There have been cases in the present and the past where women have been facing
serious troubles mainly in Northern India after getting married to Non-Resident
Indians (NRI). The groom would either dump the bride here in India after
marriage or take her along for other reasons. The issue becomes all the more
prominent when a dispute arises and no one knows which jurisdiction to approach
and proving validity of the marriage becomes a daunting task.
Hindu Marriage Act and its connotations in different scenarios have unique
applicability but at the same time it is to be understood that the core remains
This article discusses about the scenario where parties are Hindus of Indian
origin and place of residence may vary from time to time.
The word "Hindu" in this article refers to all individuals
who come under
purview of Hindu Marriage Act 1955 section 2(1).
Jurisdiction And Domicile
The jurisdiction and applicability of the act is outlined in the section 1 and 2
of the Hindu Marriage Act.
Section 1 of the Act provides as under:
- Short title and extent:
The recent decision of the Delhi High Court has seized the controversy and made
the situation comprehensively clear.
- This Act may be called the Hindu Marriage Act, 1955.
- It extends to the whole of India except the State of Jammu and
Kashmir, and applies also to Hindus domiciled in the territories to
which this Act extends who are outside the said territories.
In Karan Goel v. Ms. Kanika Goel I (2021) DMC 193 Del. ; LQ/DelHC/2020/2682 it
was held as under:
"The Hindu Marriage Act, as it originally stood besides its coverage to the
whole of India, also applied to all Hindus domiciled in India. The Act was
subsequently amended and it was given an extended application. Accordingly
domicile in India was substituted by a new clause domiciled in the territories
to which this Act extends. This amendment was made with a specific purpose to
extend the provisions of the Act to all Hindus with such domicile, even though
for the time being, they are outside the said territories. Because of this
amendment, it was not open to a person governed by Hindu Law to contest the
matter on the sole ground that he is residing outside India and as such the Act
has no application to him".
Further, Section 2 talks about applicability of the Act.
- Application of Act::
- This Act applies:
- to any person who is a Hindu by religion in any of its forms or
developments, including a Virashaiva, a Lingayat or a follower of the Brahmo,
Prarthana or Arya Samaj,
- to any person who is a Buddhist, Jaina or Sikh by religion, and
- to any other person domiciled in the territories to which this Act
extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved
that any such person would not have been governed by the Hindu law or by any
custom or usage as part of that law in respect of any of the matters dealt with
herein if this Act had not been passed.
The intention of the legislature was to cover even the cases where a person
refuses to be governed by Hindu law raising a plea that he doesn't fall under
the purview of the Act for any reason including domicile. It is for the person
to prove that he doesn't fall under the purview of this Act. Merely because one
of the parties is not domicile of India does not restrain the other party who's
domiciled in India to invoke the provisions of the Hindu Marriage Act.
Where there is no denying of the fact that both the parties are Hindu and even
if one is domiciled in some other country and got married to the girl/boy of
Indian domicile, the Act very much applies.
It has further been made very clear by the Hon'ble High Court of Delhi in Karan
Goel Vs Kanika Goel (supra) wherein the court after assessing the scenario at
length where boy was a US citizen and Girl had Indian Citizenship, observing as
34. …Unless, it is proven otherwise by leading appropriate evidence, it cannot
be stated at this stage that courts in India are divested of the territorial
jurisdiction to entertain a petition filed under the Act simply on the say so of
the appellant/husband. Once the respondent/wife has averred in clear and
unequivocal terms that she has not abandoned the domicile of India, it has to be
held that the divorce petition discloses a valid cause of action and cannot be
held to be barred under any law.
The Hon'ble High Court further clarified whilst taking care of all the aspects
and held as under:
35. If we accept the contention of the appellant/husband that both the parties
must be domiciled in India for a petition to be maintainable in India, it would
lead to an absurd and untenable inference that after the marriage, if a wife is
abandoned in a foreign land on being deserted by the husband, she will be left
with no remedy other than to institute/contest the case in a foreign land where
she may have no financial means, wherewithal or support for the same.
