Marriage and the law: India
This is a collection of articles archived for the excellence of their content. Readers will be able to edit existing articles and post new articles directly |
Contents |
Adults’ right to get married
Nobody has right to interfere: SC
Dhananjay Mahapatra, February 6, 2018: The Times of India
No one, either individually or collectively, has the right to interfere in a marriage between two consenting adults, a Supreme Court bench led by Chief Justice of India (CJI) Dipak Misra said on Monday.
The bench told khap panchayats not to assume the role of conscience keepers of society and said courts would go by the law and not tradition and ‘gotra’ considerations to determine legality of a marriage.
Senior advocate Narender Hooda, appearing for some khap panchayats, said khaps encouraged inter-caste and inter-faith marriages as they had permitted Haryanvi men to marry women from other states, given the skewed sex ratio in the state.
“What the khaps oppose is ‘sapinda’ or ‘sagotra’ marriage between men and women or when they are within prohibited degrees of relationship, a bar which is supported by genetic science. Marriage between close relatives has been described as a disaster genetically. Khaps try to uphold centuries of tradition and act as conscience keepers of society,” he said.
The SC bench asked, “Who has appointed you guardians of society or its conscience keeper? Do not assume that role... If a marriage is not permissible under law, there are courts to annul it. Khaps have no business determining the legality of a marriage.”
SC: Govt not taking honour killing issue seriously
The Supreme Court again said the Centre was not taking the issue seriously when additional solicitor general Pinky Anand sought two more weekstosubmitsuggestions on crimes against inter-caste, inter-faith or ‘sagotra’ marriages. Constituents of gotras are broadly defined as having descended from a common male ancestor with khaps often ruling that marriage within this community is unacceptable.
Social activist Madhu Kishwar intervened and told the court that brutal killing of couples in inter-caste or inter-faith marriages should not be referred respectably as ‘honour’ killing. “Strong action is neededtostop thesehatecrimes. Only 3% of these crimes are because of ‘sagotra’ marriage. Rest 97% is triggered by religion, caste and other issues. Takefor exampletheAnkit Saxena killing in Delhi,” shesaid.
But the court said it was not concerned with individual crimes. “We think we will constitute a high-level police officers’ committee to deal with all these law and order issues and devise a mechanism to protect couples in distress,” the bench said. “We are not concerned with khaps. But we want to makeitclear that no one, either individually or collectively, can interfere in a marriage between two consenting adults,” it added. This drew support from Anand, who said the Centre was in favour of protecting civil and fundamental rights of every individual.
The SC repeatedly reminded all about its ruling in the Nitish Katara murder case. On October 3, 2016, the SC had upheld life sentence to murder convict Vikas Singh and said, “One may feel ‘my honour is mylife’ but that does not mean sustaining one’s honour at the cost of another.”
Age of marriage
2006-06: SC’s ruling for mandatory registration of all marriages
Dhananjay Mahapatra, May 2, 2019: The Times of India
Feuding couple who led to landmark step ditches case
New Delhi:
A Delhi-based couple whose marital discord plea in the Supreme Court led to the 2006 ruling for mandatory registration of all marriages irrespective of religion is no longer interested in pursuing the case.
On the petition of one Seema, the Supreme Court on April 15, 2005, had stayed proceedings in a matrimonial suit filed by her husband Ashwani Kumar, pending before the additional district judge, Delhi. The proceedings remained stayed for the last 14 years as the SC went on a different path.
In its April 2005 order, it had said, “During the hearing of this petition, it appeared to us that in the absence of records relating to dates of marriages and parties to the marriage, problems come up which have farreaching consequences. We, therefore, request the solicitor general to consider whether government orders by way of executive instructions can be issued, on the basis of directions of this court, to various states and UTs to authorise officials specifically to keep record of marriages so that they can be placed as evidence in different proceedings if the necessity arises.” After hearing then solicitor general G E Vahanvati and counsel for states, the SC on February 14, 2006, passed a judgment saying, “We are of the view that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective states where the marriage is solemnised.”
It went on to issue several directions to the states and the Centre over the years and ensured that its judgment for compulsory registration of marriages was implemented. On Wednesday, a bench of CJI Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna found that neither the original petitioner Seema nor the respondent Ashwini Kumar were present in court.
The bench said since 14 years had passed since the court stayed the divorce proceedings, “we do not know whether the parties are interested in pursuing the matter any further”.
Maharashtra standing counsel Nishant Katneswarkar informed the court that as per the records of the case and status reports filed by states, it appeared that most states had implemented the order to compulsorily register marriages.
