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indian

by Mahak Singhal

What are the laws in India if a foreigner marries an Indian? Does that entitle him to claim permanent residence in India or even a passport? 

Special Marriage Act, 1954, [“SMA”] and Foreign Marriage Act, 1969, [“FMA”] govern the foreign marriages in India. Therefore, the client can register the marriage in either one of them. 

Indian Laws

Since the legal age for marriage in India for girls is 18 years and for boys, 21 years, the same rule extends to marriage with a foreign national, even though their country’s domestic law may prescribe a higher or lower age for marriage.

According to SMA and FMA there exists a 30-day notice requirement to be given in India if one partner is permanently and the other partner is temporarily residing in India. 

Section 5 of FMA – When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the First Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given, and the notice shall state that the party has so resided.

Section 5 of SMA – When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given. 

Procedure

The parties have to provide a notice 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. 

The form provided in the second schedule of the Special Marriage Act is to be provided as the notice.

  1. The notice will be published by the marriage officer by affixing it to the place in his office and will keep the original copy of the notice in the Marriage Notice Book. (Sec 6 of SMA)
  2. If a person has an objection to the marriage, he/she is allowed to raise the objection within 30 days from the date of publication of notice by the marriage registrar. (Sec 7 of SMA)
  3. During the court marriage, a declaration is to be signed by the parties along with three witnesses declaring that the parties are doing the marriage with their free consent. (Sec 11 of SMA)
  4. The marriage can be solemnized at any place at a reasonable distance in the Marriage Officer’s district. However, it will not be considered valid unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,-“I, (A), take the (B), to be my lawful wife (or husband)”. (Sec 12 of SMA)
  5. After the marriage is solemnized, the Marriage Officer will enter a certificate in a book that is kept by him, called the Marriage certificate Book and the certificate is to be signed by the parties to the marriage and the three witnesses. The certificate is deemed conclusive evidence of marriage being valid in India. (Sec 13 of SMA)
  6. The whole process of registration of marriage has to be completed within 3 months from the date of the notice was served. (Sec 14 of SMA) WHEREAS the time period is 6 months if the marriage is registered under FMA (Sec 16 of FMA). Otherwise, new notice will have to be submitted after the lapse of time.

Citizenship

The Court observed that any person who is married to a citizen of India and has resided in India for the past seven years can make an application for citizenship by registration. Section 5 of the Citizenship Act, 1955 deals with citizenship by registration which allows the central government to register someone as a citizen of India.

Citizenship of India by registration can be acquired by- 

  1. A person who is married to a citizen of India and is ordinarily resident of India for seven years before making an application for registration; or 
  2. A person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration.

Alternate – Overseas Citizen of India Cardholder [“OCI Cardholder”]

https://ociservices.gov.in

https://www.mha.gov.in/sites/default/files/OCIBrochure_23072021.pdf

If an Indian citizen or OCI Cardholder has a spouse of foreign origin then that foreign origin spouse can apply for registering as OCI Cardholder (under section 7A of the Citizenship Act, 1955), if the marriage has lasted for two or more years. 

Benefits of having an OCI Card –

  1. Grants the permanent residency in India.
  2. A person will not lose his/her citizenship of their home country. 
  3. Multiple entry lifelong visa for visiting India for any purpose.
  4. Exemption from registration with Foreigners Regional Registration Officer (FRRO) or Foreigners Registration Officer (FRO) for any length of stay in India. 
  5. Registered Overseas Citizen of India Cardholder shall be treated at par with Non-Resident-Indians in the matter of inter-country adoption of Indian children. 

https://www.mea.gov.in/images/pdf/oci-faq.pdf

Point 40 in this link states that an Indian Passport cannot be issued to an OCI Cardholder. It is only issued to a citizen of India.

Documents Required for a Marriage under the Act from the Parties:

  1. The notice signed by both parties. 
  2. Receipt of fees paid along with the notice. 
  3. Date of birth proof of both the parties.
  4. Residential address proof. 
  5. Affidavit – one each from both the bride and groom. 
  6. A statement affirming that the parties are not related to each other under the prohibited degree of relationships.

