Wisdom Crux

A Study Foreign Marriage Act, 1969

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[Volume 2, Issue 8] – August, 2017

Author – Jyotsna Jnanashekar, Symbiosis Law School, Hyderabad.

ABSTRACT

This paper focuses on Introduction to Foreign Marriage Act, Application of The Foreign Marriage Act, Procedure of Marriage under Foreign Marriage Act, 1969 which is otherwise known as solemnisation of marriage under the Act, the paper in brief brings out the similarities between The Hindu Marriage Act and Foreign Marriage Act and the paper also focuses on divorce under Foreign Marriage Act, supported by case laws.

HYPOTHESIS:

Marriage is considered as one of the most important milestone in an individual’s life. A marriage between the two parties is usually solemnised in the presence of the parties’ near and dear ones, according to the rules and regulations of the religion which is followed by the parties. In other words, marriage is usually a personal affair, which is celebrated amongst friends and family.

This act of marriage was initially solemnised to mainly fulfil two duties, one to perform religious duties and second, for procreation. Since marriage is considered as a holy and a personal affair, legal implications of marriage were never given importance. Presently, only The Hindu Marriage Act is codified in India. This paper attempts to give an understanding to the reader that legal implications of marriage are as important and necessary as religious importance of marriage.

RESEARCH METHODOLOGY:

This paper focuses on Foreign Marriage Act. The method which has been used for collecting the information is mainly secondary sources. The information has been gathered from various sources such as The Bare Act, legal sites which deal with case laws and also newspaper articles.

CHAPTERISATION

This paper has been divided into 4 chapters. The first chapter covers the Introduction to Foreign Marriage Act and Application of The Foreign Marriage Act. The second chapter of the paper covers, the solemnisation of marriage. Chapter three deals with comparison between The Hindu Marriage Act and The Foreign Marriage Act. The last chapter has within itself, the conclusion of the research project.

CHAPTER I 

INTRODUCTION:

Foreign Marriage Act was passed in the year 1969 and it provides provisions for marriages of Indian citizens who are outside the territories of India.

The Bill has features of English and Australian legislations it is also modelled upon the Special Marriage Act which was passed in 1954.

One of the prerequisites to solemnise a marriage under this Act, one of the parties must be a citizen of India. In Foreign countries, the marriage must be solemnised under a Marriage Officer.

Once a marriage is proposed to solemnise under this Act, The Marriage Officer needs to be given a notice. Another pre-requisite of solemnisation under this marriage is that one of the parties of the marriage has to reside in the particular district for at least one month before the date of solemnisation of marriage.

In an instance of objection of the same, it should be done within thirty days of the publication by the party objecting to the marriage, on the grounds that it contravenes with the Act.

It is very important that a marriage between the Indian Citizen and the other party does not violate the rules of either of the country. Three witnesses shall sign as a sign of acknowledgement during the solemnisation of the marriage.

APPLICATION OF FOREIGN MARRIAGE ACT:

As mentioned above, Foreign Marriage Act, 1969 applies to those who are citizens of India but do not reside within the boundaries of the same.

The Foreign Marriage Act, like Section 5 of Hindu Marriage Act recognises certain conditions for solemnisation of marriage under this Act. The conditions under section 5 of The Hindu Marriage Act and Foreign Marriage Act are the same, it states about Bigamy, mental incapacity, mental age and that the parties should not be within the degrees of prohibited relationship.

The definition of prohibited relationship is the same as the definition of prohibited relationship under The Special Marriage Act.

The marriage which is too be solemnized between the two parties, one of which is a citizen of India has to be solemnized in the presence of a Marriage Officer. The Marriage Officer may solemnize the wedding only if the above-mentioned conditions are fulfilled.

The next important question which arises is, who can be addressed as a Marriage Officer. A Marriage Officer is the one who is appointed by the Central Government, who thinks is fit to be a Marriage Officer in a foreign country. The Central Government is required to give a notification in the Official Gazette.

