SPECIAL MARRIAGES ACT

1. Context 

2. About Special Marriages Act

• The Special Marriage Act of 1954 (SMA) was passed by the Parliament on October 9, 1954.
• It governs a civil marriage where the state sanctions the marriage rather than the religion.
• Issues of personal law such as marriage, divorce and adoption are governed by religious laws that are codified.
  These laws, such as the Muslim Marriage Act, of 1954 and the Hindu Marriage Act, of 1955, require either spouse to convert to the religion of the other before marriage.
• However, the SMA enables marriage between inter-faith or inter-caste couples without them giving up their religious identity or resorting to conversion.
• The Indian system, where both civil and religious marriages are recognised, is similar to the laws in the UK's marriage Act of 1949.
• An earlier version of the SMA was enacted in 1872 and was later re-enacted in 1954 with provisions for divorce etc.

3. Marriage under the Special Marriage Act

• The applicability of the Act extends to people of all faiths, including Hindus, Muslims, Sikha, Christians, Sikhs, Jains and Buddhists across India.
• Some customary restrictions such as parties not being within degrees of a prohibited relationship still apply to couples under SMA.
• In 1952, when the Bill was proposed, the requirement of monogamy was considered radical.

• The minimum age to get married under the SMA is 21 years for males and 18 years for females.
• However, once married as per the secular law, under Section 19 of the Act, any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion shall be deemed to affect their severance from the family. This would affect the rights, including the right to inheritance, of the persons choosing to marry under the SMA.

4. The procedure for a civil marriage

• As per Section 5 of the Act, the parties to the marriage are required to give a notice, in writing to a "Marriage Officer" of the district in which at least one of the parties has resided for at least 30 days immediately preceding the notice.
• Before the marriage is solemnized, the parties and three witnesses are required to sign a declaration form before the Marriage Officer.
• Once the declaration is accepted, the parties will be given a "Certificate of marriage" which is essentially proof of the marriage or conclusive evidence of the fact that a marriage under this Act has been solemnized and all formalities respecting the signatures of witnesses have been complied with.

5. Notice period under the SMA

• As per Section 6, a true copy of the notice given by the parties will be kept under the "Marriage Notice Book" which will be open for inspection at all reasonable times, without a fee.
• Upon receiving the notice, the marriage officer shall publish it in "some conspicuous place in his office" to invite any objections to the marriage within 30 days.

• If an objection has been made, the Marriage Officer cannot solemnize the marriage until he had inquired into the matter of the objection and is satisfied that will not prevent the marriage from taking place unless the person making such an objection withdraws it.

6. Criticism

• These provisions are often criticised as they are commonly invoked to harass consenting couples.
• In 2009, the Delhi High Court, underlining the right to privacy, struck down the practice of posting the notice of intended marriage under the SMA to the residential addresses of both parties through the police station of the concerned jurisdiction to verify their addresses.
• The unwarranted disclosure of matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize the marriage itself.
• In certain instances, it may even endanger the life or limb of one the other party due to parental interference.
• More recently, this requirement for a notice period has also been challenged. 
• In January 2021, the Allahabad High Court ruled that couples seeking to solemnize their marriage under the Special Marriage Act, 1954 can choose not to publish the mandatory 30-day notice of their intention to marry.