolution :- Every decree for dissolution of the
marriage made by a District Judge will be subject to confirmation by the High Court.
 Verification by High Court :- The High court will verify the cases for confirmation of
a decree for dissolution of the marriage. If a court composed of three Judges, the
opinion of the majority will prevail or in case of a court composed of two Judges, the
opinion of the Senior Judge will be taken. If the High Court needs for further enquiry
or additional evidence, can direct such enquiry to be made or evidence to be taken. The
result of the enquiry and the additional evidence will be certified to the High Court by
the District Judge, and the High Court will make an order confirming the decree for
dissolution of marriage.

PETITION FOR DECREE OF NULLITY

Any husband or wife can present a petition to the District Court or the High Court, praying
that his or her marriage may be declared as null and void. Decree of Nullity will be made on
any of the following :-
 The respondent was essential at the time of the marriage and at the time of the
institution of the suit.
 The couples are within the prohibited degrees of consanguinity or affinity.
 In case of either party was a lunatic or idiot at the time of the marriage.
 In case the former husband or wife of either party was living at the time of the
solemnization, and the marriage with such former husband or wife was then in force.
Nothing in this section will affect the jurisdiction of the High Court to make decrees of
nullity of marriage on the ground that the consent of either party was obtained by force or
fraud.
Every decree of nullity of a marriage made by the District Judge will be subject to
confirmation by the High Court.

JURIDICAL SEPARATION
Juridical Separation is the legal separation between the husband and the wife, granted by the
court on a petition from either the husband or the wife or both. In judicial separation, the
marital tie between the wife and husband continues to exist, and neither of them enjoys the
freedom to be re-married. The husband or wife can obtain a decree of judicial separation; on
the ground of adultery or cruelty or desertion without reasonable excuse for two years, or
more and such decree will have the effect of divorce under the Indian Divorce Act.
 Application for Juridical separation :- The petition for juridical separation can be
applied on the ground of adultery or cruelty or desertion without reasonable excuse for
two years or more. Either husband or wife can make application for judicial separation
on any one of the grounds as stated above by petition to the District Court or the High
Court; and the court, on being satisfied with the truth of the statements made in such
petition will grant judicial decree separation accordingly.
 Separated Wife :- In case of a judicial separation under this Indian Divorce Act, the
wife will whilst so separated, be considered as an unmarried woman for contract, and
wrongs and injuries, and suing and being sued in any civil proceedings; and her
husband will not be liable in respect of any contract, act or costs entered or incurred by
her during the separation.
i. In every case of a Juridical separation under this Indian Divorce Act, the wife will be
considered as unmarried from the date of the decree, and while the separation
continues.
ii. The separated wife will be considered as unmarried concerning the property of every
description which she acquires.
iii. The property held by the separated wife can be disposed of by her in all respects as
an unmarried woman.

ALIMONY
When two people are married, they must support each other. According to the Code of
Criminal Procedure, 1973, the right of maintenance extends to any person economically
dependent on the marriage. This will include, spouse, dependent children and even indigent
parents.
 Computing amount of alimony :- The alimony claims of either spouse (though, in the
vast majority of cases, it is the wife) depends on whether the husband has sufficient
means. While deciding that the alimony is to be paid, the courts will take into account
the earning potential of the husband, his ability to regenerate his fortune (the property
is given to the wife) and his liabilities. In some cases, the court can make an order to
the husband for payment to the wife of monthly or weekly sums for her maintenance
and support
 Factors that influence the amount of alimony :- The alimony amount depends upon
the length of marriage in a contested divorce, Divorce after a decade of marriage
entitles the spouse to life-long alimony. The other important factors that need to be
considered are given here:
 Age of the person who is entitled to receive the alimony.
 The economic condition or the earnings potential of the person who is entitled to pay
alimony.
 The health of spouse, the failing health or a medical condition of one of the spouses
who is going to receive the alimony may act in favour of him or her. They can claim
larger alimony by their failing health.
 The spouse who retains custody of a child would be entitled to either pay lesser
alimony or be entitled to a greater amount while the child is a minor.

