H4 rejected in Chennai Consulate

[ansi2004]

I am very disappointed that my wife's H4 was rejected under 221(g) in Chennai. We both are muslims. I married her this April 2004 when she was 16 (Her Dob: July 1987). As per the Indian Mohammaden Law our marriage is valid. Kerala High Court in India also gave a judgement that such marriage is valid (Please read this article for reference:
http://www.deccanherald.com/deccanherald/july03/n14.asp)

But the consulate officer told her that this marriage is not valid as per the Indian law and so cannot claim dependent status. In the 221g, the officer just wrote "Cannot claim dependent status". She only carried a marriage certificate obtained on a twenty rupees Indian stamp paper given by a notary public. When we tried to get a marriage certificate from the sub-registrar, he said they cannot issue one when the bride is below 18. I do not know what to do in order to get the visa. Can any of you please help me?

 

[waitin_toolong]

I am sorry but without the sub registrar certificate of marriage you cannot prove your marriage. According to law the bride has to be 18. There are only two options before you.

1. wait two years and then get the marriage registered/ maybe performed again.
2. Fight for the certificate in court citing the case you mentioned.

Good Luck

 

[ansi2004]

My wife tried to get the visa by appearing second time with loads of documents... but without even looking at the documents, she was rejected a h4 visa again. The officer, when my wife appeared before him, had already filled the form that says "unable to issue visa under 221(g), Reason: Cannot claim dependent status" and gave it to her upfront. So what are my options here? Can she apply for a visitor visa now? Will they issue a visitor visa if H4 was rejected twice before? Can I be the sponsor or should I ask any of my friends to be the sponsor? Or can she apply for a student visa? Say, for a 2 year program in any of the community college?

Also, is it possible to apply for a visa ineligibility waiver for H4 rejection? If so, how....

Friends, please help me get through this and all your help is appreciated.

 

[shabbu77]

Get a marriage Cert from Wakf board

did you not trying getting a marrige Cert from the Wakf Board which happens to be the one who issue marriage Certs for Muslims and not the Registrar Office.... Contact the Wakf board for the Cert and try ur luck,...

 

[IndoKiddo]

Even if you can get certificate of marriage , I doubt that they will give until she is 18. Because in US , when you start living together that will be considered a statutory rape. Even a third person can complain about it. So I would talk to a US attorney. The same way for multiple wives. islamic law may allow it but not US law.

 

[PhillyKP]

when you start living together that will be considered a statutory rape .

Not true, unfortunately, as long as she is 16 and it's not 'commercial sex' .

While I cannot, for the life of me, understand why anyone would want to get married to a 16 year old, or, for that matter, why in this day and age would any 16 year old want to get married at that age, unfortunately, it's not illegal. Check this out:

http://en.wikipedia.org/wiki/Age_of_consent

United States of America
United States: varies from state to state, usually between 16 and 18; some states formerly forbade homosexual acts entirely, however such laws have been declared unconstitutional in 2003 (Lawrence v. Texas). Federal law forbids crossing state lines or international borders with the intent of having commercial sex with a person who is under 18, or any sex with a person who is under 16 and at least 4 years younger than the perpetrator (18 U.S.C. 2243 (http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/109a/sections/section_2243.html), 18 U.S.C. 2423 (http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/117/sections/section_2423.html)). In the US it is illegal to produce pornography featuring those under 18 and prosecutions have been commenced for cases where both partners are over the age of consent and under 18, where they were making material solely for their own consumption or that of their lawful partner. The constitutionality of these cases is uncertain.

 

[IndoKiddo]

Not true, unfortunately, as long as she is 16 and it's not 'commercial sex' .

Really??? I did not know this. In india it is statutory rape for Hindus not for muslims. I stand corrected

 

[ansi2004]

H4 rejected twice in Chennai Consulate

did you not trying getting a marrige Cert from the Wakf Board which happens to be the one who issue marriage Certs for Muslims and not the Registrar Office.... Contact the Wakf board for the Cert and try ur luck,...

Actually we got the marriage certificate from the Govt Chief Kazi who gives the marriage certificate for Muslims. In fact, US consulate also requires this certificate in the case of muslims as per this website link of chennai consulate:

http://chennai.usconsulate.gov/wwwhivdocument.html#proofrel
"... For Muslim marriages, please submit a registration certificate from the government appointed Chief Kazi. ..."

But nothing has been mentioned about age anywhere. When contacted, chennai consulate replied that our marriage is not valid citing "Child Marriage Restraint Act of 1929" which prohibits marriage below 18. Refer:

http://www.helplinelaw.com/bareact/index.php?dsp=child-marri-restraint

"... [(a) “child” means a person who, if a male, has not completed twenty one years of age, and if a female, has not completed eighteen years of age;] ..."

