Court Marriage Process : Know About Its Various Aspects
Court marriage and registration

Court Marriage Process : Know About Its Various Aspects

In India, Court Marriage is solemnized under the Special Marriage Act of 1954 in a Court before a marriage officer and in the presence of witnesses. In order to get a court marriage done, one can apply to the Marriage Registrar.

Court Marriage Age

According to, Section 4[1] of the Special Marriage Act, 1954- The court marriage age for a bridegroom is 21 years, and for a bride is 18 years.

Court Marriage Office

Section 12[2] of the Special Marriage Act, 1954 provides the place of marriage. Court marriages are typically performed at the Marriage Officer's office. The court marriage must occur at the office of a marriage officer or another proximate location in the vicinity of the Court.

Also read How Can A Woman Change Her Name In The Aadhar Card After Marriage?

Court Marriage Register

Section 18[3] of the Special Marriage Act states that “where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents.”         

Court Marriage Fees

Every state establishes its own rules and regulations and prescribes its own fee structure for the solemnization of Court Marriages; thus, it is always advisable to check the fees while filling out the online application for Court Marriage.

Court Marriage Documents List

  1. Application form signed by both the parties.
  2. Evidence of date of birth of parties.
  3. Evidence of each party's residence.
  4. Two passport size photographs of the bride and groom.
  5. Death certificate or divorce decree if the parties are previously married.
  6. The receipt of fees paid in relation to the District Court application form.
  7. The parties' declaration that they are not related to one another to the extent that is prohibited by the Special Marriage Act.

Also read: Know About Mutual Consent Divorce After Six Months Of Marriage 

The Procedure of Court Marriage in India

Step 1-Notice of marriage

The parties must first give notification to the district marriage officer. It requires that the parties to the marriage notify their intention to marry to the marriage officer in writing and in the manner specified in the second schedule of Act.


Step 2-Publication of the Notice

After publishing the notice, the marriage officer must post it to a prominent location within his office; there is a 30-day waiting period before lodging any type of objection. The marriage can be performed by the marriage official if there are no objections.

Also read Can Hindu Women Inherit Property From Their Parents? The SC Decision That Changed It All

Step 3- Objection to the Marriage

Anyone may object to a judicial marriage under Section 7[4]  of the act if they believe it would violate any of the conditions outlined in Section 4[5] of the act during the 30-day time frame. If an objection does not prevent the marriage from being solemnised, the Marriage Officer, as per Section 8[6], will investigate it within 30 days of receiving it.

Step 4- Declaration by the Parties and the Witnesses

In a court marriage, three witnesses are necessary before the marriage is solemnised. It is necessary for both parties and three witnesses to sign and certify in the form outlined in the Third Schedule in front of the marriage officer.

Step 5- Certificate of marriage

The marriage officer will issue the marriage certificate after completing all of these formalities. Such a document serves as conclusive proof of the court marriage.

How long does court marriage take in India?

Usually, it takes 30 to 60 days to complete the entire court marriage solemnization process. After the notice of intention is published, the Marriage Officer has 30 days to consider any objections to the marriage, if any, and if any objections are raised during that time, the Marriage Officer has 30 days to conduct an inquiry.

Also ReadHow Can You Marry Your Foreign Soul Mate In India, Legally?

Is notice to parents about court marriage sent?

The Delhi High Court decision in the case of Pranav Kumar Mishra and Anr. v. Govt of NCT of Delhi and Anr[7]. properly addressed the proposition of the Special Marriage Act, 1954 and the issue of the notice to the respective domicile. The following was the High Court's ruling:

“It becomes clear on a textual reading of the relevant provisions of the Act that no requirement of posting of the notice to applicants addresses or service through the SHO or visit by him is prescribed in the Act. Absent any legal compulsion – as is the position -for sending notices to residential addresses in case of solemnization of the marriage, in terms of Sections 4 and 5, their dispatch can well amount to the breach of the right to privacy, which every individual is entitled to.”

In light of the above judgment, it is not necessary to send notice of Court Marriage to the Parents.

Is it good to do court marriage?