PROPERTY SETTLEMENTS
According to the Indian Divorce Act, if a person is married – irrespective of the fact that a
divorce petition has been filed, that person has the right to occupy the property. In case that
person is looking after children, the case is much stronger, while the property may be granted
to one or the other spouse in the divorce settlement.  Both wife and husband have the right to
remain on the property until the decree from the court.

CHILD CUSTODY
The courts will usually agree to the decision of the parents in a mutual consent divorce; the
courts will be expected to check the best interest of the child. In case of a contested divorce,
the courts will examine the ability of the father or mother be a parent to the child, as stated
above, non-working mothers are regularly given custody of their children, but fathers are
expected to provide financial support.

ADULTERY
In India, adultery could also be considered as a voluntary having a sexual relationship
between one of the married partners and other people who are not their spouses and
considered as a provocation of judicial discard. Recently Hon'ble Supreme Court gave
judgment regarding adultery that it solely be valid for separation and no criminal liability
shall be created in regard to a criminal offense.

DESERTION
The ground for divorce as desertion shall be valid; anyone of the spouse deserts the opposite
partner while not giving any genuine reason. In addition to this, the couples who discontinue
associate degree intention to not live along and it ought to be proof by them. In Hindu Law,
the period for desertion ought to be a minimum of two uninterrupted years. In Indian
Divorce Act 1869, there is no truthful ground for giving divorce in Christian.

CONVERSION
When either couple changes/convert his/her, own faith to a different faith then there will be a
ground for divorce and no reasonable time had been mentioned under any act before
claiming the divorce.

PRESUMPTION OF DEATH
When there is a fear of death of one spouse and not detected alive for a minimum of seven
years, then there is valid ground for different another one to get a divorce.

CASES REALTED THE INDIAN DIVORCE ACT, 1869

Here are some of the following cases related to The Indian Divorce Act, 1869 :-
 Amardeep Singh Vs Harveen Kaur1 :- It was ascertained by the court that there was
an enclosed dispute between the couple and their married life was not good, due to
which there are been many civil and criminal proceedings occurring. Additional
determined to unravel their downside by filing a divorce. The custody of children is
given to the husband and subsistence money will be paid to the wife. Hon'ble Supreme
Court order that parties weren't willing to measure along if the court can grant a sure
amount to measure along which will be additional painful.
 Y Narasimha Rao Vs Y Venkata Lakshmi 2 :- It was a command that marriages that
it will solely be dissolved below either of the customary or law effective in India.
Therefore, the sole law which will apply to married disputes is that the one below that
the parties are married. However, confusion happens in regard to parties are domiciled
abroad however came India for the only real purpose of ritual of a wedding. Once these
parties are domiciled abroad however were married within country under Indian laws,
enter into married disputes, it's unclear whether or not the divorce pleading is
rectifiable in India. The Supreme Court of India has not adjudicated on this matter. The
most read rising from the opinion of the state Supreme Courts is that command by the
Bombay High Court that domicile in India is the command to be a requisite demand for
the appliance of Indian married statutes.

1
AIR 2017 SC 4417
2
1991 SCR (2) 821, 1991 SCC (3) 451
  Suman Kapur Vs Sudhir Kapur3 :- Abortion by a woman without her husband’s
knowledge and consent will amount to mental cruelty and a ground for divorce, the
Supreme Court has held. “Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused by the conduct of the other
for a long time may lead to mental cruelty. A sustained course of abusive and
humiliating treatment calculated to torture, discommode or render life miserable for the
spouse”. It was held: “The treatment complained of and the resultant danger or
apprehension must be very grave, substantial and weighty. Sustained reprehensible
conduct, studied neglect, indifference or total departure from the normal standard of
conjugal kindness, causing injury to mental health or deriving sadistic pleasure, can
also amount to mental cruelty.”
 Naveen Kohli Vs Neelu Kohli4 :- It was held that the marriage had been wrecked
beyond any hope of salvation, the court held that public interest and the interests of all
concerned lay in the recognition, in law, of this fact. That even though the wife was not
agreeable to a divorce by mutual consent and seemed to have resolved to live in agony
only to make the life of her husband a miserable hell, public interest lay in the
dissolution of the marriage bond. Keeping a sham of a marriage alive in law was held
to be more conducive to immorality and potentially more prejudicial to the public
interest than the dissolution of marriage. Not granting a divorce under such
circumstances was held to be disastrous for the parties. The granting of divorce would
offer them the chance, both psychologically and emotionally, to settle down after a
while and start a new chapter in life. 
 Vinita Saxena vs Pankaj Pandit5 :- As to what constitute the required mental cruelty
for purposes of the said provision, will not depend upon the numerical count of such
incidents or only on the continuous course of such conduct but really go by the
intensity, gravity and stigmatic impact of it when meted out even once and the
deleterious effect of it on the mental attitude, necessary for maintaining a conducive
matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only,
the court perhaps need consider the further question as to whether their continuance or
persistence over a period of time render, what normally would, otherwise, not be so
serious an act to be so injurious and painful as to make the spouse charged with them
genuinely and reasonably conclude that the maintenance of matrimonial home is not
possible any longer.

