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Law of Marriage and Indian Women

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.

Child 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

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 wife.

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 fine.

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 Muslims

There 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 fixed.

The essentials of Muta marriage are:
  1. The period of cohabitation should be fixed.
  2. Dower should be fixed.
  3. If dower specified, term not specified, it could amount to permanent or regular marriage.
  4. 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 marriage

There are 2 categories of divorce under Muslim law:
  1. Judicial
  2. Extra-Judicial

Talaaq-i-Sunnat

It can further be divided into two categories:
  1. Talaaq-i-ahsan

    A 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 divorces.
  2. Talaaq-i-hasan

    A 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.

Talaaq-i-Biddat

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 crime.

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 in law.

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 and fine.

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.

Conclusion
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 community.

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. 

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