Marriages in India are a multi-layered and multi-coloured concept because of the religious and cultural diversity of the population of the country. A ‘legal marriage’ is one which has the sanction of the law in India, while such laws in turn are generally based on the religious customs, beliefs and traditions of the people. For a valid and legal marriage, it is important for the parties to solemnize and register their marriage to give effect to the conditions and essentials laid down by the laws and customs.
The article discusses the conditions, essentials, process and registration for valid Hindu, Muslim, Christian and Parsi marriages; special marriages; and foreign marriages.
Hindu, Buddhist, Jain and Sikh Marriages
Although Hinduism, Buddhism, Jainism and Sikhism are four different religions as recognized by their followers, the marriages of people following these faiths are governed by the same law – the Hindu Marriage Act, 1955 (the HMA).
What Constitutes a Valid Marriage under the Hindu Marriage Act?
Section 5 and Section 7 of the HMA provide for the essentials and conditions required for a marriage to be legally solemnized between two Hindus (Buddhists, Jains and Sikhs included).
1) The bridegroom must have completed the age of 21 years, while the bride must have completed the age of 18 years at the time of marriage.
2) Both the parties to the marriage:
a) Should not have a spouse living at the time of marriage.
b) Should not be of an unsound mind that would prevent them from giving valid consent to the marriage.
c) Should not be suffering from a mental disorder that prevents them from being fit for marriage and procreation of children.
d) Should not be subject to recurrent attacks of insanity or epilepsy.
e) Should not be within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.
f) Should not be sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Solemnization of Marriage and Importance of Ceremonies in Constituting a Valid Marriage
- There are no legally binding ceremonies to constitute a legally valid marriage under the HMA.
- According to Section 7 of the HMA, a marriage may be solemnized according to the customs, rites and ceremonies of either party to the marriage. Therefore, there are no set rules of rituals or ceremonies to be followed to give effect to a valid marriage; any ceremony or ceremonies which are followed by either the bride or the bridegroom or both, held with mutual agreement are sufficient to constitute a valid marriage.
- However, with respect to parties whose customs and ceremonies include the taking of seven steps by the bridegroom and the bride jointly before the fire (Saptapadi), the marriage becomes complete and binding when the seventh step is completed.
Sikh Marriages Under the Anand Marriage Act, 1909
People from the Sikh community can also get their marriages solemnizedand registered under the Anand Marriage Act, 1909 (the AMA).
Essentials for Validity of Marriage
- All marriages solemnized according to the Sikh marriage ceremony called Anand or Anand Karaj are deemed to be valid in law from the date of their marriage.
- Such marriages should not be within prohibited degrees of relationship because of consanguinity or affinity which would render the marriage void.
- Further, both the parties to the marriage:
- Should not have a spouse living at the time of marriage.
- Should not be of an unsound mind that would prevent them from giving valid consent to the marriage.
- Should not be suffering from a mental disorder that prevents them from being fit for marriage and procreation of children.
- Should not be subject to recurrent attacks of insanity or epilepsy.
- The bridegroom must have completed 21 years of age, while the bride must have completed 18 years of age.
Solemnization of Marriage and Importance of Ceremonies in Constituting a Valid Marriage
To constitute a valid legal Sikh marriage under the AMA, it is essential that the marriage is solemnized as per the Anand Karaj ceremony followed by the people from the Sikh community.
Muslim Marriages
Unlike Hindu marriages in India, Muslim marriages are not regulated by a codifiedmarriage law. The conditions, essentials, ceremonies, and nature of Muslim marriages is specified by Sharia law, which in turn is derived from Islamic texts such as the Quran and Hadith, and Fatwas (rulings) of Islamic scholars.
Muslim marriages can be of two kinds:
- Permanent marriages, and
- Temporary or Muta marriages
Valid Permanent Marriage
While, under the present law, there is a provision of dissolving any marriage through divorce, a permanent marriage is one where two parties marry without any intention of dissolving it in the future. Under Muslim law, a valid permanent marriage is called Sahih, and it is the form of marriage contracted by majority of the Muslims. The conditions of marriage are stipulated in a marriage contract executed between the parties which is known as Nikah-Nama.
