December 9, 2023

Legal Consequence of non-registration of Christian Marriages: a Cautionary tale

This article has been written by Ms. Tanaya Devadhe, a 3rd year BALLB student at ILS Law College, Pune

Abstract

Registration of marriages for legal validation in the backdrop of customary sanctity of marriages has been a bonne of contention for the legislature ever since independence. This article aims to explore the existing family law framework surrounding the registration of marriages, in general, and registration of Christian marriages, in particular, in India. It also attempts to understand the social and legal consequences of registration as well as non-registration of Christian marriages on the marriage and rights and obligations arising from such a marriage.

Introduction 

In simpler and traditional terms, marriages can be understood as a legal and socially recognized union between a man and a woman to establish sexual relationship and to carry out marital obligations. As much as marriages are bound by social sanctions, non-compliance with marital obligations is common. This is where law comes into picture. State’s personal laws regulate these matters. One such way regulating is through registration of marriages.

Marriage is the foundation upon which is family is built. Therefore, the regulation of marriages becomes pertinent. Marriage gives rise to rights such as right to maintenance, inheritance, succession, conjugal relations, restitution, etc. Without a legally valid marriage, these rights cannot be enforced. Registration of marriages, thus, becomes an important stepping-stone in establishing a valid marriage. 

Registration of marriages refers process of enrolling the factum of marriages in an official list maintained by the Government as a record. This process of registration involves scrutiny of the marriage performed and whether the said marriage fulfills all the required conditions of a valid marriage under any personal law. The parties to a marriage get a Marriage certificate on completion of the registration process which acts as legal and authorized proof of a valid marriage.  Marriage Certificate is an official document which is issued by the registrar and certifies the act of marriage along with the date and place. 

Is it mandatory to register a marriage in India?

Marriage is regarded as a holy, religious activity in India, conferring rights and duties on both the male and female partners in the marriage. Marriage’s exact meaning, whether it is a sacrament or a contract, has been the subject of numerous arguments and debates. Additionally, religious understanding go marries differs as Hindus consider marriages a sacrament whereas Muslims consider it a civil contract and Christians consider it a sacrament but cannot distinguish between Marital sacrament and Marital contract for baptized believers. Thus, the fact that Indian is a diverse nation and a residence for several religion and group cannot be denied. Each group is being governed by their personal rules and regulation when it comes to personal laws. 

Also refusing to recognize unregistered marriages as valid, in India, would be highly inappropriate, as many marriages take place informally in gatherings of relatives, with or without the presence of priests, or in any other customary manner that must also be recognised as valid. Customary practices and personal law systems are so prevalent, it is necessary for the law to recognise cultural and regional diversity. As a result, the idea is to promote legal education among the general public so that these ceremonies can be preceded or followed by event registration.

Different personal laws deal with registrations of marriages in the following manner:

  1. Hindu Marriage Act, 1955: 

Section 8 provides for registration of marriages. However, the use of word “may” make the registration discretionary. Furthermore, sub-section of section 8 has an overriding effect wherein the Furthermore validity of marriages is not affected due to non-registration of marriages. Thus, registration is not mandatory but prescribed and punishable with fine.

  1. Special Marriage Act, 1954:

Section 13 and 15 deal with registration of marriages amongst people with different religions. S.13 trough the medium of Certificate of marriage mandates the registration of special marriages by Marriage Officer and S.13(2) holds such a Certificate to be conclusive evidence of solemnization of such marriages.S.15 provides for registration of marriages celebrated in forms other than prescribed in the Act subject to fulfillment f certain conditions. Thus, registration is mandatory.

  1. Indian Christian Marriage Act, 1872: 

S.27 provides for registration of marriage. However, S.77 of the Act provides for validity of non-registered marriages. Even though it is a mandatory practice, it does not per se affect the validity of marriages.

  1. Parsi Marriage and Divorce Act, 1936: 

S.6 provides for registration of marriages and certification of the same. It is a mandatory practice.

Apart from these personal laws, states have their own legislations for registration of Marriages.

