Marriage

What is Marriage?

The legal glossary of the legislative department defines marriage as, "the act of marrying, the ceremony by which two persons are made husband and wife; particular matrimonial unions."

Black’s Law Dictionary defines marriage “as distinguished from the agreement to marry and from the act of be- coming married, is the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.”

Marriage in India

Marriage has not been explicitly defined in any legislation. Among various belief systems, it is regarded as a sacrament in one and a contract in another. The concept of marriage is evolving, shifting from an institution primarily focused on procreation to one where procreation is not the main objective anymore. Some countries now legally recognize same-sex marriages, while others continue to question and debate the matter. In India, personal and family laws are not consistent, as different regulations apply based on religious affiliations.

Legislations governing Marriages

The Hindu Marriage Act, 1955

Who is a Hindu?

According to Section 2 of the Act, it applies to,

1. any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
2. to any person who is a Buddhist, Jaina or Sikh by religion, and
3. to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Conditions for a Hindu Marriage

There are a set of 5 conditions for a Hindu Marriage between two Hindus according to Section 5 of the Act. They are as follows;

1. neither party has a spouse living at the time of the marriage;
2. at the time of the marriage, neither party—
   • is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
   • though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
   • has been subject to recurrent attacks of insanity
3. the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage;
4. the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
5. the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

Hindu Marriage is a Sacrament

Hindu Marriage is a sacrament, and Section 7 proves it by giving importance to the customs and ceremonies. A marriage is said to be solemnised when;

1. A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
2. Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

Muslim Personal Law

Muslim Marriage differs from other forms of marriage as it does not have a specific legislation. Instead, there is an act known as the Muslim Personal Law (Shariat) Application Act, 1937, which provides guidelines for Islamic marriage practices. In contrast to marriages in other religions, polygamy is permitted in Muslim marriages.

Muslim Marriage is a Contract

In a Muslim marriage, similar to any contract, there exists a proposal (Ijab) and subsequent acceptance (Qubul). Additionally, the wife is entitled to receive a consideration known as Mahr/Dower from the husband for entering into the marriage.

Essentials of a Muslim Marriage are as follows:

• Proposals and acceptance
• Should be of sound mind, however with the consent of a guardian makes the marriage valid.
• Both the parties should belong to islam.

Valid, Void and Irregular Marriages

Vailid Marriage - A muslim marriage is called a Nikah. A valid Muslim marriage is called Sahih marriage which satisfies all the essentials of a muslim marriage.

Void Marriage - Void Muslim Marriages are those where the couple are either related by degrees of prohibited relationships such as consanguinity, affinity or fosterage. These marriages are called Batil Marriages.

• Consanguinity - where the woman is related to the man by blood how highsover or lowsoever. This includes his mother, grandmother, daughter, grand-daughter, his sister (by uterine), niece or great neice, paternal or paternal aunt.
• Affinity - where a man is prohibited from marrying a woman who is related to him by marriage.Relations that count a affinity are, His wife's mother or grandmother, wife's daughter or granddaughter, father's or paternal grandfather's wife, son's wife, or the wife of his grandson (whether through a son or daughter),  regardless of how low or high in lineage.
• Fosterage - refers to a woman breastfeeding a child under two years old, making her the child's foster-mother. It is not permissible for a man to marry his foster-mother, her daughter, or his foster sister.

Irregular Marriages - In Muslim marriages, there is no concept of voidable marriage; however, irregular marriages (fasid) do exist. A marriage is considered fasid until the condition that renders it void is present. If a specific impediment exists, the marriage is temporarily invalid. Once the obstacle is removed, the marriage becomes valid and enforceable. The specific instances are as follows:

