NIRMA UNIVERSITY

INSTITUTE OF LAW

A PROJECT SUBMITTED FOR THE PARTIAL FULFILLMENT OF THE FIVE YEARS INTEGRATED DEGREE OF LAW HONOURS

ON

Comparative study of Marriage under Hindu Law and Muslim Law

FAMILY LAW COURSE CODE:

COURSE:BA.L.L.B(HONS) SEMESTER-IV

Submitted To Ms. Sunita Assistant Prof.

Submitted By Hardik Sharma 11BAL094

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Declaration
The text reported in the project is the outcome of my own efforts and no part of this report has been copied in any unauthorized manner and no part in it has been incorporated without due acknowledgment.

Date:-23/02/2013 Roll No. 11BAL094 Name & Signature of the Student _____________________________

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Certificate
This is to certify that Hardik Sharma(11bal094) a student of IV Semester of Institute of Law, Nirma University has completed this project on the Analysis Comparative study of Marriage under Hindu Law and Muslim Law for the subject of Family Law I as a part of their course. This is original work done under my guidance & Supervision.

Date: -------------------------

Ms. Sunita Sharma Asst. Prof

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Acknowledgement
I take the opportunity, while presenting this project report; to express my deep gratitude to all those who offered their valuable help to me in completing this project successfully. A number of people provided me with their assistance, encouragement and enthusiasm. Without them this project would not have been possible. First of all I am extremely grateful & thankful to the Nirma University, Institute of Law, Ahmadabad, for instilling in us new & lively subjects which are practically observed in the Society today. I am extremely thankful to Asst. Prof. Sunita Sharma maam for giving the view of this wonderful topic and helping me in the completion of this project. Sir has always been a perennial source of information for us and has always inspired me to embark upon this venture.

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Table of Contents

S. no. 1 2 3 4 5 6 7 8 9 10 Introduction Literature Review Research Objective Research Questions Statement of Problem Research Hypothesis Research Methodology

Topic

Page no. 6 7 8 8 9 9 9 10 19

Chapter 1-Marriage under Hindu law Chapter 2- Marriage under Muslim law

Chapter 3- Comparison of marriage under Hindu and 25 Muslim law Chapter 4- Case laws Chapter 5- Conclusion References 28 34 35

11 12 13

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Introduction
A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage. To make a valid marriage, the parties must be willing to contract, able to contract, and have actually contracted. India being a cosmopolitan country tolerates personal laws of its citizen. As a result each citizen of India is entitled to have his own personal laws inter alia in the matter of marriage and divorce. Hindus are governed by Hindu Marriage Act, 1955 which provides for the conditions of a Hindu Marriage where under the bridegroom should be of 21 years and bride of 18 years, tehey both should be Hindus and should not be within the degree of prohibited relationship or sapindas, neither party should have a spouse living nor any party should be subject to recurrent attacks of insanity or epilepsy, either of them should not be suffering from mental disorders or should not be unfit for marriage and procreation of children and both should be of sound mind and capable of giving valuable consent. Divorce under the Hindu Marriage Act 1955 can be obtained on the grounds of Adultery, Cruelty, Desertion for two years, Conversion in religion, Unsound mind, Suffering from venereal disease and/or Leprosy has renounced the world not heard for 7 years no resumption of co-habitation for one year after the decree of judicial separation, no restitution of conjugal rights for one year after decree for restitution of conjugal rights, Husband guilty of rape, sodomy or bestiality and if after an order of maintenance is passed under the Hindu Maintenance and Adoptions Act or the Criminal Procedure Code there has been no cohabitation for one year. Marriage or Nikah in Islamic law is a contract pure and simple needing no writing and no scared rites. All that is necessary is offer and acceptance made in the presence and hearing of two male or female witnesses and recording the factum of marriage in the Nikah Register maintained in every mosque signed by the parties and attested by witnesses. It is payable to the wife on the dissolution of marriage or death or divorce. In India, there is no need to register the Muslim marriage, as there is no law requiring registration.. Muslims are governed by their personal laws under which "Nikah" (i.e. marriage) is a contract and may be permanent or
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temporary and permits a man 4 wives if he treats all of them equally. To have a valid "Nikah" under the Muslim Law, presence of a Qazi (Priest) is not necessary. Merely a proposal in the presence and hearing of two sane males or one sane male and two sane female adults, all Muslims and acceptance of the said proposals at the same time constitute a valid Nikah under the Muslim Personal Law. A husband can divorce his wife without any reasons merely by pronouncing thrice the word "Talak". However for a Muslim woman to obtain divorce certain conditions are necessary. For Parsees there is a Parsee Marriage & Divorce Act, 1939 which governs the provisions of their marriage and law and for Indian Christian there is a Indian Christian Marriage Act 1889. Persons of any religion who get married under the Special Marriage Act, 1954 are governed by the said act. There are certain penal provisions also in the Criminal Procedure Code providing for the maintenance of the wife and punishment for bigamy.

REVIEW OF LITERATURE: The Islamic and Hindu religions have an array of similarities and differences regarding their customs and laws in relation to the wedding ceremony. Within Islam, the wedding ceremony is believed to be both a religious and social obligation to get married. As a result, there is a great weight placed on religious, social and cultural dimensions of the ceremony which tends to be simple in nature, paralleling Islamic beliefs. Hindus also place a lot of importance on marriage ceremonies which signify customs, rituals and elaborate celebrations. However, a key difference lies in the fact that Islamic marriages are seen as contractual agreements, whereas Hindu marriages are perceived to be sacrilegious. Islamic wedding ceremonies or Nikaah can be performed in a variety of ways depending on the culture in which they are arranged. For example, Islamic marriages can slightly vary depending on whether they are part of the Asian or Arab world. Typically, Islamic marriages are arranged by the parents of the bride and groom, with the bride and groom having a final say in who they will ultimately marry. The marriage proposal in effect comes from the woman, who contacts the man through a common liaison who tends to be a male relative. The stringent rules and nature of the Islamic culture propose that Muslim women cannot marry outside their religion. Muslim men however, can marry Christian or Jewish women because they are People of the Book, i.e. those who hold a monotheistic

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faith.

