“THE NUANCES OF NUPTIALS: AN IN-DEPTH EXPLORATION OF MARRIAGE LAWS IN INDIA”

Published On: 30th August, 2024

Authored By: Mickhita Bansal

Baba Farid Law College, Faridkot

ABSTRACT

This article provides a detailed analysis of the marriage laws in India, recent trends, and case studies on the same. This section explores the various laws governing Hindu, Muslim, Christian, Parsi, and other marriages in India. It also explains the procedure of solemnization and registration of marriage. It discusses prohibited marriages in India along with the criticisms faced by the marriage laws. It aims to provide a deeper understanding of the changes made in the marriage laws during running times.

INTRODUCTION

Solemnization of marriage in India is considered a combination of customs and law, where customs are combined with the legal framework to form a social structure. The concept of marriage in India is not only legal but also sacred because every community in the society has its own set of rules governing marriage according to their religions. People tend to follow customs for the ceremonies of marriage but register their marriage according to the laws of India. The laws governing marriage focus not only on creating rules and regulations for marriage but also tend to provide equality and justice for all.

In India, there are various laws that govern marriages, such as the Hindu Marriage Act, of 1955, the Muslim Personal Law (Shariat), the Indian Christian Marriage Act, of 1872, the Parsi Marriage and Divorce Act, of 1954, and the Special Marriage Act, 1954. These laws cover all the necessary aspects of a marriage, including the void, voidable, and valid marriage, divorce laws, maintenance grounds, and child custody. There are not only these laws but also certain amendments happening with the change in societal norms these days like The Personal Laws (Amendment) Act, of 2019, the Marriage Laws (Amendment) Act, of 2013, and many more.

Through this examination, we have explained various aspects of marriage laws in India and have tried to provide practical insights for those entering this phase of life.

LEGAL FRAMEWORK

The legal framework for marriage in India has various aspects that are distinct in every community. Our India has a mix of religions living together on the same territory. As per the 2011 census, the number of Hindus grew to 966 million (from 304 million in 1951), Muslims to 172 million (from 35 million), Christians to 28 million (from 8 million), Sikhs to 20.8 million (from 6.8 million), Buddhists to 8.4 million (from 2.7 million), and Jains to 4.5 million (from 1.7 million). India’s Parsis, a small minority, are unusual as their population shrank by almost half to 60,000 in 2011.^[i] Each of these communities has a separate procedure for the solemnization of their marriages. Now, we discuss the various statutes governing these laws by quoting the differences between the various laws on the basis of conditions for valid, void, and voidable marriages and stating prohibited relations in each statute:

1. Hindu Marriage Act, 1955

The above-stated Act by its name shows that only Hindus will be governed by this Act, but when we go into the depth of the norms of this Act, we discover that by the purview of section 2 of the Act, this Act applies.

(a) to any person who is Hindu by religion in any of its forms or developments, including a Vira Shaiva, a Lingayat, a follower of the Brahms, Prathama, or Arya Sami;

(b) to any person who is a Buddhist, Jaina, or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi, or Jew by religion unless it is proved that any such person would not have been governed by Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.^[ii]

Hence, in simple words, we can say that the Hindu Marriage Act of 1955 applies to Hindus, Buddhists, Jains, and Sikhs. It also applies to any person who is not a Muslim, Christian, Parsi, or Jew by religion, unless it is proved that the person would not be governed by Hindu law.

1.1 Conditions for Hindu Marriage

The conditions for a valid Hindu Marriage are stated in section 5 of the Act.

Monogamy: The first and most common condition for a valid Hindu marriage is that each party while solemnizing a marriage shall not have a living spouse. Monogamy means having one living partner at one time.
Competence for marriage: Each party solemnizing marriage shall not be an idiot or lunatic at the time of marriage. The male spouse must have completed 21 years of age and the female spouse must have completed 18 years of age. The parties shall not be within the prohibited degrees of relationship unless customs allow it.
Sapinda Relationship: The parties are not spindles of each other, i.e., the spouse solemnizing marriage shares a common ancestor. These relationships extend to the third generation through the mothers and the fifth generation through the fathers’ side.
Consent of Guardian: The bride who has not completed the age of 18 but has obtained the consent of her guardian will constitute a valid marriage.

1.2 Void and Voidable Marriages

a) Void Marriages: According to section 11 of the Act, a marriage, that is bigamous, or where the marriage is within prohibited degrees of relationship, or where the spouses share a sapid relationship with each other, shall be null and void and can be declared by a decree of nullity. A void marriage means that, as per the laws, never sought any existence, , i.e., it is void ab initio.

b) Voidable Marriages: A voidable marriage is when it is valid but may be declared void by a court of law. According to section 12 of the Act, the conditions for the same are as follows:

Impotency: Either of the spouses during the solemnization of marriage was impotent, and the facts were kept hidden from the other partner.
Competency: The spouse was either an idiot or a lunatic at the time of marriage.
Consent: Consent to marry was obtained through fraud or coercion.
Pregnancy: The female engaged in marriage was pregnant by another person before marriage.

