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Subject- FAMILY LAW-1

Topic- Marriage
(Back Paper Project)

Submitted to :

Submitted by
Pulkit Pareek

(Asst. Prof.)

B.A.LL.B(5th Sem)

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CONTENTS
1. Contents
2. Acknowledgement
3. Introduction of Marriage
4. Marriage under Hindu Law
5. Forms of Marriage
6. Registration of Marriage
7. Marriage under Muslim Law
8. Essential of Marriage
9. Kinds of Marriage
10. Conclusion

ACKNOWLEDGEMENT

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I take immense pleasure in thanking Maam

wish to express my deep gratitude to him

for his insightful guidance which permitted me to carry out this work. My consult faculty has
been a source of inspiration and I am very thankful to him for his guidance which helps me in
completing this project.
Words are in adequate in offering my thanks to him for his encouragement and co-operation in
carrying out the report work last but not the least I would like to thank my friends.

INTRODUCTION

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Marriage, also called matrimony or wedlock, is a socially or ritually recognized union or legal
contract between spouses that establishes rights and obligations between them, between them
and their children, and between them and their in-laws.[1] The definition of marriage varies
according to different cultures, but it is principally an institution in which interpersonal
relationships, usually sexual, are acknowledged. In some cultures, marriage is recommended or
considered to be compulsory before pursuing any sexual activity. When defined broadly,
marriage is considered a cultural universal.
Individuals may marry for several reasons, including legal, social, libidinal, emotional, financial,
spiritual, and religious purposes. Whom they marry may be influenced by socially determined
rules of incest, prescriptive marriage rules, parental choice and individual desire. In some areas
of the world, arranged marriage, child marriage, polygamy, and sometimes forced marriage, may
be practiced as a cultural tradition. Conversely, such practices may be outlawed and penalized in
parts of the world out of concerns for women's rights and because of international law.[2] In
developed parts of the world, there has been a general trend towards ensuring equal rights within
marriage for women and legally recognizing the marriages of interfaith, and same-sexcouples.
Often, these trends have been motivated by a desire to establish equality and uphold human
rights.
Marriage can be recognized by a state, an organization, a religious authority, a tribal group, a
local community or peers. It is often viewed as a contract. Civil marriage, which does not exist in
some countries, is marriage without religious content carried out by a government institution in
accordance with the marriage laws of the jurisdiction, and recognised as creating the rights and
obligations intrinsic to matrimony. Marriages can be performed in a secular civil ceremony or in
a religious setting via a wedding ceremony. The act of marriage usually creates normative or
legal obligations between the individuals involved, and any offspring they may produce. In terms
of legal recognition, most sovereign states and other jurisdictions limit marriage to opposite-sex
couples and a diminishing number of these permit polygyny, child marriages, and forced
marriages. Over the twentieth century, a growing number of countries and other jurisdictions
have lifted bans on and have established legal recognition for interracial marriage, interfaith
marriage, and most recently, same-sex marriage.[3] Some cultures allow the dissolution of
marriage through divorce or annulment. In some areas, child marriages and polygamy may occur
in spite of national laws against the practice.
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Marriage under Hindu Law


Hindu Marriage Act, 1955 has reformed Hindu law of Marriage. It is a
landmark in the history of social legislation. It has not simply codified the
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Hindu law of marriage but has introduced certain important changes in many
respects. The Hindu marriage contemplated by the Act hardly remains
sacramental. The Act has brought in some changes of far reaching
consequences which have undermined the sacramental nature of marriage
and rendered it contractual in nature to a great extent.
The Hindu law of marriage, as the British rulers of India found, interpreted
and applied, was, in a nutshell, as follows:
(1) Marriage was a holy sanskar, it could be solemnised in one of the eight
forms recognised by law;
(2) The solemnisation would be according to the Shastric or customary rites;
(3) One could marry at any age, as there was no lowest age of marriage;
(4) Inter-religious and inter-caste marriages were prohibited, but the latter
could be sanctioned by custom;
(5) Marrying within ones gotra or pravara was not allowed, except among
the Shudras;

(7) Marriage was indissoluble; divorce was not permitted unless recognised by custom;
(8) Death did not dissolve a marriage and therefore a widow could not remarry unless permitted
by custom so to do.

