By Saqlain Shamim
Abstract
This article speaks about the idea of marriage as a ceremony or a legitimate agreement under the family law. The idea of wedding under the Hindu Marriage Act is to set up a connection among a couple In view of Hindu law. Hindu marriage is a holy tie, and the last ten ceremonies that can never break. Additionally, it is a relationship that can never break. Likewise, it is a relationship that is set up for seven concurring births.
The idea of marriage under Muslim marriage and law is particular. A Muslim marriage is frequently called “Nikah”. The word means the ‘harmony of genders’ . Nikah essentially implies two things – initially fellowship and also, an agreement of marriage between two people. The Quran explicitly precludes the man to wed a woman who has been engaged to his dad and its intended to be against nature and vile.
Relationships are viewed as an all inclusive social establishment and a vital piece of humankind. With the coming of civilisation, it has been seen that the state has directed all parts of living souls and marriage is no exemption. In India, there is no single lawful structure overseeing the establishment of marriage, explicitly with the plan of maintaining the principles of strict opportunity and shielding the major acts of different religions and convictions that comprise the country.
The legitimisation of the marital obligation of two individuals happens solely after achieving endorsement from the current laws prevailing in the country, in which overall speech is alluded to as wedding or marriage laws. A one-of-a-kind component of the current marital law in India is its liveliness and variety in consonance with the country’s heterogeneous populace.
Introduction
Since days of yore, marriage has been the most significant of the multitude of foundations of human culture. It has consistently existed in some structure in all societies, guaranteeing the social authorisation of the actual joining among man and lady and establishing the frameworks for the development of family, the fundamental unit of society. Hindu marriage alludes to kanyadan, which implies that the dad gives his daughter (bride) to the groom amid all the rituals or customs. Hindu marriage is an antiquated custom, which has been continuing from the Vedic times to the advanced world with various alterations that have happened up to now. There are 16 ceremonies in Shastri Hinduism, in which marriage is one of the most significant holy observances.
Marriage has been a significant organisation of human race since ages. Since birth of appropriate descendants has been viewed as vital to proceed with the race and family, the foundation of marriage has been made the lone way to sanction the sexual connection between a man and a lady. Marriage by catch was the old type of getting a spouse and eventually it offered approach to elopement with assent. This custom continuously grew up and this securing of spouse as property, prepared for marriage by assent, subject to dowry. It was this time when ladies were viewed as not more than belongings and were denied of any right of legacy, they were completely dependent on their male partners.
In any case, after the approach of Prophet Mohammed, the old social construction of Middle Eastern civilisation disappeared and it brought forth another arrangement of thoughts and originations. The marriage among Muslims is considered as an agreement which makes it different from Hindu marriage. Owing to this agreement, the lady can appreciate the supreme responsibility for singular rights and furthermore can continue against her significant other in law courts, if important.
In her lessons on marriage, the Catholic Church has at any given point, remained changeless. What she holds today she held recently and will consistently hold. She instructs that marriage is a characteristic, good and strict agreement which had its starting point with God in the Nursery of Eden when He made them male what’s more, female and said to them: “Increment and increase.”
It is a characteristic agreement since it is appointed by the law of nature for a distinct reason, which goes before all human mediation, and it stays an agreement while turning into a Holy observance under the law of Christ; moral, since it is represented by the ethical law of God; and strict, since it is founded for the assistance of God in its end and object. Additionally, concerning its common impacts, which are independent furthermore, unmistakable from the agreement of marriage itself, it is a common contract. That the Congregation perceives the common idea of the marriage agreement might be derived from the accompanying group.
Marriage: A Sacrament or a legal contract?
For a Hindu, marriage is a ‘sanskar’. It is strict custom or holy observance. It is, truth be told, the remainder of the ten ceremonies, urged upon him by the Hindu religion for purging the body from acquired impurity. This view has been acknowledged by the High. Accordingly, a Hindu marriage is considered as something which is all the more a strict need and to a lesser degree an actual extravagance. As once saw by Calcutta Court, “a Hindu-marriage is more strict than mainstream in character.”
