Marriage in India and Spousal Visa for any Foreign Country

In the 20th and 21st century the migration of many Indian to the advanced countries of the world was and still seen in abundance. The purpose of the migration was/is for better job, better quality of life and bright future of the children.

Most Indian went outside India, initially on work visa or student visa but ultimately acquired the Permanent Residency and even the citizenship of foreign countries. This trend continues even today and will be so in coming years.

Although the various foreign countries have passed laws and made policies against such immigrations where the people of under-developed or developing countries like India are being prevented if not completely stopped to enter their country.

One such policy which is seen in cases where the visa for spouse of the person working on work visa or student visa or is permanent resident or citizen of that country is being resisted and the applicant is made to go through extremely tough time while the visa process is being decided by the Immigration Department of the foreign country. The Indian are the most vulnerable people who are made easy prey by the Immigration Department of any Foreign Country when it comes to decide the application of the spouse as the case may be.

In India if the applicant spouse or the beneficiary spouse is living he/she is being made to appear for interview with the Immigration officials in the local Embassy/High Commission of the foreign country in India and at that time the all-time big grilling takes place which may in many cases ultimately brings bad news for the parties as their application for spouse visa get rejected by the Immigration Department of the foreign concerned foreign country.

How to go through this process and get visa for spouse is most important issue which the parties don't understand or are not aware. The young couple in love at the time of their marriage and thereafter are completely blinded and unaware as far the legal process involved in the marriage and immigration process for spouse visa outside India is concerned.

The first step in this regard is with regard to legal process of marriage being solemnised by the parties.

Marriages in India:

Since time immemorial the marriages in India haven solemnised amongst the people of same community or tribe or society as the case may be. The trend of social marriage continues till date and the legal conditions for the valid marriages, especially for the Hindus, the major group of the people living in India was first drafted and made part of the Hindu Marriage Act, 1955. For the people who are not Hindus, like the Muslims, Christians, Paris and Jews who are the minor group of Indian society have their own laws and practises for the purpose of marriage.

In India the trend of Civil Marriage was also introduced in the year 1954 through the Special Marriage Act, 1954 wherein the marriage between two persons, irrespective of their religion, nationality, social back ground or caste or creed etc. could be solemnised and registered under this Act. The introduction of the Civil Marriage in India brought about inter-caste, inter-religious and inter-national marriages in India that was/is followed by many.

Traditional marriages according to customary rites of the parties:

Majority of Indians go through the traditional form of marriage which are being followed in their families. It is the existing trend being followed keeping in mind the respect for the elders of the families of both sides, the religious ceremonies involved that are considered auspicious for both parties, the customs and usages which are being part of the families being in practise for long period of time and have attained the status of rule for both parties.

I will not say that by following the form of traditional marriages in India is wrong or bad for the parties, rather, if the provided conditions for the valid marriage between two persons of same religion is being followed as provided in the law or the Act applicable to both persons and all essential ceremonies according to customary rites applicable to parties carried out, the valid religious marriage exists.

What is important for all people is to know the conditions and ceremonies for valid marriage according to the law or Act under which the parties are marrying before they enter in any marital relationship by tying nuptial knot. I will mention here, the conditions and ceremonies for valid Hindu marriages under the Hindu Marriage Act.

Conditions for valid Hindu marriages:

The Hindu Marriage Act, 1955:- Section 5 of the Act provides:

Conditions for a Hindu marriage.

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) 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

(c) has been subject to recurrent attacks of insanity ;

(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of  eighteen years at the time of the marriage;

(iv) 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;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

The definition of the term “degree of prohibited relationship” and “custom or usage” as mentioned in section 5(iv) and (v) Hindu Marriage Act, 1955 is provided in section 3 of the Act.

Section 3: In this Act, unless the context otherwise requires,-

(a) The expressions "custom" and "usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy; and; provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;

(g) "Degrees of prohibited relationship"-two persons are said to be within the "degrees of prohibited relationship"-

(i) if one is a lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or

(iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;

Explanation. - For the purposes of clauses (f) and (g), relationship includes-

(i) relationship by half or uterine blood as well as by full blood;

The parties to marriage should study each of the condition for valid marriage carefully before agreeing to enter actual nuptial knot. It has been seen the Immigration Department of foreign counties rejecting the spouse visa on the ground of infringement of any of the essential condition for valid Hindu marriage especially conditions under section 5 (iv) and (v) of the Act as mentioned above, if the infringement of any of these condition exists because of the custom or usage exists in the families of both than it is very important for them to have complete record with regard to such custom or usage is in practise and has not discontinued or held as invalid by the competent court as against the public policy. This record will be available to be shown, true copy given to the interviewer at the time of interview, failing which the marriage will be considered invalid and the application for visa of spouse rejected. If there exists no such record of the custom or usage of the marriage amongst the people within the degree of prohibited relationship or spindas to each other, best is to avoid such marriage if you are looking for immigration outside India for complete family.

