special marriage Act 1954 procedure

The right to freedom of religion allows Indian citizens to choose any religion that he / she wants to choose. This fundamental right was chossen>

The right to freedom of religion allows Indian citizens to choose any religion that he / she wants to choose. This fundamental right was chossen after lot of thought regarding the process of person chossing his / her own religion. This fundamental right is described in the constitution as:

The right to freedom of religion is a fundamental right guaranteed under Article 25 of the Constitution of India.

Article 25 reads as follows:-

Article 25. (1). Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

Article 25. (2). Nothing in this article shall affect the operation of any existing law or prevent the State from making any law: -

(a) Regulating or restricting any economic financial political or other secular activity which may be associated with religious practice; 

b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.


This Article guarantees that every person in India shall have the freedom of conscience and shall have the right to profess, practise and propagate religion, subject to the restrictions that may be imposed by the State on the following grounds, namely:-

(1) Public order, morality and health; 
(2) Other provisions of the Constitution; 
(3) Regulation of non-religious activity associated with religious practise; 
(4) Social welfare and reform; 
(5) Throwing open of Hindu religious institutions of a public character to all classes of Hindus.

 

The Special Marriage Act-1954 

(Act No.43 of 1954)[9th October 1954]

Excerpts Pertaining to:
 
Solemnization/Registration of Special Marriages


An Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. 

Solemnization of Special Marriages
4. Conditions relating to solemnization of special marriage.-
Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled namely:

(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, or
(ii) though 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;
(c) the male has completed the age of twenty-one years and the female the age of eighteen years;
(d) the parties are not within the degrees of prohibited relationship:


5. Notices of intended marriage.- When a marriage is intended to be solemnized under this Act, the parties of 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 thirty days immediately preceding the date on which such notice is given.

6. Marriage Notice Book and publication.-(1) The Marriage Officer shall keep all notices given under Sec. 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same.

(2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.

(3) Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the Marriage Officer to whom the notice has been given under Sec. 5, the Marriage Officer shall also cause a copy of such notice to be transmitted to the Marriage Officer of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.

7. Objection to marriage.- (1) Any person may, before the expiration of thirty days from the date on which any such notice has been published under sub-section (2) of Sec. 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in Sec.4.

(2)After the expiration of thirty days from the date on which notice of an intended marriage has been published under sub-section (2) of Sec. 6, the marriage may be solemnized, unless it has been previously objected to under sub-section (1).

(3) The nature of the objection shall be recorded in writing by the Marriage Officer in the Marriage Notice Book, be read over and explained if necessary, to the person making the objection and shall be signed by him or on his behalf.

8. Procedure on receipt of objection.- If an objection is made under Sec. 7 to an intended marriage the Marriage Officer shall not solemnize the marriage until he has inquired into the matter of the objection and is satisfied that it ought not to prevent the solemnization of the marriage or the objection is withdraw by the person making it; but the Marriage Officer shall not take more than thirty days from the date of the objection for the purpose of inquiring into the matter of the objection and arriving at a decision.

(2) If the Marriage Officer upholds the objection and refuses to solemnize the marriage, either party to the intended marriage may, within a period of thirty days from the date of such refusal, prefer an appeal to the District Court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the District Court on such appeal shall be final, and the Marriage Officer shall act in conformity with the decision of the Court.

9. Powers of Marriage Officers in respect of inquiries.- (1)For the purpose of any inquiry under Sec.8, the Marriage Officer shall have all the powers vested in a Civil Court under the Code of Civil Procedure, 1908(5 of 1908), when trying a suit in respect of the following matters, namely:

(a) summoning and enforcing the attendance of witnesses and examining them on oath;
(b) discovery and inspection;
(c) compelling the production of documents;
(d) reception of evidence on affidavits; and
(e) issuing commissions for the examination of witnesses;and any proceeding before the Marriage Officer shall be deemed to be a judicial proceeding within the meaning of Sec.193 of the Indian Penal Code(45 of 1960).

