The Special Marriage Act, 1954
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ACT NO. 43 OF 1954 1* (9th October, 1954)
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An Act to provide
a special form of marriage in certain cases, for the registration of such
and certain other marriages and for divorce.
BE it enacted by Parliament in the Fifth Year of the Republic of India as
follows –
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1-
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(1)
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Short title,
extent and commencement. This Act may be called the Special Marriage Act,
1954.
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(2)
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It extends to the
whole of India except the State of Jammu and Kashmir, and applies also to
citizens of India domiciled in the territories to which this Act extends
who are 2[in the State of Jammu and Kashmir].
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(3)
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It shall come into
force on such date 3, as the Central Government may, by notification in the
Official Gazette, appoint.
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2-
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In this Act,
unless the context otherwise requires –
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(b)
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"degrees of
prohibited relationship"-a man and any of the persons mentioned in
Part I of the First Schedule and a woman and any of the persons mentioned
in Part II of the said Schedule are within the degrees of prohibited
relationship. Explanation I.-Relationship includes –
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(a)
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Relationship by
half or uterine blood as well as by full blood;
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(b)
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Illegitimate blood
relationship as well as legitimate;
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(1)
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Brought into force
in Dadra and Nagar Haveli by Reg. 6 of 1963, s. 2 and Sch. I (w.e.f.
1-7-1965) and in Pondichery by Reg. 7 of 1963, s. 3 and Sch. I (w.e.f.
1-10-1963).
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(2)
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Subs. by Act 33 of
1969, s. 29, for "outside the said territories".
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(3)
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1st January, 1955,
vide Notification No. S. R. O. 3606, dated 17-12-1954, Gazette of India,
Extraordinary, 1954, Pt. II, Sec. 3, p. 2463.
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(4)
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Cl. (a) omitted by
Act 33 of 1969, s. 29.
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(c)
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relationship by
adoption as well as by blood; and all terms of relationship in this Act
shall be construed accordingly. Explanation II.-"Full blood" and
"half blood"-two persons are said to be related to each other by
full blood when they are descended from a common ancestor by the same wife
and by half blood when they are descended from a common ancestor but by
different wives. Explanation III.-"Uterine blood"-two persons are
said to be related to each other by uterine blood when they are descended
from a common ancestress but by different husbands. Explanation IV.-In
Explanations II and III, "ancestor" includes the father and
"ancestress" the mother.
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(d)
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"district",
in relation to a Marriage Officer, means the area for which he is appointed
as such under sub-section (1) or sub-section (2) of section 3 ;
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(e)
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"district
court" means, in any area for which there is a city civil court, that
court, and in any other area, the principal civil court of original
jurisdiction, and includes any other civil court which may be specified by
the State Government by notification in the Official Gazette as having
jurisdiction in respect of the matters dealt with in this Act;
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(f)
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"Prescribed"
means prescribed by rules made under this Act:
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(g)
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"State
Government", in relation to a Union territory, means the administrator
thereof.
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3-
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(1)
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For the purposes
of this Act, the State Government may, by notification in the Official
Gazette, appoint one or more Marriage Officers for the whole or any part of
the State.
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(2)
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For the purposes
of this Act, in its application to citizens of India domiciled in the
territories to which this Act extends who are in the State of Jammu and
Kashmir, the Central Government may, by notification in the Official
Gazette, specify such officers of the Central Government as it may think
fit to be the Marriage Officers for the State or any part thereof.
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(1)
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Cl. (c) omitted by
Act 33 of 1969, s. 29.
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(2)
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Subs. by Act 68 of
1976, s. 20, for the former cl. (w.e.f. 27-5-1976).
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(3)
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Subs. by the
Adaptation of Laws (No. 3) Order, for the original cl.
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(4)
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Subs. by Act 33 of
1969, s. 29, for sub-section (2).
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SOLEMNIZATION OF SPECIAL MARRIAGES
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4-
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Conditions
relating to solemnization of special marriages –
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Notwithstanding
anything contained in any other law for the time being in force relating to
the solemnization of marriages, a marriage between any two persons may be
solemnized under this Act, if at the time of the marriage the following
conditions are fulfilled, namely –
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(a)
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neither party has
a spouse living;
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(b)
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neither party –
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(i)
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is incapable of
giving a valid consent to it in consequence of unsoundness of mind; or
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(ii)
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though capable of
giving a valid consent, has been suffering from mental disorder of such a
kind or to such an extent as to be unfit for marriage and the procreation
of children; or
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(iii)
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has been subject
to recurrent attacks of insanity 2***;
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(c)
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the male has
completed the age of twenty-one years and the female the age of eighteen
years;
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(d)
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the parties are
not within the degrees of prohibited relationship – Provided that where a
custom governing at least one of the parties permits of a marriage between
them, such marriage may be solemnized, notwithstanding that they are within
the degrees of prohibited relationship; and
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(e)
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where the marriage
is solemnized in the State of Jammu and Kashmir, both parties are citizens
of India domiciled In the territories to which this Act extends.
Explanation.-In this section, "custom", in relation to a person
belonging to any tribe, community, group or family, means any rule which
the State Government may, by notification in the Official Gazette, specify
in this behalf as applicable to members of that tribe, community, group or
family:
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(1)
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Subs. by Act 68 of
1976, s. 21, for the former cl. (w.e.f. 27-5- 1976).
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(2)
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Omitted by Act 39
of 1999, s. 3 (w.e.f. 29.12.1999).
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(3)
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Subs. by Act 32 of
1963, s. 2, for cl. (d).
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(4)
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Subs. by Act 33 of
1969, s. 29, for cl. (e).
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(5)
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Ins. by Act 32 of
1963, s. 2.1
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Provided that no
such notification shall be issued in relation to the members of any tribe,
community, group or family, unless the State Government is satisfied –
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(i)
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that such rule has
been continuously and uniformly observed for a long time among those
members;
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(ii)
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that such rule is
certain and not unreasonable or opposed to public policy; and
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(iii)
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that such rule, if
applicable only to a family, has not been discontinued by the family.