These women, who ultimately must raise their children under the Islamic beliefs, can

alternatively convert to the Muslim faith by performing the Shahada ceremony in which the convert accepts Allah and Mohammed as his messenger. Hinduism views marriage as sacramental however Islamic Nikaah (marriage) is a contract to obey Allah. A non-Muslim is expected to take Shahadah oaths before the Nikaah. Shahadah is the declaration that there is no god but Allah and Prophet Muhammad is the messenger of Allah. Associating partners (like Lord Shiva) with Allah, including worship of idols, offering prayers or supplications to anyone, living or dead, is the greatest of all sins. No imam will perform Nikaah without the Shahadah. Hindu wedding is not a valid marriage in Islamic laws. A union of a man and a woman without a valid Nikaah is considered adultery punishable by death. In short, for a Hindu, conversion to Islam before Nikaah is a must. Hindus do not proselytize and there is no requirement for a non-Hindu to convert to Hinduism before getting married. In most cases, the Muslim may try to convince the Hindu intended spouse to convert to Islam (by Shahadah) just because that is a must requirement of Islam, however, the Muslim does not have to reciprocate because that is not a requirement of Hinduism. Actually, formal religious conversion to Hinduism can be done and the Muslims should be given that option to be fair to both to demonstrate interfaith relationships with equality.

OBJECTIVES OF RESEARCH: 1. To study concept of marriage under Hindu and Muslim law. 2. To do a comparative study of marriage under Hindu and Muslim law.

RESEARCH QUESTIONS: 1. What is the concept of marriage under Hindu and Muslim law? 2. What are the similarities and differences in Hindu and Muslim marriage?

STATEMENT OF PROBLEM
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India being a cosmopolitan country tolerates personal laws of its citizen. As a result each citizen of India is entitled to have his own personal laws inter alia in the matter of marriage and divorce. Hindus are governed by Hindu Marriage Act, 1955 which provides for the conditions of a Hindu Marriage. Muslim marriage, as there is no law requiring registration.. Muslims are governed by their personal laws under which "Nikah" (i.e. marriage) is a contract and may be permanent or temporary and permits a man 4 wives if he treats all of them equally. My research would be based on understanding Hindu and Muslim marriage and to do a comparative study of them.

HYPOTHESIS 1. Islamic marriages are contractual agreements, whereas Hindu marriages are sacrilegious. 2. Inter-religious marriages not allowed under both laws.

RESEARCH METHODOLOGY In order to carry out an extensive Research, the Researcher has espoused the Doctrinal Method of carrying out the Research. Doctrinal Research which provides a systematic exposition of the rules governing a particular legal category, analyses the relationship between rules, explains areas of difficulty and, perhaps, may even predict future developments. The researcher has tried to include rules or provisions or statistics available and applicable in the present scenario. The Researcher has used various sources of which Articles, websites, database are a major role to play. The Researcher has also used various Articles and cases on the aforementioned issue.

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Chapter 1 Marriage under Hindu law

A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage. To make a valid marriage, the parties must be willing to contract, able to contract, and have actually contracted. Hindu marriage is valid legal relationship between a man (at least 21 years) and a woman (at least 18 years) meeting other conditions for valid marriage. Hindu marriage is performed under Shastric Ceremonies and rites as laid down by Shastric Hindu law or is performed under customary ceremonies and rites. However, according to the legal procedure, certain ceremonies are obligatory in the whole of the marriage function to have the marriage considered valid and completely as per the law. All other customs and ceremonies do not have any legal standing as far as the validity of the marriage is concerned. According to Hindu religious texts there are four stages in life: 1. Brahmacharya: Student life 2. Grihastha: Household life 3. Vanaprastha: Retired life 4. Sanyasa: Renounced life Now the Grihastha (house holder) stage is the one where marriage takes place. Customary Practices Related to Marriage Law may be enacted law based on legislation, conventional law based on agreement, case law based on precedent and customary law based on customs. Customs reflect norms and values of the society. Hindu law has always been to a great extent customary. Custom is transcendent law.
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The Smritis and Digests were largely based upon customary law. Even where a custom exits in derogation of a laid down in Smritis, it is nonetheless a source of law governing the Hindus1. The remarkable feature of Hindu law is that though the importance of sacred law is emphasized yet the new development and the local needs are not disregarded and sacred law is subordinated to custom2. In the past, the selection of the couple was based on Shastric ideas. The guardians of the girl should not only see the boys body, but also consider his conduct, family means, education and repute. They should choose one whose age is more than the girl. The boy should be sound in body and in mind and his family should be free from hereditary diseases3. The marriage was compulsory for all the girls except for those opted asceticism. Brahmin girls were married between ages eight and ten from sixth or century onwards up to the modern times. Polygamy was permitted to all who could afford, and it was especially popular among Kshatriyas for political reasons. According to the Manasollasa, the king should marry a Kshatriya girl of noble birth for a chief queen though he is permitted to have Vaishya or Shudra wives for pleasure. Early societies for social as well as political reasons had to have secure means for the perpetuation of the species and an institution to handle the granting of property rights. Marriage handled these needs. Arranged marriages have a history since fourth century in Indian culture. In fact, it is consider as a foundation of the Indian marriage system. The culture of arranged marriages has still survived modernization and industrialization in India. The systems of divorce and registration were not there in the Hindu Customs. But with the advancement of the society and the legal system the concept of divorce was recognized and the concept of registration of marriage was introduced. Systematic Building Up of Law In course of time, the commentaries appear to have acted with ever increasing force to give an impulse to the systematic building up of law. The law was basically and essentially traditional and rooted in customs. As a result, the process of development and assimilation continued and the law had to be gathered having regard to the rules of conduct and practices reflected in the approved usage and customs4. The outstanding feature of the Hindu Marriage Act 1955 is that
1 2

Maynes, Hindu Law and Usage, pg 46, Edn 15th, Bharat Law House, New Delhi Paras Diwan, Modern Hindu Law pg 24, 2004, Edn 19th, Allahabad Law Agency 3 [URL http://marriage.about.com/cs/generalhistory/a/marriagehistory.htm] 4 Mulla, Principles of Hindu Law pg 49, Edn 19th, Vol I, Lexis Nexis Butterworths

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monogamy is now enforced as a rule of law and bigamy is rendered punishable as a crime. The conditions and ceremonial Hindu Marriage are considerably simplified and any two Hindus can solemnize the ceremonial marriage recognized by this act. Under the Special Marriage Act all restrictions on marriage, imposed by law or customs, are removed except as regards certain prohibited degrees of consanguinity or affinity5.

