Marriage Laws & Acts

THE SPECIAL MARRIAGE ACT, 1954

PRELIMINARY

Short title, Extent and commencement. – (1) This act may be called the special Marriage act, 1954.

It extends to the whole of India except the state of Jammu and Kashmir, and applies also to citizens of India domiciled in the territories to which this Act extends who are in the state of Jammu and Kashmir.

It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

Definitions – In this Act, unless the context otherwise requires, --

  • Omitted
  • "degrees of prohibited relationship" – a man and any of the person mentioned in part I of the First schedule and a woman and any of the persons mentioned in part II of the said schedule are within the degrees of prohibited relationship;

Explanation I. - Relationship includes, --

  • relationship by half or uterine blood as well as by full blood;
  • illegitimate blood relationship as well as legitimate;
  • relationship by adoption as well as by blood;
and all terms of relationship in this Act shall be constured accordingly.

Explanation II. - "Full blood" and "half blood" - two persons are said to be related to each other by full blood when they are descended from a common ancestor but by different wives.

Explanation III. - "Uterine blood" -two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.

Explanation IV. - In Explanations II and III, "ancestor" includes the father and "ancestress" the mother;

  1. "district" in relation to a Marriage Officer, means the area for which he is appointed as such under sub-section (1) or sub-section (2) of section 3;
  2. "district court" means, in any area for which there is city civil court, that court, and in any other area, the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the state Government by notification in the Official Gazette as having jurisdiction in respect of the matters dealt with in this Act;
  3. "prescribed" means prescribed by rules made under this Act;
  4. "State Government" in relation to a Union territory, means the administrator thereof.

Marriage Officers. - (1) For the purposes of this Act, the State Government may, by notification in the Official Gazette, appoint one or more Marriage Officers for the whole or any part of the state.

For the purposes of this Act, in its application to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir, the Central Government may, by notification in the Official Gazette specify such officers of the Central Government as it may think fit to be the Marriage Officers for the State or any part thereof.


HINDU MARRIAGE LAWS

Marriage according to Hindu Law is a holy union for the performance of religious duties. It is primarily and essentially a sacrament. It is one of the ten sacraments enjoined under the Hindu religion. Apart from the religious aspect, it has also a secular element. Thus the Hindu marriage is an admixture of religion and ethics with legal precepts and consequences.

The ancient Hindu Law recognised eight forms of marriage of which four approved forms and four others, unapproved forms. Of them only the Brahma form of the approved category and asura form in the unapproved one were generally followed and others became obsolete. Under the Brahma form the father or the guardian gives the bride in marriage without receiving any consideration from the bridegroom. But if consideration is received it is Asura form. The presumption was always in favour of Brahma form. Poligamy was accepted and there was no restriction as to the number of wives except in the states where Bigamy Prevention Acts were anacted. There were two essential ceremonies for a valid Hindu marriage.

  • invocation before the sacred fire and
  • saptabadi, i.e., taking seven steps by both the bridegroom and the bride jointly before the sacred fire.

Divorce was unknown to Hindu law for the reason that a Hindu marriage created an indispensable tie between the husband & wife. It follows that either party to a marriage may seek for restitution of conjugal rights.

The above was shortly the provisions as far as the Hindu marriages were concerned subject to any local custom which was judicially recognised and which had the force of law. Material and important alterations and modifications have been brought about by legislation in the Hindu Marriage Act, 1955. The Act abrogates all the rules of law of marriage applicable to Hindus whether by virtue of any text or rule of Hindu law or any custom or Usage. It also supercedes any statutory provisions in force at the commencement of the Act. The changes effected by the Act are basic and far-reaching. The Act has essentially adopted the modern notions of matrimony and social outlook. The polygamy sanctioned under Sastric Hindu Law has been replaced by monogamy. The restrictions against inter-caste marriages are put an end to with the laudable object of building up a homegenous and casteless society. It is therefore necessary to advert in detail the provisions of the Hindu Marriage act to understand and appreciate the conduct and performance of Hindu marriages and their legal consequences arising therefrom under the Act. The Act came into force on 18th May 1955. The Act has since been amended from time to time under the Central Acts 44 of 1964, 68 of 1976 and 2 of 1978.


MATRIMONIAL RELATIONSHIP

Section 9 of the Act provides that if either the husband or the wife without reasonable excuse, has withdrawn from the society of the other, the aggrieved party can file an action for restitution of conjugal rights. The burden of proof of reasonable excuse shall be on the person who had withdrawn from the society. It will be important to note that unlike other decrees a decree for restitution of conjugal rights cannot be executed by compelling the respondent to live with the petitoner. Order 21, Rule 31 of the Civil Proceedure Code Provides the mode of execution of the decree by attaching the property of the respondent and if not obeyed within a year to sell the property and payment of compensation from the sale proceeds. Under Section 10 of the Act either party may apply for judicial separation on any of the grounds mentioned in Section 13 for divorce. Under Section 13(IA) divorce can be sought if there is no resumption of cohabitation, for a decree for judicial separation or there has been separation, there is no restitution of conjugal rights. A decree for divorce can be sought under section 13 for the following grounds :-
  1. Voluntary sexual inter-course with any person other than his or her spouse.
  2. Cruelty;
  3. Desertion for continuous period of two years;
  4. Ceased to be Hindu by conversion to another religion;
  5. Incurably unsound mind or suffering from mental disorder;
  6. Suffering from a virulent and incurable form of leprosy.
  7. Venereal disease in a comunicable form.
  8. Renounced the world by entering into a religious order;

In addition section 13(2) provides for further grounds for the wife to seek divorce viz:-

  1. Bigamy;
  2. The husband is guilty of rape, sodomy or bestiality;
  3. After grant of maintenace under the Hindu Adoptions and Maintenance Act or Section 125 of Criminal Procedure Code, there was no resumptio9n of cohabitation;
  4. If marriage was solemnised before 15 years of age and it was repudiated before 18 years;

The above apart, under section 13 (B) dissolution of marriage by a decree of divorce may be sought by mutual consent by both the parties 9on the ground that they were not living together for one year or more. Under section 15 after the decree of divorce had become final, the divorced person can remarry.