Published on: 30th October 2024
Authored by: Vandna Singh
Kazi Nazrul University
Abstract
Marriage is defined as the state of being recognized as spouses. It is a legal and social contract, typically between two people, governed by laws, customs, traditions, and other societal norms. In India, marriage is a significant and relevant topic, as married individuals make up around 45% of the population. The laws related to marriage in India are primarily governed by personal laws. As a diverse nation, Indian citizens have the freedom to marry whomever they choose. However, their marriage will be governed by different sets of laws depending on the category under which the marriage falls. If individuals choose to marry outside of their personal laws, they are governed by the Special Marriage Act, 1954.
This article explores the various marriage laws, their requirements, common issues faced in India pertaining to these laws, and the need for reform.
Introduction
India is a secular and diverse nation with people from myriad religious identities, beliefs, and backgrounds coexisting harmoniously. Marriage remains a contentious issue and a controversial issue in India for this very reason. Cases involving inter-caste and inter-religion marriages are reported almost daily. The legal system of India acknowledges marriages across all backgrounds, and as such, marriage is governed by personal laws. The marriage laws in India are broadly classified into the following categories:
- Hindu Marriage Act 1955
- The Indian Christian Marriage Act 1872
- Muslim Personal Law (Shariat) Application Act, 1937
- The Parsi Marriage and Divorce Act 1936
In addition to the laws based on different personal laws, religions, and cultures, individuals who wish to marry outside their religious laws are permitted to do so under The Special Marriage Act, 1954. The various marriage acts in India encompass a wide range of diverse traditions and obligations.
[1]Hindu Marriage Act 1955
Marriage is regarded as a sacrament under the Hindu Marriage Act. In Hinduism, marriage is seen not only as a bond between two individuals but also as a union between their families. The Hindu Marriage Act of 1955 was enacted to codify laws and ensure uniformity regarding marriage within the Hindu religion. This law extends to:
- Virashaiva
- Lingayat
- Follower of the Brahmo
- Prarthana or Arya Samaj
- Buddhist
- Jain
- Sikh
For a marriage to be considered valid under the Hindu Marriage Act of 1955, certain essentials must be fulfilled. Section 5 of the Hindu Marriage Act outlines these requirements.
[2]The essentials are as follows:
- Bigamy: The Hindu Marriage Act prohibits a man from having multiple wives. He is permitted to have only one wife at a time and may only marry another after divorcing the first one.
- Sound Mind: Both parties must be of sound mind and capable of giving consent.
- Impotency: Neither party should suffer from a mental illness that renders them impotent or incapable of procreation.
- Age Requirement: The groom must be at least 21 years old, while the bride must be at least 18 years old.
- Degree of Prohibited Relationship: The parties must not fall within the degree of prohibited relationship, which refers to lineal descendants.
- Sapinda: The parties should not be Sapindas of each other. “Sapinda” refers to having a common ancestral background, generally extending to 3 generations from the mother’s side and 5 generations from the father’s side.
If the aforementioned essentials are not fulfilled, a marriage under the Hindu Marriage Act is deemed to be void.
The Indian Christian Marriage Act 1872
The Indian Christian Marriage Act codifies marriage laws for the Christian community in India. In Christianity, marriage is considered a bond that encompasses spiritual, emotional, and physical closeness. This Act applies to anyone professing the Christian faith. [3]For a marriage to be considered valid under this Act, the following essentials are require to be fulfilled:
- Faith: According to Section 4 of The Indian Christian Marriage Act, both the bride and groom must profess Christianity.
- Age Requirement: The groom must be at least 21 years old, and the bride must be at least 18 years old.
- Existing Partner: Neither party intending to marry should already have a living spouse.
- Ceremonial Requirements: The marriage must be conducted in the presence of an individual who qualifies under Section 9 of The Indian Christian Marriage Act, along with two other credible witnesses. Both parties are required to recite the declaration: “I call upon these persons here present to witness that, I, 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.”
- Personal Law: If either party’s personal law prohibits the marriage, the marriage is deemed void.
