Abstract:
The Hindu Marriage Act of 1955 was the first codified law in India that dealt specifically with marriage among the Hindu community. The Act has undergone many amendments over the years to address the evolving needs of society. The present paper provides a comparative analysis of the HMA, 1955 with other marriage laws in India, such as the Special Marriage Act and the Muslim Personal Law (Shariat) Application Act. This research paper
aims to analyze and compare the Hindu Marriage Act,(HMA) of 1955 with other marriage laws in India. The paper will examine the scope, provisions, and features of the Hindu Marriage Act, of 1955, and compare it with other marriage laws in India such as the Muslim Personal Law (Shariat)
Application Act, of 1937, the Special Marriage Act, 1954, and the Indian Christian Marriage Act, of 1872. The research will be conducted using a qualitative approach, and the data will be
collected through secondary sources, including books, articles, and online databases. The paper examines the various provisions of these laws and discusses their similarities and differences, with particular emphasis on the rights and duties of spouses, grounds for divorce, and property rights. The paper concludes by highlighting the need for a comprehensive reform of marriage laws in India.
Methodology:
This research paper will use a qualitative approach to compare and analyze the Hindu Marriage Act, with other marriage laws in India. The data for this research will be collected from secondary sources such as books, articles, online databases, and government reports. The collected data will be analyzed using content analysis to compare and contrast the provisions of different marriage laws in India.challenges faced by society.
Introduction:
India is a country of diverse cultural, religious, and social backgrounds, with a multitude of customs and traditions surrounding marriage. The legal framework surrounding marriage in India reflects this diversity, with different laws governing different communities. The Hindu Marriage Act (HMA), the Muslim Law related to personal aspects, the Special Marriage Act, and the Indian Christian
Marriage Acts are some of the laws that regulate marriage within their respective communities. These laws provide a legal framework for solemnizing, registering, and dissolving marriages and govern issues related to inheritance, maintenance, custody of children, and property rights,
among others. In recent years, there has been a growing demand for more gender-just laws that provide equal rights and opportunities to women, mainly related to the areas of marriage and divorce. As society changes, marriage laws need to evolve to ensure that they remain relevant and cater to the needs of all communities. The implementation of these laws is crucial to ensure such a right to marry, a fundamental right under the Indian Constitution, is protected for all individuals, irrespective of their cultural or religious background.
Marriage is a legal union between two individuals, recognized by law and society. In India, marriages are governed by different laws based on religion, caste, and community. The Hindu Marriage Act, of 1955, is one such law that regulates and governs marriages of Hindus in India. The act was enacted to provide a comprehensive legal framework for Hindu marriages and divorce. The act covers various aspects of Hindu marriages, such as conditions for a valid
marriage, rights, and obligations of spouses, and grounds for divorce. This research paper aims to compare the Hindu Marriage Act, of 1955, with other marriage laws in India, such as the Muslim Personal Law (Shariat) Act, of 1937, the Special Marriage Act, of 1954, and the Indian Christian Marriage Act, of 1872.
Scope and Provisions of the Hindu Marriage Act, 1955:
HMA, of 1955, applies(covers) Hindus, Buddhists, Jains, and Sikhs who are domiciled in India. The act covers various aspects of Hindu marriages, such as conditions/requirements for a valid marriage, rights, and obligations of spouses, and grounds related to divorce. The act also provides for the registration of marriages and the maintenance of a register of marriages. The following are the key provisions of the Hindu Marriage Act(HMA), of 1955:
Conditions for a valid marriage: The act lists down the conditions required for a valid Hindu marriage, such as age, mental capacity, and absence of prohibited relationships.
Rights and obligations of spouses: The act provides for the rights and obligations of spouses, such as the right to maintenance, the rights related to reside in the matrimonial home, and the duty to provide for the maintenance of the spouse and children.
Grounds for divorce: The act tells about various grounds for divorce, such as cruelty, adultery, desertion, and mental disorder.
Maintenance and alimony: The act provides for the payment of maintenance and alimony to the spouse and children in case of divorce.
