family law – validity of marriage under Special Marriage Act

[K Sagar]

sir,
i registered my marriage under spl. Marriage Act at Vadodara, Gujarat.
The next day i came to know that the concerned sub registrar –the marriage officer- was on leave and the person who was in the chair of his was a fixed pay employee. i contacted one lawyer he said that if the person was not appointed by the Registrar as sub Registrar in that case sec. 12 of the Registration act will apply and the marriage may not be treated a valid marriage.
In this circumstances what is the legal position of my marriage? And what the remedy?

[Dr. Ashok Dhamija]

While it is not possible for me to comment on the detailed facts of a case on this forum (please see forum guidelines), let me point out the relevant legal provisions that may help you.

Firstly, Section 13(2) of the Special Marriage Act, 1954, lays down that a certificate entered in the Marriage Certificate Book by the Marriage Officer, shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with. Thus, if a marriage certificate has been issued to you and entered in the marriage certificate book, it may be considered as conclusive evidence of the marriage. This section is reproduced below:

“13. Certificate of marriage.—(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.

(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.”

Secondly, if your marriage has been celebrated in other forms (as mentioned in Section 15 of the said Act, which is reproduced below) and then registered under the Special Marriage Act, then also Section 18 of the Act affords certain protection to such marriage:

“18. Effect of registration of marriage under this Chapter.—Subject to the provisions contained in sub-section (2) of Section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents:

Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents.”

Section 15 of the Act, referred to above, is reproduced below:

“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) 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;

(e) the parties are not within the degrees of prohibited relationship:

Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and

(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.”

Thirdly, Section 26 of the Act provides that even if a marriage under the Special Marriage Act is void or voidable, a child born out of such wedlock would be considered legitimate subject to provisions of this section:

“26. Legitimacy of children of void and voidable marriages.—(1) Notwithstanding that a marriage is null and void under Section 24, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 25, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it has been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) and sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 25, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.”

Fourthly, you have mentioned about Section 12 of the Registration Act, whereas a Marriage Officer is appointed under the provisions of Section 3 of the Special Marriage Act. I don’t know whether in your state, Sub-Registrars are appointed as Marriage Officers. In any case, above legal provisions may help you. You may also consult some local lawyer by showing him the full details of your matter, including the marriage certificate issued to you.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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