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5-
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When a marriage is
intended to be solemnized under this Act, the parties to the marriage shall
give notice thereof in writing in the form specified in the Second Schedule
to the Marriage Officer of the district in which at least one of the
parties to the marriage has resided for a period of not less than thirty
days immediately preceding the date on which such notice is given.
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6-
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Marriage Notice
Book and Publication.
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(1)
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The Marriage
Officer shall keep all notices given under section 5 with the records of
his office and shall also forthwith enter a true copy of every such notice
in a book prescribed for that purpose, to be called the Marriage Notice
Book, and such book shall be open for inspection at all reasonable times,
without fee, by any person desirous of inspecting the same.
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(2)
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The Marriage
Officer shall cause every such notice to be published by affixing a copy
thereof to some conspicuous place in his office.
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(3)
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Where either of
the parties to an intended marriage is not permanently residing within the
local limits of the district of the Marriage Officer to whom the notice has
been given under section 5, the Marriage Officer shall also cause a copy of
such notice to be transmitted to the Marriage Officer of the district
within whose limits such party is permanently residing, and that Marriage
Officer shall thereupon cause a copy thereof to be affixed to some conspicuous
place in his office.
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(1)
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Any person may,
before the expiration of thirty days from the date on which any such notice
has been published under sub-section (2) of section 6, object to the
marriage on the ground that it would contravene one or more of the
conditions specified in section 4.
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(2)
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After the
expiration of thirty days from the date on which notice of an intended
marriage has been published under sub-section (2) of section 6, the
marriage may be solemnized, unless it has been previously objected to under
sub-section (1).
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(3)
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The nature of the
objection shall be recorded in writing by the Marriage Officer in the
Marriage Notice Book, be read over and explained, if necessary, to the
person making the objection and shall be signed by him or on his behalf.
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Procedure on receipt
of objection
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(1)
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If an objection is
made under section 7 to an intended marriage, the Marriage Officer shall
not solemnize the marriage until he has inquired into the matter of the
objection and is satisfied that it ought not to prevent the solemnization
of the marriage or the objection is withdrawn by the person making it; but
the Marriage Officer shall not take more than thirty days from the date of
the objection for the purpose of inquiring into the matter of the objection
and arriving at a decision.
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(2)
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If the Marriage
Officer upholds the objection and refuses to solemnize the marriage, either
party to the intended marriage may, within a period of thirty days from the
date of such refusal, prefer an appeal to the district court within the
local limits of whose jurisdiction the Marriage Officer has his office, and
the decision of the district court on such appeal shall be final, and the
Marriage Officer shall act in conformity with the decision of the court.
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9-
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Powers of Marriage
Officers in respect of inquiries.
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(1)
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For the purpose of
any inquiry under section 8, the Marriage Officer shall have all the powers
vested in a civil court under the Code of Civil Procedure, 1908 (5 of
1908), when trying a suit in respect of the following matters, namely –
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(a)
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summoning and
enforcing the attendance of witnesses and examining them on oath;
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(b)
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discovery and
inspection;
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(c)
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compelling the production
of documents;
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(d)
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reception of
evidence on affidavits; and
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(e)
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issuing
commissions for the examination of witnesses; and any proceeding before the
Marriage Officer shall be deemed to be a judicial proceeding within the
meaning of section 193 of the Indian Penal Code (45 of 1860).
Explanation.-For the purpose of enforcing the attendance of any person to
give evidence, the local limits of the jurisdiction of the Marriage Officer
shall be the local limits of his district.
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(2)
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If it appears to
the Marriage Officer that the objection made to an intended marriage is not
reasonable and has not been made in good faith he may impose on the person
objecting costs by way of compensation not exceeding one thousand rupees
and award the whole or any part thereof to the parties to the intended
marriage, and any order for costs so made may be executed in the same
manner as a decree passed by the district court within the local limits of
whose jurisdiction the Marriage Officer has his office.
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10-
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Procedure on
receipt of objection by Marriage Officer abroad.
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Where an objection
is made under section 7 to a Marriage Officer 1*[in the State of Jammu and
Kashmir in respect of an intended marriage in the State], and the Marriage
Officer, after making such inquiry into the matter as he thinks fit,
entertains a doubt in respect thereof, he shall not solemnize the marriage
but shall transmit the record with such statement respecting the matter as
he thinks fit to the Central Government, and the Central Government, after
making such inquiry into the matter and after obtaining such advice as it
thinks fit, shall give its decision thereon in writing to the Marriage
Officer who shall act in conformity with the decision of the Central
Government.
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Declaration by
parties and witnesses
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Before the
marriage is solemnized the parties and three witnesses shall, in the
presence of the Marriage Officer, sign a declaration in the form specified
in the Third Schedule to this Act, and the declaration shall be
countersigned by the Marriage Officer.
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Place and form of
solemnization.
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(1)
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The marriage may
be solemnized at the office of the Marriage Officer, or at such other place
within a reasonable distance therefrom as the parties may desire, and upon
such conditions and the payment of such additional fees as may be
prescribed.
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(2)
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The marriage may
be solemnized in any form which the parties may choose to adopt: Provided
that it shall not be complete and binding on the parties, unless each party
says to the other in the presence of the Marriage Officer and the three
witnesses and in any language understood by the parties.-" I, (A),
take thee (B), to be my lawful wife (or husband)."
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(1)
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When the marriage
has been solemnized, the Marriage Officer shall enter a certificate thereof
in the form specified in the Fourth Schedule in a book to be kept by him
for that purpose and to be called the Marriage Certificate Book and such
certificate shall be signed by the parties to the marriage and the three
witnesses.
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(2)
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On a certificate
being entered in the Marriage Certificate Book by the Marriage Officer, the
Certificate shall be deemed to be conclusive evidence of the fact that a
marriage under this Act has been solemnized and that all formalities
respecting the signatures of witnesses have been complied with.
