Registration Under Special Marriage Act

2012

CHANAKYA NATIONAL LAW UNIVERSITY PATNA

SUBMITTED TOWARDS THE FULFILLMENT OF THE PROJECT ON: REGISTRATION UNDER SPECIAL MARRIAGE ACT Submitted to: Mr. Shaiwal Satyarthi Faculty:-(Family Law-I) Submitted by: Tanya Raj 2nd year,3rdsem. Roll no.-632
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ACKNOWLEDGEMENT
This project has been made with the support of few people without acknowledging whom its incomplete. Firstly, I would like to thank my Family law teacher Mr. Shaiwal Satyarthi, who extended his help to me whenever asked to. Secondly, I would like to extend my thanks to my friends and room mates who were supportive throughout and helped me find my materials too. Last but not the least I would give my heartfelt thanks to my parents and God, without whom it would not have been possible to bring togrther all the resources and compile a project like this. Thanks to everybody for their help and humble support throughout, It was a great pleasure working on this project and I will look forward to such similar projects. Thanking You Taanya Raj C.N.L.U.

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TABLE OF CONTENTS

Chapter I. Introduction Chapter. II Marriage Registration Chapter.III Requirements & Conditions under Special Marriage Act Chapter.IV Registration under Special Marriage Act Chapter.V Conclusion

Bibliography

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Chapter I

INTRODUCTION
The main reason behind passing the Special Marriage Act, 1954 was to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party. The Act originated from a piece of legislation proposed during the late 19th century. In 1872 Act III, 1872 was enacted but later it was found inadequate for certain desired reforms, and Parliament enacted a new legislation. Henry Sumner Maine first introduced Act III of 1872, which would permit any dissenters to marry whomever they chose under a new civil marriage law. In the final wording, the law sought to legitimate marriages for those willing to renounce their profession of faith altogether ("I do not profess the Hindu, Christian, Jewish, etc. religion"). Overall, the response from local governments and administrators was that they were unanimously opposed to Maines Bill and believed the legislation encouraged marriages based on lust, which would inevitably lead to immorality. The Special Marriage Act, 1954 replaced the old Act III, 1872. The new enactment has 3 major objectives: 1. To provide a special form of marriage in certain cases, 2. to provide for registration of certain marriages and, 3. to provide for divorce Importance of Registration of Marriages:- Registration of marriages in provides documentary proof that a marriage has been performed. Individuals are frequently faced with the need to prove that a particular marriage has been performed. For example, rights to inheritance, pension, insurance, or other benefits may depend upon official documentation of a marriage. The legal requirements for obtaining a marriage license and filing a certificate of marriage are set forth in each individual States statutes. Procedures for registering a marriage vary, depending on the marriage laws in that State. Each State has a procedure whereby a marriage license is issued by a specified local official and a record of the marriage filed with that official. In addition, in most
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States a record is filed with the State office of vital statistics for statistical purposes and for the issuance of certified copies. Central files of marriage records in State vital statistics offices facilitate the use of the records as proof that a marriage has been performed. Such proof of marital status is often required by a variety of governmental and private agencies. A search of county or other local records to obtain a transcript of a record of marriage is time consuming and costly, especially if the date and place of marriage are unknown. It is more efficient for the State vital statistics office to issue a certified copy of the record. Registration of marriages is a critical issue and will help :1) to prevent child marriages and to ensure minimum age of marriage 2) To prevent polygamy, unless the same is permitted under any law or custom 3) To ensure that prior wives get notice of intended marriage; 4) Enable the married women including the women married to NRI/ foreigners to claim her right to shelter and maintenance 5) Prevent the practice where men desert women after performing the marriage including act as a deterrent to the practice of selling daughters to any person including a foreigner, under the garb of marriage As there is no compulsion for registration of marriage, it is necessary that the Central Government should make a provision to register all the marriages that have taken place in their States/UTs or elsewhere. Hence all marriages, in whatever form they are performed should be registered to save women from harassment and hence the desirability to have such a law for registration of marriages. Non registration of marriage affect women the most. Women most prominently victims of bigamous relationships and property disputes face enormous hardship in establishing their marriage as they have no proof of marriage. It has been seen in a number of cases of bigamy that the wives are losing their cases by reason of their failure to prove the first or second marriage of their husbands. The Central Government has made it mandatory for all States to make

