Christian Law of Marriage in India
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The Christian Law of Marriage in India is governed by the Indian Christian Marriage Act of 1872.
Marriage, as is generally understood and accepted, is not merely a civil contract nor is it purely a religious contract. It is a contract according to the law of nature, antecedent to civil institutions and it by itself has emerged as an institution. The essentials of marriage among Christians is substantially the same every where and India is no exception. A marriage among Christians must be understood as the voluntary union for life of one man and one woman to the exclusion of all others.
An authoritative exposition and critical analysis of Christian law of marriage in India is given in the book Christian Law on Marriage, Adoption & Guardianship and Canon Law on Marriage by Advocate Dr. Sebastian Champappilly and published by Southern Law Publishers, Cochin-22, Kerala, India.
[edit] Indian Christian Marriage Act
The law regulating solemnisation of marriages among Indian Christians is laid down in the Indian Christian Marriage Act of 1872. It was the British-Indian administration that enacted the law.
[edit] Extent of the Act
The Indian Christian Marriage Act of 1872 extends to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in the State of Travancore-Cochin, Manipur and Jammu and Kashmir. Therefore this Act does not apply to marriages of Christians solemnised in the territories of the former States of Travancore and Cochin which now form part of Kerala and Tamil Nadu. However, civil marriages among Christians in the former State of Cochin are governed by the provisions of the Cochin Christian Civil Marriage Act (Act V of 1095 M.E = 1920 A.D). There is no statute regulating solemnisation of marriages among Christians in Jammu and Kashmir and Manipur. It is the customary law or personal law that prevails there.
[edit] Applicabilty of the Act
It is specifically provided under section 4 of the Act that every marriage in India between persons, one or both of whom is or are a Christian or Christians, shall be solemnised in accordance with the provisions of the Indian Christian Marriage Act and any such marriage solemnised otherwise than in accordance with such provisions shall be void.
[edit] Persons by whom marriages may be solemnised
Marriages under the Act may be solemnised in India by any person who has received episcopal ordination, provided that the marriage be solemnised according to the rules, rites, ceremonies and customs of the Church of which he is a Minister; or by any Clergyman of the Church of Scotland, provided that such marriage be solemnised according to the rules, rites, ceremonies and customs of the Church of Scotland or by any Minister of Religion licensed under the Act to solemnise marriage or by, or in the presence of a Marriage Registrar appointed under the Act or by any person licensed under the Act to grant certificates of marriage between Indian Christians.
[edit] Grant and revocation of licences to solemnise marriage
The State Government, may, by notification in the official Gazette, grant licences to Ministers of Religion to solemnise marriages within such territories, and may, by a like notification, revoke such licences.
[edit] Marriage Registrars
The State Government may appoint one or more Christians, either by name or as holding any office for the time being to be the Marriage Registrar or Marriage Registrars for any district subject to its administration. Where there are more Marriage Registrars than one in any district, the State Government shall appoint one of them to be the Senior Marriage Registrar. When there is only one Marriage Registrar in a district, and such Registrar is absent from such district, or ill, or when his office is temporarily vacant, the Magistrate of the district shall act as, and be, Marriage Registrar thereof during such absence, illness, or temporary vacancy.
[edit] Licensing of persons to grant certificates of marriage
The State Government may grant a license to any Christian either by name or as holding any office for the time being, authorising him to grant certificates of marriages between Indian Christians. Any such licence may be revoked by the authority by which it was granted, and every such grant or revocation will be notified in the Official Gazette.
[edit] Time for solemnising marriage
Every marriage under the Act shall be solemnised between the hours of six in the morning and seven in the evening. However, this restriction will not apply to a Clergyman of the Church of England in India from solemnising a marriage under a special licence permitting him to do so at any hour other than between six in the morning and seven in the evening, under the hand and seal of the Anglican Bishop of the Diocese or his Commissary, or a Clergyman of the Church of Rome in India from solemnising a marriage between the hours of seven in the evening and six in the morning, when he has received a general or special licence in that behalf from the Roman Catholic Bishop of the Diocese or Vicariate in which such marriage is so solemnised, or from such person as the same Bishop has authorised to grant such licence, or a Clergyman of the Church of Scotland solemnising a marriage according to the rules, rites, ceremonies and customs of the Church of Scotland.
