Marriage Archives - Page 2 of 3

Who can you complain to regarding a grievance under the law?

In case a person has given the notice to have their marriage performed by or in the presence of a Marriage Registrar, and the Registrar has refused to issue a certificate of marriage, one can approach the Court. Those residing in the towns of Mumbai, Kolkata, and Chennai can directly approach their respective High Courts, while those not residing there can approach the District Court.(( Section 46. Indian Christian Marriage Act, 1872.))

Complaints regarding minor marriages

The Marriage Registrar must wait for 14 days from the date of receiving the notice in order to issue a certificate of receipt of notice, when one party is a minor (below the age of 21 for Christian Marriages). However, in case one cannot wait for 14 days in order to get the certificate, they can file a petition in their respective High Court, to get the certificate of receipt of notice within 14 days of the notice. However, this option is available only to the residents of Kolkata, Mumbai, and Chennai.(( Section 43, Indian Christian Marriage Act, 1872.))

Who can get married under Christian Law?

Any two persons, where one or both participants are Christians, can get married under Christian law.(( Indian Christian Marriage Act, 1872, Section 4.))

In the eyes of law, any person who truly believes in the Christian faith will be a Christian.(( Indian Christian Marriage Act, 1872, Section 3.))

Whether or not they have been baptised into the faith need not determine their status as a Christian. Rather, the law looks at the genuineness of the person’s faith in the religion, to determine whether they are a Christian or not.(( Maha Ram v. Emperor AIR 1918 All 168, K.J.B. David v. Nilamoin Devi, AIR 1953 Ori 10.))

Minimum Age for Marriage

While the law does not prescribe a minimum age for getting married, the law provides for a special procedure for the marriage of minors. For the purposes of Christian Marriage, a minor is anyone below the age of 21, and someone who is not a widow/widower.(( Section 3, Indian Christian Marriage Act, 1872.))

However, the Prohibition of Child Marriage Act makes every marriage involving a child (below 18 years), illegal but voidable at the option of the child.(( Section 3(1), Prohibition of Child Marriage Act, 2006.))

In situations where the minor is between 18 to 21 years old, they would require the consent of either their father, guardian, or mother to get married under the law.¹ To know more about the special procedures of marriage of a minor, read our explainer on Marriages of Minors under Christian Law.

Prohibited Marriages under Christian Law

Certain personal laws may absolutely prohibit a person from marrying a certain person, such as marriage between siblings.(( Canon 1092, Code of Canon Law.)) The Christian Marriage law does not allow for such prohibited marriages and such marriages are considered to be invalid under this law.(( Section 88, Indian Christian Marriage Act, 1872.)) However, a person still has the option to marry under the Special Marriage Act, and the impediment of personal laws won’t be applicable for such a marriage. To learn more on special or inter-religious marriages, read our explainer on Inter-Religious Marriage.

Sections 19 & 44, Indian Christian Marriage Act, 1872. [↩]

What are the schools of Muslim law?

There are various schools of Muslim law. The law on Muslim marriages comes from the interpretation of the Quran by scholars. Thus, most Muslim marriages are guided by customs derived from interpretations followed through generations. The laws and customs that apply to each person following Islam differ based on the sect of the person. Further, different branches of customs have emerged within sects. These branches have specific laws known as “Schools of Law”.(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.28.))

In India,(( Consultation Paper on Reform of Family Law, Law Commission, available at https://lawcommissionofindia.nic.in/reports/CPonReformFamilyLaw.pdf.)) parts of Muslim personal law were written down in 1937 as the Muslim Personal Law (Shariat) Application Act, 1937 as well as the Dissolution of Muslim Marriages Act,1939. These two laws in many ways have led the reforms in family laws. However, Muslim marriages are guided by the Islamic religious precepts. In Islam, there are two sects- Sunni and Shia. Each sect practices different schools of law. This means that depending on the sect, the marriage procedure differs for a bride and a groom.(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.28.))

Prohibition of Child Marriage

Child marriage is an age old practice in India. To address this social issue, the law prohibits people from performing child marriages and lays down punishments for those involved in conducting the marriage.

However, if a child has been married, the law does not immediately make the marriage illegal. The child so married has the option to cancel the marriage or continue the marriage.

