(This article was published on 28 February 2019. It has been republished from The Quint's archives, with the Supreme Court discussing the Special Marriage Act (SMA) in the ongoing marriage equality hearings.)
The Special Marriage Act (SMA) was enacted in 1954 as part of a series of reforms to personal laws in India that Jawaharlal Nehru had made a priority.
It was meant to be a legislation to govern marriages that could not be solemnised according to religious customs – which essentially meant inter-faith or inter-caste marriages.
It can also be used by couples from the same community who don't want their marriage (and ancillary issues like divorce) governed by relevant personal laws – a marriage performed in accordance with religious rites can also be registered under the SMA afterward.
Explained: What Is the Special Marriage Act & What Are Its Provisions?
1. A Compromise Between Nehru & Conservatives
A similar law had existed since 1872, but it included some extremely problematic elements, including renunciation of religion by anyone getting married under it. It also had no provision for dissolution or nullification of marriage.
Renunciation as a precondition was removed for marriages among Hindus, Sikhs, Buddhists, and Jains in 1922 – but this wasn’t enough, necessitating the 1954 SMA.
Now, anybody can get married under the SMA without giving up their religion, and there are proper provisions for divorce (including by mutual consent), custody of children, and alimony.
So, what are some of the provisions under the SMA? What is the process for registering a marriage under the SMA? The Quint answers.
The SMA was supposed to be a way of circumventing cultural taboos against marrying outside one's religion or caste.
But while it does provide for this, it came into being at a time when Nehru was embroiled in a bitter struggle with Hindu conservatives both within the Congress and outside it, who were not pleased with his proposals for reforming the Hindu personal law, and were also not happy with the idea of unrestricted inter-religious marriages.
As a result, the SMA came to include a number of provisions meant to serve as a compromise between Nehru and the conservatives, two of which stand out:
The requirement of a notice period before a marriage can be conducted – which makes the process more cumbersome;
If a Hindu, Buddhist, Sikh or Jain marries outside of these communities, they are no longer considered part of the "undivided family" – which means they cannot inherit ancestral property if they marry a Muslim, Christian, etc.
Expand2. What Are the Conditions for Getting Married Under SMA?
The SMA applies to the whole of India except Jammu & Kashmir. Citizens of India residing in Jammu and Kashmir but from another State/UT can also get married in accordance with the SMA.
Interestingly, the language of the core provisions of the SMA is gender-neutral ("any two persons", "the parties"), which means it could textually apply to same-sex marriages.
However, other provisions imply that one party to the marriage has to be male and the other female (Section 4(c), for instance), and in context, the SMA was intended to apply to heterosexual marriages only.
Section 4 of the SMA specifies the following conditions for a couple to get married under the SMA:
Neither of them has a living spouse;
Neither of them is incapable of giving consent to the marriage because of an unsound mind;
Neither of them has been suffering from a mental disorder which makes them unfit for marriage or having children;
Neither of them has been subject to recurrent attacks of insanity;
The man is 21 years old or older, and the woman is 18 years or older;
They are not within the "degrees of prohibited relationship." This concept broadly prohibits incest, as well as marriages between first cousins, and certain relations by marriage.
If a couple wants to register a marriage under the SMA, the conditions are essentially the same (Section 15, SMA).
Expand3. Process for Registering a Marriage Under SMA
If a couple wants to get married or register their marriage under the SMA – as an interfaith marriage would involve – the following steps need to be followed:
First, the couple has to give notice in writing to the "Marriage Officer" of the district in which at least one of them has been residing for the last 30 days. [Section 5, SMA] The marriage is supposed to be scheduled within three months from the date of the notice.
Once the notice has been received by the Marriage Officer, this has to be 'published' by displaying it in their office in a conspicuous place. A copy has to also be kept in a "Marriage Notice Book" which can be inspected by anyone free of charge. [Section 6, SMA]
For 30 days after the notice has been published, anyone can object to the marriage IF it contravenes one of the conditions for marriage (age, capacity to consent, no incest, etc). [Section 7, SMA] If there are no objections, the marriage can be solemnised at the end of the 30-day period.