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(1)
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Subs. by Act 33 of
1969, s. 29, for certain words.
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New notice when
marriage not solemnized within three months
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14-
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Whenever a
marriage is not solemnized within three calendar months from the date on
which notice thereof has been given to the Marriage Officer as required by
section 5, or where an appeal has been filed under sub-section (2) of
section 8, within three months from the date of the decision of the
district court on such appeal or, where the record of a case has been
transmitted to the Central Government under section 10, within three months
from the date of decision of the Central Government, the notice and all
other proceedings arising therefrom shall be deemed to have lapsed, and no
Marriage Officer shall solemnize the marriage until a new notice has been
given in the manner laid down in this Act.
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REGISTRATION OF MARRIAGES CELEBRATED IN OTHER FORMS
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15-
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Registration of
marriages celebrated in other forms.
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Any marriage
celebrated, whether before or after the commencement of this Act, other
than a marriage solemnized under the Special Marriage Act, 1872, (3 of
1872) or under this Act, may be registered under this Chapter by a Marriage
Officer in the territories to which this Act extends if the following
conditions are fulfilled, namely –
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(a)
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a ceremony of
marriage has been performed between the parties and they have been living together
as husband and wife ever since;
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(b)
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neither party has
at the time of registration more than one spouse living;
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(c)
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neither party is
an idiot or a lunatic at the time of registration;
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(d)
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the parties have
completed the age of twenty-one years at the time of registration;
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(e)
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the parties are
not within the degrees of prohibited relationship: Provided that in the
case of a marriage celebrated before the commencement of this Act, this
condition shall be subject to any law, custom or usage having the force of
law governing each of them which permits of a marriage between the two; and
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(f)
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the parties have
been residing within the district of the Marriage Officer for a period of
not less than thirty days immediately preceding the date on which the
application is made to him for registration of the marriage.
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Procedure for registration
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Upon receipt of an
application signed by both the parties to the marriage for the registration
of their marriage under this Chapter, the Marriage Officer shall give
public notice thereof in such manner as may be prescribed and after
allowing a period of thirty days for objections and after hearing any
objection received within that period, shall, if satisfied that all the conditions
mentioned in section 15 are fulfilled, enter a certificate of the marriage
in the Marriage Certificate Book in the form specified in the Fifth
Schedule, and such certificate shall be signed by the parties to the
marriage and by three witnesses.
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Appeals from
orders under section 16.
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Any person
aggrieved by any order of a Marriage Officer refusing to register a
marriage under this Chapter may, within thirty days from the date of the
order, appeal against that order to the district court within the local
limits of whose jurisdiction the Marriage Officer has his office, and the
decision of the district court on such appeal shall be final, and the
Marriage Officer to whom the application was made shall act in conformity
with such decision.
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(1)
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Rep. by this Act,
s. 51.
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18-
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Effect of
registration of marriage under this Chapter.
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Subject to the
provisions contained in sub-section (2) of section 24, where a certificate
of marriage has been finally entered in the Marriage Certificate Book under
this Chapter, the marriage shall, as from the date of such entry, be deemed
to be a marriage solemnized under this Act, and all children born after the
date of the ceremony of marriage (whose names shall also be entered in the
Marriage Certificate Book) shall in all respects be deemed to be and always
to have been the legitimate children of their parents:
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Provided that
nothing contained in this section shall be construed as conferring upon any
such children any rights in or to the property of any person other than
their parents in any case where, but for the passing of this Act, such
children would have been incapable of possessing or acquiring any such
rights by reason of their not being the legitimate children of their
parents.
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CONSEQUENCES OF MARRIAGE UNDER THIS ACT
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19-
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Effect of marriage
on member of undivided family.
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The marriage
solemnized under this Act of any member of an undivided family who
professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to
effect his severance from such family.
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Rights and
disabilities not affected by Act.
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Subject to the
provisions of section 19, any person whose marriage is solemnized under
this Act, shall have the same rights and shall be subject to the same
disabilities in regard to the right of succession to any property as a
person to whom the Caste Disabilities Removal Act, 1850 (21 of 1850)
applies.
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Succession to
property of parties married under Act.
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Notwithstanding
any restrictions contained in the Indian Succession Act, 1925 (39 of 1925),
with respect to its application to members of certain communities,
succession to the property of any person whose marriage is solemnized under
this Act and to the property of the issue of such marriage shall be
regulated by the provisions of the said Act and for the purposes of this
section that Act shall have effect as if Chapter III of Part V (Special
Rules for Parsi Intestates) had been omitted therefrom.
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21A.
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Special provision
in certain cases.
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RESTITUTION OF CONJUGAL RIGHTS AND JUDICIAL SEPARATION
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Restitution of
conjugal rights.
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When either the
husband or the wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply by petition to the
district court for restitution of conjugal rights, and the court, on being
satisfied of the truth of the statements made in such petition, and that
there is no legal ground why the application should not be granted, may
decree restitution of conjugal rights accordingly.
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Explanation.-Where
a question arises whether there has been reasonable excuse for withdrawal
from the society, the burden of providing reasonable excuse shall be on the
person who has withdrawn from the society.
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(1)
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A petition for
judicial separation may be presented to the district court either by the husband
or the wife –
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(a)
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on any of the
grounds specified 3*[in sub-section (1) [and sub-section (1A)] of section
27] on which a petition for divorce might have been presented; or
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(b)
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on the ground of
failure to comply with a decree for restitution of conjugal rights; and the
court, on being satisfied of the truth of the statements made in such
petition, and that there is no legal ground why the application should not
be granted, may decree judicial separation accordingly.
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(1)
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Ins. by Act 68 of
1976, s. 22 (w.e.f. 27-5-1976).
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(2)
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Added by s. 23,
ibid.
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(3)
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Subs. by Act 29 of
1970, s. 2, for certain words.
