Comprehensive Commentary on the Special Marriage Act, 1954

1. Introduction & Background

• The Special Marriage Act, 1954 is a secular law of marriage in India.
• It allows marriage irrespective of religion, caste, or creed.
• It was enacted to provide a legal framework for:
  1. Inter-religious marriages (Hindu-Muslim, Hindu-Christian, etc.)
  2. Civil marriages without religious ceremonies.
  3. Regulation of divorce and succession for such marriages.

👉 The SMA is based on the principle of uniformity, equality, and secularism, reflecting Article 14 (Equality) and Article 21 (Right to Life & Personal Liberty) of the Constitution.

2. Objectives of the Act

• Provide a special form of marriage for people of India and Indian nationals abroad.
• Allow marriage beyond religion & caste.
• Provide legal rights & obligations of spouses.
• Regulate divorce, maintenance, legitimacy of children, and succession.

3. Key Provisions of the Act

(A) Conditions for Marriage (Section 4)

• Neither party should have a living spouse.
• Must be of sound mind and capable of giving valid consent.
• Male: minimum 21 years, Female: minimum 18 years.
• Parties should not fall within prohibited degrees of relationship (unless custom permits).

(B) Notice of Intended Marriage (Sections 5–14)

• Couple must give 30 days’ prior notice to the Marriage Officer of the district where at least one has resided for 30 days.
• Notice is publicly displayed at the Marriage Office.
• Objections may be raised within 30 days on limited grounds (like already married, underage, prohibited relationship).

⚖️ Case Law:

• Pranav Kumar Mishra v. Govt. of NCT of Delhi (2009) – Court held that public notice should not invade privacy of couples. Many states have modified the practice after this judgment.

(C) Solemnization of Marriage (Section 12)

• After expiry of objection period, the marriage can be solemnized in the presence of:
  • Marriage Officer
  • Three witnesses
• Marriage Certificate entered in the Marriage Register is conclusive proof.

(D) Consequences of Marriage under SMA

1. Personal Law Ceases → Once married under SMA, spouses are governed by SMA for divorce & succession.
2. Succession (Section 21) → Governed by Indian Succession Act, 1925, not by personal/religious laws.
   • Exception: If both are Hindus, Section 21A allows them to be governed by Hindu Succession Act.

(E) Legitimacy of Children (Section 26)

• Children born out of SMA marriage are considered legitimate, even if the marriage is declared void, provided parents believed in good faith.

(F) Divorce Provisions (Sections 27–37)

• Grounds for divorce include:
  • Adultery
  • Desertion (2+ years)
  • Imprisonment (7+ years)
  • Cruelty
  • Mental disorder
  • Venereal disease
  • Presumption of death (7 years not heard of)

⚖️ Case Law:

• Sarla Mudgal v. Union of India (1995) – Husband cannot convert to Islam just to marry again; marriage under SMA binds him to monogamy.
• Seema v. Ashwani Kumar (2006) – Supreme Court directed compulsory registration of marriages to prevent disputes.

4. Practical Importance

• Freedom of Choice: Safeguards the constitutional right to marry a partner of choice.
• Secular Framework: Helpful for inter-caste & inter-faith couples.
• Legal Security: Ensures rights of spouses and legitimacy of children.
• Succession Rules: Provides uniform law of succession (important in mixed-religion marriages).

5. Criticism & Challenges

• 30-Day Notice Rule – Often exposes couples to threats, violence, and family/community pressure. (Seen as a violation of Right to Privacy under KS Puttaswamy v. Union of India, 2017).
• Bureaucratic Hurdles – Marriage Officers may delay or harass couples.
• Not Popularly Used – Most couples still prefer personal laws for convenience and social acceptance.

CHART

Quick Highlights

• Notice (Sec. 5) = most controversial → public display exposes couples to risks.
• Succession (Sec. 21) = governed by Indian Succession Act, 1925, unless both are Hindus (then Hindu Succession Act applies).
• Divorce (Sec. 27 & 28) = covers fault grounds + mutual consent.
• Children (Sec. 26) = always legitimate, protecting rights of offspring.

