Hindu can marry a non-Hindu
A person belonging to Hindu religion can marry a person belonging to the Hindu religion only under the Hindu marriage Act, 1955 (HMA). The HMA is applicable to persons belonging to the Hindu, Budhist, Jaina, or Sikh religion but not applicable to a Christian or Muslim. Therefore, one of the parties under a Hindu marriage cannot be a Christian or Muslim.
But for a Hindu to marry a non-Hindu such as a Christian or a Muslim he/she can invoke the provisions of Special Marriage Act, 1954 (SMA) which allows such a kind of marriage. It is known as Special Marriage.
Foreigners even can marry under SMA
Even foreign citizens also can marry under SMA. The act does not prescribe that the parties need to be Indian citizens. But one of the parties should stay here in India for not less than 30 days to give notice to the Marriage Officer for an intended marriage.
A marriage under SMA may be solemnised between two citizens of India, two foreigners or between an Indian citizen and a foreigner (See Marian Eva And Anr. v State Of Himachal Pradesh).
Qualification of parties
At the time of the marriage the following conditions are to be fulfilled:
- Neither party has a spouse living.
- Neither party is incapable of giving valid consent to marriage due to unsoundness of mind
- No party shall be suffering from any metal disorder of suchkind which makes the person unfit for marriage and procreation of children
- The male should have complete 21 years of age and the female 18 years at the time of the marriage
- The parties are not within the degree of prohibited marriage, as provided in Schedule I or II as applicable.
Procedure to be followed
The parties intending to marry under the Special Marriage Act should give notice in writing in the form specified in the Second Schedule of the SMA 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, preceding the date on which the notice is given. Both parties should give notice.
The state government by notification in the state gazette appoints Marriage Officers. The District Registrar is the Marriage Officer of the district in Kerala and in some other states.
The Marriage Officer should get the notice published as per law, by affixing a copy on some conspicuous place in his office.
The purpose of the notice is to invite objections, if any, to the marriage. If no objection is received by the officer the parties may solemnise the marriage on the expiry of 30 days period from the date of publication of notice.
In case objection is received the officer should dispose of the objections as per law before marriage is solemnised. The Officer can conduct inquiry before disposing of the objection. The objection is unreasonable the Officer can impose a cost of one thousand rupees.
A declaration to be signed
Before solemnising the marriage, the parties and three witnesses have to sign a declaration in a form specified in Schedule III of the SMA, in the presence of the Marriage Officer.
Solemnisation of marriage
The solemnisation of marriage takes place at the office of the Marriage Officer or such other place within a reasonable distance, as the parties may desire on payment of prescribed additional fee.
The solemnisation of the marriage may be performed in any form which the parties may prefer. After the solemnisation each party should state to the other party: “I (name) take thee (name) to be my lawful wife / husband”.
Certificate of Marriage
On completion of solemnisation of marriage, the Marriage Officer will enter a Certificate in a form specified as Schedule IV in SMA in a book called Marriage Certificate Book, in which the parties and the three witnesses have to sign. The Certificate shall be conclusive evidence of the solemnisation of marriage.
Effect of a marriage under SMA
In general, the succession to property of parties marries under this act in general shall be governed by Indian Succession Act, 1925.
If a member of a Hindu undivided family marries under SMA he would deem to be severed from the family.
A person, whom the Caste Disabilities Removal Act, 1858 applies to, marries under this act he/she shall not be deprived of any rights or disabilities in regard to succession to any property.
In case a person belonging to a Hindu, Buddhist, Sikh or Jaina marries a Hindu, Buddhist, Sikh or Jaina person, they will be governed by their own succession laws.
When marriage occurs in a foreign country
The Foreign Marriage Act, 1969 , which looks like SMA with almost equivalent provisions, provides for solemnisation of marriage of Indian citizens when they are outside the country.
The act allows marriage between two Indian citizens and an Indian citizen with a foreigner to be solemnised outside the country. One of the parties to the marriage should reside in the foreign country for at least not less than thirty days to seek solemnisation under this act.
Diplomatic or Consular Officers are appointed as Marriage Offices under the Act. It provides that the matrimonial reliefs applicable to SMA are available for the parties under this marriage as well.
Almost every provision of this act is modelled in the same lines of Special Marriage Act.
