06 July 2018 05:20PM
This essay deals with how the Hindu and Muslim personal laws along with the Special Marriage Act, 1954 deal with inter-religious marriage between a Hindu girl and Muslim boy.
What does the Hindu Personal Law say?
The validity of a marriage in Hindu personal law is determined by the competition of customary ceremonies like the custom of ‘saptapadi’ i.e. the ceremony of taking seven steps. As such, there are no specific requirements for a Muslim person to convert to Hinduism in order to marry him/ her.
However, to be married by Hindu law of Hindu Marriage Act, 1955 both the bride and groom need to be Hindus. Section 2(1) of the Hindu Marriage Act, 1955 says that the Act is applicable to all Hindus including those who belong to the AryaSamaj, Virashaiva, Lingayat, Brahmo samaj and PrarthanaSamaj. In addition to this, the Act considers the faiths of Jainism, Buddhism and Sikhism to be included within Hinduism and therefore, a Hindu person can marry a Jain, Buddhist or a Sikh under the Hindu Marriage Act. However, the Hindu Marriage Act is not applicable to marriages between a Hindu and a Muslim, Parsi, Jew or Christian. The only exception to this is if it can be proved, and it indeed is difficult to prove, that the person to the marriage who is not a Hindu would not have been governed by the Hindu law if the Hindu Marriage Act had not passed.
So when the groom is a Muslim, he would first be required to convert to Hinduism in order to legally wed the Hindu bride under the Hindu Marriage Act, 1955. The same goes for when a Muslim woman wants to marry a Hindu man.
Conversion into Hinduism is done through the performance of ceremonies like the Namakarana Samskaras that involve the converting individual to adopt a Hindu name or through the performance of a Yajna i.e. ceremony performed before the sacred fire. An organisation like the AryaSamaj and other religious outfits also provide services for conversion into Hinduism.
What does the Muslim Personal Law say?
There are two main requirements in a Muslim marriage: that of Ijab and Qubul. Ijab is the proposal for a marriage made by one person and Qubul is the acceptance of the marriage proposal by the other party. Because of this process of proposal and acceptance, a Muslim marriage is considered to be a form of a contract. Due to the contractual nature of the Muslim marriage, the qualifications of a valid contract also apply to the marriage. This is to say, for a Muslim marriage to be valid, it would have to be performed without the presence of undue influence, coercion or fraud.
Under Muslim law, marriage, called Nikkah, is a contractual obligation between the man and the women to obey the god, Allah. For this reason, for a Hindu to marry a Muslim person and for such a marriage to be valid under Muslim law, the Hindu first has to convert to Islam by the process of Shahada.
There two main branches of Islam in India are the Shia and the Sunni Muslims. The rules for marriage between two Muslim people are more or less the same in the different branches of Islam but diverge when it comes to interfaith marriage. As a whole, Islam does not allow marriage between a Muslim and a Hindu. For marriage between a Muslim and a Hindu under Islamic personal law, the non- Muslim person would first have to convert to Islam so that the marriage can be solemnised. The Muslim personal law has specific provisions for the conversion of individuals into Islam. Conversion into Islam takes place by taking the Sahadah oath, a declaration whereby the person converting professes that there is no god but the Allah and Muhammad as his apostle.
Muslim law is strict against marriage outside of non- kitabia religions. Non- kitabia religions are those that are not derived out of a specific holy book, like the Koran, which contains profound revelations. Under Muslim law, depending on the gender and the sect of Islam they belong to, marriages to a person belonging to a kitabia religion, like a Christian may be valid. However, persons belonging to non- kitabia religion, like a Hindu or a fire worshiper, are prohibited (although a Muslim man may enter into a temporary marriage called Mutah with a person from a fire-worshipping religion).
Sunni Muslim law on inter-religious marriage
Under the Sunni law, the marriage between a male Muslim and a female Hindu is Fasid i.e. it is an ‘irregular marriage’. An irregular marriage is not the same as a void marriage. While a void marriage is one that is not a valid marriage from the beginning, an irregular marriage falls between a valid and invalid marriage. An irregular marriage can be made into a valid marriage by getting rid of the problem that is preventing it from becoming one. In case of a marriage between a Muslim boy and a Hindu girl, the irregular marriage can be made into a valid marriage by the act of conversion of the Hindu girl into Islam.
On the other hand, a Sunni Muslim female is not allowed to marry any person who is not Muslim. This means that if a Sunni girl marries a Hindu boy, their marriage would be void under Sunni Muslim personal law.
