This article is written by Sonali Chauhan, a student of Lloyd Law College, Greater Noida. The author, in this article, has discussed the concept of the Special Marriage Act.
The Special Marriage Act deals with inter-caste and inter-religion marriages. Inter caste marriage is a marriage between people of two different castes. The days had gone by when people used to marry wherever their parents decided to blindly. The youth now have their own saying and choice and prefer to marry someone who is more compatible with them than marrying someone who belongs to their caste or religion. It is them who have to live for the whole of their life with their partner and therefore, caste or religion is not a matter of utmost consideration now at all. Love is a beautiful emotion, and something like caste or religion should not weigh it up. All religions are equal, and marriage shouldn’t be a big deal among them. We are conferred on caste or religion by birth and not by choice, so why are people of the lower castes seen with shame and disdain? India is a diverse country, and it is a pity to see things like this happening here. The Special Marriage Act is, therefore, a special law enacted to provide for a unique form of marriage by registration wherein the parties to the marriage do not have to renounce their religion.
This information is the most important for every Indian to know how they can use it. This Act includes Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists marriages. This act applies to all Indian states, except Jammu & Kashmir. This Act applies not only to Indian citizens who belong to different castes and religions but also to Indian nationals who live abroad.
Since Indians believe in marriages with proper rituals, customs, and ceremonies that include pomp and show & extravagant celebrations, none of them is required by the Special Marriage Act. The fundamental requirement under this Act for a valid marriage is the consent of both parties to the marriage. If both parties to the marriage are willing to marry each other, that’s enough; caste, religion, race, etc. can’t act as a barrier to their union here. For marriage under this Act, the parties must file with the district’s Marriage Registrar a notice stating their intention to marry each other in which at least one of the parties to the marriage has lived for at least 30 days prior to the date on which such notice is filed. After the expiry of 30 days from the date that such notice was published, the marriage is then said to be solemnized. But if any person related to the parties objects to this marriage and the registrar finds that it is a reasonable cause of objection, on such grounds he can cancel the marriage. For a valid marriage, the parties must also give their consent to the marriage before the marriage officer and three witnesses. These are the basic requirements for a valid marriage under the Special Marriage Act that every Indian must know about.
Conditions for Marriage
For this special form of marriage, the conditions that must be followed are not very different from the requirements of other normal marriages that happen within the caste.
These are the conditions to qualify for a marriage under this Act:
- The bridegroom must be at least 21, and at the time of the marriage, the bride must be at least 18 years of age. This is the minimum age limit respectively for a boy/girl to marry.
- At the time of their marriage, both parties must be monogamous; i.e., they must be unmarried and at that time should not have any living spouse.
- In order to be able to decide for themselves, the parties should be mentally fit, i.e., they must be sane at the time of marriage.
- They should not be related to themselves through blood relationships; i.e. they should not be subjected to prohibited relationships that otherwise act as a ground for dissolving their marriage.
Changes with the Emergence of Special Marriage Act in India
Succession to the Property
Another important point that why every Indian should have knowledge of SMA (Special Marriage Act) is that the succession to the property of persons married under this act or any marriage registered under this act and that their children will be governed under the Indian Succession Act. But if the parties to the marriage belong to Hindu, Buddhist, Sikh, or Jain religions, then the Hindu Succession Act will govern the succession to their property.
In 2006, India’s Supreme Court made it necessary to enrol all relational unions. A marriage can be registered in India either under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. The Hindu Marriage Act is relevant to Hindus, although the Special Marriage Act is suitable for all Indian residents regardless of their religion applicable to the Court marriage.
Registration of Marriage under the Special Marriage Act in India
In India, all marriages can be registered either under their respective personal laws (Hindu Marriage Act, 1955/Muslim Marriage Act, 1954) or under the Special Marriage Act,1954. A marriage under the Special Marriage Act, 1954 enables people from two distinct religious backgrounds to unite in the marriage bond. Unlike personal laws, the Special Marriage Act’s applicability extends to all Indian citizens regardless of their religion. Although marriage laws allow only the registration of an already solemnized marriage under personal laws, the Special Marriage Act provides for both solemnizations and legal registration. The Special Marriage Act has designed a simple means of legally registering a marriage between two people of different religions, but even if both the concerned parties belong to the same religion, they may choose to register the marriage under this Act. This is a step-by-step procedure to apply in India for a Special Marriage Act.
Step-1: Eligibility Check
All the given eligibility criteria should meet before applying for the Special Marriage Act:
- Both the intending parties must be Indian citizens.
- At the time of the marriage, neither of the parties must have a living spouse. Where either or both of the parties have been involved in an earlier marriage, it is essential that the earlier marriage is dissolved legally before applying under this Act.
- Both parties must be in a position to grant free and full consent to the marriage.
- The intending parties shall adhere to the age limit laid down in this Act. At the time of applying for marriage, the female should be at least eighteen years old, and the male must have completed the age of twenty-one.
- The Act prohibits marriage solemnization if the intending parties fall within the degree of prohibited relationships as per the customs governing any of the parties. The degrees of prohibited relationship vary from custom to custom. The Act’s First Schedule provides for a comprehensive list of relationships that may be considered prohibited. However, the rule is that it may be solemnized if a custom governing at least one of the parties allows marriage as intended.
Step-2: Reach out to the concerned Marriage Officer
The district jurisdiction may be invoked in which either of the two parties has a permanent residence (must live there for at least 30 days prior to the notice being submitted). To apply, reach the chosen district marriage officer (either the intending husband or the intending wife resides). The application should be written in accordance with the format set out in the Second Schedule. For reference, the format is also set out below:
NOTICE OF INTENDED MARRIAGE
To Marriage Officer for the ………………District. We hereby give you notice that a marriage under the Special Marriage Act, 1954, is intended to be solemnized between us within three calendar months from the date hereof.