[edit] Notice of intended marriage before a Minister of Religion
Whenever a marriage is intended to be solemnised by a Minister of Religion licensed to solemnise marriages under this Act, one of the persons intending marriage shall give notice in writing, according to the form contained in the First Schedule in the Act or to the like effect, to the Minister of Religion whom he or she desires to solemnise the marriage, and shall state therein the name and surname, and the profession or condition, of each of the persons intending marriage, the dwelling-place of each of them, the time during which each has dwelt there and the Church or private dwelling in which the marriage is to be solemnised provided that, if either of such persons has dwelt in the place mentioned in the notice during more than one month, it may be stated therein that he or she has dwelt there one month and upwards.
[edit] Publication of such notice
If the persons intending marriage under this Act desire it to be solemnised in a particular Church, and if the Minister of Religion to whom such notice has been delivered be entitled to officiate therein, he shall cause the notice to be affixed in some conspicuous part of such Church. But if he is not entitled to officiate as a Minister, in such Church, he shall, at his option, either return the notice to the person who delivered it to him, or deliver it to some other Minister entitled to officiate therein, who shall thereupon cause the notice to be affixed as aforesaid. If it be intended that the marriage shall be solemnised in a private dwelling, the Minister of Religion, on receiving the notice prescribed in section 12, shall forward it to the Marriage Registrar of the district, who shall affix the same to some conspicuous place in his own office.
[edit] Procedure on receipt of notice
The Marriage Registrar or Senior Marriage Registrar, as the case may be, on receiving any such notice, shall affix it to some conspicuous place in his own office, and the latter shall further cause a copy of the said notice to be sent to each of the other Marriage Registrars in the same district who shall likewise publish the same in the manner above directed.
[edit] Solemnisation of marriage
After the issue of the certificate by the Minister, marriage may be solemnised between person therein described according to such form of ceremony as the Minister thinks fit to adopt provided that the marriage be solemnised in the presence of at least two witnesses besides the Minister. Whenever a marriage is not solemnised within two months after the date of the certificate issued by such Minister as aforesaid, such certificate and all proceedings (if any), thereon shall be void, and no person shall proceed to solemnise the said marriage until new notice has been given and a certificate thereof issued in manner aforesaid.
[edit] Marriages to be registered
All marriages solemnised in India between persons one or both of whom professes or profess the Christian religion, except marriages solemnised by the Marriage Registrar or persons licensed under the Act, shall be registered in the manner prescribed under Part IV of the Act.
When any marriage between Indian Christians is solemnised by any Clergyman or Minister of Religion, the person solemnising the same shall, register the marriage in a separate Register-book, and shall keep it safely until it is filled, or if he leaves the district in which he solemnised the marriage before the said book is filled, shall make over the same to the person succeeding to his duties in the said district. Whoever has the control of the Book at the time when it is filled, shall send it to the Marriage Registrar of the district, or, if there be more marriage Registrars than one, to the Senior Marriage Registrar, who shall send it to the Registrar-General of Births, Deaths and Marriages, to be kept by him with records of his office.
[edit] Notice of intended marriage before Marriage Registrar
When a marriage is intended to be solemnised by, or in the presence of, a Marriage Registrar, one of the parties to such marriage shall give notice in writing in the form contained in the First Schedule hereto annexed, or to the like effect, to any Marriage Registrar of the District within which the parties have dwelt, or, if the parties dwell in different district, shall give the like notice to a Marriage Registrar of each district, and shall state therein the name and surname, and the profession or conditions, of each of the parties intending marriage, the dwelling-place of each of them, the time during which each has dwelt therein, and the place at which marriage is to be solemnised provided that if either party has dwelt in the place stated in the notice for more than one month, it may be stated therein that he or she has dwelt there one month and upwards.
[edit] Procedure by Marriage Registrar
Every Marriage Registrar, shall, on receiving any such notice, cause a copy there of to be affixed in some conspicuous place in his office. The Marriage Registrar shall file all such notices and keep them with the records of his office, and shall also forthwith enter a true copy of all such notices in a book to be furnished to him for that purpose by the State Government and to be called the “Marriage Notice-Book”; and the marriage Notice-Book.
