Brief overview of marital laws applicable to various religious communities in

India.

Hindus, Sikhs, Buddishts and Jains are goverened by the

Hindu Marriage Act is an Act of the Parliament of India enacted in 1955. Sec 2
of the act attempts to define a Hindu by exclusion but does not define who a
Hindu is.

Sec -2 :
(1) This Act applies
(a) to any person who is a Hindu by religion in any of its forms or developments,
including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya
Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who
is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any
such person would not have been governed by the Hindu law or by any custom
or usage as part of that law in respect of any of the matters dealt with herein if
this Act had not been passed.
Explanation. The following persons are Hindus, Buddhists, Jainas or Sikhs by
religion, as the case may be:
(a) any child, legitimate or illegitimate, both of whose parents are Hindus,
Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu,
Buddhist, Jaina or Sikh by religion and who is brought up as a member of the
tribe, community, group or family to which such parent belongs or belonged; and
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or
Sikh religion.

Indian mythology maintains that Svetakentu, son of the sage Uddalak, was the
first man to introduce the institution of marriage.

The biological notion of marriage with powerful instinct of reproduction may be

pertinent in western countries, but is not applicable in India. According to the
Indian concept, marriage is not merely response to the first instinct of man; it is
basically a means to achieve some social goals, viz., social harmony, Mahabharat,
Adiparva, I, 122, 147.

Hindu Law:
Hindu marriage is a samskara or a sacrament. It is a necessary samskara
for every Hindu and only one for a woman. Since it is a sacrament and not a
contract, it creates an indissoluble union between the parties.

Hindus have, from the very beginning of their civilization, regarded marriage as a
"sacrament", as a tie which once tied cannot be untied. The Hindus notion of
sacramental marriage differs from Christian in as much as the Hindu regard
their marriage not merely a sacrosanct and inviolable union, lent also an eternal
union. It is one of the ten "Sanskars" (ceremonies of reformation) which one has
to undergo at the time of entering "Grihastha Ashrams" life of house holder)
[other three Ashrams are first "Brahmacharya"(life of celibacy and studentship),
third "Vanaprastha"(life of recluse) and fourth "Sanyas"(life of emancipation)].
Hindu marriage was regarded as a union which subsists not merely during this
life lent for all lives to come. Prof Derrett puts it succinctly, "the intention of the
sacrament is to make the husband and wife one, physically and psychically, for
secular and spiritual purposes for this life and for after lives"

The husband is declared to be one with the wife. Neither by sale nor by
repudiation is a wife released from her husband. Once only a maiden is given in
marriage. The injunction is "May mutual fidelity continue till death".

The Hindu Marriage Act, 1955

It is a social legislation and is a codified personal law of the Hindus. It has
brought about important changes of far reaching social consequences & in
matrimonial concept of Hindus, undermining its sacramental character. The real
force behind its sacramental character was the concept of indissolubility and
fulfillment of a personal duty imposed by religious faith. This concept of
marriage has been diluted by this Act.

There have been many welcome changes in Hindu Marriage Act, 1955:
Strict monogamy i.e. voluntary union between one man with one woman to the
exclusion of all others, has been enforced under Section 5 (i) and under Section
17. Any marriage during the lifetime of a living spouse, wife or husband, has
been declared null and void.
Bigamy has been made punishable under Section 17 as an offence under the
Indian Penal Code, 1860, Sections 494 and 495.

Conditions for a valid Hindu marriage have been codified under Section 5 and
ceremonies for marriage have been rationalized to suit a diversity of customs, at
the same time excluding any whimsical ceremonies not authorized either by a
prolonged usage or custom of the marrying parties. Sapinda prohibition has been
retained for moral considerations and racial (genetic) purity but has been
curtailed to fifth degree from the father and third degree from the mother in
upward line.

The Act has further enumerated the list of prohibited degree of relations,
between whom a valid marriage could not take place.

Keeping in view the high rate of marital discord, several matrimonial reliefs have
been provided in the Act viz. Restitution of conjugal rights under Section 9;
Judicial separation to help cool down tempers under Section 10; classification of
marriages into void under Section 11 and voidable under Section 12 for nullity of
legally irregular marriages and finally divorce under Section 13 of the Act.

Provision has also been made to help the victim spouse for maintenance pendent
lite and expenses of proceedings (Section 24); permanent alimony and
maintenance (Section 25) and the security of any property presented at or about
the time of marriage (Section 27).
As a humanitarian gesture, legitimacy has been conferred on such children who
are born of void or voidable marriage, under Section 26.
Wide discretionary powers have been conferred on the Courts to pass suitable
orders relating to custody, maintenance, welfare and education of minor children
born of lawful wedlock of the parties to litigation.
The Act has spared those Hindus whose marriage has been solemnized under the
Special Marriage Act, 1954 under Section 29(4). It guarantees additional saving
to a secular marriage.

