Conditions for a Special Marriage: Section 4

Section 4 is the gateway to the Special Marriage Act. It sets out the conditions that must be satisfied at the time of the marriage: monogamy, mental capacity, minimum age, freedom from prohibited relationship, and a clause framed for Jammu and Kashmir. Its opening words override any other marriage law, so the parties' personal law neither adds to nor relaxes these conditions. Breach of any of the first four makes the marriage void under section 24, a stricter consequence than under the Hindu Marriage Act. This note examines each condition and its consequences.

1. The Five Conditions

Figure 1: Section 4, clauses (a) to (e)

• Overriding words. Section 4 applies 'notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages'. The conditions are tested at the time of the marriage.
• (a) Monogamy. Neither party may have a spouse living. A person whose earlier marriage subsists under any law, religious or civil, cannot marry under the Act; a second marriage is void and punishable as bigamy (Topic 25)
• (b) Mental capacity. Neither party may (i) be incapable of valid consent because of unsoundness of mind, (ii) though capable of consent, suffer from mental disorder of such a kind or extent as to be unfit for marriage and the procreation of children, or (iii) be subject to recurrent attacks of insanity. The words 'or epilepsy' were omitted in 1976.
• (c) Age. The male must have completed 21 years and the female 18 years. A 2021 Bill to raise the female age to 21 lapsed with the dissolution of the Lok Sabha in 2024.
• (d) Prohibited degrees. The parties must not be within the degrees of prohibited relationship in the First Schedule (Topic 2)
• (e) Jammu and Kashmir. For a marriage in the former State, both parties had to be Indian citizens domiciled in the territories to which the Act extended.

2. Custom and the Prohibited Degrees

• Proviso to s.4(d). Where a custom governing at least one of the parties permits a marriage between them, it may be solemnized even though they are within the prohibited degrees.
• Explanation: notified custom. 'Custom' means a rule that the State Government has notified in the Official Gazette as applicable to members of a tribe, community, group or family.
• Conditions for notification. The State Government must be satisfied that the rule has been continuously and uniformly observed for a long time, is certain and not unreasonable or opposed to public policy, and, if confined to a family, has not been discontinued by it.
• Contrast. Under the Hindu Marriage Act, a custom need only be proved as a fact before the court. Under this Act, an unnotified custom, however well established, does not lift the bar.

3. Consequence of Breach

Figure 2: Special Marriage Act and Hindu Marriage Act compared

• Section 24(1)(i). A marriage solemnized under the Act is void if any of the conditions in clauses (a), (b), (c) or (d) of s.4 was not fulfilled, and either party may obtain a decree of nullity (Topic 12)
• Underage marriage. Unlike the Hindu Marriage Act, where breach of the age condition makes the marriage neither void nor voidable, an underage marriage under this Act is void.
• Mental capacity. Unlike the Hindu Marriage Act, where such a marriage is voidable, breach of s.4(b) here makes it void.
• Impotence. Section 24(1)(ii) adds a ground outside s.4: the marriage is void if the respondent was impotent both at the marriage and at the institution of the suit.

4. Frequently Asked Questions

Is a marriage under the Special Marriage Act void if the bride is below 18?

Yes. Section 24(1)(i) declares void any marriage solemnized under the Act in breach of clauses (a) to (d) of s.4, which include the age condition. This differs from the Hindu Marriage Act, under which a marriage in breach of the age condition is neither void nor voidable, though it is punishable.

Can a custom permit a marriage within the prohibited degrees?

Yes, but only if the custom governs at least one of the parties and has been notified by the State Government in the Official Gazette, after satisfying itself that the rule is ancient, certain, reasonable and not opposed to public policy.

5. Related Topics

• Topic 12: Void Marriages, Section 24. Nullity for breach of s.4.
• Topic 4: Notice of Intended Marriage and Its Publication. The next step.