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The Special Marriage Act, 1954

Divorce Page 1
Divorce Page 2
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Mutual Consent Divorce
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Hindu Marriage Act
Dissolution of Muslim Marriages Act
Divorce Act
Parsi Marriage and Divorce Act
Special Marriage Act
Foreign Marriage Act

 

The Special Marriage Act, 1954

 

CHAPTER I

 Preliminary

1. Short title, extent and commencement.

2. Definitions.

3. Marriage Officers.

CHAPTER II

 Solemnization of special marriages

4. Conditions relating to solemnization of special marriages.

5. Notice of intended marriage.

6. Marriage Notice Book and publication.

7. Objection to marriage.

8. Procedure on receipt of objection.

9. Powers of Marriage Officers in respect of inquiries.

10. Procedure on receipt of objection by Marriage Officer abroad.

11. Declaration by parties and witnesses.

12. Place and form of solemnization.

13. Certificate of marriage.

14. New notice when marriage not solemnized within three months.

CHAPTER III

 Registration of marriages celebrated in other forms

15. Registration of marriages celebrated in other forms.

16. Procedure for registration.

17. Appeals from orders under Section 16.

18. Effect of registration of marriage under this Chapter.

CHAPTER IV

 Consequences of marriage under this act

19. Effect of marriage on member of undivided family.

20. Rights and disabilities not affected by Act.

21. Succession to property of parties married under Act.

21A. Special provision in certain cases.

CHAPTER V

 Restitution of conjugal rights and judicial separation

22. Restitution of conjugal rights.

23. Judicial separation.

CHAPTER VI

 Nullity of marriage and divorce

24. Void marriages.

25. Voidable marriages.

26. Legitimacy of children of void and voidable marriages.

27. Divorce.

27A. Alternate relief in divorce proceedings.

28. Divorce by mutual consent.

29. Restriction on petitions for divorce during first three years after marriage.

30. Remarriage of divorced persons.

CHAPTER VII

 Jurisdiction and procedure

31. Court to which petition should be made.

32. Contents and verification of petitions.

33. Proceedings to be in camera and may not be printed or published.

34. Duty of court in passing decrees.

35. Relief for respondent in divorce and other proceedings.

36. Alimony pendente lite.

37. Permanent alimony and maintenance.

38. Custody of children.

39. Appeals from decrees and orders.

39A. Enforcement of decrees and orders.

40. Application of Act 5 of 1908.

40A. Power to transfer petitions in certain cases.

40B. Special provision relating to trial and disposal of petition under the Act.

40C. Documentary evidence.

41. Power to High Court to make rules regulating procedure.

CHAPTER VIII

 Miscellaneous

42. Saving.

43. Penalty on married person marrying again under this Act.

44. Punishment of bigamy.

45. Penalty for signing false declaration or certificate.

46. Penalty for wrongful action of Marriage Officer.

47. Marriage Certificate Book to be open to inspection.

48. Transmission of copies of entries in marriage records.

49. Correction of errors.

50. Power to make rules.

51. Repeals and Savings.

The Schedules I

The Schedules II

The Schedules III

The Schedules IV

The Schedules V

________________

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:

CHAPTER I

PRELIMINARY

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 this Act extends who are [1][in the State of Jammu and Kashmir].

(3) It shall come in force on such [2][date] as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions. —  In this Act, unless the context otherwise requires, —

 (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 Schedule 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 explanations 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 Section 3;

 [3][(e)   “district court” means, in any area for which there is a city civil court, that 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.

3. Marriage Officers. —  (1) For the purposes of this Act, the State Government may, by notification in the Official Gazette, appoint one or more Marriage Officers for the whole or any part of the State.

[4][(2) For the purposes of this Act, in its application to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir, the Central Government may, by notification in the Official Gazette, specify such officers of the Central Government as it may think fit to be the Marriage Officers for the State or any part thereof.]

CHAPTER II

SOLEMNIZATION OF SPECIAL MARRIAGES

4. Conditions relating to solemnization of special marriages. — 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;

 [5][(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 [6][* * * *];

 (c)  the male has completed the age of twenty-one years and the female the age of eighteen years;

 [7][(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, not withstanding that they are within the degrees of prohibited relationship; and]

 [8][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.]

[9][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 tribe, community, group of 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, if applicable only to a family, has not been discontinued by the family.]

Comments

Section 4 only states that marriage between any two persons may be solemnised under the Act, namely, the Special Marriage Act, 1954, if neither party has a spouse living. It does not state that any marriage that took place between the persons is void if one of the parties has a spouse living whether the marriage took place under that Act or under the personal law of as it is stated in Section 17 of the Hindu Marriage Act. (Smt. Parmeshwari Bai v. Muthojirao Scindia, AIR 1981 Karnataka 40).

