Hindu Muslim Christian Marriage Acts PDF

UNIT 3 LEGAL ISSUES INVOLVED IN MARRIAGE Contents 3.0 Objectives 3.1 Introduction 3.2 Christian Marriage Law 3.3 Muslim Marriage and Divorce Act 3.4 Special Marriage Act, 1954 3.5 Hindu Marriage Act, 1955 3.6 Let Us Sum Up 3.7 Suggested Readings 3.0 OBJECTI...

UNIT 3 LEGAL ISSUES INVOLVED IN MARRIAGE Contents 3.0 Objectives 3.1 Introduction 3.2 Christian Marriage Law 3.3 Muslim Marriage and Divorce Act 3.4 Special Marriage Act, 1954 3.5 Hindu Marriage Act, 1955 3.6 Let Us Sum Up 3.7 Suggested Readings 3.0 OBJECTIVES Times are changing and what was sacred in earlier times, no more has the social sanction to retain that position any longer. Marital relations break up faster today and it throws up various issues that need to be settled in a definite manner. The widespread breakdown in marriage relations make it necessary for us to know and understand the painful situations one may have to face in married life and what are the remedies available to the parties in law. After studying this unit, you will have a clear picture of certain problems that may crop up in marriage and how they are taken care of by laws. The unit will help you to:  understand the provisions in the Hindu Marriage Act, 1955;  understand the provisions in the Christian Marriage Act, 1872;  understand the provisions of Special Marriage Act,1954; and  understand the issues regarding Muslim marriage, divorce and custody of children. 3.1 INTRODUCTION Marriage is treated as sacred by our society from ancient times. Strict rules were laid down about female morality, kinds of marriage, marriage ceremonies, monogamy as a rule, marital duties, roles and duties of sons, etc. by the Hindu society. After india became independent in 1947, various laws were enacted by our Parliament to amend and codify laws relating to various groups within the country. The important ones amongst the said Acts are: 27 Major Problems in Marital Indian Christian Marriage Act, 1872 Life Muslim Dissolution of Marriage Act, 1937, etc. The Hindu Marriage Act, 1955 Special Marriage Act, 1954 Divorce Act, 1869 (Previously known as Indian Divorce Act) Parsis Marriages and Divorce Act, 1936 Of these, the Hindu Marriage Act is definitely the most important in its reach, as it governs more than 85 per cent of our population. It covers all people who are not Muslims, Christians, Parsis and Jews. Issues that come up for consideration under this Act are: Restitution of Conjugal Rights, Judicial Separation, Divorce, Maintenance, Custody of Children, etc. 3.2 CHRISTIAN MARRIAGE LAW The provisions of Christian personal law in regard to marriage are to be found in the Indian Christian Marriage Act, 1872. The Act applies to all Christian marriages solemnized in India, whatever be the nationality or domicile of the parties. Section 4 of the Act provides that every marriage between persons “one or both of whom is or are Christian or Christians” shall be solemnized in accordance with Section 5 of the Act. Otherwise, the marriage shall be void. Persons Authorized to Solemnize Marriage Marriages under the Indian Christian Marriage Act, 1872 can (under Section 6) be solemnized-- a) by a person who has received Episcopal ordination, b) by a clergyman of the Church of Scotland, c) by a licensed Minister of religion, d) by a Marriage Registrar appointed under the Act, or e) by a person licensed under the Act to grant a certificate of marriage between Indian Christians. Forms of Marriage A reading of several provisions of the Indian Christian Marriage Act will show that the Act contemplates forms of marriage, which are purely religious or purely secular, as well as marriages, which are of a mixed character. Marriage Registrars The State government appoints one or more Christians either by name or by office, to be Marriage Registrar for any district under the Indian Christian 28 Marriage Act. Place of Solemnization The Act, as such, does not lay down the place of solemnization. However, since the marriages of certain categories are solemnized according to the rules, rites, ceremonies and customs of the particular Church by clergymen, those marriages will be solemnized only in the Church. Check Your Progress I Note: Use the space provided for your answer. 1) Who can solemnize a Christian marriage?.............................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................. 3.3 MUSLIM MARRIAGE AND DIVORCE ACT In general, Muslim law is applied to every Muslim by the courts. A Muslim is one who believes that there is only one God and that Muhammad is His Prophet. Marriage: Concept and Ceremonies In Muslim law, marriage or nikah is a civil contract, which has for its object the procreation of children. Marriage, according to the Mahomedan Law, is not a sacrament by a civil contract. All the rights and obligations it creates arise immediately and, are not dependent or any condition precedent, such as payment of dower by a husband to a wife. Ceremony The essential ceremony of a Muslim marriage is a proposal from one side and its acceptance by the other side (ijab wa Kabul), or declaration and acceptance. The proposal and acceptance must be made at one and the same meeting. No particular form is prescribed for the proposal and the acceptance. The proposal and acceptance can be made orally. Religious Ceremonies No religious ceremonies are required for the legal validity of a Muslim marriage, though it is a usual practice to recite some verses from the Quran. The presence of a priest is not essential for a Muslim marriage. A Muslim marriage is not required to be registered. 