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A look at Indian marriage laws as a ruling from Allahabad Court says that the requirement for publishing details in an interfaith marriage violates right to privacy.
Marriage and religion are two important aspects of social life in India, and with the recent debates on inter-faith marriage laws, the issue has yet again occupied the centre stage.
Marriages in India are legalised under various Indian marriage laws pertaining to various personal laws of religions, while inter-faith marriages in India are legalized under the Special Marriage Act which has been considered a breakthrough in the legal system. Below is a brief description of various ways of marrying in India.
Codified in 1950, the Hindu Marriage Act applies to all persons except Muslims, Jews, Christians and persons of Scheduled tribes.
Under the Hindu Marriage act the man and the woman shouldn’t be blood relatives for some specified generations otherwise permitted by historical traditions. Moreover, Hindu Marriage Act makes religious rites and ceremonies like Saptpadi etc. necessary for legalizing a marriage. This act is thus a mixture of religious and legal forces in the society.
However, overtime various scholars of Indian marriage laws have expressed their disagreement over, and highlighted various shortcomings in the HMA. For example, Section 9 of the HMA envisions restitution of conjugal rights thereby forcing sexual cohabitation. The HMA also gives legal authority to bigamy under certain conditions thereby reiterating its patriarchal character.
Marriage in the Muslim community doesn’t require any religious ceremonies or rites and is a civil contract which requires an offer and an acceptance. The role of consent is of utmost importance in this marriage. The rules are governed by Shariat Application Act 1937 which requires the groom to provide a dower to the bride.
The act also allows the man to keep upto four wives without the consent of the first wife. It however also necessitates fair and equal treatment of all the wives. Although divorce can be taken under Talaq-e-Hasan or Talaq-e-Ehsaan by women, but the law also imposes three menstrual cycles as the period of reconciliation. Triple talaq which has been a point of contention among feminist scholars has been banned by the Supreme Court in 2017 despite its sanction under the Hanafi School.
Rules of marriage in the Christian Community are driven by the Christian Marriage act of 1872 which applies to entire India except Travancore, Cochin, Manipur and Jammu Kashmir. The act has laid out the condition that both the parties should be Christian and the marriage should be solemnized by an ordained priest in a Church unless one is unavailable within 5 miles.
The act also allows a minister of religion or a marriage registrar to legalise the marriage under the act. The marriage needs to take place between 6AM to 7PM in a church where a standard form of worship takes place. After severe criticisms, the act has been amended in 2001 to facilitate easy divorce for women.
The rules of the Parsi community are governed by the Parsi Marriage and Divorce Act of 1936. The act necessitates the requirement of a priest and two parsi witnesses. Despite having a religious blessing ceremony, the marriage is more of a civil contract in the community.
If a spouse converts their religion, it can be a substantial ground for terminating the marriage. The act also establishes separate courts for the adjudication of divorce cases.
Regarded as one of the most liberal and progressive Indian marriage laws, the SMA allows inter-faith marriages. Under this act a man and woman from any religion, caste or faith can legalise their marriage. However, under this act the name, address and photos of the couple has to be sent to the marriage registrar 30 days prior to the wedding and has to be displayed publically.
This public display often invites the attention and hinderance of communal vigilantes and other elements who do not approve the marriage.
The Allahabad Court has ruled recently, that this ‘mandatory publication’ of the notice of intended marriage under the Special Marriage Act violates right to privacy.
Marriage and community are two sacred things in the social setting of India. Indian legal system has evolved and incorporated various peronsal laws as an outcome of the mix of modernity and tradition. While acts like SMA provide a breath of fresh air, the religion specific laws are being attacked by feminists for their degradation of women and their rights.
Political Science Research Scholar. Doesn't believe in binaries and essentialism. read more...
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