Hindu Marriage Acts
The Hindu Marriage Act, which came into power on18 May 1955, governs all the Hindu marriages. The Act has reformed the Hindu law of marriage and covers entire India except the state of Jammu & Kashmir.
Only if both the parties are Hindus can the marriage take place under the Hindu marriage Act.
The Act applies to :
Any person who is Hindu, Buddhist, Jain or Sikh by religion.
Any person who is born to Hindu parents.
Any person who is not a Muslim Christian, Parsi or Jew, and who is not governed by any other law.
The Act does not apply :
To persons who are Muslims, Christians, Parsis or Jews by religion.
To members of the scheduled tribes coming within the meaning of clause (25) of Article 366 of the Constitution of India unless the Central Government by notice otherwise directs.
A marriage to be valid has to fulfill the following conditions:
Neither party should have a spouse living at the time of marriage. The spouse does not include a divorced husband/ wife.
At the time of marriage, the parties should be capable of giving a valid consent to the marriage. A person who is of a sound mind shall be considered to be a person capable to give a valid consent. Neither party, though capable of giving a valid consent should be suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children. Neither party should be suffering from recurrent attacks of insanity or epilepsy.
The bridegroom should have attained the age of 21 years and the bride should have attained the age of 18 years at the time of marriage.
The parties should not be within the degrees of prohibited relationships, unless the customs or usage, permits such a marriage.
Two persons are said to be within the degrees of prohibited relationships :
If one is a lineal ascendant of the other. For example a Daughter can not marry her father and grandfather. Similarly, a mother can not marry her son or grandson.
If one was the wife or husband of a lineal ascendant or descendant of the other. For example, a son can not marry his stepmother. Similarly, a person can not marry his Daughter-in -Law or son -in-law.
If one was the wife of the brother or of the father's or mother's brother or the grandfather's or grandmother's brother of the other.
If the two are brother and sister; uncle and niece; Aunt and Nephew or children of brother and sister of two brothers or two sisters. It must have been noticed in some communities the marriage with the wife of the brother and mother's brother and the first cousins are solemnized, those marriages, in the absence of a custom in the community are not valid marriages.
A person can not marry upto his second cousin from the mother's side and upto his fourth cousin from the side of the father. It is also necessary the parties should not be apindas of each other from either side.
In case, either party has a spouse living at the time of marriage, within the degree of prohibited relationship and are apindas of each other, the marriage between the parties shall be null and void.
A Hindu marriage can take place according to the customary rites and ceremonies.
The ceremony of saptapadi and kanyadana are important ceremonies prevalent among vast majority of Hindus and the ceremony of saptapadi before the sacred fire has been held essential for a valid Hindu Marriage.
The marriages solemnized, may be registered under the Special Marriage Act with office of the registrar, in the Hindu Marriage Register.
Registration is not compulsory and in no way effects the validity of the marriage. It is entirely upto the parties to have the marriage registered.
No marriage can be registered unless the following conditions are fulfilled :
A ceremony of marriage has been performed between the parties and they have been living together as husband and wife.
Neither party has at the time of registration more than one spouse living.
Neither party is an idiot or lunatic at the time of registration.
The parties have completed the age of twenty one years at the time of registration
The parties are not within the degrees of prohibited relationship
The parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration.
On receiving the application signed by both the parties the Marriage Officer shall give public notice and after allowing 30 days for objections and on being satisfied that all the conditions are fulfilled he shall enter a certificate in the marriage certificate book, which shall be signed by the parties and three witnesses.
Voidable marriages are those which are void at the option of the aggrieved party. Such marriages can be annulled by a decree of nullity on any of the following grounds :
That her husband exchanged professing Christianity and gone through a form of marriage with another woman,
That the marriage has not been consummated owing to the impotence of the Respondent.
That the marriage is been performed with a person of unsound mind or having a mental disorder or suffering from recurrent attacks of epilepsy
That the consent of the Petitioner or its Guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the Respondent.
To succeed on this ground, it is necessary that the Petition must be presented in the Court within one year after the force has ceased to operate or the fraud has been discovered. It is also necessary that after the force has ceased or fraud discovered, the Petitioner has not, with consent, lived with the other side.
