This article is written by Aditya Anand from Symbiosis Law School, NOIDA. In this article, the author has tried to cover the foreign marriage aspects and their relevance in our country.
Marriage is a common tradition not only in India but all over the world and we all are accustomed to the values of this tradition that holds the culture and family values together. The value of marriage lies in both the religious and non-religious societies across the world. They follow the custom of marriage representing the civilized society of beings. The sanctioned union between two persons would greatly enhance the development and welfare of the people. The Foreign Marriage Act abridges the gap between the Indian Nations and the Foreigners by providing a common platform for the solemnization of marriages..
Objective of the Act
The basic objective of this Act is to solemnize the marriage between Indian citizens and foreigners. There are various pre-existing marriage laws in our country but this Act covers the exclusive and exhaustive conditions or various possibilities that can be related to marriage. In other words, they have some special provisions related to marriage which are not mentioned impliedly in other Acts related to personal laws. This Act abridges the gap between the Indian marriage laws and the foreign marriage laws and has some exclusive provisions for the citizens as well as non-citizens. In India, such marriage laws are governed under the Foreign Marriage Act,1969.
Importance of this Act in India
The Act plays a very important role as it is a foundational law for the issue related to foreign marriages. India is a culturally diversified and tradition-enriched country where marriage is considered a holy union. The Act provides recognition of marriage irrespective of any tradition, custom, or unreasonable conditions.
The Foreign Marriage Act is completely based on factual situations in addition to certain fulfillment of conditions that are justifiable as to recognize the marriage according to the laws of the country. The Act recognizes the presence of the couple and their consent in which one should strictly be an Indian citizen as mentioned in Section 4 of Chapter 2 of the Act. Section 4 states some conditions relating to solemnization of Marriages. This Act has eliminated many flaws that would have created the issue and dilemma among the public. Earlier, there were no dedicated marriage laws related to foreign nationals or marriages of Indians in foreign countries. This kind of dilemma gets solved by this special Act.
The Act has also reduced the conflict over certain issues related to the recognition of marriage. For example in the judgment delivered by Bombay High Court, Minoti Anand & Anr vs Subhash Anand & Ors (2011), the Court held that the marriage was solemnized under Section 18 of the Foreign Marriage Act. The fact was that they were an Indian Hindu couple and the marriage between them was performed in Japan as per the Japanese traditions and customs and it was registered under the Foreign Marriage Act. The major dispute was about the claim of matrimonial relief and the parties were at the dispute that it should come under the Hindu Marriage Act,1955 but the Court held that since the marriage is solemnized under the Foreign Marriage Act, the special relief would be claimed under the Special Marriage Act,1954. Section 18 subsection 1 of Chapter 4 accepts the provisions of chapters four to seven of the Special Marriage Act, 1954 and it shall be applied in case of the parties whose marriage was solemnized in foreign countries between parties and one should be the citizen of India.
In another landmark judgment of Andhra High Court in relation to Section 18, Joyce Sumathi vs Robert Dickson Brodie (1982) the Court held that if the parties marry in a foreign country then the relief can be claimed under Section 18 of the Foreign Marriage Act. The fact is that the wife of the appellant is a resident of India and they resided in Bahrain. As per the facts, the husband deserted the wife and so the wife filed for divorce in the lower court of India. The lower court dismissed the petition on the ground that the marriage is not registered under Section 17 of the Foreign Marriage Act (registration of foreign marriages) but after the appeal in the High Court, it was concluded that marriage solemnized under Section 18 of the Act or any other marriage solemnized in a foreign country should be taken into consideration as a valid marriage, on the condition that one party should be an Indian citizen and so wife’s petition to move forward for divorce was held maintainable.
Thus, the court has contradictory views in two different judgments where in one case the relief was provided under the Special marriage act while in the other case the relief was provided under the Foreign Marriage Act. It can also be concluded from the above judgments and Sections that this Act provides an exclusive view of the provisions that play an important role and reduces the conflict over such disputes which has not been discussed under personal laws and other marriage laws. The Act eases some of the discrepancies that cannot be dealt with in other marriage laws.
Solemnization of marriages
The solemnization of marriage is the process to perform the official marriage ceremony. There is an exhaustive process involved in the solemnization of marriages. Certain conditions have to be mandatorily fulfilled to get their marriage registered through Chapter III Section 17 of the Act.
Conditions of a valid marriage
The essential conditions that are requisite for the registration of marriages are stated in Chapter II Section 4 of the Act.
- First Condition- As per the Section 4, a marriage between parties can only be possible when one of the parties is a citizen of India. Otherwise, the marriage will not be considered under this Act.
- Second Condition- The parties should not have any existing spouse or pre-existing marriage. They shouldn’t have any living spouse as this has been specifically mentioned under Section 4(a) of the Act. The Act requires the condition of monogamy for registration under this Act.
