Personal Laws

MONODEEP DANIEL

PERSONAL LAWS

Arrangements of Convenience and the Affirmation of Cultural Pluralism

Introduction Historically, India has never had a monolithic, single religion. In our time Indi- an culture is often referred to as Hindu, but the latter term does not refer to any single community or religion. The term, which is rooted in the Greek word Indoi, came to connote the civilization of diverse peoples in the land of the riv- er Indus. The aim of this clarification is to underscore the cultural pluralism of Indian society. It is reasonable, therefore, to infer that there could never have ever been a uniform law for the people of India. For example, alongside the Brahmins who had their laws, the Buddhists also had their laws in ancient society. The adivasi or the tribal communities had their own system of oral tradi- tions according to which their families were governed. Our concern in this article is specifically the family laws that have validity even in the modern India. The laws governing the Muslims, Parsees, Christians, and Hindus will be taken up below to show that in the context of cultural pluralism, personal law evolved as the most convenient arrangement in society.

Pre-British Laws for Family The British introduced two ideas about the law to India. The first was that the rule of law was not subject to any religion, and the second was that no one, not even rulers or princes, were above the law. As far as family law was con- cerned, however, the British could not be completely neutral, neither under the company nor under the Crown. They had, in fact, inherited a system of community-specific and religion-based laws that they retained in principle (Mah- mood 2013:17). These laws have come to be known as personal law.

In the 18th century, the Hindus were called Gentoo, and they were governed by shastra (scripture) laws. The foremost of these shastras was manusmriti or Manu’s Laws. The Muslims were similarly called the Mohammedans and were governed by the laws of the Qur’an. Warren Hastings used these terms for the first time in 1772.

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In the larger areas of India, decrees were made and cases were settled on the basis of these laws in the Mughal judicial system, which was a multiple level system. Under this system, the court was organized at the mufassil or lower level and at the sadar or higher level. The diwani adalat or civil court and faujdari adalat or criminal court were found at both levels. The British abolished this system by an act in 1861 and replaced the criminal courts at the lower and higher levels.

We should not paint a rosy picture of the late Mughal era here, however. This judicial system of the Mughals failed to check the rampant lawlessness in the country. The highways were infested with thuggie who murdered and looted the caravans of travellers. Traders were unable to transport their goods safely, and conditions were not conducive for establishing business. The crumbling administration of the last Mughals and the battles among the local princes made life unsafe (Dash 2005:3). Under these conditions it was inevitable that the British East India Company would expand its hold on the country. The matters pertaining to law and order under British rule were dealt under the Indian Pe- nal Code that had replaced the shari’ah and shastra. This masterpiece was drafted by Thomas Babington Macaulay and presented to the Governor-Gen- eral’s Council in 1837. It went into effect after due consideration and careful scrutiny on 1 January 1862. Wherever the British held sway they imposed law and order. This was done, admittedly, primarily in the interests of the company. The fact that the people benefitted from this was a secondary matter (Masani 2012:136). But personal law was different from the Penal Code, so for our purposes we will turn our attention to the former.

Family Law in Colonial and Independent Times Granted that the term personal law was used in Section 112 of the Government of India Act 1915 and has also been used in the concurrent list of the present Constitution of India that was adopted in 1950, the fact that the different In- dian communities were governed by their distinct family laws for centuries before the advent of the British is well known. We have drawn attention to this above. At this point in our discussion, it must be admitted that despite these personal laws that are specific to each community, there are general laws enforced by the acts of the Indian Parliament from time to time. These include laws on family and succession and are applicable to all adherents of all religions or no religion (Mahmood 2013:19). More recently, in a Supreme Court decision in Pradeep jain v. Union of India, Justice Bhagwati described personal law as the law by which an individual is governed in respect of various matters such as, the essentials validity of a marriage, the effects of marriage on the proprietary rights of husband and wife, jurisdiction in divorce or nullity of marriage, illegitimacy, legitimation and adop-

28 PERSONAL LAWS IN INDIA tion and testamentary and intestate succession to movables.1 It must be admitted that personal laws in India are based on religion. The adherents of different religions are governed by their own laws as Hindus, Mus- lims, Christians, and Parsees. Therefore, personal law is defined as “that body of law which applies to a person or to a matter solely on the ground of his be- longing to or his being associated with a particular religion.”

