Project on Solemnization of marriage under Christian law - Family Law

Introduction:

The law relating to solemnization in India of marriages of persons professing Christian religion was spread over two Acts of the English Parliament and three Acts of the Indian Legislature. To reduce into a smaller compass and to simplify the then prevalent law on this subject by the consolidation of different enactments, the Indian Christian Marriage Act, 1872 was passed.

The preamble of the Act states that since it is expedient to consolidate and amend the law relating to solemnization in India of marriages of persons professing the Christian religion that this Act has been passed. The Indian Christian Marriage Act, 1872 is divided into eight parts with the Preliminary section defining the expressions Church of England, Church of Scotland, Church of Rome, Church and, inter alia, Christians.

There has been no statutory law relating to solemnization of marriages of Christians in the State of Manipur and in the territories which comprised the former State of Travencore. As far as the territories which comprised the former State of Travencore are concerned, the solemnization of marriages of Roman Catholics are governed by the Canon Law of the Roman Catholic Church, the solemnization of the marriages of Syrian Christians by their Customary Law[1], the solemnization of the marriages of persons belonging to former Church of England by the Canon Law of England[2] and the solemnization of marriages of the rest of Christians by the Common Law of England.[3]

Marriage, as is seen in Christian tradition, is not merely a civil contract nor is it purely a religious contract. It is seen as a contract according to the law of nature, antecedent to civil institutions and by itself an institution. A marriage among Christians is traditionally understood as the voluntary union for life of one man and one woman to the exclusion of all others.

The Indian Christian Marriage Act, 1872, lays down elaborate procedure for the solemnization of marriages. Three sets of authorities are provided for the solemnization of marriage, viz., minister of religion, marriage registrars and persons licensed to solemnize marriage.

“Christian” means a person who professes the Christian Religion. It is not necessary that the person intending to be married under the Indian Christian Marriage Act, 1872 should have been baptized.[4]

The Indian Christian Marriage Act, 1872 is divided into eight parts.

Part I of the Act (Sections 4-9) lays down certain conditions for a marriage to be valid. As per the provisions contained in the Act, the marriage must be performed in a particular form and duly entered in the marriage register maintained for this purpose. The factum of marriage can be proved by producing entries from this register. Other evidence can also be produced for this purpose. It has been held that versions of eyewitnesses to the marriage and subsequent conduct of the couple living as husband and wife can also be good pieces of evidence to prove the factum of a Christian marriage.[5]

A Christian Marriage which takes place in the house of the bride’s mother needs no signing of the Marriage Registrar under the Act.[6]

A Christian Marriage, even if one of its parties is a Hindu, cannot be dissolved by a decree of divorce under Section 13 of the Hindu Marriage Act.[7]

A marriage performed under the Christian Marriage Act and validly registered under the provisions of Special Marriage Act is legal if the conditions laid down in that section are fulfilled.[8]

Part II (Sections 10 and 11) of the Act lays down the general rule that every marriage under this Act shall be solemnized between the hours of six in the morning and seven in the evening and the place of marriage should be a Church.

Part III (Sections 12-26) of the Act deals with notice of intended marriage and its publication before the actual marriage ceremony.

Part IV (Sections 27-37) of the Act deals with registration of marriages solemnized under this Act between Indian Christians.

Part V (Section 38-59) of The Indian Christian Marriage Act, 1872 deals with marriages solemnized by, or in the presence of, a Marriage Registrar.

A Marriage Registrar is authorized to solemnize marriages within the District for which he is appointed. Since the Act does not specify that a Marriage Registrar should solemnize marriages between Christians, he can solemnize marriages between Christians as well as marriages between Christians and non-Christians.

The age of consent is not specified in the case of marriages solemnized by Marriage Registrars. The act defines “minor” as a person who has not completed 21 years of age, and provides that a Marriage Registrar can solemnize marriage when either party to marriage is a minor.

The degrees of prohibited relationship are not specified in the Act. As far as Roman Catholic Church is concerned, they are specified in the Canon Law which provides for dispensation by the Bishop in whose jurisdiction the marriage was solemnized. It was held by the Supreme Court[9] that “once dispensation is granted by the appropriate authorities the priests cannot be regarded under the Canon Law as being within the prohibited degrees.”

