[ 3227 ]
GOVERNMENT OF PUDUCHERRY
LAW DEPARTMENT
No. 1971/LCR-212/2021/LD.
Puducherry, dated 06th October 2021.
NOTIFICATION
Whereas, the Law Commission of India having taken up suo motu steps
due to a pressing need to amend the Special Marriage Act, 1954 and the Foreign
Marriage Act, 1969, has formulated the 212th Report on the subject, to resolve
certain conflicts in the Laws relating to Civil Marriages in India and having noted
that numerous marriages take place within India and in foreign countries which are
outside the ambit of various personal laws as well as that they cannot be governed
by the general and common Law of Civil Marriages for the reason of not having
been formally solemnized or registered under it, although these enactments are meant
equally for all communities of India, but, contain few provisions which greatly inhibit
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people of certain communities to avail them and that for the Hindus, Buddhists,
Jains and Sikhs marrying within these four communities, the Special Marriage
Act, 1954 is an alternative to the Hindu Marriage Act and further that the Muslims
too have choice between their un-codifled Personal Law and the Special Marriage
Act, 1954, but, the issue of availability of the Special Marriage Act, 1954 for a marriage,
both parties to which are Christians, remains unresolved;
And whereas, in view of conflicts of various Personal Laws, all equally
recognized in India, it was felt that it will be in the fitness of things that all inter-
religious marriages (except those within the Hindu. Buddhist, Sikh and Jaina
communities) be required to be held only under the Special Marriage Act, 1954 and
that even if, such a marriage has been solemnized under any other law, for the
purpose of matrimonial causes and remedies the Special Marriage Act, 1954 can be
made applicable to them and further, the Commission therefore, felt that such
a move will bring all inter-religious marriages in the Country under uniform law
and that this will be in accordance with the underlying principle of Article 44 of
the Constitution of India relating to uniform Civil Code;
And whereas, the present linkage between civil marriages and the
applicable law of succession greatly inhibits or discourages certain communities
for opting for a civil marriage under the Special Marriage Act, 1954, as it would
deprive them of their laws of succession and that in particular, the Muslims and
Parsis give utmost importance to their Personal Laws of succession and they do
not make use of the Special Marriage Act, 1954, the Commission was of the view
that there seems to be no reason as to why the Special Marriage Act, 1954 should
have a provision regarding succession law to be applied in case of civil marriages;
And whereas, keeping the above aspects in mind, the Law Commission has
suggested certain amendments in both the Special Marriage Act, 1954 and the
Foreign Marriage Act, 1969, so that their provisions become uniformly available to
a larger number of marriages of all Indian communities and was of the view that if,
accepted and implemented, the recommendations will go a long way in popularizing
civil marriages and accordingly, the Ministry of Law and Justice has invited the
views/suggestions/comments of the Union territory of Puducherry on the 212th
Report of the Law Commission of India;
Now, therefore, for the above purpose, the copy of the 212th Report of the
Law Commission of India is hereby published for general information of the public
inviting views/suggestions/comments from all persons interested therein.
Any views/suggestions/comments which may be received from any person
in respect of the abovesaid 212th Report of the Law Commission on resolving the
conflicts in Civil Marriages in India, will be taken up by the Government for
consideration. The views/suggestions/comments in this regard shall be addressed
by post to the Secretary to Govemment (Law), Chief Secretariat, I Floor, ‘B’ Block,
Goubert Avenue, Puducherry-605 001 or by mail to [email protected] within 15 days
from the date of publication of this Notification.
S. KARTHIKEYAN,
Secretary to Government (Law).
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GOVERNMENT OF INDIA
LAW COMMISSION OF INDIA
LAWS OF CIVIL MARRIAGES IN INDIA –
A PROPOSAL TO RESOLVE CERTAIN CONFLICTS
REPORT NO: 212
CHAPTER–I
INTRODUCTION
Under the present legal system of India, citizens have a choice between
their respective religion-based and community-specific marriage laws on the one
hand and, on the other hand, the General and Common Law of civil marriages. While
the laws of the first of these categories are generally described by the compendious
expression “Personal Laws”, the latter law is found in the following two enactments:
(i) Special Marriage Act, 1954; and
(ii) Foreign Marriage Act, 1969.