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(4)
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Ins. by Act 68 of
1976, s. 24.
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(2)
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Where the court
grants a decree for judicial separation, it shall be no longer obligatory
for the petitioner to cohabit with the respondent, but the court may, on
the application by petition of either party and on being satisfied of the
truth of the statements made in such petition, rescind the decree if it
considers it just and reasonable to do so.
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NULLITY OF MARRIAGE AND DIVORCE
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(1)
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Any marriage
solemnized under this Act shall be null and void 1*[and may, on a petition
presented by either party thereto against the other party, be so declared]
by a decree of nullity if –
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(i)
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any of the
conditions specified in clauses (a), (b), (c) and (d) of section 4 has not
been fulfilled; or
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(ii)
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the respondent was
impotent at the time of the marriage and at the time of the institution of
the suit.
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(2)
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Nothing contained
in this section shall apply to any marriage deemed to be solemnized under
this Act within the meaning of section 18, but the registration of any such
marriage under Chapter III may be declared to be of no effect if the
registration was in contravention of any of the conditions specified in
clauses (a) to (e) of section 15:
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Provided that no
such declaration shall be made in any case where an appeal has been
preferred under section 17 and the decision of the district court has
become final.
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25-
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Any marriage
solemnized under this Act shall be voidable and may be annulled by a decree
of nullity if –
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(i)
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the marriage has
not been consummated owing to the wilful refusal of the respondent to
consummate the marriage; or
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(ii)
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the respondent was
at the time of the marriage pregnant by some person other than the
petitioner; or
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(iii)
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the consent of
either party to the marriage was obtained by coercion or fraud, as defined
in the Indian Contract Act, 1872 (9 of 1872) Provided that, in the case
specified in clause (ii), the court shall not grant a decree unless it is
satisfied –
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(a)
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that the
petitioner was at the time of the marriage ignorant of the facts alleged;
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(1)
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Subs. by Act 68 of
1976, s. 25, for certain words.
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(b)
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that proceedings
were instituted within a year from the date of the marriage; and
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(c)
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that marital intercourse
with the consent of the petitioner has not taken place since the discovery
by the petitioner of the existence of the grounds for a decree: Provided
further that in the case specified in clause (iii), the court shall not
grant a decree if –
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(a)
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proceedings have
not been instituted within one year after the coercion had ceased or, as
the case may be, the fraud had been discovered; or
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(b)
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the petitioner has
with his or her free consent lived with the other party to the marriage as
husband and wife after the coercion had ceased or, as the case may be, the
fraud had been discovered.
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26-
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Legitimacy of
children of void and viodable marriages.
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(1)
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Notwithstanding
that a marriage is null and void under section 24, any child of such
marriage who would have been legitimate if the marriage had been valid,
shall be legitimate, whether such child is born before or after the
commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976) and
whether or not a decree of nullity is granted in respect of that marriage
under this Act and whether or not the marriage is held to be void otherwise
than on a petition under this Act.
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(2)
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Where a decree of
nullity is granted in respect of a voidable marriage under section 25, any
child begotten or conceived before the decree is made, who would have been
the legitimate child of the parties to the marriage if at the date of the
decree it has been dissolved instead of being annulled, shall be deemed to
be their legitimate child notwithstanding the decree of nullity.
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(3)
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Nothing contained
in sub-section (1) or sub-section (2) shall be construed as conferring upon
any child of a marriage which is null and void or which is annulled by a
decree of nullity under section 25, any rights in or to the property of any
person, other than the parents, in any case where, but for the passing of
this Act, such child would have been incapable of possessing or acquiring
any such rights by reason of his not being the legitimate child of his
parents.
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(1)
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Subs. by Act 68 of
1976, s. 26, for s. 26 (w.e.f. 27-5-1976).
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------------------------------------------------------------------------------------------------------------------
|
|
27-
|
(1)
|
Subject to the
provisions of this Act and to the rules made there under, a petition for
divorce may be presented to the district court either by the husband or the
wife on the ground that the respondent –
|
|
|
|
(a)
|
has, after the
solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse; or
|
|
|
(b)
|
has deserted the
petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition; or
|
|
|
(c)
|
is undergoing a
sentence of imprisonment for seven years or more for an offence as defined
in the Indian Penal Code (45 of 1860);
|
|
|
(d)
|
has since the
solemnization of the marriage treated the petitioner with cruelty; or
|
|
|
(e)
|
has been incurably
of unsound mind, or has been suffering continuously or intermittently from
mental disorder of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent.
|
|
|
|
Explanation.-In
this clause –
|
|
|
|
(a)
|
the expression
"mental disorder" means mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or
disability of mind and includes schizophrenia;
|
|
|
(b)
|
the expression
"psychopathic disorder" means a persistent disorder or disability
of mind (whether or not including sub-normality of intelligence) which
results in abnormally aggressive or seriously irresponsible conduct on the
part of the respondent, and whether or not it requires or is susceptible to
medical treatment; or
|
|
|
|
(f)
|
has been suffering
from venereal disease in a communicable form; or.
|
|
|
(g)
|
has 5*** been
suffering from leprosy, the disease not having been contacted from the
petitioner; or
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
(1)
|
S. 27 re-numbered
as sub-section (1) of that section by Act 29 of 1970, s. 3.
|
|
(2)
|
Subs. by Act 68 of
1976, s. 27, for cls. (a) and (b).
|
|
(3)
|
proviso omitted by
s. 27, ibid.
|
|
(4)
|
Subs. by s. 27,
ibid., for cls. (e) and (f) (w.e.f. 27-5-1976).
|
|
(5)
|
Certain words
omitted by s. 27, ibid. (w.e.f. 27-5-1976).