Enactments: Social usage in relation to Hindu marriage has been considerable affected by various legal enactments passed, perhaps right from 1833 when the regulation prohibiting sati was declared. (1) A common form of civil marriage for all communities in India was provided by the Special Marriage Act III of 1872, which made it possible for an Indian of whatever caste or creed to enter into a valid marriage with a person belonging to any caste or creed, provided the parties registered the contract of marriage declaring inter alia that they did not belong to any religion. This Act was amended by Act XXX of 1923; making it possible for Hindus, Buddhists, Sikhs and Jains (but not for Christians, Jews, Mahavardans and Parsees) to declare their religion and yet get their marriage registered. (2) the Child Marriage Restraint Act XIX of 1929, as amended by Act 19 of 1946 prohibited marriages of boys under 18 years of age and girls under 14 years of age (3) The Hindu Marriage between parties (a) belonging to the same gotra or (b) belonging to different sub-divisions of the same caste; and now (4) The Hindu Marriage Act of 1955 which abrogates and modifies all the past laws. It has made Hindu marriage now strictly adult and monogamous; has done away with the caste and gotra restrictions which limited the field of marriage; and has set down definite conditions under which a degree of nullity and further of dissolution of marriage could be obtained. HINDU MARRIAGE ACT 1955 The Hindu Marriage Act was enacted by the Indian Parliament in the year 1955, with the purpose of regulating the personal life among the Hindus, especially their institution of marriage, its validity, conditions for invalidity and applicability etc. Legislation of laws relating to Hindu
5

The Special Marriage Act, (III of 1872) section 2(4) and provisos 1 and 2.

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marriage began from the year 1829 when sati was abolished by law and\ declared an offence. However, the Hindu Marriage Law is been getting amended as the social and political changes took place and more and more rights were introduced to provide differing social status to individuals. Finally, in 1955 the Hindu Marriage Bill was introduced in the Parliament and was passed by both the Houses of Parliament. There are many salient features in the provisions of the act that makes and even prompt a person to consider it as rather conservative. The underlying note or we can say that the lifeline that runs throughout the act is that it duly recognizes the religious sentiments and values of the Hindus which they respectfully cherish and consider as valuable. Accordingly the Hindu Marriage Act has considered and treated the institution of marriage among the Hindus so sacrosanct as it evolved through ages among them, duly recognizing their time immemorial customs, traditions, shastras that include their rituals and other practices as practiced and evolved by them over a long period. Above all the act by covering and encompassing all the people from the modern offshoots of Hinduism like Prarthana Samaj, Arya Samaj and Brahma Samaj also has a modern look by duly recognizing those modern offshoots of Hindu religion. Applicability: The Act applies to: Any person who is Hindu, Buddhist, Jain or Sikh by religion. Any person who is born to Hindu parents. Any person who is not a Muslim Christian, Parsi or Jew, and who is not governed by any other law. The Act does not apply: To persons who are Muslims, Christians, Parsis or Jews by religion. To members of the scheduled tribes coming within the meaning of clause (25) of Article 366 of the Constitution of India unless the Central Government by notice otherwise directs.

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It would be pertinent to mention the remarkable changes in ancient Hindu Law in India through the Hindu Marriage Act-1955: 1. Inter marriage between persons of different castes is not prohibited. 2. Monogamy which is essentially the voluntary union for life of one man with one woman to the exclusion of all others is now enforced by legislation. 3. Bigamy has been made punishable as an offence. 4. The conditions and requirements of a valid marriage have been considerably simplified. 5. Several matrimonial reliefs e.g., restitution of conjugal rights, judicial separation, nullity of marriage and divorce have been provided in this Act. It is a matter of great regret that the Hindu women of our country fail to avail this kind of opportunity due to the lack of proper legislation. The concept of Solemnization has been there in the Hindu customs but the legal recognition to divorce and the concept of registration was introduced in the Hindu Marriage Act 1955 for the first time. The three are discussed in detail in the following paragraphs: SOLEMNIZATION The word solemnized means to celebrate marriage with proper ceremonies and in due form. According to Hindu religious texts marriage is an act to fulfill Dharma (righteous duty), Arth (acquiring material wealth to fulfill household duties), Kama (satisfying righteous desires) and Moksha (achieving liberation or salvation). Both husband and wife are equal partners who have the responsibility to uphold the values and pass it on to the next generation before commencing on to the final journey. In order that the rites and ceremonies of marriage could be regarded as customary, they must stand the test of time and force of law without discontinuance at any point of time. The conditions imposed by the Hindu Marriage Act for a valid marriage, though may look insignificant on a superficial look, actually have the modern elements and characteristics, of course with a far sightedness. So as to solemnize a marriage between two Hindus, the following conditions have been imposed:

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Section 5 of the Hindu Marriage Act 1955 provides the following conditions for a valid marriage: (i) Neither party has a spouse living at the time of the marriage; which actually discourages plural marriages and in the present modern day context, the provision helps to prevent dissemination of incurable diseases like AIDS and other virulent form of venereal diseases in the society. iii) The age of eligibility for getting married is fixed as 21 for bridegrooms and 18 for brides, which actually helps to prevent social evils like child marriages from the Indian Society. iv) Prevents marriages between prohibited degrees of relationships. v) Prevents marriages between Sapindas. The provisions (iv) and (v) have a scientific base because the prevention of a marriage between persons of prohibited degree of relationship or sapindas, will actually prevent the birth of physically deformed children or deaf, dumb and blind children, because the possibility of delivering such children is more in marriages between persons of prohibited relationship and sapindas. As per the Hindu social customs, Hindu marriages are solemnized through religious rituals. In Section 7 of the Act, the ceremonies and customs of a Hindu Marriage are duly recognized, giving a sentimental value to the act. Ceremonies of a Hindu marriage (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies 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. Section 7 of the Hindu Marriage Act recognizes the ceremonies and customs of marriage. Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party. Such rites and rituals include the Saptapadithe taking of seven steps by the bridegroom and the bride jointly before the sacred fire. The marriage
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becomes complete and binding when the seventh step is taken. Even by going a step forward, the act stipulates that the marriage is not valid if Saptapadi is not performed. Thereby the Hindu Marriage Act also recognises the time immemorial customs and rituals followed by the Hindus. Where ceremonies like saptapadi and kanyadaan were not performed and also photographs were not admissible in the court, the marriage was held not solemnized according to the Hindu rights. The expression customary rites and rituals naturally mean such Shastric ceremonies which the caste or communities to which the party belongs is customarily following. The Hindu Marriage Act does not lay down any special form of ceremony which has to be performed in all Hindu Marriages. As a Hindu Marriage is a sacrament the performance of a sanskar the customary religious rite must be observed in order to make a marriage valid.11 REGISTRATION In India, a marriage can be registered under either of the two Marriage Acts: the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954. To be eligible for marriage, the minimum age limit is 21 for males and 18 for females. The parties to a hindu marriage should be unmarried or divorced, or if previously married, the spouse by that marriage should not be alive. In addition, the parties should be physically and mentally healthy and must not be related in a way prohibited by the law. The Hindu Marriage Act is applicable only to the Hindus, whereas the Special Marriage Act is applicable to all citizens of India. The Hindu Marriage Act provides for registration of an already solemnized marriage. It does not provide for solemnization of a marriage by the Registrar. The Special Marriage Act provides for solemnization of a marriage as well as registration by a Marriage Officer. As provided by Section 8 of Hindu Marriage Act 1955: No marriage can be registered unless the following conditions are fulfilled 1. A ceremony of marriage has been performed between the parties and they have been living together as husband and wife. 2. Neither party has at the time of registration more than one spouse living. 3. Neither party is an idiot or lunatic at the time of registration.
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4. The parties have completed the age of twenty one years at the time of registration. 5. The parties are not within the degrees of prohibited relationship. 6. The parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration. Even though the ceremonies make a marriage valid or otherwise in the eyes of law, it is important that the marriage has to be registered by submitting information at the registrars office in the given jurisdiction. Section 8 of the Hindu Marriage Act provides for the compulsory registration of marriages and even stipulates a punishment for violating the provision. This provision is actually an eye opener and it safeguards those hapless persons who may become victims of fraud marriages carefully maneuvered and planned by unscrupulous antisocial elements. The registration of Hindu Marriages is necessary for the purpose of facilitating the proof of Hindu Marriage apart from making available legal remedies such as restitution of conjugal rights and judicial separation to either party on the grounds specified under sections 9 and 10 respectively. Nullity and divorce are the other remedies that could be availed of by either the wife or husband on the grounds contained under sections 11, 12 and 13 of the Act. The above remedies with the exception of divorce will be available for married persons, whose marriage has been solemnized after the commencement of the Act. On the other hand, the divorce proceedings could be taken in respect of any marriage solemnized whether before or after the commencement of the Act on a petition presented by either the husband or the wife on the ground prescribed under section 13. The Act also provides for divorce by mutual consent. Specifics of the Law If a person of Hindu origin (as described within the law) chooses to marry a person who is not Hindu, the non-Hindu spouse must convert. If the other spouse is Christian, they may marry under the Christian Marriage act of 1872, and their marriage would be governed under that act. The third option for mixed religion couples in India is civil marriage. The law states that men must be at least 21 years old to marry, while women must be at least 18. Both potential spouses
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must be of Hindu origin. Another interesting part of the Hindu Marriage Law is that both spouses must be of sound mind and body. They must be mentally and physically able to give consent to marriage and in shape for having children. The provision of section 29(2) of Hindu Marriage Act general terms saves the customary and statutory right to obtain dissolution of a valid Hindu marriage irrespective of when that marriage took place before or after the commencement of the Hindu Marriage Act 1955 and certainly therefore irrespective of whether such a right has been acquired by anyone or has accrued or has become vested in anyone before the date of commencement of that act. Forbidden Practices and Invalid Marriages While ancient Hindu marriage law allowed polygamy, the practice is forbidden by the Hindu Marriage Law of 1955. In fact, it's now an offense that's punishable by Indian law. In a situation where either spouse is found to fall outside of the marriage law requirements, the marriage is considered null and void and is treated as though it never happened. This may occur if they're found to have another living spouse, mental or physical illness or any other predicament which would otherwise prevent marriage under the Hindu Marriage Law. If a woman is married before the age of 18, she may reject the marriage when she turns 15. This would mean that the marriage was never legal and would not be considered divorce, but this would also eliminate her right to alimony. Hindu law has always been to a great extent extraordinary. In certain cases the weight of customary laws was found more than the written text of smritis, the formal law. From this the doctrine of factum valet has come which means for a fact cannot be altered by a hundred texts. Section 2(2) of both Hindu succession act and Hindu marriage act leaves open the door for tribal customary laws. The Hindu marriage act does not apply to the tribal. So there is importance of Hindu marriage customs. The custom of saptapadi has transformed into customary law the seven steps for completion of Hindu marriage. According to Hindu marriage a divorce can only be taken after the decree by a court id given. This is however subject to an exception that if the divorce is sanctioned by the custom it is recognized by the law. According to this act the marriage cannot be held between the parties within the degree of prohibited relationship. Again the proviso leaves open the option to apply custom of marriage within the degree of prohibited relationship.

