Legal Aspects of Marriage and Divorce in India: A Comparative View Across the Religion 

Abstract 

In India, marriage and divorce are governed by personal laws, collectively known as family law, which are rooted in the distinct cultures and traditions of each religion. This article compares the legal frameworks for marriage and divorce across different faiths, with a specific focus on the Hindu Marriage Act of 1955, the Muslim Personal Law (Shariat) Application Act of 1937, and the Dissolution of Muslim Marriages Act of 1939.

These laws have unique applications and limitations. A fundamental difference is their view of marriage: Hindu law regards it as a sacrament, while Muslim law considers it a contract. The article highlights other key distinctions, including the criteria for a valid marriage, grounds for divorce, and the minimum age for both the bride and groom.

Both legal systems are deeply influenced by their respective religious texts—Hindu law by its traditional scriptures and Muslim law by the Quran. Consequently, these personal laws are primarily based on religious doctrines rather than secular legal principles.

Introduction 

This article explores the legal frameworks governing marriage and divorce in India, with a focus on a comparative analysis of personal laws across different religious communities.

The Hindu Marriage Act, 1955, serves as the primary legislation for Hindus, Sikhs, Jains, and Buddhists, codifying their matrimonial laws. This Act mandates monogamy, prohibits polygamy, and stipulates a minimum marriageable age of 21 for grooms and 18 for brides. It fundamentally views marriage as a sacrament, with its validity contingent upon the performance of traditional ceremonies, most notably Saptapadi.

In contrast, the Muslim Marriage Law, primarily governed by the principles of Shariat, regards marriage as a civil contract. A valid Muslim marriage is predicated upon the essential elements of an offer (Ijab) and its acceptance (Qubul).

The Indian Christian Marriage Act, 1872, regulates marriages where at least one of the parties is a Christian. This legislation requires the solemnization of the marriage by a licensed minister or a person duly authorized to do so, in the presence of two witnesses. The age requirements for Christian marriage are consistent with those of the Hindu Marriage Act.

Further, this article will delve into other significant personal laws, including the Parsi Marriage and Divorce Act, 1936, and the Special Marriage Act, 1954, which provides for civil marriage regardless of religious affiliation. A crucial component of this analysis will be the legal provisions for alimony and maintenance following the dissolution of a marriage, a matter addressed differently under each of these legal frameworks.

Hindu laws 

The Hindu Marriage Act of 1955 applies to a wide range of individuals, including Hindus, Buddhists, Jains, and Sikhs. It also covers anyone living in the specified territories who isn’t a Muslim, Christian, Parsi, or Jew.

For a marriage between two Hindus to be valid under this act, five main conditions must be met:

• Both individuals must be single at the time of the marriage.

• Neither person can be suffering from a mental illness that would prevent them from giving valid consent or would make them unfit for marriage and having children.

• The groom must be at least 21 years old and the bride must be at least 18.

• The couple cannot be in a prohibited relationship or;
• A sapinda relationship, unless a custom or tradition allows for it.

A Hindu marriage is considered complete and valid once the necessary ceremonies and rites, particularly the Saptapadi, have been performed. This is because, under the Hindu Marriage Act, marriage is viewed as a sacred sacrament.

Muslim Personal Law (Shariat) Application Act 1937

Under Muslim Personal Law, marriage, or Nikah, is not a sacrament like in some other faiths. Instead, it’s considered a civil contract between a man and a woman. While the Quran refers to it as a “Mishaaqan Ghaliza” (a sacred and noble covenant), legal definitions, such as those by Baillie and Ameer Ali, describe it as a contract to legitimize sexual intercourse and ensure the protection of society from promiscuity. Iddat is the period of typically three menstrual cycles, which is essential to ensure the woman is not pregnant after the dissolution of her husband’s. If  after the death of the husband then the woman or widow should follow the four lunar months and then days as iddat. It is the step that follows before the remarriage after the divorce or death of her husband.

For a Nikah to be valid, it must meet specific conditions:

• It requires a clear offer (Ijab) and acceptance (Qubal).

• Both individuals must be of sound mind and have reached the age of majority (puberty).

• Consent from both parties must be free and not coerced.

This act doesn’t contain a specific section defining marriage but rather outlines the conditions for a valid contract.

Indian Christian Marriage Act 1872

Under the Indian Christian Marriage Act of 1872, a marriage is a valid union that must be performed by an authorized individual, such as a licensed clergyman or a Marriage Registrar. At least one of the individuals getting married must be a Christian.

For a marriage to be valid, several conditions must be met:

• Both the bride and groom must be of legal age, with the groom being at least 21 and the bride at least 18.

• Neither person can have a living spouse at the time of the marriage.

• Both parties must give their free and informed consent, which cannot be obtained through misrepresentation or coercion.

• The ceremony must have at least two witnesses present.
• The couple must give a notice of their intent to marry.

Christian marriages are typically performed in a church between 6 a.m. and 7 p.m., although exceptions are possible. After the ceremony, a marriage certificate is issued by the registrar.

Parsi Marriage: A Look at the 1936 Act

The Parsi Marriage and Divorce Act of 1936 governs matrimonial matters exclusively for members of the Parsi community. The solemnization of a Parsi marriage is a sacred ceremony known as Ashirvad, which is performed by a Parsi priest (mobed). For the marriage to be legally valid, it must take place in the presence of at least two Parsi witnesses.  

Like other personal laws in India, this Act prohibits marriages within certain relationships based on consanguinity (blood ties) and affinity (relationship by marriage), as specifically outlined in Schedule I. Furthermore, the age requirements for the bride and groom are the same as those stipulated in Hindu law.  

