(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.