• Unlawful conjunction - It refers to the act of marrying two women simultaneously who are related to each other by blood, marriage or adoption, and it is prohibited for them to marry each other if they belonged to different genders. In other words, A Muslim is prohibited from marrying two sisters , or an aunt with her niece. According to Shia Law, it is permissible for a Muslim to marry the aunt of his wife, but he is not allowed to marry the niece of his wife without her consent. In the Shia Law, a marriage contracted under the prohibition of unlawful conjunction is declared void.
• Polygamy - For instance if a muslim man marries for a fifth time, the marriage is fasid/irregular until divorces another wife, since he is allowed to have four wives at the same time.
• Absence of proper witnesses - Among Sunnis, it is crucial that a minimum of two male witnesses or one male and two female witnesses are present to confirm that the contract was correctly established between the parties. The witnesses need to be mentally competent, of legal age, and Muslim. According to Shia Law, a marriage arranged by the couple or their guardians in private is considered valid. The presence of witnesses is unnecessary.
• Differences of religion - According to Sunni law, a Muslim man can marry a Muslim woman (from any sect) or a Kitabia—a person who practices a revealed faith with a Holy Book, like Christianity or Judaism. Nonetheless, marriage to an idolater or fire-worshiper is deemed unconventional. Conversely, according to Shia law, that kind of marriage is null. A Muslim woman, irrespective of her sect, is not allowed to marry a non-Muslim man, whether he belongs to the People of the Book or not. While certain scholars, such as Mulla, view this type of marriage as irregular, others, including Fyzee, regard it as entirely void. Shia law firmly forbids Nikah marriages between Muslims and non-Muslims.

• Woman undergoing iddat - Iddat is a duration in which a woman, whose marriage has ended due to divorce or her husband's death, must stay in isolation and refrain from marrying another man. Under Sunni Law, marrying a woman in Iddat is deemed irregular but not invalid. However, according to Shia law, marrying a woman in Iddat is invalid.

The Parsi Marriage and Divorce Act, 1936

Section 2 (6) of the Act defines what is marriage under the Act as: “marriage” means a marriage between Parsis whether contracted before or after the commencement of this Act;

Section 3 of the Act, stipulates what a valid Parsi marriage should have or not have:

1. the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in Schedule I; or
2. such marriage is not solemnized according to the Parsi form of ceremony called “Ashirvad” by a priest in the presence of two Parsi witnesses other than such priest; or
3. in the case of any Parsi (whether such Parsi has changed his or her religion or domicile or not) who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.

Parsi marriage is a sacrament and the Act, stipulates several penalties for not following the rules.

The Indian Christian Marriage Act, 1872

Solemnization of a Christian marriage according to Section 4 should be, between persons, one or both of whom is 2[or are] a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void.

A minor can get married under the Act, but requires the consent of their legal guardian according to Section 19 of the Act.

If the father is alive, his consent is required. If the father is deceased, consent from the legal guardian of the minor is necessary. If no guardian exists, the mother's consent is required according to Section 19 of the Act.

The Foreign Marriage Act, 1969

Section 4 stipulates the “conditions relating to solemnization of foreign marriages  a marriage between parties one of whom at least in a citizen of India may be solemnized under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, viz -

1. neither party has a spouse living,
2. neither party is an idiot or a lunatic,
3. the bridegroom has completed the age of twenty-one years and the bridge the age of eighteen years at the time of the marriage ; and
4. the parties are not within the degrees of prohibited, relationship.”

Secular Provisions

The Special Marriage Act, 1954

Conditions for Marriage

Section 4 of the Act, where a marriage between any two persons may be solemnized under this Act, "if at the time of the marriage the following conditions are fulfilled, namely:-

1. neither party has a spouse living;
2. neither party―
   • is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
   • though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
   • has been subject to recurrent attacks of insanity
3. the male has completed the age of twenty-one years and the female the age of eighteen years;
4. the parties are not within the degrees of prohibited relationship."

Notice and Objection Regime

Sections 5 to 9 of the SMA provides a set of procedural preconditions for solemnization of any marriage under the Act.

Section 5 - Notice of intended marriage - Couples intending to marry must give written notice to the Marriage Officer of the district where at least one of them has resided for at least 30 days prior to the notice.

Section 6 - Marriage Notice Book and publication - The Marriage Officer must keep all marriage notices received and record them in a public "Marriage Notice Book."Later display copies of each notice in their office for public viewing. If one party doesn't reside in the district where the notice was filed, the Marriage Officer must send a copy to the other party's district for public display there as well.

Section 7 - Objection to marriage - Anyone can object to a proposed marriage within 30 days of the public notice (as per Section 6(2)). Objections must be based on the grounds that the marriage would violate the conditions outlined in Section 4. If no objections are raised within the 30-day period, the marriage can proceed.

Section 8 - Procedure on receipt of objection - If an objection is raised under Section 7, the Marriage Officer must investigate the matter within 30 days. They cannot proceed with the marriage until they are satisfied that the objection is invalid or withdrawn. If the Marriage Officer upholds the objection and refuses to solemnize the marriage, either party can appeal this decision to the district court within 30 days.