If the aforementioned essentials are not fulfilled, a marriage under The Indian Christian Marriage Act is deemed to be void.
Muslim Personal Law (Shariat) Application Act, 1937
The Muslim Personal Law (Shariat) Application Act codifies laws for the Muslim community in India, encompassing laws related to marriage. A Muslim is an individual who professes the Islamic faith. In Islam, marriage holds great significance and is regarded as a means to lead a virtuous and sin-free life. Marriage in Islam is based on a civil contract known as “nikahnama” between the parties intending to marry. [4]To constitute a valid marriage under the Muslim Personal Law (Shariat) Application Act, the following [5]essentials must be fulfilled:
- Ijab and Qubool: “Ijab” refers to the proposal, and “Qubool” means acceptance. Since marriage in Islam is a civil contract, the parties intending to marry must exchange a proposal, and there must be acceptance for the same.
- Competency: The parties intending to marry should be of sound mind, have attained puberty, and should be Muslims.
- Free Consent: Consent is mandatory under the Muslim Personal Law (Shariat) Application Act for a marriage to be considered valid.
- Witnesses: For Sunnis, two witnesses (who are sane and Muslims) are required, while for Shias, witnesses are not required.
- Mahr: Mahr is a mandatory dowry given by the husband to the wife.
- Consanguinity: A man is prohibited from marrying his blood relatives, which includes:
- Grandmother/Mother
- Daughter/Granddaughter
- Sister (Uterine/full or half-blood)
- Niece
- Aunt or Great Aunt
- Wife’s mother, grandmother, daughter, granddaughter
- Father’s wife, paternal grandfather’s wife
- Foster mother or grandmother
- Foster mother’s daughter
However, under Sunni law, the following are permissible:
- Foster mother of the sister
- Foster brother’s sister
Shias do not permit these exceptions.
- Polygamy: Polygamy is permitted under the Muslim Personal Law (Shariat) Application Act but is restricted to four wives. If a person marries a fifth wife, the marriage is deemed irregular but not void.
- Polyandry: Polyandry is strictly prohibited.
If the aforementioned essentials are not fulfilled, a marriage under The Muslim Personal Law (Shariat) Application is deemed to be void.
[6]The Parsi Marriage and Divorce Act 1936
The Parsi Marriage and Divorce Act provides the legal framework for those who follow the Zoroastrian faith or are Parsis. In Zoroastrianism, marriage is seen as a sacred duty and a holy union between two individuals. To validate a marriage under this Act, the following essentials must be fulfilled:
- Consanguinity: The parties intending to marry must not be related within the degrees of closeness specified in Schedule 1.
- Ashirvad: The marriage must be solemnized through a ceremony conducted by a Parsi priest in the presence of two other witnesses.
- Bigamy: Bigamy is not allowed. An individual cannot marry another spouse while their first spouse is still alive.
If the aforementioned essentials are not fulfilled, a marriage under The Parsi Marriage and Divorce Act is deemed to be void.
The Special Marriage Act, 1954
The Special Marriage Act, 1954, was enacted as an alternative for individuals who wish to marry outside their religion or caste. It provides a legal framework for those who prefer not to be governed by any religious marriage laws. This Act is applicable to all citizens of India. The prerequisites for a marriage to be valid under this Act are as follows:
- Bigamy: The Special Marriage Act prohibits a man from having multiple wives. He is permitted to have only one wife at a time and may only marry another after divorcing the first one or the death of the first one.
- Sound Mind: Both parties must be of sound mind and capable of giving consent.
- Impotency: Neither party should suffer from a mental illness that renders them impotent or incapable of procreation.
- Age Requirement: The groom must be at least 21 years old, while the bride must be at least 18 years old.
- Degree of Prohibited Relationship: The parties must not fall within the degree of prohibited relationship, which refers to lineal descendants.
If the aforementioned essentials are not fulfilled, a marriage under The Special Marriage Act, is deemed to be void.
Issues revolving around marriage in India
The concept of marriage and the stereotypes associated with it in India have evolved over time. Nevertheless, India continues to grapple with numerous issues related to marriage.
