Marriage
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This article is authored by Dhawal Srivastava, from the Rajiv Gandhi National University of Law, Punjab, and modified by Abanti Bose, from Amity University Kolkata, India. In this article, an exhaustive analysis of the current laws governing the solemnization and registration of marriages in India along with the need for laws for keeping pace with changing times has been made. 

Introduction

Marriages are considered to be a universal social institution and an integral part of mankind. With the advent of civilisation, it has been observed that the state has regulated all aspects of human lives and marriage is no exception. In India, there is no single legal framework governing the institution of marriage, specifically with the intent of upholding the tenets of religious freedom and safeguarding the fundamental practices of various faiths and beliefs that constitute the country. The legitimation of the nuptial bond of two people happens only after attaining sanction from the existing laws prevailing in the country, which in general parlance are referred to as matrimonial or marriage laws. A unique feature of the existing matrimonial law in India is its vibrancy and diversity in consonance with the country’s heterogeneous population. 

Classification of marriage laws on a religious basis

The policy of application of personal laws in marriages was essentially introduced by the first Governor-General of British India,  Warren Hastings, in the year 1772, which was then pursued by the British colonials throughout their rule in India. Even after the independence of the country, the Government of India decided to continue with the same legal stance on marriages, making their intention clear of not interfering with the religious sentiments of the people. Described by M.P. Jain as “communal pieces of legislation”, marriage laws can be classified under the following headings on the basis of religion.

Hindu marriage laws

According to Graha Sutra, Vivaha or marriage is considered to be the most important of the sixteen samskaras (socio-religious rites within the Hindu belief system). It is considered to be a sacrament, a union of two personalities for the protection and maintenance of the society, by practising self-restraint, reciprocal cooperation, and self-sacrifice. According to the Vedas, marriage is also considered to be a religious duty of a Hindu. 

The matrimony of a Hindu couple is governed by the Hindu Marriage Act, 1955 which deals with the registration of the marriage (after its solemnization) of a man and woman belonging to Hindu, Sikh, Buddhist, or Jain community or having proselytize themselves to either of these religions. The inclusion of the other three religions within the ambit of the term ‘Hindu’ is in pursuance of the definition of the term under Article 25(2)(b) of the Indian Constitution.

The important aspects of the Hindu Marriage Act (hereafter, the Act) have been enlisted below:

    • The Preamble to the Act per se indicates that the enforcement of this law was solely in correlation to the marriages of Hindus. This is further reinforced by Section 2 of the Act.  Moreover, certain conditions have been stipulated under Section 5 of the Act for the legitimation of a Hindu marriage which is obligatory to be followed, as held by the Supreme Court in Gullipilli Sowria Raj v. Bandaru Pavani wherein the marriage of a practising Hindu man with a Catholic woman, despite having been conducted in accordance with the Hindu customs, was deemed void.
    • The conditions laid down under section 5 of the Act are as follows:
      • There should not be an already existing spouse (of either of the parties) alive at the time of formalization of the marriage.
      • No party is incapacitated to give consent to their marriage due to unsound mind.
      • Despite the capability of giving consent to marriage, neither of the parties suffer from any mental disorder to a limit that may make it difficult for them to bear children. In R. Lakshmi Narayan v. Santhi, it was held by the Supreme Court that in order to hold a woman as incapable of marrying due to any mental illness, it is necessary to prove that such an ailment incapacitates her from leading a normal married life.
      • Neither of the parties has been a victim of repeated insanity attacks or epilepsy.
      • The legal age permitting marriage between a man and wife are being met; 21 for men, 18 for women.
      • The parties should not be a part of a prohibited relationship, defined under Section 5(4) of the Act. A marriage falling under either of these relationships shall be deemed void:
        • Existence of lineal ascendancy of one party to another.
        • One party has been a spouse of either the lineal ascendant or descendant of the other.
        • The wife was initially a spouse of the brother, father, mother’s brother, grandfather, or grandfather’s brother of the prospective husband.
        • Incestuous relationships, like brother-sister, aunt-nephew, uncle-niece, wards of the brother and sister or of two brothers and two sisters.
      • However, an exception to the aforementioned conditions lies in the importance given to customs in the personal law. If a custom permits or warrants either of these, they shall be pursued and be deemed legally legitimate. 
    • Penalty: Section 18(b) of the Act provides for the penalisation in case a married couple is found to be guilty of practising a prohibited relationship. They are either supposed to pay 10,000 rupees as fine or endure simple imprisonment of one month or both, as the Court deems correct.
    • Importance of Ceremonies, particularly ‘saptapadi’: The solemnization of a Hindu marriage happens in accordance with the rites and ceremonies practised by the parties as per Section 7 of the Act. In Reema Aggarwal v. Anupam, the apex court held that these ceremonies are necessitated to be proved. An essential rite is that of saptapadi or a round of seven steps by the couple around the sacred fire, wherein the last step marks the completion of the ceremony and thus the binding authority of the marriage. In Santi Deb Berma v. Kanchan Prava Devi (Smt.), the Supreme Court overturned the judgement of the High Court and ruled that saptapadi is an essential ceremony of a Hindu marriage, and the absence of adequate evidence to prove the performance of the same makes the second marriage undertaken by the respondent in this case as not legally valid under the Act of 1955.
    • Forms of Marriages: The Act does not recognize any forms of Hindu marriages. According to Shastric texts, there are a total of eight forms of marriages, namely the Asura (where the bride is sold off by the father), Gandharva (love marriage, based on sensual desires), and Brahma (where the bride is given as a gift by the father), Daiva (wherein the suitor was an official priest), Arsha (where the groom presented a cow and bull or two cows and two bulls as gift(s) to the bride’s father for religious purposes), Prajapatya (marriage in order to repay the debts or obligations to the Prajapati for reproductive purposes), Rakshasa (forced marriage with someone kidnapped or held captive) and Paisacha (lowest form, where the damsel is made love with when she is not in her senses). Out of these, only Brahma, Daiva, Arsha, and Prajapatya forms are valid under ancient laws. However, the Hindu Marriage Act does not provide for any form of marriage and just lays down conditions for a legally valid marriage.
  • Registration under the Act: In Smt. Seema v. Ashwani Kumar, the Supreme Court of India mandated the compulsory registration of marriages in the country and directed the government to ensure the same. Registration under the Act provides for the documentation by the Registrar of only those marriages that have been solemnised already in accordance with the law and adequate religious ceremonies. After the verification procedure of all the requisite documents of the parties has been done, they are given a fixed date for the registration. The parties, in the presence of a Gazetted officer who attended the ceremony, are obligated to be present before a Magistrate of the Sub-Divisional level. After the satisfaction of the magistrate and meeting of all the required procedures, the marriage is registered and the certificate granted without any further delay.

Muslim marriage laws

  • There is no codified law for governing Muslim marriages in India: The main difference that lies between Hindu and Islamic perception about marriages is that the former believes the institution to be a sacrament while the latter believes that it a civil contract (nikahnama) between a Muslim man and woman. 
  • The fundamental essentials required to be met for a valid Muslim marriage are:
      • Existence of capacity to marry individuals.
      • The necessary presence of a proposal (ijab) and the subsequent acceptance (qubool) as it is a contractual relationship.
      • Presence of free consent of both the parties involved in the agreement.
      • A consideration (Mehr) for the completion of the contract.
      • There should not be any necessary legal obstructions for the culmination of the marriage.
      • It is important for witnesses to be present to look over the contractual affair. The number of witnesses differs according to the accepted belief system of both the Sunni and Shia Muslims.
  • The validity of marriages: Muslim marriages can be classified as sahih or valid marriages, batil or void marriages, and fasid or irregular marriages. Marriages are irregular when errors like the absence of an adequate amount of witnesses, marriage with women during the Iddat period, a difference of religion to name a few. Marriage of a man with his two sisters shall also be counted as a condition making the marriage irregular, as held by the Supreme Court in Chand Patel v. Bismillah Begum.
  • Muta marriages: Another category of marriages in Islamic law is muta marriages, which are short-time and pleasure-driven relationships that end at the expiration of the decided time, which can be either a day, a month, or year. There is no bar on the stipulated time. However, Sunni Muslims do not believe in muta marriages, and the concept is mostly endorsed by Shia Muslims.
  • Registration of Muslim Marriages: In India, for the registration of Muslim marriages, which are treated as civil contracts, the law that governs the process is the Muslim Marriages Registration Act, 1981. It is compulsory to get the registration of a Muslim marriage done in the country. Section 3 of this Act provisions for the registration of Muslim marriages after the completion of a month or thirty days post the culmination of the Nikah ceremony. The legal contract of marriage, signed by the bride and bridegroom along with the witnesses present, that legitimises the marriage is called Nikahnama, which incorporates all the requisite conditions of the relationship.
  • Inter-faith marriages: It is prohibited for Muslims to marry outside their religion. However, under the principles of Shariat, the marriage between a Muslim man and non-Muslim woman from non-kitabbiya religions (or those religions which do not follow or abide by a single religious text or idol/fire-worshippers) is not void but irregular and can be validated by conversion of the woman to Islam or other Abrahamic religions (Christian or Jewish). 