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
|
(h)
|
has not been heard
of as being alive for a period of seven years or more by those persons who
would naturally have heard of the respondent if the respondent had been
alive;
|
|
|
|
Explanation.- In
this sub-section, the expression "desertion" means desertion of
the petitioner by the other party to the marriage without reasonable cause
and without the consent or against the wish of such party, and includes the
wilful neglect of the petitioner by the other party to the marriage, and
its grammatical variations and cognate expressions shall be construed
accordingly;]
|
|
|
(1A)
|
A wife may also
present a petition for divorce to the district court on the ground –
|
|
|
|
|
(i)
|
that her husband
has, since the solemnization of the marriage, been guilty of rape, sodomy
or bestiality;
|
|
|
|
(ii)
|
that in a suit
under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956),
or in a proceeding under section 125 of the Code of Criminal Procedure,
1973 (2 of 1974), (or under the corresponding section 488 of the Code of
Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may
be, has been passed against the husband awarding maintenance to the wife
notwithstanding that she was living apart and that since the passing of
such decree or order, cohabitation between the parties has not been resumed
for one year or upwards.
|
|
|
(2)
|
Subject to the
provisions of this Act and to the rules made there under, either party to a
marriage, whether solemnized before or after the commencement of the
Special Marriage (Amendment) Act, 1970, (29 of 1970) may present a petition
for divorce to the district court on the ground –
|
|
|
|
|
(i)
|
that there has
been no resumption of cohabitation as between the parties to the marriage
for a period of one year or upwards after the passing of a decree for
judicial separation in a proceeding to which they were parties; or
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
(1)
|
The word
"or" at the end of cl. (h) and cls. (i) and (j) omitted by Act 29
of 1970, s. 3.
|
|
(2)
|
Ins. by Act 68 of
1976, s. 27 (w.e.f. 27-5-1976).
|
|
(3)
|
Certain words
omitted by s. 27, ibid. (w.e.f. 27-5-1976).
|
|
(4)
|
Ins. by Act 29 of
1970, s. 3.
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
|
|
(ii)
|
that there has
been no restitution of conjugal rights as between the parties to the
marriage for a period of one year or upwards after the passing of a decree
for restitution of conjugal rights in a proceeding to which they were
parties.
|
|
|
27A.
|
Alternative relief
in divorce proceedings.
|
|
|
In any proceeding
under this Act, on a petition for dissolution of marriage by a decree of
divorce, except in so far as the petition is founded on the ground
mentioned in clause (h) of sub-section (1) of section 27, the court may, if
it considers it just so to do having regard to the circumstances of the
case, pass instead a decree for judicial separation.
|
|
28-
|
(1)
|
Subject to the
provisions of this Act and to the rules made there under, a petition for
divorce may be presented to the district court by both the parties together
on the ground that they have been living separately for a period of one
year or more, that they have not been able to live together and that they have
mutually agreed that the marriage should be dissolved.
|
|
(2)
|
On the motion of
both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later
than eighteen months] after the said date, if the petition is not withdrawn
in the meantime, the district court shall, on being satisfied, after
hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnized under this Act and that the averments in the
petition are true, pass a decree declaring the marriage to be dissolved
with effect from the date of the decree.
|
|
29-
|
Restriction on
petitions for divorce during first three years after marriage.
|
|
|
(1)
|
No petition for
divorce shall be presented to the district court 3*[unless at the date of
the presentation of the petition one year has passed] since the date of
entering the certificate of marriage in the Marriage Certificate
Book:
|
|
|
Provided that the
district court may, upon application being made to it, allow a petition to
be presented 3*[before one year has passed] on the ground that the case is
one of exceptional hardship suffered by the petitioner or of exceptional
depravity on the part of the respondent, but if it appears to the district
court at the hearing of the petition that the petitioner obtained leave to
present the petition by any misrepresentation or concealment of the nature
of the case the district court may, if it pronounces a decree, do so
subject to the condition that the decree shall not have effect until after
the 1*[expiry of one year] from the date of the marriage or may dismiss the
petition, without prejudice to any petition, which may be brought after the
1*[expiration of the said one year] upon the same, or substantially the
same, facts as those proved in support of the petition so dismissed.
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
(1)
|
Ins. by Act 68 of
1976, s. 28 (w.e.f. 27-5-1976).
|
|
(2)
|
Subs. by s. 29.
ibid., for certain words (w.e.f. 27-5-1976).
|
|
(3)
|
Subs. by s. 30,
ibid., for certain words (w.e.f. 27-5-1976).
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
(2)
|
In disposing of
any application under this section for leave to present a petition for
divorce before the 1*[expiration of one year] from the date of the
marriage, the district court shall have regard to the interests of any
children of the marriage, and to the question whether there is a reasonable
probability of a reconciliation between the parties before the expiration
of the 1[said one year].
|
|
30-
|
Remarriage of
divorced persons.
|
|
Where a marriage
has been dissolved by a decree of divorce, and either there is no right of
appeal against the decree or if there is such a right of appeal, the time
for appealing has expired without an appeal having been presented, or an
appeal has been presented but has been dismissed 2* * * either party to the
marriage may marry again.
|
|
|
|
|
|
CHAPTER VII
|
JURISDICTION AND PROCEDURE
|
31-
|
Court to which
petition should be made.
|
|
|
(1)
|
Every petition
under Chapter V or Chapter VI shall be presented to the district court
within the local limits of whose original civil jurisdiction –
|
|
|
|
|
(i)
|
the marriage was solemnized;
or
|
|
|
|
(ii)
|
the respondent, at
the time of the presentation of the petition resides; or
|
|
|
|
(iii)
|
the parties to the
marriage last resided together ; or
|
|
|
|
(iv)
|
the petitioner is
residing at the time of the presentation of the petition, in a case where
the respondent is, at that time, residing outside the territories to which
this Act extends, or has not been heard of as being alive for a period of
seven years by those who would naturally have heard of him if he were
alive.
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
(1)
|
Subs. by Act 68 of
1976, s. 30, for certain words (w.e.f. 27-5- 1976).
|
|
(2)
|
Certain words
omitted by s. 31, ibid.
|
|
(3)
|
Subs. by s.32,
ibid., for sub-section (1).
