Court marriage
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Marriage as an institution forms a major part of the social fabric of the society. Among the primitive men, no concept such as marriage existed but with the emergence of the concept of property and ownership, the need to determine the paternity of the child arose. This led to the abandonment of promiscuous sex life and the emergence of the institution of marriage. Thus, the emergence of marriage is associated with the need to determine various rights such as the right to inherit property. Even marriage as it exists today is not only the union of a man and a woman but a seed from which numerous rights stem out such as conjugal rights, maintenance rights, succession rights, etc. If a marriage is held to be invalid or void then neither of the parties is entitled to any of such rights. Therefore, the validity of a marriage is of immense importance and this gives rise to the important issue of the legal precautions one should take before marrying in a temple.

  • Marrying in a temple has always been one way to get into this union. A temple marriage is equally valid if the requirements of the law are fulfilled.
  • Though, the procedures of marriage have been known to almost all people and most Hindu families perform the necessary rites and ceremonies, the need arises to understand the legal precautions one must take before marrying in a temple.
  • This is because there is a rise in the number of love marriages and a consequential increase in the number of temple marriages.
  • The problem is not in the performance of marriage but in its legal standing when the validity of the marriage is called into question later.
  • This becomes important to address all the more because the young generation is oblivious to these necessary requirements and often end up in a problematic situation.

Laws governing the performance of marriage

Marriage is governed by various personal laws such as the Hindu Marriage Act, 1955, the Indian Christian Marriage Act, 1872, etc. An individual has an option to either marry under their personal law or to marry under the civil law i.e., the Special Marriage Act, 1954. Similarly, the marriage can be registered either under the personal law or the Special Marriage Act, 1954. Marriage acquires validity from the legal provisions of the law under which the marriage has been performed. For instance, if both the parties are Hindu and have performed a marriage under the Hindu law, it is to be determined whether the legal requirements under the Hindu Marriage Act, 1955 have been fulfilled. If the necessary requirements are not fulfilled, then the marriage is held to be void and consequently, has no legal standing.

Thus, the first and the most important thing to determine before getting married is that which law applies to both the parties. As the temple marriages mostly include marriage between two Hindus or between a Hindu and a non-Hindu, therefore we will look into the detail requirements under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

Legal Requirements under the Hindu Marriage Act, 1955

Application of Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955 applies only to Hindus i.e. both parties need to fall under the definition of ‘Hindu’ given under Section 2 of the Act. According to this section, the Act applies to:

  • A person who is a Hindu by religion i.e. a Hindu, Buddhist, Sikh or Jain.
  • This includes such a person who has converted or reconverted into any of the above religions.
  • This also includes a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.[1]
  • A person who has been born to parents who are both Hindus or if either of them is a Hindu, then the child has been brought up as a Hindu.

It is not always easy to determine if a person falls in the above categories. Therefore, there is a negative definition too according to which the Hindu Law applies to:

  • A person who is not a Christian, Jew, Muslim or Parsi.

It is important to determine this because if a temple marriage is performed by a Hindu and a non-Hindu, then the marriage has no validity under the Hindu Law even if all the other requirements are fulfilled. Therefore, for a marriage between a Hindu and a non-Hindu to be valid, it has to be performed under the Special Marriage Act, 1954 which shall be discussed in the later part of this article.

Conditions for a Hindu Marriage

There are certain other conditions which need to be fulfilled according to Section 5 of the Act. These are:

  • Neither of the parties should have a spouse living at the time of marriage, otherwise, the marriage would fall under bigamous marriage.
  • Both the parties should be of sound mind.
  • The bride should be above 18 years and the bridegroom should be above 21 years.
  • The parties should not fall under the Sapinda relationships or the prohibited degree of relationships, as defined under the Act.

If these prerequisites are not fulfilled, the validity of the marriage is affected. However, these conditions are not peculiar to a temple marriage only and need to be fulfilled irrespective of the fact that whether the marriage is performed in a temple or elsewhere.

Shastric Ceremonies and Customary rites

The Hindu Law has its origin in the Smritis and the Shrutis and therefore, it is ordained to be a divine law. Consequently, the performance of Hindu marriage is also considered to be a sacred and divine process. Thus, the performance of ceremonies becomes very important for the validity of the marriage under Hindu Law, as per Section 7 of the Act.

The validity of the marriage can be ensured in two ways i.e. by performing shastric ceremonies and rites which are laid down in the Griya Sutras[2] or by performing customary ceremonies prevalent in the community of either party or both the parties. A Hindu marrying another Hindu can perform valid marriage by performing either of the two. However, the important thing to note here is that the shastric ceremonies or the customary ceremonies, whichever is performed, must be prevalent in the caste or community of either of the parties.