That the Respondent was at the time of marriage pregnant by some person other than the Petitioner.
Christian Marriage Acts
The Indian Christian Marriage Act, 1872, relates to solemnization of marriage of persons professing Christian religion. The Act provides that any marriage solemnized otherwise than in accordance with the Act shall be void.
Solemnization of Christian Marriage
Under Section 5 of the Act Christian marriages can be solemnized by -
A person who has received episcopal ordination,
Any clergyman of the Church of Scotland,
Any Minister of Religion licensed under the Act.
A Marriage Registrar appointed under section 7 of the Act and
Any person licensed under section 9 to grant certificates of marriage.
Marriage under Christian Law is in the nature of contract and hence there should be a free and voluntary consent between the parties. When there is a minor, as defined in the Act, the consent of father or guardian is necessary. Marriage is not permissible between the parties who are within the prohibited degrees of relationship under section 19 of the Act. There is no legal impediment for marriage between a Catholic and a Protestant. By marriage, the husband and wife become one person, i.e., the legal existence of the women is incorporated and consolidated into that of the husband.
The law regarding divorce, judicial separation and allied matters is contained in the Indian Divorce Act, 1869. Under section 18 of the Act either spouse can seek divorce on the grounds contained in Section 19 which reads as follows:-
Section 19: Grounds for Decree of Divorce :
1. That the respondent was impotent at the time of marriage and institution of the suit,
2. That the parties are within the prohibited degree of consanguinity or affinity,
3. That either party was a lunatic or idiot at the time or marriage.
4. That the former husband or wife of either party was living at the time of marriage and the said marriage was then in force.
5. Nothing shall affect the jurisdiction of the High court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.
Under Section 10, the wife can seek the marriage be dissolved on the ground:
That her husband exchanged professing Christianity and gone through a form of marriage with another woman,
Bigamy with adultery,
Marriage with another woman with adultery,
Rape, sodomy or bestiality,
Adultery coupled with cruelty and
Adultery coupled with desertion without reasonable cause for two years or more
Under Section 11, in cases of allegations of adultery, the adulterer should be made a party. Pendent alimony may be granted under Section 36 of the Act.
Muslim marriage Acts
The Muslim marriage is governed not by the Indian Majority Act, 1875 but by Muslim law itself. According to Muslim Law, Marriage / Nikah is a contract underlying a permanent relationship based on mutual consent.
Essential Features of Muslim Nikah
· A Muslim marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the other as is required for a contract.
· There can be no marriage without free consent and such consent should not be obtained by means of coercion, fraud or undue influence.
· Just as in case of contract, entered by a guardian, on attaining majority, so can a marriage contract in Muslim Law, be set aside by a minor on attaining the age of puberty.
· The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial agreement which is enforceable by law provided it is reasonable and not opposed to the policy of Islam. Same is the case with a contract.
· The terms of a marriage contract may also be altered within legal limits to suit individual cases.
· Although discouraged both by the holy Quran and Hadith, yet like any other contract, there is also provision for the breach of marriage contract.
Requirements of Muslim Nikah
The solemnization of a Muslim marriage requires adherence to certain forms and formulas. They are called the essentials of a valid marriage. If any of these requirements is not fulfilled the marriage becomes either void or irregular, as the case may be the essentials are as follows:
· Proposal and Acceptance
· Competent Parties
· No legal Disability
There is absolute prohibition of marriage in case or relationship of consanguinity which means the relationship of the person through his/her father or mother on the ascending side, or through his or her own on the descending side.
Marriage among the persons related by affinity, i.e., through the wife is not permitted. Marriage with foster mother and other related through such foster mother is also void.
Marrying a fifth wife
Marrying a woman undergoing iddat
Absence of proper witnesses
Woman contracting a second marriage during the subsistence of the first marriage.
The following marriages are also prohibited:
Marrying pregnant women
Marrying own divorced wife
Marrying during pilgrimage
Procedure for Muslim Nikah
According to Muslim Law it is absolutely necessary that a man or someone on his behalf and the woman or someone on her behalf should agree to the marriage at one meeting and the agreement should be witnessed by two adult witnesses.