Section 2 of Foreign Marriage Act defines the following terms:

  • Degrees of Prohibited Relationship – the definition of prohibited relationship is the same as the definition of Prohibited Relationship in the Special Marriage Act. “degrees of prohibited relationship” – a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedules are within the degrees of prohibited relationship.Relationship includes,-
    a) relationship by half or uterine blood as well as by full blood:
    b) illegitimate blood relationship as well as legitimate;
    c) relationship by adoption as well as by blood;
    and all terms of relationship in this Act shall be construed accordingly.[ref] http://www.legalserviceindia.com/helpline/marriage.htm read on 24th August 2017 at 10:55 A.M [/ref]
  • District – This refers to the area within which a marriage officer discharges the duties of his office.
  • The third definition is Foreign Country, according to the Foreign Marriage Act, Foreign Country refers to a country or a place which is not within the territory boundaries of India and it also refers to a ship which is not in the territorial boundaries of the Indian Subcontinent.
  • The Foreign Marriage Act also defines an official house, this official house is defined in relation to the Marriage Officer and it can have three meanings, one it is the official residence of the Marriage Officer, second, it is the office in which the business of the Marriage Officer is transacted and third, it is a prescribed place.
  • This Section also defines Prescribed, prescribed in this context refers to rules made under this Act.
  • Apart from the above-mentioned definitions, this section also defines Marriage Officer, which is mentioned above. 

CHAPTER II

SOLEMNISATION OF MARRIAGE UNDER THE FOREIGN MARRIAGE ACT:

Once the conditions are satisfied (rules related to bigamy, mental incapacity, mental age, prohibited relationship), the marriage between the two parties can be solemnised.

NOTICE OF THE INTENDED MARRIAGE:

The Marriage Officer, shall receive a notice by both the parties, intending to enter into the wedlock. An important point to be noted here is that, either of the parties has to be resided in that particular district for a period not lesser than thirty days. The parties are expected to pay a nominal fee for the publication of such a notice. Notice will be published in the office of the Marriage Officer of the district within whose jurisdiction each of the parties to the marriage is permanently residing.[ref] http://www.advocatekhoj.com/blogs/index.php?bid=57052c3f7e80097f352835514&bcmd=VIEW read on 25th August, 2017 at 08:12 A.M [/ref]

It is the duty of the Marriage Officer to maintain a book of all the notices of the intended marriage and it is important to note that, if a situation arises where the Marriage Notice Book has to be inspected, the Marriage Officer shall open the same, not subjected to any fee.

SOLEMNISATION:

The notice of the intended marriage is valid for a period of three months. If any objections are filed, they must be cleared and the marriage can be solemnised on or before 30 days after clearing any objections raised. However, if the objections are not cleared the Marriage Officer is not allowed to solemnise the marriage. A marriage between the two parties can only be solemnised by the Marriage Officer only if the objections made are cleared.

Three witnesses must be present before the Marriage Officer and they are required to sign the declarations in the prescribed form before the solemnisation of the marriage.

If the parties entering into the wedlock have raised no objection, then the marriage shall be solemnised on the expiration of the Notice of an intended marriage.

The parties have the liberty to choose any form of marriage and the marriage may be solemnised in the method the parties agree to adopt.

It is also important to note that, marriage which is solemnised should not contravene with the local laws. There are three distinct instances which illustrate the same and are as follows,[ref] http://www.india-eu-migration.eu/media/legalmodule/Foreign%20Marriage%20Act%201969.pdf read on 25th August, 2017 at 9:04 A.M [/ref]

  1. The Marriage Officer, for reasons to be recorded in writing, refuse to solemnise a marriage under this Act, if the intended marriage is prohibited by any law in force in the Foreign Country where the marriage is supposed to be solemnised.
  2. The Marriage Officer, for reasons to be recorded in writing, refuses to solemnise a marriage under this Act, if the intended marriage on the ground that in his opinion, the solemnisation of marriage would be inconsistent with international law or the comity of nations.
  3. Where the Marriage Officer refuses to solemnise a marriage, under this section, any party to the intended marriage may appeal to the Central Government in the prescribed manner within a period of thirty days from the date of such a refusal; and the Marriage Officer shall act in conformity with the decision of the Central Government on such an appeal.

During the solemnisation of marriage, it is compulsory for the marriage to be solemnised at the official residence of the Marriage Officer and with windows open and it should be solemnised in the presence of the three witnesses. It is also important to note that the Marriage Officer must use language which can be understood by the witnesses.

