MARRIAGE UNDER CHRISTAIN LAW

PRELIMINARY

Prior to 1872,the law relating to solemnization of Christian marriages was scattered over two
Acts of the English Parliament and three Acts of Indian legislatures.It was therefore thought
expedient to consolidate and amend the law ,which finally took the shape of Indian Christian Act
1872.The object of this is to codify the existing law into a smaller compass,and at the same time ,
simplify and modify the same wherever necessary.

The Act applies to the whole of India-except those territories which before 1st November 1956
were comprised in:

1. The State of Manipur

2. The Union territory of Jammu and Kashmir and
3. The erstwhile State of Travancore-Cochin.

DEFINITIONS

Various terms and expressions used in the act are defined by S.3 of the act as follow:

A Christian is a person professing the Christian Religion.The expression Indian Christian

includes the Christian descendents of natives of India converted to Christianity as well as such
converts themselves.

The High Court of Orissa has held that persons who are followers of the Christian religion are
‘Christians’ and that baptism is not a condition precedent for professing the Christian
religion.Hence a person who is not baptized can be a “Christian” for the purposes of the Indian
Christian Marriage Act (David v.Nilamuni Devi,AIR 1953 Ori 10)

Conversely if a person does not profess the Christian faith although he might have been baptized
as a child,he cannot be regarded as a Christian .(Maha Ram v.Emperor,AIR 1928 ALL 168)

As observed in one case,if the baptism ceremony is conducted as an empty formality preceding
the marriage ceremony and that person has no faith in Christianity and Christian way of life ,he
cannot be regarded as a Christian.(Sujata v. Jose Augustine 1994 2 KLT 4)
A Full bench of the Madras High Court has held that a person continues to be a Christian ,even if
he is ex-communicated ,so long as he continues to profess the christen faith (Pakian Salomanv.
Chelliah Pillai,AIR1924 Mad 18).

The Allahabad High Court has observed that only a person who ,in fact,professes the Christian
religion as a Christian.Mere facts like dressing up as a Christian or attending a Christian school
or being baptized as a infant are not sufficient to treat him as a Christian.(Emperor v.Maha Ram ,
40 All 393)

India means the territories to which the Indian Christian Marriage Act extends

The word ‘Chruch’ includes any chapel or other buikding generally used for public Christian
worship.

‘Church of England’ and ‘Anglican’ mean and apply to the Church of England as established by
Law .

‘Church of Scotland’ means the Church of Scotland as established by law

‘Church of Rome’ and ‘Roman Catholic; mean and apply to the Church which regards the Pope
of Rome as its spiritual head .

‘Registrar General of Births ,Deaths and Marraiges’ means a Registrar General of Births ,Deaths
and Marraiges appointed under the Births,Deaths and Marriage Registration Act,1886.
 REQUISITES OF A CHRISTIAN MARRIAGE

A. PERSONS WHO CAN SOLEMNIZE CHRISTIAN MARRAIGE (SECTION 4

TO 9)

S.4 of the act declares that every marriage where one of the persons is a Christian or where both
persons are Christians , shall be solemnized in according with the provisions of S.5 of the Act .
Any marriage not solemnized in accordance with such provisions is declared to be void.

It is clear that S.4 applies when one of the spouses is a Christian and say the othere is Hindu,and
the marriage is solemnized under the Indian Christian Marriage Act . However,if a Christian
marries a Hindu under the special marriage act , the marriage cannot be said to be void on the
ground that it did not comply with S.4 and 5 of the Indian Christain Marriage Act. (A.A
Balasundaram v. Vijaya Kumari Cr.L.J 2254)

The Madras High Court has pointed out that the compliance with S.4 and 5 of the act is
mandatory for the validity of marriage under the act . Even if there was an earlier custom to the
contrary, the law makes it clear that solemnization of the Christian marriage can only be in
accordance with the act – and not in any other manner.

