Ignorance of law is no excuse
In my write-up today I would like to make you aware of the legal consequences of the mistake or the offence relating to marriage knowing or unknowingly done/happens in our society. And also I would like to alert the person who is aggrieved to take legal steps to set the things right.
To take legal step, first, one should be aware of the heads of offences which are punishable under law and I would like to arm the innocent person with awareness of the legal action he/she can initiate without hesitation to build a healthy society.
Before that I would like to make one point very clear, before initiating any legal action a thorough introspection and interaction with elders and well wishers and legal advisor is necessary to avoid any foolish, hasty, irreparable and irreversible consequence!
Now a days I have seen many matrimonial cases piling up in the Courts just because of either hasty decisions or because of lack of awareness of law at the teenage.
In early days say about 25-30 years back people were hesitant to move to Court out of social stigma that law is not for us to invoke and it is only Dharma/Culture and Tradition that should rule the mind.
But after the advent to T.V., Mobile, Internet etc. etc. total approach of an average person towards life has changed drastically. What were impossible has become possible! Prudent people used it for positive and productive purposes and fools and crocked used it for destruction family or nation.
Because of advent of many gadgets most of the people have become dreamy and they are moving away from truths of life, moral and ethical values, social responsibilities and family values.
By this I don’t say one should not update oneself and exercise his/her right instead I want to say when the people are moving away from the Tradition/Cultural values it is high time the people be aware of their Rights and Obligations under the Law of the Land to take precautions and prudent decisions in every stages of their life and live harmoniously and peacefully.
Because Marriage gives a special status to an individual likewise his rights and obligations plays an important role after Marriage.
In family Courts we see both Educated/Uneducated-Rich/Poor alike fighting for their rights on one or the other grounds.
Here in India we don’t have common code of Law for all yet. The Hindus are governed by the Hindu Law and Muslims are governed according to Mohammedan Law as far as their succession/Will/Gift and marriages are concerned.
So a persons succession or matrimonial rights/obligation are decided according to the religion he/she belongs to as said above.
But there are Offences relating to Marriage under Indian Penal Code which govern the entire citizens of India – the topic which I would like to share with you now.
Meaning of important words:
1.Offence: Any Act or Omission punishable under Law
2.Cognizable Offence-Non cognizable Offence: In Cognizable Offence a Police Officer may arrest a person without warrant. In non-Cognizable offence a Police Officer cannot arrest a person without warrant.
3.Bailable – Non-Bailable Offence:
1. BAILABLE OFFENCES
When any person accused for a bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail. In case of a bailable offence bail is a matter of right. If such officer or Court, thinks it fit such person maybe released on a personal bond without sureties. In case of bailable offence, one has to only file the bail bonds and no application is required.
2. NON-BAILABLE OFFENCES
In case a person is accused of a non-Bailable offence it is a matter of discretion of the court to grant or refuse bail and application has to be made in court to grant bail.
1. When a person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail on Conditions.
1.What happens if a man cohabits deceitfully inducing a belief of lawful marriage?
IPC Sec.493 : Everyman who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit to have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.
Classification of Offence: The Offence under this section is non-cognizable, non-bailable, non-compoundable and triable by Magistrate of the first class.
Caution to youngsters:
Only legal marriages are recognized under law that is to say for example unlawful cohabitation is not recognized by law as legal marriage and no man/woman will have legal status as husband and wife and consequently the aggrieved person cannot exercise any maintenance or property rights against the other person.
But as the offence under sec.493 IPC is punishable – Complaint may be lodged and the offender may be punished according to the law.
2. WHAT IS LEGAL MARRIAGE?
1. Religious Marriage Ceremonies in India
In India, a religious marriage ceremony is considered a legal marriage. However registration of marriage is now a legal requirement in most of the states in India. Moreover, for visa and immigration purposes a formal marriage certificate from the Registrar of Marriages is required. There are different rules and regulations for different religions. For example there are Hindu Marriage Act, Muslim Marriage Act, and Christian Marriage Act and for the Parsee there is Parsee Marriage and Divorce Act.
If one of the parties is a citizen of another country like USA, UK or other, the registrar may request a no objection letter from the Embassy or Consulate of that country, and also may request proof of termination of any previous marriages,before a marriage certificate will be issued.
