(Act No.43 of 1954)[9th October 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.
Be it enacted by Parliament in the Fifth Year of the Republic of India as
follows:
1. Short title, extent 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 the Act
extends who are in the State of Jammu and Kashmir.
(3) It shall come into force on such date, i.e.1st January, 1955 as the Central
Government may, by notification in the Official Gazette, appoint.
2. Definitions- In this Act, unless the context
otherwise, requires,-
(a) (* * * *) Omitted
(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 Schedules 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 Explns. II and III.
"ancestor" includes the father and "ancestress" the mother;
(d) "district", in relation to a Marriage Officer, means the area for which he
is appointed as such under sub-section (1) or sub-section (2) of Sec.3;
(e) "District Court" means, in any area for which there is a City Civil 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;
(g) "State Government", in relation to a Union territory, means the
Administrator thereof.
Solemnization of Special Marriages
4. Conditions relating to solemnization of special marriage.-
Notwithstanding anything contained in any other law for the time being in force
relating to the solemnization of marriages, a marriage between any two 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:
(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;
(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
(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.Explanation- In this section, "customs, 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 issued in relation to the
members of any tribes, 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 is applicable only to a family, has not been discontinued by
the family.
5. Notices of intended marriage.- When a marriage
is intended to be solemnized under this Act, the parties of 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 Sec. 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 Sec. 5, the Marriage Officer shall also cause a
copy of such notice to be transmitted to the Marriage Officer 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 Sec. 6, object to the marriage on the ground that it would contravene one
or more of the conditions specified in Sec.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 Sec. 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 shall be signed by him or on his behalf.
8. Procedure on receipt of objection.- If an
objection is made under Sec. 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 withdraw 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 Sec.8, the Marriage Officer shall
have all the powers vested in a Civil Court under the Code of Civil Procedure,
1908(5 of 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 Sec.193 of the Indian
Penal Code(45 of 1960).
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 costs, 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 of costs so made may be executed in the same 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 Sec.7 to a Marriage Officer 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 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 therefrom as the parties may desire,
and upon such conditions and the payments 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 witnessess and in any language understood by the parties,- "I
(A) take thee
(B), to be my 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 calender
months from the date on which notice thereof has been given to the Marriage
Officer as required by Sec. 5 or where an appeal has been filed under
sub-section (2) of Sec.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 Sec.10, within three months from the
date of decision of the Central Government, the notice and all other proceedings
arising therefrom 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 Marriage 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 year at the time of
registration;
(e) the parties are not within the degrees of prohibited relationship:Provided
that in 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 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 objection and after hearing any objection received within that
period, shall, if satisfied that all the conditions mentioned in Sec. 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 Sec. 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 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
Sec.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 Sec. 19, any 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 (21 of 1850), applies.
21. Succession to property of parties married under Act.-
Notwithstanding any restrictions contained in the Indian Succession Act,1925 (39
of 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 therefrom.
21-A. Special provision in certain cases .- Where
the marriage is solemnized under this Act of any person who professes the Hindu,
Buddhist, Sikh or Jain religion with a person who professes the Hindu, Buddhish,
Sikh or Jain religion. Secs. 19 and 21 shall not apply and so much of Sec. 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
the husband or the wife has, without reasonable excuse, withdrawn from the
society of the other the aggrieved party may apply by petition to the District
Court 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.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 in sub-section (1) and sub-section (1-A) of
Sec. 27 on which a petition for divorce might have been presented;or
(b) on the grounds of failure to comply with a decree 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 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 (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 Cls.(a),(b), (c) and (d) of
Sec. 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 the suit.
(2) Nothing contained in this section shall apply to any marriage deemed to be
solemnized under the Act within the meaning of Sec. 18, but the registration of
any such marriage under Chapter III may be declared to be of no effect if the
registration was in contravention of any of the conditions specified in Cls.(a)
to (e) of Sec. 15:Provided that no such declaration shall be made in any case
where an appeal has been preferred under Sec.17 and the 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 wilful 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 (9 of 1872):Provided that in
the case specified in Cl.(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) the marital intercourse with the consent of the petitioner has not taken
place since the discovery by the petitioner of existence of the grounds a decree
: Provided further that in the case specified in Cl.(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 Sec. 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
Sec.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 Sec. 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 requiring any
such rights by reason of his not being the legitimate child of his parents.
27. Divorce.- (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 the wife on the ground
that the respondent-
(a) has, after the solemnization of the 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 proceeding 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 (45 of 1860); or
(d) has since the solemnization of the marriage treated the petitioner with
cruelty; or
(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 been suffering from leprosy, the disease not having been contracted from
the petitioner; or
(h) has not been heard 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;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 wilful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate expressions shall be
construed accordingly.(1-A) A wife may also present a petitioner 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 a suit under Sec. 18 of the Hindus
Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Sec.
125 of the Code of Criminal Procedure, 1973 (2 of 1974), or under the
corresponding Sec. 488 of the Code of Criminal Procedure, 1898 (5 of 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.(2) Subject to the provisions of
the 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.