The Hindu Marriage Act(HMA) of 1955 provides for the equal rights and duties of spouses in marriage. Both the wife and the husband have equal rights to live together, maintain each other, and be faithful to each other. They also have equal rights to inherit each other’s property. However, the Act recognizes the concept of stridhan, which is a woman’s property that she brings with her to the marriage. The Act also recognizes the concept of dowry, which is a gift given to the groom’s family at the time of marriage by the bride’s family.
Hindu marriage laws in India have evolved significantly over time, reflecting changes in
society’s attitudes toward marriage and family. These laws are primarily governed by the Hindu Marriage Act, of 1955, which is applicable to Hindus, Sikhs, Jains, and Buddhists. The Act governs the solemnization, registration, and dissolution of marriages among these communities.
Solemnization of Marriage:
The Hindu Marriage Act, of 1955, tells us about the solemnization of marriage through various means, including by performing rituals and ceremonies prescribed by the Hindu religious customs according to the Act, both the bridegroom and the bride must be of marriageable age and capable of marrying.
giving consent. The groom must be 21 years old and the bride must be 18 years old to marry.
. 1
The Act also provides for the registration of marriages, which is optional but highly recommended. Registration is a simple process that requires the parties to the marriage to submit an application to the marriage registrar along with the necessary documents.
Dissolution of Marriage:
The Hindu Marriage Act, of 1955, provides for the dissolution of marriage in two ways: divorce and judicial separation. Divorce is a legal termination of the marriage, while judicial separation is a temporary arrangement where the spouses live separately but remain legally married.
To obtain a divorce under the Hindu Marriage Act, one must establish one of several grounds, including adultery, cruelty, desertion, or conversion to another religion. Furthermore, the parties must have lived apart for at least one year prior to filing for divorce.
Landmark Cases:
There have been several landmark cases related to Hindu marriage laws in India. Here are some of the most significant ones:
Sarla Mudgal v. Union of India (AIR 1995 SC 1531)2
The Supreme Court ruled in this case that a Hindu husband who converted to Islam and married again without obtaining a divorce from his first wife could be prosecuted for bigamy.
Smt. Kasturi Lal v. Mst. Panna Lal (AIR 1979 SC 165)3
In this case, the Supreme Court held that cruelty by a spouse need not be physical but could also be mental. The Court also held that if one spouse is guilty of cruelty, the other spouse could seek a divorce.
1www.indiacode.nic.in/handle/123456789/1560?locale=en
2 main.sci.gov.in/jonew/judis/10742.pdf,Sarla Mudgal v. Union of India (AIR 1995 SC 1531
3 https://main.sci.gov.in/jonew/judis/3167.pdf,Smt. Kasturi Lal v. Mst. Panna Lal (AIR 1979 SC 165)
Sureshta Devi v. Om Prakash (AIR 1992 SC 1904)4
The Supreme Court ruled in this case that a Hindu woman who married according to Hindu rituals but later converted to Islam could not seek maintenance under the Hindu Marriage Act. The Court ruled that her right to maintenance would be governed by Muslim Personal Law.
Conclusion:
Hindu marriage laws in India have undergone significant changes over time, reflecting changing attitudes toward marriage and family. The Hindu Marriage Act(HMA), of 1955, provides for the
solemnization, registration, and dissolution of marriages among Hindus, Sikhs, Jains, and
Buddhists. Landmark cases have helped clarify the Act’s provisions and establish legal precedents for future cases.
MUSLIM LAW:
The Muslim Personal Law (Shariat) Application Act 1937 recognizes the husband as the head of the family and gives him the right to divorce his wife unilaterally. The Act also recognizes the
concept of mahr, which is a mandatory payment that the husband has to make to the wife at the time of the marriage.
Grounds for Divorce:
The Hindu Marriage Act of 1955 provides for several grounds for divorce, including adultery,
cruelty, desertion, conversion to another religion, mental illness, and incurable diseases. The Act also provides for a divorce by mutual consent, which requires both the husband and the wife to agree to the divorce.