2. Muslim Personal (Shariat) Application Act, 1937

The above statute applies to all Muslims in India as per section 2 of the Act.

2.1 Conditions for a Valid Muslim Marriage

- Muslim: Anyone who is Muslim.
- Competency: Any person who is competent to contract, i.e., parties must be of sound mind, have attained puberty, and should not be a prohibited relationship.
- Both parties must agree to the marriage contract (Nikah): In Muslim Laws, they believe that marriage is a civil contract between Muslim men and women where there must be an offer (Ijab) and acceptance (Qubool).
- The groom must offer the bride a gift(dower) which is called Mehr, and it becomes her exclusive property.

2.2 Void and Voidable Marriages

a. Void Marriage:

Prohibited degrees of relationship: Marriage in prohibited relationships is considered to be void ab initio.
Polygamous marriage: A Muslim who has more than 4 wives living at the same time is void. In Muslim Law, the valid number of marriages is 4 at a time.
Lack of the fulfillment of conditions for marriage: A Muslim Marriage is considered to be a civil contract where the conditions of a contract under the Indian Contract Act, of 1872 are valid, which states that both parties offer and accept, with free consent, and give Mehr as consideration. If a marriage lacks any of these essentials, it will be void.

b. Voidable Marriage:

Non-Consummation: Neither of the spouses was impotent because there was no consummation, and the fact was fraudulently kept hidden from the other partner.
No free consent: consent for marriage was not obtained by free consent. Instead, coercion, fraud, or misrepresentation was used to obtain it.
Unsound mind: Any party was of an unsound mind during marriage, and the fact was kept hidden from the other party.

2.3 Prohibited marriages:

- - Consanguinity: Marriages between close blood relatives who descend from a common ancestor are prohibited. Marriage between siblings, parents, and children are examples of such relationships.
  - Affinity: Marriage between people related by marriage is prohibited. The marriage between stepchildren and their stepparents is an example to quote.
  - Fosterage: Marriage between people who are breastfed by the same woman. One was her biological child the being her foster child.
  - Religion: In case of a permanent marriage, Muslims are prohibited from marrying outside their religion but in case of a temporary marriage, Muslims can marry a Christian or Jewish woman.

3. Indian Christian Marriage Act, 1872

The above Act is only applicable to Christians. According to the Act, if at least one partner is a Christian, the rules and regulations of this Act shall apply, and the marriage shall be a valid one.

3.1 Conditions for Marriage

According to section 60 of the Act, the following shall be complied with:

Eligibility of age: The age of males and females must not be under 21 years of age or under 18 years of age.
Monogamy: The Act states that neither of the parties shall have a spouse living at the time of marriage.
Marriage shall be performed by a person who has the authority to grant a certificate of marriage and in the presence of two credible witnesses.^[iii]

3.2 Void and Voidable Marriages:

a. Void marriage

Bigamy: If either party is solemnizing a bigamous marriage, it is void. As we already know as per section 61, the prior condition is that the marriage should be monogamous.
Underage Marriage: If any of the spouses does not fulfill the age criteria provided under section 60, the marriage is void.
Licensed by unauthorized person: If the marriage is not solemnized by a duly authorized person, the marriage is void ab initio.

b. Voidable Marriage

Lack of consent: There is no free consent of the parties for marriage, and consent was obtained by some illegal means like coercion, fraud, etc.
Incompetency: According to section 19 of the Indian Divorce Act, 1869, if either party is incapable of consummating the marriage and the incompetence is from the time of marriage.
Mental Capacity: Any party was lunatic or idiotic at the time of marriage.

4. Parsi Marriage and Divorce Act of 1936

According to section 2(7)^[iv] of the above-stated Act, the provisions of this Act apply to Parsis, also known as Zoroastrians. The Act also provides for the registration of marriages and divorces.

4.1 Conditions for valid Parsi marriage:

According to section 3 of the same Act,

Blood Relations: The parties must not be related to each other in terms of consanguinity or affinity i.e., the marriage shall not fall under the category of prohibited relationships.
Ashirvad ceremony: Marriage shall be solemnized in an Ashirvad ceremony in which there is the presence of a priest and two credible witnesses.
Age Criteria: The male contracting marriage should have been completed by the age of 21 and the female, by 18.

4.2 Void and Voidable Marriages

- Void Marriage:

According to section 4 of the Act, bigamy is void.

Voidable Marriage

According to section 30 of the Act, if a marriage cannot be consummated, it may be declared void if the other party wishes to apply for the same.

