Socio Legal Prospective of Marriage As An Institution in India Final

Socio Legal Prospective of Marriage as an Institution in India
Submitted by Shubham Jain BBA.LLB (Sem III) Div-A Roll No-16
Of Symbiosis Law School, NOIDA Symbiosis International University PUNE
On November,2010
Under the guidance of Prof. Vikram Singh & Prof. Ashok P.Wadje Course in Charge Family Law -I Symbiosis Law School Noida-201301
Socio Legal Prospective of Marriage as an Institution In India Page 1
CERTIFICATE
The project titled Socio Legal Prospective of Marriage as an Institution in India submitted to the Symbiosis Law School, NOIDA for Special Contract- II as part of Internal assessment is based on my original work carried out under the guidance of Prof. Vikram Singh & Prof Ashok P. Wadje.. The research work has not been submitted elsewhere forward of any degree. The material borrowed from other sources and incorporated in the project has been duly acknowledged. I understand that I myself would be held responsible and accountable for plagiarism.
Signature of the candidate Date:
Socio Legal Prospective of Marriage as an Institution In India
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Acknowledgement
"Man can do anything but there are certain people without whom the quality of work suffers, their guidance becomes necessary in acquiring quality results."
I, express my sincere gratitude to, Prof. Vikram Singh & Prof. Ashok P. Wadje my Family Law-I teacher for giving us the opportunity to work under his guidance on the project Socio Legal Prospective of Marriage as an Institution in India Several people have been instrumental in allowing this project to be completed. Any attempt at any level cannot be satisfactorily completed without the support and guidance of learned people. I also acknowledge & convey thanks to the library staff and Mr. Neelesh (COMPUTER INCHARGE) for their kind and valuable support. I have endeavoured my best to make this project and would be grateful for any suggestions for improvement.
THANKING YOU
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INDEX
CERTIFICATE..................................................................................2 ACKNOWLEDGEMENT.......................................................................3 INTRODUCTION............................................................................5-7 What Is Marriage..........................................................................7-8 Concept of Marriage under Various Personal Laws Hindu Law..................................................................................8-15 Muslim Law...............................................................................15-24 Christian Law............................................................................24-26 Parsi Law..................................................................................26-27 Special Marriage Act, 1954.........................................................28-30 Social Purpose of Marriage..........................................................30-31 Legal Prospective...........................................................................31 Matromonial Remedies under Personal Law...................................32-35 MARRIAGE AS A SACRAMENT AND CONTRACT...............................35-37 Marriage under Current Times.....................................................37-38 Weeding Trends In India The Concept of Arranged and Love Marriage.........................38-40 RIGHT TO MARRIAGE AND ITS EMERGING ISSUES Concept of Live in Relationship............................................40-43 Contract Marriage..............................................................43-45 Same Sex Marriage...........................................................45-46 Conclusion................................................................................46-47 BIBLIOGRAPHY..........................................................................48-49
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Socio
Legal
Prospective
of
Marriage
as
an
Institution of India
Introduction
In India there is no greater event in a family than a wedding, dramatically evoking every possible social obligation, kinship bond, traditional value, impassioned sentiment, and economic resource. In the arranging and conducting of weddings, the complex permutations of Indian social systems best display themselves. Marriage is deemed essential for virtually everyone in India. For the individual, marriage is the great watershed in life, marking the transition to adulthood. Generally, this transition, like everything else in India, depends little upon individual volition but instead occurs as a result of the efforts of many people. Even as one is born into a particular family without the exercise of any personal choice, so is one given a spouse without any personal preference involved. Arranging a marriage is a critical responsibility for parents and other relatives of both bride and groom. Marriage alliances entail some redistribution of wealth as well as building and restructuring social realignments, and, of course, result in the biological reproduction of families. Some parents begin marriage arrangements on the birth of a child, but most wait until later. In the past, the age of marriage was quite young, and in a few small groups, especially in Rajasthan, children under the age of five are still united in marriage. In rural communities, pre puberty marriage for girls traditionally was the rule. In the late twentieth century, the age of marriage is rising in villages, almost to the levels that obtain in cities. Legislation mandating minimum marriage ages has been passed in various forms over the past decades, but such laws have little effect on actual marriage practices. In most of India, the Hindu bride goes to live with strangers in a home she has never visited. There she is sequestered and veiled, an outsider who must learn to conform to new ways. Her natal family is often geographically distant, and her ties with her consanguine kin undergo
attenuation to varying degrees. Rules for the remarriage of widows differ from one group to another. Generally, lower-ranking groups allow widow remarriage, particularly if the woman is relatively young, but the highest-ranking castes discourage or forbid such remarriage. Almost all groups allow widowers to remarry. Many groups encourage a widower to marry his deceased wife's younger sister. Among Muslims of both the north and the south, marriage between cousins is encouraged, both cross-cousins (the children of a brother and sister) and parallel cousins (the children of two same-sex siblings). In the north, such cousins grow up calling each other "brother" and "sister", yet they may marry. Finding the perfect partner for one's child can be a challenging task. People use their social networks to locate potential brides and grooms of appropriate social and economic status. Increasingly, urban dwellers use classified matrimonial advertisements in newspapers. The advertisements usually announce religion, caste, and educational qualifications, stress female beauty and male (and in the contemporary era, sometimes female) earning capacity, and may hint at dowry size. Almost all Indian children are raised with the expectation that their parents will arrange their marriages, but an increasing number of young people, especially among the college-educated, are finding their own spouses. Socalled love marriages are deemed a slightly scandalous alternative to properly arranged marriages. Some young people convince their parents to "arrange" their marriages to people with whom they have fallen in love. This process has long been possible for Indians from the south and for Muslims who want to marry a particular cousin of the appropriate marriageable category. In the upper classes, these semi-arranged love marriages increasingly occur between young people who are from castes of slightly different rank but who are educationally or professionally equal. If there are vast differences to overcome, such as is the case with love marriages between Hindus and Muslims or between Hindus of very different caste status, parents are usually much less agreeable, and serious family disruptions can result. In many communities throughout India, a dowry has traditionally been given by a bride's kin at the time of her
marriage. In ancient times, the dowry was considered a woman's wealth-property due a beloved daughter who had no claim on her natal family's real estate--and typically included portable valuables such as jewellery and household goods. The dowry is becoming an increasingly onerous burden for the bride's family. Anti-dowry laws exist but are largely ignored, and a bride's treatment in her marital home is often affected by the value of her dowry. Increasingly frequent are horrible incidents, particularly in urban areas, where a groom's family makes excessive demands on the bride's family--even after marriage--and when the demands are not met, murder the bride, typically by setting her clothes on fire in a cooking "accident." The groom is then free to remarry and collect another sumptuous dowry. After marriage arrangements are completed, a rich panoply of wedding rituals begins. Each religious group, region, and caste has a slightly different set of rites. After the bride and groom are united in sacred rites attended by colourful ceremony, the new bride may be carried away to her in-laws' home, or, if she is very young, she may remain with her parents until they deem her old enough to depart. A prepubescent bride usually stays in her natal home until puberty, after which a separate consummation ceremony is held to mark her departure for her conjugal home and married life.
What is Marriage?
Marriage (or wedlock) is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found. Such a union, often formalized via a wedding ceremony, may also be called matrimony. People marry for many reasons, including one or more of the following: legal, social, libidinal, emotional, economic, spiritual, and religious. These might public include arranged marriages, family The act obligations, of the legal usually establishment of a nuclear family unit, the legal protection of children and declaration of commitment. marriage creates normative or legal obligations between the individuals involved. In some societies these obligations also extend to certain family members of
the married persons. Some cultures allow the dissolution of marriage through divorce or annulment. Marriage is usually recognized by the state, a religious authority, or both. It is often viewed as a contract. Civil marriage is the legal concept of marriage as a governmental institution irrespective of religious affiliation, in accordance with marriage laws of the jurisdiction.
Concept of Marriage under Various Personal Laws Hindu Law