Marriage under Mohammedan law is a legitimate agreement or common agreement between the lady and groom and it is essential for Islamic marriage. For the marriage of Muslims, the word ‘Nikah’ is utilized which signifies ‘contract’. Nikah is an Arabic expression. The importance of nikah is the actual connection among man and lady.
The ‘Quran’ uniquely alludes to marriage as “Mithaqun Ghalithun” which signifies ‘a solid understanding’. This agreement results in conjugal rights and commitments among man and lady. Marriage under Mohammedan law is not the same as other strict marriages. This is certainly not a strict function performed by lady and husband, however, an agreement which makes conjugal commitments among the man and the lady.
Hindu Law
It is broadly acknowledged that marriage in Hindu law is resolved as a holy observance. The Vedic writings whether Smritis, Srutis, Dharamshastras and Digests and Commentaries depict the viewpoints seeing marriage as a well-spring of salvation (Moksh) and an image of virtue however in actuality, it is simply whimsical, the man centric standard can be captured from the antiquated writings.
Each commitment or guideline is forced only upon the female, thus proving that the “rule creators were just the guys.” Customs and ceremonies consistently subordinate females. To end the biased standards for the sake of consecrated, The Hindu Marriage Act, 1955 upheld to put full stop on misuse of ladies.
This demonstration comprises of classified and uncodified laws , all are assembled in an equivalent stream and deciphered it as per the current circumstances with watching out for future as well. It formed the family questions goal into a predefined law.
To end the abhorrent act of youngster marriage, Section-5 was presented which indicates the times of lady and man as 18 years and 21 years and propounded the most extreme component known as “assent,” which had no bearing in the set of experiences as assent of lady was not named as fundamental and each matter was chosen by her relatives.
Since this arrangement was added, the expression “holy observance” has now a measure of assent too. Marriage of minor and an intellectually-inadequate individual is viewed as void stomach muscle initio. While in the past, it was obligation of spouse to serve her weak husband till hisdeath. In the sub area 5, the marriage between sapindas is denied as to stop the free sex connections among individuals.
Clearly, the suggestion of the demonstration suppresses the states of the holy association. At first by setting up the part of “Separation.” According to antiquated sources, marriage is a blessed association which one can’t break by wedding another, as both the accomplices are joined for seven lives.
Also, the Widow Remarriage Act which was established in 1856 for the betterment of widows and finally the trademark to wed under the hallowed or strict function, which has significance in present too however in certain perspectives, it has little worth as court relationships has been presented which don’t comprise any service customs as there is just one need to sign the archives with an observer by their side. Subsequently, the few advances lead the difference in the veneer of Hindu marriage as holy observance to contract, however, it is neither a full ceremony nor a total agreement, it is a mix of both.
• Case Laws: Gopala Krishna v. Mithilesh Kumar [AIR 1979 All. 316]
The Allahabad High Court set out that the foundation of marriage under the Hindu Law is a holy observance, not a simple social lawful agreement.
As per the present day law, Hindu marriage is a sacred association, since strict rituals and services are stringently agreed with, in the solemnization of marriage. Non-recognition or execution of the services (I.e. Kanyadaan and Saptapadi) renders the marriage void or invalid. Likewise, segment 9 of the Hindu Marriage Act, 1995 reinforces the wedding tie by making arrangement for compensation of intimate rights.
Muslim Law
Muslim law is founded on revelation and blended with religion. Marriage under Muslim law is considered as civil contract. Woman does not lose her individuality after the marriage . As on the basis of contract, woman can transfer her property to anyone without any justification; she remains the absolute owner.
She can enter into binding contracts with her husband and proceed against him in the courts. Islamic mahr (also sometimes called sadaqa or faridah), a kind of premarital agreement, involves the promise of payment of a certain sum to the wife. Occasionally, this payment is made prior to the marriage, but usually it is held to be due after the termination of marriage.
The majority interpretation appears to be that this post-marriage payment should be above and beyond the civil law division of property and obligation of alimony; however, a minority view argues that the mahr payment is in lieu of any post-marriage financial obligations of husband to wife.
Mahmood’s perception of marriage being a common agreement can’t be valued simply because that up to some degree, marriage is more than a common agreement. Subsequent to noticing minutely, it will be discovered that other than certain similitude, there are such countless essential contrasts between the two.