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Chapter 2 Marriage under muslim law

INTRODUCTION DEFINITION OF NIKAH 1.Preliminary- nikah in pre Islamic Arabia,meant different forms of sex relationship between a and a woman established on certain terms,in pre Islamic days,women were treated as chattels, and were not given any right of inheritance and were absolutely dependent.it was prophet mohammad who brought about a complete change in the position of women. Prophet mohammad placed woman on a footing of almost perfect equality with men in the exercise of all legal powers and functions1.under the muslim law marriage is considerd as civil contract.after the marriage,women does not lose her individuality.she still remains a distinct member of community. 2.Definition- The legal contract between a bride and bridegroom as part of an Islamic marriage; the contract of Islamic marriage; Islamic marriage in general. Nikah is an Arabic term used for marriage. It means "contract".The Quran specifically refers to marriage as "mithaqun Ghalithun,". Which means "a strong agreement". The original meaning of the work nikah is the physical relationship between man and woman. It is also used secondarily to refer to the contract of marriage which makes that relationship lawful. Which of the two meanings is intended can be determined by the context in which it is used. As for the definition of marriage in fiqh, the simple definition would go something like this: "A contract that results in the two parties physically enjoying each other in the manner allowed by the Shari'a." Since this only focuses on one aspect of the marriage contract, Muhammad Abu Zahrah (a modern scholar) defines it like this: "A contract that results in the man and woman living with each other and supporting each other within the limits of what has been laid down for them in terms of rights and obligations." Ibn Uthaimeen takes an even more comprehensive view of the institution of marriage in his definition of it as:

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"It is a mutual contract between a man and a woman whose goal is for each to enjoy the other, become a pious family and a sound society.

ESSENTIAL CONDITION OF NIKAH Nikah is based on few conditions. When these conditions are fulfilled, then a man and a woman are proclaimed as husband and wife and can live together and carry on their marital duties. These are: Essentials of Marriage The essentials of a valid marriage are as follows:(i) 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. (ii) 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. If the Wali says I will marry her to you after two months, there is no marriage. (iii) The parties must be competent. The two parties must be legally competent; i.e. they must be sane and adult. (iv) There must be two male or one male & two female witnesses, who must be sane and adult Mahomedan present & hearing during the marriage proposal and acceptance. (Not needed in Shia Law) (v) Neither writing nor any religious ceremony is needed. Essentials Explored Giving free consent to the marriage personally or through a close relative like father (called Wali). A man and woman say in clear voice three times that they accept (name of the person and his/her father name is called) as their husband/wife. The nikah contract requires the consent of both parties very strictly if they are adults. There is a tradition in some Muslim countries, outside of the religion, to pre-arrange a marriage for young children. However, the marriage still requires consent of the concerned man and woman when they reach adulthood when the wedding actually
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goes ahead. The amount of Haq-e-Mahr (marriage money) is agreed upon, announced, and paid to the bride at the spot or paid in the future.here the concept of marriage is different from other religious marriage.in muslim marriages bridegroom paid the amount of money to the bride,and the amount is known as DOWER. Two adult free men witness the ceremony.or either 1 adult man and 2 women.but in no condition only women can be the witness of marriage.so as minor and insane person can not be the witness of marriage in islam. The nikah is publicised/advertised widely. AIM & OBJECT OF NIKAH Like anything a Muslim does, marriage should only be undertaken after gaining an understanding of all that Allah has prescribed in terms of rights and obligations as well as gaining an understanding of the wisdom behind this institution. Nearly all peoples and all societies practice marriage in some form, just as they practice business (buying and selling). Umar ibn Al-Khattab used to expel people from the marketplace in Madina who were not knowledgeable of the fiqh of buying and selling. Likewise, a Muslim should not engage in something as important as marriage without having understanding of the purpose of marriage in Islam as well as a comprehensive understanding of the rights and obligations which it brings about. One of the principles of Islamic Jurisprudence says that: "The default state of all things is lawfulness until some evidence shows otherwise." Based on this, if new foods are discovered, they are considered lawful, unless there is some specific reason or attribute which would make it forbidden for example if it is causes intoxication. Relations between men and women do not follow this general principle and in fact are opposite to it. The principle is that: "Relations between men and women are forbidden until some evidence shows otherwise." Procreation (Children) One of the most important purposes of marriage is to continue and increase the population of the Muslims. Clearly, this goal could be achieved without marriage, but when actions are undertaken in disobedience to Allah, they do not receive the blessing of Allah and the whole society is corrupted. The Prophet said:

RIGHTS & DUTIES Mutual Rights and Obligations:

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Marriage is a union for life having mutually inclusive benefits and fulfilment for the contracting parties including the following: Preservation of chastity and security of gaze Companionship inside and outside home Emotional and sexual gratification Procreation and raising of any children by mutual consultation Agreement to live together in a mutually agreed country and establish their matrimonial home therein Working collectively towards the socio-economic welfare and stability of the family Maintaining their individual property rights but contributing to the welfare of the family according to their capacity Maintaining social contacts with family and friends mutually beneficial for the family Managing their individual activities/roles inside and outside the home by mutual consultation.

Obligations of the husband: In addition to the mutual duties and obligations, the husband undertakes not to: abuse his wife/child(ren) verbally, emotionally, physically, or sexually desert/be absent from the marital home for more than 60 days unless by mutual agreement withhold economic contribution towards his wife/family sexually transmit disease or other transmissible diseases misuse /interfere with the wifes property.

Obligations of the Wife: In addition to the mutual duties and obligations the wife undertakes not to: abuse her husband/child(ren) verbally, emotionally, physically, or sexually desert/be absent from the marital home for more than 60 days unless by mutual agreement sexually transmit disease or other transmissible diseases misuse/interfere with the husbands property.

