Foreign Marriage Act, 1969: An Analysis

[FINAL DRAFT SUBMITTED IN THE FULLFILLMENT OF THE COURSE

CONFLICT OF LAWS/PRIVATE INTERNATIONAL LAW
FOR DEGREE OF B.B.A. LL.B (Hons.)]

SUBMITTED BY:
NAME: NEHA PALLAV
COURSE: B.B.A. LL.B (Hons.)
ROLL NO: 1838
SEMESTER: 9th

SUBMITTED TO:
DR. P.P. RAO

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,

MITHAPUR, PATNA – 800001
AUGUST, 2021.
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A. LL.B (Hons.) Project Report entitles “Foreign
Marriage Act, 1969: An Analysis” submitted at Chanakya National Law University, Patna is an
authentic record of my work carried out under the supervision of Dr. P.P. Rao. I have not submitted
this work elsewhere for any other degree or diploma. I am fully responsible for the contents of my
Project Report.

(Signature of the Candidate)

Neha Pallav
Chanakya National Law University, Patna
 ACKNOWLEDGEMENTS

I would like to thank my guide, mentor, Dr. P.P. Rao without whose constant support and
guidance this project would have been a distant reality.
This work is an outcome of an unparalleled infrastructural support that I have received
from Chankaya National Law University, Patna.
I owe my deepest gratitude to the library staff of the college.
It would never have been possible to complete this study without an untiring support from
my family, my parents.
This study bears testimony to the active encouragement and guidance of a host of friends
and well-wishers.

Name: NEHA PALLAV

Roll no -1838

Contents
INTRODUCTION.......................................................................................................................6

AIMS AND OBJECTIVES........................................................................................................7

RESEARCH QUESTIONS.........................................................................................................7

RESEARCH METHODOLOGY................................................................................................7

HYPOTHESIS............................................................................................................................7

SOURCES OF DATA................................................................................................................7

LIMITATION.............................................................................................................................8

History of the Act (jurisprudential aspect)..................................................................................8

Solemnization of Marriage........................................................................................................11

Critical Analysis of The Act.....................................................................................................17

Problem faced when Indians marry abroad...............................................................................20

Conclusion and Suggestions.....................................................................................................25

BIBLIOGRAPHY & WEBLIOGRAPHY................................................................................27

INTRODUCTION
No single piece of legislation in the world is ever an independent force. It is never flawless and
never entirely self-dependent. The Foreign Marriage Act of 1969 is one such piece of legislation
which is in force in the Indian Union. It is an act that was established to make provisions relating
to the marriage of citizens of India, outside the territory of India.

The main purpose of establishing this act was that in India, the people protected and governed by
these laws can select a marital law based on their religion and community-specific marriage laws
or can choose to follow the common laws of civil marriages in India which apply to the population
in general. Thus, the citizens have a choice between personal laws, i.e. the people of India belong
to different religions and faiths and are thus governed by different sets of personal laws in respect
of matters relating to family affairs like marriage, divorce, succession, etc. However, in India,
common laws are of two kinds, those being the Special Marriage Act of 1954, and the Foreign
Marriage Act of 1969.

In this project the first chapter will deal with the history of this act i.e., how this act actually
emerged. Further this chapter will also deal with the jurisprudential aspect.
The next chapter deals with the Solemnization of marriage under the Act. Further the next part
deals with the Foreign marriages and court’s view. The next chapter deals with the critical
analysis of this act. Next chapter depicts the problems faced in getting married abroad and its
proposed solutions. Lastly the next part deals with the conclusion and suggestions.

AIMS AND OBJECTIVES

The researcher tends:-

1. To study various provisions of Foreign Marriage Act 1969.

2. To know the how marriage is solemnized under this act.
3. To study various case laws related to it.

RESEARCH QUESTIONS

1. What is the Problems under this act?

2. What is the history of Foreign Marriage Act, 1969?
3. What are the various factors important for solemnization of marriage under this
act?
 RESEARCH METHODOLOGY
The researcher will be relying on Doctrinal method of research to complete the project.

