One of the most important institutions in any culture has always been marriage. The essence and significance of marriage has changed as times have changed. The institution of marriage was first established as a partnership between two people with a view to procreation and/or economic or political goals.

Marriage gradually gained increasing depth and significance over time, becoming the cornerstone of every faith and civilization. The foundations of marriage as an institution have changed from simple companionship to a symbiotic connection where two people develop jointly on a personal and professional level alongside their children.

The Need for Special Marriage Act, 1954

Despite the fact that there is diversity within the population in a nation like India where many cultures and religions co-exist, people tend to prefer such associations within their own faith and religion. Inter-faith or inter-religious marriage have been derided and ridiculed. The people in their community continue to oppress anyone who chooses to marry outside of their own religion or faith.

The Special Marriage Act of 1954 was established to safeguard weddings between people of different faiths and religions. The primary goals of the legislation were to make it easier to legally recognise and record special weddings and to establish provisions for divorce in these types of unions.

The Act applies and extends to the entirety of India, including the State of Jammu and Kashmir, and permits inter-faith or inter-religious marriages for all Indian citizens. This law guarantees a person the freedom to practise his or her own religion and not convert to a different one in order to wed someone who practises a different faith or philosophy.

Prerequisites for marriage solemnization under the SMA of 1954

Section 4 of The Special Marriage Act of 1954 precisely lays down the requirements that must be met in order to solemnise a marriage. These requirements are as follows:

1. Neither party should be married to a spouse who has another spouse alive.
    
2. Neither party should be unable to freely consent to the marriage and should not be prevented from doing so due to insanity. Additionally, even if both partners willingly consent at the moment of marriage, neither one of them should have a mental illness that would preclude them from supporting the union or from having children. Additionally, none of the partners should be experiencing recurrent episodes of insanity at the time of marriage.
    
3. The female should have reached the age of 18 and the male should have reached the age of 21, respectively, at the time of marriage.
    
4. Neither party may be involved in any of the prohibited relationships listed in Schedule I of the Special Marriage Act of 1954. Section 2(b) of the Act provides a definition of prohibited relationships. (However, such marriage may be solemnised under this Act if the customs of at least one of the parties are such that permit them to get married despite the fact that they fall within the range of forbidden partnerships.)

If all of these requirements are satisfied, a couple may legally wed under this Act without worrying about their beliefs, practises, or traditions because this Act safeguards their union and grants them the freedom to choose their spouse. Apart from the aforementioned requirements, being married and getting it recorded only requires the parties' willingness; there is no need to go through the trouble of conducting customs and ceremonies, which are otherwise crucial to personal laws.

The following documents would be needed by the marriage officer at the time of their marriage's registration:

• A marriage application that has been properly signed by both parties.
• Proof of residence of both the parties to the marriage.
• Birth certificates, matriculation certificates, passports, or other documents attesting to the parties' ages.
• The district cashier must receive Rs. 150, and the application form must be accompanied by a receipt.
• Two passport-size photos of each party to the marriage and one marriage photo of the pair if the union has previously been solemnised.
• In the event that the couple wed in a religious setting, a certificate from the institution proving the marriage's solemnization.
• If the parties have previously solemnised their marriage, a wedding invitation proving the marriage's solemnization.
• A declaration from each party saying that they do not fit within the parameters of prohibited relationships.
• If either or both of the parties to the marriage were previously divorced under the Special Marriage Act of 1954, a copy of the divorce decree must be submitted with the application.
• A death certificate must be submitted with the application if either of the parties to the marriage is a widow or widower.
• The application form must be submitted with an affidavit that details the wedding's date, time, and location as well as the couple's marital status and nationalities.'
• Two witnesses from each of the parties to the marriage must be present when the parties meet at the sub-registrar's office.
• Two witnesses from each of the parties to the marriage must attend the meeting at the sub-office registrar's if the marriage has already been solemnised.

Procedure to solemnize the marriage

Sections 5 to Section 14 of the Act set down the steps to solemnise the marriage.

Issuance of mandatory notice

According to Section 5, the parties must send a written notification to the marriage officer of the district where at least one of them has lived for at least 30 days as of the notice's issuing.

Record of the notice and it's publication

According to Section 6, the Marriage Officer must keep a record of all notices in the Marriage Notice Book, where a true copy of each notice must be entered, and he must make the book available for anybody who requests to view it. According to this section, the marriage officer must also post a copy of the notice in a prominent location in his office.

If the parties issuing the notice do not live in the marriage officer's district, the marriage officer is also obligated to transfer the copy of the notice to the marriage officer of the district where the parties do reside, who must then follow the same procedure.

Objection to marriage

Within 30 days of receiving the notice, anyone may object to the union of the two parties under Section 7. In this case, the Marriage Officer must record the nature of the objection in writing in the Marriage Notice Book, which must then be read to the objector and duly signed by him or someone acting on his behalf.

The most frequently voiced disapprovals include the claim that the parties to the marriage are in violation of Section 4 of this Act. However, if no objection is voiced, this Act may be used to solemnise the marriage in question.

