Do marriages need to be registered? What happens if they are not?

Subject: Polity

Sec: Legislation in news

Tag: Special Marriage Act, 1954 (SMA).

Context:

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.

More on news:

Marriage is registered under the Hindu Marriage Act, 1955 (HMA) even before they perform 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.
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.

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.
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.

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.
There is a central legislation on the subject — the Births, Deaths and Marriages Registration Act, 1886 — that 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.

Validity of Marriage:

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.
A ‘valid’ marriage as per rituals might be key in determining who is a rightful spouse when there are claims by multiple cohabiting partners.
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.

About Hindu Marriage Act:

The Hindu Marriage Act (HMA) is an Act of the Parliament of India enacted in 1955 which was passed on 18 May.
Three other important acts were also enacted as part of the Hindu Code Bills during this time: the Hindu Succession Act (1956), the Hindu Minority and Guardianship Act (1956), the Hindu Adoptions and Maintenance Act (1956).
The main purpose of the act was to amend and codify the law relating to marriage among Hindus and others.
This Act applies to:
- to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
- to any person who is a Buddhist, Jain or Sikh by religion; and
- to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.