Theme: Family & Marriage

Can an Indian Hindu and a Nepali Muslim marry under the Special Marriage Act in India?

The Act does not explicitly deal with the question of citizenship, and this has been interpreted to allow foreign nationals to register their marriage under the SMA. A 2023 judgement by the Delhi High Court interpreted the eligibility criteria to include foreign nationals. However, one must double check with the registrar office since the Act also states that it applies to ‘whole of India’, hence different state offices might have varying interpretations.

In the context of a Hindu-Muslim interfaith marriage, how is the identity of children—specifically in terms of religion and surname—determined under Indian law? What legal options do the parents have?

There is no binding law on deciding the child’s surname. However,it depends on the upbringing of the child. If the upbringing is uncertain then it is assumed that the child will take the surname of the father. WIth regards to religion, the Supreme Court held that until the child is 18, the father’s religion will be applicable and once they become an adult, they may choose the religion they wish to follow. 

Under Indian law, will a civil marriage conducted abroad between two Indian citizens of different religions—a Muslim woman and a Hindu man—be legally valid and recognized in India?

Under the Special Marriage Act, 1954 any marriage conducted through ceremonies outside the ceremonies of marriage under the Act, can be registered under the Act if the husband and wife have been living together ever since. However, this will only be applicable to Indian citizens.

You may also consider registering your marriage under the Foreign Marriages Act, 1969 if you wish to solemnise your marriage abroad. The Certificate of Marriage will be held valid in India.

What is the most efficient method for an interfaith NRI couple, already married in Denmark under the Foreign Marriage Act, to register their marriage under the Special Marriage Act in India? Additionally, is it possible to bypass the 30-day notice period and avoid public disclosure of personal details?

Since the 30 days notice period is mandatory, the time period required to register your marriage will be a minimum of 30 days. Depending on the state in which you are planning to register, you can check which is the earliest date available from the registrar. 

Is there any option to register a marriage online?

Yes, under the Special Marriage Act, section 12 allows for the marriage to be solemnised according to the manner and place that the couple chooses. Several court judgments have relied on this provision to permit virtual marriages. Moreover, different states have different rules for notifying and registering marriages. You could look at state specific rules.

Is there any kind of relief or provision under the Special Marriage Act if one of the partners is serving in the armed forces, such as the Army, Navy, or Air Force?

While the Act does not provide any special provisions for armed forces personnel, for the purpose of serving notice, it can be served to the marriage registrar located within either of the partner’s last place of residence so in case one of the partners is away on duty, the other’s place of residence will be applicable. Moreover, section 12 of the Act states the marriage can be conducted in a form and place that the parties may choose to adopt. This provision has been read by the Supreme Court to validate a virtual marriage under the Act. This can be helpful for armed forces personnel who may not be able to be physically present to fulfill the requisites of marriage under the Act. 

Procedures for Adoption

How can this guide help you?

The Nyaaya Guide on Procedures for Adoption helps you understand everything you need to know about adoption in India with simple language and easy to understand illustrations. This guide tells you about the steps involved in the procedures for Adoption by Resident Indians (Non-Religious Law), Adoption of a Child from a Foreign Country by Indian citizens (Non-Religious Law), Adoption by OCI or Non-Resident Indian (NRI) or a Foreigner Living Abroad (Non-Religious Law), Procedure for Adoption by Step-Parent (Non-Religious Law), Procedure for Adoption by Relative (Non-Religious law) and the Procedure for Hindu Adoption.

Click on the link above to download the PDF of the Guide and share with other citizens to #BeALegalChampion!

I am a 16 year old Muslim girl. Can I get married?

Under Muslim law, if a girl has attained puberty (15 years) then she can get married. So, a girl of 16 years old who has attained puberty can get married.(( Shoukat Hussian and another v. State of Punjab and others [CRWP No.733 of 2021 (O&M)].))

I am a Muslim girl, can I get married to a Christian boy?

