LEGAL PROVISIONS REVOLVING AROUND SPECIAL MARRIAGE ACT, 1954
Category: Family Law
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It describes the SMA's conditions, methods, and legal complexities, including the contentious 30-day notice requirement for objections, which many feel infringes privacy and human autonomy. The paper examines historical context, landmark decisions, and recent Supreme Court deliberations, highlighting the need for revision to ensure that the act is consistent with current constitutional ideals and preserves fundamental rights. The article finishes by discussing the current cultural and judicial debates surrounding the SMA.
Keywords: SMA 1954, Marriage, Fundamental Rights, Constitutional Rights
Introduction Â
India, which is a land of diverse cultures and religions, holds marriage as an important aspect of human life considered to be a sacred bond between two individuals. Usually, marriages are governed by religion specific laws ie: Hindu Marriage Act 1955 and the Christian Marriage Act 1872. But the Indian constitution advocates for a secular society that safeguards the religious freedom and belief therefore Article 44 of the Indian Constitution envisions the state working towards a Uniform Civil Code for all citizens.Â
Hence the Special Marriage Act of 1954 can be viewed as a preliminary step towards Uniform Civil Code. Special marriage act allows inter caste and inter faith marriages between individuals with their free consent, provided that the male is at least 21yrs of age and the female has attained 18 yrs. of age.
There are various conditions for the marriage under the Special Marriage Act
Section 4 of the Special Marriage Act, 1954 talks about the conditions they are;Â
Neither party should have a living spouse
The parties should be of sound mind capable of giving consentÂ
Male must be 21 yrs. The age and female must be 18yrs. Of ageÂ
They should not fall under the prohibited degrees of relationship unless a custom governing either party permits such a marriage.Â
Section 5 of the Special Marriage Act discusses the process of Marriage under the Special Marriage Act. It requires that the parties intending to marry must submit a written notice to the marriage officer of the district where at least one party has resided for 30 days. This notice is then affixed in a conspicuous place in the Marriage Officers office and is open for public inspection. Further Section 6 mandates that this notice is to be published for 30 days to invite any objections, if any. Anyone can object to this marriage within this period based on the grounds given under section 4 of the act. If there are no objections raised the marriage is solemnized but if the objections are raised then the Marriage officer must investigate and decide within 30 days.
There are a few requirements for the solemnization of the marriage, the marriage will be solemnized only in the presence of three witnesses and along with the witnesses the parties must sign a declaration in the presence of a Marriage Officer. If the marriage does not occur within three months of the notice or appeal, a fresh notice must be given.
Void Voidable Marriages and Divorce under the ActÂ
The Special Marriage Act outlines a few specific grounds for void and voidable marriages. A marriage is considered void if either of the spouse contravenes the conditions given under the section 4 of the act, and also if the respondent was impotent at the time of the marriage and remains to be so while filing the suit.Â
A marriage is voidable when the respondent willfully refuses to consummate the marriage, is pregnant by another person at the time of marriage without the petitioner's knowledge or if the consent was obtained by force and coercion. Â
Divorce can be sought on several grounds, including adultery, desertion for over 2 yrs., conviction for an offense for which the punishment is a seven year or longer sentence of imprisonment and mental illness. Wives can also seek for a divorce if the husband is convicted of sodomy, bestiality or rape after marriage.Â
Amendments from the 1872 actÂ
The 1954 Act introduced several changes compared to the 1872 Act. Most importantly they removed the provision where the individual had to renounce their faith to marry under this act they also increased the permissible age of marriage and removed parental consent. The residency and the objection period was also increased from 14 days to 30 days. Â
Landmark Judgements on the Special Marriage ActÂ
While the Act was designed to facilitate interfaith and inter caste marriages certain provisions have raised concerns about fundamental rights violations. The sections 5,6 and 7 violate the right to privacy where it is required for the couple to publish the marriage notice, which subjects the couples choice to public scrutiny. It was affirmed in a landmark judgment of K.S Puttaswamy v. Union of IndiaThat right to privacy is a fundamental right. Further in Shakti Vahini v Union of India, the court upheld that the right to marry a person of one’s choice is a part of an individual dignity.Â
There may be many controversies in the case of mandatory period especially in the rural areas where interfaith or inter caste marriage is a taboo. The Supreme Court in Lata Singh v State of UP, ruled that individuals marrying outside their caste should not face violence, and their choice should be respected.Â
In Shafin Jahan V Ashokan K.MThe Supreme Court reiterated that the right to marry is a fundamental and human right, emphasizing that the requirement to publish personal information violates this right. The Allahabad High Court, in a progressive judgment, held that the publication of notice under section 6 & 7 is not mandatory and can be waived by the couple.Â
Latest news regarding the controversial 30-day notice under the Special Marriage Act
The 30-day notice requirement can be traced back to the 1753 British Parliament Act titled “Act for the Better Prevention of Clandestine Marriages”. This preventive measure was incorporated into the SMA, which is intended as an enabling statute. It was observed by the senior attorney Raju Ramchandran that requiring notice to exercise one’s fundamental right is greatly flawed. It was further stated by the CJI Chandrachud that this approach is not the least intrusive way to prevent void marriages and justice Kohli concurred, noting that this affects both heterosexual and same sex couples.Â
Recently the Supreme Court of India examined several petitions seeking the legal recognition of same sex marriages. The 30 days’ notice before the marriage is deemed by the bench that this provision is patriarchal and violates the fundamental right to privacy.Â
Senior advocate Abhisek Manu argued in court that this requirement is absent in other personal laws and is unconstitutional. He has described this as an invitation to disaster and violence, asserting that it infringes on the privacy of the individuals by publicly exposing their decision to marry, whether same sex or opposite sex.Â
In 2022 the Supreme Court dismissed a petition challenging the SMA’s notice period clauses. The court deemed the challenge abstract, as the petitioner was personally affected by the statute, thus not qualifying as a PIL. Athira Sujatha, who married under the SMA and faced doxing by a vigilante group in Kerala and then filed the petition. Her marriage notice was made publicly available on the Kerala Registration website, where right- wing organizations accessed and shared them on social media, calling the relationship as Love- Jihad.
ConclusionÂ
The special marriage act of 1954 designed to facilitate inter faith and inter caste marriages, faces criticism for its intrusive notice requirements that hinder privacy and autonomy. The recent judicial scrutiny and societal debates highlight the need for reform to align the act with contemporary constitutional values, ensuring that the fundamental rights of all citizens are upheld.