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
(2)
|
Without prejudice
to any jurisdiction exercisable by the court under sub-section (1), the
district court may, by virtue of this subsection, entertain a petition by a
wife domiciled in the territories to which this Act extends for nullity of
marriage or for divorce if she is resident in the said territories and has
been ordinarily resident therein for a period of three years immediately
preceding the presentation of the petition and the husband is not resident
in the said territories.
|
|
|
Contents and
verification of petitions
|
|
32-
|
(1)
|
Every petition
under Chapter V or Chapter VI shall state, as distinctly as the nature of
the case permits, the facts on which the claim to relief is founded, and
shall also state that there is no collusion between the petitioner and the
other party to the marriage.
|
|
(2)
|
The statements
contained in every such petition shall be verified by the petitioner or
some other competent person in the manner required by law for the
verification of plaints, and may, at the hearing, be referred to as
evidence.
|
|
33-
|
Proceedings to be
in camera and may not be printed or published.
|
|
|
(1)
|
Every proceeding
under this Act shall be conducted in camera and it shall not be lawful for
any person to print or publish any matter in relation to any such
proceeding except a judgment of the High Court or of the Supreme Court
printed or published with the previous permission of the Court.
|
|
(2)
|
If any person
prints or publishes any matter in contravention of the provisions contained
in sub-section (1), he shall be punishable with fine which may extend to
one thousand rupees.
|
|
34-
|
(1)
|
In any proceeding
under Chapter V or Chapter VI, whether defended or not, if the court is
satisfied that –
|
|
|
|
(a)
|
any of the grounds
for granting relief exists; and
|
|
|
(b)
|
where the petition
is founded on the ground specified in clause (a) of subsection (1) of
section 27, the petitioner has not in any manner been accessory to or
connived at or condoned the act of sexual intercourse referred to therein,]
or, where the ground of the petition is cruelty, the petitioner has not in
any manner condoned the cruelty; and
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
(1)
|
Subs. by Act 68 of
1976, s. 33, for s. 33 (w.e.f. 27-5-1976).
|
|
(2)
|
Subs. by s. 34,
ibid., for certain words (w.e.f. 27-5-1976).
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
|
(c)
|
when divorce is
sought on the ground of mutual consent, consent has not been obtained by
force, fraud or undue influence; and
|
|
|
(d)
|
the petition is
not presented or prosecuted in collusion with the respondent; and
|
|
|
(e)
|
there has not been
any unnecessary or improper delay in instituting the proceeding; and
|
|
|
(f)
|
there is no other
legal ground why the relief should not be granted; then, and in such a
case, but not otherwise, the court shall decree such relief accordingly.
|
|
|
(2)
|
Before proceeding
to grant any relief under this Act it shall be the duty of the court in the
first instance, in every case where it is possible so to do consistently
with the nature and circumstances of the case, to make every endeavor to
bring about reconciliation between the parties:
|
|
|
Provided that
nothing contained in this sub-section shall apply to any proceeding wherein
relief is sought on any of the grounds specified in clause (c), clause (e),
clause (f), clause (g) and clause (h) of sub-section (1) of section 27.]
|
|
(3)
|
For the purpose of
aiding the court in bringing about such reconciliation, the court may, if
the parties so desire or if the court thinks it just and proper so to do,
adjourn the proceedings for a reasonable period not exceeding fifteen days
and refer the matter to any person named by the parties in this behalf or
to any person nominated by the court if the parties fail to name any
person, with directions to report to the court as to whether reconciliation
can be and has been, effected and the court shall in disposing of the
proceeding have due regard to the report.
|
|
(4)
|
In every case
where a marriage is dissolved by a decree of divorce, the court passing the
decree shall give a copy thereof free of cost to each of the parties.
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
(1)
|
Ins. by Act 68 of
1976, s. 34 (w.e.f. 27-5-1976).
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
35-
|
Relief for
respondent in divorce and other proceedings.
|
|
In any proceeding
for divorce or judicial separation or restitution of conjugal rights, the
respondent may not only oppose the relief sought on the ground of
petitioner's adultery, cruelty or desertion, but also make a counter-claim
for any relief under this Act on that ground, and if the petitioner's
adultery, cruelty or desertion is proved, the court may give to the
respondent any relief under this Act to which he or she would have been
entitled if he or she had presented a petition seeking such relief on that
ground.
|
|
36-
|
Where in any proceeding
under Chapter V or Chapter VI it appears to the district court that the
wife has no independent income sufficient for her support and the necessary
expenses of the proceeding, it may, on the application of the wife, order
the husband to pay to her the expenses of the proceeding, and weekly or
monthly during the proceeding such sum as having regard to the husband's
income, it may seem to the court to be reasonable.
|
|
37-
|
Permanent alimony
and maintenance.
|
|
|
(1)
|
Any court
exercising jurisdiction under Chapter V or Chapter VI may, at the time of
passing any decree or at any time subsequent to the decree, on application
made to it for the purpose, order that the husband shall secure to the wife
for her maintenance and support, if necessary, by a charge on the husband's
property, such gross sum or such monthly or periodical payment of money for
a term not exceeding her life, as, having regard to her own property, if
any, her husband's property and ability 2*[the conduct of the parties and
other circumstances of the case], it may seem to the court to be just.
|
|
(2)
|
If the district
court is satisfied that there is a change in the circumstances of either
party at any time after it has made an order under sub-section (1), it may,
at the instance of either party, vary, modify or rescind any such order in
such manner as it may seem to the court to be just.
|
|
(3)
|
If the district
court is satisfied that the wife in whose favor an order has been made
under this section has remarried or is not leading a chaste life, 3*[it
may, at the instance of the husband vary, modify or rescind any such order
and in such manner as the court may deem just].