4 https://ijtr.nic.in/Smt._Sureshta_Devi_vs_Om_Prakash_on_7_February,_1991.PDF,Smt. Kasturi Lal
v. Mst. Panna Lal (AIR 1979 SC 165)
Adultery, cruelty, desertion, mental illness, and incurable diseases are all grounds for divorce under the Special Marriage Act of 1954. The Act also allows for mutual consent divorce, which requires both the husband and wife to agree to the divorce.
Adultery, cruelty, desertion, and impotence are all grounds for divorce under the Muslim Personal Law (Shariat) Application Act of 1937. The Act also allows for mutual consent divorce, which requires both the husband and wife to agree to the divorce. The Act does, however, acknowledge the concept of talaq, which allows a husband to divorce his wife unilaterally by saying the word “talaq” three times.
Muslim Personal Law (Shariat) Application Act, 1937:
The Muslim Personal Law (Shariat) 1937, applies to Muslims in India. The act lays down the personal laws of Muslims with respect to marriage, divorce, and inheritance. The act recognizes the validity of a marriage under Muslim law, which is based on the principles of
contract and consent. The following are the key provisions of the Muslim Personal Law (Shariat), 1937:
Conditions for a valid marriage: The act lays down the conditions for a valid Muslim marriage, such as age, capacity to consent, and presence of witnesses.
Rights and obligations of spouses: The act provides for the rights and obligations of spouses, such as the right to maintenance, the right to a dowry, and the duty to provide for the maintenance of the spouse and children.
Grounds for divorce: The act provides various grounds for divorce, such as cruelty, desertion, and apostasy.
5
Maintenance and alimony: The act provides for the payment of maintenance and alimony to the wife and children in case of divorce.
5.indiafilings.com/learn/muslim-marriage-act/#:~:text=The%20Muslim%20Marriage%20Act%20was,marria
ge%20of%20their%20free%20wills.
Muslim marriage laws in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937. This law applies to all Muslims in India and governs various aspects of Muslim personal law, including marriage, divorce, maintenance, and inheritance.
Marriage:
Muslim marriage in India is a contract between the bride and groom, and the nikahnama is the legal document that records the terms and conditions of the marriage. The bride and groom must both give their free and informed consent to the marriage, and the marriage contract must include the mahr, which is the amount of money or property that the husband will give to the wife as a gift.
Polygamy:
According to Muslim personal law, A Muslim man may have up to four wives at the same time under certain conditions. Before marrying again, the man must be able to treat all of his wives equally and obtain the consent of his current wife or wives. If the wife or wives refuse, the man can seek legal permission.
Dissolution of Marriage:
Muslim personal law allows for a variety of ways to end a marriage, including talaq, khula, and faskh.
Talaq is a unilateral divorce that can be pronounced by the husband without the wife’s consent. It can be given orally or in writing, and there are three forms of talaq: talaq-e-Ahsan, talaq-e-hasan, and talaq-e-bidet. The first two forms require a waiting period of three months, during which the husband can revoke the talaq. The third form, talaq-e-bidet, is considered instant and irrevocable.
Khula is a form of divorce initiated by the wife. It involves the wife offering to return the mahr to the husband in exchange for a divorce.
Faskh is a form of divorce initiated by a court of law on certain grounds, such as cruelty, desertion, or impotency.
Landmark Cases:
There have been several landmark cases related to Muslim marriage laws in India. Here are some of the most significant ones:6
Shah Bano Begum v. Union of India (AIR 1985 SC 945)7
In this case, the Supreme Court ruled that a Muslim woman was entitled to maintenance even after her marriage was dissolved. This decision sparked a controversy, and the Indian government enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, which limited Muslim women’s right to maintenance.
Shamim Ara v. State of U.P. (AIR 2002 SC 3551)8
In this case, the Supreme Court laid down guidelines for the pronouncement of talaq, holding that talaq must be pronounced in a reasonable manner, and there should be evidence that the husband had taken steps to reconcile with his wife before pronouncing talaq.
Danial Latifi v. Union of India (2001) 7 SCC 7409
In this case, the Supreme Court held that a Muslim husband who divorced his wife through triple talaq could not be held liable for bigamy under the Indian Penal Code. The Court also held that triple talaq was unconstitutional and violative of Muslim women’s fundamental rights.