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compulsory birth registration and also asked to legislate for compulsory registration of marriages. Marriage means and includes all marriages solemnized or contracted between a male and a female, irrespective of the religion or caste of either party to the marriage, and also includes marriages performed as per law, custom, practice or any tradition of either party to the marriage and includes a remarriage. b) local authority means Gram Panchayat or Municipality or Municipal Corporation as the case may be c) Government means in case of State or Union Territory, Government of that State, or Union Territory and in other cases, the Central Government. d) Memorandum means Memorandum of Marriage mentioned in Section 13. e) Register means a register of marriages maintained under this Act. f) Schedule means the Schedule to this Act. g) State Government shall include Administrator of a Union Territory. 4. Application of other laws not barred- save as otherwise provided, the provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force , except to the extent the provisions of other laws are inconsistent with any provisions of this Act.

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RESEARCH METHODOLOGY
Doctrinal research is concerned with the formulation of legal doctrines through the analysis of legal rules. Within the common law jurisdictions legal rules are to be found within statutes and cases (the sources of law) but it is important to appreciate that they cannot, in themselves, provide a complete statement of the law in any given situation. This can only be ascertained by applying the relevant legal rules to the particular facts of the situation under consideration. As will be discussed below in the section on methodology, deciding on which rules to apply in a particular situation is made easier by the existence of legal doctrines (e.g., the doctrine of consideration within the law of contract). These are systematic formulations of the law in particular contexts. They clarify ambiguities within rules, place them in a logical and coherent structure and describe their relationship to other rules. The methods of doctrinal research are characterized by the study of legal texts and, for this reason, it is often described colloquially as black-letter law. Non-doctrinal research, also known as socio-legal research is a legal research that employs methods taken from other disciplines to generate empirical data to answer research questions. It can be a problem, policy or law reform based. Non-doctrinal legal research can be qualitative or quantitative. Non-doctrinal approach allows the researcher to perform inter disciplinary research where he analyses law from the perspective of other sciences and employs these sciences in the formulation of the law. Non-doctrinal legal research uses empirical data, it provides vital insights into the law in context, i.e. how the law works in the real world. Empirical legal research is valuable in revealing and explaining the practices and procedures of legal, regulatory, redress and dispute resolution system.

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Chapter II

MARRIAGE REGISTRATION

1. Any person, irrespective of religion. 2. Hindus, Buddhists, Jains, Sikhs can also perform marriage under the Special Marriage Act, 1954. 3. The Muslim, Christian, Parsi, or Jewish religions can also perform marriage under the Special Marriage Act, 1954. 4. Inter-caste marriages are performed under this Act. 5. This Act is applicable to the entire territory of India (excluding the states of Jammu and Kashmir) and extends to intending spouses who are both Indian nationals living abroad1. MARRIAGE REGISTRATION: Marriage Registration Certificate is issued to both Husband and Wife whose marriage has already been solemnized. The Registration is done under Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. The Hindu Marriage Act is applicable in cases where both husband and wife are Hindus, Buddhists, Jains or Sikhs or where they have converted into any of these religions2. Where either of the husband or wife or both are not Hindus, Buddhists, Jains or Sikhs the marriage is registered under the Special Marriage Act, 1954. Further, marriage can be solemnized between any two persons under the provisions of the Special Marriage Act, 1954. Registration of Marriages which have already been solemnized. Degree of Prohibited relationship as per the Hindu Marriage Act, 1955 Degrees of Prohibited relationship as per the Special Marriage Act, 1954 The First Schedule [Degree of Prohibited Relationship]
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DOCUMENTS REQUIERED FOR REGISTRATATION: Form-1 Application Form with Rs. 10/- Court Fee (will be provided in the court). Application form completed in all respect and signed by both Husband & Wife. Proof of residence (Voter I-card, Ration card, BPL card, Passport, Driving License, Domicile Certificate)3. Six Affidavits- 1/ Bride 2/ Bridegroom 3/ Father or Mother (bride) 4/ Father or Mother (bridegroom) 5/ Relative or Friend (bride) 6/ Relative or Friend (bridegroom). Affidavit should be attested by Executive Magistrate. (The address should be same as in the ID and affidavit). One passport size photo and Photo ID Proof attested of each individual mentioned above. Date of birth proofs of both husband and wife (Any One of the following)- (Birth Certificate, Medical certificate indicating age, School Certificate, Passport of Bride and Bridegroom, self affidavit regarding age, only in case birth/school certificate is not available)4 Recent two passport size photograph of Husband and recent two Passport Size Photograph of Wife and 3 wedding photo post card size clearly depicting marriage of bride & bride groom. Marriage invitation card if available. Original copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower. In case one of the parties belong to other than Hindu Buddhist, Jain and Sikh religions, a conversion certificate from the priest who solemnized the marriage ( in case of Hindu Marriage Act).