In Hindu Law Marriage has begun as a sacramental. Marriage, as a sacrament, necessarily implied a permanent and indissoluble union. Hindus took the notion of indissolubility of marriage to the extreme by laying down that even death did not put the marriage asunder. It was a union not merely in this life but also in all lives to come- an eternal union. The Hindu conceived their marriage as a holy and sacramental tie and not a contractual union. For a Hindu a marriage a marriage is ordained as a necessary sacrament for begetting a son, for discharging his debt to his ancestors, and for performing religious and spiritual duties.
The Hindu Marriage Act, 1955

The Hindu Marriage Act was passed after great discussion. It was the first codified law of marriage of Hindus, which is applicable to whole territory of India except Jammu and Kashmir.
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Section 5 of The Hindu Marriage Act, 19551 defines the Conditions for a Valid Marriage. Then Hindu Marriage Act 1955 reformed the Shastric law of marriage to such an extent that it diluted its sacramental feature and its amendment in 1964 and 1974 brought the Hindu marriage very close to a civil contract. The Act provided for sapindaship to be a bar to the marriage and marriage within sapindas would be void under section 112 but the act redefined the degree of sapinda relationship much narrowly then the Dharamshastras allowed, so that many more relations which could not marry under Shastric law could marry under Hindu Marriage Act .The degree of prohibited relationship was introduced toclarified that certain affiances could not be married, nor ascendant nor first cousins; both bars subject to customs sand usages of the parties. Cases: Smt.Yamunabai Anant Rao Adhar v. Anant Rao Thiraram
Adhar3 The Supreme Court held that the marriage becomes null and void where in violation of first condition of Section 5.
S.Laxminarayan v. Shanti4 the Supreme Court observed that to
brand the wife as unfit for marriage and procreation of children it needs to be established that the ailment suffered by her is of such a
1 A marriage may be solemnized 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 it in consequence of unsoundness of mind; or (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 (iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the 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; 2 Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 1[against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5. 3 AIR 1988 SC 644 4 AIR 2001 SC 2116
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kind or such an extent that it is impossible for her to lead a married life.
Smt. Shakauntala Devi v. Amar Nath5 the Punjab High Court held
that the validity of Marriage under Section 5(iv) is subject to customs and usage accepted in a particular Hindu Community. It simply implies that if a marriage could take place between two Hindus of Prohibited degrees by force of customs its validity cannot be challenged.
The 1976 Amendment

The amendment in 1976 further distorted the sacramental feature of Hindu marriage and that to such an extent that it has become a civil contract in actual sense though it still bear some colour of sacrament. Following are some important changes(1). Section 5 was changed to the effect that neither spouse should be incapable of giving a valid consent to the marriage or though giving a valid consent, should have been suffering from mental disorder so as to unfit for marriage and the procreation of children. (2). Any ground for divorce may be a ground for judicial separation. (3). Fraud as a ground of nullity has been amplified as to the nature of the ceremony or as to the material fact or circumstances concerning the respondent. (4). Simple adultery i.e. voluntary sexual intercourse with a person other than the spouse, is substituted as a ground of divorce at the place of living in adultery (5). Cruelty and Desertion for two years are added as a ground of divorce. (6).The period of three years for which the respondent must have suffered leprosy or venereal disease has been eliminated, and now there is no time limit. (7). Section 13(A) is amended only up to the extent that the waiting period is reduced to one year.
5 AIR 1982 P&H 22
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(8). Breakdown theory of marriage once again recognized by incorporating a new ground of divorce that where a wife is living apart and obtained an order for maintenance under section 125 Cr.P.C or under section 18 of Hindu Adoption and Maintenance Act 1956, and cohabitation has not been resumed for a period of one year, she may use this fact as a ground of divorce. This ground is available to the wife only. (9). A provision similar to the option of puberty available to the Muslim wife was incorporated by inserting a new ground of divorce under which, the wife may file a petition for divorce on the ground that her marriage {whether consummated or not} was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the age of 15 years. (10).The progressive demand of divorce by mutual consent is incorporated by adding a new section 13-B, which provides that both the spouses may jointly present a petition for divorce on the ground that they have not been able to live together, that they have been living separately for a period of one year or more, and they have mutually agreed to dissolve the marriage. (11).The bar against presenting the divorce petition within three years from the date of the marriage is removed and a period of one year has been substituted. The amendment in 1974 was a major change in the Hindu marriage Act of 1955. This has changed the concept of a Hindu marriage by making aforementioned changes particularly by bringing divorce by mutual consent.
Capacity to Marriage
Capacity includes age of the Party under Hindu Marriage Act, 1955 Sec 5 (iii) bridegroom be above the 21 years and the bride must be of 18 years of age at the time of Marriage. Mental Capacity- In all communities of India an Unsound person cannot marry. Sound mind person is require to take decision and there must be free consent for marriage. Sec 5 (ii) Hindu Marriage Act, 19556.
6 At the time of marriage neither party is of Unsound mind
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In Davi Sharma v. Chander Mohan Sharma it was held that minor errors or mistakes like not wearing mangalsutra and bindi etc. are not considered as mental disorder. They are ascertain.
Prohibition of Hindu Marriage

Child Marriage Restraint Act 1929 Child Marriage Restraint Act 1929 popularly known as the Sarda Act after its sponsor Rai Sahib Harbilas Sarda to the British India Legislature in India was passed on 28 September 1929, fixed the age of marriage for girls at 14 years and boys at 18 years. It came into effect six months later on April 1, 1930 and it applies to all of British India, not just to Hindus. It was a result of social reform movement in India. The legislation was passed by the British Indian Government. The objective of the Sharda Act of 1930 was to discourage the solemnization of marriages of boys and girls respectively, under: 21 years and 18 years 18 years and 16 years 18 years and 14 years 16 years and 14 years
Punishment under prohibition of child marriage act 2006 Sec. 9. Punishment for male adult marrying a child7 Sec. 10.Punishment for solemnising a child marriage8 Sec.11.Punishment for promoting or permitting solemnisation of child marriages.9 Sec.12.Marriage of a minor child to be void in certain circumstances.10 Inter-caste and Inter-religion Marriage
7 Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both. 8Whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.
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Marriages are made in heaven. This is a well-known saying. When two people meet and their marriage is solemnized, it is believed that this is the wish of god. Marriage may be in the same caste or it may be inter caste. Marriages within the same caste mean that both boy and the girl belong to the same community. Inter-caste marriage means girl and boy are from different castes where one member belongs to lower caste. Marriage is a sacred institution which binds both the woman and man in a pious relation. It gives this relation a meaning. When a marriage takes place, two souls are united and this opens new vistas in their lives. But, human beings are so selfish that have virtually spoilt the sacredness of these relations. When God created men and women, he has not assigned any caste on them. So, how can the human beings divide God's created world into castes and communities. The things do not end up here. From the time of Kings and Queens, caste system has been practiced. In earlier days, it was customary to marry in the same castes. If anyone dares to disobey the rules of the society, he was confined to severe punishments. Whole community was barred from keeping any relation with the family where inter caste marriage had taken place. Customs and religions practiced were so strict and merciless that even sometimes the boy and girl were hacked to death by their own family members due to the pressures from the society. Sometimes young hearts were separated by marrying them off to other boy or girl of the same caste. This way the lovers were separated by their own relatives. There are
9 (1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees: Provided that no woman shall be punishable with imprisonment. (2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnised. 10 Where a child, being a minor(a) is taken or enticed out of the keeping of the lawful guardian; or (b) by force compelled, or by any deceitful means induced to go from any place; or (c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.
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lots of such incidents where you can find the merciless punishments inflicted by the opposition parties of the inter-caste marriages. Sapinda relations Two persons who are sapindas to each other cannot marry. But if a Customs or usages permits such a marriage, it is valid. Sec. 5 (v) of Hindu Marriage Act,1955 lays down that the parties to marriage should not be Sapindas to each other Sec. 3 (f) define Sapinda relationship :- One person will be sapinda to other
From Father side 5th generation and 3rd from Mother side If one is a lineal ascendant of the other within the limit of sapinada relationship. If they have common lineal ascendant who is within the limits of Sapinda relationship Person must be considered as Ist generation.
Ceremonies in Hindu Marriage