Applicability of legislation (Section 2)


The Act applies to three types of persons: (i) who are Hindus by religion in any of its forms or
developments. (ii) who are Buddhists, Jainas or Sikhs by religion and (iii) who domiciled in the
territory to which this Act extends and not a Muslim, Christian, Parsi or Jew by religion.

This Act, however, will not apply to those; (i) why have renounced the Hindu religion and have
became converts to some other religion and (ii) persons, who descended from Hindu ancestors
and on account of marriage or on account of some new occupation converted into new
community having their own religion and usages (iii) children, whose either parents though a
Hindu, are not brought up as Hindus.
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Concept and forms of marriage


The concept of marriage is to constitute relationship of husband and wife. According to
ancient Hindu law, marriage is the last of ten sacraments and is a sacred tie which can
never be broken. It is a relation established by birth to birth. According to Smritikars even
death cannot break this relation of husband and wife which is not only sacred and
religious but is a holy union also.
The object of marriage was to enable a man and a woman perform religious duties and to
beget progeny. According to ancient writers a man was incomplete without a woman and
a woman is half of her husband (ardhangini) and completes him.
Every Hindu male or female had to marry. Where a person could not remain a perpetual
student or where he did not desire to be an ascetic (sanyasi), he was enjoined by the
shastra to marry. Marriage, therefore was as good as compulsory and more so in case of a
female.
Marriage: Sacrament or Contract
Marriage being one of the essential Samskaras is sacramental in nature. The sacramental
nature of marriage has three characteristics:
1. It is a permanent union i.e. once tied cannot be untied.
2. It is an eternal union i.e. valid not only in this life but in lives to come.
3. It is a holy union i.e. performance of religious ceremonies is essential.
Since Hindu marriage was considered to be sacrament, the consent of the parties did not
occupy any important place. Thus the person married may be a minor or even of unsound
mind, if the marriage is duly solemnised there is valid marriage. Under the Contract Act,
the contract of a minor or of a person of unsound mind is void. Further, Section 12 of
Hindu Marriage Act does lay down that a marriage is voidable if consent is obtained by
fraud or force, but it is not laid down that if ones consent was not obtained the marriage
is voidable. This shows that despite the fact that a party is able to prove the absence of
consenting mind, the marriage will continue to remain valid.
The modern concept of marriage is contractual in nature. It receives the ideals of liberty
and equality (free volition of individuals). Today, it is an established notion of the west

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that marriage, to be effective, must be an agreement voluntarily entered into by both


parties
In the light of modern concept of marriage could we say that Hindu marriage continues to
be sacrament? By recognising the divorce and widow remarriage the first two
characteristics of sacramental marriage have been waived. However, the third
characteristic is still retained.
To sum up the Hindu marriage has not remained a sacrament and has also not become a
contract, but it has a semblance of both.

Forms of marriage
The ancient Hindu law recognised three forms of Shastric marriages as regular and valid.
These were Brahma (bride given gift by father), Gandharva (mutual agreement of bride
and bridegroom) and Asura (bride virtually sold by the father). The first and the third are
arranged marriage whereas the second one is love marriage.
Forms of marriages in modern Hindu law: The Hindu marriage Act, 1955, does not
specially provide for any forms of marriage. The Act calls marriage solemnized under the
Act as Hindu marriage which may be performed in accordance with shastric rites and
ceremonies or in accordance with the customary ceremonies prevalent in the community
to which bride or bridegroom belongs. However, it does not mean that a marriage cannot
take any of the aforesaid forms now. Marriage can still be entered into in anyone of the
three forms.
Looking at from another aspect in Hindu society there are mainly two forms of
marriages: arranged marriages and love marriages. Most Hindu marriages are still
arranged marriages. An arranged marriage may be either in the form of Brahma marriage
or in the form of Asura marriage. Among the Sudras, the Asura form of marriage is very
common. Among the high-class Hindus, the Brahma form of marriage is common. The
Gandharva form of marriage is fast becoming popular among the younger generation.
Ceremonies