Since degrees of prohibited relationship are not specified in the Act, they should be assessed from the law applicable to the Church to which the parties to marriage belong. The impediment of prohibited degrees cannot be dispensed by any authority in the case of non-Catholic Churches.

Notice Of Intended Marriage Before Marriage Registrar-

Section 38: When a marriage is intended to be solemnized by, or in the presence of, a Marriage Registrar, one of the parties to such marriage shall give notice in writing, in the form contained in the First Schedule hereto annexed, or to the like effect, to any Marriage Registrar of the district within which the parties have dwelt, or, if the parties dwell in different districts, shall give the like notice to a Marriage Registrar of each district, and shall state therein the name and surname, and the profession or condition, of each of the parties intending marriage, the dwelling place of each of them, the time during which each has dwelt therein, and the place at which the marriage is to be solemnized:

Provided that, if either party has dwelt in the place stated in the notice for more than one month, it may be stated therein that he or she has dwelt there one month and upwards.

According to Section 38 of The Indian Christian Marriage Act, 1872, whenever a marriage is intended to be solemnized by a Minister of Religion licensed to solemnize marriages under this Act, one of the persons intending marriage shall give notice in writing, according to the form contained in the First Schedule in the Act or to the like effect, to the Minister of Religion whom he or she desires to solemnize the marriage, and shall state therein the name and surname, and the profession or condition, of each of the persons intending marriage, the dwelling-place of each of them, the time during which each has dwelt there and the Church or private dwelling in which the marriage is to be solemnized provided that, if either of such persons has dwelt in the place mentioned in the notice during more than one month, it may be stated therein that he or she has dwelt there one month and upwards.


Publication Of Notice-

Section 39: Every Marriage Registrar shall, on receiving any such notice, cause a copy thereof to be affixed in some conspicuous place in his office.

When one of the parties intending marriage is a minor, every Marriage Registrar shall, within twenty-four hours after the receipt by him of the notice of such marriage, send, by post or otherwise, a copy of, such notice to each of the other Marriage Registrars (if any) in the same district, who shall likewise affix the copy in some conspicuous place in his own office.

According to section 39, the Marriage Registrar to whom the notice is given shall publish it by causing a copy of it to be affixed in some conspicuous place in his office and, if one of the parties to marriage is a minor, send a copy of the notice to each of the other Marriage Registrars in the District who shall publish the notice likewise.

Publication of such notice : If the persons intending marriage under this Act desire it to be solemnized in a particular Church, and if the Minister of Religion to whom such notice has been delivered be entitled to officiate therein, he shall cause the notice to be affixed in some conspicuous part of such Church. But if he is not entitled to officiate as a Minister, in such Church, he shall, at his option, either return the notice to the person who delivered it to him, or deliver it to some other Minister entitled to officiate therein, who shall thereupon cause the notice to be affixed as aforesaid. If it be intended that the marriage shall be solemnized in a private dwelling, the Minister of Religion, on receiving the notice prescribed in section 12, shall forward it to the Marriage Registrar of the district, who shall affix the same to some conspicuous place in his own office.


Notice To Be Filed And Copy Entered In Marriage Notice Book-

Section 40: The Marriage Registrar shall file all such notices and keep them with the records of his office, and shall also forthwith enter a true copy of all such notices in a book to be furnished to him for that purpose by the State Government, and to be called the "Marriage Notice Book", and the Marriage Notice Book shall be open at all reasonable times, without fee, to all persons desirous of inspecting the same.

According to section 40, the Marriage Registrar shall enter a true copy of the notice in the Marriage Notice Book to be kept by him, which shall be open to all persons desirous of inspecting the same and keep the notice with the records of his office.

Procedure on receipt of notice: The Marriage Registrar or Senior Marriage Registrar, as the case may be, on receiving any such notice, shall affix it to some conspicuous place in his own office, and the latter shall further cause a copy of the said notice to be sent to each of the other Marriage Registrars in the same district who shall likewise publish the same in the manner above directed. The Marriage Registrar shall enter a true copy of the notice in the Marriage Notice Book to be kept with him which shall be open to all persons desirous of inspecting the same and keep the notice with the records of his office.