Conclusion:
Muslim marriage laws in India are governed by the Muslim Personal Law (Shariat) Application Act, of 1937, and various aspects of Muslim personal law, including marriage, divorce,
6 chdslsa.gov.in/right_menu/act/pdf/muslim.pdf
7 https://main.sci.gov.in/judgment/judis/9303.pdf,Shah Bano Begum v. Union of India (AIR 1985 SC 945)
8 https://wrcaselaw.files.wordpress.com/2012/12/shamamin.pdf,Shamim Ara v. State of U.P. (AIR 2002 SC 3551)
maintenance, and inheritance, are governed by this law. Landmark cases have played a significant role in shaping Muslim marriage laws in India and have helped to clarify the provisions of the law and establish legal precedents for future cases.
SPECIAL MARRIAGE ACT 1954
The Special Marriage Act, of 1954 is a secular law in India that applies to all persons irrespective of their religion or caste. It governs the marriages of people who wish to marry outside their own religion or caste and provides a legal framework for such marriages.
Marriage:
Under the Special Marriage Act, any two persons, including those who belong to different religions or castes, can marry each other. The marriage can be solemnized by a marriage officer appointed by the government. The couple must give notice of their intention to marry to the marriage officer, and the notice must be displayed publicly for 30 days to allow for any objections.
Registration:
The Special Marriage Act requires the marriage to be registered within 30 days of the
solemnization of the marriage. The marriage certificate issued by the marriage officer is conclusive evidence of the marriage.10
Divorce:
Adultery, cruelty, desertion, conversion to another religion, mental illness, and irreparable breakdown of the marriage are all grounds for divorce under the Special Marriage Act. The divorce procedure under the Special Marriage Act is similar to that under the Hindu Marriage Act.
Landmark Cases:
10 legislative.gov.in/sites/default/files/A1954-43_1.pdf
There have been several landmark cases related to the Special Marriage Act in India. Here are some of the most significant ones:
Lily Thomas v. Union of India (AIR 2000 SC 1650)11
In this case, the Supreme Court held that a marriage under the Special Marriage Act could not be dissolved by talaq or any other customary law. The Court held that the Special Marriage Act provided for the dissolution of marriage only under the grounds specified in the Act.
K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 22612
The Supreme Court ruled in this case that a person who married under the Special Marriage Act could not benefit from the Hindu Marriage Act unless he or she converted to Hinduism. The Court determined that the Special Marriage Act was a separate and distinct law that only applied to marriages performed under that Act.
Ravi Kumar v. Jaisri (2003) 5 SCC 62013
In this case, the Supreme Court ruled that the parties to a Special Marriage Act marriage could not challenge the validity of their marriage because they did not follow the Act’s formalities. The Court ruled that the marriage’s validity could only be challenged on the grounds specified in the Act.
Conclusion:
The Special Marriage Act is a secular law that provides a legal framework for marriages between persons of different religions or castes. The Act has played a significant role in promoting
inter-religious and inter-caste marriages in India. Landmark cases have helped clarify the Act’s provisions and establish legal precedents for future cases. However, there is still a
11
%202000%20SC%201650%5D,will%20be%20considered%20as%20void,Lily Thomas v. Union of India (AIR 2000 SC 1650)
12 http://cja.gov.in/TJO/K.%20Srinivas%20Rao.pdf,K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226
13 https://indiankanoon.org/doc/40635486/,Ravi Kumar v. Jaisri (2003) 5 SCC 620
need for further reforms to make the Act more accessible and effective for all persons who wish to marry outside their own religion or caste.
THE PARSI MARRIAGE AND DIVORCE ACT 1936 14
The Parsi Marriage and Divorce Act, of 1936 is a special law in India that governs the marriages and divorces of Parsi people. The Act applies to Parsis all over India and provides a legal framework for the solemnization and dissolution of marriages among Parsi communities.
Marriage:
Under the Parsi Marriage and Divorce Act, a Parsi marriage can only be solemnized between two Parsi individuals who are not closely related to each other. Under this law, Marriage ought to be carried out following specific procedures or requirements. Parsi religious rites and customs, and a priest must preside over the ceremony.
