Special Marriage Act, 1954
This article needs to be updated.(November 2017)
|The Special Marriage Act, 1954|
|An Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce.|
|Citation||Act No.43 of 1954|
|Enacted by||Parliament of India|
|Date assented to||9 October 1954|
|Date commenced||1 January 1955|
|Status: In force|
The Special Marriage Act, 1954 is an Act of the Parliament of India enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party. The Act originated from a piece of legislation proposed during the late 19th century.
In 1872 Act III, 1872 was enacted but later it was found inadequate for certain desired reforms, and Parliament enacted a new legislation. Henry Sumner Maine first introduced Act III of 1872, which would permit any dissenters to marry whomever they chose under a new civil marriage law. In the final wording, the law sought to legitimize marriages for those willing to renounce their profession of faith altogether ("I do not profess the Hindu, Christian, Jewish, etc. religion"). It can apply in inter-caste and inter-religion marriages. Overall, the response from local governments and administrators was that they were unanimously opposed to Maine’s Bill
The Special Marriage Act, 1954 replaced the old Act III, 1872. The new enactment has 3 major objectives:
- To provide a special form of marriage in certain cases,
- to provide for registration of certain marriages and,
- to provide for divorce.
Civil marriages, also commonly called 'court marriages' do not depend on the religion of the couple - instead the marriage happens under the Special Marriage Act. To get married under this law, you need to figure out if you and your spouse are legally eligible to get married. For example, you need to be over a certain age to be able to get married and you cannot have another living spouse from whom you have not been divorced. Read below about the conditions you need to follow.
Can either spouse be married to more than one person at a time?
At the time of marriage, you should not have another spouse who is alive. This means, if you are a divorcee you can enter into a marriage again so long as your divorce was complete in all respects.
If you have a spouse who is alive at the time of your second marriage and from whom you have not obtained a divorce, your second marriage does not have any legal effect. You can also go to jail for contracting a second marriage when you are already married. If you are a widow or widower, you can enter into a marriage. You can also be sent to jail for marrying a second time when your spouse is still alive.
Is it possible to try and stop my spouse from getting married to someone else while he or she is still married to me?
Yes, you can try and stop your spouse from getting married by filing a ‘civil injunction’ case in court. You should also know that it is a crime to get married to another person while your first spouse is still alive – you can initiate a criminal case against your spouse. This is not an easy process because you will have to be able to produce concrete proof – adultery or even another child being born out of the second marriage is not enough.
How old do the parties need to be to get married?
If you are a woman, you need to be above the age of 18 to be able to get married.
If you are a man, you need to be above the age of 21 to be able to get married.
What about persons with mental disabilities?
Unfortunately, the law is discriminatory against persons with mental illnesses and psychosocial disabilities. It states that people with mental illnesses usually do not have the capacity to enter into valid legal marriages. A person planning on getting married should be able to give valid consent. If you are not able to give consent because of ‘unsoundness of mind’ or because of a mental disorder which makes you ‘unfit for marriage and the procreation of children’ or if get ‘recurrent attacks of insanity’, your marriage will not be valid. While the provision of the law may not cover all kinds of mental illnesses, there are no proper guidelines on what kind of illnesses or the degrees of illness make you unsuitable for marriage.
What if the parties are also related to each other in some way?
The law does not allow you to get married to certain relatives – those who are within the “degrees of prohibited relationship” cannot usually marry each other. Please check the law here (if you are male) and here (if you are female) to ensure that your relationship with your spouse will not make your marriage invalid. Under some customs, marrying certain people within prohibited degrees is permitted and considered as a legally valid marriage – the state in which you are getting married should have issued a notification recognizing such customs.
What if I just found out that my spouse was not old enough to get married? What if he or she is in fact a close relative?
In the first case, your marriage is voidable - you can go to court to get annulled. In the second case, your marriage is ‘void’. Read more about nullification of marriages here.
- 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-caste marriages are performed under this Act.
- This Act is applicable to the entire territory of India (excluding the state of Jammu and Kashmir) and extends to intending spouses who are both Indian nationals living abroad.
- Indian national living abroad.
- 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.
Conditions for marriage
- Each party involved should have no other subsisting valid marriage. In other words, the resulting marriage should be monogamous for both parties.
- The bridegroom must be at least 21 years old; the bride must be at least 18 years old.
- The parties should be competent in regards to their mental capacity to the extent that they are able to give valid consent for the marriage.
- The parties should not fall within the degree of prohibited relationship.
Succession to the property
Succession to the property of person married under this Act or customary marriage registered under this Act and that of their children, are governed by Indian Succession Act. However, if the parties to the marriage are Hindu, Buddhist, Sikh or Jain religion, the succession to their property will be governed by Hindu succession Act.
- "Special Marriage Act (iloveindia.com)". Archived from the original on 2010-09-24.
- "Divorce, under the Special Marriage Act, 1954 (valkilno1.com)". Archived from the original on 2010-09-24.
- "Registered Marriage Under Special Marriage Act, 1954 (tax4india.com)". Archived from the original on 2010-09-24.
- "Place And Form Of Solemnisation, Registered Marriage (tax4india.com)". Archived from the original on 2010-09-24.
- "The Special Marriage Act, 1954 (delhiadvocate.tripod.com)". Archived from the original on 2010-09-24.
- "Necessary conditions for a registered marriage (tax4india.com)". Archived from the original on 2010-09-24.
- https://www.webcitation.org/5syrXS5dK Section 21 of the Act
- http://indiankanoon.org/doc/552306/ Bombay High court judgment reported by Indian Kanoon
- https://www.webcitation.org/5syrXS5dK Section 21 A of the Act