For example, if one of the parties is a U.S. citizen, the registrar may request a no objection letter from the U.S. Embassy or Consulate, and also may request proof of termination of any previous marriages, before a marriage certificate will be issued.
(a) Hindu Marriage Ceremony
The Hindu Marriage Act of 1955 is applicable to Hindus, Jains, Sikhs and Buddhists. A religious marriage which has already been solemnized can be registered under the Hindu Marriage Act, 1955. The Hindu Marriage Act is applicable in cases where both husband and wife are Hindus, Buddhists, Jains or Sikhs or where they have converted into any of these religions. The Hindu Marriage Act provides for the conditions of a marriage where under the bridegroom should be the age of 21 years and bride of 18 years, they both should not be within the degree of prohibited relationship.
The documents required for registering a marriage under the Hindu Marriage Act are as follows:
- Application form duly signed by both husband and wife
- Documentary evidence of date of birth of parties (Matriculation Certificate / Passport / Birth Certificate) Minimum age of both parties is 21 years at the time of registration under the Special Marriage Act
- Ration card of husband or wife whose area SDM has been approached for the certificate
Affidavit by both the parties stating place and date of marriage, date of birth, marital status at the time of marriage and nationality
- Two passport size photographs of both the parties and one marriage photograph
Marriage invitation card, if available
- If marriage was solemnized in a religious place, a certificate from the priest is required who solemnized the marriage
- Affirmation that the parties are not related to each other within the prohibited degree of relationship as per Hindu Marriage Act or Special Marriage Act as the case may be
Attested copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower
- In case one of the parties belong to other than Hindu, Buddhist, Jain and Sikh religions, a conversion certificate from the priest who solemnized the marriage
- All documents excluding receipt should be attested by a Gazetted Officer
Verification of all the documents is carried out on the date of application and a day is fixed and communicated to the parties for registration. On the said day, both parties, along with a Gazetted Officer who attended their marriage, need to be present before the SDM. The marriage certificate under the Hindu Marriage Act is issued on the same day or within a few days.
(b). Civil Marriage Ceremonies in India
Parties who do not wish to marry in a religious ceremony can instead opt for a civil ceremony pursuant to the Indian Special Marriage Act of 1954.
In case a marriage between an Indian and a foreign national is to take place in India, generally its required to file a notice of intended marriage with a Marriage Registrar of your choice in India. That notice is required to be published for the stipulated 30 days. At the end of the 30 days the Marriage Registrar is free to perform the marriage.
The notice of intended marriage can only be given in India, if at least one partner is permanently and the other partner temporarily resident in India.
If one partner is residing in a foreign country then the partner who is resident in India will have to fill out the Marriage Notice collected from the Marriage Registration Office of his/her choice in India and send it to his/her partner in the foreign country who will also have to fill it out. This Notice should then be sent back to the partner in India who will have to re-submit it at the Marriage Registration Office. After the stipulated waiting period of 30 days the marriage can take place in India. Under the Special Marriage Act, 1954 a certificate showing the signatures of the persons married, the registrar and the witnesses will be issued. This Certificate is required as proof of the marriage and when applying for a visa to for a foreign country.
The following documents are required for both the partners:
- a valid Passport
- original Birth Certificate showing parents’ names
- if the person concerned is widowed, the original death certificate of the deceased spouse
- If divorced, copy of the final decree
- documentary evidence regarding stay in India of the parties for more than 30 days (ration card or report from the concerned SHO)
The American citizen who wishes to participate in a civil marriage ceremony may be required to present to the marriage officer a no objection letter from the U.S. Embassy or Consulate, as well as proof of termination of any previous marriages. Similarly, a citizen of another foreign country may be required to present to the marriage officer a no objection letter from the Embassy or Consulate of his country, as well as proof of termination of any previous marriages.
In a nutshell, under the Special Marriage Act, the parties generally are required to wait at least 30 days from the date of initial application to formalize the marriage so that the marriage officer can publish a newspaper ad allowing for the opportunity for any objections to the marriage to be voiced.
What happens when :
Marrying again during lifetime of husband or wife?
IPC Sec.494 : whoever having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.