“Legal Note on Tibetan Marriages in India”

By | April 20, 2017
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“Legal Note on Tibetan Marriages in India”

Disclaimer:  The remarks and opinions expressed in this article are those of the author and it is purely meant for public interest and for their legal awareness. Photos are taken from public domain and some with the consent of the person.

 A  Marriage  Made in Heaven.

  • Every young boy and girl wants to get married for love and for family.
  • Marriage is most essential part of any society, especially in India and for the Tibetans too. It is a sacred union of a man and a women for life, to the exclusion of others.
  • Marriages are made in heaven for souls – and by souls – long before the lives of the persons are involved. That’s why the couples are called as soulmates. Tibetans call it Karma- fate. There is a saying that no one can escape from fate or one’s Karma if you are meant to marry someone. Marriage is a vessel that holds the hearts and souls of you and your beloved one. If someone stabs your husband with defamatory words, the wife gets hurt and vice-versa.
  • With marriage, you are complete and satisfied in life. With marriage come respect and dignity, it gives the couple an identity and recognition in the society.
  • Marriage, also called as matrimony or wedlock, is a socially/ritually recognized union. Marriage is an acceptance of the society as husband and wife, which excludes the third person from tampering and trespassing this sacred union, a laxman Rekha/ boundary line is drawn by the society and by law to protect this Sacred Institution.
  • The institution of marriage is a widely recognized culture since immemorial time and is the most important factor for the stability of the family and of the society.
  • Marriage is not just a union of two individuals, but of two families within the society. There is a saying amongst the Tibetans that it is the parent’s responsibility and right to marry off their children, likewise, it’s the children’s duty to  pay the last homage  to their parents at the funeral. Therefore, it is also a sacred duty and sacred act.

A  Traditional Tibetan wedding .    System of sending Longchang proposal is still prevalent in the Tibetan Community in exile. It is practiced even amongst  the common people.

Long Chang  Proposal:   Tibetan wedding gifts from the groom’s side

  • When a man or a parents are  looking for a girl, he is supposed to seek her age, date of birth and her zodiac attribute and family background or caste. With all the information on hand, Astrologer  will be consulted  to check if her attributes are compatible with his. If so and if his parents are pleased with the lady in question,
  • they  would usually send a family friend to the girl’s house.
  • The Family Friend /matchmaker will bring along Khatag ie White silk scarf, Whiskey chang/Wine,  Butter Tea   when visiting the lady’s family..  His role is to see whether the girl’s family shows any inclination towards the proposal    OR        if the boy and girl are already in love, and after a period of courtship and permission to marry has been granted by each family, an elderly gentleman/family friend /Uncle  is asked to send Longchang or propose the marriage to the bride-to-be’s parents with gifts and Khatag and Whiskey bottle/Wine Chang.  Gifts are presented to the bride’s family once approval has been given.
  •  What are the  procedural Requirement of Traditional  Tibetan Wedding

On the auspicious date fixed by the Astrologer, wedding is performed either at the Hall or at home, the wedding day begins   with Tashi Sholpa Tibetan Opera Dance  for Good fortune for the event. On the wedding day, the groom’s family will invite a person with good reputation and a group of riders to fetch the bride. A well-decorated White Car  is sent to bring  the bride /Groom to a place of   Marriage.

A Couple make Toast of Wine/Chang at the beginning of the day and at the end of the day.  A Boy’s Side will   place  onto the back collar of the bride, a  five colored Flagged arrow /Stick  called Dutta . On the wedding day, an Astrologer/Show man  chosen will  lead the wedding repeats
Tibetan rhymed congratulatory words for the new couple.Instead of ancient custom of placing a  jade piece  to the bride’s head , Now a days a Ring is exchanged during the marriage ceremony.

Blessing from Spiritual Lamas:

Couples  go to Monastery  early morning  of the day of the Marriage to  get blessings from the their spiritual lamas. They may also take blessing for the Buddha Statute that is given as Dowry  from the bride side.