The first of these Acts is meant for those getting married within the Country and
the latter for those Indian citizens who may marry in a foreign Country.
The Special Marriage Act, 1954, is not concerned with the religion of the
parties to an intended marriage. Any person, whichever religion he or she professes,
may marry under its provisions either within his or her community or in a community
other than his or her own, provided that the intended marriage in either case is in
accord with the conditions for marriage laid down in this Act (Section 4).
The Special Marriage Act, 1954, also provides the facility of turning an
existing religious marriage into a civil marriage by registering it under its provisions,
provided that it is in accord with the condition for marriage laid down under this
Act (Section 15).
The Act provides for the appointment of Marriage Officers who can both
solemnize an intended marriage and register a pre-existing marriage governed by
any other law (Section 3).
The Foreign Marriage Act, 1969, facilitates solemnization of civil marriages
by Indian citizens outside the Country, with another citizen or with a foreigner.
This Act also is not concerned with the religion of the parties to an intended
marriage; any person can marry under its provisions either within his or her own
community or in a different community.
For carrying its purposes the foreign Marriage Act empowers the Central
Government to designate Marriage Officers in all its diplomatic missions abroad.
Numerous marriages take place in India which are outside the ambit of
various Personal Laws but cannot be governed by the Special Marriage Act, either
for the reason of not having been formally solemnized or registered under it. The
question which law would then apply to such marriages remains unresolved.
Both the Special Marriage Act, 1954, and the Foreign Marriage Act, 1969,
are meant equally for all Indian communities. Yet they contain some provisions
which greatly inhibit members of certain communities to avail their provisions.
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To meet these concerns the present report seeks to suggest certain
amendments in both the Special Marriage Act, 1954, and the Foreign Marriage
Act, 1969. The purpose of these suggestions is to make the two Acts available
to a larger number of marriages than they now are and to make them widely
acceptable to all communities of India.
CHAPTER–II
THE SPECIAL MARRIAGE ACT, 1954
A. Old Special Marriage Act, 1872
The first Law of Civil Marriages in India was the Special Marriage
Act, 1872, enacted during the British rule on the recommendation of the first Law
Commission of pre-independence era. It was an optional law initially made available
only to those who did not profess any of the various faith traditions of India. The
Hindus, Muslims, Christians, Sikhs, Buddhists, Jains and Parsis were all outside
its ambit. So, those belonging to any of these communities, but, wanting to marry
under this Act, had to renounce whatever religion they were following. The main
purpose of the Act, was to facilitate inter-religious marriages.
The Special Marriage Act, 1872, contained no provision for dissolution
or nullification of marriage. For these matrimonial remedies it only made the Indian
Divorce Act, 1869 applicable to the marriages governed by it.
In 1922, the Special Marriage Act, 1872 was amended to make it available
to Hindus, Sikhs, Buddhists and Jains for marrying within these four communities
without renouncing their religion. As so amended, the Act remained in force until
after independence.
B. New Special Marriage Act, 1954
In 1954, the first Special Marriage Act of 1872 was repealed by and
replaced with a new law bearing the same title. This is an optional law; an alternative
to each of the various Personal Laws, available to all citizens in all those areas
where it is in force. Religion of the parties to an intended marriage is immaterial
under this Act; one can marry under its provisions both within and outside one’s
community.
The Special Marriage Act does not by itself or automatically apply to
any marriage; it can be voluntarily opted for by the parties to an intended marriage
in preference to their Personal Laws. It contains its own elaborate provisions on
divorce, nullity and other matrimonial causes and, unlike the first Special Marriage
Act of 1872 does not make the Divorce Act, 1869 applicable to marriages governed
by its provisions.