Additional Or Alternative Documents Required Only From Foreigners:

  1. Proof of residency and address in India. 
  2. A valid passport
  3. Original birth certificate
  4. Visa
  5. Certificate of single status
  6. Letters of no objection through the home country’s embassy regarding the free consent of the parties
  7. Death certificate or divorce papers, if required by the parties
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Women In Our Country

by Elsa Joel

DR. ELSA LYCIAS JOEL

In our society, I hear a hypocritical outcry of deteriorating traditional values when a woman walks out of her marriage. But no one raises voice or limbs in support of the larger number of financially dependent women struggling in bad marriages without rushing to get divorced. Young and old professionals are more prone to and professional at calling off their marriages and only women continue to shoulder the blame. Divorce isn’t the flavour of any season. It happens not because women are uncultured, characterless or non religious but because they are educated, aware and have a strong sense of self-esteem. Institution of marriage will be respected minus incompatibility, temperamental differences and intolerance.
Societal and familial pressure or trepidation of being frowned upon cannot force a man and a woman to live together. Many divorces are filled with bitterness, hostility and rancor because men assume mud fighting and slander can hurt women in a reputation-conscious society. When women encounter problems in our society, tackling them calls for not loud voices, processions or placards but an objective analysis of reasons which underlie them. Not by law makers and enforcers but by every other woman and citizen who adorns different roles to women in their lives. 
We always find it too improper to mention the real cause of women subjugation, especially if its religion or scriptures. As a result, a culture of pseudo analysis and pseudo action becomes the norm. We have been seeing and hearing expressions like ‘women reservation bill’, ‘Nirbhaya fund’, ‘special woman safety programme’ and so on being bandied about as part of political debates and talk shows. Politicians, as we all have seen, heard and known are supposedly well-trained suitably qualified people who position themselves right at the centre of action with the explicit purpose of not putting anything into action and get away with anything in politics.
Countries which have been able to make some real, visible progress in women safety and empowerment are those whose leaders and citizens have been able to confront the problems head-on to find solutions. The government of Iceland has been funding UNIFEM (United Nations Development Fund  for Women) for the past three years to promote gender equality and Iceland stands number one on the list of safest countries for women. By almost every metric compared to the rest of the world, Denmark is very safe and it comes second. Denmark also has a history of finishing as the #1 happiest nation in the world according to statistics. Gender equality is important to the Nordic countries: Political parties in Sweden, Norway and Iceland all have gender quotas, which promote female candidates for top roles. As such, every country has their own ideals of equality between men and women. But if one understands equality as just a respectful treatment minus violence, abuse and harassment another, we can’t call it equality until there is a gender pay gap or glass ceiling.
Agreed, men and women are different biologically and psychologically. Women play certain roles better than men and vice versa to complement one another, be it home or work place. Never to prove one is dominant over the other.
In India, the governments that came and went dragged their everything on passing the women’s reservation Bill for a decade. Rape storms batter our country and #Metoo -a -day routine followed by the blow-by-blow breaking of news by the media calls for a closer and quicker look of where we stand as the victim rarely an opportunistic one or the assailant, many a time the one with money and muscle power. Guilt is presumed; innocence has to be proved beyond all reasonable doubt makes the concerned lie low and patient till they die or disappear. Worse still, rapists will brazenly continue raping unmindful of reprisals which they know how to handle and sometimes adorn seats in legislative assemblies and Parliament too. With such brats at the top, not just lofty things but even normal living for Bharath mathas and putris of all age groups become a dream. Seems like it’s not just ‘United we loot’ but ‘United we molest and rape’.
I hear desi folks scream, ‘increased divorce rates’. I’ve heard mothers and grandmothers warning girl children differently such as, “control your anger, you are a girl”. Such social conditioning of girl children in our society never needed any extra effort from anybody because religion is an important part of our country’s culture. And all religions profess and practice male dominance directly or indirectly. All over our spiritual India, women fast on sacred days to ensure their husbands’ longevity but there is nothing similar in the scriptures that expect a man to follow any ritual. In spite of these rituals, many studies and statistics show that women outlive men for reasons known to all. Still, women attempt these rituals out of fear because they know what widowhood means in a country like ours. Most religious traditions have subjugated women.