5. Notice of intended marriage. — When a marriage is intended to be solemnized under this Act, the parties to 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 Section 5 with the records of his office and shall also forth with 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 Section 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 the 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 Section 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in Section 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 Section 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. —  (1) If an objection is made under Section 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 withdrawn 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 Section 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 Section 193 of the Indian Penal Code (45 of 1860).

Explanation. — For the purpose of enforcing the attendance of any person to give evidence, the local limits of the jurisdiction of the Marriage Officer shall be the local limits of his district.

(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 for costs so made may be executed in the same manner as a decree passed by the district court within the local limits whose jurisdiction to the Marriage Officer has his office.

10. Procedure on receipt of objection by Marriage Officer abroad. —  Where an objection is made under Section 7 to a Marriage Officer [10][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 who 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 payment 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 witnesses 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 be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signature of witnesses have been complied with.

14. New notice when marriage not solemnized within three months. —  Whenever a marriage is not solemnized within three calendar months from the date on which notice thereof has been given to the Marriage Officer as required by Section 5, or where an appeal has been filed under sub-section (2) of Section 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 Section 10, within three months from the date of decision of the Central Government, the notice and all other proceedings arising the reform 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 MARRIAGES 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, (III of 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 years at the time of registration;

 (e)  the parties are not within the degrees of prohibited relationship;

Provided that in the 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 marriage 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 objections and after hearing any objection received within that period, shall, if satisfied that all the conditions mentioned in Section 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 Section 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 the 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 Section 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.

Comments

Section 18 of the Act is only for the purpose of sanctioning legitimacy to certain class of children that a marriage celebrated in other form and registered under the Special Marriage Act shall be deemed to be a marriage solemnised under the said Act and for no other purpose. (Smt. Lagna Bhattacharjee v. Shyamal Bhattacharjee, AIR 1975 Cal. 6).

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 Section 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 Intestate) had been omitted therefrom.

[11]21A. Special provision in certain cases. —  Where the marriage is solemnized under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, Section 19 and Section 21 shall not apply and so much of Section 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.

[12][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 [13][in sub-section (1)] [14][and sub-section (1A) of Section 27] on which a petition for divorce might have been presented; or

 (b)  on the ground 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, and 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.

Comments

The petition for judicial separation may be presented and the Court on being satisfied of the truth may decree of judicial separation accordingly. It should be noticed that there are no words in this section which explicitly bar the exercise of power of transfer, if available under some other statute, nor one can read such a limitation by necessary implication. (Bijan Kumar Bose v. Gouri Bose, AIR 1975 Patna 131).

CHAPTER VI

NULLITY OF MARRIAGE AND DIVORCE

24. Void marriages. —  (1) Any marriage solemnized under this Act shall be null and void [15][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 clauses (a), (b), (c) and (d) of Section 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 this Act within the meaning of Section 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 clauses (a) to (e) of Section 15:

Provided that no such declaration shall be made in any case where an appeal has been preferred under Section 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 willful 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 of fraud, as defined in the Indian Contract Act, 1872 (9 of 1872):

Provided that, in the case specified in clause (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)  that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree:

Provided further that in the case specified in clause (iii), the court shall not grant a decree if, —

 (a)  proceedings have not been instituted within one year after the coercion has 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.

[16][26. Legitimacy of children of void and voidable marriages. —  (1) Notwithstanding that a marriage is null and void under Section 24, and 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 (68 of 1976), and whether or not 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 Section 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 Section 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 acquiring any such rights by reason of his not being the legitimate child of his parents].

27. Divorce. —  [17][(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 —

 [18][(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 preceding the presentation of the petition; or]

 (c)  if undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code;  [19][* * * *]

 (d)  has since the solemnization of the marriage treated the petitioner with cruelty; or

 [20](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, —

(i) 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;

(ii) 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 [21][* * *] been suffering from leprosy, the disease not having been contracted from the petitioner; or

 (h)  has not been heard of as being alive for period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive;

[22][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.]

[23][* * * * *]

[24][(1A) A wife may also present a petition 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 Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding Section 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]

[25][(2) Subject to the provisions of this 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 (29 of 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 up wards 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]

[26][27A. Alternate relief in divorce proceedings. —  In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the ground mentioned in clause (h) of sub-section (1) of Section 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 present 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) [27][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 averments 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 [28][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 [29][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 [30][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 [31][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 [32][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 [33][said one year].

30. Remarriage of divorced persons. —  Where a marriage has been dissolved by the 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, [34][* * *] either party to the marriage may marry again.

CHAPTER VII

JURISDICTION AND PROCEDURE

31. Court to which petition should be made. —  [35][(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 to him if he were 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 of 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.

