MARRIAGE LAWS IN INDIA

ABSTRACT

Marriage and Family are two social institutions that are interrelated and complementary. A family exists only after two individuals male and female decide to mate together. This mating relationship is established through marriage. Therefore, marriage is an integral step towards creating a family. This article emphasizes the various personal laws that deal with marriage in India focusing on Hindu, Muslim, Christian, Parsi, and tribal marriages, along with marriages under the Special Marriage Act, of 1954. The paper also highlights contemporary issues in Indian marriage laws, such as child marriage, bigamy, and same-sex marriages.

INTRODUCTION

The family is one of the greatest sociological institutions. Maclver defines family as “a group defined by sex relationship sufficiently precise and enduring to provide for the procreation and upbringing of children.” Marriage is a socially approved way of creating a family of procreation. It holds a very significant role in a human’s life and it is more or less an universal institution. Alfred McClung defined marriage as, “The public joining together, under socially specified regulations of a man and a woman as husband and wife”. India is one of the most culturally diverse nations in the world and this institution of marriage has been in existence since time immemorial. It is considered to be sacred. Once a marriage bond is tied between a husband and wife through customs and rituals, it is believed to be irrevocable.

Marriage is something that is found in literate as well as illiterate people. It is a social rule which is of extreme importance in most of the societies. It varies from society to society as each culture has different rules regulating marriage. Who should marry whom? One should marry how many? – These are some questions that are entertained differently and the social rules regulating them differ significantly. These differences are formed due to various economic, and social disparities.

Although the social rules might vary within religions, in a State, laws govern the marriage rules. These laws are legislated while keeping in mind both the religious meaning behind the process as well as the rights and opinions of the people. Personal laws are made in India to protect every person’s right to practice any religion[1]. Personal laws govern specific ties between people including kin and affinity such as marriage, inheritance, divorce, etc.  In India, there are uncodified personal laws that are not uniform and culturally specific. Currently, the cultures that have legalized marriage laws in India are Hindus, Muslims, Parsis, and Christians.

• The Special Marriage Act, 1954
• The Hindu Marriage Act, 1955 with amendment in 1976
• The Dissolution of Muslim Marriage Act, 1939; The Muslim Women Protection of Rights on Divorce, 1986
• The Parsi Marriage and Divorce Act, 1936
• The Christian Marriage Act, 1872

HINDU MARRIAGE

In Hindus, marriage is a matter of religious duty. According to the Hindu scheme of Ashramas, one can only enter “grihasthashrama” after the marriage. Marriage in Hindus is neither a matter of “social contract” nor is it deemed as “a license for sex life”, rather it is looked at as a great sacrament. The Hindu Marriage Act, of 1955 governs Hindu marriages. HMA aims to amend and codify the law relating to marriage among Hindus and has extra-territorial operation.[2] According to the Act, only a person who is of Hindu religion, or a person who is a Buddhist, Sikh, or Jaina by religion comes under the jurisdiction of this Act.[3]

Conditions for a valid marriage under the Hindu Marriage Act require the following:-[4]

1. Neither party has a living spouse at the time of the marriage.
2. At the time of the marriage neither party [5]–

a) is incapable of giving valid consent because of unsoundness of mind; or

b) Has been suffering from a mental disorder of such as kind or to such an extent that it might be unfit for procreation of children; or

c) Has been subject to recurrent attacks of epilepsy or insanity.

3. The bridegroom has completed 21 years of age and the bride is 18 years of age.

4. The parties are not within the degrees of prohibited relationship unless the customs permit the marriage between them.

5. The parties are not sapnidas of each other.

The marriage is solemnized and is complete only once the ceremonies and rites that include the Saptapadi (taking of seven steps by the bridegroom and the bride jointly before the sacred fire) are adhered to. After the completion of the rites, for facilitating proof of the Hindu marriage the State provides for the registration of the marriage through which the certificate of marriage is issued. Unless the parties have undergone such ceremony, there would be no Hindu marriage according to Section 7 of the Act[6], and a mere issuance of a certificate by an entity in the absence of the requisite ceremonies having been performed, would neither confirm any marital status to the parties nor establish a marriage under Hindu law.[7]

Under the Hindu Marriage Act, permission is granted for inter-cast as well as inter-religious marriages. The Act also provides equal rights for men and women in the marriage.