One of the most significant statutory provisions in the Hindu Marriage Act, 1955,
next to the provision for strict monogamy, was the prescription for age in Section
5 (iii). Originally even the minor was eligible for marriage provided the guardian
gave a willing consent and Section 6 of the same Act defined the role of the
guardian.

This was rectified by the Child Marriage Restraint (amendment) Act, 1978
whereby the age for the bride was fixed at 18 years and that for the bridegroom
as 21 years. Consequently, Section 6 was deleted altogether and Section 5(iii)
and Section 12(i)(c) were suitably amended. But still some ambiguity about age
of the bride and the groom lingered on as the marriage was still considered to be
voidable and not void. This too has been modified further with the legislative
stroke of Prohibition of Child Marriage Act, 2006 where the age of the bride has
been fixed at 18 years and that of the bridegroom at 21 years under Section 2 (a)
of the Act. Stringent punishment for all connected with child marriages has been
prescribed.

Section 18 (a) of the Hindu Marriage Act, 1955 has been modified to make the
offence of child marriage a cognizable and non-bailable offence punishable with
rigorous imprisonment for 2 years and/or a fine of one lac rupees.

Section 4 of the Hindu Marriage Act, 1955 has cleared all ambiguity about the
final authority vested in the Act by erasing the past in one stroke. Any rule or
interpretation of Hindu Law or any custom or usage as a part of that law ceased
to have effect for which provision was made in this Act under Section 4 (a).
Section 8 of Hindu Marriage Act, 1955 paves the way for registration of marriage
under the Act for the benefit of those who may need such certification for their
legal obligations especially for immigration to foreign lands. It is an optional
clause but has become a hot subject after the direction of the Apex Court for
legislation to effect compulsory registration of all marriages irrespective of
religion or caste.

Section 9 empowers either party to the marriage to assert his or her right for
cohabitation and restitution of conjugal life the very essence of marriage.

Section 10 is a legal innovation to help reconciliation and cooling down of

tempers to resolve inter-spousal or intra-familial aberrations by judicial
separation.
Section 11 is a moral provision for enforcing monogamy and intra-familial inter-
personal man-woman relationships by putting a firm seal of validity or nullity of
marriage.

Section 12 is a judicial prescription to annul by a decree of nullity any marriage

solemnized by impotent persons or by force, fraud or concealment of pre-marital
pregnancy.

Section 13 is a symbol of the changing times in society when women have started
asserting their individuality against perceived subjugation and free sexuality
exhibited by modern man, by prescribing grounds for Divorce, the end of a
broken marriage. The amendment of 1964 introduced the breakdown theory of
divorce while the amendments of 1976 introduced the mutual consent theory of
divorce. The Amending Act, 1976 has made adultery, cruelty and desertion as
fault grounds of divorce and has added two more grounds of divorce by the wife
as well as reformed some of the existing fault grounds.

In case the married spouses have separated and are living at two different places
and if they intend to present a petition under the Act for any relief they are
forced to go to the place where they resided together for filing the petition. This
causes hardship, particularly to the wife. Therefore, Section 19 of Hindu
Marriage Act, 1955 has been amended in 2003 to give justice to the helpless wife.
The new amended Section 19 clause (iii), now reads as follows: Section 19 Clause
(iii)(a) in case the wife is the petitioner, where she is residing on the date of
presentation of the petition, similar amendment has been made in Section 31 of
the Special Marriage Act, 1954.

In a recent case before the Honble Supreme Court of India, it was pointed out
that there was utter confusion on the marriageable age of a girl and the legal age
for her to give consent for sexual relations e.g. the Juvenile Act defined the age of
a child below 18 years, the Prevention of Child Marriage Act also fixed the
marriageable age for girls at 18 years and for boys at 21 years while the Indian
Penal Code 1860 recognized the age of consent for sexual relations as 16 years
for a girl under Section 375 defining rape. It was, therefore, pleaded that
suitable amendments be made in the laws relating to the marriageable age of a
girl to bring them in conformity with one another and with the minimum age for
a girl to give her consent for sexual relations.

The Hindu Marriage Act 1955 fixes the marriageable age for a girl at 18 years
and the Shariat Law fixes it at 15 years for Muslim girls. Delhi High Court ruling
of 2005 upheld the validity of a runaway marriage of a girl of 15 years due to the
conflict in various laws, to mitigate the disastrous effects on not only the couple
but also on the child born out of their wedlock. Similar view was taken by the
Himachal Pradesh High Court in the runaway marriage of a 15 years old girl.