The words conveying proposal and. acceptance must be uttered in each others presence or in the presence of their agents, who are called Vakils or Qazi.
The other condition for a valid marriage is that the transaction must be completed at one meeting. A proposal made at one meeting and an acceptance at another meeting does not constitute a valid marriage.
There must be reciprocity between offer and acceptance. The acceptance must not be conditional.
Under the Sunni Law, the proposal and acceptance must be made in presence of two males or one male and two female witnesses who are sane, adult and Muslim. Under Shia Law, witnesses are not necessary at the time of marriage. They are required at the time of dissolution of marriage.
The parties contracting marriage must be acting under their free will and consent.
The law permits a Muslim man four wives if he treats all of them equally. Since it is one of the religious practices it is claimed to be immune from any legislative enactment.
Dower or Mahr
Dower or mahr is an obligation imposed upon the husband at the time of the marriage as a mark of respect to the wife. It can be received by the wife by instituting an action as if it was a debt due to her. Dower can be in cash or in kind. It is divided into two parts one called prompt payable at the time of marriage before the wife can be called upon to enter into conjugal domicile and the other deferred to be discharged when the specified event occurs and on demand made by the wife. Till the dower is paid the widow has the right to retain possession of her husbands property.
Marriage under Islam is only a civil contract and not a sacrament. A husband can leave his wife without any reasons merely by pronouncing the word Talak thrice. However, for a Muslim woman to obtain divorce certain conditions are necessary. The husband and the wife with mutual agreement can also put an end to the marriage.
Special marriage act
he Special Marriage Act was enacted to provide a special form of marriage for any person in India and all Indian nationals in foreign countries irrespective of the religion or faith followed by either party to the marriage. The parties may observe any ceremonies for the solemnization of their marriage but certain formalities are prescribed before the marriage officer can register the marriage. For the good of the Indian citizens abroad, the act provides for the appointment of diplomatic and consular officers as marriage officers for solemnizing and registering marriages between citizens of India in a foreign country. The Act is applicable throughout the country except the state of Jammu and Kashmir.
Conditions for the Special Marriage Act are as follows :
The Act states that a marriage between two persons can be legalized, if the following conditions are satisfied at the time of marriage:
Neither of the two parties has a spouse living at the time of marriage.
Neither of the two is incapable of giving a valid consent to the marriage due to unsoundness of mind.
Neither of the party has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriages and the procreation of children.
Neither party has been subject to recurrent attacks of epilepsy or insanity.
At the time of marriage the groom should be of 21 years of age and the bride should be of 18 years of age.
Both the parties are not within the degrees of prohibited relationship; provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship, and
Where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.
Prohibited Relationship includes:
Relationship by half or uterine blood as well as by full blood;
Illegitimate blood relationship as well as legitimate;
Relationship by adoption as well as by blood;
and all terms of relationship in this Act shell be construed accordingly. Notice of Intended Marriage
When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least on of the parties to the marriage has resided for a period of not less than 30 days immediately preceding the date on which such notice is given.
Marriage Notice Book and Publication
The marriage Officer shall keep all notices given under Section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same.
The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office and before the expiration of 30 days from the date on which the notice was published any person can object to the marriage that it would contravene any of the conditions necessary for the marriage.
Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the Marriage Officer to whom the notice has been given under section 5, transmitted to the Marriage Officer of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.
Declaration by Parties and Witnesses
Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer.
Place and Form of Solemnization
The marriage maybe solemnized at the office of the Marriage Officer, or at such place within reasonable distance, as the parties may desire, upon payment of such additional fees as may be prescribed. The marriage may be solemnized in a form, which the parties may choose to adopt. However, No marriage is complete and binding unless each party says to the other in the presence of the Marriage Officer and the three witnesses in any language understood by the parties, I_______take thee________to be my lawful wife (or husband).
Certificate of Marriage
After the marriage has been solemnized the Marriage Officer shall enter a certificate in the Marriage Certificate Book and this shall be signed by the parties to the marriage and the three witnesses and this shall be conclusive evidence of the marriage.