HYPOTHESIS
The researcher tends to presume that:-

1. If any foreign marriage is not solemnized under this act then the parties cannot
claim relief for the time being in force
2. the citizens have a choice between personal laws

SOURCES OF DATA
The researcher will be relying on both primary and secondary sources to complete the project.

1. Primary Sources: Foreign Marriage Act, 1969

2. Secondary Sources: Books, newspapers, journals, and websites.

LIMITATION
 There is a time limitation for the researcher to finish the research.
 The researcher is limited to his own self for the research.
 History of the Act (jurisprudential aspect)

The history of Foreign Marriage laws in India

During the British period, Indians used to go abroad for higher education but mostly came back to
settle in India. However, after independence, people started moving to abroad for personal or
professional reasons and were influenced by different cultures. These migrants often married
native spouses either because of romantic alliances with their colleagues or subordinates or to
fulfil the requirements for Visa-regulations. After a time, these migrants started making
communities and interpersonal contacts. With the passage of time, their financial conditions and
standard of living improved. When they used to visit their ancestral homes, they started
influencing the local society with their western lifestyle.1

This introduced the concept of NRI’s after independence. “In the past, Indians migrated to foreign
lands for different reasons and acquired citizenship of the country of their domicile. 2These
‘Persons Of Indian Origin–PIOs’ are now called ‘Overseas Citizens Of India (OCI)’ as defined
under Citizenship (Amendment) Act, 2005”.3

1
Graeme Kirk,“Happy Families-The immigration procedure for spouses and dependents is not always simple” The
Economic Times, last seen on 1/09/21.

2
Anjali Dhingra, “Laws Related to Getting Married Abroad- Foreign Marriage Act, 1969”, available at
[Link] last seen on 1/09/21.

3
“Concept of Non-Resident Indian Marriages & Legal Issues – A Detailed Study”, Chapter
3(2006)
The emergence of the Foreign Marriage Act, 1969

After looking for the need of foreign marriage laws in India, the act which used to prevail in India
was the foreign marriage act, 1903.4 The Special Marriage Act, 1954 included some provisions
relating to foreign marriages involving Indian citizens marrying abroad.5

There was a considerable amount of uncertainty as to the law relating to foreign marriages. The
then existing legislation touched only the fringes of the subject and the matter was governed by
principles of private international law which were vague and by no means well settled, and which
could not be readily applied to different communities.

The special marriage act, 1954 was introduced to remove this uncertainty to some extent. In the
course of the debates in relation to the Special Marriage Act in parliament, it was urged that there
should be laws for marriages where one of the party is Indian Citizen and other may not be. In this
context, an assurance was given that the government would consider the issue and will introduce
comprehensive legislation on the subject of foreign marriages. As an outcome of that assurance,
the foreign marriage bill was introduced in the parliament.6

Fifteen years later, recognising the need for a separate law for foreign marriages, the new Foreign
marriage act, 1969 was introduced.7

Foundation of the Act

The FOREIGN MARRIAGE ACT, 1969 emanated from a bill moved in parliament in 1963 with a
view to implementing the 23rd report of law commission of India on the subject of foreign
marriages.8

4
The Foreign Marriage Act, 1903 Act 14 0f 1903

5
Special Marriage act 1954, pre 1969 version , ss 1(2), 2(a), 3(2), 4(e), 10 and 52
6
Bare Act, The Foreign Marriage Act, 1969, 1 (Universal Law Publishers, Delhi, 2018)
7
Halsbury’s Law of India, “Family Law I” (64) (Lexis Nexis, second edition/2014)

8
Foreign Marriage Act Bill, 1963
Modelled on the pattern of SPECIAL MARRIAGE ACT, 1954 and borrowing provisions from the
British and Australian legislation on foreign marriage, the 1963 bill finally became law on 31
August 1969.