29 Major Problems in Marital Witnesses Necessary for Solemnizing Life According to the Hanafi school of Muslim law, witnesses are required. They must be two males, or one male and two females. A marriage not solemnized in the presence of witnesses is “irregular”, though not invalid. The irregularity is cured by consummation. According to the other schools of Muslim law, the presence of witnesses is not essential. Rules as to Polygamy and Polyandry A Muslim male can have four wives. This is the legal position. However, there are religious mandates that the husband should treat all his wives equitably and if that is not possible, he should not have more than one wife. A Muslim female cannot have more than one husband. Annulment of Marriage Though there is no Muslim Matrimonial Causes Act as such in force in India, a spouse, who can prove that a marriage is void by reason of some rule of Muslim law, can file a civil suit in the competent civil court for a declaration to that effect. The right to get such relief is conferred by the Specific Relief Act, 1963. Judicial Separation Muslim law does not provide for such a relief, and there being no statutory provision to that effect applicable to Muslims, it is believed that a court cannot grant a decree of judicial separation to a Muslim wife or husband. Divorce Muslim law as administered in India provides for: a) extra-judicial divorce at the instance of the husband unilaterally and without requiring any ground; b) extra-judicial divorce at the initiative of the husband under the “constructive” category; c) extra-judicial divorce by mutual consent as confirmed by statute – the Dissolution of Muslim Marriages Act, 1939; and d) judicial divorce at the instance of the wife, on grounds specified in statute – the Dissolution of Muslim Marriages Act, 1939. Extra-judicial divorce at the husband’s instance – category (a) above – is popularly known as Talaq and has received the widest notice. In several oriental countries, restrictions have been placed on this right of the husband. Formula for Pronouncing Talaq Talaq is generally described as in approved form (Talak-i-sunna) or in unapproved form (Talak-ul-bidaat). But the approved form of divorce itself has two sub-soecues – ahsan (simple) and hasan (not so simple). The unapproved form also has many varieties. A Muslim wife cannot divorce the husband by Talaq. The forms of divorce described in Muslim law as Khula and Miebaraat provide for divorce by mutual consent. Conversion from (Islam) 30 automatically result in the dissolution of marriage in the case of the husband. This position continues even today. In the case of the wife, by Muslim law, it ended the marriage. But now, she has to sue for divorce under the Act of 1939 and must prove a ground laid down in that Act. The Muslim wife can sue the husband for divorce in the competent court under the Dissolution of Muslim Marriage Act, 1939. Custody of Children on Divorce The Dissolution of Muslim Marriages Act, 1939, though provides for judicial divorce at the instance of the wife, does not empower the court to pass orders regarding the custody of children of the marriage. For getting such relief, the party interested in getting custody will have to move the competent court separately by way of a petition under the Guardians and Wards Act. Temporary Marriage Shia law permits a male Muslim to contract a Muta marriage with a Muslim female, or with a female who is a Kitabia or a fire-worshipper. A Shia woman may contract a Muta marriage with a Muslim male only. The period of cohabitation should be fixed (a day, a month, a year, or a term of years), and in some, dower should be specified. A Muta marriage creates no rights of inheritance between the spouses. The children conceived during Muta marriage are legitimate and can inherit from both parents. 