Ever since the provision of divorce has been made in the Hindu Marriage Act,
1955, there is a widespread apprehension that it has reduced the Hindu
marriage to a mere contract.
In the Contract Act, 1872, under Section 11, a contract of a minor or of a person
of unsound mind is void. It is a well-settled law that a contract without the
capacity to enter into a contract is totally void, it is void ab initio. However, under
Hindu Marriage Act, 1955, age of spouses and soundness of mind of marrying
spouses are essential conditions for a valid marriage. Still, the marriage of a
person of unsound mind or of a minor, is a valid marriage as violation of Section
5 (ii) and (iii) of Hindu Marriage Act, 1955, does not make the marriage void but
only voidable under Section 12 of the Act. Thus, legally speaking, the Hindu
Marriage Act, 1955 does not consider the question of consent as of much
importance. It does not prescribe the same consequences, which follow the
violation of such conditions in an ordinary contract. It does not mean that
consent and proper age are not important in a Hindu
marriage. In fact, the Act does prescribe that persons incapable of giving a valid
consent or persons suffering from mental disorder or recurrent attacks of
insanity or epilepsy should not marry.

Though Section 12 (1)(c) does lay down that if in a case, consent of either party
to the marriage or the consent of the guardian of the concerned spouse in the
marriage, wherever necessary, is obtained by fraud or force, the marriage is
voidable. The result is that even if one shows that ones willing consent was not
obtained, the marriage is still valid. However, if one proves that ones consent
was obtained by fraud or force, then the marriage can be annulled as voidable by
the petition of the party whose consent was so obtained but mere absence of a
consenting mind will not make the marriage as invalid.

In case of non-age, according to the Act, it still maintains continuity with the
ancient Hindu Law under which such marriages were valid. Such a marriage if
solemnized, it will be a valid marriage in law.
It has been observed that sacramental nature of a Hindu marriage under the Act
has been diluted to a great extent. Firstly, by recognizing divorce, the
indissoluble, eternal and a holy union for life has been destroyed. Secondly, by
allowing remarriage after widowhood or even after divorce by the statute, the
concept of holy union of body and mind has been shattered. Third element of a
sacred ceremony has still been retained, although its religious aspect is of least
importance.

Thus, a Hindu marriage has not remained a sacramental marriage and has also
not become a contract, though it has a semblance of both. It has a semblance of a
contract as consent is of some importance; it has a semblance of a sacrament as
in most marriages a sacramental ceremony is still necessary.
It must be borne in mind that there is a social interest in the preservation and
protection of the institution of marriage. This is the main reason why the
institution of marriage is hedged in with all round protection by multifarious
laws. It is, therefore, inevitable to consider marriage as a special contract and
being a special contract, the marriage should not be put to an end like an
ordinary contract.

The Union Cabinet has recently approved amendment to the Protection of

Children from Sexual Offences Bill, 2011, which would make sexual contact with
a girl below the age of 18 a criminal offence, even if it is consensual, punishable
with life imprisonment.

Chapter 5Concept of Marriage under other Personal Laws

5.1. Concept of Marriage under Muslim Law

Muslim law in India means that portion of Islamic Civil Law which is applied to
Muslims as a personal Law.1 It consists of the injunctions of Quran, of the
traditions introduced by the practice of the Prophet (Sunna), of the common
opinion of the jurists (Ijma), of the analogical deductions of these three (Qiyas),
and of the pre-Islamic customs not abrogated by the Prophet Mohammad.
Further, it has been supplemented by the juristic preference (Istihsan), public
policy (Istilah), precedents (Taqlid) and independent interpretation (Ijtihad). It
has been further supplemented and modified by State Legislation and modern
judicial precedents of the High Courts and the Supreme Court of India and also of
the Privy Council.
Prophet Mohammad of Islam is reported to have said:
Marriage is my Sunna and those who do not follow this way of life are not my
followers and there is no mockery in Islam.
Man & woman relationship has thus been institutionalized in Islam by this
dictate and whatever has been practiced in Muslim community since ages is the
outcome of their peculiar socio-religious history.

Muslim law is till date uncodified and different set of rules prevail amongst
different sects of Muslims. Polygamy under Muslim law has been accepted
because of social, economic and political reason, which has been sanctioned by
religious mandate. The practice of polygamy derives its validity from the Quran
and it has been transformed into a binding rule of law. The reasons for
permission to marry up to four wives in exceptional cases were structured in the
society itself, which perpetuated its existence.