There are certain ceremonies which are necessarily to be performed during Marriage. Section 7(1) of The Hindu Marriage Act, 1955 says that a Hindu Marriage may be solemnised according to the customs and rites of the particular Cast. (2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. The Ceremony and rite falls under 2 heads: (a)Shastric Ceremonies are the rites which are necessary. These can be dispensed with only if one of the Parties to the marriage can establish a Customary Ceremonies in substitute of Shastric Ceremonies.
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(b)Customary Ceremonies are rites which prevail in the caste or Community to which one of the parties (or both) belong. In Deivani v. Chindram, 1954 Madras High Court after examining the texts, came to an conclusion that there are two essential ceremonies for the performance of a Hindu Marriage :(1) Secular Ceremonies i.e. Kanyadanam (2) Religious Ceremonies i.e. Panigrahan and Saptadi In Neelavva Sonnath Tarapur v. Divison Controller KSRTC, Bajipur, 2002 it was held that Saptapadi is a Shastric Ceremony and it can be replaced by Customary Ceremony. Saptapadi is not necessary for a Hindu Marriage.
Muslim Law
Muslim Marriage is called Nikah The Arabic word Nikah (marriage) means the union of the sexes and in law this term means marriage. Under the Muslim law, marriage is considered as civil contract. All rights and duties in a marriage arise immediately after the marriage is completed.11 After marriage, a woman does not lose her individuality. She remains a distinct member of the community; her existence of personality is not merged into that of her husband. Woman remains the absolute owner of her individual rights; even after marriage, she can alienate or transfer her property in any way she pleases without any extraneous control of her husband. She can enter into binding contracts with her husband and proceed against him in law courts, if necessary. The woman enjoys this position through the injunctions of Quran.
Nature of Muslim Marriage
Under Muslim law, marriage has similar characteristics as a civil contract. Marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the other. There can be no marriage without free consent.
11 Mitra,S.K., Mohammedan Law, 2nd Edition, 2001, Page no. 123
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Case: In Fatima v. Fazal Karim12 Consent of the parties is an essential
ingredient for a contract. So, free consent to the parties in marriage is required. Marriage should not be induced by coercion or undue influence.
In Saburannessa v. Sabdu Sheikh13 The marriage under Muslim
law is a civil contract and is like a contract of sale. Sale is a transfer of property for a price in contract of marriage, the wife is the property and the dower is the price.
In
Anis Begum v. Muhammad Istafa14 Maulvi Samiullah
collected some authorities showing that a marriage is not regarded as a mere civil contract, but a religious sacrament.
ESSENTIALS OF MARRIAGE
The basic essentials of marriage in Muslims are as follows:
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. A Muslim marriage requires proposal Ijab from one party and acceptance Qubul from the other side. This must be done in one sitting. The proposal and acceptance must both be expressed at once meeting. The acceptance must be corresponding to what is being offered. The marriage must be effectively immediate.
There must be two male or one male & two female witnesses, who must be sane and adult Mohammedan present & hearing during the marriage proposal and acceptance. (Not needed in Shia Law)
Neither writing nor any religious ceremony is needed.15
12 AIR 1928 Cal 303 13 AIR 1934 Cal. 693 14 (1933) 55 All 743 15 http://www.lawyersclubindia.com/articles/Nikah-Muslim-Marriage-An-Overview-2512.asp
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Maher should be there. It is mandatory.
Cases : In the case of Abdul Kadar v. Salima16 Mehmood J. Observed that
Muslim Marriage is Purely a Civil Contract not a Sacramental on complete of which mutual rights and Obligations arise immediately and simultaneously.
Kazi Sidiqque Hossain v. Salima Khatoon17
The essential requirement to the validity of a Mohammedan marriage are that 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 in the presence and hearing of two male or one male and two female witnesses.
Case- K. Abubakar v. Marakkar18
Every Mohammedan who has attained puberty and who is of sound mind may enter into a contract of marriage.
Case- Mohd. Sharif v. Khuda Baksh19
When a marriage is contracted for the minor by any guardian other than father or fathers father, the minor enjoys the option to repudiate the marriage on attaining puberty which is technically called KHYAL-UL-BALIGH (Option of Puberty).
Capacity to Marriage
Every Muslim of Sound Mind who has attained Majority can enter into the contract of Marriage. 1. Majority- is considered on attaining the age of Puberty(9-5yr)
16 (1886) 8 AII 149 17 61 CWN 187 18 AIR 1970 Ker. 277 19 AIR 1936 Lah. 683
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2. Insane/unsound Mind- an Insane can only be entered into
Marriage by the Guardian.
Classification of Marriage
Valid (Sahih) Marriage- A marriage which is neither void nor invalid is valid. In other words, a marriage which conforms in all respects with the legal requirement is a valid marriage. Legal effects of Valid Marriage are Mutual Rights and Obligations arise. Children of Such marriage are legitimate Wife entitle to Dower Husband Right over wife Movements in reasonable manner. Mutual Right of Inheritance arises. Wife cannot marry after death or Dissolution of marriage without Observing Iddat period. Void (Batil) Marriage- A marriage which has no legal results is called a void marriage. A marriage contracted by parties suffering from absolute incapacity, i.e., prohibition on the grounds of affinity, consanguinity or foster age is void. Similarly, marriage with a woman who is wife of another, or remarriage with a divorced wife, when the legal bar still exists is void. They are of no legal effect and issues of a void marriage are illegitimate. Legal effects of Valid Marriage are Mutual Rights and Obligations arise.
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Children of Such marriage are legitimate Wife entitle to Dower Husband Right over wife Movements in reasonable manner. Mutual Right of Inheritance arises. Wife cannot marry after death or Dissolution of marriage without Observing Iddat period.
Irregular or invalid (Fasid) Marriage- A marriage contracted by parties suffering from relative prohibitory or directory incapacity is irregular. Some grounds which make the marriage irregular are as follows-
Marriage contracted without witness. Marriage with a fifth wife. Marriage with a woman undergoing iddat. Marriage by an unauthorized person. Marriage contrary to rules of unlawful conjunction.20 Legal effects of Fasid marriage
Before consummation an irregular marriage has no legal effects until the Temporary or Relative Impediments cease either party has a right to terminate it at any time. After consummation The wife becomes entitled to Dower, proper or specified whichever less is. The wife is bound to observe iddat of three courses on dissolution of marriage, either by divorce or by death of the husband. The children born out of such marriage are legitimate and have rights of inheritance to the property of both parents, but both the parties have not right of mutual inheritance.
Case :-
20 Mulla, Mohammedan Law, Dwivedi Law Agency, Allahbad, 2008, page no. 201
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Amina v. Hasan Koya21
The respondent husband pleaded a case that he was not aware of the fact that the appellant wife was pregnant at the time of marriage and as this fact was concealed by the appellant wife from him, it rendered the contract of marriage as void.
Munshi v. Alam Bibi22
A marriage is void in those cases in which the prohibition is perpetual and absolute. On the other hand, a marriage which is defective only by reason of a relative or temporary prohibition or for want of some legal formality is only irregular.
21 AIR 2004 SC 1227 22 AIR 1932 Lah 280
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Dower
1. There can be marriage without Mehar. 2. Nikah is a Civil Contract. Nikah is a Social need Maher is considered to be Consideration for marriage. 3. Muslim husband has unlimited power of Talak and power helps the wife in rainy season. 4. Dower is restriction on Power of Husband (Talak).
Prohibition under Muslim Law
Case : (Mt.) Zubaida Begum v. Sardar Shah23
After passing of the Dissolution of Muslim Marriage Act 1939, a Mohammedan wife can file a suit for divorce against the husband, on the ground that her husband, having more than one wife, is not treating her equitably.
Budansa v. Fatma Bi24
A Mohammedan woman is not allowed to have at a time more than one husband. If she marries again during the life time of her husband, she will be guilty of doing the offence of Bigamy under Section 494 of IPC The children born of bigamous marriage will be illegitimate.
23 AIR 1943 Lah. 310 24 (1014) 26 Mad LJ 260
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Option of Puberty Under Section 2 (vii) of Dissolution of Muslim Marriage Act, 193925. A right is given to Muslim wife to repudiate the marriage if she was given in marriage by a guardian other than the Father and Grand Father. When she was below the age of 15yrs. Then she can repudiate the marriage after attaining 15 yrs but before 18 yrs. In Muslim law- Option of Puberty known as Khyarul-bulugh If marriage is consummated than no right is available because it is consider that there is express or implied consent to the marriage. Case: Zubaida v. Vazir, 1949. It was held that this right can be excercised
without showing any cause.

