Maintenance Under The Special Marriage Act, 1954. The court refused to grant the petition saying that this will be valid only if it can be proved that the husband attaches great importance to her chastity. Concealment of unchastity or illegitimate birth. Earlier, individuals about to get married would not have any say while choosing their life partners. The difference between the present Act and the Hindu Marriage Act arises primarily due to the fact that the Hindu Act requires the person affected with leprosy to be both (a) incurable and (b) virulent. However, some practical problems arise in registering such marriages. In the context of her suffering and her loneliness of a frustrated married life, the husband created such a situation that it was impossible for her to stay any longer in the matrimonial home. The Special Marriage Act, 1954 is an Act of the Parliament of India enacted 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. Both parties must be monogamous at the time of their marriage, which implies they must be single and unmarried. Wilful neglect connoted a degree of neglect which is shown by a degree of abstention. The new enactment has three major objectives: 1- To provide a special form of marriage in certain cases. Short title, extent and commencement. Have aso been considered as fraud in several other instances. Mrs. Dastane used to make all sorts of vile, filthy and false allegations not merely against the husband but also all the members of the family. In a Chandra v. Suresh[lxxiv], a petition for divorce was filed in January 1966.the Divorce Court (Assistant District Judge) passed a decree of divorce on September 25th, 1967. His story was of how Meena was refused cooperation with the homely matters and her rude and disrespectful conduct. Shortly after, he left for England; he continued to be cold even on his return. APPLICATION FOR REGISTRATION OF SPECIAL MARRIAGE UNDER SPECIAL MARRIAGE ACT 1954. Unlike the other sections, there is a difference in the wording for the ground of leprosy in the Hindu Marriage Act and the SMA. But, if the deserting spouse seeks to return home, makes an offer to return, the intention to destroy the marriage is no longer there and therefore desertion will come to an end; the basic principle being that a spouse who has been deserted must take back his deserted spouse. If for example the wife stays away due to her occupation. Once the offence of adultery has been established, a decree of dissolution of marriage should be made, unless there is some bar to relief. The grounds have been dealt with in detail under divorce. It is established law that the burden of proving all aspects of desertion is on the petitioner. This however excludes casual remarks which maybe corroborated. If this condition has been satisfied, then a decree for divorce will be granted. A bit of reading never hurts. THE SPECIAL MARRIAGE ACT, 1954 ACT NO. The husband got a registered notice served on his wife through hi solicitor charging her with adultery. The explanation to clause (1) of S. 27 of the SMA gives the following definition, Desertion of the petitioner by the other party to the marriage without any reasonable cause and without the consent or against the wishes of such party, and includes wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions.. If it a crucial element in the marital relation then it will affect the marital relation. Several other factors, like concealment of age, financial status etc. be it enacted by Parliament in the Fifth Year of the Republic of India as follows: Act III would create a new civil marriage statute that would allow people to marry whoever they wanted. Unsatisfied with the replies, he finally wrote a letter hurling wild and nasty allegations and then filed for a decree of judicial separation. Chapter V provides the remedies of restitution of conjugal rights and judicial separation. The caste system would not allow people to marry outside their caste. Special Marriage Act, 1954 An Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. . Desertion means the wilful and unjustified abandonment of a persons duties or obligation especially to.a spouse or family[xxv], or in simpler words it is the rejection of, either party to a marriage, all the obligations that arise from the wed-lock. Special Marriage Act, 1954 The above statement is equally applicable to rape as well. The marriages solemnized under the said act would be rendered void if any of the conditions laid down in Section 6 are left. This is a submission on the options thus given to a party frustrated by his/her marriage under the Special Marriage Act, 1954. Article 226: High courts have the power to issue certain writs. Matrimonial Causes under Special Marriage Act On February 14, 2015 By kudrat By Soumya Singh Chauhan, UILS, Unlike traditional weddings, the Special Marriage Act does not need any extravagance, show, or ceremony. All rights reserved. The conditions of women before and post-independence was not quite well. [1] The Act originated from a piece of legislation proposed during the late 19th century. The guilty party can at any