The translation of the Third Verse (AL NISA, verse 3), of the Quran reads as
follows: and if you fear that you cannot act equitably towards orphans, then
marry such women as seems good to you, fear that you will not do justice
(between them), then (marry) only one or what your right hands possess, this is
more proper that you may not deviate from the right course.
Sheikh Kidwai3 states, these verses were revealed after a murderous battle the
Battle of Ohud. Several male Muslims were killed which resulted in the
curtailment of the Muslim male population. Numerous young widows and girls
were in need of protection. Thus to safeguard their interest as well as to remove
the imbalance in the structure of society, polygamy became necessary. The
problem of unmarried mothers and war babies aggravated the situation
further. At that time simple life for a woman was not a natural life, a woman in
health and with natural vigor if condemned to simple life, would suffer the
consequences of ignoring the demands of nature. Therefore, Mohammad being a
religious teacher and a moralist, came with a solution.

The civilization changes of modernity are not always reflected in the traditional
institutions like marriage, which have strong cultural history.
Broadly speaking Muslim marriage is a contract, which like any other contract
gets completed by a proposal by the groom and acceptance by the bride or her
legal guardian in the presence of witnesses. This is based upon the concept of
individual liberty, which is the main theme of Muslim jurisprudence, unlike
Hindu law, these formalities of proposal and acceptance are sine qua non under
Muslim law. Muslim marriage is called Nikah which literally means carnal
conjunction. Abdur Rahim4 says, the Mohammadan jurists regard the institution
of marriage as pertaining both of the nature of Ibadat or devotional acts and
maulamaat or dealings among men.

A Muslim marriage requires Ijab or proposal from male party; Qubool or

acceptance from female party; recitation of certain verses from the
Quran/Khutab or sermon declaring the marriage but the Mohammadan law
does not prescribe any service peculiar to the occasion; declaration & acceptance
by the natural legal guardians of the marrying parties before competent and
sufficient witnesses; payment of Dower a sum of money, property, ornaments
or other articles promised by the husband to the wife in consideration of
marriage.

The proposal & acceptance called Ijabe-o-Qabool should be made in the

presence and hearing of two male or one male and one female witness who must
be sane and adult Muslims. These must be expressed at the same meeting. A
proposal made at one meeting and acceptance made at another meeting, do not
constitute a valid marriage. Neither writing nor any religious ceremony is
essential.

Where the words of offer and acceptance are laid down in a written document,
such a document is called Kabin-nama and the witnesses are called vakils. It is a
documentary evidence of marriage. Under the Shia law, witnesses are not
necessary at the time of marriage but are required at the time of divorce. Free
consent in case of adult persons is not only essential for a valid marriage but is
absolutely necessary. Consent by the father is no substitute for the consent by
the girl.

Puberty and majority are synonymous in Muslim law. The presumption of

majority age is 15 years but the Hedaya lays down that the earliest period for a
boy is 12 years and a girl is 9 years.7 In the Shia law female age of puberty begins
with menstruation.

In Abdul Kadir v. Salima,8 it has been laid that a Muslim marriage is a civil
contract upon the completion of which by proposal and acceptance, all the rights
and obligations, which it creates, arise immediately and simultaneously.
Marriage among Muslims is not a sacrament but purely a civil contract and
though solemnized generally with recitations of certain verses from the Holy
Quran yet Mohammadan Law does not positively prescribe any service peculiar
to the occasion.
Fitzgerald observed,Although a religious duty, marriage is emphatically not a
sacrament. There are no sacraments in Islam nor it is coverture.
The traditional Muslim law practiced in India allows marriage not only between
two Muslims (the leading two sects, Sunnis and Shias) but also between a
Muslim male and a non-Muslim female who can be a Christian, Jewish but not a
fire worshipper nor a idol worshipper.

The Muslim Personal Law (Shariat) Application Act, 1937; The Dissolution of
Muslim Marriage Act, 1939 and The Muslim Women (Protection of Rights on
Divorce) Act, 1986 apply to Muslims in India.

5.2. Muslim Marriage compared with other Marriages

A Muslim marriage being essentially a contract differs from a Hindu marriage,
which was regarded as a sacrament and to which great religious sanctity was
attached. A Muslim marriage is treated on the very lines of a contract which can
be made and broken by mere offer and acceptance; Thus:

1. Muslim marriage is a civil contract, whereas a Hindu marriage under the

old Hindu Law was a sacrament. Under the modern Hindu Law marriage
is no longer a sacrament, it has not even become a contract, though it has
the resemblance of both.
2. Payment of consideration in any form is not essential in Hindu Law unlike
Muslim marriages.
3. According to Muslim law, a woman does not by marriage merge her
existence into that of her husband but retains her separate legal status
unlike the Hindu wife. Amongst the Hindus, on marriage the wife passes
from the Gotra or family of her father into that of her husband. A Hindu
wife becomes her husbands helpmate not only in worldly affairs but also
in the performance of religious sacrifices.
4. The Hindu conception of marriage under the old Hindu law was that it
created an indissoluble tie between the husband and the wife. However,
Section 13 of the Hindu Marriage Act, 1955 introduces a vital change. It
gives to both husband and wife the right to petition the Court for divorce
on certain grounds enumerated in the Section. A Muslim marriage on the
other hand is dissoluble. Divorce or Talak in Muslims is easy and at the
personal will of the male even without the intervention of the Court.
Marriage under Muslim Law is terminated on death or divorce.
5. Under Muslim Law, husband can have as many as four wives at a time, but
Section 5 of the Hindu Marriage Act, 1955 prohibits polygamy. A Muslim
marriage differs from marriage under English law. A marriage under
English law is no doubt also a civil contract but it differs from a Muslim
marriage in that it is essentially a monogamous institution. It was
observed in Hyde v. Hyde,10 case that an English marriage is the voluntary
union of one man with one woman to the exclusion of others. This rule of
exclusion applies to the male as well as to the female; while under Muslim
law, only the female is subject to the rule, male being at liberty to take as
many as four wives at a time. Again, English law recognizes the doctrine
of coverture, whereas Muslim does not.
The evil practice of conversion to Islam for the sake of marrying again has caused
a great concern to the Matrimonial law in India. Infact these Mock conversions
take place by taking undue advantage of the Muslim Personal Law, thereby
taking away the protective umbrella of monogamy given to the woman by other
religious personal laws. The non-Muslim husbands have been lured by the
permissibility of polygamy in the Muslim law. However, when a Hindu or a
Christian husband converts to Islam and marries again, it does not ipso facto
dissolve his earlier marriage with the Hindu or the Christian wife as the case may
be. It provides only a ground for divorce to the aggrieved wife but she still
continues to be governed by the rule of monogamy enjoined by her personal law.
A conversion to Islam undergone merely for the purpose of avoiding the
application of Section 17 of Hindu Marriage Act, 1955 and without any bonafide
belief in Islam would be a fraud on the law.

Muslim marriage in form and appearance is contractual but in essence, its nature
is socio-religious as, it creates the rights and obligations of the husband & wife,
confers a definite social status on them, is also a religious duty. It is believed in
Islam that marriage is sunnat muwakkidah this means that it is an act of such a
nature that if a person does it, he gets religious benefits, if he abstains from doing
it, then he commits sin.13

Concept of Marriage under Christian Law

According to the declaration of the Cast Cannubi,14 let it be repeated as an

immutable and inviolable fundamental doctrine that matrimony was not
instituted or restored by man, but God, not by men, were the laws made to
strengthen and force and elevate it but by God, the Author of Nature and the
Christ, our Lord by whom nature was redeemed and hence these laws cannot be
subjected to any human decrees or to any contrary packer even of the spouses
themselves. This is the doctrine of holy scriptures which declare and establish
from the words of Holy writ itself that God is the Author of perpetual stability of
the marriage bond, its unity and its firmness.

According to Canon law, both consent and consummation of marriage are

essential for a valid marriage. Marriage as a conjugal union of a man and a
woman argues only from free consent of each spouses but this freedom relates to
the question whether two persons really wish to enter into matrimony, but once
they decide to do so, the nature of matrimony is entirely independent from the
free will of spouses. The marriage came to be regarded as a sacrament, as an
indissoluble union; only death can put it to an end. Nonetheless, the consensual
aspect of the Christian Marriage has also been emphasized. In 1866, nine years
after coming into force of the Matrimonial Causes Act, 1857, which recognized
judicial divorce, in the Hyde v. Hyde,15 Lord Penzance gave the following
definition of marriage, I conceive that marriage as understood in Christendom
may be defined as the voluntary union for life of one man and woman to the
exclusion of all others.
Christian marriage in India is also a sacramental contract and it is usually
solemnized by a Minister of Religion licensed under the Indian Christian
marriage Act, 1872. It can also be solemnized by the Marriage Registrar.
The Indian Christian Marriage Act, 1872 provides for marriage in a monogamous
form only. Section 60; of the Act lays down the following condition; Section 60(2)
neither of the persons intending to be married shall have a wife or
a husband still living.

Section 4 of the Christian Marriage Act, 1872 states that every marriage between
persons, one or both of whom is or are Christians, shall be solemnized in
accordance with the provisions of the next following Section; and any such
marriage solemnized, between a Christian and a non-Christian, otherwise than in
accordance with such provisions shall be void.

