Kerala High Court: 30 days mandatory residence under Special Marriage Act


Recently, the Kerala High Court in Bijy Paul & Anr. v The Marriage Officer & Ors. gave its opinion on whether the 30-day mandatory waiting period under the Special Marriage Act, 1954 is called for in today’s era.

Facts of the Case

The first petitioner is employed in Oman and was on leave when he came to Kerala on 10th December 2022 and needs to return back by 24th January 2023. The Second petitioner resides in Italy and wished to go along with the first petitioner only after securing a visa by solemnization of their marriage on or before 13th January 2023. The petition was raised by those who are aggrieved by the refusal to solemnize their marriage due to Section 5 under the Special Marriage Act, 1954, which requires a mandatory 30 days waiting period after the couple approaches the Marriage officer with the intention to marry. Hence, they approached the High Court seeking discretionary relief against the provision of the Special Marriage Act, 1954.

Arguments on behalf of the Petitioner

The learned Counsel for the petitioners, Adv. K.M. Firoz pressed for an interim order. He contended that section 5 under the Special Marriage Act, 1954 should be interpreted progressively due to the vast social changes. A reference of Allahabad High Court wherein under similar circumstance the Court granted liberty to the parties and asked them to a written consent when giving a notice under section 5 to the Marriage Officer whether to publish or not publish a notice under Section 6 of the Act but diligently follow the procedure as prescribed. He further stated that a similar progressive approach was adopted by the Supreme Court where the one-year waiting period between marriage and submission of divorce was reduced to six months after submission of a joint petition under Section 13 B (2) of the Hindu Marriage Act, 1955.

Submission on behalf of the Respondent

The Deputy Solicitor General of India, S Manu submitted that the 30 days period prescribed under Section 5 provides an opportunity to raise objection against the proposed solemnisation. It has been in force for more than half a century and hence can not be overlooked for granting interim relief.  A reference was made of Ajman Ashraf M and another v State of Kerala and another, wherein the Single Judge held that relaxation of Section 5, 14 and 16 of the Act are impermissible.

The Government Pleader Adv. S. Appu contented that solemnisation of marriage is a serious affair and if any person is aggrieved by a refusal to solemnise the same, then he/she can prefer for an appeal.


Justice V. G. Arun stated that a lot of changes have taken place in the customs and practices. Most of the youngsters have been employed abroad and come back to their natives for a short duration only, it is during these vacations when many tend to get married. The Special Marriage Act requires one of the spouses to reside within the territorial limits of the jurisdictional Marriage Officer for a period of 30 days.

The excerpts from the judgment read out:

“This court cannot also ignore the Division Bench and Single Bench decisions holding the time stipulated in Section 5 to be mandatory. For the aforementioned reasons, the prayer for interim relief is declined. Post the writ petition after a month.”


Source: LiveLaw, Bar & Bench

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