HINDU MARRIAGES IN JAMMU AND KASHMIR

LAWS INVOLVED

The Hindu Marriage Act, 1955 (HMA) is an Act to amend and codify the law relating to Marriages among Hindus in India except in the State of Jammu and Kashmir (J & K). However, it applies to Hindus domiciled in territories to which the HMA extends. In view of the special status conferred upon J & K by Article 370 of the Constitution of India, the Jammu and Kashmir State Legislature has enacted the Jammu and Kashmir Hindu Marriage Act, 1980 (JKHMA) which extends to the whole of J & K. The JKHMA is an Act to amend and modify laws relating to marriage among Hindus in J & K. Like the HMA, the JKHMA prescribes solemnisation of Hindu Marriages by customary rites and ceremonies, leaving registration of Hindu marriages optional and which cannot be invalidated by omission of registration. Till date, there are no enforceable marriage registration rules in J & K, though, The Jammu and Kashmir Hindu Marriage Registration Rules, 2012 have been circulated for eliciting comments/views/suggestions of public at large in pursuance to the decision of the J & K Cabinet of Ministers of 28 June 2012. However, till date, the said Rules have not been enforced in J & K. The Special Marriage Act, 1954 (SMA), which is an Act to provide for special form of marriages and for divorces between any two persons in India, irrespective of religion or nationality, is not applicable in J & K. However, SMA is applicable to citizens of India from the J & K who are domiciled in the territories to which the SMA extends. Thus, if Indian citizens from the State of J & K are domiciled in any other part of India, their marriage can be registered under SMA.   

CONTENTS OF JKHMA

The JKHMA applies to any person who is a Buddhist, Jain or Sikh by religion and to any other person who is not a Muslim, Christian, Parsi or Jew by religion. The expression “Hindu” in the JKHMA shall be construed to include a person who though not a Hindu by religion, is, nevertheless a person to whom the JKHMA applies. A marriage between two Hindus can be solemnised between any two Hindus, inter-alia, if the bridegroom has completed the age of 18 years and the bride the age of 15 years at the time of the marriage. If the bride has not completed the age of 18 years, consent of her guardian is necessary for marriage, which if not obtained can be a ground for annulment of the marriage. Other than age of majority, consent of Guardian and choice of place for filing matrimonial petitions, the JKHMA is similar to the HMA. However, The Jammu and Kashmir Hindu Marriage Laws (Amendment) Bill, 2012, for amending age of majority to 18 and 21 years for bride and groom besides omitting consent and concept of guardianship in marriage, are pending before the Jammu and Kashmir State Legislature for its consideration.

THE ANOMALY

The status of a Hindu marrying a Muslim is in quandary in the State of J & K. Ceremonial marriages under personal laws cannot be possible between two persons of different religions and due to SMA not being applicable in the State of J & K, such a marriage cannot be registered. In the absence of their being no parallel religion free registration law like the SMA or any other religion free registration rules in J & K, no registration of an inter-religious marriage is possible in J & K. Temporary shifting of residence outside the State of J & K by such Indian citizens for seeking registration under the SMA may be besotted with grounds of domicile, even though a 30 day residence period is statutorily sufficient to qualify for registration for notice of intended marriage before the Marriage Officer under the SMA. Couples waiting to unite in the matrimonial bond seek legislative solutions.

COMPULSORY MARRIAGE REGISTRATION LAWS IN J & K

The Apex Court in Seema Vs. Ashwani Kumar, All India Reporter 2006 Supreme Court 1158, directed that “marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage is solemnised” In J & K, the JKHMA empowers the Government to make rules to provide that Hindus shall have their particulars registered for facilitating proof of marriages. The draft J & K Hindu Marriage Registration Rules, 2012 are pending approval of the Government in J & K. As regards Muslims, Section 3 of the Jammu and Kashmir Muslim Marriages Registration Act, 1981 provides that marriages contracted between Muslims shall be registered within 30 days of the Nikah ceremony but reportedly this Act has not been enforced. The Jammu and Kashmir Christian Marriage and Divorce Act, 1957, provides for registration of Christian marriages solemnised by the Minister of Religion. However, till date there is no State enactment in J & K providing for registration of marriages between two persons professing different religious faiths or beliefs.