Kanyadana, Panigrahan, Vivahahoma, and Saptapadi are the four main shastric ceremonies.[3] Of these four, Saptapadi has been given statutory recognition under Section 7 of the Act. Thus, the performance of these ceremonies and rites become essential for the validity of the marriage.

However, in certain cases, these ceremonial rites may not be performed and still, the marriage can be valid. These are when the customary practices of either side allow performance of marriage in some other way. It is indisputable that for claiming a practice to be customary practice, certain requirements need to be fulfilled. It has been established that it should be ancient and the members of the caste, community or sub-caste have recognized such ceremony as obligatory.[4] Examples of customary ceremonies and rites are discussed in the subsequent listed points below.

  • It has been recognized that among the Santhals smearing of vermilion by the bridegroom on the forehead of the bride is the only essential ceremony.[5]
  • The only essential ceremony among the Nayahans of South India is tying of vadu veeta thali around the neck of the bride.[6]
  • Among the Jats, the customary practice of chadar andazi[7] is prevalent wherein a person can marry his brother’s wife by placing a chadar on her forehead.
  • The Buddhists can get married only by mutual consent on no performance of the ceremony.[8]
  • A peculiar practice can be seen among the lower caste Hindus, i.e. only living together as husband and wife with an intention to live as such results in a valid marriage. This is commonly referred to as Karewa marriage.[9]

Thus, the main precautions that have to be taken even in a temple marriage are that both the parties must ensure that the Hindu Law applies to them, that the conditions of Hindu marriage are fulfilled and that they perform either shastric ceremonies or customary ceremonies in order to get their marriage valid in the eyes of law. Even if various rites and ceremonies would have been performed by the parties but if those are not the ones prevalent in the caste or community of either of the sides, the marriage will still not be valid. Therefore, the performance of a Sikh ceremony in a marriage between a Jain and a Buddhist will not lead to a valid marriage.

Arya Samaj Marriages

One common practice is to get married in an Arya-Samaj temple. The statutory definition of a person who is Hindu by religion includes its forms and developments which includes followers of Arya Samaj.[10] The steps in such a marriage have been discussed below.

  • Taking photographs of the performance of the marriage. Such photographs act as an important document of evidence of the marriage.
  • The signing of an affidavit by both the parties saying that:
    • The parties are marrying under the Hindu riti-rivaz (customs and traditions).
    • The parties are both Hindus and if either or both are not, that they have ‘converted’ to Hinduism through the shudhi ceremony and have taken Hindu names.
    • The bride is above 18 years and the bridegroom is above 21 years; and
    • Both the parties have left the home of their own free will, and that they have taken nothing from their homes except the clothes they are wearing.[11]
  • Attesting of the affidavits by the sub-divisional magistrate.
  • Issuing of the certificate by the temple which also includes an entry into a register maintained by the temple for the purpose of the marriage.
  • Further, the certificate along with the photographs is used to get the marriage registered under the Special Marriage Act, 1954.

It is noteworthy that Arya Samaj temples across India provide a platform to get married in this way.[12]

Legal Precautions under the Special Marriage Act, 1954 (Court Marriage)

Under the Special Marriage Act, 1954 two types of provisions can be found.

  • The parties can get married under the Act, or
  • The parties can get their marriage registered under the Act even if the marriage was solemnized in some other way not provided in the Act.

The former is called ‘Court Marriage’ in common parlance. There are certain requirements and procedures that need to be followed to perform a marriage under this Act which includes giving notice of the intended marriage to the Marriage Officer, etc. Now, the marriage performed under the Special Marriage Act can be clubbed with temple marriage. That is to say, the parties are free to solemnize their marriage in any form[13] which may include marrying in a temple. However, in this case, the sole requirement is that the procedures under the Act must be followed, irrespective of the fact that the ceremonial rites are performed or not. Thus, even exchange of garlands along with all the procedures under the Act will lead to a valid marriage under the Special Marriage Act, 1954.

