FAMILY LAW II

Topic: - COMPARATIVE STUDY OF THE RULES

RELATING TO MARRIAGE UNDER MUSLIM AND
HINDU LAW

Class Teacher
Miss Rupa Pradhan

NAME: ARKAPRAVA BHOWMIK

ROLL NO - 35
COURSE:LL.B. 3YEARS (SEMESTER-II)

INDIAN INSTITUTE OF LEGAL STUDIES

2016
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ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest thanks to MISS

RUPA PRADHAN, Research Assistant in Law, Indian Institute of Legal Studies, for his guidance,

sound advice and affectionate attitude during the course of the study work.

There is no hesitation in saying that she molded raw clay into whatever we are through his incessant

efforts and keen interest shown throughout the academic pursuit. It is due to his patient guidance that I

have been able to complete the task.

I would also thank the Indian Institute of Legal Studies Library for the wealth of information therein. I

express my regards to the Library staff for cooperating and making available the books for this project

research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me throughout the project

work.

Date:
_____________________
ARKAPRAVA BHOWMIK
LL.B (2nd Semester) Roll No: 35
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TABLE OF CONTENTS
___________________________________________________________
Acknowledgement.
1

Research Methodology...
.3- 4
A. Aims and Objectives..
3
B. Statement of
Problem...3
C. Research Hypothesis.
.3
D. Research Questions..
..3
E. Methodology of Research..
4
F. Scope and
Limitations..
4
G. Review of Literature..
.4
H. Mode of
Citation.
4

Table of
Cases.
.5

Chapter I: Introduction..
6 7

Chapter II: Hindu

Marriage..8-15
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2.1 - Historical
Provision
8- 11

2.2- Legal
Perspective
..12-15

Chapter III: Muslim Marriage

16-21
3.1.
Concept
..16-17
3.2 Legal
Aspect
.18
3.3
Nature
...19 - 21
Chapter IV:
Differences..
23-24
CHAPTER VII:
Conclusion25

Bibliography
26

RESEARCH METHODOLOGY
___________________________________________________________
A. AIMS AND OBJECTIVES
The aims and objectives of this project are to understand the concept of
Project Topic, and to analyze the purpose of having provisions/statutes/case
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laws which gives inclusive concept of the said Project topic. One of the aims
of the project is to have a comparative study on the topic so as to have a
clear understanding on the particular Topic.

B. STATEMENT OF PROBLEM

The current systems do not give an equal chance to access and flourish.
Though we have various Laws /Statutes/Case laws, yet essential things are
missed out and very few literates know the proper meaning and nature of
the said project Topic. As such many of us are still in dark as to what the
basic terminologies mean and why was it enacted. Also what is the current
status of the said Topic with respect its implementation.

C. RESEARCH HYPOTHESIS
1. There is a sharp difference between Hindu law of marriage and Muslim law of
Marriage.

2. Hindu marriage is a sacrament whereas Muslim marriage is a contract.

3. The Prophet himself gave huge importance to the institution of marriage.

D. RESEARCH QUESTIONS

What are the basic difference between Hindu law of Marriage and Muslim
law of Marriage?

What are the grounds of void and voidable marriage under the Hindu
Marriage Act 1955?
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What is the legal aspect of Muslim marriage?

E. METHODOLOGY OF RESEARCH

Methodology implies more than simply the methods the researcher used to
collect data. It is often necessary to include a consideration of the concepts and
theories which underlie the methods. The methodology opted for the study on the
topic is Analytical and Doctrinal. Doctrinal research in law field indicates
arranging, ordering and analysis of the legal structure, legal frame work and case
laws by extensive surveying of legal literature but without any field work.

F. SCOPE AND LIMITATIONS

The scope of the study refers to the parameters under which the study is
operating. An extensive attempt has been made in order to search for the quest
with regard to the topic under this paper. Though there is ample scope to
highlight on the principle of good faith and duty of disclosure according to
different Statutes, but the scope of research work is limited to a particular area in
search of answer. Therefore, the researcher confines to the materials which are
available and widely accepted.