A, B. Unmarried
Witness our hands this …………………………………………..day of ………………….19.
(S.d.) A.B. (S.d.) C.D.
Step-3: Public Notice and Objections
Once such an application has been received by the marriage officer, duly signed by both parties, the officer shall then issue a thirty-day public notice to raise objections to the intended marriage if any. The objections generally relate to non-compliance with the conditions referred to in Section 4 of the Act (also referred to in Step 1). If the conditions are duly met and no such objections are raised, a marriage certificate should be entered in the Marriage Certificate Book. Here, both the intending parties and the witnesses are required to sign.
The marriage under this Act can be said to be duly solemnized and registered after having completed all of the above steps. Please note that you may also need certain documents along with three witnesses on the day of solemnization. An illustrative list has been provided here:
- Proof of Age
- Address Proof
- Affidavit with regard to Marital Status
- Non-Relationship between the parties within the degree of prohibition.
- Passport size Photos.
Notice of Proposed Marriage
Any couple wishing to make use of the fruits of this Act is required to issue a written notice to the district’s “Marriage Officer” where for the last thirty days at least one of the parties to the marriage has resided. The marriage is usually scheduled to take place within three months from the date of issue of notice. The notice thus received will be published by displaying it in a noticeable place in the office of the Marriage Officer. A copy of the notice must also be attached to a “Marriage Notice Book” that anyone can inspect.
Special Marriage Act 1954 Application Form
Period of Objection
Any objections to marriage regarding age, consent capacity, incest, etc. may be addressed to the Marriage Officer within 30 days of the notice being published. The Marriage Officer is mandated to conduct an inquiry into its validity within a 30-day window period of time, during which the marriage can not be solemnized in case of any objections. If the marriage officer finds that the objection is valid and decides against the marriage of the parties concerned, the bride or groom may, within thirty days of such refusal, appeal to the district court. If all the objections concerned are dealt with, a declaration must be signed by the bride, groom, and any three witnesses in the presence of the Marriage Officer, who would then countersign it. The marriage will be solemnized upon the cessation of the objection period in the absence of any objections.
Power of Enquiry
In receiving an objection, marriage officers are granted the following rights:
- Summoning and enforcing witnesses’ attendance.
- Examining the witnesses on oath.
- Demanding documents to produce.
- Demanding the evidence on affidavits.
- Issue of commissions for the witness scrutiny.
If the marriage officer believes that the objection he/she has received is not reasonable and is not made in good faith, the person making the objection may be on the receiving end of objective costs of up to Rs. 1,000. The sum received will be awarded to the parties of the proposed marriage for this purpose.
Objections in Jammu & Kashmir
Any objections regarding a proposed marriage made in Jammu and Kashmir State will be addressed by the respective Marriage Officer to the Central Government. The Central Government inspects the case on its own conditions and communicates its decision to the Marriage Officer, who then implements the decision ordered by the governing body.
Solemnization of Marriage
After clearing objections, the marriage may be solemnized at the expiry of 30 days, if any field. The notice is valid for 3 months. Before the marriage is solemnized, the parties and three witnesses should sign declarations in the prescribed form in the presence of the marriage officer.
In whatever form the parties may choose to adopt, marriage can be solemnized. The marriages can be solemnized either within a reasonable distance from the office of the marriage officer or at such other place as the parties may wish.
Registration of Marriage Celebrated in Other Forms
Any marriage celebrated, with the exception of those solemnized in accordance with these provisions, may be registered by a marriage officer under Chapter III of the Act, subject to the condition that a marriage ceremony has been conducted for the parties under any of the Acts and that the couple has since led a marital life. Besides that, the conditions for the conduct of marriage specified in this Act shall apply.
Implications on Family Membership
Any member of an undivided family who professes the religion of Hinduism, Buddhism, Sikhism or Jainism would be forced to separate from such a family, i.e. a family member married under this Act would not be considered a part of the family hierarchy after the marriage proceedings under this Act were terminated.
Restitution of Conjugal Rights
On marriage, it is the parties ‘ primary duty to live together in order to fulfill their marital obligations. This right to cohabit with one another is called the’ consortium’ right. Husband and wife have the right to each other’s society, comfort, and affection. The origin of the action seems to lie in the husband’s early concept of law having a quasi-proprietary right over the wife. It included the society of his wife as well as its services. The consortium notion presumed a distinct footing of mutuality with the passage of time. Conjugal rights can not be enforced by either party’s actions, and by force, a husband can not seize his wife and detain her. If a spouse makes an infringement of this obligation without any justifiable cause, the other may go to court to restore his conjugal rights.
Section 22 of Chapter V of the Special Marriage Act, 1954, sets out the conditions under which a petition for restitution of conjugal rights would be based.
- 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, and 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 as to whether there was a reasonable excuse for withdrawal from society, the burden of proving a reasonable excuse is on the person who withdrew from society.
The section’s elements are as follows:
- The respondent withdrew from the petitioner’s society.
- Without reasonable cause, the respondent has withdrawn.
- The burden of proving a reasonable cause lies with the respondent.
In the district court, the petition is filed.
The court is satisfied with the truth of the statement, and there is no other reason to deny the relief.
This section is consistent with Section 9 of the Hindu Marriage Act, 1955, Section 36 of the Parsi Marriage and Divorce Act, 1869, Section 32 of the Divorce Act, 1869, and Section 13 of the Matrimonial Causes Act, 1965.
