Special Marriage Act
An Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce.
Chapter I - Preliminary
1. Short title extend and commencement
2. Definitions
3. Marriage Officers
Chapter II - Solemnization Of Special Marriages
4. Conditions relating to solemnization of special marriages
5. Notice of intended marriage
6. Marriage Notice Book and publication
7. Objection to marriage
8. Procedure on receipt of objection
9. Powers of Marriage Officers in respect of inquiries
10. Procedure on receipt of objection by Marriage Officer abroad
11. Declaration by parties and witnesses
12. Place and form of solemnization
13. Certificate of marriage
14. New notice when marriage not solemnized within three months
Chapter III - Registration Of Marriages Celebrated In Other Forms
15. Registration of marriages celebrated in other forms
16. Procedure for registration
17. Appeals from orders under section 16
18. Effect of registration of marriage under this Chapter
Chapter IV - Consequences Of Marriage Under This Act
19. Effect of marriage on member of undivided family
20. Rights and disabilities not affected by Act
21. Succession to property of parties married under Act
21A. Special provision in certain cases
Chapter V - Restitution Of Conjugal Rights And Judicial Separation
22. Restitution of conjugal rights
23. Judicial separation
Chapter VI - Nullity Of Marriage And Divorce
24. Void marriages
25. Voidable marriages
26. Legitimacy of children of void and voidable marriages
27. Divorce
27A. Alternate relief in divorce proceedings
28. Divorce by mutual consent
29. Restriction on petitions for divorce during first three years after marriage
30. Remarriage of divorced persons
31. Court to which petition should be made
32. Contents and verification of petitions
33. Proceedings to be in camera and may not be printed or published
34. Duty of court in passing decrees
35. Relief for respondent in divorce and other proceedings
36. Alimony pendente lite
37. permanent alimony and maintenance
38. Custody of children
39. Appeals from decrees and orders
39A. Enforcement of decrees and orders
40. Application of Act 5 of 1908
40A. Power to transfer petitions in certain cases
40B. Special provision relating to trial and disposal of petitions under the Act
40C. Documentary evidence
41. Power of High Court to make rules regulating procedure
Chapter VIII - Miscellaneous
42. Savings
43. Penalty on married person marrying again under this act
44. Punishment of bigamy
45. penalty for signing false declaration or certificate
46. Penalty for wrongful action of Marriage Officer
47. Marriage Certificate Book to be open to inspection
48. Transmission of copies of entries in marriage records
49. Correction of errors
50. Power to make rules
51. Repeals and savings
The First Schedule
Chapter I - Preliminary
1. Short title extend and commencement
(1) This Act may be
called the Special Marriage Act, 1954.
(2) It extends to the
whole of India except the State of Jammu and Kashmir, and applies also to
citizens of India domiciled in the territories to which this Act extends who
are 2[in the State of Jammu and Kashmir].
(3) It shall come into force on such date3 as the Central Government may, by notification in the Official Gazette, appoint.
2. Definitions
4[***]
(b) "degrees of
prohibited relationship"-a man and any of the persons mentioned in part I
of the First Schedule and a woman and any of the persons mentioned in Part II
of the said Schedule are within the degrees of prohibited relationship;
Explanation I.-Relationship
includes,-
(a) relationship by half
or uterine blood as well as by full blood;
(b) illegitimate blood
relationship as well as legitimate;
(c) relationship by
adoption as well as by blood;
and all terms of
relationship in this Act shall be construed accordingly.
Explanation II.- "Full blood"
and "half blood"-two persons are said to be related to each other by
full blood when they are descended from a common ancestor by the same wife and
by half blood when they are descended from a common ancestor but by different
wives.
Explanation III.-"Uterine
blood"-two persons are said to be related to each other by uterine blood
when they are descended from a common ancestress but by different husbands.
Explanation IV.-In explanations II
and III, "ancestor" includes the father and "ancestress"
the mother;
5[***]
(d)
"district", in relation to a Marriage Office, means the area for
which he is appointed as such under sub-section (1) or sub-section (2) of
section 3;
6[(e) "district
court" means, in any area for which there is a city civil court, that
court, and in any other area, the principal civil court of original
jurisdiction, and includes any other civil court which may be specified by the
State Government by notification in the Official Gazette as having jurisdiction
in respect of the matters dealt with in this Act;]
(f)
"prescribed" means prescribed by rules made under this Act;
7[(g) "State Government", in relation to a Union territory, means the administrator thereof.]
3. Marriage Officers
(1) For the purpose of
this Act, the State Government may, by notification in the Official Gazette,
appoint one or more Marriage Officers for the whole or any part of the State.
8[(2) For the purposes of this Act, in its application to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir, the Central Government may, by notification in the Official Gazette, specify such officers of the Central Government as it may think fit to be the Marriage Officers for the State or any part thereof.]
