Notice, Objection and Solemnisation

Note the limits, because a well-informed answer states them. The only permissible ground of objection is that the marriage would contravene section 4: a spouse living, mental capacity, age, prohibited degrees. Disapproval, difference of religion, family opposition and caste are not grounds, and an objection on any of them is bad on its face. But the objection still has to be made, recorded and inquired into, and that takes time.

Section 8: what happens on an objection

Section 8(1) provides that if an objection is made, the Marriage Officer shall not solemnize the marriage until he has inquired into the matter and is satisfied either that it ought not to prevent the solemnization or that the objection is withdrawn; but he shall not take more than thirty days from the date of the objection to inquire and decide.

Section 8(2) provides that if the Marriage Officer upholds the objection and refuses to solemnize, either party may within thirty days of the refusal 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.

So the outer timetable of a contested marriage under this Act is: thirty days' residence, notice, thirty days' publication, up to thirty days' inquiry, and then an appeal to the district court with a further thirty days to file it.

Section 9: the Marriage Officer's powers of inquiry

For an inquiry under section 8 the Marriage Officer has all the powers of a civil court under the Code of Civil Procedure 1908 when trying a suit, in respect of:

• summoning and enforcing the attendance of witnesses and examining them on oath;
• discovery and inspection;
• compelling the production of documents;
• reception of evidence on affidavit; and
• issuing commissions for the examination of witnesses.

Any proceeding before the Marriage Officer is deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code, which is the perjury provision, now carried forward by the Bharatiya Nyaya Sanhita. The Explanation provides that for enforcing attendance the local limits of the officer's jurisdiction are the limits of his district.

That is a substantial power to give an administrative officer, and it is worth noticing: a person objecting to a marriage can be summoned, put on oath and examined.

Section 10: an objection before a Marriage Officer in Jammu and Kashmir

Where an objection is made to a Marriage Officer in respect of an intended marriage in the State of Jammu and Kashmir, and the officer, after such inquiry as he thinks fit, entertains a doubt, he shall not solemnize the marriage but shall transmit the record to the Central Government with a statement, and the Central Government, after such inquiry and advice as it thinks fit, shall give its decision in writing, with which the officer must comply.

Sections 11 and 12: the declaration and the solemnisation

Section 11. 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, and the declaration shall be countersigned by the Marriage Officer.

Section 12(1). The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance as the parties desire, on such conditions and payment of such additional fees as may be prescribed.

Section 12(2). The marriage may be solemnized in any form which the parties may choose to adopt, with a proviso that it shall not be complete and binding 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, the words: I take the other to be my lawful wife or husband.

That proviso is the whole ceremony the Act requires, and it repays comparison with section 7 of the Hindu Marriage Act.

Under the Hindu Marriage Act the ceremony is whatever the custom of either party provides, and where saptapadi applies the marriage is complete at the seventh step.

Under this Act the parties may adopt any form they like, religious or not, but nothing they do makes the marriage complete except the words of taking, said aloud, in front of the officer and three witnesses, in a language they understand.

So a couple may go through a religious ceremony and then say the words, or may say nothing else at all. The Act does not object to religion; it simply refuses to let religion do the constitutive work.

Section 13: the certificate

Section 13(1) requires the Marriage Officer, when the marriage has been solemnized, to enter a certificate in the form specified in the Fourth Schedule in the Marriage Certificate Book, signed by the parties and the three witnesses.

Section 13(2) provides that on the certificate being entered, it 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.

"Conclusive evidence" is the phrase to notice, and it is the sharpest contrast with the Hindu Marriage Act. There, section 8(5) says registration does not affect validity at all. Here, the certificate is conclusive that the marriage happened and that the formalities were observed. A marriage under this Act is proved by producing the certificate, and that is the end of it.

Section 14: lapse of the notice

Section 14 provides that where a marriage is not solemnized within three calendar months of the date the notice was given under section 5, or, where an appeal was filed under section 8(2), within three months of the district court's decision, or, where a record was transmitted under section 10, within three months of the Central Government's decision, the notice and all proceedings arising from it shall be deemed to have lapsed, and no Marriage Officer may solemnize the marriage until a new notice has been given.

Three months from notice, or from the decision on appeal, and then the whole procedure starts again.

The argument about the notice provisions

MU can ask why the Special Marriage Act is criticised, and the argument should be stated fairly and from the sections.

The case against. Sections 5, 6 and 7 require a couple's intention to marry to be published, in a book anyone may inspect free of charge, in a conspicuous place in a public office, and in the district where either of them permanently lives, and to remain open to objection by any person for thirty days. For a couple marrying across religion or caste against their families' wishes, that publication is not a formality; it tells the very people most likely to prevent the marriage exactly where and when it is to happen. The couple who most need a secular law are the couple the procedure exposes.

The case for. The notice is what makes the Marriage Officer's inquiry possible, and the inquiry is what enforces the conditions in section 4. A marriage under this Act is proved conclusively by the certificate under section 13, and the price of a conclusive certificate is a procedure that lets an existing spouse, or a parent of an underage party, be heard first.