THE PROBLEM COMPOUNDED

Marital discords between Hindu couples living outside J & K and which have escalated from the tying of the vows of Hindu matrimony in J & K face territorial objections of maintainability upon matrimonial petitions being instituted in Family Courts outside J & K. Harried spouses living in J & K raise objections that marriages solemnised under JKHMA can only be dissolved in J & K in proceedings under the JKHMA. A beleaguered opponent claims that as an Indian citizen living outside J & K, the HMA applies equally to Hindus domiciled outside the territories of J & K irrespective of the solemnisation of the marriage in J & K under JKHMA. The dilemma was resolved recently by the erudite pronouncement of the Bombay High Court in Shashi Leekha Vs. Sheela Shashi 2012 (2) Hindu Law Reporter 520 holding that there is no express provision in the HMA to suggest that the presentation of such a petition would be barred. Conversely, if a Hindu who was a permanent resident of J & K was to perform his marriage outside J & K, he would still be governed by HMA. The Court also took notice of “destination marriages” evolved in contemporary times where parties may have married in J & K, which would have an answer of an emphatic “no” if petitions for their dissolution were to be held to be maintainable only in J & K. The Court held that there is no express bar or prohibition in the JKHMA for filing matrimonial petitions as per jurisdictional grounds available under the HMA which permits a wife to file a petition in a court within whose jurisdiction she is residing on the date of the presentation of the petition. Moreover, due to disparity of jurisdictional grounds for filing a petition, a Hindu wife cannot be discriminated under the HMA, if the similar ground is not available under the JKHMA.

POSSIBLE SOLUTIONS

In J & K, the enactment of a religion free marriage registration law on the lines of SMA for all persons, under the aegis of the verdict of the Supreme Court in Seema Vs. Ashwani Kumar, could be the legislative solution for registration of all marriages which may be solemnised under such civil law or are sought to be registered as marriages celebrated in other forms. Registration of religious marriages under separate personal laws would alone not solve the problem and Indian Courts would continue to perform a yeoman function in resolving such human problems on a case to case basis. Religion free registration of marriages is the only breakthrough. Till then, the relaxation of the concept of domicile or residence outside the State of J & K for permanent residents of J & K, wanting to solemnize inter-religious marriages, is the only administrative answer for a practical and an amicable remedy to this impasse   

In so far the issue of malady of registration of marriages otherwise is concerned, the recently enacted Punjab Compulsory Registration of Marriages Act, 2012, would be the possible resolution if a ceremonial marriage has been performed in accordance with the personal law of either of the parties. This Punjab law provides for compulsory registration of marriages solemnized under any law governing the parties irrespective of their religion, caste, creed or nationality. Any marriage solemnised outside the State of Punjab can be registered at a place where parties have their temporary residence in the State of Punjab.

HIGHLIGHTS AT A GLANCE – FACT FILE

·                     Hindu Marriage Act, 1955 (HMA) – An Act to amend and codify the law relating tomarriage among Hindus. It extends to the whole of India except the State of Jammu and Kashmir.  Applies to Hindus domiciled in territories outside. Provides ceremonial marriages in accordance with customary rites and ceremonies of either party. Registration of Hindu Marriages is optional leaving it to State Governments to make Rules.   

·                    Special Marriage Act, 1954 (SMA) – An act to provide a special form of marriage between persons in certain cases, for the registration of such and certain other marriages and divorce. Extends to the whole of India except the State of Jammu and Kashmir. Applies to citizens of India domiciled in the territories to which the SMA extends who are in the State of Jammu and Kashmir. Applicable to foreigners, Indian nationals and person of any religion. Provides solemnization of civil marriage and registration of marriages celebrated in other forms.

·                    Jammu and Kashmir Hindu Marriage Act, 1980 (JKHMA) – An Act to amend and modify the law relating to marriage among Hindus in the State of J&K. Does not apply to Muslims, Christians, Parsis and Jews. Provides ceremonial marriages by customary rites and ceremony between Hindus and registration is optional for which Government may make rules.

·                    Jammu and Kashmir Hindu Marriage Registration Rules, 2012 –  Provides for registration of Hindu Marriages solemnized in the State of J&K. Circulated for eliciting comments/ views / suggestions of public at large in pursuance to a decision of the J&K Cabinet. However, have not yet been finalised or enforced. 

·                    Jammu and Kashmir Muslim Marriages Registration Act, 1981 – Provides for registration of marriages contracted between Muslims within thirty days of Nikah ceremony. Reportedly, this Act has not been enforced in J&K.

·                   Jammu and Kashmir Christian Marriage and Divorce Act, 1957 -  Provides for registration of Christian marriages solemnized by the Christian Minister of Religion.

However till date there is no J&K State Legislation providing for solemnization or registration of marriages between two persons professing different religious faiths or beliefs and like the SMA, applicable outside J&K, there is no religion free marriage registration law in J&K.