Special Marriage Act and its applicability in Sikkim

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Marriage is the auspicious culmination of two souls, but to have a religious legal and customary sanctity, it has to be performed in accordance with one’s respective religious ceremonies. Hindu, Buddhist, Jain and Sikh marital laws are governed under the Hindu Marriage Act. Similarly, Christians and Muslims have their own set of statutory rules; there is also an existence of the customary practice of getting married, apart from that, inter-religion and inter-communities marriages are performed under the provision of the Special Marriage Act.

When the Special Marriage Act was extended to the state of Sikkim through a Presidential Notification recently, somewhere it created a buzz on its extent and its applicability.

Article 371 F (n) empowers the President of India to extend any central legislation to the state of Sikkim; the notification of the President of India to extend the Special Marriage Act, 1954 in the state of Sikkim is such an example. There may be various reasons as to why it took a lot of time to extend such laws. But this provision will certainly enable parties intending to marry a person cutting across religious and community lines to have the confidence to register valid marriages.

We are aware of how caste and religion play a pivotal role in marriages and the instances of some caste and religious taboos we hear is disheartening, but to makes things easy and to defy the traditional barriers, the Special Marriage Act was enacted to protect those who rise above caste and religious divide for the sake of love.
The changing times and the mindset of the people living in the secular nation should reflect the basics where everyone’s choice is honoured and the freedom is upheld not just in the statutes but also in the society in entirety.

Some of the basic things one has to understand about the marriages under the Special Marriage Act are-

How are Special Marriages performed?
Any party belonging to different religions and communities who wish to have a valid marriage can approach the marriage officer or Marriage Registrar of one’s district and give notice in writing to the marriage officer when a marriage is intended to be solemnized. But the parties intending to marry each other must ensure that-
-both the parties should not have any spouse living.
-a male has to complete 21 years of age and female has to be 18 years of age.
-parties should not be of unsound mind and insane and should be mentally fit to take their decision.
-the parties should not fall under the blood relation or under prohibited degrees.

So, after duly complying with all the statutory rules the marriage officer issues a Marriage Certificate under Section 13 of the Special Marriage Act.

Marriage with a foreign national: The Special Marriage Act doesn’t bar any Indian national to marry foreign individual, those intending to marry the foreign national can register their marriage under the Special Marriage Act.

The legitimacy of children and succession in the property:
The children born out from those couples who get married after transgressing the caste and religious lines are legitimate and the normal presumption of the caste of the child will be that of the father, but in some condition if there is a dispute with respect to the caste of a child if their parents are separated then the caste of that particular child will depend upon the circumstances upon which that child is brought up i.e that can either with the mother or father.

On the other hand when it comes to a question of succession of a property to children born out from the marriage under the Special Marriage Act, then the Indian Succession Act will prevail and the partition and succession will be done as per the provision of the Indian Succession Act.
The question that remains on the applicability of the Indian Succession Act so far Sikkim as concerned is, as per the sources from the legal fraternity, it is said that the Indian Succession Act is not extended to the state of Sikkim and only the principles of this provisions are followed. So, it is high time for the concerned to bring this in the notice of the legislative department in Delhi.

Divorce under the Special Marriage Act:
No petition for divorce is allowed to be presented before one year of marriage; therefore divorce can be granted on the ground of desertion, in case if a party has deserted for more than two years, on the ground if any spouse is convicted under any offence which is of more than seven years of imprisonment, on the ground of cruelty and unsound mind.

A Petition for Divorce has to be presented in the concerned district court either by the husband or wife.

Conclusion:
With much liberty to children to get married after falling into love with a person of his or her choice, irrespective of which caste and religion their lover belongs, this provision assumes much significance and especially its extent to the state of Sikkim will have more impact to those who want to register their marriages cutting across caste and communities lines.

By Pramit Chettri. The author is an Advocate who hails from Malbassey, Budang village under Soreng Sub-Division, West Sikkim and is currently practising law before the Supreme Court of India and Delhi High Court. He can be contacted via his email id pramitchhetri@gmail.com.

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