Marriage Customs And Laws

It is necessary to keep in mind that as a rule all marriages have to be compulsorily registered.

Those who undertake a civil marriage (No formal marriage ceremony) marry under the Special Marriage Act, 1954, do not need to take any further steps because in their case registration is itself the marriage ceremony.

But in the case of all religious/ceremonial marriages, and they are the majority in India, the additional step of getting the marriage registered with the registrar of marriages is compulsory.

However, the non-registration of a marriage does not affect its legality and validity.

Couples who do not register their marriages can be fined and any one giving false information to the authorities can be penalised with a short jail term. Even then it is always advisable to register a religious/ceremonial marriage because there is then proof of its legality and validity.

Registration is good as :-
In matrimonial disputes it is not uncommon for one of the spouses to claim that no valid marriage took place. Religious authorities that solemnize marriages rarely maintain proper records. Once a marriage is registered with the authorities there is an assumption in law that a valid marriage took place.

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Hindu marriage Act came into force on 18 May 1955. It governs Hindu marriages and has brought about important changes to the law on this subject prevailing earlier. This act applies to any person who is Hindu by religion in any of its forms, and also to Buddhists, Jains, and Sikhs. Conditions for a Valid Hindu Marriage. Bigamy is not permitted as per the law. Neither party should have a spouse living and polygamy permitted by ancient Hindu law is now prohibited. Bigamy is now a punishable offence under the Indian Penal code.

Divorced Person: If a person wants to marry while the spouse is living, a divorce should be obtained. Divorce is granted by court on valid grounds. Prohibited relationships. The bride and the bride-groom should not be within degrees of prohibited relationship; otherwise the marriage would be void.

The prohibited relationships are:

- A lineal ascendant, e.g., father and daughter; son and mother.
- Wife or husband of a lineal ascendant or descendant e.g., Father-in-law and widowed daughter-in-law; widowed mother-in-law and son-in-law.
- Widow of the brother or of father's brother or of mother's brother, or of grandfather's brother or of grandmother's brother.
- Brother and sister; uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.

Custom saved: Under customary law certain marriages are valid though the above mentioned rule is contravened. In South India marriages between children of brother and sister and between a male and his sister's daughter are common and are valid by custom.

Parties should not be sapindas of each other: Sapinda means "of the same body." Etymologically every one is a sapinda of everyone else since all human beings are descended from the supreme Being. Sapinda relationship extends as far as the 3rd generation in the line of ascent through the mother and fifth in the line of ascent through the father. Two persons are sapindas of each other if one is a lineal ascendant of the other within the limits of sapinda relationship or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them.

Marriageable Age: The amendment to this effect was issued in 1978, and as per this the bridegroom should have completed the age of 21 years and the bride the age of 18 years at the time of the marriage. The question of guardianship in marriage does not arise since the parties to be married are to be majors. If the condition as to minimum age is infringed, the validity of the marriage is not affected. But the parties (bride or bridegroom as the case may be) shall be punishable 15 days simple imprisonment or fine up to Rs 1,000/- or both. Effect of Idiocy or Lunacy: If either party is a lunatic or an idiot, the marriage is voidable. It can be annulled by a decree of nullity and this is also a ground for divorce.

Effect of Impotence: A decree of nullity may be granted on the ground that the marriage has not been consummated owing to the impotence of the respondent.

Marriage ceremonies under the Act: The Hindu marriage Act does not prescribe any particular ceremonial for marriage. It provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and where such rites include the Saptapadi, the marriage becomes complete when the seventh step is taken.

Registration of marriages: For the purpose of facilitating proof of Hindu marriage provision for registration may be made by the State Government, under the Hind Marriage act of 1955. The particulars relating to the marriage may be entered in a Marriage Register maintained under the rules made by the State Government. It is open to the State Government to make the registration of marriage compulsory but this has not been done so far.

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The Christian marriages are solemnized under The Christian marriage Act 15 of 1872. A Christian is one who professes the religion of Jesus Christ and Indian Christians include native converts to Christianity and their Christian descendants.

Persons competent to solemnize marriage: Under this Act a minister of religion may be licensed to solemnize marriages. Marriage registrars appointed under this Act or those who have received episcopal ordination and the clergymen of the Church of Scotland can solemnize marriages under this Act.

Conditions for Marriage: The Act applies when one or both the parties to the marriage is or are Christians. If the personal law applicable to either of the parties forbids the marriage, e.g. no ground of prohibited degrees of relationship, it cannot be validly performed under this Act.

