Do marriages need to be registered? What happens if they are not?
The Supreme Court last week ruled that despite an official marriage certificate, a Hindu couple before the Court had “never acquired the status of husband and wife.”
The reason: the couple’s marriage was registered under the Hindu Marriage Act, 1955 (HMA) even before they performed the wedding rituals. The SC ruled that the couple who had filed divorce cases need not get a divorce because they were never married in the first place.
The apex court’s observations in the ruling bring to focus various issues on registration and solemnization of a marriage, and its necessity.
What is a solemnized marriage?
Solemnizing a marriage simply refers to the performance of an official marriage ceremony, with appropriate rituals.
Marriage in India is largely governed through a gamut of personal laws, and the Special Marriage Act, 1954 (SMA). Though codified through statute, these personal laws are essentially practices ordained by religion, with each religion having its own set of ‘requirements’ for a marriage — a marriage is ‘valid’ when these requirements are met.
For instance, for Hindus (and Christians), marriage is a sacrament, i.e. it is a religious bond. Rituals such as kanyadaan, panigrahana and saptapadi, or other local customs solemnize a Hindu marriage. Section 7 of the HMA codifies these requirements, and names saptapadi as an essential ritual.
For Christians, a ceremony in the Church based on local customs is regarded as a valid marriage. For example, for some Tamil Christians, this involves tying of a thaali — a chain with a cross on the pendant in Church.
Under Muslim law, however, marriage is essentially a contractual obligation. A valid marriage requires the consent of both parties, in writing, and in the presence of witnesses. In practice, this includes both parties giving vocal consent, and signing a nikahnama (Islamic marriage contract) in the presence of witnesses and a Qazi.
What are registered marriages?
Registration of a marriage after it is solemnized as per rituals is different from a registered marriage.
Commonly used terms like ‘court marriage’ or ‘registered marriage’ refer to a non-religious or civil marriage under the SMA, a secular law. A marriage ‘performed’ under this law is essentially a solemnization in ‘court’ (a registrar’s office) without any rituals. However, marriages under personal laws (such as HMA) become ‘valid’ only after the performance of rituals prescribed by religion. A marriage without any rituals is only valid under the SMA.
Section 8 of the HMA gives powers to the state to register marriages solemnized as per the requirements of Section 7. Similarly, the Indian Christian Marriage Act 1872 provides the procedure for solemnization of Christian marriages and their registration.
For Muslims, a nikahnama issued by a Qazi outlines the terms of the marriage. Although not a public registration under a statute, this registration form is widely adopted. Separately, several states including Assam, and Jammu & Kashmir have their own laws for registration of Muslim marriages and divorce, although their application is scarce.
What if a marriage is not registered?
Entry 5 of the Concurrent List in the Constitution’s Seventh Schedule deals with marriage and divorce, and Entry 30 deals with vital statistics including registration of births and deaths. Both these subjects jointly or separately deal with the registration of marriages.
Although there is a central legislation on the subject — the Births, Deaths and Marriages Registration Act, 1886 — it does not have a robust application to marriage, unlike the effort to record births and deaths. States have their own laws, and in some states like Karnataka and Delhi, registration of a marriage is mandatory.
A certificate of a marriage registration is useful for various official purposes where either spouses need to declare that they are married. For instance, applying for a spousal visa or joint medical insurance. However, not registering a marriage cannot be the sole ground to declare it invalid — since registering a marriage itself does not make it valid, so not registering also cannot in itself make it invalid.
When the validity of a marriage is contested, then a marriage certificate alone is not enough to prove the marriage. An exception to this is a certificate under the SMA which is “conclusive” proof of marriage. Section 13(2) of the SMA states that “on a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.”
In Muslim and Christian marriages too, registration takes place almost immediately after solemnization with witnesses present which makes it more reliable as evidence. This is unlike in a Hindu wedding where the priest performing the ceremony does not routinely certify the marriage.
However, in law, there exists a general presumption of marriage when a man and woman have cohabited continuously even if there is no direct evidence of marriage. Section 114 of the Indian Evidence Act states that “the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
A ‘valid’ marriage as per rituals might be key in determining who is a rightful spouse when there are claims by multiple cohabiting partners. These aspects become crucial in bigamy trials, inheritance suits. In a bigamy case, a man has to prove that one of his marriages is not valid to not be charged for marrying twice. In an inheritance case, the validity of a marriage is questioned to disinherit a spouse. Proof of performing a valid marriage as per rituals (through photos, witnesses etc.); proof of long cohabitation as spouses through acceptance by family, friends or even children is evidence of a valid marriage. A marriage certificate has corroborative value in these cases but cannot be counted as evidence in itself.
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