Civil marriage procedure for foreigners in chennai,India

The Special Marriage Act was enacted to provide a special form of marriage by any person in India and all Indian nationals in foreign countries irrespective of the religion either party to the marriage may profess.

 

INTRODUCTION

The Special Marriage Act was enacted to provide a special form of marriage by any person in India and all Indian nationals in foreign countries irrespective of the religion either party to the marriage may profess.
 
For the benefit of Indian citizens abroad, it provides for the appointment of Diplomatic and Consular Officers as marriage officers for solemnizing and registering marriages between citizens of India in a foreign country.
 
The Act extends to the whole of India except the state of Jammu and Kashmir and also applies to citizens of India domiciled in the territories to which this Act extends who are in the state of Jammu and Kashmir.


 

CONDITIONS NECESSARY FOR A MARRIAGE

The following conditions are necessary:

  • That neither party has a spouse living at the time of marriage.
  • That neither party is incapable of giving a valid consent to the marriage due to unsoundness of mind.
  • That neither party has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children.
  • That neither party has been subject to recurrent attacks of epilepsy or insanity.
  • That the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage.
  • That the parties are not within the degrees of prohibited relationship.

However where a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnized non with standing that they are within the degrees of prohibited relationship as follows:

DEGREES OF PROHIBITED RELATIONSHIP:

  • Mother
  • Father's widow (step mother)
  • Mother's mother
  • Mother's father's widow (step grand mother)
  • Mother's mother's mother
  • Mother's mother's father's widow
  • Mother's father's mother
  • Mother's father's father's widow (step great grand mother)
  • Father's father's widow (step grand mother)
  • Father's mother's mother

That where the marriage is solemnized in the State of Jammu and Kashmir, both the parties are citizens of India domiciled in the territories to which this Act extends.

SOLEMNIZATION OF MARRIAGE

 Parties who intend to get married under the Special marriage Act shall give a notice in writing in the specified form to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given. 

NOTICE OF INTENDED MARRIAGE

A notice has to be given in writing in the form given below to the Marriage Officer of the District in which at least one of the parties to the marriage has resided for a period of not less than 30 days immediately proceeding the date on which such notice was given.
 
NOTICE
 
To,
Marriage Officer,
_______District________
 
               We hereby give you notice that a marriage under the Special Marriage Act, 1954, is intended to be solemnized between us within three calendar months hereof.
 
Name:
Condition:
Occupation:
Age:
Dwelling:

Place of residence if present dwelling place not permanent.
 
AB
 
Unmarried/Widower/Divorced
 
Witness our hands this _____ day of ___ 200_
 

Signed AB                   Signed CD
 

 

PUBLICATION

The notice given is then published by affixing it in some conspicuous place in the office of the Marriage Officer, and before the expiration of thirty days from the date on which the notice was published any person can object to the marriage that it would contravene any of the conditions necessary for the marriage.
 
After the expiry of thirty days from the date on which the notice was published the marriage may be solemnized.
 

DECLARATION AND WITNESSES

Before the marriage is solemnized the parties and three witnesses shall sign a declaration in the form give below, and the declaration shall be counter signed by the Marriage Officer.

DECLARATION MADE BY THE BRIDEGROOM
   
 

      i.        I, _________hereby declare as follows;

     ii.        I am at the present unmarried (or a widower or a divorcee, as the case may be)

    iii.        I have completed _______ years of age.

    iv.        I am not related to ________(the bride) within the degrees of prohibited relationship.

     v.        I am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to true, I am liable to imprisonment and also to fine.


SIGNED__________
(BRIDEGROOM)

DECLARATION MADE BY THE BRIDE
 

      i.        I, _________hereby declare as follows;

     ii.        I am at the present unmarried (or a widower or a divorcee, as the case may be)

    iii.        I have completed_______years of age.

    iv.        I am not related to ________(the bridegroom) within the degrees of prohibited relationship.

     v.        I am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to true, I am liable to imprisonment and also to fine.