Withdrawal from Society
The word ‘society’ that occurs in the section means the same thing as consortium or cohabitation, i.e. living together as husband and wife in a place called ‘matrimonial home’. It is therefore evident that withdrawal from the other’s society would mean withdrawal from the matrimonial home by either spouse that would involve a total loss of consortium such as desertion. Society withdrawal involves two elements: animus and factum. This means that the withdrawing spouse intends to put an end to the cohabitation and, secondly, the mere intention of withdrawal would not amount to withdrawal unless it is combined with the factum of separation on the part of spouse’s withdrawn.
Cohabitation does not necessarily mean that parties live together under the same roof, but there may be cohabitation states where they see each other as much as they can and yet are not separated.
Kay v. Kay, (1904), A man may cohabit with his wife even if he is away or on a visit or on business because it does not determine the conjugal relationship in any form.
G v. G, (1930), A husband can not be considered to have deserted his wife without reasonable cause because he is forced to live away from her because of his work in life.
Shastri law was based on the principles that the wife is bound to live with her husband and submit herself to his authority. This rule of law that gave the husband the right alone to set up a matrimonial home in preference to the wife was based on a custom that reflected the condition of the age in which the custom was practised. Moreover, the husband’s right to establish a matrimonial home is not a law proposition; it is simply a proposition of ordinary good sense arising from the fact that the husband is usually the bread earner and has to live near to his work. It becomes quite natural in such circumstances that the husband should have the right to choose a matrimonial home. India’s Constitution gives both sexes equal status, so both have equal rights to pursue their careers. Now the casting vote on the choice of the matrimonial home is not with the husband or wife, but it is a matter that has to be decided in a friendly manner between them.
In several cases, the question as to what amounts to withdrawal from society came to our courts in an interesting way: does the refusal of the wife to give up her job in the husband’s case amount to withdrawal from the husband’s society? In several cases, the question came before the Punjab High Court for consideration and in the affirmative, it was answered. In the cases Tirath Kaur v. Kirpal Singh AIR 1964 Punj 28, Gaya Prasad v. Bhagwati AIR 1966 MP 212 (DB), and Kailashwati v. Ayodhya Prakash 1977 HLR 175, The courts held that the husband had the right to decide the matrimonial home and that the wife had to resign and live with him. The other view, which is contrary to this extreme opinion, as held in S. Garg v. K. M. Garg, AIR 1978 Del 296, is that the wife can not be prevented from taking up employment in the present social scenario and can not be forced to live in the same place where her husband lives. None of the parties shall have a casting vote, and the matter shall be settled by agreement between the parties, by process of giving and taking and by reasonable accommodation.
Without Reasonable Excuse
The burden of proving that he/she has withdrawn with a reasonable excuse would be on the respondent once the petitioner proves that the respondent has withdrawn from his/her society. A restitution petition will fail if the respondent is found to have withdrawn from the petitioner’s society with a reasonable excuse to do so.
It will be a reasonable excuse or reasonable cause under the modern matrimonial law:
If there is a reason for this, the respondent may claim any matrimonial relief. So if the petitioner is found to have another wife (Parkash v. Parmeshwari, AIR 1987 P & H 37), is guilty of cruelty (Bejoy v. Aloka, AIR 1969 Cal 477), or is adulterous (Laxmi Malik v. Mayadhar Malik, AIR 2002 Ori. 5) the petition will fail.
If the petitioner is guilty of any matrimonial misconduct, then it is not sufficient to be the ground for matrimonial relief but sufficiently weighty and serious.
If the petitioner is guilty of such an act, omission or conduct that makes a living with him impossible for the respondent.
The jurisdiction under the section to entertain a petition for restitution of conjugal rights rests with the district court. The District Court has been defined in S. 2(e) the Act. It means the principal civil court of original jurisdiction and a civil court of the city where such court exists. An aggrieved party may invoke the jurisdiction of a district court if any of the following qualifications are fulfilled:
- The marriage has been solemnized within that court’s local limits.
- The husband and wife both live together within that court’s local limits.
- Both the husband and wife last lived together within that court’s local limits.
Under English law, before the Reformation, the church considered the marriage as a sacrament which made it impossible to obtain a divorce. The ecclesiastical courts in the case of a marriage validly contracted granted ‘divorce a men’s et thoro,’ i.e. divorce from bed and board, which did not allow the parties to remarry. This solution was not divorce, i.e. it didn’t dissolve the marriage. This solution is now called judicial separation, allowing the parties to live separately from each other, without dissolving the marriage bond, with the option of re-uniting and re-living together if conditions change subsequently.
Section 23 of the Special Marriage Act provides for the relief of judicial separation.
(1) A petition for judicial separation may be presented to the District Court either by the husband or the wife:
(a) on any of the grounds specified in sub-section (1) and sub-section (1A) of Section 27 on which a petition for divorce might have been presented, or
(b) on the ground of failure to comply with a decree for restitution of conjugal rights; and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.
(2) Where the Court grants a decree for judicial separation, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
This section is in accordance with Section 10 of the Hindu Marriage Act, 1955, Section 34 Parsi Marriage and Divorce Act, 1936, Section 22 of the Divorce Act, 1869 and Section 12 of the Matrimonial Causes Act, 1965.
Grounds for Judicial Separation
A district court shall lodge a petition for judicial separation from either the husband or the wife on any of the grounds that the respondent:
- Has committed adultery.
- Has deserted the spouse for a period of two years immediately prior to the petitioner’s submission without cause.
- Is imprisoned for an offence as described in the Indian Penal Code for seven years or more.
- Has the petitioner treated with cruelty?
- Has been of unsound mind incurably.
