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Matrimonial Laws In India: An Overview

Marriage is the blissfully state of the two parties which conveys not only the act or formalities should be performed by them but also the status as husband and wife in the society.
Marriage is a foundation of stable family, two soul united as a spouse, a permanent union of hearts. Earlier times marriage was recognized as religious as well as social institution and not legal one but as times changes, now it is considered as ones personal choice and marriage between two individual and not between two families.

Thus, it moved to become a contract and requires fulfilling legal requirements. Marriage as per law means a contract between man and woman united together to support each other in a shared household. Right to marry is recognized under article 21[1] of the Indian Constitution well as article 16[2] of Universal Declaration of Human Rights, 1948.

Meaning of marriage differ from person to person some will say union of lives, some will say bond of love, some will say life imprisonment and some will say something else. Matrimonial laws in India were based on English matrimonial law at the time they were drafted as they were drafted by warren hasting in 1772.

However there is no single uniform code of law for marriage rather we have different laws for different religions. For Hindu we have The Hindu marriage act, 1955[3], for Muslim the Muslim Personal Law (Shariat) Application Act 1937[4], for Christian and Parsi :The Indian Christian Marriage Act, 1872 [5]and The Parsi Marriage and Divorce Act, 1936[6] respectively. For the one who don't profess any religion we have The Special Marriage Act, 1954[7] to govern their marriage.

Hindu Marriage Law

Marriage under Hindu is considered to be sacrament bond and is union for upcoming seven lives and is not subject to dissolution because it is not a mere contract between man and woman. Vedas teaches that marriage is also considered as duty of a person.
  • The Hindu marriage act, 1955[8] amends and codifies the matrimonial law among Hindus. This act applies to Hindu, Buddhist, Jain or Sikh.[9]
  • Act states capacity to marry and these conditions are mentioned in the section 5[10] which says there should be no spouse living at the time of marriage which means Hindu culture does not entertains bigamy, bride and groom at the time of wedding must be sound mind, give their free consent and are not insane .Both must have completed the age of 21[11], don't relate to each other within the degrees of prohibited relationships and are not sapindas to each other.
     
  • Section 7[12] defines the ceremonies to be performed in the Hindu marriage in order to solemnize which are sagai , kanyadan and saptapadi.
     
  • Sagai is a ring exchange ceremony performed by bride and groom.
     
  • kanyadan is a emotional and sentimental ceremony where a dad donates their daughter to groom and transfers his responsibility to groom of her daughter.
     
  • Saptapadi is the ceremony where bride and groom take seven rounds of the god of fire in Hindu religion where sacred fire act as invocation and meanwhile priest chants sacred texts(mantras). When the seventh step is taken the marriage is solemnised in Hindu religion.
     
  • In Samit Subhash Agarwal v. Kamlesh Lataprasad Gupta[13], husband challenged the validity of marriage and court held that taking seven pheras around agarbatii doesn't mean they have not took seven around the scared fire and makes their marriage invalid.
     
  • Forms of marriage
    The ancient Hindu law recognized three kinds of marriage which are valid and regular. These were Brahma (arrange marriage), Gandharva (love marriage) and Asura (bride sold by father for money).
     
    • Brahma marriage is known to be the arranged marriage where a father and family members of the girl finds groom for her. This kind of marriage is mostly practised in past times and marriage of bride and groom will be done according to the shastric rites and ceremonies.
    • Gandharva marriage is also known as love marriage where bride and groom voluntary unite and marry according to their choice irrespective of their father's choice. This kind of marriage is practised in the modern time and according to shastric rites and ceremonies are being performed.
    • Asura marriage is forced marriage where a bride is sold by his father to groom and his family.
       
  • However, the current Hindu Marriage Act[14] does not include such forms of marriage in it. As the people in today's worlds do things according to their choice not as per their parents choice. And also time is changing and parents also give importance to their child's choice and understands that they have to live together so let them decide themselves.
     
  • Registration of marriage
    Section 8 [15]has given power to make rules for proof of marriage to state government. Hindu marriage registrar has given all the power to direct time for the parties to show their evidence and to get their certificate after payment of a prescribed fee.

Muslim Marriage Law

  • Muslim law is largely uncodified in India as Quran is silent or incomplete.
  • Muslim marriage is a civil contract where two persons enter into contract with the view of sexual pleasure and legalisation of children. The Islamic concept of marriage is different from Hindu marriage as in Hindu it is sacrament bond but in Islam, it is a contract.

Essentials of a valid Muslim marriage:

  1. Proposal and acceptance- proposal in urdu is stated as ijab and acceptance of the proposal is 'qubul' in urdu. Both ijab as well as qubul has to be done in same meeting and in the presence of proper and competent witnesses otherwise it will be not be a valid marriage
     
  2. Competency of parties-both partied must attained their puberty, which means they must be major. Bride and groom must be of sound mind while performing nikah and should be Muslim.
  3. Free consent of parties- while reading nikah free consent of both the parties is required that means consent must be free from coercion, fraud, mistake of fact in order to term as free consent.
  4. Dower or mahr is defined as the sum of money or property given by husband to his wife in consideration of marriage contract as a mark of respect to the wife.
  5. Free from Legal Disability-Under Muslim law, marriage is not permitted under certain circumstances and this restrictions/prohibition can be divided into three parts: Absolute Prohibition, Relative Prohibition, and Miscellaneous Prohibition.

