Module details Name Subject Name Social Work Paper Name Legal Literacy Module MODULE XXVII: 1- Overview of Personal Laws in India and Laws relating to Paper Coordinator Advocate Maharukh Adenwalla Module Writer Advocate Monica Sakhrani Keywords Family Law; Personal Law in India; Law of Marriage; Law relating to Summary The module looks at the overview of the law of marriage and in India. It looks at the different marriage and divorce laws applicable to different religious communities. It also deals with the provisions of the Special Marriage Act as well as law relating to child marriage in India. It also refers to the debate relating to Uniform Civil Code in India Content reviewer Prof Manish Jha, Professor and Dean, School of Social Work, Tata Institute of Social Sciences

INTRODUCTION This module is the first in Family Law and will look at Family Law in India especially the law relating to marriage and Personal laws in India. In the next three modules we shall look at divorce and the debates on Uniform Civil Code and the other rights and laws relating to family in India. In India, the law of marriage and divorce are determined by the religion we belong to. They are also called personal laws firstly because they relate to our personal identity and secondly because they are relating to our personal lives.

OBJECTIVES 1. To understand the concept of Personal laws in India. 2. To develop an understanding of the laws relating to marriage in India. 3. To look at the law of child marriage in India.

LEARNING OUTCOMES 1. Gain an overview of the concept of Personal laws in India. 2. Have a basic understanding of the law relating to marriage in India under different personal laws and the secular law of marriage in India.

1. PERSONAL LAW IN INDIA Imagine Kavita and Suresh are planning their marriage. What would they be looking forward to regarding the same. You are likely to say it will be the ceremonies, the rituals and traditions relating to marriage. If all these are taken away and marriage is reduced to a civil ceremony only, the excitement regarding a marriage will be lost. In India, most of the ceremonies are rituals based on the region and religion we belong to. This ceremony is itself considered sufficient for a legally valid marriage. The law does not require anything else to be done such as registration before the state appointed Marriage Officers. Even if your marriage is not registered, all you rights in your marriage are protected. Marriage is seen as a sacrament or a religious or social institution and not a legal one and the law is expected to adapt to the social institutions and not the other way round. This is the main difference between personal laws and uniform civil code. For example in the UK, if you want to get married, you have to have a civil ceremony fulfilling all the criteria under the law including the requirement of age, notice and so on for the law to recognize your marriage. If you just have all the religious ceremonies required for your marriage without the civil registration then the law does not recognize the marriage and you do not exercise your rights that arise out of a

marriage. One of the major differences between marriage and live in relationships is not just the social sanction that marriage has but also the legal rights that accrue from it. The laws governing marriage are thus specific to each community. If two people from different religious denominations want to get married, then they can have a civil ceremony under the Special Marriage Act without changing their religion. The different laws relating to marriage in India are-

The Indian Christian Marriage Act, 1872 for Christians (for divorce it is the Divorce Act of 2001) The Parsi Marriage and Divorce Act 1936 The Muslim Personal Law (Shariat Application) Act of 1937 for Muslims Dissolution of Muslim Act, 1939 for Muslim women Special Marriage Act 1954 for those wanting to marry without going through a religious ceremony Hindu Marriage Act, 1955 for Hindus

It is not just marriage laws that are different but also laws relating to succession to property and divorce are determined on the basis of religious identity. Prior to the coming of the British, it was caste and region that determined the marriage and other personal laws, but after the coming of the British, it was on the basis of religion. During the time of the British, marriage laws changed from customary law to statute. However the marriage laws relating to Hindus were passed after independence though there were social reform laws such as Child Marriage Restraint Act, Hindu Widow Act but the bulk of social reform came after independence. However the important point is that all these personal laws except for Muslim personal law were based on the English law of marriage and divorce. While these laws allow for and recognize religious ceremonies relating to marriage, the provisions for divorce and other matrimonial remedies such as restitution of conjugal rights, maintenance and custody are similar in all the laws. The other exception is tribal communities in India who are exempt from the statutory law and are governed by customary laws. Jews are another community who are governed by their customary law. Muslim law differs from the other laws. The Muslim personal law in India is governed by the Muslim Personal Law (Shariat Application) Act of 1937 which makes Shariat (or Muslim Law) applicable to persons governed by Islam with regards their succession to property including women’s property, marriage, divorce, maintenance, dower, gift, guardianship and trust.