For the Hindus, Buddhists, Jains and Sikhs marrying within these four
communities the Special Marriage Act, 1954 is an alternative to the Hindu Marriage
Act, 1955. The Muslims marrying a Muslim have a choice between their uncodified
Personal Law and the Special Marriage Act.
The Indian Christian Marriage Act, 1872, however, says that all Christian
marriages shall be solemnized under its own provisions (Section 4). The issue of
availability of the Special Marriage Act, for a marriage, both parties to which are
Christians thus remains unresolved.
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C. Inter-Religious Civil Marriages:
The Special Marriage Act, is available also for inter-religious marriages
and does not exempt any community from its provisions in this respect.
The Hindu Marriage Act, 1955 applicable to the Hindus, Buddhists, Jains
and Sikhs docs not allow them to marry outside these four communities. So, if, any
member of these communities wishes to marry a person not belonging to these
communities, the only choice available would be the Special Marriage Act, 1954.
The Muslim Law allows certain inter-religious marriages to be governed
by its own provisions. Under this law a man can marry a woman of the communities
believed by it to be Ahl-e-Kitab (People of Book) - an expression which includes
Christians and Jew’s, and may include followers of any other monotheistic faith.
Since Muslim law only permits an inter-religious marriage and does not require that
such a marriage must take place under its own provisions, it does not come in
conflict with the Special Marriage Act, 1954.
The Indian Christian Marriage Act, 1872 says that apart from Christian-
Christian marriages, the marriage of a Christian with a non-Christian must also be
solemnized under this Act (Section 4). The Special Marriage Act on the other hand
says that any two persons (whatever be their religion) can marry in accordance
with its provisions. There is, thus, a conflict-of-law situation in respect of marriage
of a Christian with a non-Christian.
Unlike the first Special Marriage Act of 1872, the 1954 Act contains its
own elaborate provisions on divorce, nullity and other matrimonial remedies. The
Indian Divorce Act, 1869 would therefore not apply to marriages governed by it.
The Indian Divorce Act, however, says that it will apply even if, only one party is
a Christian. This is another conflict-of-law situation.
In view of these conflicts of various Personal Laws, all equally
recognized in India, it will be in the fitness of things that all inter-religious
marriages (except those within the Hindu, Buddhist, Sikh and Jain communities)
be required to be held only under the Special Marriage Act, 1954. Even if, such a
marriage has been solemnized under any other law, for the purposes of matrimonial
causes and remedies the Special Marriage Act, can be made applicable to them.
Such a move will bring all inter-religious marriages in the Country under uniform
law. This will be in accordance with the underlying principle of Article 44 of the
Constitution of India relating to uniform Civil Code.
The word “Special” in the caption of the Act needs reconsideration. In
1872, when the first Law of Civil Marriages was enacted a non-religious marriage
could be regarded as “special” as the parties to such a marriage had to denounce
their religion. Marriage by religious rites was then the rule and a civil marriage
could be only an exception. Now, in the twenty-first century calling non-religious
civil marriages “special” has little justification. Being a uniform law which the parties
to any intended marriage can opt for irrespective of their religion or Personal Law,
it need not be described as a law providing for a “special” form of marriage.
It projects such marriages as unusual and extra-ordinary and creates misgivings in
the minds of the general public.
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CHAPTER–III
THE FOREIGN MARRIAGE ACT, 1969
A. Solemnization of New Marriages
A Foreign Marriage Act was First enacted in India in 1903 during the
British rule. It remained in force till 1969, when a new Foreign Marriage Act was
enacted on the pattern of the new Special Marriage Act, 1954.
Under this Act a marriage may be solemnized, in a Foreign Country,
between two Indians or an Indian and a foreigner, irrespective in either case of the
religion and Personal Law of the parties, if, the conditions for marriage laid down
in the Act are fulfilled (Section 4).
