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Notice Of Intended Marriage U/S 5 Of Special Marriage Act Must Be Given "Prior" To Solemnisation Of Marriage: Madras High Court

Upasana Sajeev
2 July 2022 5:30 AM GMT
Right To Marry Is A Fundamental Human Right: Madras HC Allows Couple To Solemnize Marriage Virtually
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The Madras High Court recently refused to issued directions for registration of a couple's marriage under the Special Marriage Act, stating that the conditions stipulated under Section 4 of the Act for solemnization of special marriages and the procedure thereof contained under Sections 5-13 has to be mandatorily complied with.

In the instant case, citing breach of procedure envisaged under Section 5 of the Act, which relates to "notice of intended marriage", Justice GR Swaminathan of the Madurai Bench observed:

"Things have to move only in a sequential order. The couple in question have put the cart before the horse. The parties after performing their so-called marriage had given notice under Section 5 of the Act. The language of Section 5 of the Act is clear. The petitioner did not marry Ms.Lediya under The Special Marriage Act, 1954. He cannot avail the benefit set out in Section 4 of the Act. The second respondent rightly declined the petitioner's request. No mandamus can be issued contrary to law. The writ petition stands dismissed."

In the present case, the petitioner belonged to Scheduled Caste. He married one Ms. Lediya, who was a Christian, on 10.06.2022 in the presence of the local panchayat president and a political functionary. Later, they submitted a joint application, notice under Section 5 of the Special Marriage Act, to the registrar on 17.06.2022. The registrar, however, informed the couple that the marriage could not be registered as Ms. Lediya was yet to turn 21. Aggrieved, the petitioner approached the High Court. The petitioner contended that as per Section 4(c) of the Act, a marriage could be solemnized between any two persons if the male has completed the age of twenty-one years and the female the age of eighteen years.

The court looked into the manner in which the marriage was solemnized between the parties. It was observed that the marriage was apparently a self respect marriage. Though Suyamariyathai and Seerthiruththa marriages (reformist/self respect marriages) are valid under Section 7-A of the Hindu Marriage Act, the same has to be between two Hindus. In the present case, Ms. Lediya was a Christian. Hence, the marriage between the petitioner and Ms. Lediya could not be said to be solemnized under the Hindu Marriage Act. At the same time, the marriage was not solemnized under the Indian Christian Marriage Act, 1872 also.

The court noted that if the marriage was solemnized under Chapter II of the Act, then, the age requirement is the completion of 21 years for the male and 18 for the female. However, in the present case, the marriage was performed on 10.06.2022. Only thereafter, notice was given under Section 5 of the Act. Therefore, it was not solemnized as per the procedure laid down under the Special Marriage Act. T
he court observed that since the petitioner did not marry Lediya under the Special Marriage Act, he could not claim benefits under Section 4 of the Act.
The court then analyzed Section 15 of the Act which deals with marriages celebrated in other forms. The provision reads as under:
"15.Registration of marriages celebrated in other forms.-Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (3 of 1872), or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:
(a).
(b).
(c).
(d) the parties have completed the age of twenty-one years at the time of registration;
.......
Since the marriage was not solemnized as per the Special Marriage Act, it came within the purview of Section 15 of the Act according to which both the parties had to have completed the age of twenty-one years at the time of registration of marriage. This was not the present case. Hence, the court observed that the registrar had rightly declined the petitioner's application and no directions could be given in that regard.

At the same time, sympathizing with the petitioner, the court turned from an adjudicator to an adviser and advised the petitioner to follow the procedure set out in the Act to solemnize the marriage under the Act. In such an event, the Registrar could not refuse to issue a marriage certificate on the ground that Ms.Lediya has not yet turned 21.

Case Title: S.Sarath Kumar v. The District Collector and another

Case No: W.P.(MD)No.13304 of 2022

Citation: 2022 LiveLaw (Mad) 277

Counsel for the Petitioner: Mr.R.Murugan

Counsel for the Respondent: Mr. K. Balasubramani, Special Government Pleader (R1), Mr.K.S.Selva Ganesan, Additional Government Pleader (R2)

Click here to read/download the judgment

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