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
(1)
|
Subs. by Act 68 of
1976, s. 35, for s. 35.
|
|
(2)
|
Subs. by s. 36,
ibid., for certain words.
|
|
(3)
|
Subs. by s. 36,
ibid., for certain words.
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
38-
|
Custody of
children.
|
|
In any proceeding
under Chapter V or Chapter VI the district court may, from time to time,
pass such interim orders and make such provisions in the decree as it may
seem to it to be just and proper with respect to the custody, maintenance
and education of minor children, consistently with their wishes wherever
possible, and may, after the decree, upon application by petition for the
purpose, make, revoke, suspend or vary, from time to time, all such orders
and provisions with respect to the custody, maintenance and education of
such children as might have been made by such decree or interim orders in
case the proceeding for obtaining such decree were still pending.
|
|
|
Appeals from
decrees and orders
|
|
|
(1)
|
All decrees made
by the court in any proceeding under Chapter V or Chapter VT shall, subject
to the provisions of sub-section (3), be appealable as decrees of the court
made in the exercise of its original civil jurisdiction, and such appeal
shall lie to the court to which appeals ordinarily lie from the decisions
of the court given in the exercise of its original civil jurisdiction.
|
|
(2)
|
Orders made by the
court in any proceeding under this Act under section 37 or section 38
shall, subject to the provisions of sub-section (3), be appealable if they
are not interim orders, and every such appeal shall lie to the court to
which appeals ordinarily lie from the decisions of the court given in the
exercise of its original civil jurisdiction.
|
|
(3)
|
There shall be no
appeal under this section on the subject of costs only.
|
|
(4)
|
Every appeal under
this section shall be preferred within a period of thirty days from the
date of the decree or order.
|
|
|
39A.
|
Enforcement of
decrees and orders.
|
|
|
All decrees and
orders made by the court in any proceeding under Chapter V or Chapter VI
shall be enforced in the like manner as the decrees and orders of the court
made in the exercise of its original civil jurisdiction for the time being
are enforced.
|
40-
|
Application of Act
5 of 1908.
|
|
Subject to the
other provisions contained in this Act, and to such rules as the High Court
may make in this behalf, all proceedings under this Act shall be regulated,
as far as may be, by the Code of Civil Procedure, 1908.
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
(1)
|
Subs. by Act 68 of
1976, s. 37, for s. 39 (w.e.f. 27-5-1976).
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
40A.
|
Power to transfer
petitions in certain cases.
|
|
|
|
(a)
|
a petition under
this Act has been presented to the district court having jurisdiction by a
party to the marriage praying for a decree for judicial separation under
section 23 or for a decree of divorce under section 27, and
|
|
|
(b)
|
another petition
under this Act has been presented thereafter by the other party to the
marriage praying for decree for judicial separation under section 23, or
for decree of divorce under section 27 on any ground whether in the same
district court or in a different district court, in the same State or in a
different State, the petition shall be dealt with as specified in
sub-section (2).
|
|
|
(2)
|
In a case where
sub-section (1) applies –
|
|
|
|
(a)
|
if the petitions
are presented to the same district court, both the petitions shall be tried
and heard together by that district court;
|
|
|
(b)
|
if the petitions
are presented to different district courts, the petition presented later
shall be transferred to the district court in which the earlier petition
was presented and both the petitions shall be heard and disposed of
together by the district court in which the earlier petition was presented.
|
|
|
(3)
|
In a case where
clause (b) of sub-section (2) applies, the court or the Government, as the
case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908)
to transfer any suit or proceeding from the district court in which the
later petition has been presented to the district court in which the
earlier petition is pending, shall exercise its powers to transfer such
later petition as if it had been empowered so to do under the said Code.
|
|
|
Special provision
relating to trial and disposal of petitions under the Act
|
|
|
40B.
|
(1)
|
The trial of a
petition under this Act shall, so far as is practicable consistently with
the interests of justice in respect of the trial, be continued from day to
day until its conclusion, unless the court finds the adjournment of the
trial beyond the following day to be necessary for reasons to be recorded.
|
|
|
(2)
|
Every petition
under this Act shall be tried as expeditiously as possible and endeavour
shall be made to conclude the trial within six months from the date of
service of notice of the petition on the respondent.
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
(1)
|
Ins. by Act 68 of
1976, s. 38.
|
|
|
------------------------------------------------------------------------------------------------------------------
|
|
|
(3)
|
Every appeal under
this Act shall be heard as expeditiously as possible, and endeavour shall
be made to conclude the hearing within three months from the date of
service of notice of appeal on the respondent.
|
|
|
40C.
|
Documentary
evidence.
|
|
|
Notwithstanding
anything contained in any enactment to the contrary, no document shall be
inadmissible in evidence in any proceeding at the trial of a petition under
this Act on the ground that it is not duly stamped or registered.
|
41-
|
Power of High
Court to make rules regulating procedure.
|
|
|
(1)
|
The High Court
shall, by notification in the Official Gazette, make such rules consistent with
the provisions contained in this Act and the Code of Civil Procedure, 1908
as (5 of 1908), it may consider expedient for the purpose of carrying into
effect the provisions of Chapters V, VI and VII.
|
|
(2)
|
In particular, and
without prejudice to the generality of the foregoing provision, such rules
shall provide for –
|
|
|
|
(a)
|
the impleading by
the petitioner of the adulterer as a correspondent on a petition for
divorce on the ground of adultery, and the circumstances in which the
petitioner may be excused from doing so;
|
|
|
(b)
|
the awarding of
damages against any such co-respondent;
|
|
|
(c)
|
the intervention
in any proceeding under Chapter V or Chapter VI by any person not already a
party thereto;
|
|
|
(d)
|
the form and
contents of petitions for nullity of marriage or for divorce and the
payment of costs incurred by parties to such petitions; and
|
|
|
(e)
|
any other matter
for which no provision or no sufficient provision is made in this Act, and
for which provision is made in the Indian Divorce Act, 1869.