CONCLUSION
Divorce is that the most traumatic event within the lifetime of each man and wife, nobody
desires to travel through this era, however, once this era of life confronts nobody will throw
off it. Therefore, it becomes essential to grasp what area unit our rights and duties, once a
divorce suit is filed, etc. The through couples will obtain a divorce and any matter just like
the maintenance or custody of the kid and property sharing disputes that area unit to be
handled. Women are the worst sufferers in such cases, as in India many women area unit
3
2009 (1) SCC 422
4
2006 (4) SCC 558
5
2006 (3) SCC 778
keen about their husbands for financial backing. Therefore, the article additionally analyses
the rules governing the rights of girls when divorce. In India it has usually thought that men
do not suffer as they're the most culprits behind divorce however in several cases we will see
that those men also are full of the pain of divorce, they need to travel through the mental
torture, monetary burden, and also the most significant is that the humiliation from the
society. Therefore, in the end, the article focuses on the rights that men will avail themselves
when divorce and the recommendation that they ought to take into account before seeking a
divorce.

THE SPECIAL MARRIAGE ACT, 1954

INTRODUCTION
The Special Marriage Act deals with inter-caste and inter-religion marriages. Inter caste
marriage is a marriage between people of two different castes. The days had gone by when
people used to marry wherever their parents decided to blindly. The youth now have their
own saying and choice and prefer to marry someone who is more compatible with them than
marrying someone who belongs to their caste or religion. It is them who have to live for the
whole of their life with their partner and therefore, caste or religion is not a matter of utmost
consideration now at all. Love is a beautiful emotion, and something like caste or religion
should not weigh it up. All religions are equal, and marriage shouldn’t be a big deal among
them. We are conferred on caste or religion by birth and not by choice, so why are people of
the lower castes seen with shame and disdain? India is a diverse country, and it is a pity to
see things like this happening here. The Special Marriage Act is, therefore, a special law
enacted to provide for a unique form of marriage by registration wherein the parties to the
marriage do not have to renounce their religion.

CONDITIONS FOR MARRIAGE

For this special form of marriage, the conditions that must be followed are not very different
from the requirements of other normal marriages that happen within the caste. These are the
conditions to qualify for a marriage under this Act:
 The bridegroom must be at least 21, and at the time of the marriage, the bride must be
at least 18 years of age. This is the minimum age limit respectively for a boy / girl to
marry.
 At the time of their marriage, both parties must be monogamous; i.e., they must be
unmarried and at that time should not have any living spouse. 
 In order to be able to decide for themselves, the parties should be mentally fit, i.e., they
must be sane at the time of marriage.
 They should not be related to themselves through blood relationships; i.e., they should
not be subjected to prohibited relationships that otherwise act as a ground for
dissolving their marriage. 
Court Marriage is a union of two soul where oath ceremony is performed according to
Special Marriage Act-1954 before the Registrar of Marriage in the presence of three
witnesses thereafter a court marriage certificate is issued directly by the Registrar of
Marriage appointed by the Govt. of India.