The essentials of a valid permanent marriage include the following:
- A proposal from one party to the marriage and acceptance from the other party.
- Dower or Mahr – which is a financial obligation imposed by the law on the husband and is to be paid to the wife as a consequence of the dissolution of marriage.
a) It could be in the form of money or property given by the bridegroom to the bride.
b) Generally, the amount of the dower is fixed at the time of the marriage.However, it may also be fixed before or after the marriage.
c) Where the dower is not fixed by the parties, it is implied in that marriage and is usually fixed by the courts.
d) The non-specification of dower at the time of the marriage does not render a marriage void.
e) Where a provision in a marriage contract stipulates that the bride would abandon her right to dower, the provision is regarded as void even if it was agreed to by the bride at the time of the marriage; such a woman would be entitled to dower, nonetheless.
f) The payment of a dower could be:
- Immediate, that is, at the time of marriage, or
- Deferred, that is, payable at a specified point in the marriage, or at the time of dissolution of marriage through divorce or death of the husband.
3. The proposal and acceptance must be made in one meeting.
4. The proposal and acceptance must be witnessed by at least two males, or one male and two females, who must be sane and adult Muslims.
5. This condition, however, is not essential in Shia Muslim marriages where a valid marriage can be solemnized without any witnesses.
6. The parties should have free consent to the marriage.
7. The parties should be competent to contract marriage, that is:
- They must be of sound mind.
- The bridegroom must have completed 21 years of age and the bride must have completed 18 years of age. While this age is not a mandatory requirement under Islamic law, which traditionally held the valid age of marriage to be the age when a person hit puberty, the Prohibition of Child Marriage Act, 2006 and the Child Marriage Restraint Act, 1929, criminalize the marriage of children below this age.
8. The parties should not be legally disabled to marry because of consanguinity, affinity or fosterage.
9. The marriage should not be an unlawful union as per Muslim law, which would render the marriage void or irregular.
10. Generally, both the parties to the marriage should be Muslims. However, a Muslim man can contract a valid marriage with a Jew or a Christian.
Temporary or Muta Marriages
While permanent or Sahih marriages are recognized by both the Sunnis and the Shias, the temporary or Muta marriages are only recognized and contracted by the Shias. As a part of the marriage, the parties enter into a marriage contract with a provision of dissolving the marriage at a specific point in the future. The features and conditions of a temporary marriage are as following:
- A Muslim man has thecapacity to contract more than four marriages.
- Besides having the capacity to marry a woman who is a Muslim or Christian or Jew, a Muslim man can also contract a temporary marriage with a woman who is a fire-worshipper.
- A Muslim woman, however, can only contract a temporary marriage with a Muslim man.
- All stipulations of a temporary marriage should be specified in the contract at the time of the marriage, including:
a) The amount of dower or Mahr. An absence of this renders the marriage void.
b) The duration or term of the marriage, which could range from few hours to many years. If the term of the marriage is not specified, it is implied that the parties intended the marriage to be a permanent marriage.
5. Besides these conditions, temporary marriages follow all the other essentials of a permanent marriage.
Solemnization of Marriage and Importance of Ceremonies in Constituting a Valid Marriage
- Generally, a Muslim marriage is solemnized by persons or priests, called Kazis, who are conversant with the requirements of the law. This, however, is not mandatory for a valid marriage to be solemnized.
- The solemnization of a valid Muslim marriage requires the execution of ceremonies that give effect to the essentials of a valid marriage, including:
a) An offer to marry and an acceptance of the same. The words pronounced by the bridegroom and the bride must give effect to such offer and acceptance.
b) The presence of the witnesses.
c) The execution of a Nikah-Nama or the contract of marriage which contains the details related to:
- the amount of dower, the mode and conditions of its payment;
- details of the parties, their parents or guardians, witnesses and Kazi;
- signature of the parties, their parents or guardians, witnesses and Kazi;
- any other conditions that the parties wish to mention.
d) The nikah-nama is then entered into their records by the Kazis and/or their copies are issued to both the parties to serve as proof of a valid marriage and for the purpose of registration of Muslim marriages.
