Material and Formal Validity of Marriage under Indian and English Law

Introduction:

A marriage is a sacred bond between two people, who promise to stay together for the rest of their lives. To get married, there are a few general rules that are applicable in most of the countries, Firstly, the parties must have the capacity to marry, and secondly, they must undergo the necessary ceremonies of marriage.

When it comes to the validity of the marriage, a marriage may either be valid, void, or voidable. A marriage that has followed all ceremonies of marriage, both parties are in capacity to marry, of marriageable age and any other provision that apply, is considered to be valid. If any of the provisions are not fulfilled then the marriage would be void, or even voidable as per the jurisdiction of the court.

The term Material and Formal validity in most instances is associated with the sale of good contracts but when before a court, even a marriage is viewed as a contract.

Validity of Marriage under Indian Law

In India, all the marriages are governed by and take place in accordance with either the Hindu Marriage Act, 1955[1] (Hereinafter referred to as “HMA”) or the Special Marriage Act, 1954[2]. The HMA applies to Hindus whereas the Special Marriage Act, irrespective of their religion, applies to all citizens of India. As per the HMA, marriage must already be solemnized and only be registered such that the solemnization of marriage by the Marriage Registrar is not necessary. However, the Special Marriage Act allows for the solemnization of marriage as well as the registration by the Registrar of Marriage. In India, the marriageable age, i.e. minimum age-eligible for marriage, is 18 years for females and 21 years for males.

Conditions for a Hindu Marriage

In order for marriage to be lawful and valid under the HMA, the requirements laid down in Section 5[3] and Section 7[4] must be followed. Since the HMA regulates Hindu marriages, all parties to the marriage must be Hindus in compliance with section 5 of the Act, and if any party is not Hindu, the marriage would not be a valid Hindu marriage.

Under HMA a marriage will be considered as void instantly if[5];

1. At the time of marriage, either of the party has a living spouse and is not divorced. This is done so as to prevent the practice of bigamy.[6]
2. If either party is unable to give a valid consent at the time of the solemnization of the marriage or otherwise.
3. If either side has been exposed to repeated acts of insanity and violence.
4. If either of the parties are not of marriageable age.
5. The marriage of an impotent husband is null and void in the instance of the wife.
6. The parties shall be beyond the boundaries of the forbidden relationship unless the custom or procedure of either of them allows a marriage between the two parties. Sapinda relationships are provided under Section 3(f) of the HMA[7] and in accordance with Section 5[8] and Section 11[9] of the same act, the marriage will be void.

Marriage shall be voidable if it is at the discretion of the parties whether to terminate the marriage or to continue the marriage.

Conditions for a Muslim Marriage

Muslim marriages take place in accordance with the Muslim Personal Law (Shariat) Application Act, 1937[10] (hereinafter referred to as “MPL”) whereby it is seen as a contract rather than a sacrament. For a Muslim marriage to be valid under the MPL both the parties have to be Muslim, of sound mind with the capacity to contract, and should attain the age of puberty. Further, both parties should consent to the marriage and all formalities and ceremonies should rightly take place for a valid marriage.

Conditions of a Parsi Marriage

Parsi marriages take place in accordance with The Parsi Marriage and Divorce Act, 1936[11] whereby, similar to Muslim marriages, it is seen as a contract rather than a sacrament. For a Parsi marriage to be valid both the parties should not be related to each other in any of the degrees of consanguinity or affinity and both parties should be of marriageable age. Further, all required ceremonies have to be duly performed especially a ceremony called “Ashirvad” by a priest in the presence of two Parsi witnesses other than such a priest.

The following table provides information on the 5 most prominent religions in India in terms of the validity of marriage.[12]

Religion	Applicable Law	Nature of Marriage	Requirement of Witness	Prohibited Relations	Age of the Marriage	Ceremony
Hinduism	Hindu Marriage Act, 1955	Sacrament	No	Sapinda, lineal ascent and affinity	Man- 21, woman-18	Local and Customary, Saptapadi (if necessary)
Muslim	Muslim Personal Law	Contract	Two competent witnesses	Consanguinity, affinity and fosterage	Age of Puberty	Proper Offer and Acceptance with Dower
Parsi	The Parsi Marriage and Divorce Act, 1936	Contract	Two witnesses along with the Priest	Consanguinity and affinity	Man- 21, woman-18	Ashirwad ceremony by a Priest
Secular	Special Marriage Act, 1954	Not based on any religion.	Three witnesses along with Marriage Officer	Prohibited degrees of relationship under respective religions of the parties.	Man- 21, woman-18	Registration of Marriage
Buddhism	Hindu Marriage Act	Sacrament	No witnesses	Sapinda, lineal ascent and affinity	Man- 21, woman-18	Customary and Local

Validity of Marriage under English Law

The very primitive definition of marriage under English law was given by Lord Penzance in the case of Hyde v. Hyde and Woodmansee[13]stating, ‘I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.” Lord Penzance’s definition of marriage can be regarded as an accurate reflection of an English marriage even today.