2. LAW RELATING TO MARRIAGE IN INDIA

Let us now look at the law relating to marriage and divorce in India. The most important concept what one needs to understand is that the law does not recognizes all marriages but only those which fulfill certain legal conditions. These are called valid, voidable and void marriages. What are they?

• Valid marriage is one that which is legally binding as it fulfills all the customary and legal requirements of marriage such as proper and complete rituals and other legal conditions of not marrying close blood ties and other conditions stipulated under law. The husband and wife have all their legal rights in such marriage. • Voidable marriage is one that does not fulfill all the legal requirements but the imperfection can be cured by the act or confirmation by him or her who could take advantage of the same. An example of these marriages are child marriages. • is one that has no legal validity and the law would not consider the same. Hence a same sex marriage or a contract marriage are void

marriages. In certain cases such as under the Hindu Marriage Act, void marriages also give rise to certain rights such as the wife is entitled to maintenance and children of void marriages are considered legitimate. We shall now look at the different personal laws and what constitutes a valid marriage under each of the Hindu, Muslim, Christian personal laws and the Special Marriage Act.

1.1 Hindu Law

According to the Hindu Marriage Act, a Hindu includes all religious sects of Hinduism and also includes a Buddhist, Jain and Sikh. The definition goes on to state that it includes all those who are not Muslim, Christian, Parsior Jew by religion. Thus the definition is both inclusive and exclusive.A valid Hindu marriage may be solemnized according to the customary rites and ceremonies of the parties and where they include the Saptapadi (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. For a valid marriage under Section 5 of the Hindu Marriage Act, what is required is that :  Both should be Hindus  Neither should have a living i.e marriage has to be monogamous  Neither should be related to each other as Sapindas or within degrees of prohibited relationship unless the customary practice permits such a marriage. A Sapinda has been defined as relations extending to 3 generations if from the mother’s side or 5 generations if from the father’s side. Prohibited relations are if one is a lineal ascendant of the other,wife or husband of a lineal ascendant or descendant of the other, the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters. These relationships include legitimate or illegitmate, full, half, uterine and adoptive ones.  At the time of marriage neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind; or 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 has been subject to recurrent attacks of insanity  The groom has completed 21 years of age and the bride 18 years of age

The violation of any of the first three conditions makes the marriage void, while the violation of any of the last two conditions makes it voidable marriage. Other two conditions can result in the marriage being voidable. They are  Where the consent of the party or where the person getting married is a minor the consent of the guardian is obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the other side or  Husband discovers that the wife was at the time of the marriage pregnant by some person other than the husband. But in these cases, the innocent party has to file the case for dissolution of the marriage within a year of the force or fraud ceasing or within year of discovering the fact in the second case. In both cases, the person should not have voluntarily had sexual intercourse with the other spouse otherwise the case would fail. A voidable marriage is legally valid till the court declares the same null. A Hindu marriage is not compulsorily registered under the law and the option is with the parties to register the same. In SeemavsAshwani Kumar (AIR2006SC1158) the Supreme Court directed that all marriages should be compulsorily registered but the courts still consider those marriages as valid which are not registered on equitable grounds. Also the Indian courts have long held that continuous for a long time gives rise to the presumption of marriage. This view was reiterated by the Supreme Court in Chanmuniya v. Virendra Kumar Singh Kushwaha (2011) 1 SCC 141).

