By Shahnaj Huda Mam

1. THE SPECIAL MARRIAGE ACTS
1872 (Bangladesh and Pakistan)
and 1954 (India)
Shahnaz Huda
COMPARATIVE FAMILY LAW

2. • An Act to provide a form of Marriage in certain cases.
Preamble
WHEREAS it is expedient to provide a form of marriage for persons
who do not profess the Christian, Jewish, hindu, MusliM,
Parsi, Buddhist, sikh or Jaina religion,
and for persons who profess the Hindu, Buddhist, Sikh or
Jaina religion and to legalize certain marriages the validity of
which is doubtful
[This Act extends to the whole of Bangladesh]

3. Who can marry under this Act..
• Those persons who do not profess any religion
• Two person belonging to different religions who
have given a declaration that they do not profess any
religion ( If they do not give such declaration their
marriage will be void---18 DLR 509)
• Hindus belonging to different castes without giving
the above type of declaration
• Persons belonging to different religions if they are
Hindus, Buddhists, Jains or Sikhs without having to
given declaration of forsaking their religion

4. • The Act clarifies extent of applicability of the
Act,
• The method of solemnization of marriages
under the Act,
• How succession, dissolution will take place etc

5. • No polygamy allowed for either husband or
wife
• Minimum age is: the man must be eighteen
years of age, and the woman must be
fourteen years old but CMRA 1929 applies
• Each party must, if s/he has not completed
the age of twenty-one, have obtained the
consent of his/her father/guardian to the
marriage.

6. • Witnesses: For marriages under the SMA,
1872 there has to be three witnesses
• Marriages under the above Act are contracts
and consent of parties is required

7. • 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.

8. • Any person who commits bigamy shall be
deemed to have committed an offence and
will be liable to punishment under section 494
or section 495 of the Penal Code, as the case
may be; and the marriage so solemnized will
be void (Section 15 and Section 16).

9. • The Divorce Act 1869 shall apply to all
marriages contracted under this Act
• Maintenance of wife also determined by the
Divorce Act, 1869
• Succession to the property of any person who
professes the Hindu, Buddhist, Sikh or Jaina religion,
married under this Act, and property of issue of such
marriage shall be regulated by the provisions of the
Succession Act 1925 (Section 24). CONFUSION and
lack of clarity as to those who do not profess any
religion or have given up their religion

10. • A person who professing the Hindu, Buddhist,
Sikh or Jaina religion marring under this Act
shall lose his right to adopt(Section 25).
• His father however, shall have the right to
adopt a son under the law to which he is
subject, provided that if he has no other son
living.

11. THE SPECIAL MARRIAGE ACT
1954
• Under Section 4, a marriage between any two
persons may be solemnized under this Act, if
at the time of the marriage certain conditions
are fulfilled, namely:—
• (i) neither party has a spouse living
• (ii) the male has completed the age of twenty-
one years and the female the age of eighteen
years;
• (iii) the parties are not within the degrees of
prohibited relationship unless custom permits

12. • (iv) Both parties are capable of giving valid
consent
• (v) Neither party is suffering from
unsoundness or from mental disorder which
makes her/him unfit for marriage and the
procreation of children

13. Registration of marriages
celebrated in other forms
• Section 15: Any marriage celebrated, whether
before or after the commencement of this
Act, other than a marriage solemnized under
the Special Marriage Act, 1872 or under this
Act, may be registered under this Chapter by a
Marriage Officer in the territories to which
this Act extends provided the following
conditions have been fulfilled:—

14. • (a) a ceremony of marriage has been
performed between the parties and they have
been living together as husband and wife ever
since;
• (b) neither party has at the time of
registration more than one spouse living;
• (c) neither party is an idiot or a lunatic at the
time of registration;
• (d) the parties have completed the age of
twenty-one years at the time of registration;

15. • (e) the parties are not within the degrees of
prohibited relationship [THE FIRST SCHEDULE
of THE SPECIAL MARRIAGE ACT, 1954--gives a
list of such persons]
• (f) the parties have been residing within the
district of the Marriage Officer for a period of
not less than thirty days immediately
preceding the date on which the application is
made to him for registration of the marriage.

16. Succession : Section 21
• Succession to property of parties married
under Act.—Notwithstanding any restrictions
contained in the Indian Succession Act, 1925
(39 of 1925), with respect to its application to
members of certain communities, succession
to the property of any person whose marriage
is solemnized under this Act and to the
property of the issue of such marriage shall be
regulated by the provisions of the said Act…….

17. The Act of 1954 is a self-
contained act---
• Section 22: Application for Restitution of
Conjugal Rights ---to District Court
• Section 23: Application for Judicial Separation
---to District Court

18. Chapter VI: Nullity of Marriage and
Divorce
• Sec. 24. VOID MARRIAGES
• Sec. 25: VOIDABLE MARRIAGES
Dissolution of marriage
• Sec. 27: Divorce.—..a petition for
divorce may be presented to the
district court either by the husband
or the wife on the ground that the
respondent has or is : ---

19. • after the solemnization of the marriage, had
voluntary sexual intercourse with any person other
than his or her spouse; or
• deserted the petitioner for a continuous period of
not less than two years
• undergoing a sentence of imprisonment for seven
years or more for an offence as defined in the Indian
Penal Code (1860);
• since the solemnization of the marriage treated
the petitioner with cruelty;

20. • or been incurably of unsound mind, or been
suffering continuously or intermittently from
mental disorder of such a kind and to such an
extent that the petitioner cannot reasonably
be expected to live with the respondent.
Explanation is given as to what constitutes the
above is given in the Act.

21. • Divorce by mutual consent.— Section 28
• Alimony pendente lite –Section 36
• Permanent alimony and maintenance---
Section 37
• Custody of children --Section 38