INTRODUCTION
The Special Marriage Act,1957 (SMA) is an Indian legislation that provides a comprehensive framework for the marriage of individuals, regardless of their religion and faith. This Act facilitate inter-faith marriages and ensures that such unions get legal recognition. On the other hand, personal laws govern intra-religion unions. In nutshell, both laws provide distinct framework for marriage catering to diverse social and cultural needs.
In this article, comparison between the two laws have been laid out on the following grounds:
Applicability
Personal laws of marriage are different for different religions and hence it is applicable only to individuals of the respective religion. For Example: The Hindu Marriage Act,1955 for Hindus, Uncodified Muslim personal law for Muslims, Christian Marriage Act, 1872 for Christians etc.
SMA is a secular law that allows individuals of any religion or community to solemnize their marriage irrespective of their religion. It is particularly applicable in cases of inter faith marriages. It also have international applicability which means the provisions extend to Indian nationals living abroad.
Conditions for marriage
To solemnize a marriage under SMA, the male must be at least 21 years old whereas the female must be 18 years old. SMA prohibits polygamy but muslim law allows polygamy. Child marriages are allowed under personal laws but now these marriages are illegal as it is prohibited by Prohibition of Child Marriage Act, 2006.
Registration of Marriage
SMA requires compulsory before the marriage and a 30 day notice is mandated during which objections can be raised on legal grounds. Under personal laws, registration is optional and public notice is not requires. A marriage done with proper rituals and customs would amount to a valid marriage under personal laws. However, it is advised to register the marriage even if it is solemnized under personal laws as it holds a strong legal validity.
Rituals and formalities
SMA does not requires any religious rituals or ceremonies. Marriage is solemnized through registration in compliance with legal requirements at the office of Marriage officer or at any place specified by the parties but it must fall within the jurisdiction of the Marriage officer. At least three witnesses must be present during the solemnization. After the solemnization, marriage certificate is issued. On the other hand, personal laws are heavily reliant on customs and rituals. For Example – A Hindu marriage must includes saptapadi (seven steps around the fire) and a Christian marriage requires a church ceremony.
Inter-faith marriage
Special Marriage Act provides a neutral framework for marital unions that does not require conversion of either party. On the other hand, personal laws do not permit interfaith marriages unless one party converts to the religion of the other party. Conversion is often required under marriages solemnized under personal laws.
Divorce and maintenance
Divorce provisions under SMA (section 27 and 28) are secular and gender neutral, based on mutual consent, cruelty, desertion etc whereas divorce provisions under personal laws are based on religious customs. Muslim law includes Talaq and iddat. Hindu personal law is codified and the provisions of divorce and maintenance are dealt under Hindu Marriage Act of 1954.
Inheritance and Succession
Inheritance and succession is governed by Indian Succession Act,1954 when marriage is solemnized under SMA. Whereas when a marriage is solemnized under personal laws, then inheritance and succession are governed by the personal laws. For Example: For a marriage solemnized under Hindu Marriage Act,1954, inheritance is governed by Hindu Succession Act.
Scope and reform
SMA is a progressive and a secular approach which separates marriage from the religion whereas personal laws which are rooted in religious customs are often outdated and patriarchal. For Instance: Polygamy under Muslim law. Reforms are thus necessary to promote gender equality and uniformity across India.
CONCLUSION
Thus, It can be concluded that SMA and personal laws represent two distinct marriages for regulating marriage in India. Both laws are complementary to each other. SMA, on one hand, provides an inclusive, gender neutral and progressive approach whereas on the other hand, personal laws represent the cultural and diverse religious beliefs. Former reflects modernity and the latter honour the traditional values. The coexistence of both the laws reflects a cordial balance between diverse traditions and modernity. However, there is a need to address the challenges relating to both the laws to ensure equality, justice and gender neutrality.