In this sense, the law treats all Indian citizens as if they belong to one religion or another, whether or not a person adheres to the doctrine and tenets of his or her religion. So let us have a look at these family laws. Here we will focus only on marriage and divorce because discussion of adoption and legitimation of children, inheritance, and maintenance would turn this article into a bulky mono- graph, which is not our intention. Moreover, these two topics are sufficient to make us understand the nature of personal law as such, i.e. that it is an arrangement of convenience and an affirmation of cultural pluralism. Muslim Personal Law Muslim marriage and divorce law in India is based on the Islamic religious tra- ditions. To be sure, of the four schools of Islamic law (the Hanafi school of Iraq [699-767 CE], the Shafei school of Egypt [767-820 CE], the Maliki school of Medina [711-795 CE], and Hanbali school of Iraq [780-855 CE]) the Sunni in India predominantly follow the first. But the Shia Muslims have their own system, quite distinct from the Sunni. In India the Shias follow the Ithna Ashari Jafari School of jurisprudence. The laws for Muslims—Sunni and Shia—are applications of the Hanafi and Ithna Ashari Jafari laws. As there are no religious courts under state administration, as is the case in some other countries, the disputes pertaining to personal law are settled in the civil courts. Let us now turn our attention to Muslim marriage.

Marriage in the Muslim tradition is regarded as a sacred contract. Therefore, the custom of dower involves a payment made to the wife either as a sum of money or property. The husband has no rights over this entitlement to the wife. Another custom is iddat, a period during which a widow or a divorcee cannot marry. Proceedings for marriage have to cease until this period is over. The Requirements for a Valid Marriage in Muslim Law For a marriage or nikah to be valid seven requirements have to be met: a) ijab, i.e. the offer of a party to the other party for marriage; b) oubul, acceptance of that offer by the other party; c) the presence of two witnesses if the parties are Hanafis;

1 http://www.lawteacher.net/indian-law/essays/in-indian-terminology- personal-law.php (accessed 8 June 2013).

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d) baligh, i.e. both parties should be adults, not to be confused with the statutory majority age of 18 and 21 years for girls and boys respect- tively; e) rashid, soundness of mind of both parties; f) the wording of the marriage contract should be clear and unambigu- ous; g) the offer and acceptance of the marriage must be made in the one and same meeting. Procedure of the Ceremony As such, neither the presence of a religious official nor the performance of any ceremony is required for a Muslim marriage. Nevertheless, marriages are a public affair in India. We can see this in the marriage customs of the Indian Muslims: a) the groom with his barat i.e. party of relative and friends proceeds to the venue of marriage; b) having reached the venue, the groom sits with his party in a separate place with a religious official, a kazi, while the bride sits separately with her female relatives; c) the father of the bride visits her in the capacity of a vakil or repre- sentative and informs her of the groom’s conditions and obtains her consent in the hearing of the two gawah or witnesses; d) the three emerge and jointly convey the bride’s consent to the kazi who then reads the khutba i.e. exhortation based on selections from the Qur’an and the hadiths; e) after hearing the kazi give the groom the bride’s conditions and the mutually agreed conditions of the dower, 1) the kazi asks the groom: “I have married you to (name of bride), do you accept?” 2) groom answers the kazi: “Yes, I accept.” f) The kazi then performs the ritual prayers for the well-being of the couple in which all those who are present join with raised hands. The nikah or marriage ritual is short and does two things: it sanctifies the marriage and completes it legally. Record of Marriages After conducting the ceremony, the kazi enters it into the records and issues the nikahnama or marriage certificate. In case of a dispute, however, the fact of long cohabitation is adequate for regarding the relationship as a lawful marriage by the court (Mahmood 2013: 133). Customarily, the wife goes to live with the husband in his house. In addition to marriage, the Shia also practise muta or temporary marriage, a pre-Islamic custom from Arabia (Mahmood 2013: 290). In this system a man can marry a woman but only for a limited time e.g. for a year, and the contract can be renewed. But this custom is not practised to a great extent in society. 30 PERSONAL LAWS IN INDIA

