India is a land of diversity with myriad religion, race, caste, etcetera. ‘Marriage’ in India has been a sacred institution for time immemorial. Religion and caste of the prospective groom or the bride has always been paramount. Arranged marriages have always been preferred and kinship coercion is common. Date and time of marriage, religion, caste, culture and social standing took precedence over individual wishes of the boys and girls. The progress of time has witnessed the waning of such narrow- mindedness. In India, inter-caste marriage is still considered a taboo. Ostracization in cases of such marriages presents traditional barriers to break free from rigid structure of the caste system. For example, the chest thumping in honor killings reported from Haryana. The Special Marriage Act, 1954 provides for exceptional forms of marriage for the citizens of India and all Indian nationals in foreign countries irrespective of the caste and religion they subscribe to. The beautiful emotion of love outweighs the man-made barriers which are impediment to the union of two souls. For marriage under the Special Marriage Act, 1954 there is no need to renounce one’s religion. Marriage is a cornerstone of a society which is one of the universal social institutions that is established by the human society to control and regulate the life of a man. Traditional marriages take place between relatives of the couple while following all rites unlike as in court marriages which generally take place in the presence of a marriage officer subjected to satisfaction of the rules and regulations of the Special Marriage Act, 1954. The statue is interpreted as a beginning towards Uniform Civil Code (UCC) provided under Article 44 of the Constitution of India as Directive Principle of State Policy (DPSP).
Scope of the Act
The Special Marriage Act is a statue which regulates solemnization, registration and divorce of marriages between individuals from different caste, religion and also between individuals where either of the individuals is a citizen of India and the other a foreigner as in Marian Eva v. State of Himachal Pradesh.
Applicability of the Act
The Act is applicable throughout India and applies to its citizens irrespective of their religion, caste group, etcetera. This Act covers marriages among Hindus, Muslims, Christians, Sikhs, Jains, Parsis, Jews and Buddhists. It not only applies to marriages between Indian citizens belonging to different caste and religions but also to Indian nationals living abroad.
When a marriage is intended to be solemnized under this Act, a notice expressing the intention to marry should be filed with the Marriage Registrar of the district according to Section 5 of the Act and at least one of the parties to the marriage must have been residing within the jurisdiction of the Marriage Officer’s district for a period of not less than thirty days preceding the date of the notice failing which the marriage between the parties was void as in Sadhan Kumar Roy v. Saraswati Roy. The marriage is then said to be solemnized after the expiry of thirty days from the date on which such notice is being published provided no person related to the parties objects this marriage and the Registrar does not find the objection to be reasonable. Another requirement is the signing of declaration by the parties and three witnesses in the presence of the Marriage Officer. These are the rudimentary essentials for a valid marriage under the Special Marriage Act.
There are certain conditions that need to be fulfilled to be eligible for a marriage under this Act: –
Twenty-one years is the minimum age requirement for a male at the time of marriage and it is eighteen years for a female. Moreover section 24(1)(i) mentions that non-compliance with section 4 c of the Act renders such marriage as void as has been decided in Harendra Nath Burman v. Suprova Burman.
Both the parties to the marriage must be unmarried and should not have any spouse living at the time of the marriage.
Mental fitness is important because the parties should be able to decide for themselves. Sanity at the time of marriage is important as has been given in section 4 (b).
The parties to the marriage should not be related to themselves through blood relationships. Prohibited relationships act as ground to nullify the marriage as mentioned in section 4 (d).
Any marriage solemnized under this Act may result in the severance of them from such family which processes the Hindu, Buddhist, Sikh or Jains religions as envisaged in section 19 of the Act. The rights and disabilities of the parties to such marriage are subjected to the Caste Disabilities Removal Act, 1850 (21 of 1850) with regard to the right of succession to any property as mentioned in section 20. Moreover, section 19 and section 21 disabilities shall not apply where the marriage solemnized under this Act is between two persons professing the Hindu, Buddhist, Sikh or Jain religions as mentioned in section 21A.
The causes of divorce are as follows:
A petition for divorce may be presented by either the husband or wife if the respondent has voluntary sexual intercourse with any person other than his or her spouse as mentioned in section 27(1)(a).
The respondent should have had deserted the petitioner for a continuous period of more than two years as mentioned in section 27 (1)(b).
If the respondent is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860) the petitioner can file for divorce as mentioned in section 27 (1)(c).
The petitioner can file for divorce under section 27 (1)(d) if the respondent has since the solemnization of marriage treated the petitioner with cruelty.
Unsoundness of Mind
The respondent has incurable unsoundness of mind or intermittent mental disorder may allow the petitioner to seek divorce under section 27 (1)(e).
Under section 27 (1)(f) the petitioner may file a petition for divorce if the respondent has been suffering from a venereal disease in a communicable form such as- AIDS.
Presumption of Death
No person should be forced to stay in a marital knot where the spouse’s living status is unascertainable. Under section 27 (1)(h) the petitioner can file a petition for divorce of more than seven years and hence, has been assumed to have passed away.
Husband Guilty of Rape, Sodomy, or Bestiality
Section 27 (1A) provides the wife some additional grounds for obtaining divorce. She may obtain divorce under sub-clause (i) if the husband has been guilty of rape, sodomy, or bestiality.
Decree or Order of Maintenance
The wife can also file a divorce petition on the ground that she has obtained a decree or order of maintenance and subsequent to such passage has been living apart and not resumed cohabitation with her husband.
Non-Resumption of Cohabitation After A Decree of Judicial Separation
Under section 27 (2)(i) a petition for divorce may be presented if one year or more has passed of a decree of judicial separation in a proceeding and there has been non-resumption of cohabitation between the parties to the marriage.
Non-compliance with a Decree for Restitution of Conjugal Rights
Under section 27 (2)(ii) if there has been no restitution of conjugal rights between the parties for a period of one year or more after the decree has been passed either party may present a petition for divorce.
Divorce by Mutual Consent
Under section 28 both the parties to the marriage may mutually agree to dissolve their marriage if they have been living separately for a period of one year or more, they have not been able to live together.
Thus, we conclude that the enactment of the Special Marriage Act 1954 had been a landmark opportunity for the Nation to rise above petty squabbles and celebrate the union of two souls. The true spirit of ‘Secularism’ that our Nation takes pride in, rests in the realization of this statute. However, the prolonged notice period gives rise to frivolous objections due to the long-standing acrimony in the society. This coerces desperate couples to opt for religious conversions and elopement for traditional marriages.
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Soumyadeep Dasgupta, Department of law, university of Calcutta (BA LLB)