G. REVIEW OF LITERATURE
The researcher while writing this project has taken recourse to various primary
and secondary sources. Primary sources would include various laws.
Secondary sources would include books and articles, reports and websites.

H. MODE OF CITATION A Blue Book system of citation has been adopted throughout the project.

TABLE OF CASES
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1. Khurshed Begum v Abdul Rashid, AIR 1934 Lah.907

2. Abdul Razak v Aga Mohammad , 21 IA 56

3. In Gopal kishan v. Mithilesh kumara ,AIR 1979 All 316

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CHAPTER I INTRODUCTION

Marriage as an exclusive and sacramental union also gave birth to polygamy,

concubinage and prostitution. The marriage became monogamous for the woman
alone. It became a sacrament for her alone. Hindus refined the institution of
marriage and idealized it. In this process, they have laid down detailed rules
covering practically all aspects of marriage. While maintaining some continuity
with the past, the Hindu Marriage Act, 1955 has simplified the law of marriage.
The term Nikah has been used for marriage under Muslim law. Nikah literally
means sexual connection. In the language of the law, it implies a particular
contract used for the purpose of legalizing generation. Among the Arabs, nikah is
a wide term comprising many different forms of sex relations. But in
Mohammedan law, it has a very definite legal meaning. It is a contract for the
legalization of intercourse and the procreation of children. Hence Nikah means
union of sexes which confers the status of husband and wife on the parties to the
marriage and the status of legitimacy on the children born out of such union.
In pre-Islamic Arabia, the relationship of sexes was in an uncertain state. Regular
form of marriage of today was very rare. Instead, there flourished such types of
sexual unions which may only be branded as adultery or polyandry or prostitution.
They were:
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1) A custom according to which, a man would say to his wife: send for so and so
(naming a famous man) and have intercourse with him. The husband would then
keep away from her society until she had conceived by the man indicated, but
after her pregnancy became apparent, he would return to her. This originated
from a desire to secure noble offspring.

2) A number of men, less than ten, used to go to a woman and have sexual
connection with her. If she conceived and was delivered of a child, she would send
for them, and they would be all bound to come. When they came and assembled,
the woman would address them saying: you know what was happened. I was
now brought forth a child. O so and so, (naming whom so ever of them she
chose), this is your son. The child would then be ascribed to him and he was not
allowed to disclaim its paternity.
3) A number of men used to visit a woman who would not refuse any visitor.
These women were prostitutes and used to fix at the doors of their tents, a flag as
a sign of their calling. If a woman of this class conceived or brought forth a child,
the men that frequently visited her house would be assembled, and
physiognomists used to decide to whom the child belonged. In the latter two
types of marriage, which differentiates them from ordinary prostitution is the
emphasis placed on establishing the paternity of the child born out of such loose
sexual unions. Today, no prostitution could legally or customarily establish the
paternity of her child in any person, more so in case the
person happens to disclaim the paternity.
Islam reformed these old marriage laws in a sweeping and far-reaching way. In
Quran, some of the regulations regarding marriage are laid down. The relevant
passages are: Marry not women whom your fathers married, - except what is
past: it was shameful and odious, - an abominable custom indeed.(1)
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1. Maynes-Hindu law & usage, 14th edn. 1998, p.125, Bharat law house, New Delhi