Children borne out of a Muslim father and Hindu mother (fasid marriage) are held by the Supreme Court to be legitimate and thus legally vested with the right to inherit the property of their father in Mohammad Salim v. Shamsudeen. The Supreme Court also upheld the rights of consenting adults to marry out of their free will in the famous Hadiya Case or Shafin Jahan v. Ashokan K.M. overturning the Kerala High Court’s judgement which held that Hadiya was forced to convert to Islam.

Sikh marriage laws

  • While Sikhs are counted as ‘Hindus’ constitutionally, there was always a demand raising from within many voices of the community for separate marriage legislation exclusive for Sikhs. These demands were also a consequence of the harassment that many Sikh couples faced abroad over their marriage certificate under the ‘Hindu’ Marriage Act, 1955. 
  • In Birendra Kaur v. Union of India, the appellant filed public interest litigation in the Punjab and Haryana High Court asking for a change of name from ‘Hindu’ to some secular name of the four Hindu codes, including the Hindu Marriage Act, as it also included members from three other communities. 
  • After getting dismissed in the High Court, the petitioner appealed in the Supreme Court in 2012 further demanding a justification for the applicability of Hindu marriage laws on Sikhs. In response, the apex court questioned the Indian government whether they could call the Acts as “Buddhist marriage act” and apply it to the remaining religions.
  • The Manmohan Singh-led UPA-II regime, thus, in 2012 successfully passed the Anand Marriage (Amendment) Bill and got an assent on the same by the then President of India, Smt. Pratibha Patil. 
  • As a result, Sikhs got the legal right to register their marriage under this Act, which is a reflection of the colonial era, 1909’s The Anand Marriage Act introduced by the British to give legal validity to the ceremonious “Anand Karaj” wedding of Sikhs. The 1909 law did not provide for any registration clauses within its framework, an error rectified by the Act of 2012.
  • With regards to the essential ceremonies of the Sikh marriages, it was reiterated by the Supreme Court in Kanwal Ram and Ors. v. Himachal Pradesh Administration the position of the Punjab and Haryana High Court’s in Resham Singh v. Kartar Singh wherein the court upheld the four Lavans by the groom, followed by the bride, around the Holy Guru Granth Sahib in the presence of the chanting of the hymns composed by the fourth Guru of Sikhism, Guru Ram Dass as essential practices commemorating the Anand Karaj.
  • Registration under the Anand Marriage Act: ‘Anand Karaj’, literally meaning ‘blissful event’ is the traditional matrimonial ceremony of the Sikhs. So far, Haryana in 2014 notified the rules of registration of marriage. Tehsildars for village areas while Joint Commissioner, Executive Commissioner and Secretary of Municipal Corporations were appointed to dispense the duties in cities. In Haryana, a memorandum is to be presented by the parties along with written proofs with a fee of rupees 50. This has to be done within the completion of 30 days from after the ceremony takes place. Under the rules in Delhi, the fee for the same is rupees 500. 
  • Further, the Act has also been notified in Andaman and Nicobar islands apart from Delhi, Haryana, and Punjab.

