: 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.
: 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.
: 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
: 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
: 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.
: 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
: 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.
: 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.
: 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
: Definition - 'Only District courts and Higher Courts have jurisdiction to
deal with the matrimonial cases'.
: 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'.
: 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'.
: 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'.
: Effect of marriage on member of undivided family The Section shall be
: Restitution of Conjugal Rights - The Section shall be deleted.
- Judicial Separation - 'Clause (b) of Section 23 (i) shall be deleted.
: 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.'
: 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.
: 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
: 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'.
: 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
: 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 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.
: 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'.
: 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.'
: 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.
: 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.
(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.
: 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
: 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.