3.4 SPECIAL MARRIAGE ACT, 1954 Special Marriage A special marriage (popularly known as a civil marriage or a registered marriage) is a marriage solemnized under the Special Marriage Act, 1954. The main object of the Act is to provide a form of marriage, which is secular in character. Its ceremonies do not depend on the religion of the parties. The entire law relating to the marriage can be gathered from the Act, and there is no need to consult the religious law for deciding questions as to the validity of the marriage or the availability or matrimonial relief. Marriage under the Act is: a) secular; b) statutory; c) uniform throughout India; and d) uniform for all persons who avail themselves of the Act, whatever be their race, religion or caste. A person marrying under the Special Marriage Act cannot have any other spouse, while the marriage is subsisting. The marriage can be terminated only by a petition to the court filed on one of the specified grounds. Remarriage after death of a spouse is, of course, permissible. Persons belonging to different religions can marry under the Special Marriage Act. Persons belonging to the same religion can also marry under the Special Marriage Act. Persons within 31 Major Problems in Marital prohibited degrees of relationship cannot marry. Now such marriages are Life permitted by an amendment made in 1976. The minimum age of marriage under the Special Marriage Act for bridegroom is 21 years and for bride 18 years. Breach of this requirement renders a special marriage null and void (apart from its being an offence under the Child Marriage Restraint Act). Formalities A special marriage is solemnized after 21 days’ notice is given, so that objections, if any, to the proposed marriage may be considered by the Marriage Registrar. Thereafter, the marriage is solemnized in the presence of witnesses by the Marriage Registrar by requiring both the parties to sign the statutory declaration. Registration Registration of a special marriage is automatic at the time of its solemnization, since a certificate is issued on its solemnization. Annulment of Marriage A special marriage may be annulled by the court on the grounds of impotency, insanity, pregnancy of wife at the time of marriage, coercion or fraud. Restitution of Conjugal Rights The aggrieved party can file petition for a decree for restitution of conjugal rights. Such a decree calls upon the other party to resume cohabitation. Non- resumption of cohabitation after such a decree becomes a ground for divorce in itself if one year has elapsed since the decree. Judicial Separation A wife or husband, who does not want immediate dissolution of the marriage but desires to live separately, can seek judicial separation through court, instead of seeking divorce. The grounds for judicial separation under the Special Marriage Act are generally the same as the grounds of divorce. Grounds for Divorce Under the Special Marriage Act, divorce can be obtained by one spouse through court on the ground of the following types of conduct or circumstances of the other spouse: 1) adultery; 2) treating with cruelty; 3) desertion for at least two years; 4) incurable insanity or mental disorder (as defined in the section) being such that the petitioner cannot be reasonably expected to live with the opposite party; 5) leprosy not contracted from the petitioner; 32 6) venereal disease in a communicable form; 7) opposite party not being heard of for seven years; 8) opposite party undergoing a sentence of imprisonment of seven years or more for an offence under Indian Penal Code; 9) non-resumption of cohabitation after a decree of judicial separation, for at least one year; 10) non-compliance with a decree of restitution of conjugal rights, for at least one year; 11) husband being guilty of rape or unnatural sex after marriage; 12) husband failing to pay the wife maintenance ordered by a court. Divorce by Mutual Consent Divorce by mutual consent is available under the Special Marriage Act, 1954. The parties must present a joint petition to the competent court and must have lived apart for at least one year. On such a petition, the court does not grant divorce immediately. The court has to wait for the specified period and the parties must then again apply to the court for the grant of divorce and, in that matter, re-affirm their joint determination to end the marriage. On these formalities being completed, the court can dissolve the marriage by a decree of divorce. The court must be satisfied that consent to divorce has not been obtained by force, fraud or under influence. The second motion must be made not less than six months and not less than 18 months after the initial petition. Jurisdiction of Courts A petition for matrimonial relief under the Special Marriage Act can be filed in the competent court within whose jurisdiction the marriage was solemnized, or within whose jurisdiction the spouses reside together. In addition, if the opposite party (respondent) is residing outside India or has not been heard of for seven years, the petition can be filed in the competent court within whose 33 Major Problems in Marital jurisdiction the petitioner resides. Life Appeals Against the decree passed by the competent court (granting divorce, judicial separation, restitution of conjugal rights or nullity of marriage), an appeal can be filed before the High Court. Maintenance of Spouses A court competent to grant matrimonial relief under the Act is empowered to award maintenance (interim or permanent) in favour of the wife and against the husband for such sums as the court thinks reasonable in the circumstances. Such an order can be passed by the court whether the relief claimed is annulment of marriage, restitution of conjugal rights, judicial separation or divorce. Children Under the Special Marriage Act, the court has jurisdiction to make suitable orders regarding the custody, education and maintenance of children, and also orders as to who shall bear the expenses of maintenance. Check Your Progress II Note: Use the space provided for your answer.. 