Christian Marriages
Christian marriages in India are regulated by the Indian Christian Marriage Act, 1872 (the CMA), which lays down all the essentials and conditions of a valid marriage.
What Constitutes a Valid Marriage under the Christian Marriage Act?
- Either one or both the parties to a marriage must be Christians. Further, if one of the parties to a marriage is governed by a law that forbids such a union on the grounds of prohibited degrees of relationship, the marriage becomes void.
- The bridegroom must have completed 21 years of age, while the bride must have completed 18 years of age.
- The parties must give their voluntary consent to the marriage.
- Neither of the parties should have a living spouse at the time of the marriage.
- The marriage must be performed in the presence of a person licensed by the State Government to grant a certificate of marriage.
- There must be at least two reliable witnesses to the marriage.
- The marriage must be solemnized:
- By a person who has received episcopal ordination, that is, a person who has been elevated to clergy and is now authorized to perform religious rites and ceremonies. Such marriages must be solemnized according to the rules, rites, ceremonies and customs of the Church of which this person is a Minister.
- By a Clergyman of the Church of Scotland. Such marriages must be solemnized according to the rules, rites, ceremonies and customs of the Church of Scotland.
- By a Minister of Religion licensed under the CMA to solemnize marriages.
- By or in the presence of a Marriage Registrar appointed under the CMA.
- By a person licensed under the CMA to grant certificates of marriage between Indian Christians.
- The marriage must be solemnized between six o’clock in the morning and seven o’clock in the evening, with exceptions in certain cases.
Solemnization of Marriage and Importance of Ceremonies in Constituting a Valid Marriage
The valid solemnization of a Christian marriage is different when it is solemnized by Ministers of Religion (Ministers), and by or in the presence of Marriage Registrars.
- For marriages solemnized by Ministers, the form or ceremony that the Minister thinks fit may be adopted, while two witnesses besides the Minister are present. The ceremony is generally held according to the customs of the parties and the church, which varies based on the sects of Christianity.
- For marriages solemnized by the Marriage Registrars:
- the marriage can be solemnized between the parties according to the form and ceremony they think fit to adopt. Such ceremonies vary according to the different sects of Christianity.
- Every such marriage has to be solemnized in the presence of:
- a Marriage Registrar to whom the certificates have been delivered,
- two or more credible witnesses besides the Marriage Registrar.
3. During the marriage ceremony the parties must make a declaration as specified in Section 51 of the CMA.
Parsi Marriages
The Parsi Marriages in India are regulated by the Parsi Marriage and Divorce Act, 1936 (the PMA).
What Constitutes a Valid Marriage under the Parsi Law?
For a Parsi Marriage to be legal and valid, the following conditions are necessary to be fulfilled:
- Both the parties to the marriage must be Parsis.
- The parties to the marriage must not be related to each other in any of the degrees of consanguinity or affinity set forth in Schedule I of the PMA.
- Neither of the parties to the marriage should have a spouse living at the time of the marriage.
- The bridegroom must have completed 21 years of age and the bride must have completed 18 years of age.
Solemnization of Marriage and Importance of Ceremonies in Constituting a Valid Marriage
- For a Parsi marriage to be held legal and valid, it is essential that the marriage is solemnized as per the Ashirvad ceremony.
- The ceremony and the solemnization of marriage must be performed in the presence of two witnesses other than the priest. Such witnesses must also be Parsis.
Marriages under the Special Marriage Act, 1954
The Special Marriage Act, 1954, (the SMA) deals with all the marriages that cannot be accommodated under the personal laws of the people. Generally, such marriages are inter-religion or inter-caste marriages for which there is no provision in the statutory personal law or the custom established by that religion or caste. However, even in the absence of such impediments, people can voluntarily choose to marry under the Special Marriage Act instead of marrying according to the provisions of their personal law.
What Constitutes a Valid Special Marriage?
For a special marriage to be valid, the SMA lays down certain conditions to be fulfilled notwithstanding the provisions of any other personal law or a law related to the solemnization of marriages for the time being in force.
