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Shree. ( Advocate.)     11 March 2008

Hindu marriage act vs.Special marriage act

[INDIA] - Hindu Marriage Act vs. Special Marriage Act

For your consideration:

A valid marriage under the Hindu Marriage Act is liable to be registered. If a marriage is solemnized between two Hindus in which the male is 21 years old and the female is 18 years old, then though their marriage is legally valid still they cannot register their marriage under the Special Marriage Act, until the female attains the age of 21. The parties to the marriage cannot register their marriage though they have followed all legal conditions for a legally enforceable and binding marriage whereas the registration is the strongest source to prove that the marriage is valid.

So, using the Constitutional Law, a question would be: Either the Hindu Marriage Act or the Special Marriage Act is not in accordance with law. And if females and males have the same rights, then this would mean, that the Hindu Marriage Act is legally not valid, because it is differed with different ages of female/male. The male must wait until to the age of 21, and the female need only to be 18 years old. This is not the same fair right as the Constitutional Law urgently ask for. Valid would be in such a consideration the Special Marriage Act, because if gives both s*x the same fair rights of to be 21 years old.

Or how do you see this? I have doubts, that the Hindu Marriage Act of India can "overjump/ignore" the Constitutional Law of India. Hmmm?


Learning

 4 Replies

Prakash Yedhula (Lawyer)     11 March 2008

The point is well taken. We need to find out the objects for such reasoning.

I have extracted the provisions relating to the topic as under.

Special Marriage Act

Section - 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,

1. neither party has spouse living;

2. neither party

1. is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

2. 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 marriages and the procreation of children; or as to be unfit for marriage and the procreation of children; or

3. has been subject to recurrent attacks of insanity or epilepsy;

3. the male has completed the age of twenty-one years and the female the age of eighteen years;

4. the parties are not within the degrees of prohibited relationship; provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship, and

5. 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


Section - 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.

Section - 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.

Section - 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

Section - 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.

Section - 12

Place and form of solemnisation :-

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 the (B), to be my lawful wife (or husband)”.

Section - 13

10. Ceriticate of Marriage :-

1. When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereon in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the “Marriage Certificate Book” and such certificate shall be signed by the parties to the marriage and the three witnesses.

2. On a certificate being entered in the Marriage Certificate book by the Marriage Officer, the certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.

Section - 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 field under subsection(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 proceeding arising therefrom shall be deemed to have lapsed, and no Marriage Officer shall solemnize the marriage until a new notice has been given in the manner laid down in this Act.



Section - 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 (3 of 1872) or under this Act, may be registered unde this Chapter by a Marriage Officer in the territories to which Act extends if the following conditions are fulfilled, namely-

1. a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;

2. neither party has at the time of registration more than one spouse living;

3. neither party is an idiot or a lunatic at the time of registration;

4. the parties have completed the age of twenty-one years at the time of registration;

5. 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

6. the parties have been residing with in 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.

Section - 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.

Shree. ( Advocate.)     11 March 2008

Dear sir, Thx for ur valid info.

Guest (n/a)     08 April 2008

I want to know that where this notice will be placed and is any registered letter also sent to our home addresses for the purpose of verification. Please confirm Thanks

SANJAY DIXIT (Advocate)     09 April 2008

Thanks to Dear Sriram for picking a good point & thanks to Dear Yedul for providing useful information for the members. Dear Jyoti, public notice/ verification may be in 4 forms ( varies rules from state to state):-- (1) Public Notice at the NOTICE BOARD at the Court of such Marriage Magistrate. (2) Through Regd. Post at the address of both the parties. (3) Through the Local Police Station of the both parties. (4) verification through Local Investigation Unit (L.I.U.).

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