36. The marriage between the parties herein having been solemnized under the
Hindu Law, can only be dissolved on the grounds set out in Section 13 of the
Hindu Marriage Act. Irretrievable break down of marriage is not a ground
available under the said provision. It therefore, does not lie in the mouth of
the appellant/husband to claim that courts in Illinois, California had acquired
prior jurisdiction in the matter merely because he had approached the said
courts for seeking divorce against the respondent/wife on grounds that are not
even available under the Act. In fact, it will be for the appellant/husband to
establish the validity of the decree of divorce granted by the foreign court in
his favour on the ground of irretrievable break down of marriage. [Refer (1991)
1 SCC 451, Y. Narasimah Rao & Ors. Vs. Y. Venkta Lakshmi & Anr
It was also held as under:
22. The Hindu Marriage Act applies to all Hindu domiciled in the territories to
which the Act extends. A combined reading of Sections 1 and 2 with Section
19(iiia) contemplates a situation where even if the wife is domiciled in India
and the husband is not, remedies under the Act can be availed of by the wife. A
glance at Section 19 of the Act shows that it offers multiple options as to the
local District Court where a divorce petition can be presented.
It includes the
place where the marriage of the parties was solemnized or where the respondent
resides at the time of presentation of the petition or in case the wife is the
petitioner, where she is residing on the date of presentation of the petition or
where the petitioner is residing at the time of presentation of a petition in a
case where the respondent at that relevant point in time, is residing outside
the territories to which the Act extends, as contemplated in Section 1(2).
The above discussion on the jurisdiction makes it very clear that in case one of
the parties is still domiciled in India, Hindu Marriage Act applies to the
As far as issue in regard to domicile is concerned, Court has further made it
clear in following words in Karan Goel Vs Kanika Goel
I (2021) DMC 193 Del. ;
"The observations made by the Supreme Court in para 34 of Sondur Gopal Vs Sondur
AIR 2013 SC 2678, is extracted as under:-
34. Domiciles are of three kinds viz. domicile of origin, the domicile by
operation of law and the domicile of choice. In the present case, we are
concerned only with the domicile of origin and domicile of choice. Domicile of
origin is not necessarily the place of birth. The birth of a child at a place
during temporary absence of the parents from their domicile will not make the
place of birth as the domicile of the child. In domicile of choice one is
abandoned and another domicile is acquired but for that, the acquisition of
another domicile is not sufficient. Domicile of origin prevails until not only
another domicile is acquired but it must manifest intention of abandoning the
domicile of origin.
35. The right to change the domicile of birth is available to any person not
legally dependent and such a person can acquire domicile of choice. It is done
by residing in the country of choice with intention of continuing to reside
there indefinitely. Unless proved, there is presumption against the change of
domicile. Therefore, the person who alleges it has to prove that. Intention is
always lodged in the mind, which can be inferred from any act, event or
circumstance in the life of such person. Residence, for a long period, is an
evidence of such an intention so also the change of nationality.(emphasis
27. The captioned judgment refers to Section 1(2) of the Act and states that the
said provision applies to Hindus by religion in any form and takes in its fold,
sub-sects like Buddhists, Jains, Sikhs and covers all such persons who are
domiciled in India, not being Muslims, Christians, Parsis or Jews unless it is
proven that they are not governed by the Act. The conclusion drawn was that
Section 2 would apply to Hindus domiciled in territories contemplated in Section
1(2) of the Act including those Hindus who are living outside the territories of
28. In Kedar Pandey v. Narain Bikram Sah
, reported as AIR 1966 SC 160, on the
aspect of domicile, the Supreme Court held as under:
10. The law on the topic is well established but the difficulty is found in its
application to varying combination of circumstances in each case. The law
attributes to every person at birth a domicil which is called a domicil of
origin. This domicil may be changed, and a new domicil, which is called a
domicil of choice, acquired; but the two kinds of domicil differ in one respect.
The domicil of origin is received by operation of law at birth; the domicil of
choice is acquired later by the actual removal of an individual to another
country accompanied by his animus manendi. The domicile of origin is determined
by the domicile, at the time of the childs birth, of that person upon whom he is
A legitimate child born in a wedlock to a living father
receives the domicil of the father at the time of the birth; a posthumous
legitimate child receives that of the mother at that time. As regards change of
domicile, any person not under disability may at any time change his existing
domicile and acquire for himself a domicile of choice by the fact of residing in
a country other than that of his domicile of origin with the intention of
continuing to reside there indefinitely.
For this purpose residence is a mere
physical fact, and means no more than personal presence in a locality, regarded
apart from any of the circumstances attending it. If this physical fact is
accompanied by the required state of mind, neither its character nor its
duration is in any way material. The state of mind, or animus manendi, which is
required demands that the person whose domicile is the object of the inquiry
should have formed a fixed and settled purpose of making his principal or sole
permanent home…..(emphasis added)
29. Similarly, in Abdus Samad v. State of West Bengal
, reported as (1973) 1 SCC
451 , the Supreme Court observed as under:
6. ….. By domicile is meant a permanent home. Domicile means the place which a
person has fixed as a habitation of himself and his family not for a mere
special and temporary purpose, but with present intention of making it his
permanent home. Domicile of choice is thus the result of a voluntary choice.