CHAPTER 2 HINDU MARRIAGE

2.1 HISTORICAL PERSPECTIVE

Marriage is one of the necessary Samskaras (sacraments) or religious rites for all
Hindus, what ever the caste, who do not desire to adopt the life of a perpetual
Brahmachari(1) or of a sanyasi.(2) The word samskara is formed by uniting the
verb kr with the word Sam and signifies a set of ceremonies or rituals
enjoined by the sastras in relation to an individual. The meaning of the word kr
is imparts or effects. It effects a fitness in the person regarding whom, the
samskara is performed.
Every Hindu must marry. To be mother, were women created and to be fathers,
men; the Veda ordained that Dharma must be practiced by man together with his
wife.(3) He only is a perfect man who consists of his wife, himself and his
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offspring.(4) Those who have wives can fulfill their due obligations in this world;
those who have wives, truly have a family life; those who have wives, can be
happy; those who have wives can lead a full life.(5)
Thus, Hindus conceived of marriage as a sacramental union, as a holy union. This
implies several things. First the marriage between man and woman is of religious
or holy character and not a contractual union. For a Hindu, marriage is obligatory
for begetting son, for discharge of his debt to his ancestors, and for performing
religious and spiritual duties. Wife is not merely a Grihapatni but also
Dharmapatni and Sahadharmini. According to Manu, husband and wife are united
to each other not merely in this life but even after death, in the other world. Its
implication has been that, widow remarriages as a rule was not recognised in
Hindu law.(6)

.
2.Maynes-Hindu law & usage, 14th edn. 1998, p.125, Bharat law house, New Delhi.
3.Manu Smriti, ix, 96; cited in Dr. Paras Diwan on Hindu Law, 2nd edn. 2005, p.547, Orient publishing company,
Allahabad.
4. Ibid.
5 . Mahabharat, Adi Parva, 40-41, ibid.
6.
Manu Smriti, v. 160-161; cf: Dr. Paras Diwan on Hindu Law, 2nd edn. 2005, p.547, Orient publishing Company,
Allahabad.

Derrett puts it succinctly thus: the intention of the sacrament is to make the
husband and wife one, physically and psychically for secular and spiritual
purposes, for this life and for after lives(7).

The Smritis highly eulogized the woman who kept her husbands bed unsullied
even after his death. Though the purabhu (remarried woman) is mentioned by
sages, she is mentioned with a reproach. The ideal was that, a widow who
remains chaste reaches heaven after her death even though she has no son(8); a
widow who becomes unfaithful to her deceased husband has no claim to his
property, not even for maintenance; she may even be ex-communicated(9.)
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According to Manu, wife is a divine institution given by Gods. One should not
think that one has obtained her by choice(10.) Her unity (with her husband) is
established by the Vedas(11). A woman is half her husband and completes
him(12.) A woman must be honoured by her father, brother, husband and brother-
in-law, who desire their welfare. Where women are honoured, the gods are
pleased, but where they are not honoured, no sacred rites yield any reward(13.)
Manu declared that a man who has not taken a wife has not fully perfected his
personality and must be regarded as incomplete. His personality is developed and
completed only upon the union of his wife, himself and his offspring. This is the
significance of unity of personality of man and his wife under Hindu law. Thus
according to the grihyasutras, marriage is not a contract but but a spiritual
union, a holy bond of unity.

.
7. J.Duncan M.Derrett- A Critique of Modern Hindu Law, (1970), 287; ibid. p.531.
8. Manu Smriti, v. 151; Yaj, 1.76; Vishnu, xxv. 13-14; cf: Dr. Paras Diwan on Hindu Law, 2nd edn. 2005, p.547 , Orient
publishing company, Allahabad.
9. Manu Smriti, V. 169, Yaj; 1. 75; Vishnu, XXX, 17; Parasara, 1V, 26; ibid.
10. Manu Smriti, ix. 95; ibid, p.544.
11. Manu Smriti, ix. 96; ibid. p.545.
12. Manu Smriti, ix.26; ibid.
13. Manu Smriti, iii. 58; ibid.
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The words with which, the husband addresses his wife after saptapadi(14) are:
Into my will, I take thy heart; thy mind shall follow my mind. Even in the
patriarchal society of the Rig Vedic Hindus, marriage was considered as a
sacramental union, and it continued to be so in the entire Hindu period, and even
in our contemporary world, most Hindus regard their marriage as a sacrament.
Manu laid down: I hold your hand for saubhagya (good luck) that you may grow
old with your husband, you are given to me by the just, the creator, the wise and
by the learned people15. Further, Manu said that,
Neither by sale nor by desertion, can a wife be released from her husband; this,
we understand is the law ordained by the creator in former times16.
Let mutual fidelity continue till death; this in few words, may be considered as
the highest dharma of husband and wife17.
Let a man and woman united in marriage constantly be beware lest at any time
disunited, they violate their mutual fidelity18.
Wife is also ardhangini (half of man). According to Satpatha Brahmana, the wife
is verily the half of the husband; Man is only half, not complete until he
marries19. The Taittiriya Samhita is to the same effect: half is she of the
husband that is wife20.