APPLICABILITY
Here are some applicability’s for marriage :-
 Any person, irrespective of religion.
 Hindus, Muslims, Buddhists, Jains, Sikhs, Christians, Parsis, or Jews can also perform
marriage under the Special Marriage Act, 1954.
 Inter-religion marriages are performed under this Act.
 This Act is applicable to the entire territory of India and extends to intending spouses
who are both Indian nationals living abroad.
 Indian national living abroad.
REQUIREMENTS FOR MARRIAGE
Since Indians believe in marriages with proper rituals, customs, and ceremonies that include
pomp and show & extravagant celebrations, none of them is required by the Special
Marriage Act. The fundamental requirement under this Act for a valid marriage is the
consent of both parties to the marriage. If both parties to the marriage are willing to marry
each other, that’s enough; caste, religion, race, etc. can’t act as a barrier to their union here.
For marriage under this Act, the parties must file with the district’s Marriage Registrar a
notice stating their intention to marry each other in which at least one of the parties to the
marriage has lived for at least 30 days prior to the date on which such notice is filed. After
the expiry of 30 days from the date that such notice was published, the marriage is then said
to be solemnized. But if any person related to the parties’ objects to this marriage and the
registrar finds that it is a reasonable cause of objection, on such grounds he can cancel the
marriage. For a valid marriage, the parties must also give their consent to the marriage before
the marriage officer and three witnesses. These are the basic requirements for a valid
marriage under the Special Marriage Act that every Indian must know about. Here are some
of the points related the requirements for marriage :-
 The marriage performed under the Special Marriage Act, 1954 is a civil contract and
accordingly, there need be no rites or ceremonial requirements.
 The parties have to file a Notice of Intended Marriage in the specified form to the
Marriage Registrar 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.
 After the expiration of thirty days from the date on which notice of an intended
marriage has been published, the marriage may be solemnised, unless it has been
objected to by any person.
 The marriage may be solemnised at the specified Marriage Office.
  Marriage is not binding on the parties unless each party states "I, (A), take thee (B), to
be my lawful wife (or husband)," in the presence of the Marriage Officer and three
witnesses.

SUCCESSION TO THE PROPERTY

Another important point that why every Indian should have knowledge of Special Marriage
Act (SMA) is that the succession to the property of persons married under this act or any
marriage registered under this act and that their children will be governed under the Indian
Succession Act. But if the parties to the marriage belong to Hindu, Buddhist, Sikh, or Jain
religions, then the Hindu Succession Act will govern the succession to their property. In
2006, India’s Supreme Court made it necessary to enrol all relational unions. A marriage can
be registered in India either under the Hindu Marriage Act, 1955 or under the Special
Marriage Act, 1954. The Hindu Marriage Act is relevant to Hindus, although the Special
Marriage Act is suitable for all Indian residents regardless of their religion applicable to the
Court marriage.

REGISTRATION OF MARRIAGE UNDER THE SPECIAL

MARRIAGE ACT IN INDIA
In India, all marriages can be registered either under their respective personal laws (Hindu
Marriage Act, 1955 / Muslim Marriage Act, 1954) or under the Special Marriage Act,1954.
A marriage under the Special Marriage Act, 1954 enables people from two distinct religious
backgrounds to unite in the marriage bond. Unlike personal laws, the Special Marriage Act’s
applicability extends to all Indian citizens regardless of their religion. Although marriage
laws allow only the registration of an already solemnized marriage under personal laws, the
Special Marriage Act provides for both solemnizations and legal registration. The Special
Marriage Act has designed a simple means of legally registering a marriage between two
people of different religions, but even if both the concerned parties belong to the same
religion, they may choose to register the marriage under this Act. This is a step-by-step
procedure to apply in India for a Special Marriage Act.

NULLITY OF MARRIAGE
 The concept of a marriage being a nullity from the very beginning or being annulled
subsequent to the marriage is a concept of English origin from the times of the ecclesiastical
courts which exercised jurisdiction over every aspect of marriage. The ecclesiastical doctrine
laid down that marriage was not regarded as consummated if parties have not become one
flesh by sexual intercourse, and consequently if one of the parties was impotent and therefore
unable to consummate the marriage, he or she lacked the capacity to marry. Further,
annulling a voidable marriage was given retrospective effect. According to ecclesiastical
law, a marriage was either valid forever or never, in cases similar to the above, the marriage
was declared void  ab initio. Such uncontrolled and unrestrained power in the hands of the
religious leaders to declare marriages void and bastardize the issue was a cause of great
concern to the royal courts. It was situations like this that lead to the question, whether laws
which in spite of their ecclesiastical authority character should force such arbitrary rules
upon the common man. It was as an answer to this question that laws were divided into (a)
civil and (b) canonical. It was further decided that a marriage in violation of the former
would be void and latter would voidable. It was also understood as a general principle that
the validity could be questioned only by the parties to a marriage and further that if one of
the spouses died, such a question could never arise.