Chapter II - Solemnization Of Special Marriages
4. Conditions relating to solemnization of special marriages
Notwithstanding
anything contained in any other law for the time being in force relating to be solemnization
of marriages, a marriage between any tow persons may be solemnized under this
Act, if at the time of the marriage the following conditions are fulfilled,
namely :-
(a) neither party has
a spouse living;
9[(b) neither party-
(i) is incapable of giving a valid consent to
it in consequence of unsoundness of mind; or
(ii) though capable of giving a valid consent,
has been suffering from mental disorder of such a kind or to such an extent as
to be unfit for marriage and the procreation of children; or
(iii) has been subject
to recurrent attacks of insanity or epilepsy;]
(c) the male has
completed the age of twenty-one years and the female the age of eighteen years;
10[(d) the parties are
not within the degrees of prohibited relationship :
Provided that where a custom
governing at least one of the parties permits of a marriage between them, such
marriage may be solemnized, notwithstanding that they are within the degrees of
prohibited relationship; and]
11[(e) where the
marriage is solemnized in the State of Jammu and Kashmir, both parties are
citizens of India domiciled in the territories to which this Act extends.]
12[Explanation.- In
this section, "custom", in relation to a person belonging to any
tribe, community, group or family, means any rule which the State Government
may, by notification in the Official Gazette, specify in this behalf as
applicable to members of that tribe, community, group or family :
Provided that no such notification
shall be issue in relation to the members of any tribe, community, group or
family, unless the State Government is satisfied-
(i) that such rule has
been continuously and uniformly observed for a long time among those members;
(ii) that such rule is
certain and not unreasonable or opposed to public policy; and
(iii) that such rule, if applicable only to a family, has not been discontinued by the family.]
5. Notice of intended marriage
When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer 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 given.
6. Marriage Notice Book and publication
(1) The Marriage
Officer shall keep all notices given under section 5 with the records of his
office and shall also forthwith enter a true copy of every such notice in a
book prescribed for that purpose, to be called the Marriage Notice Book, and
such book shall be open for inspection at all reasonable times, without fee, by
any person desirous of inspecting the same.
(2) The Marriage
officer shall cause every such notice to be published by affixing a copy
thereof to some conspicuous place in his office.
(3) Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the Marriage Officer to whom the notice has been given under section 5, the Marriage Office shall also cause a copy of such notice to be transmitted to the Marriage Office of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.
7. Objection to marriage
(1) Any person may,
before the expiration of thirty days from the date on which any such notice has
been published under sub-section (2) of section 6, object to the marriage on
the ground that it would contravene one or more of the conditions specified in
section 4.
(2) After the
expiration of thirty days from the date on which notice of an intended marriage
has been published under sub-section (2) of section 6, the marriage may be
solemnized, unless it has been previously objected to under sub-section (1).
(3) The nature of the objection shall be recorded in writing by the Marriage Officer in the Marriage Notice Book, be read over and explained, if necessary, to the person making the objection and hall be signed by him or on his behalf.
8. Procedure on receipt of objection
(1) If an objection is
made under section 7 to an intended marriage, the Marriage Officer shall not
solemnize the marriage until he has inquired into the matter of the objection
and is satisfied that it ought not to prevent the solemnization of the marriage
or the objection is withdrawn by the person making it ; but the Marriage
Officer shall not take more than thirty days from the date of the objection for
the purpose of inquiring into the matter of the objection and arriving at a
decision.
(2) If the Marriage Officer upholds, the objection and refuses to solemnize the marriage, either party to the intended marriage may, within a period of thirty days from the date of such refusal, prefer an appeal to the district court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district court on such appeal shall be final, and the Marriage Officer shall act in conformity with the decision of the court.
9. Powers of Marriage Officers in respect of inquiries
(1) For the purpose of
any inquiry under section 8, the Marriage Officer shall have all the powers vested
in a civil court under the Code of Civil Procedure, 1908, when trying a suit in
respect of the following matters, namely :-
(a) summoning and enforcing the attendance of
witnesses and examining them on oath;
(b) discovery and
inspection ;
(c) compelling the
production of documents ;
(d) reception of
evidence on affidavits ; and
(e) issuing
commissions for the examination of witnesses ;
and any proceeding before the Marriage Officer
shall be deemed to be a judicial proceeding within the meaning of section 193
of the Indian Penal Code.
Explanation.- For the purpose of
enforcing the attendance of any person to give evidence, the local limits of
the jurisdiction of the Marriage Officer shall be the local limits of his
district.