1) Mention a few grounds for divorce according to Special Marriage Act, 1954............................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................... 3.5 THE HINDU MARRIAGE ACT, 1955 The Hindu law of marriage is contained in the Hindu Marriage Act, 1955, which is an Act of the Parliament of India. The Act came into force on May 18, 1955. The Hindu law does not allow polygamy or polyandry. After 1955, no Hindu male can have more than one wife and no Hindu female can have more than one husband. Other Acts governing Hindu way of life are the following: 1) The Hindu Succession Act, 1956 2) The Hindu Adoption and Maintenance Act, 1956 34 3) The Hindu Minority and Guardianship Act, 1956 There are other enactments in the States as well, apart from the above Acts and local customs. Under this Act, the expression, “Hindu” includes any person who may not be Hindu, but may be a Sikh, Jain and Buddhist. It leaves out the Muslims, Christians, Parsis and Jews from the Hindu fold. Marriage under the Hindu Marriage Act (HMA) is both a sacrament and a contract and it can be solemnized in accordance with customary rites and ceremonies of either party to the marriage. Monogamy is the law and bigamy is punishable under the penal code. Prohibited degrees of relationships are illustrated and marriages that are null and void are clarified. As the marriage is sacred, the law enjoins the spouses to have the company of each other. A Hindu and a non-Hindu cannot marry under the Hindu Marriage Act. But they can enter into what is popularly known as a “civil marriage”. This is performed by the Marriage Registrar appointed by the State Government under the Special Marriage Act, 1954. The Hindu Marriage Act applies to Jains, Buddhists and Sikhs also. However, the Act itself permits customs to operate regarding marriage ceremonies. The bridegroom should have completed 21 years and the bride 18 years of age at the time of marriage. However, violation of this condition does not invalidate the marriage, though the persons infringing the law become punishable in a criminal court. Parties are free to perform Sastric ceremonies or to follow any customary ceremony, which prevails in the caste or community to which, one of the parties belongs. If the Sastric ceremonies are followed, performance of saptapadi (taking seven steps) is essential and the marriage becomes binding on taking the seventh step. A Hindu marriage need not be registered except in those States where the State Government has made it compulsory. Even in such States, non-registration does not invalidate the marriage, though it may attract criminal penalties. Restitution of Conjugal Rights Section 9 of the Hindu Marriage Act deals with the situation when either the husband or the wife withdraws from the company of the other without reasonable cause. As marriage is sacred, the Hindu law enjoins on the spouses to have the company of each other. Section 32 of the Divorce Act and Section 22 of the Special Marriage Act deal with the same situation. The term “Restitution of Conjugal Rights” in the normal sense means restoration of conjugal rights, which were enjoyed by the parties previously. Whether there was reasonable excuse to withdraw from the society of the other is to be proved by the party who withdraws. This withdrawal involves a mental process besides physical separation. Failure to render conjugal duties, refusal to stay together or have marital intercourse with the other person would normally constitute the withdrawal from the society of the other spouse. What would be a reasonable excuse cannot be reduced to a formula. It would vary with times and circumstances and it has to be decided in each individual 35 Major Problems in Marital case. The expression, “any other justifying cause” used in Hindu Adoption Life and Maintenance Act, 1956, and “just ground” used in Section 125 of the Criminal Procedure Code, are relied upon in the interpretation of “reasonable excuse”. Under the old Hindu law, the husband was the breadwinner and the wife used to look after the household duties. The wife used to move to the husband’s family from the time of marriage and the husband used to decide matrimonial home. But times have changed today and now both the husband and the wife have to earn their bread, some times working in different places. This leads to tricky situations as to matrimonial homes and the withdrawal without reasonable excuses. Cruelty, both mental and physical, will be reasonable excuses under this section. From the behaviour of the husband, if the wife fears for her life, it amounts to reasonable excuse. Impotency of the