personal law on marriage in india: conditions, solemnisation & new trends and issues

Marriage: Notion, Conditions & Qualifications and New Trends & Issues

Prof. Ashok Wadje (Assistant Professor)

National Law University, Jodhpur

MODULE-II MARRIAGE: CONCEPT & LEGAL DIMENSIONS

• Part ‘A’: Notion Of Marriage & Mode Of Solemnisation Under Various Personal Laws

• Part ‘B’: Qualifications, Conditions And Prohibition Under Various Personal Laws

• Part ‘C’: Relationship In The Nature Of Marriage & Other Issues Surrounding Institution Of Marriage

© Ashok Wadje

Scope of the PPT

NOTION OF MARRIAGE CONDITIONS & QUALIFICATIONS NEW TRENDS & ISSUES

As Sacrament Qualifications for parties Relationship in the Nature of Marriage

In The Nature Of Contract Conditions for parties (Compulsory) Registration of Marriage

As Civil Relationship Prohibitions Child Marriage

Legal Incidents Of Marriage: “03 Cs” Solemnisations Pre-nuptial agreement &

decision of matrimonial home

© Ashok Wadje

Pre-marriage regulations

1) Conditions for Parties to Enter in Marital relationship:

a. Qualifications

b. Restrictions

c. Prohibitions

d. Capacities

2) Three type of Conditions/Capacities/Restrictions/Proh.:

a. Physical

b. Mental

c. Wrong on the part of parties /act of Parties

© Ashok Wadje

Post-marriage regulations

1) Legal Incidents of Marriage

a. Cohabitation

b. Consummation

c. Conjugality

2) Matrimonial Causes & Remedies:

a. Divorce/Dissolution of Marriage

b. Judicial Separation (J.S.)

c. Restitution of Conjugal Rights (RCR)

d. Nullity of Marriage

e. Maintenance

© Ashok Wadje

Notion of Marriage: perspective of personal laws in India

“Marriages are made by Laws & not in heaven.”

© Ashok Wadje

Notion of Marriage: perspective of personal laws in India

• Marriage as SACRAMENT

• Marriage as CIVIL CONTRACT

• Marriage as CIVIL RELATIONSHIP

© Ashok Wadje

Notion of Marriage contd…

• ‘Institution of marriage’ is the universal phenomenon and is being practiced since time immemorial.

• It has been identified as the “union of persons of opposite sex”

• Contemporary form of marriage: “Monogamy”

• Recent changes in the institution: “Same Sex Marriage” (some States in US, Scandinavian Countries etc.)

• Some expressions:

• “Monogamy”: the practice of marrying or state of being married to one person at a time.

• “Polygamy”: the practice or custom of having more than one wife or husband at the same time.

• “Polyandry”: polygamy in which a woman has more than one husband.

• “Same Sex Marriage”: the practice of marriage persons of same sex

• “Relationship in the nature of Marriage” is a society of man & woman for limited purpose with no obligations towards each other.

• “Exogamy”: the custom of marrying outside a community, clan, or tribe. (Gotra marriages)

• “Endogamy”: the custom of marrying only within the limits of a local community, clan, or tribe.

© Ashok Wadje


• Definition of “Marriage”:

• Chief Justice Roberts US Supreme Court in Obergefell v. Hodges (2015)

• “Union of a man and a woman”

© Ashok Wadje


Significance of the institution ‘Marriage’:

1. From the perspective of ‘Spouses’: relationship between the two;

2. From the perspective of ‘Offsprings’: legitimacy & nurturing of children;

3. From the perspective of ‘Society’ or ‘Relatives’: Inheritance of property

© Ashok Wadje


Law & Marriage (Marriage from the perp. of Law) Inheritance depended upon the legitimacy of the child.

Colonial British & Hindu Law: Two cardinal principles:

1. Husband and Wife were regarded as the one person in law. (For: Contract, Law Suit, property etc.)

2. Marriage was regarded as the indissoluble union

Muslim Law:

1. Marriage was not regarded as indissoluble union

2. Muslim Women did not lose their identity

Protestants vs. Catholics: clash led to the legal reformation- separation of Church and the State.

Countries with Protestant Ideologies introduced the notion of marriage as dissolvable contract. © Ashok Wadje

Right to Marry

“Right to marry” ipso facto, is not a fundamental right and is subject to state regulations.

International Bill of Right has guaranteed this right by imposing obligation on the State parties.

Nature of “Right to Marry” in India:

Specifically, it has not been given in the Constitution of India;

There has been no case-law where it is specifically declared that right to marry is a fundamental right.

If it is to be accommodated or recognised, it could be considered under Article 21 of the Constitution of India.

Probable Right (The essence of right to marry): “Right of a person to marry person of his/her choice”;

Obligation of State: It must not impose limitations, impairing the very essence of right to marry.

Marriage Laws: Marriage Laws are nothing but ‘procedure established by law’ u/Article 21.

Fact: No marriage law or provisions thereof in India, prohibits the ‘individual from marrying a person of his/her choice.’

© Ashok Wadje

Notion of Marriage contd…International Bill of Rights on “Marriage”

Article 16 of Universal Declaration of Human Rights, 1948

1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 23 of International Covenant on Civil & Political Rights, 1966

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

© Ashok Wadje


What about (marriage) right of persons who are “close relatives”?

What about (marriage) right of persons of same sex?

What about (marriage) right of persons of two different religions?

