“Marriages Performed by Notaries or Oath Commissioners Are Not Valid: Why Such ‘Marriages’ Are Forged Under Indian Law”
Introduction
In recent years, courts across India, particularly the High Court of Madhya Pradesh, have repeatedly expressed serious concern over the growing menace of so-called “marriages” performed before Notaries or Oath Commissioners. These documents are often styled as marriage affidavits or marriage agreements and are mistakenly believed by laypersons to create a valid marital relationship. Unfortunately, such documents have been misused to deceive women, evade legal responsibilities, and even facilitate serious criminal offences such as rape under false pretence of marriage.
A landmark reiteration of this legal position came in Writ Petition No. 1124 of 2021 (Daulat Singh Markam v. State of M.P.), decided by the High Court of Madhya Pradesh on 1st December 2023. The Court, while dealing with service jurisprudence, made crucial observations regarding the legal invalidity of marriages performed through notarized agreements and the serious legal consequences flowing from such acts.
Direct Answer: A marriage performed before a Notary or Oath Commissioner by executing a marriage affidavit or agreement is not a valid marriage under Indian law and is legally forged and void.
This article explains in detail why such marriages are forged, the legal position under various marriage laws, the role and limits of Notaries and Oath Commissioners, judicial precedents, and the criminal and civil consequences of relying on such documents.
1. What Is a Valid Marriage Under Indian Law?
To understand why marriages performed by Notaries or Oath Commissioners are forged, it is first necessary to understand what constitutes a legally valid marriage in India.
1.1 Hindu Marriage Act, 1955
Under the Hindu Marriage Act, 1955, a valid Hindu marriage requires the performance of essential ceremonies. Section 7 of the Act provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party. Where such rites include Saptapadi (taking seven steps before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
Thus, a Hindu marriage is not a contract but a sacrament, and it cannot be created merely by signing an affidavit or agreement.
1.2 Special Marriage Act, 1954
The Special Marriage Act, 1954, provides a secular form of marriage applicable to all citizens irrespective of religion. A marriage under this Act can only be solemnized before a Marriage Officer appointed by the State, after due notice, objections, inquiry, and formal registration.
No Notary or Oath Commissioner is empowered to act as a Marriage Officer under this Act.
1.3 Other Personal Laws
- Muslim Law: Marriage (Nikah) must be performed in the presence of witnesses, a Qazi, and with offer and acceptance (Ijab-o-Qubool).
- Christian Marriage Act, 1872: Requires solemnization by a licensed minister or Marriage Registrar.
- Parsi Marriage and Divorce Act, 1936: Requires solemnization before a Parsi priest (Mobed) and registration.
In none of these statutory frameworks is there any provision that permits a Notary or Oath Commissioner to solemnize a marriage.
2. Who Is a Notary and What Are His Legal Powers?
A Notary is appointed under the Notaries Act, 1952. Section 8 of the Act clearly defines the functions of a Notary. These include:
- Verifying, authenticating, certifying, or attesting execution of instruments.
- Administering oaths and taking affidavits.
- Noting and protesting negotiable instruments.
- Preparing mercantile documents.
- Translating and certifying documents.
Critically, Section 8 does not authorize a Notary to solemnize a marriage or execute a marriage agreement or divorce deed.
Therefore, when a Notary prepares or attests a so-called “marriage affidavit,” he is acting beyond his statutory powers, and such a document has no legal sanctity.
3. Who Is an Oath Commissioner and What Are His Limits?
An Oath Commissioner is appointed primarily for the purpose of administering oaths and attesting affidavits. His role is procedural and evidentiary in nature.
An Oath Commissioner does not have the power to:
- Perform marriages.
- Create marital status.
- Grant divorces.
- Register marriages.
Thus, any “marriage” performed or recorded before an Oath Commissioner is legally non-existent.
4. Why Are Notary or Oath Commissioner Marriages Considered Forged?
The term “forged” in this context does not merely mean fake signatures; it refers to the creation of a document that falsely represents a legal status which it cannot legally create.
4.1 No Authority of Law
A marriage affidavit or agreement executed before a Notary or Oath Commissioner falsely claims that a marriage has been legally performed. Since neither of them has statutory authority to solemnize a marriage, such a document is ultra vires (beyond legal powers) and void ab initio.
4.2 False Representation of Marital Status
These documents give a misleading impression that the parties are husband and wife in the eyes of law. Courts have repeatedly held that this false impression has been used to exploit women emotionally and sexually.