The Christian marriage Act is only concerned with the forms in which the marriage is to be solemnized and where the marriage is solemnized by a Marriage Registrar appointed under the Act the following procedure is to be followed:-

(a) Notice of Intended Marriage: One of the parties of intended marriage should give written notice of it to the Marriage Registrar of the District within which the parties have dwelt. Where the parties dwell in different districts the notice should be given to the Marriage Registrar of each district. The notice is affixed in a conspicuous part of the office of the Marriage Registrar and is entered in the "Marriage Note Book."

(b) Oath Before Registrar: One of the parties should appear personally before the marriage Registrar and make oath-

There is no impediment of kindred or affinity or other lawful hindrance to the Marriage.

The usual place of abode is within the district of such marriage registrar.

If either of the party is minor (i.e. one under 21 years of age) the consent of the persons competent to consent to the marriage (father and if he be dead the guardian of the person and if there be no guardian, the mother) has been obtained or that thgere is no person resident in India authorised to give such consent.

(c) Certificate of Notice: After the oath above mentioned has been made and 4 days after the receipt of the notice have expired (14 days if one of the parties is minor) the marriage Registrar can give the Certificate of Receipt of Notice. This certificate states in what Church, Chapel, or place of worship the marriage is supposed to be performed. The certificate will not be issued if the protest has been lodged by any one showing grounds why the certificate should not be issued. If the objection is frivolous the objector exposes himself to a suit of damages. The marriage should be solemnized within 2 months of the issue of certificate and otherwise the certificate becomes void and a fresh notice will have to be given.

(d) Mode of Solemnization: The marriage may be solemnized according to such form and ceremony as the parties think fit to adopt in the presence of some Marriage Registrar (not necessarily the one who issued the certificate) and of two or more witnesses. Each of the parties should say to the other: "I call upon these persons here present to witness that I, A do take thee, B, to be my lawfully wedded wife (or husband)."

(e) Registration: The Marriage Registrar present at the solemnization shall register the marriage in a Marriage Register-Book and in a certificate attached to that book as counterfoil. The parties sign and the witnesses attest these entries. At the end of every month the certificates (counter-foils) are sent to the Registrar General of Births, Deaths and Marriages. Special Provision for Indian Christians: In the case of marriages between Indian Christians the marriage may be certified without a preliminary notice.

The following conditions, however, should be fulfilled:

The age of the bridegroom should exceed 16 years.
Neither of the parties should be having a husband or wife living. In the presence of the person licensed to grant a certificate and atleast two credible witnesses each party should say to the other: "I call upon these persons here present to witness that I, A in the presence of Almighty God and in the name of our lord Jesus Christ, do take thee B, to be my lawfully wedded wife (or husband)" or words to that effect.

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The Parsi Marriage Act of 1939 governs the Parsis of India in regard to the solemnization of the weddings and the dissolution thereof. For a valid marriage a Parsi should have completed 21 years of age. If a party to the marriage is under that age, the consent of the guardian should be obtained. The plaintiff should not be within the prohibited relationships specified in the Act. The marriage is solemnized according to a ceremony called "Ashirvad" by a priest. The presence of two other witnesses is also necessary.

A Parsi marriage is monogamous. The officiating priest certifies the marriage and the marriage certificate is also signed by the parties (or guardians) to the marriage and the witnesses. It is sent by the priest, with a fee of Rs 2/- paid by the husband, to the Registrar of Marriages. The Registrar enters the certificate in a register kept for the purpose and the register is accepted as proof of the statements made therein.

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SPECIAL MARRIAGE ACT, 1954 Any two persons irrespective of their religion can marry under the Special Marriage Act, 1954. Conditions for Marriage.

Following conditions are required to be met for a marriage under this Act:-

(a) Neither party should have a husband or wife living.

(b) Neither party is an idiot or lunatic.

(c) The bridegroom must have completed 21 years and the bride the age of 18 years.

(d) The parties are not within the degree of prohibited relationship.

(e) Both parties should be citizens of and domiciled within the territories to which the Act applies.

Ceremony

(a) Notice to be given by the bride and bridegroom to the Marriage Officer of the district in which one of them had been residing immediately previous to the notice for atleast 30 days.

(b) Marriage Officer records the notice to a conspicuous part of his office and sends a copy to the Marriage Officer of the District in which the party giving the notice has permanent residence and it would also be affixed by the officer in his office.

(c) 30 days time is given for any person to raise any objections to the intended marriage.