Section 9 - Powers of Marriage Officers in respect of inquiries.

This Notice Regime was questioned in Supriyo @ Supriya Chakraborty & Anr. v. Union of India but the court indicated that this was not a question of law that necessitated a 5 judge-bench ruling.The conclusion arrived at by the learned Chief Justice is that while there is no express fundamental right to marry, there is a right or freedom to enter into a union.

Legal Provisions

Registration of Marriages

• The Hindu Marriage Act, 1955: Provides for optional registration under Section 8. No provision mandates priests or other officials to submit marriage records to registrars. The Act further empowered the State Governments to issue a “direction” to make registration of marriages compulsory “if it is of opinion that it is necessary or expedient so to do.” The government of each state had the discretion of whether or not to make registration of marriage compulsory. West Bengal Hindu Marriage Registration Rules 1958, Andhra Pradesh Hindu Marriage Registration Rules 1965, Karnataka Registration of Hindu Marriages Rules 1966, and Uttar Pradesh Hindu Marriage Registration Rules 1973 make registration optional. Anand Marriage Act, 1909 - recognizes Sikh marriages performed by the religious rites known as Anand (commonly known as Anandkaraj) Section 6 of this act stipulates registration of Sikh marriages to be optional.

• The Special Marriage Act, 1954: Requires mandatory registration, especially for interfaith or civil marriages. Under Section 11 and 15 of the Act, Marriages are recorded by the Marriage officer appointed under section 3 of the act. As per section As per section 48 and 49 of the act, Marriage records are sent to the Registrar-General of Births, Deaths, and Marriages on a regular basis by all Marriage Officers. Under section 50 of the act, the Central Government or State Government frames a rule for effective enforcement of the act.
• The Parsi Marriage and Divorce Act, 1936: Mandates priests to send marriage certificates to registrars. Penalizes failure to comply with fines or imprisonment.
  • Section 6: Stipulates that parsi marriages certified by the priests requires signatures from the priest, parties and witnesses.
  • Section 12: Priests must certify and transmit records to Marriage Registrars. If negligent, they will be guilty of punishments.

• The Indian Christian Marriage Act, 1872: Clergy must submit marriage records to registrars. Detailed provisions govern registration under different denominations. Chpter V of the Act deals with registration of Marriages.
• The Kazis Act, 1880 - It grants authority to the State governments to designate kazis to assist local Muslims who wish to seek help 18 regarding the solemnization of marriages, etc. A kazi may also be dismissed by the appointing authority for reasons of misconduct, extended absence, insolvency, or incapacity (Section 2). The Act, currently effective in the majority of States, specifies that the presence of a State-appointed kazi is not required for any marriage (Section 4).

The central Kazis Act does not till now apply to private kazis and contains no provision relating to kazis’ function of preparing and preserving records of marriages. In Maharashtra, however, the Act was amended in 1980 to make it applicable also to private kazis and require all kazis – private and State-appointed – to maintain proper records of marriages which they may be invited to solemnize. This Act requires kazis to document marriages but lacks provisions for submitting records to a central registry.

• The Births, Deaths, and Marriages Registration Act, 1886: Establishes a Registrar-General for maintaining marriage records but is limited in scope to certain communities.

Regional Variations

Factors like place of marriage registration, requirement of documentation, processing fees, processing timeline and number of visits, requirement of witness vary across states.

Place of registration - Certain states, such as Odisha, Tamil Nadu, and Karnataka, allow marriage registration at Sub Division, Corporation, Municipality/NAC, and Tehsil/Block levels. In contrast, states like Kerala, Bihar, Maharashtra, Madhya Pradesh, and Puducherry facilitate marriage registration at the Panchayat level, which promotes registration, especially in rural regions.

Requirement of witness - In states such as Delhi, registering a marriage requires only two witnesses - any individual with a PAN Card (not necessarily a close blood relation) who was present at the wedding. In contrast to other states (such as Odisha and Punjab), the guardians of both parties must serve as witnesses for the marriage registration. In Karnataka, for registering a Hindu marriage, 3 adult witnesses are necessary; however, it is preferred—though not mandatory—to include someone who witnessed the wedding, a close blood relative, and a parent.