2) If it appears to the Marriage Officer that the objection made to an intended marriage is not reasonable and has not been made in good faith he may impose on the person objecting costs, by way of compensation not exceeding one thousand rupees, and award the whole, or any part thereof to the parties to the intended marriage, and any order of costs so made may be executed in the same manner as a decree passed by the District Court within the local limits of whose jurisdiction the Marriage Officer has his office. 

10. Procedure on receipt of objection by Marriage Officer abroad.-
Where an objection is made under Sec.7 to a Marriage Officer in the State of Jammu and Kashmir in respect of an intended marriage in the State and the Marriage Officer, after making such inquiry into the matter as he thinks fit, entertains a doubt in respect thereof, he shall not solemnize the marriage but shall transmit the record with such statement respecting the matter as he thinks fit to the Central Government, and the Central Government, after making such inquiry into the matter and after obtaining such advice as it thinks fit, shall give its decision thereon in writing to the Marriage Officer shall act in conformity with the decision of the Central Government. 

11. Declaration by parties and witnesses.- Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the Form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer.

12. Place and form of solemnization.- (1) The marriage may be solemnized at the office of the Marriage Officer or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payments of such additional fees as may be prescribed.

2) The marriage may be solemnized in any form which the parties may choose to adopt:

Provided that it shall not be complete and binding on the parties unless each party says to the other in the presence of the Marriage Officer and the three witnessess and in any language understood by the parties,- "I (A) take thee (B), to be my lawful wife (or husband)".

13. Certificate of marriage.-(1) When the marriage has been solemnized the Marriage Officer shall enter a certificate thereof in the Form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.

(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.

14. New notice when marriage not solemnized within three months.-Whenever a marriage is not solemnized within three calender months from the date on which notice thereof has been given to the Marriage Officer as required by Sec. 5 or where an appeal has been filed under sub-section (2) of Sec.8, within three months from the date of the decision of the District Court on such appeal or where the record of a case has been transmitted to the Central Government under Sec.10, within three months from the date of decision of the Central Government, the notice and all other proceedings arising therefrom shall be deemed to have lapsed, and no marriage Officer shall solemnize the marriage until a new notice has been given in the manner laid down in this Act.

 

Who can enter into marriage under the Special Marriage Act?

Any two persons (male and female) can enter into marriage under the Special Marriage Act subject to the following conditions, namely:-

(1) The male has completed the age of twenty-one years and the female the age of eighteen years; (2) Neither party has a spouse living, (3) There should be valid consent for marriage from the parties, (4)  The parties must be fit for the marriage, and (5) The parties are not within the degrees of prohibited relationship.

[Explanation:

(1) Caste/Religion is not a factor for marriages under the Special Marriage Act. (2) Age condition applies as in the case of The Hindu Marriage Act. (3) Neither party has a spouse living at the time when the marriage is solemnized. (A widow/widower can enter into marriage. Similarly a divorcee can enter into marriage.) (4) Because of unsoundness of mind, a party may be incapable of giving a valid consent to the marriage (5) A party might have 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. (6) If a party has been subject to recurrent attacks of insanity or epilepsy, that party is unfit for marriage. (7) The term 'prohibited relationship' is defined in the Act.]

On July 7, 2006, the Supreme Court ruled emphatically that there can be no bar on inter-caste or inter-religious marriages. Those who harass and threaten such couples have to be prosecuted. In Lata Singh’s case SC observed, “This is a free and democratic country, and once a person becomes a major, he or she can marry whom so ever he/she likes”.

The marriage performed under the Special Marriage Act, 1954 is a civil contract and accordingly, there need be no rites or ceremonial requirements.

Notices of intended marriage

When a marriage is intended to be solemnized under this Act, the parties of the marriage shall give notice thereof in writing in the Form specified in the Second Schedule. The notice is to be given 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 thirty days immediately preceding the date on which such notice is given.

The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.

After the expiry of thirty days from the date on which notice of an intended marriage has been published, the marriage may be solemnized, unless it has been objected to by any person.