(d) From the date of receipt of any objections within 30 days, the Marriage Officer should enquire into the objections.

(e) If the objection is upheld, either party to the intended marriage may appeal to the District Court whose decision shall be final.

(f) In case there is no objection or the objection is rejected, the parties with 3 witnesses sign in presence of the Marriage Officer declarations to the effect that they are unmarried and are not related within prohibited degrees and have completed 21 years (Husband) and 18 years (Wife).

(g) The marriage is therefore solemnized in any form which parties choose to adopt. The form must have the following declaration by each party to the effect; "I take thee to be my lawful wife (or husband)." The parties and 3 witnesses then sign the certificate of solemnization. This certificate is conclusive certificate of solemnization.

(h) The solemnization should be completed within 3 months from the date of notice and otherwise the notice lapses and a new notice will have to be issued. Civil Marriage by Registration: The marriage under the special Marriage Act is a civil marriage by registration

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MUSLIMS THEORY OF MARRIAGE

Nikah (marriage) according to the Muslims is a civil contract and no religious ceremony is necessary to bring about this relationship. What is necessary is the agreement between the parties arising out of proposal and its acceptance. Contractual capacity for purposes of marriage is governed not by the Indian Majority Act, 1875 but by Muslims law itself, which confers contractual capacity on attainment of puberty. It is presumed that on completion of 15 years of age, a person attains puberty. If a person is of sound mind and has attained puberty his/her marriage cannot be performed without his/her) consent.

Dower (Mehar) :

The contractual character of the Muslims marriage is also emphasized by the presence of Dower as an essential incident of a marriage. Dower is defined as the sum of money or property which wife receives from the husband in consideration of the marriage. It is not strictly speaking "consideration" in the sense of a "quid pro quo" contemplated by the Indian Contract Act. In fact it can be fixed even after the marriage. Dower agreed to as part of the marriage is called as "specified dower." Even if the marriage contract provides that no dower is to be paid, 'proper' dower would still be payable. Talak: A marriage under the Muslims law can be unilaterally put an end to by the husband by pronounving talak (divorce). He can delegate this power to a third person or even to his wife so that she can by the exercise of this delegated power put an end to the marriage. The husband and the wife may by mutual agreement also put an end to the marriage.

Essentials of a valid Muslims marriage:

The following conditions should be satisfied for a valid (Sahih) marriage.

Capacity to marry:

The parties should have attained the age of puberty or the marriage contract should be entered into by the guardian in marriage on behalf of the party concerned.

The parties should be of sound mind. Otherwise the guardian in marriage should act on behalf of the person of unsound mind in arranging the marriage contract. Form of Marriage: There should be a proposal and its acceptance at one meeting. According to Shias witnesses are necessary but according to Sunnis at least two male witnesses or one male and two female witnesses are necessary. The witnesses have to be sane and adults and the absence of witnesses can only render the marriage as irregular and not void.

Prohibited Relationships: The parties should not be within the prohibited degrees of relationship and the presence of any such forbidden relationship is an impediment to marriage.

On ground of blood relationship i.e. consanguinity, the following relationships are not suitable for marriage and make the marriage void:

Mother and son.
Grandmother and Grandson.
Brother and Sister.
Uncle and niece.
Nephew and aunt.

Fasid (irregular) Marriages: The marriage will be considered irregular with the following disqualifications from the bridegroom's side.

He already has 4 wives which is the maximum number of wives a Muslims can have at a time.
He already has a wife who is related to the bride as sister or aunt or niece. Two women thus related should not be wives of a Muslims at a time. A shia can marry his wife's aunt but cannot marry his wife's niece.

Following disqualifications apply to the bride's side for a marriage to be irregular.

She is undergoing iddat. A widow has to remain in seclusion for 4 months and 10 days from the death of her husband. If she is pregnant at the time of her husband's death then iddat lasts till delivery. A divorced woman whose marriage has been consummated should observe seclusion for three lunar months and if she is subject to menstruation, the period is three menstrual courses.

Effect of Difference of Religion:

A sunni Muslim may validly marry even a non-Muslims Kitabia (e.g. Christian woman or jew and a Shia Muslim may do so provided the marriage is mutta (temporary) marriage. A Muslim male cannot validly marry a non-Kitabia (e.g. an idolatress such as a Hindu woman). Among Shias such a marriage is void whereas the Sunnis take a more lenient view and regard it as irregular marriage. The woman may at any time embrace Islam and cure this irregularity.