Registration of Marriages Celebrated in Other Forms

"Neither party has more than one spouse living." Not "no spouse living". The condition is written this way because the parties to the marriage being registered are each other's spouse. What it excludes is a further spouse.

Custom is wider here, and only for old marriages. The proviso to clause (e) lets any law, custom or usage having the force of law defeat the prohibited-degrees bar, without the notification requirement of the Explanation to section 4; but it applies only to a marriage celebrated before the commencement of the Act.

And clause (a) has no counterpart in Chapter II at all: there must have been a ceremony, and the parties must have been living together as husband and wife ever since. A couple who married and separated cannot register.

Section 16: the procedure

On receipt of an application signed by both parties, the Marriage Officer shall:

• give public notice in such manner as may be prescribed;
• allow a period of thirty days for objections;
• hear any objection received within that period; and
• if satisfied that all the conditions in section 15 are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the form specified in the Fifth Schedule, signed by the parties and three witnesses.

The same thirty-day public notice appears here as in Chapter II, and the criticism made of it there applies with less force, because the marriage already exists and the parties are already living together.

Section 17: appeal

Any person aggrieved by an order of a Marriage Officer refusing to register a marriage under Chapter III may, within thirty days of the order, appeal to the district court within whose jurisdiction the officer has his office. The decision of the district court is final, and the Marriage Officer must act in conformity with it.

Note that the appeal lies only against a refusal. There is no appeal under this section against a decision to register.

Section 18: the effect of registration

This is the section the chapter exists for, and it does three things.

The marriage becomes a marriage under this Act. Subject to section 24(2), where a certificate has been finally entered in the Marriage Certificate Book under Chapter III, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act.

Two words matter. "From the date of such entry": the conversion is prospective, so the marriage is a marriage under this Act from registration onwards, not from the original ceremony. And "subject to section 24(2)", which is the provision preserving the position where a marriage registered under Chapter III could not have been solemnized under the Act.

The children are legitimate, retrospectively. All children born after the date of the ceremony of marriage, whose names are also to 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.

Notice the difference in time. The marriage is converted from the entry; the children are legitimate from the ceremony, and "always to have been". That is deliberate: it protects children born in the years between the ceremony and the registration.

With the familiar limit on property. The proviso provides that nothing in the section confers on such children any rights in or to the property of any person other than their parents, in a case where but for the Act they would have been incapable of possessing or acquiring such rights by reason of illegitimacy.

That is the same limitation as section 16(3) of the Hindu Marriage Act, in almost the same words, and it should be read with [Void and Voidable Marriages, and the Legitimacy of Their Children]. Legitimacy is given fully; property rights are confined to the parents.

Chapter II and Chapter III compared

A worked example

Ramesh and Sara married by a religious ceremony in 2015 and have lived together since. They now wish their marriage to be governed by the Special Marriage Act. Both are over twenty-one and have lived in the same district for two months.

Which Chapter applies? Chapter III. It converts an existing marriage; it does not create one.

What must they satisfy? Section 15, six conditions: a ceremony of marriage has been performed between them and they have been living together as husband and wife ever since; neither has at the time of registration more than one spouse living; neither is an idiot or a lunatic at that time; both have completed twenty-one years; they are not within the degrees of prohibited relationship, subject to the custom proviso; and both have been residing in the district of the Marriage Officer for thirty days immediately preceding.

Do they qualify? On these facts, yes.

What is the procedure? Section 16: an application signed by both; the Marriage Officer gives public notice, waits thirty days for objections, hears any objection, and, if satisfied, enters a certificate in the Fifth Schedule form, signed by the parties and three witnesses.

If he refuses? Section 17: an appeal to the district court within thirty days, whose decision is final.

What does registration do? Section 18: on the entry the marriage is deemed to be solemnized under this Act as from the date of registration, and children born after the date of the ceremony are deemed to be their legitimate children, whose legitimacy dates from the ceremony, subject to the same limit that they take only from their parents.

What does that cost them? The Chapter IV consequences follow, since the marriage is now under this Act. And on these facts section 21A does not save them, because Sara is not Hindu, Buddhist, Sikh or Jaina.

What it does NOT mean

Chapter III does not solemnize a marriage. It registers one already celebrated in another form.

It is not available immediately after the ceremony. The parties must have been living together as husband and wife ever since.

The age is not eighteen for the bride. Under section 15 both must have completed twenty-one.

One spouse living is not a bar. The condition is not more than one spouse living, which is a lower bar than section 4(a).

Registration does not date the marriage back. The marriage is deemed solemnized under this Act from the date of registration; only the children's legitimacy dates from the ceremony.

Refusal is not the end. An appeal lies to the district court within thirty days.

Quick revision

• What it does: converts a marriage already celebrated in another form into a marriage under this Act.
• s.15, six conditions: a ceremony has been performed and they have lived together as husband and wife ever since; not more than one spouse living; neither an idiot or a lunatic; both twenty-one; not within the prohibited degrees, subject to a notified custom; and thirty days' residence in the district by both.
• s.16, procedure: application signed by both; public notice; thirty days for objections; hearing; entry of a certificate in the Fifth Schedule form, signed by the parties and three witnesses.
• s.17: appeal against refusal to the district court within thirty days; the decision is final.
• s.18: on entry the marriage is deemed solemnized under this Act from the date of registration, and children born after the date of the ceremony are the parties' legitimate children, their legitimacy dating from the ceremony, subject to the limit that they take only from their parents.

Test yourself

1. What is Chapter III for? For the registration under the Act of a marriage already celebrated in some other form, so that it becomes a marriage under the Special Marriage Act.

2. State the conditions for such registration. A ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since; neither party has at the time of registration more than one spouse living; neither is an idiot or a lunatic at the time of registration; the parties have completed twenty-one years; they are not within the degrees of prohibited relationship, subject to the proviso about custom; and both have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the application.

3. What is the procedure and what remedy is there against refusal? An application signed by both parties, public notice by the Marriage Officer, thirty days for objections, an inquiry into any objection, and, if satisfied, entry of a certificate in the Fifth Schedule signed by the parties and three witnesses. Against a refusal, an appeal lies within thirty days to the district court, whose decision is final.

4. What is the effect of registration? The marriage is deemed to be solemnized under the Act as from the date of registration, and every child born after the date of the ceremony whose name is entered in the Marriage Certificate Book is deemed to be the legitimate child of the parties, the legitimacy dating from the ceremony, but such a child takes no rights in the property of any person other than the parents.