According to certain personal laws (laws that govern different religions on aspects like marriage, divorce etc.), in India, marriage is allowed after the child has attained puberty. This can happen before the child has turned 18 years (in case of girls) or 21 years of age (in case of boys). On several occasions, Courts have held that such marriages conducted under personal laws would not be illegal. However, the child married under such laws would still have the option to cancel their marriage as per the child marriage law.

However, in certain circumstances, some child marriages are considered to be absolutely illegal.

Hindu Spouse

If you want to be a Hindu spouse and marry under the Hindu Marriage Act, you have to be one of the following set of persons:

Any person who is a Hindu by religion. This includes Veerashaiva, Lingayat or a follower of the Brahmo, Prarthana, or Arya Samaj.
Buddhist, Jain or Sikh by religion.
Any other person to which the Act applies who is not a Muslim, Christian, Parsi, or Jew by religion.

If you are governed by Hindu law or custom or usage, then you can marry under the Hindu Marriage Act.

Who can perform a Christian Marriage?

The following persons can perform a Christian Marriage under the law:

Any person who has received the ordination from their church to be a priest/minister.(( Section 5(1), Indian Christian Marriage Act, 1872.))
Any clergyman of the Church of Scotland.(( Section 5(2), Indian Christian Marriage Act, 1872.))
Any Minister of Religion licensed under the Indian Christian Marriage law to perform marriages.(( Section 5(3), Indian Christian Marriage Act, 1872.))
A Marriage Registrar appointed under the Indian Christian Marriage Act. The marriage has to take place by the Registrar or in their presence.(( Section 5(4), Indian Christian Marriage Act, 1872.))
By any person licensed under the Indian Christian Marriage Act to grant certificates of marriage.(( Section 5(5), Indian Christian Marriage Act, 1872.))

Any marriage performed by a priest, minister or any clergyman of the Church of Scotland will be performed according to the rules, rites, ceremonies, and customs of that particular denomination of church. However, the procedure for marriages will be according to the Indian Christian Marriage Act if conducted by a Minister of Religion, Marriage Registrar or by any person licensed to give certificates under this law. The procedures also differ based on the person performing the marriage. Read more on the procedures here.

Is Muslim marriage a contract?

Marriage is a contract under Muslim law.(( Hasina Bano v. Alam Noor A.I.R 2007 Raj 49.)) The contract can be entered into by fulfilling the following conditions:

Both the bride and groom must give free consent for the marriage.
The couple getting married should be of sound mind and should have attained puberty (usually 15 years).(( Shoukat Hussian and another v. State of Punjab and others [CRWP No.733 of 2021 (O&M)].))
A guardian like a parent or sibling can consent on behalf of a minor or someone not of sound mind.

Conducting a Child Marriage

Conducting child marriages is also a crime:

Conducting the Marriage: Anyone who performs or helps in performing a child marriage will be committing a crime.

Parents/Guardians conducting marriage: If a parent, guardian or any person responsible for a child in any capacity, promotes child marriage or participates in conducting a child marriage, then they will be committing a crime. Attending or participating in a child marriage is also a crime.

Anyone who is convicted of committing these crimes will be punished with rigorous imprisonment for two years along with a fine of one lakh rupees.

All offences under this law are cognizable and non-bailable, which means that the police can arrest you without a warrant and bail will not be granted to you as a matter of right.

Minimum Age for Hindu Marriage

The minimum age for a marriage under Hindu law is:

the groom must have been over 21 years of age and
the bride must have been over 18 years of age

The punishment for not adhering to this requirement is simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees.

If either one of the parties is not of marriageable age, the marriage is considered a child marriage and is a voidable marriage.

What are Irregular Christian Marriages?

Irregular marriages are those marriages where certain conditions are not followed. Usually, such marriages are considered to be invalid from the start; however, the law states that in case there are irregularities, the marriage will not be invalidated, rather it will be rectified.(( Section 77, Indian Christian Marriage Act, 1872.)) Given below are some of the reasons for which a marriage may be irregular. Some of these errors may happen:

In any statement regarding the place of residence of the persons married
In any manner of consent given by a person whose consent to such marriage is required by law.
In the notice of the marriage.
In the certificate.
In the time and place at which the marriage took place.
In the registration of the marriage.(( Section 77, Indian Christian Marriage Act, 1872.))

What is the proposal and acceptance requirement for Muslim marriage?

There should be a proposal of marriage made by or on behalf of one of the parties and the other party has to accept this proposal. Both the bride and groom have to say Ejab e Qubool (Qubool hai), which means “I agree”.

