The Special Marriage Act: Scheme and Conditions

(c) The male has completed the age of twenty-one years and the female the age of eighteen years.

(d) The parties are not within the degrees of prohibited relationship, with a proviso: where a custom governing at least one of the parties permits a marriage between them, the marriage may be solemnized notwithstanding that they are within the prohibited degrees.

(e) Where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which the Act extends.

The three differences from section 5 of the Hindu Marriage Act

This is the comparison MU wants, and it is short.

Religion is irrelevant. Section 5 of the Hindu Marriage Act opens with "between any two Hindus". Section 4 here opens with "between any two persons", and the opening words override any other law on solemnization. A Hindu may marry a Muslim, a Christian a Parsi, or two people of no religion at all, under this Act.

There is no sapinda condition. The Hindu Marriage Act has two relationship bars, prohibited degrees in section 5(iv) and sapindas in section 5(v). This Act has one. What survives is the prohibited degrees, and they are set out not by a definition in the body of the Act but in the First Schedule, Part I listing the relations a man may not marry and Part II those a woman may not.

Custom is defined much more narrowly. Under section 3(a) of the Hindu Marriage Act any rule satisfying the ordinary tests of a custom may be proved in court. Under the Explanation to section 4 of this Act, "custom" means a rule which the State Government has notified in the Official Gazette as applicable to the members of a tribe, community, group or family; and no such notification may be issued unless the State Government is satisfied that the rule has been continuously and uniformly observed for a long time among those members, that it is certain and not unreasonable or opposed to public policy, and that a family rule has not been discontinued by the family.

Read that carefully, because it is the sharpest difference in the chapter. Under the Hindu Marriage Act a custom is proved to a court. Under the Special Marriage Act it is notified by a government, and if there is no notification there is no custom to rely on however ancient the practice. And it is enough that the custom governs at least one of the parties, where the Hindu Marriage Act requires it to govern each of them.

The definitions in section 2

Section 2(b) defines the degrees of prohibited relationship by reference to the First Schedule.

Explanation I provides that relationship includes relationship by half or uterine blood as well as full blood, illegitimate blood relationship as well as legitimate, and relationship by adoption as well as by blood. That is the same rule as the Explanation to section 3 of the Hindu Marriage Act.

Explanations II, III and IV define full blood, half blood and uterine blood in the same words as section 3(c) and 3(d) of the Hindu Marriage Act, and provide that "ancestor" includes the father and "ancestress" the mother.

Section 2(d) defines a Marriage Officer's district. Section 2(e), substituted in 1976, defines district court in the same way as the Hindu Marriage Act does: the city civil court where there is one, otherwise the principal civil court of original jurisdiction, and any other civil court the State Government notifies.

The two Acts side by side

What the choice of Act actually costs

A couple who could marry under either should understand what changes, and the reader should be able to say it in a sentence each.

A thirty-day wait and a public notice. Under the Hindu Marriage Act a marriage may be solemnized the same day. Under this Act notice must be given, published and left open to objection for thirty days. That is the next chapter.

Severance from the joint family. By section 19, a Hindu who marries under this Act is severed from his undivided family, subject to the important exception in section 21A. That is [The Effect on the Joint Family and on Succession].

A different law of succession. By section 21, succession to the property of parties married under this Act is governed by the Indian Succession Act 1925 rather than by the Hindu Succession Act, again subject to section 21A.

None of those is obvious to a couple standing in front of a Marriage Officer, and the third has caught out many families.

A worked example

Farhan, a Muslim, and Priya, a Hindu, wish to marry without either converting. Both are twenty-four. Priya is a coparcener in her father's joint family. Priya's father says the marriage cannot be lawful.

Can they marry? Yes. The Special Marriage Act 1954 is open to any two persons, whatever their religion, and the opening words of section 4 are "notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages".

What must they satisfy? Section 4, four conditions: (a) neither has a spouse living; (b) neither is incapable of giving a valid consent through unsoundness of mind, nor suffering from a mental disorder of a kind or extent unfitting for marriage and the procreation of children, nor subject to recurrent attacks of insanity; (c) the male has completed twenty-one and the female eighteen; (d) they are not within the degrees of prohibited relationship in the First Schedule.

Is there a sapinda bar? No. The Hindu Marriage Act has one; this Act does not.

Can a custom save a prohibited-degree marriage? Yes, but narrowly: the proviso allows it where a custom governing at least one of the parties permits it, and the custom must be one the State Government has notified.

Who solemnizes it? A Marriage Officer, appointed by the State Government under section 3 for the whole or part of the State; for a territory outside India, a diplomatic or consular officer of India.

What does Priya lose? Section 19: a Hindu, Buddhist, Sikh or Jain member of an undivided family who marries under the Act is deemed to be severed from that family. And section 21 moves succession to her property to the Indian Succession Act 1925. Both are taken in [The Effect on the Joint Family and on Succession].

Is that always so? No. Section 21A disapplies sections 19 and 21 where both parties profess the Hindu, Buddhist, Sikh or Jaina religion. Here they do not, so section 19 bites.

And the practical price? A thirty-day public notice, taken in the next chapter.

What it does NOT mean

The Act is not for inter-faith couples only. It is open to any two persons, including two Hindus.

It does not require anybody to convert or to renounce religion.

There is no sapinda condition. Only the prohibited degrees of the First Schedule.

Custom does not save every prohibited-degree marriage. It must be a custom notified by the State Government, and it need govern only one of the parties.

Section 4's age condition is not the same in effect as the Hindu Act's. Breach here makes the marriage void under section 24; under the Hindu Act it does not.

A Marriage Officer is not a registrar of any marriage. He is appointed under section 3 for the purposes of this Act.

Quick revision

• What it is for: a secular law of marriage, open to any two persons whatever their religion, overriding any other law relating to solemnization.
• s.3: the State Government appoints Marriage Officers for the whole or part of the State; abroad, a diplomatic or consular officer.
• s.4, four conditions: (a) neither party has a spouse living; (b) neither is incapable of consent, nor suffering from a mental disorder unfitting for marriage and procreation, nor subject to recurrent attacks of insanity; (c) the male has completed twenty-one, the female eighteen; (d) they are not within the degrees of prohibited relationship in the First Schedule, unless a custom notified by the State Government and governing at least one of them permits it.
• No sapinda bar under this Act.
• The price: a thirty-day public notice; severance from the joint family under s.19; and succession under the Indian Succession Act 1925 under s.21, both disapplied by s.21A where both parties are Hindu, Buddhist, Sikh or Jaina.

Test yourself

1. Who may marry under the Special Marriage Act? Any two persons, whatever their religion, provided the conditions in section 4 are satisfied. Neither party need change religion.

2. State the conditions of a valid marriage under the Act. Neither party has a spouse living; neither is incapable of giving a valid consent in consequence of unsoundness of mind, or though capable has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children, or has been subject to recurrent attacks of insanity; the male has completed twenty-one years and the female eighteen; and the parties are not within the degrees of prohibited relationship in the First Schedule, unless a custom governing at least one of them permits the marriage.

3. Is there a sapinda bar under this Act? No. The Act has only the degrees of prohibited relationship set out in the First Schedule.

4. Who solemnizes a marriage under the Act? A Marriage Officer appointed by the State Government under section 3 for the whole or any part of the State, and, for territories outside India, a diplomatic or consular officer of India appointed as a Marriage Officer.