Dissolution of Marriage under Muslim Law There are different ways to dissolve a marriage. It will be clearer if we discuss these under three headings, namely, death, an act of the parties, and judicial process. a) The death of the husband or wife. The marriage bond clearly ends if the spouse dies. The widower can remarry whenever he wants but the widow has to wait until the period of iddat, i.e. four months and ten days, is over. If she is pregnant she has to wait until the child is born. b) By an act of the parties. Muslim law allows the parties to divorce without a court process. We can classify these briefly into three cate- gories: an act by the husband, an act by the wife, and an act by mutual consent. 1) By the husband: A husband can initiate divorce in four ways. Interestingly, not all of these approved methods are recommend- ed. i) Talak. This is a restraint imposed by the husband in a marital relationship. It becomes legal when the marriage is dissolved by a pronouncement. Hanafi law does not pre- scribe any special form of words but Ithna Ashari law strictly requires that the pronouncement be uttered orally in Arabic in the presence of two male witnesses who are reputed to be honest and virtuous Muslims. The wife’s presence is not essential. Hanafi, unlike Ithna, accepts both oral and written forms of pronouncement. a. Talak-Ul-Sunnat. This form of pronouncing divorce was approved by the prophet. Here too there are two forms: the approved and the most approved. The former is ahsan. In this form of dissolution the marriage is dissolved by a single pronouncement during the period of tuhr i.e. purity, when the wife is not menstruating. The husband should not have had sexual intercourse with her and should allow her to ob- serve iddat. During this period there is the possibil- ity. The second form is hasan. In this form the pronouncement of divorce is made three times. It is, therefore, understood as “divorce upon divorce.” It should be noted that the three pronouncements for divorce are made in three consecutive periods of tuhr or purity and that there should be no sexual intercourse during this period. b. Talak-Ul-Biddat. In this form of pronouncement, the husband pronounces three divorces in one sentence. In the tuhr period, the sentences are repeated separately three times. From the Hanafi perspective, this

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form of divorce is lawful but sinful. Under Ithna law it is not permissible. Unfortunately, this practice is widespread in India. The nature of this form of divorce is that the dissolution of marriage is irrevocable. c. Ila or vow of continence. In this form of divorce the husband swears to abstain from sexual intercourse with his wife for at least four months. After the com- pletion of this time the marriage is dissolved. It is possible to retract ila even after four months if the husband and wife begin to live together. ii) Zihar or injurious comparison. This pertains to irresponsible language by the husband regarding his wife, especially comparing her with a female relation within the prohibited degree. In this case, sexual intercourse between the husband and wife becomes unlawful until the husband has ex- piated himself by performing penance. The zihar judicial separation can be claimed by the wife if the husband has a habit of making irresponsible comments. 2) By the wife. A wife can also initiate divorce. This provision in Muslim personal law is called talak-e-tafweez or authorization to divorce. It is a unique safeguard for women in a culture of male domination. The unique feature of this law is that the wife is authorized by her husband to seek divorce if she so desires. There is no parallel to it in any other system. We should appre- ciate this provision, keeping in mind the subjugated position of women in the pre-Islamic Arabia and even today. 3) By mutual consent. A married couple can agree to divorce by common agreement. This can be done in two ways, i.e. by khula or by mubarat. Let us see what these two forms mean. i) Khula or redemption. In this form the wife may waive the dower in order to be released from the marriage bond. In this case, the husband may or may not accept this offer of the wife. Alternatively, the husband may request the wife to waive the dower, which the wife may or may not accept. Dissolution of marriage by khula is irrevocable. ii) Mubarat or mutual release. Divorce is possible by mutual agreement between husband and wife. Here any of the two parties can initiate the process. Matters such as incompati- bility of temperaments, aversion, or dislike can be dealt with under this provision. Divorce under this form is irrevocable. c) By judicial process 1) Lian or mutual imprecation. A wife can file a suit of divorce charging her husband for falsely accusing her of adultery. After 32 PERSONAL LAWS IN INDIA