SIGNED__________
(BRIDE)
 
       Signed in our presence by the aboveground ________ and __________ .So far as we are aware there is no lawful impediment to the marriage.
 
WITNESSES
 
SIGNED____
 
SIGNED____
 
SIGNED____
 
COUNTERSIGNED
 
MARRIAGE OFFICER
Dated:___day of ________200

PLACE AND FORM OF SOLEMNIZATION

The marriage may be solemnized at the office of the Marriage Officer or at such place within reasonable distance as the parties may desire upon payment of such additional fees as may be prescribed.
     
The marriage may be solemnized in a form, which the parties may choose to adopt.

However, no marriage is complete and binding unless each party says to the other in the presence of the Marriage Officer and the three witnesses in any language understood by the parties, I_______take thee________to be my lawful wife (or husband)

 

CERTIFICATE OF MARRIAGE

After the marriage has been solemnized the Marriage Officer shall enter a certificate in the Marriage Certificate Book and this shall be signed by the parties to the marriage and the three witnesses and this shall be conclusive evidence of the marriage.

REGISTRATION OF MARRIAGE CELEBRATED IN OTHER FORMS

Any marriage celebrated other than a marriage solemnized under the Special Marriage Act, 1872 or under the Special Marriage Act, 1954 may be registered under Chapter III of the Act by a Marriage Officer if the following conditions are fulfilled:

  • a ceremony of marriage has been performed between the parties and they have been     living together as husband and wife ever since
  • neither party has at the time of registration more than one spouse living;
  • neither party is an idiot or a lunatic at the time of registration:
  • the parties have completed the age of twenty-one year at the time of registration;
  • the parties are not within the degrees of prohibited relationship:
  • the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.

PROCEDURE FOR REGISTRATION

Upon receipt of an application signed by both the parties to the marriage for the registration, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objection and after hearing any objection received within that period, shall, if satisfied that all the conditions are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the prescribed form and such certificate shall be signed by the parties to the marriage and by three witnesses.

CONSEQUENCES OF MARRIAGE UNDER THIS ACT

EFFECT OF MARRIAGE ON MEMBER OF UNDIVIDED FAMILY
 
Where any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion marries a non-Hindu under this Act, he shall be severed from such family. However if two persons who are Hindus and get married under this Act no such severance takes place.
 
SUCCESSION TO PROPERTY OF PARTIES MARRIED UNDER THIS ACT
 
Notwithstanding anything contained in the Indian Succession Act, 1925 with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the Indian Succession Act. However if two persons who are Hindus get married under this Act the above provision does not apply and they are governed by the Hindu Succession Act.

 

 

 

 

 

 

 

 

 

 

 

Muslim marriage

Introduction

Muslim Law in India means " that portion of Islamic Civil Law which is applied to Muslims as a personal law". It consists of injunctions of Quran and has been further supplemented and modified by state Legislation and modern judicial precedents of the High Courts and the Supreme Court of India and also of the Privy Council.

 

Marriage/'Nikah' according to Muslim Law is a contract underlying a permanent relationship based on mutual consent.

Essential Features

1.     A Muslim marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the other as is required for a contract. Moreover there can be no marriage without free consent and such consent should not be obtained by means of coercion, fraud or undue influence.

2.     Just as in case of contract, entered by a guardian, on attaining majority, so can a marriage contract in Muslim Law, be set aside by a minor on attaining the age of puberty.

3.     The parties to a Muslim marriage may enter into any ante-nuptial or postnuptial agreement which is enforceable by law provided it is reasonable and not opposed to the policy of Islam. Same is the case with a contract.

4.     The terms of a marriage contract may also be altered within legal limits to suit individual cases.

5.     Although discouraged both by the holy Quran and Hadith, yet like any other contract, there is also provision for the breach of marriage contract.

