Special Marriage Act Vs. Hindu Marriage Act

January 6, 2024

INTRODUCTION

This article has been written by Ms. Komal Rawat, a 2nd year student of Lloyd School of Law, Greater Noida, Uttar Pradesh.

The article aims to present before you Special Marriage Act vs. Hindu Marriage Act. Every society recognises marriage as a socially accepted universal institution. One of the most profound and intricate human partnerships is marriage. Marriage is categories as two parts religious marriages and civil marriages. Religious Marriages is solemnized by religious authority and Civil Marriage is under the hand of the State authority. In 1955, the laws governing Hindu Marriage Act were formalised and put into effect. The present article gives an overview of the Hindu Marriage Act, 1955 along side with a Special Marriage Act, 1954. Hindu Marriage Act is one of the religious personal laws considers marriage as a sacrament and it is only applicable where both parties to marriage belongs to Hindus, Buddhist, Jain or Sikh by religion whereas, Special Marriage Act applies irrespective of the religion or faith followed by either party. It applies when both the parties belongs to a different-different religions. Also, two persons can decide if they want their marriage to be registered under Hindu Marriage Act they can and if they want to register under Special Marriage Act, then also they can choose as it is discretion of the parties.

The Special Marriage Act, 1954

Special Marriage Act was specially made for marriage of interfaith couples in 1954. Personal laws like Muslim Marriage Act & Hindu Marriage Act require spouse to convert to the religion of the other before the marriage as there was no uniform laws for marriage under which persons belonging to different religions or castes can marry with each other and result of which lots of conversion taken place just for marriages. The parties belonging to different religion or caste were facing problems of harassment and bigamy as their marriages were not legally recognized in society and doesn’t has any binding and which resulted in conversions, so to stop all these practices legislature came up with the special Marriage Act in 1954, which enables marriages between inter-faith or inter-caste couples without them giving up their religious identity or resorting two conversions. The act provides for the registration of marriages which gives legal recognition to the marriage and provide a number of legal benefits and protections to the couple, such as inheritance rights, succession rights and social security benefits.

It had total of fifty-five sections and had eight chapters under it:-

Chapter-1:- Preliminary

Chapter-2:- Solemnization of Special Marriage

Chapter-3:- Registration of Marriages celebrated in other forms

Chapter-4:- Consequences of Marriages under this act

Chapter-5:- Restitution of Conjugal Rights and Judicial Separation

Chapter-6:- Nullity of Marriage and Divorce

Chapter-7:- Jurisdiction and Procedure

Chapter-8:- Miscellaneous

The act in the first chapter States about the definition and extends to the whole of India except the state of Jammu and Kashmir and applies also to citizens of India domicile in the territories to which this act extents who are in the State of Jammu and Kashmir. It considered marriage as a civil contract irrespective of their religion and caste according to the conditions mention under section (4) of Special Marriage Act. It also states in chapter seven about the procedure and formality for solemnization under section (5) to (14) of a civil marriage. The parties have to file and notice of intended marriage on a specified form to the marriage registrar of the district in which one of the parties resides. The party must have resided there for at least thirty days immediately proceeding to the filing. Then, the notice is published and a thirty day waiting period is required during which objections may be raised to the marriage. At last, the conclusion of the waiting period the marriage maybe Solemnized at a specified marriage office. The Succession of the property of person married under this Act would be governed by Indian Succession Act. However, in case the parties to the marriage are Hindu, Buddhist, Sikh or Jain religion the succession of their property will be governed by Hindu Succession Act. It also talks about the Nullity of marriage in chapter six under section (24) and (25) of this act, section (24) states grounds under which marriage would be considered as a void marriage and section (25) states ground of voidability (at the option of the aggrieved party) of marriage but these sections will only applicable on person if they got married under this act otherwise it would not be applicable on them.

Mainly, the purpose of this act is to establish consistent legal measures to protect those who want to marry across castes or religions. It is the only act which declare child marriage as void and provides full rights to marry anybody irrespective of their religion or caste and also safeguards their basic rights which is essential in marriages. This act promotes social harmony, individual autonomy and equality in the Indian marriages.

The Hindu Marriage Act, 1955

Earlier, the Hindu Marriage laws were not codified and were not legally enforceable. Hindu Marriage law has evolved overtime reflecting changes in society, technology and legal systems. The scope of Hindu Marriage law refers to the legal provisions governing marriage and related issues in Hinduism. Based on Hindu law, the marriage is a sacred tie and last of ten sacraments that can never be broken. Also, it is a relationship that is established by birth to birth and cannot be considered as a contract because of that the marriage taken place under Hindu laws is considered as a sacrament as it is considered to be the purest form. The Hindu Marriage Act is a significant piece of legislation that governs Hindu marriages in India. The act has undergone several amendments since its enactment in 1955 to keep up with changing social and cultural norms.

