May 18, 2012 | By Editor
Ludhiana, Punjab (May 18, 2012): A draft of Sikh Marriage Act was sent to various Members of Indian Parliament by Sirdar Gurtej Singh. The text of draft is available on his blog. This draft is reproduced in verbatim as follows, for the knowledge of readers/visitors of Sikh Siyasat:
THE SIKH MARRIAGE ACT, 2012
An Act to amend, enact and codify the Law relating to Marriage among the Sikhs.
1. Short Title, Extent and Commencement:-
(i) This Act may be called the Sikh Marriage Act, 2012.
(ii) It extends to the Union of India.
(iii) It shall come into force at once.
2. Application of the Act:-
This Act applies to any person who is a SIKH by religion.
For the purpose of this Act
(a) The expression “SIKH” means a person who believes in Akalpurakh (One Eternal Being), the ten Gurus from Guru Nanak to Guru Gobind Singh, accepts Guru Granth Sahib as the Eternal Guru and does not subscribe to any other religion.
Explanation:- The following persons are SIKHS:-
(i) Any child legitimate or illegitimate, both of whose parents are Sikhs by religion;
(ii) Any child legitimate or illegitimate who is brought up as a Sikh and one of whose parents is a Sikh.
(b) “Anand Karaj Ceremony” means a marriage ceremony solemnized by at least two Sikhs between the consenting couple in the presence of Guru Granth Sahib. The “Anand Karaj Ceremony” shall be deemed to have been completed when the four “lawan” revealed by the fourth Guru in Rag Suhi are recited and the “Ardas” is performed.
(c) the expression “custom” and “usage” signify any rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Sikhs in any local area, tribe, community, group or family:
Provided that the rule is certain and not unreasonable or opposed to basic tenets of the Sikh faith; and
Provided further that in the case of a rule applicable only to a family, it has not been discontinued by the family;
Explanation:- The burden to prove the custom or usage will be upon the person who alleges the custom or usage.
(d) “District Court” means, court of District Judge and includes Additional District Judge, or any other civil court which may be specified by the Union or State Government, by notification in the Official Gazette, as having jurisdiction in respect of matters dealt with in this Act;
(e) “full blood” and “half blood”- two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives;
(f) “uterine blood” – two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.
Explanation.- In Clauses (e) and (f) “ancestor” includes the father and “ancestress” the mother;
(g) “prescribed” means prescribed by rules made under this Act;
(h) “parties” means “bridegroom and the bride” or the “husband and the wife”, as the case may be.
(i) “degrees of prohibited relationship ” – two persons are said to be within the “degrees of prohibited relationship”-
(i) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
(iii) if one was the wife of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or
(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.
Explanation- for the purposes of clause (i) relationship includes:-
(i) relationship by half or uterine blood as well as by full blood;
(ii) illegitimate blood relationship as well as legitimate;
(iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.
4. Overriding effect of this Act:- Save as otherwise expressly provided in this Act.-
(a) any text, rule or interpretation of law with respect to Sikhs or any custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.
5. Conditions for a Sikh Marriage:- A Sikh marriage shall be solemnized by Anand Karaj between a male and a female who are Sikhs if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage neither party is of unsound mind;
(iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
6. Registration of Sikh Marriages:-
(1) The registration of a Sikh Marriage shall be compulsory.
(2) The Union or State Government shall appoint a Registrar of Sikh Marriages in each revenue district and a Sub-registrar at the tehsil level and also such other officer for this purpose as required.
(3) Parties to the Sikh Marriage shall get the particulars relating to their marriage entered in such manner and subject to such condition as may be prescribed, in a Sikh Marriage Register kept for the purpose, within six months of the solemnisation of the marriage and the failure to do so will be punishable with a fine which may extend to five hundred rupees.
(4) The Sikh Marriage Register shall at all reasonable times be open for inspection and shall be admissible as evidence of the statements contained therein and certified extracts there from shall, on application, be given free of cost by the Registrar, the Sub-registrar or any other officer prescribed for this purpose.
(5) Notwithstanding anything contained in this section, the validity of any Sikh marriage, for the purpose of this Act, shall in no way be affected by the omission to register the marriage.
Restitution of Conjugal Rights And Judicial Separation
7. Restitution of conjugal rights:- When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may pass decree of restitution of conjugal rights accordingly.
Explanation- Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.