The Government of India is empowered by this Act to appoint Marriage
Officers in Foreign Countries from amongst its diplomatic and Consular staff in
those countries (Section 3).
The Act does not have any provision relating to divorce, nullity or any
other matrimonial remedy or relief. For this purpose the Act makes the relevant
provisions of the Special Marriage Act, 1954, applicable, mulatis mutandis, also to
all marriages solemnized or registered under its provisions (Section 18).
The Act is entirely optional and its provisions do not adversely affect
the validity of a marriage solemnized in a Foreign Country otherwise than under
its provisions (Section 27).
B. Registration of Existing Marriages
A marriage solemnized in a Foreign Country under any other law
including the local law of that Country can be registered under the Foreign Marriage
Act, 1969, if, it fulfils the conditions for validity of marriages laid down in this Act
[Section 17 (1) to (3)].
The procedure for registration of pre-existing marriages under the Act
is same as for solemnization of new marriages.
CHAPTER–IV
THE PROHIBITED DEGREES IN MARRIAGE
A. Special Marriage Act, 1872
The concept of “prohibited degrees in marriage” is recognized by all
systems of Family Law and generally every Family Law has its own list of relatives
with whom one cannot marry. The Special Marriage Act, 1872, did not contain any
such list and only laid down that:
“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.”
Thus, in respect to prohibited Degrees in marriage in an intended civil
marriage to be regulated by the Special Marriage Act, 1872, Personal Laws of the
parties, common or different, remained in force.
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B. Special Marriage Act, 1954
The new Special Marriage Act, 1954, wholly changes the situation in
respect of prohibited Degrees in marriage. One of the conditions for an intended
civil marriage to be solemnized under this Act is that “the parties are not within
the degrees of prohibited relationship” [Section 4 (d)]. The expression “Degrees
of prohibited relationship” is defined in Section 2 (b) of the Act as “a man and any
of the persons mentioned in Part I of the First Schedule and a woman and any of
the persons mentioned in Part II of the said Schedule.” Thus, unlike the first Special
Marriage Act, 1872, this Act incorporates its own list of prohibited Degrees in
marriage, separate for men and women.
In each of the two lists of prohibited Degrees, there are 37 entries. The
relations mentioned in the first 33 entries in each list are regarded as prohibited
Degrees in marriage under all other laws, both codified and uncodified. These
entries, therefore, do not inhibit any person of whatever religion from opting for
a civil marriage. The last four entries in the two lists mentioned below, however,
pose a problem for certain communities:
(a) List I (for men)
34. Father’s brother’s son
35. Father’s sister’s son
36. Mother’s sister’s son
37. Mother’s brother’s son
(b) List II (for women)
34. Father’s brother’s daughter
35. Father’s sister’s daughter
36. Mother’s sister’s daughter
37. Mother’s brother’s daughter
Thus, all first cousins - paternal and maternal, parallel and cross - are
placed by the Special Marriage Act in the category of prohibited marital relationship.
The Special Marriage Act, 1954 makes a provision for relaxation of the
rule of prohibited Degrees in marriage. To the condition that parties to an intended
civil marriage must not be within prohibited Degrees of marriage, the Act adds the
following proviso:
“Provided that where a custom governing at least one of the parties
permits a marriage between them, such marriage may be solemnized
notwithstanding that they are within the Degrees of prohibited
relationship.” [clause (d) of Section 4].
The word “custom” as used in this Proviso is defined by the Act in the
following terms:
“In this section ‘custom’ in relation to a person belonging to any
Tribe community, group or family means, any rule which the State
Government may, by notification in the Official Gazette, specify in this
behalf as applicable to members of that Tribe community, group or
family.” (Explanation to Section 4).
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The position of first cousins under the Special Marriage Act, 1954 is in
accord with the Hindu Marriage Act, 1955, which also does not allow marriage with
any first cousin. Relaxation of the net of prohibited Degrees on the ground of
custom is also permissible under that Act, but, it docs not require a Gazette
notification by the State Government in this regard.