[36][33. Proceedings to be in camera and may not be printed or p ublished. —  (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 on 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 is satisfied that, —

 (a)  any of the grounds for granting relief exists; and

 (b)  [37][Where the petition is founded on the ground specified in clauses (a) of sub-section (1) of Section 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;

[38][(2) Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (c), clause (e), clause (f), clause (g) and clause (h) of sub-section (1) of section.]

[39][(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 proceeding 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.]

[40][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 a counter-claim for any relief under this Act on that ground, 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.

  [41]"Provided that the application for the payment of the expenses of the proceeding and such weekly or monthly  sum during the proceeding under Chapter V or Chapter VI shall, as far as possible, be disposed of within sixty days from the date of service of notice on the husband."

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 [42][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 is whose favour an order has been made under this section has re-married or is not leading a chaste life, [43][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.]

Comments

It is one of the settled principles of interpretation that the Court should lean in favour of sustaining a decree and should not permit the benefits under a decree to be lost unless there is any special reason for it. In incorporating a provision like Section 37 in the Act, Parliament intended to protect the wife at the time of divorce by providing for payment of maintenance. If the husband has left behind anestate at the time of his death, there can be no justification for the view that the decree is wiped out and the heirs would succeed to the property without the liability of satisfying the decree. (Mrs. Aruna Basu Mullick v. Mrs. Dorothea Mitra, AIR 1983 S.C. 916).

38. Custody of children. —  I n 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 of 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.

[44][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 Section 37 or Section 38 shall, subject to any 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 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.

[45][39A. 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.

[46][40A. 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 Section 23 or for a decree of divorce under Section 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 Section 23, or for decree of divorce under Section 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 the 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 clause (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.

40B. Special provision relating to trial and disposal of petition 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 conclusions, 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.

40C. 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 to 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 Chapter 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 form 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).

CHAPTER VII

MISCELLANEOUS

42. Saving. —  Nothing contained is this Act shall affect the validity of any marriage not solemnized under its provisions; nor 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 Section 494 or Section 495 of the Indian Penal Code (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 Section 494 and Section 495 of the Indian Code (45 of 1860), for the offence of marrying again during the lifetime of a husband or 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 the true shall be guilty of the offence described in Section 199 of the Indian Penal Code (45 of 1860.)

46. Penalty for wrongful action of Marriage Officer. —  Any Marriage officer who knowingly and wilfully solemnizes a marriage under this Act —

(1) without publishing a notice regarding such marriage as required by Section 5, or

(2) within thirty days of the publication of the notice of 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 Officer 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 the 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 Section 48 to the Registrar-General or other authority, the Marriage Officer shall make and send in 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 [47][* * *] officers of the Central Government, and the State Government, in all other cases, may, by notification in the Official Gazette, makes 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 therefor;

 (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 Section 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 Section 48;

 (g)  any other matter which may be or requires to be prescribed.

[48][(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 rules 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 or 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 the 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 proceedings 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 Section 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 has been an enactment.

THE FIRST SCHEDULE

[See Section 2(b) “Degrees of prohibited relationship”]

PART I

 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 grand-mother)

 7.  Mother's father's mother

 8.  Mother's father's father's widow (step great grand-mother)

 9.  Father's mother

 10.  Father's father's widow (step grand-mother)

 11.  Father's mother's mother

 12.  Father's mother's father's widow (step great grand-mother)

 13.  Father's father's mother

 14.  Father's father's father's widow (step great grand-mother)

 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 daughter.

Explanation. — 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 grand-father)

 5.  Father's father's father

 6.  Father's father's mother's husband (step great grand-father)

 7.  Father's mother's father

 8.  Father's mother's mother's husband (step great grand-father)

 9.  Mother's father

 10.  Mother's mother's husband (step grand-father)

 11.  Mother's father's father

 12.  Mother's father's mother's husband (step great grand-father)

 13.  Mother's mother's father

 14.  Mother's mother's mother's husband (step great grand-father)

 15.  Son

 16.  Daughter's husband

 17.  Son's son

 18.  Son's daughter's husband

 19.  Daughter's son

 20.  Daughter's daughter's husband

 21.  Son's son's son

 22.  Son's son's daughter's husband

 23.  Son's daughter's son

 24.  Son's daughter's daughter's husband

 25.  Daughter's son's son

 26.  Daughter's son's daughter's husband

 27.  Daughter's daughter's son

 28.  Daughter's daughter's daughter's husband

 29.  Brother

 30.  Brother's son

 31.  Sister's son

 32.  Mother's brother

 33.  Father's brother

 34.  Father's brother's son

 35.  Father's sister's son

 36.  Mother's sister's son

 37.  Mother's brother's son.

Explanation. — For the purposes of this Part, the expression “husband” includes a divorced husband.

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