Futhermore, both S.4 and 5 of the act contemplate the solemnization of marriage and not a
written contract of the marriage. Thus, where a document was executed by the parties recording
that they have lived together for six months as husband and wife ,that they were in love with
each other and they were recording this relationship by executing the contract , the court held
that they could not be said to be married.The deed in the question could be at the best be
regarded as evidence of cohabitation , but not as , evidence of solemnization of marriage
between the two. (A Sirvadam Samuel Nadar v. Raja Jyothi ,121 Mad.L.W 78)

S.5 of the act then provides that the marriage under the act can be solemnized in India-

(a). by any person who has received episcopal ordination , provided that the marriage is
solemnized according to the rules,rites,ceremonies and the customs of the Church of which he is
the Minister;

(b). by an Clergymen of the Church of Scotland ,provided that such marriage is solemnized
accordinf the rules,rites,ceremonies and customs of the Church of Scotland;

(c). by an Minister of religion licensed under the act to solemnized marriage;

(d). by, or in a presence of, a marriage registrar appointed under the act;
(e). by any person licensed under the act to grant certificates of marriage between Indian
Christians.

Where a marriage was allegedly solemnized between a Christian woman and a Muslim man and
it was not shown that such a marriage was a void and the Christian wife was therefore not
entitled to any maintenance.( Syed Ahmad Sheriff v. Rajinamani,1988 (2) HLR 615 )

The Orissa High Court has held that the Act does not lay down that a marriage between Indian
Christian can be proved only by affirmatively establishing that the provisions of S.5 were
complied with or by producing a marriage certificate issue under the Act. The court can admit in
evidence matters like admission of spouses themselves , evidence of eye witnesses who were
present at the marriage ceremony, subsequent conduct of the parties cohabiting as husband and
wife and the other relevant facts . If a suit is filed for a declaration that the marriage was invalid
, the burden will on the plaintiff to show that the marriage was not solemnized by any of the
persons listed in S.5 of the act. ( David v. Nilamoni Devi , AIR 1953 Ori 10)

S.6 empowers the state government to grant licences to Ministers of Religion to solemnize
marriages within the territories under its jurisdidction by notification in the official gazette . By a
like notification , the State Government can also revoke such licenses.

Under S.7 the State Government may appoint one or more Christians to be the Marriage
Registrar or Marriage Registrars for any district within the State. If two or more Marriage
Registrars are appointed in the same district, one of them is to be appointed as the Senior
Marriage Registrar . However, if there is only one marriage registrar in a district and he is either
absent from the district or is ill or when his office is vacant, the Magistrate of that district must
officiate as the marriage registrar during such absence,illness,or temporary vacancy.

Lastly,the State government is also authorized to grant a license to any Christian, authorizing
him to garnt certificates of marriage between Indian Christians . Any such license can be
revoked by the authority which granted it. Every grant or revocation of a license is to be notified
in the official gazette.( S.9)
B. TIME AND PLACE FOR SOLEMNIZATION OF CHRISTIAN MARRIAGES
(SECTION 10 AND 11)

Section 10 and 11 of the act contain provisions governing the time and place at which
Christian marriages may be solemnized.
Section 10 lays down that every marriage under the act shall be solemnized between 6
a.m to 7 p.m ,except where-

(a). a Clergymen of the Church of England solemnizes a marriage under a special license
permitting him to do so at any hour not falling between 6 a.m to 7 p.m .Such license
should be issued under the hand and seal of the Anglican Bishop of the Diocese or his
commissary;

(b). a Clergyman of the Church of Rome solemnizes a marriage not falling within the
prescribed timing ,when he has a general or special lecense to do so from the Roman
Catholic Bishop of the Diocese or Vicariate in which such a marriage is solemnized or
from such other person as the Bishop has authorized to grant such a licence; or

(c). a Clergyman of the church of Scotland solemnizes a marriage acoording to the

rules,rites,ceremonies and customs of the Church of Scotland.

S.11 of the act then lays down that no clergymen of the Church of England can solemnize
the marriage in any place other than a church where worship is generally held according
to the forms of the Church of England-

-unless there is no such church within the distance of five miles , or

-unless the Clergymen has received a special license to do so under the hand and seal of
the Anglican Bishop of the Diocese or his Commissary.

In such cases an additional fee can be charged for such a licence.