(2) If it appears to the Marriage Officer that the objection made to an intended marriage is not reasonable and has not been made in good faith he may impose on the person objecting cost by way of compensation not exceeding one thousand rupees and award the whole or any part thereof to the parties to the intended marriage, and any order for costs so made may be executed in the sane manner as a decree passed by the district court within the local limits of whose jurisdiction the Marriage officer has his office.
10. Procedure on receipt of objection by Marriage Officer abroad
Where an objection is made under section 7 to a Marriage Officer 13[in the State of Jammu and Kashmir in respect of an intended marriage in the State], and the Marriage officer, after making such inquiry into the matter as he thinks fit, entertains a doubt in respect thereof, he shall not solemnize the marriage but shall transmit the record with such statement respecting the matter as he thinks fit to the Central Government, and the Central Government. After making such inquiry into the matter and after obtaining such advice as it thinks fit, shall give its decision thereon in writing to the Marriage Officer who shall act in conformity with the decision of the Central Government.
11. Declaration by parties and witnesses
Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer.
12. Place and form of solemnization
(1) The marriage may
be solemnized at the office of the marriage Officer, or at such other place
within a reasonable distance there from as the parties may desire, and upon
such conditions and the payment of such additional fees as may be prescribed.
(2) The marriage may
be solemnized in any form which the parties may choose to adopt :
Provided that it shall not be complete and binding on the parties, unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,-"I, (A), take thee (B), to be may lawful wife (or husband)".
13. Certificate of marriage
(1) When the marriage
has been solemnized, the Marriage Officer shall enter a certificate thereof in
the form specified in the Fourth Schedule in a book to be kept by him for that
purpose and to be called the Marriage Certificate Book and such certificate
shall be signed by the parties to the marriage and the three witnesses.
(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.
14. New notice when marriage not solemnized within three months
Whenever a marriage is not solemnized within three calendar months from the date on which notice thereof has been given to the Marriage Officer as required by section 5, or where an appeal has been filed under sub-section (2) of section 8, within three months from the date of the decision of the district court on such appeal or, where the record of a case has been transmitted to the Central Government under section 10, within three months from the date of decision of the Central Government, the notice and all other proceedings arising there from shall be deemed to have lapsed, and no Marriage Officer shall solemnize the marriage until a new notice has been given in the manner laid down in this Act.
Chapter III - Registration Of Marriages Celebrated In Other Forms
15. Registration of marriages celebrated in other forms
Any marriage
celebrated, whether before or after the commencement of this Act, other than a
marriage solemnized under the Special Marriage Act, 1872, or under this Act,
may be registered under this Chapter by a Marriage Officer in the territories to
which this Act extends if the following conditions are fulfilled, namely :-
(a) a ceremony of
marriage has been performed between the parties and they have been living
together as husband and wife ever since ;
(b) neither party has
at the time of registration more than one spouse living ;
(c) neither party is
an idiot or a lunatic at the time of registration ;
(d) the parties have
completed the age of twenty-one years at the time of registration ;
(e) the parties are
not within the degree of prohibited relationship :
Provided that in the case of a
marriage celebrated before the commencement of this Act, this condition shall
be subject to any law, custom or usage having the force of law governing each
of them which permits of a marriage between the two ; and
(f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.
16. Procedure for registration
Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this Chapter, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objections and after hearing any objection received within that period, shall, if satisfied that all the conditions mentioned in section 15 are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the form specified in the Fifth Schedule, and such certificate shall be signed by the parties to the marriage and by three witnesses.
17. Appeals from orders under section 16
Any person aggrieved by any order of a Marriage Officer refusing to register a Marriage under this Chapter may, within thirty days from the date of that order, appeal against that order to the district court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district court on such appeal shall be final, and the Marriage Officer to whom the application was made shall act in conformity with such decision.
18. Effect of registration of marriage under this Chapter
Subject to the
provisions contained in sub-section (2) of section 24, where a certificate of
marriage has been finally entered in the Marriage Certificate Book under this
Chapter, the marriage shall, as from the date of such entry, be deemed to be a
marriage solemnized under this Act, and all children born after the date of the
ceremony of marriage (whose names shall also be entered in the Marriage
Certificate Book) shall in all respects be deemed to be and always to have been
the legitimate children of their parents :
Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents.
Chapter IV - Consequences Of Marriage Under This Act
19. Effect of marriage on member of undivided family
The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from such family.
20. Rights and disabilities not affected by Act
Subject to the provisions of section 19, and person whose marriage is solemnized under this Act shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850 applies.
21. Succession to property of parties married under Act
Notwithstanding any restrictions contained in the Indian Succession Act, 1925, with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this section that Act shall have effect as if chapter III of Part V (special Rules for Parsi Intestates) had been omitted there from.
21A. Special provision in certain cases
Where the marriage is solemnized under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply and so much of section 20 as creates a disability shall also not apply.]