Procedure to deal with the objections received

The process for an objection that is received is outlined in Section 8. According to this clause, the Marriage Officer is required to examine the subject of the objection within 30 days of receiving it. If the Marriage Officer is persuaded that the objection is without merit or the party raising it withdraws it, the Marriage Officer may then solemnise the marriage.

However, if the Marriage Officer upholds the objection, the aggrieved party may file an appeal against it in the district court within 30 days of the refusal date. In this case, the district court's decision shall be final and binding.

Powers of the Marriage Officer

The Marriage Officer is granted powers under Section 9 in regards to the inquiries he is required to conduct under Section 8 of the Act, giving him all the authority granted to a Civil Court under CPC, 1908 when trying a case. The Marriage Officer's proceedings are also treated as judicial proceedings under Section 193 of the Indian Penal Code, 1908. The Marriage Officer is additionally given the authority to impose sanctions under this section if he determines that the raised objection is unjustified and malicious.

Procedure to deal with objections received by Marriage Officer abroad

In the event that a marriage officer in the State of Jammu and Kashmir receives a complaint, the marriage officer is required by Section 10 to first look into the situation before reporting his findings and record to the Central Government. The Marriage Officer will be required to abide by the Central Government's decision after it has conducted its investigation and sought guidance as it sees fit.

Declaration

Prior to the marriage being solemnised, it is required by Section 11 that the parties, three witnesses, and the declaration listed in Schedule III of this Act be signed in the presence of the marriage officer and countersigned by him or her.

Place and form of solemnization

The marriage may be solemnised at the office of the Marriage Officer or at any location within a reasonable distance of the office upon payment of the set price, according to Section 12, which specifies the location and format of the ceremony. In addition, the parties are free to decide how to formally tie the knot, although it is required that they state, "I (A), take thee (B), to be my lawful wife (or husband)" in front of three witnesses and the marriage officiant.

Marriages on virtual platform

In Vasmi Sudarshini v. Sub Registrar, WP (MD) No. 15511 of 2022, the Hon'ble Madras High Court allowed a couple to legally wed via a virtual platform in accordance with the Special Marriage Act, 1954, finding that "Section 12(2) does not preclude virtual presence of the parties. Right to Marry is a fundamental right and Section 12 and 13 of this Act shall be construed to effectuate this right."

Marriage Certificate

Once the marriage has been solemnised, a marriage certificate must be entered into the Marriage Certificate Book in accordance with Section 13 and signed by both parties as well as the three witnesses. This certificate will serve as conclusive proof that the marriage was solemnised in accordance with this Act.

When marriage not solemnized within 3 months, new notice issued
Section 14 states that a new notice must be given if a marriage is not solemnised within 3 months of the following dates:

1. the date the notice was issued;
2. the date an appeal under Section 8(2) was preferred; or
3. the date of decision of the Central Government where record of the case was transmitted to the Central Government.

In order to solemnise the marriage in accordance with this Act, a fresh notification will then need to be given to the Marriage Officer, and the entire process will need to be repeated in order to solemnise the marriage.

Striking down notice under Section 5, SMA, 1954
It is apposite to note that Section 5 was recently contested in the Allahabad High Court in the case of Smt. Safiya Sultana Thru Husband Abhishek Kumar Pandey and Anr. vs. State of U.P., Thru Secy Home and Ors. Habeas Corpus No. - 16907 of 2020, where the Hon'ble Allahabad High Court held that Section 5 that made it mandatory for the parties to get a notice issued for the intended marriage and gave liberty to raise objections to the said union is violative of the privacy of the parties. If no such provision is mandatory in other Acts like the Hindu Marriage Act 1955 etc.

Then the same should be the case for the marriages solemnized under the Special Marriage Act and made it optional for the parties. As a consequence of this, Section 6 - 10 also become optional and can only function if the parties opt for issuance of the notice under Section 5.

LGBTQ and SMA, 1954

The Special Marriage Act of 1954 was passed to aid in the solemnization and registration of special forms of marriage under specific circumstances, however, it only applies to couples of the opposite sex. Its constitutionality has recently been contested in Supriyo @ Supriya Chakraborty & Anr. Vs. Union of India W.P.(s) Civil No(s). 1011/2022 before the Hon'ble Supreme Court on the grounds that it is ultra vires of the Constitution.

This Act is completely silent on same-sex marriages. It is further argued that if same-sex couples are denied the social acceptance and legal protections that come with marriage, then the goal of decriminalising same-sex relationships is defeated. The Hon'ble Supreme Court of India is still considering the issue at this time.

Conclusion
People who want to marry outside of their faith or religion have their rights protected by the Special Marriage Act of 1954, which also lays out the rules and procedures and paves the path for them to live their lives without facing stigma. Due to their unique circumstances, weddings that might not ordinarily be performed, legitimised, or acknowledged are protected by the Special Marriage Act of 1954.

Reference Links:

• https://www.thelawcodes.com/divorce-lawyers-in-chandigarh/
• https://www.thelawcodes.com/registration-of-marriage-under-special-marriage-act/

Written By: Ameesha Goel