‘Marriages under Special Marriage Act not governed by personal laws’

Even if the spouse converts to the partner’s religion later, says High Court

Published - March 29, 2018 01:39 am IST - Soibam Rocky SinghNew Delhi

 A man had challenged the jurisdiction of family court, where his wife had filed for divorce, claiming that their marriage was governed by the Muslim Personal Law as they had a nikah ceremony after they got married under the Special Marriage Act.

A man had challenged the jurisdiction of family court, where his wife had filed for divorce, claiming that their marriage was governed by the Muslim Personal Law as they had a nikah ceremony after they got married under the Special Marriage Act.

A person who marries under the Special Marriage Act and then converts to the partner’s religion is entitled to invoke the jurisdiction of a family court instead of personal law for dissolution of marriage, the Delhi High Court has ruled.

Giving clarity on the issue faced in many inter-religious marriages, Justice J.R. Midha said, “When a person solemnises marriage under this law, then the marriage is not governed by personal laws but by the Special Marriage Act.”

A man had challenged the jurisdiction of family court, where his wife had filed for divorce, claiming that their marriage was governed by the Muslim Personal Law as they had a nikah ceremony after they got married under the Special Marriage Act.

Man fined

But the court dismissed the man’s petition as “gross abuse and misuse of the process of law” with a penalty of ₹50,000.

“Even assuming that the respondent [woman] had embraced Islam…it would not in any manner affect the jurisdiction of the family court to entertain and try the petition for divorce under the Special Marriage Act,” the court held.

Secular Act

The Special Marriage Act provides a special form of marriage, its registration and divorce. A marriage between any two persons belonging to any religion or creed may be solemnised under this Act. Being a secular Act, it plays a key role in liberating individuals from traditional requirements of marriage, the court said.

Unique feature

A unique feature of the Special Marriage Act is compulsory registration of marriage under the Act, which protects the interest of the parties and children born in the wedlock. No religious rituals or ceremonies are required for the marriage to be completed under the Special Marriage Act and it is up to the parties to decide whether they want to perform marriage rituals or not.

The parties in this case got married under the Special Marriage Act in August 1998 and had a nikah ceremony four months later. In September 2014, the wife moved the family court for divorce. The man had challenged the maintainability of divorce proceedings, which were being heard as per the Special Marriage Act, but the family court dismissed his application. He then challenged the family court order before the High Court.

Ruling that the family court has the jurisdiction to “entertain and try” the divorce petition, the High Court directed the family court to expedite and decide the woman’s petition within one year.

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