Penalties, Rules and Savings

Section 45: false declarations

Every person making, signing or attesting any declaration or certificate required by or under the Act which contains a statement that is false, and which he either knows or believes to be false or does not believe to be true, is guilty of the offence described in section 199 of the Indian Penal Code, which punished a false statement made in a declaration that is by law receivable as evidence. That offence is now section 236 of the Bharatiya Nyaya Sanhita 2023, under the same heading.

The section reaches not only the parties but the three witnesses who sign the declaration under section 11 and the certificate under section 13, which is what makes those signatures worth having.

Section 46: the Marriage Officer's own offence

Any Marriage Officer who knowingly and wilfully solemnizes a marriage under the Act:

(1) without publishing a notice as required by section 5; or (2) within thirty days of the publication of the notice; or (3) in contravention of any other provision of the Act,

is punishable with simple imprisonment which may extend to one year, or fine which may extend to five hundred rupees, or both.

This is the section that gives the notice provisions their teeth, and it explains why a Marriage Officer will not shorten the thirty days however sympathetic the couple. He commits an offence if he does. A student writing about the criticism of the notice period in [Notice, Objection and Solemnisation] should mention section 46, because it shows the wait is not administrative caution but a statutory duty enforced by a criminal sanction.

Sections 47 to 49: the register

Section 47. The Marriage Certificate Book shall at all reasonable times be open for inspection and shall be admissible as evidence of the statements contained in it; and certified extracts shall be given by the Marriage Officer on application and payment of the prescribed fee.

Read this with section 13(2), which makes the certificate conclusive evidence that the marriage was solemnized and the formalities observed. Section 47 is how a party gets hold of that evidence years later.

Section 48. Every Marriage Officer in a State shall send to the Registrar-General of Births, Deaths and Marriages of that State, at prescribed intervals and in prescribed form, a true copy of all entries made in the Marriage Certificate Book since the last interval; and Marriage Officers outside the territories to which the Act extends send theirs to an authority specified by the Central Government.

Section 49. A Marriage Officer who discovers an error in the form or substance of any entry may, within one month after the discovery, correct it in the presence of the persons married, or if they are dead or absent in the presence of two other credible witnesses, by an entry in the margin without any alteration of the original entry, signing the marginal entry and adding the date; and he must make the like marginal entry on the certificate. Every correction must be attested by the witnesses in whose presence it was made, and where a copy has already gone to the Registrar-General under section 48 a separate certificate of the erroneous entry and the marginal correction must be sent.

The method is the point and it is worth a line: the original entry is never altered. A correction is written in the margin, dated and attested, so that the register shows both what was recorded and what it was corrected to. That is how a document keeps its value as conclusive evidence.

Sections 50 and 51: rules and repeals

Section 50 gives the rule-making power: to the Central Government in the case of officers of the Central Government, and to the State Government in all other cases, by notification in the Official Gazette. Section 50(2) lists what the rules may cover: the duties and powers of Marriage Officers and the areas of their jurisdiction; the manner and procedure of inquiries; the form and manner of keeping the books; the fees; the manner of giving public notice under section 16; the form and intervals for sending copies under section 48; and anything else requiring to be prescribed. Section 50(3) requires rules made by the Central Government to be laid before each House of Parliament.

Section 51 deals with repeals. Sub-section (1) repeals the Special Marriage Act 1872 and any corresponding law in force in a Part B State. Sub-section (2) provides that notwithstanding the repeal, all marriages duly solemnized under the Act of 1872, or any such corresponding law, shall be deemed to have been solemnized under this Act, and that all pending matrimonial suits and proceedings shall be dealt with by the court as if originally instituted under this Act. Sub-section (3) preserves section 6 of the General Clauses Act 1897.

The deeming in sub-section (2)(a) is the part to remember: a couple married under the 1872 Act did not have to do anything in 1955. Their marriage became a marriage under this Act by operation of law.

A worked example

Karan is married under Hindu rites. He goes to a Marriage Officer and marries Anjali under the Special Marriage Act, declaring in the notice that he has no spouse living. Two witnesses sign the declaration knowing the truth. The Marriage Officer solemnizes the marriage nine days after the notice.