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In case applicant is a foreign national, a NO Objection Certificate in original from the concerned High Commission to be submitted along with the application form. If marriage was solemnized in a religious place or priest, a certificate from the priest is required who solemnized the marriage5. REGISTRATION FEE: Payment of Rs. 100/- (within 90 days from the date of marriage), Rs.250/- (after 90 days but within 365 days and permission of District Registrar/SDM), Rs. 300/- above 365 days and permission from Chief Registrar, Chandigarh Headquarter. No need of permission if marriage is before 11 April, 20086. WHERE TO APPLY: can approach to the CITIZEN FACILITATION CENTER, MUNICIPAL

CORPORATATION GURGAON during 7:00 AM to 7:00 PM, 7 days a week except national holidays. can also APPLY ONLINE, www.mcg.gov.in RESPONSE TIME: Marriage Registration certificate is issued within __ days. 1.Degree of Prohibition as per Hindu Marriage Act 1955. "Sapinda relationship" with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation; two persons are said to "sapindas" of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;

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"degrees of prohibited relationship" two persons are said to be within the "degrees of prohibited relationship" if one is a lineal ascendant of the other if one was the wife or husband of a lineal ascendant or descendant of the other if one was the wife of the brother or the fathers or mothers brother or of the grandfathers or grandmothers brother of the other if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters

Effect of Registration.The validity of a marriage registered under this Act pursuant to a memorandum having been filed by the parties to the marriage, shall not be called into question solely on the ground that the marriage was performed or not performed in a particular manner or that the ceremony was defective or was not in accordance with law7.

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Chapter III

REQUIREMENTS AND CONDITION UNDER THE SPECIAL MARRIAGE ACT, 1954

1. The marriage performed under the Special Marriage Act, 1954 is a civil contract and accordingly, there need be no rites or ceremonial requirements. 2. The parties have to file a Notice of Intended Marriage in the specified form to the Marriage Registrar of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given8. 3. After the expiration of thirty days from the date on which notice of an intended marriage has been published, the marriage may be solemnized, unless it has been objected to by any person. 4. The marriage may be solemnized at the specified Marriage Office. 5. Marriage is not binding on the parties unless each party states "I, (A), take thee (B), to be my lawful wife (or husband)," in the presence of the Marriage Officer and three witnesses9.

CONDITIONS
1. Each party involved should have no other subsisting valid marriage. In other words, each party should be monogamous. 2. The bridegroom must be at least 21 years old; the bride must be at least 18 years old. 3. The parties should be competent in regards to their mental capacity to the extent that they are able to give valid consent for the marriage. 4. The parties should not fall within the degree of prohibited relationship10
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The new Special Marriage Act 1954 also combines solemnization and registration of civil marriages into the same transaction. It enables the State governments to appoint one or more Marriage Officers for its purposes for various administrative units. The Act does not apply in the State of Jammu and Kashmir but provides for the appointment of Marriage Officers there for the people domiciled outside but living within the State (Section 3). The procedure for civil marriages under this Act is more or less the same as under the first Special Marriage Act of 1872 beginning with a notice of an intended marriage to be given in the prescribed form to the Marriage Officer of the district in which at least one party has lived for at least 30 days (Section 5) and ending with its solemnization in his presence (Sections 11-12). The provision of the old Act of 1872 for a Marriage Certificate Book to be maintained by the Marriage Officers is retained in the new Act which also provides that the marriage certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and all formalities respecting the signatures of witnesses have been complied with. (Section 13) By a new provision not found in the old Special Marriage Act of 1872 the 12 new Special Marriage Act of 1954 provides the facility of converting an existing religious marriage into a civil marriage by its registration under its provisions (Section 15). The procedure for this is the same as for marriages to be originally solemnized under the Act, including the issuance of a marriage certificate. The provision for periodical transmission of marriage records by all Marriage Officers to the Registrar-General of Births, Deaths and Marriages is retained in the new Act, periodicity and forms for which are to be prescribed by the State governments under the Rules to be framed for carrying out purposes of the Act (Sections 48-50).