8. Judicial Separation:-
(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 11, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
Nullity of Marriage and Divorce
9. Void marriages:- Any Sikh marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i)and (iv), of Section 5.
Provided, that wherein, the marriage is null and void due to contravention of condition specified in clause (i) of Section 5, the legally wedded husband or wife, either of whom is not a party to the contravention of the above mentioned condition, shall also be entitled to present a petition under this section.
10. Voidable Marriages:-
(1) Any Sikh marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotency of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
(c) that the consent of the petitioner for marriage was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other then the petitioner;
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage on the ground specified in clause (c) of sub-section (1) shall be entertained if-
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered.
(1) Any Sikh marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:-
(i) has, after the solemnization of the marriage contracted another marriage or has had voluntary sexual intercourse with any person other than his or her spouse; or
(ii) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(iii) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
Explanation – In this sub-section the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.
(iv) has ceased to be a Sikh by conversion to another religion; or
(v) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation – In this clause,
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it require or is susceptible to medical treatment; or
(vi) has been suffering from a virulent and incurable form of leprosy; or
(vii) has been suffering from AIDS or any venereal disease of a communicable nature; or
(viii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
(ix) has been finally convicted and sentenced to imprisonment for a period of seven years or more;
(2) A Sikh marriage, whether solemnized before or after the commencement of this Act, may also be dissolved on presentation of a petition in this regard by the party in whose favour a decree of restitution of conjugal rights has been passed on the ground:-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties.
(3) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground-
(i) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(ii) that in a suit or any proceedings for maintenance, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or more.
12. Divorce by mutual consent:-
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of this Act, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
13. No petition for divorce to be presented within one year of marriage:-
(1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition under section 11 or 12 of this Act for dissolution of marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the court may, upon application made to it, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the court at the hearing of the petition that petitioner obtained leave to present the petition by any mis-representation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.
14. Divorced persons when may marry again:-
(1) When a marriage has been dissolved by a decree of divorce and the time for filing appeal has expired without an appeal having been presented, it shall be lawful for either party to the marriage to marry again after six months has elapsed from the date of decree of dissolution of marriage.
(2) Where an appeal has been presented against dissolution of marriage but has been dismissed, it shall be lawful for either party to the marriage, to marry again after six months has elapsed from the date of dismissal of the appeal.
15. Legitimacy of children of void and voidable marriages:-
(1) Notwithstanding that a marriage is null and void under Section 8, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such a child is born before or after the commencement of this Act, and whether or not a decree of nullity is granted in respect of the marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 10, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if, at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 10, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.
16. Punishment for contravention of certain other conditions for a Sikh marriage:-
(1) Whoever, having a husband or wife living, marries in any case in which such marriage, is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment which shall not be less than one year and may extend to three years and with a fine which shall not be less than twenty thousand rupees and may extend to one lakh of rupees.
(2) Where the court imposes a fine under sub-section (1) of this section, it shall also order the amount to be paid to aggrieved person out of the fine as payment of compensation, maintenance or costs.
(3) The proceedings under this section shall be undertaken by the court wherein the petition under section 9, 10, or 11 of this Act has been presented and it will be lawful for the court to convict a person under this section while deciding the petition under section 9, 10, or 11 of this Act and no separate complaint or criminal trial is required to be initiated before a court of Criminal jurisdiction.
17. Maintenance Pendent-lite and expenses of proceedings:- Where in any proceeding under this Act, it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the applicant the expenses of the proceeding and such monthly expenses as, having regard to the applicant’s own income and the income of the respondent, it may seem to the Court to be reasonable, during the proceeding.
Provided that the application for the payment to the expenses of the proceeding and such monthly expenses during the proceedings, shall, as far as possible be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.
18. Permanent alimony and maintenance:-
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purposes by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immoveable property of the respondent.
Explanation: The spouse of marriage which is void due to contravention of condition specified in clause (i) of section 5 of this Act, shall not be entitled to maintenance, permanent alimony or to claim any benefit under this section.
(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the Court is satisfied that the party in whose favour an order has been made under this Section has re-married, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.
19. Custody and maintenance of children:- In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with the wishes of children, wherever possible, and may, after the decree, upon application for said purpose, pass from time to time, all such orders and make provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.
Provided, that the welfare of the minor children shall be the paramount consideration for the court while proceeding under this section.
Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.
20. Court to which petition shall be presented:-
Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction:
(i) the marriage was solemnized, or
(ii) the respondent, at the time of the presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or
(iv) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or
(v) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he was alive.