NOTE:
1. For the procedure to be followed when a Christian marriage is solemnized by a
Marriage registrar.
2. The conditions on which the a certificate can be issued in respect of a Christian
Marriage are laid down in Sec.60 .
3. Under S.3 of the act , the word church includes any chapel or the other building
generally used for public Christian worship.
MARRIAGES SOLEMNIZED BY MINISTERS OF RELIGION (SECTION 12 TO
26)

Under S.12 of the act if a Christian marriage is to be solemnized by a minister of

religion licenced to solemnize marriages under the act ,one of the parties to the
intended marriage must give notice in writing in the prescribed form (given in the 1st
schedule to the act) to the Minister of Religion whom such party desires to solemnize
the marriage ,stating therein-

(a). the name,surname and the profession or the conditions of the parties to the
intended marriage;
(b). the dwelling palce of both such parties;
(c). the time during which each one of them has dwelt there;and
(d). the church or private dwelling in which the marriage is to be solemnized .

If either person has dwelt in the place mentioned in the notice for more than one
month , such fact is also to be stated in the notice.

If the persons intending to get married desire that the marriage be solemnized ina
particular church and if the minister if religion to whom the notice is delivered is
entitled to officiate in that church , he must cause the notice to be affixed in
conspicuous part of that church . If,however he is not entitled to so officiate , he must
either return the notice to the person who gave it or deliver the notice to some other
minister entitled to so officiate , who inturn must cause the notice to be affixed a
above. If such a marriage is intended to be solemnized at a orivate dwelling , the
minister of religion , on receiving the notice, must forward it to the marriage registrar
of that district who must then affix the same in a conspicuous place in his office.(S.
13 and 14).

If one of the persons of the intended marriage is a minor, the minister receiving the
notice must send a copy of the notice to the marriage registrar of that district or to the
senior marriage registrar,if there are more than one marriage registrar,as the case
maybe,who must then affix the notice in a conspicuous place in his office. When the
senior marriage registrar receives such a notice, he must send copies thereof to every
marriage registrar in the same district, who must likewise public the notice in the
same manner. (S.15 AND 16).

Therefore,one of the parties to the intended marriage must personally appear before
the minister and make a solemn declaration-
 a) That he or she believes that there is no impediment of kindred or affinity-or
any other lawful hindrance-to such marriage ;and
b) In case one party is,or both parties are minors,that the consent required by the
law has been obtained ot that there is no person in India having authority to
give such consent.

It may be noted that,the minor’s father,if alive is the only person who can give
consent. If the father is dead, then the guardian of the minor , and if there is no
guardian , then the mother of the minor can give the consent. This consent is
mandatory , unless there is no person resident in India who is authorized to
give it. (It is rather strange that a guardian is preferred over the mother in this
regard).

Once the above declaration is made , the party giving the notice can call upon
the minister to issue a certificate that notice has been given and the declaration
has been made , and a such a certificate is then issued . However , no
certificate can be given-
i. Before the expiry of four days from the date of receipt of the notice; or
ii. If some lawful impediment is shown to exist;
iii. If the issue of the certificate is forbidden by any person authorized
under the act.

Any person whose consent is required can give a notice in writing to the Minister , prohibiting
the issue of the certificate .If such a notice is received, the Minister cannot issue the certificate –
or solemnize the marriage –until he has examined the notice of prohibition received by him and
is satisfied that the person seeking to prohibit the marriage has no lawful authority to do so or
until the prohibition notice is withdrawn by the person who gave it.

Under S.22 , when the either party to an intended marriage is a minor and the minister is not
satisfied that the consent of the proper person has been obtained , he cannot issue the certificate
until 14 days have expired from the date on which he received the notice of the intended
marriage.

The certificate issued by the minister has to be in form prescribed by the second scheduled to the
at or to the like effect . It is inly after this certificate is issued , that the marriage can be
solemnized according to such form or ceremony as the Minister thinks fit to adopt , in the
presence of atleast 2 witnesses . If , however , the marriage is not solemnized within 2 months
from the date of the minister’s certificate , such certificate and all other related proceedings
become void , and no person can proceed to solemnize marriage until a new notice has been
given and a fresh certificate has beem issued on such a new notice . In other words , once the
period of 2 months expires , the process has to strat again from Step one.
 REGISTERATION OF MARRIAGES SOLEMNIZED BY MINISTERS OF
RELIGION (SECTION 27 AND 37)

Section 27 and 37 of the act deal with registration if all marriages solemnized in India between 2
persons , one or both of whom profess the Christian religion, except marriages solemnized .

