Review of Laws and Legislative Measures Affecting Women
by National Commission for Women (NCW)

No.24. The Special Marriage Act, 1954


Existing Provisions

Section 2 : Definition - In this Act, unless the contest otherwise requires - b) 'degree of prohibited relationship' - a man and any of the persons 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 a) relationship of half or uterine blood as well as by full blood; b) illegitimate blood relationship as well as legitimate; c) relationship by adoption as well as by blood; and all terms of relationship in this Act shall be construed 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 by the same wife and by half 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 'ancestres' the mother. D) 'district' in relation to a Marriage Officer, means the are for which he is appointed as such under sub-section (1) or sub-section (2) of Section 3. e) 'district court' means, in any are for which there is a 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.

Section 4 : Conditions relating to solemnization of special marriages - ' Not - withstanding anything contained in any other law for the time being in force relating to the solemnization of a marriages, a marriage between any tow persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, viz a) neither party has a spouse living; b) neither party - i) is incapable of giving a valid consent to it in consequence of unsoundness of mind ;r or ii) through capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or iii) has been subject to recurrent attacks of insanity or epilepsy.

Section 15 : Registration of Marriages celebrated in other forms - 'Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Spe;cial Marriage Act, 1872 (III of 1872) or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, viz; a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since; b) neither party has at the time of registration more than one spouse living; c) neither party is any idiot or a lunatic at the time of registration; d) the parties have been completed the age of twenty-one years at the time of registration and e) the parties are not within the degrees of prohibited relationship - Proved that in the case of a marriage celebrated before the commencement of the Act, this condition shall be subject to any law, custom or usage having the fore of law governing each of them which permits of a marriage between the two; and f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately proceeding the date of which the application is made to him for registration of the marriage.

Section 19 : Effect of marriage on member of undivided family - ' The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina Region shall be deemed to effect his severance from such family.'

Section 22 : Restitution of Conjugal Rights ' "When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply to petition to the district court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition, any that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Explanation ' -Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall b on the person who has withdrawn from the society. Section 23: Judicial separation - ' ( 1 ) (b) on the ground of failure to comply with a decree for restitution of conjugal rights.

Section 27 : 1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband, or the wife on the ground tha the respondent - a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or b) has deserted the petiioner for a continuous period of not less than two years immediatelypreceeding the presentation of the petition;l or c) is undergoing a sentence of imprisonment for seven years or more for an offence as defines in the Indian Penal Code; d) has since the solemnization of the marriage treated the petitioner with cruelty; of e) has been incurable of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation - In this clause - �a) the expression 'mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; b) the expression 'psychopathic disorder' means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or f) has been suffering from venereal disease in a communicable from; or g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive.

Section 30 : Remarriage of divorced persons - 'Where a marriage has been dissolved by the decree of divorce, and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without any appeal having been presented, or an appeal has been presented but has been dismissed, either party to the marriage may marry again.

Section 31 : Court to which petition should be made - 1) Every petition under Chapter V or Chapter VII shall be presented to the district court within the local limits of whose original civil jurisdiction - i) the marriage was solemnized; or ii) the respondent, at the time of the presentation of the petition resides; or iii) the parties to the marriage last resided together; or iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he were alive.

Section 33 : Proceeding to be in camera and may not be printed or published - ' i) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to nay such proceeding except a judgement of the High Court or any of the Supreme Court printed or published with the previous permission of the Court, ii) If nay person prints or publishes any matter in contravention of the provisions contained in sub-section (1) he shall be punishable with fine which may extend to one thousand rupees. Section 37: Permanent alimony and mainteance - 1) Any Court exercising jursidction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree, on application made to it for the purpose, orer that the husband shall secure to the wife for her maintenance and support, if necessary, by a charge on the husband's property, such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as, having regard to her own property, if any, her husband's property and ability (the conduct of the parties and other circumstances of the case), it may seem to the court to be just. 2) It the district court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section 1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as it may seem to the court to be just. 3) If the district, court is satisfied that the wife in whose favour an order has been made under this section has re-married or is not leading a chaste life, (it may, at the instance of the husband vary, modify or rescind any such order and in such manner as the court may deem just).'

Suggested Amendments by NCW

Section 2 : Definition - 'Only District courts and Higher Courts have jurisdiction to deal with the matrimonial cases'.

Section 4 : Conditions relating to solemnization of special marriages ' Section 4 ( b ) (iii) shall be deleted. After Section 4 a new section 4A shall be inserted as follows: - i) 'No person, married under the provision of this Act, shall contract any marriage under any law in the life time of his or her wife or husband, except after his or her lawful divorce from such wife or husband or after his or her marriage with such wife or husband has lawfully been declared null and void or dissolve under this Act. ii) Every marriage contracted contrary to the provisions of sub section i) shall be void for the pruposes of sections 24 and 44 of the Act'.

Section 5 : Notice of intended marriage - For the words ' not less than thirty days' the words ' not less than fifteen days' shall be substituted in this section. This section will read as ; ' When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than fifteen days immediately preceding the date on which such notice is given'.

Section 15 : Registration of Marriages celebrated in other forms - The Following Clause shall be substituted for Clause ( c ) - '( c ) neither party is of unsound mind at the time of registration.' And the following Clause shall be substituted for Clause ( d ) 'the male has completed 21 years and the female the age of 18 years.' A new clause ( g ) shall be inserted after clause (f). ' Clause ( g ) - 'After the registration of marriage under this Act, both the parties will be governed by the provisions of this Act and a decree of divorce under this Act will dissolve the pre-existing marriage'.

Section 19 : Effect of marriage on member of undivided family The Section shall be deleted.