Salient features of the 1963 Bill

The Bill is modelled on the SMA 1954 is subjected to certain important modifications which are
necessary considering the peculiar condition in our country. 9 The following are the salient features
of the Bill:

1. It provides for an enabling form of marriage which are more or less laying down
certain rules regarding the capacity of parties and conditions of validity of the marriage
and also provides for registration of marriage similar to those in SMA, 1954.
2. The only difference is that there rules are to availed for marriages outside India
or where one of the parties to the marriage is an Indian citizen provided that this act is not
in supersession of but is only an addition to or an alternative to any other form that might
be permissible to the parties.10
3. It lays down certain rules regarding the capacity of parties and conditions of
validity of marriage and also provides for registration of marriage similar to those in the
SMA, 1954.
4. The provisions of the SMA, 1954 in regard to matrimonial reliefs are applicable
to these marriages with suitable modifications. This act not only applies to marriages
solemnized or registered under the proposed legislation but also to other marriages
solemnized abroad to which a citizen of India is a party
SCOPE OF PRESENT LAW.

FOREIGN MARRIAGE ACT 1969 provides for:-

1. Conditions relating to solemnization of marriage,

2. Initial solemnization of new marriages,

9
Foreign Marriage Act Bill, 1963, Statement of objects and reasons

10
ID.
 3. Registration of marriages already solemnized under any other law in force in a
foreign country.11

Solemnization of Marriage

Validity of Marriage

A marriage under this act would be considered valid if it is solemnized:

i. In fulfilment of the conditions laid down by the enactment,

ii. In accordance with the procedure prescribed by the enactment.

A foreign marriage solemnized in accordance with the said statutory procedure will be presumed
lawful.12

Conditions for Solemnization of Marriage

At least one party must be a citizen of India.13

It is the foundation of the act of foreign marriage in India. The marriages solemnized under this
act require that one party is Indian or other party is a foreigner. The parties can be both Indian but
solemnizing their marriage outside India or one party can be a Non-Resident of India (NRI).

In this case, the marriage can be solemnized and registered in India or any other country from
where the foreigner belongs or is a citizen of. The other case may be when both the parties are a

11
Halsbury’s Law of India, “Family Law I” (64) (Lexis Nexis, second edition/2014)

12
Section 15, Foreign Marriage Act, 19692

13
Section 4, Foreign Marriage Act, 1969
citizen of India or are Non-residents of India and get their marriage solemnized under any foreign
law.

Monogamy

A foreign marriage has to be necessarily monogamous. At the time of solemnization of marriage,

neither of the party must be having a living spouse 14A foreign marriage in contravention to this
rule would be null and void15 when read with s. 24(1)(i) of Special Marriage Act, 1954. A
marriage being null and void means that it will not be a legal marriage in the eyes of law.

Neither party to a marriage, solemnized under this act, during the subsistence of that marriage,
contract any other marriage in India under any law, and either of them doing so will be guilty of
offence of bigamy under the IPC.16

Either party to a foreign marriage who is an Indian Citizen may not, during its subsistence,
contract any other marriage under my law, even outside India, otherwise, the party will attract the
anti-bigamy provisions of the Indian Penal Code.17

Mental Condition

At the time of solemnization of marriage, both the parties must be having a sound mind. Neither
party may be an idiot or a lunatic. If the marriage is solemnized in contravention with this
condition, it will be null and void.18

14
Section 4(a), Foreign Marriage Act, 1969

15
Section 18(1), Foreign Marriage Act, 1969

16
Section 19(1), Foreign Marriage Act, 1969, Section 494–495 of IPC, 1860

17
Section 19(2), Foreign Marriage Act, 1969, Section 494–495 of IPC

18
Section 4(b) of Foreign Marriage Act, 1969
Age of parties

At the time of solemnization of marriage:

i. The bride must have completed 18 years of age

ii. The groom must have completed 21 years of age19

A foreign marriage procured in violation to this would be termed as null and void. 20 If found
guilty, one has to undergo 15 days of simple imprisonment or fine of Rs. 1000 or both.

Prohibited degrees of relationship

The marriage cannot be solemnized between two parties if they come under prohibited degrees of
relationship as explained in special marriage act except where the custom governing at least one of
them permit the marriage between them.21

The special Marriage act states the category of men and women who comes under the prohibited
degrees of relationship in schedule 1 and Section 2(b).