Certificate Of Notice Given And Oath Made-

Section 41: If the party by whom the notice was given requests the Marriage Registrar to issue the certificate next hereinafter mentioned, and if one of the parties intending marriage has made oath as hereinafter required, the Marriage Registrar shall issue under his hand a certificate of such notice having been given and of such oath having been made:

Proviso- Provided

that no lawful impediment be shown to his satisfaction why such certificate should not issue;

that the issue of such certificate has not been forbidden, in manner hereinafter mentioned, by any person authorized in that behalf by this Act ;

that four days after the receipt of the notice have expired; and further,

that where, by such oath, it appears that one of the parties intending marriage is a minor, fourteen days after the entry of such notice have expired.

According to section 41, after the declaration is made by the parties, the Marriage Registrar shall, after the expiration of four days after he has received the notice, the period being fourteen days if a party to a marriage is a minor, issue a certificate in the form specified in the Second Schedule if no lawful impediment is shown to the marriage, provided the issue of such certificate is not forbidden.

Oath Before Issue Of Certificate-

Section 42: The certificate mentioned in section 41 shall not be issued by any Marriage Registrar, until one of the parties intending marriage appears personally before such Marriage Registrar, and makes oath-

(a) that he or she believes that there is not any impediment of kindred or affinity, or other lawful hindrance, to the said marriage, and

(b) that both the parties have, or (where they have dwelt in the districts of different Marriage Registrars) that the party making such oath has, had their, his or her usual place of abode within the district of such Marriage Registrar, and, where either or each of the parties is a minor,

(c) that the consent or consents to such marriage required by law has or have been obtained thereto, or that there is no person resident in India authorized to give such consent, as the case may be.

According to section 42, either party to marriage should appear before the Marriage Registrar and make a solemn declaration that there is no impediment of kindred or affinity or other lawful hindrance to the marriage, that the party making the oath resides in the District of the Marriage Registrar and, if either or both the parties is or are a minor or minors, that the consent of the father or guardian of the minor has been obtained or there is no person residing in India who is authorized to give such consent.

Petition To High Court To Order Certificate In Less Than Fourteen Days-

Section 43: When one of the parties intending marriage is a minor, and both such parties are at the time resident in any of the towns of Calcutta, Madras and Bombay, and are desirous of being married in less than fourteen days after the entry of such notice as aforesaid, they may apply by petition to a Judge of the High Court, for an order upon the Marriage Registrar to whom the notice of marriage has been given, directing him to issue his certificate before the expiration of the said fourteen days' required by section 41.

Order on petition: And, on sufficient cause being shown, the said Judge may, in his discretion, make an order upon such Marriage Registrar, directing him to issue his certificate at any time to be mentioned in the said order before the expiration of the fourteen days so required.

And the said Marriage Registrar, on receipt of the said order, shall issue his certificate in accordance therewith.

According to section 43, if one of the parties to the marriage is a minor and the parties who reside in Kolkata, Chennai or Mumbai desire that the marriage should be solemnized within fourteen days after the notice is given, they may petition to the High Court and on sufficient cause being shown, the court may order the Marriage Registrar to issue the certificate before the expiration of the said fourteen days.

Consent Of Father Or Guardian-

Section 44: The provisions of section 19 apply to every marriage under this Part, either of the parties to which is a minor;

Protest against issue of certificate- And any person whose consent to such marriage would be required thereunder may enter a protest against the issue of the Marriage Registrar's certificate, by writing, at any time before the issue of such certificate, the word "forbidden" opposite to the entry of the notice of such intended marriage in the Marriage Notice Book, and by subscribing thereto his or her name and place of abode, and his or her position with respect to either of the parties, by reason of which he or she is so authorized

Effect of protest- When such protest has been entered, no certificate shall issue until the Marriage Registrar has examined into the matter of the protest, and is satisfied that it ought not to obstruct the issue of the certificate for the said marriage, or until the protest be withdrawn by the person who entered it.