[edit] Solemnisation of marriage by Marriage Registrar after issue of certificate
After the issue of the certificate of the Marriage Registrar, or where notice is required to be given under the Act to the Marriage Registrars for different districts, after the issue of the certificates of the Marriage Registrars for such districts, marriage may, if there be no lawful impediment to the marriage of the parties described in such certificate or certificates, be solemnised between them, according to such form and ceremony as they think fit to adopt.
Whenever a marriage is not solemnised within two months after the copy of the notice has been entered by the Marriage Registrar, as required by section 40, the notice and the certificate, if any, issued thereupon, and all other proceedings thereupon, shall be void: and no person shall proceed to solemnise the marriage, nor shall any Marriage Registrar enter the same, until new notice has been given, and entry made, and certificate thereof given at the time and in the manner aforesaid.
[edit] Registration of marriages solemnised by Marriage Registrar
After the solemnisation of any marriage by the Marriage Registrar or in his presence, the Marriage Registrar present at such solemnisation shall forth-with register the marriage in duplicate; that is to say, in a marriage-register-book according to the form of the Fourth Schedule in the Act, and also in a certificate attached to the marriage-register-book as a counterfoil. The entry of such marriage in both the certificate and the marriage register-book shall be signed by the person by or before whom the marriage has been solemnised, if there be any such person, and by the Marriage Registrar present at such marriage, whether or not it is solemnised by him and also by the parties married and attested by two credible witnesses other than the Marriage Registrar and person solemnising the marriage. The Marriage Registrar shall keep safely the said register-book until it is filled, and shall then send it to the Registrar-General of Births, Deaths had Marriages, to be kept by him with the records of his office.
[edit] Non-validation of marriages within prohibited degrees
The Indian Christian Marriage Act does not validate any marriage which the personal law applicable to either of the parties forbids him or her to enter into. The word personal law refer to the personal law of the religious community to which either of the parties belong. The ‘Personal Law’ contemplated by the Act is only that part of the personal law which relates to absolute impediments to any marriage, such as prohibited degrees of consanguinity or affinity which would render the marriage a nullity. Persons of Indian origin and domicile converted to Christianity of the Roman Catholic persuasion who choose to marry under the rules and rites of the Roman Catholic Church must be regarded as having adopted the law of marriage of that Church as part of their personal law. The personal law of the Roman Catholics is to be found in the Canon Law.
[edit] Marriages of Christians with Non-Christians
The operation of this Act is not confined to a marriage to which both the parties are Christians. A marriage to which one party alone is a Christian is also regulated by the provisions of this Act. In other words, this Act does not stand in the way of a Christian marrying a non-Christian, but such a marriage will have to be solemnised under the provisions of this Act. For a valid marriage under the Christian Marriage Act, two requirements should be satisfied, viz., (a) the marriage should be solemnised under the Act and (b) it should not offend the personal law of any of the parties to it. Therefore in a marriage where one party to it is a Christian or both parties to it are Christians, it should be solemnised under this Act and if not so solemnised, it would be void. In short, in a marriage under this Act, if one party thereto alone is a Christian, such a marriage becomes valid only if the personal law of the non-Christian Party treats such marriage as valid. Where the wife is a Christian woman and the husband is a Hindu, there is no prohibition under Hindu law for such a marriage.
[edit] Conclusion
It can be concluded that the Indian Christian Marriage Act is comprehensive enough to deal with matters regading solemnisation of marriages among Christians in India when both the parties to the marriage are Christians. But where one of the parties to a marriage in India is a Christian and the other party is a non-Christian the best course to adopt is to solemnise the marriage under the Special Marriage Act, 1954. Or in the alternative, if a marriage has been solemnised between a Christian and a non-Christian under the provisions of the Indian Christian Marriage Act, it can be registered again under the provisions of section 15 of the Special Marriage Act of 1954 by way of caution.
[edit] References
- Christian Law on Marriage, Adoption & Guardianship and Canon Law on Marriage by Dr. Sebastian Champappilly and published by Southern Law Publishers, Cochin-22, Kerala, India.