Shia Muslim law on inter-religious marriage
The Shia law is stricter on inter-religious marriages than the Sunni Muslim law. Under Shia law, a Muslim man cannot marry a non- Muslim or Hindu girl. A Shia male is allowed to marry only a Shia woman. A marriage between a Shia boy and a Hindu girl would, therefore, be a void marriage under Shia Muslim personal law.
The status of a marriage of a Shia Muslim female is the same as that of Sunni Muslim. That is, a Shia Muslim female cannot marry any person but a Muslim man. If a Shia woman marries a Hindu man, then that marriage would be void under Shia Muslim law.
What does the Special Marriage Act, 1954 say?
The problem with inter-religious marriages under the personal law is that the parties have to go through a number of religious and customary complexities in order to solemnise their marriage. The Special Marriage Act, 1954 provides the couple at a way out of these complexities. The Special Marriage Act does not require any particular customary ceremony to be performed in order to solemnise a marriage. The procedure is simple and needs only a notice and registration of marriage with the concerned authority. Moreover, the bride and groom can always register their marriage under the Special Marriage Act, 1954 and then also perform their own religious ceremonies if they think fit. Regardless of the performance of the religious ceremonies, their marriage would still be a valid marriage in the eyes of law as long as the procedure laid down in the Special Marriage Act, 1954 is adhered to.
For a marriage to be solemnised between two people under the Special Marriage Act, 1954, the below mentioned criteria should be satisfied:
• Neither the bride nor the groom should have a living spouse;
• Both the parties should be of sound mind so that they are capable of giving consent to the marriage;
• Even if the two parties are of sound mind and thereby capable of giving consent to the marriage, neither of the two should be suffering from a mental disorder that may render the bride or the groom from incapable of bearing children and unfit marriage;
• Neither of the two parties should be a patient of recurrent instances of epilepsy or insanity;
• The groom should be above the age of 21 years and the bride should be above the age of 18 years.
• Moreover, if the marriage is to be solemnised in the state of Jammu and Kashmir, then both the bride and groom should be citizens of India and be domiciled in territories to which the Special Marriage Act, 1954 applies to.
• The bride and the groom should also not be within the prohibited degrees of relationship. Except when they belong to communities that do allow marriages between prohibited degrees of relationship. But such a custom should have been recognised by the government. The state government gives such recognition by issuing a notification for the same in the Official Gazette.
In order for a community to get their custom recognised by the state government, they need to prove all of the following to the government:
• That the said custom has been observed and practised uniformly and continually for a long period of time,
• That the said custom is certain and reasonable and not against the public policy of the country, and
• If the said custom is applicable only to one family, then it has to be proved that the family has not discontinued the practice of that custom.
• Schedule I of the Special Marriage Act, 1954 provides a list of the family relations that fall within the prohibited degrees of relations between which a marriage would not be considered valid. These relations include the mother, father, step parent, brother, sister, cousins from the maternal and paternal sides, son, daughter, grandson or granddaughter as well as uncles and aunts from both paternal and maternal sides. These prohibited degrees of relations are derived from the prohibited sapinda relations under Hindu personal law where. But although marriage between second cousins is not allowed under Hindu law, the Special Marriage Act does not enlist second cousins under the prohibited degree of relations.
It should also be noted that once two people marry under the Special Marriage Act, 1954, their marriage is governed as per this law and not their personal laws. This also has implication on succession and devolution of property. Succession for a couple married under this Act will be governed by the Indian Succession Act, 1952 and not by Hindu or Muslim Personal law.
Process of Marriage under the Special Marriage Act, 1954
Once the bride and groom of any religion have fulfilled the eligibility criteria mentioned above, the marriage process the following course:
• The parties to the marriage i.e. the bride and the groom have to give a notice in writing to the Marriage Officer of the place the marriage is going to be solemnised. This notice has to be as per the form prescribed in the Second Schedule of the Special Marriage Act, 1954.
• The Marriage Officer will then up publish this notice of marriage in a conspicuous place in their office where it can be viewed easily by the public.
• A waiting period of thirty days will then be observed within which any objections to the marriage can be entertained.
• It is necessary that for a marriage to be solemnised, at least the bride or the groom should have been residing at the place of solemnisation for a minimum of thirty days, preceding the date on which the marriage notice was sent to the Marriage Officer.
• If there are no objections to the marriage, and if the necessary conditions to the marriage as per the Act have been fulfilled then the Marriage Officer will solemnise the marriage after the expiry of thirty days.
• However, if someone does raise an objection to the marriage of the bride and the groom within the span of thirty days from the date of publication of the notice, then the Marriage Officer has the authority to refuse solemnization of marriage.