2.2 Legal perspective -

As part of the Hindu Code Bill, the Hindu Marriage Act was enacted by Parliament
in 1955 to amend and to codify marriage law between Hindus. As well as
regulating the institution of marriage (including validity of marriage and
conditions for invalidity), it also regulates other aspects of personal life among
Hindus and the applicability of such lives in wider Indian society.

The Hindu Marriage Act provides guidance for Hindus to be in a systematic

marriage bond. It gives meaning to marriage, cohabiting rights for both the bride
and groom, and a safety for their family and children so that they do not suffer
from their parental issues.
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15. Manu Smriti, viii. 227; cf: Dr. Paras Diwan on Hindu Law
16. Manu Smriti, ix. 46; ibid.
17. Manu Smriti ix, 101; Manu iii, 55-76; Yaj.,i. 82; ibid.
18. Manu Smriti, ix, 102; ibid.
19. Satpata Brahmana, v. 1,6.10; ibid. p.546.
20. Taittiriya Samhita, iii, 1, 2, 57; ibid.
Conditions for marriage

Section 5 of The Hindu Marriage Act specifies that conditions must be met for a
marriage to be able to take place. If a ceremony takes place, but the conditions
are not met, the marriage is either void by default, or voidable.

Void marriages

A marriage may be declared void if it contravenes any of the following:

1. Either party is under age.The bridegroom should be of 21 years of age and

the bride of 18 years.

2. Either party is not of a Hindu religion.Both the bridegroom and the bride
should be of the Hindu religion at the time of marriage.

3. Either party is already married. The Act expressively prohibits polygamy. A

marriage can only be solemnized if neither party has a living spouse at the
time of marriage.

4. The parties are sapindas or within the degree of prohibited relationship.

Voidable marriages

A marriage may later be voidable (annulled) if it contravenes any of the

following:

1. Either party is impotent, unable to consummate the marriage, or otherwise

unfit for the procreation of children.
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2. One party did not willingly consent. In order to consent, both parties must
be sound of mind and capable of understanding the implications of
marriage. If either party suffers from a mental disorder or recurrent attacks
of insanity or epilepsy, then that may indicate that consent was not (or
could not be) given. Likewise, if consent was forced or obtained
fraudulently, then the marriage may be voidable.

3. The bride was pregnant by another man other then the bridegroom at the
time of the marriage.

Ceremonies

Section 7 of the Hindu Marriage Act recognises that there may be different, but
equally valid ceremonies and customs of marriage. As such, Hindu marriage may
be solemnized in accordance with the customary rites and ceremonies of either
the bride or the groom. These rites and ceremonies include the Saptapadi and
Kanyadana.

Registering a marriage

A marriage cannot be registered unless the following conditions are fulfilled:

1. a ceremony of marriage has been performed; and

2. the parties have been living together as husband and wife

Additionally, the parties must 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.

Section 8 of the Hindu Marriage Act allows state government to make rules for
the registration of Hindu marriages particular to that state, particularly with
respect to recording the particulars of marriage as may be prescribed in the
Hindu Marriage Register.
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Registration provides written evidence of marriage. As such, the Hindu Marriage

Register should be open for inspection at all reasonable times (allowing anyone
to obtain proof of marriage) and should be admissible as evidence in a court of
law.