MARRIAGE UNDER MUSLIM LAW

Marriage (Nikah) in Mahomedan Law is considered to be a contract. According to Roland Wilson [1941], “Muslim marriage is a contract to legalize sexual intercourse and the procreation of children.” Hence, on paper, it is not necessary to conduct a religious ceremony to enter into this relationship. Only the agreement between the two parties arising out of the proposal and its acceptance is essential.

A Muslim who is of sound mind and has attained puberty presumed to have done so at 13-15 years of age is qualified to marry. In addition to that, lunatics or persons of unsound mind and minors may be validly contracted into marriage by their respective guardians.[8] Mahomedan Law regulates the contractual capacity of the marriage. This contractual character of the marriage is because of the presence of dower or Mehr which is a sum of money or property, the wife receives from the husband as a consideration of the marriage.

Muslim marriage can be categorized as either valid, irregular, or void.

1. Valid Marriage (Sahih) – Valid marriages form obligatory functions between husband and wife. The essentials of a valid marriage are contractual capacity, the absence of prohibited degrees of relationships, and certain irregularities.
2. Irregular Marriage (Fasid) – An irregular marriage has the presence of temporary disqualifications according to Muslim Law. Hence, once the prohibition is removed the marriage can be lawful again[9]. This includes marrying a fifth wife in the presence of the other four wives.

• Void Marriages (Batil) – A void marriage is between prohibited degrees of relationships that cannot be corrected. Such marriages become invalid. These marriages are merely illegitimate.

The wife’s responsibilities include showing respect for the husband who is the head of the household, religious and moral upbringing of children, creating a peaceful and conducive home environment, managing family resources, advising the husband, cooperating with him, protecting his interests, and maintaining her chastity. On the other hand, the Muslim woman is entitled to maintenance from her husband which includes the provision of shelter, feeding, clothing, education, and security no matter how wealthy she may be.[10]

CHRISTIAN MARRIAGE

The Christian Marriage Act, of 1872[11], is the legislation applied in India for Christian marriages. Under this Act, marriage between two persons, one or both being Christians can be solemnized[12]. Whether or not they have been baptized into the faith need not determine their status as a Christian. Rather, the law looks at the genuineness of the person’s faith in the religion, to determine whether they are a Christian or not.[13] The validity of the marriage forbids any marriage between prohibited degrees of relationships[14].

The conditions for Indian Christians to be able to solemnize marriage under this Act are as follows[15]:-

1. The age of the man marrying should be 21 years of age and the age of the woman should be 18 years.
2. Neither shall have a spouse living at the time of marriage.

• In the presence of a person who is licensed to grant a certificate[16] and at least two credible witnesses; each of the parties shall say to the other— “I call upon these persons here present to witness that. 1, A. B., in the presence of Almighty God, and in the name of our Lord Jesus Christ, do take thee, C. D., to be my lawful wedded wife (or husband)” or words to the like effect.

PARSI MARRIAGE

The Parsi Marriage and Divorce Act, of 1936[17], is the legislation that deals with marriage and divorce among Parsis in India. This Act was passed by the British Government however, it was amended in 1988. The people in the Parsi Community are Zoroastrian Iranians originally from Persia who came to the Indian shores to escape religious persecution.[18]

The conditions for a valid marriage are as follows:-

1. The parties should not be related to each other by consanguinity or affinity as per Schedule – I of the Act which lists down the degrees of prohibited relationships.
2. The age of marriage for the man is 21 years of age and for the woman 18 years of age.

• The marriage should solemnized under the ceremony of “Ashirvad” by a priest in the presence of two witnesses.

