By
Professor Gabriel Sawma
INTRODUCTION
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:
CONTACT INFORMATION
Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com
Tel. (609) 915-2237
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