SECULAR MARRIAGE LAWS IN INDIA-INDIA SPECIAL MARRIAGE ACT,1954-Part III

the marriage in the Marriage Certificate Book in the Form specified in the Fifth Schedule, and such certificate shall be signed by the parties to the marriage and by three witnesses.

17. Appeals from orders under section 16.—Any person aggrieved by any order of a Marriage Officer refusing to register a marriage under this Chapter may, within thirty days from the date of the order, appeal against that order 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 to whom the application was made shall act in conformity with such decision.

18. Effect of registration of marriage under this Chapter.—Subject to the provisions contained in sub-section (2) of section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (whose names snail also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents:

Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents.

CHAPTER IV

             CONSEQUENCES OF MARRIAGE UNDER THIS ACT

19. Effect of marriage on member of undivided family.—The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from such family.

Objects and Reasons.—The Joint Committee gave very anxious consideration to this clause as this had been made the subject of attack in many of the opinions received on the ground that it penalises marriages under this law. After careful consideration the Joint Committee have decided to retain this clause in its original form, particularly because it has the desirable effect of simplifying the law of succession. Were the clause to be omitted the share in the joint family property of a person marrying under this law will necessarily have to devolve on the survivors, which would mean that the daughters will be left out of account. Moreover, one of the chief reasons why persons marry under this law is that in case of intestate succession, the Succession Act will apply and it would be extremely inconvenient to have different laws of succession applicable to different types of property. Severance from the joint family does not, of course, prevent the parties from reuniting if they so desire.—J.C.R.

20. Rights and disabilities not affected by Act.—Subject to the provisions of section 19, any person whose marriage is solemnized under this Act, shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850 (21 of 1850), applies.

Objects and Reasons.—With respect to clause 19 [now section 20], the Caste Disabilities Removal Act, 1850, provides that so much of any law or usage as may be held in any way to impair or affect any right of inheritance of any person by reason of his or her renouncing or having been excommunicated from the communion of any religion or being deprived of caste shall cease to be enforced as law.—S.O.R.                    

21. Succession to property of parties married under Act.—Notwith­standing any restrictions contained in the Indian Succession Act, 1925 (39 of 1925), with respect to its application to members of certain communities, succession to the property or any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this section that Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestates) had been omitted there from.

¹⁶[21-A. Special provision in certain cases.—Where the marriage is solemnized under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply and so much of section 20 as creates a disability shall also not apply.]

COMMENTS

Where marriage of Hindu is solemnised under Special Marriage Act, held, succession is governed by Hindu Succession Act and not by Indian Succession Act: Maneka Gandhi v. Indira Gandhi A.I.R. 1985 Del. 114(D.B.).

CHAPTER V

RESTITUTION OF CONJUGAL RIGHTS AND JUDICIAL SEPARATION

22. 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 by 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 whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]

23. 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 ¹⁸[in sub-section (1) ¹⁹[and sub­section (1-A)] 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 be no longer 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.

16. Inserted by Act 68 of 1976, S. 22 (w.e.f. 27-5-1976).

17 Added by Act 68 of 1976, S. 23 (w.e.f. 27-5-1976).                                     

18. Substituted by Act 29 of 1970,8.2 (w.e.f. 12-8-1970).                                                                

19. Inserted by Act68ofl976,S.24(w.e.f.27-5-1976).                  

                                                   CHAPTER VI

NULLITY OF MARRIAGE AND DIVORCE

24. Void marriages.—(1) Any marriage solemnized under this Act shall be null and void ²⁰[and may, on a petition presented by either party thereto against the other party, be so declared] by a decree of nullity if—

(z) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled; or

(if) 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.

Modifications.—In its application to marriages referred to in section 18(1) of the Foreign Marriage Act, 1969, section 24 shall be subject to the following modifications, namely:—

(/) the references in sub-section (1) to clauses (a), (b), (c) and (d) of section 4, shall be construed as references to clauses (a) to (d) of section 4 of the Foreign Marriage Act, 1969; and

(if) nothing contained in this section shall apply to any marriage—                              

(a) which is not solemnized under that Act, i.e.,33 of 1969;or

(b) which is deemed to be solemnized under the said Act by reason of the provisions of section 17 of that Act:

Provided that the registration of any such marriage referred to in clause (b) above
may be declared to be of no effect if the registration was in contravention of sub-section
(2) of section 17 of that Act, i.e., 33 of 1969—See section 18(2) of the Foreign Marriage
Act, 1969 (33 of 1969).
                            

 COMMENTS      

The provisions contained in S. 24 which indicate certain grounds on which the marriage solemnized under the Act shall be treated to be null and void, cannot be held to be exhaustive of the grounds specified under that section which ought to be treated and taken as only enumerative. However, once the facts attracting the grounds indicated in S. 24(1) of the Act subject to the exception provided for under sub-S. (2) thereof are proved to exist, no marriage in fact can be recognised as a marriage in fact can be recognised as a marriage in law and no marital status as referred to hereinabove can flow from such a marriage but as indicated hereinabove, the grounds mentioned in S. 24(b) of the Act cannot be deemed to be the only grounds on which any marriage claimed to be solemnized under the Act is to be treated to be null and void. There may be other grounds leading to the same effect and one of such other grounds has been specifically provided for under the Act itself under S. 12(2): Nirmal Dass Base v. Mamta Gulati A. I. R. 1997 AH. 401.

25. Voidable marriages.—Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if—

(z) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or

20. Substituted by Act 68 of 1976, S. 25, for “and may be so declared” (w.e.f,27-5-1976).                                                

f (it) the respondent was at the tune of the marriage pregnant by some person other thai* the petitioner; or

(in) the consent of either party in 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 (zz), 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;

(V) that 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 (Hi), the Court shall not grant a decree if—

(a) proceedings have not been instituted within one year after the coercion had 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.

²¹[26. Legitimacy   of   children   of   void   and   voidable   marriages.—

(1) Notwithstanding that a marriage is null and void under section 24, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 25, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it has been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 25, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.]

27. Divorce.—²²[(1)] Subject to the provisions of this Act and to the rules made there under, a petition for divorce may be presented to the district Court either by the husband or the wife on the ground that the respondent—

²³[(a) has, after the solemnization of marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

21. Substituted by Act 68 of 1976, S. 26(w.e.f. 27-5-1976).

22. S. 27 renumbered as sub-S. (1) thereof by Act 29 of 1970, S. 3 (w.e.f. 12-8-1970).

23. Substituted by Act 68 of 1976, S. 27, for Cls. (a) and (b) (w.e.f. 27-5-1976).