What about (marriage) right of persons to marry under a contractual obligation?

What about (marriage) right two minors to marry with each other?

What about (marriage) right of a person or persons who is or are, already married?

© Ashok Wadje


“Procedure established by Law” & Marriage Laws:

1. The Special Marriage Act, 1954

2. The Foreign Marriage Act, 1969

3. The Hindu Marriage Act, 1955

4. Un-codified Muslim Personal Law

5. The Indian Christian Marriage Act, 1862

6. The Parsi Marriage & Divorce Act, 1935© Ashok Wadje


The Special Marriage Act, 1954: who can marry?

1. Persons of two “opposite sex”

2. Persons who are “unmarried”

3. Persons who are “not relatives”

4. Persons of “marriageable age”

5. Persons who are of “sound mind”

© Ashok Wadje


The Hindu Marriage Act, 1955: who can marry?

1. Persons of two “opposite sex”

2. Persons who are “Hindus”

3. Persons who are “unmarried”

4. Persons of “marriageable age”

5. Persons who are “not relatives”

6. Persons who are of “sound mind”© Ashok Wadje


Mr. X vs. Hospital Z (AIR 1999 SC 495): who can marry?

1. Disclosure of blood report as to HIV+ status by hospital.

2. Marriage was called off as a result of the same

3. Case was filed before CDRF and it reached as an appeal before Apex Court

4. Supreme Court: Unless party is cured of infirmities, he/she can not claim to marry and right to marry is not absolute right and confidentiality is not the legitimate expectation in view of marriage.

5. Criticisms: 1) what about consensual marriage in such cases? 2) Why disregard to the process of divorce where communicable disease is a ground of divorce.

© Ashok Wadje


Mr. X vs. Hospital Z (AIR 2003 SC 664): who can marry?

Whether there can be a complete bar for marriage if a healthy spouse gives an “informed consent” to marriage with a spouse found to be HIV+.......?

Whether right to marry be suspended during the period of infirmity or illness or till he/she cures of the same..?

Apex Court: Thus “right to marry” is not taken away; afflicted person can marry non-afflicted person provided with informed consent or knowledge of another spouse (healthy spouse).

© Ashok Wadje


o Supreme Court in LATA SINGH VS. STATE OF U.P. (AIR 2006 SC 2522)

o Directed State to protect parties of elope marriage (inter-caste marriage) and it is the duty of police authority to protect such couple.

o Once it is found that parties are eligible for entering into marriage, then no body can prohibit them from entering into marriage.

o In this case girl filed a Writ petition u/Art. 32 with a prayer for issuing a Writ of Certiorari (to Courts) and/or Mandamus (to Officers) for quashing the trials in the lower courts, against her husband and his relatives.

o Petition allowed & Police authorities directed to give protection.

© Ashok Wadje

Conditions for Marriage & Modes of Solemnisation

Hindu Marriage Act, 1955

Muslim Personal Law

The Indian Christian Marriage Act, 1872

The Parsi Marriage and Divorce Act, 1936

The Special Marriage Act, 1954

The Foreign Marriage Act, 1969

© Ashok Wadje


Conditions for Hindu Marriage

Solemnisation of Hindu Marriage

© Ashok Wadje

• Application of the Act: Factors

1. Religion

2. Territory

3. Tribal status

4. Domicile

© Ashok Wadje

• Solemnisation of “Hindu Marriage”

• Unique blend of modern and classical Hindu Law

• Section 7 is the governing rule

• Scope for “Customary marriage”

• MODERN Hindu Law:

• ‘Customary rites & ceremonies of either party’

• When ‘Saptapadi’ is the customary form-it is essential

• CLASSICAL Hindu Law:

• Classification of Marriage: 1) Shastric 2) Customary 3) Statutory

• Essential Ceremonies: 1) Kanyadan 2) Panigrahan 3) Vivah holm 4) Saptapadi

© Ashok Wadje

• Shastric Marriage:

1. Approved marriages

2. Unapproved marriages

• Customary Marriage (major chunk of Sec. 7)

1. Depending on caste

2. Custom of either parties

• Statutory Marriage:

1. Arya Samaj Marriage (Validation) Act

2. Anand Marriage Act© Ashok Wadje

Muslim Personal Law

Conditions for Muslim Marriage

Solemnisation of Muslim Marriage

© Ashok Wadje

❑ Nature of Muslim Marriage:o Muslim Marriage is purely a “Civil Contract”o Muslim Law does not prescribe solemnization of marriage.o The objective of the Civil Contract:

1) Legalization of the Sexual intercourse

2) Procreation of children.o Free volition of parties:

• For creation &

• For dissolution.o Male domination reflected in the process of dissolution.

© Ashok Wadje

o Authorities on the nature of Muslim Marriageo Wilson defines it as:

“contract for the purpose of legalizing sexual intercourse and the procreation of children.”

o Fithzerald goes to the extent of saying that:“Although a religious duty, marriage is emphatically not a sacrament. There are no sacraments in Islam. Nor it is coverture.”

o Mahmood, J. in Abdul Rahim Vs. Salima (ILR 1886 8 All 149) defines Muslim marriage “as a civil contract, upon the completion of which by proposal & acceptance, all the rights & obligations, which it creates, arise immediately and simultaneously.