REGISTRATION OF MARRIAGES SOLEMNIZED BY CLERGYMEN OF THE CHURCH

OF ENGLAND

Every Clergymen of the Church of England must keep a register of marriages and must enter
therein every marriage which he is solemnizes under the act . He must also send in duplicate ,
four times ina year ,enteries contained in the register of marriages solemnized at any palce where
he has any spiritual charges , to the Register of Archdeaconry to which he is a subject or within
the limits of which such place is situated . Such quarterly returns must contain all yhe enteries of
marriages contained in the register for the periods-

i. 1st January to 31st March

ii. 1st April to 30th June
iii. 1st July to 30th September
iv. 1st October to 31st December

Such entries are to be sent within 2 weeks from the expiry of each of the above quarters .
On receipt thereof , the Registrar must send one copy thereof to the Registrar general of
births , deaths , and marriages ( Section 28 and 29)

REGISTRATION OF MARRIAGES SOLEMNIZED BY CLERGYMEN OF THE CHURCH

OF ROME

Likewise , every marriage solemnized by a clergymen of the church of Rome is to be registered

according to the form prescribed by the Roman Catholic Bishop of the Diocese or Vicariate in
which such marriage in solemnized . Quarterly returns of all the entries are also to be forwarded
to the Registrar general of births , deaths , and marriages . (section 30)
REGISTRATION OF MARRIAGES SOLEMNIZED BY CLERGYMEN OF THE CHURCH
OF SCOTLAND

Every clergymen of the church of Scotland must keep a registrar of marriages and register , in
the tabular from given in the 3rd Schedule to the Act, every marriage solemnized by him under
the act. Quarterly returns are also to be forwarded by him to the Registrar general of births ,
deaths, marriages through the senior chaplain of the Church of Scotland.(Section 31).

REGISTRATION OF MARRIAGES BY A PERSON WHO HAS RECEIVED EPISCOPAL

ORDINATION

Every marriage solemnized by a person who has received Episcopal ordination, but who is not a
clergymen of the church of England or the Church of Rome or a Minister of Religion licenced
under the act to solemnize marriages, must be registered in duplicate by the solemnizing the
marriage immediately after such solemnization. The marriage is to be registered in a marriage
register book to be kept by him in the format given in 4 th Schedule to the at and also in a
certificate attached to the marriage register book as a counterfoil. Every such entry, in both the
certificate and the marriage register book is to be signed by the person solemnizing the marriage
and by both the parties to the marriage and must be attested by two credible witnesses who were
present at the solemnization of such a marriage . (Section 32 and 33)

The person solemnizing the marriage must then separate the certificate from the marriage
register book and sent it, within one month from the date of the marriage , to the Marriage
Registrar of the district in which the marriage was solemnized, or to the Senior Marriage
Registrar, if there are more than one Marriage Registrars in the district . Such Registrar must
then cause the certificate to be copied in a book kept by him for this purpose. Every month, he
must also send all the certificates which he has received during the month to the Regisrar general
of biths, deaths, and marriages.
MARRIAGES SOLEMNIZED BY A MARRIAGE REGISTRAR(SECTION 38 AND
59)

Section 38 of the provide that when a marriage is intended to be solemnized by, or in the
presence pf, a Marriage Registrar, one of the parties to the intended marriage must give a notice
in writing in the prescribed form to the Marriage Registrar of the district within which the parties
reside. On receipt of such a conspicuous place in his office. The said Registrar must also file all
such notices and keep them with the records of his office. Additionally, he must enter a true copy
of all the notice in abook called the Marriage Notice Book.(S.40) When such a book is filled up,
he must send it to the Registrar general of births, deaths, and marriages to be kept by the letter
with the other records of his office. (S.55)