VOID MARRIAGE
A marriage which arises on account of the fact that the parties have no capacity to marry,
have in fact married undergoing the requisite rites and ceremonies of marriage. Such a
marriage is a misnomer, a contradiction and is void ab initio. The essential feature of such a
marriage is that no legal consequences arise from it, i.e., no rights and obligation arise from
it. Further since a void marriage is no marriage at all, a decree of nullity is not necessary, as
a decree merely makes a judicial declaration of an existing fact.

GROUNDS OF VOID MARRIAGE

A marriage performed in violation of absolute impediments is void. Under the SMA, a
marriage is void on the following grounds:
 Either party has a spouse living at the time of marriage.
 Either party was at the time of marriage incapable of giving a valid consent in
consequence of unsoundness of mind or 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 procreation of children or has been subject to recurrent attacks of
insanity.
 The bride was below 18 years in age and bridegroom was below age of 21 years at the
time of marriage.
 Parties were within the degree of prohibited relationship.
 The respondent was impotent at the time of institution of the suit.
These grounds do not apply to marriages registered under the Act. The registration however
maybe cancelled on the following grounds:
 Marriage was bigamous.
 Either party was an idiot or lunatic at the time of marriage.
 No valid ceremony of marriage was performed between the parties.
 One of the parties or both were under the age of 21 years at the time registration.
 Parties are within the degrees of prohibited relationship.

VOIDABLE MARRIAGE
A voidable marriage is one which is valid until it is avoided. It can be avoided by a petition
by either party to a marriage if it violates conditions requisite to make a marriage valid. If,
however none of the parties’ petition for an annulment, it will remain valid. If one of the
parties dies, the validity cannot be questioned. The marriage will give rise to rights and
obligations as long as it is valid.

GROUNDS OF VOIDABLE MARRIAGE

Under Special Marriage Act, 1954, a marriage is voidable on the following grounds:
 Non consummation of marriage on account of wilful refusal of the respondent to do so
 Pre-marriage pregnancy of the respondent of which the petitioner was not the cause
and of which the petitioner was at the time of marriage ignorant, and marital inter
course had not taken place with the consent of the petitioner after the knowledge of
pregnancy and further that the petition is presented within a year from the date of
marriage
 Petitioner’s consent was obtained by fraud or force, provided that the petitioner did not
live with the respondent as husband or wife after the discovery of fraud or cessation of
force and provided further that the petition was presented within one year of the
discovery of fraud or cessation of force.

RESTITUTION OF CONJUGAL RIGHTS

On marriage, it is the parties’ primary duty to live together in order to full-fill their marital
obligations. This right to cohabit with one another is called the’ consortium’ right. Husband
and wife have the right to each other’s society, comfort, and affection. The origin of the
action seems to lie in the husband’s early concept of law having a quasi-proprietary right
over the wife. It included the society of his wife as well as its services. The consortium
notion presumed a distinct footing of mutuality with the passage of time. Conjugal rights
cannot be enforced by either party’s actions, and by force, a husband cannot seize his wife
and detain her. If a spouse makes an infringement of this obligation without any justifiable
cause, the other may go to court to restore his conjugal rights. Section 22 of Chapter V of
the Special Marriage Act, 1954, sets out the conditions under which a petition for
restitution of conjugal rights would be based.
Restitution of conjugal rights – When either the husband or the wife has, without reasonable
excuse, withdrawn from the society of the other, the aggrieved party may apply to petition to
the district court for restitution of conjugal rights, and the court, on being satisfied of the
truth of the statements made in such petition, and that there is no legal ground why the
application should not be granted, may decree restitution of conjugal rights accordingly.