Our Indian marriage law for muslims clearly contradicts with this "Child marraige restraint act" on age. Muslim law states you can marry at 15 or at the age of puberty. Refer:

http://www.helplinelaw.com/docs/main.php3?id=MMUL2

"... Just as in case of contract, entered by a guardian, on attaining majority, so can a marriage contract in Muslim Law, be set aside by a minor on attaining the age of puberty ..."

This contradiction made the visa officer believe that our marriage is not valid and so H4 has been refused. I dont even know if the visa officer is aware that Muslim marriage law is recognized in indian constitution under "Muslim personal law application act 1937". Refer:
http://www.helplinelaw.com/bareact/index.php?dsp=mus-per-law

So, what are my options now? H4 has been rejected twice. Can I apply again by hiring an attorney describing these issues. If it gets rejected for the 3rd time again, I heard one cannot apply for another 5 eyars (or 2 years). Is that true? What if she applies for a visitor visa and that getting rejected under 214(b) for potential immigrant since her H4 was already rejected twice?

Friends, please help me.

 

[nkm-oct23]

The marriage should also be recognized by US laws, not just Indian laws. For example a homosexual couple who are married legally another country cannot be admitted as married couple in US since US federal law does not recognize marriage between same sex. Similarly many countries recognize polygamy but not US. If your marriage is in violation of US laws, you will not be issued a visa.

 

[waitin_toolong]

these days the rules have changed and you can apply as many times as you want, afetr all tehy get to keep $100 each time.

on other note it looks like hiring an attorney to argue ur case seems best.

And on a more moralistic note... what were u thinking marrying a kid, she must be what atleast 8-10 yrs youngerr than u, not even finished high school, if this is what educated Indian males do, no wonder India is where it is.

 

[GivMeGreen]

Muslim personal law is just that, personal, it can't override law of the land.
I am not too predisposed towards Uniform Civil code, but if people disregard the law of the land in favor of perosnal laws, then I will vehemently support UCC if not for anyother reason, at least to help protect minors, and similar injustice.

According to this site http://www.law.emory.edu/IFL/legal/india.htm, underage marriage is illegal, but they will not force breakup of the marriage (at least automatically).

GMG

 

[ansi2004]

The marriage should also be recognized by US laws, not just Indian laws. ... If your marriage is in violation of US laws, you will not be issued a visa.

Marriage to a person above 16 and below 18 is allowed in US by giving a written parental concern which we got already. Hence, our marriage stands valid according to US laws.

... on other note it looks like hiring an attorney to argue ur case seems best.

And on a more moralistic note... what were u thinking marrying a kid, she must be what atleast 8-10 yrs youngerr than u, not even finished high school, if this is what educated Indian males do, no wonder India is where it is.

I hear that consulates does not come under any jurisdiction so how will the lawyer argue my case? Just by giving us some documents of proof? and we have to try to convince the visa officer arguing with those documents when we appear for interview?

And for your moralistic note...

She had finished high school and was denied further education due to the social pressure in my hometown. However hard we try, we cannot change the thinking or customs of the entire society... But by marrying her, my plan is to make her study much much more. This way I could at least make change in one person's life if not the entire society. For this reason, age difference did not matter to me either.

Anyway, any thoughts for the contradicting marriage laws of India?

Muslim personal law is just that, personal, it can't override law of the land.
GMG

No offense. But I disagree. India recogizes Muslim personal law by creating "Muslim Personal Law Application Act of 1937". You can find link to this law in my earlier posts.

 

[GivMeGreen]

No offense. But I disagree. India recogizes Muslim personal law by creating "Muslim Personal Law Application Act of 1937". You can find link to this law in my earlier posts.

None taken, I mean no offense either, your actions seems honorable, but when the general populace is concerned, sometimes individual actions have to be overlooked - because in general people may not be as honorable as you are, and will try to misuse the freedom.

I am not a lawyer, and dont claim to be one - but personal laws can be referenced in civil cases (again, I think only if both parties agree to it (either currently or previously)), but I doubt criminal cases can be explained away by personal laws. So what if the state recognizes GivMeGreen's personal law, and I kill someone claiming that my personal law allows me to kill others - can I walk free? No sir, The state will still prosecute me to oblivion.

I am not privy to the Judge's decision in the link you posted, but to me it seems like the judge took the position because the person married claiming personal laws, but wanted to anull it based on state laws, the judge clearly saw that the person was trying to weasel out of his responsibilites and might have delivered the verdict he did. Remember that judge's usually only act on the complaint in front of them, so he probably did not rule on the penal aspects of underage marriage.