Rights of Children from Marriage under Special Marriage Act, 1954


 The author of this blog is Vaishnavi Navghare, 2nd-year student of B.A.LL.B.(Hons.) at Maharashtra National Law University, Nagpur.




In India, nowadays inter-religion marriage has become much more common than earlier. And so the laws take care of the people who choose to marry with the inter-religion spouse. Also, the children born under these marriages should be taken care of. The Special Marriage Act 1954 comes in the rescue of those people who choose to marry without worrying about the religion they are attached to.

Concept Of Marriage
Marriage is nothing but a socially recognized union between two people known as spouses. Where this union establishes certain rights and certain obligations not only between them but between them and other relations as well. Marriage is a union between two people which is recognized by society as well as by law. It creates a new relationship of love, affection, care, and concern between the husband and wife.[1] Marriage is when two people have a wedding ceremony to exchange vows before God and their family. Different cultures have their own concept of marriage. And hence the definition and concept of marriage differ from place to place. It varies between cultures and religion and it varies through the history of any place, religion, and culture. It is very important to determine the rights of children. As marriages can, at many times, be declared void or voidable, it is important that children do not suffer due to the actions of their parents. Section 13 of The Hindu Minority And Guardianship Act, 1956 specifically states that the welfare of the children is a paramount consideration and it should be given most importance.

Maintenance Rights
Maintenance is the support which one person, who is bound by law to do so, gives to another for his living. A father is required to maintain his children. A child is bound to provide maintenance for this father and mother in case they are unable to do so for themselves. Maintenance is, therefore, a right to get certain necessities from another which are reasonable. And what are reasonable necessities differ from case to case? Maintenance does not just include food, shelter, and clothing, but, as held in various cases, it also includes certain things that are needed for comfort and status in which the person entitled is reasonably expected to live.

Maintenance rights are generally claimed by the wife from the husband and they are generally provided when wife and husband live separately. There is also some other sorts of relationship in which there is a dependency in monetary terms, apart from just the relationship of spouses and therefore, they are also entitled to maintenance under the Hindu Adoptions and Maintenance Act, 1956. So, the father-in-law is bound to maintain her widowed daughter-in-law. The parents are bound to maintain their minor children, whether legitimate or illegitimate. Similarly, any Hindu is bound to maintain his aged and infirm parents. The term parent here also includes an issue-less stepmother. The cases of maintenance are governed according to their personal laws.

Section 36 and Section 37 of The Special Marriage Act, 1954 deals with the maintenance rights of the wife against the husband. While Section 38 of the same Act deals with the custody and maintenance of children from the marriage under The Special Marriage Act, 1954. This section empowers the district court to pass any interim orders as it may seem just and proper with respect to custody, maintenance and education of the minor children, and consistently with their wishes where it’s possible. Also, it empowers the district court to revoke, suspend, make or vary from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children.

Also, Section 13 of The Hindu Minority And Guardianship Act, 1956 specifically states that the welfare of the children is a paramount consideration and it should be given the most importance.

Inheritance Rights
Any male and female can marry under the Special Marriage Act, 1954. But which laws will govern them and what will be the rights available to them varies in different conditions.

 Rights of children when both the parents are from the same religion.
When both the parties who are from the same religion choose not to solemnize their marriage under their personal law but directly under the Special Marriage Act, 1954 then all their affairs will be governed by The Special Marriage Act, 1954 and all the property and inheritance rights will be governed by The Indian Succession Act, 1925. At the same time even if they first marry under their personal law and then subsequently register under the Special Marriage Act, 1954, then the moment their marriage will be registered, they will be severed from their personal laws and will be governed by the Special laws like the Special Marriage Act, 1954, The Indian Succession Act, 1925, etc. For e.g., if a Muslim man solemnizes his marriage with a Muslim woman under The Special Marriage Act, 1954, then their all marital affairs including their property rights will be governed by The Special Marriage Act, 1954, and The Indian Succession Act, 1925.

EXCEPTION - There is an exception to the application of The Special Marriage Act, 1954. Any man and woman of the same religion, if solemnized their marriage under this Act would be severed from their personal laws. But if any Hindu, Buddhist, Sikh or Jaina man and Hindu, Buddhist, Sikh or Jaina woman solemnize their marriage under this Act, they would not be needed to renounce their personal laws and their joint family. It does not matter whether they solemnize their marriage directly under The Special Marriage Act, 1954 or not. They will be governed by their personal laws which include the Hindu Marriage Act, 1955 and their property rights will be governed by The Hindu Succession Act, 1956.

Rights of children when both the parents are from different religions.
When both the parties are from different religions and they solemnize their marriage under The Special Marriage Act, 1954, then they will be governed by The Special Marriage Act, 1954 and The Indian Succession Act, 1925. For e.g., if a Hindu man marries with Muslim woman, then they will be governed by the special laws like the Special Marriage Act, 1954, The Indian Succession Act, 1925, etc.Now, what happens when one will marry under this Act and will be severed from his family. According to Section 18, 20, 21 and 26(3) of The Special Marriage Act, 1954, any children born from marriage under The Special Marriage Act, 1954 should not be conferred upon any rights in or to the property of any other person than their parents. That means all the children under this marriage would only be able to claim a share from the property of their parents and no other person than that.

Conclusion
It can be concluded that the child is an essential element to think about when deciding about the marital affairs of the spouses. Though the parliament and judiciary are always ahead in upholding the rights of children, there are still some loopholes and scope of improvement. The maintenance rights given to the children include all the rights related to custody, education, and maintenance of children, and also the district court is empowered to further pass interim orders which seems just and proper from time to time regarding these rights upon the filing of the petition. But it only includes monetary rights whereas a child also needs love and affection from both parents. The inheritance rights given to the children include only share in the property of the parents and not the ancestors. There is an exception to it which is discussed in the project which is the Hindu Undivided Family concept. This rights seem to be against the children as the child born under The Special Marriage Act, 1954 would not be entitled to the ancestral property though it is not his/her fault. It can be concluded that though children’s rights are taken care of by the parliament and judiciary, there is still a need to review them to bring some changes for their welfare.






[1] A. Jayachandra v. Aneel Kaur 2005 2 SCC 22.

Comments