(if) that such rule is certain and not unreasonable or opposed to public policy; and
(Hi) that such rule, if applicable only to a family, has not been discontinued by the family.]
Objects and Reasons—Apart from the fact that the provisions of this Act, if passed, will apply to all persons marrying thereunder irrespective of the religion they may profess, the other changes of importance which have been made in this clause, as compared with section 3 of Act in of 1872, are the following, namely:—
(a) the addition of a new condition relating to idiocy and lunacy;
(b) the raising of the age limit for marriage…..;
(c) the provision for marriages abroad between citizens of India.—S.O.R.
COMMENTS
There is nothing in the Special Marriage Act which indicates that any marriage between two Hindus is void, if either of them has a spouse living at the time of the marriage: . Pammeshwari Bai v. Muthojirao Scindia A.I.R. 1981 Karn. 40.
5. Notice of intended marriage.—When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the Form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.
COMMENTS
The non-compliance of the requirement contemplated under Ss. 5 and 6 of the Special Marriage Act is not by itself fatal but is only an irregularity which does not go to the root of the matter and cannot be taken to nullify a marriage in fact evidenced by the certificate of marriage contemplated under the Act: Nirmal Dass Bosev. Mamta Gulati A.I.R. 1997 All. 401.
6. Marriage Notice Book and publication.—(1) The Marriage Officer shall keep all notices given under section 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 section 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.
Objects and Reasons—Sub-section (3).—In cases where a marriage is sought to be solemnized before a Marriage Officer other than the Marriage Officer within whose jurisdiction the parties are permanently residing, it is essential that the notice should be given in the place of permanent residence also, and sub-clause (2) [now sub-section (3)] makes provision in this behalf.—J.C.R.
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 section 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in section 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 section 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.—(1) If an objection is made under section 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 withdrawn 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.
Objects and Reasons—Sections 8, 9 and 10.—The Joint Committee feel that it would not be in the interests of the parties to an intended marriage or in the public interest that Courts should be invested with jurisdiction in the matter of objections to any such marriage. Such objections should ordinarily be disposed of by the Marriage Officers themselves within a specified period, the parties being given a right of appeal if aggrieved by the decision of the Marriage Officer. The Marriage Officer should also have the usual powers for holding inquiries with respect to such matters.—J.C.R.
9. Powers of Marriage Officers in respect of inquiries.—(1) For the purpose of any inquiry under section 8, the Marriage Officer shall have all the powers vested in Civil Court under the Code of Civil Procedure, 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;
(V) 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 section 193 of the Indian Penal Code.
Explanation.—For the purpose of enforcing the attendance of any person to give evidence, the local limits of the jurisdiction of the Marriage Officer shall be the local limits of his district.
(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 for 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 section 7 to a Marriage Officer 14[ii* 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 who 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 there from as the parties may desire, and upon such conditions and the payment 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 witnesses and in any language understood by the parties,—”I. (A), take thee (B), to be my lawful wife (or husband).”
COMMENTS
The statutory provisions contained under S. 12 are of a mandatory nature and once it is established that the declaration contemplated therein had not been made in the manner prescribed, the marriage solemnized at the office of Marriage Officer has to be held to be incomplete conferring no marital status on the parties. Obviously, in such a situation, the alleged marriage has to be held to be void: Nirmal Dass Bosev. Mamta Gulati A.I.R. 1997 All. 401.
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 calendar months from the date on which notice thereof has been given to the Marriage Officer as required
14. Substituted by Act 33 of 1969, S. 29, for “outside the territories to which this Act
extends in respect of an intended marriage outside the said territories” (w.e.f.
31-8-1969).
by section 5, or where an appeal has been filed under sub-section (2) of section 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 section 10, within three months from the date of decision of the Central Government, the notice and all other proceedings arising there from 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.
CHAPTER III REGISTRATION OF MARRIAGES CELEBRATED IN OTHER FORMS
15. Registration of marriages celebrated in other forms.—Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (3 of 1872)15, or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:—
(a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;
(b) neither party has at the time of registration more than one spouse living;
(c) neither party is an idiot or a lunatic at the time of registration;
(d) the parties have completed the age of twenty-one years at the time of registration;
(e) the parties are not within the degrees of prohibited relationship:
Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and
(f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.
Objects and Reasons—Section 15(e), Proviso.—In the opinion of the Joint Committee, the scope of this clause should be widened so as to include within it marriages which, although hit by the rule of prohibited degrees as defined in the Bill, are valid under the personal law applicable to the parties.—J.C.R.
COMMENTS
The notification issued under S. 15 of the Special Marriage Act and the certificate issued under S. 16 of the same Act cannot be said to be a conclusive proof of a marriage solemnized under the Hindu Marriage Act. Under the Hindu Marriage Act a marriage can only be solemnized if the ceremony of the marriage as per S. 7 of the Act are strictly performed: State v. Santosk Saha A.I.R. 2000 Cal. 104 (D.B.).
16. Procedure for registration.—Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this Chapter, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objections and after hearing any objection received within the period, shall, if satisfied that all the conditions mentioned in section 15 are fulfilled, enter a certificate of
15. Repealed by Act 54 of 1954, S. 51.
.