21. Contents of petitions and service of summons:-
(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits, the facts on which the claims to relief is founded and shall also state that there is no collusion between the petitioner and the other party to the marriage.
(2) Every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints and shall also be supported by a duly sworn affidavit, and it may, at the hearing, be referred to as evidence.
(3) The court, under this Act:
(a) while passing an order for proceeding ex-parte against the respondent, if duly served or if has refused service or is evading service, shall ensure that the provisions of the Code of Civil Procedure with regard to service of summons have been strictly followed and complied with.
(b) while the summons were returned with a report that the respondent has refused to accept or is evading service, the court shall, before passing order for proceeding ex-parte, order the service to respondent be affected through proclamation and publication in a leading newspaper of the region.
22. Application of Code of Civil Procedure:- Subject to the other provisions contained in this Act and to such rules as framed under this Act, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure.
23. Power to transfer petitions in certain cases:-
(a) a petition under this Act has been presented to a District Court having jurisdiction by a party to marriage praying for a decree of divorce under Section 11; and
(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree of divorce under Section 11 on any ground, whether in the same District Court or in a separate District Court, in the same State or in a separate State, the petitions shall be dealt with as specified in sub-section (2).
(2) In a case where sub-section (1) applies,-
(a) if the petitions are presented to the same District Court, both the petitions shall be tried and heard together by that District Court;
(b) if the petitions are presented to in separate District Courts, the petition presented later shall be transferred to the District Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the District Court in which the earlier petition was presented.
(3) In a case where clause (b) of sub-section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, to transfer any suit or proceeding from the District Court in which the later petition has been presented to the District Court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.
24. Special provision relating to trial and disposal of petitions under the Act:-
Every petition/appeal under this Act shall be tried as expeditiously as possible, and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition/appeal on the respondent
25. Documentary and other evidence:-
Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.
26. Proceedings to be in camera and may not be printed or published:-
(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.
(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to twenty five thousand rupees.
27. Decree in proceedings.-
(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner is not any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of Section 11, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
(c) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and
(d) the petition is not presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.
(2) Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:
Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (iv), clause (v), clause (vi), clause (vii), clause (viii) or clause (ix) of sub-section (1) of Section 11.
(3) For the purpose of aiding the Court in bringing about such reconciliation, the court may, if the parties so desire or if the Court thinks it just and proper so to do adjourn the proceedings for a reasonable period and refer the matter to any person named by the parties in this behalf or to any person nominated by the Court if the parties fail to name any person, with directions to report to the Court as to whether reconciliation can be and has been effected and the court shall in disposing of the proceeding have due regard for the report.
(4) In every case, the court passing the judgment or decree shall give a copy thereof free of cost to each of the parties. Wherein the respondent was proceeded against ex-parte, the copy of the judgement or the decree shall be sent to him by a registered post.
28. Relief for respondent in divorce and other proceedings.- In any proceedings of restitution of conjugal rights or divorce, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.
29. Appeals from judgment, decrees and orders:-
(1) All judgments, decrees and orders made by District Court in any proceeding under this Act shall, subject to the provisions of sub-section (2) and (3), be appealable and every such appeal shall lie to the High Court.
(2) There shall be no appeal under this section on subject of costs only.
(3) No appeal shall lie to the High Court from a judgment, decree or order made by District Court with the consent of the parties.
(4) Every appeal under this section shall be preferred within a period of ninety days from the date of the judgment, decree or order.
Provided that the High Court may entertain an appeal after the expiry of the period of ninety days, if it is satisfied that there was sufficient or reasonable cause for not filing the appeal within the time limit.
30. Enforcement of decrees and orders.- All decrees and orders made by the Court in any proceeding under this Act, shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction for the time being are enforced.
31. Powers to make rules:- The Union or State Government may by notification in the official gazette, make rules not inconsistent with this Act to carry out the provisions of this Act.
(1) A marriage solemnized between Sikhs before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same “pravara” or belonged to different religion.
(2) Nothing contained in this Act shall be deemed to affect any right exercised before the commencement of this Act to obtain the dissolution of a Sikh Marriage recognised by custom or usage.
(3) Nothing contained in this Act shall affect the procedure of any proceeding pending at the commencement of this Act under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage, and any such proceeding may be continued in accordance with the procedure applicable before commencement of this Act.
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