If someone does object to the marriage, then the Marriage Officer has to conduct an inquiry into whether or not the objection is valid within 30 days of receiving the objection. During this time, the marriage cannot take place. If the Marriage Officer decides the objection is valid and refuses to solemnise the marriage, either the bride or groom can file an appeal before the district court within 30 days of the refusal. [Section 8, SMA]
Once any objections are dealt with, the bride and groom and three witnesses have to sign a declaration in the presence of the Marriage Officer, who then countersigns it. [Section 11, SMA]
After all this, the marriage can finally be solemnised, either at the Marriage Officer's office (usually in the district court) or some other place. Each party has to say to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties, "I, (A), take the (B), to be my lawful wife (or husband)." [Section 12, SMA]
After the solemnisation, the Marriage Officer registers the details in a certificate, which is signed by the parties to the marriage and the three witnesses. Once the certificate is entered in the "Marriage Certificate Book," this becomes conclusive evidence of a marriage under the SMA. [Section 13, SMA]
Expand4. The 30-Day Objection Period & Its Misuse
No religious marriage law in India includes any requirement to provide notice to a government (or even religious) functionary, or for random third parties to object to a marriage. And yet, under the SMA, a marriage can only take place after the notice period discussed above.
It is quite clear that this requirement was inserted in the SMA to provide an opportunity for the families or communities of bride or groom to get to know about the impending wedding, and make attempts to dissuade the couple. It precludes elopement because of the 30-day residence requirement and because the Marriage Officer has to publish the information.
As many inter-faith marriages still take place in circumstances where the families or communities object to the union and where the lives of the couples are at risk, this procedural step is not just cumbersome, but dangerous as well, defeating the entire point of having a legislation like the SMA.
If this weren’t bad enough in itself, local authorities often use the notice requirement as a way to impose even more onerous conditions on a couple.
Haryana's Court Marriage Check List for Gurugram (Gurgaon), for instance, required the notice to be sent to the home address of the couple, and, incredibly, publication in a national newspaper. It also specified that the bride and groom couldn’t be staying in the same place at the time of applying, which is not a precondition in the SMA or even any religious marriage law.
Even keeping aside the safety implications (which are grave), such requirements are unnecessary violations of a couple’s privacy. As privacy is a fundamental right, it cannot be infringed without a law which satisfies tests of proportionality and legitimacy – requirements for notice to be sent to one’s family or for the couple to be living separately satisfy neither.
Expand5. Court Rulings That Can Help Couples Being Harassed
It goes without saying that the courts have found such additional requirements to be illegal.
The Delhi High Court objected to this in the 2009 case of Pranav Kumar Mishra vs Govt of NCT Of Delhi, where it held that Marriage Officers could not send notices to the residences of couples. Justice Ravindra Bhat said this would violate the right to privacy, and that:
"It is to be kept in mind the that the Special Marriage Act was enacted to enable a special form of marriage for any Indian national, professing different faiths, or desiring a civil form of marriage. The unwarranted disclosure of matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize the marriage itself. In certain instances, it may even endanger the life or limb of one at the other party due to parental interference."
In February 2018, the Rajasthan High Court affirmed this reasoning in Kuldeep Singh Meena vs State of Rajasthan, noting that the SMA only requires the notice to be displayed on a display board at the Marriage Officer’s office. The high court makes it very clear that apart from the conditions specified in the SMA, authorities cannot impose additional requirements on couples.
In July 2018, the Punjab and Haryana High Court emphasised that the SMA had to be implemented in a way to promote inter-faith marriages when striking down the Gurugram Check List, holding that:
"The state is not concerned with the marriage itself but with the procedure it adopts which must reflect the mind-set of the changed times in a secular nation promoting inter-religion marriages instead of the officialdom raising eyebrows and laying snares and land mines beneath the sacrosanct feet of the Special Marriage Act, 1954."
Of course, since the SMA itself allows for objections to be raised against an impending marriage, it isn’t as though the legislation itself is free from meddling. However, such objections can only be made on the grounds specified in Section 4 of the SMA – the conditions discussed earlier.