- Neither party to the marriage should have a spouse living at the time of the marriage.
- The parties should be of a sound mind and:
- capable of giving a valid consent to the marriage;
- should not be suffering from a mental disorder that makes them unfit for marriage and procreation of children;
- should not be subject to recurrent attacks of insanity.
- The male must have completed 21 years of age while the female must have completed 18 years of age.
- The parties must not be within the degrees of prohibited relationship as specified under Part I and II of the First Schedule of the SMA. However, if a custom governing at least one of the parties permits of a marriage between them, such marriage may be deemed valid and be solemnized.
Process:
1. Notice of Intended Marriage
The parties intending to marry must give a notice in writing to the Marriage Officer of the district in which at least one of the parties has resided for a period of at least 30 days immediately preceding the date on which the notice is given.
2. Publication of Notice
The Marriage Officer publishes this notice by affixing a copy of it to some conspicuous place in his office.
3. Objections to Marriage and Procedure on Receipt of Objection
- Any person may object to the marriage, within 30 days from the date on which the notice was published, on the ground that it would contravene any of the conditions related to the solemnization of a marriage.
- When an objection is made, the Marriage Officer does not solemnize the marriage until:
- he inquires into the matter of the objection and is satisfied that such objection ought not to prevent the solemnization of the marriage.
- the person making the objection withdraws his objection.
- The Marriage Officer must not take more than 30 days from the date of the objection for inquiring into the matter of the objection and arriving at a decision.
- If the Marriage Officer upholds the objection, either party may prefer an appeal to the district court in whose jurisdiction the Marriage Officer has his office. Such appeal must be preferred within a period of thirty days from the date of the refusal.
- The decision of the district court on such appeal is final and the Marriage Officer acts in conformity with its decision.
4. Solemnization of Marriage
If there is no objection raised against the marriage, or the district court decides that the marriage is not contravening of the conditions related to solemnization of marriage and dismisses the appeal, the Marriage Officer would solemnize the marriage.
Declaration – Before the marriage is solemnized the parties to the marriage and three witnesses must, sign a declaration in the form specified in the Third Schedule of the SMA, in the presence of the marriage officer who must also countersign the declaration.
Place and Form of Solemnization –
- Following the declaration, the marriage may be solemnized at the office of the Marriage Officer, or at any other place within a reasonable distance from the office of the Marriage Officer as the parties may desire.
- The marriage may be subject to certain prescribed conditions and payment of additional fees.
- The marriage may be solemnized in any form that the parties choose to adopt. However, for any form of marriage to be complete and binding on the parties, the parties must say to each, other in any language,certain words which carry a similar meaningto the words specified in Section 12(2) of the SMA.
5. Certificate of Marriage
After the solemnization of the marriage, the Marriage Officer must enter the certificate of it in the Marriage Certificate Book. This certificate must be signed by the parties to the marriage and the three witnesses.
6. Documents Required for Marriage
- Application form duly signed by both husband and wife
- Evidence of the date of birth of the parties
- Proof that at least one of the parties or both the parties, as the case may be, had been residing in the jurisdiction of the Marriage Officer for a period of 30 days preceding the date of solemnization or registration of marriage as the case may be
- Affidavit by both the parties stating place and date of marriage, date of birth, marital status at the time of marriage and nationality
- Passport size photographs of both the parties
- marriage photograph
- Marriage invitation card, if available
- If marriage was solemnized in a religious place, a certificate from the priest is required who solemnized the marriage.
- Payment of fee and its receipt
- Proof that the parties are not related to each other within the prohibited degree of relationship as per Hindu Marriage Act or Special Marriage Act as the case may be
- Attested copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower
Foreign Marriages under the Foreign Marriage Act, 1969
The Foreign Marriage Act, 1969, makes provisions related to marriages of Indian citizens outside India. It derives its features mainly from the Special Marriage Act and is the empowering statute which gives the legal validity under the Indian law to marriages solemnized in a foreign country.
For the purpose of Foreign Marriage Act, the Central Government appoints its diplomatic or consular officers to be Marriage Officers in any foreign country.