1.2 Muslim Law

Unlike other religions, in Islam marriage is a contract between two consenting individuals which is terminable at the will of one of the parties. Hence the willingness to marry on the part of the both the is of paramount importance. The Muslim marriage which is known as the Nikah is recorded in a document known as the Nikahnaama which has to have the signature of both the parties and the witnesses. It is not important to have a religious priest or Qazi, what is important that the consent of both the parties should be recorded in the presence of witnesses. The wedding ceremony requires that there should be an offer or proposal of marriage called the Ijab and the acceptance, which has to be free consent, and is understood by the word “Qabool”. Both should happen in the same event and should be witnessed by two Muslim witnesses, if male and if females, then three, one male and two females. The only religious law which recognizes prenuptual contracts in India is Muslim law. There can be many terms in the contract. One of the important mandatory terms of the nikaahnama is the specification of the Mahr amount or the dower which is the amount the husband promise to give to the wife due to his love and affection. Mahr can be prompt or deferred i.e it might be paid immediately after the marriage (and the wife can refuse to consummate the marriage till the same is paid) or after the dissolution of marriage. In Islam since marriage is a contract between two persons, when one dies, the marriage comes to an end. Hence a Muslim marriage is dissolved either by death or divorce. In that case, Mahr is a debt of the wife just like any other debt of the husband. In case of death of the husband, the wife first gets her Mahr amount as a creditor and then from the remaining amount, inherits as an heir. Even if the Mahr amount is not specified in the nikaahnama, the amount is determined by the social status of the wife and the mehr amount of other members of her family and not the social status of the husband.Mahr need not only be given in cash. The husband can give jewellery, immovable property or his share in family property as mehr. The wife would then be entitled either to the property or its value in cash. A void marriage amongst Muslims would be one of the following:  Prohibition on ground of consanguinity (through blood relations) which is set out as a man cannot marry his mother or grandmother how highsoever, his daughter or granddaughter how lowsoever, his sister, whether full (both parents are the same), consanguine (father is the same but mothers are different) or uterine (common mother but different fathers) or his niece or grand-niece how lowsoever; and his aunt or grand-aunt how highsoever  Prohibition on ground of affinity (ie through relations of marriage) and a man cannot marry his wife’s mother or grandmother how highsoever, his wife’s daughter or granddaughter how lowsoever, the wife of his father or grandfather how highsoever; and the wife of his son or son’s son or daughter’s son how lowsoever.  Prohibition on ground of fosterage which includes those who are prohibited due to consanguinity or affinity if they are related through fosterage except certain relations such as sister’s foster mother or foster sister’s mother or foster son’s mother or foster brother’s sister.  Marriage with a married woman. Women under Islam cannot have more than one subsisting marriage but marrying a woman undergoing iddat is not void but irregular. Iddat is the period (three menstrual cycles in case of a menstruating woman, three lunar months in case the woman is not menstruating and till the end of pregnancy in case of pregnant woman) when a woman cannot marry after the dissolution of her marriage. All these marraiges are Batil or Void. Voidable marraiges are also known as Fasidmarraiges and or irregular marriages and the irregularity is cured by some act mostly and cohabitation though the remedy for regularization depends on the type

of irregularity. Children are legitimate and all the rights in a marriage are there. These marriages include:  Prohibition on the ground of difference of religion or where the parties are both not Muslims but marriage of a Muslim man with a woman following a Kitabia (book based) religion is valid  Prohibition on ground of unlawful conjunction where two wives of the husband are related within the degrees of prohibited relationships or where if they had been of different genders, they could not have married each other  Prohibition of Marriage within Iddat  Marrying for the fifth time even during the iddat period of one of the four wives whom he has divorced makes the marriage irregular. However if a man takes a fifth wife, he can regularize the marriage by divorcing one of his existing wives.