- Has been suffering from the communicable form of venereal disease.
- Has suffered from leprosy that the petitioner has not contracted.
- Has not been heard for at least seven years as being alive.
Where the petitioner is the wife, on the additional ground, she can file a petition for judicial separation:
That since the solemnization of marriage her husband has been guilty of Rape, Sodomy, or Bestiality; or
That there has been no cohabitation between her and the husband for not less than one year after passing a decree or maintenance order against her husband in her favour, or
That her husband has failed to comply with a decree to restore conjugal rights.
The aforementioned grounds are similar to divorce grounds under Section 27 of the Act.
Power of the Court
The District Court must be satisfied with the truth of the statements made in such petition upon presentation of the petition. If the court is satisfied, a judicial separation decree will be passed. The parties are free to live apart from one another after the passing of the decree. However, if it considers it fair and reasonable to do so, the court may rescind the decree of judicial separation upon subsequent application by either party. In a petition for divorce, if the petitioner fails to establish the alleged ground for divorce, although facts establish a ground for judicial separation, the court has the power to pass a decree for judicial separation, even though no such prayer has been made in the petition, as held in Bhagwan v. Amar Kaur, AIR 1962 Punj 144.
Effect of Decree
The decree of judicial separation entitles the parties to live separately, and cohabitation is not compulsory on either party as the essential of the marital relation. But it does not break husband and wife’s marital status. No one is able to remarry until the divorce decree. Each party may submit a divorce petition to the district court on the ground that there has been no resumption of cohabitation as between the parties for a period of one year or upwards after passing a judicial separation decree.
Nullity of Marriage
The law of nullity refers to impediments to premarriage. The subject matter of impediments to marriage is covered under the capacity to marry. If there are certain impediments, parties are unable to marry each other. If they get married, despite impediments, their marriage may not be valid. These impediments are generally split into two:
- Absolute impediments: If there are absolute impediments, a marriage is void ab initio, i.e. from the start it is an invalid marriage.
- Relative impediments: If there are relative impediments, a marriage is voidable, i.e. one of the parties to the marriage may avoid it if he or she wishes.
These impediments classify the marriage into Void and Voidable Marriages.
A void marriage is not marriage, i.e. from the beginning, it does not exist. It is called marriage because there are two people who have undergone ceremonies of marriage. Since they absolutely lack the capacity to marry, they can not become husband and wife just by undergoing marriage ceremonies. In other words, avoid marriage does not give rise to any legal consequences. No court decree is required in respect of void marriages. Even when a decree is passed by the court, it simply declares the marriage to be null and void. It is not the court’s decree that makes such a marriage void. It is an existing fact that the marriage is void and the court is merely making a factual judicial statement. In accordance with Section 24 of the Special Marriage Act, 1954, either party can make a petition for nullity to marriage.
- Void marriage- (1) Any marriage solemnized under this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if –
(i) any of the conditions specified in clauses (a),(b),(c) and (d) of section 4 has not been fulfilled, or
(ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit.
(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of Section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of Section 15:
Provided that no such declaration shall be made in any case where an appeal has been preferred under Section 17, and the decision of the District Court has become final.
This section corresponds to Section 11 of the Hindu Marriage Act, 1955, Section 18 and 19 of the Indian Divorce Act, 1869 and Section 9 of the Matrimonial Causes Act, 1965.
Grounds for Void Marriage
A marriage may be declared void by a decree of nullity on the following grounds:
- Any of the conditions stated in clauses (a), (b), (c) and (d) of section 4 of the Act have not been fulfilled. Such conditions are as follows:
- At the time of marriage, neither party has a spouse living. The first marriage ought to be a valid marriage.
- Neither party is unable to give valid consent.
- The male should have 21 years of age, and the female should have 18 years of age.
- The parties are not within the degrees of prohibited relationship.
- The defendant was impotent at the time of marriage and at the time of the institution of the suit. The initial responsibility in the case of impotency is on the petitioner’s wife to prove the respondent husband’s impotence.
So long as it is not avoided, a voidable marriage is perfectly valid. Only one of the parties to the marriage may request it to be avoided. If one of the parties refuses to demand the annulment of the marriage, the marriage will remain valid. If one of the parties dies before the annulment, no one can challenge the marriage, and it will remain valid forever. All the legal implications of a valid marriage flow as long as it is not avoided. The grounds for voidable marriages are set out in Section 25 of the Special Marriage Act.
- Voidable marriage: Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if:
(i) the marriage has not been consummated owing to the willful refusal of the respondent to consummate the marriage, or
(ii) the respondent was it the time of the marriage pregnant by some person other than the petitioner, or
(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1872);
Provided that, in the case specified in clause (ii) the Court shall not grant a decree unless it is satisfied-
(a) that the petitioner was at the time of the marriage ignorant of the facts alleged.
(b) those proceedings were instituted within a year from the date of the marriage. and
(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.
Provided further that in the case specified in clause (iii), the Court shall not grant a decree if:
(a) proceedings have not been instituted within one year after the coercion has ceased or, as the case may be, the fraud had been discovered, or
(b) The petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.
This section corresponds to Section 12 of the Hindu Marriage Act, 1955, Section 19 of the Divorce Act, 1869, Section 32 of the Parsi Marriage and Divorce Act, 1936 and Section 9 of the Matrimonial Causes Act, 1965.
Grounds for Voidable Marriage
Non-consummation of marriage: Due to the respondent’s willful rejection, the marriage has not been consummated. In Sunil K. Mirchandani v. Reena S Mirchandani, where the parties had lived together for about 5 months, and a letter written by a husband to wife indicates his satisfactory sexual relationship with her, there could be no basis for an annulment of marriage under Section 25(1) of the Act.