Chapter V - Restitution Of Conjugal Rights And Judicial Separation
22. Restitution of conjugal rights
When either he husband
or the wife has, without reasonable excuse, withdrawn from the society of he
other, the aggrieved party may apply by petition to the district for
restitution of conjugal rights, and the court, on being satisfied of the truth
of the statements made in such petition, and that there is no legal ground why
the application should not be granted, may decree restitution of conjugal
rights accordingly.
16[Explanation:- Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]
23. Judicial separation
(1) A petition for
judicial separation may be presented to the district court either by the
husband or the wife,-
(a) on any of the grounds specified 17[in
sub-section (1) 18[and sub-section (1A) of section 27] on which a
petition for divorce might have been presented; or
(b) on the ground of failure to comply with a
decree for restitution of conjugal rights;
and the court, on being satisfied of he truth
of the statement made in such petition, and that there is no legal ground why
the application should not be granted, may decree judicial separation
accordingly.
(2) Where the court grants a decree for judicial separation, it shall be no longer obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
Chapter VI - Nullity Of Marriage And Divorce
24. Void marriages
(1) Any marriage
solemnized under this Act shall be null and void 19[and may, on a
petition presented by either party thereto against the other party, be so
declared] by a decree of nullity if-
(i) any of the conditions specified in clauses
(a), (b), (c) and (d) of section 4 has not been fulfilled; or
(ii) the respondent was impotent at the time
of the marriage and at the time of the institution of he suit.
(2) Nothing contained
in this section shall apply to any marriage deemed to be solemnized under this
Act within the meaning of section 18, but the registration of any such marriage
under Chapter III may be declared to be of no effect if he registration was in
contravention of any of the conditions specified in clauses (a) to (e) of
section 15 :
Provided that no such declaration shall be made in any case where an appeal has been preferred under section 17 and he decision of the district court has become final.
25. Voidable marriages
Any marriage
solemnized under this Act shall be voidable and may be annulled by a decree of
nullity if,-
(i) the marriage has
not been consummated owing to the willful refusal of the respondent to consummate
the marriage; or
(ii) the respondent
was at the time of the marriage pregnant by some person other than the
petitioner; or
(iii) the consent of
either party to the marriage was obtained by coercion or fraud, as defined in
the Indian Contract Act, 1872 :
Provided that, in the case
specified in clause (ii), the court shall not grant a decree unless it is
satisfied,-
(a) that the
petitioner was at the time of the marriage ignorant of the facts alleged;
(b) that proceedings were instituted within a year from the date of the
marriage; and
(c) that marital
intercourse with the consent of the petitioner has not taken place since the
discovery by the petitioner of the existence of the grounds for a decree :
Provided further that in the
case specified in clause (iii), the court shall not grant a decree if,-
(a) proceedings have
not been instituted within one year after the coercion had ceased or, as the
case may be, the fraud had been discovered; or
(b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.
26. Legitimacy of children of void and voidable marriages
(1) Notwithstanding
that a marriage is null and void under section 24, any child of such marriage
who would have been legitimate if the marriage had been valid, shall be
legitimate, whether such child is born before or after the commencement of the
Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is
granted in respect of that marriage under this Act and whether or not the
marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of
nullity is granted in respect of a voidable marriage under section 25, any
child begotten or conceived before the decree is made, who would have been the
legitimate child of the parties to the marriage if at the date of the decree it
has been dissolved instead of being annulled, shall be deemed to be their
legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 25, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his snot being the legitimate child of his parents.]
27. Divorce
21(1) Subject to the
provisions of this Act and to the rules made thereunder, a petition for divorce
may be presented to the district court either by the husband or he wife on the ground
that the respondent-
22[(a) has, after the solemnization of he
marriage, had voluntary sexual intercourse with any person other than his or
her spouse; or
(b) has deserted the petitioner for a continuous
period of not less than two years immediately preceding the presentation of the
petition; or]
(c) is undergoing a sentence of imprisonment
for seven years or more for an offence as defined in the Indian Penal Code ;
23[***]
(d) has since the solemnization of the
marriage treated the petitioner with cruelty; or
24[(e) has been incurably of unsound mind, or
has been suffering continuously or intermittently from mental disorder of such
a kind and to such an extent that the petitioner cannot reasonably be expected
to live with the respondent.