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Chapter IV

REGISTRATION OF MARRIAGES UNDER THE SPECIAL MARRIAGE ACT

INDIAN law concerning matrimonial relief in respect of Christian marriages is contained in the Indian Divorce Act of 1869a statute more than a century old and hopelessly outdated. Based on English matrimonial law of the time, the Divorce Act has remained unchanged for nearly 120 years, while English matrimonial law has undergone many changes. The shortcomings of the Divorce Act were recently dramatically high-lighted in a tragic case which reached the Supreme Court, Ms Jorden Diengdeh versus S. S. Chopra (AIR 1985 SC 935). The wife, a Presbyterian Christian, and the husband, a Sikh, were married in 1975 under the Christian Marriage Act, 1872. The marriage proved unsuccessful and in 1980 the wife petitioned for a declaration of nullity or, alternatively, a decree of judicial separation11. The prayer for a declaration of nullity was refused, but a decree of judicial separation was granted on the ground of cruelty. This decision, upheld by the divisional bench of the high court, means that the parties are bound to each other in wedlock, although under no obligation to live together12. The marriage has clearly ceased to exist except in name; yet the spouses remain tied to each other, neither one free to remarry and to make a new life. Why, it might be asked, did not the wife petition for divorce ? To answer this question it is necessary to consider the terms of the Indian Divorce Act. The Indian Divorce Act of 1869 was framed at a time when marriage was regarded as a union for life, dissolvable judicially only in the most extreme circumstancesand the circumstances had to be more extreme if the wife were the petitioner than if the husband were the petitioner. Adultery is virtually the sole ground which the 1869 Act recognizes for divorce: a single act of adultery on the part of the wife entitles the husband to divorce, but the wife has to prove some aggravated form of adultery, like incestuous adultery, bigamy with adultery, adultery coupled with cruelty, or adultery coupled with desertion for at least two years13. In the course of its decision, the Supreme Court reviewed the grounds for divorce available to Christians under the Indian Divorce Act 1869, the Parsi Marriage and Divorce Act 1936, the Dissolution of Muslim Marriages Act 1939, the Special Marriage Act 1954, and the Hindu Marriage Act 1955. In its discussion of the divorce provisions of the various statutes it considered, the Supreme Court failed to stress the very important provision contained in the Special Marriage Act 1954 for registration of marriages celebrated under one or other of the religious laws. Indeed, the Supreme Court stated that the provisions of the Special Marriage Act
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applied only to marriages; solemnized under that Act. It did not clarify that the provisions of the Special Marriage Act apply also to marriages validly solemnized under any other law and subsequently registered under the Special Marriage Act. Any marriage already solemnized under any other lawprovided that the parties are adult and sane, that neither has another spouse living, and that the parties are not related within the specified prohibited degrees, may be registered under the Special Marriage Act. After such registration, the matrimonial relief provisions of the Special Marriage Act will apply to the marriage, ousting the provisions of the religious law under which the marriage was originally celebrated. This means, for instance, that even though the parties may both be Muslims and their marriage originally solemnized according to Muslim rites, after registration of the marriage the marriage is monogamous (any second marriage by the husband would be void) and is capable of dissolution only by a decree of the court (a talaq pronounced by the husband would have no legal effect). One major problem is that marriages between first cousins, common among Muslims and valid in Muslim law, cannot be registered under the Special Marriage Act because they contravene the specified prohibited degrees. A special exception is, however, made for marriages solemnized before 1956 when the Special Marriage Act came into force14. If the Christian marriage in the case before the Supreme Court had been so registered, divorce would have been obtainable on the ground that the parties had been living apart for at least one year and had mutually agreed that? The marriage should be dissolved; or on the ground that there had been no resumption of cohabitation between the spouses for a period of one year after the passing of a decree for judicial separation. Divorce would also have been obtainable on the ground of cruelty, a ground which under the Divorce Act only entitles a spouse to judicial separation and which was the very ground on which Ms Diengdeh had obtained her decree of judicial separation. At least one of these grounds would have offered a way out of the present impasse. Instead, since the Diengdeh Chopra marriage had not been registered under the Special Marriage Act, the archaic Divorce Act applies to the marriage. It is probably too late for the unhappy Diengdeh Chopra couple to take advantage of the opportunity the Special Marriage Act affords for registration of marriage. In order to register a marriage, the spouses have to affirm not only that a ceremony of marriage has been performed between them but also that they have been living together as husband and wife ever since. The present parties have clearly not been living together as husband and wife, but have been separated for some time, eventually under a decree of judicial separation. On the joyous occasion of the celebration of a marriage and during the happy years of married bliss, questions of divorce and matrimonial relief are far from the mind of a young bride or wife. By the time problems arise it may be too late, as it is apparently too late for the Diengdeh Chopra couple15. The relatives of the bride, her colleagues and friends, must remind her that the it cant happen to me philosophy has too often proved tragically

