Professor Gabriel Sawma
In Hindu traditions and law, marriage was considered a sacrament; it was complete only on the performance of sacred rites and procedures consisted of a religious ceremony of the groom holding the hand of the bride, and her three times around the nuptial fire, and the ceremony was completed on taking the seven steps by the couple.
It was understood that a marriage, solemnized in accordance with the sacred rites expressed by the ancient Hindu religious texts, was indissoluble, and that a woman who give up her virginity through marriage, her body becomes incorporated with that of her husband, and therefore, such a marriage cannot be reversed, regardless of whether or not the marriage was consummated, whether or not the married couple lived together or lived separately, or whether the husband abandoned his wife, or the wife deserted her husband, as far as the Hindu sacred law was concerned, the marriage between husband and wife remained intact even if the husband dies, her remarriage to another man was out of question.
This is not to ignore the fact that there existed traditional dissolution of marriages in what is known as ‘Customary Divorce’. To talk about dissolution of Hindu marriage in ancient times is not a clear cut proposal, as it presents us with enormous difficulties since ancient manuscripts regarding this topic are rear and various traditions had different rules.
Under the provisions of s. 8 of the Hindu Marriage Act of 1955, registration of a Hindu marriage solemnized in India is merely recommended, but not a legal requirement.
EFFECTS OF SOLEMNIZATION OF HINDU MARRIAGES IN INDIA
Indian law continues, up to 2006, to rely on customary forms of marriage solemnization to ascertain the validity of a marriage. The relevant legal provisions are found in section 7 of the Hindu Marriage Act, 1955, which is quite brief and clear. It reads the following:
S.7 – Ceremonies for a Hindu marriage.
(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptapadi (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.
This is indicative of the Indian law recognizing marriage for Hindus as samskara, a sacrament rather than purely a contract. Unlike Islamic marriages whereby a nikah being a solemn contract of married couples before Allah. For more on Islamic marriage and divorce, see our website at http://www.muslimdivorceinusa.com
A problem may arise in connection with non-registration of Hindu marriages in India on one hand, and recognition of solemnization of marriages on the other hand. When a marriage is not required to be registered with the state, questions need to be raised about what is ‘customary’ in a particular kind of marriage? Section 3 of the Hindu Marriage Act, 1955 is the guiding provision, it reads:
S. 3 – Definition.
In this Act, unless the context otherwise requires –
(a) The expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family;
Provided that the rule is certain and not unreasonable or opposed to public policy provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.
A non-registered marriage in India caused abuse. In some cases, registered marriage was not recognized in a court of law, and State governments, did not take the trouble to provide for the registration of marriages. The courts in a number of cases have taken the initiatives for compulsory registration of marriages as we shall see below.
REGISTATION OF CIVIL STATUS BY COURT ORDER
The provisions for the registration of marriage in India, have been provided under different Acts. For example, Special Marriage Act, 1954 (SMA), Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936. Registration of Christian marriages under the Christian Marriage Act, is required, and so are Marriages solemnized under the Special Marriage Act. But marriages under the Hindu Marriage Act (HMA) did not require registration under the Act.
Hindu Marriage Act neither lays down the procedure for solemnization of marriage nor makes calls for the registration to be compulsory. Non-registration has landed many women in a relationship, which, while demanding from her to fulfill the duties of a wife, leaves her with neither the right under the law nor recognition in society. Compulsory registration would check fraudulent marriages, apart from non-age and bigamous marriages, at the same time, it would establish paternity of children.
In a recent judgment, the Supreme Court of India issued directions in Seema v. Ashwani Kumar, that the marriages of all persons who are citizens of India belonging to various religions should be made registration of solemnized marriages, compulsory. Registration of marriages has a great evidentiary value in the matters of custody of children, rights of children, and the age of parties in the marriage. The Supreme Court has, thus directed the states and central government to take concrete steps in this direction.
Now, registration of marriage is a legal requirement in most of the states in India. Moreover, for visa and immigration purposes, a formal marriage certificate from the Registrar of Marriages is required.
DOCUMENTS FOR REGISTERING A MARRIAGE UNDER THE HINDU MARRIAGE ACT
The HMA of 1955 is applicable to Hindus, Jains, Sikhs and Buddhists. A religious marriage which has already been solemnized can be registered under the HMA. The HMA is applicable to cases where both husband and wife are Hindus, Buddhists, Jains or Sikhs or where they have converted into any of these religions. The HMA provides for the conditions of a marriage where under the bridegroom should be the age of 21 years and bride of 18 years, they both should not be within the degree of prohibited relationship. Following are the documents required for registering a marriage under HMA:
1-Application form duly signed by the married couple,
2-Documents related to the date of birth of both parties, minimum age of both parties. Affidavit by the couple stating place and date of marriage, date of birth, marital status at the time of marriage and roof of nationality,
3-Two passport size photographs of both, and one marriage photograph, and a marriage invitation card, if available,
4-If marriage was solemnized in a religious place, a certificate from the clergy who solemnized the marriage is required,
5-An affidavit confirming that the parties are not related to each other within the prohibited degree of relationship as per Hindu Marriage Act or Special Marriage Act as the case may be attested,
6-Authenticated copy of a divorce decree in case there is a divorce, or death certificate if either spouse is a widow,
7-If either party to the marriage belong to a religion other than Hindu Buddhist, Jain or Sikh, a conversion certificate from the clergy who solemnized the marriage is needed,
8-All documents excluding receipt should be attested by a Gazette Officer.
DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.
Gabriel Sawma is a lawyer with Middle East Background, and a recognized authority on Islamic law of marriage, divorce, and custody of children, Professor of Middle East Constitutional Law and Islamic Sharia (law), and Expert Consultant on Islamic divorce in U.S. Courts. Admitted to the Lebanese Bar Association. Former Associate Member of the New York State Bar Association, and former Associate Member of the American Bar Association.
Professor Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and universities in the U.S., Europe, and the Middle East. He wrote Affidavits and legal opinions to State Courts, Immigration authorities throughout the United States.
Travelled extensively to Saudi Arabia, the Arabian Gulf region, and other countries in the Middle East, and wrote numerous articles on Islamic divorce in USA and abroad.
Prof. Sawma speaks, reads and writes, Arabic, English, French and a few other Semitic languages spoken in the Middle East.
Interviewed by the following news organizations;
Professor of Islamic Finance at the University of Liverpool (2012)
Lectured on Islamic Sharia at Fairleigh Dickinson University:
Tel. (609) 915-2237
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