Explanation.- In this clause,-
(a) 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;
(b) the expression "psychopathic
disorder." means a persistent disorder or disability of mind (whether or
not including sub-normality of intelligence) which results in abnormally
aggressive or seriously irresponsible conduct on the part of the respondent,
and whether or not it requires or is susceptible to medical treatment ; or
(f) has been suffering
from venereal disease in a communicable form ;or]
(g) has 25[***] been suffering from
leprosy, the disease not having been contracted from the petitioner ; or
(h) has not been herd of as being alive for a
period of seven years or more by those persons who would naturally have heard
of the respondent if the respondent had been alive ;
26[Explanation.- In
this sub-section, the expression "desertion" means desertion of the
petitioner by the other party to the marriage without reasonable cause and
without the consent or against the wish of such party, and includes the willful
neglect of the petitioner by the other party to the marriage and its
grammatical variations and cognate expressions shall be construed accordingly.]
27[***]
27[***]
25[***]
26[(1A) A wife may also
present a petition for divorce to the district court on the ground,-
(i) that her husband has, since the
solemnization of the marriage been guilty of rape, sodomy or bestiality;
(ii) that in suit under section 18 of the
Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under section 125
of the Code of Criminal Procedure, 1973 (or under the corresponding section 488
of the Code of Criminal Procedure, 1898), a decree or order, as the case may
be, 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.]
28(2) Subject to the
provisions of this Act and to the rules made thereunder, either party to a
marriage, whether solemnized before or after the commencement of the Special
Marriage (Amendment) Act, 1970, may present a petition for divorce to the
district court on the ground-
(i) that there has been no resumption of
cohabitation as between the parties to the marriage for a period of one year or
upwards after the passing of a decree for judicial separation in a proceeding
to which they were parties:
or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
27A. Alternate relief in divorce proceedings
In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the ground mentioned in clause (h) of sub-section (1) of section 27, the court may, if it considers it just so to do having regard to the circumstances of he case, pass instead a decree for judicial separation,]
28. Divorce by mutual consent
(1) Subject to the
provisions of this Act and to the rules made thereunder, a petition for divorce
may be presented to the district court by both the parties together on the
ground that they have been living separately for a period of one year or more,
that they have not been able to live together and they have mutually agreed
that the marriage should be dissolved.
(2) 30[on the motion of both the parties made not earlier than six months after the date or the presentation of the petition referred to in sub-section (1) and not later than eighteen months] after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied , after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, a pass a decree declaring the marriage to be dissolved with effect from the date of the decree.
29. Restriction on petitions for divorce during first three years after marriage
(1) No petition for
divorce shall be presented to the district court 31[unless at the
date of the presentation of the petition one year has passed] since the date of
entering the certificate of marriage in the Marriage Certificate Book :
Provided that the district
court may, upon application being made to it, allow a petition to be presented 31[before
one year has passed] on the ground that the case is one of exceptional hardship
suffered by the petitioner or of exceptional depravity on the part of the
respondent, but if it appears to the district court at the hearing of the
petition that the petitioner obtained leave to present the petition by any
misrepresentation or concealment of the nature of the case, the district
court may, if it pronounces a decree, do so subject to the condition that the
decree shall not have effect until after the 31[expiry of one year]
from the date of the marriage or may dismiss the petition, without prejudice to
any petition, which may be brought after the 31[expiration of the
said one year] upon the same, or substantially the same, facts as those proved
in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the 3[expiration of one year] from the date of the marriage, the district court shall have regard to the interests of any children of the marriage, and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the 324[said one year].
30. Remarriage of divorced persons
Where a marriage has been dissolved by a decree of divorce, and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented , or an appeal has been presented but has been dismissed, 33[***] either party to the marriage may marry again.
31. Court to which petition should be made
34[(1) Every petition
under Chapter V or Chapter VI shall be presented to the district court within
the local limits of whose original civil jurisdiction-
(i) the marriage was
solemnize ; or
(ii) the respondent,
at the time of the presentation of the petition resides ; or
(iii) the parties to
the marriage last resided together ; or
(iv) the petitioner is residing at the time of
the presentation of the petition, in a case where the respondent is at that
time residing outside that territories to which this Act extends, or has not
been heard of as being alive for a period of seven years by those who would
naturally have heard of him if he were alive.]
(2) Without prejudice to any jurisdiction exercisable by the court under sub-section (1), the district court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories.
32. Contents and verification of petitions
(1) Every petition
under Chapter V or Chapter VI shall state, as distinctly as the nature of the
case permits, the facts on which the claim to relief is founded, and shall also
state that there is no collusion between the petitioner and the other party to
the marriage.
(2) The statements contained in every such petition shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.
33. Proceedings to be in camera and may not be printed or published
(1) Every proceeding
under this Act shall be conducted in camera and it shall not be lawful for any
person to print or publish any matter in relation to any such proceeding except
a judgment of the High Court or of the Supreme Court printed or published with the
previous permission of the Court.
(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1) he shall be punishable with fine which may extend to one thousand rupees.]