This has to be said out of their own will and explicitly during the ceremony. The proposal and the acceptance should be made at one meeting, meaning, a proposal made at one meeting and an acceptance made at another meeting will not constitute a valid marriage.(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.331.))

Parental Responsibility of their Child’s Marriage

In most crimes, the responsibility to prove the guilt lies on the public prosecutor, an advocate for the State. However, under this law, if a child marriage has taken place, then it will be presumed that the parent or guardian responsible for the child failed to prevent the child marriage from taking place.

It is important to note that women cannot be punished with imprisonment under this law, and can only be fined.

Relationship Status and Hindu Marriage Law

At the time of marriage, you should not have a married spouse who has not divorced his previous spouse. If you are a divorcée you can enter into a marriage again only if your divorce is complete.

Neither party should have a spouse living at the time of the marriage. You can file a civil injunction to try to stop your spouse from getting married to someone else.

If your spouse is still alive, it is a crime to be married to another person. Your first spouse can file a criminal case against you. This is an act of bigamy. This is not an easy process because the first spouse will have to produce concrete proof – even another child being born out of the second marriage is not enough.

If this is proven, you might go to jail for up to 10 years and also have to pay a fine.

What are the different procedures to get married under Christian Law?

The marriage procedure differs according to the person performing the marriage. The law does not give details of the procedure in cases where the marriage is conducted as per the rules of a particular denomination of the Church. However, when the marriage is performed by an official appointed by the Act, like a Marriage Registrar or a certified Minister of Religion, it will be performed according to the Christian Marriage law, with the relevant procedure.

Types of Procedures:

To read more on the procedures, see our explainers on:

What are the eligibility criteria for Muslim marriages?

For a marriage to be legally recognized as a Muslim marriage, the following conditions must be met:(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.251.))

Age

A couple can get married if they have attained puberty (usually 15 years).

Mental State

A person with mental illness can get married if their guardian has given consent to the marriage. ‘Consent’ or agreeing to get married is an important part of a Muslim marriage. Even though it is assumed that a person with mental illnesses does not have the ability to get married, the law allows such marriages if the guardian agrees to it.

Minor

A boy or girl who has not attained puberty (minor) is not competent to enter into a contract for marriage but the guardian may contract their marriage for them after they attain puberty.(( Shoukat Hussain and another v. State of Punjab and others [CRWP No.733 of 2021 (O&M)].))

What are the essential conditions of a Muslim marriage?

There are a few essential steps that need to be followed to make the marriage valid(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.331.)):

Proposal and Acceptance

There has to be a proposal made by or on behalf of one person and it has to be accepted by the other for a valid marriage.

Consent

Consent is a very important criteria for a marriage and the criteria for consent changes according to the different schools of law.

Witnesses

Witnesses are those people who are present at the marriage and can state that it took place. They are an important requirement for a valid muslim marriage.

Prohibited Relationship

Some relationships within a family and extended family are prohibited, meaning, one cannot marry these people as such relationships are prohibited under custom. There are strict prohibitions in muslim law which have to be followed.

Cancelling a Child Marriage

Where a child marriage has taken place, the person who was a child at the time of marriage has an option to cancel the marriage. You can cancel a child marriage in the following manner:

Where do you file the case?

A petition should be filed in the District Court to get the marriage annulled.

Who files the case?

If the person filing the case is a minor (below 18 years of age) then their petition has to be filed through a guardian or any other person who is interested in the child’s well being. This person will have to file the case along with the Child Marriage Prohibition Officer, who is responsible for preventing child marriages.

When can you file the case?

It is important to note that there is a time limit to file this petition. It can only be filed within two years after the child attains majority. For girls, such a petition to strike down their marriage can only be filed till they turn 20 years old and for boys till they turn 23 years old.

What does the Court do?

When such a child marriage is cancelled, the District Court will order both the parties to return all the money, valuables, ornaments and all other gifts received during the wedding to the other side. If they are unable to return the gifts, an amount equal to the value of the gifts must be returned.

Registration of Hindu Marriage

Registration of marriages in Hindu Law is given under Section 8 of the Hindu Marriage Act. This allows the State Government to make rules regarding registration.

