The Special Marriage Act, 1954, aims to provide for a special form of marriage, its registration and for divorce. A marriage between any two persons belonging to any religion or creed may be solemnised under this Act if at the time of the marriage the male has completed 21 years and the female 18 and provided the parties are not within the degrees of prohibited relationship.
One would imagine that the Special Marriage Act, being a secular Act, would have played a key role in liberating individuals from the traditional coercive requirements of marriage. Sadly, many of its provisions are inconsistent with its objectives. Despite knowing about the practical problems its working has exposed, Parliament has not shown any seriousness in addressing them through appropriate amendments.
Section 5 of the Special Marriage Act is the first hurdle to cross. It deals with the notice of intended marriage between two parties and requires that at least one of them must have resided in the district for a period of not less than 30 days immediately preceding the date on which such notice is given to the Marriage Officer of the district.
Section 6 requires the Marriage Officer to make copies of all notices open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same, and to publish every notice by affixing a copy at some conspicuous place in his office. If either of the parties to an intended marriage is not a permanent resident in the district in which the notice has been given, then the Marriage Officer of that district has to send the notice to the Marriage Officer of the district in which the parties may have permanent residence, and that officer, in turn, has to publicise it.
These provisions are open invitations to those who object to the marriage to harass the couple to be married and even force them to retract from their intended marriage. The beneficiaries of the Special Marriage Act have demanded that the provisions of a month’s gap be annulled, but their plea has not been heard so far.
On the contrary, some enthusiastic marriage officers have sent notices to the permanent addresses of the parties and sought verification of addresses through the Station House Officer who has jurisdiction although the same is not required under the Act. In 2009, the Delhi High Court, in Pranav Kumar Mishra vs Government of NCT of Delhi, held these practices to be in breach of the parties’ right to privacy.
Justice S. Ravindra Bhat observed in this case: “The Special Marriage Act was enacted to enable a special form of marriage for any Indian national professing different faiths or desiring a civil form of marriage. The unwarranted disclosure of matrimonial plans by two adults entitled to solemnise it may, in certain situations, jeopardise the marriage itself. In certain instances it may even endanger the life or limb of one or the other party due to parental interference. In such circumstances, if such a procedure is being adopted by the authorities, it is completely whimsical and without authority of law.”
Although Justice Ravindra Bhat made these observations in the context of the authorities sending notices to the residential addresses of the couple to be married, they are relevant to understand the mischief potential of the other provisions of the Act.
Section 7 enables any person, before the expiry of 30 days from the date on which such a notice has been published, to object to the marriage on the grounds that it will contravene one or more of the conditions specified in Section 4 (described below).
Section 8 requires the Marriage Officer to inquire into the objection and satisfy himself that it does not prevent the solemnisation of the marriage. If the objection is upheld within 30 days, either party to the intended marriage can appeal to the district court, whose decision shall be final.
The conditions specified in Section 4 are reasonable: that neither party has a spouse living; that neither is incapable of giving a valid consent to marriage in consequence of unsoundness of mind; that they have fulfilled the minimum age requirements for marriage; and that they are not within the degrees of prohibited relationship. Yet, the fact that similar conditions are not applicable to marriages held outside the purview of the Act makes one wonder whether they are just.
Section 19 is punitive in character. It says that the marriage solemnised under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion shall be deemed to effect his severance from such family.
The need for such a provision is inexplicable, especially when such severance could result in the deprivation of inheritance and other rights of the couple choosing to marry under this Act.