moment bring the offence t an end by any of the following acts: Resumption of cohabitation: if at any time before the presentation of the petition, spouses resume cohabitation, desertion comes to an end. Your access to and use of this site is subject to our Terms of Use. The essential feature of such a marriage is that no legal consequences arise from it, i.e. The Act contains provisions for a valid marriage, requirements for a valid marriage, dissolution of inter-faith marriage, registration of marriage and others. In the Special Marriage Act a couple can both Solemnize and register the marriage on spot in front of a marriage officer. Showing posts with label Special Marriage Act 1954. We also use third-party cookies that help us analyze and understand how you use this website. Language. Hindu marriages refer to kanyadan, meaning gifting a girl to the boy by the father with all traditions and customs. The important aspect here is respect to the fact that has been fraudulently represented. Yes! It was as an answer to this question that laws were divided into (a) civil and (b) canonical. After her marriage in 1945, the wife came to live with her husband. The above is an oft quoted line when it comes to love and especially marriage. Special Marriage Act of 1954: It is an Act of the Parliament of India with provision for civil marriage (or "registered marriage") for people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party. It was held that she was still in desertion. The Hindu Marriage Act, 1955 and. This difference further intensified under the harsh gaze of the prevalent caste system. Recruitment. 16. Similarly in Ashok v. Santosh[li] , during the intercourse, the wife used to pull the flaccid penis of her husband. Show all posts. Chapter -I (Sections 1 -3) is the "Preliminary". A mans inability to achieve erection and therefore have sexual inter-course and a womans physical inability to have sexual inter-course[xii] is also impotency. June 2, 2016. Unlike personal laws, the Special Marriage Act's applicability extends to all Indian citizens regardless of their religion. The matrimonial laws relating to divorce and separation in India have been greatly influenced by the English matrimonial law viz., the Matrimonial Causes Act, 1857. The concept of restitution of conjugal rights has its roots in the fact that at time of marriage, the parties to the marriage have a right to enjoy each others consortium or company. In simple English it can also be termed as abandonment. This was typical of the Victorian era. Marriage is seen as an institution of people coming together under the promise of spending a life time with each other, or at least this was the case till recent times. Test Series. After the enactment of this law, which provides for a wide range of provisions aimed at completely covering all aspects of marriage that one may deem important during marriage and hurdles in the same, the concept of inter-caste and inter-religious marriages found some backing and support. Copyright 2020 Lawctopus. Though no specific case has come p under this heading, Subba Rao, J., Obiter, observed[xxxiv] that wilful neglect was designated to cover constructive desertion. There are however always exceptions, congenital syphilis, for example, is not included within the expression virulent venereal disease or venereal disease in a communicable form. And one of them is to subscribe to our newsletter. Special Marriage Act, 1954 . It has to be noted at this stage that an unusually callous conduct or negligence alone cannot be proof of cruelty. A cessation of cohabitation or the factum of separation. Keeping in mind the outrage of the community, the Special marriage Marriage intended to protect the couple to all possible extents. 43 OF 1954 1 [9th October, 1954.] Marriage between cousins is legal under Christian personal law if the Church authorizes it. It was also understood as a general principle that the validity could be questioned only by the parties to a marriage and further that if one of the spouses died, such a question could never arise. In 1954, she left the home and stayed with her sister and mother in a rented flat. Simply put, any spouse who engages in extra-marital intercourse is guilty of adultery. Does it mean that the parties are provided with a relief from their marriage? Address : 706, Eco Star, Near Udipi Vihar Restaurant, Goregaon (East), Mumbai Pin Code - 400063. The Supreme Court dismissed a writ petition challenging the constitutionality of essential parts of the Special Marriage Act (SMA) of 1954, which allows couples to seek refuge for inter-faith and inter-caste weddings. The Special Marriage Act, 1954 is an Act of the Parliament of India which is enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, in certain cases, for the registration of such and certain other marriages and for divorce, irrespective of the religion or faith followed by either . The Act received the assent of the President on October 9, 1954 and came into force on January 1, 1955. View Special marrainge act (3).docx from LAW 102 at Baptist Bible College. These are promises