CHAPTER III

 COMPARISON BETWEEN HINDU MARRIAGE ACT AND FOREIGN MARRIAGE ACT

As mentioned above, both the Acts, The Hindu Marriage Act and The Foreign Marriage Act state certain conditions before solemnisation of marriage. In the Hindu Marriage Act these conditions are given under Section 5 and in The Foreign Marriage Act it is given under Chapter II and Section 4 of the Act.

The Conditions which are mentioned under the Hindu Marriage Act are as follows, Bigamy which states that neither party has a living spouse at the time of marriage. If at all a party has a living spouse at the time of marriage, then, the marriage is void under section 11 of the Hindu Marriage Act and also such a party can be punished under Sections 494 and 495 of IPC.

The punishment for bigamy under The Foreign Marriage Act is that, if a marriage is commenced between the two parties and one of the parties has a living spouse at the time of marriage, then the marriage which is solemnised shall be considered void and such a party can be punished under Sections 494 and 495 of IPC. This penalty is stated under Chapter V and Section 19 of The Foreign Marriage Act. It is important to note that these rules apply to persons of Indian Origin who reside within the territory of India and outside the territory of India, but in the case of The Hindu Marriage Act, The Supreme Court has stated that Hindu Marriage Act would apply to Hindu couples only if they are domiciled in India. Domicile in India is a pre-requisite for the application of Hindu Marriage Act and solemnisation under Hindu Marriage Act.

Punishment for contravention of certain other conditions for marriage; Any citizen of India who procures a marriage of himself orherself to be solemnized under this Act in contravention of the conditionspecified in clause (c) or clause (d) of section 4 shall bepunishable[ref] http://www.india-eu-migration.eu/media/legalmodule/Foreign%20Marriage%20Act%201969.pdf read on 29th August, 2017 at 3:31 P.M [/ref]

(a) in the case of contravention of the condition specifiedin clause (c) of section 4, with simple imprisonment whichmay extend to fifteen days or with fine which may extend toone thousand rupees, or with both; and

(b) in the case of a contravention of the conditionspecified in clause (d) of section 4, with simpleimprisonment which may extend to one month, or with finewhich may extend to one thousand rupees, or with both.

On a personal opinion, I feel that Hindu Marriage Act, as the name suggests is more closely related to the religion of the individual. The foremost condition for a marriage to be solemnised under The Hindu Marriage Act is that both the parties must be Hindus. Hindus is inclusive of Jains, Buddhists and Sikhs. The aspect of religion as such is not mentioned in the Foreign Marriage Act. The Act only states that a marriage can be solemnised between two parties according to the Foreign Marriage Act if either of the two parties are of Indian Origin. In The Hindu Marriage Act, there is no need for the presence of a Marriage Officer, the solemnisation of the marriage is usually done by the priest who is presiding over the function, whereas the same is not the case with The Foreign Marriage Act. The marriage under The Foreign Marriage Act can be solemnised only under the presence of a Marriage Officer.

Punishment for child marriage is similar to punishment for child marriage under The Hindu Marriage Act, it is either a fine of a small amount or imprisonment for a fortnight or both.

The Foreign Marriage Act also punishes if any citizen of India has solemnised his or her marriage under The Foreign Act through false declaration by either imprisoning the individual for a period of three years or the party shall be made liable for a fine.

DIVORCE UNDER FOREIGN MARRIAGE ACT:

Divorce under Foreign Marriage Act is stated in Section 18 (1) and it is similar to Section 27 of Special Marriage Act, 1954.

