Indian society is developing day-by-day and one of the important development which happen is inter caste marriage. In India, society was against the inter caste marriage. People only want their children to marriage within their caste or someone from above caste but not with someone who is below them in status or in caste. But as time changes and society develops people start accepting this. But there was no such legislation which can legalise such marriages, as every religion has their own personal laws. this is when this act was enacted.
The Act was initially enacted in 1872 by British Govt. It was applied to persons who did not profess the Christian, Jewish, Parsi, Hindu, Mohammedan, Buddhists, Sikh or Jain religion, and to legalize certain marriages the validity of which was doubtful. This created a lot of confusion as to the application of the Act and an amendment was made in 1923 which extended the application of the Act to Hindu, Buddhhist, Sikh or Jain religion. Realizing the need for a better and detailed legislation, the new Special Marriage Bill was introduced.
The act was passed by the Parliament on 9th October, 1954. Came into force on 1st January, 1955. In Alamelu Ammal v. Yeshoda Ammal; (1989) 11 DMC 384 (Mad-DB)
Marriage solemnized between the passing of law and coming in force will be considered to be a valid marriage under the act of 1872.
In Abdur Rahim v. Padma; AIR 1982 Bom 341
The Act is in reality the Indian Marriage act which applies to all communities irrespective of caste, creed or religion.
CONDITONS FOR VALID MARRIAGE:- Sec 4 of this act provides conditions for valid marriage:-
1. Monogamy: Both the parties must not have a spouse at the time of marriage. Violation of this condition renders the marriage null and void under section 24(1)(i) of the Act. Also it is a punishable offence under section 494 and 495 of IPC, vide section 43 of the Act. In Uma Charan Roy v. Kajal Roy; AIR 1971 Cal 307 it was held that The word spouse does not mean a spouse married under this Act and will include husband and wife married in any form.
Even if the Personal law of the parties allows polygamy, any second marriage will be void under this Act.
2. Mental Soundness: neither party―
(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(iii) has been subject to recurrent attacks of insanity
Marriage in violation of this condition is void under section 24(1)(i).
In A. S. Mehta v. Vasumati; AIR 1960 Guj 48
The condition of mental soundness for marriage does not however, mean that the person must possess a high intelligent quotient.
3. Marriage Age: Minimum age prescribed for male is 21 years and for female 18 years. Marriage in contravention to this condition is void under section 24(1)(i).
In Sk. Salam v. Sant Singh; AIR 1990 Cal 315
Wife, filed a petition for annulment of marriage contending minority at the time of marriage. Husband asked for reconciliation as per section 34(2) of the Act. Court observed, A marriage which is void ab-initio cannot be rendered valid by way of reconciliation.
4. Prohibited Degrees of Relationship: Defined under section 2(b) of the Act. Prior to 1963 such marriages were completely prohibited without any exception. After an amendment in 1963, an exception has been introduced where under if there is a custom governing atleast one of the parties which permits such marriage then marriage may be solemnized.
The Explanation to section 4 lays down that the custom of any tribe, community, groups or family means any rule which is specified by the State Govt. by a notification in the Official Gazette. This implies that only State recognized custom can be invoked to justify marriage within degrees of prohibited relationship. Proviso enumerates that a custom must be ancient, continuous, uniform, certain, not unreasonable or opposed to public policy; further if it is a family custom, it should not have been discontinued by the family.
5. Marriage in Jammu & Kashmir: A special condition is prescribed in respect of marriages solemnized in the state of J&K, viz;
(a) Parties must be Indian Citizens
(b) they may be domiciled in the territories to which this Act extends.
This provision may be thus construed:
(a) Where both the parties are foreigners or either of them is foreigner, they cannot marry in J&K, although no such bar exists in respect of any other state in India.
(b) a person who is not domiciled in J&K cannot marry in that State a person who is domiciled in that state.
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