7. Every person must have a domicile. A person cannot have two simultaneous
domiciles. Domicile denotes connection with the territorial system of law. The
burden of proving a change in domicile is on those who allege that a change has
30. Yet again, on the concept of resident and domicile, following are the
pertinent observations made by the Supreme Court in Union of India v. Dudh Nath
reported as (2000) 2 SCC 20:
27. ...........The classical division of domicile is well known. There are the
domicile of origin, the domicile of choice and the domicile of dependence. There
has been little change in the essential concept of these three
domiciles........28. In view of the above, the concept of domicile as canvassed
by learned counsel for the appellants with reference to change of nationality or
change of domicile from one country to another, cannot be imported in the
Moreover, Domicile and Residence are relative concepts and have to
be understood in the context in which they are used, having regard to the nature
and purpose of the statute in which these words are used.(emphasis supplied)."
It can be safely inferred from the observations and findings made by the Hon'ble
Supreme Court in various cases that merely because a person has acquired
citizenship of some other country does not exempt him from the purview of the
Hindu Marriage Act if the spouse is still domicile of India. The intention of
the legislature was clear if one of the parties has still not abandoned the
domicile of India, the act very much applies. It may not apply where both the
parties have relinquished the domicile of India and acquired the citizenship of
any other country.
Validity Of Ceremonial Marriage
We all know marriages in India take place differently in different parts of the
country. There have been cases where groom would challenge the validity stating
that ceremony lacked a specific action. The Indian courts have made it amply
clear in catena of judgments that once it is established that marriage was
performed as per Hindu rites, the Hindu Marriage Act would apply.
In the case of Ravindra Harshad Parmar v. Dimple Ravindra Parmar
Court, 11 December, 2014) where both the parties were US citizens at the time of
filing of divorce petition in India, the Hon'ble High Court observed that –
"In the present case, the evidence shows that the marriage was performed at Arya
Samaj. It is not the case of the appellant that Arya Samaj wedding did not
constitute a Hindu marriage ceremony as contemplated under section 7 of the
Act. Once it is established that marriage between the parties was performed as
per Hindu rites, the Hindu Marriage Act would apply by virtue of section
In the case of Karan Goel Vs Kanika
(supra), the marriage was solemnized as per
sikh rites i.e. Anand Karaj ceremony and Hindu Vedic rites and ceremonies in New
Delhi in October 2010, after the wedding Ms. Kanika Goel travelled to USA on
fiancé visa, and in March 2011, the couple solemnized their marriage again in
front of the County Circuit Court of Illinois in a civil marriage ceremony. At
the time of marriage in India, Mr Karan Goel was citizen of USA, while Ms.
Kanika Goel was domicile and citizen of India. When the issue of divorce and
child custody arose, Ms. Kanika Goel was a permanent resident of USA, however
Ms. Kanika Goel filed for divorce and child custody in India under section 13 of
Hindu Marriage Act.
Following are the observations made by the Family Court:
So far as the present matter is concerned, both the parties have Indian
domicile of origin, the marriage was solemnized as per Sikh rites and ceremonies
and at that time the intention of the parties was to be governed by their
personal law i.e. Hindu Marriage Act. If the proposition put forth by the
counsel for respondent/husband that both the parties must be domiciled in India
at the time of presentation of petition is accepted, then it will bring us to a
situation, where if a spouse after the marriage, deserts the other spouse by
going abroad and by acquiring domicile of choice, the spouse in India would be
left with no remedy to seek dissolution of marriage even on the ground of
desertion. By any stretch this cannot be intention of the legislature.
As it can be seen from the observations and findings above, the Indian court
claimed the jurisdiction under Hindu Marriage Act as it deemed the marriage with
Sikh and Hindu rites and ceremonies valid for the applicability of Hindu
Marriage Act. The intention of the legislature is to take care of spouses who
otherwise would not left with any remedy.
Hindu Ceremonial Marriage
Another ancillary issue which normally arises in such cases and is a matter of
concern is the nature of ceremony and its validity. What constitutes a valid
marriage is one of the significant aspect attached to the issues discussed
above. In this regard Section 5 and 7 are relevant to understand the concept of
valid Hindu marriage.