The marriage may be solemnized at the specified Marriage Office.

Marriage is not binding on the parties unless each party states "I, (A), take thee (B), to be my lawful wife (or husband)," in the presence of the Marriage Officer and three witnesses.

[Post Marriage position: Once the Couple get married under SMA or any  Marriage get registered under the Act than it will be covered under the Act only for any matrimonial issue in future which is good for Muslim woman/wife. The personal Shariat law relating to marriage will not apply in future for the parties & as such the Muslim man getting his marriage registered under this Act will not be able to remarry during the lifetime of his first wife, nor he can get rid of his wife by pronouncing triple divorce in three months, he can even not avoid providing alimony/maintenance to his wife with an excuse that adequate Mehar was giving at the time of marriage hence no more financial compensation can be levied on him through family court.]
 
Objection to marriage
 
 
Any person may, before the expiration of thirty days from the date on which the above said notice of intended marriage has been published under sub-section (2) of Sec. 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in Sec.4.
 
Note: Objection to the proposed marriage can be raised only on the ground that it would contravene one or more of the conditions specified in Sec.4 and the said conditions are: (1) The male has completed the age of twenty-one years and the female the age of eighteen years; (2) Neither party has a spouse living, (3) There should be valid consent for marriage from the parties, (4)  The parties must be fit for the marriage, and (5) The parties are not within the degrees of prohibited relationship. In other words, parents or relatives cannot abort the marriage on the ground that they don't like it or they are opposed to it on some other grounds.
 
 
"The maximum that relatives can do if they disagree with the inter-caste marriage of their children is to cut off all bonds with them. “But they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. This is a free and democratic country,” the Supreme Court said in a judgement.
 
 
Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the Form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer. 
 
 
Certificate of marriage
 
 
When the marriage has been solemnized the Marriage Officer shall enter a certificate thereof in the Form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.

On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.
 
 
If the marriage is not solemnised within three months from the date of notice, that notice would lapse and a fresh notice is to be given.
 
 
Inter-caste marriages in national interest: SC
 

The Supreme Court on Tuesday held that inter-caste marriages are in “national interest” as a unifying factor in a nation where caste system is a “curse”. “The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation. Inter-caste marriages are, in fact, in national interest as they will result in destroying the caste system,” a Bench of Justices Markandeya Katju and Gyan Sudha Misra held in a judgment.

The court slammed caste system as a divisive factor which promotes families to murder their own children in the name of “honour killings”. The judgment, the court said, is to remind that this still is a democratic nation where a person who has reached the age of majority can marry “whosoever he/ she likes”. “There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder,” Justice Katju, who wrote the judgment, observed.

Comparing khap panchayats to “kangaroo courts” where instant justice is meted out without any regard to judicial process of the country, the court said young boys and girls who marry outside their castes fall victims to their institutionalised “atrocities”.

“We have in recent years heard of ‘khap panchayats’ which often decree or encourage honour killings or other atrocities in an institutionalised way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out,” the court said.

The judgment refers to the 2006 Supreme Court decision in Lata Singh vs State of UP which had held that inter-caste marriages are not banned under the Hindu Marriage Act or any other law. The maximum that relatives can do if they disagree with the inter-caste marriage of their children is to cut off all bonds with them. “But they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. This is a free and democratic country,” the court said.

Taking steps to enforce its judgment, the Bench directed the government to immediately suspend any District Magistrate or Collector and SSP/SPs as well as other officials concerned, chargesheet them and proceed against them departmentally if they failed to act against any instance of casteist violence despite knowing about it in advance or if they fail to “promptly” apprehend the culprits and institute criminal proceedings against them.

The court issued orders for the copies of the judgment to be sent to the state high courts and chief secretaries, home secretaries and director generals of police in all states and Union territories for circulation.

The court was passing the judgment on an appeal filed by Arumugam Servai of Tamil Nadu, who was accused of making casteist remarks during an altercation.

