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The Significance of Special Marriage Act, 1954: An Insightful Analysis of the Challenges of Implementation
- Nabilah Rahman and Rishav Raj
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Student at KIIT School of Law, India
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In India, the man-made demarcations of caste, religion, culture play a predominant role in the matters of marriage. Customary marriages in India take place within the caste and faith to which the couple belongs to. Those nuptials which challenge this norm of Indian society are considered socially unacceptable and irreligious. But the Special Marriage Act, 1954 works towards granting legal validity to those marriages where the two consenting parties belong to different faiths or castes. It lays down the procedure through which such marriages are granted legal credibility. However, this paper seeks to analyze the procedure through which the ‘special marriages’ takes place and highlights the anatomy of the problems pertaining to the same in the light of recent Indian social developments and modernization. It scrutinizes the problems with great precision and meticulously lays down the modification which is absolutely necessary to make the Act undeniably efficient and scale down the threat of honour killings, violence, coercion the intended couple is subjected to by the community. The paper also seeks to shed light on the growing magnitude of caste endogamy and casteism which is having an adverse impact on the inter-caste and inter-religious marriages in India. The major objective of the paper is to provide an insight into the challenges associated with the implementation of the Special Marriage Act, 1954.
International Journal of Law Management and Humanities, Volume 4, Issue 4, Page 169 - 181
This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.
Copyright © IJLMH 2021
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THE SPECIAL MARRIAGE ACT, 1954: A CRITIQUE
Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical Union. When two souls thus unite, a new soul comes into existence. That is how, the life goes on and on and on this planet. Justice S. Saghir Ahmad 3
Dr Mohan Rao Bolla
It may be stated that justice has been deviated in a very recent judgment of the Apex Court in Nandlal 4case. The Apex Court passed a remark that ‘Truth must triumph’-is the hallmark of justice.’ The Court was anxious to render justice to an undeserving man deviating from the law. The Court has obviously, overruled its precedents which are binding on it.5 The Court had also ignored to invoke purposive rule6 of interpretation. The Court must have restrained itself from the deviation as it was done by the Naaz Foundation case.7 The Court must have laudably and purposively deviated to render justice to deserving woman and child as was done in Badshah v. Sou. Urmila Badshah Godse 8 case. In Badshah case the Apex court has adopted purposive and liberal rule of construction in awarding maintenance under Section 125 of The Code of Criminal Procedure, 1973 (Crpc) without insisting on strict proof of marriage. It was reiterated that strict proof of marriage was not a condition precedent to grant maintenance under Section 125 crpc.
One of the important rights for human beings is freedom to marriage and religion as stipulated not only in the United Nation Declaration of Human Rights but also in Bangladesh Constitution. However, in some cases, this right cannot work smoothly within religious traditions that since very beginning seemed to emphasize single religion-based family over family based on pluralistic religions. In some regards Islamic law forbids interreligious marriage, especially a Muslim female with a non-Muslim male and also forbidden by the Hindu religious Rites. Interreligious marriage between Muslim and Hindu is recognized under Special Marriage Act, 1872 in Bangladesh. According to Article 2 of Muslim Marriage Law, 1974, " Marriage is legitimate, if it has performed in accordance with the religion and belief of each party ". This article discusses the right of interreligious marriage with the light of human right perspective and supported by the other laws. Meanwhile, the materials used in this article are primarily based on Muslim and Hindu religious rules-regulations and Marriage laws relevance to this issue. From this perspective this article argues that prohibition of interreligious marriage is contradictory to the universal human rights that maintain every human being has a right to build a family regardless of religious consideration. Where marriage is constitute in the life of two human beings not in religions.
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The Special Marriage Act, 1954
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This research paper talks about the Special Marriage Act, 1954 and the provisions that it holds. The Special Marriage Act is the legislation that grants validity to marriages that do not find their place in religion specific marriage legislations. The Act grants registration to the marriages between two consenting parties who belong to different religions or cast. In India, inter caste or inter religion marriages are not normative and are considered a taboo. People go as far as committing Honour killings in order to prevent such marriages. The aim of the Act is to protect the people from such acts and to provide legal validity to their marriage. The Act also consists of provisions with respect to the other marriage related aspects such as restitution of conjugal rights and divorce. The Act also lays down eligibility criteria for a valid marriage under the Act such as consent between the parties getting marries and the relationship between them not falling within the prohibited degree of relationship.
This work is licensed under a Creative Commons Attribution 4.0 International License .
JOURNAL FOR LAW STUDENTS AND RESEARCHERS
ISSN : 2582-306X
A STUDY OF THE SPECIAL MARRIAGE ACT 1954 AND A CRITICAL ANALYSIS OF THE COURT MARRIAGE SYSTEM by S. Madu Mithra
Author: S. Madu Mithra, Student at Sastra Deemed University, Tanjore
The SPECIAL Marriage Act of 1954 gives marriage a special legal basis. People involved in such marriages may belong to any caste or religion. This brings a breaking point to the inter-caste marriage system in most parts of India. Weddings in India are deeply related to its cultural and traditional rules and practices. Marriages can be sacred in the Indian marriage system. India has its laws regarding marriage, divorce, partition, inheritance, custody, and maintenance. The entire body of laws was known as the INDIAN FAMILY ACT. On the other hand, this article also focuses on the legal system of marriage that takes place under the Special Marriage Act of 1954. It has become extremely common in many parts of the country. It simply means entering a marriage under the correct legal system and registering it according to the applicable laws governing such a system. The Special Marriage Act, of 1954 opposes the existing personal laws in India. One is governed by laws such as Hindu laws, Christian laws, Muslim laws, and Parsi laws for which marriage proceedings are mentioned in the Hindu Marriage Act 1955, Indian Christian Marriage Act 1872, Muslim Marriage Act in India, and Parsi Marriage Act 1936. If a person marries, a Special Marriage Act 1954 – Act according to such a person is practically in violation of its laws. Generalis Specialibus non Derogantand quot; which means that special laws have authority over general laws. While the personal law applies to people belonging to a particular religion, the special marriage law applies to the whole of India. The author critically analyzed the Special Marriage Act of 1954 and the legal marriage system prevailing in it.
Keywords : personal law, special laws, family law in India, Hindu Marriage Act 1955, Indian Christian Marriage Act 1872, Muslim Marriage Act in India, Parsi Marriage Act 1936.
- VOLUME 5, ISSUE 1
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