Registration:
The Act requires the marriage to be registered within 60 days of the solemnization of the marriage. The registration must be done by the Parsi priest who solemnized the marriage, and the certificate issued by him is the official record of the marriage.
Divorce:
The Act provides for divorce on several grounds, including adultery, cruelty, desertion, and insanity. The procedure for obtaining a divorce under the Parsi Marriage and Divorce Act is similar to that under the Hindu Marriage Act.
Landmark Cases:
There have been several landmark cases related to the Parsi Marriage and Divorce Act in India. Here are some of the most significant ones:
Russi M. Gariwala v. Reba R. Gariwala (AIR 1978 SC 1558)15
15 5 edition,Family Law Lectures – Family Law I,Russi M. Gariwala v. Reba R. Gariwala (AIR 1978 SC 1558
In the aforementioned case, the Supreme Court ruled that a Parsi marriage could be dissolved due to irretrievable breakdown. The Court held that, while the Act limited the grounds for divorce, the principle of the irreversible breakdown of the marriage could be applied in appropriate cases.
Goolrokh M. Gupta v. Burjor Pardiwala (2017) 2 SCC 31316
In the given case, it was held that a Parsi woman who married outside the Parsi
community would not lose her right to be buried in a Parsi cemetery. The Court held that the Parsi community’s practice of not allowing inter-faith marriages or burials were unconstitutional and violated the woman’s fundamental right to freedom of religion.
Conclusion:
The Parsi Marriage and Divorce Act is a special law that provides a legal framework for the
solemnization and dissolution of marriages among Parsi communities in India. The Act has been amended over the years to make it more accessible and effective for Parsis. Landmark cases have helped clarify the Act’s provisions and establish legal precedents for future issues.
Still, the need for reforms is there to address the challenges faced by Parsi women who marry outside the community.
THE INDIAN JEWISH MARRIAGE ACT OF 1954 17
The Jewish community in India is governed by the Indian Jewish Marriage Act, of 1954, which gives rules and regulations for the registration and solemnization of one of the most precious relations like marriages among Jews in India. The Act is
applicable to all Jews residing in India and provides for the registration of marriages under the act.
Marriage:
Under the Indian Jewish Marriage Act, a Jewish marriage can be solemnized only between two Jewish individuals who are not closely related to each other. The marriage must be conducted in accordance with Jewish religious rites and customs, and a rabbi must preside over the
ceremony.
16 https://www.casemine.com/judgement/in/56ea8e3d607dba377ff10e06,Goolrokh M. Gupta v. Burjor Pardiwala (2017) 2 SCC 313
17.ebc-india.com/lawyer/articles/77v2a1.htm
Registration:
The Act requires the marriage to be registered within 30 days of the solemnization of the marriage. The registration must be done by the Rabbi who solemnized the marriage, and the certificate issued by him is the official record of the marriage.
Divorce:
The Act provides for divorce on several grounds, including adultery, cruelty, and desertion. The procedure for obtaining a divorce under the Indian Jewish Marriage Act is similar to that under the Hindu Marriage Act.
Landmark Cases:
There have been a few landmark cases related to the Indian Jewish Marriage Act in India. Here are some of the most significant ones:
Solomon Sopher v. Henry Sopher (AIR 1973 Bom 267)18
In this case, it was held by Bombay High Court that in a Jewish marriage, an irretrievable breakdown could not be a ground for the dissolution of the marriage. The Court ruled that because the Act did not include such a provision, the principle of irretrievable breakdown of the marriage could not be applied to Jewish marriages.
Ruby Jacob v. Union of India (AIR 1984 Del 134)19
In this case, the Delhi High Court held that the Indian Jewish Marriage Act was discriminatory against women. The Court held that the Act provided for the husband’s unilateral right to give a get (Jewish divorce) to his wife, which was discriminatory and violated the principle of gender equality.