The detailed and complete formalities  of the traditional Tibetan wedding is described  at    http://windhorsetour.com/tibet-culture/tibetan-marriage-customs

 Whether Tibetan Monastery Performs Marriage?

Performance of Marriage by  Tibetan Monastery –  Distortion of  Tradition

 

Traditionally and even today, Tibetan monastics are not allowed to perform marriages. A marriage is considered as a secular affair but the monks can perform prayers for the marriage and to ward off evils or dispel any bad luck. The prayer is usually not done at the same place during/at the performance of marriage. However, on 22.4.2017, I happened to attend a friend’s marriage where the monks were invited to recite a prayer for the occasion just before the start of the scarf ceremony. This may be one of the few instances. However issuing a marriage certificate/letter from the Tibetan monastery  to register a Tibetan marriage is not based on facts as Tibetan monasteries/ monks/ lamas don’t perform a marriage like Indian priests do. Therefore, it would be a distortion of the traditional Tibetan view of marriage when few people, succumbing to lawyers demand, started getting letters from a monastery to prove their marriage having taken place in monastery because in fact, no Tibetan marriage ever takes place in a monastery nor do monks perform prayers as a essential  part of a marriage ceremony or a part of a marriage ceremony at all. The presence of the monk is not a requisite or part of the marriage ceremony to complete a  marriage.

   What are the Simple Formalities of  Tibetan Marriage to call it a  Marriage?

Now a days, to avoid evil eyes /chat or to avoid expenditure, Tibetans now made short cut of their wedding by making it a small  family affair,  Offering of  Khatas by  family and few relatives and a feast to the close friends and Close relatives fulfills the minimum requirement of Tibetan Customary marriage. Sometimes, only one side parents are present at the wedding, and sometimes, couples perform marriage even without the  presence of their parents. But this  simple family affair  will suffice the definition of Marriage in the eyes of Tibetan Society and law accepts the same.

Evidence /Proof of Marriage

  1. A) Marriage is very important and although pomp and show is not needed , a  simple  rituals may serve the purpose  but the existence of marriage  can  only be proved by documentary evidence only, ie marriage license/certificate.
  • Although Marriages are made in heaven, it is often undone in Earth due to various factors. Therefore, in many cases, a women need protection and security.
  • Many a times, Tibetans in India just live together without any formalities of marriage or rituals of marriage and they take this live in relation as akin to marriage and acknowledge themselves as married without the blessing and sanctity of marriage. In such a situation, A time may come where the MAN would  deny that they are married.

     Apron  as a symbol of   being married.

Whereas  Tibetan Women have to mandatory wear apron as symbol of marriage  although it is a recent developing customary  trend since arrival in Exile, as  in Tibet, even a Child would wear apron and  a new  evolving  customary practices among st the Tibetans in India that once women is separated from her husband,  an Apron is removed, which brings  a stain on the women, that she once wore the apron in the name of this man .

Wearing apron has become a  rule for the married women in the Tibetans in exile and couple in live in relation also wears apron as symbol  of being married.

Difference between  Marriage  Vs   Live in?                 Live-in relationships in simple terms can be explained as relationships in the nature of marriage where both partners enjoy individual freedom and live in a shared household, but without being married to each other.

Although the Courts has liberally professed that any man and woman cohabiting for a long term will be presumed as legally married under the law unless proved contrary.

The Supreme Court in the case of Chellamma vs. Tillamma under Justice Katju and Mishra has opined that, “a man and a woman even without getting married, can live together if they wish to. This may be regarded as immoral by society, but it is not illegal. There is difference between law and morality.

In Alok Kumar VS. State of Delhi, Delhi High Court in its decision on 10th August 2010, the court held that live-in relationships can be rescinded without legal consequence at any time. There are no strings attached to this relationship, this relationship creates no legal bonds between the parties. It’s a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of other party and one party can walk out at will at any time.