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Marriage among Hindus being a religious and sacred tie, performance of certain
ceremonies is still necessary for a valid marriage. There were three important stages
wherein certain ceremonies were to be performed. They were:
1. Betrothal or Sagai: it is a formal promise to give the girl in marriage.
2. Kanyadan: It is actual giving away of the girl in marriage by her father.
3. Saptapadi: it consisted in performing a ceremony of taking seven steps before the
sacred fire by the bride and the groom. The performance of Saptapadi marked the
completion of a marriage. It made the marriage irrevocable.
As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the
ceremonies of marriage, its non performance will invalidate the marriage. The
performance of vedic rights is not enough to solemnise the marriage.
Customary ceremonies may not include any one of the Shastric ceremonies including
Saptapadi. It may be totally non-religious ceremony or it may be very simple ceremony.
For instance, among santhals smearing of vermilion by bridegroom on the forehead of the
bride is the only essential ceremony.
Necessary ceremonies, shastric or customary, whichever are prevalent on the side of the
bride or bridegroom, must be performed otherwise marriage will not be valid. No one can
innovate new ceremonies and a marriage performed with the innovated ceremonies and
rites is invalid. Hindu Marriage Act allows inter-caste marriages. But marriage between a
Hindu and a non Hindu is not permissible under Hindu Marriage Act and such a marriage
if performed in India, will be invalid. But foreign country such marriage is valid. Such
marriage is also valid in India, if performed under the Special Marriage Act, 1954.
Conditions for the validity of marriage (Section 3 and 5)
A marriage may be solemnised between any two Hindus, if the following conditions are
fulfilled, namely :
(i) Neither party has a spouse living at the time of the marriage;
(ii) At the time of the marriage, neither party:
(a) Is incapable of giving a valid consent to in consequences of unsoundness of mind; or

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(b) Though capable of giving a valid consent, has been suffering from mental disorder of
such a kind or to such an extent as to be unfit for marriage and the procreation of
children; or
(c) Has been subject to recurrent attacks of insanity or epilepsy.
(iii) The bridegroom has completed the age of twenty one (21) years and the bride the age
of eighteen years at the time of marriage.
(iv) The parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two;
(v) The parties are not sapindas of each other, unless the custom or usage governing each
of them permits of a marriage between the two.
Ingredients of Section 5
Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this
section both the parties to the marriage under the Act must be Hindus. If one of them is a
Hindu and the other a non Hindu or both are non Hindus, the marriage will not be a
subject matter of this Act but will relate to some other law i.e. Special Marriage Act etc.

Registration of Marriage (Section 8)


Section 8(1) of Hindu Marriage Act provides that for the purpose of facilitating the proof of
Hindu marriages, the state government may make rules providing that the parties to any such
marriage may have the particulars relating to their marriage entered on such manner and subject
to such conditions, as may be prescribed in a Hindi Marriage Register kept for the purpose.

Registration when necessary


Section 8(2) of the Act provides that the State Government may, if it is of opinion that it is
necessary or expedient so to do, provide that the entering of the particulars referred to above,
shall be compulsory in the state or in any part thereof, whether in all cases, or in such cases as
may be specified.
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There was no requirement for the registration of Hindu marriages before the Hindu marriage Act,
1955. Generally, Hindus do not get their marriages registered unlike Adoption, Will Transfer of
Property and Partition. The Act does not contain the rules of registration and the State
Government have been authorised to frame them.

The purpose of registration is only to furnish a convenient evidence of marriage Clause (4)
provides that Hindu Marriage Registers will be admitted as evidence. The certificate is however
not a conclusive proof of marriage.

Void and Voidable marriages (Sections 11 and 12)


There are three types of marriages under this Act: (i) valid, (ii) void, and (iii) voidable. Section
11 deals with void marriages and Section 12 deals with the voidable marriage. All other
marriages which are not covered by these two sections are valid.

Void marriages
Section 11 states that any marriage solemnized at the commencement of this Act
shall be null and void and may, on a petition presented by either party thereto
against the other party be so declared by a decree of nullity if it contravenes any of
the conditions specified in clauses (i), (iv) and (v) of Section 5.

Thus a marriage will be void ab initio:

(1) If any party to marriage has a spouse living at the time of the marriage [Section 5(i)].

(2) If the parties are within the degree of prohibited relationship unless the custom or usage
governing each of them permits such a marriage [Section 5(iv)].
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(3) If the parties are sapindas of each other, unless the custom or usage governing each of them
permits such a marriage [Section 5(v)].

Section 11 of this Act is prospective in nature. It is only applicable to marriages solemnised after
the commencement of the Hindu Marriage Act, 1955.

Voidable marriages
A marriage which can be annulled or avoided at the option of one or both the parties is known as
a voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of Voidable
Marriage.