5. Special Marriage Act, 1954

According to section 2 of the Act, the provisions of this Act apply to all citizens of India, irrespective of religion, and all Indian Nationals living in foreign countries. The marriage performed under this Act is a civil contract, as in Muslim law, but the difference here is that no rites or ceremonies are performed in the marriage.

5.1 Conditions for a valid marriage

According to section 4 of the Act,

Free Consent: The parties to a marriage must be able to provide free and valid consent.
Age eligibility: The male party must have completed the age of 21 and the female, 18.
Prohibited Relations: The parties must not be related to each other under prohibited relations as previously defined.

5.2 Void and Voidable Marriages

a. Void Marriage: According to section 24 of the Act,

If there was no free consent, or any of the parties were incompetent at the time of marriage, then the marriage is void.

b. Voidable Marriage Law: According to section 25 of the Act,

The marriage has not been consummated by a willful refusal, or
The female was already pregnant before marriage by a person other than her spouse, or
Consent to marry was obtained through coercion or fraud.

RECENT TRENDS AND DEVELOPMENTS

Let us discuss some recent legal developments as there have been several developments and reforms in marriage laws in India:

Ban on Triple Talaq:

In the case of Shayara Bano v. The Union of India (2017), the Supreme Court imposed a complete ban on the practice of triple talaq (talaq-e-biddat) among Muslims and declared it unconstitutional. In 2019, the Muslim Women (Protection of Rights on Marriage) Act 2019 also declared it unconstitutional.

Age criteria for marriage:

The legal age for marriage for boys (18) and girls (14) was established by the Child Marriage Restraint Act of 1929. However, in 1978, the age was raised to 21 for boys and 18 for girls by amending the same Act. Recently, a bill to raise the age of legal marriage to 21 was introduced in Parliament by the Narendra Modi government in 2021. The bill has not yet been passed.

Marriage equality

Supriyo @ Supriya Chakraborty v. Union of India (Supriyo), the Supreme Court stated that the courts do not possess the right to grant a right to marry because it is a statutory right and not a constitutional right. Transgenders in heterogeneous relationships can marry under any law in India, but where the matter of non-heterosexual marriage is concerned, it is a matter of Parliament to decide.

CASE STUDIES

Lata Singh vs. the State of UP (2006):

In this case, the Supreme Court of India held that choosing a life partner is a Fundamental Right under Article 21. The court ruled that no one, including the parents, had the right to interfere with the marriage of two consenting adults. The court also stated that if the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage, the maximum they can do is cut off social relations with the son or daughter, but they cannot make threats or commit or instigate acts of violence.^[v]

Khushboo vs Kanniammal (2010):

In this case, the petitioner provided an interview on pre-marital sex, stating that it was not illegal. Certain people were defended by the statement and filed a case against her. The Supreme Court of India held that there is no legal provision that states that pre-marital sex is illegal and hence it does not amount to obscenity because the plaintiff only expressed her opinion.^[vi]

Navtej Singh Johar & Ors. v. The Union of India (2018):

In this landmark case, the Supreme Court of India decriminalized homosexuality, which was considered to be a significant step towards the rights of the LGBTQIA+ community. Dancer Navtej Singh Johar submitted the petition in this case, arguing that Section 377 of the Penal Code violates several fundamental rights guaranteed to other citizens, including the right to privacy, equality, and protection from discrimination. The Court stated that discrimination on the basis of gender was a violation of the right to equality, thus criminalizing consensual sex between adults, which was considered a violation of the right to privacy. Based on the above grounds, the Supreme Court issued a landmark judgment that fundamental rights cannot be denied on the grounds of gender discrimination.^[vii]

Supriyo @ Supriya Chakraborty & Another. v. The Union of India (2023):

In this case, the constitutionality of the Special Marriage Act, of 1954, was challenged by two same-sex couples. They argued that Section 4 of the Act only recognizes marriage between a ‘male’ and a ‘female’, having no talk for the homogenous couple, thus leading to a denial of matrimonial benefits and other benefits provided in the Act. The Supreme Court upheld the validity of the 1954 Special Marriage Act, stating that the right to marry was not a fundamental right for the LGBTQIA+ community.^[viii]

CONCLUSION

In conclusion, we get to know the various laws regarding marriage in our country and some recent trends that have taken place. But still, there are a lot of loopholes that need to be identified and filled. As stated in the above case, the court also stays quiet on same-sex marriages and leaves a decision to the parliament. The case of live-in relationships is quite popular, as we know that the Supreme Court has recognized this, but our society still does not accept this. There are a lot of crimes associated with live-in relationships like the Sharadha Walker Murder Case, which has again terrorized society. The court must recognize these rising problems and make decisions accordingly, and also some laws regarding the same shall be made by Parliament.