The party by whom the notice was given can make them an oath and request the Marriage
registrar to issue a certificate of such notice. If no lawful impediment is shown as to why such
certificate should not be issued, the Marriage registrar can issue the certificate if 4 days have
expired after the receipt of the notice. If however, it appears that one of the parties to the
intended marriage is a minor, the certificate can be issued only if 14 days have expired after the
receipt of the notice. In such a case, the parties wish to marry in less than 14 days , if both the
parties reside in Mumbai, Chennai, or Kolkata , they may apply to the High court with a prayer
that the court should direct the Marriage general to issue the certificate before the expiry of !4
days.

Such a certificate cannot be issued by the Marriage Registrar unless one of the parties to the
intended marriage personally appears before the Marriage Registrar and makes an oath-

a) That he or she believes that there is no impediment of kindred or affinity or any other
lawful hindrance to such a marriage;
b) That both the parties have had their usual place of abode within the district of the
Marriage Registrar; or
c) If either part is, or both the parties are, minor, that the required consent to such a marriage
has been obtained or that there is no person in India who is authorized to give such a
consent.

As regards persons who are authorized to give consent under the clause , if alive is the only
person who can give such consent. If , however, the fatger is dead , the guardian of the minor,
and if there is no guardian , the mother of the minor can give such consent .
However, if the person whose consent is necessary is of unsound mind or of such a person
withholds such consent without such consent without just cause, the parties to the intending
marriage may file a petition before a judge of High court if the person whose consent is required
resides in Mumbai, Chennai or Kolkata, or before the district Judge in other cases, and the Judge
can examine the petition in a summary manner and declare the marriage to be a proper marriage.

Effects of false oath: A division bench of Madras High Court was faced with the question as to
whether a marriage becomes invalid if it is shown that the oath was false in nature, as for
instance, if the dwelling place of the bride is falsely stated. Taking a liberal view in the matter,
the court held that the marriage , does not become invalid on this ground. Once the marriage is
duly solemnized , this defect can be cured under S.77 of the act. (Lala Gokuldas v. John
Kantaraj, AIR 1937 Mad 895)

Any person whose consent to such marriage would be required under the act can, before the
certificate is issued, enter a protest against the issue of certificate, by writing the word forbidden
opposite the entry of the notice of the intended marriage, along with his name and address, also
including his or her position by which he or she is authorized to lodge such a protest. When this
happens, no certificate can be issued until the marriage registrar has examined the matter and is
satisfied that the certificate should be issued or until the protest is frivolous and such as not tto
obstruct the issue of a certificate, the person making the protest is liable to pay the costs of all the
proceedings wherein the protest was found to be of such a nature. Additionally, damages can be
recovered from such a person by the person against whose the marriage such a protest was lodge.

If the marriage registrar refuses to issue a certificate , either the party to the intended marriage
may file a petition in High Court or the District Court and the court , after examining the
allegations contained in such a petition, can pass appropriate orders thereon. (S.46)

The form of the certificate has been given in the second schedule to the act and it is the duty of
the state government to furnish sufficient copies of such certificates to all the marriage registrars
in the state (S.50)

Once the certificate is issued by the Marriage Registrar, a marriage can be solemnized between
the parties according to such form and the ceremony as they think fit to adopt. However, the
marriage must be solemnized in the presence of Marriage Registrar and 2 or more credible
witnesses and in some part of the marriage , each party must declare as under or to the like
effect:

“I DO SOLEMNLY DECLARE THAT I KNOW NOT OF ANY LAWFUL IMPEDIMENT

WHY I, AB MAY NOT BE JOINED IN MATRIMONY TO CD”.

In addition to above, each of the parties must say to the other as under or to the like effect:
“I CALL UPON THESE PERSONS PRESENT TO WITNESS THAT I, AB DO TAKE THEE,
CD, TO BE MY LAWFUL WIFE (OR HUSBAND).”

Under S.52 of the act, the marriage must be solemnized within 2 months from the date on which
a copy of the notice is entered by the marriage registrar in the Marriage Notice Book. If this is
not done, the notice, the certificate, and all the other related proceedings become void, and no
person can proceed to solemnize the marriage until a new notice. In other words, once the above
period of 2 months expires, the process has to start again from step one.

