INDIAN LEGAL FRAMEWORK ON REGISTRATION OF HINDU MARRIAGES

LEGISLATIONS UNDER WHICH A HINDU MARRIAGE CAN BE    REGISTERED:

Presently, two pieces of legislation have been drafted to address the issue of marriage registration laws with regard to the people who practise the Hindu religion. These legislations are:

1. The Hindu Marriage Act, 1955 and
2. The Special Marriage Act, 1954. 

1.1 REGISTRATION OF MARRIAGE UNDER THE HINDU MARRIAGE ACT, 1955

Section 8 of the Hindu Marriage Act, 1955 provides for the registration of marriage. Registration under this Act is intended to make it easier for a person to obtain proof of marriage through registration. The State Government was empowered to lay down rules for the registration of marriages.

• (1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.
• (2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.
• (3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.
• (4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.
• (5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.

     1.1.1 DOES HINDU MARRIAGE ACT APPLY TO FOREIGNERS?

The Supreme Court ruled that India’s Hindu marriage law will apply to Hindu couples residing in other countries or holding citizenship of other countries only if there is proof of permanent residence (domicile) in India.

The SC ruled that the Hindu Marriage Act 1955 can have extraterritorial effect on non-Indian Hindu couples or couples domiciled in other countries only if they are domiciled in India.

1.2 REGISTRATION OF MARRIAGE UNDER THE SPECIAL MARRIAGE ACT, 1954

The Special Marriage Act 1954 is available to all Indian citizens regardless of religion and was originally enacted to allow cross-community marriages. According to section 15 of the Act, marriages are registered by a special marriage officer designated for this purpose. Marriage records from all marriage officers are regularly forwarded to the Registrar General of Births, Deaths and Marriages. Periodicity and forms are determined by the state governments according to the rules to be drawn up for carrying out the purposes of this Act (Sections 48-50).

1.3 ELIGIBILITY AND ESSENTIALS TO REGISTER MARRIAGE ACCORDING TO THE HINDU MARRIAGE ACT, 1995

Section 2 and Section 5 of the Hindu Marriage Act, 1955 (HMA) lays down the eligibility criteria for solemnisation and registration of marriage under the Act. 

Under Section 2, the following people are considered to be Hindus for the purpose of the Act and are eligible to register their marriage under the Hindu Marriage Act:

• Any person who is a Hindu by religion in any of its forms or developments, which includes Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
• Any person who is a Buddhist, Jain or Sikh by religion.
• Any other person domiciled in the territories to which this act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

A Hindu marriage can only be solemnised between two Hindus, according to Section 5 of the Act. For instance, a marriage between a Hindu man who converted to Christianity and a Christian lady disguised in Hindu form is not valid.

Section 5 further states the conditions for solemnization of marriage under the Act. It lays down the following conditions in order for the marriage to be eligible for solemnization:

• Neither party has a living spouse at the time of the marriage.
• Neither party is incapable of giving valid consent to it in consequence of unsoundness of mind.
• Though capable of giving valid consent, neither of them has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children.
• Neither party has a living spouse at the time of the marriage.
• At the time of marriage, the bridegroom is at least 21 years old and the bride is at least 18 years old.
• The parties are not within the degrees of prohibited relationship unless the custom or usage controlling each of them allows for a marriage between the two.
• The parties are not sapindas (one is a lineal ascendant of the other), unless each party’s custom or usage allows for a marriage between them.

The old recognised customs, smritis, and shrutis provide Hindu personal law with its life and breath, Hence it is a key condition for a marriage to be registered after it is completed by the customs of the said specific group or tribe.

2.  PURPOSE OF COMPULSORY REGISTRATION

The main purpose of compulsory registration is to provide a valid proof of marriage. In many cases heard before various courts in India, it has been observed that there have been disputes regarding the date of marriage or sometimes even the existence of marriage. The Supreme Court felt the need to make registrations mandatory and directed all state governments to enact laws to that effect. A registered marriage is considered valid.

The aim of compulsory registration is to ensure that public records are kept of all marriages. It is also a means of reducing the incidence of child marriage, as registration requires proof of age to be presented to the registry office. In addition, many foreign countries require a valid marriage registration certificate to process applications for visas, work permits, etc.

3. WHAT IF A HINDU MARRIAGE IS NOT REGISTERED? IS IT STILL CONSIDERED TO BE A VALID MARRIAGE?

An unregistered marriage is not to be considered “invalid”, but simply in an effort to encourage registration, small penalties may be attached to non-registration. the marriage may still be considered valid even though there is no registration of the marriage certificate at the local registry office or the national statistics office.

However, it is important to clarify that the mere fact that a marriage is not registered does not mean that it is invalid. Registration is only valid legal evidence. If there are sufficient other means to prove the marriage, such as photographs and witnesses, the mere lack of a registry document does not invalidate the marriage. However, according to the Special Marriage Act 1954, registration alone amounts to solemnization and non-registration affects the validity of marriages, especially between members of two different communities. There is no penalty for not registering marriages that were concluded before these legal regulations.

4. REGISTRTION OF A MARRIAGE OF NON-RESIDENTS OF INDIA

An NRI is defined as an Indian citizen who resides outside the country. Any NRI who marries a citizen of India or another NRI must get their marriage registered within 30 days. If the marriage takes place outside India, it must be registered with a marriage officer to be appointed from among the diplomatic officers of the foreign country, as specified under the “Registration of Marriage of a Non-Resident in India Bill, 2019”.

In case the NRI fails to register the marriage within 30 days, the passport authority can impound or cancel his/her passport.

However, the bill does not provide any extension of time to the NRI in case he is unable to register the marriage within the 30-day period.

The penalty for not registering the marriage within the specified period would be confiscation of the passport, which can have serious consequences such as deportation or loss of employment abroad.

5.  SHOULD IT BE COMPULSORY FOR A HINDU MARRIAGE TO BE REGISTERED IN INDIA?

In India, not recognizing an unregistered marriage as valid would be highly inappropriate, as many marriages normally take place informally in gatherings of relatives, with or without priests present, or in any other customary manner, which must also be recognized as valid.

In many rural parts of India, illiteracy still persists among people and tribes. This leads to non-registration of marriages.

Although there are many benefits of marriage registration, these rural and tribal people have their own customs and traditions and it is difficult to track each and every one of them.

6. LOOPHOLES AND RECOMENDATIONS

Today, many forms of relationships between a man and a woman are known, which makes it difficult to understand each of them. Given that many legal rights and mutual obligations arise from these relationships, proving the existence of a relationship is an important issue when a dispute arises.

India’s illiterate population is also a factor why most couples do not register their marriages.

However, many couples who have not yet registered their marriage have found ways around such red tape. For example, if the surnames match, passport officers do not require a marriage certificate and surnames can be changed through a notarized affidavit and a government gazette notice.

Another factor for many couples who ignore marriage registration is that they find the marriage registration process too complicated and time-consuming. Although, after the introduction of online portal for the purpose of registration of marriages and getting a certificate, the process has become comparatively easier.