Nikah After Marriage Under Special Marriage Act: Divorce Petition Maintainable Before Family Court Under Special Marriage Act: Delhi HC [Read Judgment]

When a person solemnizes the marriage under this law then the marriage is not governed by personal laws but by Special Marriage Act, the Court observed.

The Delhi High Court has held that Family Court can entertain and try a petition for dissolution of marriage under the Special Marriage Act, if the parties married under the Special Marriage Act, 1954, even though they performed Nikah ceremony subsequently.

In this case, the Husband had challenged the jurisdiction of Family Court where the wife had filed Divorce Petition under Special Marriage Act on the ground that the parties subsequently performed Nikah ceremony and, therefore, the parties are governed by the Muslim Personal Laws.

Justice JR Midha, referring to various provisions of the Special Marriage Act and the judgments of the Apex Court, summarized the principles as follows:

• The Special Marriage Act, 1954 provides a special form of marriage, its registration and divorce. A marriage between any two persons belonging to any religion or creed may be solemnized under this Act. Being a secular Act, it plays a key role in liberating individuals from the traditional requirements of marriage. It provides for a civil law of marriage that would enable individuals to get married outside of their respective community mandates.


• The Special Marriage Act 1954 is not concerned with the religion of the parties to an intended marriage. Under the Act, any person, whichever religion he or she professes, may marry either within his or her community or in a community other than his or her own, provided that the intended marriage, in either case, is in accord with the conditions for marriage laid down in the Act.


• No religious rituals or ceremonies are required from the marriage to be completed under the Special marriage and witnesses which is deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized.


• The Special Marriage Act provides an option of turning an existing religious marriage solemnized in any other form under any other law into a civil marriage by registering it under its provisions, provided that it is in accord with the condition for marriage laid down under the Act. This provision of subsequent registration enables parties to avail secular and uniform remedies despite the solemnization of marriage through the performance of religious ceremonies under one’s own personal laws. This aids them in overcoming the constraints or discrimination faced in their own personal laws.


• The unique feature of the Special Marriage Act, 1954 is compulsory registration of marriage under the Act which protects the interest of the parties and the children born out of wedlock.


• The Registration Certificate of the marriage between the parties is conclusive evidence of the fact that their marriage was solemnised under the Special Marriage Act. Therefore, evidence with regard to the fact that their marriage was actually solemnised under any other Act at any other time, cannot be allowed. There can be no issue that the Special Marriage Act would apply.


• When a person solemnizes a marriage under this law then the marriage is not governed by personal laws but by Special Marriage Act. The rights and duties arising out of marriage are governed by the Special Marriage Act and the succession is governed by Indian Succession Act, 1925, and not by the personal laws.


• Having married under the Special Marriage Act, if a person contracts a second marriage, he shall be deemed to have committed an offence under Section 494 or 495 IPC.

The Court observed that 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 husband cannot be permitted to challenge the jurisdiction of the Family Court to entertain and try the petition for divorce. “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”.

The Court then dismissed the plea challenging the jurisdiction of Family court, filed by the Husband imposing a cost of Rupees Fifty Thousand.