Christian Marriage Laws

  • Christians are the second-largest religious minority community after Muslims in India. The marriage of Christian couples is governed by the Indian Christian Marriage Act, 1872 which stipulates the primary condition of the presence of a priest of the Church or minister for the solemnization of the wedding.
  • Section 4 of the Christian Marriage Act, 1872 (hereafter, the Act) provides for the conduction of Christian weddings under its provisions. By virtue of this Section, besides the marriage ceremony between a Christian and another Christian, the Act also legitimises a knot between a Christian and Non-Chrisitan provided it is solemnised under its provisions. In Subhashchandra Ishudas Parmar v. State of Gujarat, the learned High Court of Gujarat reinstated that a non-Christian marrying a Christian partner need not undergo proselytisation. 
  • Age of the bride and groom: The age of the bride and groom, just like other marriage laws, has been set as eighteen and twenty-one respectively within the Act. A proper consent of the marrying man and woman should be taken. Moreover, either of them should not be having an existing and living spouse at the time of the wedding. 
  • Notice for the planned marriage: stipulates the notification by either of the parties (provided they are residing within the same territorial limits) to the Minister of Religion regarding their intention of getting married as per the provisions of the Christian Marriage Act. In cases where they do not reside in the same areas, separate notices have to be sent to the respective district Marriage Registrars authorized in their areas about their intention of marriage. It is the responsibility of the Minister to issue certificates for solemnising the marriage post receiving the notices.
  • In case one of the intending parties is minor, Section 15 provides for the Minister to return the notice within 24 hours or otherwise, forward it to the Senior Marriage Registrar or the District Marriage Registrar. The notice has to be returned within 24 hours under the provisions of section 13 of the Act.
  • Section 5 of the Act prescribes a list of people who are competent or eligible to conduct the marriage valid under the Indian Christian Marriage Act. If the wedding is solemnised by anyone other than the mentioned people, that marriage shall have no legal standing and be deemed void. These are as follows:
    • Provided the marriage is to be executed following the ceremonies, rules, rituals, and customs of the Church of Scotland, a Clergyman from the Church of Scotland is required to solemnise the marriage.
    • A Minister of Religion who is listed and sanctioned under this Act for the purpose.
    • A Marriage Registrar should either conduct or be a witness of the marriage ceremony of the couple.
    • A legally licensed person under the provisions of the Indian Christian Marriage Act to grant marriage certificates to Indian Christians.
  • The performance of the Christian marriage: The performance of the Christian marriage takes place between the parties in accordance with the customs and rituals authorized or deemed fit by the Priest or the Minister of Church. However, it is mandatory to have two witnesses other than the Church’s Priest or the Minister to be present in the ceremony.

Provided that the marriage fails to take place within sixty days of the issuance of the notice by the Minister of Religion, the marriage cannot be conducted until and unless a fresh application for the notice required for solemnization of marriage has been duly made.

  • Registration of Christian Marriages under the Act: Part IV of the Indian Christian Marriage Act, 1872 underlines the provisions providing for the marriage registration of a Christian Couple and thus providing their bond a legal validity. Individual registration of marriage by the parties in their respective area or territorial jurisdictions are to be made to the concerned authorities. The Registrar, who was present in the marriage and/or also conducted the same, shall register it in the Marriage Register. An acknowledgement slip is annexed to the Register as proof of the culmination of the marriage with the signatures of the two witnesses and the parties who have got married. Towards the completion of thirty days, the copies of these acknowledgement slips are sent to the Registrar General of Births, Deaths, and Marriages.
  • There also exists a special provision under which the Indian Christian marriage can be sanctified even without any prior notice. 

Parsi marriage laws

  • Parsis are members of a religious minority community that follow the tenets of Zoroastrianism. Their marriages are regulated by the Parsi Marriage and Divorce Act of 1936. 
  • The registration of Parsi Marriages takes place in the Registrar’s office that falls within the jurisdiction of their territorial limits.
  • Section 3 of the Parsi Marriage and Divorce Act, 1936 (hereafter the Act) lays down the conditions essential for having a legally valid Parsi matrimony. These have been listed below:
    • If there is a certain level of “consanguinity” or closeness in blood relation between the prospective couple or parties, that marriage will not be held valid under the Act.
    • If the kind of relationship shared between the parties is one of those catalogued in Schedule I of the Act, the validity of that marriage will not stand.
    • The marriage needs to be solemnized by the Parsi priest in the presence of two witnesses from the community and in accordance with the essential ceremony of ‘Ashirwad’, else it will be invalid. 
    • A Parsi (or an ex-Parsi or one who has altered his domicile) man should be twenty-one years old while the Parsi woman should be eighteen years of age for the validity of the marriage.
  • A wedding under the Parsi Law is considered to be unlawful under the following circumstances, which have been laid down under section 4 of the Act. Essentially, no Parsi, whether anymore a follower of the religion or someone who has changed his domicile, can remarry during the lifetime of their spouse unless separated (under the provisions of the Act) through a divorce, declaration, or dissolution or has been lawfully annulled.
  • The newly wedded couple, along with three witnesses, are obligated to put their signatures in order to have the issuance of the marriage certificate done.
  • For the purpose of the registration, the marriage certificate is supposed to be duly sent to the Marriage Officer with a prescribed fee.
  • Section 53 of the Parsi Marriage and Divorce Act, just like the Hindu Marriage Act, initially stipulated certain relationships as that of a ‘prohibited’ nature. Marriages between people sharing such a relationship were deemed invalid. This section has been repealed now.