For example. Muslim marriage isn’t only a common agreement, in light of the fact that in contrast to common agreement, it can’t be made dependent on future occasion. In contrast to common agreements, it can’t be for a restricted time frame. In contrast to common agreement, the similarity, of lien can’t be applied to a marriage contract. Furthermore, the agreement of the offer of merchandise might be dropped by neglected vender. He may exchange the merchandise by revoking such agreement, though in an agreement of marriage, the spouse isn’t qualified for separate from her significant other or to stay with a third individual if a piece of his dower stay neglected.
• Case Law: Khurshid Bibi v. Mohd. Amin
This was a judgment passed by the Supreme Court of Pakistan. The judgment expressed that among Muslims, marriage isn’t a ceremony, yet it resembles a common agreement. Such an agreement without a doubt has other worldly suggestions and feelings yet in legitimate substance, it stays an agreement between two gatherings.
The judgment didn’t obviously express that a Mohammedan marriage is absolutely a common agreement. It only respects to be in nature of a common agreement.
Christian Law
The Indian Christian Marriage Act 1872, was established on July 18, 1872. Marriage under Christianity is viewed as a pledge. The age of the lady and the lucky man should be of 18 years and 21 years. The marriage should be done between 6:00 a.m. and 7:00 p.m. It should be done under the oversight of marriage recorder.
The arrangement between the two players ought to be wilful, not founded on the excessive impact, intimidation or extortion. There is an arrangement of Indian Divorce Act, 1869 under the Christian law. Marriage is considered as a heavenly foundation by God. A three way contract is established in the Christian law, at first among the God, the man and the lady. Furthermore, among the couple and the state. The penance is considered as a necessary part of marriage under Christians. In Christians, the lady is viewed as equivalent accomplice as man. The quintessence of marriage can be found under Biblical symbolism and prescience.
“Marriage consists of rules and regulations which define the rights, duties, privileges of husband and wife, with respect to each other.” – Lundberg
“Marriage is a stable relationship in which a man and a woman are socially permitted, without loss of standing in the community to have children.”- Harry M. Johnson
Marriage is viewed as a piece of the Church and a ceremony marriage is important for the congregation’s custom. Assent between a man and a lady is a significant piece of Christian relationships since when a man and lady pass on their assent to wed before the Church and God. It is said that they have given themselves to the holy observance of marriage. There are marital promises in Catholic relationships as three inquiries –
- Regardless of whether they have accompanied free assent?
- Will they respect each other as spouse and wives for the remainder of their lives?
- Will they acknowledge youngsters affectionately and bring them up according to the laws of Christ and church?
• Case Law: Lakshmi Sanyal vs Sachit Kumar Dhar on 8 September, 1972 ACT: Marriage-Indian Christian Marriage Act , 1872 (15 of 1872)- Ordinance Law- – Gatherings to marriage claiming Roman Catholic confidence Solemenisation … solemnize the marriage under sub-s. (1) of s. 5 of the Indian Christian Marriage Act, 1872.
Conclusion
Hence, it is exceptionally obvious from the above contentions that the Hindu Marriage Act does not think about the topic of assent as of much significance. Is it then conceivable to consider it a holy observance at that point? To answer this, we can test three capabilities of Hindu marriage as given in the presentation. Right off the bat capability being perpetual, the second being insoluble and the third requirement is sacred.
In a definitive investigation, it tends to be said that the marriage in Islam is neither absolutely a common agreement nor a ceremony. It is without none, however, a mixing of the two. The change from the holy observance constancy of union with the treatment of marriage as a common establishment is a cutting edge thought.
It is an intelligent improvement of Anglo Muslim law marriage is not all that much or not exactly the deliberate association of one man and one lady. The definitions that significance the possibility of marriage as an agreement just address one part of Muslim marriage. They disregard it’s moral significance and it’s strict worth. They neglect to understand the nearby and private connection among religion and law in Muslim confidence.