Bismilla v. Nur Mohammed Aysha & Aysha v. Mohammed
Yunus. It was held that when minor does not know about his rights on attaining Majority then he cannot do so after he came to know about it or in reasonable time.
Remahni Bibi26 Calcutta High Court held that an apostasy has no
right to be a Guardian of Marriage.
Christian
The Christian Law of Marriage in India is governed by the Indian Christian Marriage Act of 1872. Marriage, as is seen in Christian tradition, is not merely a civil contract nor is it purely a religious contract. It is seen as a contract according to the law of nature, antecedent to civil institutions and by itself an institution. A
25Section 2 (vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years, repudiated the marriage before attaining the age of eighteen years: 26 13 Beng L.R
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marriage among Christians is traditionally understood as the voluntary union for life of one man and one woman to the exclusion of all others, and Indian law follows suit, so that India does not allow for the possibility of same-sex marriage as it has been celebrated by some churches in other countries in recent years.
Indian Christian Marriage Act

The law regulating solemnisation of marriages among Indian Christians is laid down in the Indian Christian Marriage Act of 1872. It is specifically provided under section 4 of the Act that every marriage in India between persons, one or both of whom is or are a Christian or Christians, shall be solemnised in accordance with the provisions of the Indian Christian Marriage Act and any such marriage solemnised otherwise than in accordance with such provisions shall be void.
Essentials of Marriage
The Act applies when one or both the parties to the marriage is or are Christians. If the personal law forbids the marriage e.g. no ground of prohibited degrees of Relationship, it cannot be be validly performed under this Act. The Indian Christian Marriage Act is only concerned with the forms in which the marriage is to be solemnized. Where the marriage is to be solemnized and the marriage to be solemnized by a Marriage Registrar appointed under the Act. Where the marriage is solemnized by a Marriage Registrar Appointed under the Act. The procedure to be followed is as follows: Notice of intended Marriage Oath before Registrar Certificate of Notice Mode of Solemnization Registration
The following conditions should be fulfilled for a valid marriage:(1) The age of the bridegroom should be more than 21 years.
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(2) Neither of a party should has spouse living. (3) There should be 2 Witness.
Registration of Marriage
As stated in The Indian Christian Marriage Act,1872 the classification and distinctions the system of registration of marriages provided by the Act is quite complicated. Marriages may, according to the Act, be solemnized by the following: (i) Ministers of Church who have received Episcopal ordination; (iii) (iv) (ii) Clergymen of the Church of Scotland; Ministers of Religion licensed under the Act; Marriage Registrars appointed under the Act; and Section 22(v) Persons licensed under the Act to grant certificates of marriage between Indian Christians. Part IV of the Act (Sections 27-37) contains elaborate provisions for registration of marriages solemnized by Ministers and Clergymen covered by categories (i) to (iii) above. There are in this Part separate registration provisions for marriages of Christians in general and of Indian or Native Christians. Part V of the Act (Sections 38-59) provides rules for solemnizationcumregistration of marriages directly by Marriage Registrars appointed under the Act. Part VI (Sections 60-65) relates to marriages of Indian Christians solemnized by licensees under the Act and provides rules for certification. There are different provisions in the Act for the transmission of records of registration of various categories of marriage to the Registrar-General of Births, Deaths and Marriages. This Act, thus, has a very complicated system of registration of marriages solemnized under this Act and it suffers from a tremendous lack of uniformity.27
27 Law Commission Report, 211 October 2008
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Parsi
Zoroastrianism states that marriage is a spiritual discipline, and not a mere civil contract. Therefore, a Parsi wedding ceremony can only be conferred by a qualified Parsi priest. For the union to be legal, the marriage must be solemnized by the priest in an Ashirvad (blessing) ceremony. Besides, at least two Parsi witnesses must be present during the ceremony to vouch for its legitimacy. The officiating priest must certify the wedlock on the certificate given under Schedule II of the Parsi Marriage and Divorce Act. This certificate it must also be duly signed by the bride, bridegroom and the two witnesses. The said priest has to thereupon send the certificate to the Registrar of the place where the marriage has been solemnized, who makes a formal record of the union. The Parsi is an extremely endogamous and monogamous group. While the Parsi community initially frowned over alliances between priestly and non-priestly families, the dwindling size of the community has bought about several legal reforms. Marriages between consanguine and affine relatives are deemed legal, and have become a common practice. In fact, parallel-and cross-cousin marriages as well as inter-generational marriages, such as between niece and uncle, are legally permitted.
Parsi Marriage and Divorce Act, 1936

Section 7 defines Parsi marriages are to be solemnized under the Act by the Parsi priests who are required to certify them in a prescribed form to be signed by the priest, the contracting parties and two witnesses. Section 12 The officiating priests are required by the Act to periodically transmit their records to Marriage Registrars appointed under the Act. A priest who neglects either to so certify a marriage or to transmit its copy to the Marriage Registrar will be guilty of an offence punishable with simple imprisonment up to three months, or with fine up to a hundred rupees, or with both
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The Marriage Registrars are to be appointed by the State Government for various areas except within the local limits of the ordinary original civil jurisdiction of a High Court for which they are to be appointed by the Chief Justice or a senior Judge of the Court. Section 9 The Marriage Registrars except those appointed by the High Court are required to periodically transmit copies of their records to the Registrar-General of Births, Deaths and Marriages
Conditions for Parsi Marriage

The basic conditions of marriage in Parsi are as follows:
The parties to the marriage are not related to each other by Consanguinity or affinity as laid down in Schedule I of the Act. The marriage should have been solemnized in accordance with Ashirvad, a form of Parsi marriage celebrated in the presence of the priest and two more parsi witness.
The bride should be of 21 years of age and the Bridegroom must be 21 years of age. No spouse should be living at the time of the marriage.
Secular
Provision
of
Marriage
under
Special
Marriage Act, 1954

Special Marriage Act 1954 also combines solemnization and registration of civil marriages into the same transaction. Section 3 enables the State governments to appoint one or more Marriage Officers for its purposes for various administrative units. The Act does not apply in the State of Jammu and Kashmir but provides for the appointment of Marriage Officers there for the people domiciled outside but living within the State. Section 5 establish The procedure for civil marriages under this Act is more or less the same as under the first Special Marriage Act of 1872
beginning with a notice of an intended marriage to be given in the prescribed form to the Marriage Officer of the district in which at least one party has lived for at least 30 days and ending with its solemnization in his presence (Sections 11-12). The provision of the old Act of 1872 for a Marriage Certificate Book to be maintained by the Marriage Officers is retained in the new Act which also provides that the marriage certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and all formalities respecting the signatures of witnesses have been complied with. (Section 13) Section 15 defines By a new provision not found in the old Special Marriage Act of 1872 the 12new Special Marriage Act of 1954 provides the facility of converting an existing religious marriage into a civil marriage by its registration under its provisions. The procedure for this is the same as for marriages to be originally solemnized under the Act, including the issuance of a marriage certificate. Sections 48-50 defines The provision for periodical transmission of marriage records by all Marriage Officers to the Registrar-General of Births, Deaths and Marriages is retained in the new Act, periodicity and forms for which are to be prescribed by the State governments under the Rules to be framed for carrying out purposes of the Act.
Solemnization under Special Marriage Act, 1954

Conditions relating to solemnization of special marriages Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely (a) neither party has a spouse living; (b) neither party (i) is incapable of giving a valid consent to
it in consequence of unsoundness of mind; or