© Ashok Wadje

❑ Conditions OR Capacity

1) Prohibition on the basis of ‘Relationship’

2) Mental Capacity/Soundness of Mind

3) Age of Marriage

© Ashok Wadje

CONDITION: 1) PROHIBITED DEGREE OF RELATIONSHIP (PDR):

o PDR is divided in to two categories for the purpose of prohibition:

1) ABSOLUTE IMPEDIMENTS:

i. Consanguinity

ii. Affinity

iii. Fosterage

2) RELATIVE IMPEDIMENTS:

i. Unlawful conjugation

ii. Marriage with a woman under Iddat and

iii. Marriage with persons of unequal status.

© Ashok Wadje

Prohibited Degree of Relationship

Absolute Impediment Relative Impediment

1) Consanguinity 4) Unlawful conjugation

2) Affinity 5) Woman u/Iddat

3) Fosterage 6) Persons of unequal status

Breach of rule: VOID Breach of rule: VOIDABLE

© Ashok Wadje

CONDITION NO. 2) Age of Marriage: Puberty……

• All the systems have accepted the criteria of the Age for the parties under the banner of “Competencies of the parties.

• Attainment of puberty generally considered to be the age.

• Globally attempts were made to make uniformity & to raise the age of marriage

• United Nations Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 1962.

• Relatively record of India to raise the age is not bad.

© Ashok Wadje

o In Muslim Law, the position is as follows:

• A person who has not attained puberty can’t marry.

• Age of Puberty u/M.L. is 15 years (Delhi H.C. Judgment dated July 2012-

unreported).

• Below the age of Puberty: can be possible with the consent of Guardian, but

then the same can be repudiated.

• Non-age doesn’t render marriage null & void.

© Ashok Wadje

o Legal Framework: Personal Law vs. Law of the Land

• Sec. 2 (vii) Dissolution of Muslim Marriage Act, 1939: makes it a ground for

marriage.• Exception of Sec. 376 of the IPC

• Indian Contract Act, 1872: Sec. 11• Indian Majority Act: Age of minority.

• Child Marriage (Prohibition) Act, 2006

© Ashok Wadje

o Child Marriage (Prohibition) Act, 2006: Sec. 2 (a)"child" means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;

o Indian Contract Act, 1872:Section 11 of The Indian Contract Act specifies that every person is competent to contract provided:1. He should not be a minor i.e. an individual who has not attained the age of majority i.e. 18 years

o Indian Penal Code, 1860: Sixthly.- With or without her consent, when she is under sixteen years of age.Explanation: Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

o Dissolution of Muslim Marriage Act, 1939:o Sec. 2 (vii)that she, having been given in marriage by her father or other guardian before

she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:

© Ashok Wadje

CONDITION NO. 3) Soundness of Mind:

• Almost all the personal laws recognized it as a factor which may affect in one or the other way.

• The degree of Understanding or the degree of Intelligence:

✓ Marriage: nature & responsibility✓ Contract.: nature & responsibility.

• Modern English Law considers marriage for lack of consent as merely voidable.

• No uniformity in Indian Personal Law as to the:✓ Acceptance of “Consent” factor as a Condition.✓ Implications of absence of consent (Void/Voidable/Valid/Invalid)

• Unsoundness of Mind: Idiocy & Lunacy.

© Ashok Wadje

o Insanity or Unsound mind or Idiot or Lunatic or mental disorder…..?o Degree of soundness: high degree of intelligence to understand….?o Unsoundness of mind for marriage is equated with idiocy and lunacy, i.e. lunatics

& idiots are not allowed to marry but those persons of unsound mind who are not lunatics or idiots, can validly marry.

o Under Muslim Law, persons of Unsound mind is equated with Minor.o The same can be performed with the consent of the Guardian on behalf of minor.o Under Dissolution of Muslim Marriage Act, 1939 a wife can sue for Husband’s

Insanity.

© Ashok Wadje

o SOLEMNISATION OF MUSLIM MARRIAGE:o There is no prescribe form of Solemnization of Muslim Marriage except following

things:

1) Offer

2) Acceptance3) Offer & Acceptance at one Meeting.

4) Presence of Witnesses

© Ashok Wadje

o “PUBERTY”o On attaining Age of Puberty (15 yrs) a Minor Muslim has a right to approve or

disapprove the marriage contracted by Guardian.

o Voidable at the option of such minor.

o After opting it becomes valid marriage from the beginning.

o Presumption of approval of marriage: on non-exercise of it.

o Under Dissolution of Muslim Marriage Act, 1939 (Sec. 2 vii) she can exercise “the option of puberty” till she attains 18 yrs.

© Ashok Wadje

“IDDAT”o Prohibition of marriage for the ‘duration’ called: Iddat.o Iddat commences after ‘dissolution’ of marriage either by:

1) Divorce or2) Death

o Muslim Law on dissolution: When a marriage is dissolved by divorce or death, the woman must wait for some time before she can remarry.(Then free to marry).

o On Divorce: 3 menstruation courses (if subjected to it) or three lunar months. (In case of divorce it is necessary only when it is consummated.

o On Death: 4 Lunar months and 10 days.

o Object of the Rule (of Abstinence from Remarriage) is to ascertain the Pregnancy so as to avoid confusion of Paternity.