The Special Marriage Act: a secular matrimonial law

The Special Marriage Act, 1954 unlike its communal counterparts discussed above, applies to Hindus, Muslims, Sikhs, Christians, Jains, Buddhists, and Parsis. In fact, this Act is a regulatory law governing both inter-caste and inter-religious marriages in India. The Special Marriage Act (hereafter, the Act) incorporates provisions for both the solemnisation as well as registration of marriage between two consenting adults.

  • Section 4 of the Act, which is analogous to Section 5 of the Hindu Marriage Act, 1955 provides for certain conditions that are necessary to be met in order to deem a marriage to be legally valid. These have been discussed below: 
    • Section 4(a) provides for the non-existence of a living spouse during the conduction of the new marriage
    • Section 4(b) lays down certain conditions of mental and physical capacities that are necessary to be met for the validity of the marriage.
    • Section 4(c) limits men below the age of twenty-one and women below the age of eighteen years to be legally marriageable.
    • Section 4(d) prohibits nuptials between people in a prohibited relationship unless permitted by their customs.

A contravention of either of these conditions will lead to a consequent annulment of the marriage. The Special Marriage Act is rightfully an alternative to the other personal laws governing marriage in India as an interfaith couple, who otherwise cannot have a legitimate status of their relationship within their personal laws can seek the refuge of this Act and be deemed legally wedded husband and wife.

  • Registration under the Special Marriage Act: The following procedure has to be followed for the registration of marriages solemnised under this Act:
    • The initiation of the registration process begins after a month’s notice has been given to the sub-registrar of that territorial jurisdiction where either of the parties has resided or lived. The notice is given before the submission of the required documents.
    • The parties are required to be present for the issuing of the public notice invitations after all the required documents have been duly submitted. A copy of the notice is then stuck in the office while two other copies are delivered to each party individually.
    • The registration is done post the completion of the 30 days time period since the date of the issuance of notice. This is done provided the resolution of all the possible objections raised by the Sub-District Magistrate. 
    • Both the parties, along with three other witnesses, are supposed to be present in person on the fixed date of the marriage registration.
  • Special Marriage Act, 1954 is also applicable in cases where an Indian marries a foreigner in India (in case of marriage outside the country, instead of the Special Marriage Act, the Foreign Marriage Act, 1969 is applicable). Such marriages are civil in nature. Both parties should be mentally stable and competent to marry each other. The only difference from the Special Marriage Act’s provisions when both the parties are Indians is that a No-Impediment Certificate (or NOC) from the requisite embassy and a valid VISA.

Matrimonial Rights for LGBTQIA+ in India: Need of the hour

In Navtej Singh Johar v. Union of India, members of the LGBTQIA+ community also referred to as the community of sexual minorities in India, were given the rights to enjoy same-sex or non-heterosexual relationships by the decriminalisation of section 377 of the Indian Penal Code, which criminalised consensual non-penal-vaginal intercourse between consenting adults, deeming them as ‘unnatural’. This also made it illegal for the LGBTQ+ community to engage in carnal intercourse. The Court held that laws that interfered with something as natural and innate as the sexual orientation of any person are violative of the fundamental and constitutional rights of that individual.

However, as rightly pointed out by the leading counsel of the Navtej Johar case, Menaka Guruswamy, “India is a marriage country” and mere legalisation of identity is incomplete unless basic civil rights like those of marrying and registering of their marriage by the LGBTQ+ couples are granted to them. For the same, the “Marriage Project” has been started by the community and activists to demand the marriage rights of queer Indians. 

An appeal in the Kerala High Court by a married gay couple has been filed demanding for legal legitimacy of their marriage and the court has notified the Central as well as the State government on the same. The matter is still under consideration. 

Besides judicial decisions, the issue such as legalization of same-sex marriages demands a political will. Thus, the role of the legislature and the executive becomes important as the inclusion of such marriages will call for a revamp in the existing marriage laws, and rightfully so. 

Conclusion

It is thus obvious that the legal framework of the country serves the interests of all the concerned religious communities that are an intrinsic part of India. Solemnization and registration are the legally regulated aspects of marriage, whether they be of couples belonging to any religion. However, the upgradation of the laws is needed to make them more inclusive and to keep pace with the changing times. The inclusion of sexual minorities within the institutional legal legitimacy of marriages is the next step that is being worked upon assiduously by the members, lawyers, and activists of the civil society. The demands for a Uniform Civil Code are continuously ringing, which if introduced, shall be a revolutionary towards having a single and rational-legal system for governing various facets of human lives, including marriage, and will be a step towards doing away with different, complex personal laws of various religions.

References


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