Divorce

Although marriage is held to be divine, the Hindu Marriage Act does permit either
party to divorce on the grounds of unhappiness, or if he or she can prove that the
marriage is no longer tenable.

A petition for divorce usually can only be filed one year after registration.
However, in certain cases of suffering by the petitioner or mental instability of
the respondent, a court may allow a petition to be presented beforeone year.

Grounds for divorce

A marriage may be dissolved by a court order on the following grounds:

1. Adultery - the respondent has had voluntary sexual intercourse with a man
or a woman other than the spouse after the marriage.

2. Cruelty - the respondent has physically or mentally abused the petitioner.

3. Desertion - the respondent has deserted the petitioner for a continuous

period of not less than two years.

4. Conversion to another religion - the respondent has ceased to be a

Hindu and has taken another religion.

5. Unsound mind - the respondent has been diagnosed since the marriage
ceremony as being unsound of mind to such an extent that normal married
life is not possible.
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6. Disease - the respondent been diagnosed with an incurable form of leprosy

or has venereal disease in communicable form.

7. Presumption of death - the respondent has not been seen alive for seven
years or more.

8. No resumption of cohabitation after a decree of judicial

separation for a period of at least one year.

In addition, a wife may also seek a divorce on the grounds that:

1. In case of marriages that took place before the Hindu Marriage Act 1955
was enacted, the husband was already married and that any other wife
of the husband was alive at the time of the marriage ceremony.

2. The husband, after marriage, has been found guilty of rape, sodomy or
bestiality.

3. Co-habitation has not been resumed within a yearafter an order for

maintenance under Section 125 of the Criminal Procedure Code or
alternatively, under the Hindu Adoptions & Maintenance Act 1956.

4. The wife was under-age when she married and she repudiates the
marriage before attaining the age of 18 years.

Alimonies (permanent maintenance)

At the time of the decree of divorce or at any subsequent time, the court may
decide that one party should pay to the other an amount for maintenance and
support. This could be a one off payment, or a periodical (such as monthly)
payment. The amount to be paid is at the discretion of the court.
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Remarriage-

Remarriage is possible once a marriage has been dissolved by a decree of

divorce and no longer able to be appealed (whether there was no right of appeal
in the first place, or whether the time for appealing has expired, or whether an
appeal has been presented but dismissed).
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CHAPTER 3 MUSLIM MARRIAGE

3.1. The Concept of Muslim Marriage:

The Arabic word Nikah (marriage) means the union of sexes and in law, this
means marriage(21). The term Nikah has been used for marriage under
Muslim law. Nikah literally means to tie up together. It implies a particular
contract for the purpose of legalizing generation. Nikah in its primitive sense
means carnal conjugation.
In Quran, the word Nikah has been used in both senses of sexual connection and
of contract of marriage. Quran prohibits Nikah with a woman with whom their
fathers had Nikah.

Quran says:
And marry not women whom your fathers married, except what is past: it was
shameful and odious, - an abominable custom indeed(22). Nikah here means
marriage and the last word in the Ayat, Nikah means sexual connection. Thus
forbidden is to a son, a woman with whom his father had indulged in adulterous
intercourse.
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So if a husband divorces his wife (irrevocably), he cannot, after that, re-marry

her until after she has married another husband and he has divorced her. In that
case there is no blame on either of them if they re-unite; provided they feel that
they can keep the limits ordained by Allah, which He makes plain to those who
understand(23).

Nikah amongst Muslims has been considered as most pious act. In Radd-ul-
Mukhtar it has been mentioned as there is no act of devotion that has remained
prescribed for us, since the time of Adam, upon him be peace, up to this moment,
and which is to be continued in paradise except Nikah (or marriage) and Imaan
(or faith)(24).

23 . Dr. R.K. Sinha- Muslim Law, 5th edn. 2003, p.42; Central Law Agency, Allahabad
24. Ammer Ali, students 7th edn. p.97; cf: Dr. R.K. Sinha-Muslim Law, 5th edn. 2003, p.108.

