This Article is authored by Advocate Anil Malhotra.
Foreign Embassies and Diplomatic Missions in India decline to process permanent settlement visa applications of local bridegrooms who wish to migrate to foreign jurisdictions after having married a foreign non-Hindu national under Hindu Marriage Act (HMA) and have got registered such a Hindu marriage under the Special Marriage Act (SMA) in India. The reason and logic in such refusal of a foreign High Commission is clear. Only two Hindus by religion can marry under the HMA in accordance with the customary rites and ceremonies of either party thereto. Hence, a Hindu by religion cannot solemnize a ceremonial marriage with another non-Hindu in India, who is not professing the Hindu faith or religion. Consequently, in the opinion of a foreign mission, registration of such a Hindu marriage under the SMA as a marriage celebrated in other forms, is invalid. This stumbling block is irreparable since, registration of such a marriage under the SMA is deemed to be a marriage solemnized under the SMA. This confers status of husband and wife between the parties, which however is apparently not recognised or accepted by a foreign High Commission, for considering a visa application of a Hindu Indian spouse. The marriage already solemnised under HMA has been registered under the SMA as a marriage celebrated in other forms. This cannot be re-registered again additionally as a marriage solemnized under the SMA as a special marriage, since the same marriage cannot be registered twice. The paradox poses a legal dilemma for the parties.
The HMA is an Act to amend and codify the law relating to marriage among Hindus by religion and in which only the ceremonial marriage is compulsory, as registration under the HMA is optional. The SMA in contrast, is an Act to provide a special form of marriage in certain cases, and for the registration of such and certain other marriages celebrated in other forms. Hence, civil registration of marriage is an essential requirement under the SMA. Thus, any two persons, irrespective of nationality or religion, can perform and register their marriage as a marriage solemnized under SMA. However, SMA also additionally provides only registration of marriages, which have been celebrated in other forms. Therefore, marriages solemnized under the HMA, can be registered under the SMA, since HMA itself does not provide for any compulsory registration. This, as a community practice is the course normally adopted by Hindus who marry non-Hindus, as they register ceremonial Hindu marriages under the SMA, after the traditional Hindu marriage is solemnised by performing customary rites and ceremonies of either party thereto.
Traditionally and conventionally, unless and until, a marriage is solemnized in India in accordance with customary rites and ceremonies of either party thereto, it does not gain family or community acceptance. However, overseas travel or permanent migration to a foreign country, entails compulsory registration and ceremony alone does not serve the purpose. Marrying under the SMA by registration alone without ceremony, also does not generally find acceptance in traditional Hindu culture. Therefore, for a non-Hindu spouse to convert to Hindu religion, before solemnising a Hindu marriage, is the only way to validate the Hindu marriage and to confer legal sanctity of its registration under the SMA. However, the dilemma is compounded if the non-Hindu spouse has not converted to Hindu religion before solemnising a ceremonial marriage under the HMA, and the folly is realised when the foreign High Commission declines to accept the marriage certificate issued under the SMA which is accompanying the visa application for permanent immigration abroad. Retracing of steps for conversion of religion is difficult, and fresh registration of the marriage again for the second time is impossible. Cancellation of the earlier registration is equally unworkable, cumbersome and may entail a lengthy process with negative results.
The Constitution of India grants freedom of conscience and the right to profess, practice and propagate any religion of choice as a cherished ideal of secularism. The change from one religion to another is a consequence of an individual faith or belief and there is no precise definition of “religion”. Conversion like marriage is a solemn act. The right to conversion connotes an individual right of a person to embrace a faith or a religion, in preference to the one professed by him earlier, and may occur at the time of marriage. Conversion affects rights of succession, marital status and may have other social consequences. Most non-Hindu persons voluntarily embrace Hindu religion before marrying a Hindu. However, law, as declared by the Supreme Court, does not prescribe any particular formalities or rituals for conversion, though some religious texts require ceremonies to be performed for conversion in some religions.
Since no formal ceremony of conversion is prescribed under codified law, there seems to be a vacuum in statutory law for effectuating voluntary religious conversions. A non-Hindu may have willingly converted to the Hindu faith before solemnising a marriage as per customary Hindu rites and ceremonies, but no codified or statutory law will give him a conversion certificate. Thus, the need for enacting a process of law, to afford an opportunity to produce documentary evidence of a declaration to substantiate the plea of conversion, is a necessity, more so in the realm of NRI marriages. This will end the stalemate of uncertainty of proof of conversion required in Hindu marriages for non-Hindu spouses who have registered it under SMA, and who have converted to the Hindu faith before solemnising a marriage under HMA. Like registration of marriages, even the question of recording and registering of voluntary conversions for marital purposes done before marriage could also be considered by the Parliamentarians.
The Law Commission of India in Report No.235 on Conversion/Reconversion to Another Religion – Mode of Proof, has made serious salutary recommendations that proper guidelines on the subject of religious conversions will help avoiding conflicts. The fact remains, whether by statute law or executive instructions, the problem needs resolution. NRI marriages of Non-Hindus cannot remain in limbo. The dilemma of proving conversion before marrying voluntarily must be simplified. The process of law must provide an answer for a consistent clear path to be followed which should be transparent, uniform and visible easily to all those who need it.