Laws of marriage | Anthropology Optional for UPSC PDF Download

Introduction

Classification of marriage laws on a religious basis

• The practice of applying personal laws in marriages was first established by Warren Hastings, the initial Governor-General of British India, in 1772.
• This approach was continued by the British during their time in India.
• After India gained independence, the Government of India chose to maintain the same legal viewpoint on marriages.
• This decision showed their intention of respecting the religious beliefs of the people.
• M.P. Jain referred to these laws as “communal pieces of legislation”.
• Marriage laws can be categorized based on religion into different groups.

Hindu marriage laws

According to Graha Sutra, Vivaha or marriage is considered to be the most important of the sixteen samskaras (socio-religious rites within the Hindu belief system). It is considered to be a sacrament, a union of two personalities for the protection and maintenance of the society, by practising self-restraint, reciprocal cooperation, and self-sacrifice. According to the Vedas, marriage is also considered to be a religious duty of a Hindu.

The Hindu Marriage Act, 1955 governs the matrimony of Hindu couples.

• The Act deals with the registration of marriage after its solemnization between a man and woman belonging to Hindu, Sikh, Buddhist, or Jain communities or those who have converted to these religions. 
•  The inclusion of these religions is based on Article 25(2)(b) of the Indian Constitution. 

Key Aspects of the Hindu Marriage Act

•  The Act was enforced specifically for Hindu marriages, as indicated in the Preamble and Section 2. 
• Section 5 lays down essential conditions for a valid Hindu marriage, which must be adhered to.
•  The Supreme Court case of Gullipilli Sowria Raj v. Bandaru Pavani emphasized the importance of these conditions. 

Conditions for a Valid Hindu Marriage

• Existing Spouse: Neither party should have a living spouse at the time of marriage.
• Mental Capacity: Both parties must be of sound mind and capable of giving consent.
• Mental Health: Neither party should have a mental disorder that affects their ability to bear children.
• Epilepsy or Insanity: Parties should not have a history of epilepsy or repeated insanity attacks.
• Legal Age: The legal age for marriage is 21 for men and 18 for women.
• Prohibited Relationships: Parties should not be in a prohibited relationship as defined in Section 5(4).

Prohibited Relationships

•  Lineal ascendency between parties. 
• Spousal relationship between one party and the lineal ascendant or descendant of the other.
•  Incestuous relationships, such as brother-sister, aunt-nephew, uncle-niece, or wards of siblings. 

Penalty for Prohibited Relationships

• Violation of prohibited relationships can result in a fine of 10,000 rupees, simple imprisonment for one month, or both, as per Section 18(b) of the Act.

Ceremonies and Saptapadi

• Hindu marriages are solemnized according to the rites and ceremonies practiced by the parties, as per Section 7 of the Act. 
• Saptapadi is an essential rite involving seven steps around the sacred fire, marking the completion and binding authority of the marriage.

Legal Validity

•  The Act does not recognize specific forms of Hindu marriages mentioned in Shastric texts. 
•  Forms like Asura, Gandharva, Brahma, Daiva, Arsha, Prajapatya, Rakshasa, and Paisacha have varying degrees of validity in ancient laws. 
•  However, the Act focuses on conditions for a legally valid marriage rather than specific forms. 

Registration of Marriages

• The Supreme Court case of Smt. Seema v. Ashwani Kumar mandated compulsory registration of marriages in India. 
• Registration under the Act involves documentation by the Registrar of marriages solemnized according to the law and religious ceremonies. 
• Verification of requisite documents is followed by a fixed date for registration, requiring the presence of parties before a Sub-Divisional Magistrate. 
• After satisfying the magistrate and meeting procedures, the marriage is registered, and the certificate is granted promptly.

Muslim marriage laws

•  In India, there is no specific codified law governing Muslim marriages. The main difference between Hindu and Islamic perspectives on marriage is that Hindus view it as a sacrament, while Muslims see it as a civil contract (nikahnama) between a man and a woman. 

Essentials of a Valid Muslim Marriage

• Capacity: Both individuals must have the legal capacity to marry.
• Proposal and Acceptance:. proposal (ijab) and acceptance (qubool) are essential, as marriage is considered a contractual relationship.
• Free Consent: Both parties must give their consent freely without any coercion.
• Consideration (Mehr): There must be a consideration, known as Mehr, for the completion of the contract.
• Legal Obstructions: There should be no legal impediments to the marriage.
• Witnesses: Witnesses are required to oversee the contractual agreement. The number of witnesses varies between Sunni and Shia beliefs.

Types of Muslim Marriages

• Sahih: Valid marriages.
• Batil: Void marriages.
• Fasid: Irregular marriages due to errors such as inadequate witnesses, marriage during Iddat period, or inter-religious marriage.

Supreme Court Rulings

• In Chand Patel v. Bismillah Begum, the Supreme Court identified conditions that make a marriage irregular, such as a man marrying his two sisters.
• In Mohammad Salim v. Shamsudeen, the Supreme Court ruled that children born from a fasid marriage (Muslim father and Hindu mother) are legitimate and have the right to inherit their father's property.
• In the Hadiya Case (Shafin Jahan v. Ashokan K.M.), the Supreme Court upheld the rights of consenting adults to marry of their own free will, overturning the Kerala High Court's judgment that Hadiya was forced to convert to Islam.