made by the parties to a marriage at the time of marriage. Impotency means an inability of either spouse to consummate the marriage. The parties who have agreed to a mutual divorce could file a petition under Section 28 of the said Act. The Special Marriage Act, 1954, was passed by Parliament, which requires the people of India to marry regardless of their religion for a special type of marriage. It was enacted 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. They further stated that desertion is an inchoate offence and ceases to be complete until the petition is filed for divorce. The Act works in the interest of all citizens of India by providing a mechanism to institute an inter-faith marriage. . Thus if one spouse by his words or conduct compels the other spuse to leave the matrimonial home, the former will be guilty of desertion, though it is the latter who physically separated from the other. It has to be remembered that law has always been in existence to provide a helping hand, to protect the needy and guide the helpless. This particular ground is covered under sub-clause (6) of clause (1) of section 26. The present Hindu Marriage Act has effected certain changes in the law of marriage. Under the SMA, a marriage is void on the following grounds:[ii]. The Act laid provisions for the valid marriage, void marriage, voidable marriage, procedure for registration, grounds for divorce, maintenance, the status of the children and remarriage. The Act does not specify time duration for the disease. The PDF for SPECIAL MARRIAGE ACT, 1954 is fit for mobile phones and has a good font. The Hindu Marriage Act is an Act of the Indian Parliament that was approved on May 18, 1955. This is primarily because in most cases of arranged marriage some element of persuasion is present and it would be absurd to include all such cases as forceful and inclusive of coercion. Under the Hindu Marriage act, marriage with second cousins is prohibited as they come under Sapindus. No ceremony gets performed. Meena was married to a physician and after their marriage she lived with her husband and his joint family. However, will this be the same result, if there was no conclusive proof as to the death of the person? INTRODUCTION : The Special Marriage Act, 1954 was passed in the year 1954 and came into force from 1st January,1955. The basis of this ground is in the fact that people desire to have offspring and I one of the parties is sterile, that desire cannot be fulfilled. It can facilitate anti social activities such as forceful conversion. Print length. The Special Marriage Act, of 1954 is a law passed by the Indian Parliament that includes provisions for civil unions, also known as "registered marriages." The Act addresses marriages between different castes and religions. The Hindu Marriage Act is exclusively applicable to Hindus, Sikhs, Jains, and Buddhists, but the Special Marriage Act applies to all citizens of the country. It allows two individuals to solemnise their marriage through a civil contract. The court held that the husband had throughout the marital life been cold and indifferent. Parties must live in an adulterous relationship. An Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. Short title, extent and commencement. Termination is one of the outstanding features of the ground of desertion. 44 pages. Word Wise. This is the minimum age requirement for a boy or girl to marry in India. Thus the definition has been shaped and re-shaped to fit the needs of the society and to ensure maximum protection to the weak and helpless. Context: The Supreme Court dismissed a writ petition challenging provisions of the Special Marriage Act (SMA), 1954 . Supervening event may remove the duty to cohabit, The expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia, The expression psychopathic disorder means a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment, That the respondent has withdrawn from the society of the petitioner, That the withdrawal is without reasonable excuse or cause, That the court is satisfied about the truth of the statement made in such petition, and, That there is no legal ground why relief should not be granted. Further, it has also been recognised that due to the difficulty of obtaining direct evidence in cases of adultery, the mere existence of circumstances (which irresistibly lead to the conclusion of adultery) will do. An Indian citizen and his/ her foreign national partner can also get married under the Act. It can be avoided by a petition by either party to a marriage if it violates conditions requisite to make a marriage valid. Unlike the Law of Contracts, misrepresentation either innocent or fraudulent will not terminate the marriage. Either party has a spouse living at the time of marriage. Concealment of religion or caste unchastity. LOGIN; Home; Membership Plans; MENU MENU. It is because of the vile and unnatural nature of these offences that in Bamption v. Bamption[lxix] it was held that if a man commits sodomy on his wife without her consent, he is guilty of the offence and the wife my sue for divorce. Whoops, you're not