Section 5 of Hindu marriage act, 1955 provides conditions for a Hindu marriage:
5. Conditions for a Hindu Marriage:
A marriage may be solemnized between two Hindus, if the following conditions are
- neither party has a spouse living at the time of the marriage;
- at the time of the marriage, neither party:
- is incapable of giving a valid consent to it in consequence of unsoundness
of mind ; or
- though capable of giving a valid consent, has been suffering from mental
disorder of such a kind or to such as extent as to be unfit for marriage and
the procreation of children; or
- has been subject to recurrent attacks of insanity or epilepsy;
- the bridegroom has completed the age of twenty one years and the bride
the age of eighteen years at the time of the marriage;
- the parties are not within the degrees of prohibited relationship unless
the custom or usage governing each of them permits of a marriage between the
- the parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two;
*sapindas - one is lineal ascendant or descendant of the other
Two main constituents apart from others as mentioned in Section 5 and 7 of Hindu
Marriage Act, are that wherever both the parties are Hindus and marriage is
solemnized in accordance with the customary rites and ceremonies, it's a valid
In the case of Bibba v. Ramkall
(AIR 1982 AII 248)20, the court held that simply
with the intention to take the parties as married they go through certain
ceremonies, these will not make them the rituals prescribed by the law. It also
held that the ceremonies may vary according to the custom of each person. For
example, the presentation of a piece of cloth by the bridegroom to the bride
(pudava kodukal) is an important customary rite which has been practices among
the Nair caste in Kerala.
It is to be understood that the Hindu marriage ceremony consists of several
steps. The dichotomy is that there is no uniformity in the ceremony of the
marriage. There is no uniformity of ceremonies, rites, rituals or customs
in Hindu marriages, neither, there is strict rules in Hindu law to be followed
for solemnizing marriage nor there is consensus among pundits about essential
ceremonies to be followed by Hindu couples. The customs or rituals vary from
region to region or caste or family.
Section 29 of Hindu Marriage Act states that nothing contained in the Act is to
be deemed to affect any right recognized by custom or conferred by any special
enactment to the same. It further dilutes the assertion normally raised qua
ceremony of marriage, by the groom and trying to get it declared invalid.
According to Section 7 of the Hindu Marriage Act:
- A Hindu marriage may be solemnized in accordance with the customary
rites and ceremonies of either party thereto.
- Where such rites and ceremonies include the saptpadi (that is, the taking of
seven steps by the bridegroom and the bride jointly before the sacred fire), the
marriage becomes complete and binding when the seventh step is taken.
Before the codification, it was a rule that the marriage should be solemnized
according to shastric or customary rites. If the necessary ceremonies are not
performed then it is not a valid marriage.
The Hindu marriage as contemplated by the Act is a ceremonial marriage and it
must be solemnised in accordance with the customary rites and ceremonies of one
of the two parties and the word 'solemnise' means, 'to celebrate the marriage
with proper ceremonies and in due form'.
What amounts to customary rites or mandatory ceremonies is not clear. Once the
law says necessary ceremonies are saptapadi and on the other hand the same law
says it is not. Reference: Shakuntalabai and Anr v. L.V. Kulkarni and Anr
1989 SC 1359.
Therefore, the law recognized in Hindu Society does not make "saptapadi" an
indispensable custom in every incident of marriage. The court further stated
that, what is required is substantial compliance with only those rites and
ceremonies, performance of which is, by the customary law of either party,
peculiar to it and deemed as absolutely necessary, and non-performance of such
rites and ceremonies of prime necessity would be regarded as failure to
solemnize the marriage and no valid Hindu marriage can result. Though the law
emphasise the importance of the saptapadi, it does not insist upon the same. So
marriage may be complete by the performance of ceremonies other than those
referred when the custom of the case to which the parties belong are followed.
Clause (2) of Section 7 of Hindu Marriage Act clearly states that "where such
rites and ceremonies include Saptpadi", as such where there is some other Hindu
ceremony as refereed in clause 1, it is still a valid marriage. Parties may have
some other ceremonies like pheras (taking rounds of the holy fire) etc.
Interestingly, number of pheras also differ as per the rites and ceremonies of
each Hindu wedding. The marriage solemnised with the intention of two people
getting married and religious people getting the same solemnised in presence of
the invitees is a valid marriage.
Among the lingayats who predominantly reside in northern part of Karnataka and
southern part of Maharastra, the ceremonies is very simple where the bridegroom
gives the bride a pair of saree and blouse and there is tying of magalsutra
after haldi (turmeric) application ceremony. There is no ceremony such as
saptapadi or homa, yet it is a valid marriage. Among the Gujaratis, the ceremony
of the marriage is again different. The main ceremony is garlanding the groom by
the bride and vice versa which is called vara mala. And only four steps are
taken as saptapadi. There is no specific sign to say that they are married.