(ii) though capable been suffering to such
of
giving a as
valid
consent,
has
from mental disorder of such a kind or to be unfit for marriage and
an extent
the procreation of children; or (iii) has been subject to recurrent attacks of insanity (c) the male has completed the age of twentyone years female the age of eighteen years; (d) the parties are not within the degrees of prohibited and the
relationship Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding within the degrees of prohibited relationship; and (e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled In the territories to which this Act extends. that they are
Consequences of marriage under this Act

Section 19. Effect of marriage on member of undivided family. The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion shall be deemed to effect his severance from such family. Section 20. Rights and disabilities not affected by Act. Subject to the provisions of section 19, any person whose marriage is solemnized under this Act, shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850 (XXI of 1850) applies Section 21. Succession to property of parties married under Act. Not withstanding any restrictions contained in the Indian Succession Act, 1925
(XXXIX of 1925), with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this section that Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestates) had been omitted there from. Section 21(A). Special Provision in Certain Cases. Where the marriage solemnized under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion With person who professes the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply and so much of section 20 as creates a disability shall also not apply.
Social Purpose of Marriage

The purpose of marriage is to create a lasting and legal bond between two people. It is helpful to declare a relationship before the courts because of asset division and sharing. Marriage is adult societys institutional structure for protecting the legitimate interests of children. Without this public purpose, we would not need marriage as a distinct social institution. The consequences of marriage affect every aspect of society. It occupies the most intimate aspect of personal privacy and personal love and reaches the pillars of the sacred institutions of a culture. Marriage is the pillar of society, but it is also the pillar of government, business, and the military. Marriage cuts to the very heart of a nation. As goes marriage; so goes the nation. It infiltrates every aspect of human life not only for the married but also for the unmarried. When marriages prosper, the nation rises; when marriages fail, the nation falls. Divorce not only rattles the foundation of the judicial system and psychiatry, but, through its influence on children, alters the course of the next generation. Divorces are the steps to the grave of a culture and a nation. The study of culture, corporate or private, is the study of marriage.
Legal Prospective
Marriage isnt about individual couples. All children are protected by the State, regardless of their birth. If couples split, married or not, any parent
can certainly petition the courts for visitation, custody, etc. This applies even to unmarried gay couples! I personally know one woman whose partner was killed in a car accident, leaving her biological daughter (via IVF) without a legal mother. The dead womans family attempted to gain custody of the little girl, but my friend was able to successfully petition the courts and was granted full custody and legal guardianship of the child. Which is as it should have been. Marriage protects children only in a general sense. Marriage ties parents together, making a child less likely to be abandoned by one or the other. This is how marriage protects children.
Matrimonial Remedies under Personal Laws Divorce

Divorce: Whether A Changing Face In Hindu Marriage System? Divorce was not a part or wing of the Hindu marriage system. As a result of rapid urbanization and social change, as a need of the society, it was added as an attribute to the Hindu marriage system. So, divorce may be considered as a change in the Hindu marriage system. Vedic text as well as Smithies contains no advertence at all to divorce. Manu declares "Let mutual fidelity (between husband and wife) continue till death: this in brief may be understood to be the highest dharma of man and wife. Manu also
lays down that "nether neither by sale nor by desertion is the wife released from the husband; we understand that this is the law ordained by the creator in former times"... Divorce puts the marriage to an end; parties revert back to their unmarried status, and are once again free to marry. The Marriage Laws (Amendment) Act, 1976 makes the ground of divorce and judicial separation common. An aggrieved party, if he or she so chooses, may sue for divorce or judicial separation. The Hindu Marriage Act, 1955 originally, based divorced on fault theory and enshrined nine fault grounds in Section 13(1) on which either the wife or husband could sue for divorce, and the two fault grounds in Section 13(2) on which wife alone could seek divorce. By an Amendment of 1964, by recasting last two clauses of Section 13(1) Clauses (viii) and (ix), two grounds of breakdown of marriage were also recognized. The Marriage Laws (Amendment) Act, 1976 has inserted two additional fault grounds of divorce for wife and a new Section 13B under which divorce by mutual consent was recognized. Section 13 of Hindu Marriage Act, 195528 defines (1) Grounds for Divorce:
28 (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i)(a) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or] (i)(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (ii) has ceased to be a Hindu by conversion to another religion; or (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder (iv) has been suffering from a virulent and incurable form of leprosy; or (v) has been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive 1(A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.] (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground, (i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner:
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Case : Anita v. Bhanwar Lal29
Issue: Whether the husband has proved necessary grounds to grant divorce under Section 13(1) (i). Judgement: It was held that as the wife was already having a husband, so this marriage is void. Divorce granted.
Taraknath kar v. Lipika kar30
Facts: Husband claims that his wife pressurise him to live separately and used to behave rudely with everybody. She left matrimonial home when her daughter was 4-5 years and should never took care, she thus deserted him from conjugal rights. She filed a fake case that he wanted to perform second marriage and later she did not arrange her daughters marriage. Issues: 1. whether there is cruelty on part of wife. 2. Whether appropriate ground shown by husband for divorce. Proceedings before Family Court: Evidence given by plaintiff (husband) was believable and that led by defendant (wife) was not believable. Hence, desertion and cruelty on the part of wife were established and allowed the divorce petition by husband.
Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or [bestiality; or] (iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or (iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. 29 2005 (5) WLC(Raj.) 123 30 2008 5 SCC 387
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Appeal before High Court: Reversed the decision of Family Court by a cryptic order and did not consider evidence at all. Appeal before Supreme Court: Honble court disposed the appeal on the basis of the evidence laid by parties and since about quarter century the parties are staying separately. High Court is requested to give priority to the case and decide as soon as possible.
Pratap Lal v. Smt. Kundana31
Facts: Applicant (husband) claimed that there were signs and traces of leprosy on the body of non applicant(wife). But by consulting doctor, there were no such evidence of leprosy was found on the body of the wife. Issue: Whether the husband is able to prove the traces of leprosy on the body of the wife. Judgement: It was held that as no traces of leprosy have been found, so divorce not granted.
MARRIAGE AS A SACRAMENT AND CONTRACT

As a sacrament- The Hindu marriage is not really a social contract but a religious sacrament. It results in a more or less permanent relationship between a man and woman. Their aim is not nearly physical pleasure but spiritual advancement. It is not merely an individual function but has a serial enjoyment of sexual pleasure. It exhibits integral approach to this serial institution. The main aim of Hindu marriage can be summarized as follows. (i)Fulfillment of dharma or religions duties: According to the Hindu scriptures marriage is a basic of all religion activities. In the words of K.M Kapadia marriage is primarily for the fulfillment of duties; the basic aim of marriage was dharma. (ii) Procreation: In Hindu families the child is given a very important place. According to Riga Veda, the husband accepts the palm of wife in order to
31 RLW 1998(1) Raj. 236(DB)
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get a high breed progeny. According to manu, the chief aim of marriage is procreation Mahabarat has also maintained the same view. (iii)Sexual pleasure: The Hindu scriptures have compared the sexual pleasure with the relation of divine bliss. According to vatsyanyan sexual pleasure is the chief in aim marriage. In Hindu dharma, marriage is viewed as a sacrament and not a contract. Hindu marriage is a life-long commitment of one wife and one husband, and is the strongest social bond that takes place between a man and a woman. In Hindu view, marriage is not a concession to human weakness, but a means for spiritual growth. Man and woman are soul mates who, through the institution of marriage, can direct the energy associated with their individual instincts and passion into the progress of their souls. Under the accepted social system everyone has to pass through all the four Ashramas. A Hindu male goes through the performance of several sacraments during the course of his life starting with the laying of the foetus and ending with the cremation of his body. Similarly marriage is said to be essential for a woman because that is the only sacrament that can be performed for her.
As a Contract
- Traditionally marriage was regarded as a social
obligationa relationship designed to strengthen society by promoting economic security and procreation. But today people are likely to see marriage as more flexible and a path towards selffulfilment, a voluntary relationship that people can make or break at will. (a) Imitation Marriagesthe living-in relationships and contract marriages are only manifestation of original concept of marriage. The trend set by Scandinavians followed by France, Britain etc. has attracted the Indians too. Under this category of social relationship, marriage means a partnership, beautiful friendship, not a bondage but a bond Contract marriages as an individually drawn marriages based on short-term relationships are also finding their way in the Hindu society. (b) Changes in Marriage Institution Earlier this institution existed for religious purposes but now people tie into marriage union only for lifelong companionship. The equality of both spouses is another significant change
with wife having her own individuality and identity. The ideal of pativratya has lost its value due to existence for provisions under law for both widow remarriage and divorce. The marital ties are no longer unbreakable as divorce is socially and legally permissible. A reflection of couples quitting from married life can be seen from the doubled divorce rates over the past decade. Despite the changing trends, for the majority of the Hindus, marriage is not a matter of Social Contract nor is it deemed as a License for Sex Life. It still denotes itself as an institution for the regulation of proper relations in the society. The youngsters should realize that marriage is not only an indissoluble sacrament but a basis for a civilized society. Mobility should not be considered as a mantra for success and efforts should be made by all to conserve a stable married life.
Marriage under Current Times