husband or the refusal of the wife to have intercourse with him are just grounds under this section. The aggrieved party can file petition for a decree for restitution of conjugal rights. Such a decree calls upon the other party to resume cohabitation. Non- resumption of cohabitation after such a decree, becomes a ground for divorce if one year has elapsed since the decree. Judicial Separation A wife or husband, who does not want immediate dissolution of the marriage but desires to give to the other party some time, can seek judicial separation (through court) instead of divorce. Under the Hindu Marriage Act, the grounds of judicial separation are the same as the grounds of divorce. After a decree of judicial separation, the parties are not bound to cohabit with 36 each other. The marriage as a legal relationship continues, subject to the above modification. If there is no resumption of cohabitation between the parties for one year after the decree of judicial separation, then either party can petition the court for divorce. This time, no other ground of divorce need be proved and the non-resumption of cohabitation itself constitutes a ground of divorce. Grounds for Divorce Under the Hindu Marriage Act, divorce can be obtained by one spouse through court on the ground of following types of conduct or circumstances of the other spouse: 1) adultery; 2) treating with cruelty; 3) desertion for at least two years; 4) conversion to another religion (of the other spouse); 5) incurable insanity or mental disorder; 6) incurable and virulent leprosy; 7) venereal disease in a communicable form (not contracted from the petitioning spouse); 8) renouncing the world and becoming a Sanyasi; 9) not being heard of for seven years; 10) non-resumption of cohabitation after a decree of judicial separation, for at least one year; 11) non-compliance with a decree of restitution of conjugal rights for at least one year; 12) husband being guilty of rape or unnatural sex after marriage; 13) husband failing to pay the wife maintenance ordered by a court; and 14) mutual consent. Besides the above, there can be customary divorce. Explanation of the Terms Used Adultery “Adultery” means voluntary sexual intercourse between persons not married to each other. Cruelty “Treating with cruelty” is a ground for divorce. Cruelty is not defined in the Act. However, according to current judicial interpretation, it means the conduct of a spouse, which is of such a nature that the other spouse cannot be reasonably expected to live with him or her. Cruelty can be physical or mental. It is not 37 Major Problems in Marital necessary that there should be danger to life or limb. Trifling acts in isolation Life may not amount to cruelty, but, in their totality, they may. Conversion If one spouse, who is a Hindu, embraces any other religion, the other spouse can petition for divorce on that ground. The converted spouse cannot remarry unless divorce is granted to the other spouse. The reason why conversion is recognized as a ground of divorce is that the entire personality of a person undergoes change after conversion and it would not be reasonable to expect the other spouse to live with him or her after conversion. Mutual Consent Since 1976, a Hindu couple can, by mutual consent, obtain divorce through court. The parties must present a joint petition to the competent court. Divorce is not granted immediately. The court has to wait for the specified period and then, the parties must again apply to the court for grant of divorce, i.e. they must reaffirm their determination to seek divorce. Once this is done, the court will grant a decree of divorce. The district court is the competent court for divorce and other matrimonial proceedings. In cities where there is a City Civil Court, that court is vested with this jurisdiction. The State Government can, by notification, invest courts subordinate to the district court with this jurisdiction. A petition for matrimonial relief can be filed in the district court within whose jurisdiction the marriage was solemnized, or within whose jurisdiction the spouses reside or last resided together. Besides this, if the opposite party (respondent) is residing outside India or has not been heard of for seven years, the petitioning party can file the petition in the district court within whose jurisdiction the petitioner resides. A party whose marriage is dissolved under the Hindu Marriage Act can remarry after the period of appeal against the decree has expired. If an appeal has already been filed, the party cannot remarry until the appeal is disposed of. Against the decree of divorce, judicial separation, restitution of conjugal rights or nullity of marriage passed by the district court, an appeal can be filed before the High Court. Against the appellate decree passed by the High Court, there can be an appeal to the Supreme Court in certain cases. The High Court must have certified that the case involves a substantial question of law, which needs to be decided by the Supreme Court. Alternatively, the Supreme Court must have given special leave to appeal. Maintenance of Spouses While passing any decree for matrimonial relief (divorce, judicial separation, nullity of marriage or restitution of conjugal rights), the court can make appropriate orders regarding the maintenance to be paid by one spouse to the other. 