Initial Solemnization of new marriages

 Give written notice to marriage officer in the district where at least one of the
parties have resided for more than 30 days. (S. 5)
 After receiving the notice, the officer keeps it with records in his office. (S. 6)
 Marriage can be solemnized by or in front of the marriage officer, at his official
house with open doors within prescribed hours. (S. 13)
 The marriage can be solemnized in any manner the parties choose to adopt. [S.
13(2)]

19
Section 4(c) of Foreign Marriage Act, 1969

20
Section 18(1) of Foreign Marriage Act, 1969

21
Section 4(d) of Foreign Marriage Act, 1969
  There must be an official declaration for the marriage in front of at least three
witnesses. [S. 13(2)]
 The declaration can be made in any language understood by the parties or in
case any or both the parties are not able to understand the language, it will be further
translated for the party in the language he/she is familiar with. [S. 13(2)]
 Marriage will be complete and binding after such declarations. [S. 13(2)]
 The whole process of marriage has to be completed within 6 months from the
date the notice was served. (S. 16)

In the case of Minoti Anand v. Subhash Anand, the marriage between two Hindus was performed
in Japan according to Japanese rites and customs and registered under the foreign marriage act. It
was deemed to be a marriage solemnized under the Foreign Marriage Act, vide section 18 of the
act. If in case a dispute arises, matrimonial reliefs would be available to the parties only under the
provisions of Special Marriage Act and not under Hindu marriage act as the marriage was
solemnized outside the territories of India.22

Registration of Marriage 

After the marriage is solemnized, parties can get themselves registered under the foreign marriage
act, irrespective of the nationality of the other party. The pre-existing marriage must be registered
under the act only when it satisfies all the conditions for a valid marriage given in section 4 of the
act.23

The Marriage Officer may refuse to register a marriage under this section on the ground that in his
opinion the marriage is inconsistent with international law or the comity of nations. For this, he
has to give the reason in writing. If in case the Marriage Officer refuses to register a marriage
under this section the party who has applied for registration can appeal to the Central Government
in the prescribed manner within a period of thirty days from the date of refusal by the marriage
officer; and the Marriage Officer will be binding by the decision of the Central Government on
such appeal.

22
Minoti Anand v. Subhash Anand,  2016(1) ALL MR 408

23
Section 17 of the Foreign Marriage Act, 1969
Registration of a marriage under this section shall come into action when the Marriage Officer
issues a certificate of the marriage in the prescribed form and in the prescribed manner and make
an entry in the Marriage Certificate Book, and such certificate shall be signed by the parties to the
marriage and by three witnesses. A marriage registered under this section is deemed to have been
solemnized under this Act from the day such certificate is issued.

In the case of Joyce sumathi v. Robert Division Brodie, the appellant wife was a resident of India
performing Christian faith and married at Baharain where the couple worked. The husband
deserted the wife who later on filed for divorce under the act. Although the trial court dismissed
the petition stating that the marriage was not registered under section 17 of the Foreign Marriage
Act but on appeal, the court held that any marriage solemnized under section 18(1) of the act or in
relation to any other marriage solemnized in foreign country where at least one of the party is an
Indian will be governed by Foreign Marriage Act and the wife’s petition for divorce was held
maintainable.24

Continuance of residence- Issue Solved

Earlier, for getting solemnized under the Foreign Marriage Act, the place in whose jurisdiction
marriage used to be solemnized, the parties were required to reside in that very place for at
least 3  years.

The Modi Government has acknowledged global realities and is trying to outreach to foreigners to
relax these conditions. The Home Ministry took suggestions from the stakeholders before
amending the Indian Citizenship Act, 1955. The proposal was of amending the law as per the
needs of the foreigners. The target was to allow breaks for a total period not exceeding 30
days during the prescribed period of one year stay in India before he or she can make an
application for Indian citizenship. 25Indians previously could not leave India even for a single
day in the one-year prescribed period before applying for Indian Citizenship.

In the case of Maria Linda Rodrigues v. Ashley Joseph Rodrigues, the court said that Continuous
residence for three years immediately preceding presentation of the petition is not necessary. 26 It is

24
Joyce sumathi v. Robert Division Brodie, Air 1982 AP 389
25
A man Sharma, “Modi’s outreach to foreigners: Marriage to Indian won’t mean staying in India before applying
for citizenship”, The Economic Times, 30 october 2014
26
M aria Linda Rodrigues v. Ashley Joseph Rodrigues, AIR 1993 Bom 110
enough that petitioner wife was resident of India and had resided in India for three years prior to
the presentation of the petition.