27-A. Alternate relief in divorce proceedings- In
any proceeding under this Act, on a petition for a dissolution of marriage by a
decree of divorce, except in so far as the petition is founded on the ground
mentioned in Cl. (h) of sub-section (1) of Sec. 27, the Court may, if it
considers it just so to do, having regard to the circumstances of the 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 that they have mutually agreed
that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the
date of 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 avertments in the petition are true, 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 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 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 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 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 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 said one
year.
30. Re-marriage 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, either party to the marriage may marry again.
CHAPTER VII
Jurisdiction and Procedure
31. Court to which petition should be made.- (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 solemnized; 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 the
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
was 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
if satisfied that,-
(a) any of the grounds for granting relief exists; and
(b) where the petition is founded on the ground specified in Cl.(a) of
sub-section (1) of Sec. 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
endeavour to bring about a reconciliation between the parties :Provided that
nothing contained in this sub-section shall apply to any proceeding wherein
relief is sought on any of the grounds specified in Cls.(c), (e), (f), (g) and
(h) of sub-section (1) of Sec.27.(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 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 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, 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 is 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 favour an order
has been made under this section has remarried or is not leading a chaste life,
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 Sec.37 or
Sec.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 the costs
only.(4) Every appeal under this section shall be preferred within a period of
thirty days from the date of the decree or order.
39-A. 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.
40-A. 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 Sec.23 or for a decree of divorce under Sec.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 Sec.23, or for
decree of divorce under Sec.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 a 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 Cl. (b) of sub-section (2) applies, the Court or the
Government, as the case may be, competent under the Code of Civil Procedure,
1908 (5 of 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.
40-B. 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 endeavour 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
endeavour shall be made to conclude the hearing within three months from the
date of service of notice of appeal on the respondent.
40-C. Documentary evidence.-- Notwithstanding
anything contained in any enactment to the contrary, 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 (5 of 1908), as it may 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
provision, 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 matter 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 (4
of 1869).
42. Saving.-- Nothing contained in this Act shall
affect the validity of any marriage not solemnized under its provisions; not
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 Sec. 494 or
Sec. 495 of the Indian Penal Code 1860 (45 of 1860), as the case may 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 Secs.494 and 495 of the Indian Penal Code, 1860 (45 of 1860) for the
offence of marrying again during the lifetime of a husband of 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 Sec.199 of the Indian Penal
Code, 1860 (45 of 1860).
46. Penalty for wrongful action of Marriage Officer.--
Any Marriage Officer who knowingly and willfully solemnizes a marriage under
this Act,--(1) without publishing a notice regarding such marriage as required
by Sec.5 ; or(2) within thirty days of the publication of the notice 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
statements 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 the 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 two 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 Sec. 48 to the
Registrar-General or other authority the Marriage Officer shall make and send in
the like manner a separate certificate of the original erroneous entry and of
the marginal corrections therein made.
50. Power to make rules.-- (1) The Central
Government, in the case of 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 foregoing
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 therefore:
(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 Sec. 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 Sec.48:
(g) any other matter which may be or requires to be prescribed.
(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 (3 of 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 marriages duly solemnized under Special Marriage Act, 1872 (3 of 1872)
or any such corresponding law shall be deemed to have been solemnized under this
Act
:(b) all suits and proceeding in causes and matters 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 Sec. 6 of the General Clauses Act, 1897 (10 of 1897)
which shall also apply to the repeal of the corresponding law as if such
corresponding law had been an enactment.
THE FIRST SCHEDULE
(See Sec.2 (b))
Degree of Prohibited Relationship
1. Mother
2. Father's widow (step-mother)/
3. Mother's mother
4. Mother's father's widow (step grand-mother)
5. Mother's mother's mother
6. Mother's mother's father's widow (step-great-grandmother)
7. Mother's father's mother
8. Mother's father's father's widow (step-great-grandmother)
9. Father's mother
10. Father's father's widow (step-grandmother)
11. Father's mother's mother
12. Father's mother's father's widow (step-great-grandmother)
13. Father's father's mother14. Father's father's father's widow
(step-great-grandmother)
15. Daughter
16. Son's widow
17. Daughter's daughter
18. Daughter's son's widow
19. Son's daughter
20. Son's son's widow
21. Daughter's daughter's daughter
22. Daughter's daughter's son's widow
23. Daughter's son's daughter
24. Daughter's son's son's widow
25. Son's daughter's daughter
26. Son's daughter's son's widow
27. Son's son's daughter
28. Son's son's son's widow
29. Sister
30. Sister's daughter
31. Brother's 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 brother's daughterExplanation.- For the purposes of this Part, the
expression "widow" 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-grandmother)
5. Father's father's father
6. Father's father's mother's husband (step-great-grandfather)
7. Father's mother's father
8. Father's mother's mother's husband (step-great-grandfather)
9. Mother's father
10. Mother's mother's husband (step-grandfather)
11. Mother's father's father
12. Mother's father's mother's husband (step-great-grandfather)
13. Mother's mother's father
14. Mother's mother's mother's husband(step-great-grandfather)
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 divorced husband.
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