Pre-marriage pregnancy: The presumption of law is that a child born during the continuity of a valid marriage or within the gestation period of 280 days after the dissolution is legitimate unless there is strong evidence to prove otherwise. The petitioner’s right is somewhat limited to initiate proceedings on this ground of the respondent’s pregnancy at the time of marriage by an individual other than the petitioner. In such cases, the court shall not issue a nullity declaration unless it is satisfied:
- That at the time of marriage, the petitioner was quite unaware of the fact of pregnancy.
- The proceedings were initiated within a year of the date of the marriage.
- That no marital intercourse has happened with the petitioner’s consent since the alleged facts were discovered.
Coercion or fraud: if either party’s consent to the marriage has been obtained by coercion or fraud as described in Section 15 and 17, respectively, of the Indian Contract Act 1872, the marriage can be avoided.
Section 15 describes coercion as committing or threatening to commit, any act forbidden by the Indian Penal Code or any unlawful detention or threat of detention of any property, to the prejudice of any person, with the intention of causing an individual to enter into an agreement.
Section 17 of the Indian Contract Act describes fraud, which implies and involves any of the following acts committed by a party to a contract or his connivance, or by his agent, with the intention of deceiving or inducing another party or his agent to enter into the contract:
- A statement as to a fact that is not true by anyone who does not believe that it is true.
- The deliberate concealment of a fact by someone who has knowledge or belief of the fact.
- A promise made without any intention to perform it.
- Any other deception-fitting act.
- Any such act or omission as stated by law to be specifically fraudulent.
In Gitika Bagchi v. Subhabrota Bagchi, AIR 1999 Cal 246, where the wife concealed the fact that she was 3 years older than her husband, it amounted to fraud as provided in Section 25(iii) of the Act. In Asha Qureshi v. Afaq Qureshi, AIR 2002 MP 263, hiding of fact by the wife that she was previously married and widowed at the time of the second marriage is a material fact, and as such, it amounts to fraud committed on her second husband, he is entitled to a decree of nullity.
The court should not issue a decree of nullity in case of coercion or fraud unless proceedings were not initiated within one year after the coercion had ended or the fraud had been detected.
The petitioner lived with the respondent with his or her free consent after the coercion been ended or the fraud had been detected.
In such cases, the petitioner’s acquiescence to such an act or omission will be assumed, and the petitioner’s right to such scores will be waived.
The legitimacy of Children of Void or Voidable Marriages
Section 26 aims to give the children begotten a status of legitimacy before the nullity decree is passed. Where a decree of nullity is issued for void or voidable marriage, it shall be considered to be a decree of dissolution for the specific purpose of conferring the status of legitimacy on the children begotten before the decree is issued. But the child from such a union shall have right on the parents’ property but no rights in or to the property of any person. In those cases, the child is considered not to be a legitimate child of his parents by a legal fiction.
Divorce puts an end to marriage; the parties return to their unmarried status and are free to marry again. The grounds for divorce are set out in Section 27 of the Act.
Grounds for Divorce
The District Court is the proper forum for filing a divorce petition on any of the following grounds:
The respondent to the case has committed adultery since the solemnization of the marriage. Adultery is the matrimonial offence in which a married person and a person of the opposite sex, other than the wife, have consensual sexual intercourse during the subsistence of the marriage, as held in Dawn Henderson v. D Henderson, AIR 1970 Mad 104 (SB). In view of provision (a) of cl. (1) of s. 27 of the Act, a single act of adultery may constitute an adequate ground for divorce. As required in Section 13 of the Hindu Marriage Act, 1955, it is not necessary to prove that the respondent was ‘living in adultery’.
In the case of adultery, the court must be satisfied that adultery has been committed, beyond a reasonable doubt. But adultery can, if ever, be proven very rarely by direct evidence of the witness. Therefore, in most cases, the evidence must be circumstantial in nature and depends on the probabilities of the situation. However, as in the case of Jyotish Chandra Guha v. Meera Guha, AIR 1970 Cal 266 (DB), in the absence of wife’s reciprocity, the mere production of love letters written by a person to a wife will not prove adultery.
The respondent must have deserted the petitioner without cause for at least 2 years before the petition was submitted. In essence, desertion means intentional permanent forsaking and abandonment of one spouse by the other without the consent of the other and without reasonable cause. It is a complete repudiation of the marriage obligations. Desertion is not a withdrawal from a place, but from a state of things that are necessary for marital life. It is a continuing offence and must exist for two years immediately before the petition is presented. The essential elements of desertion are factum or intention to desert or physical separation and animus. All these ingredients must remain in place during the statutory period. The Doctrine of Constructive Separation is one when one spouse is compelled to leave the matrimonial home by the conduct of the other. The spouse that drives out is guilty of desertion. There is no significant difference between the case of a man who intends to stop cohabitation and leaves his wife and the case of a man who compels his wife to leave him with the same intention through his conduct.
In Geeta Jagdish Mangtani v. Jagdish Mangtani, 2005 SC 3508, on the ground that the husband had inadequate income, the wife had abandoned him after seven months of marriage. She began to live with her parents and gave birth to a child. She did not attempt to rejoin the husband and continued her job as a teacher. She knew about the husband’s income status before marriage. Desertion on her part has been proved under the circumstances. Due to the unpalatable atmosphere in the matrimonial home, the wife left the matrimonial home in Sunil Kumar v. Usha, AIR 1994 MP 1, and the reign of terror that prevailed there drove her out. She was held not guilty of desertion.
