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Published : January 20, 2014 | Author : Kanungo Swaraj
Category : family law | Total Views : 8752 | Rating :

Kanungo Swaraj
IVth Sem. Law School Banaras Hindu University, writing "landmark judgement on law of evidence"

Inconsistencies In Special Marriage Act, 1954

The Special Marriage Act, 1954, I term it as (SMA) aims to provide for a special form of marriage, its registration and for divorce. A marriage between any two persons belonging to any religion or creed may be solemnized under this Act, if at the time of marriage both the parties (i.e. male and female) have been completed 21 years and 18 years respectively provided that the parties are not within the sapinda as well as in prohibited relationship.

Being a secular Act it plays a key role in liberating individuals from the traditional coercive requirements of marriage. However, many of its provisions are inconsistent with its objectives. Despite knowing about the practical problems our Parliament has not shown any seriousness in addressing them through appropriate amendments which is great need of the time.

Provisions Which Are Hurdle Practically In Getting Married
1) Section 5 of the Act is the first hurdle which deals with the notice of intended parties requiring at least one of them must have resided in the district for a period of not less than 30 days immediately preceding the date on which such notice is given to the Marriage Office of the district.

2) Section 6 requires the Marriage Office to make copies of all notices open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same, and to publish every notice by affixing a copy at some conspicuous place in the office. If either of the parties to an intend marriage is not a permanent resident in the district in which the notice has been given, then the Marriage officer of that district has to send the notice to Marriage Officer of the district in which the parties may have permanent residence and that officer, in turn, has to publicise it.

3) Section 7 enables any person before the expiry of 30 days from the date on which such notice has been published, to object to the marriage on the grounds that it will contravene one or more of the conditions specified in section 4 viz neither party has a spouse living, neither party is incapable of giving a valid consent in consequence of unsoundness of mind, the requirement of minimum age and that they are not within the prohibited relationship.

4) Sections 8 requires the Marriage Officer to inquire into the objection and satisfy himself that it does not prevent the solemnization of the marriage. If the objection is upheld within 30 days, either party to the intended marriage can appeal to the district court, whose decision shall be final.

5) Section 19 is punitive in character. It says that the marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion shall be deemed to effect his severance from such family.

Couple May Be Harassed
These practices are clearly in breach of the parties right to privacy as most of the couple who get married under these Act because of their family is being opposed to their marriage. It may happen that those who object the marriage intend to harass the couple to be married and even force them to retract from their intended marriage, hence these provisions are open invitations to harass the parties.

It have been seen in many cases that some enthusiastic marriage officer have sent notices to permanent addresses of the parties and sought verification of addresses through the Station House Officer which is not required at all under the Act.

Justice S. Ravindra Bhat in case of Pranav Kumar Mishra v. Govt. of NCT, delhi, WP(C) No. 748/2009 Delhi High Court, observed : “the special marriage Act was enacted to enable a special form of marriage for any Indian national professing different faiths or desiring a civil form of marriage. The unwarranted disclosure of matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize the marriage itself. In certain instances it may even endanger the life or limb of one or the other party due to parental interference. In such circumstances, if such a procedure is being adopted by the authorities, it is completely whimsical and without authority of law.”

1) The provision of a month gap as mention in section 5 should be annulled so as to prevent the parties from being harassed.

2) Section 4 are reasonable yet the fact that similar conditions are not applicable to marriage held outside the purview of the Act makes one wonder whether they are just.

3) The need for such a provision as mention in section 19 is inexplicable especially when such severance could result in deprivation of inheritance and other rights of the couple intending to marry under this so called secular Act.

The  author can be reached at: swaraj.bhu@legalserviceindia.com

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Article Comments

Posted by sultana khatoon on May 20, 2014
I�m Sunni Muslim from Hyderbad. I have a following legal query and shall be obliged if you could kindly shed some light on it as per guardianship law.

My late parents executed Registered Gift Deeds of 3 of residential houses belonging to them in favour of our mentally retarded brother in the year 2000. In all the Gift Deeds, two of my siblings have been named as Natural Guardians of my mentally unsound brother. In the Gift Deeds it is mentioned that since the sibling is minor, both my siblings will be his guardians. In fact he is not minor, but mentally unsound and now 30 plus age.

My two siblings are now only interested in the rental income of the three residential houses. They are least bothered about the welfare of my mentally unsound brother. He wanders all over the day and even begs at times.

In the above circumstances, kindly advise if we can approach the Court to transfer the Guardianship to other siblings on the ground that the mentally unsound brother is not being given proper care by his present Guardians. Please, also advise if the present Guardians only will inherit the properties of the mentally unsound brother in case of his demise or his properties will be equally divided amongst the remaining siblings.

I shall be obliged if your prompt response.

Mrs.Sultana Khatoon

Posted by sabir on March 24, 2014
sir, i am from India, my age is 26, i got marriage her age no 17 and 3 month finish, there is any option to register marriage for marriage
certifictae, pls help me urgent basis, I got marriage sep 06 2013.

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