Finding that prolonging the case, which has been pending for more than 14 years, would serve no purpose, especially when the parties to the marital discord were not interested in pursuing the petition which triggered the chain of events, the bench decided to dispose of the petition. It vacated the 14-year-old stay on proceedings in the additional district judge’s court on Ashwini Kumar’s divorce petition.
2018: 2.3% of under-18 girls married
Ambika Pandit, July 1, 2020: The Times of India
Even though the percentage of women marrying at age 21 years and above is pitched as high as 64.5% at the national level in the Sample Registration System Statistical report released by the Registrar General and Census Commissioner of India, the data for 2018 brings to the fore a worrisome fact that the percentage of girls who were married before reaching 18 years of age was 2.3% — the legal age of marriage for a woman.
Among states the percentage of below 18-year-old married girls ranged from 0.9% in Kerala to 3.7% in West Bengal. After West Bengal the other states with highest percentage of girls married below 18 years was in Rajashtan at 3.5% and Bihar at 3.2%. In rural India, 2.6% girls were married before 18, 37.4% married between 18 to 20 years and 60% at 21 years and above. In urban areas, the girls who were married below 18 years was 1.6%, 23.2% married between 18-20 years and 75.3% married at 21 years or later. At national level, 33.2% were married between age of 18-20 years.
The data shows that the percentage of females marrying at age 21 years also varies from state to state. It was 49.1% in West Bengal to a very high 86.2% in J&K. The data also shows that at the national level, the mean age at effective marriage for females in the year 2018 is 22.3 years and varies from 21.8 years in rural areas to 23.4 years in urban areas. Among the bigger states/ UTs, the mean age varies from 20.9 years in West Bengal to 25.6 years in J&K.
In rural India, 2.6% of girls were married before 18, while in the urban areas of the country it was 1.6%, according to the Sample Registration System Statistical report
Marriage laws
As in 2020
December 2, 2020: The Times of India The many ways to marry in India
At a time when different states are enacting tougher laws for inter-faith marriage, TOI takes a look at the many marriage laws in India. Most of these follow the personal codes of communities but there are also some in the neutral zone of civil law
SPECIAL MARRIAGE ACT
It was enacted in 1954 for any Indian couple, irrespective of community of origin. Inter-faith couples, as well as anyone who wants to opt out of their personal law, can marry under this civil, secular law. In practice, those marrying under this law face many more hurdles than under personal laws. A notice of intended marriage with names, addresses and photos of the couple must be sent to the marriage registrar 30 days before the event, and displayed prominently. Any person can object to the marriage on specified grounds.
This allows families and community vigilantes to interfere with the couple’s plans. Marriage officials also throw their weight behind the families. The Kerala government has recently stopped displaying these notices in the marriage registrar’s office because they are misused for communal discord and targeted harassment. The Supreme Court is currently hearing a challenge to these provisions on the grounds that they conflict with the right to privacy and the right to equality (Hindu and Muslim marriage laws do not have these requirements). For instance, a woman has to be at least 21 to marry under the Special Marriage Act, but only 18 under Hindu personal law.
The special Act provides for divorce by mutual consent, apart from other grounds for dissolution available to both partners, or to the wife alone. There are ongoing appeals in court to make the Special Marriage Act applicable to all, including same-sex couples.
HINDU MARRIAGE ACT
Hindu laws on marriage and divorce were codified in the mid-1950s. The Act also applies to Buddhists and Jains, and anyone who is not Muslim, Christian, Parsi, Jewish or from an exempt scheduled tribe. A man and woman Illustration: Sajeev Kumarapuram from any caste or group can marry under this Act.
The bride and groom cannot be ‘sapindas’ — related by blood within a few generations. This rule does not apply in communities where marrying one’s cousin is customarily permitted.
Solemnising the marriage through customary rites that apply to the bride or groom’s community is central to the Hindu Marriage Act. Mock or improvised ceremonies do not make for a valid marriage. The saptapadi (seven steps taken around the sacred fire) was considered essential in the Act, but other customs can also be established as legal. Arya Samaj weddings have to follow a specified format.
In 2006, the Supreme Court made it mandatory for all marriages in India to be registered. This requires photographs of the ceremony, the invitation and witnesses to the event.
Bigamy is illegal, but it has to be proved that the second wedding involved essential ceremonies. Section 9 allows for the restitution of conjugal rights, which forces sexual cohabitation on an unwilling spouse.
MUSLIM MARRIAGE
Unlike Christian, Hindu or Parsi systems where marriage is a sacrament, a Muslim marriage is a civil contract with no religious ceremonies or writing required. Muslim family law is governed by the Shariat Application Act, 1937, case laws over the years, and custom and fatwa (which are not legally binding).