the suit has been filed by the wife, the husband can proceed via two alternative lines. First, he can retract his allegation against his wife. In this case the wife will not get a divorce. The second alternative is that the husband does not retract his accusation and the wife confirms her innocence. Both have to do this on oath. But it does not automatically follow that the marriage will be dissolved by the court after these mutual imprecations. Both parties to the marriage be adults and the husband’s charge of the wife’s adultery be proved. If the husband’s charge is proved, i.e. that the wife has committed adultery, the wife loses any grounds for the dissolution of the marriage. If the wife’s charge is proved, i.e. that the husband has falsely accused her of adultery, she can proceed to file a regular suit for the dissolution of marriage. The decree of the court for dissolution is irrevocable. If the husband fails to prove his allegations then the wife can also sue the husband under the Indian Penal Code for de- famation. 2) Faskh or judicial annulment. Marriage can be annulled by the court of law on the application of the wife. The grounds for dis- solving a marriage can be one or several of the following grounds:  the whereabouts of the husband have not been known for a period of four years or more;  the husband has neglected her or has failed to provide for her maintenance for two years;  the husband has been sentenced to imprisonment for a period of seven years or more;  the husband has failed to perform his marital obligation for a period of three years without reasonable cause;  the husband was impotent at the time of marriage and con- tinues to be so;  the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;  she was given in marriage by her father or another guardi- an before she attained the age of 15 and repudiated the marriage before attaining the age of 18, provided that the marriage has not been consummated;  the husband mistreats her by habitually assaulting her, subjecting her to physical ill-treatment, associating with women of ill-repute, or leads an infamous life, attempts to force her to lead an immoral life, disposes of her property or prevents her from exercising her legal right over it, ob- structs her in the observance of her religious profession or practice and, if he has more than one wife, does not treat 33 STUDIES IN INTERRELIGIOUS DIALOGUE 23 (2013) 1

her equally in accordance with the injunctions of the Qur’an. So we see here that the Muslim personal law is most elaborate on divorce. It should be appreciated that in a time of male domination, the Islamic tradition sought to protect women by giving them some rights, like dower, iddat, and the right to refuse their consent to be given in marriage to a prospective husband. Another feature of Muslim Personal Law is that a Muslim man can marry a Jewish or Christian woman without requiring the women to convert to Is- lam. This too should be viewed as extending protection to women beyond the Muslim community.

Parsee Personal Law Parsees (the name is derived from the word Persia), are Zoroastrians who mi- grated to India in large numbers when they were persecuted under the in- creasing Islamization of Iran. Although the Parsee community is only a small fraction of the entire Indian population, their cultural differences with others are such that a distinct personal law had to be enacted for them. This happened in 1865. Thereafter, some further amendments were made and eventually it came to be known as the Parsi Marriage and Divorce Act 1936. Two things to understand in this personal law for regulating family are valid marriage and grounds of divorce. Valid Marriage A marriage must have two things to be valid. First, the parties in a marriage contract should not be related to each other in any of the degrees of consanguinity. Second, the marriage should be performed by the Ashirvad ceremony conducted by a priest and two Parsee witnesses. The family has to be established on a monogamous relationship. Grounds for the Dissolution of Marriage Many grounds for dissolution of marriage have been specified in the Parsee Personal Law. A decree of divorce can be given to dissolve a marriage under the Parsee law  if the marriage is not consummated within a year;  if the spouse is of unsound mind;  if the man did not know that the woman was pregnant at the time of marriage by another person;  if the spouse had committed adultery, fornication, bigamy, rape, or unnatural sex;  if the spouse had been treated cruelly;  if the spouse has contracted venereal disease;  if the wife was forced into prostitution by the husband;  if the spouse was legally imprisoned for seven years or more;

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 if the parties have not had sexual intercourse for a year or more;  if the spouse has converted to another religion and has ceased to be a Parsee.