- Third Condition- This essential condition mentioned under Section 4(b) is that the mental condition of the parties which should be stable. They shouldn’t be idiotic or lunatic. During the marriage, both the parties should be of sound mind.
- Fourth Condition- This condition under Section 4(c) discusses the eligible age of parties for the solemnization of marriages. At the time of registration, the bridegroom must have completed the minimum age of twenty-one years and the bride must have completed a minimum of eighteen years of age. The violation of the minimum age would make the marriage null and void.
- Fifth Condition- Section 4(d) specifically states that parties shouldn’t be within the degree of prohibited relationship. If the personal law or custom is binding on anyone of the parties and even that law or custom permits the marriage as well as the marriage is solemnized then also the marriage will come under the degree of prohibited relationship.
- Sixth Condition- When a marriage has to be solemnized under the Act, then the parties must give prior notice in writing for their intended marriage to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given as mentioned under Section 5 of the Act. The structure of the form should be in accordance with the first schedule. It will be counted after the notice is given and the party has resided.
- Seventh Condition- As per Section 11 of the Act, marriage should not be in contravention to the local laws. The Marriage Officer can refuse to solemnize the marriage by stating justifiable reasons that have been recorded in writing. Marriage should not be prohibited by law in force in a foreign country where it has to be solemnized. The Marriage Officer can also state the reasons in writing to refuse the solemnization of marriage if he thinks that marriage is inconsistent with international laws. The Section also mentions the remedial measures under sub clause 3 for the issues related to the solemnization of marriages by the Marriage Officer.If the Marriage Officer refuses to solemnize the marriage then the intended party as per the this Section then the party may appeal to the Central Government as per the rules within the time period of thirty days. After that the Marriage Officer has to act as per the decision taken by the Central Government.
- Eighth Condition- As per Section 12 of the Act which states the condition for declaration by parties and witnesses. There should be three witnesses and the parties. They should sign the declaration in the form that is specified in the second schedule in the presence of the Marriage Officer and the declaration shall be countersigned by the Marriage Officer.
Notice of marriage
After the fulfillment of conditions, the further process of solemnization of marriage shall take place. When the notice is issued of the intended marriage then the Marriage Officer has to maintain the Marriage Notice Book specified under Section 6. The Act stated that the Marriage Officer should keep a record of all notices given under Section 5 of the Act. A true copy of every notice should be entered in the book that is prescribed for that purpose and it shall be called the Marriage Notice Book. The book can be inspected by any desirable person free of cost and it shall be open for inspection at all reasonable times.
Publication of Notice
The Marriage Officer shall publish the notice given under Section 5 of the Act. This has been mentioned under Section 7 of the Act. The notice shall be published in his own office by affixing the copy at the prominent place as well as in the foreign countries where the parties are resident in the prescribed manner.
Objection to marriage
Section 8 of the Act invites the objections to marriages by any person within thirty days from the date of publication of notice in the public domain. The notice that is issued under Section 7 of the Act can be objected to under the following specified conditions that are stated in Section 4 of the Act. The objection shall be in writing along with the sign of the person or any other person authorized on his or her behalf. The person objecting should also specify the ground of objection and the Marriage Officer shall take note of the nature of objection in his Marriage Notice Book as well.
If no objection is raised within the given period then after the expiry of that period the marriage can be solemnized under Section 9 of the Act. If the objection is raised then there is a procedure on receipt of objection given in Section 10 of the Act. When the objection is raised under Section 8 of the Act then the Marriage Officer cannot solemnize the marriage until the objection is resolved. The Marriage Officer will inquire about the matter of objection.
Place and form of marriage
The place and form of marriage have been stated under Section 13 of the Act that marriage should be conducted before a Marriage Officer and shall be solemnized at the official house of the Marriage Officer in the presence of three witnesses with the open doors between the prescribed hours. According to Section 13(2) the parties may also choose to adopt solemnization of marriage in other forms as well provided it should be in the presence of the Marriage Officer and three witnesses and in any language understood by the parties. The language used in the process should be interpreted and understood by the Marriage Officer.
Certificate of marriage
After the declaration of marriage, a certificate of marriage is issued under Section 14 of the Act. The marriage officer shall enter a certificate that is specified in the third schedule in a Marriage Certificate Book that should be kept by the Marriage Officer for that purpose. The certificates shall be signed by the parties and the three witnesses. The marriage certificate is a piece of conclusive evidence that marriage has been conducted as per the rules and regulations stated in the Act. If the marriage is solemnised with formalities and duly signed then it is valid as per Section 15 which describes the validity of the marriages as it shall now be acceptable as per the law of the land.