Muslim marriages are classified into four:

  • Sahih marriage or valid marriage:
    It is the marriage where each and every kind of conditions are fulfilled in order to known as valid marriage
  • Fasid is irregular marriage where irregularity if removed then this type of marriage could be convert to Sahih marriage. Grounds for Fasid marriage are marrying to a fifth wife, marrying to the women who is undergoing Iddat, marrying without proper witnesses, marrying to a woman who is idol worshipper.
  • Batil is void from the beginning and cannot be converted to valid marriage after removing irregularities like fasid marriage. Grounds for batil marriage are – woman practicing polyandry or marrying to man who worships fire, couples sharing common ancestors, man marrying his sister in law during the lifetime of his wife.
  • Muta marriage is a temporary marriage and the object of contract is enjoyment and time period of it must be fixed with proposal and acceptance in the same meeting, dower should be fixed. Muta marriage with Hindu women is considered to be void.

Christian Marriage Law

  • The Indian Christian Marriage Act, 1872 codifies the matrimonial law among Christians.
  • Indian Christians takes place in church in the presence of witnesses as well as clergymen.they exchange their ring take vows while reading of the Bible take place.
     

Conditions for certified Christian marriage:

Section 60[16] of the Act states the Christian marriage condition which is as follows:

  • The age of man and women must be 21 and 18 respectively.
  • Neither of the party shall have living partner.
  • In front of licensed person as stated under section 9[17], and two credible witnesses other than such person, each of the marrying party must say to each other that they accept each other as their better half.

Solemnization of Marriage

According to section 4 [18]marriages done between Christian or non-Christian will be solemnized according to the sections in the act and any marriage without provision stated in the act shall be void.
  • Persons authorized to solemnize Christian marriage
    Section 5[19] states the Christian marriage to to be solemnized by whom.
     
  • Time specified for solemnizing marriage
    Section 10 [20] states the time for solemnizing the marriage which is from six in the morning to seven in the evening.
     
  • Place of solemnization
    Section 11[21] permits the clergyman of the Church of England to solemnize a marriage in the church unless there is no church within the 5 miles from the shortest distance from such please.
     
  • Notice of marriage as per schedule I
    Section 12[22] states any of the party is suppose to give the notice as mentioned in the I schedule of the act to the concerned minister by whom the marriage is going to be solemnized. The notice must contain the important information such as name along with surname as well as profession, residence, dwelling place of both parties along with time they lived there, church chosen by them for solemnization of the marriage.
     
  • Publication of such notice
    Section 13[23], when the notice reached to the minister of religion, he shall affix the notice in the church.
     
  • Procedure of receipt of notice
    Section 16[24] once the notice is fixed in the church by minister of religion he must send that notice to each of the other marriage registrars in the same district or as given in the act.
     
  • Issue of certificate
    Section 17[25] states when minister sends the notice to the either party to the marriage then he must make the declarations as per Section 18[26].Issue of certificate should be done only after expiry of 4 days from the notice delivered and parties fulfilled the lawful impediment in order to get certificate.
     
  • Solemnization of marriage
    Section 25[27] of the Act states that after the certificate issued as per section 17[28] in front of 2 credible witness ,the minister is supposed to solemnize the marriage in any of the form of ceremony he adopts.
     
  • Section 26[29] states that if the marriage is not solemnized within the 2 months from the date of issue of certificate issued to the parties then the marriage will be void and new certificate should be issued to the parties.
     
  • Granting Certificate of marriage
    Section 61[30] states once the marriage is solemnized as per provision stated in the section 60[31] authorized person shall issue the certificate of marriage of solemnization after paying of the prescribed fee (25 paise) and when declaration has been made. The certificate must be signed by the authority as well as parties to the marriage. Section 61[32] makes the marriage certificate important as it is the proof of marriage and it will act as evidence of a valid marriage in the court.

Parsi Marriage Law

  • The Parsi Marriage and Divorce Act, 1936 codifies the matrimonial law among Parsis.
     
  • There are various ceremonies performed in the parsi wedding some of them are bride and groom have to face each other and a curtain is to placed between them and rice is thrown by bride and groom on each other while priest chants the prayers .Priest will be asking the certain questions to the bride groom and witnesses which will include whether the consent of the couple is free or not, after answering of the question priest will recite blessings.

Essentials of valid Parsi marriage

Under Section 3[33] given:
  1. Party to the marriage should not be related to each other in any of the degrees of consanguinity or affinity as stated in schedule in I.
  2. Parsi marriage ceremony of "Ashirvad" to be performed by priest in the presence of two witnesses other than the priest.
  3. Male should be of 21 years and female should be of 18.
  4. If the above conditions are fulfilled then the child born out of this union will be consider as legitimate.
Section 4[34] explains remarriage is unlawful if the party to marriage has not divorced their earlier partner.

