The institutional of marriage is the foundation of civilized society. It is
intended to be an adjustment of psychological, racial and human factors. In a
legal marriage, a man and woman are united for life under an obligation to
discharge to one another and to the community duties which the particular
community by its impose law.
Hindu laws of Marriage
The ancient Hindu law considered marriage as a Sanskar,which united the parties
in a permanent union.It has been essentially, a fellowship between a man and
women for achievement of four cherished goals of life: dharma, artha, kama, and
moksha. The wife has been a effective partner, who could not be ignored in
religious duties, and emotional life. She is called ARDHANGINI(half of man).
With the passing of Hindu Marriage Act 1955, the wife has been brought on
equal footing with husband .Amongs Hindus, there are mainly two forms of
marriage arranged marriage and love marriage. Most Hindu marriage are still
arranged marriage where girls have the least say about the choice of their life
partner and they have to bow before the choice of their parents. The change in
the marriage laws, girls have become conscious of their rights and now a new
form of marriage is emerging in india society, Now the boy and girls choose
their life partner and their parents give their assents to such marriage.
According to Dharamshastra the trend was to marry the girls as soon as they
complete the age of 15 .It seems strange that an unmarried girl could not remain
in her father’s house after she attains certain age. This has been apparently
discrimination to the women, which was perceived by many Indian reformers like
Raja Ram Mohan Roy, Ishwar Chandra Vidya Sagar
, who agitated for marriage at a
rational age and India penal code 1860 provided that a marriage below the age
of 10 will be declared as Rape. Later in 1929 the Child Marriage Act was passed
to stop this practice.
It was amended first in 1949 and then in 1978 by which
the minimum age of marriage has been raised to 18 for girls and 21 for boys.
However a remarkable decision from Andhra Pradesh High Court in the case of Panchireddy
A. Suramnma vs. O.Canpatula
which lay down that a minor marriage in violation of
the Hindu Marriage Act shall be void ab initio. A religious marriage in
violation of the statutory requirement as to the age of parties has been
declared to be null and void.
Bigamy is the act of marrying multiple spouses, that means having more than one
husband or wife at the same time. Vedic Arya whereas, in Rigveda as well as in
Atharveda, there is reference of Bigamy marriages. Now under Hindu Marriage Act
1955 polygamy and polyandry have been specifically disallowed.
Requirement of strict proof of performance of essential ceremonies
The offence of bigamy or marrying again during lifetime of husband or wife is
punishable under Section 494 of the Indian Penal Code 1860 and under Section 17
of the Hindu Marriage Act, 1955. Marrying again during lifetime of husband or
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 of either description
for a term which may extend to seven years, and shall also be liable to
Section 17 of Hindu Marriage Act 1955 Punishment of bigamy:
Any marriage between two Hindus (including Buddhist, Jaina or Sikh) solemnized after
the commencement of this Act is void if at the date of such marriage either
party had a husband or wife living; and the provisions of Sections 494 and 495
of the Indian Penal Code 1860 shall apply accordingly.
The first case of bigamy was decided by the Apex Court ten year after the
abolition of polygamy viz:
Bhaurao Shankar Lokhande’s vs State of Maharastra(1965):
In this Case the
accused husband was acquitted merely because the complainant could not prove the
existence of a custom prevalent in their community which dispensed with the
performance of two ceremonies- invocation before the sacred fire and satpadi,
and since these two ceremonies were not performed the offence of bigamy was held
to be not made out.
In Sarla Mudgal v. Union of India (1995 ), the Supreme Court held that:
a man who
has adopted Islam and renounced Hindu religion, marries again without taking
divorce from the first wife, then such marriage is not legal. The person shall
be punished for committing bigamy under section 494 of Indian Penal Code 1860.
Muslim Law of Marriage
Muslim marriage laws differ vastly from the marriage laws of other religions.
This article will explain all about marriages laws that a Muslim in India need
to know about. Marriage in Islam, or Nikah, is not a sacrament (as in Hinduism),
but a civil contract between a man and woman to live as husband and wife. From a
religious perspective, Muslim marriage act in indian constitution is also a
devotional act, i.e., ibadat.
The Prophet is reported to have said that marriage
is obligatory (wajib) for every physically fit Muslim, that marriage is equal to
jehad (holy war) and that he who marries completes half his religion, while the
other half is completed by leading a virtuous life. Other schools of thought
prescribe that the man must also have the means to earn a lawful livelihood, to
pay Mahr and to support wife and children.
Types of Marriages in MuslimsThere are four types of marriages practiced by Muslims as follows:
1. Sahih Marriage
This is the valid form of marriage as per the Sharia Law. The children born from
this marriage are legitimate. It is obligatory for husband to pay Mahr as a
dower his wife. The wife is entitled to get maintenance from her husband. The
husband has rights to probhit his wife movements under this marriage.
