Hindu Marriage Laws For People Who Live Abroad

by Jayaram V

Summary: This essay is about the laws applicable to Hindu marriages outside India regarding registration, divorce, legal custody, bigamy or polygamy

The Hindu marriage is a very elaborate, sacramental ceremony (samskara) and an important milestone in the life of an individual, which involves may rituals and customs. The practices and customs of Hindu marriages vary from region to region due to local and foreign influences. The Puranas suggest that even gods follow the same traditions and rituals for their marriage. Hindu marriages are not just about two individuals but involve families, friends and even community, which often prove to be a nuisance as well as a blessing.

Hindu marriages in ancient times

In ancient India, eight types of marriages were prevalent. Of them some were specific to certain castes. Their practices also varied for each. During that period, Hindu marriages were fully controlled and regulated by family traditions, social practices and religious laws as laid down in the Hindu scriptures. Hindu rulers were expected to be guardians of the Dharma.

However, in enforcing it, they were to abide by the laws as prescribed in the scriptures, with limited freedom to exercise their discretion or assert their authority. We do not know how far they respected the laws. Most marriage related matters were decided by the heads of the families or the heads of the local village bodies. This practice continues even today in remote parts of India where government interference is limited.

Until a few centuries ago, polygamy was an accepted practice in Hinduism and a common feature of Indian society. It had been practiced in India for over 4000 years. It was not viewed as a violation of Dharma. Men had the freedom to marry more than one woman for pleasure as well as for procreation. The practice was more prevalent among higher castes, especially the Kshatriyas.

The Dharmashastras or Hindu law books recognized polygamy and made provision for the inheritance of ancestral property to the children born from different wives. However, they also warned people about the consequences of indulging in pure carnal pleasures. There was also some justification for the practice in those days. Death and disease were common. Wars were frequent. People’s life span was limited and the death of infants was a common problem.

Polygamy helped people procreate more children and ensure the continuation of their family lineages and traditional, caste based occupations. Even gods seemed to have no objection to it as they followed a similar practice. Many Hindu gods have more than one consort, who acts as his source of power and energy. Kings, ministers, prominent priestly families, wealthy merchants, local chieftains and village heads also practiced it with few exceptions. Even during the British period, many Indian rulers maintained large harems and kept women in their protection for different purposes.

Divorce in ancient India

Hinduism does not favor divorces in the modern sense. Marriage is not for one life but several lives, and it is not just between two people but two souls. Indeed, the idea of legal separation is foreign to Hindu culture. Even today the rate of divorce in Hindu families is much less compared to those in other countries. In the past, there was no concept of legal divorce in Hindu society or legal custody.

In a marriage relationship, the husband had an upper hand. As the bread winner of the family, he had a lot of discretion. According to the law books he had the obligation to look after his wife or wives, if they remained chaste and abided by the Dharma. However, even on the slightest suspicion he had the right to abandon his wife, ignore her, declare her an outcast with the help of the elders or marry another, without serious consequences.

From the moral and spiritual perspective, marriage in Hinduism is an obligatory duty for those who have chosen to become householders. For them marriage is the means by which they have to achieve the three aims of human life namely, Dharma, Artha and Kama. They cannot fulfill these aims without their marriage partners. Therefore, a householder cannot escape from the bonds of marriage or live without a wife.

His wife is truly called a partner or associate in the practice of Dharma (saha dharma charini). Her duty is mainly to assist her husband in the performance of his duties and in pursuing the three aims. However, for the pursuit of the fourth aim namely Moksha (final liberation) her presence is not mandatory. Hence, in the past a husband had the right to abandon his wife and children and renounce world life without attracting any recrimination.

Hindu marriages after India’s independence

After India’s independence, most of the imbalances in Hindu marriages were rectified by the Government by passing the Hindu Marriages Act in 1955. The purpose of the Marriage Act was to codify the laws governing the marriage, separation and divorce and introduce uniform practices among the people of the faith in all regions and states. During the same period, the government also passed three other bills to put to rest any speculation regarding marital relationships in Hindu families and family inheritance namely the Hindu Succession Act (1956), the Hindu Minority and Guardianship Act (1956), and the Hindu Adoptions and Maintenance Act (1956).

These legislations were welcomed by many people of the Indian community, but the orthodox sections of Hindu society were not impressed by them or at least some of their provisions. They had the apprehension that the provisions of the Act would encroach upon their freedom of religious practice and contravene the secular provisions of the constitution. Besides, it gave the Government arbitrary and regulatory power over the marital relationships of Hindus and thereby their lives.

The Acts also challenged many long held beliefs and practices of Hinduism. For example, the Marriage Act does not recognize a householder’s right to renunciation if he is already married. As long as he is alive and not divorced, he has a legal obligation towards his wife and dependent children to look after them, and can take up renunciation only with her willful permission.

Secondly, under the provisions of the Dharma Shastras men enjoyed greater freedom and privileges, while women were subject to several disabilities. The Marriage Act removed the anomaly by treating the partners in a marriage as equals. It does not discriminate between them on the basis of gender or caste, but gives them equal importance, treating them as equals before the law and conferring upon them equal rights and responsibilities.

Thirdly, the law books did not prohibit child marriages or marriages between adult males and girl children, which was the norm in ancient times. They also allowed polygamy. The act (rightly and justifiably) prohibited both. It stipulated minimum age for both the groom and the bride. Besides, it introduced the idea of registered marriage, which meant that a marriage could be solemnized without performing any traditional rites and without disrespecting ancient customs.

Lastly, by an amendment to the Act the government clarified that the consent of the parents or the guardian was not mandatory to solemnize a marriage between two adults who attained the minimum age as prescribed by the law. By that, the Act not only challenged the patriarchy, caste rules and joint family tradition but also minimized the parental role and authority in their children's marriages.