- Communal and religious persecution-
Inter-caste and inter-faith marriages are still viewed as detrimental to society by many. Various practices across different beliefs are deemed prohibited by those adhering to different faiths. Consequently, communal and religious persecution persists, with numerous cases serving as evidence of this ongoing issue.
- [7]Recently, in Muzaffarnagar, Uttar Pradesh, members of the upper community objected to a Dalit man riding a horse at his wedding. The Dalit man’s family attributed the objection to the age-old tradition prohibiting Dalits from riding horses. This led to an altercation, resulting in several injuries.
- [8]In June 2024, the office of the Communist Party of India was attacked following the party’s endorsement of an inter-caste marriage.
- [9]On September 2, 2024, in Virudhunagar, Tamil Nadu, five members of a bride’s family were arrested for allegedly kidnapping and assaulting her and her husband due to their differing castes.
- [10]In March 2024, four men were arrested after a viral video surfaced showing them abusing an interfaith couple near Charminar, Hyderabad.
- Child Marriage
Although child marriage is legally prohibited, numerous cases continue to emerge. Despite stricter laws addressing this issue, instances of child marriage persist.
- Marriage as a result to coercion
Under Indian marriage laws, mutual consent between both parties is required. Nonetheless, forced marriages still occur despite these legal provisions.
The issues mentioned are just a few significant examples. If we were to count all the daily cases involving these matters, it would be a never-ending task! Marriage is a beautiful institution, and unions across different beliefs are equally admirable. While it is essential to take pride in our own beliefs, imposing them on others is not acceptable. Problems such as religious and communal violence, child marriage, and forced marriages stem from entrenched traditions of discrimination, outdated thinking, lack of education, patriarchal norms, and negative perceptions. Over time, these issues have only grown more severe in India.
Conclusion
Indian marriage laws are influenced by various faiths and beliefs, reflecting the country’s diverse and secular nature. Each religion has its own set of regulations, recognized to uphold this diversity. The Special Marriage Act was introduced to facilitate marriages outside these traditional frameworks. While the rich diversity of India and its unique marriage laws are admirable, respecting others’ beliefs is equally crucial. We can take pride in our own traditions without disparaging others. Addressing issues such as religious and communal violence, child marriage, and forced marriages requires more than just legal reforms; it demands social change. These problems stem from entrenched traditions of discrimination, outdated attitudes, lack of education, patriarchal norms, and negative perceptions. Stricter laws alone won’t suffice; meaningful implementation and societal reform are essential to breaking this cycle. Community leaders and religious figures must actively engage in reforming these antiquated traditions, as their involvement is likely to yield more significant outcomes. Additionally, the media, often referred to as the fourth pillar of democracy, must fulfill its role effectively by ensuring that all perspectives are represented, regardless of their affiliations. It is crucial to address and revise the prevailing patriarchal norms. This country, with its rich tapestry of diverse beliefs, witnesses the erosion of the beautiful concept of marriage due to such negativity. Without prompt and decisive action, these issues will not only persist but may also exacerbate.
References
[1] Hindu Marriage Act 1955, 1955 (India).
[2] The Hindu Marriage Act, 1955, §5,1955 (India).
[3] The Indian Christian Marriage Act, 1872, §5,1872 (India).
[4] Muslim Personal Law (Shariat) Application Act, 1937,1937 (India).
[6] The Parsi Marriage and Divorce Act 1936, 1936 (India)
[7] [The Print], [https://theprint.in/india/up-3-injured-in-inter-caste-fight-after-dalit-groom-stopped-from-mounting-horse/2176081/],[((last visited September 10, 2024)].
[8] [The Hindu], [https://www.thehindu.com/news/cities/Madurai/cpi-m-office-attacked-after-inter-caste-marriage-in-office/article68289957.ece)]. [((last visited September 10, 2024)].
[9] [The Indian New Express], [https://www.newindianexpress.com/states/tamil-nadu/2024/Sep/02/inter-caste-wedding-womans-family-held-for-kidnapping-attacking-couple-in-tn)]. [((last visited September 10, 2024)].