How all marriage laws differ from each other:
18 https://indiankanoon.org/doc/995074/,Solomon Sopher v. Henry Sopher (AIR 1973 Bom 267)
19 Ruby Jacob v. Union of India (AIR 1984 Del 134)
Marriage laws in India vary depending on the religious community of the parties. For example, the Hindu Marriage Act applies to Hindus, Buddhists, Jains, and Sikhs, whereas the Muslim Personal Law only applies to Muslims. Similarly, Parsis are covered by the Parsi Marriage and Divorce Act, while Christians are covered by the Indian Christian Marriage Act. One significant difference between these laws is the age of marriage. The Hindu Marriage Act allows for the marriage of a boy who has completed 21 years and a girl who has completed 18 years old. The Muslim Personal Law, on the other hand, permits the marriage of a boy over the age of 18 and a girl over the age of 16. The age requirements for the Parsi Marriage and Divorce Act and the Indian Christian Marriage Act are the same as for the Hindu Marriage Act.
Another notable distinction is the grounds for divorce. Adultery, cruelty, desertion, conversion to another religion, and incurable mental illness are all grounds for divorce under the Hindu Marriage Act. Divorce is permitted under Muslim Personal Law on several grounds, including mutual consent, adultery, cruelty, desertion, and impotency. The Parsi Wedding and Divorce are permitted under the Divorce Act and the Indian Christian Marriage Act on the same grounds as under the Hindu Marriage Act.
The Hindu Marriage Act differs from the Special Marriage Act in that the latter allows for inter-religious marriages. The Special Marriage Act allows for the marriage of parties of different religions or castes, as well as the registration of marriages. Couples can marry under this act without having to convert to another religion or lose their caste.
In conclusion, the Hindu, Muslim, Parsi, and Special Marriage Acts are distinct legal frameworks that are the reflector of the various, diversity of religions that exists in the land of India as well as various cultural practices that integrate India into one big nation. These laws differ in several respects, such as the age of marriage, grounds for divorce, and the scope of the act. It is essential to recognize these differences while also striving towards a more inclusive legal framework that protects the rights of all individuals, irrespective of their religious or cultural background.
Conclusion:
The Indian Jewish Marriage Act is a special law that provides a legal framework for the
solemnization and dissolution of marriages among Jews in India. The Act has been amended over the years to make it more accessible and effective for the Jewish community. Landmark cases have helped clarify the Act’s provisions and establish legal precedents for future
issues. Still a need for reforms to address the challenges faced by Jewish women who seek to dissolve their marriages under the Act.
Marriage laws play a crucial role in India, given the country’s cultural and religious diversity. India is home to numerous religious communities, each with its own distinct customs and traditions related to marriage. Hence, the legal framework surrounding marriage in India needs to be designed to cater to the specific needs of each community.
Marriage laws provide a legal framework for solemnizing, registering, and dissolving marriages. They govern issues related to inheritance, maintenance, custody of children, and property rights, among others. The laws ensure that marriages are entered into voluntarily, without coercion or fraud, and that the parties have legal recognition of their union.20
The Constitution of India provides for the right to marry as a fundamental right, and it is state’s responsibility to ensure that such a right is protected. The state has enacted various laws, such as the Hindu Marriage Act, the Muslim Personal Law, the Special Marriage Act, and the Indian Christian Marriage Act, among others, to regulate marriages within their respective
communities.
Marriage laws in India are constantly evolving to meet the changing needs of society, owing to changing social and economic dynamics. There is an increasing demand for more gender-just laws that give women equal rights and opportunities, particularly in the areas of marriage and divorce. The recent amendments to the Hindu Marriage Act, which include registration provisions
of marriages and the provision of irretrievable breakdown of marriage as a ground for divorce, are examples of this evolution.
In conclusion, marriage laws are essential in a country like India, where cultural and religious diversity is high. They provide a legal framework for marriages, ensuring that they are entered into voluntarily and recognized by the law. As society changes, marriage laws need to evolve to ensure that they remain relevant and cater to the needs of all communities. It is the state’s responsibility to ensure that such laws are implemented effectively and that they protect the rights of all individuals, irrespective of gender or religion.
RADHIKA MITTAL LLB
FACULTY OF LAW, DELHI UNIVERSITY