Divorce can also be granted by mutual consent on the grounds that the spouses have not lived together for a year at least.

Christian Personal Law Marriage law for Christians is governed by the Christian Marriage Act 1872 and the Divorce Act 1869. Christians in India constitute the third largest mi- nority of the country, after Hindus and Muslims. This Act also indicates who is authorized to solemnize marriages. The Requirements of Christian Marriage Four things to underscore in Christian marriage are: 1) the individuals intending to marry; 2) those authorized to solemnize marriages; 3) time for solemnizing marriage; and 4) registration of the marriage and issuing of the certificate. Let us briefly explain these points.

First, those intending to marry should be of the appropriate age. This means that the man should not be younger than 21 and the woman not younger than 18; they should be single. This law requires monogamy for Christian marriage. Second, the marriage should be solemnized by proper religious authorities. These are recognized priests ordained by bishops, Roman Catholic priests, ministers of the Church of Scotland, a minister licensed under the Indian Christian Marriage Act, or a marriage registrar. Third, marriages should be solemnized between six in the morning and seven in the evening, unless especially permitted by the bishop (Anglican or Roman Catholic). The place of marriage ceremony has to be a church or a building where worship is regularly held. Fourth, it is required that all the marriages be properly registered and these entries should be submitted twice every year to the Registrar General of Births, Deaths and Marriages. The Marriage Ceremony The ceremony is usually held in a church in the town where the bride resides. Before the actual ceremony, some formalities have to be completed to comply with the requirement of personal law. Let us explain them here. Procedures before the Marriage Ceremony a) A Notice of Marriage duly signed both by the man and the woman intending to get married is submitted to the priest in charge of the church. b) The priest puts up a notice on the public notice board for 30 days or announces the banns on three consecutive Sundays and will consider 35 STUDIES IN INTERRELIGIOUS DIALOGUE 23 (2013) 1

any valid objections. c) if no objections are raised, the priest will issue a Certificate of Banns to the groom stating that there is no impediment to solemnizing the marriage.

The Marriage Ceremony a) The groom goes to the bride’s town/place of residence with his relatives and friends; this marriage party is called the barat. b) The groom and his party wait at the church to receive the bride when she comes. c) The bride is escorted by her father to the church. d) The bride and the groom now stand before the altar of the church in the presence of the priest. e) The priest gives an exhortation on the ideals of Christian marriage, then asks for the consent of the bride and groom, after which the bride and groom make their marriage vows or pledge to each other; they give their rings to the priest who blesses the rings and returns them; the groom places the ring in the fourth finger of the left hand of the bride as a token of his pledge, and the bride does the same. f) the priest then declares the couple husband and wife and pronounces prayers of blessing on them. Procedures after the Marriage Ceremony a) The priest records the marriage in the church register that the newly wedded couple, three witnesses, and the priest sign and issues a signed certificate of marriage. b) He closes the ceremony with prayers and blessing for the newly married couple. This is followed by a ceremony of cutting the wedding cake by the newly married couple and a reception for the guests. Grounds for Divorce Keeping in mind that marriage is regarded as a sacrament; the church in India does not permit divorce. Therefore, those seeking divorce have to resort to the civil courts. Christian personal law permits this. The grounds for dissolution of marriage are for the most part similar to those in the other personal laws, but there are some interesting features for declaring a divorce. A competent district or high court in India can declare a decree of divorce for dissolution, annulment, or judicial separation. Dissolution of Marriage The dissolution of Christian marriage can be granted by the court on two grounds: mutual consent or adultery. In the case of adultery the court has to ex- amine to see if there is any collusion between the petitioner and respondent. In 36 PERSONAL LAWS IN INDIA such cases and in others where adultery has not been proved the case will be dismissed. Second, every of dissolution of marriage made by a high court will, in the first instance, be a nisi decree, i.e. not to be made absolute until six months after it was pronounced. It is the responsibility of the petitioner to have the nisi decree made absolute within a reasonable period of time.

