The Special Marriage Act applies to foreign nationals and does not restrict the dissolution of marriage under the Act based on the nationality of the parties.

JUDGMENT :

1. The Court:-A piquant situation arose in the instant appeal upon rejection of an application under Section 28 of the Special Marriage Act, 1954 (hereinafter referred to as “the said Act”) that since both the parties to the said application have acquired citizenship of Australia, they are not entitled to seek divorce under the aforesaid Act in view of the provisions contained under Section 1(2) of the said Act. The learned Judge in the Court below relied upon Section 7B of the Citizenship Act, 1955 and construed the aforesaid provision as an embargo in the applicability of the provisions contained under the Special Marriage Act, 1954.

2. The substratum of the core issue is that since the parties to the proceeding have acquired the citizenship of a foreign country and no longer the citizen of India, cannot seek any remedy under the provisions of the said Act.

3. Before we proceed to test the findings made by the Trial Court in this regard, it would be apposite and profitable to quote Section 1 of the said Act, which runs thus:

“1. Short title, extent and commencement – (1) This Act may be called the Special Marriage Act, 1954.

(2) It extends to the whole of India and applies also to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.”

4. It is manifest from the aforesaid Section that the applicability of the Act is extended to whole of India and applies to citizen of India domiciled in the territories to which the said Act extends who are in the State of Jammu and Kashmir. Sub-section (2) of Section 1 can be segregated in two compartments; firstly it extends to whole of India; secondly applies also to the citizen of India domiciled in the territories to which the Act extends who are in the State of Jammu and Kashmir.

5. A little prelude to the amendments having brought in the aforesaid Subsection is required to be recapitulated in order to ascertain the legislative intent underlying such amendment to be brought in the aforesaid provisions.

6. Prior to the amendment, the Act was extended to whole of India except the State of Jammu and Kashmir manifesting that the said Act would not apply to the State of Jammu and Kashmir, but the second compartment as indicated hereinabove was retained for the limited purpose of extending the said Act to Indian citizen domiciled in the territories to which the said Act extends who are in the State of Jammu and Kashmir.

7. It is axiomatic to record that by virtue of deletion of the expression “except the State of Jammu and Kashmir” in the first compartment of the said Sub-section speared intention of the legislature that the Act would apply even to the territories of Jammu and Kashmir and, therefore, the second component of the said Sub-section has to be harmonized in such manner. The concept of restricting the applicability of the citizens of India sees further impetus from Section 4(e) of the said Act providing that where the marriage is solemnized in the State of Jammu and Kashmir between the parties who are the citizen of India domiciled in the territories to which the Act extends comes within the ambit of the said Act.

8. Section 4 is primarily relatable to the conditions relating to the solemnization of marriage under the aforesaid Act keeping the provision under Clause (e) of Section 4 in relation to the marriage solemnized in the State of Jammu and Kashmir, but both the parties being the citizen of India and domiciled in the other territories can contract marriage under the said Act. Therefore, the concept of citizenship in contradiction with the word “any person” has to be understood in a harmonized way so that the object and purpose of extending the applicability of the said Act is not frustrated. The provision contained under Section 1(2) of the said Act can further be seen from a different angle tha