Even these aren’t perfect. For instance, they allow for objections where one party suffers from a mental disorder, which should be something the parties to the marriage should be concerned about, and nobody else, not even the families of the couple.
But at least they don't allow objections on the ground of community sentiment or parental consent, and so on, which the recent Hadiya case showed can still be used to interfere in the lives of consenting adults to ridiculous lengths.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Expand
A similar law had existed since 1872, but it included some extremely problematic elements, including renunciation of religion by anyone getting married under it. It also had no provision for dissolution or nullification of marriage.
Renunciation as a precondition was removed for marriages among Hindus, Sikhs, Buddhists, and Jains in 1922 – but this wasn’t enough, necessitating the 1954 SMA.
Now, anybody can get married under the SMA without giving up their religion, and there are proper provisions for divorce (including by mutual consent), custody of children, and alimony.
So, what are some of the provisions under the SMA? What is the process for registering a marriage under the SMA? The Quint answers.
A Compromise Between Nehru & Conservatives
The SMA was supposed to be a way of circumventing cultural taboos against marrying outside one's religion or caste.
But while it does provide for this, it came into being at a time when Nehru was embroiled in a bitter struggle with Hindu conservatives both within the Congress and outside it, who were not pleased with his proposals for reforming the Hindu personal law, and were also not happy with the idea of unrestricted inter-religious marriages.
As a result, the SMA came to include a number of provisions meant to serve as a compromise between Nehru and the conservatives, two of which stand out:
The requirement of a notice period before a marriage can be conducted – which makes the process more cumbersome;
If a Hindu, Buddhist, Sikh or Jain marries outside of these communities, they are no longer considered part of the "undivided family" – which means they cannot inherit ancestral property if they marry a Muslim, Christian, etc.
What Are the Conditions for Getting Married Under SMA?
The SMA applies to the whole of India except Jammu & Kashmir. Citizens of India residing in Jammu and Kashmir but from another State/UT can also get married in accordance with the SMA.
Interestingly, the language of the core provisions of the SMA is gender-neutral ("any two persons", "the parties"), which means it could textually apply to same-sex marriages.
However, other provisions imply that one party to the marriage has to be male and the other female (Section 4(c), for instance), and in context, the SMA was intended to apply to heterosexual marriages only.
Section 4 of the SMA specifies the following conditions for a couple to get married under the SMA:
Neither of them has a living spouse;
Neither of them is incapable of giving consent to the marriage because of an unsound mind;
Neither of them has been suffering from a mental disorder which makes them unfit for marriage or having children;
Neither of them has been subject to recurrent attacks of insanity;
The man is 21 years old or older, and the woman is 18 years or older;
They are not within the "degrees of prohibited relationship." This concept broadly prohibits incest, as well as marriages between first cousins, and certain relations by marriage.
If a couple wants to register a marriage under the SMA, the conditions are essentially the same (Section 15, SMA).
Process for Registering a Marriage Under SMA
If a couple wants to get married or register their marriage under the SMA – as an interfaith marriage would involve – the following steps need to be followed:
First, the couple has to give notice in writing to the "Marriage Officer" of the district in which at least one of them has been residing for the last 30 days. [Section 5, SMA] The marriage is supposed to be scheduled within three months from the date of the notice.
Once the notice has been received by the Marriage Officer, this has to be 'published' by displaying it in their office in a conspicuous place. A copy has to also be kept in a "Marriage Notice Book" which can be inspected by anyone free of charge. [Section 6, SMA]
For 30 days after the notice has been published, anyone can object to the marriage IF it contravenes one of the conditions for marriage (age, capacity to consent, no incest, etc). [Section 7, SMA] If there are no objections, the marriage can be solemnised at the end of the 30-day period.