COMPOSITES OF MARRIAGE IN ISLAM Mahr4Mahr is the consideration for the contract of marriage between the parties. It may be in the form of money and/or goods given by the Bridegroom to the Bride in consideration for the marriage. It is an essential element of Muslim marriage and is exclusively reserved for the use of the female partner. Payment of Mahr could be immediate (prompt), or deferred. Full Amount of Mahr: Record the total value of the agreed Mahr, e.g., 5,000 in cash, or xyz weight in gold.
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a) Muajjal (Immediate/Prompt): This means the total amount of Mahr payable by the Husband at the time of signing of marriage contract. b) Muwajjal (Deferred): This means the portion of the Mahr which is payable to the wife at a specified point in the marriage or at the time of dissolution of the marriage through divorce or death of the husband. Any deferred Mahr that remains unpaid at the time of dissolution becomes a debt against the former husbands assets. Portion of the Mahr paid at the time of marriage: the amount of money and/or goods received as Mahr at the time of marriage. This does not include general gifts to the bride from the bridegroom and/or his family unless these be expressly included in (a) above as part of the amount of Mahr. WitnessesAccording to Islamic law, a witness should be sane, adult and reliable. This requirement is gender/faith neutral. Hence, the Muslim Marriage Certificate requires to be witnessed by two adult witnesses of good character. TWO men can be the witness ONE man and TWO women can be the witness ONLY women can not be the witness INSANE and MINOR can not be the witness WaliParents are responsible for the upbringing of their children. Out of respect and courtesy it is important that young people involve their parents or guardians throughout the process of marriage. However, parental or guardians legal role finishes when children reach adulthood. Thereafter their role is optional and complementary.

ASPECTS OF MARRIAGE VALID MARRIAGE (SAHIH) Under the Muslim law, a valid marriage is that which has been constituted in accordance with the essential conditioned prescribed earlier. It confers upon the wife; the right of dower, maintenance and residence, imposes on her obligation to be faithful and obedient to her husband, admit sexual intercourse with him & observe Iddat. The lawful obligations which arise after marriage are as follows(i) Mutual intercourse legalized and the children so born are legitimate.
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(ii) The wife gets power to get Mahr (iii) The wife entitles to get maintenance. (iv) The husband gets right to guide and prohibit the wifes movement(for valid reasons only) (v) Right of succession develops. (vi) Prohibition of marriage due to affinity. (vii) Women bound to complete Iddat period & not to marry during Iddat period; after divorce or death of husband. The obligations and rights set between the two parties during and after the marriage are to be enforced till legality. On the basis of a marriage husband and wife do not get the right on one anothers property. IRREGULAR MARRIAGE (FASID) Those marriages which are outcome of failures on part of parties in non fulfillment of prerequisites but then also are marriages; to be terminated by one of the party is termed to be Irregular marriages. They are outcome of(a) A marriage without witness (Not under Shia Law) (b) Marriage with fifth wife. (c) Marriage with a women undergoing Iddat. (d) Marriage with a fire-worshipper. (e) Marriage outcome of bar of unlawful conjunction. An irregular marriage has no legal effect before consummation but when consummated give rise to several rights & obligations. VOID MARRIAGE (BATIL) A marriage which is unlawful from its beginning. It does not create any civil rights or obligations between the parties. The offspring of a void marriage is illegitimate. They are outcome of(a) Marriage through forced consent. (b) Plurality of husband. (c) Marriage prohibited on the ground of consanguinity. (d) Marriage prohibited on the ground of affinity. (e) Marriage prohibited on the ground of fosterage.

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Chapter 3 Comparison Of Marriage Under Hindu Law And Muslim Marriage

Essential Ingredients of a Valid Marriage Essential Ingredients HMA ML

1 2

Bar on inter-religious marriage

Yes (except

Yes where No

Stipulation of prohibited degrees of Yes relationship

custom permits) Section 5(iv)

3 4 5 6 7 8

Ceremonies of marriage

Yes Section 7

Yes-Nikah

Parties to be majors

Yes Section 5(iii)

No

Bigamous marriages prohibited

Yes Section 5(i)

Bigamy permitted for men Yes

Consent of the parties mandatory

Yes Section 5(ii)

The spouses should not be of unsound Yes mind or suffering from mental disorder Marriage should not be solemnized during iddat period Section 5(ii)(a),(b),(c)

Yes

Yes

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Grounds for Annulment of Marriage Grounds

1 Bigamy

HMA
S.5 (i) / S.11

ML
Uncodified

Prohibited degrees of relationship/ S.5 (iv) / S.11 Sapinda

Uncodified

Force

coercion

fraud

/ Yes S.12(1)(c) S.12(1)(a)

Yes Uncodified

misrepresentation 4 Impotency

Unsoundness

of

mind

Mental Yes S.5(ii) / S.12(1)(b) Yes S.12(1)(d)

disorder / insanity / 6 Pre-marital pregnancy

Repudiation of marriage

S.13(2)(iv)

Yes Uncodified

The Islamic and Hindu religions have an array of similarities and differences regarding their customs and laws in relation to the wedding ceremony. Within Islam, the wedding ceremony is believed to be both a religious and social obligation to get married. As a result, there is a great weight placed on religious, social and cultural dimensions of the ceremony which tends to be simple in nature, paralleling Islamic beliefs. Hindus also place a lot of importance on marriage ceremonies which signify customs,

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rituals and elaborate celebrations. However, a key difference lies in the fact that Islamic marriages are seen as contractual agreements, whereas Hindu marriages are perceived to be sacrilegious. Islamic wedding ceremonies or Nikah can be performed in a variety of ways depending on the culture in which they are arranged. For example, Islamic marriages can slightly vary depending on whether they are part of the Asian or Arab world. Typically, Islamic marriages are arranged by the parents of the bride and groom, with the bride and groom having a final say in who they will ultimately marry. The marriage proposal in effect comes from the woman, who contacts the man through a common liaison who tends to be a male relative.