A Parsi marriage is monogamous. A Parsi cannot remarry unless the first marriage is void[19] as bigamy is an acknowledged offence subject to punishment[20]. After the ceremony, the officiating priest certifies the marriage which is deemed compulsory[21].

SPECIAL MARRIAGE ACT, 1954[22]

This Act was specifically made for those inter-religious marriages which do not come under any of the personal laws for marriage in India. Under this Act, two persons irrespective of their religion can solemnize their marriage. The only different condition for the marriage under this act is that the parties should be citizens and domiciled in the areas this Act is applicable[23].

Before the solemnization of marriage, a notice for the marriage is to be given to the Marriage Officer of the district in which either of the parties had been residing immediately previous to the notice for at least 30 days. [24] In addition, a period of 30 days is provided for anyone to raise objections to the intended marriage. If none are raised then the parties along with three witnesses sign in the presence of the Marriage Officer stating that the conditions for a valid marriage have been fulfilled. Then the parties choose any form of marriage they want to adopt but should include the declaration; “I take thee to be my lawful wife (or husband)”. This concludes with the signing of the certificate by the parties and the three witnesses.[25] The limitation for the solemnization after the notice is issued is 3 months after which the notice will lapse.

The Act lays down five conditions of marriage:

1. Monogamy
2. Mental soundness (Clause b)
3. Marital age
4. Relationship (Clause d)
5. Conditions of marriage in J&K (Clause e)

The only distinguishing feature of this Act from the other legislations is its acceptance of all kinds of marriages irrespective of the cast and religious differences and that too without any requisite to change the religion.[26]

TRIBAL MARRIAGES

Tribal marriage is a complex marriage system, as it includes marriage by negotiation, marriage by trial, marriage by Bride Price, and a few marriages on marriage by elopement. The main feature of a tribal marriage is “preferential marriage”, a commonly used practice.[27] There is no specific legislation for tribal marriages in India but there are various types of tribal marriages practiced. Tribal Marriage majorly has 4 forms:-

1. Polygyny – A form of marriage when one man marries more than one woman at a given time. The Nagas, Gonds, and Baigas in India practice polygyny.
2. Polyandry – A form of marriage in which one woman marries many men. In India tribes such as Kata, the Khasa, the Toda, etc. practice polyandry.

• Monogamy – A form of marriage in which one man marries one woman. This is one of the most common forms of marriage among primitives as well as civilians.

1. Group Marriage – A form in which two or more women marry two or more men.

CHALLENGES AND ISSUES IN MARRIAGE LAWS

Below are some of the challenges and issues faced regarding marriages in India.

CHILD MARRIAGE

Child Marriage has been a major concern of the people in India. The first attempt at eradication of child marriages in India was done by the British by the Child Marriage Restraint Act, of 1929 which made the valid age of marriage 15 for the bride and 18 for the bridegroom. This marital age limit was raised in 1978 to 18 years for the bride and 21 for the bridegroom and the Act was eventually repealed by the Prohibition of Child Marriage Act, 2006. However, India still has the child marriage tradition rooted deep in its culture.

According to the Registrar General of India (RGI) Report (2001), Rajasthan has the highest (40.8) percentage of females ever married among 15-19-year-old girls as compared to India (24.9 %) followed by Bihar (39.6 %), Madhya Pradesh (34.1%), Jharkhand (32.9%) and Andhra Pradesh (32.3%). Among the various districts of Rajasthan, Bhilwara is at the top with 61.9 percent[28]. Child marriage violates the fundamental as well as the human rights of the children along with scarring them with physical and psychological traumas.