If someone does object to the marriage, then the Marriage Officer has to conduct an inquiry into whether or not the objection is valid within 30 days of receiving the objection. During this time, the marriage cannot take place. If the Marriage Officer decides the objection is valid and refuses to solemnise the marriage, either the bride or groom can file an appeal before the district court within 30 days of the refusal. [Section 8, SMA]
Once any objections are dealt with, the bride and groom and three witnesses have to sign a declaration in the presence of the Marriage Officer, who then countersigns it. [Section 11, SMA]
After all this, the marriage can finally be solemnised, either at the Marriage Officer's office (usually in the district court) or some other place. Each party has to say to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties, "I, (A), take the (B), to be my lawful wife (or husband)." [Section 12, SMA]
After the solemnisation, the Marriage Officer registers the details in a certificate, which is signed by the parties to the marriage and the three witnesses. Once the certificate is entered in the "Marriage Certificate Book," this becomes conclusive evidence of a marriage under the SMA. [Section 13, SMA]
The 30-Day Objection Period & Its Misuse
No religious marriage law in India includes any requirement to provide notice to a government (or even religious) functionary, or for random third parties to object to a marriage. And yet, under the SMA, a marriage can only take place after the notice period discussed above.
It is quite clear that this requirement was inserted in the SMA to provide an opportunity for the families or communities of bride or groom to get to know about the impending wedding, and make attempts to dissuade the couple. It precludes elopement because of the 30-day residence requirement and because the Marriage Officer has to publish the information.
As many inter-faith marriages still take place in circumstances where the families or communities object to the union and where the lives of the couples are at risk, this procedural step is not just cumbersome, but dangerous as well, defeating the entire point of having a legislation like the SMA.
If this weren’t bad enough in itself, local authorities often use the notice requirement as a way to impose even more onerous conditions on a couple.
Haryana's Court Marriage Check List for Gurugram (Gurgaon), for instance, required the notice to be sent to the home address of the couple, and, incredibly, publication in a national newspaper. It also specified that the bride and groom couldn’t be staying in the same place at the time of applying, which is not a precondition in the SMA or even any religious marriage law.
Even keeping aside the safety implications (which are grave), such requirements are unnecessary violations of a couple’s privacy. As privacy is a fundamental right, it cannot be infringed without a law which satisfies tests of proportionality and legitimacy – requirements for notice to be sent to one’s family or for the couple to be living separately satisfy neither.
Court Rulings That Can Help Couples Being Harassed
It goes without saying that the courts have found such additional requirements to be illegal.
The Delhi High Court objected to this in the 2009 case of Pranav Kumar Mishra vs Govt of NCT Of Delhi, where it held that Marriage Officers could not send notices to the residences of couples. Justice Ravindra Bhat said this would violate the right to privacy, and that:
"It is to be kept in mind the that the Special Marriage Act was enacted to enable a special form of marriage for any Indian national, professing different faiths, or desiring a civil form of marriage. The unwarranted disclosure of matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize the marriage itself. In certain instances, it may even endanger the life or limb of one at the other party due to parental interference."
In February 2018, the Rajasthan High Court affirmed this reasoning in Kuldeep Singh Meena vs State of Rajasthan, noting that the SMA only requires the notice to be displayed on a display board at the Marriage Officer’s office. The high court makes it very clear that apart from the conditions specified in the SMA, authorities cannot impose additional requirements on couples.
In July 2018, the Punjab and Haryana High Court emphasised that the SMA had to be implemented in a way to promote inter-faith marriages when striking down the Gurugram Check List, holding that:
"The state is not concerned with the marriage itself but with the procedure it adopts which must reflect the mind-set of the changed times in a secular nation promoting inter-religion marriages instead of the officialdom raising eyebrows and laying snares and land mines beneath the sacrosanct feet of the Special Marriage Act, 1954."
Of course, since the SMA itself allows for objections to be raised against an impending marriage, it isn’t as though the legislation itself is free from meddling. However, such objections can only be made on the grounds specified in Section 4 of the SMA – the conditions discussed earlier.
Even these aren’t perfect. For instance, they allow for objections where one party suffers from a mental disorder, which should be something the parties to the marriage should be concerned about, and nobody else, not even the families of the couple.
But at least they don't allow objections on the ground of community sentiment or parental consent, and so on, which the recent Hadiya case showed can still be used to interfere in the lives of consenting adults to ridiculous lengths.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)