January 22, 2024 In Legal Support

Procedure for Marriage and Divorce under the Special Marriage Act, 1872

The Special Marriage Act of 1872 of Bangladesh allows inter-religion marriages as well as marriages between a national and a foreigner. However, there remain certain rules that one needs to follow to get married under this Act. To begin with, anyone of Muslim or Christian faith is exempt from marrying under this legislation. Persons who do not profess any religion or are of the religions of Hindus, Buddhists, Sikhs, or Jainas, however, can get married under the provisions of this Act. Secondly, neither of the parties can have any existing legal partner during their marriage under this Act. Of course, they must be of legal age, which is twenty-one for the male and fourteen for the female; however, if they are not of legal age, they can still get married under this provision provided they have the consent of their legal guardians. The most significant bar to marriage under this law is consanguinity: they cannot be related to each other at all to any extent, which would be rendered illegal under the laws subjected to them in case they profess any of the religions above.

Following all the aforementioned conditions, they would be eligible to be married under this Act. The procedure for marriage under this Act is quite easy. At first, either of the parties must send a written notice when they intend to get married to the Registrar, who has been appointed by the government and was assigned a territory that is deemed to be his district, provided that either of them resided in that district for at least fourteen days before such notice was sent. After the notice has been filed by the Registrar and the fourteen days have passed without any objections regarding the conditions mentioned above, the marriage can be solemnized.

Additionally, before such a marriage is conducted, the parties must bring three witnesses, who, along with the parties, must sign a form of declaration contained in the Act in front of the Registrar. On the other hand, when either of the parties is not of legal age, as mentioned earlier, their legal guardian also needs to sign such a declaration form. Apart from the cases of widows, in every instance, the Registrar must countersign as well. Following the signing of such declarations, the parties can solemnize their marriage in any form in the presence and hearing of the Registrar, along with the three witnesses, as long as the parties assert to themselves that they take each other as their lawful husband or wife. Following all of these steps, the Registrar is responsible for creating an entry for the certificate of marriage, which the parties and the three witnesses to the marriage must sign. Upon their signature, this certificate is to be sent to the Registrar General of Births, Deaths, and Marriages of the same district by the Registrar. Last but not least, a fee is payable to the Registrar as determined by the government, which the Registrar may also demand before commencing his duties under the law.

Procedure for divorce under the Special Marriage Act, 1872:

In accordance with Section 17 of the Special Marriage Act of 1872, a married couple married according to this Act may get divorced as per the provisions mentioned in the Divorce Act of 1869; thereby, such marriages would be null and void in accordance with the procedure provided within the 1869 Act. Not only this, but the provisions relating to the maintenance of the wife should also be ascertained as per the Divorce Act of 1869. Further, a marriage may also be dissolved under this Act if any of the conditions relating to religion, age, an existing marriage, or consanguinity between the parties as described earlier were not properly fulfilled prior to the marriage.

Section 3 of the Divorce Act of 1869 asserts that a husband is capable of filing for a divorce by submitting a petition before either the District Court or the High Court if his wife has been involved in any adultery after their marriage. The wife, in contrast, as per Section 10 of the Act, can file for divorce with the said court if her husband has changed his religion and married another woman while being married to her. She can also divorce him if he gets involved in adultery or marries another person while married to her. Not only this, he can also be divorced if he has been convicted of rape, sodomy, bestiality, or any of these sorts of crimes. Apart from this, the wife can also file for divorce due to adultery with cruelty, such as domestic violence or abuse, or for abandoning her for more than two years without any reasonable reason.

Upon such petition by either party, the courts, if satisfied enough, may order a decree dissolving the marriage; however, if not, the District Court could dismiss the case as well, and as such, the parties would be eligible to further file for divorce in the High Court.

When the Court is content with the petition and deems the grounds of the divorce to be valid, the decree of dissolution of the marriage would be pronounced and would further be sent to the High Court under Section 17 of the Act for an in-depth evaluation, which would not be determined until after six months from the date of the decree, and for such an order, the court may as well ask for further evidence if needed.

In addition, both courts have the jurisdiction to nullify a marriage under Section 19 if either of the parties is impotent or if any kind of consanguinity or affinity can be traced back between the parties. Also, if either of them was insane during the solemnization of their marriage, that marriage can also be nullified. Furthermore, if either party was already married at the time of their marriage under the Special Marriage Act of 1872 and their legally married partner was alive at the time, then such a marriage under the said Act can be nullified by either court.

Barrister Sabrina Zarin

Senior Partner, Equity LLP

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