Conclusion

• The Special Marriage Act, 1954 is a landmark secular legislation in India.
• It upholds the principles of individual liberty, secularism, and gender equality.
• However, the notice & objection provisions need reform to protect privacy and autonomy of couples.
• With rising inter-faith and inter-caste marriages, SMA plays a critical role in protecting freedom of choice in marriage.

🔹 Introduction

• Enacted in 2023 (as part of 3 new criminal laws: BNS 2023, BNSS 2023, BSA 2023).
• Replaces Indian Evidence Act, 1872.
• Objective:
  • Modernize evidence law,
  • Incorporate digital/electronic records,
  • Remove outdated provisions,
  • Strengthen fair trial & justice system.

🔹 Structure of BSA, 2023

• Total Sections: 170 (Earlier 167 in IEA).
• Divided into:
  1. Part I – Relevancy of Facts (Ss. 1–52)
  2. Part II – Proof (Ss. 53–118)
  3. Part III – Production & Effect of Evidence (Ss. 119–170)

🔹 Key Features & Changes

1. Recognition of Digital Evidence

• Section 61–90 (Digital Records):
  • Emails, SMS, WhatsApp chats, server logs, CCTV footage, voice recordings, GPS data admissible.
  • Electronic signature & blockchain records recognized.
  • Presumption of authenticity if from secure systems.

Example:
If A threatens B via WhatsApp, chat + phone location + server record = admissible digital evidence.

2. Secondary Evidence Expanded

• Earlier: only certified copies allowed.
• Now: photographs, audio, video, digital copies, mirror images, hard-disk data are admissible.

3. Presumption of Validity

• Electronic Gazette notifications, digital government records presumed genuine.
• Burden of disproving lies on person who denies authenticity.

4. Witness Examination (Ss. 119–136)

• Witnesses can be examined via video conferencing.
• Special protection for vulnerable witnesses (children, rape survivors).

Example:
Victim of cyber-harassment can testify via video link from a safe room instead of appearing in court.

5. Expert Opinion (Ss. 45–52, 113)

• Expanded scope → includes DNA, fingerprint, handwriting, electronic forensic experts.
• Judges may call cyber experts for technical verification.

6. Burden of Proof (Ss. 101–114)

• Principle unchanged: “He who asserts must prove.”
• Special provisions for:
  • Presumption against dowry death (similar to Sec. 113B, IEA).
  • Presumption against sexual harassment in workplace.

7. Confession & Admissions

• Confession before police officer still inadmissible (unless before magistrate).
• However, electronic recording of confession permissible.

8. Privileged Communication (Ss. 122–129)

• Lawyer–client, doctor–patient, journalist–source protection retained.
• Cannot be compelled to disclose.

🔹 Comparison with Indian Evidence Act, 1872

🔹 Practical Importance for Lawyers

1. Cybercrime & digital fraud cases → stronger evidentiary value.
2. Bail arguments → electronic call data, CCTV, GPS crucial.
3. Civil disputes → digital contracts, blockchain property records valid.
4. Corporate law → Emails & digital agreements now primary evidence.

🔹 Case Study Example

• Scenario:
  X is accused of fraud in an online transaction.
  • Evidence: WhatsApp chats, payment gateway logs, bank e-records, CCTV of ATM withdrawal.
• Under IEA (1872): each had to be certified + cumbersome.
• Under BSA (2023): all digital records directly admissible if server logs are intact.

✅ X can be convicted/acquitted faster, reducing delay in trials.

🔹 Summary

• BSA, 2023 modernizes Indian evidence law.
• Focus on digital proof, speedy trial, protection of witnesses.
• Essential for criminal, civil, family, corporate & cyber lawyers.
• Future-ready law aligning with global digital justice systems.

