Whether parties can dissolve marriage registered under Special Marriage Act by executing divorce deed on stamp paper?

It is the requirement of the statute that once having chosen to be spouses under the Special marriage Act, it is necessary for the parties to take recourse to the very law to even permanently severe the ties. In the instant case, although the marriage took place as mentioned hereinabove under the Special Marriage Act for the reasons best known to respondent No. 4, who claims to have got the purported document executed on the Rs. 100/- stamp paper before the Notary. That itself is raising question mark in relation to this very document. However, we are not presently to adjudicate upon the said issue and any claim made on the strength of the said document or any refusal that comes from the Respondent no. 4 claiming through this document, shall need to be presently denied. For the purpose of writ of habeas corpus, we have chosen not to permit reliance on the said document noticing the very question of validity of this document coupled with serious allegations of against mother of the applicant as all these can be sorted out by the respective parties in the appropriate proceedings.

In the High Court of Gujarat at Ahmedabad

(Before Sonia Gokani and N.V. Anjaria, JJ.)

Chavda Twinkle Vs  State of Gujarat

R/Special Criminal Application No. 2800 of 2020

Decided on July 17, 2020

Citation: 2020 SCC OnLine Guj 1167

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Whether a husband can contend that he will be governed by Muslim law if he performs marriage under the Special Marriage Act?

The Certificate of Marriage issued by the Marriage Officer under the Special Marriage Act is a conclusive proof of their valid marriage under the Special Marriage Act and the petitioner cannot be permitted to challenge the jurisdiction of the Family Court to entertain and try the petition for divorce instituted by the respondent. The petitioner's challenge to the jurisdiction of the learned Family Court to entertain and try the petition under the Special Marriage Act is barred by law.

11.4. The learned Family Court has clear jurisdiction to entertain and try the respondent's petition as both the parties are governed by the Special Marriage Act.

11.5. The petitioner's contention that the respondent embraced Islam prior to 20th August, 1998 is contradictory and mutually destructive to the petitioner's admission in the written statement that the respondent was Hindu at the time of the marriage on 20th August, 1998. The petitioner has neither withdrawn the admission made in the written statement nor given any justification for setting up a contradictory plea. In that view of the matter, the respondent cannot be permitted to set up a contradictory and mutually destructive plea in the written statement by way of an amendment.

11.6. Even assuming that the respondent had embraced Islam prior to 20th August, 1998, it would not in any manner, effect the jurisdiction of the learned Family Court to entertain and try the petition for divorce under the Special Marriage Act.

In the High Court of Delhi at New Delhi

(Before J.R. Midha, J.)

M    v.   A 

CM(M) 140/2017

Decided on March 23, 2018

Citation: 2018 SCC OnLine Del 8005 : (2018) 248 DLT 466 : (2018) 185 AIC 770 : 2018 AIR CC 2273

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Whether family court has jurisdiction to entertain divorce petition under special marriage Act?

Under Section 13(2), the aforesaid Certificate dated 20th August, 1998
is deemed to be conclusive evidence of the fact that marriage under the Act
had been solemnized and that all formalities respecting the signatures of
witnesses have been complied with.
11.3. The Certificate of Marriage issued by the Marriage Officer under the
Special Marriage Act is a conclusive proof of their valid marriage under the
Special Marriage Act and the petitioner cannot be permitted to challenge the
jurisdiction of the Family Court to entertain and try the petition for divorce
instituted by the respondent. The petitioner’s challenge to the jurisdiction of
the learned Family Court to entertain and try the petition under the Special
Marriage Act is barred by law.
11.4. The learned Family Court has clear jurisdiction to entertain and try the
respondent’s petition as both the parties are governed by the Special
Marriage Act.
11.5. The petitioner’s contention that the respondent embraced Islam prior
to 20th August, 1998 is contradictory and mutually destructive to the
petitioner’s admission in the written statement that the respondent was
Hindu at the time of the marriage on 20th August, 1998. The petitioner has
neither withdrawn the admission made in the written statement nor given
any justification for setting up a contradictory plea. In that view of the
matter, the respondent cannot be permitted to set up a contradictory and
mutually destructive plea in the written statement by way of an amendment.
11.6. Even assuming that the respondent had embraced Islam prior to 20th
August, 1998, it would not in any manner, effect the jurisdiction of the
learned Family Court to entertain and try the petition for divorce under the
Special Marriage Act.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd March, 2018
 CM(M) 140/2017
M  Vs  A 

CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA

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Whether religion of wife merges with religion of husband after marriage?

The Supreme Court on Thursday disagreed with a ruling by the Bombay High Court which said that a woman’s religion merges with her husband’s after an inter-religion marriage. The apex court also requested the Valsad Zoroastrian Trust to review its decision to prohibit a Parsi woman from performing the last rites of her parents because she married a man from another religion.

A bench comprising Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan also observed that a Parsi man marrying outside his community wasn’t barred from entering the Tower of Silence but a Parsi woman was. “Marriage does not mean a woman mortgages herself to her husband. Prima facie, we do not accept this merger principle,” the bench said.