Annulment of Marriage A court can pronounce the annulment of a marriage on four grounds: a) if the man was impotent at the time of marriage, b) if the couple is within the prohibited degree of consanguinity, c) if the spouse was lunatic or an idiot at the time of marriage, and d) if the spouse already has a husband or wife who is alive at the time of the marriage. Judicial Separation A court can pronounce a decree of judicial separation on the grounds of adultery, cruelty, or desertion. A separated woman will be treated as a spinster from the time of the pronouncement of the decree. A Unique Feature of the Christian Personal Law A unique feature of Christian Personal Law is that, to register a marriage under that law, at least one party needs to profess the Christian faith. So an interreligious marriage between a Christian and a non-Christian is possible in the In- dian church. But the internal rules of the church forbid the use of this provision, and under these rules a Christian minister can only solemnize marriage between two Christian individuals. Church law conflicts with personal law on this point.

Hindu Personal Law Hindu Personal Law is elaborate and well developed. It was drafted by B.R. Ambedkar and the document was famously known as the Hindu Code Bill (Daniel: 2013). This bill was distinct from and contrary to the older shastra (scripture) law which had governed the Hindu family till now. Indeed it was strongly opposed by the orthodox Hindus, and it took Jawaharlal Nehru’s in- genuity to get it enacted as law. It is now known as the Hindu Marriage Act, 1955. This new law has two objectives; first to elevate the status of Hindu women and, second, to remove caste-based discriminations (Guha 2008: 228). Some notable features of this law can be listed as follows. a) The widow and the daughter of a man dying intestate now had the same and equal share in the property as the sons. The woman who inherited the property could dispose of it as she wished. Previously, the property was passed on solely to the male heirs. b) A man was required to maintain his wife if she decided to live separately if the husband had a loathsome disease, was cruel to her, or took a concubine, etc.

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c) Caste was not regarded as a barrier to marriage among Hindus. Under this code inter-caste marriage was possible. All marriages between Hindus by Hindu rite have the same sacramental and legal status. d) Both, the man and the woman, have the right to file a petition seeking divorce. Previously only men enjoyed this advantage. e) Monogamy was made mandatory. f) Caste was no longer a barrier for the adoption of children. The ground for filing a petition for divorce is the same as under other personal laws, i.e. Parsee and Christian. An added feature for grounds for divorce is if the spouse has renounced the world by entering a religious order (Prakash 2003: 29). The court can dissolve, annul, or pronounce a judicial separation. In the case of judicial separation the parties may marry only after the period of separation is completed and the marriage is legally dissolved. Void and Voidable Marriages An interesting detail is the distinction between void and voidable marriages, a distinction that is not made in other personal laws. A marriage under the 1955 Act can be declared void under certain conditions that are applicable only after the commencement of this Act, whereas voidable means that a marriage solemnized either before or after the commencement of this Act can be dissolved on specific grounds. The reason for making this distinction was that under shastra law, prior to the Hindu Marriage Act 1955, monogamy was not imposed on the Hindus. For instance, a dispute between two wives could not be settled under the 1955 Act (Prakash 2003: 13-14).

Limitations of the Personal Laws for Bahai, Jewish, and Interreligious Marriages In addition to such cases, the smaller minorities of the Bahai and the Jews in India do not have personal laws. The law commission of India observes that Bahai marriages are solemnized by religious officials of that community, which has a system of certification of marriages very similar to the nikah-namas is- sued by the kazis in Muslim marriages. The Jewish system of solemnization is also similar to that of the Muslims. Jewish priests known as rabbis solemnize marriages and issue certificates. But there is no system among either the Ba- hais or the Jews for the transmission of marriage records to any state authority. There is no legal requirement or practice of registering the Bahai or the Jewish marriages with the state registry (Law Commission of India Report No. 211 2008: 24).