The act does not affect the validity of marriage outside its ambit

In the case of Smt. Joyce Sumathi v. Robert Dickson Brodie, where the marriage of a lady who
was a citizen of India with a man who was a citizen of England was solemnized in the British
political Agency, the marriage between the parties was considered to be a valid marriage.27

Critical Analysis of The Act

Not an alternative but an additional provision

The provisions provided in this act do not supersede any alternative provision but simply acts as
an additional provision.28 This means that when a person is marrying a foreigner or is marrying
in a foreign country, this act is available to them as an option to get their marriage solemnized
27
S mt. Joyce Sumathi v. Robert Dickson Brodie, AIR 1982 AP 389

28
Dylan Sharma, “The Foreign Marriage Act- A Critical Analysis”, Indian Folk (2017)
under the same. This somewhere degrades the importance of this act which is formulated
considering certain concerns in mind. It can be presumed that the statutes in India can work in
the absence of such act as well.29

Not a complete act

The Foreign Marriage Act, 1969 only deals with three factors relating to foreign marriages. The
first is the conditions for solemnization of marriage i.e. monogamy, age, soundness of mind and
prohibited degrees of relationship. Second, includes the process of solemnization of marriage
mentioned above and the third factor relates to the registration of marriage.

There are various other factors which are not dealt with in this act. These factors are mentioned
below:

Firstly, the laws dealing with divorce. In the case of divorce between the parties whose marriage
is solemnized under this act, no law pertaining to this situation is mentioned in the act.

Secondly, the laws relating to maintenance is also not dealt which can be aroused in at the time
of divorce of parties that one of the parties needs to be maintained after the legal separation of
the adults.

Thirdly, laws dealing with the citizenship status of the parties solemnizing under the act are not
mentioned.

Fourthly, the issues related to legitimacy and citizenship of the child born out of such
marriage are nowhere dealt with. The act nowhere explains the different conditions which can
arise when a child is born through procreation or adoption or any other way under this act.

The Courts failed to address another issue that while Section 18 provides for matrimonial relief,
for succession under Foreign Marriage Act, the parties seeking remedy cannot use any
provisions of joint family status, inheritance rights of parties to a civil marriage and the
succession law applicable to the parties and their minor children and their future descendants

29
Id.
found in the Special Marriage Act, as the Foreign Marriage Act has not specified any provisions
for this issue, which is silent on these matters.

So, even if the marriage was solemnized and registered under the Foreign Marriage Act, the
parties, and future descendants will have to approach the Court under the laws of succession
applicable in general cases.

Fifthly, the cases of nullity of marriage are not dealt with. The act although mentions the cases in
which the marriage will be termed as null and void, the act fails to address the issue in detail or
separately say what can be the probable consequences of entering into a marriage which is null
and void.

Sixthly, the act does not provide with any provisions for matrimonial remedies. Since the
grounds for relief in such cases are similar to those as covered in the Special Marriage Act, the
Foreign Marriage Act has provided that, after making necessary alterations to the provisions of
the Special Marriage Act, while not affecting the main point at issue, the parties will have
matrimonial relief.

For all these factors relating to these kinds of marriages, the act relies upon The Special Marriage
Act. This implies that this act cannot be read in isolation but will always need to be read with the
Special Marriage Act.

Prescribing Penalties: Not applicable to foreign citizens

When prescribing penalties, the punishments clearly apply only to Indian citizens and cannot
come into action if the foreign party to the marriage is guilty of such crimes. This limits the
scope of the Act as when in the case of desertion by one of the parties, if a petition is filed by the
other, challenging the said matrimonial proceedings on the grounds that the marriage cannot be
subjected to Indian laws.

