This article has been written by Ms. Himanshi Goswami, a 2nd year student of Lloyd School of Law, Greater Noida.
Abstract
The Special Marriage Act, adopted in India in 1954, is a pioneering piece of legislation that offers a legal framework for couples of various religions or those who desire to marry secularly. This legislation not only makes marriage registration and solemnization easier, but it also addresses the rights and benefits of children born to couples who married under its terms. We will dig into the numerous facets of the rights provided to children born to spouses under the Special Marriage Act, including legal, social, and personal characteristics, in this in-depth examination. There are several misconceptions in India concerning the legal status of children born of void and voidable marriages.
A legitimate child is one who is the product of a lawfully married couple. When it comes to marriage, we have invalid, voidable, and legitimate marriages. While the terms invalid and voidable cast doubt on the legitimacy of a marriage, lawful marriages are, as the word indicates, legal. In such cases, the legality of a child born from an annulled marriage is a major source of ambiguity. Because they do not satisfy the prerequisites for a lawful marriage, void marriages are null and void. Marriages that are voidable are not automatically void, but the parties have the option of seeking nullity from a competent court of jurisdiction on the reasons specified by the legislation. So, what happens to children born from void and voidable unions? What is their legal position when the marriage from which they were born is in disarray?
Introduction
The Special Marriage Act, 1954, was enacted in 1954 as one of independent India’s most major secular measures. The Act was designed to be a piece of legislation that regulates weddings that cannot be solemnised owing to religious traditions. The Act covers all Indian nationals, whether they dwell in India or elsewhere. The state of Jammu and Kashmir is not covered by this Act, although individuals domiciled in other states but residing in Jammu and Kashmir would be eligible for these provisions. It is a piece of legislation that creates a particular sort of marriage through registration. Marriage is unusual in that no religious conversion or rejection is required. Unlike traditional arranged marriages that include two families from the same caste or community, the Act seeks to legalise interreligious or inter-caste marriages. The Certificate of Registration issued under the Act has long been accepted as universal proof of marriage. The Act, as mentioned in the Preamble, permits for a special type of marriage under certain situations, registration of such and other marriages, and divorce. It applies to the whole country of India except the state of Jammu and Kashmir, and it also applies to Indian residents residing in the regions covered by this Act who are (in the state of Jammu and Kashmir). The legislation covers marriages between Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists. As a result, there is no specific judicial marriage for different faiths; rather, being married is a consistent process regardless of denomination. The Act contains laws for lawful marriage, marriage qualifications, dissolution of an interfaith marriage, marriage registration, and other restrictions. As a result, the aforementioned legislation was enacted in order to preserve people’s basic rights and allow them to choose their marital partners. The Act also aims to eliminate the threat of social problems like honour killing and love jihad, as well as to recognize the rights of children born from such marriages. The Special Marriage Act does not need any of these since Indians believe in weddings with suitable traditions, customs, and ceremonies that entail pomp and show and costly festivities. The essential criterion for a lawful marriage under this Act is the consent of both parties to the marriage. If both parties to the marriage are ready to marry each other, it is sufficient; caste, religion, race, and so on cannot be obstacles to their union here. To marry under this Act, the parties must file a notice with the district’s Marriage Registrar indicating their desire to marry each other in a district where at least one of the parties to the marriage has lived for at least 30 days prior to the day such notice is filed. The marriage is said to be solemnized after 30 days from the day when such notification was issued. However, if any individual connected to the parties opposes to the marriage and the registrar determines that the objection is reasonable, he may annul the marriage. A legitimate marriage also requires the parties to consent to the marriage in front of the marriage official and three witnesses.
The Legal Status of Children
Children born to spouses married under the Special Marriage Act are legally recognized as legitimate. Legitimacy is a critical notion that establishes a child’s legal position in terms of parental rights, inheritance, and societal acknowledgment. This legal recognition guarantees that children are not ostracised because of their birth circumstances. Inheritance rights are critical to a child’s financial future. Children have equal rights to inherit both parents’ property under the Special Marriage Act. The personal laws pertaining to the parents’ religion govern the specifics of inheritance. This gives children a legal claim to their parents’ assets, promoting financial stability and security. The issue of guardianship and custody is crucial, particularly in circumstances of separation or divorce. While the personal laws of the parents generally govern guardianship, the child’s wellbeing remains the primary concern. Courts may intervene to safeguard the child’s best interests, stressing elements such as emotional and financial stability, as well as the capacity to offer a caring environment. When a couple separates or divorces, the Special Marriage Act allows for maintenance to be paid to the spouse and children.
This financial assistance is critical for the children’s well-being, ensuring that they have access to school, healthcare, and a level of life equivalent to what they would have had if their parents remained together. Children born to Special Marriage Act couples are eligible for Indian citizenship if one of the parents is an Indian citizen. The laws in effect at the time of the child’s birth regulate the determination of nationality and citizenship. This provides children with a clear legal standing in terms of nationality and citizenship. Regardless of the marital legislation under which they married, parents are responsible for their children’s education and healthcare. Neglecting these tasks may result in legal ramifications. By acknowledging the validity of children, the Special Marriage Act promotes parents’ responsibility to foster the general well-being and development of their kids. The Special Marriage Act establishes a legal framework for adoption, allowing spouses to extend their households by adopting children. Adopted children enjoy the same inheritance and other legal rights as biological offspring.