Is the second marriage valid? No. Section 43: where a person who is already married under any law marries under this Act, the marriage is void and the penal provisions apply, now section 82(1) and (2) of the Bharatiya Nyaya Sanhita 2023.

And the mirror case? Section 44: a person whose marriage is solemnized under this Act who contracts another marriage during its subsistence is subject to the same consequences.

The false declaration. Section 45: any person making a false declaration or statement under the Act is punishable as for the corresponding offence under the Sanhita. The witnesses who sign knowing the truth are within it.

And the Marriage Officer? Section 46: a Marriage Officer who knowingly and wilfully solemnizes a marriage under the Act without publishing the notice or before the expiry of thirty days, or in contravention of any other provision, is punishable with simple imprisonment up to one year, or a fine up to five hundred rupees, or both. That penalty is what makes the waiting period real.

Does the Act invalidate their Hindu marriage? No. Section 42 provides only that the Act does not affect the validity of any marriage not solemnized under it, nor of any other mode of contracting marriage.

What about the register? Sections 47 to 49: the Marriage Certificate Book is open to inspection and its entries are admissible as evidence; certified extracts may be obtained on payment; and corrections are made in the manner the Act provides.

And the rest? Sections 50 and 51: the power to make rules, and the repeals and savings.

What it does NOT mean

Section 42 does not save customary divorce or personal law generally. It says only that the Act does not affect the validity of a marriage not solemnized under it, or of any other mode of contracting marriage.

Sections 43 and 44 are not the same provision twice. The first is for a married person marrying under this Act; the second for a person married under this Act marrying elsewhere.

Section 45 is not confined to the parties. It reaches any person who makes a false declaration or statement, including a witness.

Section 46 is not about the parties at all. It punishes the Marriage Officer.

And it is not a heavy penalty. One year and five hundred rupees; its importance is that it exists.

The register is not private. It is open to inspection, and its entries are admissible as evidence.

Quick revision

• s.42: the Act does not affect the validity of a marriage not solemnized under it, nor of any other mode of contracting marriage.
• s.43: a person already married under any law who marries under this Act: the marriage is void and the penal provisions apply. s.44: a person married under this Act who contracts another marriage: the same.
• The penal law now: s.82(1) of the Bharatiya Nyaya Sanhita 2023, seven years; s.82(2), where the earlier marriage is concealed, ten years.
• s.45: a false declaration or statement under the Act is punishable as the corresponding offence under the Sanhita.
• s.46: a Marriage Officer who knowingly and wilfully solemnizes a marriage without publishing the notice, or before thirty days have expired, or in contravention of any other provision: simple imprisonment up to one year, or a fine up to five hundred rupees, or both.
• ss.47 to 49: the Marriage Certificate Book is open to inspection, its entries are admissible as evidence, certified extracts may be obtained, and corrections are made as provided.
• ss.50 and 51: rules and repeals.

Test yourself

1. What does section 42 save? Only this: that nothing in the Act shall affect the validity of any marriage not solemnized under its provisions, nor shall the Act be deemed directly or indirectly to affect the validity of any marriage customary among any tribe, community, group or family, or of any other mode of contracting marriage.

2. What are the two bigamy provisions? Section 43, which applies where a person who is already married under any law marries again under this Act, and section 44, which applies where a person whose marriage is solemnized under this Act contracts another marriage during its subsistence. In both the second marriage is void and the penal provisions apply.

3. What does section 46 punish? A Marriage Officer who knowingly and wilfully solemnizes a marriage under the Act without publishing a notice of intended marriage as required, or before the expiry of thirty days from the publication of the notice, or in contravention of any other provision. The punishment is simple imprisonment up to one year, or a fine up to five hundred rupees, or both.

4. Is the Marriage Certificate Book public? Yes. It is open to inspection at all reasonable times, certified extracts may be obtained on payment of the prescribed fee, and the entries are admissible as evidence of the marriages to which they relate.