So, if the issue raised questions whether the Hindu Marriage Act would apply when the marriage
is performed abroad and registered by the Marriage Officer of the country, as per Hindu customs,
the provisions of law will answer by stating that the Hindu Marriage Act applies only when both
parties are domicile of India, if the respondent is not an Indian citizen but belongs to the other
country, he will not be subjected to Indian jurisdiction and will thus not face any matrimonial
proceedings against him. So, in such cases, the Foreign Marriage Act failed to identify the
possibility of such cases due to which a wrongdoer under this Act will be able to escape
untouched by the law.

“May” in section 4 and 17 of the act

The act is just an enabling law and does not make it compulsory for the parties to initially
solemnize or register the marriage since the provisions dealing with them include ‘may’ and not
‘shall’ or ‘must’. If the foreign marriage is solemnized otherwise than under this act and never
registered under the foreign marriage act may be perfectly valid.30

Solemnizing marriage by the embassy

Under this act, the embassy is authorised to solemnize the marriage when at least one party is
Indian and the parties are living in abroad. In such a case, irrespective of the fact that one or both
the partners are Indians; the party needs to submit an affidavit by the court of India on a stamp
paper signed by a notary and advocate including stating that the parents in India consented and
do not have any objection with the marriage. This affidavit is to be produced by the Indian
partner only.31

The law asks only the Indian Party to get this affidavit. Moreover, for the solemnization of
marriage, the Indian party needs consent of parents in writing. Although being sane and adult,
the consent of parents is required which considerably restricts their freedom to marry and choose
a partner because in case the parents don’t consent for the marriage, their fundamental right to
choose a partner is infringed as per the Indian Constitution. If the parties are adult and of
marriageable age i.e. 18 for girls and 21 for boys, sane and are not in prohibited degrees of
relationship should be free to marry without anyone’s consent except the other party and the law.

30
Halsbury’s Law of India, “Family Law I”, 65  (Lexis Nexis, second edition/2014)

31
Rahul, “solemnizing marriage under Foreign Marriage Act” 1 (Lawyer’s club India, 2011)
 Problem faced when Indians marry abroad
In the last two decades, the trend of overseas marriages has been increasing at a high rate. Along
with this, the brides of overseas marriages have faced a lot of problems which ultimately led to
the abandonment by the husbands.32 The bride may be a victim of cruelty or there can be a dowry
demand. Following are the problems which are mostly faced by the spouse in a marriage abroad:

 The girl is abandoned by her in-laws or her husband. She is either sent back to
her home country or the husband leaves her in India saying that he will be sending
passport and visa but never called again. There have been cases where the girl reaches to
the airport and the husband never comes to pick her up and she is forced to live in an
unknown country without any resources.
 She is physically and mentally harassed by her husband and in-laws. The girl
is tortured and ill-treated to an extent that she either go back to her home or she is forced
to go back.
 It is discovered that the man had entered into bigamy or is having an extra-
marital affair. There have been cases where the bride founds that the man is already
married and is living with his first wife. He had entered into marriage because of family
pressure.
 There is a continuous demand for dowry before or after the marriage. The
parents of the girl are held to ransom to pay a huge amount of cash and kind for the well
being of their daughter. The parents are forced to pay such amount because the in-laws
could make the life of their daughter miserable and she stays on a high risk at her
husband’s house in an unknown country.
 There are instances where the man and his family have lied about or
concealed certain material facts about their background, marital status or financial
standing. They could have lied about the property they hold or the occupation and
earning of the husband or his marital status. Not every NRI is clean. There are people
who escape to other nations after committing frauds in India.
 The girl is taken to abroad and treated as house labour. The girl is taken abroad
and is treated as a maid who is supposed to work from morning to night.
 The girl is asked to pay for expenses for travelling and living in abroad.

32
Dylan Sharma, “The Foreign Marriage Act- A Critical Analysis”, Indian Folk (2017)
  There are cases where the boy marries the foreign girl in order to become a
permanent resident of the country.
 There are lenient laws in that foreign country on grounds for divorce.33 There
are certain repercussions, some of them are discussed below:
 The husband takes advantage of such laws and gets an ex-parte decree of
divorce which means that the court gave a decree of divorce without the presence
of another party.  
 The Indian courts deny giving maintenance to the wife because the case is
dismissed in the other country.
 If any criminal case is filed in India against the husband but the husband never
comes to India to appear in the trial
 There are issues related to custody of the child at the time of divorce and the
husband is reluctant to surrender the custody of the child.