Court Marriage is beneficial in a lot many ways. Such as:

1. It is a more cost-effective and simple process.

2. It avoids the significant costs associated with wedding ceremonies and rituals.

3. The ceremony for the marriage can be solemnised whichever way the parties like.

4. Because the parties to a marriage sign the marriage forms voluntarily, it ensures that both parties have given their approval.

 


[1] Section 4 of the Special Marriage Act, 1954.

[2] Section 12 of the Special Marriage Act, 1954.

[3] Section 18 of the Special Marriage Act, 1954.

[4] Section 7 of the Special Marriage Act, 1954.

[5] Section 4 of the Special Marriage Act, 1954.

[6] Section 8 of the Special Marriage Act, 1954

[7] Pranav Kumar Mishra and Anr. v. Govt of NCT of Delhi , 2009 SCC ONLINE DEL 725.

Legally, How Compatible Is The Marriage Between A Hindu & Non-Hindu?
Court marriage and registration

Legally, How Compatible Is The Marriage Between A Hindu & Non-Hindu?

Can A Hindu Marry Non-Hindu Under HMA?

Religion is a sensitive issue in India and at times inter-communal and inter-religion marriages become a touchy issue. Let us see how the Indian legal system establishes the marriage between a Hindu and Non-Hindu.

Well, it is stated that the marriage under Hindu Marriage Act can applied on when the marriage was performed only between two Hindus. Hindu Marriage Act (HMA) doesn’t cater to a marriage between a Hindu and Non-Hindu.

Also read Pro Bono Legal Service - Know About Free Legal Services

How Can This Issue Be Resolved?

Now, the question is what steps should be taken for performance of a marriage between two persons, when one of them is Hindu and the other is from another religion. Well such marriages fall under the category known as special marriage. Herein, we need to refer the provisions of Special Marriage Act (43 of 1954).

Well, the section 4 of Special Marriage Act gives us the conditions regarding the solemnization of special marriages. It states that, under this act, marriage between any two persons may be solemnized, if the following conditions are fulfilled, namely:-

The Conditions For Hindu Marrying A Non-Hindu

(a) Neither the man nor the woman who are going to tie the knot have their spouse (from earlier marriage) living without the earlier marriage having been set aside. In other words, if you are going to marry someone while your spouse from the earlier marriage is alive and your earlier marriage has not been set aside, in such a situation, your later marriage would not be valid in the eyes of law.

(b) both the parties -

(i) are capable of giving proper consent to it in the possibility of unsoundness of mind; or

(ii) though give a valid consent for such a capability, but either of them (or both) is suffering from mental illness of such a type and to an extent that he/she is unfit for marriage and giving birth to children & nurturing them; or

(iii) either of them have suffered from recurrent incidences of insanity;

(c) the male is at least twenty-one years in age and the female is at least 18 years; So, the bridegroom must have completed the age of 21 years at the time of marriage; while the bride must have completed the age of 18 years at the time of her marriage,.

(d) the two parties do not fall under the degrees of a prohibited relationship.

The Precedent Set Up By The Delhi Court In December 2010:  

The Ruling Of Delhi HC

The Delhi High Court had ruled that the marriage between a Hindu and a non-Hindu carried out as per the Hindu rituals & tradition is not valid. None of the parties can seek any benefits under the Hindu Marriage Act.

The High Court had also decreed that "just theoretical & principled allegiance" to Hinduism can not turn one a Hindu unless he or she has actually embraced the Hindu religion.

Conversion Warrants Documentary Evidence

Justice Kailash Gambhir had stated in the judgment "A mere happening that the two parties have carried out the marriage as per the Hindu rituals & tradition can not establish the valid application of the Hindu Marriage Act. This is so because as per the law’s mandate, for a marriage to be considered under the Hindu Marriage Act it should take place between two Hindus."

What All The Delhi HC Said?  

Dismissing a petition filed by a female, who wanted a divorce under the HMA, stating that she married a Christian at an Arya Samaj temple as per Hindu rites in the year 2007, the court said both parties should be Hindu at the time of marriage to claim the benefits of Hindu Marriage Act.

"It is mandatory to establish that both the parties are Hindus at the time when marriage takes place," the court had said.

The court dismissed the woman's statement that her husband had accepted Hinduism because she could not produce any evidence to validate her claim.