In Muslim Law all first cousins both on the paternal and maternal sides
are outside the ambit of prohibited Degrees in marriage. Personal Law of the Jewish
and Bahai communities also permit marriage with a cousin. Under Christian Law,
marriage with a cousin may be permitted by a special dispensation by the Church.
It is doubtful if, the expression “custom” as defined in the Special Marriage Act,
would include also Personal Law of the parties. And even if, it does, the condition
of recognition by the State Government through a Gazette notification would have
to be satisfied.
Another important point worth noting here is that under the Hindu
Marriage Act, 1955, marriage with second cousins (father’s first cousin’s children)
is also not allowed due to the restriction known as “sapinda” relationship [Section
5(v)]. The Special Marriage Act, 1954, however, does not place any second cousin
in its two lists of prohibited Degrees in marriage.
The consequence of these legal provisions is that if, a Hindu, Sikh,
Buddhist or Jain wants to marry a second cousin, he can do so under the Special
Marriage Act, though his Personal Law (now contained in the Hindu Marriage
Act, 1955) does not permit it. On the contrary, if, a Muslim wants to marry a first
cousin he cannot do so under the Special Marriage Act, 1954, although the Muslim
Personal Law unconditionally permits such a marriage. Members of all those other
communities whose law allows, or may allow, marriage with a first cousin are also
in the same position as the Muslims. The discrimination between various Indian
communities inherent in this legal situation is too clear to be ignored.
C. Foreign Marriage Act, 1969
The Foreign Marriage Act, 1969, says that the parties to an intended
marriage to be solemnized under it must not be within prohibited Degrees of marital
relationship. It does not, however, incorporate any list of such prohibited Degrees
and only says that the expression “Degrees of prohibited relationship” as used
under it will have the same meaning as under the Special Marriage Act, 1954.
Therefore, under the Foreign Marriage Act, too all first cousins are deemed to be
within the prohibited Degrees of marriage.
The Foreign Marriage Act, however, specifically mentions both custom
and Personal Law of the parties as grounds for relaxation of the rule of prohibited
Degrees in marriage. Also, there is no condition under this provision for recognition
of the rule of Personal Law or custom in this respect by the Government through
a Gazette notification.
CHAPTER–V
THE APPLICABLE LAW OF SUCCESSION
A. Under the Special Marriage Act, 1872
As has been stated above, the first Special Marriage Act, 1872 could
initially be availed only by those who did not claim to be Hindu. Muslim, Christian,
Sikh, Buddhist, Jain or Parsi. This posed a question as to which law of succession
would apply to the parties to such a marriage and their offspring. Seven years
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before the enactment of this law a General Law of Succession had been enacted
under the caption Indian Succession Act, 1865. This Act was at the time of its
enactment applicable to Christians and Jews, but, not to Hindus, Muslims, Sikhs,
Buddhists, Jains and Parsis. It was now laid down in the Special Marriage
Act, 1872 that:
(i) A Hindu, Sikh, Buddhist or Jain who is a member of a joint family,
marriage under this Act, it would affect his severance from such family.
(ii) Succession to the property of any such person and of any issue of
such marriage would be governed by the Indian Succession Act, 1865.
(iii) Protection of the Caste Disabilities Removal Act, 1850 will be
available to the Hindus, Sikhs, Buddhists and Jains marrying under the
Special Marriage Act, 1872.
(iv) If, a Hindu, Sikh, Buddhist or Jain marrying under the Special
Marriage Act, 1872, is the only son of his parents, his father can adopt
a son notwithstanding the prohibition in Hindu law on adopting a son
in the presence of a natural son.