This act is applicable where one of the parties is a Christian. In other words, the
non-Christian party may be a Muslim, a Hindu or a person belonging to any other
religion. This factor gives rise to issues concerning conflict of laws, which are
interpersonal. Indeed it is on the same lines in this respect as that of the Special
Marriage Act, 1954.

Section 5 of the Christian Marriage Act, 1872 solemnization of marriages: by any

person who has received Episcopal ordination. Provided that the marriage
solemnized according to the rules, rites, ceremonies and customs of the Church
of which he is a Minister; by any Clergyman of the Church of Scotland, provided
that such marriage be solemnized according to the rules, ceremonies and
customs of the Church of Scotland; by any Minister of Religion licensed under
this Act to solemnize marriages; by or in the presence of a Marriage Registrar
appointed under this Act; by any person licensed under this Act to grant
certificates of marriage between Indian Christians.

The Christian Marriage Act, 1872 prescribes the rituals and rites like the living
and place for solemnization of marriage quite in detail since marriage amongst
the Christians has been considered to be a sacrament or a holy union. Therefore,
no ground in the Act has been prescribed for the matrimonial reliefs like
dissolution and separation. The Act prescribes penalties for the violation of
certain provisions, which are necessary to be complied with under Section 6 of
the Act. The age for marriage under Section 60(2) of the Indian Marriage Act,
1872, is 21 years for man and 18 years for the woman. Further sub Section (2)
lays down that neither of the persons intending to be married shall have a wife
nor husband still living.

Section 88 of the Act states, nothing in this Act shall be deemed to validate any
marriage which the personal law applicable either of the parties forbids him or
her to enter.

The Divorce Act, 1869 as amended in 2001 is an Act relating to divorce and
matrimonial causes relating to Christians in India.
Concept of Marriage under Parsi Law

The Parsi Marriage is also regarded as a contract though religious ceremony of

Ashirvad is essential for its validity. Ashirvad literally means blessing, a prayer
or divine exhortation to the parties to observe their marital obligations with
faith.

Section 2 of Parsi Marriage and Divorce act 1936 defines a Parsi as Parsi
Zoroastrian, professing Zoroastrian religion. The Act provides for solemnization
of marriages between Parsis only and also provides granting of matrimonial
reliefs such as restitution of conjugal rights, judicial separation, divorce and
nullity. There is no reference to the requirement of domicile in the whole of the
Act for any purpose. In Jamshed Irani v. Banu Irani,16 case it was held that the
word Parsi as used in the Parsi Marriage and Divorce Act includes not only the
Parsi Zoroastrians of India but also the Zoroastrians of Iran. Section 3 lays down
requisites to validity of Parsi marriages. Sub-Section (1) (a) lays that no marriage
will be valid if the contracting parties are related to each other in any of the
degrees of consanguinity or affinity set forth in Schedule I. The marriage is
solemnized under Section 3 (1)(b) of Parsi Marriage and Divorce Act, 1936,
according to the Parsi form of ceremony called Ashirvad by the Priest in the
presence of two Parsi witnesses other than the Priest himself. Section 3 (1) (c),
as amended in 1988, fixes the age for marriage as 21 years for man and 18 years
for the woman.

Section 4 of the Act follows the policy of monogamous marriages only and bars a
Parsi spouse, even if he/she has changed his/her religion, from remarrying
except after the marriage is duly dissolved. However, Parsi law gives equal
treatment to both the sexes. The rights as well as remedies prescribed under
Parsi law are equally available to both husband and the wife. Thus, it is radically
different from Muslim law where the wife has limited rights and remedies
available to her as compared to the husband and is replete with gender
discrimination in favour of Muslim male as against the Muslim female.

Section 5 of Parsi Marriage and Divorce Act, 1936 makes Bigamy punishable. It
states that every Parsi who during the life time of his or her wife or husband,
whether a Parsi or not, contracts a marriage without his or her marriage with
such wife or husband having legally been declared null and void or dissolved,
shall be subject to the penalties provided in Section 494 and Section 495 of
Indian Penal Code 1860.

The Parsi Marriage and Divorce Act 1936 is unique in that it suggests a
distinction between divorce and dissolution of marriage. The Act seems to have
been framed on two underlying principles: Nobody should be allowed to use
conversion to another faith for the purpose of defeating the provisions relating
to monogamy in the law governing such person at present. A marriage
essentially monogamous in its inception cannot become polygamous by change
of faith.

Section 52 (2) provides that a Parsi marrying under 1865 or 1936 Act, even if he
or she were to change his or her religion or domicile shall remain bound by the
provisions of the Act.