38 On the grant of divorce or other matrimonial relief, the court can order either the husband to pay maintenance to the wife or the wife to pay maintenance to the husband, taking into account their respective circumstances. In making an order for maintenance (in a proceeding for divorce, etc.), the court takes into account the financial capacity of the parties (income as well as property), ability to pay, needs of the respective parties, their conduct, etc. The Hindu Marriage Act does not lay down any limit in this matter. The amount depends on the circumstances of the case. Maintenance orders can be varied or rescinded by the court on a change of circumstances. This can be done at any time. An order for maintenance can be rescinded by the court if it is shown that the party in whose favour such order was made has remarried, or is leading an immoral life. If an order for maintenance is not complied with, an application can be made to the court for executing the order by attachment and sale of the property of the person bound to pay maintenance under the order. An order for maintenance by a matrimonial court can be passed only against the spouse. Where maintenance is ordered, its payment can be secured by the court by ordering that the amount ordered shall be charged on specified immovable property of the party ordered. The Hindu Marriage Act empowers the court to direct that during the pendency of the proceeding, the wife or the husband shall pay to the other party as interim maintenance such amount as the court considers reasonable in the circumstances. The amount can be varied if circumstances change. Custody of Children Under the Hindu Marriage Act, the court has jurisdiction to make suitable orders regarding the custody, education and maintenance of children, and also orders as to who shall bear the expenses of maintenance. The paramount consideration according to current judicial attitudes is the welfare of the child. The court will take into account to which parent the child is deeply attached, which parent will be able to bring up the child properly, what are the facilities available for looking after the child, and so on. If the child is old enough to express its preference, the court will take into account that preference, though the court is not bound to follow it in every case. It is permissible to ask for the child to be produced in the court for the purpose. The court will have to take into account all the circumstances of the case before awarding custody to any parent. There are no hard and fast rules. The court sometimes makes an order that while the child will remain in the custody of the mother, the father will have a right to visit the child (say, once a week and spend few hours with the child) or vice versa. This is called the right of “visitation” or “access” to the child. 39 Major Problems in Marital All orders of the court regarding custody, education and maintenance of children Life can be varied or rescinded if there is a change in the circumstances. The paramount consideration is the child’s welfare. The Hindu Marriage Act provides that the annulment of a marriage does not make the children already born or conceived illegitimate. But such children cannot inherit the property of any person except the parents whose marriage is annulled. Proceedings The court is required by the Hindu Marriage Act to attempt reconciliation between the spouses (who are parties to a matrimonial proceeding), consistently with the circumstances of the case. Under the Hindu Marriage Act, the court must sit behind closed doors if either party so desires or the court so orders. When the court sits behind closed doors (in camera), the press cannot publish the proceedings without prior permission of the court. Family Courts are special courts to be established under the Family Courts Act, 1984. They are intended to be manned by specially experienced judges expected to follow a less formal approach than ordinary courts. When a family court is established for an area, the jurisdiction under the Hindu Marriage Act will be transferred to that court. The creation of a family court does not enlarge the grounds of divorce as available under the law. It only modifies the jurisdiction and procedure as explained above. In family courts, lawyers can appear only with the permission of the court. Check Your Progress III Note: Use the space provided for your answers. 1) Which are the religious communities to whom the Hindu Marriage Act, 1955 is applicable?........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................ 2) What do you understand by restitution of conjugal rights?........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................ 40