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Difference between Hindu Marriage and Special Marriage Act in Chennai

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Difference between Hindu Marriage and Special Marriage Act in Chennai
1. The Hindu Marriage Act, 1955 2. The Special Marriage Act, 1954 The Hindu Marriage Act, 1955 deals with marriage registration in case both husband and wife are Hindus, Buddhists, Jains or Sikhs or, where they have converted into any of these religions. It is to be noted that Hindu Marriage Act deals with only marriage registration that has already been solemnized. Whereas, the Special Marriage Act, 1954 lay down the procedure for both solemnization and registration of marriage, where either of the husband or wife or both are not Hindus, Buddhists, Jains or Sikhs. It is the duty of the judiciary to ensure that the rights of both the husband and wife are protected. In case this union between the husband and wife breaks, it should be determined that if this break-up was a result of actions of any of the parties or not. Essentials of Marriage Registration 1. THE HINDU MARRIAGE ACT, 1955 Under the Hindu marriage Act, 1955, certain conditions must be fulfilled in order to give the marriage between the parties a legal standing and make it a valid marriage. These conditions have been specified under Sec. 5 and sec. 7 of the Act. By virtue of section 5 of the Hindu Marriage Act 1955, a marriage will be valid only if both the parties to the marriage are Hindus. If one of the parties to the marriage is a Christian or Muslim, the marriage will not be a valid Hindu marriage.[1] It was held in the case of M. Vijayakumari vs. K. Devabalan[2]that: A marriage between a Hindu man who converted as Christian and a Christian lady in a Hindu form is not a valid marriage. According to section 5 of the Act marriage can be solemnized between two Hindus. A marriage may be solemnized between any two Hindus if the following conditions are fulfilled, namely: • Neither party has a spouse living at the time of the marriage, • Neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind, • Though capable of giving a valid consent, neither of them has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children, • Neither of them has been subject to recurrent attacks of insanity or epilepsy. • The bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage, • The parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two, • The parties are not sapindas (one is a lineal ascendant of the other) of each other, unless the custom or usage governing each of them permits of a marriage between the two[3]. Note: Degree of prohibited relationship[4]- Two persons are said to be covered under the degrees of prohibited relationship if – • One of them is the lineal ascendant of the other, • If one was the wife or husband of lineal ascendant or descendant of the other, • If one of them was wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other, • If the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters. Must Read: who’s a lineal ascendant/ descendant? A marriage falling within the above categories shall be considered void. Exception: Here the customs play an important role i.e. If there is a valid custom governing the parties, they can marry even if they fall under the degrees of prohibited relationship. Punishment: A marriage solemnized between the parties within the degrees of prohibited relationship is considered null and void . The parties of such marriage are liable to be punished with simple imprisonment for a period of one month of fine or Rs. 10000/- or with both Solemnization in Hindu Marriage in Tamilnadu The Hindu Marriage Act, 1955 deals with the ceremonies to be followed in a Hindu marriage, by the virtue of Sec. 7. The provision states that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either of the parties. A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. The ceremonies may vary according to the cultures and customs followed by the parties. In the matter of Kanwal Ram vs. Himachal Pradesh Administration the court declared that a marriage is not proved unless the essential ceremonies required for its solemnization are proved to have been performed. 2. THE SPECIAL MARRIAGE ACT, 1954 The Special Marriage Act, deals with both solemnization and registration of marriage. Under the Special Marriage Act, 1954 certain conditions have been laid down under Sec. 4, which are substantially similar to those laid down under Sec. 5 of the Hindu Marriage Act, 1954. As per this act, no religious ceremonies are prerequisite for a marriage to be complete. The Act lays down following conditions for a marriage to be regarded as a lawful one, having legal standing, by the virtue of Sec. 4: • Neither party should have a spouse living at the time of the marriage[7]. • The physical and mental capacity of the both the parties should be as per the section requires • The age of the parties i.e. the male has completed the age of twenty one and the female has complete the age of eighteen • The parties are not within the degree of prohibited relationship provided that custom governing one of the parties permits such a marriage between them A marriage in contravention of any of the above conditions will stand void under the Special Marriage Act, 1954. 