The Special Marriage Act of 1954

The Special Marriage Act of 1954 provides a secular and unified law for marriage in India. It enables any two people, regardless of their religious beliefs, to have their marriage legally recognized as a civil contract rather than a religious sacrament. This makes it a vital legal option for inter-faith couples who choose not to marry under their specific personal laws, such as the Hindu, Muslim, or Christian marriage acts.  

A key requirement of this Act is the 30-day public notice period. Before the marriage can be finalized, one of the parties must submit a notice to the Marriage Registrar of the district where at least one of them has resided for 30 days. This notice is then displayed publicly, allowing for any objections to be raised. If no valid objections are received within this period, the marriage can be solemnized.  

The Act’s secular nature and its emphasis on a civil ceremony make it a significant piece of legislation for promoting individual choice and religious freedom in matters of marriage. It ensures that even in a country with diverse religious laws, there is a common legal avenue for all citizens to formalize their union.  

Comparative analysis of Indian personal laws:

S.No	Feature	Hindu Marriage Act, 1955	Muslim Personal Law	Indian Christian Marriage Act, 1872	Parsi Marriage and Divorce Act, 1936	Special Marriage Act, 1954
1	Nature of Marriage & Applicability	Sacrament. Considered a holy union for life. Applicable to Hindus, Buddhists, Jains, Sikhs.	Contract. A civil contract between two parties. It is applicable only to Muslims.	Sacrament. A holy union. It is applicable only for Christians.	Contract with religious elements. Ceremonies are religious but law provides for divorce. It is applicable only to Parsis.	Civil Contract. Purely secular. It is applicable to any two individuals irrespective of their religion.
2	Ceremony/Key Rite	Saptapadi	Ijab and Qubul (Offer and Acceptance).	Performed by a licensed minister or registrar.	Ashirvad by a Parsi priest.	Performed by a Marriage Registrar.
3	Minimum Age	Groom: 21, Bride: 18.	Both groom and bride attain puberty.	Groom: 21, Bride: 18.	Groom: 21, Bride: 18.	Groom: 21, Bride: 18.
4	Grounds for Divorce	Fault-Based (e.g., adultery, cruelty, desertion, conversion) and Mutual Consent.	Talaq (unilateral by husband), Khula (by mutual consent), illa, lian, and Judicial Divorce for women under the 1939 Act (e.g., cruelty, non-maintenance)	Fault-Based (e.g., adultery, cruelty) and Mutual Consent.	Fault-Based (e.g., adultery, cruelty) and Mutual Consent.	Fault-Based (e.g., adultery, cruelty) and Mutual Consent.
5	Alimony/Maintenance	Both husband and wife can claim. Can be permanent or temporary. Based on income and conduct.	Wife is entitled to mahr and maintenance during the iddat period. May also claim under Section 125 of CrPC.	Usually paid by husband to wife. Can be a lump sum or monthly payments.	Usually paid by husband to wife. Based on income and conduct.	Both husband and wife can claim. Can be permanent or temporary. Based on financial capacity.

 

Alimony and Maintenance in personal laws of India 

In India, alimony and maintenance are legal obligations for financial support provided to a spouse during or after a marriage is dissolved. The rules governing this support vary significantly across different personal laws, reflecting the country’s diverse legal landscape. While maintenance typically refers to ongoing financial support paid periodically, alimony often refers to a one-time, lump-sum payment.

Hindu Law

Under the Hindu Marriage Act, 1955, both the husband and the wife have the right to claim maintenance. The law is gender-neutral in this regard, with the court’s decision based on the financial capacity of each spouse.

• Temporary Maintenance: Section 24 allows a financially dependent spouse to claim interim maintenance and litigation expenses during ongoing divorce proceedings.
• Permanent Maintenance: Section 25 empowers the court to grant a gross sum or a periodic payment for permanent support after a divorce. The amount is determined by factors like the parties’ income, property, and standard of living.

Muslim Law

In Muslim law, a husband has an absolute duty to maintain his wife. This is a fundamental aspect of the marriage contract.

• During Marriage: A husband is obligated to provide for his wife’s basic needs.
• After Divorce: A divorced Muslim woman is entitled to maintenance for the Iddat period (approximately three months) from her former husband. However, under the Muslim Women (Protection of Rights on Divorce) Act, 1986, a woman can also claim a “reasonable and fair provision and maintenance” from her ex-husband beyond the Iddat period. She is also entitled to her mahr (dower) which was agreed upon at the time of marriage.

Christian Law

Maintenance for Christians is primarily governed by the Indian Divorce Act, 1869.

• Alimony Pending Suit: Section 36 allows a wife to petition for interim maintenance during a divorce proceeding.
• Permanent Alimony: Section 37 enables the court to order the husband to pay a gross sum or a monthly/periodical amount to the wife for her support. The amount cannot exceed one-fifth of the husband’s income.

Parsi Law

The Parsi Marriage and Divorce Act, 1936, provides for both temporary and permanent alimony.

• Permanent Alimony: Section 40 allows either the husband or the wife to claim maintenance. The court can order a lump sum or monthly payments based on the financial resources and conduct of both parties. The order can be varied or rescinded if there is a change in circumstances, such as the recipient’s remarriage.

Special Marriage Act

This secular law applies to inter-faith marriages and provides for maintenance for both spouses, irrespective of gender.

Maintenance: Sections 36 and 37 deal with alimony and maintenance. A court can order the respondent to pay a gross sum or monthly/periodical payments for the support of the petitioner. The amount is determined based on factors similar to those in Hindu law, including income, assets, and conduct.