No need to be Indian to wed under special law: Delhi HC

The Delhi High Court has held the law does not require at least one of a pair to be an Indian citizen for the purpose of registration of marriage under the Special Marriage Act.

Justice Prathiba M Singh allowed a Hindu Canadian citizen holding OCI card and a Christian American citizen to register their marriage here under the special law while noting that it said “any two persons” and not “citizens” can seek solemnization of their marriage under the Act.

The couple had approached the high court last year because, in spite of being a resident of the city for over six months, they were unable to apply online for registration of their marriage as the website required at least one party to be an Indian citizen.

“A perusal of Section 4 of the Special Marriage Act, 1953 leaves no doubt that any two persons can seek solemnization of their marriage so long as conditions therein are fulfilled. Sub-Sections (a), (b), (c) and (d) of Section 4 do not make any reference to citizens,” the court said in a recent order.

“The statute having made a clear distinction between 'any two persons' in the initial part, in contradistinction with 'citizens' in Sub-Section (e) of Section 4, it is clear that the requirement of at least one party being a citizen of India is not required under the Special Marriage Act,” ruled the court.

The court directed the Sub-Divisional Magistrate concerned to process the petitioner couple’s application for marriage registration in accordance with the prescribed procedure without taking the objection that one of them has to be a citizen of India.

The court, in its order, stated that the Delhi government guideline for registration of marriages, which mandated either the bride or the groom to be an Indian citizen, was contrary to the statutory provisions as well as earlier decisions of the high court, and sought a report on the steps taken to accordingly amend it.

“A status report shall be placed on record by the Secretary of the concerned Ministry GNCTD giving the details of the steps taken for amending the guidelines as also the steps taken for editing the requirements in the e-portal under the Special Marriage Act so as to ensure that the requirement of one of the parties being a citizen is not insisted upon,” it said.

The court observed that since the directions to amend the guidelines to enable foreign nationals to register their marriage were first issued in another matter in 2019, the status report indicating compliance shall be filed within four weeks, failing which, a senior official who is aware of the matter, shall join the proceedings.

The petitioners had earlier submitted the right to get married was part of their right to life.

In their plea, the petitioners, represented by lawyer Rishabh Kapur, had said there was no bar on non-Indians from getting their marriage solemnized and registered under the Special Marriage Act, 1954 as long as they comply with the requirements prescribed and that preventing two consenting adults from getting married under the Act was in violation of their right to marriage.

The matter will be heard next in April.