Processing fees - amount of fees varies from each state and also under which act a couple is getting registered. For instance, in Gujarat, the application registration fees differ based on the time frame: it costs 5/- INR if submitted within 30 days and 15/- INR if submitted after 30 days. In Odisha, the registration fee for marriage is 100/- INR if it is conducted under the Hindu Marriage Registration Act and 150/- INR if registered under the Special Marriage Act.

Offences related to Marriage

Chapter V of Bharatiya Nyaya Sanhita deals with Offences related to Women and Children. This chapter also deals with offences related to marriage.

Section 80 - Dowry Death - Any woman who dies within seven years of the marriage through burns or bodily injury or otherwise. And, “soon before” her death if she was subjected to cruelty or harassment by her husband or any relative in connection to demanding dowry, such a person is presumed to have caused a dowry death. Punishment for causing a dowry death is anywhere from seven years to life imprisonment.

Section 81 - Cohabitation caused by man deceitfully inducing belief of lawful marriage.

Section 82 - Marrying again during lifetime of husband or wife (Bigamy) - A man who deceitfully convinces a woman that she is lawfully married to him, leading to cohabitation or sexual relations, is punishable with imprisonment of up to ten years and a fine.

Section 83 - Marriage ceremony fraudulently gone through without lawful marriage.

A person who marries while their spouse is alive, making the subsequent marriage void, is subject to imprisonment of up to seven years and a fine. Exceptions apply if the previous marriage was declared void by a court or if the previous spouse has been absent for seven years without being known to be alive, provided the new spouse is informed of the circumstances. Concealment of the prior marriage increases the punishment to up to ten years and a fine.

Section 84 - Enticing or taking away or detaining with criminal intent a married woman. Knowingly participating in a marriage ceremony without being lawfully married is punishable by imprisonment of up to seven years and a fine.

Section 85 - Husband or relative of husband of a women subjecting her to cruelty. Taking, enticing, or concealing a married woman with the intent of engaging her in illicit intercourse is punishable by imprisonment of up to two years, a fine, or both.

Section 86 - Cruelty defined. A husband or his relatives who subject a woman to cruelty face imprisonment of up to three years and a fine. Cruelty includes:

• Conduct that may drive the woman to suicide or cause serious harm to her physical or mental health.
• Harassment to coerce the woman or her relatives into meeting unlawful demands for property or valuables.

Section 87 - Kidnapping, abducting or inducing women to compel her marriage, etc. Kidnapping or abducting a woman to compel her to marry against her will, or to force or seduce her into illicit intercourse, is punishable by imprisonment of up to ten years and a fine. Using criminal intimidation or authority to achieve the same result carries the same punishment.

Dissolution of Marriage

Dissolution of marriages or Divorce are also fragmented through different legislations. All the legislations including muslim law have both fault based divorce and mutual consent divorce.

Legitamacy of children born out of void, voidable marriages

Children born out of a void or voidable marriages are legitimate if they were legitimate if the marriage would have been valid. This is followed under Section 16 of Hindu Marriage Act, 1954, Section 3 of the Parsi Marriage and Divorce Act, 1936.

According to Section 21 of the Indian Divorce Act, 1869 if a marriage is annulled because a previous spouse was alive or due to insanity, but it is determined that the subsequent marriage was entered into in good faith, children born before the annulment decree will be specified in the decree. These children will have the same rights to inherit from the competent parent as legitimate children.

In Muslim personal law, children born out of batil marriages are illegitimate children, while those of fasid (irregular) marriages are legitimate.