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[11]. 10 Things Every Tamilnadu couples Should Know About Special Marriage Act 1954 PROCEDURE FOR MARRIAGE REGISTRATION IN TAMILNADU It is essential to carefully understand the procedure to be followed to get your marriage registered as per law. Who to approach for marriage registration? For the purpose of registration of marriage[12], one has to approach the office of the Sub Divisional Magistrate under whose jurisdiction the marriage took place or where either of the spouses stayed for at least six months before the marriage. Documents required for marriage registration in Tamilnadu As per the official website of Tamilnadu Government, following documents are required to be submitted after being duly attested by the Gazetted Officer, for obtaining registration of marriage Hindu marriage Act: • Application form or Memorandum of marriage duly signed by husband and wife. • Documentary evidence for support of date of birth of both the parties. This age, under both the Hindu Marriage Act and Special Marriage Act, is 21 years for male and 18 years for female. This document can be in the form of matriculation certificate/passport/birth certificate. • Residence proof of husband and wife (Ration Card, Aadhar Card, Election Voter Id, PAN Card, or bills like Electricity Bill etc.) • Two passport size photographs of both the parties and one marriage photograph. • Marriage invitation card, if available. • In case the marriage was solemnized at a religious place, a certificate from the priest is required to solemnize the marriage. • In case of marriage under Hindu Marriage Act Rs. 100, and in case of marriage Special Marriage Act, Rs. 150, is required to be submitted to the cashier of the district and the receipt is to be attached along with the application form. • The parties are required to give affirmation that they are not related and do not fall within the degree of prohibited relationship, as laid down under the Hindu Marriage Act 1955 and the Special Marriage Act, 1955. • Attested copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower. • In case one of the parties belong to other than Hindu, Buddhist, Jain and Sikh religions, a conversion certificate from the priest who solemnized the marriage(in case of Hindu Marriage Act) is required. • Affidavit by both the parties stating place and date of marriage, date of birth, marital status at the time of marriage and nationality. In case of Court Marriage – how does registration of marriage take place? • An Application must be attested by Notary Public • Application form in the prescribed format. • Age Proof or any one out of – Voter I- Card, Driving License and Matriculation Certificate. • Residence Proof- Voter I- Card, Driving License, Matriculation Certificate, or Passport. • 6 Passport size photographs of the bride & the groom . • PAN Cards and the Residential Proofs of the three witnesses. • In case one of the bride or groom is (are) a divorcee than a Certified copy of Decree of Divorce granted by the Court or • In case of the death of the last spouse of either of the party, a death certificate is required. • If one of the partner is a foreigner then No Impediment Certificate / NOC from concerned Embassy and Valid VISA required. Criteria for Marriage Registration in Tamilnadu 1. Hindu Marriage Act in Tamilnadu For the purpose of concluding the process, after due verification of all the documents submitted by the parties, a day is fixed for registration which is communicated to the parties. Both the parties, along with the Gazetted Officer who attended their marriage, are required to be present on the said day before the Sub-Divisional Magistrate. After all the process is concluded, and the SDM is satisfied, the certificate is granted on the same day. 2. Special marriage Act in Tamilnadu for initiating the process of marriage registration under this Act, before submitting the above documents, both the parties have to give a 30-day notice to the sub-registrar in whose jurisdiction at least one spouse has resided[13]. Both the parties are required to be present after submission of documents for issuance of public notice inviting objections. One copy of notice is pasted on the notice board of the office and the copy of the notice is sent via registered post to both the parties as per the address given by them. Registration is done 30 days after the date of notice, after deciding any objection that may have been received during that period by the SDM. Both parties along with three witnesses are required to be present on the date of registration[14].
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