Special Marriage Act

The Special Marriage Act 1954 was passed to provide a form of marriage which could be entered into by a man and a woman irrespective of cast, creed, religion, nationality etc. The Special Marriage Act 1954 provides a special form of marriage, registration of such marriages and divorce.

A marriage instituted under the Special Marriage Act 1954 is of the nature of a civil contract and requires no rites like Saptapadi under Hindu law or the Nikah in Muslim marriages.  The marriage is performed under a Marriage Officer appointed by the government.

A notice must be given to the Marriage Officer by the applicants in the prescribed Performa and a public notice of the information will be put up by the officer. Under the Special Marriage Act 1954, the marriage is performed after 30 days of such notice but before expiry of 2 months of the same in the presence of 3 witnesses. The marriage is complete and binding when both parties declare “I (A) take thee (B) to be my lawful husband/wife” in a language understood by both parties and in the presence of the Marriage Officer and the 3 witnesses. It is then registered in a book kept for this purpose and signed by the applicants and the witnesses.

The Special Marriage Act applies to all Indian citizens residing within the territory of India (except the state of Jammu and Kashmir) and Indian Nationals residing abroad. Any woman of 18 years or more and any man of 21 years or more may solemnize a marriage under this act. The Special Marriage Act 1954 allows people of different religions to marry without changing their faith.
To institute a valid marriage under the Special Marriage Act 1954;

  • Neither party should have a living spouse at the time of marriage;

  • Neither party should be incapable of giving valid consent in consequence of unsoundness of mind;

  • Neither party should be suffering from mental disorder of such kind or extent as to be unfit for marriage or procreation of children;

  • Neither party should have been suffering from recurrent attacks of insanity;

  • They should not be within degrees of prohibited relationship;

  • Should be 18 years (for woman) and 21 years (for man) of age.

If these conditions are not satisfied or if the respondent was impotent at the time of marriage and at the time of institution of the suit, then as per section 24 of the Special Marriage Act the marriage is null and void by a decree of nullity.
A marriage solemnized under this act will be voidable by a decree of nullity if;

  • The marriage has not been consummated due to wilful refusal by respondent;

  • The respondent was, at the time of marriage pregnant by someone other than the petitioner;

  • The consent of either party was taken by coercion or fraud.

To grant the decree, the court must be satisfied that at the time of marriage the petitioner was unaware of fact alleged, that the proceedings were instituted within an year from the date of marriage and that marital intercourse has not taken place ever since discovery of the existence of grounds for decree by the petitioner.

Section 27 of the Special Marriage Act provides for grounds on which the husband or the wife can apply for divorce. These grounds are-

  • After solemnization of marriage the respondent has voluntarily had sexual intercourse with a person who is not the petitioner;

  • The respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;

  • The respondent is undergoing a sentence of imprisonment for 7 years or more for an offence described in the Indian Penal Code;

  • The respondent has treated the petitioner with cruelty since the solemnization of marriage;

  • The respondent has been incurably of unsound mind or has been suffering from mental disorder continuously or irregularly of such kind and extent that the petitioner cannot possibly be expected to continue to live with the respondent.

  • The respondent has been suffering from venereal (sexually transmitted) disease in communicable form;

  • The respondent suffers from leprosy;

  • That the respondent has not been heard of as being alive for a period of 7 years or more;

  • That there has been no  resumption of cohabitation for an year or more after decree for judicial separation had been passed;

  • That there has been no restitution of conjugal rights between the parties for a period of 1 year after the decree of for restitution of conjugal rights has been passed.

Section 28 of the Special Marriage Act 1954  also provides for Divorce by Mutual Consent where both parties may together present a petition for divorce to the District Court on the ground that they have been living separately for 1 year or more and that they have not been able to live together and that they have mutually decided that the marriage should be dissolved.

The court, while giving decree of judicial separation or restitution of conjugal rights or divorce, may order that the husband shall secure alimony to the wife, which is essentially a gross sum or a periodical payment for her maintenance.