Chennai Consulate on Special Marriage Act
Posted Aug 01, 2003

Attorney Sheela Murthy recently (July 2003) contacted the U.S. consulate at Chennai, India, to arrange her upcoming October meeting with consular officials. At the suggestion of the Deputy Chief of the Consular Section at the Consulate, Angela Williams, we advise for our MurthyDotCom and MurthyBulletin readers, who are U.S. citizens and intend to get married in India, to consider registering their marriages under the Special Marriage Act of 1954. This generally will minimize doubts regarding the residency requirements while also establishing that "no fraud is involved."

Unlike the United States, India has specific laws for people of different religions. If a U.S. citizen gets married either under the Hindu Marriage Act or one of the other Acts mentioned below, then, for the consular officers, the burden to demonstrate that it is a valid "bona fide" marriage is greater, sometimes requiring the U.S. citizen to apply for a fiancé/e visa and then requiring the parties to remarry in a civil ceremony in the United States. It would be much easier for the parties to simply register the marriage under the Special Marriage Act.

Special Marriage Act XLIII of 1954

This Act permits marriages between persons who are not of the same community or who have different religions or nationalities. The scope of the Act includes the entire territory of India and extends to intending spouses who are both Indian nationals living abroad. The groom must be at least 21 years old, while the bride must be at least 18 years of age. Both parties should have full mental capacity and not be currently married. Parties to the marriage must provide notice of their intention to solemnize the marriage before a marriage officer in the district where at least one of the parties has resided for at least 30 days prior to the notice. Notice of the intended marriage is entered into the Marriages Notice Book, which is open for public inspection with an inspection fee. The public has the right to object to the marriage for the following 30 days. Any objections must be investigated and resolved within an additional 30 days.

Prior to the solemnization of the marriage, the parties and three witnesses must sign a declaration in front of a marriage officer, who will also sign the document. The marriage may be solemnized in any form that the parties wish to adopt as long as the solemnization occurs at the marriage officer's office or any place that the marriage officer sanctions. The marriage must include the exchange of the following statement: "I (name of self) take you (name of partner) to be my lawful (wife or husband)." After the solemnization, the marriage officer will enter the certificate in the Marriage Certificate Book. The parties and the three witnesses must sign the certificate. The entry of the certificate in the book is deemed conclusive evidence of a lawful marriage.

Any marriage in India may be registered under this Act. The parties must jointly apply for the marriage registration. After 30 days of notice to the public, the marriage officer will enter the certificate into the Marriage Certificate Book. The spouses and three witnesses must sign the certificate.

Other Marriage Acts in India

Hindus in India may marry either under tribal customs or under the Hindu Marriage Act XXV of 1955. If customs conflict with the Act, the Act prevails. There are eight recognized marriage types by customs. Registration of the marriage may be entered into the Hindu Marriage Registers that are located in each state in India. Failure to register does not affect the validity of the marriage. However, failure to register may make the marriage difficult to prove for immigration purposes.

Muslims marry under Mohammedan customary law. It is a contract performed through a Nikah ceremony. A proposal must be made by one party and accepted by the other party in the presence of two adult males or one adult male and two female witnesses. Three Nikha forms are usually signed: one for the husband; one for the wife; and one for the Kazi or recording officer. As with Hindu marriages, no registration is required.

Parsee (or Parsi) marriages occur under the Parsee Marriage and Divorce Act III 0f 1936. Both parties must be Parsees. The marriage must be solemnized in an Ashirvad ceremony conducted by a Parsee priest in the presence of two Parsee witnesses.

Christians in India marry under the Indian Christian Marriage Act XV of 1872. Not all provisions, however, apply to Roman Catholics. Only one party must be Christian. Marriages may be conducted by a minister who has received Episcopal ordination if that marriage is conducted according to the rules, rites, ceremonies, and customs of the church of which s/he is a minister; any clergyman of the Church of Scotland who conducts the marriage according to the rules, rites, ceremonies, and customs of the church; and minister of religion who is licensed under the Act to solemnize marriages; any registrar appointed under the Act; or any person licensed to grant certificates of marriage between Indian Christians.

Conclusion

Although a general overview is provided here of the different marriages recognized under law in India, it is important to remember that each type of marriage carries its own restrictions and rules. All criteria must be met and proven if one wishes to be successful in establishing a valid marriage at the consulate or with the BCIS in the U.S. when filing immigration documents. We appreciate Ms. Williams's helpfulness in suggesting the best approach for those who file marriage-based cases, especially for those who are U.S. citizens or have become U.S. citizens by naturalization. We recommend that MurthyDotCom and MurthyBulletin readers who plan to be married in India give careful consideration to the Special Marriage Act XLIII of 1954. It also may be worthwhile consulting with an attorney in India who is familiar with details on the restrictions under the various Indian laws and any possible disadvantages of getting married under the Special Marriage Act, instead of the act pertaining to one's religious faith.