What Constitutes a Valid Marriage under the Foreign Marriage Act?
A very basic requirement of valid marriages under the Foreign Marriage Act (the FMA) is that at least one of the two parties to the marriage must be an Indian citizen. A marriage between such parties may be solemnized under this Act by or before a Marriage Officer in a foreign country, if at the time of marriage following conditions are fulfilled:
- Neither party to the marriage should have a spouse living at the time of the marriage.
- The parties should be of a sound mind.
- The male must have completed 21 years of age while the female must have completed 18 years of age.
- The parties must not be within the degrees of prohibited relationship as specified under Part I and II of the First Schedule of the Special Marriage Act. However, if a custom governing at least one of the parties permits of a marriage between them, such marriage may be deemed valid and be solemnized.
Process:
1. Notice of Intended Marriage
The parties intending to marry must give a notice in writing to the Marriage Officer of the district in which at least one of the parties has resided for a period of at least thirty days immediately preceding the date on which the notice is given.
2. Publication of Notice
The Marriage Officer must publish the notice:
- by affixing a copy of it to some conspicuous place in his office, and
- in India and in the country in which the parties are ordinarily resident.
3. Objections to Marriage and Procedure on Receipt of Objection
- Any person may object to the marriage, within 30 days from the date on which the notice was published, on the ground that it would contravene any of the conditions related to the solemnization of a marriage.
- When an objection is made, the Marriage Officer does not solemnize the marriage until:
- He inquires into the matter of the objection and is satisfied that such objection ought not to prevent the solemnization of the marriage.
- The person making the objection withdraws his objection.
- If the Marriage Officer, after inquiring into the matter entertains any doubts with regards to any objection, he transmits the record to the Central Government, which, after inquiring further into the matter, gives its decision to the Marriage Officer. Such decisions is binding on the Marriage Officer and he must act in conformity with it.
4. Other Grounds for Rejection of Solemnization of Marriage
The Marriage Officer may refuse to solemnize a marriage under the FMA if:
a) The marriage is prohibited by any law in force in the foreign country where it is to be solemnized.
b) The solemnization of the marriage would be inconsistent with international law or the comity of nations.
In such cases, the parties may appeal to the Central Government within a period of thirty days from the date of Marriage Officer’s refusal to solemnize the marriage. The decision of the Central Government in this regard is binding and the Marriage Officer must act in conformity with it.
5. Solemnization of Marriage
If there is no objection raised against the marriage, or the district court decides that the marriage is not contravening of the conditions related to solemnization of marriage and dismisses the appeal, the Marriage Officer would solemnize the marriage.
Declaration – Before the marriage is solemnized, the parties to the marriage and three witnesses must sign a declaration in the form specified in the Second Schedule of the FMA, in the presence of the marriage officer who must also countersign the declaration.
Place and Form of Solemnization –
- Following the declaration, the marriage may be solemnized at the official house of the Marriage Officer at prescribed hours.
- The marriage may be solemnized in any form that the parties choose to adopt. However, for any form of marriage to be complete and binding on the parties, the parties must say to each other in any language certain words which carry a similar meaning to the words specified in Section 13(2) of the FMA.
6. Certificate of Marriage
After the solemnization of the marriage, the Marriage Officer must enter the certificate of it in the Marriage Certificate Book. This certificate must be signed by the parties to the marriage and the three witnesses.
Documents Required for the Solemnization of Foreign Marriages
As per the Ministry of External Affairs, parties to a foreign marriage must provide the following document:
- Marital status: whether single, divorced, separated
- Employment details: qualification and post, salary, address of office, employers and their credentials
- Immigration status, type of visa, eligibility to take spouse to the other country
- Financial status (to be verified with the employer)
- Properties said to be owned, residential address
- Criminal antecedents, if any
- Family background
Further, if the spouse of the Indian citizen who is party to the marriage is not a citizen of India, following documents must be provided with respect to such spouse:
- Visa, passport
- Voter or alien registration card
- Social security number
- Tax returns for the preceding 3 years
- Bank account papers
- Property papers
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