Furthermore, the legislation facilitates succession planning by allowing spouses to make provisions for the transfer of property and assets to their offspring. Beyond legal issues, the Special Marriage Act aids to the societal acknowledgment and acceptance of children born to parents who choose a secular marriage. The recognition of these children’s validity by society is critical for their psychological well-being and absorption into the community. Legal recognition fosters an inclusive society by acting as a catalyst for public acceptance.
The rights of children born to Special Marriage Act couples are enshrined in the Indian Constitution. Fundamental rights such as equality and the preservation of personal liberty ensure that children are treated fairly and have the opportunity to live a life free of prejudice. The constitutional framework establishes a firm foundation for protecting the rights of all people, including children born in a variety of marital situations. While the Special Marriage Act establishes a solid foundation for children’s rights, many obstacles remain. The act’s implementation and awareness may differ between areas and communities. It is critical to raise awareness and ensure that the act’s provisions are available to everybody. Furthermore, filling any loopholes or inconsistencies in the statute can increase the rights of children born under the Special Marriage Act.
Under Section 25 of the Act, a marriage is voidable if: (a) the marriage has not been consummated due to the respondent’s wilful refusal, (b) the respondent-wife was pregnant by someone other than the petitioner-husband at the time of marriage, or (c) either party’s consent to the marriage was obtained through coercion or fraud.
Section 26 of the 1954 Special Marriage Act discusses the status of children born of null and voidable marriages. Subsection (1) specifies that if a marriage is declared null and void by Section 24 of the Special Marriage Act, 1954, any child born from that marriage is legal in the same way as the marriage would have been if it had been valid.
When a nullity decree is issued for a voidable marriage under Section 25 of the Special Marriage Act, 1955, a child born or conceived before the order is issued is presumed to be a legitimate child despite the nullity judgement.
Balkrishna Pandurang Halde vs. Yeshodabai Balkrishna Halde:
The court ruled that, while the children of a void marriage are recognized legitimate, they are not entitled to any portion of their parents’ ancestral coparcenary joint family holdings. Their entitlement to the share is restricted to the extent of their father’s separate property, albeit they cannot bring any claims in that property during their father’s lifetime. Only after their father’s death, and then only via Inheritance, would they be entitled to their father’s separate assets.
A marriage is void if it is: (a) a bigamous marriage, (b) marriage with a person of unsound mind or having another mental disorder, (c) marriage with a male or female under the age of 21, or (d) marriage with a person within the degrees of prohibited relationship, according to Section 24 of the Special Marriage Act, 1954.
(2017): Justice K.S. Puttaswamy (Retd.) and Others vs Union of India and Others:
While not directly relevant to the Special Marriage Act, this case is significant in that it affirms the right to privacy as a basic right guaranteed by the Indian Constitution. The acceptance of the right to privacy might have ramifications for family concerns, such as marriage and children.
Githa Hariharan v. Reserve Bank of India et al. (1999):
This lawsuit concerned guardianship and the mother’s rights in making decisions for her kid. It established that the mother is the natural guardian of a minor child and that the father’s rights are not exceeded just because he is the father.
Union of India vs. Shayara Bano (2017):
While this case principally concerned the practice of triple talaq, it also raised larger concerns about Muslim women’s rights, especially problems with marriage and children. The Supreme Court’s judgement deemed immediate triple talaq unlawful, highlighting the importance of protecting Muslim women’s rights.
Union of India v. Sarla Mudgal (1995):
This case brought to light the subject of bigamy, as well as the rights of the second wife and children born from a bigamous marriage. In this judgement, the Supreme Court stressed the importance of law change to address concerns resulting from bigamous marriages and protect the rights of women and children affected.
Dharmpal vs. Sharda (2003):
The Supreme Court explored the notion of maintenance for a child born out of marriage in this decision. It stressed the obligation of a father to support his illegitimate kid financially, even if the parents were not married.
Conclusion
The caste system is not a new concept in Indian society. Massive empires have lost their grasp on history as a result of the prevalent caste system. The start of which could not be pinpointed, but the end of which may be approaching. If a competent version of the Special Marriage Act, 1954 was passed, individuals would be entitled to marry the person of their choice regardless of caste, community, religion, or cultural taboos. With the community’s anger in mind, the Special marital Marriage is intended to protect the couple to the maximum degree possible. The Act created regulations governing lawful marriage, invalid marriage, voidable marriage, registration method, divorce reasons, maintenance, child status, and remarriage. The idea was to create a universal code that would reduce the divide in society that was consuming it like a termite. Parties to marriage could not leave before the Hindu Marriage Act of 1955. Sections 11 and 12 of the Hindu Marriage Act, 1955 allow parties to seek remedy from an invalid and annulable marriage. A child born of a null and invalid marriage is recognized legal under the 1976 Amending Act. A lawful marriage is governed by numerous requirements, according to section 5 of the Hindu Marriage Act, 1955; if any of them is violated, the marriage is declared null and void.
References
https://m-tribuneindia-com.cdn.ampproject.org/v/s/m.tribuneindia.com/news/archive/nation/sc-children-of-void-marriage-legitimate-712295?amp_js_v=a6&_gsa=1&usqp=mq331AQKKAFQArABIIACAw==#aoh=16372550675397&referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Fwww.tribuneindia.com%2Fnews%2Farchive%2Fnation%2Fsc-children-of-void-marriage-legitimate-712295
https://revenue.punjab.gov.in/?q=right-illegitimate-children-succeed
https://www.tclindia.in/children-born-out-of-a-void-marriage-are-entitled-to-a-share-only-in-the-separate-property-and-not-to-the-joint-family-properties-of-their-father/