Concept of Marriage Under Jewish Law

The making and validity of a contract of marriage between Jews in India depends
wholly on the religious usages of the Jewish faith and is unaffected by legislation.
The law of marriage of Jews is not codified in India. Even today they are
governed by their religious laws.
The book on "Marriage and Divorce" written by David Melzinar is followed in the
courts. The entire law of marriage and divorce among Jews in India has been
discussed by Mr. Justice Crumps in Benjamin v. Benjamin. The Jews regard
marriage not as a civil contract but as a relation between two person involving
very sacred duties.

Marriage in Judaism may not be viewed as an "outward sign of inward and divine
grace", yet it is respected as a sacred institution. The Hebrew religion sees no
conflict between man's duty to his family and man's duty to God and thereby the
highest values of purity, sanctity and stability are vested in the Jewish family
which has been preservative of their religi-moral and socio-cultural treasures,
thereby it become incumbent and significant that laws of the family should
occupy an exalted status in the Jewish Legal Corpus.
Since there is no legislation governing Jewish marriage and divorce we have to
glance and flash through the religious scriptures which is the hidden treasure of
serenity of Jewish family structure of making, sharing and breaking of marriage.
Jewish religious ordinances, beginning with the Old Testament which includes
the Mosaic Code as enunciated in the Pentateuch (the Five books of Moses). The
Old Testament was also called the Written Law. There was a volume of rabbinic
traditions, time hardened customs and practices which were gathered together
along with the old Testament into an encyclopedic work known as Talmud. All
this post- Biblical literature became known as Oral Law.

So Jewish Law like Hindu Shastrik Law (not codified) is enshrined in the
religious books that govern marriage and divorce. It is pertinent to mention here
that the Jews wherever they reside, willingly submit to the civil regulations
regarding marriage and divorce with the Talmudic admonitions:-
''DINA d' malkhuta dina", meaning thereby that the law of the land is binding.
Marriage according to the Bible and Jewish traditions, the entire nation sprang
and developed from a single family and furthermore the development proceeded
not from all the members of the family but from those whose character displayed
trials of nobility and Righteousness. The first injunction in the Bible to man and
woman is:- "Be fruitful and multiply." According to the Old Testament Adam was
sent from the garden of Eden and Eve was sent later on as a companion to Adam
with a motive, "It is not good that a man should be alone; I will make him a
helpmeet for him." ''Therefore shall a man leave his father and his mother cleave
unto his wife and they shall be as one flesh." There lies the concept of Marriage.

The rabbis of the Talmud considered marriage a holy contract, and the
dissolution of marriage an unholy act. They quote the prophet Malachi, . . .the
Lord has been witness between you and your wife of your youth against whom
you have dealt treacherously, though she is your companion, the wife of your
covenant Jewish Oral Law added that, Even God shares tears when anyone
divorces his wife.

Any person may, however, marry under Special Marriage Act, 1954, in lieu of
religious formalities as prescribed by their personal law because this Act is
applicable to all citizens of the country irrespective of their religious affiliations.
It is secular optional law applicable to all Hindus, Muslims, Christians, Parsis and
Jews.

Concept of Marriage under Special Marriage Act --

The main reason behind the enactment of the Special Marriage Act was to
provide a special form of marriage for the people of India and all Indians residing
in foreign countries, irrespective of the religion or faith followed by either party,
to perform the intended the marriage. According to the Act, the bride and the
groom shall observe any ceremonies for the solemnization of their marriage,
provided they complete certain formalities that are prescribed for the marriage,
by the Act[xvii].

The Special Marriage Act 1954 has proved to be beneficial for the NRIs, because
it provides for the appointment of diplomatic and consular officers as marriage
officers (registrars), for solemnizing and registering marriages between citizens
of India, in a foreign country. The Special Marriage Act 1954 is applicable
throughout India, except the state of Jammu and Kashmir. Check out the clauses
of the Act in the following lines.