BIGAMY

The offense of bigamy or marrying again during the lifetime of a husband or wife is punishable under Section 494 of the Penal Code (S. 494)[29] and Section 17 of the Hindu Marriage Act, 1955. Conversion of religion has been a common feature of practicing the right to religion. However, the conversion from one religion to another to enjoy the marital features of that particular religion is immoral and unconstitutional. If a Hindu married man converts to Islam and marries for the second time while having the first marriage still intact, it is void and the apostate husband is guilty of bigamy under sec 494 of the Indian Penal Code[30]. The people aggrieved by this decision of the Supreme Court are those alleged to have violated and now are asking for protection under the right to freedom of religion[31]. Hence the charge of bigamy can only be avoided if the first marriage is done under the Mahomedan Law. According to the Kerala High Court judgment, bigamy is a punishable offense irrespective of religion and personal laws[32]. For Muslim people, the offense is only punishable for women as according to their religious texts women are not allowed to marry another man when their first marriage is still valid. This instills a sense of inequality and at the same time diminishes the value of gender neutrality of bigamy as an offense in its whole sense.

SAME-SEX MARRIAGES

In India, homosexuality is considered taboo. Marriages in India, in all the personal laws, are only said to be between a “man” and a “woman”. However, the awareness among Indians about the rights of homosexuals has raised questions about whether India will approve of same-sex marriages. The question of same-sex marriage has been protested for a long time. It recently got attention by the decriminalization of section 377, where the Supreme Court[33] ruled out the section that criminalized homosexuality. Decriminalization has made homosexuality less stigmatized in society and has given homosexuals and other sexual minorities a sense of psychological and emotional stability[34].

The Delhi High Court has issued a notice in a couple of writ petitions seeking marriage equality for same-sex couples in India[35]. Legalizing same-sex marriage will require either an amendment to the Special Marriage Act or an entirely new set of laws for the LGBTQ+ community[36]. Some people protest against same-sex marriages stating that it is against the very foundation and meaning of “marriage” however, others advocate it by saying that it violates the rights of such people as it restricts them from living their life freely and equally as the others.

CONCLUSION

While marriage seems like a private business, it is important to regulate it through social and legal norms. However, this regulation should not be at the expense of violating the fundamental rights of individuals. India portrays its unique and diverse multicultural aspect with its distinct personal laws for Muslims, Hindus, Parsis, and Christians. Despite the differences, it upholds the significance of marriage in each person’s life.

However, there are certain issues such as bigamy, child marriage, and ongoing debates on same-sex marriage which depict and question the bad side of the marriage system in India. Although steps have been taken to ensure progressive changes, there remains a need for consistent enforcement. This consistency can be possible through uniformity in laws which is a highly debated subject today.

As India continues to evolve, the marriage laws also need to evolve along with the coming generation where human rights are valued more than traditions and customs. Therefore, legal reforms should not only address the shortcomings of the existing personal laws but also strive for inclusivity and gender equality. Achieving a balance between respecting the customs of marriage and upholding the constitutional principles of justice and equality will be the key to strengthening the marriage system of India.

 

REFERENCES

G.C.V. Subba Rao, Family Law in India, Narendra Gogia & Company (10^th Edition).

CN Shankar Rao, Principles of Sociology with an Introduction to Sociological Thought, S. Chand Publications (7^th Edition).

[1] INDIA CONST. art. 25.

[2] Validity of a marriage under Hindu law (2023) Drishti Judiciary. Available at:

https://www.drishtijudiciary.com/to-the-point/ttp-hindu-law/validity-of-a-marriage (Accessed: 21 October 2024).

[3] Hindu Marriage Act, 1955, sec 2.

[4] Hindu Marriage Act, 1955, sec 5.

[5] Hindu Marriage (Amendment) Act, 1976, sec 5(ii).

[6] Mahila Gumani v. Ram Dayal, 1953 MB 159 (India).

[7] Dolly Rani v. Manish Kumar Chanchal, [2024] 5 S.C.R. 510: 2024 INSC 355 (India).

[8] Nambi, S. (2005) Marriage, mental health and the Indian legislation, Indian Journal of Psychiatry. Available at: https://pmc.ncbi.nlm.nih.gov/articles/PMC2918313/#sec1-5 (Accessed: 22 October 2024).