1.3 Christian Law

A valid Christian marriage does not require both the parties to be Christians but only one of them has to be a Christian and the marriage has to be solemnized by a priest or a registrar authorized to do so under the Indian Christian Marriage Act. is prohibited and the man should have completed 21 years of age and woman 18 years of age Section 19 of the Indian Divorce Act lays down the conditions which make a marriage void. Either party can approach the District Court or the Family Court where it exists for a decree of nullity of the marriage if any of the following conditions are present:  The respondent was impotent at the time of marriage or while approaching the court  The respondent was mentally disabled at the time of marriage  Either party was in a subsisting marriage  The consent of the party was obtained by force or fraud  They parties are related to each other within prohibited degree of consanguinity or affinity whether natural or legal A Christian marriage requires the couple to give a notice to the Church or the Registrar before whom they intend marrying. One of them has also to give an oath or declaration that there is no impediment to their marriage The Church or Registrar also does the publication of the notice and the certificate is granted within four days of the notice provided there is no impediment and no person has filed a protest or prohibition notice as to why the marriage should not take place due to an impediment. Only thereafter is the marriage solemnized within two months of the grant of the certificate. Two witnesses are required for the marriage which is registered by the Church which also sends the registration of the marriage to the Marriage Registrar who also registers the marriage.

1.4 Special Marriage Act This is a which requires that the persons marrying under it should either be Indian citizens residing in India, or at least one of them should be an Indian citizen residing in India for 30 days or non Indians who are residing or one of whom is residing in India for at least 30 days. A valid marriage requires that  The marriage should be monogamous  Bride above 18 years and groom above 21 years of age  Neither party should be incapable of giving consent due to unsoundness of mind or be capable of giving consent but has been suffering from a mental illness such that makes one unfit for marriage or procreation of children. Neither of the intending spouses should be subject to recurrent attacks of insanity.  Parties should not be within the degrees of prohibited relationship. The list of relationships is given in the First Schedule and includes full or half blood and uterine

relationships unless the custom prevailing between the parties permits such a marriage. Violation of any of the above conditions makes the marriage void. Special Marriage Act also permits marriages conducted in other forms such as different personal laws to be registered under this Act. But for registration under this Act, the marriage requires that the ceremony of marriage has been performed between the parties and they have been living together and that the marriage should satisfy all the other requirements set out above. The marriage is also void if the respondent was impotent at the time of marriage and at the time of institution of the suit for declaration of nullity of marriage. Three conditions make a marriage under the Special Marriage Act voidable at the instance of the victim party. They are:  Marriage was not consummated owing to the willful refusal of the respondent  Respondent wife was pregnant with someone else’s child at the time of marriage and the husband was unaware of this fact provided that he filed the petition within a year of marriage and that marital relations did not take place between them with husband’s consent after he discovered the fact  Consent of the party was got by coercion or fraud provided that the petition is filed within a year of the coercion ceasing or fraud being discovered and that marital relations have not taken place with the consent of the person who was defrauded or coerced. Children of voidable marriage are also legitimate and have all rights.

The marriage takes place before the Registrar of Marriage and requires notice as per the form to be given by the parties. Thirty days is given for any objection as to the legal conditions for marriage and thereafter the marriage can take place.

1.5 Child Marriage

The earliest law relating to child marriage in India was the Child Marriage Restraint Act 1929, which while making marriages of girls below 18 years and boys below 21 years an offence under the Act, preserved its legal validity. When the Act had come into force in 1929, the age of marriage was fixed at 14 for girls and 18 for boys and in 1976 it was increased to 18 for girls and 21 for boys. The Child Marriage Restraint Act made child marriages valid and only stipulated punishment for the same. However in 2006, the Prohibition of Child Marriage Act was passed which repealed the earlier law and made child marriages voidable and in in three cases void– one, when the girl is “enticed out of the keeping of the lawful guardian”; second, in cases of compulsion or deceitful means; and, third, for the purpose of trafficking. Section 14 makes marriages that take place in contravention of the injunction order issued by the Magistrate either suomoto or on a complaint filed. All other marriages under the Act are voidable marriages which canbe dissolved on the application filed under Section 3 by the minor within two years of attaining majority. The Act also provides for appointment of Child Marriage Prohibition Officers to prevent child marriages.

CONCLUSION In this module we have looked at what marriage is under the legal system in India. We have looked at the concept of personal law and looked at the law relating to marriage under Hindu law, Muslim law, Christian law and under the Special Marriage Act. We have lastly looked at the law relating to child marriage in India.