Marriage trends in India have undergone a tremendous change in recent times. Today we see a lot of weddings taking place that are different from those performed in the yesteryears. Traditionally there were various rituals and social customs that played an important role in marriage trends. It was considered a sacred bond between two families. During those days the consent among parents of both families was considered more important than the approval of the two people who will marry. Since the beginning of the fourth century the tradition of arranged marriage is prevalent. This was practiced mainly to unite the families of the upper castes. A marriage trend that was introduced with the notion of arranged marriages was the dowry system. A dowry means giving gifts to the family of the groom as demanded by them. However the system of dowry has become a great source of social unrest today. It is considered a burden to the family of the bride and the demands have gone to such a huge extent that reports of dowry deaths have become common. The custom of sati was another marriage trend that was prevalent in India. It is a social hindrance today and there have been great changes in this system. Sati was self immolation of the widow. This practice is considered illegal today but still there are instances of sati reported in some places of
India. Thus it shows that India is still not free from the tight grip of social evils. The abolition of the incidence of sati is owed to the great social thinker Raja Ram Mohan Roy. Another marriage trend in India was child marriage that prevailed in India. There are historical instances that tell us that the practice was not prevalent in ancient India but was started during the mediaeval times. This was done to safeguard the welfare of the people of higher castes. This was done to stop children from marrying people of other community or caste. The system was so rigid that the children were married in their cradle which actually had to be performed in middle ages. The concept of Indian wedding has seen drastic changes, over the last few years. In the yesteryears, the ceremony was a brief affair, confined to an economical budget, even though the guest list was long. On the contrary, in the present time, the occasion is generally celebrated in an elaborated way, with number of rituals that are conducted before, during and after it. A long guest list, colourful and extravagant venue, lavish feast and a series of rituals are the key ingredients of the 'big fat Indian wedding' that we see today. In the following lines, we have discussed about the changing trends in Indian marriages.
The Weeding Trends in India

The Concept Of Arranged And Love Marriage The concept of arranged marriages is not a very unusual norm in India. It is how most of the Indians get married. No matter how westernized India may have become arranged marriages are still preferred in most of the Indian families. The concept of arrange marriage may sound impractical to the Western world but for Indians it is something they prefer. It is a system, which originated when child marriage was a custom in the country. The purpose of child marriage was to restrict the children from marrying outside their community and social status. The practice mainly began as a way of uniting and maintaining the rich and the upper caste families. Caste system gave birth to arrange marriage. The system mainly developed to promote caste system or racism. The system of arrange marriage has its
pros and cons. On one side it is seen as a medium to promote racism and class system. On the other hand it gives parents control over family matters and members. This system of arrange marriage, which originated mainly as the tool of the upper caste people to protect their community and to maintain their social status they wanted their children to marry someone from the same caste and same social background. Eventually it spread to the lower caste of the society where it is used for the same purpose. The rituals and customs of arrange marriages vary depending on the caste and religion of the people or whether he or she is a Hindu or a Muslim. Marriage is not just coming together of two individuals but an alliance between two families. The practices of arrange marriage has almost become synonymous with the Indian society and culture. Compare to earlier period the practices are not so rigid at present. But one of the social evil associated with arrange marriage is dowry in the modern Indian society. In most part of the country arrange marriage is the best medium to take dowry. Nowadays marriages are more like a trade than a social custom. People find it an easy medium to make money. This is one of the biggest drawbacks of arrange marriages. Among the other drawbacks is that the boy and the girl doesn't get to know their future spouses before marriage. In arrange marriages it is not Important to know your partner before marriage. Two unknown people get married without knowing and understanding each other. Just as every coin has two sides so do arrange marriages. There are even arranging marriages in which the parents who love their children and are concerned about their life take the consent of their children when they decide their marriage. Arrange marriages are successful only when the parent does not force their children to marry whom they don't want to marry. In a marriage there should be mutual consent and understanding from both sides than only a marriage can sustain. Good arrange marriages happen when the parents support and help their children to find their life partners according to their desires and likings. Arrange marriages have certain ill effects on the society like it is biased over a particular religion, caste and a race. It is not healthy when parents are over protective and control their children's
wishes and desires in choosing their partner. It is wonderful when children are given the right to make the final consent and decision on their marriage and also there should be arrangements for the would be husband and wife to meet and to understand each other. Have we ever tried to find out what is love actually? Love is the subtle emotional wave within us, which is perennial in this world of death and decay. When we fall in love everything seems different. We start liking and feeling good about things we have overlooked earlier. We feel like we are on a joy ride and everything seems beautiful. The company of the person we love can make the most mundane chores seem like an exciting job. And these feelings of love is not seen later on when you are married to the person you love. So one side love is the feeling, which every one of us wants to experience and marriage is something, which calls for commitment and effort. Any long-term successful relationship calls for effort and hard work. So when we decide to spend the rest of our life together by getting married than only the actual love starts. Love is more like a wonderful feeling, which we all like to experience on the other hand marriage calls for understanding and daily effort. We constantly need to nurture our feelings. It requires mutual respect for each other and time and attention as any other aspect of life. Love marriage can be the best thing if there is effort and commitment from both the side. Love marriages have both pros and cons. It gives us time to know the person with whom we have decided to spend the entire life. We can understand each other in a better manner. On the other hand we start liking each other the way we want to see him or her. And later on after marriage when they behave the way they are it becomes difficult for us to accept. But if you really love somebody than you need to nurture your relation daily. Every relation has certain demands and certain needs to be met if it is to thrive and endure. So if you want to make your love marriage a success than give your marriage some more time and commitment you will see it blooming.. So next time when you think of love marriages also think of the responsibility and effort, which you have to put in to make
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your marriage a success. Therefore, both arranged and love marriage find equal importance in the wedding scenario of India.
RIGHT TO MARRIAGE AND ITS EMERGING ISSUES:

Concept of live in relationship
In recent years there has been a remarkable increase in the number of people opting for living-in relationships instead of marriages. Though this trend has been popular in western countries for a long time now, it is catching up in India as well with more and more couples choosing to live in, because of the space, choice and personal freedom it gives them. It might be immensely appealing to young people of today, leading hectic and stressful lives and do not have the time or patience to deal with all the emotional issues that a marriage entails. Apart from the space it gives, there is no problem of surrendering rights or obligations in a live-in relationship. The partners are pretty clear about what they are in for, and if the relationship does not work out, they can leave anytime. There are no legal or financial complications involved unlike a marriage, where splitting up is not so easy. But even in a live in relationship, the situation becomes more complex if children are involved. since there is no binding relationship betweem the partners, the issue of taking up responsibility for bringing up the children gets more comlicated. Since there is no emotional security offered, it becomes difficult to sustain a long term relationship and there is a high risk of breaking up. The moment couples hit a rough patch, they find it easier to split than make efforts to make the relationship work. A proverb marriage is happening in heaven gives a very deep meaning of marriage. Marriage is one of the religious rituals by which two person of different sex gets committed for lifelong. Marriage can reinforce the family system and is very well accepted by the society. In Marriage system, even at the times of squabble, the couples are cooperated with each other. Due to the strong tradition and culture of India, it has the greatest family system all over the world as compared to the western
countries. There is a very few good families in America, because they usually change their partners like changing clothes daily. Live in relationships as well as marriages both have their own pros and cons. Pros of Live in relationship over marriage
Freedom: This is the prime benefit of Live in relationship. In this, any of partners neither has to accept any obligations nor has to give up any rights. There is no commitment like marriage; relationship lasts longer if both of them are happy with each other. Livein relationship offers personal freedom to partners compared to Marriage.
Responsibility: There is a very less load of responsibility as compared to marriage. Married people have to manage all the responsibility of family while cohabiters have only their own responsibility.
Easy to break-up: It takes a lot of effort and money to dissolve a marriage because it is a very strict and unassailable arrangement. Partners have to equally divide debt and family assets, to pay Lawyers and to make arrangements with respect to the children. But cohabiters can break their relation easily.
Rehearsal for a married life: Live-in is the perfect rehearsal of a married life. Partners know each others common interests and views on money, sex, religion, and politics.
Easy to change the partner: If partners could not satisfy or get bored seeing the same face every morning, then they can pack their bags any day and move out without doing any legal procedure.
No legal hassle: There are absolutely no financial complications, complex negotiations or legal hassle like marriages. The arrangements are similar to a dream come true, like have physical relations, live together, and move out when getting bored.
Is live in relationship = marriage?

No, live in relationship cannot be equated to marriage because of the following reasons:Socio Legal Prospective of Marriage as an Institution In India Page 40
Legal and Social recognition: It is the main benefit of marriage. Marriage is sheltered by the law and the society respects the relationship. While in Live in relationship, partners cannot get this benefit and they dont have their clearly defined obligations and rights. It is not fragile like live-in and cannot dissolve at any point.
Emotional support and commitment: Married people give devotion and fidelity to their partners and they can share all their secrets with each other and also share their savings to buy possessions for the family. Live in relationships cannot match the legal rights, social recognition and emotional support that provided by a marriage.
Unconditional
sacrament:
In
Marriage, Husband
and
wife are
compliant to each other and they prepare to die for each other so the depth of love is supreme. While Live in relationship is conditional compared to marriage.
Childrens development: If parents are cohabiting, then childrens emotional development is poorer compared to married ones. This is literally due to the high risk of parents break up. If they break up, the situation becomes complex with respect to their responsibility and custody of children.
Physical and sexual abuse: According to some estimates, aggression is at least two times more common among cohabiters then married, so cohabited women have to suffer more from physical and sexual abuse than married women.
Relationship with parents: Live in relationships may affect relations with parents. All parents give more support to marriage than the cohabitation. Many Cohabiters loose the support of their parents and family because some families consider that it is morally wrong.
Economic equality: Married couples are better in case of economic equality while cohabiters always try to protect their financial futures with separate bank accounts, personnel properties etc.
CONTRACT MARRIAGE
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Hindu Marriage: as a contract A contract is an agreement enforceable by law .An agreement becomes a valid contract if it is made by the parties competent to make a contract for some consideration with free consent and for a lawful object .The Hindu marriage contains almost all essential of a contract. In every marriage there is always a proposal to marry and its acceptance by the parties. In case of an arrange marriage generally family members of bride go to the house of the bridegroom with a proposal of marriage, which generally contains the implied consent of bride and when it is accepted by the family of bridegroom, either with express or implied consent of the bridegroom, it becomes a contract to marry. The agreement to marry is further confirmed by the bride and bridegroom at the time of ceremony of Sagai when the bride and bridegroom exchange gifts and put ring to each others finger. The advertisement in newspapers and magazines for suitable bride or bridegroom generally in following form "Alliance invited for handsome, smart boy convent educated, B.Tech, IIT, working in MNC in USA. We can say that this advertisement is an invitation to offer for marriage and when some girl or her family member sends bio-data, it is an offer to marry and when it is accepted it becomes an agreement to marry. The element of consideration is also there in such marriages. Sometime education, personality, professional skills may be consideration whereas some time status of family, wealth of the family and its position in the society may be consideration for a valid marriage. Because giving and taking dowry is illegal, sometime people adopt a method of exchange of bride and bridegroom between two families in marriage. One family gives girl to other family and in consideration takes girl of that family as bride for its boy. In case of a love marriage we can say that love and affection to each other, mutual fidelity and cohabitation between the parties are consideration. So far as capacity to contract is concerned Section 11 of the Indian Contract Act32. Section 5(III)of Hindu marriage Act 1955 requires that at the time of marriage the bridegroom has completed the age of 21 years and bride has completed 18 years of age. This section also requires
32 provides that every person is competent to contract who is the age of majority as per law and who is of sound mind, and not disqualified from contracting by any law to which he is subject
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that at the time of marriage neither party should incapable of giving a valid consent in consequence of unsoundness of mind. According to Indian Majority Act 18 years of age is the age of majority. Thus the basic idea of the Hindu Marriage Act is that parties should be major at the time of their marriage, so that they can able to give consent to the marriage. The marriage in contravention of Sec.5 (II) and (III) is not void under the Act, it under such marriages violable. Marriage of a minor is valid marriage under the Act. Generally agreement of the marriage of a minor child is made by the guardian of the child and such contract is prima facie for the benefit of minor and it can be kept in category of beneficial contract which is valid even in absence of a valid consent. Section 12 of Hindu Marriage Act requires33. Thus, it can safely be concluded that the concept of Hindu marriage being a sacrament has taken a contractual form and shade. MUSLIM MARRIAGE: as a contract Under the Muslim law, marriage is considered as civil contract. All rights and duties in a marriage arise immediately after the marriage is completed.34 After marriage, a woman does not lose her individuality. She remains a distinct member of the community; her existence of personality is not merged into that of her husband. Woman remains the absolute owner of her individual rights; even after marriage, she can alienate or transfer her property in any way she pleases without any extraneous control of her husband. She can enter into binding contracts with her husband and proceed against him in law courts, if necessary. The woman enjoys this position through the injunctions of Quran.
Under Muslim law, marriage has similar characteristics as a civil contractMarriage requires proposal (Ijab) from one party and acceptance (Qubul) from the other. There can be no marriage without free consent.
33 where consent of either party to the marriage or the consent of the guardian, whenever necessary, is obtained by force or fraud the marriage is void able hence this provision confirms provision of contract Act that the parties should enter into contract with free consent 34 Mitra,S.K., Mohammedan Law, 2nd Edition, 2001, Page no. 123
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Same sex marriages