Under the English law there exists the unorthodox rule that governs matters pertaining to the formalities of marriage – lex loci celebrationis.[14] This well-accepted principle of English Conflict of Laws provides that the law of the land applies to marriages while exempting marriages under the Foreign Marriages Act or marriages in a place where there is no local form applicable. Under English law, marriages are seen as contracts and are carried out under Marriage Act, 1994 (in United Kingdom).

The basic and common requirements such as the parties entering into a marriage must have no other spouse at the time of marriage i.e., they must be monogamous, both parties are in capacity to marry, and any other provision that applies.

Article 8 of the EC Convention on the Law Applicable to Contractual Obligations (Rome 1980) provides that material validity of the contract or of any term of the contract shall be determined by the law which would govern it under this Convention if the contract or term of the contract were valid.

Formal Validity is provided under Article 9 of the EC Convention on the Law Applicable to Contractual Obligations (Rome 1980) which states that a contract between persons in the same country that satisfies all formal requirements of the law-governed under this Convention or of the law of the country where it is concluded is formally valid. A contract between people in different countries is formally valid if all formal requirements are satisfied.

In terms of formal validity, the English courts have dealt with three major types of cases;

1. The question of consent and dispensations
2. The rites and symbols forming part of the ceremony itself, and,
3. The requirements of the parties’ presence at the ceremony

For marriages to have validity in the United Kingdom, all marriages are expected to be firstly monogamous and secondly carried out as per the requirements of the Marriage Acts 1949-94. The domicile of either party is not relevant. This also refers to a marriage that has taken place at the premises of a foreign embassy or consulate. For the purposes of nationality as well, a couple married in the United Kingdom can produce a marriage certificate of marriage issued by the and authorized minister of religion or by the Superintendent Registrar. However, it should still be noted that it is the duty of the parties involved to prove that they have the capacity to contract a marriage.

Polygamous marriages are strictly prohibited under English Law. Section 2 of the Immigration Act, 1988 clarifies that the establishment of polygamous households in the United Kingdom should be prevented. However, polygamous marriages arranged overseas/abroad can be legitimate if the parties are not domiciled in the United Kingdom and their country of residence allows for polygamous marriages.

A common law marriage is regarded to be the one that has not been contracted in accordance with civil laws, however, these marriages can sometimes be accepted for immigration purposes. For the purposes of British Nationality Acts, marriage is required to subsist according to the English Law. Therefore, a common law marriage cannot be treated as a marriage for the purpose of nationality for e.g. to establish a claim to citizenship, eligibility for naturalization, or any other method of deriving citizenship.

Conclusion

The validity of marriage in any country is seen as valid as per the requirements fulfilled by the marriage, i.e. for a marriage to be valid all necessary requirements have to be met such as the person has to be of sound mind capable to understand his marital obligations, of marriageable age, completed all necessary ceremonies, etc. Marriages that do not fulfill some of these clauses enter voidable territory or are just void. In other cases, such as forced marriages, unregistered marriages, etc they are seen as void by default in India as per the HMA as well as other marriage acts.

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References:

[1] The Hindu Marriage Act, 1955, No. 25, Acts of the Parliament, 1955 (India).

[2] The Special Marriage Act, 1954, No. 43, Acts of the Parliament, 1954 (India).

[3] The Hindu Marriage Act, 1955, § 5, No. 25, Acts of the Parliament, 1955 (India).

[4] The Hindu Marriage Act, 1955, § 7, No. 25, Acts of the Parliament, 1955 (India).

[5] Ambransh Bhandari, Marriages Under Hindu Marriage Act, B&B Associates (Jan. 6, 2020) https://bnblegal.com/article/marriages-under-hindu-marriage-act/#:~:text=For%20a%20valid%20marriage%20in,the%20Special%20Marriage%20Act%2C%201954

[6] Sarla Mudgal v. Union of India AIR 1995 SC 1531 (India).

[7] The Hindu Marriage Act, 1955, § 3(f), No. 25, Acts of the Parliament, 1955 (India).

[8] The Hindu Marriage Act, 1955, § 5, No. 25, Acts of the Parliament, 1955 (India).

[9] The Hindu Marriage Act, 1955, § 11, No. 25, Acts of the Parliament, 1955 (India).

[10] The Muslim Personal Law (Shariat) Application Act, 1937, No. 26, Acts of Parliament, 1937 (India).

[11] The Parsi Marriage and Divorce Act, 1936, No. 3, Acts of the Parliament, 1936 (India).

[12] Antim Amlan, What are the requirements of a valid marriage in India?, Myadvo  (Aug. 27,2019) https://www.myadvo.in/blog/requirements-of-valid-marriage-india.

[13] (1886) L.R. 1 P&D

[14] Brook v. Brook, 9 H.I.C. at 207.