Have you got your marriage registered under the Special Marriage Act? Here are some reasons why you should do it now
Marriages in India are governed by laws specific to the person’s religion. Usually, people think about having their marriage registered under the Special Marriage Act (SMA), 1954, only when the couple planning matrimony belong to different religions, since the act allows each of them to retain their religion.
The law does not require a Hindu marriage or a Muslim marriage to be registered under the Act. But I would argue that there are many advantages to complete the formality of registration under the Special Marriage Act.
In case of inter-religion marriages, it eliminates any conflict or decision about religion. A Hindu boy can marry a Christan girl and both can maintain their respective religion after their marriage. However, it must be remembered that children born to this couple will get father's religion, by birth, under Indian Law.
The Special Marriage Act, eliminates the need for mandatory religion-specific rituals like the "Saptapadi" for Hindus and "Kabool" or agreement among Muslims. Consequently, even divorce by uttering "Talak" three times in front of a Kazi is not permissible, once a marriage is registered under Special Marriage Act -SMA. A divorce can only be obtained through a decree from the family court.
Couples who are already married under the laws governing their respective religions can also get their marriage registered under the SMA. They need to fill Form 16, rather than Form 5 that is applicable to couples who plan to get married.
The process requires filling a form and giving a notice to the Marriage Officer’s office with age, identity and address proof. The marriage has to be registered after a 30-day period but within 90 days of serving the notice. The registration has to be witnessed by three witness, who also have to provide identification proof with photographs these days.
For already married couples who want to register their marriage under the SMA, long after they have started families, the process is similar but with small differences. These couples would fill Form 16 for special marriage registration, which also has provision to include the names of their children with their age on the date of registration. The marriage certificate will include the names of the children and thus becomes a sort of family certificate that is very useful in succession related issues.
Life is uncertain and you never know when the precaution of having registered a marriage under the SMA would help. Consider some of these real life situations. We have changed the names in all examples
a) Meenal, a girl from a Gujarati family got married to Anand from the same community in a family arranged marriage. Tragically, she lost her husband in a car accident within two months of her marriage. The in-laws, as happens so often in India, decided that she had brought bad luck and threw her out of the house without a penny, even though they were wealthy. A certificate under the SMA would have facilitated the process of making some compensation from the husband’s family – after all, her parents had spent a great deal on her marriage. It is not as though she loses her right or ability to make a claim, it is just that the hardship involved in proving a traditional marriage with photographs, wedding cards and statements from the priest and guests is a lot more tedious and time consuming.
b) Altaf, a Muslim boy was in love with Shalini, a Hindu. When they decided to marry, Shalini agreed to convert to Islam but only if the marriage was registered under the SMA. As it turned out, two years later things began to sour. Altaf, who was wealthy, believed that he could marry four times under his religion and began to make plans to get married again. Shalini approached the family court and argued that Altaf could not marry again without first divorcing her, since their marriage was registered under the SMA. The two were divorced, but Shalini obtained compensation under the SMA, before Altaf could go his own way.
c) Jagdish Lahiri, professor at a well-known Mumbai college suddenly died of a heart attack at the age of 53. His widow submitted a request to the college seeking a family pension as per the rules. The pension office asked her to submit a marriage certificate. Unfortunately, the professor and his wife had not registered their marriage (a marriage can be registered at any time when the two spouses are alive). She then had to approach a competent court for a succession certificate after which the family pension was granted. This took six months and would probably have led to a longer wait but for the fact that a former student of her husband, who was an advocate, agreed to help her get the succession certificate fairly quickly for a small fee. It still meant living without the pension for six months in addition to the trauma in the middle of a tragedy.
d) Kantilal Sheth, a businessman, died leaving behind his widow and two children. He was prudent enough to have made a Will in which he left his entire estate to his wife. Strangely enough, Kantilal’s sons challenged the Will and went to the extent of asking for documentary proof that she was indeed the legal wife of their father. As it turns out, the husband had anticipated this ugly situation too and has registered his marriage under the SMA. The certificate had the names of his sons as well. So the court recognised it as valid evidence and granted a probate allowing all properties to the mother. What is sad about this story is that their father’s Will had said they would get equal share of the property after the mother’s demise, but the sons subjected their mother to indignity to try and wrest the property even while she lived.
e) Ashok Merchant had a partnership business. The partnership deed had a succession clause that said that after the demise of any of the partners, his wife or son would be absorbed into the partnership in place of the deceased partner. Now, Merchant passed away and left behind his wife and three adult sons. The wife was uninterested in the business and only her second son was keen on the partnership. The other partners demanded that the family provide proof that they were indeed the sons of Mr Merchant. His widow and the other two sons then wrote an affidavit and provided an indemnity to the partnership firm that they had jointly and severally decided to have the second son substitute their father in the partnership. But the partners wanted proof of the marriage. Here again, Mr Merchant had his marriage registered under the SMA just five years before his demise. So the marriage certificate, which had the names of all three sons, was an adequate document in court for the succession formalities and the partnership.
f) Now consider what happens when you don’t have such proof. This story goes back to 1997, when property rates were not so high. Ajeet Kaul, an automobile engineer, was in love with a Maharashtrian girl, Amita Bhosle. Both worked in an auto showroom. The two decided to get married. Now, Article 270 of Indian Constitution gives special rights to people from Kashmir. But the right expires if they buy property outside Kashmir, or marry a person, who is not domicile of Kashmir. After their marriage according to Hindu rites, Kaul bought a flat in Amita's name in which they lived in the Mumbai suburbs. Amita took great care not to register the marriage and even the rituals happened at the priest’s house, with neither the bride nor the groom’s parents were present. The parents were against the marriage and she claimed that they would announce their marriage only after they had a child, in order to win them over. A couple of months later, Kaul had to travel to Kashmir for a fortnight. On his return, he was shocked to see another family living in his house. On asking, he discovered that Amita had sold the flat to the family and vanished; worse she had told them that a Kashmiri who was staying as a paying guest would come and collect his belongings in 15 days. Ajeet Kaul then went to the auto showroom where they worked and discovered that she had left the job too. After a great effort, he found her new address and tried to meet her. He discovered that she was married to another Marathi boy and produced her SMA certificate of that marriage. Kaul had been thoroughly conned – he was robbed of Rs5 lakh and heartbroken. The lesson here is not merely to register your marriage under the SMA but also be less trusting.
(Shirish S Shanbhag
, an MSc and a retired professor with over 32 years of experience, helps draft legal documentation related to co-operative societies, RTI and several other areas.)