Home / Editorial
Family Law
Same Sex Marriage with Foreign Citizen
« »19-Oct-2023
Source: Hindustan Times
Introduction
The Foreign Marriage Act, 1969 (FMA) is an Act of the Parliament of India that provides conditions for marriages of Indian citizens outside India. If an Indian citizen wishes to marry a foreign citizen or if both partners are Indian citizens but the marriage is to take place outside India, the FMA applies.
However, after the 5-judges bench verdict on the non-recognition of same-sex marriage in the case of Supriyo v. Union of India (2023) has given a stage to debates over the same-sex marriage with foreign citizens. The Supreme Court has adjudged several aspects of FMA and its application on same-sex marriages.
What is the Foreign Marriage Act, 1969?
|
What are the Basic Legal Requirements under FMA for a Valid Marriage?
- One of the parties must be citizen of India.
- No party has a living spouse.
- Both parties should be competent to give valid consent for the marriage.
- At the time of marriage, the groom must be at least 21 years old, and the bride must be at least 18 years old.
- Both parties must not be in degrees of prohibited relationship.
- It must not be in contravention of the local laws.
What is the Procedure of Marrying under FMA?
- The parties intending to marry under this Act should give notice in writing in the prescribed form to the Marriage Officer of the district in which at least one of the parties has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.
- The Marriage Officer is required to publish the notice in the manner specified in the Act.
- Any person may object to marriage within 30 days from the date of publication of the notice.
- If no objections are received, the Marriage Officer will issue a certificate of marriage after the expiry of the thirty days' notice period.
- The marriage certificate issued under this Act is valid evidence of the marriage.
What Aspects of FMA are Mentioned in Supriyo v. Union of India Case?
- The SC in this judgment mentioned that some petitioners challenged the constitutional validity of the FMA and prayed the SC to declare that FMA applies to any two persons who seek to get married, regardless of their gender identity and sexual orientation.
- Clauses (c) and (d) of Section 4 of FMA contain requirements which prevent this Court from interpreting the FMA as applying to persons regardless of their sexual orientation.
- Clause (c) requires the bridegroom to be at least twenty-one years and the bride to be at least eighteen years of age.
- Several proposals were made including affixing a minimum common age for same sex couple however, the proposals were rejected as such act would result into judicial legislation.
- Clause (d) requires the parties not to be within the degrees of prohibited relationship.
- The court cannot determine the prohibited degrees of a party in FMA because it may differ between the customs followed by both the parties as it differs from community to community.
- The court also observed that the conditions for marriages, under Section 4(1)(c) of FMA specifically require the parties to be a ‘bride’ and a ‘bridegroom’, i.e., it is gendered in nature.
What Problems would arise due to Non-recognition of Same-Sex Marriage under FMA?
- SC left to discuss the problem which may arise in case of same-sex marriage by Indian citizens with foreign citizens could be valid in that country and has no recognition in India.
- For example, if an Indian citizen marries with national of United States, he/she is married in US and unmarried in India.
Way Forward
- The SC has directed the Central Government to formulate a committee and reach to a solution for problems of queer couples which will include couples married under FMA.
- The court has determined the rights of queer couples and discrimination faced by them but mentioned their institutional limitation to prepare a judicial legislation.
- Hence, the legislature can formulate a law mentioning the rights and reliefs of queer couples including the ones falling under the ambit of FMA.