The Special Marriage Act states that a marriage between two persons can be
legalized, only if the following conditions are satisfied at the time of
marriage[xviii]:
Neither of the two has a spouse living, at the time of the marriage.
Neither of the two is incapable of giving a valid consent to the marriage
due to unsoundness of mind.
Neither of the party has been suffering from mental ailments to such an
extent, that they are unfit for marriage and the procreation of children.
Neither party has been subjected to recurrent attacks of epilepsy or
insanity.
At the time of marriage, the groom should be of twenty-one years of age
and the bride should be of eighteen years of age.
 Both the parties are not within the degrees of prohibited relationship;
provided where a custom governing at least one of the parties permits of
a marriage between them, such marriage may be solemnized,
notwithstanding that they are within the degrees of prohibited
relationship.
If the marriage is solemnized in the State of Jammu and Kashmir, both
parties should be the citizens of India, domiciled in the territories to
which this Act extends.
When a marriage is intended to be performed in accordance with the Act,
the parties of the marriage shall give notice in writing, in the Form
specified in the Second Schedule to the Marriage Officer of the district,
where the marriage is going to be solemnized.
The marriage shall be solemnized after the expiration of thirty days of the
notice period that has been published under sub-section of the Act.
At least one of the parties going to perform the marriage should have
resided for a period of not less than thirty days, immediately preceding
the date on which the notice for marriage is issued to the registrar.
The marriage officer is bound to display the notice of the intended
marriage, by affixing a copy to some conspicuous place in his office.
If the marriage officer refuses to solemnize the intended marriage, then
within a period of thirty days of the intended marriage, either party can
prefer an appeal to the District Court, within the local limits of whose
jurisdiction the marriage officer has his office. The decision of the District
Court, regarding the solemnization of the intended marriage, shall be
final.

Hence it can be said that Special Marriage Act is basically the legislation
formalized to give validity to few specific marriages which are declared as void
or voidable under the provisions of various personal laws. Due to this feature of
the act, it is one of the most secular laws in civil matter of an individual. This step
can further help in strengthening good relationship between various castes and
religions.

Registration of marriage is a mode of proof of marriage. Bombay Registration of

Marriages Act, 1953 was passed for the registration of marriages for all
communities excepting civil marriages. Then The Hindu Marriage Act, 1955 was
passed and Section 8 provided for registration of Hindu marriages. Thereafter,
Tripura in 1957, West Bengal in 1958, Punjab in 1960 Andhra Pradesh in 1965,
Union Territory Chandigarh in 1966, Pondicherry in 1969, Uttar Pradesh in
1973, Karnataka in 1976, Himachal Pradesh in 1996, Haryana in 2001 and
Andhra Pradesh in 2002, legislated to make rules in accordance with Section 8 of
Hindu Marriage Act, 1955. Under the Special Marriage Act, 1954, which applies
to Indian citizens irrespective of religion, each marriage is registered by the
Marriage Officer specially appointed for the purpose. The Foreign Marriages Act,
1969 also similarly provides for registration of marriages. The Parsi and
Christian marriages are governed by Central Acts providing for registration of all
marriages.
The Hindu Marriage Act, 1955, Section 8; The Special Marriage Act, 1954, Section
15; The Registration Act, 1908, Section 6, all provide for registration of
marriages.
The Hindu Marriage Act, 1955, does not make it compulsory to get the marriage
registered. The Hindu Marriage Act, 1955, Section 8, merely exhorts the state
governments to make rules for registration of marriages. Section 8 (5)
specifically lays down that failure to register a Hindu marriage shall in no way
affect its validity.
Chapter III of Special Marriage Act, 1954, deals with registration of marriage
celebrated in other forms. It lays down conditions for registration under Section
15 of this Act while Section 16 lays down the procedure for such registration.
Chapter III of The Foreign Marriage Act, 1969 deals with registration of foreign
marriages solemnized under other laws. Section 17 of the Act lays down
conditions for registration of foreign marriages between parties one of whom, at
least, was a citizen of India and he or she desires, in writing, their marriage to be
registered under this Act.

Section 8 of the Hindu Marriage Act, 1955, empowers the state governments to
make rules for the purpose of registration of marriages as there are various
customary forms of marriage in different communities among the
Hindus and it would be difficult to prove such customary forms. Under sub-
Section (1) of Section 8 of the Hindu Marriage Act, 1955, the parties to any
marriage, may have the particulars of the marriage entered in the register. Sub-
Section (4) provides the legislature to make the marriage register a public
document within the meaning of Section 74 of the Evidence Act 1872 and a
certified copy of such public document can be procured by any member of the
public and produced in proof as evidence of the contents of the register and the
statement contained therein. Sub-Section (5) states that the validity of any Hindu
marriage shall in no way be affected by the omission to make the entry in the
marriage register.

As to registration of Hindu marriage under Section 8 Hindu Marriage Act, 1955,

unlike a marriage under the Special Marriage Act, 1954, there has to be
solemnization of marriage in accordance with provision of Section 7 of Hindu
Marriage Act, 1955 before the same is registered. When only registration under
Section 8 of the Hindu Marriage Act, 1955 is effected without being preceded by
solemnization, the marriage is not there at all. No relationship of husband-wife
comes into being.

As regards Section 15 of the Special Marriage Act, 1954, any marriage celebrated
in any form may be solemnized under the said Act. The effect of such registration
has been detailed in Section 18 of the Special Marriage Act, 1954. There is
distinction between marriage solemnized and deemed to be solemnized under
this Act,.