connected to Mailchimp. The Act allows solemnizations as well as legal registration people from two different religious backgrounds to . Their lives were affected by the partition of India in 1947. Desertion is however not complete when the statutory period is over. There is however one special ground that has been included viz. act is to provide coherent legal provisions for safeguarding, Act contains provisions for a valid marriage, Things to know about Muslim marriage and laws related to it, It could be filed only after the lapse of one year from marriage, Remarriage is allowed after the decree for divorce is passed. Buy The Special Marriage Act, 1954: Read Kindle Store Reviews - Amazon.com <style type="text/css . Chapter -II (Sections 4 -14) narrates about "Solemnization of Special Marriages". S. 36 of the Parsi Marriage & Divorce Act. In Dhrubajyoti v. Lila[xli](under SMA) wife left her husbands home and did not return to the marital home for more than two years. According to the section whoever has carnal sexual intercourse with a man, woman or animal shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine. Under the Act, the husband can claim separation on the ground of wifes adultery, but the wife had to prove adultery accompanied with bigamy, incest, cruelty, two years desertion and the like. The bride was below 18 years in age and bridegroom was below age of 21 years at the time of marriage. However, no spouse can presume himself as a widower or widow and remarry, by applying the presumption of death. Yes. It is essential that all these conditions must be fulfilled before a petition can be filed. It is submitted that it is the incapacity to perform the sexual act that is important and not the extent of satisfaction gained by the other party that is to be questioned. 2008-2022 LawConnect, Inc. All rights reserved. Before this act, The Special Marriage Act, 1872 provided for inter-faith marriages. Under the Evidence Act and the SMA, the burden of proof that the whereabouts of the respondent are not known for the requisite period by the concerned persons is on the party seeking relief[lxiii]. Report of the Two Member Committee on Repeal of Obsolete Laws. Post not marked as liked 1. The succession law establishes the rules for property devolution if a person dies with or without leaving a Will. Seven years imprisonment is a ground only under some of the personal laws in India. Therefore, the legislators enacted the Special Marriage Act to legalize inter-caste marriages in India to stop violating fundamental rights. C v. C[vii] is a case where W married H in the erroneous belief that he was well known boxer called Miller. Finally, the Special Marriage Act of 1954, which was deemed necessary at the time of its enactment, continues to be an important aspect of the law. Even two foreign nationals can get . Thus, non-consummation as such is not a ground for voiding marriage. Due to his complacency, the wife had to take care of all these matters. Under the SMA cruelty is a ground for both divorce and judicial separation as per Section 23 and 27 respectively. For example, two Indian citizens having different religions can get married under this Act. The Special Marriage Act, 1954 lays down the procedure for both solemnization and registration of marriage, where either of the husband or wife or both are not Hindus, Buddhists, Jains, or Sikhs. In Mr. X v. Hospital Z[lix] divorce was granted to the wife when the husband was discovered to be HIV positive. BE it enacted by Parliament in the Fifth Year of the Republic of India as follows- Chapter I of Special Marriage Act - Preliminary 1. At the hearing of his appeal, he made an offer to take back the wife. A man is said to be guilty of rape when forces sexual intercourse on an unwilling woman, i.e. Could not remarry after the decree for judicial separation is passed. Even if the person is in a position to consummate, a wilful refusal or repugnancy towards the act will constitute impotency. BE it enacted by Parliament in the Fifth Year of the Republic of India as follows- CHAPTER I - PRELIMINARY 1. The registration can also happen with them maintaining their religious identity. Even if not insane, unfit for marriage or inability to procreate, children render them unfit for the marriage under this section. The explanation to this section further lays down that penetration is sufficient to constitute carnal intercourse. Society did not approve the Act and opposed its enactment. Page Flip. Special Marriage Act,1. Furthermore, marriage between paternal and maternal cousins is permitted under personal Muslim law. On appeal, the High Court converted the decree of divorce to a decree of judicial separation on the latters patent appeal, the High Court said that the decree was effective from the date on which it was passed by the Divorce Court and since by the time the latters patent appeal came for hearing, a period of two years had elapsed since the passing of the decree of judicial separation, the petitioner was entitled to a decree of divorce. Petitioners consent was obtained by fraud or force, provided that the