After the solemnization of the marriage , the Marriage Registrar who was present at such
solemnization must forthwith register in duplicate, i.e in the Marriage Registrar Book and also in
the certificate attached to Marriage Registrar Book as a counterfoil. Such entries are to be signed
by the person by or before whom the marriage was solemnized , by the parties to the marriage
and by 2 credible witnesses . It is the duty of the Marriage Registrar to separate the certificate
from the Marriage Register Book and send it to the Registrar General of Births, Deaths, and
Marriages at the end of every month.
 CERTIFICATION OF MARRIAGES OF INDIAN CHRISTIANS ( SECTION 60 TO
45)

S.60 of the act lays down that any marriage between Indian Christian shall, without the
preliminary notice required , be certified under the act if the following 3 conditions are fulfilled-

1. The bridegroom should not be under 21 years of age and the bride shoukd not be under
18 years of age.
2. Neither person should have wife or husband who is alive.
3. Each of the parties must, in the presence of a person licensed under S.9 of the act and in
the presence of at least 2 credible witnesses say to other as under.

“I CALL UPON THESE PERSONS AS HERE PRESENT TO WITNESS THAT I , AB , IN

THE PRESENCE OF ALMIGHTY GOD AND IN THE NAME OF OUR LORD JESUS
CHRIST, DO TAKE THEE, CD, TO BE MY LAWFULL WIFE OR HUSBAND”.

Under S.61 of the Act, if the above conditions are fulfilled , the person who is licensed under S.9
of the act in whose presence such a declaration has been made must, on the application of either
party to the marriage and on payment of the prescribed fees, grants a certificate of such marriage.
The certificate is to be signed by such a licensed person and is admissible in evidence as
conclusive proof of such a marriage having been performed.

Every person licensed under S.9 of the act must maintain –in English or in local vernacular
language-and in such form as the State Government may prescribed, a register book of all the
marriages solemnized in his presence and must allow a search to made in such a book and give a
copy of any entry made therein on payment of the prescribed fee. Such a licensed person must
also deposit in the office of the Registrar-General of Births, Deaths and Marriages, true and duly
authenticated extracts from his register books of all the entries made therein at such interval as
may be prescribed by the State government.
 OFFENCES AND PENALTIES (SECTION 66 TO 76)

S.66 to 76 of the Act prescribe penalties for various offences under the Act, which may be
summarized as under.

OFFENCE PENALTY
a) Making a false oath or declaration or signing a Imprisonment upto 3 years
false notice or certificate. + FINE
b) Solemnizing a marriage in case where the person Imprisonment upto 10 years
is not authorized to do so under S.5 of the Act. + FINE

c) Solemnizing a marriage at any time other than Imprisonment upto 3 years

between 6 a.m to 7 p.m (except when exempted + FINE
by S.10) or in the absence of atleast 2 credible
witnesses.

d) Knowingly and willfully solemnizing- Imprisonment upto 3 years

1. A marriage without notice in +FINE
writing, or
2. A marriage where one of the
parties is minor without the
consent of the parent or guardian
within 14 days of the notice of
marriage.
e) A marriage registrar- Imprisonment upto 5 years
1. Knowingly and willfully solemnizing a + FINE
marriage or issuing a Marriage
Certificate without publishing a notice of
the marriage.
2. Solemnizing a marriage after the expiry
of 2 months in the violation of S.40 of
the Act.
3. Solemnizing, without the order of a
competent court, any marriage where one
of the parties is a minor , within 14 days
of the receipt of the notice of such
marriage or without sending a copy of
such notice to the Senior Marriage
Registrar.
4. Issuing a certificate the issue whereof is
prohibited by the Act.

f) Unlicensed person granting a Marriage Imprisonment upto 5 years

Certificate, pretending that he is licensed + FINE
g) Licensed person , without just cause, refusing or FINE upto Rs 100
willfully neglecting or omitting to perform duties
imposed on him by the Act.

The limitatiom period for the prosecution of the above offences is two years from the
date of offence.