STATUS OF MARRIAGE IN PERSONAL LAWS
Marriage is generally considered a cultural and legal recognition of union between two people, which binds them with several responsibilities, rights and obligations towards each other and their dependents. The Concept of marriage when tracked to the foundational element can be found to be considered a cultural affair where the definition of marriage provided by religions differ in manner and over the time has evolved to a religion specific in nature. Typically, it is an acknowledgement of the relationship between two people sanctioned legally and culturally after performing the duties in respective manner. With distinct establishment of beliefs the definition of marriage differ from one religion to other from considering marriage as a sacred involvement with divine connect contemplating the two Individuals involved as one, to a contract between two separate identities with no intersecting character but purely an affair of two freely separate individuals. What basically vary as an element in different religions ,which contemplate the status simultaneously, specifying distinct expectancies and criterias? In the article infra, major three religions (Hinduism, Islam and Christianity) will be observed on the note of status culturally and legally.
[ MARRIAGES IN HINDUISM ]
√ Cultural contemplation;
In Hinduism, marriage is considered as a strict holy observance where only after performing several ceremonial rites like Panigrahana (पाणिग्रहण संस्कार), Saptapadi (सप्तपदी) it befits as legitimate. According to Hinduism, this sacrament is one of the most important sacraments out of 10 sacraments that are recognised in Hinduism. It is considered a relationship that lasts for next seven births of the two Individuals (spouses) involved in the relationship, which means that even death cannot separate the couple once they’ve tied the knot.
√ Legal contemplation;
• The Hindu marriage act,1955, Section 5 and 12 – Provide for the appropriate arrangements to have the matter perceived if Hindu marriage is holy observance or agreement whereas the Clause 2 section 5 of the Hindu Marriage Act revolves around the psychological limit of the gatherings. It says that neither gathering to the marriage must be un-equipped for giving a legitimate assent in outcome of unsoundness of brain. Further provision 3 of section 5 observes the legal age to marry as a prerequisite, where the groom has finished the age of twenty-one years and the lady, the age of eighteen years at the time of marriage. • The Indian Contract Act, 1872 , Sections 10 and 11 – Provides, that an agreement involving a minor or unsound shall be void.
• The Hindu Marriage Act,1955, section 12 – A marriage of a minor or unsound individual is voidable and not void.
From cultural perspective, the Marriage is considered sacramental and despite no legal value of the consent of the parties (unsound or minor) ,it will still be considered as valid.
But the scenario is different with the consideration of legal prospects with Section 12 of The Hindu marriage act declaring the marriage without consent as void and The indian contract act 1872 nullifying the value of any type of contract of a person with unsound mind or contract of a minor to void.
√ Judicial contemplation; 1) In Bhagwati saran Singh v. Parmeshwari Nandar Singh 1942 ILR All 518 case, the Court held that a Hindu marriage is not only A sacrament but also a contract. 2) In Purushottamdas v. Purushottamdas, 21 Bom 23 case, the Court observed that the Marriage of Hindu children is a contract Made by their parents.
Hence, the marriage under Hinduism can be concluded as a sacramental affair with some legal bindings, which are necessary for the voluntariness of the parties as well as establishment of equality and freedom in the modern times. The Marriages under Hindu personal laws are not purely contractual but sacred involvement of parties with some legal general bindings, a semblance of both.
[ MARRIAGES IN ISLAM ]
The Muslim personal law basically has derived its means from various sources (mainly holistic) such as: Quran, Ijma, Qiyas, customs, urf, precedents, equity and various legislations with essentials of the marriage in Islam, known as Niqah, being ;
• Capacity of parties to marry.• There must be Ijab (proposal) and Qubool (Acceptance).• Consent of the parties must be free.• A value of consideration, Mehr.• Inexistent legal Impediment.• Sufficient witnesses to Marriage (the status of which differ in shia and sunni Marriages).
√ Classification of marriages in islam;
1) Sahih (valid) – After all the legal requirements are fulfilled and no prohibitions exist to affect the parties, then the marriage is considered correct, ‘sahih’. The prohibitions so mentioned can vary from permanent to temporary. Where, in case of permanent prohibitions the marriage will be void and if the prohibitions are temporary then the marriage is irregular.
2) Batil (void) – A marriage forbidden by the rules of blood relationship, affinity or fosterage, a marriage with the wife of another or a divorced wife during iddah period is considered void which end up creating no rights and obligations towards each other and children born out of such marriages are held illegitimate.
3) Fasid (Irregular) – An irregular Marriage cannot be held lawful but is considered open to rectification which due to temporary errors becomes irregular but after the fulfillment of duties is recognised as a legal one.
4) Muta /nikah e mutah (contractual marriage) – These are temporary contractual marriages, commuted for a limited period of time. Such marriages are practiced by shia muslims (mainly in Iran). In India, temporary marriage is not recognized, although there exists few who contract Muta marriage but such marriages are not enforceable in court.
“Marriage has been defined as a civil contract for the purpose of legalizing sexual intercourse and procreation of children. It is not a sacrament but a contract, though solemnized generally with the recitation of certain verses from the Quran” judgment authored by Justice Rajan
Justice Krishna Iyer in ‘Islamic Law in Modern India‘ considered the concept of Muslim marriage and stated that “in its legal connotation, Muslim marriage is essentially a contract, though marriage as a social institution is regarded solemn all over the civilized world, including the Muslims“. Conclusively muslim law too are strong advocates of legal recognition of wedlock similar to hindu law but differ as islamic wedding has lesser degree of divinity elements and more of legal bond making it a prima facie contract.
√ Case law;
In The case Abdul Rahim Vs Salima ( ILR 1886 8 ALL 149)
Justice Mahmood commented on the nature of Muslim marriage that Muslim Marriage is a civil contract and not a sacrament.
[ MARRIAGES IN CHRISTIANITY ]
A Christian marriage is a covenant (sacred event) not held together by only the two persons who are married but is made between two persons, with God at the center pledging to help the pair hold the covenant together in tough situations of life. Although Christian Marriages in India , which are regulated byThe Indian Christian Marriage Act of 1872, specify some legal prerequisites to be fulfilled to recognise wedding as legal affair but it also at the same time holds the potential to be called sacramental where every individual who performs a marriage ceremony has to appropriately get licensed by the authorities or have their marriage recognized by the church otherwise there are penalties specified in the act that can be attracted.
Deriving the means from the holy book bible, the affair similar to Hinduism is considered not restricted to a contractual event but a divine covenant.
√ Verses from bible ;
• According to Christian Scriptures, marriage was not intended to be a simple contract that can be torn up or broken at will. This covenant was intended to be a lifetime state. In Matthew 19:6: “Wherefore they are no more twain (two), but one flesh. What therefore God hath joined together, let not man put asunder (put in separate pieces).”
• In Ephesians 5:31-32- “For this cause shall a man leave his father and mother, and shall be joined unto his wife, and they two shall be one flesh.
• In Genesis 2:23 Adam says: “This is now bone of my bones, and flesh of my flesh and they shall be one flesh.” Evidently framing it a permanent covenant rather than a disposable contract.
Hence, marriages in Christianity also have some legal prerequisites as age factors, consent and voluntariness to legalize the marriage but can be traced as a covenant of higher degree with divinity as a base. Christian Marriages are not solely contracts but unity of two Individuals with affirmation in the name of Jesus.
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