Special Marriage Act, 1954: Nature, Object and Scheme

Most marriages in India are governed by the personal law of the parties' religion. The Special Marriage Act, 1954 offers an alternative: a civil marriage, open to any two persons who satisfy its conditions, whatever their religion, caste or nationality, and without any need to renounce their faith. It provides a complete code for the solemnization and registration of such marriages and for the remedies that follow, from judicial separation to divorce. This note explains the nature and object of the Act, its history, its main features, and how it is arranged.

1. Nature and Object

Figure 1: Main features of the Act

• Civil and secular. Marriage under the Act depends on statutory conditions and formalities, not on religious ceremony. Section 4 opens with the words 'notwithstanding anything contained in any other law', so the parties' personal law does not govern its validity.
• Who may marry. Any two persons who satisfy s.4, whether of the same religion, different religions or none. A foreign national may marry in India under the Act, subject to the residence requirement for notice (Topic 4)
• Three objects. To provide a special form of marriage for any persons in India and Indian nationals abroad, to allow registration of marriages already celebrated in other forms, and to provide for divorce and other matrimonial relief.
• Same-sex couples. In Supriyo v Union of India (2023), the Supreme Court declined to read the Act as permitting same-sex marriage, holding that any such change is for Parliament (Topic 27)

2. History

Figure 2: From 1872 to the present

• Special Marriage Act, 1872. Provided a form of marriage for persons who did not profess the Christian, Jewish, Hindu, Muslim, Parsi, Buddhist, Sikh or Jaina religion. In practice, a person had to declare that he professed none of these religions.
• The 1923 amendment. Allowed persons professing the Hindu, Buddhist, Sikh or Jaina religion to marry one another under the Act, but such a marriage severed the member from his undivided family.
• The 1954 Act. Removed the need to renounce religion, opened civil marriage to all, provided for registration of other marriages and gave a full scheme of matrimonial relief.
• Extent. Originally the Act did not extend to Jammu and Kashmir, though it applied to Indian citizens domiciled elsewhere who were there. In 2019, the words excluding Jammu and Kashmir were omitted from s.1(2), so it now extends to the whole of India.

3. Scheme of the Act

Figure 3: Eight Chapters, 51 sections

• Schedules. The First Schedule lists the degrees of prohibited relationship (Topic 2). The remaining Schedules contain the forms for the notice of intended marriage, the declarations by the parties and the certificates of marriage.
• Two routes. A couple may marry under the Act afresh (Chapter II), or, if already married in another form, may register that marriage under Chapter III so that it is deemed solemnized under the Act (Topic 7)
• Consequences. Marriage under the Act severs a member of an undivided Hindu, Buddhist, Sikh or Jaina family, and succession is governed by the Indian Succession Act, unless both parties are Hindus, Buddhists, Sikhs or Jains, in which case s.21A preserves the family position and the Hindu law of succession (Topics 8, 9)
• Self-contained remedies. The Act has its own provisions on restitution of conjugal rights, judicial separation, nullity, divorce, alimony and custody, broadly parallel to the Hindu Marriage Act, 1955 (Topic 28)

4. Frequently Asked Questions

Do the parties to a special marriage have to give up their religion?

No. Under the 1872 Act, parties in practice had to declare that they did not profess any of the listed religions. The 1954 Act removed that requirement, so persons of any religion, or of none, may marry under it while keeping their faith.

Can a foreign national marry under the Special Marriage Act in India?

Yes. Section 4 does not require Indian citizenship. The parties must satisfy its conditions and give notice to the Marriage Officer of a district in which at least one of them has resided for at least thirty days before the notice.

5. Related Topics

• Topic 3: Conditions for a Special Marriage, Section 4. Who may marry.
• Topic 28: Special Marriage Act and Hindu Marriage Act Compared. The two laws side by side.