Muta Marriages

• Muta marriages are a form of short-term marriage in Islamic law, primarily recognized by Shia Muslims. These marriages are characterized by their temporary nature, with a stipulated duration that can range from a day to a year, or even longer, as there are no strict limitations on the duration.
• Sunni Muslims, however, do not accept the concept of muta marriages.

Registration of Muslim Marriages

• Muslim marriages in India are governed by the Muslim Marriages Registration Act, 1981, which treats these marriages as civil contracts.
• Registration of a Muslim marriage is mandatory in India.
• According to Section 3 of the Act, Muslim marriages must be registered within thirty days of the Nikah ceremony.
• The Nikahnama, a legal contract signed by the bride, groom, and witnesses, legitimizes the marriage and outlines the necessary conditions of the relationship.

Inter-faith Marriages in Islam

• Inter-faith marriages are generally prohibited for Muslims. However, under Shariat principles, a marriage between a Muslim man and a non-Muslim woman from a non-kitabbiya religion (one that does not adhere to a single religious text or idol, such as fire-worshippers) is considered irregular rather than void. 
• This type of marriage can be validated if the woman converts to Islam or another Abrahamic religion, such as Christianity or Judaism. 

Sikh marriage laws

• Although Sikhs are classified as 'Hindus' under Indian law, there has been a longstanding demand within the Sikh community for separate marriage legislation specifically for Sikhs. This demand has arisen due to the difficulties many Sikh couples face abroad regarding their marriage certificates issued under the 'Hindu' Marriage Act of 1955.
• In the case of Birendra Kaur v. Union of India, the petitioner filed a public interest litigation in the Punjab and Haryana High Court requesting a change in the name of the 'Hindu' Marriage Act to a more secular title, arguing that it also governs members of three other communities. After the High Court dismissed the case, the petitioner escalated the matter to the Supreme Court in 2012, seeking justification for the application of Hindu marriage laws to Sikhs. The Supreme Court subsequently questioned the Indian government about the possibility of labeling the acts as "Buddhist marriage act" and applying them to other religions.
• In response, the UPA-II government, led by Manmohan Singh, successfully passed the Anand Marriage (Amendment) Bill in 2012, which received presidential assent from Smt. Pratibha Patil. Consequently, Sikhs were granted the legal right to register their marriages under this Act, which is rooted in the colonial-era Anand Marriage Act of 1909 that aimed to provide legal validity to the Sikh marriage ceremony known as "Anand Karaj." The original 1909 law lacked provisions for marriage registration, a gap that was addressed by the 2012 amendment.
• The Supreme Court reinforced the significance of traditional Sikh marriage ceremonies in the case of Kanwal Ram and Ors. v. Himachal Pradesh Administration, echoing the Punjab and Haryana High Court's ruling in Resham Singh v. Kartar Singh, where the court recognized the essential practice of the groom and bride circling the Holy Guru Granth Sahib four times while hymns composed by Guru Ram Dass are recited, as part of the Anand Karaj.
• Regarding the registration of marriages under the Anand Marriage Act, 'Anand Karaj', meaning 'blissful event', is the traditional Sikh matrimonial ceremony. Haryana established rules for marriage registration in 2014, appointing Tehsildars for rural areas and Joint Commissioners, Executive Commissioners, and Municipal Corporation Secretaries for urban areas. In Haryana, couples must submit a memorandum along with documentation and a fee of 50 rupees within 30 days post-ceremony. In Delhi, the registration fee is 500 rupees. Additionally, the Act has been implemented in the Andaman and Nicobar Islands, along with Delhi, Haryana, and Punjab.

Christian Marriage Laws

•  Christians are the second-largest religious minority in India, following Muslims. 
•  The Indian Christian Marriage Act, 1872 governs the marriages of Christian couples in India. 
•  A priest or minister must be present to solemnize the wedding, according to the Act. 

Section 4 of the Act:

• Allows Christian weddings between a Christian and another Christian.
• Also legitimizes marriages between a Christian and a non-Christian, as long as the marriage is solemnized under the Act.
• In the case of Subhashchandra Ishudas Parmar v. State of Gujarat, the Gujarat High Court ruled that a non-Christian marrying a Christian does not need to convert to Christianity.

Age and Consent:

• The minimum age for the bride is eighteen, and for the groom, it is twenty-one.
• Both parties must give their consent, and neither should have a living spouse at the time of the wedding.

Notice for Planned Marriage:

• Either party must notify the Minister of Religion about their intention to marry under the Act.
• If they reside in different areas, separate notices must be sent to the district Marriage Registrars.
• The Minister is responsible for issuing certificates to solemnize the marriage after receiving the notices.

Conducting the Marriage:

• Section 5 of the Act lists who is eligible to conduct a marriage under the Indian Christian Marriage Act.
• Marriages conducted by unauthorized individuals are considered void.
• A Clergyman from the Church of Scotland, a Minister of Religion listed under the Act, a Marriage Registrar, or a legally licensed person under the Act can conduct the marriage.