Res Judicata under CPC, 1908

🔹 Meaning

• Res Judicata = “a matter already judged.”
• It prevents re-litigation of issues already decided by a competent court between the same parties.
• Objective: To ensure finality in litigation and avoid multiple suits on the same matter.

🔹 Statutory Basis

• Section 11, CPC 1908 “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties… and has been heard and finally decided by such Court.”

🔹 Essentials of Res Judicata

1. Matter directly and substantially in issue in both suits.
2. Same parties or parties litigating under the same title.
3. Former suit decided by a competent court.
4. Matter heard and finally decided.
5. The issue must have been decided on merits.
6. Applies to suits, issues, execution proceedings, writs, and appeals.

🔹 Important Doctrines Related

1. Constructive Res Judicata (Explanation IV, Sec. 11):
   • If a party could have raised an issue in earlier proceedings but didn’t, he cannot raise it in later proceedings.
   • Example: If “A” could challenge the validity of a contract in the first suit but didn’t, he can’t bring a fresh suit later.
2. Res Sub Judice (Sec. 10):
   • When a matter is already pending in another competent court, the subsequent suit is stayed.

🔹 Leading Case Laws

• Satyadhyan Ghosal v. Deorajin Debi (AIR 1960 SC 941): Finality of litigation is essential for justice.
• Daryao v. State of U.P. (AIR 1961 SC 1457): Doctrine of Res Judicata applies even to writ petitions under Article 32 & 226.
• Sheoparsan Singh v. Ramanandan Prasad (AIR 1916 PC 78): Based on public policy, not merely private rights.
• Workmen v. Board of Trustees of Cochin Port (1978): Constructive res judicata explained.

🔹 Example (Simple)

1. Case 1:
   • A sues B for ownership of land. Court holds that land belongs to B.
   • Later, A sues B again on the same land claiming ownership.
   • Barred by Res Judicata.
2. Case 2 (Constructive Res Judicata):
   • A sues B for recovery of loan but doesn’t claim interest (though he could).
   • Later, A sues B again for interest.
   • Barred under Constructive Res Judicata.

🔹 Exceptions (Where Res Judicata Does NOT Apply)

1. Pure questions of law (jurisdiction, statutory validity).
2. Fraud / collusion in earlier judgment.
3. Habeas Corpus petitions (personal liberty).
4. Changed circumstances giving rise to fresh cause of action.

🔹 Practical Significance

• Prevents multiplicity of suits.
• Ensures judicial discipline.
• Saves time and costs of litigation.
• Protects finality and certainty in legal rights.

✅ Summary:
Res Judicata is a rule of public policy → once a matter is decided, it cannot be re-opened.
It applies not only to suits but also writs, execution, appeals, and arbitration.

Foundational Concepts

1. Jurisdiction of Civil Courts (Sec. 9–21)
2. Res Sub Judice (Sec. 10)
3. Res Judicata (Sec. 11)
4. Place of Suing (Sec. 15–20)

Institution & Proceedings

5. Institution of Suit (Order 4 & 7 – Plaint)
6. Written Statement & Set-off (Order 8)
7. Framing of Issues (Order 14)
8. Summons & Service (Order 5, 16)
9. Discovery, Inspection & Interrogatories (Order 11)

Interim Measures

10. Temporary Injunctions (Order 39)
11. Appointment of Receiver (Order 40)
12. Arrest & Attachment before Judgment (Order 38)

Judgment & Decree

13. Judgment & Decree (Order 20)
14. Ex-Parte Decree & Remedies (Order 9 Rule 13)
15. Restitution (Sec. 144)

Execution & Remedies

16. Execution of Decrees (Order 21)
17. Appeals (Sec. 96–112, Orders 41–45)
18. Review (Sec. 114, Order 47)
19. Revision (Sec. 115)

Special Suits

20. Representative Suits (Order 1 Rule 8)
21. Interpleader Suit (Sec. 88, Order 35)
22. Suits by Indigent Persons (Pauper Suits) (Order 33)

ADR & Modern Trends

23. Alternative Dispute Resolution (Sec. 89 CPC)
24. Case Management & Speedy Trial Provisions (Amendments)

Important Applications under CPC, 1908

1. Institution & Appearance

• Order 7 Rule 1 – Plaint (filing of a suit).
• Order 8 Rule 1 – Written Statement by defendant.
• Order 9 Rule 7 – Application to set aside ex-parte proceedings.
• Order 9 Rule 9 – Application to restore suit dismissed for default.

