Last year a couple, the male being a Christian and the female a Hindu, consisting of American and Canadian citizenship, submitted an online application for marriage registration under the Special Marriage Act, 1954, after having lived in Delhi for more than six months now.
The couple appealed to the High Court, stating they could not submit their application online since the website requires at least one of the parties to be an Indian. The couple further informed the court that the Sub-Divisional Magistrate (Defence Colony) refused to accept their application, stating that they do not have provisions for such marriages of foreign individuals.
The Special Marriage Act, of 1954
The Special Marriage Act of 1954 introduced an alternative for registering marriages that could not be registered under the Hindu Marriage Act of 1955 & Muslim Marriage Act of 1954. The Act provided for civil marriage, enabling individuals to get married outside their respective community mandates. Many community-based laws did not provide for inter–community or inter–caste marriages. The Act offers an option to register marriages performed as per one’s laws, irrespective of their citizenship. This provision of subsequent registration enables parties to avail of secular and uniform remedies despite the solemnization of marriage through the performance of religious ceremonies. This aids them in overcoming the constraints posed by their laws.
The High Court of Delhi- Observation
On 12th January 2023, Justice Pratibha M Singh stated that Section 4 of the Special Marriage Act. 1954 leaves no doubt that any two people can seek solemnization of their marriage as long as the conditions of the act are complied with. She further highlighted that Sub-section (a), (b), (c) & (d) of section 4 does not anywhere mentions the term ‘citizen’ rather it mentions ‘any two persons.’ Adding further, she stated that section 4 (e) states nothing about at least one party being a citizen of India is required under the Special Marriage Act.
A guideline issued by the Revenue Department of the Delhi Government for issuing marriage certificates was also submitted to the court, which stated that either groom or bride applying for the marriage registration must be a citizen of India. Justice Pratibha noted that the guidelines have been contrary to the statutory provisions of the Special Marriage Act, and the directions passed by the court regarding the same have not been implemented, referring to a 2021 judgment passed in Aryan Arianfar & Anr vs. State Govt, of NCT of Delhi and Ors.
In this case, Aryan Arianfar, a French national, and his partner Husna Noori had sought to register their marriage under the Special Marriage Act after getting married under Islamic Law in 2021. The couple contended that they had no choice since the Delhi government didn't accept their application stating that they have no provision for foreigners to register their marriage under the Special Marriage Act.
In Bhumika Mohan Jaisinghani And vs. Registrar Of Marriage And Ors. 2019, the court held that the Delhi government was directed to modify the e-portal and amend its guidelines regarding foreign nationals allowing them to conveniently register their marriage in the capital.
The decision by the High Court of Delhi
The court said in its 8-page order (In Aryan Arianfar & Anr vs. State Govt, of NCT of Delhi and Ors.) ordered the SDM to amend its guidelines under the provisions of the Special Marriage Act, which does not take any objections, insisting on at least one of the person to be an Indian citizen. The court also mentioned that since the court order dated back to 2019 (In Bhumika Mohan Jaisinghani And vs. Registrar Of Marriage And Ors.), the status report indicating compliance with directions shall be filled within four weeks, failing which a senior official who is aware of the matter shall join the proceedings either virtually or physically.
The single-judge bench also directed the secretary of the concerned ministry of the Delhi government to give the details of the steps taken for amending the guidelines, along with measures taken for editing the provisions in the e-portal under the Act to ensure that the requirements of one of the parties being a citizen is not insisted upon. The matter is now due to be heard on April 20th,2023.
- The Delhi High Court- https://delhihighcourt.nic.in/
- Indian Kanoon- https://indiankanoon.org/
- The Special Marriage Act, 1954- https://www.indiacode.nic.in/
- The Legislative Department- https://legislative.gov.in/
- Marriage Certificate and Registration- http://ihbas.delhigovt.nic.in/
- Foreigners Can Register Marriages Under Special Marriage Act, Delhi Govt Must Take Steps To Amend Guidelines: High Court- https://www.livelaw.in/
- India Law Offices- https://www.indialawoffices.com/