Aware of the fact that the Personal Laws were community-specific and conse- quently do not address the needs of those who want to marry outside their religious communities without changing their religious allegiance, the Special Marriage Act was enacted in 1954 (Prakash 2003:107).

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Special Marriage Act 1954: A Solution to the Problem of Intercommunity Marriages This Act was the result of the secular character of the Indian Constitution. It removed the ban in society against intercommunity marriages. A marriage under this Act is not registered or conducted by a religious official at the civil court. These marriages are, therefore, also called civil marriages.

Prerequisites for Lawfully Registering a Civil Marriage The following conditions must be fulfilled at the time of marriage: a) the man and the woman intending to marry must be single; b) they should be capable of giving valid consent and be of sound mind; c) neither of them should be suffering from a condition rendering him/ her unfit for marriage and the procreation of children; d) the man should have reached the age of 21 and the woman 18; e) The man and woman are not within the degrees of prohibited relation- ships; f) the marriages in Jammu and Kashmir are valid only if the aspiring man and woman are Indian citizens and reside within the territory under the control of the Indian government. Procedure for Registering a Civil Marriage a) Notice of Marriage. Having fulfilled the above prerequisites, the couple intending to get married can apply to the marriage officer of the district in which at least one of them has resided for a period of 30 days before the date the Notice of Marriage was submitted. This No- tice of Marriage is displayed on a public notice board for 30days. Ob- jections to the marriage can be submitted within that period. The marriage officer may accept an objection and refuse to register the marriage. In this case the couple can appeal to the district court within 30 days. b) Declaration by the Intending Parties. Before the marriage is solemnized, the couple and three witnesses will, in the presence of the marriage officer sign a declaration in the official form. This declaration form is countersigned by the marriage officer. c) Solemnization of Marriage. Then the marriage can be solemnized at the office of the marriage officer or at another convenient place. The parties are free to choose any form of marriage ceremony they want. They can create their own order of solemnization, but the ceremony will only be complete and binding when the man and the woman, in the presence of the marriage officer and the three witnesses, say to each other in a language understood by all say to each other, “I (A), take thee (B), to be my lawful wife/husband.” d) Registration of Marriage. The marriage officer will then record the

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marriage in a register that all—the newly wedded couple, the three witnesses, and the marriage officer—will sign. e) Certificate of Marriage. He will also issue a Certificate of Marriage that all the above have also signed. This certificate is the conclusive evidence that the marriage has been duly and lawfully solemnized. We must also note that marriages solemnized by any of the forms or under any personal law can be registered by the Marriage Officer of the district if so de- sired by the parties, provided they have complied with the lawful requirements of the law of the land. Dissolution of Civil Marriage The Special Marriage Act 1954 also allows divorce on reasonable grounds. A marriage can be dissolved by a decree of divorce in three ways: 1) by being declared null and void; 2) by judicial separation; 3) by mutual consent.

Proposal for a Uniform Civil Code Although there has been wide discussion on working out a uniform civil code in India, no serious initiative has ever been taken in this direction. The idea is to base it on human rights where equality, freedom, and social intermingling could be secured. It has been argued that distinct family laws have not helped in building an integrated nation. This view is based on the assumption that the people of India have a stronger community consciousness than a national consciousness. Although the concept of being a nation has been steadily growing, it will take a long time for it to emerge as a full-blown consciousness. There- fore, a uniform civil law will help in strengthening the people’s consciousness of being a nation.