In modern times, Hindu marriage law has undergone significant changes. The Hindu Marriage Act was enacted in 1955, which repealed the old Hindu Marriage Act of 1955. The Act provided for monogamy, i.e., the practice of having only one spouse at a time. The Act also provided for divorce, which was not recognized in ancient Hindu law. The Act also abolished the dowry system and prohibited the giving and receiving of dowry. It also recognized the right of women to property and inheritance. The Act also allowed remarriage for divorced and widowed women. The Act also introduced the concept of mutual consent, where both parties need to agree to the marriage and the divorce.

It has total thirty sections and six chapters under it:-

Chapter-1:- Preliminary

Chapter-2:- Hindu Marriages

Chapter-3:- Restitution of Conjugal Rights & Judicial Separation

Chapter-4:- Nullity of Marriage & Divorce

Chapter-5:- Jurisdiction & Procedure

Chapter-6:- Savings & Repeals

The act in the first chapter states about the definitions and extends to the whole of India for the Hindu community, Buddhist, Jain or Sikhs. Under chapter two it explains the conditions for getting married under this act and in case of no fulfillment of these conditions will consider marriage to be void or voidable under section (11)& (12) specified in chapter four. The registration of marriage cannot be registered unless two main essentials are fulfilled one is that a ceremony of marriage has been performed and second one that the parties have been living together as husband and wife. Under section (6) of this act it states the ceremonies like performing seven fheras and which is rituals which is performed under Hindu communities and result of that there are lots of marriage in India which are unregistered and still valid as they are marrying under the rituals which is mentioned under this act. Under Hindu law divorce is no where mentioned as the marriage is considered to be the relationship from birth to death and last for seven births. But in Modern times it is necessary to make laws on this so this act states about divorce under section (13). It also provides lots of safeguards to the rights of parties and also prohibited dowry and bigamy.

Mainly, the main purpose of the act was to codify the law relating to Hindu Marriages and others. Also, making it codified it become legally enforceable and also prohibited bigamy which was allowed earlier at the time of un-codified law and provided with some basic rights of child custody , divorce , restitution of conjugal rights, etc. to the parties marrying under this act.

Major differences b/w Special Marriage Act & Hindu Marriage Act

The major key differences between The Hindu Marriage Act and The Special Marriage Act is that The Hindu Marriage Act was established in 1955, while the Special Marriage Act was established in 1954. The Hindu Marriage Act was majorly made for the Hindu, Buddhist, Jain or Sikh religion whereas, the Special Marriage Act was specially made for the inter-Religion and for the inter-caste. And also this act is material to every one of the residents of India regardless of standing, race, religion, identity, etc. It implies both men and women of two distinct religions could marry under the extraordinary marriage at any point 1954’s Act.

The Hindu Marriage Act vs. Special Marriage Act opens the door to enlistment to currently solemnized marriages. It implies the residents can get hitched first, and later, they can opt for wedding enlistment within a time span. However, Hindu Marriage Act doesn’t accommodate the solemnization of a wedding by the marriage registrar. Then again, the Special Marriage Act offers solemnization for the wedding as well with respect to enlistment by a marriage official. Under the Hindu Marriage Act, all marriages should be solemnized through practices and customs, particularly with the Saptapadi. Also, conventional ceremonies are unnecessary to solemnize a marriage under the Special Marriage Act. However, it is optional. So, this is about the contrast between the Special Marriage Act of 1954 and the Hindu Marriage Act of 1955.

CONCLUSION

The Hindu Marriage Act and Special Marriage Act are both the acts which register marriage. The Hindu Marriage Act is pertinent to Hindus whereas, Special Marriage Act is appropriate to all residents regardless of religion or caste . Both the acts provides basic rights to the parties who married under it. The Hindu Marriage Act gives an open door to enlistment of solemnized marriage. It implies the residents can get hitched first, and later, they can enlist the marriage. Within a time span. However, Hindu Marriage Act doesn’t accommodate the solemnization of a wedding by the marriage registrar. Under the Hindu Marriage Act, all the marriages should be solemnized through the practices and customs, particularly with the Saptapadi. Under the Hindu Marriage Act , the registration of marriage is optional or desirable. It means it is not mandatory to register the marriage under the, Hindu Marriage Act as most of the Hindu marriages in India carried out without registration. The Hindu Marriage Act provides guidance for Hindus to be in a systematic marriage bond. It gives meaning to marriage, cohabiting rights for both the bride and groom, and a safety for their family and children so that they do not suffer from their parental issues.

Remarriage is possible once a marriage has been dissolved by a decree of divorce and no longer able to be appealed (whether there was no right of appeal in the first place, or whether the time for appealing has expired, or whether an appeal has been presented but dismissed). In addition, the Act compels intended spouses to wait one month following the publication of the notice, which is believed to be the time of objection. This interval, however, appears to be too prolonged for people who are constantly threatened by their relatives and communities. The Act gives family, caste, and society ample time and space to harass persons who intend to use it. Despite the fact that it allows two consensual adults to marry without regard for the faiths to which they belong, the law does not make it simpler in practice, since it appears that such couples still want community acceptance to confer validity to their marriage. It is difficult to understand how couples married under the Special Marriage Act, 1954 of 1954 differ from those marrying under their own laws. There appears to be a misalignment between the goal intended by this Act and the methods taken to attain it through its provisions.

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