The meaning of marriage is wedlock or the mutual relation of husband and wife or
the institution whereby a man and a woman are joined in a special kind of social
and legal relationship for the purpose of making a family.

The Quranic injunctions regarding marriage are: Marriage is recognized as the

basis of society. Marriage as an institution leads to the uplift of man and is a
means for the continuance of the human race. Spouses are strictly enjoined to
honour and love each other. The prophet was determined to raise the status of
woman. He asked people to see their brides before marrying them; and thought
that nobility of character is the best reason for marrying a woman. It is a contract
for the legalization of intercourse and procreation of children(25).
The objectives of marriage are:
1. to provide legal validity to the sexual relationship of husband and wife.
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2. to legalize the children. Without a valid contract of marriage, the intercourse

between a man and woman is unlawful.
Marriage legalizes also the children born out of that marriage. Children born out of
any union other than a valid marriage are illegitimate.
Legally speaking, Muslim marriage is a civil contract. Therefore, its legal nature is
contractual. Besides being a civil contract, Muslim marriage is also a social and
religious institution.

3.2 LEGAL ASPECT :

Legally, a Muslim marriage is considered as a contract; because the elements
which constitute a marriage and the manner in which it is completed, is almost
similar to that of a civil contract. The contractual nature of a Muslim marriage is
explained on the basis of the following elements:

1)The parties to the marriage also must be competent.

2) The marriage is not complete without offer, acceptance and free consent of the
parties or guardians.
25. Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn.2008, p.32, Central Law Publications,
Allahabad.

3) The terms of marriage contract within legal limits may be settled by the parties
themselves.
4) Just as there are rules for regulating the rights and duties of the parties upon
the breach of a contract, there are also provisions for respective rights and duties
of husband and wife on divorce or dissolution of marriage
Therefore, the nature of Muslim marriage is similar to that of a civil
contract. But only on the basis of the above mentioned contractual
elements, it is not correct to define it as purely a civil contract. In its
form, a Muslim marriage may look like a contract; but it is not so in its
essence. As is evident from the following arguments, its social aspect
is also very important.
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3.3. NATURE OF MUSLIM MARRIAGE

With regard to the nature of Muslim marriage, there are divergences of opinion.
Some jurists are of the opinion that Muslim marriage is purely a civil contract
while others say that, it is a religious sacrament in nature.
According to some text writers and jurists, Muslim marriage is treated as a mere
civil contract and not a sacrament. This observation seems to be based on the
fact that, marriage under Muslim law has similar characterstics as a contract. For
instance:
1) As marriage requires proposal (ijab) from one party and acceptance (qubul)
from the other, so is the contract. Moreover, there can be no marriage without
free consent and consent should not be obtained by means of fraud, coercion or
undue influence.

2) Just as in case of contract entered into by a guardian, on attaining majority be

set aside by a minor, so a marriage contract in Muslim law, be set aside by a
minor on attaining the age of puberty.

3) The parties to a Muslim marriage may enter into any ante-nuptial or post-
nuptial agreements which are enforceable by law provided it is reasonable and
not opposed to the policy of Islam. Same is the case with a contract.

4) Like any other contract, there is also provision for the breach of marriage
contract.