REQUIREMENTS

 

The solomonisation of marriage requires adherence to certain forms and formulas. They are called the essentials of a valid marriage. If any of these requirements is not fulfilled the marriage becomes either void or irregular, as the case may be. Thus the essentials are as follows:

1.     Proposal and Acceptance

2.     Competent parties

3.     No legal Disability

Procedure

1.     Marriage like any other contract is constituted by ijab-o-qabool, that is by declaration and acceptance. One party to the marriage must make an offer (Ijab) to the other party. The marriage becomes complete only when the other party has accepted the offer.

2.     According to Muslim Law it is absolutely necessary that a man or someone on his behalf and the woman or someone on her behalf should agree to the marriage at one meeting and the agreement should be witnessed by two adult witnesses.

3.     The Words conveying proposal and acceptance must be uttered in each other's presence or in the presence of their agents, who are called Vakil's.

4.     The other condition for a valid marriage is that the transaction must be completed at one meeting. A proposal made at one meeting and an acceptance at another meeting do not constitute a valid marriage.

5.     There must be reciprocity between offer and acceptance. The acceptance must not be conditional
Under the Sunni Law, the proposal and acceptance must be made in presence of two males or one male and two female witnesses who are sane, adult and Muslim. Under Shia Law, witnesses are not necessary at the time of marriage. They are required at the time of dissolution of marriage.

6.     The parties contracting marriage must be acting under their free will and consent.

Competent parties & legal disabilities

The Parties to a marriage must have the capacity of entering into a contract. They must be competent to marry. Muslim who is of sound mind and who has attained puberty may enter into a contract of marriage. The parties must be able to understand the nature of their act.

 

LEGAL DISABILITY

 

Means the existence of certain circumstances under which marriage is not permitted. These prohibitions have been classified into four classes:-

1.     Absolute incapacity or prohibition

2.     Relative incapacity or prohibition

3.     Prohibitive incapacity

4.     Directory incapacity  

1.     ABSOLUTE INCAPACITY OR PROHIBITION: arises from:

1.     Consanguinity

2.     Affinity

3.     Fosterage

                      i.        Consanguinity means blood relationship and bars a man from marrying:

a)    His mother or grandmother how highsoever,

b)    His daughter or grand-daughter how lowsoever,

c)    His sister whether full, consanguine or uterine,

d)    His niece or great niece how lowsoever,

e)    His aunt (fathers sister, mothers sister) or great aunt, how highsoever, whether paternal or maternal A marriage with a woman prohibited by reason of consanguinity is void. Issues from such marriage are illegitimate.

                     ii.        Affinity prohibits a man from marrying:

a)    His wife's mother or grand-mother how highsoever

b)    His wife's daughter or grand-daughter how lowsoever
Wife of his father or paternal grand-father how highsoever

c)    Wife of his son or son's son or daughter's son how lowsoever

d)    A marriage with a woman prohibited by reason of affinity is void.

                    iii.        Fosterage means when a woman other than its own mother has suckled a child under the age of two years, the woman becomes the foster-mother of the child. A man may not, for instance, marry his foster-mother or her daughter, or his foster sister.

EXCEPTIONS

Under the Sunni law, there are a few exceptions to the general rule of prohibition on the ground of fosterage and a valid marriage may be contracted with:

1.     Sister's foster mother, or

2.     Foster's sisters mother, or

3.     sons sister, or

4.     Foster brother's sister.

The Shia jurists place fosterage and consanguinity on the same footing and refuse to recognize the exception permitted by the Sunnis. The above mentioned prohibitions on account of 'consanguinity', 'affinity' or 'Fosterage' are absolute and the marriages contracted in contravention of these rules are void. 

