Marriages in India were at first governed, only by various religious laws, based on what religion the couple practiced. But in 1954 Indian parliament enacted the Special Marriage Act which enables persons of different religious persuasions to enter into a valid marriage. The act applies not only to inter-religion but inter-caste marriages as well, help of this Act can also be taken by Indian nationals in foreign countries. Once a couple is married under this Act, or their previously solemnised marriage is registered under this Act, the marriage is governed not by the couple’s personal religious laws but by the laws mentioned in the Special Marriage Act 1954 itself.
The procedure of court marriages in India is governed by this very, previously mentioned, Special Marriage Act of 1954. Specified below is the procedure that needs to be followed for court marriages in India.
Step 1: The first step for a court marriage is to check if you are eligible for the same. One will be considered a candidate for marriage if all the following conditions are met-
Neither party has a living spouse at the time of applying for court marriage.
Both the parties to marriage are capable of giving valid consent to the same. They should both have soundness of mind i.e. when neither of the parties suffer any mental disorder to such an extent that it makes them unfit for marriage, or suffer from recurrent attacks of insanity.
The groom has completed the age of 21 years and the bride has completed the age of 18 years.
Both parties are fit for procreation of children.
The parties do not fall within the degrees of prohibited relations. Nevertheless, if the customs and traditions of either of the parties permit such a marriage which falls within the degrees of prohibited relations, then such a marriage shall be valid. A list of relations that fall within the degrees of prohibited relations is given in the First Schedule of Special Marriage Act, 1954.
Step 2: The second step will be, to then file a ‘Notice of Intended Marriage’. This notice is to be filed in the way specified in Second Schedule of the Special Marriage Act 1954. The notice must include specifications and proof from both the parties of their marital status, occupation, age, dwelling place, permanent dwelling place if present dwelling place is not permanent and length of residence.
The notice is to be filed 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 prior to the date on which such notice is given.
The Marriage Officer is to enter such notices in records of the Marriage Office and these records must be kept open for inspection (without fee) to those who wish of inspecting the same. A copy of the notice must also be published/put up in the office.
In cases where neither of the parties is permanently residing in the district of the Marriage Officer to whom the notice was sent, then the same Marriage Officer must forward this notice to the Marriage Officer in whose district such party permanently resides.
Step 3: The compulsory waiting period for a court marriage after the publication of notice is thirty days. This is because once the given notice is put up in the Marriage Office, any person can within thirty days of the notice being put up, object to the marriage. But such an objection can be made only if, the points of eligibility mentioned in step one are being contravened by the parties intending to marry.
If the above mentioned objection is made, then the Marriage Officer must inquire into the same and arrive at a decision within thirty days of such objection being made. The intended marriage cannot be solemnised until the Marriage Officer reaches a decision on the same.
If the Marriage Officer upholds the objection and solemnisation of marriage is refused, then either of the parties to the intended marriage can file an appeal to the district Court that has jurisdiction in the area where the Marriage Office is situated. Such an appeal must be filed within a period of thirty days from the day on which refusal was made. If an appeal is made then the decision of the district Court will be final and binding, the Marriage Officer has no choice but to act in accordance with the same.
Step 4: Once the thirty days compulsory waiting period is over and no objection has been made, or even if an objection was made and the decision on the same has been made in favour of the parties intending to marry, then solemnisation of the intended marriage is permitted.
Step 5: The couple intending to marry must have, on the day of the marriage, three people with them who will act as their marriage witnesses. Before the marriage is solemnised on the set day, the couple along with their three witnesses have to sign a declaration in the presence of the Marriage Officer, who will then countersign it. The solemnisation of marriage does not have to necessarily be in the Marriage Officer’s office. It can be (with the consent of the Marriage Officer) held at any other place that the parties desire, provided that such desired place is within a reasonable distance from the office.
The marriage can be performed in any such form as the parties choose, but the marriage will not be complete and binding unless each party say to the other (in any language of their choice) “I____, take ____, to be my lawful Wife/Husband.” Uttering of this sentence should take place in the presence of the Marriage Officer and the three witnesses.
Step 6: Once the marriage is solemnised, the Marriage Officer will enter a certificate of the marriage that took place in the Marriage Certificate Book. This marriage certificate is to be signed by the married couple, their three witnesses as well as the Marriage Officer. This marriage certificate is conclusive evidence of a court marriage in India.
If the proposed marriage is not solemnised within a period of three calendar months from the date on which the marriage notice was given, the marriage proceedings will be taken as having lapsed. If the same parties still want to marry a fresh notice will have to be sent. In cases where solemnisation of marriage was prevented by the Marriage Officer, resulting in an appeal filed by the parties intending to marry and the decision of such an appeal being given in favour of the parties by the district court, then this period of three months will be calculated from the date on which such decision was pronounced.