According to section 44, the person whose consent to marriage is required may protest against the issues of the certificate and when such protest is made, the Marriage Registrar shall not issue the certificate until he has examined the matter and is satisfied that the protest ought not to obstruct the issue of the certificate or the protests is withdrawn. The consent of the father or the guardian is required for the solemnization of the marriage of a minor.[10]


Petition Where Person Whose Consent Is Necessary Is Insane, Or Unjustly Withholds Consent-

Section 45: If any person whose consent is necessary to any marriage under this Part is of unsound mind, or if any such person (other than the father) without just cause withholds his consent to the marriage, the parties intending marriage may apply by petition, where the person whose consent is necessary is resident within any of the towns of Calcutta, Madras and Bombay, to a Judge of the High Court, or if he is not resident within any of the said towns, then to the District Judge.

Procedure on petition- And the said Judge of the High Court, or District Judge, as the case may be, may examine the allegations of the petition in a summary way; and, if upon examination such marriage appears proper such Judge of the High Court or District Judge, as the case may be, shall declare the marriage to be a proper marriage.

Such declaration shall be as effectual as if the person whose consent was needed had consented to the marriage; and, if he has forbidden the issue of the Marriage Registrar's certificate, such certificate shall be issued and the like proceedings may be had under this Part in relation to the marriage as if the issue of such certificate had not been forbidden.

According to section 45, if the person whose consent is required is of unsound mind or if he (other than the father) without just cause withholds the consent, the parties to marriage may petition to the court and if the court declares that the marriage is proper, the Marriage Registrar shall issue the certificate as if it was not forbidden.

Petition When Marriage Registrar Refuses Certificate-

Section 46: Whenever a Marriage Registrar refuses to issue a certificate under this Part, either of the parties intending marriage may apply by petition, where the district of such Registrar is within any of the towns of Calcutta, Madras and Bombay, to a Judge of the High Court, or if such district is not within any of the said towns, then to the District Judge.

Procedure on petition- The said Judge of the High Court, or District Judge, as the case may be, may examine the allegations of the petition in a summary way, and shall decide thereon.

The decision of such Judge of the High Court or District Judge, as the case may be, shall be final, and the Marriage Registrar to whom the application for the issue of a certificate was originally made shall proceed in accordance therewith.

According to section 46, when a Marriage Registrar refuses to issue the certificate, either party to marriage may petition to the court and the court may examine the allegations of the petition in a summary way and shall decide thereon and the Marriage Registrar shall proceed in accordance therewith.

Petition When Registrar Doubts Authority Of Person For Bidding-

Section 48: Whenever a Marriage Registrar, acting under the provisions of section 44, is not satisfied that the person for bidding the issue of the certificate is authorized by law so to do, the said Marriage Registrar shall apply by petition, where his district is within any of the towns of Calcutta, Madras and Bombay, to a Judge of the High Court, or if such district be not within any of the said towns, then to the District Judge.

Procedure on petition-The said petition shall state all the circumstances of the case, and pray for the order and direction of the Court concerning the same, and the said Judge of the High Court or District Judge, as the case may be, shall examine into the allegations of the petition and the circumstances of the case,  and if, upon such examination, it appears, that the person forbidding the issue of such certificate is not authorized by law so to do, such Judge of the High Court or District Judge, as the case may be, shall declare that the person forbidding the issue of such certificate is not authorized as aforesaid, and thereupon such certificate shall be issued, and the like proceedings may be had in relation to such marriage as if the issue had not been forbidden.

According to section 48, if the Marriage Registrar is not satisfied that the person forbidding the certificate is authorized to do so, the Marriage Registrar shall petition to the court and if the court declares that the person forbidding the certificate is not authorized to do so, the Marriage Registrar shall issue the certificate.


Liability For Frivolous Protest Against Issue Of Certificate-

Section 49: Every person entering a protest with the Marriage Registrar, under this Part, against the issue of any certificate, on grounds which such Marriage Registrar, under section 44, or a Judge of the High Court or the District Judge, under section 45 or 46, declares to be frivolous and such as ought not to obstruct the issue of the certificate, shall be liable for the costs of all proceedings in relation thereto and for damages, to be recovered by suit by the person against whose marriage such protest was entered.