In 1925 all succession laws then existing were incorporated into a new
and comprehensive Indian Succession Act. Among the laws merged into this
consolidating law were the old Indian Succession of 1865, the Parsi Succession
Act, 1865 and the Hindu Wills Act, 1870. The Chapter on inheritance under the old
Indian Succession Act, 1865 became Chapter II, and the Parsi Succession Act
Chapter III, of Part V of the new Act. Provisions of the Hindu Wills Act, 1870, were
incorporated into Schedule III of the new Act.
Since, 1925 the reference to Indian Succession Act, 1865 under the
Special Marriage Act, 1872, was to be deemed to be a reference to Chapter II in
Part V of the new Indian Succession Act, 1925.
B. Under the Special Marriage Act, 1954
Under the new Special Marriage Act, 1954, the provision regarding
severance from joint family in the case of a Hindu, Sikh, Buddhist or Jain opting
for a civil marriage was retained (Section 19). The provision for the availability of
the Caste Disabilities Removal Act, 1850, was extended to everybody opting for a
civil marriage (Section 20). As regards inheritance, Section 21 of the Act provided
as follows:
“Notwithstanding any restrictions contained in the Indian Succession
Act, 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 and for
the purposes of this Section that Act, shall have effect as if, Chapter III
of Part V (Special Rules for Parsi Intestates) had been omitted therefrom.”
This provision was uniformly applicable to whoever opted for a civil
marriage, whether within or outside one's community. As a result, all Personal Laws
of succession ceased to apply in the cases of civil marriages.
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C. Effect of the Amendment of 1976
On the recommendation of the Law Commission of India (59th Report,
1974) Parliament enacted the Marriage Laws (Amendment) Act, 1976. This Act added
Section 21-A to the Special Marriage Act, 1954, which reads as follows:
“Where the marriage is solemnized under this Act of any person who
professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes
the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not
apply and so much of section 20 as creates a disability shall also not apply.”
Since, 1976, therefore, the position of succession in the case of civil
marriages is as follows:
(i) Where both parties to a civil marriage are Hindu, Buddhist, Sikh
or Jain the Hindu Succession Act will apply.
(ii) Where only one party is a Hindu, Buddhist, Sikh or Jain and the
other party belongs to any other religion the Indian Succession Act will
apply.
(iii) Where a Muslim opts for a civil marriage, whether within or
outside the Muslim community the Indian Succession Act will apply.
(iv) Where a Parsi opts for a civil marriage, whether within or outside
his community the general Inheritance Law under the Indian Succession
Act will apply -- not the Parsi succession law as incorporated in that
Act.
(v) Where a Christian opts for a civil marriage, whether within or
outside the Christian community, the Indian Succession Act will apply.
Under the impact of the Marriage Laws (Amendment) Act, 1976, thus,
citizens of India opting for a civil marriage are classified into three categories, viz.:
(a) Hindus, Buddhists, Sikhs and Jains marrying within these four
communities;
(b) Hindus, Buddhists, Sikhs and Jains marrying outside these four
communities; and
(c) All other citizens marrying either within or outside their respective
communities.
This seems to be an unreasonable classification as all Personal Laws
have the same legal status in the Country.
The Muslims and Parsis give utmost importance to their Personal Laws
of succession. The Muslim Law of inheritance is drawn direct from the Holy Quran
and therefore, a predominant section of Muslims wants to adhere to it. The
prospect of losing it in case, they go in for a civil marriage greatly inhibits them
and compels them to remain away from the Special Marriage Act, 1954. The Parsis
had got their religion based Law of Inheritance codified in the form of the Parsi
Succession Act, 1865, which was on their demand, preserved even under the new
consolidating law called the Indian Succession Act, 1925. For this reason no Parsi
wants to make use of the Special Marriage Act, 1954, as it would deprive them of
their Law of Succession.