‘Conversion Is A Major Decision In The Individual’s Life’  

"..An allegiance just in principle to the Hindu religion by someone who is born in a different religion does not make him a Hindu. At the same time, a bare announcement that he is a Hindu does not suffice the claim of his conversion,” said the Delhi HC.                                                             

"Accepting a different religion is a very important decision in the life of an individual and in order to prove such conversion it is very necessary that the person should provide factual and documentary evidence which is concrete and convincing. In the absence of such evidence, the court won’t be able to consider such a conversion.

Delhi High Court gave this ruling on a petition signed by Sangeeta. She had defied the family court’s decision in March 2010, which had dismissed her divorce plea on the premise that her husband  Preston Gomes, a Christian by birth had converted to Hinduism.     

Also read, Can a child's DNA test be ordered In case of paternity dispute?
 

Who Gets the Child’s Custody? Child Custody Laws in India
Child Custody

Who Gets the Child’s Custody? Child Custody Laws in India

Even thinking about the torment that goes through a couple's heads as their marriage disintegrates is enough to give me the chills. However, the misery that their child goes through as a result of this process causes us an even greater amount of anguish. Yes, you did read that correctly; what we are referring to is the agonising process of seeking a divorce from your husband and the subsequent fight to gain custody of your child once the divorce has been finalised (ren). The entire process of divorce is unpleasant, but determining who will have custody of the children is much more unpleasant. In spite of the fact that an amicable conclusion is theoretically possible, it is extremely unlikely given that the relationship between the two adults has already been antagonistic as a result of intractable disagreements and, in some cases, inflated egos.

Also Read: Know About Mutual Consent Divorce After Six Months Of Marriage

This makes us think about the first thing divorced parents might wonder: who gets custody of the child after the parents split up? Each parent might want to get custody of the child for different reasons after a divorce. We could think of things like the division of parental property, financial support for the child's education, good upbringing, safety and maintenance, visitation rights, alimony, the child's comfort, the right to make decisions about the child's life, etc. They would hire the best child custody attorney to win custody and keep the other parent from getting it. But according to Indian child custody law, even after a divorce, both parents have equal rights over the child. When a child is younger than 18, "custody" just means with which parent the child will physically live. Even if one parent gets custody, that doesn't mean the other parent stops being the child's parent and loses all rights over the child. The law about child custody makes it clear that even though their marriage was cancelled, they are still the natural guardians of the child. In other words, the parent with custody takes care of the child most of the time, while the parent without custody still has the right to see the child. 

People Also Read This: Child’s wish & will is important in a Child Custody matter: Hon’ble Supreme Court

In most cases in India, the family court gives custody of the child to one parent and gives both parents access to the child. Learn how to win child custody for mothers in India. Data shows that only two fathers have been given custody of their children out of about 90 cases in a given year. So, what does this mean? Do mothers have more power in India when it comes to deciding who gets to keep a child? Even though the data show that mothers are better, this is not the case. Fathers often think that they can get custody of their children once they reach a certain age. But this is just a myth, something that many people continue to believe.

In a number of important decisions, the courts have shown that they care more about the best interests of the child and the "right of the child" than the "right of the parent" when deciding which parent gets custody after a divorce. There may be exceptions or special situations, though, that courts look at on a case-by-case basis. For example, a) if a child is younger than 5 years old, custody is usually given to the mother, b) older boys are usually given to the father and older girls are usually given to the mother, and c) courts also look at what the child who is older than 9 years old wants.

Types of Child Custody

It brings us to a point where it becomes imperative to throw light on the types of child custody in divorce. It can be one of the following kinds:

  • Physical Custody – where the child is handed over to the custodial parent for living and the other parent is allowed to visit, meet and interact with the child at regular intervals.
  • Joint Custody – where child lives with both parents on rotational basis and duration of child’s stay may vary from several days to weeks to months based on mutual agreement between the separated parents.
  • Sole Custody – where the child is handed over entirely to one parent in case the court finds the other parent to be abusive, unstable, offensive or incapable of upbringing the child.
  • Third Party Custody – where a guardian or third person gets the custody of the child from court instead of the biological parents. This is also often termed as non-parental custody.

Those who read this Article also Consulted a Lawyer about Child Custody process in India.  