What the law is. The provisions stand. Their constitutional validity has been challenged, and this book does not state the outcome of any such challenge because no judgment on it has been read for this book. What a student can safely say is what the sections require, why they are criticised, and that the criticism is directed at the publication in sections 6 and 7 rather than at the Act as a whole.

A worked example

Arjun and Mariam give notice on 1 June to the Marriage Officer of the district where Arjun has lived for six weeks. On 20 June Mariam's father objects that she is already married. On 25 June the Marriage Officer, satisfied that the objection is baseless, offers to marry them at once.

Was the notice properly given? Section 5: notice in the form of the Second Schedule, to the Marriage Officer of a district in which at least one of the parties has resided for not less than thirty days immediately preceding. Arjun's six weeks satisfy it.

Who could see the notice? Section 6: it is entered in the Marriage Notice Book, which any person may inspect free of charge, and a copy is affixed in a conspicuous place in the office.

Was the objection in time and on a proper ground? Section 7: any person may object within thirty days of the publication, but only that the marriage would contravene one or more of the conditions in section 4. A subsisting marriage is a breach of section 4(a), so both requirements are met.

What must the officer do? Section 8: he shall not solemnize until he has inquired into the objection and satisfied himself that it does not prevent solemnization, and he must decide within thirty days. For that inquiry section 9 gives him the powers of a civil court, and he may award costs up to one thousand rupees against a frivolous objector.

And if he had upheld it? An appeal to the district court within thirty days, whose decision is final.

Can he marry them on 25 June? No. Section 46 makes it an offence for a Marriage Officer knowingly and wilfully to solemnize a marriage before the expiry of thirty days from publication of the notice, punishable with one year or five hundred rupees or both. The earliest date is 1 July.

What happens on the day? Section 11: the parties and three witnesses sign a declaration. Section 12: the marriage may be in any form, but is not complete until each says, before the officer and the three witnesses and in a language they understand, that they take the other to be their lawful wife or husband. Section 13: the officer enters a certificate, which is conclusive evidence.

Suppose they postponed to October. Section 14: if the marriage is not solemnized within three months of the notice, the notice and all proceedings on it lapse, and a fresh notice is required.

What it does NOT mean

The notice is not private. It goes into the Marriage Notice Book, which any person may inspect free of charge, and a copy is affixed in a conspicuous place.

An objection is not open on any ground. It may be made only that the marriage would contravene one or more of the conditions in section 4.

The Marriage Officer is not free to take his time. He must inquire and decide within thirty days.

His decision is not final. An appeal lies to the district court within thirty days, and that court's decision is final.

The marriage need not be in any particular form. It may be solemnized in any form the parties choose, but it is not complete until each says, in the officer's presence and before three witnesses, in a language they understand, that they take the other to be their lawful wife or husband.

The certificate is not merely a record. It is conclusive evidence of the marriage.

A notice does not last indefinitely. If the marriage is not solemnized within three months, the notice and all proceedings on it lapse, and a fresh notice is required.

Quick revision

• s.5: a notice in writing in the form of the Second Schedule, given to the Marriage Officer of a district in which at least one party has resided for thirty days immediately before.
• s.6: the notice is entered in the Marriage Notice Book, open to inspection free of charge, and a copy is affixed in a conspicuous place; where neither party is permanently resident there, a copy goes to the Marriage Officer of that district for publication.
• s.7: any person may object within thirty days, but only that the marriage would contravene s.4.
• s.8: on an objection the Marriage Officer must inquire and decide within thirty days; if he upholds it he shall not solemnize, and an appeal lies to the district court within thirty days, whose decision is final.
• s.9: for the inquiry he has the powers of a civil court, may examine on oath, and may award costs up to one thousand rupees against a frivolous objector.
• ss.11 and 12: the parties and three witnesses sign a declaration in the Third Schedule before the officer; the marriage may be in any form, in the Marriage Officer's office or elsewhere at a reasonable distance, but is not complete until each party says to the other, in the presence of the officer and three witnesses and in any language understood by them, "I take thee to be my lawful wife (or husband)".
• s.13: the officer enters a certificate in the Marriage Certificate Book, signed by the parties and three witnesses; it is conclusive evidence. s.14: the notice lapses after three months.

Test yourself

1. What notice is required, and to whom is it given? A notice in writing in the form of the Second Schedule, given to the Marriage Officer of a district in which at least one of the parties has resided for a period of not less than thirty days immediately preceding the date of the notice.

2. Who may object, and on what ground? Any person may object, within thirty days of the publication of the notice, on the ground that the marriage would contravene one or more of the conditions specified in section 4.

3. What happens if an objection is made? The Marriage Officer shall not solemnize the marriage until he has inquired into the objection and satisfied himself that it does not prevent solemnization, or the objection is withdrawn. He must decide within thirty days, and has the powers of a civil court for the inquiry. If he upholds the objection, an appeal lies within thirty days to the district court, whose decision is final.

4. When is a marriage under the Act complete? When 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 take thee to be my lawful wife (or husband)". The marriage may otherwise be solemnized in any form the parties choose to adopt.