JUDICIAL SEPARATION
Under English law, before the Reformation, the church considered the marriage as a
sacrament which made it impossible to obtain a divorce. The ecclesiastical courts in the case
of a marriage validly contracted granted ‘divorce a men’s et thoro’, i.e., divorce from bed
and board, which did not allow the parties to remarry. This solution was not divorce, i.e., it
didn’t dissolve the marriage. This solution is now called judicial separation, allowing the
parties to live separately from each other, without dissolving the marriage bond, with the
option of re-uniting and re-living together if conditions change subsequently. Section 23 of
the Special Marriage Act provides for the relief of judicial separation.
1. A petition for judicial separation may be presented to the District Court either by the
husband or the wife:
a. on any of the grounds specified in sub-section (1) and sub-section (1A) of Section 27
on which a petition for divorce might have been presented, or
 b. on the ground of failure to comply with a decree for restitution of conjugal rights;
and the Court, on being satisfied of the truth of the statements made in such petition,
and that there is no legal ground as to why the application should not be granted,
may decree judicial separation accordingly.
2. Where the Court grants a decree for judicial separation, it shall no longer be obligatory
for the petitioner to cohabit with the respondent, but the Court may, on the application
by petition of either party and on being satisfied of the truth of the statements made in
such petition, rescind the decree if it considers it just and reasonable to do so.

GROUNDS FOR JUDICIAL SEPARATION

A district court shall lodge a petition for judicial separation from either the husband or the
wife on any of the grounds that the respondent: 
 Has committed adultery. 
 Has deserted the spouse for a period of two years immediately prior to the petitioner’s
submission without cause. 
 Is imprisoned for an offence as described in the Indian Penal Code for seven years or
more. 
 Has the petitioner treated with cruelty? 
 Has been of unsound mind incurably. 
 Has been suffering from the communicable form of venereal disease.
 Has suffered from leprosy that the petitioner has not contracted. 
 Has not been heard for at least seven years as being alive.
CASES RELATED THE SPECIAL MARRIAGE ACT, 1954
 Subhransu Sarkar Vs Indrani Sarkar6 :- Divorce – Allegation of cruelty and
desertion by wife – Living separately for more than 16 years – Allegations made by
wife relate to adultery which was the reason for her moving out of the matrimonial
home – Though the wife insisted to live with the husband, no meaningful effort has
been made by her for reconciliation –  the marriage between the parties is emotionally
dead and there is no point in persuading them to live together any more. The marriage
between the parties is dissolved. Husband to pay an amount of Rs.25 Lakhs as full and
final settlement of all claims.

CONCLUSION
In India, marriage is considered as a sacred, divine, and was called the holy union. It’s a
basic piece of our way of life. India is a large nation, and thereafter people from different
religions and cultures live here. We know the degree of influence that rank and religion have
in our country is still being thought of in numerous places in our nation as unimaginable.
India takes over the position framework after an exceptionally unbending structure.
Individuals are required to marry within their position, and anyone who marries out of their
6
AIR 2021 SC 4301 : JT 2021 (9) SC 209
station and challenges the customary hindrances in the general public is avoided. There are
numerous normal and tragically exposed admiration for killings; they are proud to do as
well. Accordingly, a serious provision for the law came to wed for affection and to defend
the interests of those individuals who transcended those stations and religious partitions.
Thus, the Parliament approved the Special Marriage Act of 1954 for individuals of India and
for every single Indian national of outside nations, irrespective of rank or religion. The one-
of-a-kind, aspect of the Special Marriage Act of 1954 is that any marriage solemnized in any
other manner under any other law, Indian or non-native, between any two persons may be
enlisted under the Act.

BIBLIOGRAPHY

i. https://www.toppr.com/guides/legal-aptitude/family-law-I/indian-
divorce-act-1869/
ii. https://lawcommissionofindia.nic.in/101-169/Report164.pdf
iii. https://www.indiafilings.com/learn/indian-divorce-act/
iv. https://lawyerslaw.org/the-indian-divorce-act-1869/
v. https://legalresearchandanalysis.com/blog/grounds-for-divorce-under-
indian-divorce-act-1869
vi. https://blog.ipleaders.in/divorce-maintenance-laws-india/
vii. https://legislative.gov.in/special-marriage-act-1954
viii. https://www.indiacode.nic.in/handle/
ix. https://www.scconline.com/blog/post/2021/02/20/special-marriage-act/
x. https://blog.ipleaders.in/special-marriage-act/
xi. https://legalserviceindia.com/
xii. https://indiankanoon.org/
xiii. https://caselaw.in/supreme-court/