It states certain grounds for divorce such as

  • Voluntary intercourse with a person other than his or her spouse after the solemnisation of marriage.
  • The petitioner has been deserted by the spouse for not less than two years and desertion refers to leaving without reasonable cause and against the wish or consent of the spouse that has been deserted.
  • Serving a sentence for a period of 7 years or more due to an offence which has been defined under the Indian Penal Code.
  • The one filing for the divorce (petitioner) has been subjected to cruelty at the hands of the respondent.
  • If suffering from unsoundness of mind of such a kind that it cannot be expected of the petitioner to live with the respondent.
  • The respondent has been suffering from a disease which is communicable.
  • Other grounds include, missing for a period of seven years or more, suffering from leprosy, no possibility of restitution of conjugal rights
  • A wife can also file for divorce under the ground that her husband is guilty for rape, sodomy or bestiality after solemnisation of marriage. [ref] http://lawbeed.blogspot.in/2013/04/divorce-under-foreign-marriage-act-1969.html read on 30th August, 2017 at 5:08 p.m [/ref]
  • If there was no cohabitation between the two parties for one year or upwards against the husband and awarding maintenance for wife under Section 18 of The Hindu Adoptions and Maintenance Act and Section 125 of The Code of Criminal Procedure.

It is important to note that, divorce of a marriage which has been solemnised under The Foreign Marriage Act can be dissolved in India, only if both the parties who entered into the marriage are domiciled in India.

A case, Vincent Joseph Konath and Etc. Vs. Jacintha Angela Vincent Konath and Etc[ref] AIR1994Bom120; 1994(1)MhLj477 [/ref] highlights this fact, wherein the main issue was, can a Christian marriage which was solemnised outside the territory of India be dissolved in India? The judges held that, the Section 2 of Indian Divorce Act must be interpreted in more depth and detail and it was held that since both the parties were domiciled in India, the High Court, even though its jurisdiction extends only within the boundaries of India, can dissolve the marriage.

In another case, Mrs. M. Vs. Mr. A[ref] I (1993) DMC 384 [/ref], jurisdiction was initially challenged by the Court as the Petitioner filed a case in India, whereas the marriage was solemnised in Houston, Texas. The petitioner stated that she was subjected to cruelty by her husband and thereby needed a divorce. Initially, the petition was filed under the Civil Court of Bombay and it was governed by The Special Marriage Act, and then the petition was filed under the provisions of The Foreign Marriage Act, under Section 18. Initially, as mentioned above, the petition was dismissed stating that, the court does not have jurisdiction to dissolve the marriage and as far as cruelty was concerned, the court held that, even though the petitioner has proved certain instances of cruelty, it is not grave enough for granting a divorce. However, when the matter was brought before a stronger bench, it was held that, since the petitioner was domiciled in India since her birth and has been the resident of the country since a long period, the court can grant her divorce. Due to the simple fact that she was away from the country for a short period of time, does not mean that she is not a citizen or a domicile of India anymore. Therefore, the appeal was allowed.

CHAPTER IV

CONCLUSION:

In a very interesting case, named P.M. NoorjahanGalbath Vs. Union of India (UOI) and anr,[ref] AIR1985Ker104 [/ref] the husband who was not a citizen of India was denied visa by the Government of India. This was challenged by the wife, as she could not stay in Dubai, where her husband, who was an Iranian citizen resided. A grant of permission to a foreign national to marry an Indian citizen does not impose a permanent duty on the Government to grant a visa to the foreign spouse.[ref] https://www.legalcrystal.com/case/717884/p-m-noorjahan-galbath-vs-union-india read on 4th September, 2017 at 7:37 p.m [/ref]

The Foreign Marriage Act covers within its ambit, a marriage between an Indian and a Foreign National. Unlike Hindu Marriage Act, The Foreign Marriage Act is not concerned about religion, it focuses on the legal aspects governing the institution of marriage. Its features are derived from, both, The Hindu Marriage Act and The Special Marriage Act.

A marriage, which is usually considered to be a family and a religious occasion has its own legal impacts, which is not given much importance. The Foreign Marriage Act however, highlights these legal implications of the institution of marriage.

REFERENCES:

BIBLIOGRAPHY:

The Foreign Marriage Act – Bare Act

http://lawyerslaw.org/the-foreign-marriage-act-1969/

http://www.legalserviceindia.com/helpline/marriage.htm

http://www.advocatekhoj.com/blogs/index.php?bid=57052c3f7e80097f352835514&bcmd=VIEW

http://ncw.nic.in/frmnriimpcaselaws.aspx

https://www.legalcrystal.com/case/367093/minoti-anand-subal-vs-subhash-anand

https://www.divorcelawyerindia.com/secular-marriage-laws-in-india-india-foreign-marriage-act-1969-part-iv/