|
|
CHAPTER VIII
|
42-
|
Savings.
|
|
Nothing contained
in this Act shall affect the validity of any marriage not solemnized under
its provisions; nor shall this Act be
|
43-
|
Penalty on married
person marrying again under this Act.
|
|
Save as otherwise
provided in Chapter III, every person who, being at the time married,
procures a marriage of himself or herself to be solemnized under this Act
shall be deemed to have committed an offence under section 494 or section
495 of the Indian Penal Code (45 of 1860), as the case may be, and the
marriage so solemnized shall be void.
|
|
44-
|
Every person whose
marriage is solemnized under this Act and who, during the lifetime of his
or her wife or husband, contracts any other marriage shall be subject to
the penalties provided in section 494 and section 495 of the Indian Penal
Code, (45 of 1860), for the offence of marrying again during the lifetime
of a husband or wife, and the marriage so contracted shall be void.
|
|
45-
|
Penalty for
signing false declaration or certificate.
|
|
Every person
making, signing or attesting any declaration or certificate required by or
under this Act containing a statement which is false and which he either
knows or believes to be false or does not believe to be true shall be
guilty of the offence described in section 199 of the Indian Penal Code (45
of 1860).
|
46-
|
Penalty for
wrongful action of Marriage Officer.
|
|
Any Marriage
Officer who knowingly and wilfully solemnizes a marriage under this Act –
|
|
(1)
|
without publishing
a notice regarding such marriage as required by section 5, or
|
|
(2)
|
within thirty days
of the publication of the notice of such marriage, or
|
|
(3)
|
in contravention
of any other provision contained in this Act, shall be punishable with
simple imprisonment for a term which may extend to one year, or with fine
which may extend to five hundred rupees, or with both.
|
|
47-
|
(1)
|
Marriage
Certificate Book to be open to inspection. The Marriage Certificate Book
kept under this Act shall at all reasonable times be open for inspection
and shall be admissible as evidence of the statements therein contained.
|
|
(2)
|
Certified extracts
from the Marriage Certificate Book shall, on application, be given by the
Marriage Officer to the applicant on payment by him of the prescribed fee.
|
|
|
Transmission of
copies of entries in marriage records
|
|
48-
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Every Marriage
Officer in a State shall send to the Registrar General of Births, Deaths
and Marriages of that State at such intervals and in such form as may be
prescribed, a true copy of all entries made by him in the Marriage
Certificate Book since the last of such intervals, and, in the case of
Marriage Officers outside the territories to which this Act extends, the
true copy shall be sent to such authority as the Central Government may
specify in this behalf.
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(1)
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Any Marriage
Officer who discovers any error in the form or substance of any entry in
the Marriage Certificate Book may, within one month next after the
discovery of such error, in the presence of the persons married or, in case
of their death or absence, in the presence of two other credible witnesses,
correct the error by entry in the margin without any alteration of the
original entry and shall sign the marginal entry and add thereto the date
of such correction and the Marriage Officer shall make the like marginal
entry in the certificate thereof.
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(2)
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Every correction
made under this section shall be attested by the witnesses in whose
presence it was made.
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(3)
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Where a copy of
any entry has already been sent under section 48 to the Registrar-General
or other authority the Marriage Officer shall make and send in like manner
a separate certificate of the original erroneous entry and of the marginal
corrections therein made.
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50-
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(1)
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Power to make
rules. The Central Government, in the case of 1*** officers of the Central
Government, and the State Government, in all other cases, may, by
notification in the Official Gazette, make 2*rules for carrying out the
purposes of this Act.
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(2)
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In particular, and
without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely –
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(a)
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the duties and
powers of Marriage Officers and the areas in which they may exercise
jurisdiction;
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(b)
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the manner in
which a Marriage Officer may hold inquiries under this Act and the
procedure therefore;
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(1)
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The words
"diplomatic and consular officers and other" omitted by Act 33 of
1969, s. 29.
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(2)
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For the Special
Marriage (Diplomatic and Consular officers) Rules, 1954, see Gazette of
India, 1955, Pt. II, Sec. 3, p. 1517.
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(c)
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the form and
manner in which any books required by or under this Act shall be maintained
;
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(d)
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the fees that may
be levied for the performance of any duty imposed upon a Marriage Officer
under this Act;
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(e)
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the manner in
which public notice shall be given under section 16;
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(f)
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the form in which,
and the intervals within which, copies of entries in the Marriage
Certificate Book shall be sent in pursuance of section 48;
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(g)
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any other matter
which may be or requires to be prescribed.
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(3)
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Every rule made by
the Central Government under this Act shall be laid, as soon as may be
after it is made, before each House of Parliament, while it is in session,
for a total period of thirty days which may be comprised in one session or
in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule or both
Houses agree that the rule should not be made, the rule shall thereafter
have effect only in such modified form or be of no effect as the case may
be; so, however, that any such modification or annulment shall be without
prejudice to the validity of anything previously done under that rule.
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(4)
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Every rule made by
the State Government under this Act shall be laid, as soon as it is made,
before the State Legislature.
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(1)
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The Special
Marriage Act, 1872 (3 of 1872), and any law corresponding to the Special
Marriage Act, 1872, in force in any Part B State immediately before the
commencement of this Act are hereby repealed.
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(2)
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Notwithstanding
such repeal –
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(a)
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all marriages duly
solemnized under the Special Marriage Act, 1872 (3 of 1872), or any such
corresponding law shall be deemed to have been solemnized under this Act;
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(b)
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all suits and
proceedings in causes and matters matrimonial which, when this Act comes
into operation, are pending in any court, shall be dealt with and decided
by such court, so far as may be, as if they had been originally instituted
therein under this Act.
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(3)
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The provisions of
sub-section (2) shall be without prejudice to the provisions contained in
section 6 of the General Clause Act, 1897 (10 of 1897), which shall also
apply to the repeal of the corresponding law as if such corresponding law
had been an enactment.
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