Granted that the personal laws and the caste system can be hindrances to this ideal of an integrated nation, the problem is multicultural Indian society. Not only have people have come from other parts of the world and settled here over the centuries, but they also speak different languages and adhere to different faiths. The consequence of this has been diversity in the family arrangement in society. In other words, if Hindus have undivided families, then Mus- lims have joint families. There are monogamous families as well as polygamous families in Indian society. There are patriarchal and matrilineal families too. The addition of the nuclear family, due to phenomenal urban growth, has further diversified the traditional family designs.

Obviously, families are established according to what their religion prescribes or proscribes. For example, in the Hindu undivided family the head has always been the male descending directly from a common ancestor who is an object of respect, if not always of affection. Wife, mother, and unmarried daughters are bound to this male (father, grandfather, or great grandfather) by the principle of sapinda or family relationship. This is the essence of the Hindu undivided 40 PERSONAL LAWS IN INDIA family. Traditionally, the wealth the family members earn belongs to the man to whom they belong and who heads the family. Therefore, the law of inheritance classifies the property of the Hindu undivided family as joint property, joint family property, and joint ancestral property. This understanding of inheritance may not be required for nuclear or matrilineal families (Gyanprakash 2006: 2).

Laws for the Muslim joint family will have to be different from the Hindu undivided family. Here care has to be taken if the man has more than one wife and their children. In the case of the husband’s death, the widow not only in- herits his property for her children but becomes the owner of the unpaid dower that she may dispose of according to her wishes (Mahmood 2013: 265).

These examples show that people in India have not left the customs of their respective communities behind them and developed into a nation. Their family practices are governed by their community’s approved customs. Therefore, a uniform civil law replacing the present system of personal law will neither be acceptable nor practical at this stage. The society has to evolve further for several generations for this to happen. As far as national integration is con- cerned, we can rest assured that the common history under the British, the present institution of democracy, the state assemblies and the national parliament, the bureaucracy, the railways, and a national army provide adequate ce- ment for national unity.

Conclusion From what I have discussed above, it is clear that personal laws are an arrangement of convenience and affirmation of cultural pluralism. But there is nothing permanent about these personal laws. These laws need to be continuously re- viewed. Perhaps the Indian judiciary can play a leading role here. For every case that is heard and settled in the court of law, the judges can do two things: first, they have to reinterpret the provisions of the personal laws in the light of human rights, and, second, they must become acquainted with the development of family law in other countries—Muslim, Christian, Buddhist, and secular.

Progressive thinkers and leaders of different communities also have to be brought together in conferences to share their views on family law with one another, including leaders of other faiths. This mutual influence of diverse communities is important as society is continuously changing.

There is a continuous influence of progressive Western ideas on educated Indi- ans or those who are exposed to the Western and secular countries. Therefore, research and analysis needs to be undertaken to understand the changes that are taking place in society. For example, in the metropolitan cities of India people are finding new ways to live together, ways that may not involve the

41 STUDIES IN INTERRELIGIOUS DIALOGUE 23 (2013) 1 traditional cumbersome family rituals or marriage ceremonies connected with legal obligations.

LITERATURE Daniel, Monodeep. (2013). Faith on the Anvil of Justice: Dr. Ambedkar’s Response to Religions in India. Ph.D. Dissertation VU University Amsterdam. Dash, Mike. (2005).Thug: The True Story of India’s Murderous Cult. London: Granta Books. Guha, Ramachandra. (2008). India after Gandhi: The History of the World’s Largest Democracy. Oxford: Picador. Gyanprakash. (2006). Hindu Undivided Family: Partition and Will. Delhi: JM Jaina & Brothers. Lakshmanan, A.R. et al. (2008). Laws on Registration of Marriage and Divorce—A Proposal for Consolidation and Reform. Law Commission of India Report No. 211. New Delhi: Law Commission of India Report. Mahmood, Tahir. (2013). Introduction to Muslim Law. New Delhi: Universal Law Publishing Co. Masani, Zareer. (2012). Macaulay: Pioneer of India’s Modernization. Noida: Random House India. Prakash, Gyan. (2003). Marriage and Divorce. Delhi: J.M. Jaina and Brothers.