The State Government may make rules about how the marriage details should be entered in the Hindu Marriage Register. The State Government can also make marriage registration compulsory in the State if it thinks this is necessary. In this case, any person violating the rule by not making an entry in the marriage register can be punished with a fine of up to Rupees twenty-five.

However, even if the entry has not been made, it does not mean that your marriage is invalid. If you take a look at the table given, you can see that each state has its own rules for Hindu marriages:

STATE	LINK

Andhra Pradesh	Andhra Pradesh Hindu Marriage Registration Rules, 1965
Jammu and Kashmir	The Jammu and Kashmir Hindu Marriage Registration Rules,2012
Meghalaya	The Meghalaya Hindu Marriage Rules, 2006
Mizoram	Mizoram Compulsory Registration of Marriages Rules, 2007
Kerala	Kerala Hindu Marriage Registration Rules, 1957
Madhya Pradesh	The Madhya Pradesh Hindu Marriage Registration Rules,1984
Orissa	The Orissa Hindu Marriages Registration Rules, 1960
Uttar Pradesh	The Uttar Pradesh Hindu Marriage Registration Rules, 1973
Punjab	Hindu Marriage (Punjab) Registration Rules, 1960

What is the procedure for a marriage by a person licensed to grant marriage certificates?

As per the law, a person licensed to grant Marriage certificates can only certify marriage between two Indian Christians,(( Section 60, Indian Christian Marriage Act, 1872.)) neither of them coming from the Roman Catholic faith.(( Section 65, Indian Christian Marriage Act, 1872.)) Under these provisions, any two Indian Christians can marry, without preliminary notices, if they fulfil the following conditions:

The bridegroom is over 21 years and the bride is over 18 years of age.(( Section 60 (1), Indian Christian Marriage Act, 1872.))
Neither of them has a wife or husband still living.(( Section 60 (2), Indian Christian Marriage Act, 1872.))
If they take the oath prescribed by the law, in front of the person licensed to grant certificates, and two other credible witnesses.(( Section 60 (3), Indian Christian Marriage Act, 1872.))

Upon receiving an application in person from any one of the parties, the licensed person will see whether the above criteria have been met, and shall issue a certificate for the marriage. The fee for obtaining such a certificate is four annas, that is, 25 paise. This certificate will act as conclusive proof for the validity of the marriage performed.(( Section 61, Indian Christian Marriage Act, 1872.))

What are prohibited relationships under the law?

Certain relationships are prohibited under the law. This means that a person cannot marry certain kinds of relatives:(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.332.))

Blood Relations

You cannot marry your mother, grandmother, daughter, granddaughter, sister, niece, great-niece, aunts, or great-aunts. You also cannot marry someone who is also related to you through such relatives. For example, you cannot marry your great granddaughter.

Relatives through Marriage

You cannot marry your wife’s mother/grandmother, wife’s daughter/granddaughter, son’s wife in the case of a second, third or fourth marriage.

Relatives through Fosterage

All relations prohibited through blood relations and marriages apply to foster relationships as well. Example, a man cannot marry his foster mother’s daughter.

Child Marriages Not Recognized by Law

In certain cases under the child marriage law, the marriage would be absolutely illegal and will be considered to have not occurred in the first place. Such instances are as under:

When a child is kidnapped for the purpose of marriage.

When a child is enticed and taken for the purpose of marriage.

When a child is:

Sold for the purpose of marriage
After marriage, the minor is sold or trafficked

If the Court passed an order against a child marriage and it still takes place.

Hindu Marriages and Mental Illness

Trigger Warning: The following content contains information which some readers may find disturbing.

The law states that people with mental illnesses usually do not have the capacity to enter into valid legal marriages. Mental illness means a substantial disorder of thinking, mood, perception, orientation or memory that severely impairs judgement, behavior, capacity to recognize reality or to meet the ordinary demands of life, and mental conditions associated with the abuse of alcohol and drugs.(( Section 2(s), Mental Healthcare Act, 2017.))

A person planning on getting married should be able to give valid consent. If you are not able to give consent because of:

Unsoundness of mind or;
Because of a mental disorder which makes you ‘unfit for marriage and the procreation of children’ or;
If you get ‘recurrent attacks of insanity’, your marriage will not be valid.

While the provision of the law may not cover all kinds of mental illnesses, there are no proper guidelines on what kind of illnesses or the degrees of illness make you unsuitable for marriage.

What is the procedure for a marriage by a Marriage Registrar?