The court’s perspective

In the case of Neeraja Sharaph vs. Jayant V. Saraph,34  the court has emphasised on the need to
consider legislative safeguarding of the interests of women and also suggested the following
specific provisions:

1. If Marriage between an NRI and an Indian woman has solemnized in India than
it may not be annulled by any foreign court.
2. Adequate alimony should be paid to the wife by the husband, in the case of
divorce.
3. The decree of Indian court should be made executable in foreign courts both on
the principle of comity by entering into reciprocal agreements and notify them under
section 44A of the Civil Procedure Code which talks about binding nature of foreign
decree i.e.; it is executable as it would have been a decree passed by that court.

33
Problems Relating to Overseas Indian Marriages. LOK SABHA SECRETARIAT

34
Neerja Saraph vs Jayant [Link], 1994 SCC (6) 461
Actions taken by the Government of India

The National Commission for Women was appointed as a coordinating agency at the
national level for dealing with issues pertaining to NRI marriages by Government of India vide
Ministry of Overseas Indian Affairs order dated 28th April 2009.

In furtherance of this, the NRI Cell was formally inaugurated on the 24th of September, 2009,
to deal with the complaints received from within the country and abroad resulting from cross
country marriages wherein there is any deprivation of woman rights or any issue involving
injustice to women.35

In a report of 2011-12, the total number of cases registered by the NRI cell was 480. Out of all
the states and Union territories, maximum cases were reported by residents of Delhi followed by
Uttar Pradesh, Haryana and Punjab. The maximum number of complaints were reported to India
i.e. 180 followed by the U.S. with 19 complaints.

Ministry of Overseas Indian Affairs (MOIA) launched a scheme in February 2007 to provide
financial assistance for obtaining legal aid/counselling through Indian Missions abroad. The
scheme has been launched in the USA, UK, Canada, Australia, New Zealand, Malaysia,
Singapore and Gulf countries.

A National Consultation on “Marriages to Overseas Indians” was organized by the

Ministry in February, 2006 following which the Ministry of Overseas Indian Affairs jointly
with the National Commission for Women (NCW), organized two regional workshops in
Chandigarh and Thiruvananthapuram in 2006 with the objective of involving the State
Commissions for women as well as the women organizations of the States concerned to spread
awareness.

The Bill has been introduced in the parliament which is an outcome of a joint initiative of the
Ministry of External Affairs, Ministry of Women and Child Development, Ministry of Home
Affairs and Ministry of Law and Justice.

35
Problems Relating to Overseas Indian Marriages. LOK SABHA SECRETARIAT
The objective of the Bill is to create more accountability and offer more protection against the
exploitation of Indian women by their NRI spouses. It envisages

i. Registration of Marriages by Non-Resident Indians;

ii. Amendment of the Passports Act 1967 and
iii. Amendment to the Code of Criminal Procedure 19 36

What can we do to deal with this issue?

To some extent, the repercussions of these marriages can be minimised if the girl and her family
keep themselves aware and attentive towards the circumstances. When the parents are handing
over the greatest gems of their lives to someone, carelessness can make them pay a lot. Here are
some of the suggestions which the family of the bride can adopt to save their child from misery:

 All the facts related to the groom needs to be properly verified. All the related
documents needed to be photocopied and kept with the bride and her parents. This
reduces the chances of fraud. This includes: 37
 Visa, Passport
 Voter, alien registration card
 Social Security No.
 Tax returns of last 3 years
 Bank Account No., statements
 License No.
 Property Documents
 Marital Status
 Employment details (qualification, post, salary, address of the Office, employers
and their credentials)
 Immigration Status (the type of Visa, eligibility to take the spouse to the other
country)
 Criminal antecedents