petitioner did not live with the respondent as husband or wife after the discovery of fraud or cessation of force and provided further that the petition was presented within one year of the discovery of fraud or cessation of force. The court thus gave its judgment in favour of the wife. The validity of Article 226 is being debated in light of the high court's annulment of an interfaith marriage. A decree for restitution of conjugal rights has not been complied with[lxxiii]. Any objections to such a marriage shall get heard within these thirty days. India follows a rigid structure of the caste system, and inter-religion marriage is still considered a taboo in the country. The very fact that the deserting spouse has left the marital home with the consent of the other would be enough to invalidate the ground of desertion. What is Special Marriage Act of 1954? It contains 51 Sections divided into 8 Chapters. Further, the Apex Court justified that right to marry a person of owners choice is very much a part of Article 21 of the Constitution of India. 1973- A Brief Note. Subsequent to this, he was informed by his mother that she was returning to join him in their matrimonial home whereupon he sent a telegram to her father, Must not send Prabha..Husband filed for divorce on the ground of desertion. The main element here is deceit. However, in some instances where the petition is subject to ultimate hardships, the court would accept the petition. The same has been carried over by the legislators in India. However the use of contraception poses no threat, and the use of such measures will not lead to a conclusion of non-consummation and hence impotency[xiv]. The Catholics and the Hindus were under the firm faith that a marriage was a permanent union of man and woman and not even death itself could separate them, for they would be joined once again in the next life. These cookies will be stored in your browser only with your consent. It runs as follows: a wife may present a petition for the dissolution of her marriage on the ground-, That in aproceeding under section 125 of the Criminal Procedure Code, 1973 (2 of 1974)., a decree or order, as the case maybe, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order cohabitation between the parties has not been resumed for one year or upwards[lxx]. It is important to note at this stage that the very intention of a marriage, no matter what personal law it comes under, is to ensure that the people who enter into the relationship are there for each other through thick and thin. It was this very same idea that was introduced into the British colonies including India. The child born out of such wedlock is legitimate under section 26. Provisions in a law that enables secular marriage are, ironically, often a tool for harassment. Indira v. Shellenrda[xxxv]is a good example. Manual of Election Law. They could marry without any religious ceremonies or converting their religion. The marriage will give rise to rights and obligations as long as it is valid. Continued to be so till the presentation of the petition. It is further immaterial under the present statute if the disease is curable or was contracted innocently. Lacchman wrote to her several times asking her to return. File size. A marriage between any two persons belonging to any religion or creed may be solemnized under this Act, if at the time of marriage both the parties (i.e. In the present era however, marriage is nothing short of a contract entered into by two people who have the capacity to enter into the contracts and one that can be terminated at will subject to certain conditions. However the present view is that it may be established by balance of probabilities. Such uncontrolled and unrestrained power in the hands of the religious leaders to declare marriages void and bastardize the issue was a cause of great concern to the royal courts. It was held that the wife in this particular case as not impotent. Cohabitation has not been resumed for one year or more after an order of maintenance has been passed under section 125 of the Criminal Procedure Code. The case of Bipinchandra v. Prabhavati as already mentioned above is a classic example. As per Section 25, marriage under the said act would be rendered voidable under the following situations: If the respondent refuses to consummate the marriage, the CourtourtCourtrt could grant decree upon the fulfilment of the following conditions: Under Section 27, the Act laid specific common grounds for the petitioner filing the divorce irrespective of religion. And for this it has been held that if the husband does not achieve full penetration in the normal sense, it would not amount to consummation[xiii]. A refusal to undergo surgery will however draw an inference of impotency. Whether mens rea is actually necessary for a cruel act is a question that has been raised in several cases subsequent. The wife rejected it. On his instance she went to England to continue her education. World & # x27 ; s applicability extends to all Indian citizens and Indian nationals living a. 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