According to section 49, the person protesting against the issue of the certificate on the ground which the Marriage Registrar under s. 44 or the court under ss. 45 and 46 declare to be frivolous and such as ought not to obstruct the issue of the certificate shall be liable for the costs of the proceedings and for damages.

Form Of Certificate-

Section 50: The certificate to be issued by the Marriage Registrar under the provisions of section 41 shall be in the form contained in the Second Schedule to this Act annexed or to the like effect, and the State Government shall furnish to every Marriage Registrar a sufficient number of forms of certificate.

Solemnization Of Marriage After Issue Of Certificate-

Section 51: After the issue of the certificate of the Marriage Registrar, or, where notice is required to be given under this Act to the Marriage Registrars for different districts, after the issue of the certificates of the Marriage Registrars for such districts, marriage may, if there be no lawful impediment to the marriage of the parties described in such certificate or certificates, be solemnized between them, according to such form and ceremony as they think fit to adopt.
But every such marriage shall be solemnized in the presence of some Marriage Registrar (to whom shall be delivered such certificate or certificates as aforesaid), and of two or more credible witnesses besides the Marriage Registrar.

And in some part of the ceremony each of the parties shall declare as follows, or to the like effect :-

"I do solemnly declare that I know not of any lawful impediment why I, A. B., may not be joined in matrimony to C. D."

And each of the parties shall say to the other as follows or to the like effect:-

"I call upon these persons here present to witness that I, A. B., do take thee, C. D., to be my lawful wedded wife [or husband]."

According to section 51, after the issue of the certificate by the Marriage Registrar within whose jurisdiction the parties to marriage reside or after the issue of the certificates of the Marriage registrars within whose jurisdictions the parties reside, marriage may be solemnized by a Marriage Registrar to whom such certificate or certificates are issued, according to the form and ceremony as he thinks fit to adopt. [11]

When Marriage Not Had Within Two Months After Notice, New Notice Notice Required-

Section 52: Whenever a marriage is not solemnized within two months after the copy of the notice has been entered by the Marriage Registrar, as required by section 40, the notice and the certificate, if any, issued thereupon, and all other proceedings thereupon, shall be void; and no person shall proceed to solemnize the marriage, nor shall any Marriage Registrar enter the same, until new notice has been given, and entry made, and certificate thereof given, at the time and in the manner aforesaid.

According to section 52, if marriage is not solemnized within two months after the notice was entered in the Marriage Notice Book, the notice and the Certificate, if issued, and all proceedings thereupon shall be void and the marriage shall not be solemnized until new notice is given and the certificate issued as aforesaid.

Marriage Registrar May Ask For Particulars To Be Registered-

Section 53: A Marriage Registrar before whom any marriage is solemnized under this Part may ask of the persons to be married the several particulars required to be registered touching such marriage.

Registration Of Marriages Solemnized Under Part V-

Section 54: After the solemnization of any marriage under this Part, the Marriage Registrar present at such solemnization shall forthwith register the marriage in duplicate; that is to say, in a marriage-register-book, according to the form of the Fourth Schedule hereto annexed, and also in a certificate attached to the marriage-register-book as a counterfoil.

The entry of such marriage in both the certificate and the marriage-register-book shall be signed by the person by or before whom the marriage has been solemnized, if there be any such person, and by the Marriage Registrar present at such marriage, whether or not it is solemnized by him, and also by the parties married, and attested by two credible witnesses other than the Marriage Registrar and person solemnizing the marriage.

Every such entry shall be made in order from the beginning to the end of the book, and the number of the certificate shall correspond with that of the entry in the marriage-register-book.

According to Section 54, after the solemnization of the marriage, the Marriage Registrar shall register the marriage in the form specified in the Fourth Schedule, that is to say, in the Marriage Register Book and in its duplicate called the Certificate of Marriage.

Certificates To Be Sent Monthly To Registrar General-

Section 55: The Marriage Registrar shall forthwith separate the certificate from the marriage-register-book and send it, at the end of every month, to the Registrar General of Births, Deaths and Marriages.

