Law analysis
Special Marriage Act: Rationality and relevance
Khandaker Mujahidul Hoque
Prior to understanding the concept of special marriage, it is essential to comprehend what is marriage. Marriage is a legal recognition of the union of two people, more specifically a male and a female of legal age, which is most often celebrated by a ceremony. Some marriages even unite differing religions, colours, races and communities. Provisions for special marriage may help the people to unite who belong to different religions.
Special marriage is performed in Bangladesh by the Special Marriage Act 1872. The Act clarifies extent of applicability of the Act, how such a marriage should be solemnised, which religion will be followed in the marriage, what will be the effect of succession etc. The law speaks for a special form of marriage for those who do not profess Christianity, Judaism, Hinduism, Islam, Buddhism, Sikh or Jaina religion and those who profess Hindu, Buddhism, Sikh or Jaina religion. It also aims to legalise certain other marriages, the validity of which is doubtful.
It has been settled in case law that if the parties with differing religious beliefs do not abandon their religion the marriage will be void. So in circumstances of such a special marriage, the religion must be forsaken (18 DLR 509).
According to Muslim family law of Bangladesh, a Muslim male can marry a female who professes other religion. If the other party professes to revert to Islam then the marriage would be entirely legal and face no problems. However, if the other party does not revert to Islam, then although the marriage will be solemnised, it will be 'irregular'. On the other hand, a Muslim female cannot marry a man who professes other religion. If the other party, in this case the male, agrees to revert to Islam only then would the Muslim female be able to marry the newly reverted Muslim male.
According to Christian family law there are no bindings. Since the 1872 Act treats the Muslims, Christians, Jews and Parsi alike, it may be understood that Jewish and Parsi family law would be the same.
At the time of marriage, neither party must have a living husband or wife. According to the Gregorian calendar, the man must be eighteen years of age, and the woman must be fourteen years old. Each party must, if s/he has not completed the age of twenty-one, must have obtained the consent of his/her father/guardian to the marriage. 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.
The Government may appoint one or more Registrars under this Act for any portion of the territory. The officer appointed shall be called the 'Registrar'. One of the parties must give notice in writing on a prescribed form, within which at least one of the parties has resided for fourteen days before such a notice is given. The Registrar shall enter a valid copy of every such notice in a book, namely 'Marriage Notice Book', which shall be open at all reasonable time, without fee, to all persons desirous of inspection.
Any person may object to such a marriage on the ground that it would contravene someone or more of the condition described in clauses 1, 2, 3, or 4 of Section 2 of Special Marriage Act 1872. The objector may file a suit in any civil court having jurisdiction (except a Court of Small Causes) for a declaratory decree, declaring above contrivance. The marriage shall not be solemnised till the decision of such Court has been given or if there is an appeal from such decision, till the decision of the Appellate Court has been given. If it appears that the objection was not reasonable and bona fide, the Court may inflict a fine upto one thousand taka on the person objecting.
In the presence of the Registrar and of three witnesses, who signed the declaration, the marriage will be solemnised. In any form it may be solemnised with the condition that, each party states to the other, in the presence and hearing of the Registrar and witnesses that, “A takes B, to be his/her lawful wife/husband”.
At the office of the Registrar the marriage may be solemnised, certified extracts therefrom shall on application be given by the Registrar on the payment to him by the applicant of a fee to be fixed by the Government for each such extract.
Every person who, being at the time married, procures a marriage of himself to be solemnized under this Act, shall be deemed to have committed an offence under section 494 or section 495 of the Penal Code, as the case may be; and the marriage so solemnized is void (Section 15).
Every married person who contract any other marriage during the life time of his/ her wife/ husband, shall be subject to the penalties provided in Section 494 or 495 of the Penal Code for the offence for marrying again during the life time of a husband/ wife, whatever may be the religion which he/she professed at the time of such second marriage (Section 16).
The Divorce Act shall apply to all marriages contracted under this Act, and any such marriage may be declared null or dissolved in the manner therein provided, and for the causes therein mentioned, or on the ground that it contravenes some one or more of the conditions prescribed in clauses (1), (2), (3) or (4) of section 2 of the Special Marriage Act.
The issue to which their father were subject to the prohibition of marriages by reason of consanguinity and affinity, marriages solemnised this Act shall be deemed to be subject to the law. The provisions to Section 2 of the Act also shall apply (Section 18). Nothing in the Act contained affects the validity of any marriage, nor does the Act deem directly or indirectly affect the validity of any mode of contracting marriage (Section 19).
Every person who either knows or believes to be false or doesn't believe to be true, which signing or attesting any declaration or certification, containing a declaration, which is false, he will be guilty of the offence described in Section 199 of the Penal Code (Section 21).
Any member of an undivided family who profess the Hindu, Buddhist, Sikh or Jaina religion, if marriage under the Act, he shall be deemed to effect his severance from such family (Section 22).
A person who profess the Hindu, Buddhist, Sikh or Jaina religion but married under the Act, he shall have the same rights and same disabilities in regard to any right of succession to any property as a person to whom the Castle Disabilities Removal Act 1850 applies (Section 23).
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).
A person who professing the Hindu, Buddhist, Sikh or Jaina religion marring under this Act, he shall have no right of adoption (Section 25). But his father shall have the right of adoption another person as a son under the law to which he is subject, provided that if he has no other son living.
If different party professes different religion, solemnisation of marriage becomes very difficult. The Special Marriage Act removes such difficulty. The objective of the concept of special marriage is to allow those professing diverse religions in a marriage to continue following their own religion even after the marriage.
The writer is a human rights activist.