 

Inter-caste marriages can eradicate casteism, says writer
Staff Correspondent

Shimoga: It is necessary to promote inter-caste marriages to eradicate the caste system, said writer Rajeshwari Tejaswi.

She was speaking after inaugurating the convention of inter-caste couple, organised by Lohia Janmashathabdhi Pratishthana in the city on Sunday.

Plea to youths

The Mantramangalya system of marriage advocated by poet laureate Kuvempu, which is free from lavishness and meaningless practices need to be popularised. She called upon the youths, to come forward for inter-caste and simple marriages.

Addressing the gathering, writer D.S. Nagabhushan said that the caste system had weakened the democracy. He expressed concern on the political polarisation in the name of caste.

Caste has become a means to secure power and money. The intellectual class should strive to enlighten the people against the evils of caste system, he stated.

Sharing his opinions, former minister S.K. Kantha regretted the strengthening of caste consciousness among the educated people. The educated who were expected to initiate a struggle against the social stratification system, have instead become advocates of caste system. The division of labour and the allocation of rewards for the labour under the caste system, was unscientific.

Social equality

The preaching of social reformers such as Basaveshwara, Budha, B.R. Ambedkar and Mahatma Gandhi, who strived for social equality, need to be popularised, he said.

Socialist thinker and political commentator Yogendra Yadav also participated in the convention.

(The Hindu June 20, 2011)

 

"Make every man and woman free from the thraldom of the Shastras , cleanse their minds of the pernicious notions founded on the Shastras, and he or she will inter-dine and inter-marry, without your telling him or her to do so."

-Dr. Ambedkar

 

Intercaste And Interreligion Marriage (Arya Samaj)

Inter Caste marriages prevailed in India as a result of a very rigid caste system. Upper caste people would not have any marriage alliance with lower caste people. Even if there are eligible bachelors available it was seen as a sin to think of mixing alliances from one caste to another. In fact, though now in cities we do not a very rigid caste system prevailing, it is still seen as a taboo to have married among different castes. Practically looking at it, the bride and the groom end of facing some adjustment problems once they start living together, basic things like language, daily routine habits might create a rift among the couple and ultimately the families. Most of these marriages remain as love marriages even today, where the bride and the groom would decide to get married and get into an adjustment for life. Hence, these marriages are more common in cities rather than villages in India.

Caste systems and racial discriminations act as a bane for progressive India. For years, the different societies of India, especially Hindu society have been divided on the basis of caste system and religion. The problem of caste system was so deep rooted that it took years for the Indians to come out of that idea. Even today also India is struggling to come out of this social menace. History reveals that efforts have been made by various social reformers and individuals to make India free from the clutches of caste system, untouchability and race discrimination.

People have realized that a successful marriage is not dependent on factors such as same caste and religion. It is on the other hand, built on the aspects of mutual understanding and compatibility. It is how well the two understand each other's need and feel for your partner. It is not necessary that you have to belong to the same community or caste to understand your spouse better. Today, there are ample of examples when two people from totally different background and lifestyle come together and spend their entire life happy with each other, thanks to education.

Education has broadened the periphery of thinking and helped people develop analytical powers. It has not only altered their perception about life, but also about social concerns such as marriage and relationship. Inter caste and inter religion marriages serves as a beacon light for social equality. In order to break the perils of caste-system, it has becomes incumbent that there should be inter-caste marriages. Marriage is mostly dependent on true love and feeling and once this is achieved, caste and religion all becomes secondary issues.

 

‘Promote inter-caste marriage’

KOCHI: Kerala Fisheries Minister S Sarma on Sunday said that promoting inter-caste marriage was the only means to protect society from the dangers of casteism.

“It was only after the strong agitations launched by progressive movements that the State was able to oppose the caste system and bring equality in the society,” the minister said after inaugurating the district convention of the Kerala Misravivaha Vedi here.

 

Law to protect rights of inter-caste couples sought
 

Thrissur: The State convention of the Kerala Mishra Vivaha Sanghatana Aikya Vedi has called for new legislation to protect the rights of inter-caste and inter-religious couples. The Aikya Vedi is the joint council of six associations of the inter-caste and inter-religious couples.

