By Anika Mardiah Chowdhury

When the parties belong to the same religion their marriage is administered by their personal laws;  for example, Muslim laws or Hindu laws etc. On the other hand, the purpose of the Special Marriage Act, of 1872  is to deal with the case of inter-religion marriage and the marriages between national, citizens and foreigners belong different religions. Hence the Act states to provide a form of marriage for persons neither of whom professes the Christian or the Jewish, or the Hindu or the Muslim or the Parsi or the Buddhist, or the Sikh or the Jaina religion rather the persons each of whom professes one or other of the following religions, the Hindu, Buddhist, Sikh or Jaina religion.

In this article the basis of the Special Marriage Act,1872 and an analysis of such will be featured along with the procedures for divorce under the Divorce Act, 1869 will be discussed.  

Section 2 of the Special Marriage Act states the conditions upon parties by which marriages may be celebrated-

  1. Neither Party must, at the time of the marriage, have a husband or wife living,
  2. The man must have completed his age of eighteen years and the woman her age of Fourteen years,
  3. If he or she has not completed the age of Twenty-one years, has to obtain the consent of his or her father or guardian to the marriage,
  4. Lastly, the parties must not be related to each other in any degree of consanguinity or affinity which would according to any law to which either of them is subject render a marriage between them illegal.

Provided that neither any law nor custom shall prevent the marriage except consanguinity or affinity, but provided also that not any consanguinity or affinity shall prevent the marriage unless a relationship can be traced between the parties through some common ancestor or unless one of the parties is the lineal ancestor or the brother or sister of some lineal ancestor of the other.

The document required for a Special Marriage is following-

Procedure for marriage to be solemnized-

According to section 4 of the following Act, one of the parties must give notice in writing to the Registrar before whom it is to be solemnized. It is to be mentioned that the Registrar to whom such notice is given must be the registrar of a district within which one at least of the parties to the marriage has resided for fourteen days before such notice is given.

Under section 10 before the marriage is solemnized, the parties and three witnesses shall in the presence of the Registrar, sign a declaration. If either party has not completed the age of twenty-one years, the declaration shall also be signed by his or her father or guardian then it shall be countersigned by the Registrar. Section 11 states that the marriage shall be solemnized in the presence of the Registrar and of the three witnesses who signed the declaration.

The Government shall prescribe the fees to be paid to the Registrar for the duties to be discharged by him under this Act. The Registrar may if he thinks fit, demand payment of any such fee before the solemnization of the marriage or performance of any other duty in respect of which it is payable.

Next Section 6 states objections regarding the marriage, the marriage will not be solemnized if an objection is made by any party on the grounds prescribed in section 2 of this Act. The nature of the objection made shall be recorded in writing by the Registrar in the register, and shall, if necessary, be read over and explained to the person making the objection, and shall be signed by him or on his behalf.

After receipt of such objection the register shall not proceed to solemnize the marriage until fourteen days and the parties objected may file a suit before any civil court having jurisdiction for obtaining a declaratory decree, declaring that such marriage would contravene some one or more of the conditions prescribed in clauses section 2.

If any suit has been filed then the marriage shall not be solemnized till the decision of such Court has been given and the period allowed by law for appeals from such decision has elapsed or if there be an appeal from such decision, till the decision of the Appellate Court has been given.

On the other hand, court Any Court in which any such suit as is referred to in section 7 is filed may, if it shall appear to it that the objection was not reasonable and bona fide can inflict a fine which shall not exceed one thousand Taka.

It can be mentioned that the Marriage-Certificate Book shall at all reasonable times be open for inspection and shall be admissible as evidence of the truth of the statements therein contained. Also, if any person whose marriage has been solemnized under this Act has committed an offence under section 494 or section 495 of the Penal Code shall be punished as under Penal Code and marriage so solemnized will be void. If any person during the lifetime of his or her wife or husband contracts any other marriage, shall be subject to the penalties provided in sections 494 and 495 of the Penal Code for the offence of marrying again during the lifetime of a husband or wife, whatever may be the religion which he or she professed at the time of such second marriage and the second marriage shall be void.

Finally, it is to be noted that The Divorce Act, 1869 shall apply to all marriages contracted under this Act and any such marriage may be declared null or dissolved in the manner therein provided.

The procedures for filing divorce-

 For filling a divorce petition the parties whose marriage has been solemnized under the Special Marriage Act are discussed below: 

Firstly, as per Section 3 of the Divorce Act, 1869 any husband can file a petition before the District Judge Court or the High Court Division to dissolve his marriage on the ground that his wife has been guilty of adultery.

In the same way, as under section 10, a wife can file a petition to any court for dissolution of marriage on the grounds as below-

After filling the petition by any of the parties, if the court is satisfied that the alleged ground is not collusive or no condonation is allowed also on the evidence that the case of the petitioner has been proved, then order for dissolution of the marriage shall be given.

However, If the court is not satisfied based on the facts of the alleged ground and is confident that the allegation is collusive, the District Court shall dismiss the petition, and, in that case, a similar petition could be filed at the High Court Division.

The decree pronounced by the District Judge is subject to review by the High Court Division as mentioned in section 17 of the Divorce Act and will not be confirmed until the expiration of six months from the pronouncement of the decree.

Nullity of Marriage

Under section 18 any husband or wife may present a petition to the District Court or to the High Court Division, praying that his or her marriage may be declared null and void.

The District Judges court or the High Court as mentioned in section 19 of the Act may issue an order for nullity of marriage on any of the following grounds:

The parties can also apply for judicial separation as judicial separation is another process for obtaining a divorce. Under section 22 of the Divorce Act, a Husband, as well as a wife, can also seek judicial separation from either of the courts. Section 22 and 23 of the Divorce Act, 1869 deal with the petition for judicial separation to the High Court Division or the District Court on the ground of adultery or cruelty or desertion without reasonable excuse for two years or upwards and such decree shall have the effect of divorce under the existing law and such other legal effect as hereinafter mentioned.

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