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MARRIAGE LAWS IN INDIA: AN ANALYSIS OF LEGAL SOLEMNIZATION OF MARRIAGES
MARRIAGE LAWS IN INDIA: AN ANALYSIS OF LEGAL SOLEMNIZATION OF MARRIAGES
registermarriage
February 1, 2022
8:16 am

Marriages are considered to be a universal social institution and an integral part of mankind.

Introduction

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. Described by M.P. Jain as “communal pieces of legislation”, marriage laws can be classified under the following headings based on 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). 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.


  • The conditions laid down under section 5 of the Act are as follows:
    • No party is incapacitated to give consent to their marriage due to unsound mind.
    • . 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 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 marriage. https://registermarriage.org/

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 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 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). 

Ashokan K.M. overturning the Kerala High Court’s judgment which held that Hadiya was forced to convert to Islam.

Sikh marriage laws

Christian 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.
  • Christians are the second-largest religious minority community after Muslims in India.
  • Section 4 of the Christian Marriage Act, 1872 (hereafter, the Act) provides for the conduction of Christian weddings 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. 
  • 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. 
  • The notice has to be returned within 24 hours under the provisions of section 13 of the Act.
    • 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.
  • 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
    • 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.relationships as that of a ‘prohibited’ nature. Marriages between people sharing such a relationship were deemed invalid. This section has been repealed now.
  • 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.

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, issue such as the 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

  • Solemnization and registration are the legally regulated aspects of marriage, whether they be of couples belonging to any religion.



source: ipleaders

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