Same-sex marriage (also known as gay marriage) is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality. Homosexuality is both Indian civil generally and considered a taboo Public subject discussion by of
society
the government.
homosexuality in India has been inhibited by the fact that sexuality in any form is rarely discussed openly. In recent years, however, attitudes towards homosexuality have shifted slightly. On 2 July 2009, the Delhi High Court decriminalised homosexual intercourse between consenting adults, throughout India, where Section 377 of the Indian Penal Code was adjudged to violate the fundamental right to life and liberty and the right to equality as guaranteed by the Constitution of India. Several organisations like the Naz Foundation (India) Trust, the National AIDS Control Organisation,[ Law Human Commission of India, Union Health Ministry, National Rights Commission and The Planning
Commission of India have either implicitly, or expressly come out in support of decriminalising homosexuality in India, and pushed for tolerance and social equality for lesbian, gay,bisexual, and transgendered people. India is among countries with a social element of a third gender. Religion has played a role in shaping Indian customs and traditions. While homosexuality has not been explicitly mentioned in the religious texts central to Hinduism, the largest religion in India, Hinduism has taken various positions, ranging from positive to neutral or antagonistic. Rigveda, one of the four canonical sacred texts of Hinduism says Vikruti Evam Prakriti (what seems un-natural is also natural), which some scholars believe recognises the cyclical constancy of homosexual/transsexual dimensions of human life, like all forms of universal diversities. Historical literary evidence indicates that homosexuality has been prevalent across the Indian subcontinent throughout history, and that homosexuals were not necessarily considered inferior in any way.
Conclusion
Though marriages also have their pros and cons, no relationship enjoys the social and legal recognition as a marriage does. The obvious merits of a marriage are the emotional commitment and the support that the partners have for each other. Since a marriage is protected by law, couples expect loyalty and fidelity from each other. Further, marriage is an incentive to develop staying power in a relationship. There is a lot of emotinal investment in the relationship. Though marriages also have their ups and downs with an increasing number of couples going for divorces in recent years, when it comes to commitment and security, no relationship can match a marriage. It is a bond that can last a lifetime. There is no denying that live in relationships are proving to be extremely popular, particularly among educated urban classes, for whom living in is a declaration of independence, as a way of keeping away from the restrictions and inequalities of institutionalized marriages. But a live-in relationship can never replace marriage. For many, Live-in relationship is the preference because it is time to change and evolve with the changing times, though it might seem socially incorrect. On the other hand, in Shastric Hindu law marriage is considered as a sacrament, which was an indissoluble union of a man and a women forever, but the society has changed by the passage of time and so the concept of marriage and it has now become akin to a civil contract. A contract is an agreement enforceable by law .An agreement becomes a valid contract if it is made by the parties competent to make a contract for some consideration with free consent and for a lawful object .The Hindu marriage contains almost all essential of a contract. In every marriage there is always a proposal to marry and its acceptance by the parties. In case of an arrange marriage generally family members of bride go to the house of the bridegroom with a proposal of marriage, which generally contains the implied consent of bride and when it is accepted by the family of bridegroom, either with express or implied consent of the bridegroom, it becomes a contract to marry. The agreement to marry is further confirmed
by the bride and bridegroom at the time of ceremony of Sagai when the bride and bridegroom exchange gifts and put ring to each others finger. Thus, it can safely be concluded that the concept of marriage being a sacrament has taken a contractual form and shade
BIBLIOGRAPHY
Books Referred: Mitra,S.K., Mohammedan Law, 2nd Edition, 2001, Mulla, Mohammedan Law, Dwivedi Law Agency, Allahbad, 2008
Website: www.vakilno1.com http://www.legalserviceindia.com
http://www.indidivorce.com
www.manupatra.com www.lawyersclubindia.com http://www.lawdeskindia.com http://www.indidivorce.com
Acts: The Hindu Marriage Act, 1955 Hindu Marriage Act,1976 (Ammended) Child Marriage Restraint Act, 1929
Prohibition Of Child Marriage Act,2006 Dissolution of Muslim Marriage Act,1939 Indian Christian Marriage Act,1872 Parsi Marriage And Divorce Act,1936 Special Marriage Act,1954 Hindu Adoptions and Maintenance Act, 1956 Code of Criminal Procedure, 1898 Code of Criminal Procedure, 1973
Reports: Law Commission Report,211 October 2008
Cases Referred: Smt.Yamunabai Anant Rao Adhar v. Anant Rao Thiraram Adhar, AIR
1988 SC 644
S.Laxminarayan v. Shanti, AIR 2001 SC 2116 Smt. Shakauntala Devi v. Amar Nath, AIR 1982 P&H 22 Davi Sharma v. Chander Mohan Sharma Deivani v. Chindram, 1954 Neelavva Sonnath Tarapur v. Divison Controller KSRTC, Bajipur,
2002
Fatima v. Fazal Karim, AIR 1928 Cal 303 Saburannessa v. Sabdu Sheikh, AIR 1934 Cal. 693 Anis Begum v. Muhammad Istafa, (1933) 55 All 743 Abdul Kadar v. Salima, (1886) 8 AII 149 Kazi Sidiqque Hossain v. Salima Khatoon, 61 CWN 187 K. Abubakar v. Marakkar, AIR 1970 Ker. 277 Mohd. Sharif v. Khuda Baksh, AIR 1936 Lah. 683 Amina v. Hasan Koya, AIR 2004 SC 1227 Socio Legal Prospective of Marriage as an Institution In India
Page 47
Munshi v. Alam Bibi, AIR 1932 Lah 280 (Mt.) Zubaida Begum v. Sardar Shah, AIR 1943 Lah. 310 Budansa v. Fatma Bi, (1014) 26 Mad LJ 260 Zubaida v. Vazir, 1949 Bismilla v. Nur Mohammed Aysha & Aysha v. Mohammed Yunus. Remahni Bibi, 13 Beng L.R Anita v. Bhanwar Lal, 2005 (5) WLC(Raj.) 123 Taraknath kar v. Lipika kar, 2008 5 SCC 387Pratap Lal v. Smt.
Kundana, RLW 1998(1) Raj. 236(DB)
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Socio Legal Prospective of Marriage as an Institution in India

Submitted by Shubham Jain BBA.LLB (Sem III) Div-A Roll No-16

Of Symbiosis Law School, NOIDA Symbiosis International University PUNE

Signature of the candidate Date:

Socio Legal Prospective of Marriage as an Institution In India

Socio Legal Prospective of Marriage as an Institution In India

Socio Legal Prospective of Marriage as an Institution In India

Concept of Marriage under Various Personal Laws Hindu Law

The Hindu Marriage Act, 1955

Socio Legal Prospective of Marriage as an Institution In India

Socio Legal Prospective of Marriage as an Institution In India

The 1976 Amendment

Socio Legal Prospective of Marriage as an Institution In India

6 At the time of marriage neither party is of Unsound mind

Socio Legal Prospective of Marriage as an Institution In India

Prohibition of Hindu Marriage

Socio Legal Prospective of Marriage as an Institution In India

Socio Legal Prospective of Marriage as an Institution In India

Ceremonies in Hindu Marriage

Socio Legal Prospective of Marriage as an Institution In India

Nature of Muslim Marriage

11 Mitra,S.K., Mohammedan Law, 2nd Edition, 2001, Page no. 123

Socio Legal Prospective of Marriage as an Institution In India

Case: In Fatima v. Fazal Karim12 Consent of the parties is an essential

Anis Begum v. Muhammad Istafa14 Maulvi Samiullah

Neither writing nor any religious ceremony is needed.15

Socio Legal Prospective of Marriage as an Institution In India

Maher should be there. It is mandatory.

Cases : In the case of Abdul Kadar v. Salima16 Mehmood J. Observed that

Socio Legal Prospective of Marriage as an Institution In India

2. Insane/unsound Mind- an Insane can only be entered into

Marriage by the Guardian.

Socio Legal Prospective of Marriage as an Institution In India

Socio Legal Prospective of Marriage as an Institution In India

Amina v. Hasan Koya21

21 AIR 2004 SC 1227 22 AIR 1932 Lah 280

Socio Legal Prospective of Marriage as an Institution In India

Prohibition under Muslim Law

Case : (Mt.) Zubaida Begum v. Sardar Shah23

23 AIR 1943 Lah. 310 24 (1014) 26 Mad LJ 260

Socio Legal Prospective of Marriage as an Institution In India

without showing any cause.

Remahni Bibi26 Calcutta High Court held that an apostasy has no

right to be a Guardian of Marriage.

Socio Legal Prospective of Marriage as an Institution In India

Indian Christian Marriage Act

Socio Legal Prospective of Marriage as an Institution In India

Socio Legal Prospective of Marriage as an Institution In India

Parsi Marriage and Divorce Act, 1936

Socio Legal Prospective of Marriage as an Institution In India

Conditions for Parsi Marriage

Marriage Act, 1954

Solemnization under Special Marriage Act, 1954

it in consequence of unsoundness of mind; or

(ii) though capable been suffering to such

from mental disorder of such a kind or to be unfit for marriage and

Consequences of marriage under this Act

Social Purpose of Marriage

Matrimonial Remedies under Personal Laws Divorce

Socio Legal Prospective of Marriage as an Institution In India

Case : Anita v. Bhanwar Lal29

Socio Legal Prospective of Marriage as an Institution In India