© Ashok Wadje

o Sec. 2 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 defines “Iddat”:

" iddat period" means, in the case of a divorced womani) three menstrual courses after the date of divorce, if she is subject to menstruation; and(ii) three lunar months after her divorce, if she is not subject to menstruation; and(iii) if she is enceinte (pregnant) at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy, whichever is earlier;

o The wife is entitled to reasonable & fair provision and maintenance within the Iddat period by her former husband.

© Ashok Wadje

http://indiankanoon.org/doc/1542486/




o Rights & Duties during Iddat:

• Duty to maintain (maintenance to be given) Wife.

✓ Old Muslim Law✓ Mohammad Ahmed Khan Vs. Shaha Bano Begum (1984 AIR SC)✓ Section 125 of Cr.P.C.✓ Muslim Women (Protection of Rights on Divorce) Act, 1986.

• Prohibition for remarriage or for marriage with a woman u/going Iddat.

• In case of Death of each of the parties during the period of Iddat, either of the parties are entitled to inherit from him or her in the capacity of Husband & Wife.

© Ashok Wadje

“DOWER”o An economic empowerment to the Muslim Women during Marriage.o A Consideration for the Muslim Contract of Marriage.o Mahmood J., defined dower as follows: (Abdul Kadir v Salima 1886 8 All 149

p. 157)

“Dower” under the Muhammadan Law, is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage, and even where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the wife.

o In Pre-Islamic Arabia it was considered as a Compensation.o Compensation –Empowerment-Check on the Husband.o Payment of whole amount of Mehr on divorce by the husband.o It is a “matter of right” & of an “obligation”

© Ashok Wadje

o Comparison to the “Consideration” under the Indian Contract Act, 1872: ✓ Dower as a bride price…?✓ Marriage as a civil contract✓ Contract (of Sale) as a typical commercial contract.✓ Post-nuptial Agreement to pay Dower: Consideration…✓ Post-nuptial agreement: valid (since it’s a contract as is recognized in

Muslim Law though without consideration)

o Lord Parker in Hamira Bibi vs. Zubaid Bibi (AIR 1916 PC 46) analyzed this very notion of dower:

✓ Essential incident of Mohammedan Law.✓ Must be specific ✓ Payable before consumption (Exc. Prompt & Deferred dower)✓ Lien over husband’s property.

© Ashok Wadje

▪ Kinds of Dower:

• Specified Dower• Prompt Dower• Deferred Dower• Proper Dower

▪ Enforcement of Dower:

• Unpaid Dower: Unsecured debt• Can enforce during lifetime from the estate of the husband• Actionable Claim: assignable.• Claim from the legal representatives of the Husband..?• Right of retention (Right to Continue Possession) : upon death or

divorce.

© Ashok Wadje

o Privy Council has discussed the nature of this “Right of Retention” in Maina Bibi vs. Choudhary Vakil Ahmad (52 IA 145):• Maina Bibi retained property of her deceased husband.

• Widow purported to make Gift of entire property.• On being challenged by Plaintiff (Legal Representatives) P.C. has held

that Widow has not power to make a gift.• Further P.C. held that “retention (possession) is valid till the dower debt is

paid.”• This is not actually lien or burden or encumbrance over the property.

© Ashok Wadje

Special Marriage Act, 1954

• PLEASE SEE SEPARATE ‘PPT’ ON SPECIAL MARRIAGE ACT, 1954

© Ashok Wadje

Foreign Marriage Act, 1969

• PLEASE SEE SEPARATE ‘PPT’ ON FOREIGN MARRIAGE ACT, 1969

© Ashok Wadje

THE INDIAN CHRISTIAN MARRIAGE ACT, 1869

❑ Indian Christian Marriage Act, 1872: structure

Part I: The persons by whom Marriages may be solemnized (SOLEMNIZATIONS).Part II: Time & Place at which marriage may be solemnized.

Part III: Marriages Solemnized by Minister of Religion Licensed under this Act.Part IV: Registration of Marriages (Solemnized by Minister of Religion)

Part V: Marriage Solemnized by, or in the Presence of, a Marriage Officer.Part VI: Marriage of “Indian Christians” (CONDITIONS)

© Ashok Wadje

❑ Conditions for Valid Christian Marriage (u/Indian Christian Marriage Act,

1872):

CONDITIONS FOR CHRISTIAN MARRIAGE

Section 4 Section 60 Section 18/19 of I.D.ACT,

Both or any one of them must be Christian No spouse living Impotency

Age 21/18 PDR/Affinity

Lunacy

© Ashok Wadje

❑ Conditions for Valid Christian Marriage (u/Indian Christian Marriage Act,

1872): (Section 60):

Sec. 60. On what conditions marriages of Indian Christians may be certifiedEvery marriage between Christians applying for a certificate, shall, without the preliminary notice required under Part III, be certified under this Part, if the following conditions be fulfilled, and not otherwise :- (1) the age of the man intending to be married shall not be under twenty-one years and the age of the woman intending to be married shall not be under eighteen years; (2) neither of the persons intending to be married shall have a wife or husband still living ; (3) in the presence of a person licensed under section 9, and of at least two credible witnesses other than such person, each of the parties shall say to be other- "I can upon these persons here present to witness that I, A. B., in the presence of Almighty God, and in the name of our Lord Jesus Christ, do take thee, C.D., to be my lawful wedded wife [or husband]" or words to the like effect. (Undertaking)

© Ashok Wadje

o Persons Authorized to solemnise Christian Marriage:

5. Persons by whom marriages may be solemnisedMarriages may be solemnised in [India]- (1) by any person who has received Episcopal ordination, provided that the marriage be solemnised according to the rules, rites, ceremonies and customs of the Church of which he is a Minister; (2) by any Clergyman of the Church of Scotland, provided that such marriage be solemnised according to the rules, rites, ceremonies and customs of the Church of Scotland; (3) by any Minister of Religion licensed under this Act to solemnise marriages; (4) by, or in the presence of, a Marriage Registrar appointed under this Act; (5) by any person licensed under this Act to grant certificates of marriage between Indian Christians.