Sexism is intrinsic to Hinduism and Buddhism. The Abrahamic religions of Judaism, Christianity and Islam have been worse. So much of howling and screaming is done against the objectification of women without realising thatnothing will change until scriptures are re-written.
Verse 2-213 of Manusmriti ‘ “Swabhav ev narinamiha dhooshnam…’ is translated as “It is the nature of women to seduce men in this world; for that reason the learned are never unguarded in the company of females”.
 Verse 5/151 when translated goes as this “Girls are supposed to be in the custody of their father when they are children, women must be under the custody of their husband when married and under the custody of her son as widows. In no circumstances is she allowed to assert herself independently”.
Manusmriti is in a way too primitive.
The Bible’s decree of male supremacy is known to the world. Most blessed mothers in the Bible are recorded to have given birth to sons only. Yes, a son as a firstborn is equated to a great blessing. The story of the adulteress who Jesus forgave and saved from being stoned is an example of how a combination of sex, a woman, public disgrace and double standard worked since biblical times. There was no mention of the man involved in the act. Without any mentioning the uphill battle remains steep for Muslim women. It is indisputable that women are excluded from Judaism’s most hallowed rituals and practices helping us understand that Judaism privileges are fundamentally male.
Sabarimala hullabaloo is a case in point. If discrimination to enter a temple is based on sexual orientation and caste , constitutional Articles related to freedom of religion and essential religious practices must be read to have a wider meaning to signal a new era of transformative constitutionalism. Freedom, rights and values embodied in our constitution should not be let to freeze in time. That would mean no possibility of positive change and progress to changing societal needs. Places of male gods cite menstruation as the main reason for denying women their religious freedom. How come theormative descriptive imagery and pronouns for god are male enabling people to sculpt them that way.
Being a Tamilian I pondered over ‘kallanalum kanavan pullanalum purushan’. It means even if the man is as insensitive as a stone or as useless as a blade of grass he is still ‘THE HUSBAND’, a visible god to the wife. Who else but a Male chauvinist must have uttered this proverb! And another insinuating comment from men goes as “Ellu na ennai ya vandu nikkanam” translated as  “Do more than what is expected of you” or  “going the extra mile” conveys the typical male attitude. Tamil literature has enough stories praising devout wives. Nothing wrong about it. But sometimes imaginations soar so high making stories sound ridiculous. One example is Vasuki Ammaiyar, a “Pathiviradhai” cooking delicious meal out a bag of sand given to her by Thiruvalluvar. Making such a story on a man of great intellect isn’t justifiable. And the pail that hung in mid air as this “Pathiviradhai” rushed to address her husband’s call half way through drawing water from a well is another story to motivate devotion in women.
Bharath Matha is one country where women are worshipped yet discriminated against and abused. It’s a national shame that despite more and more laws and funds, governments of secular, democratic and pluralistic India finds it difficult toensure that all sections of citizens feel equal, protected and secure. Were goddesses spared! Parvati created a boy to guard her doors from Shiva. Sita had to walk through fire to prove her loyalty. Unless mythologies are retold and understood in the right spirit, if not rewritten, these will be used to normalize or rationalize different forms of oppression or abuse, of course by the wrong people. 
Kathua,  Hathras, Unnao and many more can’t be forgotten, forgiven. Meanwhile, Rajvir Singh Pahalwan and Surendra Nath Singh ought to be educated on what amounts to rape. How does Surendra Nath Singh know that sanskar hasn’t been instilled in victims?  The Hathras district court was forced to stop the trial proceedings after Hari Sharma and his son Tarun Hari Sharma,  one of the advocates of the accused, created a hullabaloo and issued threats. But how was the father- son duo handled after their misbehavior is yet to be known. Being blessed with common sense, I guess, interrupting court proceedings by words and deeds should be considered as gross criminal contempt of Court.

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The Womb is an e-platform to bring together a community of people who are passionate about women rights and gender justice. It hopes to create space for women issues in the media which are oft neglected and mostly negative. For our boys and girls to grow up in a world where everyone has equal opportunity irrespective of gender, it is important to create this space for women issues and women stories, to offset the patriarchal tilt in our mainstream media and society.

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