36
Bill INtroduced on NRI marriages in Parliament. Dipanjan Roy Chaudhury. (Feb 11, 2019)

37
Frauds and Problems related to NRI Marriages and what to do. Shreya Shikha. (Jan 20,    2017)
  Family background
 Always try to get the marriage registered. If the groom seems to be in a hurry,
try to convince him that it is just a matter of a few days. Keep the video recordings and
photographs of the marriage ceremony as proof as in many cases, the solemnization of
marriage is primarily questioned. For the same reason, do not keep the marriage a secret
or do it in hostility. It is better to invite more and more people so they know about the
marriage
 Try to avoid having a marriage abroad since people are not so well versed about
foreign laws. If you are more excited to enjoy this special occasion in a foreign country,
you can have your pre and post marriage ceremonies there.
 Be well versed with the marriage laws of the other country and the rights which
one can enjoy in cases of divorce or domestic violence.
 Open a bank account exclusively on the name of your daughter which she can
use in a foreign country in case of emergency.
 Keep the photocopy of the marriage certificate with you.
 Keep in touch with relatives and friends abroad and ask your daughter to do the
same.
 Do not give your passport or visa to any unauthorized person

Conclusion and Suggestions

The Foreign Marriage Act covers within its ambit, a marriage between an Indian and a Foreign
citizen or two Indian marrying abroad. Unlike the Hindu Marriage Act, The Foreign Marriage Act is
not concerned about religion. It focuses on the legal aspects governing the institution of marriage. Its
features are derived from, both, The Hindu Marriage Act and The Special Marriage Act.

A marriage, which is usually considered to be a family and a religious occasion, has its own legal
impacts, which is not given much importance. The Foreign Marriage Act, however, highlights these
legal implications of the institution of marriage. 38

38
Dylan Sharma, “The Foreign Marriage Act- A Critical Analysis”, Indian Folk (2017)
While the Courts need to address the flaws in this act, it must be appreciated as a protective law that
wholly protects Indians outside of Indian Territory, as the law requires a wider scope and application
to ensure that it effectively governs such special cases of marriages. While it was derived from the
basis and provisions of the Special Marriage Act, it has successfully understood where the people
need legal safeguarding in such marriages, and thus, despite a few legal fallacies, it is a piece of
legislation appreciated for giving the people more rights and freedom. 39

The first hypothesis i.e., “If any foreign marriage is not solemnized under this act then the parties
cannot claim relief for the time being in force ” is hence proved as Section 18 of the act says that if
any foreign marriage is not solemnized under this act then the parties cannot claim relief for the time
being in force. It further states that when the parties marry in a foreign country than the relief
can be claimed under this section. It supported it with the case Joyce Sumathi v. Robert Dickson
Brodie40 where the wife filed a petition for divorce u/s 27 of Special Marriage Act read with section
18(1) of this act. It was held that the petition was maintainable.

The second hypothesis i.e., “the citizens have a choice between personal laws” is also proved as
There was an article published in the ‘Indian Folk’ where the author introduces the origin of the
Foreign Marriage Act and refer it as a dependent piece of legislation which is in force in India. The
main purpose of establishing this act was that in India, the people protected and governed by these
laws can select a martial law based on their religion and community-specific marriage laws or can
choose to follow the common laws of civil marriages in India which apply to the population in
general.

Thus, the citizens have a choice between personal laws, i.e. the people of India belong to different
religions and faiths and are thus governed by different sets of personal laws in respect of matters
relating to family affairs like marriage, divorce, succession, etc.

39
Jyotsna Gynanashekar,” A Study Foreign Marriage Act, 1969”, Vol. 2, 1(2017)

40
Joyce Sumathi v. Robert Dickson Brodie,  AIR 1982 AP 389
 BIBLIOGRAPHY & WEBLIOGRAPHY
Statute
 Foreign Marriage Act, 1969
Books
 Bare Act, The Foreign Marriage Act, 1969, 1 (Universal Law Publishers, Delhi,
2018)

 Halsbury’s Law of India, “Family Law I” (64) (Lexis Nexis, second edition/2014)

Websites
 [Link]
proposed/foreign-marriage-act-1969
 [Link]
%20Foreign%20Marriage%20Act%20of,outside%20the%20territory%20of%20India

 [Link]
view_type=browse&sam_handle=123456789/1362

 [Link]
marriage-outside-country/[Link]