• The couple that intends to get married then has the recourse of an appeal to the District Court having jurisdiction over the place where the office of the Marriage Officer is located. Either the groom or the bride and appeal before the District Court and the decision of the Court will be the final decision.
22 September 2018 01 47 PM
Marriage is one of the most important social institutions today. It forms the very basis of social organization. Hindu shastras and law regard marriage as a sacrament which is eternal. It is considered to be a contract by some as well.
06 August 2018 02 51 PM
Contrary to ordinary Indian marriages, there are consolidated marriages in accordance with/under the Special Marriage Act, 1954 (hereinafter 'Act'). Marriage can happen in the presence of the marriage officer and three witnesses, or it can be done in the court itself. In these marria
31 July 2018 04 16 PM
Since its history, India has been the land of discrimination for women against its male counterparts. Daughter's parents should be forced to pay huge amounts to marry their daughters or they want to kill them by Brahmin pandits who want to snatch away all the property left by her husband.
27 July 2018 04 52 PM
Arya Samaj marriages are straightforward as well as a center ground when the couple are from various religions that fall under the expanded umbrella of Hindus in India. This is particularly a choice taken by couples where one individual has a place with Buddhism, Jainism or Sikh faith . The function
18 July 2018 03 07 PM
Marriage in India is fundamentally in light of social stratification of a caste system. In this article, we examine the issues and difficulties confronted while opposing the traditional culture of arranged marriage to go into an inter-caste marriage in the Indian setting.
16 July 2018 05 25 PM
The Supreme Court of India, in 2006, made it compulsory to enroll all marriages. In India, a marriage can either be enrolled under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. The Hindu Marriage Act is appropriate to Hindus, while the Special Marriage Act is relevant to all
16 July 2018 02 37 PM
INTRODUCTION (HINDU MARRIAGE ACT, 1955) India, being a cosmopolitan nation, enables every resident to be administered under personal laws significant to religious perspectives. This stretches out to individual laws inter alia in the matter of marriage and divorce.
16 July 2018 02 09 PM
Court Marriage, Procedure, Acts, Eligibility & Age Court marriage can be performed between an Indian male and an Indian female (whoever is a resident of India) without thinking about their caste, religion or faith. Court marriages are solemnized under the Special Marriage Act, 1954. It can li
13 July 2018 05 30 PM
INTRODUCTION: Established by Swami Dayananda Saraswati in 1875, Arya Samajis secures a noticeable place in India. How is Arya Samaj marriage solemnized? What is the lawful legitimacy of Arya Samaj marriage? Is the Arya Samaj marriage declaration substantial? What is the process of divorce as indica
13 July 2018 04 45 PM
Section 9 of the Hindu Marriage Act, 1955 talks about the Restitution of conjugal rights, it says When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjuga
12 July 2018 05 45 PM
In India, kids under 18 years of age should have a lawful guardian. The party who is granted guardianship by the Court has the obligation of taking proper care of the kid. At times, the guardians may share the authority of the child, yet just a single parent might be given the genuine physical care
06 July 2018 05 20 PM
Marriage between people of the same religion is governed personal law in India like the Hindu Marriage Act, 1955 and the Muslim personal law of marriage. Though the personal laws of Hindus and Muslims do make provisions for inter-religious marriages, India also allows them a more secular alternative
07 May 2018 11 18 AM
Court marriage is the form of civil ceremony through which persons of different religions, castes, nationality or creed looking to avoid the traditional marriage ceremonies to tie the knot. Court marriage is a simple procedure that is carried out in the presence of a marriage registrar and some witn
25 January 2018 12 09 PM
Are you facing trouble in marriage life? At the point when an accomplice is unfaithful, it is a genuine break of trust. Furthermore, it is something that may demonstrate that this individual isn't commendable or equipped for a sound relationship. On one hand, great individuals settle on terrible d
24 August 2017 11 29 AM
In a move that may be termed as a radical step towards a secular family law system, a 5-Judge bench of the Supreme Court on 22nd August 2017 declared as void the much-debated Triple Talaq system under Muslim Law. The verdict comes as a bold move on the part of judiciary in upholding women rights and
29 April 2017 04 15 PM
Marriage counseling is one of the most effective methods to deal with a broken marital relationship. Popularly known as the couple’s therapy, it uses a psychotherapeutic approach to look into the matter. Provided by a licensed counselor, the therapy is done in the form of sessions. The sessions h
26 April 2017 11 30 AM
Marriage marks a watershed in a couple’s life which marks a significant transition to adulthood. According to Hindus, marriage is a religious sacrament sewn across all the subsequent lives while it is a contract amongst Muslims. But when such promising relationship goes upon a lot of rocks, it is
Popular Lawyers in India