Foreign Nationals Can Register Marriage Under Special Marriage Act If Other Conditions Met; Indian Citizenship Not Mandatory: Delhi High Court

The Delhi High Court has held that foreign nationals can register their marriage under the Special Marriage Act, 1954 (SMA) without being subjected to a requirement that one of the spouses must be an Indian citizen, provided they fulfil the other statutory and procedural requirements.

A division bench comprising Chief Justice DK Upadhyaya and Justice Tejas Karia observed that the amended guidelines specifically carve out an exception for marriages between two foreign nationals, dispensing with the citizenship requirement in such cases.

“A perusal of the Amended Guidelines indicates that for the purposes of registration of a marriage under the SMA, at least one of the parties, whether the bride or the groom, is required to be an Indian citizen,” the Court noted.

It said: “However, the Amended Guidelines carve out a specific exception where both parties to the marriage are foreign nationals. In such cases, the requirement that one of the parties be an Indian citizen stands expressly dispensed with, and the application for registration is required to be entertained by the concerned Marriage Officer, subject to fulfilment of the remaining statutory and procedural requirements.”

The Bench was dealing with a plea filed by a woman- Swedish citizen, holding an Overseas Citizen of India (OCI) Card, whose husband was also a Swedish citizen.

She had challenged the citizenship and permanent-residence conditions under Delhi Government's guidelines governing registration of marriages under the Hindu Marriage Act, 1955 (HMA).

The woman had married her husband on March 14 at an Arya Samaj Mandir in the national capital according to Hindu rites and ceremonies.

She contended that her marriage was governed by the HMA and challenged the requirement that at least one spouse be an Indian citizen having permanent residence within the jurisdiction of the concerned Marriage Officer.

The authorities opposed the petition, contending that the woman failed to establish that the HMA applied to her marriage.

The Marriage Certificate issued by the Arya Samaj Mandir recorded only that the marriage was solemnised according to Hindu rites and ceremonies and did not establish the religion of either party or the alleged conversion of her husband to Hinduism.

The Court said that apart from the assertion that the woman's husband had embraced the Hindu faith prior to the solemnisation of the marriage, no material was placed on record to evidence such conversion.

It noted that the Marriage Certificate issued by the Arya Samaj Mandir recorded that the marriage was solemnised in accordance with Hindu rites, ceremonies and customs; however, it neither recorded the religion professed by the Parties nor established the conversion of the husband to Hinduism.

“In the absence of any independent material substantiating such conversion, the mere solemnisation of the marriage in accordance with Hindu rites cannot, by itself, establish that the Petitioner's husband was a Hindu within the meaning of Section 2 of the HMA,” the Court said.

The Court further held that the Arya Samaj Marriage Certificate could not, by itself, be regarded as conclusive either of the applicability of the HMA or of the solemnisation of a valid Hindu marriage thereunder.

Consequently, the Court held that the petitioner woman lacked the requisite locus standi to challenge the citizenship and permanent-residence conditions applicable to registration under the HMA.

The Court, however, noted that the woman and her husband had an alternative statutory mechanism available to them under Chapter III of the Special Marriage Act, read with amended guidelines which provide that where both parties are foreign nationals, they are entitled to apply for registration of their marriage under the SMA.

The Court noted that in such cases, the requirement that one of the parties be an Indian citizen is expressly dispensed with. Since both the petitioner and her husband were Swedish citizens, the Court held that they fell within the said exception.

The Bench also clarified that an OCI Card does not confer Indian citizenship and that it constitutes a form of registration under the Citizenship Act, 1955 and confers certain rights and privileges upon foreign nationals of Indian origin.

“It cannot, therefore, be equated with Indian citizenship for the purposes of the Amended Guidelines. Notwithstanding her OCI status, the Petitioner remains a foreign national for the purposes of the citizenship requirement prescribed thereunder,” the Court said.

Furthermore, the Bench rejected the woman's plea that the 30 days residence requirement under Section 15 of the Special Marriage Act should be relaxed on account of inconvenience.

It held that the residence requirement is jurisdictional as it determines the territorial jurisdiction of the Marriage Officer.

“Since the residence requirement forms the basis of the territorial jurisdiction of the Marriage Officer, it cannot be dispensed with solely on the ground that compliance therewith may cause inconvenience to the Petitioner,” the Court observed.

Accordingly, the Court declined to direct registration of the marriage without compliance with the requirements under Chapter III of the Special Marriage Act.

The Court, however, addressed the woman's grievance concerning the online marriage-registration portal, which allegedly relied upon Aadhaar-based authentication and did not adequately accommodate foreign nationals and OCI Card holders.

It directed the authorities to consider suitable modifications to enable applicants unable to use Aadhaar-based authentication, including foreign nationals and OCI Card holders, to verify their identity through alternative documents such as valid passports or OCI Cards, subject to applicable statutory and procedural requirements.

“Accordingly, if the Petitioner so requests, the Respondents shall permit the Petitioner to appear before the concerned authority through video conferencing, to the extent permissible under the applicable law and procedure,” the Court said.

“Accordingly, the Petitioner shall be at liberty to apply for registration of her marriage under Chapter III of the Special Marriage Act, 1954, in accordance with the applicable law and if the Petitioner submits any such application for registration of her marriage, the same shall be considered on its own merits and in accordance with the applicable statutory requirements,” it added.

Further, the Court also directed the authorities to consider upgrading the portal to permit authentication of foreign nationals through Passports, OCI Cards, or other appropriate means.