© Ashok Wadje

SOLEMNISATION OF CHRISTIAN MARRIAGE: IMPORTANT PARTS OF THE ACT

PART-I PART-II PART-III PART-IV PART-V

Part-I: Who Can Solemnise

Part-II: Time & Place of

Solemnisation

Part-III: Solemnisation by MoR (Minister of

Religion)

Part-IV: Solemnisation by RoM (Registrar of

Marriage)

Part-V: Registration/

Certification by Licensed Christian,

Persons Authorised

Specified Time & Place

of ‘Any other Christian’

of ‘Roman Catholics’

of ‘Indian Christians’

© Ashok Wadje

SOLEMNISATION OF CHRISTIAN MARRIAGE U/ICMA

Who can Solemnise Sec. 5)

Time & Place of Solemnisation (Sec. 10 & 11)

Form of Solemnisation (Sec. 4 & 5)

Priest/Bishop (Episcopal Ordination)

(For ‘Indian & ’Any other Christian’)

Section 10 MoR (Minister of Religion): ‘As he thinks fit’

Priest (Clergyman of Church) Section 11 RoM (Registrar of Marriage):

‘As Parties think fit’

Minister of Religion(Part-III)

(For ‘Any other Christian’)

Custom of Church (Rites, Rules Ceremonies)

Marriage Registrar (Part-V)

(For ‘Roman Catholics’)Licensed Christian

(Sec.9)(For ‘Indian & ’Any other

Christian’)© Ashok Wadje

How “Solemnisation” takes place?

1) PART III OF THE ACT (Marriage before Minister of Religion): Section 25- According to the Rules, Rites, Ceremonies and Customs of the Church or such other form or ceremony as he (Minister of Religion thinks fit to adopt, provided before the presence of two witnesses followed by Registration of the same.

2) PART V OF THE ACT (Marriage before Marriage Registrar): Section 51-After issuing Certificate by Marriage Registrar, marriage may be solemnized between them according such form or ceremony as they think fit to adopt, provided in the presence of Marriage Registrar and two or more credible witnesses and followed by Registration before Marriage Registrar.

© Ashok Wadje

Marriage before Minister of Religion Marriage before Marriage Registrar

Part III Part V

Section 25 Section 51

Notice intended Marriage & its Publication.

Notice of intended Marriage & its Publication.

Procedure thereafter Procedure thereafter

Solemnization Solemnization

Registration Registration

© Ashok Wadje

❑ Certificate of Christian Marriage: Conclusive Proof.

Sec. 61. Grant of certificate

When, in respect to any marriage solemnised under this Part, the conditions prescribed in section 60 have been fulfilled, the person licensed as aforesaid, in whose presence the said declaration has been made, shall, on the application of either of the parties to such marriage, and, on the payment of a fee of four annas, grant a certificate of the marriage. The certificate shall be signed by such licensed persona; and shall be received in any suit touching the validity of such marriage as conclusive proof of its having been performed.

© Ashok Wadje

The Parsi Marriage & Divorce Act, 1936

• Conditions for Marriage

• Solemnisation of Marriage

© Ashok Wadje

❑ Conditions for Valid Parsi Marriage (u/ Parsi Marriage & Divorce Act, 1936): (Section 3):

Sec. 3. Requisites to validity of Parsi marriages(1)No marriage shall be valid if-

(a) the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in Schedule I; or (b) such marriage is not solemnised according to the Parsi form of ceremony called "Ashirvad" by a priest in the presence of two Parsi witnesses other than such priest; or

(c) in the case of any Parsi (whether such Parsi has changed his or her religion or domicile or not) who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.

(2) Notwithstanding that a marriage is invalid under any of the provisions of sub-section (1), any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate.

© Ashok Wadje

❑How “Solemnization” takes place:

❑Secton 3: Requisites to validity of Parsi

Marriages

1.Parsi ceremony called: “Ashirvad”.

2.Presence of two witnesses.❑Certification & Registration (Section 6)• Certification by Officiating Priest• Entry of the same with the Registrar of

marriages.© Ashok Wadje

Part ‘C’: Relationship in the nature of marriage & Other issues surrounding institution of marriage

• Relationship in the nature of marriage: law & practice

• Compulsory Registration of Marriage

• Child Marriage: law & practice

© Ashok Wadje

Relationships in the nature of marriage

LIVE-IN RELATIONSHIP:

o Walk-in & Walk-out Relationship/Trial Marriage

o Live-in Relationship: part of ‘Right to Life’?

o Part ways if things soured

o Marriage/Divorce/Restitution of Conjugal Rights/Maintenance.

o Should things go wrong: What kind of protection…?

o Implications: Sex during lucid time…?

✓ Denial of Marriage…?

✓ Child born out of it…?

✓ Leaving destitute/beggared/homeless…?

✓ Protection against violence…?