The respondent is subject to a seven-years or more imprisonment decree for an offence laid down in the Indian Penal Code. On this ground, however, no decree for divorce shall be granted unless the respondent has already been imprisoned for at least three years out of the said period of seven years or more prior to the petition being presented.
Since the marriage solemnization, the petitioner must have been treated with cruelty by the respondent. The term’ cruelty’ was not defined in the Act and could be attached to it as such a broad meaning. Russell v. Russell,  AC 395, laid down the legal position of cruelty in divorce proceedings. The legal concept of cruelty is usually described as the conduct of such a character as to have caused risk to life, limb or health (physical or mental) or to give rise to a reasonable apprehension of such danger.
In a divorce proceeding on the grounds of cruelty, the petitioner must prove that the respondent has behaved in such a way that the petitioner can not be called upon to endure in the circumstances and that misconduct has caused injury to health or a reasonable apprehension of such injury. The standard of proof required is the preponderance of probability and not beyond all reasonable doubt as in criminal proceedings.
Unsoundness of mind
The respondent must be of unsound mind, which is incurable. The burden of proof lies with the petitioner that the respondent is of unhealthy mind or has suffered from such a kind of mental disorder continuously or intermittently and to such an extent that it is not reasonable to expect the petitioner to live with the respondent. The petitioner will also need to prove that the unsoundness of mind is incurable. If the court finds that the respondent’s unsoundness of mind is incurable, it does not interfere with the degree of unsoundness of mind for decision-making purposes, as stated in Lock v. Lock,  1 WLR 1248.
The respondent must be suffering from venereal disease in a communicable form. Where it is not contracted from the petitioner who provides evidence that he or she has not had any intercourse with any person other than the respondent, it is a prima facie case that the respondent had committed adultery. It is then up to the respondent to refute the prima facie case against him by calling for medical evidence to demonstrate that:
- The respondent did not suffer from the disease, or
- The respondent innocently contracted the disease, or
- The respondent had not committed adultery.
- The doctor who examined the respondent personally can only provide evidence to this effect.
The respondent should have been suffering from leprosy and the disease must not be contracted from the petitioner. Proving the disease have a communicable nature is not necessary.
Not heard as being alive
The respondent has not been heard by people who are closely related to the respondent as being alive for not less than seven years. If the person is not heard of for 7 years by those people who would naturally have heard of him being alive, then it is presumed that the person is dead. The burden of proving that the respondent is alive lies with the person who asserts it.
Husband is guilty of Rape, Sodomy or Bestiality
The wife can make a petition at the District Court on the ground that her husband has been guilty of rape, sodomy, and bestiality since the solemnization of marriage. These are also grounds for prosecution on criminal charges. However, the husband’s conviction on these grounds of criminal offence is not enough to grant a divorce decree. The commission of the offense must be proven de novo either by the petitioner calling witnesses or by the respondent admitting guilt; the court will decide whether any evidence is desirable to be corroborated.
Decree or order of maintenance obtained by the wife
The wife can also file a divorce petition on the ground that she has obtained a decree or maintenance order and since the passing of such decree or order, she has been living apart and has no resumed the cohabitation between her and her husband.
No resumption of cohabitation after a decree of judicial separation
The parties have not resumed cohabitation for at least one year after the passing of a decree of judicial separation. The legislature’s intention to give such space and time to the parties so there would be a possibility of reconciliation between the parties. In the absence of any such change of mind of the parties, the legislature believes that for any further period there is no justification for keeping the right of cohabitation available to the parties. Based on their peculiar facts and circumstances, each case has to be decided. A single act of cohabitation does not mean the resumption of cohabitation.
Non-compliance with a decree for restitution of conjugal rights
There has been no restitution of conjugal rights between the parties for a period of not less than one year after the decree of restitution of conjugal rights has been passed.
Divorce by Mutual Consent
Under section 28 of the Act, which deals primarily with provisions relating to obtaining a divorce by mutual consent in respect of a marriage solemnized and/or registered under the Act, a petition for divorce may be filed with the District Court by mutual consent. The following are some key points to consider when seeking a divorce by mutual consent:
- Both parties must present a petition for divorce to the District Court together.
- There must be a petition on the grounds,
They lived separately for a period of one year or more.
That they were not able to live together.
That they agreed to dissolve the marriage mutually.
- Only after one year from the date of entering the wedding certificate in the Marriage Certificate Book then only the petition can be presented. However, in instances where the petitioner suffers extraordinary hardship or in instances of extraordinary depravity on the part of the respondent, relaxation may be provided.
- The petition seeking divorce by mutual consent could be submitted to a district court within its jurisdiction, either,
The marriage was solemnized.
The respondent resides, or where the wife resides, in the case where the wife is the petitioner.
The parties to the marriage last resided together. or
The petitioner resides, in cases where the respondent is residing outside the territories to which the Act extends.
- Between 6 months after and within 18 months, the date of filing of the petition for seeking divorce by mutual consent, both parties must make a motion together for seeking a decree of divorce.
- Among other aspects, the District Court considers the following, before passing a divorce decree,
- That the petition has not yet been withdrawn.
- That under the Act, marriage has been solemnized.
- That the petitioner’s averments are true.
- The divorce consent was not obtained through force, fraud or undue influence.
- That there was no unnecessary or inappropriate delay in commencing the proceedings.
Thus, the provisions and procedures under the Special Marriage Act for acquiring divorce by mutual consent are relatively straightforward and fairly simple.
