Written by ADVOCATE AILEEN S. MARQUES
The Right to Marry is a Human Right Article 16 of the Universal Declaration of Human Rights states that Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses.
In the Indian Context, many still look to marriage as a social necessity. Young boys and girls are groomed for marriage from their childhood. Marriage is not an option but a compulsion and hence the dream of a perfect wedding with a perfect partner is shared by many.
The most popular form of marriage known among the youth is Court marriage. While some youth whose parents do not agree to their choice of spouse, gather details about the court marriage procedure. Many others prefer a court marriage to other traditional and religious forms of marriage. Quite a few see court marriage as less cumbersome; less expensive and less drama and so they opt for a court marriage.
Other than personal laws, we have a secular law which is the Special Marriage Act, the marriage under which is commonly known as court marriage. If you are a Hindu and intend to marry a Hindu, you will be married under the Hindu Marriage Act. However if you as a Hindu choose to marry a Muslim or a Parsi person, this marriage will take place under the Special Marriage Act. A court marriage does not happen in the court but in the Office of the Marriage Registrar at Old Customs house or at Khar. When you are married as per law you will be issued a marriage certificate. If you are married as per the personal laws, you must get your marriage registered.
The Special Marriage Act (SMA) is an act to provide for a special form of marriage in certain cases, for the registration of such marriages and certain other marriages and for divorce. According to Section 4 of the SMA, the conditions relating to solemnization of special marriage include capacity to give valid consent, parties not to be within the degrees of prohibited relationship, the male must complete the age of twenty-one years and the female the age of eighteen years among others. When a marriage is intended to be solemnized under this Act, the parties of the marriage shall give notice thereof in writing in the Form specified to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given. This notice is then published. Any person may, before the expiration of thirty days from the date on which any such notice has been published object to the marriage on the ground that it would contravene one or more of the conditions specified in Sec.4.
The documents that accompany the notice of intended marriage are: birth certificate, school leaving certificate showing date of birth, government issued documents for address proof and ration card along with 2 passport size pictures of each of the parties to the marriage. After the notice is submitted, a date for the solemnization of marriage is given which is generally after 30 days.
On the date given, both the parties to the marriage are required to be present at the stipulated time along with three witnesses. The parties are asked if they want to perfume some religious ceremonies in the presence of the marriage officer and if they intend to then the ceremonies are performed by the parties. In case the parties choose a simplified version, they are told to say vows that are printed. The vows are similar to the vows exchanged in Church during a Christian wedding. When the marriage has been solemnized the Marriage Officer shall enter a certificate thereof in the Form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.
When we talk about marriage, it is important to understand that there is a social or cultural understanding to marriage and there is a legal understanding to marriage. Samajik Niyam says the bride must adopt a new identity on marriage but law has no such requirement. Samaj says dowry is indispensable for a marriage but law says dowry in any form is prohibited. Samaj says woman is a burden get her married off, law says let the woman decide if she wants to be married. Samajik niyam says marriage gives the husband an unrestricted and undisputed consent to sex while law says the wife has a right to refuse.
The paradox between the samajik niyam and law has to be done away with. All are equal before law and this equality will manifest only when the laws relating to marriage are upheld.