34. Duty of court in passing decrees
(1) In any proceeding
under Chapter V or Chapter VI, whether defended or not, if the court is
satisfied that,-
(a) any of the grounds
for granting relief exists ; and
(b) 36[where the petition is
founded on the ground specified in clause (a) of sub-section (1) of section 27,
the petitioner has not in any manner been accessory to or connived at or
condoned the act of sexual intercourse referred to therein,] or, where the
ground of the petition is cruelty, the petitioner has not in any manner
condoned the cruelty ; and
(c) when divorce is sought on the ground of
mutual consent, such consent has not been obtained by force, fraud or
undue influence ; and
(d) the petition is not presented or
prosecuted in collusion with the respondent ; and
(e) there has not been any unnecessary or
improper delay in instituting the proceedings ; and
(f) there is no other
legal ground why the relief should not be granted ;
then, and in such a case, but not otherwise,
the court shall decree such relief accordingly.
(2) Before proceeding
to grant any relief under this Act it shall be the duty of the court in the
first instance, in every case where it is possible so to do consistently with
the nature and circumstances of the case, to make every endeavor to bring about
a reconciliation between the parties :
37[Provided that
nothing contained in this sub-section shall apply to any proceeding wherein
relief is sought on any of the grounds specified in clause (c), clause (e), clause
(f), clause (g) and clause (h) of sub-section (1) of section 27.]
37[(3) For the purpose
of aiding the court in bringing about such reconciliation, the court may, if
the parties so desire or if the court thinks it just and proper so to do,
adjourn the proceedings for a reasonable period not exceeding fifteen days and
refer the matter to any person named by the parties in this behalf or to any
person nominated by the court if the parties fail to name any person, with
directions to report to the court as to court as to whether reconciliation can
be and has been, effected and the court shall in disposing of the proceeding
have due regard to the report.
(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]
35. Relief for respondent in divorce and other proceedings
In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner�s adultery, cruelty or desertion, but also make a counter claim for any relief under this Act on that ground, and if the petitioner�s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]
36. Alimony pendente lite
Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as, having regard to the husband�s income, it may seem to the court to be reasonable.
37. permanent alimony and maintenance
(1) Any court
exercising jurisdiction under Chapter V or Chapter VI may, at the time of
passing any decree or at any time subsequent to the decree, on application made
to it for the purpose, order that the husband shall secure to the wife for her
maintenance and support, if necessary, by a charge on the husband�s property,
such gross sum or such monthly or periodical payment of money for a term not
exceeding her life, as, having regard to her own property, if any, her
husband�s property and ability 39[the conduct of the parties and
other circumstances of the case], it may seem to the court to be just.
(2) If the district
court is satisfied that there in a change in the circumstances of either party
at any time after it has made an order under sub-section (1), it may, at the
instance of either party, vary, modify or rescind any such order in such manner
as it may seem to the court to be just.
(3) If the district court is satisfied that the wife in whose favor an order has been made under this section has remarried or is not leading a chaste life, 40[it may, at the instance of the husband vary, modify or rescind any such order and in such manner as the court may deem just.]
38. Custody of children
In any proceeding under Chapter V or Chapter VI the district court may, from time to time, pass such interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending.
39. Appeals from decrees and orders
(1) All decrees made
by the court in any proceeding under Chapter V or Chapter VI shall, subject to
the provisions of sub-section (3), be appealable as decrees of the court made
in the exercise of its original civil jurisdiction and such appeal shall lie to
the court to which appeals ordinarily lie from the decisions of the court given
in the exercise of its original civil jurisdiction.
(2) Orders made by the
court in any proceeding under this Act, under section 37 or section 38 shall,
subject to the provisions of sub-section (3), be appealable if they are not
interim orders, and every such appeal shall lie to the court to which appeals
ordinarily lie from the decisions of the court given in the exercise of its
original civil jurisdiction.
(3) There shall be no
appeal under this section on the subject of costs only.
(4) Every appeals under this section shall be preferred within a period of thirty days from the date of the decree or order.
39A. Enforcement of decrees and orders
All decrees and orders made by the court in any proceeding under Chapter V or Chapter VI shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced.]
40. Application of Act 5 of 1908
Subject to the other provisions contained in this Act, and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.
40A. Power to transfer petitions in certain cases
(1) Where-
(a) a petition under this Act has been
presented to the district court having jurisdiction by a party to the marriage praying
for a decree for judicial separation under section 23 or for a decree of
divorce under section 27, and
(b) another petition under this Act has been
presented thereafter by the other party to the marriage praying for decree for
judicial separation under section 23, or for decree of divorce under section 27
on any ground whether in the same district court or in a different district
court, in the same State or in a different State, the petition shall be dealt
with as specified in sub-section (2).