2. Fasid Marriage
This marriage is an irregular marriage as the two parties fails to fulfil the
prerequisite norms required for the valid marriage. Irregularities like marriage
without witness marriage with fifth wife etc.
3. Muta Marriage (temporary marriage)
This marriage is carried out under a contract for temporary period. It is
legitimate in Shia Muslim only. There is no recognition for this type of
marriage in Sunni law. Shia Muslim practice such marriage with a woman from
Mohomedan jewish, Christian religion. While a Shia woman cannot be contracted
for this type of marriage with a non-Muslim person. Also, in this marriage,
dower needs to be fixed. Furthermore, the cohabitation period should also be
The essentials of Muta marriage are:
- The period of cohabitation should be fixed.
- Dower should be fixed.
- If dower specified, term not specified, it could amount to permanent or
- If term fixed dower not specified, it amounts to void marriage.
4. Batil Marriage
This type of marriage is completely unlawful according to Muslim law because the
marriage take place through forced consent of woman and other prohibited
grounds. The offspring from such marriage is illegitimate.
Divorce in Muslim marriageThere are 2 categories of divorce under Muslim law:
Talaaq-i-SunnatIt can further be divided into two categories:
Talaaq-i-ahsanA single pronouncement of divorce is made during the period of tuhr (the period
of purity between two menstrual cycles), followed by abstinence from sexual
intercourse during the period of iddat. Here, the divorce can be revoked at any
time before the completion of iddat, thus preventing hasty and unreasonable
Talaaq-i-hasanA husband is required to pronounce a formula of Talaaq three times, during three
successive tuhrs. It is important that pronouncements are made when no
intercourse takes place during any period of tuhr. The marriage is dissolved
irrevocably, regardless to the period of iddat.
It is a form of Islamic divorce which is instant in nature. It allows any Muslim
man to legally divorce his wife by stating the word Talaaq
three times in
oral, written, or more recently, electronic form. This is prevalent among the
Muslims in India, especially among the adherents Hanafi school of Islam. This is
also known as Triple Talaaq
and has been a subject to debate and controversy.
In Shayara Bano V. Union of India and Ors:
This practice of talaq-e-biddat
(unilateral triple-talaq) which practically treats women like chattel is neither
harmonious with modern principles of human rights and gender equality, nor an
integral part of Islamic faith, according to various noted scholars.
Muslim women are subjected to such to such gross practices which treats them as
chattel, thereby violating their fundamental rights enshrined in Articles 14,
15, 21 and 25 of the Constitution. The practice also wreaks havoc to the lives
of many divorced women and their children, especially those belonging to the
weaker economic sections of the society.
Triple Talaq law
Triple Talaq, also known as Muslim Women (Protection of Rights on Marriage)
Bill, 2019, was passed by the Indian Parliament as a law on July 30, 2019, to
make instant Triple Talaq a criminal offence.
The Rajya Sabha passed the Bill, with 99 votes in its favour and 84 against it.
The Triple Talaq law makes the instant triple talaq a criminal offence and
provides for a jail term of three years for a Muslim man who commits the
The law also makes Triple Talaq a cognisable and non-bailable offence.
Introduced in the Lok Sabha by Minister of Law and Justice Ravi Shankar Prasad
on June 21, 2019, the Bill replaced an Ordinance promulgated on February 21,
2019.As the Bill was pending for consideration in the Rajya Sabha and the
practice of Triple Talaq divorce system was continuing, there was an urgent need
to take immediate action to prevent such a practice by making strict provisions
Punishment for pronouncing Triple Talaq
The Clause 3 also states that:
whoever pronounces Triple Talaq upon his wife
shall be punished with imprisonment for a term which may extend to three years
According to Clause 7 (c) in Chapter 3:
No person accused of an
offence punishable under Triple Talaq law shall be released on bail after the
Magistrate, on an application filed by the accused and after hearing the married
Muslim woman upon whom talaq was pronounced, is convinced that there are
reasonable grounds for granting bail to the accused.
The conflicts over the rights of minority women are best dealt with by creating
new representative bodies which have special provisions to ensure that women are
sufficiently represented. In the Shah Bano case, this would have meant creating
a new mechanism to administer Muslim personal law instead of simply recognizing
the Muslim Personal Law Board as the legitimate representative of the Muslim
Creating a new mechanism is more sensitive to the political reality
of Muslims in India, which is that they consist of widely dispersed groups
characterized by significant differences. It would also make some provision to
ensure that Muslim women have some access to the institutions which make the
rules which govern their lives.