Therefore, one can say that Live in relationship is good and akin to marriage, but it is not a marriage .  The marriage has the higher protection in the eyes of law and  sanctity in the society.

 

  Whether live in Partner’s name can be incorporated in the documents like IC? 

  • In documents like IC, there is no provision to write your  live in partners name as spouse.  There is a space to write your father’s name or that of a husband or wife.   However,  Many Tibetans without having undergone any marriage or registration of marriage makes  a mistake of incorporating  their partners name in their IC (travel documents) and later get into problem when  separated.  The problem is that the  passport authority or Bureau office ask them to produce the divorce certificate, whereas  divorce is possible only when there was  existing  marriage  and Divorce cant be granted for live in relation.
  •  In  a case of  Pema Choezom,(name changed) 19.9. 2016   where the party  is already married  to her lawfuly wedded husband and is in the process of going abroad to join him in  USA, at that  moment, she was asked by Bureau Office  at Delhi to produce divorce certificate from her previous  husband,  as she has written the previous partner’s  name in her IC.   Now, getting divorce from her previous husband/partner  would  be futile as  divorce cant be granted backdated and until her divorce, her present marriage to her second husband would be void, thus, her only solution was to file a declaration suit before the executive Magistrate/Tehsildar with affidavit and  statement from both parties, and obtained a finding Order  on 21.11.2016 to say that she has inadvertently written her previous  live in  partner as her husband in her IC   they have not undergone any legal  marriage either by way of court marriage or any other customs or traditions applicable to them.
  •  Compulsory  Registration  of Marriage is Marriage ? Supreme Court of India has made the registration of marriage compulsory  in the year 2006 and some state even made punishment for non registration of marriage.
  • When i emphasized the importance of formalities of marriage or registration of marriage, i have come across at least four people who have  retaliated by saying Instead of  spending  money on  marriage which cracks within a year, which is a name sake marriage,  it is better to have love without such formalities of marriage .
  • It is to make known to the Tibetan people that the small rituals of wearing Khatak can make your union a lawful and acceptable in the eyes of society and it is to  further emphasize that your marriage must also be registered e under Law because the law requires proof of your marriage. Marriage means a marriage in the eyes of law that fulfills the essential requirements and  minimum formalities of law. Therefore, not just love, the essential formalities are also  equally important.

In India, a marriage can either be registered under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. Hindu Marriage Act is applicable to Hindus, whereas the Special Marriage Act is applicable to any Individual   (not necessarily Indian Citizen) and  irrespective of their religion.

Difference between Hindu Marriage Act and Special marriage act?

The Hindu Marriage Act is applicable in cases where both husband and wife are Hindus, Buddhists, Jains or Sikhs, or where they have converted into any of these religions. The first step in this process is to apply to the sub-registrar under whose jurisdiction the marriage has been solemnized, or either party to the marriage has been residing. Tibetan being Budhist, can apply for registration under HM Act.     The Hindu Marriage Act provides for registration of an already solemnized marriage, and does not provide for solemnization of a marriage by a Marriage Registrar.  However, the Special Marriage Act provides for solemnization of a marriage as well as registration of  a Marriage already solemnized as per Tibetans customs or any forms.

A)  Date of Appointment

In case of Hindu Marriage Act, you will get an appointment within 7 to 10 days , but in case of Special Marriage Act,  it  usually take  from 35- 50  days as one month notice is mandatory to wait for any objection .  Mr. Passang and Dechen applied for registration under SMA oat Dharamsala n 17.4.2017 and date of appointment was 25.5.2017 which is 38 days.

 What is special about the Special Marriage Act, 1954

The Special Marriage Act is applicable to all citizens of India. Any person, irrespective of religion can solemnize and register their marriage under the Special Marriage Act, 1954.