(2) In this case where
sub-section (1) applies,-
(a) if the petitions are presented to the same
district court, both the petitions shall be tried and heard together by that
district court ;
(b) if the petitions are presented to
different district courts, the petition presented later shall be transferred to
the district court in which the earlier petition was presented and both the
petitions shall be heard and disposed of together by the district court in
which the earlier petition was presented.
(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.
40B. Special provision relating to trial and disposal of petitions under the Act
(1) The trial of a
petition under this Act shall, so far as is practicable consistently with the
interests of justice in respect of the trial, be continued from day to day
until its conclusion, unless the court finds the adjournment of the trial beyond
the following day to be necessary for reasons to be recorded.
(2) Every petition
under this Act shall be tried as expeditiously as possible and endeavor shall
be made to conclude the trial within six months from the date of service of
notice of the petition on the respondent.
(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavor shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.
40C. Documentary evidence
Notwithstanding anything contained in any enactment to the country, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.]
41. Power of High Court to make rules regulating procedure
(1) The High Court
shall, by notification in the Official Gazette, make such rules consistent with
the provisions contained in this Act and the Code of Civil Procedure,1908, as
it my consider expedient for the purpose of carrying into effect the provisions
of Chapters V, VI and VII.
(2) In particular, and
without prejudice to the generality of the foregoing provisions, such rules
shall provide for,-
(a) the impleading by the petitioner of the adulterer
as a co-respondent on a petition for divorce on the ground of adultery, and the
circumstances in which the petitioner may be excused from doing so ;
(b) the awarding of
damages against any such co-respondent ;
(c) the intervention in any proceeding under
Chapter V or Chapter VI by any person not already a party thereto ;
(d) the form and contents of petitions for
nullity of marriage or for divorce and the payment of costs incurred by parties
to such petitions ; and
(e) any other matte for which no provision or no sufficient provision is made in this Act, and for which provision is made in the Indian Divorce Act, 1869.
Chapter VIII - Miscellaneous
42. Savings
Nothing contained in this Act shall affect the validity of any marriage not solemnized under its provisions; nor shall this Act be deemed directly or indirectly to affect the validity of any mode of contracting marriage.
43. Penalty on married person marrying again under this act
Save as otherwise provided in Chapter III, every person who, being at the time married, procures, a marriage of himself or herself to be solemnized under this Act shall be deemed to have committed an offence under section 494 or section 495 of the Indian Penal Code, as the case my be, and the marriage so solemnized shall be void.
44. Punishment of bigamy
Every person whose marriage is solemnized under this Act and who, during the lifetime of his or her wife or husband, contracts any other marriage shall be subject to the penalties provided in section 494 and section 495 of the Indian penal Code, for the offence of marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be void.
45. penalty for signing false declaration or certificate
Every person making, signing or attesting any declaration or certificate required by or under this Act containing a statement which is false and which he either knows or believes to be false or does not believe to be true shall be guilty of the offence described in section 199 of the Indian Penal Code.
46. Penalty for wrongful action of Marriage Officer
Any Marriage Officer
who knowingly an willfully solemnizes a marriage under this Act-
(1) without publishing
a notice regarding such marriage as required by section 5, or
(2) within thirty days
of the publication of the notice of such marriage, or
(3) in contravention
of any other provision contained in this Act,
shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both.
47. Marriage Certificate Book to be open to inspection
(1) The Marriage
Certificate Book kept under this Act shall at all reasonable times be open for
inspection and shall be admissible as evidence of the statement therein
contained.
(2) Certified extracts from the Marriage Certificate Book shall, on application. be given by the Marriage Officer to the applicant on payment by him of the prescribed fee.
48. Transmission of copies of entries in marriage records
Every Marriage Officer in a State shall send to Registrar-General of Births, Deaths and Marriages of that State at such intervals and in such form as may be prescribed, a true copy of all entries made by him in the marriage Certificate Book since the last of such intervals, and, in the case of Marriage Officers outside the territories to which this Act extends, the true copy shall be sent to such authority as the Central Government may specify in this behalf.
49. Correction of errors
(1) Any Marriage
Officer who discovers any error in he form or substance of any entry in the
Marriage Certificate Book may, within one month next after the discovery of
such error, in the presence of the persons married or, in case of their death
or absence, in the presence of the other credible witnesses, correct the error
by entry in the margin without any alteration of the original entry and shall
sign the marginal entry and add thereto the date of such correction and the
Marriage Officer shall make the like marginal entry in the certificate thereof.
(2) every correction
made under this section shall be attested by the witnesses in whose presence it
was made.
(3) Where a copy of any entry has already been sent under section 48 to the Registrar-General or other authority the Marriage Officer shall make and send in like manner a separate certificate of the original erroneous entry and of the marginal correction therein made.
