[S.5 Special Marriage Act] "Language of the Section clear; notice 'prior' to intended marriage mandatory": Madras High Court 

Recently, the Madras High Court refused to issue direction for the registration of a marriage under the Special Marriage Act holding that the procedures contained under Sections 5 to 13 of the Act have to be mandatorily complied with for the solemnization of special marriages under the Act.

The bench of Justice GR Swaminathan clarified that in the instant case the parties had given notice under Section 5 of the Act after performing their so-called marriage, however, the language of the Section is clear that notice of intended marriage has to be given prior to the marriage.

The Court was hearing a plea moved by a Hindu-Christian couple who performed a self-respect marriage and wanted the same to be registered under the Special Marriage Act. The plea was moved by one S Sarath Kumar seeking directions to a sub-registrar who had refused to register the marriage under the Act raising a red flag that registration was not possible because the woman was yet to turn 21.

It was Kumar's contention that the Sub-Registrar failed to take note of Section 4 (c) of the Act, as per which it would be enough if the female had completed the age of 18 years for registration of marriage under the Act.

However, during the hearing, it came to light that the said marriage was solemnized on June 10, 2022 however, the notice for the marriage under Section 5 of the Act was given to the sub-registrar on June 17.

Taking note of the same, Court observed, "Giving notice under Section 5 is the first step. The petitioner and his wife have been quite fast so far. But law does not always believe in speed. Things have to move only in a sequential order. The couple in question have put the cart before the horse."

Therefore, Court held that Kumar did not marry the Christian woman under the Special Marriage Act, 1954 and therefore could not avail the benefit set out in Section 4 of the Act and dismissed Kumar's plea.

However, Court suggested that Kumar can solemnize his marriage under the aforementioned Act by following the procedures contemplated. "In that event, the second respondent cannot refuse to issue marriage certificate on the ground that Ms.Lediya has not yet turned 21," Court noted.

Case Title: S.Sarath Kumar v. The District Collector and Another