A marriage performed by a Marriage Registrar is divided into 4 stages:

Stage 1: Issuing of Preliminary Notice

If a couple wishes to be married by a Marriage Registrar, one of them must give a notice in person to the Registrar of the district in which the couple lives. In case they live in different districts, the notice shall be given to the Registrars of both the districts. The notice shall state their intention to be married, in the prescribed format, and should mention the following:

The name and surname, and the profession, of each of the persons intending marriage,
The current address of each of them,
The time during which each has been present in the said address. In case a person has been staying there for more than a month, they only need to state the same.
The place where the marriage will take place.(( Section 38, Indian Christian Marriage Act, 1872.))

Given below is a sample notice:

Notice Marriage Registrar

The notice will be pasted by the Registrar at a conspicuous place in the office,(( Section 39, Indian Christian Marriage Act, 1872.)) and will be entered in the Marriage Notice Book kept in the office.¹

Stage 2: Issuing of certificate of receipt of notice

After at least four days of receiving the notice by the Registrar,(( Section 41, Indian Christian Marriage Act, 1872.)) one of the parties intending marriage must make an oath to the Registrar, stating that there are no legal problems in performing the marriage, and that they live within the District of the Registrar’s office.(( Section 42, Indian Christian Marriage Act, 1872.)) In case one of the parties is a minor, one of the parties must also take an oath stating that the necessary steps have been taken.(( Section 42, Indian Christian Marriage Act, 1872.)) To know more about the special procedures of marriage of a minor, read our explainer on Marriages of Minors under Christian Law.

After such a declaration has been made, the Registrar will issue a certificate to the parties, in the prescribed format, and the parties can be married by any Registrar or in the Registrar’s presence, within two months of receiving the certificate.(( Sections 41, 50-52, Indian Christian Marriage Act, 1872.)) Given below is a sample of a certificate of receipt of notice.

Stage 3: Performance of Marriage

The certificates obtained must be produced in front of the Registrar at the time of marriage.(( Section 51, Indian Christian Marriage Act, 1872.)) The marriage will be conducted either by the Registrar themselves, or any other person authorized to do the same. The marriage ceremony must be attended by two witnesses, apart from the Registrar.(( Section 51, Indian Christian Marriage Act, 1872.)) In case two months have passed from receipt of the certificate, the entire process must restart with a fresh notice.(( Section 52, Indian Christian Marriage Act, 1872.))

Stage 4: Registration of Marriage

After the performance of the marriage, the details of the marriage shall be entered in a register by the Registrar, in the prescribed format.(( Sections 53 & 54, Indian Christian Marriage Act, 1872.)) The entry will be signed by the Registrar, the person who performed the marriage (if marriage was performed by someone other than the Registrar), parties to the marriage, and two witnesses who had attended the ceremony.(( Section 54, Indian Christian Marriage Act, 1872.))

A certified copy of an entry in the marriage register, signed by the person under whose custody the register is kept, will act as evidence that the persons mentioned in the entry have been married according to the law.(( Section 80, Indian Christian Marriage Act, 1872.)) Upon payment of the prescribed fees to the Marriage Registrar, one can always inspect a marriage register which is within the custody of the said Registrar.(( Section 79, Indian Christian Marriage Act, 1872.))

Section 40, Indian Christian Marriage Act, 1872. [↩]

Who are the witnesses required during a Muslim marriage?

The marriage has to take place in the presence of:

Two male witnesses or
One male and two female witnesses.

These witnesses must be Muslims, adults and of sound mind. The Sunni School of Muslim law specifically requires two witnesses to present while the Shia School of Law does not require the presence of a witness in any matter regarding marriage.(( Mulla, D. F., Sir. (n.d.). Principles of Mahomedan Law (20th ed.) p.332.))

Children Born Out of Child Marriages

Irrespective of whether the child marriage has been cancelled or not, as per the law, a child born out of such a marriage would be considered a legitimate child under the law.

Custody of Children

As for the custody of such children, the district court will decide who would receive custody of the children only while hearing the petition for cancelling the marriage.

The court will take the following into account while granting custody:

The welfare and the best interest of the child will be given paramount consideration by the court while deciding their custody.
The court may even allow the other party access to such children if it thinks it would be in the best interest of the child to do so.
The District Courts can direct the husband, or in cases of minors, their parents or guardians, to pay an amount as maintenance to the girl.