  1. Persons belonging to different relations and faiths can have their marriage Solemnized under this Act.
  2. Marriages performed under other forms can also be registered under this Act.
  3. One of the parties should have resided in the Dharamsala for one month preceding the application of registration of marriage, which means Husband can be from Dharamsala and wife from Dehradun or any other place.                                    A)   Some Myth  about Special Marriage Act

Although the Special Marriage Act  was  intended for inter-caste marriage or when there is some foreign element involved,  however, the provisions is made so liberal  that any two individual irrespective of caste, or religion or nationality or citizenship,  can be solemnized or registered under this law .   It is not correct to say that  SMA is applicable only between foreigners or inter caste marriage,Yes,  it is applicable to any Individual, Irrespective of his religion or nationality or citizenship.

B) Myth about Place of Marriage for registration of Marriage:   A Tibetan married in Kollegal in 1999 and presently residing at  Dharamsala can get their marriage registered at Dharamsala under Special Marriage Act.   Many Tibetans  thinks that marriage must be solemnized at Dharamsala in order to register at Dharamsala, No,  it is not necessary that you have to mention Dharamsala as place of marriage when you apply for registration of the marriage already performed .

C) Double Marriage :    If you have already performed the Tibetan rituals of wearing khatak for your marriage, then you don’t have to file this Application and notice under section 5 of the special marriage Act for solemnization of Marriage. This section is for solemnization of marriage which means performing marriage by law or to say court marriage, whereas you only need to register your marriage already performed as per your Tibetan customs.

When you make  application under section 5 for the  solemnization of  their marriage under this act , it  means  a court marriage in lay terms and for that you will have to take Wedding Wows or Oath of Marriage as prescribed by law.

So, when you are already married under Tibetan customs and rituals , then by taking Wedding Wows or  Oath under section 12 of the Special marriage act, you are marrying for the second time. Therefore, you must differentiate between solemnization and registration of marriage. You are married once  on the day you got married for the first time.

Solemnization means you are marrying for the first time under law, and registration means you are already married and all you need is marriage certificate by registration of your marriage already performed at your home/any place  by wearing Khatak and rituals etc. There is nothing wrong in marrying again with the knowledge that you are marrying again. Your date of marriage will be the day of  the solemnization of marriage under Special Marriage Act.

D)  Form and Place of  Solemnization of Marriage under Special Marriage act

The marriage may be solemnized at the office of the Marriage Officer, or  you can request the  SDM to visit your place say Mcleod Ganj or CTA Staff Mess hall  to solemnize  your marriage.  The section 12 of Special marriage Act says  you can call the SDM  within a reasonable distance  upon payment of additional  fees. This facility is yet to be confirmed  at Dharamsala, although the law says so. Saif Ali Khan and kareena Kappor has called the SDM /Marriage officer to their residence for  their  Marriage under Special marriage Act.

Section 12 also says   The marriage may be solemnized in any form which the parties may choose to adopt which means you can also have your marriage as per Law and also as per your Tibetan Custom such as offering of scarf and exchange of rings and other ceremonies can be performed simultaneously at the time  of solemnization of marriage under Special marriage Act  but this may be inconvenient when marriage is solemnized at the office of SDM .

Apart from Khatak and  all, the following wows/oath must be taken before the SDM for solemnization of Marriage.

                 Wedding Wows or Oath under special Marriage Act

Before the SDM at Dharamsala, Bride and Bridegroom has to take Oath of marriage in front of three witness, in English or Tibetan language.

” I,      Tenzin    take you   Namgyal    to be  my lawful   and          the  Bride  will say

I,   Namgyal    take you Tenzin   to be་my lawful      husband”

                        ང་རྣམ་རྒྱལ་ནས་ཁྱེད་མིང་འབོད་……….ངའི་ཁྲིམས་མཐུན་གྱི་བཟའ་ཟླ་ལ་ངོས་འཛིན་བྱེད་ཀྱི་ཡིན།

In presence of the SDM at Dharamsala and 3  Witness,  Bride and Bridegroom  can  exchange Ring or  offer Kathag  and cut the cake etc

What are the documents required for  the solemnization and  registration of Marriage under special Marriage act?