Under Muslim law, only a Muslim man can marry a Christian woman or a woman from any other religion. This is not the case for a Muslim woman, as she cannot marry a Christian Man or a man from any other religion. If she does, then she will not be considered a Muslim anymore.(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.338.))

However, now two people who are from different religions can marry and register under the Special Marriage Act, 1954. Read more on our explainer on Special Marriage.

My friend wants to get married to an older man who belongs to another religion. I do not approve of this. Can I object to her marriage under the Special Marriage Act?

Any person may object to a marriage if it goes against any of the requirements given in Section 4 of the Act. The objection must be made within 30 days of publication of the notice of the intended marriage. When an objection is made, the Marriage Officer will not allow the marriage to be performed until they address the objection. They will then make a decision within 30 days of the objection whether to uphold it or not. If they uphold the objection they will not perform the marriage.

I am a Hindu woman and I want to get married to a Muslim man. Is this possible?

Yes. Inter-religious marriages are permitted under the Special Marriage Act. Even if the marrying parties belong to different religions, they can get married under this Act without having to convert or change their religion. The only requirement is the valid consent of the parties. You must be at least 21 years old (if male) or 18 years old (if female).

What happens when you register an inter-religious marriage?

A marriage that has been registered under the Act by a marriage officer will be entered in the Marriage Certificate Book and will be deemed to be a legitimate marriage under the Act. All the children born after the date of the ceremony will also be considered to be legitimate children.

I am being harassed in my arranged marriage. What can I do?

If you are being harassed in your marriage, then you can file for divorce on the grounds of cruelty. If you have been married under Hindu law then your divorce will also be governed by the same law. You can divorce your spouse only based on the reasons specified in the law. It is harder to seek a divorce simply only on the grounds that you no longer wish to remain married without it matching any reasons recognized by the law. However, it is possible to get a divorce if you and your spouse mutually consent to it. Divorce can take place if the husband or wife brings a petition to the Court based on the recognized reasons.

Pre-Nup

Though prenuptial agreements are not legally validated under religious Hindu marriage law, a prenuptial agreement can be legally enforceable as per contract law in India. A contractual prenuptial agreement should follow the legal rules of contracts given under the Indian Contract Act , 1872. To be valid, the contract should not be contrary to law or public policy, so if the marriage is governed by the Hindu Marriage Act, the contract cannot have provisions that violate that law.

What is the ‘Saptapadi’ ceremony? Is it essential for a valid Hindu marriage?

The Saptapadi ceremony establishes the commitment the couple makes to each other during the Hindu wedding ceremony. Saptapadi quite literally translates from Sanskrit to ‘seven steps’. The couple takes seven full circles, walking clockwise around the ceremonial fire, representing the seven principles and promises they make to each other.

Your marriage is not legally ‘solemnized’ if you do not follow the essential ceremonies followed by either your or your spouse’s communities. There are different customary requirements in different parts of the country – generally, in north India, saptapadi and invocation before the sacred fire are considered essential ceremonies. However, these are not considered essential ceremonies in states like Tamil Nadu and Pondicherry – an exchange of garlands or rings and tying a thali is considered enough.

Saptapadi is therefore not necessary for all marriages. However, where saptapadi is observed as a ceremony, when last step taken around the fire the marriage will be considered complete.

What does it mean to annul my marriage under Hindu law?

As you know, there are certain conditions for a valid Hindu marriage. When these legal requirements are not met, your marriage suffers from certain legal defects/problems. It has no legal validity and you can annul the marriage in a Court. There are two categories of legal defects in a marriage – ‘void’ and ‘voidable.’ It’s simple – a void marriage is automatically considered an invalid marriage from the very beginning and there is no need to annul it. On the other hand, a voidable marriage is legal until a Court says it is not. Once you have fulfilled conditions then your marriage can go back to being valid.

For example, marriages are void when the conditions of not having a spouse before getting married, you and spouse not falling within the category of “prohibited relationship” or “sapindas” are not followed. On the other hand, a marriage is voidable when your spouse is impotent.