Another legal aspect with regard to traditional Hindu marriages according to Customary Rites is to know all the essential ceremonies of marriage followed by both the parties to Hindu marriage.

Ceremonies for a Hindu marriage

Section 7 of the Hindu Marriage Act, 1955 provides for the Ceremonies for a Hindu marriage. (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.

It has been seen there exists lot of confusion amongst the Hindus living in India when section 7 of the Hindu Marriage Act, 1955 is read out to them.

Especially the Hindus from Southern part of India where the essential ceremonies for traditional Hindu are different from what is being followed in Northern part of India. I have seen the people from South India saying their Hindu Marriage is complete after Tying Thali and no such ceremony like Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire) exists in their society/families.

The ceremony of Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), is essential for the Hindu marriages taking place where it is part of the customary rites like in north Indian Hindu marriages done by the Hindus following Sanatam Dharam or Arya Samaj sect as the case may be. What is important for all Hindus living in India is to know all the essential customary rites required for valid Hindu marriage being followed in their society/group/families.

It has been seen that at the time of interview the north Indian spouses when asked the Hindu marriage they have go through, the simple reply is coming out “we have gone through saath phera wedding.” This “Saath Phera” wedding term given by the Bollywood Hindi movies and “Saas Bhau” Television Serials bringing another nuisance for the innocent spouse at the time of their interview taken by very shrewd Immigration Official.

There is no such Saath Phera wedding done in Hindus in north India, the term Saath Phera, from where it has been adopted is confusing with Saptapadi which is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. For Hindus whose families follow customary rites of Saptapadi should know in details what actually Saptapadi is.

Saptapadi/Pratigya

The 'Saptapadi' are taking of seven steps (each step represent one Pratigya/vow) by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step or seventh vow is taken. After the Saptpadi, the bride and groom take one parikrama around the fire walking alongside each other. The last ceremony of the rites and ceremonies of a Hindu marriage is saptapadi which is the most important ceremony and must be performed in all sacramental marriages. This is the ceremony in which the bridegroom leads the bride for seven steps in the north-eastern direction while chanting the following hymn:

Let us pray together,

For life's sap, as we tread one step along,
For life's juice, as we go two steps together,
For wealth more abundant, as we go three steps together,
For happiness in life, as we walk four steps together,
For off-spring, as we move along five steps together,
For a long wedded-life, as we go six steps together,
Be thou my life-mate as we walk up seven steps together,
Thus, thou go together with me forever and forever;

The Saptapadi is the most material of all the nuptial rites, as marriage becomes complete and irrevocable on the completion of the seventh step. According to Manu : "The nuptial texts are a certain rule in regard to wed-lock ; and the bridal contract is known by the learned to be complete and irrevocable on the seventh step of the married pair, hand in hand, after those texts have been pronounced.”

The Saptpadi which is indispensable for the performance of a Hindu marriage by the shastric rites as well Sub-section (2) of Section 7, Hindu Marriage Act lays down: "Where such rites and ceremonies include the Saptpadi . . . the marriage becomes complete and binding when the seventh step is taken"

I would also like to clarify what are Pheras in traditional north Indian Hindu marriages.

Parikrama/Pheras

The couple goes around the sacred fire four times. The first three times the bride leads the groom, and she is considered as Goddess Lakshmi. After the fourth circumvention, she becomes the 'Ardhangani' or 'Half Body' of the groom more commonly called - his wife. After this, the bride's sari pallav is tied to the groom's 'angavastra' with three knots.

The Hinduism is most ancient and a complete religion by itself where the way of life well defined and is being practiced by Indian time immemorial. To know the complete Hindu religion during one's lifetime will not be enough and we don't expect the Immigration Officials of any foreign country be knowing in details each and every aspect of the same. The civil marriage even between two Hindus solemnized and registered under the Special Marriage Act, 1954 is best solution for smooth interview and processing of the visa for spouse application where the issue of legality of the marriage arises. The traditional Hindu marriage between two Hindus according to customary rites can always be done for the satisfaction of other family members and friends any time after the Civil Marriage solemnised and registered under the Special Marriage Act, 1954 but for all legal purposes, only the Civil Marriage should be disclosed by the parties. Otherwise, if the parties want to have traditional Hindu marriage according to Customary Rites that is entirely their decision but they must first study and understand each and every aspect of the marriage and its legality which I have briefly discussed here in this article and from other articles and books available in the market. Going blindly for traditional Hindu marriage according to Customary Rites without understanding the legal aspect nor the religious aspect can be suicidal for the couple looking for foreign immigration for a complete family.

Gone are those days when showing a wedding album/video and wedding card was to be considered good enough proof of existing of valid Hindu Marriage between the parties. Much more is required now to be proved by both the applicant as well the beneficiary for visa for the spouse or family.

 

Published in Family Law
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