© Ashok Wadje

o Legislative Framework:

o Presumption of Marriage…? Section 114 of the Evidence Act.

o Section 2 (f) “Domestic Relations” PoWDVAct, 2005.

o Indian Contract Act, 1872….?

o Marriage Laws..?

o Is it a Civil Marriage…?

o Law Commission of India

o Malimmath Committee Report

o Response by Maharashtra Government

o Common Law Marriage: Cohabitation.

o Section 125 of Criminal Procedure Code, 1973….?

o Debate in Parliament, 2008

© Ashok Wadje

o Judicial Response:

o In S. Khushboo Vs. Kanniammal & Anr. (2010) 5 SCC 600, this Court, placing reliance upon its earlier decision in Lata Singh Vs. State of U.P. & Anr. AIR 2006 SC 2522, held that live-in-relationship is permissible only in unmarried major persons of heterogeneous sex.

o S.P.S. Balasubramanyam Vs. Suruttayan @ Andali Padayachi & Ors. AIR 1992 SC 756,Court held that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption that they lived as H & W. and the children born to them will not be illegitimate.

o Bharat Matha & Ors vs. Vijaya Renganathan & Ors (2010 SC) Supreme Court held that child born out of a Live-in Relationship may be allowed to succeed inheritance in the property of the parents, if any, but doesn’t have any claim as against Hindu Ancestral coparcenary property.

o Alok Kumar Vs State & Anthr (MANU/DE/2069/2010) Live-in Relationship is a “Walk-in & Walk-out Relatinship; it’s a contract and which gets renewed every new day by Parties. It neither creates any legal bond nor there is any string (NO QUESTION OFFENCE OF RAPE & OF BIGAMY).

© Ashok Wadje

o In Madan Mohan Singh & Othrs Vs. Rajani Kanth & Anthr (AIR 2010 SC 2933), if a live-in relationship continued for a long time, can not be termed as walk-in & walk-out relationship & there is a presumption of marriage for those who are in relationships for long time/reasonable time as per Section 114 of IPC.

o In the case of Venuswami Vs. D. Pathchaimmal ( SCC 2010 SC ) Court held that ‘relationships in the nature of marriage’ under PoWDVAct, 2005, must fulfill the following criteria:• The couple must hold themselves out to the Society as being akin to

spouse.• They must be of legal age to marry.• They must otherwise qualified to enter in to legal marriage.• ‘Shared household’ (Sec. 2 (s) & voluntary cohabitation.• Celebration of just a weekend or spending one night : NO DOMESTIC

RELATION.• Kept for Sexual desire: NO.

o Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha and Anr. ((2011)1SCC141) (Live-in Relationship-Presumption of marriage-maintenance right).

o Hence ‘domestic relationship' includes not only the relationship of marriage but also a relationship 'in the nature of marriage’.

© Ashok Wadje

Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha and Anr.

((2011)1SCC141) (Live-in Relationship-Presumption of marriage-maintenance

right).o Claim u/Sec. 125 was sought on the ground that Parties though not

married, living together since long.o Interpretation of the word “wife” vis-à-vis Section 125 of the Code of

Criminal Procedure, 1973 was in question.o In this case appellant’s claim of maintenance u/Sec. 125 is based on

following two grounds:o Though their marriage is not proved before High Court, those were living

together since long.o Interpretation of word “wife” vis-à-vis Section of 125 of Cr. P.C.

© Ashok Wadje

• Question/Issues involved:

1.Whether, strict proof of marriage essential for a claim of maintenance

under Section125 of Cr.P.C. having regard to provisions of Domestic

Violence Act, 2005?

2.Whether living together of a man and woman as husband & wife for

a considerable period of time would raise a presumption of valid

marriage and whether ‘such presumption’ would entitle the woman to

claim maintenance u/Sec. 125 of Cr. P.C.?

3.Whether a marriage performed according to customary rites &

ceremonies, without strictly fulfilling the requisites of Section 7 of

Hindu Marriage Act, 1955 or any other personal law would entitle the

woman to maintenance u/Sec.125 of Cr. P.C.?

© Ashok Wadje

• Held:

• Where a man, who lived with a woman for a long time and even

though they may not have undergone legal necessities of a valid

marriage, should be made liable to pay maintenance if he deserts her -

Man should not be allowed to benefit from legal loopholes by enjoying

advantages of a de facto marriage without undertaking duties and

obligations.

• Strict proof of marriage should not be a pre-condition for maintenance

under Section 125 of Cr.P.C., so as to fulfill true spirit and essence of

beneficial provision of maintenance under Section 125.

• Expansive interpretation should be given to term “wife” to include even

those cases where a man and woman had been living together as

husband and wife for a reasonably long period of time.

© Ashok Wadje

• Ratio decedendi:

“Where parties lived together for a long spell as husband and wife, a presumption would arise in favor of a valid wedlock.

• Finally Supreme Court has observed that: “in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent.”

• Further, court has made it point to say that: “if the provisions of PWDVAct, 2005 can be applied and in particular monetary relief and compensation can be awarded in cases of live-in relationships, they should also be allowed in proceedings under Section 125 of Cr.P.C. It seems to us that the same view is confirmed by Section 26 of PWDVAct, 2005.”

© Ashok Wadje

Relationship in the nature of marriage and Protection of Women From Domestic Violence Act, 2005:

Relationship in the nature of marriage has got recognition in PWDVA, 2005 for certain remedies in favour of

female (live-in partner) person.