Speaker K. Radhakrishnan (Kerala) inaugurated the convention at the Government Model Girls Higher Secondary School here on Sunday.

“According to a survey conducted by a private agency, there are about 10 lakh inter-caste and inter-religious couples in the State. Still, society is hostile to the concept of mixed marriage and such couples face several challenges and social pressures,” Aikya Vedi general convener P.V. Basheer said.

The convention urged the government to provide legal validity for marriage certificates issued by the associations of inter-caste and inter-religious couples. The other demands raised at the convention included job quotas in the government, quasi-government and co-operative sectors; raising the income limit for assistance from Social Welfare Department; and standardisation of aids provided by the Social Welfare Board and the State Scheduled Caste Development Corporation.

A 21-point charter of demands was submitted to the government in 2007, Mr. Basheer said.

 

Couple united in inter-caste marriage face harassment

High Court directs Tiruchi and Kanyakumari police to provide protection

"The caste system is a curse on the nation and the sooner it is destroyed, the better… Inter-caste marriages are, in fact, in the national interest as they will result in destroying the caste system," was the observation made by a two-judge Bench of the Supreme Court in a judgment delivered on July 7, 2006.

The Bench consisting of Justices Ashok Bhan and Markandey Katju also directed the police throughout the country to extend protection to inter-caste or inter-religious couples against harassment besides initiating action against those who resort to violence.

More than three years have elapsed since the judgement was delivered. Yet, the curse still continues.

On Thursday, a Dalit youth from Puthery village near Nagercoil in Kanyakumari district moved the Madras High Court Bench here, alleging that he was harassed by his in-laws for having married a caste Hindu girl and the police had failed to take stringent action.

V. Mahesh (23) claimed that he had been threatened, assaulted, abducted and forced to shave off his head.

Passing interim orders on a writ petition filed by him through his counsel U. Nirmala Rani, Justice D. Hariparanthaman directed the Tiruchi Police Commissioner and the Kanyakumari Superintendent of Police to provide protection to the couple.

According to the couple, they fell in love and married against the wishes of the girl’s parents at a local temple in Puthery on October 8, 2008. Since then they had been receiving threatening calls on their mobile phones until the local police intervened and negotiated a peace.

On April 9, the youth’s mother-in-law barged into the couple’s house along with a few persons and attempted to abduct his wife. The gang attacked him and his parents. The girl lodged a complaint with the Superintendent of Police and a case was registered against her mother and others.

Nevertheless, the harassment continued. Unable to bear the torture, the couple moved to Tiruchi. On September 8, a gang waylaid Mahesh and abducted him in a car with an intention to kill him in Andhra Pradesh. On the way, he was taken to a barber for shaving off his head so that his identity could not be established after his death.

Mahesh was shifted from one car to another half way through. To his luck, the gang leader in the second car sympathised with him after hearing his love story and allowed him to get off the vehicle at Perambalur. Thereafter, he came back to Tiruchi and lodged a complaint with the K.K. Nagar police, but to no avail.

(The Hindu Sept. 25, 2009)
 
 
 
To encourage more inter-caste marriages
Inter-caste marriage assistance: two annoying provisions scrapped
Special Correspondent (The Hindu, Aug 26, 2010)

SALEM: To encourage more inter-caste marriages, the Directorate of Social Welfare has effected a few changes in the rules so that those seeking the free financial assistance under ‘Anjugam Ammaiyar Memorial Inter-Caste Marriage Assistance Scheme' will henceforth be ‘beneficiary-friendly.' In response to a request from K. Alagesan of the Tamil Nadu Inter-Caste Married Couples' Association, the Social Welfare Commissioner has decided to do away with two of the four important provisions such as domicile certificate and marriage invitation of the applicants, the pre-requisites for seeking financial assistance.

In his letter recently, Mr. Alagesan said that a majority of the inter-caste marriages have been taking place under severe strain and threats from the family members.