- Registration of a marriage gives a legal recognition to the marriage; it also binds the marriage to associated laws and provides legality to it.
- A Hindu marriage may be solemnized by performing the customary rites of the parties. An important part of these rites is the saptpadi. The validity of a Hindu marriage is not affected by the failure to register the marriage. A religious marriage ceremony is enough for a marriage to be considered valid under this Act.
- Marriages occurring under the Special Marriage Act, 1954 have to be registered in order to be seen as a valid marriage.
- Both Muslim and Christian marriage Acts don’t make registration of marriage compulsory.
- Registration is crucial for the protection of both parties to a marriage. It provides the union a legal status, and can be helpful when trying to access rights associated with marriage.
Marriage is the relationship between a husband and a wife. It is a formally recognised union between two people. The nature of contemporary marriage is contractual. It accepts the idea of equality and liberty, and embraces some western ideals. There must be an agreement of voluntarily entering into it by both parties. Indian laws usually do not step into the sphere of governing personal religious practices. The laws have left the rituals of marriage untouched and have only put regulations on practices which were immoral, such as child marriage or incest. In India, marriages are governed primarily by two legislations; the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The former governs marriages of Hindus, Buddhist, Jaina or Sikhs. Many religious communities have personal laws which they refer to for marriage.
Registration of a marriage gives a legal recognition to the marriage; it also binds the marriage to associated laws and provides legality to it. While registering marriages is becoming more of a common practice in India today, many couples still choose to solemnise their marriage through religious rituals, rather than through government backed registration. The fact is that the law on registration of marriages is still unclear.Many laws govern marriages in India. While most agree on factors like the marriageable age of the parties and the requirement for consent by a person competent to do so, what legislations don’t uniformly agree on is the requirement for registering the marriage.
Marriage under the Hindu Marriage Act, 1955
Hindu marriage is an ancient, sacred tradition which has prevailed from the Vedic period to the modern world. It has seen some modifications along the way. The Hindu Marriage Act addresses marriages between two Hindus. As per Section 2 of the Hindu Marriage Act 1955, this Act applies to any person who is a Hindu, in any of its forms or developments, by birth. It also applies to any person who is a Buddhist, Jain, or Sikh.
The conditions for solemnization of marriage are prescribed by Section 5. It sets the following conditions to be fulfilled:
- A person shouldn’t have a spouse living at the time of the marriage. The Hindu Marriage Act does not permit having two living wives at the same point in time, which amounts to bigamy. The first marriage of the person should have ended legally, before a second marriage is entered into. This is also punishable under Section 494 of the Indian Penal Code.
- The bride-groom should have attained the age of 21, and the bride should have attained the age of 18. This provision is made to prevent child marriages.
- The consent of either party should not be obtained via coercion or threat. If consent is not free, the marriage will be void.
- The parties should be of sound mind at the time of marriage, which means the person should be not suffering from any insanity or mental disorder at the time of the marriage. The person should have the capacity to provide valid consent at the time of the marriage.
- The parties in the marriage should not fall within the prohibited degrees of relation or sapinda relationship, unless it has been allowed by their custom or tradition.
Under Section 7, the provisions for the solemnisation of Hindu Marriage are provided. A Hindu marriage may be solemnized by performing the customary rites of the parties.It states where such rites include saptpadi (the taking of seven steps by the bridegroom and the bride around the sacred fire), then marriage is solemnized when the 7th round is complete.
Section 8 provides rules for registration of Hindu marriages. However, the fifth paragraph of the Section states that the validity of the marriage will not be affected by the failure to register the marriage.
Thus,the validity of a Hindu marriage is largely dependent on the saptapadi ceremony. The marriage is confirmed to be valid if it is performed between Hindu couples according to the customary ceremony and rituals of either party. Moreover, any child born after conducting marriage according to this Section will be legitimate.
Under this Act, simply a religious marriage ceremony is enough for a marriage to be considered valid but getting a legal registration certificate will prove your marriage valid under the court of law. More importance is placed on the actual religious ceremony than on the registration of marriage.
Questions about the validity of registration of a Hindu marriage were brought up in the case of Valsemma v. Cochin Units (1996). Here it was held that the registration of any marriage can be declared as null and void if customary rites of marriage did not take place. This was later overturned by Seema v. Ashwani Kumar (2006). The Ashwini Kumar case was a landmark decision where the Supreme Court noted that abuse can take place when marriage is not registered. It encourages the compulsory registration of marriages, and those marriages of Indians belonging to any religion should be made compulsorily registrable in their respective States where the marriage is solemnized.
More recently, the case of Rathnamma v. Sujathamma (2019)reaffirmed how performance of rituals is required for proving a Hindu marriage. The court held that a Hindu marriage is proved by establishing that the necessary ceremonies have been performed,and for a marriage to be valid, it needs to be in accordance with the provisions of Section 7 of the Hindu Marriage Act, 1955.
Marriage Under Special Marriage Act, 1954
The Special Marriage Act deals with inter-caste and inter-religion marriages. The Act differs from the Hindu Marriage Act primarily because it requires the registration of the marriage in order to declare it as a valid marriage. The fundamental requirement before marriage is consent of two competent parties and not any customary exercise. Section 4 of the Special Marriage Act sets out the conditions which have to be fulfilled for the solemnization of special marriages. These resemble the requirements under Section 7 of the Hindu Marriage Act, which means that the parties have to be of sound mind, capable to give consent and of the legal age for marriage.