“There is no law which debars a woman from entering the Tower of Silence after marrying outside the community,” the bench added. It also asked the trust to understand the emotions of a child towards her parents.

“Special Marriage Act was enacted so that a man and woman professing different faiths can marry and retain their religious identity after marriage. There is no question of merger of woman’s religion with that of her husband’s. Only she on her own volition can give up her religion,” the bench said appreciating senior advocate Indira Jaising arguing on behalf of Goolrokh M Gupta.

The Parsi woman, Goolrokh M Gupta, who married a Hindu man, was barred by the Valsad Zoroastrian Trust from performing the last rites of her parents as she had married outside her community. Goolrokh sought the Bombay High Court’s permission to perform her parents’ last rites when they died but the court ruled in favour of the trust.

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Whether special marriage Act prohibit Indians to marry foreigners?

 In a case before the Court where the petitioner, an Indian Citizen, was prohibited from marrying a Canadian Citizen on the ground that the provisions of Special Marriage Act, 1954 cannot be invoked in the instant case as one of the party to the marriage is a foreigner, a bench of K.V. Chandran J directed the 3^rd respondent (Marriage Officer) to accept the application of the petitioner and permit her to contract the marriage as intended by her, as the Special Marriage Act, 1954 does not bar the solemnization of marriage between an Indian and a foreigner.

The Court read Section 4 of the Special Marriage Act and observed that solemnization of the marriage between “any two persons” could not be prohibited in the present case as the petitioner satisfies the conditions stated in sub-clauses (a) to (d) of the said provision. The Court noted that the word “person” used in Section 4 of the Act does not indicate that either one of the parties or both the parties should be citizens of India. The Court further noted that there is no requirement of informing about the said marriage to a Marriage Officer appointed by the Government of India in its embassy at Canada as Section 6(3) is not applicable in the instant case, because one of the parties is a foreigner and does not have permanent resident in India. Accordingly, the Court permitted the petitioner to contract the marriage as intended by her and directed the Marriage Officer to register the marriage under the Act.

Kerala High Court

Devika Raj vs State Of Kerala on 8 August, 2014

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When maintenance can not be denied to wife on the ground that she was not converted in to Hinduism prior to her marriage?

 According to the
defence raised by the non-applicant that the applicant was not converted
into Hindu before the marriage and therefore, the marriage was invalid. If
in this context, the provisions of Section 4 of Special Marriage Act, 1954
are examined. Section 4 in Chapter-II of Special Marriage Act, 1954
prescribes with a non-obstinate clause that a marriage between two
persons may be solemnized under the Special Marriage Act, if neither
party has spouse living for incapable of giving consent to it in the
consequence of unsoundness of mind or though capable of giving a valid
consent, 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 and
subject to recurrent attacks of insanity and if the male has completed the
age of twenty-one years and the female the age of eighteen years, or
when the parties are not within the degrees of prohibited relationship, then
the marriage can be solemnized.
Herein this case, admittedly there was no shadow of such restrictions
between the parties to solemnize marriage. Only factor pleaded by the
non-applicant that the religion were different i.e. Hindu and Muslim.
Though the applicant has stated to have solemnized the marriage after
conversion even if such statements are sidelined, the provisions of the
Special Marriage Act, 1954 will govern the parties. Meaning thereby the
defence raised by the non-applicant may not be available to him qua
proceeding U/s.125 of Cr.P.C. It is not inconsistent to add that Special
Marriage Act, 1954 do not contemplate the effect of non-registration of

marriage under the Act. So consequence having not been provided for
non-registration and if the registration of marriage is held to be mandatory,
the object of the Special Marriage Act, 1954 would be defeated. So under
the given set of facts, even if the pleadings of non-applicant is admitted,
that parties belonged to different religion i.e. one Hindu and one Muslim,
the status of applicant can not be denied that of wife.
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Revision No. 544 of 2013

Smt. Shikha Majumdar &
Another
VERSUS

Anutosh Majumdar
[Criminal Revision Under Section 19(4) Of The Family Court Act, 1984]
SB: Hon’ble Shri Goutam Bhaduri, J.

(Delivered on 24th December, 2014)
Citation;2015 CRLJ(NOC)193 Chhatis

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Whether statutory provisions creating substantive right or taking away substantive rights are ordinarily perspective?

There can be no dual opinion in respect of the
proposition that statutory provisions creating substantive right or
taking away substantive rights are ordinarily perspective. They are
retrospective only if by express words or by necessary implication
the Legislature has made them retrospective; and the retrospective
operation will be limited only to the extent to which it has been so
made by express words or necessary implication. (See Mahadeolal
Kanodia Vs. The Administrator General of West Bengal,
reported in AIR 1960 SC 936).
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.07 OF 1996

Sou.Kamal Anna Gaikwad Vs  Anna  Balaji Gaikwad,




CORAM : R.M.BORDE,
N.W.SAMBRE &
A.M.BADAR, JJJ.

Pronounced on : 09th May, 2014.
JUDGMENT (Per R.M.Borde, J.):
Citation; 2014(4) MHLJ 581 Bom FB

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