There are two criterions so as to claim remedies under this Act: 1) There must be “domestic relationship”

and 2) they must have “shared household”

Section 2(f) defines the expression "domestic relationship" as follows:

"Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a

relationship in the nature of marriage, adoption or are family members living together as a joint family.

Section 2(s) defines the expression "shared household" and reads as follows:

"shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the Respondent and includes such a household whether

owned or tenanted either jointly by the aggrieved person and the Respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the Respondent or both jointly or singly

have any right, title, interest or equity and includes such a household which may belong to the joint family of which the Respondent is a member, irrespective of whether the Respondent or the aggrieved person has

any right, title or interest in the shared household. © Ashok Wadje

Court in Veluswami vs. Pathchaiammal AIR 2011 SC 479 held that a relationship in the nature of marriage under PWDVA must fulfil below mentioned conditions:

1. The couple must hold themselves out to society as being akin to spouse

2. They must be of legal age to marry

3. They must be otherwise qualified to enter into a legal marriage, including being unmarried

4. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time

© Ashok Wadje

• Supreme Court in Indra Sarma vs. V. K. Sarma (AIR 2014 SC 309) held that

All live-in-relationships are not relationships in the nature of marriage u/

PWDVA.

• Supreme Court in this case discussed two points:

1. whether a "live-in relationship" would amount to a "relationship in the nature

of marriage" falling within the definition of "domestic relationship"

2. Whether disruption of such a relationship by failure to maintain a women

involved in such a relationship amounts to "domestic violence" within the

meaning of Section 3 of the DV Act.

Court in this case issued some guidelines for testing under what

circumstances, a live-in relationship will fall within the expression

"relationship in the nature of marriage" Under Section 2(f) of the DV Act

Guidelines (refer next slide)

© Ashok Wadje

Guidelines/Factors to identify Relationship in the nature of marriage (refer

next slide):

1. Duration of period of relationship

2. Shared household

3. Pooling of Resources and Financial Arrangements

4. Domestic arrangements

5. Sexual relationship

6. Children

7. Socialisation in Public

8. Intention and conduct of the parties

© Ashok Wadje

Court in Dimple Jatin Khanna vs. Anita Advani MANU/MH/0725/2015 held that to prove a relation between a man and woman was of one in the

nature of marriage, it was necessary to show that they:

1. Projected and conducted themselves as husband and wife and have

been treated by friends, relatives and others as if they were a married couple

2. Had children, which is a strong circumstance to indicate a relationship in the nature of marriage

3. Pooled resources or financial arrangements between them.

© Ashok Wadje

o In USA the expression `palimony' was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him.

o The first decision on palimony was the well known decision of the California

Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony.

o But still Law in USA is in a stage of evolution since there is no uniformity among US Judges/Courts: ✓ Absolute ‘right to palimony’✓ Denial of ‘right to palimony’✓ Grant of ‘right to palimony’ with some conditions.

o No statutory provision but grant on contractual basis.

© Ashok Wadje

In USA, although there is no statutory basis for grant of “palimony”, the Courts are granting remedy on a contractual basis. (MARVIN Vs. MARVIN (1976) 18 C3d660.) In the case of Taylor vs. Fields ( (1986) 224 Cal. Rpr 186). alleged contract between a married man and a lady rested on meretricious considerations and hence was invalid and unenforceable (it was a relationship of mistress). So the claim over the property of the deceased partner is invalid. However, the New Jersey Supreme Court in Devaney vs. L’ Esperance ( 195 N.J. 247 (2008) held that Cohabitation is not necessary to claim palimony, rather “it is promise to support, expressed or implied, coupled with a marital type of relationship, that are indispensable elements to support a valid claim of palimony.

© Ashok Wadje

Compulsory Registration of Marriage

❑ Significance of Registration:

▪ Marriages run the risk of being declared as invalid during litigation (legitimacy

of marriage).

▪ Apart from ‘registration of marriage’ which may sometimes act as conclusive

proof, it is difficult to prove marriage on the basis of other evidences.

▪ A registration can:

1. Avoid bigamous marriages

2. Provides legitimacy to children

3. Ascertains status of parties

4. Facilitate spousal visa & travel permit.

© Ashok Wadje

❑ Law with respect to Registration of Marriages:

▪ Indian Christian Marriage Act, 1872: Compulsory & part of

Solemnization of marriage

▪ Parsi Marriage & Divorce Act, 1936: Compulsory & part of

Solemnization of marriage

▪ Special Marriage Act, 1954: compulsory & part of Solemnization of

marriage

▪ Hindu Marriage Act, 1955: Neither compulsory nor part of Solemnization

of marriage

▪ Muslim Personal Law: Not compulsory and no provision for registration

(except document of Nikahnama).

▪ Birth, Marriage and Death Registration Act was enacted but could not

succeed.

© Ashok Wadje

❑ Present scheme of Registration of Marriage

▪ State Government is authorized make arrangement for registration in a personal law where marriage

registration is not compulsory.

▪ Marriage Officer, Marriage Registrar, Sub-Registrar Office, Municipal Corporation/Council:

Registration of marriage.

▪ Registration u/Special Marriage Act, 1954 also for certain other marriages.