2. Interim Relief / Stay

• Order 39 Rule 1 & 2 – Temporary Injunction (Stay).
• Order 39 Rule 4 – Application to vacate injunction.
• Order 40 Rule 1 – Appointment of Receiver.
• Order 38 Rule 5 – Attachment before Judgment.

3. Ex-Parte & Restoration

• Order 9 Rule 13 – Application to set aside ex-parte decree.
• Order 22 Rule 9 – Application to set aside abatement (if party dies and substitution not made in time).

4. Evidence & Procedure

• Order 11 – Application for discovery & interrogatories.
• Order 12 Rule 6 – Application for judgment on admission.
• Order 13 Rule 1 – Production of documents.
• Order 18 Rule 17 – Recall & cross-examination of witness.

5. Amendment & Correction

• Order 6 Rule 17 – Application for amendment of pleadings.
• Section 152 CPC – Application for correction of clerical/arithmetical mistakes.
• Section 151 CPC – Application under inherent powers of the Court.

6. Execution Proceedings

• Order 21 Rule 97 – Application for removal of obstruction in execution.
• Order 21 Rule 35 – Application for delivery of possession.
• Order 21 Rule 90 – Application to set aside sale in execution.

7. Special Applications

• Section 24 CPC – Application for transfer of suit.
• Section 10 CPC – Application for stay of suit (Res Sub Judice).
• Section 11 CPC – Application regarding Res Judicata objection.
• Section 144 CPC – Application for restitution.

Quick Summary (Categories):

1. Institution & appearance – Plaint, WS, restoration.
2. Interim relief – Injunctions, receivership, attachment.
3. Ex-parte & restoration – Setting aside decrees/abatement.
4. Evidence & procedure – Discovery, judgment on admission, witness recall.
5. Amendment/correction – Amendment of pleadings, clerical mistakes, inherent powers.
6. Execution – Obstruction removal, possession, setting aside sale.
7. Special powers – Transfer, stay, res judicata, restitution.

📑 Detailed Table: Applications under CPC, 1908

Quick Note:

• Trial Stage Applications → Injunctions, Receivers, Evidence, Amendments.
• Post-Decree Applications → Restitution, Execution-related, Set aside ex-parte.
• Inherent Powers (S.151) → Catch-all where CPC is silent.

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• Ex-Parte means when a case is decided in the absence of one party (usually the defendant) because that party did not appear in court, even after receiving proper summons/notice.
• For example, if the defendant fails to appear despite being served notice, the court can proceed ex-parte and pass a judgment in favor of the plaintiff.

Remedies Against Ex-Parte Decree (Civil Procedure Code, 1908):

1. Application under Order 9 Rule 13 CPC
   • The defendant can apply to set aside the ex-parte decree by showing:
     • He was not properly served with summons, or
     • He had a sufficient cause for non-appearance (illness, accident, unavoidable circumstances, etc.).
2. Appeal under Section 96(2) CPC
   • The defendant can file an appeal against the ex-parte decree before a higher court.
   • Unlike O.9 R.13, an appeal can also challenge the merits of the case.
3. Review (Order 47 Rule 1 CPC)
   • In limited circumstances, a review petition can be filed if there is an error apparent on the face of record.
4. Revision (Section 115 CPC)
   • In exceptional cases, the High Court may be approached under its revision jurisdiction.