Case Laws

1. Safiya Sultana Thru. Husband Abhishek Kumar Pandey v. State Of U. P. Thru. Secy. Home, Lko - .The Allahabad High Court in this case, mandates that while giving notice under Section 5 of the Act of 1954 it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954. Such publication of notice and further procedure would not be violative of their fundamental rights as they adopt the same of their free will. Further by citing Puttaswamy judgement the court remarked that the notice regime would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.
2. Doly Rani v. Manish Kumar Chanchal - The Court’s decision was based on the finding that there was no legal marriage between the parties, as the marriage was not solemnized according to the required ceremonies and, “solemnizing of a Hindu marriage should be assiduously, strictly and religiously followed.”This is for the reason that the genesis of a sacred process cannot be a trivial affair. Only registration is a marriage of practical convenience, hence cannot be a valid marriage  under Hindu Marriage Act, 1955. This judgement reiterates that a hindu marriage is a sacrament.
3. Sarla Mudgal v. Union of India - The court remarked that a marriage performed under Hindu Marriage Act, 1955 cannot be dissolved except on the grounds mentioned under Section 13 of the Act. Reiterating that, conversion will not dissolve the marriage but can be grounds for divorce.
4. Chand Patel v. Bismillah Begum - While the Supreme Court held that such a marriage with two sisters is not void, it's generally considered irregular in Islamic law. The court concluded that unlawful conjunction leads to an irregular marriage and is not void. Hanafi Law in relation to Muslims in India is concerned that an irregular marriage continues to exist until a competent authority declares it void.
5. Supriyo @ Supriya Chakraborty & Anr. v. Union of India - The court acknowledged the fact that “Queerness is a natural phenomenon known to India since ancient times.”“The Constitution does not expressly recognize a fundamental right to marry.” However, “several facets of the marital relationship are reflections of constitutional values.” Reiterating the judgement of Navtej Singh Johar and Justice KS Puttaswamy, the court recognized the, “right of queer couples to exercise the choice to enter into a union.” The court remarked that, “the state must enable the LGBTQ community to exercise its rights under the Constitution.”
6. Smt. Seema v. Ashwani Kumar - The Supreme Court of India, noted that a law requiring compulsory registration of all marriages would be of critical importance to various issues such as:
   • Preventing child marriages and to ensure minimum legal age of marriage
   • Preventing marriages without the consent of the parties
   • Check bigamy/polygamy
   • Enabling married women to claim rights arising from their marital status, viz. Right to live in the matrimonial house, maintenance, etc.
   • Enabling widows to claim their inheritance rights, other benefits and privileges which they are entitled to after the death of their husband
   • Deterring men from deserting women after marriage
   • Preventing instances of marriage fraud
   • Deterring parents/guardians from indulging in trafficking of women to any person including a foreigner, under the garb of marriage Further, the Supreme Court observed that though registration itself cannot be a proof of valid marriage per se, and would not be the determinative factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, rights of children born from the wedlock of the persons whose marriage is registered and the age of parties to the marriage.

Law Comission Report on Marriage

1. 227th Report on Preventing Bigamy via Conversion to Islam – A Proposal for giving Statutory Effect to Supreme Court Rulings - 2009.[1]The report’s primary recommendation is to, [i]n the Hindu Marriage Act 1955, after Section 17 a new Section 17-A be inserted to the effect that a married person whose marriage is governed by this Act cannot marry again even after changing religion unless the first marriage is dissolved or declared null and void in accordance with law, and if such a marriage is contracted it will be null and void and shall attract application of Sections 494-495 of the Indian Penal Code 1860.
2. 242nd Report on Prevention of Interference with the freedom of Matrimonial Alliances 2012 (in the name of Honour and Tradition ) : A suggested legal framework - 2012.[2]The report on Prevention of Interference with the Freedom of Matrimonial Alliances discusses the problem of honor killings and how some countries' legal systems do not adequately penalize them. It recommends that there must be a threshold bar against congregation or assembly for the purpose of objecting to and condemning the conduct of young persons of marriageable age marrying according to their choice.
3. 270th Report on Compulsory Registration of Marriage - 2017.[3]This Report proposes to amend the Registration of Births and Deaths Act, 1969 to include the compulsory registration of marriages within its purview.
4. 211st Report on Laws on Registration of Marriage and Divorce – A Proposal for Consolidation and Reform - 2008.[4] This report proposes that all marriages and divorces, irrespective of religion or community, should be registered under a consolidated framework. Non-registration should attract penalties and have legal implications in matrimonial disputes. To have a Marriage and Divorce Registration Act applicable to all citizens, that would replace all the fragmented acts. In the aim of establishing a digital and centralized database for marriage and divorce records to ensure easy accessibility and transparency.

Guidelines Marriages to Overseas Indians [5]

These guidelines offer comprehensive advice for Indian citizens considering marriage to individuals living abroad. They highlight critical aspects to facilitate well-informed decision-making, covering legal, cultural, and procedural requirements, as well as potential challenges associated with such unions. The guidelines stress the importance of thorough research, identify available legal solutions, and include a list of relevant authorities and support organizations. This resource is designed to prevent and inform, aiming to shield individuals from scams or abuse in international matrimonial partnerships.