Overview: Procedure to get the marriage with a foreigner registered in India

In India, the legal age of marriage is 18 years for girls and 21 years for boys, this same rule extends to marriage with a foreigner, even if there own domestic law may prescribe a higher or lower age for marriage.

In India, marriage between an Indian citizen and a foreigner is governed by the provisions of the Special Marriage Act, 1954. This act does not only deals with people with different caste and religions but also from different nations. For an Indian citizen that is going to marry a foreigner, the provisions of the Foreign Marriage Act, 1969, will apply and not his/ personal law.

Conditions relating to solemnization of foreign marriages[1]

The Foreign Marriage Act, 1969 imposes some conditions on the individuals who are as follows:

(i) Neither party should have a spouse living (i.e., the individuals should either be unmarried, divorced, or widowed), and either of them doing so will be guilty of the offence of bigamy under The Indian Penal Code, 1860.[2]

(ii) Neither party should be an idiot or a lunatic,[3]

(iii) The bridegroom should have completed the age of twenty-one years and the bride eighteen years at the time of the marriage[4], and

(iv) The parties should not be within the degrees of prohibited relationship ( such as mothers, stepmothers, grandmothers, and step grandmothers, etc.)[5]

As mentioned above, the Foreign Marriage Act, 1969, applies to those who are citizens of India but do not reside within the boundaries of the same. The act also mentions that if the personal law or a custom governing at least one of the members of the parties permits the marriage between them, only then such marriage may be solemnised.

Procedure for the marriage

• When a marriage is intended to be solemnised, the parties to the marriage need to give notice in writing to the marriage officer of the district in which at least one of the parties to the marriage has resided for a period of 30 days, preceding the date on which such notice is given (the notice shall state the same)[6]
• The marriage officer keeps all such notices in a marriage notice book. He/she then publish such notices:

a) in his own office, by affixing a copy thereof to a conspicuous place, and

b) in India and in any other coutry in which the parties ordinarily reside, in the prescribed manner. [7]

• If any person has any objections to the marriage, he/she is allowed to raise the objection before the exploration of 30 days from the date of publication of the notice[8]
• Before the marriage is solemnised, the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration that the parties are doing the marriage with their free consent.[9]
• The marriage will be solemnised at the official house of the Marriage Officer with open doors between the prescribed hours in the presence of at least 3 witnesses and only after each party declares to the other in the presence of the Marriage Officer and the three witnesses- "I (A) take the (B), to be my lawful wife (or husband)".[10]
• If the marriage is not solemnised within six months from the date on which notice thereof has been given to the Marriage Officer, the notice and all the other proceedings arising therefrom shall be deemed to have lapsed.
• When the marriage is solemnised, the Marriage Officer will enter a certificate in the Marriage certificate book. This certificate will act as conclusive evidence of the fact that the marriage has been solemnised and valid in India.[11]

Documents required

• Application form of notice of intended marriage duly signed by both the parties.[12]
• Documentary evidence of the date of birth of parties.
• Declaration by both the bridegroom and the bride.[13]
• Copy of Passport of both the parties with valid Visa.
• Residential Proof of both the parties.
• Documentary evidence regarding the stay at district in India of one of the parties for more than 30 days (Proof of stay or report from the concerned S.H.O.).
• N.O.C. (additional document required only from a foreigner) or a Marital status certificate from the concerned Embassy or Consulate in India by a foreigner partner.
• Death certificate or divorce decree whichever is applicable, in case one of the parties had any marriages in the past.
• Visa (additional document required only from a foreigner)
• Passport-sized photographs.

Registration of the marriage

At present, there is no uniform marriage law that exists in India. Some of the states in the Indian Union have enacted legislation to make marriage registration compulsory; those states are Andhra Pradesh, Delhi, Goa, Gujarat, Himachal Pradesh, Karnataka, Maharashtra. Other states such as Bihar, Chattisgarh, Haryana, Jharkhand, Madhya Pradesh, Orissa, Rajasthan, Uttar Pradesh, etc., are yet to follow the lead to make the necessary changes in their legislation to make the registration of marriages compulsory. However, in these States registration of marriages is optional.[14] In 2006, the Supreme Court in a case - Seema v. Ashwani Kumar[15], had observed that marriages of all persons who are citizens of India belonging to various religions should be registered compulsorily in their respective states, where the marriage is solemnised. The Special Marriage Act, 1954 provides for solemnisation of a marriage as well as registration by a Marriage Officer.

When the Marriage Officer is satisfied that a marriage has been duly solemnised in a foreign country[16] Under the law of that country between parties of whom one at least was a citizen of India and when a party to the marriage informs the Marriage Officer in writing their intentions of registering their marriage under the Foreign Marriage Act, 1969, the Marriage Officer may, upon the payment of the prescribed fee, register the marriage.[17]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

{Author: Abhyudey Kabra a second-year law student at Maharaja Agrasen Institute of Management Studies, I.P. University.}

REFERENCES

[1] Section 4, Foreign Marriage Act, 1969.

[2] Section 19(1), Foreign Marriage Act, 1969.

Section 494, Indian Penal Code, 1860 - "Marrying again during lifetime of husband and wife."

Section 495, Indian Penal Code, 1860 - “Same offence with concealment of former marriage from person with whom

the marriage is contracted”.

[3] Section 4(b), Foreign Marriage Act, 1969.

[4] Section 4(c), Foreign Marriage Act, 1969.

[5] Section 2(b), Special Marriage Act, 1954 :

"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.

[6]: section 5, Foreign Marriage Act, 1969.

[7] Section 7, Foreign Marriage Act, 1969.

[8]: section 8, Foreign Marriage Act, 1969.

[9] Section 12, Foreign Marriage Act, 1969.

[10] Section 13, Foreign Marriage Act, 1969.

[11] Section 14, Foreign Marriage Act, 1969.

[12] Available in the First Schedule, Foreign Marriage Act, 1969.

[13] Available in the Second Schedule, Foreign Marriage Act, 1969.

[14] Ministry of External Affairs, “Marriages to overseas Indians a guidance booklet ( April 2019).

[15] Smt. Seema v. Ashwani Kumar A.I.R. 2006 SC 1158.

[16] Jyotsna Gynanashekhar, “A Study Foreign Marriage Act, 1969”, Vol. 2, 1(2017).

[17] Section 17, Foreign Marriage Act, 1969.