Key Point:

• Remedy under Order 9 Rule 13 CPC is the most common and direct way to challenge an ex-parte decree.
• The defendant must show sufficient cause for absence, otherwise, the ex-parte decree stands valid.

Tip for Practice:

• Many of these applications are standard formats (Draft → Affidavit → Grounds → Prayer).
• Lawyers usually keep precedent templates ready (Bail, Discharge, 91/311, Quash).
• Courts expect concise grounds + legal citations (especially in bail/quash matters).

IPC 1860 vs BNS 2023

Key Highlights of Changes

• Sedition removed → replaced by sovereignty clause.
• 377 omitted → not included in BNS.
• Organised Crime, Terrorism, Mob Lynching → newly inserted in BNS.
• Section numbers reduced → multiple IPC provisions merged into single BNS clauses.

Order 39 Rule 1 CPC – Temporary Injunction (Stay Orders)
Objective
To prevent a party from doing any act which may cause irreparable injury, waste, damage, alienation of property, or otherwise frustrate the rights of the opposite party till the disposal of the suit.

When Court May Grant Temporary Injunction (Order 39 Rule 1 CPC):
The Court may grant injunction where:

Property in Dispute – When the property in dispute is in danger of being wasted, damaged, or alienated by any party.

Threat of Dispossession – When defendant threatens to dispossess the plaintiff or cause injury to the property.

Breach of Contract / Infringement of Rights – When the defendant threatens to breach contract or violate the plaintiff’s rights.

Other Circumstances – Where justice demands interim protection.

Order 39 Rule 2 CPC – Injunction to Restrain Breach
Court may restrain:

Breach of contract.

Violation of rights in property.

Principles for Grant of Injunction (Established by Courts):
Prima Facie Case – Plaintiff must show that there is a strong case in his favour.

Irreparable Loss – Injury must be such that monetary compensation is not adequate.

Balance of Convenience – Greater inconvenience will be caused to the plaintiff if injunction is not granted.

(Case Reference: Dalpat Kumar v. Prahlad Singh (1992) – SC laid down the above three essential conditions.)

Nature of Injunctions Under Order 39 CPC:
Temporary / Interim Injunctions – Operate until further orders or disposal of suit.

Ex-Parte Injunctions (Rule 3) – Court may grant without hearing other side, but must record reasons.

Mandatory Injunctions – Directing a party to do a positive act.

Draft Format of Stay Application (Order 39 Rule 1 & 2 CPC)
IN THE COURT OF _

Civil Suit No. __ of 20
[Plaintiff] Vs. [Defendant]

Application Under Order 39 Rules 1 & 2 CPC
For Grant of Temporary Injunction / Stay

Most Respectfully Submitted:

That the applicant/plaintiff has filed the accompanying suit for declaration and permanent injunction, pending before this Hon’ble Court.

That the plaintiff has a prima facie case in his favour and balance of convenience also lies in favour of the plaintiff.

That if the defendant is not restrained from [selling / transferring / demolishing / interfering in possession etc.], the plaintiff shall suffer irreparable loss and injury which cannot be compensated in terms of money.

That the act of the defendant is illegal, arbitrary and without authority of law.

That unless restrained by way of injunction, the object of the suit will be defeated.

Prayer
In view of the facts stated above, it is therefore most respectfully prayed that this Hon’ble Court may kindly be pleased to:

a) Pass an order of temporary injunction restraining the defendant from [specific act – e.g., selling/alienating/dispossessing] during the pendency of the suit;

b) Pass any other order in the interest of justice.

Applicant/Plaintiff
Through Counsel
[Name & Signature]

Place:
Date:

Key Case Laws on Order 39 CPC

Dalpat Kumar v. Prahlad Singh (1992) – Three principles: prima facie case, irreparable loss, balance of convenience.

Gujarat Bottling Co. Ltd. v. Coca Cola Co. (1995) – Injunction discretionary & equitable remedy.

Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai (2006) – Court must prevent injustice by granting injunction.