The process for registration of marriages in given under Section 16. The parties must first state their intention to get married to each other. This has to be done through the submission of a signed application to the Marriage Registrar. The Marriage officer takes 30 days to tackle any objections to the marriage such as age, free consent etc. At the end of these 30 days, if no objection arises, the marriage is solemnized. The officer may provide them a marriage certificate. The certificate acts as conclusive evidence of the fact that the marriage has been solemnized and that all formalities have been complied with. There is no need for any ritual or ceremony to be performed if a marriage is registered under this Act. The performance or non-performance of rituals is up to the party’s discretion. The unique feature of the Special Marriage Act is the compulsory registration of marriage which is meant to protect the interest of the parties and the children born in the wedlock.
While the Hindu Marriage Act allows for unregistered marriages to be seen as valid, the Special Marriage Act does not allow the same leeway.
Marriage Under Muslim Personal Law
Muslim marriages are governed by the Muslim personal law which has been recognised by the Muslim Personal Law (Shariat) Application Act, 1937. While there are not any prescribed rites ceremonies that have to be followed to solemnise a “nikah”, conditions such as:
- Offer or proposal on the part of one party to the marriage, and;
- Acceptance by the other party(Ejab-o-Kubool);
- Mutual consent;
- Presence of witnesses,
are usually required under Muslim law. In terms of registration, a system of private registration of marriages with the kazis prevails among the Indian Muslims. Under Indian law, these are seen as valid. Once a ‘nikahnama’ is issued, a Muslim marriage is final, and no separate registration is needed under the Special Marriage Act.
Marriage Under Christian Personal Law
Indian Christians are governed by their personal laws as codified under the Indian Christian Marriage Act, 1872 which provides a rather complicated system of solemnisation of marriage given under Section 4 and 5 of the Act.
Section 37 of the Act provides for the registration of marriages but Section 77(5) states that, if a marriage has been solemnized according to Section 4 and 5 of the Act, it will not be void merely because it is not registered. So, similar to the Hindu Marriage Act, the fulfilment of ceremonious rituals is often enough to see a marriage as valid for Christians.
It can therefore be seen that requirement for registration for marriage differs between legislations, since India does not follow a uniform law for marriage. Depending on the religion of the parties, registration may or may not be required. Just because it is not mandatory does not mean registration should be skipped. Marriage registration links the marriage to all related legislations; in other words, marriage registration determines the legitimacy of the marriage.Being aware of the benefits registration of marriage brings, many legislations have attempted to make registration compulsory in the past. For instance, in 2005, the Central Government drafted a Compulsory Registration of Marriages Bill, 2005 that was not taken up further. It was brought up because the Government felt the need for the people of the country to be aware of their social structure and requirements. However, some states have already made marriage registration mandatory. Himachal Pradesh was the first state to introduce the compulsory registration of marriages in 2004. Bihar followed suit in 2006 and Kerala in 2008. Rajasthan introduced a limited version of this law in 2009.
Later, in 2013, the Rajya Sabha proposed an amendment to the Registration of Births and Deaths Act, 1939in order to include compulsory registration of marriage within it, but this was not taken up by the Lok Sabha and the proposal fizzled out. In 2017, the Law Commission in its report spoke about the absence of compulsory registration of marriage. It was of the view that registration of marriages would prevent marriage frauds, bigamy, child marriages and desertions of women by their husbands. While it recognised that some states have guidelines for the registration of marriage, it too recommended that registration of marriages should be included in the Registration of Births and Deaths Act, 1939. Further, it suggested linking the registration with the Aadhar or UID as this would achieve universal tracing of records.
India is a smorgasbord of culture, and religion. For the most part, it has stayed away from religious personal laws so that it does not offend religious sentiments. Due to this, the rules regarding registration of marriage are fairly lax. Most often, a marriage is seen as legal if religious customs are followed to solemnize it. The Special Marriage Act is largely the only legislation that emphasises on the registration of marriages. However, registration is crucial for the protection of both parties to a marriage. It provides the union a legal status and can be helpful when trying to access rights associated with marriage. Women in particular are likely to be defrauded and become victims of violence or bigamy. Unregistered marriages also cause issues when parties try to file for divorce. In such cases, legal recourse is simpler if the marriage has been registered.
The compulsory registration of marriages is not easy to introduce because the laws under which marriages are recognized often overlap with each other. When a framework of registration is made, these laws have to be kept in mind. But the lack of legislation is not usually what keeps couples from registering their marriage. More often than not, it is the complex registration process that keeps people from registering. Filling forms, finding witnesses, and fulfilling other formalities are a never-ending task. Sometimes, people are simply unaware of the requirements which are necessary for the registration of their marriage. In other cases, if the marriage is recognised by the customary rituals, people do not feel the need to engage in the heavy paperwork to register the marriage. To introduce a compulsory legislation, a streamlined registration process would be required.
The registration of marriage and its importance has been seen by the country. Demands for it have been made by even the Supreme Court in the Ashwani Kumar case in 2006. But the lack of a uniform civil code makes registration hard to impose.
Currently most unregistered marriages are still seen as legitimate in the country. Moving forward, for the protection of all parties, it will be important to provide identification to the marriage, which is only done through registration.