 

Registration of Christian Marriages

Indian Christian Marriage Act, 1872 ha the following provisions for registration of marriage:

  1. Sections 27-37 are encompassed within Part IV of the Indian Christian Marriage Act, 1872, addressing the registration of marriages among Indian Christians in accordance with prescribed rules. These marriages are solemnized by Clergymen from the Church of England, who are required to submit quarterly returns to the Archdeaconry containing comprehensive details of each marriage entry. For each entry, both parties involved and the Clergymen must affix their signatures, and the entry is to be attested by two credible witnesses.
  2. Moving to Part V, comprising Sections 38-59, the focus shifts to marriages solemnized by or in the presence of a Marriage Registrar. When intending to solemnize such a marriage, one of the parties must provide notice to a Marriage Registrar in the format outlined in the First Schedule, indicating the district of their residence. A certificate, a prerequisite for marriage solemnization, is then issued by the Marriage Registrar.
  3. The issued certificate expires after two months if the marriage is not solemnized within that period, necessitating the issuance of a new notice. Following the solemnization, the marriage is to be registered, and an entry is recorded in the certificate and marriage register book. Signatures of both parties and the Marriage Registrar, along with attestation by two credible witnesses, are mandatory for this registration.
  4. Part VI of the Act, embodied in Sections 60-65, pertains to the marriage of Indian Christians. Unlike Part V, no preliminary notice is required here. However, it must be substantiated that the ages of the bridegroom and bride are not below 21 and 18 years, respectively, and neither party has a living spouse. The concerned parties then take an oath in the presence of two witnesses and a Marriage Officer, who subsequently issues a certificate of marriage. Entries are meticulously recorded in the register dedicated to this purpose.
  5. Part VIII of the Act deals with miscellaneous marriage-related issues. Minor irregularities do not render a solemnised marriage void under this Act. The errors are correctable. It also empowers the State Government to impose fees for receiving and publishing marriage notices, issuing marriage certificates, searching register books or certificates, and so on.

Effects of registration on marriage

The registration of marriages provides legal evidence of the existence of a marital relationship. It helps in preventing fraudulent practices such as bigamy, enables spouses to claim their rights and benefits, and ensures the protection of children’s rights by establishing their legitimate parentage. Additionally, registered marriages simplify the process of obtaining various legal documents like passports, visas, and inheritance-related certificates. Registration essential establishes the factum of solemnization of a valid marriage which in turn enforces the following rights to parties:

  1. Legal Validity:

   The primary effect of marriage registration is the legal recognition and validity of the marital union. A registered marriage is considered legally valid, and the registration provides conclusive evidence of the marriage. This legal validity is crucial for various purposes, including inheritance, property rights, and spousal benefits.

  1. Protection of Rights and Entitlements:

   Registration of marriage is essential for the protection of the rights and entitlements of the spouses. It establishes a legal framework for the recognition of spousal rights, such as the right to inherit property, claim social security benefits, and access financial entitlements. The registration ensures that spouses are legally recognized and entitled to the rights afforded to married couples.

  1. Prevention of Bigamy:

   Marriage registration helps prevent bigamy by creating an official record of the marital status of individuals. The existence of a registered marriage makes it easier for authorities to verify whether an individual is already married before solemnizing another marriage. This acts as a deterrent to fraudulent practices and contributes to the maintenance of marital fidelity.

  1. Legitimacy of Children:

   Registered marriages establish the legitimacy of children born within the union. The marriage certificate serves as legal proof of the parents’ relationship, ensuring that children have legal rights and entitlements. It simplifies matters related to child custody, guardianship, and inheritance, providing a secure legal foundation for the family structure.

  1. Simplified Legal Proceedings:

   In the event of disputes, divorce, or the dissolution of marriage, a registered marriage simplifies legal proceedings. The existence of an official record facilitates the resolution of legal issues, including the division of assets, spousal support, and child custody. It provides a clear starting point for legal processes and helps avoid protracted legal battles.

  1. Access to Government Benefits:

   Registration of marriage is often a prerequisite for accessing various government benefits and services. This includes obtaining passports, visas, and social welfare programs that may be available to married couples. The marriage certificate serves as proof of the marital relationship and is required in many official transactions.

  1. Estate Planning and Inheritance:

   Marriage registration is crucial for estate planning and inheritance purposes. A registered marriage facilitates the smooth transfer of property and assets between spouses, minimizing legal complications during the inheritance process. It ensures that the surviving spouse is recognized as the

The above-mentioned effects are equally applicable to Christian marriages.

 

Consequences of Non-registration of Christian marriages

Non-registration of marriages has several adverse effects on the rights of the parties, predominantly women. 