This section lays down four grounds on which a Hindu marriage becomes voidable.
These are:

(1) Inability of the respondent to consummate the marriage on account of his or her
impotency.
(2) Respondents incapacity to consent or suffering from a mental disorder.
(3) Consent of the petitioner being obtained by fraud or force.
(4) Concealment of Pre-marriage pregnancy by the respondent.

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Marriage under Muslim Law


Islam, unlike other religions is a strong advocate of marriage. There is no place of celibacy in
Islam like the Roman Catholic priests & nuns. The Prophet has said There is no Celibacy in
Islam.
Marriage acts as an outlet for sexual needs & regulates it so one doesnt become slave to his/her
desires. It is a social need because through marriage, families are established and the families are
the fundamental entity of our society. Furthermore marriage is the only legitimate or halal way to
indulge in intimacy between a man and woman.
Islamic marriage although permits polygamy but it completely prohibits polyandry. Polygamy
though permitted was guarded by several conditions by Prophet but these conditions are not
obeyed by the Muslims in toto.

Marriage:-Pre Islamic Position


Before the birth of Islam there were several traditions in Arab. These traditions were having
several unethical processes like:(i) Buying of girl from parents by paying a sum of money.
(ii) Temporary marriages.
(iii) Marriage with two real sisters simultaneously.
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(iv) Freeness of giving up and again accepting women.


These unethical traditions of the society needed to be abolished; Islam did it and brought a
drastic change in the concept of marriage.

Marriage Defined
It is quiet relevant to know whether the Muslim marriage is a sacrament like the Hindu marriage,
for this let us get acquainted with some of the definitions of Muslim marriage.
(a) Hedaya 1: - Marriage is a legal process by which the several process and procreation and
legitimation of children between man and women is perfectly lawful and valid.
(b) Bailies Digest 2:- A Nikah in Arabic means Union of the series and carries a civil contract
for the purposes of legalizing sexual intercourse and legitimate procreation of children.
(c) Ameer Ali 3:- Marriage is an organization for the protection of the society. This is made to
protect the society from foulness and unchestity.
(d) Abdur Rahim 4:- The Mahomedan priests regard the institution of marriage as par taking both
the nature of Ibadat or devotional arts and Muamlat or dealings among men.
(e) Mahmood J. 5:- Marriage according to the Mahomedan law is not a sacrament but a civil
contract.
(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.
Its a matter of query still existing whether Muslim marriage is only a civil contract or an Ibadat
& Muamlat. While unleashing the various definitions its quite a big problem to say which one is
the most appropriate, in my opinion although the essentials of a contract is fulfilled yet marriage
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can never be said to be a contract because marriage always creates a bondage between the
emotions and thinking of two person.
J Sarsah Sulaiman6 has said In Islam , marriage is not only a civil contract but also a
sacrament.
Muslim marriage can also be differentiated from a civil contract on the basis of following
points:(a) It cannot be done on the basis of future happenings unlike the contingent contracts.
(b) Unlike the civil contract it cannot be done for a fixed period of time. (Muta Marriage being
an exception.)
Purpose of Marriage
The word Zawj is used in the Quran to mean a pair or a mate. The general purpose of marriage
is that the sexes can provide company to one another, procreate legitimate children & live in
peace & tranquility to the commandments of Allah. Marriage serves as a mean to emotional &
sexual gratification and as a mean of tension reduction.

Marriage compulsory or not ?


According to Imams Abu Hanifa, Ahmad ibn Hanbal & Malik ibn Anas, marriage in Islam is
recommendatory, however in certain individuals it becomes Wajib or obligatory. Imam Shafi
considers it to Nafl or Mubah (preferable). The general opinion is that if a person , male or
female fears that if he/she does not marry they will commit fornication, then marriage becomes
Wajib. However, one should not marry if he does not possess the means to maintain a wife and
future family or if he has no sex drive or if dislikes children, or if he feels marriage will seriously
affect his religious obligations.
Prophet said:When a man marries he has fulfilled half of his religion, so let him fear Allah regarding the
remaining half.
This very wording of Prophet marks the importance of marriage, thus it could be well concluded
that marriage in Islam is must.

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Capacity for Marriage


The general essentials for marriage under Islam are as follows:(i) Every Mahomedan of sound mind and having attained puberty can marry. Where there is no
proof or evidence of puberty the age of puberty is fifteen years.
(ii) A minor and insane (lunatic) who have not attained puberty can be validly contracted in
marriage by their respective guardians.
(iii) Consent of party is must. A marriage of a Mahomedan who is of sound mind and has
attained puberty, is void, if there is no consent.