The stringent rules and nature of the Islamic culture propose that Muslim women cannot marry outside their religion. Muslim men however, can marry Christian or Jewish women because they are People of the Book, i.e. those who hold a monotheistic faith. These women, who

ultimately must raise their children under the Islamic beliefs, can alternatively convert to the Muslim faith by performing the Shahada ceremony in which the convert accepts Allah and Mohammed as his messenger. Hindu marriage rituals are formally conducted by a priest. In case of a Muslim marriage, usually a moulana, ( a person well versed in religious norms and practices) conducts the rituals, while kazi, a marriage registrar does the job of formal documentation. Often, the kazi performs the duty of the maulana too. The moulana confirms the consent of the groom by talking directly with him in presence of his relatives and friends while the consent of the bride is taken through an ukil, who is usually one of her senior relatives. A typical Hindu marriage ceremony has six segments prolonged over four days: (1) gaye halud (anointment of the body with turmeric), done on the eve of the auspicious day selected for the beginning of the marriage; (2) vivaha (marriage, or sampradan, handing over bride to the bridegroom), done on auspicious day at an auspicious time; (3) basi-vivaha (stale marriage), organised on the next morning after of the marriage; (4) uttar-vivaha (two-days old marriage), organised on the second day; (5) pak-sparsha (taking rice or food cooked by the wife), observed on the third day; and (6) punar-vivaha (re-confirming marriages), observed on the third day, or on an auspicious day after the first menstruation of the wife after marriage. Gaye halud and the viva -ha are common in Muslim marriages although the rites and rituals vary in different areas and among different classes of people.
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Chapter 6 Case laws

Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra & Anr on 1 February, 1965 Appellant No. 1 was convicted of an offence under s. 494 I.P.C. (and appellant No. 2 of abetting him) for going through a marriage which was, void by reason of its taking place during the lifetime of a previous wife. It was contended on behalf of the appellants that in law it was necessary for the prosecution to establish that the alleged marriage had been duly performed in accordance with the essential religious rites applicable to the form of marriage gone through. On the other hand it was urged by the State that for the commission of an offence under s. 494, it was not necessary that the second marriage should be a valid one and a person going through any form of marriage during the life-time of the first wife would commit the offence; and that in any event, in the present case the rites necessary for a 'Gandharva' form of marriage, as modified by custom prevailing among Maharashtrians, had been duly observed. For a marriage between two Hindus to be void by virtue of s. 17 of the Hindu Marriage Act, 1955, two conditions are required to be satisfied, i.e. (a) the marriage is solemnised after the Act; and (b) at the date of such marriage, either party has a spouse living. Unless the mar- riage is celebrated or performed with proper ceremonies and due form, it cannot be said to be 'solemnised' within the meaning of s. 17. Merely going through certain ceremonies, with the intention that the parties be taken to be married, will not make them ceremonies prescribed by law or approved by any established custom. [839 G-H; 840 A-C] (iii) The two ceremonies essential to the validity of a Hindu marriage, i.e. invocation before the sacred fire and sapatapadi, are also a requisite part of a 'Gandharva' marriage unless it is shown that some modification of these ceremonies has been introduced by custom in any particular community or caste. It was not disputed that in the present case these two ceremonies were not performed when the appellant No. 1 married a second time and the evidence on record did not establish that these essential ceremonies had been abrogated by custom. The prosecution had therefore failed to establish that the second marriage was performed in accordance with the customary rites applicable. [840 H: 84 A-C; 843 E-G]

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Judges are therefore of opinion that the prosecution has failed to establish that the marriage between appellant no. 1 and Kamlabai in February 1962 was performed in accordance with the customary rites as required by s. 7 of the Act. It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law. It follows therefore that the marriage between appellant no. 1 and Kamlabai does not come within the expression 'solemnized marriage' occurring in S. 17 of the Act and consequently does not come within the mischief of S. 494 I.P.C. even though the first wife of appellant no.1 was living when he married Kamlabai in 1 February 1962. The result is that the conviction of appellant no. 1 under s. 494 I.P.C. and of appellant no. 2 under s. 494 read with s. 114 I.P.C. cannot be sustained. We therefore allow their appeal, set aside their convictions and acquit them. The bail bonds of appellant no. 1 will stand discharged. Fines, if paid, will be refunded.

SANGEETA V/S PRESTON GOMES [ In the High Court of Delhi, MAT. APP. 116 of 2010.]

The marriage between a Hindu and a non-Hindu solemnised as per the Hindu rites is neither valid nor the parties can claim any benefits under the Hindu Marriage Act (HMA), the Delhi High Court has ruled. The High Court also held that "mere theoretical allegiance" to Hinduism would not make one a Hindu unless he or she had actually converted to the religion. "Mere fact that the parties had solemnised the marriage as per the Hindu rites and ceremonies would not attract the applicability of the Hindu Marriage Act as the mandate of the law is that marriage has to take place between two Hindus," said Justice Kailash Gambhir in a recent judgement.

The court dismissed a petition filed by a woman, who sought divorce under the HMA, claiming that her marriage with a Christian had taken place at Arya Samaj temple as per Hindu rituals in 2007 and said the parties were required to be Hindu at the time of solemnisation of marriage.

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"It is imperative to prove that both the parties were Hindus at the time of the solemnisation of marriage," the court said. The court rejected the woman's claim that her husband had converted to Hinduism as she failed to furnish any evidence to substantiate her claim. "A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. The conversion from one religion to another religion is a very major decision in one's life and for proving such a conversion, it is incumbent upon the appellant to place on record complete facts and documentary material, if any, to satisfy the court that based on such facts and supporting material, the appellant had undergone change of religion." The ruling came on a petition filed by Sangeeta, who challenged the family court's March 2010 order dismissing her divorce petition on the ground that her husband Preston Gomes is a Christian and there was no evidence to prove that he converted to Hinduism

Sikander Vs. Shamim [IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR] DATE OF JUDGMENT : March 16, 2012 PRESENT Brief facts of of the case are that respondents filed a suit for declaration and annulment of marriage before the Civil Judge (Jr. Dn.), Churu stating therein that she married 2 with the appellant in the year 1999 at Churu and, at that time, her age was 10 years and she never consummated the marriage and, thereafter, and upon attaining the age of 16 years, the respondent informed her mother and father verbally that she has never accepted appellant Sikander as her husband and she wants to repudiate the marriage. It is also stated that on attaining the age of 18 years, the respondent started understanding the implication of marriage and she sent a registered notice informing that she is repudiating the marriage with the appellant. In the reply to the notice, the appellant informed the respondent that he shall initiate the proceedings for restitution of conjugal rights, therefore, the present suit was filed by the respondent with a prayer to pass decree for divorce.