The also Act removed several anomalies in the status of women and girl children in Hindu families and empowered the court to enforce its provisions against gender discrimination and ill treatment. Issues such as these created concerns among some sections of Hindus who believed that the Act was a clear violation of their religious freedom and ancient, family traditions.

The provisions of the Act fundamentally changed the character of Hindu marriages and limited possible abuse. However, it is doubtful whether it has completely resolved the problem of gender discrimination or outside interference in choosing one’s life partner. Due to the complex nature of Indian society, its reach is still limited. For example, in some parts of India local communities and village heads still wield enormous power and run parallel courts to resolve marriage related disputes. They have the power not only to decide who should marry who or how a separation or a divorce like situation should be dealt with but also punish those who do not honor their decisions or defy their orders.

Hindu marriages outside India

Legally, the jurisdiction of the Hindu Marriages Act is limited to Hindus who are Indian citizens and who may live in India or abroad. It is not applicable to Hindus who are not Indian citizens, whether they live in India or abroad. To address this problem the Government of India passed the Foreign Marriage Act in 1969. It applies to marriages “between the parties, one of whom at least is a citizen of India,” which is solemnized under the Act according to the tradition or before a Marriage Officer in a Foreign country.

It was subject to the conditions that neither party should have a living spouse, neither of them should be an idiot nor lunatic, the bridegroom must have completed 21 years of age and the bride 18 years, and both of them shall not fall within the prohibited relationship category (such as children from same gotra, same last name, etc.) The Act also explicitly prohibits bigamy or polygamy and stipulates punishment for those who contravene its conditions. Surprisingly, the punishments are mild and do not offer much deterrence if someone wants to misuse them.

The Act empowered the government to appoint or designate diplomatic or consular officers as Marriage Officers for any Foreign country to solemnize such marriages. The Act also has a twist. Marriages under the act must not contravene the local laws, nor they should be prohibited by any law which is in force in the foreign country. Probably it was done to ensure that the provisions of the Act would not be misused for Visa purposes or to violate the immigration rules of the foreign country. The Act also has jurisdiction over marriages where one spouse is an Indian citizen, even if they have not been solemnized under the act or by a Marriage officer.

Under the provisions of the Act, Indian courts have the jurisdiction to deal with divorce cases if one of the partners in a marriage is an Indian citizen or lives in India at the time of the proceedings, irrespective of whether it was solemnized under its provisions. For example, a Division Bench of the Madras High Court decided a case in 2010 where the wife was an Indian citizen and the husband was a foreign national. However, it was challenged by the latter on the grounds that the Indian law would not apply to him because he was a foreigner, and the marriage was registered outside India and not by a Marriage Officer.

Marriages involving foreign nationals

So far, legal matters regarding Hindu marriages outside India have not been problematic because widespread migration of Hindus to other parts of the world started only a few decades ago. Most Hindus who live abroad are first or second generation immigrants. Many Indian parents marry their children in India or with children from other Hindu families who have strong Indian ties. Wherever possible, they also register such marriages under local laws to avoid ambiguity.

Many developed countries have laws which are adequate to take care of Hindu marriages, although they may not take into consideration the peculiarities of Hinduism or its marriage traditions. For example, in countries like UK or USA, citizens, permanent residents or naturalized citizens can register the marriages or civil partnerships under the local laws. Some restrictions may still apply.

In England, Wales and Northern Ireland permission from parents or guardians is required if one or both the marriage partners are under 18. For registration, foreign nationals, whether they are permanent residents or not, must possess a valid visa and must be lawful residents of those countries. Couples also may opt for a religious wedding, but it should be done only after the marriage is registered in a register office by giving advance notice. In these countries nothing can prevent a citizen from marrying a person of a different nationality, unless that person is an illegal resident or has no valid  immigration status.

Need for proper legislation

From the above we may conclude that the laws enacted by the Government of India cover a majority of issues arising from Hindu marriages for Hindus of Indian origin who may live in India or abroad. They also partially cover the marriages between Hindus who are Indian nationals and foreign nationals, whether such marriages are registered in India or abroad. However, we still do not have clarity about marriages where both the partners are not Indian citizens or where one belongs to a different religion, and where both reside outside India.

There are many such issues where we do not have clarity. For example, in some countries, polygamy is an accepted norm. Since, Hinduism had a long history of polygamy we do not know what happens if Hindus who live abroad and who are foreign nationals, resort to polygamy, or marry two or more women without proper legal separation. Similarly, since the concept of divorce is alien to Hinduism people may challenge the jurisdiction of courts over divorce petitions in countries, which have not enacted clearly defined laws to regulate Hindu marriages. (A similar case was recently referred to me for my personal opinion).

Decisions by Indian courts, which are arbitrary in nature or rely upon selective information from Hindu Dharma also add to confusion. For example, in a recent case, the Gujarat high court decreed that a husband was entitled to divorce his wife if she did not allow his parents to stay with him or if she prevented him from taking care of the parents. The Bench argued that the son had a pious obligation to look after his parents according to Hindu Dharma and therefore the wife had an obligation to honor it, failing which the husband could ask for legal separation. In the process, it ignored the fact that divorce was not a valid practice under the same value system.

It is therefore necessary that Hindu communities in different parts of the world take up this matter with their respective governments and law makers and ensure proper legislation to protect and preserve their social and cultural peculiarities and the distinction of Hindu marriages. If the problem is not addressed in time, Hindus may lose their social and cultural distinction, as they become subject to common civil laws which may or may not recognize their ethnic status or their ancient traditions and practices.