Child Custody Laws In India

We must also know a little bit about the laws that apply. In India, the Guardian and Wards Act 1890 has provisions related to child custody after divorce. At the same time, India is a big country with many different religions, and there are laws to deal with divorce and who gets to keep the kids. The Indian Constitution has laws that depend on what religion we belong to. These laws are:

  • Custody under Hindu Law – which has provisions under the Hindu Marriage Act 1955 (section 26), the Special Marriage Act 1954 (section 38) and the Hindu Minority and Guardianship Act 1956.
  • Custody under Muslim Law – which allows only the mother to seek custody of her child(ren) under the Right of Hizanat.
  • Custody under Christian Law – which allows for child custody under the Divorce Act 1869 (section 41) only after separation decree is granted.
  • Custody under Parsi Law – which allows for child custody under the Guardian and Wards Act 1890 and gives high importance to welfare of the child.

People Also Read This: Inheritance Rights of Grandchildren in India

Already, it's a nightmare for parents who have to go through a separation. Problems are made worse by the fact that it is hard for them to get custody of child (ren). No one would want to lose this battle. Imagine that you are looking for information about how decisions are made and orders are made when it comes to child custody after a divorce. The best way is to contact a child custody lawyer who not only can guide you in the process but sail you through with bare minimum stress. 

Now  spouse (husband or wife) can claim maintenance from the date on which the application for maintenance was filed: Supreme Court
Family Dispute

Now spouse (husband or wife) can claim maintenance from the date on which the application for maintenance was filed: Supreme Court

Case No: CRIMINAL APPEAL NO. 730 of 2020 (arising out of SLP (Crl.) No.9503/2018)

Referred Acts in the Judgement:

  • The Code of Criminal Procedure (CrPC), 1973
  • The Protection of Women from Domestic Violence Act (DVA), 2005
  • Hindu Marriage Act (HMA), 1955
  • Special Marriage Act (SMA), 1954
  • Hindu Adoption and Maintenance Act (HAMA), 1956

 

Summary of the Case:

The Wife (Neha) filed an interim application u/s 125 CrPC claiming maintenance for herself and their son by her husband (Rajnesh). Family Court granted her a favourable Order of Rs.15,0000/- p.m. and Rs.5,000/-p.m. to their child to be paid by the Husband (Rajnesh). This Order was challenged by the Husband by way of a Criminal Writ Petition in Bombay High Court (Nagpur Bench) wherein the Court affirmed the Order of the Family Court and dismissed the Criminal Writ Petition. Husband lastly appealed to the Supreme Court. The Hon’ble Court awarded additional costs and relevant Order in maintenance of the Wife and their son by the Husband and also provided detailed guidelines on the fourth issue amongst the five (5) problems mentioned in the judgment that is issue of date from which maintenance to be awarded. 

In this Judgement Hon’ble Supreme Court observed and analysed all the precedents and regulatory frameworks used to decide a date from which maintenance can be awarded.

 

What should be the date from which Maintenance to be Awarded?

Hon’ble court observed that since there is no uniform regime and there are multiple practices adopted by the family courts across the country to decide the date from which the maintenance can be awarded. Hon’ble court also observed that there are three possibilities mostly adopted as the maintenance date:

a) Date on which the application for maintenance was filed;

b) Date of the order granting maintenance;

c) Date on which the summons was served upon the respondent.

 

Hon’ble court observed various precedent & judgements from different family courts and reached to the conclusion that family matters take a lot of time for their disposal and this delay is not in favour of justice and against the human rights & basic dignity of the individual.

Hon’ble court also provided the rationale for the above direction that it will enable the wife to survive  the financial tough time because if a dependent spouse loses its financial strength then it became very challenging to represent themselves before the court.  

The Honorable Supreme Court has provided clear guidance to ensure uniformity and consistency in the rulings of all courts, stating that the date on which a maintenance application is filed shall be regarded as the date from which maintenance can be granted. The Court further noted that the right to claim maintenance should be retroactive to the date of the application's submission, as the duration of the maintenance proceedings, while pending, is beyond the control of the applicant. 

 

Read the judgement here:                   https://main.sci.gov.in/supremecourt/2018/37875/37875_2018_39_1501_24602_Judgement_04-Nov-2020.pdf