However, parties wishing to obtain a divorce by mutual consent must bear in mind that the Act also contains provisions dealing with the granting of alimony and maintenance, both permanent and during the pendency of the proceedings. In cases of divorce by mutual consent, the parties may agree on the terms relating to the payment of alimony or maintenance and the same may be incorporated in the pleadings before the Court. However, care must be taken to incorporate the appropriate provisions in the pleadings in order to avoid future misunderstandings or litigation. Therefore, while discussing the various issues related to seeking a divorce by mutual consent with their advocates, it is advisable that the parties should specifically discuss their arrangement and alimony and maintenance arrangements, and take appropriate steps to ensure that their interests are safeguarded.
Restriction on Divorce during 1st year of the marriage
Any person who is married under the Special Marriage Act must be aware of this important provision of the Act. Unless and until one year has expired from the date of their marriage as recorded in the marriage books, the parties may not apply for divorce in the District Court. However, in cases where the court considers that the petitioner has suffered exceptional hardship or the respondent has shown exceptional depravity on his part, a request for divorce would be retained, but if there is any misrepresentation on the part of the petitioner to apply for divorce before the expiry of 1 year, the court may, if any order has been passed, state that order to take effect only after the expiry of 1 year, as mentioned in Section 29 of the Act.
Can they remarry?
Speaking of the option of remarriage available for marriages of persons registered under the Special Marriage Act, 1954, one important thing to bear in mind is that, where the marriage has been dissolved, and there is no right of appeal available, or there is no petition for it within the required period, or where the appeal is dismissed, the parties may remarry as provided by the parties.
The General and Legal understanding
The general understanding is that only marriages are sacred and auspicious which are done in one’s own caste, whereas the legal aspects of it as discussed above doesn’t make marriages any less sacred or valid under this act. Our Law, under its provisions, gives every citizen the right to marry and have a happy life with any person of their choice. But many support this opinion and criticize it. Some people think it’s valid; some don’t. The effect of arranged marriages on love marriage has brought about this situation which, even after judgments and laws have been passed more frequently in this regard, has not brought about a major change in the mindsets of people who support marriages within religion and caste.
Difference between the Hindu Marriage Act and Special Marriage Act
The Hindu Marriage Act only applies to the Hindus, whereas the Special Marriage Act extends to all Indian citizens.
The Hindu Marriage Act was enacted in 1955 by the Parliament of India Act. The Hindu Marriage Act allows for an already solemnized marriage to be registered. It does not provide for Registrar for solemnization of a marriage. Parties to the marriage must apply to the Registrar in whose jurisdiction the marriage is solemnized or to the Registrar in whose jurisdiction either party to the marriage has resided for at least six months immediately before the date of marriage. Both parties must appear with their parents or guardians or other witnesses before the Registrar within one month from the date of marriage. There is a provision for the Registrar, and subsequently, the District Registrar concerned to condone delay for up to five years.
The Special Marriage Act, 1954, is an Act of the Parliament of India enacted to provide the citizens of India and all Indian nationals in foreign countries with a special form of marriage, regardless of the religion or faith practised by either party. The Special Marriage Act provides for marriage solemnization as well as registration by a marriage officer. The parties to the intended marriage must notify the marriage officer in whose jurisdiction at least one of the parties has resided for at least 30 days prior to the date of the notice. It should be put in his office at some conspicuous place. If either party lives in another Marriage Officer’s area, a copy of the notice for similar publication should be sent to him. If no objections are received, the marriage may be solemnized after the expiry of a month from the date of publication of the notice The Marriage Officer has to enquire into them if any objections are received and make a decision either to solemnize the marriage or to refuse it. Registration will be made after the marriage has been solemnized.
Any marriage already celebrated, subject to certain conditions, may also be registered under the Special Marriage Act after giving a 30-day public notice.
Maintenance For Wife & Children: Under Special Marriage Act, 1954
Alimony During The Pendency Of The Case In The Court
Where, in any proceeding under the Special Marriage Act, 1954, it appears to the District Court that the wife does not have enough independent income for her support and the required expenses of the proceeding, the wife may, at the request of the court, order the husband to pay her the costs of the proceeding and, in the course of the preceding proceeding, weekly or monthly, such amount should regard to husband’s income, which the court may seem reasonable.
Permanent Alimony and Maintenance
Any court exercising jurisdiction under the Special Marriage Act of 1954 may, at the time of the passing of any decree or at any time after the decree, order the husband to secure the wife’s maintenance and support, if necessary, by charge on the property of the husband, such gross sum or such monthly or periodic payment of money for a period of time not exceeding her life.
If the District Court is satisfied that there is a change in the circumstances of either party at any time after it has rendered an order pursuant to subsection (1), it may, in either party’s case, alter, adjust or cancel any such order in such a manner as it may appear to the Court to be reasonable.
(3) Where the District Court is satisfied that the wife for whom an order has been made pursuant to this section has remarried or has not lived a chaste life, it may, in the case of the husband, change, alter or cancel any such order and in such a manner as the Court may deem appropriate.
Amount of Maintenance
The maintenance amount shall be purely the Court’s discretion. The court shall take due account of the following factors in deciding the amount of maintenance, namely:
- The position and status of the parties;
- The fair preference of the claimant;
- If the claimant resides separately, whether the claimant is justified in doing so;
- The value of the claimant’s estate and any income derived from that property or from the claimant’s own income or from any other source;
Any other relevant facts and circumstances.
By its very nature, the captioned subject is complex. In such cases,after reviewing the relevant provisions of the law, i.e. the Special Marriage Act, 1954, The Code of Civil Procedure, 1908, The Limitation Act, 1963, The Evidence Act, 1872, The Code of Criminal Procedure, 1973, Other Acts & Judgments and Citations of the Hon’ble Supreme Court of India and the High Courts. Even otherwise, the question of how rules, decisions, and quotations are to be applied is rather more complicated as it requires a thorough examination of substantive laws, procedural laws and precedents of the Court in a given set of facts and circumstances.