▪ Post-Hindu marriage registration facility is available u/Section 8 of HMA, 1955. Features of Sec. 8:

1. State Govt. may make rules/Law for: Registration, entry, compulsory or optional.

2. Notwithstanding anything contained in Sub-sections of Sec.8, omission to make entry shall in no

way affect Hindu marriage.

▪ Wrong practices: Marriages & Divorces on Stamp paper

© Ashok Wadje

▪ A Writ petition was filed by Majlis NGO in Mumbai through Majlis

Manch Vs. State of Maharashtra (WP 1842 OF 1996), served to

highlight the problem of:

1. Fraudulent and sham marriages and

2. Anomaly between HMA, 1955 & Bombay Registration of

Marriages Act, 1953.

▪ As a result, Maharashtra Regulation of Marriage Bureaus and

Registration of Marriages Act, 1998 and Registration of Marriages

Act, 1998.

▪ Other Acts:

1. Andhra Pradesh Compulsory Registration of Marriage Act, 2002.

2. Himachal Pradesh Registration of Marriages Act, 1996© Ashok Wadje

❑ Compulsory Registration of Marriage Bill, 2005

▪ National Commission for Women (NCW) drafted the Bill. (Lapsed)

▪ Legal framework for registration of marriage, irrespective of religion of

contracting parties.

▪ No interference with “solemnisation” thereof and simply prescribes

procedure for registration of the same with 30 days.

▪ Statement of Objects & Reasons:

1. Prevention of child marriage & ensure minimum AGE of marriage.

2. Prevention of polygamy/Bigamy.

3. Notice of intended marriage to prior wife

4. To prevent desertion of marriage and subsequent denial of marriage.

5. To enable maintenance & shelter to married women especially to that

of one married to NRI or Foreigner.

© Ashok Wadje

❑ Supreme Court on Registration of Marriage

▪ Seema Vs. Ashwani Kumar (AIR 2006 SC 1158)

▪ ‘Compulsory’ Registration of Marriage.

▪ Directions to all the States (also to center) to make it compulsory by

framing rules for registration of marriages, within 30 days of this judgment.

▪ Concern for fraudulent marriages and subsequent denial of marriages and

also for child marriages.

▪ Significance of registration: if the marriage is registered it provides

evidence of the marriage having taken place and would provide a

rebuttable presumption of the marriage having taken place.

▪ In case of non-registration, the presumption which is available from

registration of marriage would be denied to a person whose marriage is not

registered.© Ashok Wadje

STATUS OF CHILD MARRIAGE IN PERSONAL LAW

THE SPECIAL MARRIAGE ACT,

1954

HINDU MARRIAGE ACT,

1955

INDIAN CHRISTIAN

MARRIAGE ACT, 1869

THE PARSI MARRIAGE &

DIVORCE ACT, 1936

MUSLIM PERSONAL LAW

Sec. 4 (c) r.w. Sec. 24 (1) (i)

Sec. 5 (iii) r.w. Sec. 13 (2) (4)

Sec. 3: “Minor” r.w. Sec. 19 Sec. 3 (c)

Principle of “Puberty” r.w. Sec. 2 (vii) of DMMA, 1939

VoidNeither Void nor

Voidable (But “She” can move petition for

divorce)

renders valid (by consent of guardian)

Invalid marriageValid (But “She” can

move petition for divorce)

© Ashok Wadje

• SOME CRUCIAL POINTS

• Law Commission (59th Report) Report, 2008 recommended the uniform age criteria and the uniform definition of “child”

• The Child Marriage Restraint Act, 1929 and The Prohibition of Child Marriage Act, 2006 are central, secular and general legislations were brought to discourage child marriage. These two are penal legislations and PCMA makes child marriage as the “void marriage”.

• The Special Marriage Act, 1954 and the Parsi Marriage & Divorce Act, 1936 are the only laws amongst the category of personal laws, bringing clear policy (law) on the “status of child marriage”

• In Hindu Marriage Act, 1955, child marriage is neither void nor voidable but female spouse can move petition for divorce. This makes it valid marriage.

• Christian Marriage Act, 1869 too, provisions are not clear and in some cases, child marriage has been allowed by empowering guardian to give consent for such marriage.

• Muslim Personal Law, has identified its notion of “child” for the purpose of marriage and on attainment of “puberty” (sexual maturity) child becomes eligible for marriage.

© Ashok Wadje

• Judicial take on “child marriage”

• In Harendra Nath vs. Suprora Burman AIR 1989 Cal. 120, Court clarified that the such marriage, u/SMA, 1954, is void and no estoppel applies.

• In Manish Singh vs. State of NCT AIR 2006 Del. 37, it was held that marriage solemnised in contravention of age are neither void nor voidable but are punishable u/Sec. 18 of HMA & CMRA.

• In Roop Narayan Verma vs. Union of India AIR 2007 Chh 64, HC uphold the constitutional validity of Section 13 (2) (4) of Hindu Marriage Act, 1955 on the touchstone of Article 15 (3)

• U/Muslim Law:

• Mrs. Tahra Begum vs. State of Delhi & Ors. (2013) (1) RCR (Civil) 798 it was held that Muslim girl who attained puberty, is can marry, even without consent of the guardian and such marriage is not void. However, she has the option of repudiation after 15 but before 18.

• Ms. Seema Begum vs. State of Kar. & Others ILR 2013 Kar. 1659, it was held by the Karnataka HC that the provisions of PCM Act, 2006 are applicable to all the citizens of India irrespective of religion.

© Ashok Wadje