Laws relating to solemnization of marriage

Special marriage act, 1954

Special Marriage Act deals with solemnization as well as registration of marriage. The
Special Marriage Act was enacted in order to provide a special form of marriage to all the
citizens of India irrespective of the religion of the parties. The Act is applicable to the whole
of India except the state of Jammu and Kashmir.
Parties who do not prefer to marry according to their respective religious laws and
ceremonies opt to solemnize their marriage in a civil ceremony pursuant to the Indian Special
Marriage Act of 1954.
Procedure of solemnization of marriage under Special Marriage Act, 1995
The District Registrars and Sub Registrars are the Marriage Officers according to the Act.

Solemnization of Special Marriages

Section 4 of Special Marriage Act, 1954 states some conditions. A marriage between any two
persons maybe solemnized under this Act provided the following conditions are satisfied:

o Neither party has a spouse living

o Neither party is a lunatic
o The male must have completed the age of twenty-one years and female the age of
eighteen years.
o The persons seeking to marry must not be within the degrees of prohibited
relationship.

Notice of Intended Marriages

According to Section 5, both the parties to the marriage should give notice in writing in the
prescribed form to the marriage officer of the district in which at least one of the parties to the
marriage has been residing for a period of not less than thirty days immediately preceding the
date on which such notice is given.

A fee of Rs 3 has to be paid for publication of notice. Notice will be published in the office of
the Marriage Officer of the district within whose jurisdiction each of the parties to the
marriage is permanently residing.

The notice may be presented before the marriage officers by both parties in person or by
registered post. In the latter case a fee of RS 3 for notice charge should be sent by Money
Order. The Performa for the notice is given separately. (Please see Notice of Intended
Marriage)

Solemnization of Marriage

The marriage can be solemnized on expiry of 30 days after clearing objections if any filed.
The validity for the notice is 3 months. Before the solemnization of marriage the parties and
three witnesses in the presence of the marriage officer should sign declarations in the
prescribed form.
The marriage can be solemnized in any form, which the parties may choose to adopt. The
marriages can be solemnized either with the office of the Marriage Officer or at such other
place within a reasonable distance as the parties may desire. A fee of RS 10 has to be paid for
solemnization. Certificate will be issued on stamp paper if RS 10 produced by the parties on
payment of Rs. 2/-

Registration of marriages celebrated in other forms

These provision deals with the registration of marriages already are celebrated in forms other
than the special marriage Act.

The following conditions should be satisfied for the registration of marriages

o The couple must have been married in some other forms and they must have been
living as husband and wife ever since such marriage.
o Neither party has more than one spouse living.
o Neither party is an idiot or lunatic.
o The parties should complete 21 years of age at the time of registration.
o Both the parties should reside within the jurisdiction of the Marriage Officer for a
period of 30 days.

Marriage Registration

On receipt of application signed by both the parties and also after publication of notice the
marriage will be registered on the expiry of the notice period of 30 days. Certificate will be
entered in the certificate book and shall be signed by the parties to the marriage and three
witnesses.

A fee for RS 10/-has to be paid for registration. Certificate will be issued on stamp paper of
Rs 10/- produced by the parties and payment of RS 2/-. Services rendered by the Society
Registrar (District Registrar)

Marriage of an Indian national with a foreign national

In a situation where a marriage between an Indian and a foreign national is to take place
within the territory of India, the parties are required to file a notice of intended marriage with
a Marriage registrar of their choice. The notice of intended marriage can be given to the
registrar only under the condition that at least one of the partners is permanently and the other
one is a temporary resident in India. The above said notice is then required to be published
for the stipulated time of 30 days. The marriage registrar is free to perform the marriage at the
end of these 30 days.
In a situation where one partner resides in a foreign country, the partner who is the resident of
India has to collect the marriage notice from the marriage registration office, fill it out and
send to the other partner for them fill it out. The said notice must be sent back to the partner
in India who has to re-submit it at the Marriage Registration Office. After the stipulated
waiting period of 30 days the marriage can take place in India.
Under the Special Marriage Act, 1954 a certificate showing the signatures of the persons
married, the registrar and the witnesses will be issued. This Certificate is required as proof of
the marriage and when applying for a visa to for a foreign country.
At the time of marriage, the parties are required to produce the following documents:

o A valid Passport
o Original Birth Certificate showing parents' names
o If the person concerned is widowed, the original death certificate of the deceased
spouse
o If divorced, copy of the final decree of divorce.
o Documentary evidence regarding stay in India of the parties for more than 30 days
(ration card or report from the concerned SHO)

For instance, an U.S. citizen wishes to perform a civil marriage ceremony under Indian
Special Marriage Act, 1995, may be required to present to the marriage officer a no objection
letter from the U.S. Embassy or Consulate, as well as proof of termination of any previous
marriages. Similarly, a citizen of another foreign country may be required to present to the
marriage officer a no objection letter from the respective Embassy or Consulate of his
country, along with the proof of termination of any previous marriages.

Hindu Marriage Act, 1955

Under the Hindu marriage Act, 1955, certain conditions must be fulfilled in order to make it a
valid marriage. These conditions have been specified under Sec. 5 and sec. 7 of the abovesaid
Act. By virtue of section 5 of the Hindu Marriage Act 1955, a marriage will be valid only if
both the parties to the marriage are Hindus. If one of the parties to the marriage is a Christian
or Muslim, the marriage will not be a valid Hindu marriage.1

It was held in the case of M. Vijayakumari vs. K. Devabalan that:

A marriage between a Hindu man who converted as Christian and a Christian lady in a Hindu
form is not a valid marriage. According to section 5 of the Act marriage can be solemnized
between two Hindus.

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

o Neither party has a spouse living at the time of the marriage,

o Neither party is incapable of giving a valid consent to it in consequence of unsoundness
of mind,

1
http://www.webindia123.com/law/family_law/hindu_law/marriage.htm
 o Though capable of giving a valid consent, neither of them 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,
o Neither of them has been subject to recurrent attacks of insanity or epilepsy.
o The bridegroom has completed the age of 21 years and the bride the age of 18 years at
the time of marriage,
o 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,
o The parties are not sapindas (one is a lineal ascendant of the other) of each other, unless
the custom or usage governing each of them permits of a marriage between the two.2

Degree of prohibited relationship

Two persons are said to be covered under the degrees of prohibited relationship3 if –

o One of them is the lineal ascendant of the other,

o If one was the wife or husband of lineal ascendant or descendant of the other,
o If one of them was 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,
o 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.

A marriage falling within the above categories shall be considered void.

Exception:

Here the customs play an important role i.e. If there is a valid custom governing the parties,
they can marry even if they fall under the degrees of prohibited relationship.

2
Sec. 5, The Hindu Marriage Act, 1955
3
Sec. 5(4), The Hindu Marriage Act, 1955
Solemnization in Hindu Marriage

The Hindu Marriage Act, 1955 deals with the ceremonies to be followed in a Hindu marriage,
by the virtue of Sec. 7. The provision states that a Hindu marriage may be solemnized in
accordance with the customary rites and ceremonies of either of the parties.

A Hindu marriage may be solemnized in accordance with the customary rites and
ceremonies of either party thereto.

Where such rites and ceremonies include the saptpadi (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.

The ceremonies may vary according to the cultures and customs followed by the parties.

In the matter of Kanwal Ram vs. Himachal Pradesh Administration the court declared that a
marriage is not proved unless the essential ceremonies required for its solemnization are proved
to have been performed.