5 precautions one must take before marrying in a temple

  1. Marry in a temple which is authorized to conduct marriages legally

  • All the temples are equally authorized to conduct a marriage. However, marrying in a temple which does not maintain registers and issue authorized certificates of marriage will make the marriage questionable because later there will be no admissible proof that the marriage was actually solemnized. On the other hand, if the temple does not issue a marriage certificate, then a hand-written and duly signed certificate from the priest/pundit about his performing the Hindu marriage between the named parties who are Hindu by religion according to Hindu rites and ceremonies applicable to them is a sufficient proof.
  • As already talked about, the Arya Samaj temple across India conducts the marriage ceremony. However, one must also make sure whether such temple is barred from conducting performance of marriage. The Delhi High Court barred five Arya Samaj temples in Jamuna Bazaar. This came after the Delhi Government brought the issue in the light that none of these temples have any rules, regulations or guidelines to verify the age of the parties nor do they have any records of the marriages performed. Post this the Delhi Government came out with certain draft rules with respect to such marriages.
  • Recently, some of the cities like Ranchi and Mangaluru has made the performance of marriage in temple impossible without the authorization of parents. The requirement of presence of parents or acquiring a letter of requisition by parents of both the parties has been made mandatory in these cities respectively. Further, these temples have made it compulsory for the parties to produce certain legal documents such as identity proof, age proof, etc. This has also to be kept in mind before planning to marry in a temple.

2. Verify which law is applicable to both the parties

This may not appear to be an important precaution in the face of it. But, if a Hindu and a non- Hindu gets married in a temple and have fulfilled all the requirements, yet their marriage will not be valid under the Hindu Marriage Act, 1955. Therefore, in a case where a Roman Catholic married a Hindu girl in a temple, the marriage was held to be void by the Andhra Pradesh High Court and upheld by the Supreme Court .[14] This is the major reason why Arya Samaj temples conduct conversion of the non-Hindu party by the process of ‘shudhi’ and issue certificate of conversion prior to performance of the marriage.

3. Ensure that the performance of marriage is done in presence of relatives or friends

This will make sure that the requirement of witnesses for the purpose of registration is fulfilled. The persons acting as witnesses must be of sound mind and must have attained the age of majority.

4. Get the ceremonies photographed

Photographs are essential to make certain that the marriage was performed between the said parties and was performed duly i.e. all the ceremonies were properly performed. This is also an important document which is required at the time of registration of the marriage.

5. Apply for registration

The registration of marriage is provided under Section 8 of the Hindu Marriage Act, 1955 and Section 15 of the Special Marriage Act, 1954. Earlier, the legal position was that the registration of marriage was not mandatory. However, after the guidelines of the Supreme Court[15], it is mandatory to get the marriage registered as per proper procedures. The marriage can be registered under any of these Acts.

Conclusion

The marriage performed in a temple is valid in the eyes of laws. The precautions that need to be taken so that its validity is not affected can be summed up as follows:

  • The law under which both the parties fall must be determined.
  • The conditions given under the law must be fulfilled.
  • The ceremonies must be performed, if it is a Hindu marriage.
  • The temple must issue an authorized certificate of marriage or alternatively, a duly signed document to act as an evidence of solemnization of the marriage.
  • The photographs must be taken so that there is documentary evidence of the marriage.
  • The marriage should be performed in the presence of witnesses, who have attained the age of majority and are of sound mind.
  • The marriage should be registered by following the required procedures.

 

[1] The Hindu Marriage Act, 1955, No. XXV, Acts of Parliament, 1955.

[2] Dr. Paras Diwan, Modern Hindu Law 87 (23rd ed. 2016).

[3] Dr. Paras Diwan, Modern Hindu Law 89 (23rd ed. 2016).

[4] Rabindra Nath v. State, 1969 Cal 58.

[5] Dhuma v. E., 1943 Pat 109.

[6] Tirumalai v. Ethirajamah, (1946) 1 MLJ 438.

[7] Sohan Singh v. Kabal Singh, 1928 Lah 706.

[8] Mi Me v. Shwe, (1912) 39 Cal 492.

[9] Charan Singh v. Gurdial Singh, 1961 Punj 310 (FB).

[10]The Hindu Marriage Act, 1955, No. XXV, Acts of Parliament, 1955.

[11] Parveez Mody, Love and the Law: Love-Marriage in Delhi, 36 Modern Asian Studies 223, 245 (2002).

[12] Id.

[13] Dr. Paras Diwan, Family Law 55 (10th ed. 2013).

[14] J. Venkatesan, Marriage void under Hindu Law if spouse misrepresents religion, The Hindu, (Dec. 07, 2008, 12:00 AM), https://www.thehindu.com/todays-paper/tp-national/Marriage-void-under-Hindu-law-if-spouse-misrepresents-religion/article15356412.ece

[15] Seema v. Ashwani Kumar, AIR 2006 SC 1158.

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