Special Marriage Act and Hindu Marriage Act Compared

A Hindu couple may marry either under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954; a couple of different religions can marry only under the latter. The two Acts share much of their structure on matrimonial relief, and courts read them together, but they differ on who may marry, how the marriage is formed, which defects make it void, who may claim alimony, and what happens to family property and succession. This note sets the two Acts side by side.

1. Formation and Validity

Figure 1: Who may marry, and how

• Form. The Special Marriage Act is a civil marriage with notice, objection and a declaration before the Marriage Officer. The Hindu Marriage Act requires the customary rites of either party; where saptapadi is part of them, the marriage is complete on the seventh step (s.7)
• Sapinda rule. The Hindu Marriage Act bars marriages within sapinda relationship as well as prohibited degrees. The Special Marriage Act has only the prohibited degrees in its First Schedule, which include first cousins.
• Custom. A custom permitting a prohibited marriage must be notified by the State Government under the Special Marriage Act, but need only be proved under the Hindu Marriage Act.
• Registration. Registration under the Hindu Marriage Act records the marriage; registration under Chapter III of the Special Marriage Act changes the law that governs it.

2. Nullity, Divorce and Ancillary Relief

Figure 2: Remedies and consequences

• Nullity. The Special Marriage Act is stricter: mental incapacity, under age and impotence make a marriage void, whereas under the Hindu Marriage Act the first two make it voidable or leave it valid, and impotence makes it voidable.
• Divorce. The fault grounds are almost identical. The Hindu Marriage Act adds conversion to another religion and renunciation of the world, and gives the wife four special grounds instead of two.
• Same procedure. Both provide restitution, judicial separation, mutual consent with a six-month cooling-off period, a one-year bar on early divorce petitions, in camera hearings and a ninety-day appeal period.
• Alimony. Only the wife may claim under the Special Marriage Act; either spouse may claim under the Hindu Marriage Act.
• Succession. Under the Special Marriage Act, s.19 severs a Hindu party from the joint family and s.21 applies the Indian Succession Act, unless both parties are Hindus, Buddhists, Sikhs or Jains (s.21A)

3. Choosing between the Acts

• Hindu couples. A Hindu couple who marry under the Special Marriage Act keep Hindu succession law through s.21A, but their marriage is governed by the Special Marriage Act for validity and divorce.
• Interfaith couples. Only the Special Marriage Act is available without conversion (Topic 26)
• Already married. A couple married under Hindu rites may register under Chapter III of the Special Marriage Act, which then governs the marriage (Topic 7)

4. Frequently Asked Questions

Is an underage marriage void under both Acts?

No. Under the Special Marriage Act it is void under s.24. Under the Hindu Marriage Act, breach of the age condition makes the marriage neither void nor voidable, though it is punishable under s.18 and may be voidable at the child's option under the Prohibition of Child Marriage Act, 2006.

Can a husband claim alimony under both Acts?

Only under the Hindu Marriage Act, where ss.24 and 25 allow either spouse to claim. Sections 36 and 37 of the Special Marriage Act provide only for the wife.

5. Related Topics

• Topic 3: Conditions for a Special Marriage, Section 4. Conditions under this Act.
• Topic 30: Leading Cases and Revision Chart. Final revision.