1.     RELATIVE INCAPACITY OR PROHIBITION: Springs from cases which render the marriage invalid only so long as the cause which creates the bar exist. The moment it is removed, the incapacity ends and the marriage become valid and binding. The following are the cases:

                      i.        Unlawful conjunction,

                     ii.        Polygamy, or marrying a fifth wife.

                    iii.        Absence of proper witnesses

                    iv.        Differences of religion

                     v.        Woman undergoing IDDAT

 

                      i.        Unlawful conjunction: means contemporaneously marrying two women so related to each other by consanguinity, affinity or fosterage, which they could not have lawfully intermarried with each other if they had been of different sexes. Thus a Muslim cannot marry two sisters, or an aunt and her niece.

Under the Shia Law, a Muslim may marry his wife's aunt, but he cannot marry his wife's niece without her permission. Marriage prohibited by reason of unlawful conjunction is void under Shia Law.

                     ii.        Polygamy or marrying a fifth wife: means plurality of wives, i.e. marrying a fifth wife. It is unlawful for a Mohammedan to have more wives than four.

A Muslim woman cannot marry more than one husband. If a woman marries a second husband, she is liable for bigamy under Sec.494, Indian Penal Code and the issues of such a marriage are illegitimate.

In India no Muslim marrying under or getting his marriage registered under The Special Marriage Act, 1954,can marry a second wife during the lifetime of his spouse.

                    iii.        Absence of proper witnesses: It is essential amongst the Sunnis that at least two male witnesses or one male or two female witnesses must be present to testify that the contract was properly entered into between the parties. The witnesses must be of sound mind, adult and Muslim.

In Shia Law, a marriage contracted by the spouses themselves or their guardians in private are held valid. Presence of witnesses is not necessary.

                    iv.        Differences of religion: A Sunni male can marry a Muslim female (Of any sect) or a Kitabia. Marriage with the Kitabia, i.e. a woman who believes in a revealed religion possessing a Divine Book viz Islam, Christianity and Judaism is valid under the Sunni Law. But he cannot marry an idolatress or a fire-worshiper. A marriage, however with a idolatress or a fire worshiper is merely irregular in Sunni Law, but void in Shia Law. A Muslim woman cannot marry any man who is not a Muslim, whether he is Kitabia (i.e. man believing in a revealed religion possessing a divine book) or not . According to Mulla, a marriage between a Muslim woman and Non-Muslim male is irregular. But according to Fyzee, such a marriage is totally void

Under Shia Law, no Muslim, whether male or female can marry a non-Muslim in the Nikah form.

Thus a marriage between a Muslim and a non-Muslim can only take place underThe Special Marriage Act, 1954.

                     v.        Woman undergoing Iddat: Iddat is a period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death of her husband to remain in seclusion and to abstain from marrying another husband

Under Sunni Law marriage with a woman undergoing Iddat is irregular and not void. But under Shia law marriage with a woman who is undergoing Iddat is void.

3. PROHIBITIVE INCAPACITY:

It arises in the following cases:

1.     Polyandry

2.     A Muslim woman marrying a non-Muslim

1.     Polyandry: means the fact of having more than one husband. Polyandry is forbidden in the Muslim system and a married woman cannot marry second time so long as the first marriage subsists.

2.     Muslim woman marrying a Non -Muslim: A marriage of a Muslim female with a non-Muslim male, whether he be a Christian, or a Jew or an idolator or a Fire-Worshiper is irregular under Sunni Law and void under Shia Law.

4. DIRECTORY INCAPACITY:

 

This may arise from:

1.     Marrying a woman 'enceinte': It is unlawful to marry a woman who is already pregnant by her former husband.

2.     Prohibition of divorce: When the marriage is dissolved by the pronouncements of divorce three times, re-union is prohibited except after the lawful marriage of the woman with another man and then its being dissolved after consummation.

3.     Marriage during pilgrimage: Under Shia Law, Marriage during pilgrimage is void.

4.     Marriage with a sick man: Marriage with a sick man suffering from disease which is likely to be fatal is invalid. If however, he recovers and the marriage is consummated, it is valid.