Section 22 : Restitution of Conjugal Rights - The Section shall be deleted.

Section 23 - Judicial Separation - 'Clause (b) of Section 23 (i) shall be deleted.

Section 27 : Divorce - For Clause ( f ) following Clause shall be substituted - ' has been suffering from venereal disease in a communicable form; for a period not less than two years'. After Clause ( f ) a new clause ( ff ) shall be inserted. '( ff ) has been suffering from HIV/AIDS.' Clause ( g ) shall be deleted. In clause ( h ) for the words ' seven years' the words 'three years' shall be substituted. This clause shall read as - (h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive. After Clause (h) of Section 27 (1) the followng clause shall be inserted: - i) 'has renounced the world by entering any religious order'. Clause ii) of Sub-Section 2) of Section 27 shall be deleted. A new sub-section 3) shall be inserted in clause 27 - 'If the court is of the opinion that the marriage has broken down and the parties cannot happily live together, it may, at the instance of either party to the marriage, after making adequate financial and other welfare provisions for children of the marriage and the wife, dissolve the marriage.'

Section 30 : Remarriage of divorced persons - An explanation shall be added after this section as follows: Explanation - There shall atleast 90 days time period for appealing against a decree of divorce for the purpose of this section.

Section 31 : Court to which petition should be made - An explanation shall be inserted after Section 31 ( I ) as follows ' In case where the wife is the petitioner, she shall file a petition under Chapter V and VI from the pace where she is currently staying'.

Section 33 : For Sub-section ii) of Section 33 the following section shall be substituted - If any person prints or publishes any matte in contravention of the provisions contained in sub-section i), he shall be punishable with fine according to the circumstances for the case and parties involved, which may not be less than Rupees ten thousand in any case'.

Section 37 : Permanent alimony and maintenance - the words 'or is not leading a chaste life' in Section 37 ( 3)shall be deleted. The section will read as: '(3) - If the district court is satisfied that the wife in whose favour an order has been made under this section has remarried (it may, at the instance of the husband vary, modify or rescind any such order and in such manner as the court may deem just)'.

Justification

Section 2 : Explanation IV ( e ) states that 'District Court' includes in areas where there is no city civil court, the principle civil court of original jurisdiction. Would this also include a munsif's court? The question is relevant because of 'District Court' were to include even a munsif's court then it would mean that the latter has the jurisdiction to deal with matrimonial causes under the SMA.

Section 4 : Section iii) 'Epilepsy is not a condition that prevents an individual from fulfilling his or her marital obligations. Further with advances in medicine it is controllable. This has already been recommended by the Law Commission and this recommendation is endorsed. In order to combat the mischief of motivate decoversions, which enable husband married under monogamous laws to convert to a religion permitting polygamy. Motivated conversions in order to enter into polygamous relationship are well known.

Section 5 : Notice of intended marriage - It is felt that the period of 30 days is to long and unnecessary delay the proceeding. ' It should be reduced to 15 days'.

Section 15 : Registration of Marriages celebrated in other forms - From registration under the Act of marriages celebrated in other forms both parties have to have completed 21 years of age. There is a discrepancy between this and registration of marriages solemnized under the Act where the girl needs only to be 18 years and the groom 21.

Section 19: Effect of marriage on member of undivided family - Just only because of the marriage has been solemnized under this Act should not have effect on his from such family. Section 22: Restitution of Conjugal Rights - As it violates the rights of privacy. Section 23 : Judicial Separation - 'Consequential amendment with respect to amendment suggested in Section 22.'

Section 27 : Divorce - Section 27 ( h ) - As available in the Hindu Marriage Act, 1955, this condition also needs to be incorporated in this Act as a ground for divorce. Section 27 (3) - Consequential amendment with respect to Section 22. Irretrievable breakdown of marriage should be added as a ground for divorce. This provision will end deadlock in marriage and give a decent trail to a practically dead relationship.

Section 30 : The parties of the marriage should have sufficient time to take a decision and to appeal against the decree. It is normally observed that the party of the marriage rush for second marriage without waiting for an appeal.

Section 31 (1): It is quite possible that a woman suing for divorce is not staying in the place where her husband resides which is often the place where they last resided together. The provision seems to be disadvantageous to a wife suiting for divorce/nullity of marriage as it present her fro presenting a petition at the location that is convenient to her.

Section 33 : Proceeding to be in camera and may not be printed or published - 'Sub-section 33 (ii) - These proceedings which relate to judicial separation/divorce/custody of children are likely to be sensitive and private nature. Publicizing the same would amount to a violation of the Right to Privacy of the individuals concerned, and Rs.1000 fine is too light a fine, in view of the damage that a person may suffer and which cannot be compensated through any defamation action.

Section 37 : Permanent alimony and maintenance - Any obligations of fidelity only exit when the husband and wife are married and not after the divorce. The ground of chastity to revoke an order of permanent maintenance is unfair and uncalled for interference in the wife's life. Note: i) Concept of illegitimate children be deleted. ii) Mandatory medical examination of the parties of marriage may be suggested keeping spreading of HIV' in mind iii) The marriage registration procedure under the Act should be simplified. iv) The appointment of Marriage Officers, under section 3, should be ensured in sufficient number and it should be publicized. v) Tow Muslims who marry each other under this Act too should be allowed to opt whether to be governed by the Muslim Law or the Indian Succession Act. This will help in popularizing marriages under the Act. This option may be given in writing at the time of marriage. vi) Punishment for bigamy should be enhanced suitably.

 

Page | INDEX | Prev | Next |      

Copyright � National Commission for Women, All Rights Reserved.