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There seems to be no reason why the Special Marriage Act, 1954, should
at all make a provision regarding Succession Law to be applied in case of civil
marriages. Under the old Special Marriage Act, 1872, parties to a civil marriage had
to dissociate themselves from religion and so, any community-specific Law of
Succession could not apply in any such case. As this would create a vacuum, it
was unavoidable to make the Indian Succession Act, 1865, applicable to them. But,
this is not the case under the new Special Marriage Act, 1954, under which there is
no need to renounce religion in any case of a civil marriage. So, succession to the
properties of the parties may well continue to be governed by their respective
Personal Laws, whether they belong to the same community or to two different
communities-especially since in this Country, there is no concept of a married
couple's joint property.
It may, of course, be made possible for any individual to opt for the
Indian Succession Act, 1925 irrespective of whether his or her marriage is a civil
marriage or a religious marriage governed by a Personal Law. But, the present
linkage between civil marriages and the applicable Law of Succession serves no
purpose. On the contrary, for certain communities it is a discouragement and a
serious inhibition against opting for a civil marriage.
D. Under the Foreign Marriage Act, 1969
None of the provisions relating to joint family status, inheritance rights of
parties to a civil marriage and the Succession Law applicable to the parties and
their minor children and their future descendants found in the Special Marriage
Act, 1954, finds a place in the Foreign Marriage Act, 1969, which is silent on these
issues.
Thus, despite solemnization or registration of a marriage under the Foreign
Marriage Act, 1969, the parties, their issues and future descendants remain subject
to the same Law of Succession which would apply otherwise.
CHAPTER–VI
RECOMMENDATIONS
In the light of all that has been said above we Find that there is a pressing
need to amend the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969.
With a view to addressing this need we make the following recommendations:
1. The word “Special” be dropped from the title of the Special Marriage
Act, 1954 and it be simply called “The Marriage Act, 1954” or “The Marriage and
Divorce Act, 1954.” The suggested change will create a desirable feeling that this
is the General Law of India on marriage and divorce and that there is nothing
“special” about a marriage solemnized under its provisions. It is in fact marriages
solemnized under the community-specific laws which should be regarded as
“special.”
2. A provision be added to the application clause in the Special Marriage
Act, 1954, that all inter-religious marriages except those within the Hindu, Buddhist,
Sikh and Jain communities, whether solemnized or registered under this Act or not
shall be governed by this Act.
3. The definition of “degrees of prohibited relationship” given in
Section 2 (b) in the Special Marriage Act, 1954 and the First Schedule detailing
such degrees appended to the Act be omitted. Instead, it should be provided in
Section 4 of the Act that prohibited Degrees in marriage in any case of an intended
civil marriage shall be regulated by the Marriage Law (or laws) otherwise applicable
to the parties.
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4. The requirement of a gazette notification for recognition of custom
relating to prohibited Degrees in marriage found in the Explanation to Section 4 of
the Special Marriage Act, 1954, be deleted.
5. The same provision in respect of prohibited Degrees in marriage
(as suggested in paragraph 3 above) be incorporated also into Section 4 of the
Foreign Marriage Act, 1969. The proviso to clause (d) of that Section and clause (a)
of Section 2 of the Act be deleted.
6. All references to succession and joint family be removed from the
Special Marriage Act, 1954 and Sections 19, 20, 21 and 21-A of the Special Marriage
Act, 1954, dealing with succession and membership of joint family, be repealed.
7. A provision be inserted into the Indian Succession Act, 1925, that
any person whichever community he or she belongs to may, by a declaration on
affidavit or by a written and duly attested will, opt for the application of this Act
instead of the Law of Succession otherwise applicable to him or her.
We have a considered opinion that these recommendations, if accepted
and implemented, will go a long way in popularizing civil marriages and since all
such marriages would be governed by the same law, it will be a mighty step towards
translating into action the ideal of uniformity in Civil Laws envisaged by Article 44
of the Constitution of India.
Dr. Justice AR. LAKSHMANAN,
Chairman.
Prof. Dr. TAHIR MAHMOOD,
Dr. BRAHM A. AGRAWAL,
Member.
Member-Secretary.
————
online publication at “https://styandptg.py.gov.in”
Published by the Director, Government Press, Puducherry.