  1. Legal validity of marriage: Women are frequently denied the status of wife owing to a lack of documentation establishing a lawful marriage. The courts have often highlighted the importance of making marriage registration mandatory in order to prevent denial of status to women and children born out of wedlock. This exempts them from enforcing any of the marital rights.
  2. Maintenance: Maintenance by a Christian wife can be claims under S.36 and 37 of the Divorce Act 1869 and under S.125 of the Code of Criminal Procedure, 1973. However, the factum of valid marriage needs to be established to avail the right to maintenance as it stems from the status of marriage. In case of non-registration, the husband, in order to escape liability, may not recognize the marriage as valid which puts the wife in a difficult position as she is assumed to be legally dependent on the husband. Maintenance is an important right of women who as financially dependent and a non-registered marriage can jeopardize the same.
  3. Child marriages: S.60 of the Indian Christian Marriage Act, 1872 provides for required age for parties to a marriage which is 21 years for male and 18 years for female. One of the biggest problems of unregistered marriages is the practice of child marriages. Female parties to the marriage can be forced to marry at a young age or be sold under the garb of marriage and such marriages may go unnoticed due to no scrutiny of the Marriage Registrar.
  4. Bigamy: The most common adverse outcome of unregistered marriages is bigamy. The process of registration and solemnization of Christian marriages specially provides for a system of objection from any person or the Registrar himself if there is any irregularity in the notice of intended marriage. Given how this notice is published, in case of an existing spouse, the marriage can be objected to immediately and bigamy can be prevented. Furthermore, the Registrar himself may have the name of party committing bigamy in his register of marriages already and he can reject the notice at once in such a case. In case of non-registration, the aggrieved party cannot necessarily avail the benefit of such provisions and cannot sue the bigamous spouse for bigamy. 
  5. Divorce: Even though bigamy is a ground for divorce under Divorce Act, 1869, it requires a marriage solemnized in accordance with the provisions of the Indian Christian Marriage Act, 1872 as prescribed by S.4 of the Act and in absence of proof of the same, divorce cannot be granted. This was held in the case of G. Packia Raj v. P Subbammal. This in turn affects the spouse’s capacity to remarry.
  6. Property Rights: Christian law does not recognize children born out of wedlock; it only recognizes legitimate marriages. It also does not recognize polygamous marriages. This essentially means that in case the validity of the marriage is challenged on the basis of non-registration and if it is sustained, the spouse and the children can lose the right to inheritance and succession from the property of the spouse or parent. Unregistered marriages may pose challenges in establishing the legitimacy of children born within the union. Registration of marriage serves as proof of the legal relationship between the parents, and non-registration may affect issues related to child custody, guardianship, and inheritance. In Sushma W/o Hemantrao Bodas v. Malti W/o Madhukar Machile, the Bombay High Court ruled in favour of a valid marriage based on the marriage certificate. The court also stated that marriage registration facilitates proof of marriage in succession and other disputes.
  7. Visa and Immigration Issues:   In an era of globalization, the recognition of marital status is crucial for visa and immigration purposes. Non-registration of Christian marriages can complicate the process of obtaining spousal visas or family reunification visas, impacting the ability of spouses to live together in a foreign country.
  8. Judicial separation: non-registration of marriages becomes an obstacle in proving the existence of a marital relationship. This impacts the arrived spouse form availing the remedy under S.23 of the Divorce Act, 1869 for judicial separation which means that the remedy to enforce marital rights but to be exempted from marital obligations for a reasonable cause is not granted.

Conclusion

The Supreme Court and the High Courts have repeatedly emphasised the importance of making marriage registration mandatory. The most notable decision came in Seema v. Ashwani Kumar, which ruled that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage is solemnised.

According to the 18th Law Commission, the wide variety of laws relating to marriage registration makes the process complicated and confusing. It advocated for the passage of a “Marriage and Divorce Registration Act” that would apply to all citizens in India, regardless of religion or personal law, and with no exceptions or exemptions.

The Supreme Court observed that, while registration is not proof of a valid marriage in and of itself, and is not the deciding factor in the validity of a marriage, it has a great evidentiary value in matters of custody of children, rights of children born from the wedlock of the two persons whose marriage is registered, and the age of the parties to the marriage. 

As a result, it would be in the best interests of society if marriage registration became mandatory. It is worthwhile to consider to make such changes with respect to marriage registration, so that existing administrative machinery can carry out marriage registration in accordance with the specified procedures. 

References

 

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