It is a problem when parties fail to get their marriages registered and one of
the parties raise the issue of validity. To avoid future ugly scenarios, parties
should insist on getting their marriage registered.
Registration Of Marriage Under Hindu Marriage Act
Registration of Marriage as per Section 8 of Hindu Marriage Act is optional.
Clause (5) of Section 8 provides that-
Notwithstanding anything contained in this section, the validity of any Hindu
marriage shall in no way be affected by the omission to make the entry.
With no compulsion for registration of marriages in India, it is necessary that
the Central Government makes provisions to register all marriages that have
taken place in their States/Union Territories or elsewhere. Thus, all marriages
in whatever form, should be registered in order to secure women from harassment.
The Hon'ble Supreme Court in Smt. Seema vs Ashwani Kumar AIR SC 2006 made
certain observations raising the concern over the issue in flowing words:
"The origin of marriage amongst Aryans in India, as noted in Mayne's Hindu Law
and Usage, as amongst other ancient peoples is a matter for the Science of
anthropology. From the very commencement of the Rigvedic age, marriage was a
well- established institution, and the Aryans ideal of marriage was very high.
The Convention on the Elimination of All Forms of Discrimination Against Women
(in short 'CEDAW') was adopted in 1979 by the United Nations General Assembly.
India was a signatory to the Convention on 30th July, 1980 and ratified on 9th
July, 1993 with two Declaratory Statements and one Reservation. Article 16(2) of
the Convention says "though India agreed on principle that compulsory
registration of marriages is highly desirable, it was said as follows:
"It is not practical in a vast country like India with its variety of customs,
religions and level of literacy' and has expressed reservation to this very
clause to make registration of marriage compulsory".
While a transfer petition was being heard it was noted with concern that in
large number of cases some unscrupulous persons are denying the existence of
marriage taking advantage of the situation that in most of the States there is
no official record of the marriage."
The scenario of marriages not being registered for whatever reason has been
taken to be a serious concern by the Apex Court. Either of the parties uses it
against the other in case any complexity arises in future. It is always wise to
get the marriage registered even if it is not a mandate by the law. Recently,
Government have planned to get the bill introduced titled as: The Registration
of Marriage of Non Resident Indian Bill, 2019
whereby every NRI who marries a
citizen of India or another NRI shall register his marriage within 30 days. In
case an NRI fails to register the marriage within 30 days, the passport
authority may impound his passport. If that becomes a law, it would definitely
bring respite to brides facing trouble at the hands of foreign grooms.
Marriage plays a very important part in society, and the intention of
legislature cannot be to make any marriage invalid without considering all the
facts. Domicile and registration are not important criterion for validity of a
marriage. Domicile may play a role when it comes to jurisdiction for issues
arising after the marriage.
From the discussion made herein this article, it can be safely concluded that
every marriage solemnised between two Hindus according to rites and ceremonies
as prevalent and accepted under the Hindus constitutes a valid marriage
irrespective of the domicile of the parties involved, in case one of the parties
is still domicile of this country or marriage has not been registered. It
becomes all the more important when there is an issue pertaining to bigamy where
party raising the plea of bigamy has to prove the ceremony.
When the case is a clear-cut case of two Hindus getting married as per Hindu
rites and ceremonies, there lies no confusion with regard to validity of such
marriage. People should not be allowed to take advantage of the anomalous
situations if a dispute arises later in time.
It can safely be inferred, if either party is domicile of India, they can seek
relief under Hindu marriage act regarding divorce, alimony, child custody etc.
Indian courts have to accept their jurisdiction regarding divorce, child custody
etc. as long as one of the parties was domicile of India. Only when both parties
are not domicile of India or not citizen of India, they may not claim relief
under Hindu marriage act.
- Hindu Marriage Act, 1955
- Mr Karan Goel v. Ms. Kanika Goel I (2021) DMC 193 Del. ;
- Sondur Gopal Vs Sondur Rajini AIR 2013 SC 2678
- Ravindra Harshad Parmar v. Dimple Ravindra Parmar (Bombay High Court, 11
- Bibba v. Ramkall (AIR 1982 AII 248) 20
- Shakuntalabai and Anr v. L.V. Kulkarni and Anr, AIR 1989 SC 1359.
- Smt. Seema vs Ashwani Kumar AIR SC 2006
Chief Judicial Magistrate
District Legal Services Authority,