[9] Chand Patel v. Bismillah Begum, AIR 2008 SC 1915: (2008) 4 SCC 774 (India).

[10] Dr. Meraj Ahmad Meraj. (2018). “THE IMPORTANCE OF MARRIAGE IN ISLAM.” International Journal of Research – Granthaalayah, 6(11), 1-6. https://doi.org/10.29121/granthaalayah.v6.i11.2018.1082.

[11] The Christian Marriage Act, 1872, No.15, Acts of Parliament, 1872 (India).

[12] The Christian Marriage Act, 1872, sec 4.

[13] Manral, A. (no date) Christian Law Archives, Nyaaya. Available at:

https://nyaaya.org/optional_grouping/christian-law/#footnote_0_964 (Accessed: 22 October 2024).

[14] The Christian Marriage Act, Act No. 15, 1872, sec 88.

[15] The Christian Marriage Act, 1872, sec 60.

[16] The Christian Marriage Act, 1872, sec 9.

[17] The Parsi Marriage and Divorce Act, 1936, No. 3, Acts of Parliament, 1936 (India).

[18] Shaji, G. (2023) Parsi Marriage and divorce act, 1936: A comprehensive guide, Getlegal India. Available at: https://getlegalindia.com/parsi-marriage-and-divorce-a/ (Accessed: 22 October 2024).

[19] The Parsi Marriage and Divorce Act, 1936, sec 4.

[20] The Parsi Marriage and Divorce Act, 1936, sec 5.

[21] The Parsi Marriage and Divorce Act, 1936, sec 6.

[22] The Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954 (India).

[23] The Special Marriage Act, 1954, sec 4.

[24] The Special Marriage Act, 1954, sec 5.

[25] The Special Marriage Act, 1954, sec 6.

[26] Nagpal, N. and Mehra, D. (2023) Marriage & divorce under special marriage act- India, Lexology. Available at: https://www.lexology.com/library/detail.aspx?g=9d5db1d5-0134-4b2f-9fee-4e2d01d2de3a (Accessed: 22 October 2024).

[27] Chandrakantha, K.M. (2014) ‘Tribal Marriage System in India – A Sociological Analysis’, International Journal of Research and Analytical Reviews (IJRAR), 1(4).

[28] Lal, S.B. (2015) ‘Child Marriage in India: Factors and Problems’, International Journal of Science and Research (IJSR), 4(4).

[29] Subs. By Bhartiya Nyaya Sanhita, 2023, sec 82.

[30] Sarla Mudgal v. Union of India, AIR 1995 SC 1531: (1995) 3 SCC 635 (India).

[31] Lily Thomas v. Union of India, AIR 2000 SC 1650: (2000) 6 SCC 224 (India).

[32] Venugopal K. v. Union of India, 2015 SCC OnLine Ker 798 (India).

[33] Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors. (06.09.2018 – SC): MANU/SC/0947/2018, (India).

[34] Katiyar, M. (2022) The Struggle Against Section 377 and its Impact, Manupatra. Available at: https://articles.manupatra.com/article-details/The-Struggle-Against-Section-377-and-its-Impact (Accessed: 22 October 2024).

[35] Tripathi, K. (2020) ‘petitioners are like any other couple you might meet, except they belong to same sex’: Delhi HC issues notice in plea seeking marriage equality for same-sex couples, Live Law. Available at: https://www.livelaw.in/news-updates/petitioners-are-like-any-other-couple-you-might-meet-except-they-belong-to-same-sex-delhi-hc-issues-notice-in-plea-seeking-marriage-equality-for-same-sex-couples-164432 (Accessed: 22 October 2024).

[36] Pandit, A. and Garg, A. (2018) Now, time to give lgbts Marriage & Parenting Rights: India news – times of India, The Times of India. Available at: https://timesofindia.indiatimes.com/india/now-time-to-give-lgbts-marriage-parenting-rights/articleshow/65712127.cms (Accessed: 22 October 2024).