Section 6[35] says about the
Certificate and registry of marriage –both parties to the marriage under this act after solemnization of marriage must be certified by the priest which should be sign by priest contracting parties as well as two witnesses after paying of the fee of 2 rupees by husband to registrar. Registrar must enter the certificate in his records.

The Special Marriage Act, 1954

  • This act allows inter religion marriage registration in order to known as valid marriage.
  • This act is secular litigation.
  • Section 4[36] of the act explains the conditions for a valid marriage under this act:
     
    • Section 4(a)[37]-Both of the parties must be single at the time of marriage which means they must be divorced or there should not be spouse living of the parties
    • Section 4(b)i[38]-Both the parties must be sound mind in order to give their free consent.
    • Section 4(b)ii[39]-Both the parties must not subjected to mental disorders.
    • Section 4(b)iii[40]-Both the parties must not subjected to attacks of insanity.
    • Section 4(c)[41]-Male must complete the age of 21 and female of 18
    • Section 4(d)[42]-The parties to the marriage should not relate to each other within the degrees of prohibited degrees unless any custom governing each of them permits between the two.
    • Section 4(e)[43]-When the marriage is solemnized in state of Jammu and Kashmir then both of the parties are Indian citizen and domicile in the territories
       
  • Section 5[44]- Notice of intended marriage.- parties of the marriage whose marriage is solemnized under this act shall have to give notice to the Marriage Officer as mentioned in the II schedule of the act and at least one of the party should reside for a month immediately after the date on which notice is delivered to them.

Same Sex Marriage:

  • In India same sex marriage is still not legalized. In the 21st century when we talk about the concept of freedom as well as human rights ,it's the need of the hour to legalized same sex marriage.
  • In the Lata Singh v state of Uttar Pradesh[45] ,the Supreme court held that right to marriage is a component of the right to life under article 21[46] which means each and every citizen of the India have right to marriage as per their choice and personal liberty.
  • Sexual orientation of the person should not be the reason to take away the right to marry to them.
  • In Navtej Singh Johar v. Union of India[47] abolished section 377[48] of the Indian penal code, sexual orientation freedom was granted.
  • But still same sex union is not recognize in India.

End-Notes:
  1. Constitution of India, Article 21
  2. Universal Declaration of Human Rights, 1948, article 16
  3. The Hindu Marriage Act,1955
  4. The Muslim Personal Law(Shariat) Application Act 1937
  5. The Indian Christian Marriage Act, 1872
  6. The Parsi Marriage and Divorce Act, 1936
  7. The Special Marriage Act,1954
  8. The Hindu Marriage Act, 1955
  9. Section 2,The Hindu Marriage Act, 1955
  10. Section 5,The Hindu Marriage Act,1955
  11. Age declared by Prime Minister Modi (but not updated in the act)
  12. Section 7,The Hindu Marriage Act,1955
  13. Samit Subhash Agarwal v. Kamlesh Lataprasad Gupta, 2018 SCC OnLine Bom 890
  14. The Hindu Marriage Act,1955
  15. Section 8,The Hindu Marriage Act,1955
  16. Section 60,The Indian Christian Marriage Act, 1872
  17. Section 9,The Indian Christian Marriage Act, 1872
  18. Section 4,The Indian Christian Marriage Act, 1872
  19. Section 5,The Indian Christian Marriage Act, 1872
  20. Section 10,The Indian Christian Marriage Act, 1872
  21. Section 11,The Indian Christian Marriage Act, 1872
  22. Section 12,The Indian Christian Marriage Act, 1872
  23. Section 13,The Indian Christian Marriage Act, 1872
  24. Section 16,The Indian Christian Marriage Act, 1872
  25. Section 17,The Indian Christian Marriage Act, 1872
  26. Section 18,The Indian Christian Marriage Act, 1872
  27. Section 25,The Indian Christian Marriage Act, 1872
  28. Section 17,The Indian Christian Marriage Act, 1872
  29. Section 27,The Indian Christian Marriage Act, 1872
  30. Section 61,The Indian Christian Marriage Act, 1872
  31. Section 60,The Indian Christian Marriage Act, 1872
  32. Section 61,The Indian Christian Marriage Act, 1872
  33. Section 3, The Parsi Marriage and Divorce Act, 1936
  34. Section 4, The Parsi Marriage and Divorce Act, 1936
  35. Section 6, The Parsi Marriage and Divorce Act, 1936
  36. Section 4, The Special Marriage Act,1954
  37. Section 4(a), The Special Marriage Act,1954
  38. Section 4(b)i, The Special Marriage Act,1954
  39. Section 4(b)ii, The Special Marriage Act,1954
  40. Section 4(b)iii, The Special Marriage Act,1954
  41. Section 4(c), The Special Marriage Act,1954
  42. Section 4(d), The Special Marriage Act,1954
  43. Section 4(e), The Special Marriage Act,1954
  44. Section 5, The Special Marriage Act,1954
  45. Lata Singh v. State of U.P., (2006) 5 SCC 475
  46. Article 21,Constituion of India
  47. Navtej Singh Johar v. Union of India, (2018) 1 SCC 791
  48. Section 377,The Indian Penal Code,1860

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