Custody of register-book-The Marriage Registrar shall keep safely the said register-book until it is filled, and shall then send it to the Registrar General of Births, Deaths and Marriages, to be kept by him with the records of his office.

According to section 55, the Marriage Registrar shall separate the certificate of Marriage from the Marriage Register Book and send it, at the end of the month, to the Registrar General of Births, Deaths and Marriages and also send the Marriage Register Book, when it is filled, to the Registrar General of Births, Deaths and Marriages.

Registrars To Ascertain That Notice And Certificate Are Understood By Indian Christians-

Section 57: When any Indian Christian about to be married gives a notice of marriage, or applies for a certificate from a Marriage Registrar, such Marriage Registrar shall ascertain whether the said Indian Christian understands the English language, and, if he does not, the Marriage Registrar shall translate, or cause to be translated, such notice or certificate, or both of them, as the case may be, to such Indian Christian into a language which he understands; or the Marriage Registrar shall otherwise ascertain whether the Indian Christian is cognizant of the purport and effect of the said notice and certificate.

Indian Christians To Be Made To Understand Declarations-
Section 58: When any Indian Christian is married under the provisions of this Part, the person solemnizing the marriage shall ascertain whether such Indian Christian understands the English language, and, if he does not, the person solemnizing the marriage shall, at the time of the solemnization, translate, or cause to be translated, to such Indian Christian, into a language which he understands, the declarations made at such marriage in accordance with the provisions of this Act.

Registration Of Marriages Between Indian Christians-

Section 59: The registration of marriages between Indian Christians under this Part shall be made in conformity with the rules laid down in section 37 (so far as they are applicable), and not otherwise.


Part VI (Sections 60-65), Part VII (Sections 66-76) and Part VIII of the Act deals with marriages of Indian Christians, penalties for false declarations or signing a false notice or certificate, miscellaneous matters concerning marriages under this Act respectively…

CONCLUSION:

It can be concluded that the Indian Christian Marriage Act is comprehensive enough to deal with matters regarding solemnization of marriages among Christians in India when both the parties to the marriage are Christians. But where one of the parties to a marriage in India is a Christian and the other party is a non-Christian the best course to adopt is to solemnize the marriage under the Special Marriage Act, 1954. Or in the alternative, if a marriage has been solemnized between a Christian and a non-Christian under the provisions of the Indian Christian Marriage Act, it can be registered again under the provisions of Section 15 of the Special Marriage Act of 1954 by way of caution. It may also be pointed out that while some other personal laws have been amended, the Christian Law has remained impervious to change despite demands and recommendations for reforms.


REFERENCE:

BOOKS REFERED:

1. Family Law, 2003,

Allahabad Law Agency

- PARAS DIWAN



2. Law relating to women and children, 2nd ed.

Eastern Book Company,

- MAMTA RAO



3. Family law in India, 9th ed.

S.Gogia & Co.,

- PROF.G.C.V. SUBBA RAO.



4. Family law lectures, 2nd ed.,

Lexis Nexis Butterworths

- POONAM PRADHAN SAXENA



STATUTES REFERED:

1. The Indian Christian Marriage Act, 1872

2. The Special Marriage Act, 1954



NET SOURCES:

1. www.indiankanoon.org

2. www.indianchristians.in

3. www.en.wikipedia.org






[1] Srikar V. Mathu Kuruvilla, 11 TLR 33


[2] Eapen Punnan V. Koruthu Maria, 10 TLR 95 (1892)


[3] Chriya Varkey V. Ouseph Threise, AIR 1955 Travencore-Cochin 255


[4] K.J.B. David V. Nilamoni Devi, AIR 1953 Ori. 10


[5] (1964) 2 Andh WR 136.


[6] AIR 1960 Ori 164.


[7] (1993) MLJ 31.


[8] (1995) MLJ 492.


[9] Lakshmi Sanyal V. Sachit Kumar Dhar, AIR 1972 SC 2667


[10] Lala Gokuldas V. John Kantaraj, (1937) 2 MLJ 590


[11] Mrs. Chandramani Dubey V. Rama Shankar Dubey, AIR 1951 All 529