The Special Marriage Act 1872 governs the marriages of persons who are not professing Buddhists, Christians, Hindus, Muslims, Parsis, Sikhs or Jains and also those persons who profess the Hindu, Buddhist, Sikh or Jain religion where such persons wish to marry out of their community into one of the remaining three communities. The minimum age under the Act is 18 for males and 14 for females and consent of the guardian or parents is required for the party who is under 21. No persons can marry who would have been unable to marry according to the laws of consanguinity or affinity under their personal law. No law of consanguinity operates however unless a relationship can be traced between the parties through some common ancestor who stands to each of them in a nearer relation than that of a great-great-grandfather or a great-great-grandmother or unless one of the parties is a lineal ancestor or brother or sister of some lineal ancestor of the other. Marriages are solemnized before Registrars appointed for this purpose. Notice of marriage must be given and in absence of any objections can be solemnized after 14 days. Objections must be filed in court and if the court is in vacation Registrar must wait 14 days after opening of court so that objections can be lodged. A certificate of the filing of suit must be lodged with Registrar if he is to take cognizance that such objections have been made. Where such objections are frivolous, the person making them may be fined. The marriage must be solemnized before three witnesses and parties must sign a declaration in their presence and that of Registrar, stating that they are not professing Buddhists, Christians, etc., as above, or that being Hindu, Buddhist, etc., they will be marrying some person outside that community. Where either party is under 21, this declaration must also be signed by the father or guardian except where the party under 21 is a widow. The declaration must be countersigned by Registrar. Marriages contracted under this Act are monogamous and dissolution of such marriages is governed by the Divorce Act 1869. Issue of such marriage will be subject to the laws of consanguinity that governed the parties. Rights of Hindus, Jains, Buddhists and Sikhs continue except rights to inherit any kind of religious position or status in their community. Succession to property is governed by the Succession Act 1925. A party’s right of adoption ceases on marriage but the party’s father may have the right to adopt where the party to such a marriage was an only son. Other marriages are contracted under the parties’ personal laws. Muslim marriages have been modified by the Family Laws Ordinance 1961 which provides that during the existence of one marriage no further marriage may be contracted by the husband without prior permission of an arbitral commission or any other person so appointed having authority to grant or withhold such permission. No such second marriage is void, however, but the husband may be liable to a fine, or a year’s imprisonment, or both. Muslim women can only marry Muslim men, but Muslim men can also contract marriages with Christian or Jewish women.
The Special Marriage Act 1872 offers an alternative to traditional religious ceremonies, but the fundamentals of consent and monogamy remain paramount. The Penal Code then acts as an enforcer, ensuring that violations of these principles, especially in the context of monogamy, are met with appropriate legal consequences.
There are not many reported cases on this Act and the legal principles from these few reported cases can be discerned as follows
2003 YLR 400 – LAHORE-HIGH-COURT-LAHORE:
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- The sanctity of marriage, especially under the Christian Marriages Act 1872, emphasises the mutual consent of the parties.
- A union without true consent, or influenced by external parties (in this case, the Muslim “Peer”), can be challenged and may be grounds for dissolution.
- The High Court upheld the Appellate Court’s decision to decree the dissolution based on the lack of genuine consent, despite the Trial Court’s initial dismissal.
- 2000 PLD 594 – LAHORE-HIGH-COURT-LAHORE (First Mention):
- Christian marriages are inherently monogamous.
- A second marriage without obtaining a divorce from the first spouse or if the first spouse hasn’t deceased is deemed void.
- The violation of the monogamous nature of Christian marriages is punishable under Section 494 of the Penal Code, with offenders facing imprisonment and hefty fines.
- The fine, if collected, is intended for the first spouse’s welfare.
- 2000 PLD 594 – LAHORE-HIGH-COURT-LAHORE (Second Mention):
- The essence of the Christian marriage, being monogamous, is re-emphasised.
- Divorce can only be obtained on grounds of adultery or unchastity.
- The consequences of entering into a second marriage without a valid divorce include conviction under Section 494 of the Penal Code, with the potential for imprisonment and fines.
- The legislative measures ensure protection and welfare for the aggrieved first spouse.
- 1967 PLD 652 – DHAKA-HIGH-COURT:
- A marriage contracted under the Special Marriage Act 1872 can be declared null and void if it’s proven that consent was obtained under fraud.
- The High Court, in certain circumstances, can directly entertain applications under Section 19 of the Divorce Act 1869 without referring the case to a lower court for adjudication.
These cases shed light on the paramount importance of genuine consent in marriages and the rigorous legal consequences faced by those who violate the sanctity of marital unions, especially in the context of Christian marriages.
In these citations, the interplay of various legislative pieces, primarily the Divorce Act of 1869, the Christian Marriages Act of 1872, and the Special Marriage Act of 1872 becomes evident. Here’s an analysis of their intersections and implications:
- Monogamy and Christian Marriages:
- Both the Divorce Act 1869 and the Christian Marriages Act 1872 emphasize the monogamous nature of Christian marriages. The very essence of a Christian marriage, as highlighted in the cases, is a lifelong union between one man and one woman to the exclusion of all others. This understanding is reinforced by the fact that polygamy is unlawful within this context.
- Grounds for Divorce:
- The Divorce Act 1869 primarily allows for divorce on the grounds of adultery or unchastity. This is a significant limitation as it underscores the sanctity and inviolability of the marriage bond in Christian traditions, as evident from the 2000 PLD 594 case. Thus, any second marriage without a valid divorce from the first spouse (or in the event of the spouse’s death) is void.
- Punitive Measures:
- The intersection of the Penal Code with the aforementioned acts is evident in the penal consequences of violating the tenets of Christian marriages. Entering into a second marriage without obtaining a valid divorce from the first spouse is not only void but is also punishable under Section 494 of the Penal Code, as illustrated in the 2000 PLD 594 case.
- Special Marriage Act of 1872:
- The Special Marriage Act of 1872 provides provisions for marriages between individuals who don’t want to marry under the religious rites or ceremonies of their respective religions. The 1967 PLD 652 case showcases a situation where a marriage was contracted with a Christian woman under the Special Marriage Act, but later, concerns were raised about the validity of this marriage. This signifies the act’s relevance in situations where religious constraints might be in conflict with personal choices.
- Role of Consent and Undue Influence:
- One of the cases, 2003 YLR 400, sheds light on the critical aspect of consent in marriages. The role of a Muslim “Peer” in solemnising a Christian marriage raised questions about the free will of the parties involved. This underscores the importance of ensuring that marriages, irrespective of the act under which they are solemnised, should be based on mutual consent, devoid of any undue influence.