Maintenance requires — (i) in all cases provisions relating to food, clothes, housing, education and medical care and treatment; (ii) in the case of an unmarried daughter also the appropriate expenses and incidents of her marriage, Section 3(b), Hindu Adoption and Maintenance Act, 1956.
Maintenance should also include a residential provision. Maintenance is provided to allow the lady to live the way she was accustomed to, more or less. Therefore, the definition of maintenance must include food and clothing provision and the like, taking into account the fundamental need of a roof over the head, Mangat Mal v. Punni Devi, (1995) 6 SCC 88.
Maintaining a wife for her ‘sustenance’ does not mean animal living, but it means leading a life in the same way that she would have lived in her husband’s house. Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353 Husband is obliged to allow his wife to live life with dignity according to their social status and strata.
“Wife” Contains a woman who was divorced by or obtained divorced from her husband and not remarried, Section 125(1) Explanation (b), CrPC 1973.
“Wife” means a legally wedded wife under Section 125 CrPC and also involves a divorced wife, D. Velusamy v. D. Patchaiammal,(2010) 10 SCC 469.
Maintenance only to legally wedded wife
Only a woman who is legally married has a right to maintenance. A Hindu woman who marries a Hindu male who has a living wife is not entitled to maintenance because the marriage is void, Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, (1988) 1 SCC 530.
Maintenance to ‘previous wife’
A Muslim husband who contracts another marriage or takes a mistress is liable to pay maintenance to the previous wife who is also entitled to live separately, which is payable from the date of the other marriage. Regardless of religion, the husband can not alleviate his liability by offering to take back the wife and maintain her, Begum Subanu v. A.M. Abdul Gafoor,(1987) 2 SCC 285.
Wife ‘living separately with mutual consent’ does not include divorced wife
Under Sections 125(1) and 125(4) of the CrPC, the meaning of’ wife’ is different. Section 125(4) refers to a married woman. Wife living separately from a husband with mutual consent does not mean wife who gets a divorce by mutual consent and lives separately and therefore maintenance cannot be refused on this ground, Vanamala v. H.M. Ranganatha Bhatta, (1995) 5 SCC 299.
Is an earning wife entitled to maintenance?
Wife having her own school and having wetland is in a better financial position than a husband who does not do well in his profession and has no land. It is therefore unnecessary for the wife to pay any maintenance, Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.
Wife’s income to be accounted for determining maintenance
The income of Wife must be taken into consideration in determining the amount of maintenance payable to her. In Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386, it is not an absolute right of a neglected wife to get maintenance, nor it is an absolute liability of the husband to support her in all circumstances.
Maintenance to a woman in a live-in relationship
The Supreme Court expressed its opinion that a broad interpretation of “wife” should include cases where men and women have lived together as husbands and wives for a relatively long period of time (live-in relationship/suspected marriage/de facto marriage/cohabitation). Strict proof of marriage should not be a prerequisite for maintenance under S. 125 CrPC, in order to fulfil the true spirit and purpose of the beneficial provision of maintenance, Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141. (However, this decision was referred to a larger bench).
Recently, it is claimed that a woman in a living relationship has an effective remedy for pursuing maintenance under the Protection of Women from Domestic Violence Act, 2005, even if it is presumed that she is not entitled to the same under Section 125 CrPC. In addition, the victim would be entitled to more protection under the Domestic Violence Act than what is envisaged under Section 125 CrPC, Lalita Toppo v. the State of Jharkhand, 2018 SCC OnLine SC 2301.
Woman knowingly entering in a live-in relationship with a married man
In the nature of marriage, all live-in relationships are not relationships. There must be some inherent/essential characteristics of marriage, although not a legally recognized marriage. A live-in relationship between an unmarried woman who knowingly has a relationship with a married male can not be defined as a relationship in the “nature of marriage” and her status will be that of a concubine or mistress and is therefore not liable for maintenance, Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755.
Inter-standing marriage segment with respect to the Special Marriage Act. In India, marriage is considered as a sacred, divine, and was called the holy union. It’s a basic piece of our way of life. India is a large nation, and thereafter people from different religions and cultures live here. We know the degree of influence that rank and religion have in our country is still being thought of in numerous places in our nation as unimaginable. India takes over the position framework after an exceptionally unbending structure. Individuals are required to marry within their position, and anyone who marries out of their station and challenges the customary hindrances in the general public is avoided. There are numerous normal and tragically exposed admiration for killings; they are proud to do as well. Accordingly, a serious provision for the law came to wed for affection and to defend the interests of those individuals who transcended those stations and religious partitions. Thus the Parliament approved the Special Marriage Act of 1954 for individuals of India and for every single Indian national of outside nations, irrespective of rank or religion. The one of a kind aspect of the Special Marriage Act of 1954 is that any marriage solemnized in any other manner under any other law, Indian or nonnative, between any two persons may be enlisted under the Act.
Marriage registration is compulsory under the Indian Christian Marriages Act, 1872. Parsi Marriage and Divorce Act, 1936 makes significant marriage registration without registration, and the marriage does not wind up the void. Under Muslim law, a marriage is treated as a traditional contract, and the Qazi, or cleric administrator, also records the terms of the marriage in a nikahnama given to the married couple, i.e. there is a provision for private marriage enlistment. Under Section 8 of the Hindu Marriage Act, 1954 a relational union registry arrangement exists. Nevertheless, it is left to the contracting gatherings either to solemnize the marriage before the sub-recorder or to eventually enlist it to perform the task in accordance with Hindu convictions.
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