Although the Foreign Marriage Act was formulated with the intent to create special provisions related to the marriage of Indian citizens with foreigners, it has some flaws as well. It is dependent on the provisions of other Acts. There are certainly major issues in the provisions of the Act that were reflected in certain cases as well that are referred to in the latter part of this article.
The major problem is that the Act is silent in the case of divorce, nullity, or any other remedies as these provisions are not specifically stated in the Act. However, these issues have been covered so far in the Special Marriage Act while the marriages are solemnized and registered under the provisions of the Foreign Marriage Act. The issue raised is that remedy or relief will be based on the Special Marriage Act and the rights of couples would be given under general matrimonial laws that are enforceable in the country in such marriage solemnized under Foreign Marriage Act. In the case of Neerja Saraph vs Jayant Saraph, (1994), the Hon’ble Supreme Court has issued this issue where the court stated that general rights are available.
The Act also fails to address the issue of Succession related to matrimonial relief. The parties for remedies can’t use any provisions related to joint family status, inheritance rights of parties to civil marriage, and the succession law applicable to parties and their children found specifically in the Special Marriage Act. If the marriage is solemnized under Foreign Marriage Act then the future descendants of the parties will have to approach the court under the law of succession applicable in general cases.
The penalties are only for citizens of India. The punishment in case of any crimes related to Domestic Violence or any other kind can apply to Indian citizens and it cannot be applied to foreign parties even if they are found guilty of such crimes.
Problems related to foreign marriage
Certain issues need to be discussed related to foreign marriages. The Non-residential Indians play a significant role in preserving the rich Indian culture, religions, traditions, and languages. In the recent few years, the Overseas Indian Marriages have seen a rapid increase of cases due to various issues.
The common incidents that are related to Overseas Indian marriage are increasing day by day. The increasing problems in overseas marriage are complex in nature as these also fall under the Private International Law and Law of the Foreign Land. The issues have been addressed in accordance with the 15th Report of Lok Sabha Secretariat that are as follows-
Abandonment of the wife for various reasons
In recent years, this has been a major problem as there has been an increase in the large number of cases where the Indian woman who marries an NRI man is abandoned in India. The first issue discussed in the Report. The husband doesn’t show care as he never calls or writes as well as never returns to his wife. The girl becomes helpless if somehow she manages to reach her husband’s residential city but no one comes to receive thus leaving her at the mercy of total strangers in a foreign land.
This is the second issue addressed in the Report. There has been an increase in the cases of violence both physically and mentally, malnourished, confined, and ill-treated by husbands in several ways. She is compelled to move to her own home along with her children.
Instances of the NRI husband found to be already married
The third issue is that after the marriage when a woman starts to live with her husband in a foreign country she gets to know that her husband has already married a person of her desire but then also he marries again due to family pressure. The woman faces trouble as well as mental trauma due to this issue as her husband is already married as per the laws existing in that foreign country. One such example is the case of Harmeeta Singh vs Rajat taneja 102 (2003) DLT 822 under which wife was deserted by her husband within 6 months of marriage as the husband was already married so the Indian court concluded that whatever be the case in the US Court in India he will be guilty of bigamy and also would be liable to face criminal action.
Continued demands for dowry, pre and post marriage
The fourth issue is related to dowry. Dowry is an old traditional custom under which the bride brings property or money to her husband on their marriage. The demands for dowry makes life vulnerable for women as are harassed by the husband who demands dowry either in cash or kind which creates a huge burden to the girl as well as her family. For example, if the male person marries the woman upon certain demands that are mandatory to be fulfilled then the woman faces the burden.
Lenient legal system abroad for grounds for divorce, etc
The fifth issue is that the NRI husband takes advantage of comparatively lenient laws in other countries as a woman is denied maintenance in India on the pretext that the marriage had been dissolved by the court in another country. There are no specially codified acts or laws to especially deal with such issues as it is governed by the other laws and acts.
There are various agencies such as the Ministry of Overseas Indian Affairs, Ministry of External Affairs, Ministry of Women and Child Development, National Commission for Women, etc which promote and protect the values and deal with the problem of NRI marriages.
Help offered by the Ministries and National Commission for Women
The organization is the coordinating agency at the national level for dealing with issues with foreign marriages. The organization deals with complaints and grievances related to NRI marriages. The body organises several Awareness Building Programme. Time and again the NCW takes various steps like awareness-building programmes in areas where such fraud marriages are very common by taking help and tying up with various NGOs working in the same field.
Awareness Building Programmes
The innocent women get trapped in fraudulent marriages with overseas Indians and the purpose is to create awareness on this issue and to reduce the problems related to NRI marriages. The various initiatives are taken by the government in order to improvise this issue. The initiative such as National Consultation and Workshop and Awareness Campaign.