Essentials of Marriage
The essentials of a valid marriage are as follows:(i) There should be a proposal made by or on behalf of one of the parties to the marriage, and an
acceptance of the proposal by or on behalf of the other party.
(ii) The proposal and acceptance must both be expressed at once meeting.
(iii) The parties must be competent.
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(iv) There must be two male or one male & two female witnesses, who must be sane and adult
Mahomedan present & hearing during the marriage proposal and acceptance. (Not needed in
Shia Law)
(v) Neither writing nor any religious ceremony is needed.

Essentials Explored
(i) A Muslim marriage requires proposal Ijab from one party and acceptance Qubul from the
other side. This must be done in one sitting.
(ii) The acceptance must be corresponding to what is being offered.
(iii) The marriage must be effectively immediate. If the Wali says I will marry her to you after
two months, there is no marriage.
(iv) The two parties must be legally competent; i.e. they must be sane and adult.
(v) The women must not be from the forbidden class.
(vi) The consent given must be free consent,. It must not be an outcome of compulsion, duess,
coercion or undue influence.

Kinds of Marriage
Under Muslim generally two types of marriage is recognized
(i) Regular Marriage (essentials discussed earlier)
(ii) Muta marriage

Muta Marriage: Muta marriage is a temporary marriage. Muta marriage is recognized in Shia only. Sunni law
doesnt recognize it. (Baillie, 18). A Shia of the male sex may contract a Muta marriage with a
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woman professing the Mahomedan, Christian or Jewish religion, or even with a woman who is a
fire worshipper but not with any woman following any other religion. But a Shia woman cannot
contract a Muta marriage with a non muslim.

The essentials of Muta marriage are:(1) The period of cohabitation should be fixed.
(2) Dower should be fixed.
(3) If dower specified, term not specified, it could amount to permanent or regular marriage.
(4) If term fixed dower not specified, it amounts to void marriage.

Aspects of Marriage
(i) Valid or Sahih
(ii) Irregular or Fasid
(iii) Void or Batil
(i) Valid or Sahih Marriage: - Under the Muslim law, a valid marriage is that which has been
constituted in accordance with the essential conditioned prescribed earlier. It confers upon the
wife; the right of dower, maintenance and residence, imposes on her obligation to be faithful and
obedient to her husband, admit sexual intercourse with him & observe Iddat.
(ii) Irregular or Fasid Marriage: - Those marriages which are outcome of failures on part of
parties in non fulfillment of prerequisites but then also are marriages; to be terminated by one of
the party is termed to be Irregular marriages. They are outcome of(a) A marriage without witness (Not under Shia Law)
(b) Marriage with fifth wife.
(c) Marriage with a women undergoing Iddat.
(d) Marriage with a fire-worshipper.
(e) Marriage outcome of bar of unlawful conjunction.
An irregular marriage has no legal effect before consummation but when consummated give rise
to several rights & obligations.

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(iii) Void or Batil Marriage:- A marriage which is unlawful from its beginning. It does not create
any civil rights or obligations between the parties. The offspring of a void marriage is
illegitimate. They are outcome of(a) Marriage through forced consent.
(b) Plurality of husband.
(c) Marriage prohibited on the ground of consanguinity.
(d) Marriage prohibited on the ground of affinity.
(e) Marriage prohibited on the ground of fosterage.
Effect of Marriage (Sahih)
The lawful obligations which arise after marriage are as follows(i) Mutual intercourse legalized and the children so born are legitimate.
(ii) The wife gets power to get Mahr
(iii) The wife entitles to get maintenance.
(iv) The husband gets right to guide and prohibit the wifes movement(for valid reasons only)
(v) Right of succession develops.
(vi) Prohibition of marriage due to affinity.
(vii) Women bound to complete Iddat period & not to marry during Iddat period; after divorce or
death of husband.
The obligations and rights set between the two parties during and after the marriage are to be
enforced till legality. On the basis of a marriage husband and wife do not get the right on one
anothers property.

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Conclusion
Marriage is a religious duty of every Muslim and it is considered to be a moral safeguard and a
social need. The Prophet has also said Marriage is my tradition whosoever keeps away there
from is not from amongst me.
Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a nature of civil
contract. Marriage is necessary for the legitimization of a child. When the marriage is done in
accordance to the prescribed norms it creates various rights and obligations on both the parties.

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