50. Power to make rules
(1) the Central
Government, in the case of 43[***] officers of the Central
Government, and the State Government, in all other cases, may, by notification
in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and
without prejudice to the generality of the forgoing power, such rules may
provide for all or any of the following matters, namely :-
(a) the duties and powers of Marriage Officers
and the areas in which they may exercise jurisdiction ;
(b) the manner in which a Marriage Officer may
hold inquiries under this Act and the procedure therefor ;
(c) the form and manner in which any books
required by or under this Act shall be maintained ;
(d) the fees that may be levied for the
performance of any duty imposed upon a Marriage Officer under this Act ;
(e) the manner in
which public notice shall be given under section 16 ;
(f) the form in which, and the intervals
within which, copies of entries in the Marriage Certificate Book shall be sent
in pursuance of section 48 ;
44[(3) Every rule made
by the Central Government under this Act shall be laid, as soon as may be after
it is made, before each House of Parliament, while it is in session, for a
total period of thirty days which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the session immediately
following the session or the successive sessions aforesaid, both Houses agree
in making any modification in the rule or both Houses agree that the rule
should not be made, the rule shall thereafter have effect only in such modified
form or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.
(4) Every rule made by the State Government under this Act shall be laid, as soon as it is made, before the State Legislature.]
51. Repeals and savings
(1) The Special
Marriage Act, 1872, and any law corresponding to the Special Marriage Act,
1872, in force in any Part B State immediately before the commencement of this
Act are hereby repealed.
(2) Notwithstanding
such repeal,-
(a) all marriage duly solemnized under the
Special Marriage Act, 1872, or any such corresponding law shall be deemed to
have been solemnized under this Act ;
(b) all suits and proceedings in causes and
matter matrimonial which, when this Act comes into operation, are pending in
any court, shall be dealt with and decided by such court, so far as may be, as
if they had been originally instituted therein under this Act,
(3) The provisions of sub-section (2) shall be without prejudice to the provisions contained in section 6 of the General Clauses Act, 1897, which shall also apply to the repeal of the corresponding law had been an enactment.
The First Schedule
[See section 2 (b)
"Degrees of prohibited relationship"]
PART I
1. Mother
2. Father's window
(step-mother)
3. Mother's mother
4. Mother's father's
window (step grand-mother)
5. Mother's mother's
mother
6. Mother's mother's
father's widow (step great grand-mother)
7. Mother's mother's
mother
8. Mother's father's
father's window (step great grand-mother)
9. Father's mother
10. Father's father's
window (step grand mother)
11. Father's mother's
mother
12. Father's mother's
father's window (step great grand-mother)
13. Father's father's
mother
14. Father's father's
father's window (step great grand-mother)
15. Daughter
16. Son's window
17. Daughter's
daughter
18. Daughter's son's
window
19. Son' daughter
20. Son's son's window
21. Daughter's
daughter's daughter
22. Daughter's daughter's
son's window
23. Daughter's son's
daughter
24. Daughter's son's
son's window
25. Son's daughter's
daughter
26. Son's daughter's
son's window
27. Son's son's
daughter
28. Son's son's son's
window
29. Sister
30. Sister� daughter
31. Brother� daughter
32. Mother's sister
33. Father's sister
34. Father's brother�s
daughter
35. Father's sister�s
daughter
36. Mother's sister�s
daughter
37. Mother's brothers�
daughter.
Explanation.- For the purposes of
this Part, the expression "window" includes a divorced wife.
PART II
1. Father
2. Mother's husband
(step-father)
3. Father's father
4. Father's mother's
husband (step grand-father)
5. Father's father's
father
6. Father's father's
mother's husband (step great grand-father)
7. Father's mother's
father
8. Father's mother's
mother's husband (step great grand-father)
9. Mother's father
10. Mother's mother's
husband (step grand-father)
11. Mother's father's
father
12. Mother's father's
mother's husband (step great grand-father)
13. Mother's mother's
father
14. Mother's mother's
mother's husband (step great grand-father)
15. Son
16. Daughter's husband
17. Son's son
18. Son's daughter's
husband
19. Daughter's son
20. Daughter's
daughter's husband
21. Son's son's son
22. Son's son's
daughter's husband
23. Son's daughter's
son
24. Son's daughter's
daughter's husband
25. Daughter's son's
son
26. Daughter's son's
daughter's husband
27. Daughter's
daughter's son
28. Daughter's
daughter's daughter's husband
29. Brother
30. Brother�s son
31. Sister�s son
32. Mother's brother
33. Father's brother
34. Father's brother�s
son
35. Father's sister�s
son
36. Mother's sister�s
son
37 Mother's brother�s
Son
Explanation.-For the purposes of this Part, the expression "husband" includes a divorce husband.