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Legal provisions involved in an inter-religion marriage

By Garima Singh August 04, 2016


Introduction

In the present scenario a person has a choice to marry within his own religion, community or caste or to marry with a person of another religion, community or caste. The former form of marriage is governed by the ‘personal laws’ or Special Marriage Act, 1954 if the couple desires whereas for the latter part if the parties desire they can opt for one of the two ways:-

  1. Conversion
  2. Secondly, they register the marriage under the Special Marriage Act.

Special Marriage Act, 1954

The Special Marriage Act (SMA) is not concerned with the religion of the person intending to get married. This applies to all parties who are registered under the SMA. The Act is not concerned whether the marriage took place between the people of same religion or between persons of different religion.

Besides this the Central Government also implemented Foreign Marriage Act, 1969 which empowered the citizens of India to get married abroad with an Indian citizen or a foreigner. The main feature of both these Acts is they are not concerned with the religion of the person intending to get married.

This Act contains provisions to rule inter-religious marriage and for the registration of marriage. Due to these features a marriage registered under this act is known as a civil marriage.

Conditions necessary for solemnization of marriage (Section 4)

  1. Monogamous marriage.
  2. The parties should be of sound mind and should not suffer from any mental disability.
  3. The male has completed 21 years and the female has completed 18 years.
  4. Both the parties do not fall under the degree of prohibited relationship, however it is pertinent to note that if the custom of any one of the parties allow for the marriage under prohibited relation such marriage may be solemnized.

Procedure

The procedure involved for the registration of marriage under SMA is rather simple, though certain basic conditions should be followed.

  1. The procedure starts with the filing of an application in writing to the marriage officer of the district where either of the parties has resided for the past 30 days.
  2. After receiving the application the Marriage officer gives a 30 days’ notice period to accept objections on the marriage of the intended parties.
  3. The objections are entertained if they are solely on the conditions mentioned in Section 4.
  4. The marriage officers are required to maintain a marriage notice book which contains all the details of the intended marriage.

 

  1. If there is any objection
  2. The person objecting should only be on the basis of condition given in Section 4 for the solemnization of marriage.
  3. The objection is recorded in the marriage book with the person’s signature.
  4. The Marriage officer has the power to inquiry of the objection.

 

  1. If there is no objection
  2. If within 30 days of the notice no person objects to the marriage of the intended person the marriage can be solemnized in any form at the office of the marriage officer or at any place in the presence of the marriage officer.
  3. The marriage officer enters all the details in the marriage notice book which should be signed by the parties and three witnesses.
  4. The above procedure should be in the presence of the marriage officer.

Consequences of registration under Special Marriage Act

  1. According to Section 19 any Hindu, Buddhist, Sikh or Jain who is registered under SMA are severed from the joint family property.
  2. However, if the marriage is an intra-religion marriage between Hindu, Buddhist, Sikh or Jain then this section will not apply.
  3. For person married under SMA no personal laws for succession, maintenance or divorce will be applicable to them.
  4. The succession laws will be governed by the Indian Succession Act.
  5. The registration of marriage acts as a conclusive proof of the marriage.
  6. The marriage is governed by the elaborate provisions of Divorce, Nullity, and Custody etc of the SMA.

Various Conflict of Laws in the Special Marriage Act

Prohibited degrees in Marriage

The SMA provides for prohibited degrees of marriages in Schedule I and Schedule II of the Act. The important entries to be noted are that on cousin relations, both paternal and maternal.

  • Under Hindu Law

Under the Hindu Marriage Act, marriage with second cousins is prohibited as they are come under sapindas. But the SMA does not mention second cousins in the prohibited degree of marriage.

  • Under Muslim Law and Christian Law

Under the personal Muslim law, marriage between cousins both paternal and maternal is allowed. But SMA specifically prohibits such marriage in the schedule.

Under Christian personal Law also marriage with cousins is allowed if the Church permits so.

In Section 4 the explanation of the word ‘custom’ is defined, however if the customs includes personal law or not is a matter of consideration for the Government.

Law of Succession

The position of Succession law in India is as follows:

  • Under Hindu law

The amendment in Section 19 classifies Hindu into two basic classifications:-

(a) Hindus, Buddhists, Sikhs and Jains marrying within these four communities;

(b) Hindus, Buddhists, Sikhs and Jains marrying outside these four communities;

For (a) the Hindu Succession law will apply and in case of (b) Indian Succession Act will apply. This is an unreasonable classification between the same communities.

  • Muslim and Parsi law

The Muslims and Parsis give great importance to their personal laws of Succession. The succession laws of Muslim directly come from their holy book thus, a large section wants to adhere to it. The prospect of losing it in case of marriage under SMA acts as a disadvantage and thus they try to remain away from it.

In case of SMA there is no need to renounce one’s religion, the people can be well governed by their own personal laws and SMA should refrain from framing laws for succession.

Other important aspects of SMA

  1. The children born are legitimate if the marriage is registered under SMA and afterwards become void or voidable.
  2. The couple married under SMA cannot get a divorce before one year of marriage.

Sources                                             

  1. The Special Marriage Act, 1954
  2. Laws of Civil Marriages in India – A Proposal to Resolve Certain Conflicts,212th Report, Law Commission

Tags: Inter-religion marriage , special marriage , Procedure , Consequences of Special Marriage , Legal


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