4.3 Judicial Condemnation
In Bundel Singh Lodhi v. State of M.P. (2021) and Mukesh v. State of M.P. (2020), the High Court of Madhya Pradesh categorically held that:
- Notaries have no power to execute marriage affidavits.
- Such affidavits are illegal and facilitate serious crimes.
- Action must be taken against Notaries who indulge in this practice.
These observations were reaffirmed and relied upon in Daulat Singh Markam v. State of M.P. (2023).
5. Key Observations from Daulat Singh Markam v. State of M.P. (2023)
The High Court made several important observations while dealing with the petitioner’s misconduct and departmental punishment:
5.1 Marriage Is Not a Contract
The Court reiterated that under Hindu law, marriage is not a contract and cannot be performed by executing a marriage agreement or affidavit.
5.2 Notaries Are Not Marriage Officers
The Court emphasized that Notaries have never been appointed as Marriage Officers and cannot notarize marriage or divorce affidavits.
5.3 Execution of Marriage Agreement Creates False Belief
The Court held that by executing a marriage agreement, the accused gave a false impression to the woman that she was his legally wedded wife, which had serious legal implications.
6. Criminal Consequences of Forged Notary Marriages
6.1 Rape Under Section 375 Fourthly IPC
Section 375 (Fourthly) of the Indian Penal Code provides that a man commits rape if he has sexual intercourse with a woman with her consent, when he knows that he is not her husband and that her consent is given because she believes herself to be lawfully married to him.
The High Court categorically held that:
- A notarized marriage agreement is not a valid marriage.
- If a man uses such an agreement to make a woman believe she is his wife and then has sexual relations with her, it squarely attracts Section 375 (Fourthly) IPC.
6.2 Cheating and Forgery
Such acts may also attract:
- Section 417/420 IPC (Cheating)
- Section 463/465 IPC (Forgery)
- Section 468 IPC (Forgery for purpose of cheating)
- Section 471 IPC (Using forged document as genuine)
6.3 Criminal Liability of Notaries
Courts have directed Law Departments to initiate proceedings under Section 10 of the Notaries Act for misconduct against Notaries who execute marriage or divorce affidavits illegally.
7. Civil Consequences of Such Forged Marriages
7.1 No Matrimonial Rights
A woman relying on a notarized marriage affidavit does not acquire:
- The legal status of a wife.
- Rights of maintenance under Section 125 Cr.P.C.
- Rights of inheritance under succession laws.
- Rights under the Hindu Marriage Act.
7.2 Void Relationship
The relationship is treated as legally void and non-existent, irrespective of emotional or social implications.
8. Why Are Such Forged Marriages Still Prevalent?
Despite repeated judicial warnings, this illegal practice continues due to:
- Lack of public awareness.
- Desire to avoid legal formalities of court marriage.
- Misuse by unscrupulous individuals to deceive partners.
- Commercial interests of some Notaries and agents.
9. What Should Couples Do for a Legally Valid Marriage?
Couples must ensure that their marriage is solemnized in one of the following lawful ways:
- According to religious ceremonies under personal law.
- Through proper registration under the Special Marriage Act, 1954.
- By registering their marriage with the Marriage Registrar after lawful solemnization.
They should never rely on notarized marriage affidavits or agreements as proof of marriage.
10. Legal Remedies for Victims of Forged Notary Marriages
Victims of such forged marriages may:
- File an FIR for rape, cheating, and forgery.
- Seek protection and maintenance under the Domestic Violence Act (subject to judicial interpretation).
- Initiate civil suits for damages.
- Lodge complaints against the concerned Notary with the Law Department.
Conclusion
Marriages performed before Notaries or Oath Commissioners are not only legally invalid but are judicially recognized as forged and dangerous instruments of deception. Indian courts, particularly the High Court of Madhya Pradesh in Daulat Singh Markam v. State of M.P. (2023), have unequivocally held that marriage is not a contract and cannot be created through a notarized affidavit or agreement.
In clear terms, a marriage performed by a Notary or Oath Commissioner is forged, void, and has no legal recognition under Indian law.
Such illegal practices expose individuals to severe criminal and civil liabilities and destroy the lives of innocent victims who are misled into believing they are lawfully married. The only safe and lawful path is to solemnize and register marriages strictly in accordance with statutory provisions.
The time has come for stricter enforcement against erring Notaries and greater public awareness so that no one falls prey to the illusion of a forged marriage.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304