SPECIAL MARRIAGE ACT, 1954

SOLEMNIZATION OF SPECIAL MARRIAGES

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 any two persons maybe solemnized under this Act, if at the time of the marriage of the following conditions are fulfilled, namely: -

1. neither party has a 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 marriage and the procreation of children; or
3. has been subject to recurrent attacks of insanity [***].
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 decree of prohibited relationship:
   Provided that where a custom governing at least on 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].

Explanation------ In this section, “custom”, in relation to a person belonging to any tribe, community, group or family, means any rule which that 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 or family, unless the State Government is satisfied----

1. that such rule has been continuously and uniformly observed for a long time among those members;
2. that such rule is certain and not unreasonable or opposed to public policy; and
3. that such rule, if applicable only to a family, has not been discontinues by the family.]

RESTUTION OF CONJUGAL RIGHTS AND JUDICIAL SEPARATION

Restitution of conjugal rights---When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district court for restitution of conjugal rights, and the court, on being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.

JUDICIAL SEPARATION: -- (1) A petition for judicial separation may be presented to the district court either by the husband or the wife, --

1. on any of the grounds specified [in sub-section (1) [ and sub-section (1A) of section 27] on which a petition for divorce might have been presented; or
2. 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 that application should not be granted, may 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 that 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.

NULLITY OF MARRIAGE AND DIVORCE

Void marriages: - (1) Any marriage solemnized under this Act shall be null and void [ and may, on a petition presented by either party thereto against the other party, be so declared] by a decree of nullity if----

1. any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled; or
2. the respondent was impotent at the time of 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.

VOIDABLE MARRIAGES:- Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if, --

1. the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or
2. the respondent was at the time of the marriage was pregnant by some person other than the petitioner; or
3. the consent of either party to the marriage was obtained by coercion or 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, ---
1. that the petitioner was at the time of the marriage ignorant of the facts alleged;
2. that proceedings were instituted within a year from the date of the marriage; and
3. 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,--
1. proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or
2. 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.

DIVORCE:- [ (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—

[ (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) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860), [***]

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

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,-

1. 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.
2. 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 [***] been suffering from leprosy, the disease not having been contacted from the petitioner; or

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

[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 constructed accordingly;]

[ (1A) A wife may also present a petition for divorce to the district court on the ground, ---

1. that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
2. that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (79 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), 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.]

[ (2) Subject to the provisions of this Act and 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---

1. that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties;
   or
2. 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.]