With no questions, Marriage under each law is viewed as a blessed association of two spirits yet it varies in nature as in Hindu law, marriage is considered as sacred however in the subtlety, it is a blend of holy observance and mix of ceremony and contact while as in Muslim law, the degree of marriage is restricted as on agreement premise and in conclusion in Christian law, marriage is named as a pledge.
Suggestion
As central issues in the twentieth century also, strict and political pioneers as Zoya Hasan has argued, started state codification of Muslim individual law in light of a legitimate concern for the community unity and character the milestone acts are the Muslim Individual Law (Shariat) Application Act of 1937, the Muslim Disintegration of Marriage Demonstration of 1939 and most as of late, the Muslim women’s (Insurance of rights on Separation) Demonstration of 1986.
This last, notwithstanding its name, prevented the Muslim lady (who had been hitched under the Muslim individual law and subsequently divorced) from depending on the criminal system code as ladies of different religions can do to secure insignificant support from their previous spouse. The law customarily has been one-sided for marriage.
Public arrangement upholds marriage as important to the security of the family, the fundamental cultural unit. To protect and energize marriage, the law holds numerous rights and advantages to wedded people. Dwelling together doesn’t convey such rights and advantages. It has been said in the setting the living together has every one of the cerebral pains of marriage with no of the advantages.
There are no surprises to it nor the equivalent makes any lawful holding between the gatherings. Such relationship is an agreement of living respectively, which is re-established each day by the gatherings, In live-inrelationship a/c to the sweet will of the gatherings they will stroll in and leave such relationship and can be ended by either without assent of the other party.
References
[1]. Syed Ameer Ali, Students Handbook of Mohammedan Law, (6th Ed, SK Lahiri & Co., Calcutta, 1912), P-69.
[2]. Dr. M.U.S. Jang, Dissertation on the Development of Muslim Law in British India, supra, P-2.
[3]. Zulfiqar Ali Khan, Marriage and its Objectives in Islam, https://zulfiqarlegal.blogspot.com/2012/01/marrige-and-its-objectives-in-islam.html.
[4] Tikait v. Basant, ILR 28 Cal. 758
[5] Shivonandh V. Bhagawanthuma, AIR (1962) Mad. 400
[6] Muthusami v. Masilamani, (33 Mad.342)
[7] Purushottamdas v. Purushottamdas, (21 Bom.23)
https://en.wikipedia.org/wiki/Marriage_in_Hinduism
https://en.wikipedia.org/wiki/Marriage_in_Islam
https://medium.com/@mialockhart/forget-gender-equality-let-s-aim-for-gender-harmony-8fa652c75701
(f) Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act, 1986 Marriage or Nikah among Muslims is a ‘Solemn Pact’ or ‘Mithaq-e-ghalid’ between a man & a woman ,soliciting each others life companionship, which in law takes the form of a contract or aqd.
https://en.wikipedia.org/wiki/Marriage_in_Hinduism#:~:text=Hindu%20marriage%20harmonizes%20two%20individuals,is%20recognized%20by%20liveable%20continuity.
https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf
https://indiankanoon.org/doc/158036/
https://www.klelawcollege.org/blog/hindu-marriage-act-1995/#:~:text=The%20Hindu%20marriage%20act%20is%20a%20provision%20made%20by%20the,disadvantage%20of%20the%20pious%20institution.
http://chdslsa.gov.in/right_menu/act/pdf/muslim.pdf
https://wrcaselaw.wordpress.com/2012/09/04/khul-divorce-khurshid-bibi/#:~:text=Since%20there%20were%20no%20offspring,Amin%20took%20a%20second%20wife.&text=Khurshid%20Bibi%20then%20brought%20a,her%20on%20January%2021%2C%201960.
http://home.kar.nic.in/download_files/Passport/The_Indian_Christian_Marriage_Act1872.pdf
https://legislative.gov.in/sites/default/files/A1869-4.pdf
https://indiankanoon.org/docfragment/734017/?formInput=christian%20marriage%20act%20%20doctypes%3A%20judgments
https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095413544#:~:text=Applied%20in%20British%20colonial%20courts,Law%20Application%20Act%20(1937).
Saqlain Shamim has completed his BA. LLB. (Hons.) from RKDF University Bhopal (MP), during 2018-2023.