Describing the nature of Muslim marriage, justice Mahmood in the leading

case(26), observed: Marriage among Muhammadans is not a sacrament, but
purely a civil contract; and though it is solemnized generally with recitation of
certain verses from the Quran, yet the Muhammadan law does not possibly
prescribe any service peculiar to the occasion
The prophet is reported to have said, marriage is essential for every physically fit
Muslim who could afford it. The prophet says O assembly of youths, whoever
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among you is able to have, he should marry, for it is a restraint to the looks and
he who is not able let him keep fast.
The following traditions may also be considered:
He who marries completes half of his religion; it now rests with him to complete
the other half by leading a virtuous life in constant fear of god.
There is no mockery in Islam.
There are three persons whom the Almighty himself has undertaken to help-
first, he who seeks buy his freedom; second, he who marries with a view to secure
his chastity; third, he who fights in the cause of god.
There is no act of worship except marriage and faith, which has continued from
the days of Adam and which will continue in paradise as well.
Prophet said that:
I keep fast and break it. I pray and I sleep and I am married so whoever inclines
to any other way than my Sunnah, he is not of me.
This is because marriage elevates the moral and spiritual standard of man. Nikah
is my precept. Those who are unmarried, are the unworthy of the deed
Nikah is considered obligatory to every Muslim, because of its being continued to
be performed by the Prophet Mohammad, and on account of his rejecting from his
followers, one who has no liking for it amongst Muslims, there is a tradition Nikah
is my Sunnat and one who dislikes my Sunnat is not mine. According to the
approved opinions, one commits sin by not marrying, and does a meritorious act
for which, he will be rewarded in after life, because by marriage, he protects
himself and the bride from committing adultery, and procreation of children in
modern condition.
25. Aquil ahmad- Mohammedan law, 21st edn. 2004, p.110, Central Law Agency, Allahabad
26. Abdul Qadir v. Salima (1886)8, All 149; cf: Aquil ahmad- Mohammedan law, 21 st edn. 2004.
p.110, Central Law Agency, Allahabad.
According to Hedaya: Marriage (Nikah) implies a particular contract used for the
purpose of legalizing children (generations).
Nikah amongst Muslims is a ceremony through which, a man is united with a woman
with the idea of enjoying life together and to produce children. Though a Muslim
 P a g e | 24

marriage is performed through a ceremony in which Qazi (or some other learned
man) reads the fatiha and other Quranic verses, yet non-performance of the
ceremony is no fatal to the validity of the marriage

The main object of a Muslim marriage is the preservation of human race.

According to Abdul Rahim: The Mohammedan law has obtained the institution of
marriage, sanctioning thereby sexual relations between two members of the
opposite sexes with a view to the preservation of the human species, the
encouragement of chastity and the promotion of love and union between the
husband and wife and of mutual help in earning livelihood.
The objects are the promotion of a normal family life and the legalization of
children.
From these objects, arise the importance of marriage. The prophet himself gave
much significance to this institution. He said: The man who does not marry is not
one of my followers; the married man is more pleasing in the sight of god than
the most pious bachelor.
Marriage was instituted for the solace of life and one of the prime or original
necessities of man. It is therefore lawful in extreme old age and after hope of
offspring has ceased and even in the last or death illness.
Hence the following are the objects of Mohammedan marriage:
1) Legalization of sexual intercourse for the purpose of enjoyment, and
2) Procreation and legitimation of children for the purpose of
a) Preservation of human race.
b) Systematization of domestic and social life.

The objectives of marriage are:

1. to provide legal validity to the sexual relationship of husband and wife.
2. to legalize the children. Without a valid contract of marriage, the intercourse
between a man and woman is unlawful.
Marriage legalizes also the children born out of that marriage. Children born out of
any union other than a valid marriage are illegitimate.
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Legally speaking, Muslim marriage is a civil contract. Therefore, its legal nature is
contractual. Besides being a civil contract, Muslim marriage is also a social and
religious institution.
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CHAPTER 4

DIFFERCE BETWEEN HINDU AND MUSLIM MARRIAGE

i) Aims and ideals Hindu marriage is a religious sacrament, wherein religious

sentiments play an important role. Dharma is considered the primary aim of
Hindu marriage; a son is desired to offer pinda-dan to pitras. On the contrary, the
Muslim nikah is a contract for the satisfaction of sexual appetite and procreation.

(ii) The endogamy rules restrict the Hindus to marry within their own caste. But
among the Muslims, marriage takes place between kiths and kins.