Some other important points regarding court marriages in India based on the general doubts of the parties intending to marry, are listed below;
The total number of marriage forms that need to be filled by the parties intending to marry are two. The first one is that which is sent as notice for the intended marriage. The second one is the declaration that needs to be signed before the solemnisation of marriage takes place.
The total time that a court marriage can take will have to be looked at from two perspectives. In one instance the Court marriage can be solemnised right after the compulsory waiting period of thirty days is over, in cases where no objections are made. The other instance is that in which an objection has been made. In these kind of cases the Marriage procedure can take up to sixty days.
As long as the eligibility criteria (as mentioned in Step 1) are fulfilled by the couple intending to marry, no permission is required by their family or relatives to enter a marriage under Special Marriage Act 1954.
The Court Marriage fee in India differs from state to state, but in any case the fee charged is not a very high but rather quite basic.
List of documents required for Court Marriages in India
Mentioned below are the documents that are required by the bride and groom;
Age proof of both parties( birth certificate/ matriculation certificate/ passport)
Residential proof of both parties (passport/ voter id/ electricity or landline telephone bill in the parties name/ ration card
Receipt of payment of fees for application form and other marriage fees.
If applying not from place of permanent residence but from a place in which one of the parties has been residing for more than a month, in such cases residential proof of the same is required (Ration card/ report from Station House Officer).
Affidavits from both parties regarding date of birth, present marital status (unmarried/divorced/widower).
Confirmation on the parties not falling within degrees of prohibited relation of each other.
Two passport sized photographs each of both parties
In case of divorcees, Divorce Decree Certificate
In case of widow and widower, Municipal Death Certificate of the deceased
All the above mentioned documents must have one original and one attested Xerox copy. The applicants should also keep scanned copies of the same, in case of online procedure.
The list of documents to be carried by the marriage parties witnesses are;
Passport (if any)
Driving License (if any)
Prospective amendments to the Special Marriage Act, 1954
A couple of novel case laws have, in a way, set the ball rolling for alterations in the Special Marriage Act of 1954 (SMA), the first one of these cases is Nandini Parveen v. Union of India. In the said case, a writ petition filed by a law student from Kerala is pending before the Supreme Court. Nandini’s case argues that publication of a marriage notice, which contains the couple’s personal information, as required by Section 6 (2) of SMA, is in violation of the right to privacy and therefore unconstitutional. On 24th August 2017, the Supreme Court reached a landmark judgement in Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., where it declared that in India the right to privacy is a fundamental right.
Chief Justice Bobde expressed certain reservations about the plea, saying that publication was important because what if someone runs away with someone’s wife or daughter. But Nandini’s lawyer argued that the question raised is not about inquiries being made by the Marriage Officer but the publication of the notice in the public domain. He also said that main purpose of this Act was to make marriages of people belonging to different religions or castes possible, but with this provision in the Act that compulsorily puts out personal details of a couple in the public domain, crimes such as honour killings are made possible. The petition also pointed out that publication of the couple’s personal details served no legitimate State interest. After hearing all these arguments the court issued a notice to the central government, seeking its response on the same and therefore this case might make alterations in the Special Marriage Act, 1954 possible in the near future.
The second case that might possibly lead to another change in Special Marriage Act is Independent Thought v. Union of India. Issue raised before the apex court in this case was to decide the legality and constitutionality of Exception 2 to Section 375 of the Indian Penal Code (IPC). This exception said that ‘sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape’. The judgement in this case said that Exception 2 to Section 375 IPC as far as it relates to a girl child below the age of 18 years is liable to be struck down, as it is arbitrary, capricious, whimsical and violative of rights of a girl child and not fair, just and reasonable and therefore violative of Article 14,15 and 21 of the Indian Constitution.
The judgement in this case is said to have triggered government’s move to revise the legal age of marriage for women, so as to improve maternal and infant mortality rate. Increase in the legal marriage age for women will also lead population control as the reproductive years will automatically come down. A need for parity in the legal marriage age of men and women is being felt, and the same was also confirmed by Prime Minister Narendra Modi in his Independence Day speech. He added that “a committee has been formed to ensure that the daughters are no longer suffering from malnutrition and are married off at the right age, and as soon as the report is submitted appropriate decisions will be taken about the age of marriage of daughters”.
Based on the above mentioned information it can be rightly said that once the age of marriage for females in India is decided afresh, it will also lead to amendment in Section 4 clause C of the Special Marriage Act, 1954.