Sub-section Special Marriage Act, 1954 and such

Sub-section (2) of the Acts protects customary divorces.

However, the party relying on custom must specifically plead and prove the existence of custom. Sub-section (3) saves proceedings which were pending under any law for the time being in force and such proceedings were to be continued and determined as if this Act had not been enacted. The pending proceedings may relate to (1) declaring any marriage null and void, (2) annulling any marriage, dissolving any marriage, or (4) judicial separation. Sub-section (4) provides that marriages between Hindus solemnised under the Special Marriage Act, 1954 are not affected by anything contained in the Act. A Hindu can marry under Special Marriage Act, 1954 and such marriage ceases to be governed by the Hindu Marriage Act, 1955.

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Doctrine of Factum Valet:

“What ought not to be done, if done, is valid.” The Latin maxim “factum valet quod fieri non debut’’ is invoked to cure the irregularities. A marriage requires certain formalities to be fulfilled for making it valid.

If the formalities are directory or recommendatory then the doctrine can be invoked to cure the irregularity. But if the condition or formality is mandatory, then the doctrine cannot be invoked. For example, the irregularities arising from Sapinda relationships, prohibited relationships and bigamy are all mandatory; the violations of these conditions cannot be cured by applying the doctrine. However, the consent of the guardian is only a recommendatory condition and hence the violation of this condition can be cured by applying the doctrine.

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