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wrong. Marry according to whatever rites one may prefer, but register that marriage under the Special Marriage Act ! It might also incidentally be noted that for reasons identical to those urged above for spouses marrying in India, Indians who marry abroad according to religious rites, regardless of whether their spouse is an Indian or a foreigner, should register their marriage under the Foreign Marriage Act 1969. Such registration will ensure that the matrimonial relief provisions of the Special Marriage Act apply to the foreign marriage16.

OFFENCES and PENALTIES

Penalty for destroying or altering Register.- Any person destroying, tampering with or dishonestly or fraudulently altering the register or any part thereof shall be punished with imprisonment for a term which may extend to five years and/or fine of Rs. Five Thousand. Penalty for neglecting to comply with provisions of section 13.- Any person who willfully omits or neglects to submit to the Registrar, the Memorandum as required by section 13, shall be punished with a fine of Rs. Five Hundred. Penalty for making false statements in the Memorandum.- Any person who makes or verifies any statement in such Memorandum which is false in any material particular and which he or she knows or has reason to believe to be false, shall be punished with simple imprisonment for two months and /or fine which may extend to Rs. Five Thousand17. Operation of other penal laws.- Punishment for any offence under this Act shall be in addition to the punishment provided for the offence by other Penal laws.

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Chapter V

CONCLUSION
Registration of marriages in provides documentary proof that a marriage has been performed. Individuals are frequently faced with the need to prove that a particular marriage has been performed. Marriage means and includes all marriages solemnized or contracted between a male and a female, irrespective of the religion or caste of either party to the marriage, and also includes marriages performed as per law, custom, practice or any tradition of either party to the marriage and includes a remarriage. Marriage Registration Certificate is issued to both Husband and Wife whose marriage has already been solemnized. The Registration is done under Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. Where either of the husband or wife or both are not Hindus, Buddhists, Jains or Sikhs the marriage is registered under the Special Marriage Act, 1954. The validity of a marriage registered under this Act pursuant to a memorandum having been filed by the parties to the marriage, shall not be called into question solely on the ground that the marriage was performed or not performed in a particular manner or that the ceremony was defective or was not in accordance with law. I recently had occasion to advise an Indian Muslim couple who had three daughters and no son. They wanted their property to be inherited by their daughters but, under the Muslim law, a considerable part of the property would go to a distant male relative. They brought up the subject of the Special Marriage Act and said that unfortunately it was enacted a couple of years after they had married and that if it had been available at the time, they would have married under it but it was now too late. They were quite surprised when I said that it was not too late, even now, even though they had been married for more than 30 years. When I explained that they could now register their marriage under the Special Marriage Act and take advantage of its provisions, they were amazed and delighted to find such a simple solution to a problem that had been causing them considerable concern. Or, if the spouses are Christians or had married under the Christian Marriage Act, the law of divorce applicable to the marriage would not be the Divorce Act of 1869, but the divorce provisions of the Special Marriage Act. Many Christians or Muslims or Parsis may prefer a religious ceremony of marriage to a civil ceremony. However, it is perfectly possible and relatively simple to register a marriage solemnized according to such religious rites under the Special Marriage Act.

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BIBLIOGRAPHY

Websites Referred: india.gov.in www.legalserviceindia.com/helpline/marriage_reg.htm www.vakilbabu.com/advice/CommonProb/Marry dcsouthwest.delhigovt.nic.in/marriages.htm delhi.gov.in/wps/wcm/.../marriage+certificate+and+registration lawcommissionofindia.nic.in/reports/report211.pdf

Books Referred: Modern Indian Family Law by Werner Menski Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India by Gopika Solanki Special Marriage Act, 1954 by EBC Hindu marriage act, 1955 and Special marriage act, 1954, March, 1974 by Law Commission of India

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