Answer:   Both partners will need to fill and sign the Application under section 5 for solemnization and Section 11 for registration of Marriage   and submit it on person along with the following documents:

  1. a) Two joint passport size photographs
  2. b) Proof of Date of Birth : Self-attested copy of the Proof of Date of birth i.e. Birth Certificate or School certificate(for both ) or affidavit .

c)Self-attested copy of the  Aadhaar Card

4) Address Proof;    Letter from Settlement office as Address proof of both parties(for both) or  school, Institution  or Municipal Counselor.

Additional documents for Registration of marriage already performed

  1. a) two photographs of the marriage ceremonies for registration.
  2. b) Invitation card of marriage( for registration only)
  3. c) Affidavit of Marriage (for registration only)
  1. h) Three witness and their RC

Q  What is the procedure for solemnization of Marriage under Special marriage Act?

Answer:

1) An  Application and notice under section  11 with a separate  Declaration of the Condition and proof of non-relationship between the parties within the degree of prohibition(for both).

2) The persons intending to register their marriage under this Act have to give 6 copies of notice of objection in specified forms to the concerned marriage officer(for both solemnization under section 11  and registration under section 16 along  with the required documents.

3) A copy of the notice is affixed on the notice board of the registration office and a copy of the notice is sent to the parents and the  marriage officer of the area where either of the parties having present/permanent addresses for similar publication. Sometimes, when the person intending to marry/register their marriage, has no parents alive or different permanent/present address to send the Notice, the address of relatives should be given to send a notice for objection, if any.

4) After the expiration of one month from the date of publication of the notice, if no objections are received the marriage may be solemnized. In case of objection the marriage officer conducts an enquiry and the marriage is solemnized after the enquiry concludes.

5)  Physical Presence:

For registration of marriage, presence of both parties along with the witness is required to be present, for submission of documents of issuance of notice of intended marriage and during the actual solemnization i.e. while taking marriage wows/oath before the SDM.

For Solemnization of marriage, only one parties need to be present for filing if that one party is not resident at Dharamsala. One can make first filing ie notice with the presence of one party only.

 

Q  Who can be Witness to the Marriage Registration:

  1. i)  Name & Address of Witness

In the Memorandum of the Marriage, name and address of three witness should be given and copy of their RC /Adhaar Card to be given as proof of identity/address.

  1. ii) Physical Presence of Witness:

Applicants are also required to take a witness along with them to the Sub-registrar for marriage registration or solemnization of marriage.  The parties and the witness should be present two times, First time during the filing of the application and second time during the actual registration or solemnization of the marriage.

iii) Who can be witness:

A 65 year old Tibetan couple came to apply for Registration of their marriage solemnized 30 years ago  but they have brought two witness who are  in 20’s, which means at the time of marriage, the witness were not even born. A person who has seen, known and attended the marriage of the parties can be a witness, it is not to witness the registration of marriage. The concerned lawyer can also be included in the name of the witness for solemnization of marriage.

Q   What is the Purpose of the Marriage Certificate?

A Marriage Certificate is an official statement establishing the marital status of a couple. It is an important document, which one can rely upon to prove that they are legally married to someone, and for various other purposes like obtaining a passport, getting your spouse name incorporated in army records for pensions, opening a bank account, changing one’s maiden name, and applying for an income certificate, among other things. A marriage certificate is essentially the legal proof of registration of a marriage. It certifies the act of marriage, date, time and place where the marriage was solemnize

_____________________________________________________Disclaimer :     The remarks and opinions expressed in this article are those of the author Ms. Namgyal Tsekey and it is purely meant for public interest and for their  legal awareness. Photos are taken from public domain and some with the  consent  of the person.

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