(iii) As regards the rules of exogamy, the Muslim community applies it to very
near relatives. But among the Hindus several types of exogamic rules prevail such
as gotra exogamy, pravar exogamy and sapinda exogamy which stipulate that the
relatives of seven generations from the paternal side and five generations from
the maternal side cannot marry, each other.

(iv) As regards the features of the marriage system, in Muslim marriage, the
proposal comes from the boys side and it has to be accepted in the same
meeting by the girl, in the presence of two witnesses. The Muslims also
emphasize on the capacity of a person to contract marriage. They practise
polygamy and have the consideration of irregular or void marriages. They have
also a preferential system in mate selection. On the other hand, the Hindus do not
have the custom of proposal and acceptance and they do not believe in the
capacity of making a contract. The Hindus do not favour polygamy and do not
have irregular or void marriages or a preferential system in mate selection.

(v) Hindu and Muslim marriages differ from each other in the very nature of
marriage. Among the Shia community of the Muslims there prevails a system of
temporary marriage, called muta. In the Hindu society, there is no provision for
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temporary marriage. Furthermore, the Hindus do not observe iddat for

contracting marriage.

(vi) The Hindus believe that in marriage, the wife and the husband are united
together for seven lives. As such, the Hindu marriage is indissoluble which comes
to an end only after the death of the spouses of course, at present the decision of
the court is required for a dissolution of marriage. On the other hand Muslim male
can divorce his wife according to his whims. Dissolution of marriage among the
Muslims does not necessitate the intervention of the court.

(vii) Hindus look notwithstanding the enactment of laws for widow remarriage, the
fact remains that the Hindus look down upon widow remarriage and socially reject
it. But the Muslims do not. Muslim widow is allowed to remarry after waiting for
the period of Iddat.
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CHAPTER 5 CONCLUSION

Though there is a general consensus that the codification of Hindu law has
immensely improved the status of Hindu women but the importance of Islam on
uplifting the status of women is not widely accepted.
Islam improved the status of Muslim women. They were also given important rights.

Islam reformed the law of marriage and introduced only one form of marriage which is
permanent (nikah), though Ithna Asharis recognized a temporary marriage (muta) also.

Islam laid down the conditions for a valid marriage; for that it classified the marriages in to
valid, void and irregular.

Islam provided for guardianship of marriage for marriages of minors and of unsound mind. It
also contained a provision for dissolution of marriage in such cases.

Islam provided a provided a provision for presumption of marriage under certain cases in the
absence of direct proof of marriage.

Islam prohibits limitless polygamy and no Muslim is now allowed to marry more than 4 wives
at a time.

Islam provided the unilateral pronouncement of talaq to the husband but denies the like
power to the wife unless delegated.

Apostasy of a Muslim husband results in an instant dissolution of marriage; but not so in case
of Muslim wife.

The Dissolution of Muslim Marriage Act, 1939 provided a relief of dissolution of marriage to a
Muslim wife on the grounds specified therein.
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BIBLIOGRAPHY

A. PRIMARY SOURCES

I. STATUTES:

i. The Hindu Marriage Act 1955

B. SECONDARY SOURCES

I. BOOKS

- Dr Paras Diwan , Modern Hindu Law, Allhabad Law Agency 22 nd edition

(Reprint 2015)
- H.K. Saharay , Law of Marriage and Divorce, Eastern Law House,2007.

- Aqil Ahmad- Mohammedan Law, 21st edn. 2004, Central Law Agency,
Allahabad.
- Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn. 2008, Central Law
Publications, Allahabad
II. ARTICLES
Bagga, V. : Locus of Matrimonial Home and right to Consortium,
Journal of the Indian Law Institute, 1987, Vol. 29.1, p.110-114.
Sarkar, L. : Status of women and Law as an instrument of social
change, Journal of the Indian Law Institute, 1983, Vol. 25:2, p.264-
269.
III. WEBSITES

- http://www.legalserviceindia.com/articles/abol.htm

- https://www.kaanoon.com/indian-law/restitution-of-conjugal-rights-in-hindu-marriage-act/
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