- In 2006, the Ministry of Overseas Indian Affairs along with National Commission for Women organized and formulated two regional workshops in Chandigarh and Thiruvananthapuram with the objective to raise awareness.
- The National Commission for Women and Ministry of Overseas Indian Affairs jointly conducted a National Seminar on 15th February, 2011 on the issue related to NRI marriages.
- On the day of Pravasi Bhartiya Diwas several campaigns are done by the Ministry of Overseas Indian Affairs and women organizations where the various issues related to NRI marriages are discussed.
- The Ministry has introduced information and guidance pamphlets in several languages to make awareness among the women about their rights and responsibilities. The pamphlets also contain legal remedies and suggestions.
- The Ministry has also launched the publicity cum awareness campaign through audio visual entertainment on T.V in several regional languages.
Impact of this Act
The Foreign Marriage Act has eliminated the conditions of following personal acts or any other marriage laws. India is a diverse and secular country that has its own personal religious laws but this Act provides a common law marriage system for all as there are no limitations of laws to the territories of the country as it is applicable to the people who marry under foreign laws, provided one of them should have an Indian citizenship.
The foreign marriages have been duly acknowledged and accepted as per the law of the country. This has impacted the NRI as well as the people residing abroad and not only reduced the barriers of culture and other conditions but also created the mental ambiance for all those who want to marry as per their choice. When the Bill for this Act was brought in parliament in the year 1963 as per the recommendations of the 23rd Report of the Law Commission of India after a thorough discussion and analysis it was concluded that there is a need for a recognition of such marriages of people living in foreign countries or with the people who are not Indians.
Chapter six of the Foreign Marriage Act explains the exclusive provisions for the recognition of foreign marriages. As per Section 23 of the Act, the marriages solemnized under foreign marriage laws in foreign countries will be valid and acceptable by the Indian Courts under the Official Gazette. The Official Gazette is issued by the Central Government if satisfied with provisions of the marriage laws enforced in the foreign country and the solemnization of marriage is similar to the Act enforced in the Foreign Marriage Act. There are different religions in India and many personal laws but there is no uniform civil code for marriages yet that can be applied over the country and so this law provides the convenience for the solemnization of foreign marriages.
Comparison with other Acts
There are several laws in our country governing marriage such as Hindu Marriage Act,1955, and Special Marriage Act, 1954. The basic difference between the Special Marriage Act and the Foreign Marriage Act is that the former Act is limited to marriages that are executed in the territory of the country while the latter Act is not limited to marriages in the territory of the country but it duly accepts the solemnization of foreign marriages.
The Special Marriage Act is made for those who want to have inter-caste or inter-religion marriage with their willingness while the Foreign Marriage Act is considered for those who want to marry abroad as per their willingness. The pre-condition for considering marriage to be legitimate is that one should have Indian citizenship while for Special Marriages Act both should be Indians. However, the matrimonial relief would be provided under the Special Marriage Act if the marriage is registered under the Foreign Marriage Act that has been explicitly mentioned in Section 18 (1) of Chapter four of the Foreign Marriage Act. Both Acts aim to widen the spectrum of the marriage conditions and to make the laws superior to the personal laws for promoting the individual’s right to choose and marry as per their own will.
The basic difference between the Hindu marriage laws and the foreign marriage laws is that the Hindu Marriage Act deals exclusively with the person who is a follower of the Hindu religion mentioned in Section 2 of the Act while there are no limitations of religion in the Foreign Marriage Act. A couple can marry under the Foreign Marriage Act irrespective of their religion. The laws of the Hindu Marriage Act can be applied when both parties have a domicile of India and they are marrying in the territory of the country while the Foreign Marriage Act laws will be applied to those when at least one of the people is of India or has Indian citizenship and they can marry in any foreign countries. There is usually no need for a Marriage Officer to validate a marriage under the Hindu Marriage Act as the priest performs the rituals in front of guests and family members while a Marriage Officer should be present to solemnize the marriage under this Act.
There are certain common grounds also under both the Acts such as, in both the Acts bigamy is not acceptable as there can be no second marriage in case of living spouse or divorce. Bigamy is also punishable under Sections 494 and Section 495 of the IPC(Indian Penal Code) which is common for both Acts. A marriage is considered void in the case of bigamy. Thus, these were the common points and some differences with the other marriage laws. However, it can be concluded that Foreign marriage is mostly based on the essence of the Special Marriage Act as most provisions of this Act are already included in the Foreign Marriage Act such as Section 18 of the Act.
The Foreign Marriage Act has played a significant role in reducing the conflict for the validity of a marriage based on foreign countries. This Act has undoubtedly provided a good platform for the legitimate recognition of marriages as per the laws of the country. It reduced the flaws regarding marriages of nations by providing exclusive points on foreign marriages. The best distinctive feature of this Act is that it covers the conditions irrespective of religion.
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