Performance of the Marriage:

• The marriage is performed according to the customs and rituals approved by the Priest or Minister of the Church.
• Two witnesses, apart from the Priest or Minister, must be present at the ceremony.
• If the marriage does not take place within sixty days of the notice issued by the Minister of Religion, a new notice is required for solemnization.

Registration of Christian Marriages:

•  Registration of Christian marriages is outlined in Part IV of the Indian Christian Marriage Act, 1872. 
•  Marriages must be registered by the parties in their respective areas or territorial jurisdictions to provide legal validity to the union. 
•  The Registrar who conducted or witnessed the marriage registers it in the Marriage Register, and an acknowledgment slip is attached as proof, signed by the witnesses and the married couple. 
•  Copies of these acknowledgment slips are sent to the Registrar General of Births, Deaths, and Marriages within thirty days. 
•  There is also a provision for sanctifying Indian Christian marriages without prior notice. 

Parsi marriage laws

•  The Parsi Marriage and Divorce Act of 1936 governs the marriages of Parsis, who are followers of Zoroastrianism. 
•  Parsi marriages must be registered in the Registrar’s office within the territorial jurisdiction. 

Conditions for Valid Parsi Marriage:

• Consanguinity: Marriages are invalid if there is a close blood relation between the parties.
• Prohibited Relationships: Marriages are invalid if the relationship is listed in Schedule I of the Act.
• Ceremony Requirements: The marriage must be solemnized by a Parsi priest in the presence of two witnesses from the community and must include the ‘Ashirwad’ ceremony.
• Age Requirements: The groom must be at least 21 years old, and the bride must be at least 18 years old.

Unlawful Marriages:

• A Parsi cannot remarry during the lifetime of their spouse unless legally separated through divorce, declaration, dissolution, or annulment.

Marriage Registration Process:

• The newly married couple and three witnesses must sign the marriage certificate.
• The certificate should be sent to the Marriage Officer with a prescribed fee for registration.

Repeal of Prohibited Relationships:

•  Section 53, which previously listed prohibited relationships for marriage, has been repealed.

The Special Marriage Act: a secular matrimonial law

• ​The Special Marriage Act, 1954, applies to various religious communities in India, including Hindus, Muslims, Sikhs, Christians, Jains, Buddhists, and Parsis. 
• Unlike communal laws, this Act governs both inter-caste and inter-religious marriages. 
• It provides for the solemnization and registration of marriage between two consenting adults. 

Conditions for Validity (Section 4)

• Section 4(a). Requires the absence of a living spouse for the new marriage.
• Section 4(b). Stipulates mental and physical capacity conditions for marriage.
• Section 4(c). Sets the minimum marriage age at 21 for men and 18 for women.
• Section 4(d). Prohibits marriages between individuals in a prohibited relationship unless allowed by customs.

Violating any of these conditions can lead to marriage annulment. The Special Marriage Act offers an alternative for interfaith couples who cannot marry under their personal laws, providing them legal recognition as husband and wife.

Registration Process under the Special Marriage Act

• Initiation: The registration process begins after a month’s notice is given to the sub-registrar in the relevant territorial jurisdiction where either party has resided.
• Public Notice: Parties must be present for issuing public notice invitations after submitting required documents. A copy of the notice is displayed in the office, and two copies are given to each party.
• Registration: Registration occurs after 30 days from the notice issuance, subject to resolving objections raised by the Sub-District Magistrate.
• Presence: Both parties, along with three witnesses, must be present in person on the fixed date for marriage registration.

 The Special Marriage Act also applies when an Indian marries a foreigner in India.

Matrimonial Rights for LGBTQIA+ in India

• Background: In the case of Navtej Singh Johar v. Union of India, the Supreme Court decriminalized Section 377 of the Indian Penal Code, which had criminalized consensual non-penile-vaginal intercourse between adults, including members of the LGBTQIA+ community. This ruling recognized the fundamental and constitutional rights of individuals to engage in consensual sexual relationships, regardless of their sexual orientation.
• Need for Marriage Rights: Despite the decriminalization of Section 377, legalizing the identity of LGBTQIA+ individuals is seen as incomplete without granting them basic civil rights, such as the right to marry and register their marriages. This perspective was emphasized by Menaka Guruswamy, the leading counsel in the Navtej Johar case, who highlighted the importance of marriage rights for queer individuals in India.
• The Marriage Project: In response to the need for marriage rights, the LGBTQIA+ community and activists have initiated the "Marriage Project" to advocate for the legal recognition of same-sex marriages. This project aims to secure basic civil rights for queer Indians, including the right to marry.
• Legal Developments:. married gay couple has filed an appeal in the Kerala High Court seeking legal recognition of their marriage. The court has notified the Central and State governments about the case, which is currently under consideration. 
• Political Will and Legislative Role: Legalizing same-sex marriages requires political will and involvement from the legislature and executive. Revamping existing marriage laws to include same-sex marriages is necessary, and the role of lawmakers and government officials is crucial in this process.