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In the suit filed by the respondent, the appellant filed his reply and averred that after marriage the respondent once came to his house and marriage was consummated between appellant and respondent after attaining the age of majority by both of them, therefore, after attaining the age of majority the respondent met him on many occasions and assured that she shall stay with him as his wife; but, inspite 3 of making all efforts to bring her home the members of the respondent's family assured the appellant that "gone" will be done soon. The appellant also filed suit for restitution of conjugal rights on 21.08.2009. In the suit filed by the respondent, after framing issues, statements P.W.-1 Shamim and her mother P.W.-2 Hazra were recorded and, in the suit filed by the appellant, the appellant got himself examined as P.W.-1; and, thereafter, the learned trial Court decided both the suits jointly vide judgment and decree whereby the suit filed by the appellant for restitution of conjugal rights was dismissed but the suit filed by the respondent for divorce was decreed in her favour. Against judgment dated 23.01.2011, an appeal was preferred before the Addl. District Judge, Churu and the learned appellate Court dismissed the appeal vide judgment dated 17.01.2012. Both the above judgments are under challenge in this appeal. In this second appeal, learned counsel appearing for the appellant submits that the trial Court has committed a grave error while not giving finding in the suit issue-wise, so also, the trial Court failed to consider that the respondent 4 herself has stated in her cross-examination that prior to giving notice in the year 2009 she never sent any notice and, at the time of sending the notice, the age of the respondent was 20 years; therefore, on the basis of said position, the respondent herself was not entitled to exercise the option of puberty under Section 2 (VII) of the Dissolution of Muslim Marriage Act, 1939, in which, it is specifically provided that option of puberty is to be exercised and dissolution of marriage by a muslim woman is required to be done before attaining the age of 18 years. Therefore, in view of the above position, it is clear that the respondent was legally barred to exercise the option of puberty after attaining the age of 18 years which is not exercised by her till attaining the age of 20 years. Thus, as per law, the respondent was debarred to exercise the option of puberty but the learned Courts below did not consider this aspect of the matter in right perspective, therefore, both the judgments are required to be quashed. Learned counsel for the appellants submits that the finding given by the trial Court for denial of decree for restitution of conjugal rights in favour of the appellant is not based upon sound appreciation of evidence, therefore, 5 substantial
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question of law is involved in this second appeal which requires consideration for adjudication. In support of his contentions, learned counsel for the appellant placed reliance on two judgments of this Court reported in 2006 WLC (Raj.) UC 450 and 2009 (1) DNJ (Raj.) 471. After hearing learned counsel for the appellant, I have perused the judgments passed by both the Courts below. It is true that issues were framed in both the suits filed by the appellant as well as respondent, for restitution of conjugal rights and for divorce respectively. Upon perusal of the judgment it is revealed that it is specifically observed by the trial Court while adjudicating the suits that issues No.1 and 2 of suit No.46/09 and issues No.1, 2 and 3 of suit No.36/09 are based upon same facts, therefore, while consolidating all the issues both the suits were decided by the trial Court. In my opinion, no illegality has been committed by the trial Court while deciding both the suits for which separate issues were framed because the facts of the case are same with regard to marriage and grounds taken by both appellant and respondent in their respective written statements, therefore, there is no substance in the argument advanced by learned counsel for 6 the appellant that there is illegality in not deciding both the suits while giving issue-wise finding. In this view of the matter, contention of learned counsel for the appellant is hereby rejected. With regard to ground taken by the appellant that as per Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 the respondent was required to exercise the option of puberty before attaining the age of 18 years. I have perused the finding given by the trial Court as well as appellate Court for the above ground. It is admitted position of the case that there is pleading in the suit filed by respondent Shamim that at the time of marriage in the year 1999 she was 10 years' old and not understanding the meaning of marriage. It is also stated by her that she did not live as wife with the appellant and no consummation of marriage took place before 16 years of age and through her father and mother orally she informed the appellant that she is not accepting the appellant as her husband; now, she is major and understands the meaning of marriage but no information was received from the appellant, then, she gave registered notice on 20.05.2009, in which, a threat was given by the appellant and he informed that he is going to file suit for restitution of conjugal rights and she cannot dissolve the marriage. The above finding of fact has been upheld in appeal by the first appellate Court below. On the basis of the above factual aspect of the matter, the impugned judgments passed by the Courts below are in tune with the judgments cited by learned counsel for the appellants, reported in
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2006 WLC (Raj.) UC 450 and 2009 (1) DNJ (Raj.) 471 because, on factual aspect of the case it cannot be said that before attaining the age of 18 years the respondent did not exercise the option of puberty. In this view of the matter, no substantial question of law emerges in this second appeal for consideration. Accordingly, this second appeal is hereby dismissed. (Gopal Krishan Vyas) J.

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Chapter 5 Conclusion
A marriage is a contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage. To make a valid marriage, the parties must be willing to contract, able to contract, and have actually contracted. India being a cosmopolitan country tolerates personal laws of its citizen. As a result each citizen of India is entitled to have his own personal laws inter alia in the matter of marriage and divorce. Hindus are governed by Hindu Marriage Act, 1955. Hindu marriage is valid legal relationship between a man (at least 21 years) and a woman (at least 18 years) meeting other conditions for valid marriage.Hindu marriage is performed under Shastric Ceremonies and rites as laid down by Shastric Hindu law or is performed under customary ceremonies and rites. Muslims are governed by their personal laws under which "Nikah" (i.e. marriage) is a contract and may be permanent or temporary and permits a man 4 wives if he treats all of them equally. To have a valid "Nikah" under the Muslim Law, presence of a Qazi (Priest) is not necessary. Merely a proposal in the presence and hearing of two sane males or one sane male and two sane female adults, all Muslims and acceptance of the said proposals at the same time constitute a valid Nikah under the Muslim Personal Law. The above research prved both my hypothesis correct, that is1. Islamic marriages are contractual agreements, whereas Hindu marriages are sacrilegious. 2. Inter-religious marriages not allowed under both laws.

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References
Maynes, Hindu Law and Usage, Edn 15th, Bharat Law House, New Delhi Paras Diwan, Modern Hindu Law 2004, Edn 19th, Allahabad Law Agency Mulla, Principles of Hindu Law, Edn 19th, Vol I, Lexis Nexis Butterworths [URL http://marriage.about.com/cs/generalhistory/a/marriagehistory.htm]

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