It requires a proposal (ijab) and an acceptance (qubul). Consent must be free and not obtained under coercion. The contract requires mahr, the dower paid by the groom to the bride.
The groom is allowed to have up to four wives, according to the Quran. The first wife’s approval is not needed, but fairness among all the wives is essential. The consent of the guardian (wali, who must be Muslim) is required in the Shafi, Maliki and Hanbali schools of Sunni law, and recommended in the Hanafi school, but only a precaution in Shia jurisprudence.
Nikah mutah, or temporary marriages, are invalid under Sunni jurisprudence, but allowed in Shia law.
Muslim men may divorce their wives under talaq-i-ahsan or talaqi-hassan forms, depending on how the pronouncement is made, but there is an iddat period of three menstrual cycles, where reconciliation is possible. The husband must pay maintenance to the wife during iddat.
Talaq-i-biddat, or the triple pronouncement in one sitting, is not approved of by clerics, but has been sanctioned in law, especially the Hanafi school. It was barred by the Supreme Court in 2017, the ban further fortified by a law in 2019.
A Muslim woman may divorce on specified grounds (lian) or through khula where she compensates her husband from her property, or mubarat (mutual consent).
CHRISTIAN MARRIAGE
It is governed by the Indian Christian Marriage Act, 1872, with the exception of the Travancore-Cochin area, Manipur and J&K. At least one of the parties has to be Christian and the marriage must be solemnised by an ordained priest, according to the customs of that specific church, or a minister of religion or specified marriage registrar. It has to be solemnised between 6am and 7pm in a church where worship follows standard forms, unless there is no church within five miles. Exceptions are provided in Section 9.
Divorce was traditionally much easier for men than women, until discriminatory provisions were reformed in 2001.
PARSI MARRIAGE
Governed by the Parsi Marriage and Divorce Act ,1936, the marriage must be solemnised by a priest in the presence of two Parsi witnesses. While there is a religious ashirvad ceremony, Parsi marriage is also contractual in nature, like Muslim marriage. The bride and groom cannot be related to each other within a certain degree of consanguinity. Divorce is adjudicated by special Parsi courts, which have a jury system. As in other personal laws, conversion of one spouse out of the religion can be grounds for dissolving the marriage. Scheduled tribes follow their own customary laws.
Registration
UP makes marriage registration mandatory
UP makes marriage registration must, August 2, 2017: The Times of India
The state cabinet approved the UP marriage registration rules 2017, making it mandatory for couples from all religions to get their marriages registered.
The cabinet nod comes in wake of a 2006 Supreme Court verdict which had asked the Centre and state governments to draft rules making registration of marriages compulsory , irrespective of religion and caste.
Since then, marriage registration rules have been implemented across the country barring two states, Uttar Pradesh and Nagaland. Government spokespersons Shrikant Sharma and Siddharth Nath Singh said the rules are expected to be notified in the next few days. After the notification, all marriages taking place in the state will have to be registered.
Previous state governments had desisted from making marriage registration mandatory , mainly because of apprehensions among the Muslim community . Many Muslims have objected to marriage registration on the ground that the nikahnama should not have photographs of the couple.Couples found to have not registered their marriage will be liable to pay a penalty.
Kicking daughter-in law not punishable under Section 498A, IPC
Bhaskar Lal Sharma and daughter-in-law Monica case
Dhananjay Mahapatra, Mar 24, 2010, The Times of India
The Supreme Court agreed to review its own 2009 verdict in the case between Bhaskar Lal Sharma and his daughter-in-law Monica after the NCW, through counsel Aparna Bhat, moved a curative petition requesting reconsideration. Curative petitions normally have a 99% failure rate in the apex court.
A bench comprising Chief Justice K G Balakrishnan and Justices S H Kapadia, Altamas Kabir and Cyriac Joseph entertained NCW’s curative petition and issued notice to both parties — Sharma and Monica. This means the curative petition will now be heard in open court for the parties to point out the anamoly in the July 27 ruling and suggest corrective measures. NCW had reflected the views of CPM leader Brinda Karat who had said the apex court’s decision — that a mother-in-law who kicks her daughter-in law or repeatedly threatens her with divorce attracts no punishment for cruelty under Section 498A of the IPC — would only “further deepen the miseries of women and undo the effect of various legislations passed for the emancipation of women”.
“Such a judicial understanding of cruelty will be a licence for domestic violence. It may also encourage wife-beaters. It will undo the positive steps taken by government to provide a just legal framework to address domestic violence,” Karat had written.
