To have a deep insight of the empirical studies related to “A study regarding Right to Marry in India in light of Hindu and Muslim Personal Laws”, the review of literature has been done as under:

Shiva Gopal’s, “The Hindu Code (Old and New) (1964)” discusses traditional and modern Hindu marriage and divorce. He explains all the Laws relating to marriage and divorce among Hindus.

Dr. Hari Singh Gaur, in “The Hindu Code (1994)”, has touched all the aspect of Hindu marriage as well as divorce. He clarifies his ideas with the help of various cases and discusses relevant Amendment under Hindu Law. He also discusses the traditional Hindu Law and gives valuable suggestions and recommendations.

Paras Diwan/ Peeyushi Diwan‟s, “Law of Marriage and Divorce (1997)” discusses Law of Marriage and Divorce under various personal laws and focuses upon various grounds and theories of divorce. They have also highlighted the relevant case laws and various Amendments to the concerned Personal Laws and have presented a comparative analysis of various Personal Laws prevailing in India.

Y. P. Minocha & Ashok Sudan’s “Ready References on Hindu Law (2002)” covers case law on matrimonial disputes beginning with over-riding effect of the Act, conditions for Hindu marriage, ceremonies, registration, restitution of conjugal rights, judicial separation, void and voidable marriage and legitimacy of children, divorce under various clauses of section 13, divorce by mutual consent, alternate relief in divorce proceedings, transfer petitions, maintenance pendent lite and permanent alimony, custody of children, disposal of property and appeals from decrees and orders.

Jain M.P. in “Indian Constitutional Law (2007)” has given detail information about the various Constitutional provisions.For the purpose of the present study the researcher dealt with the Constitutional provision which is related with Right to Marriage as Article 21 which protect the life and liberty. The researcher specifically deals with the provisions which are related to these rights as to protect Right to Marriage.

H.K. Saharay’s “Law of Marriage and Divorce, (2007)” discusses in detail the concept of marriage and divorce like ancient marriage institution, forms of marriage, kinship, persons competent to marriage, inter-caste marriage and remarriage, ceremonies of marriage, dissolution of marriage, remedy for infringement of marital rights etc.

Ramesh Chander Nagpal, in “Modern Hindu Law (2008)”, has explained the modern concept of Hindu Marriage and Divorce. He has interpreted these concepts under the vision of various case laws and Amendments in Hindu Law and has also summarized various theories of Divorce under Hindu Law.

“Indian Law of Marriage & Divorce”, by Kumud Desai (2022): This book is a comprehensive commentary on the personal laws of the country, relevant Central and State Acts, and Rules, including a part dedicated to general principles relating to matrimonial laws. The latest legal and judicial position is captured under each part, it contains general principles relating to marriage which are common to all personal laws.

Right to marry

The right to marry is a component of the right to life under Art. 21 of the constitution of India which confers about right to life of the individual.

This right has been expressly recognised under Article 16 of the Universal Declaration of Human Rights, 1948[1]:

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

In the context of the right to marry, a mention may be made of a few Indian cases.

Mr. 'X' v. Hospital „Z‟[2], is a significant, though unfortunate in the facts and circumstances of the case judgment. The Apex Court held that right to marry is not an absolute right. The appellant, a surgeon in the Nagaland state Health Service donated blood to a surgery patient in a hospital in Madras. His blood sample taken by the respondent hospital revealed that he was HIV+. This was in June 1995. In August 1995, the Mr. 'X' had proposed marriage to Ms. 'Y' which was acknowledged, and marriage ceremony was going to be held in December 1995. There-was nothing to indicate that he was even aware of his HIV+ status when he proposed. The marriage, however, was called off because of the disclosure of his blood report. Why, when how and to whom the disclosure was made is also not clear. However, 444cancellation of his marriage and disclosure of his HIV+ status obviously caused a lot of embarrassment and agony to the appellant. He was ostracised by the community and had to leave his home state.

He approached the consumer disputes redressal commission claiming damages against the hospital for disclosing his blood test reports and breaching confidentiality. The same was dismissed. He then approached the Supreme Court. On the point of ethics of confidentiality, duty to maintain secrecy and the patient's right to privacy, the court held that these were not absolute. The court emphasized that mental and physical health of spouses is very important in marriage, and that is the reason why all divorce laws entitle a spouse to obtain divorce if the other party is suffering from any communicable disease. The right to marry, according to the court, is not absolute and remains suspended until the afflicted person is cured. Referring to the provisions of the Indian Penal Code, 1860, the court observed that had the appellant married the lady, he would have committed offences under sec. 269 along with sec. 270 of the IPC, which prohibits to spread any types of contamination of any syndrome to save life from any risk to it, and spiteful act likely to contaminate infectivity of syndrome which is hazardous to the individual’s life. The Judgment on whole was very insensitive to the victim, and also inexpedient and unwarranted. True, public health policy considerations do warrant measures and provisions to prevent the spread of any disease, but a blanket ban and suspension of the right to marry cannot solve the problem. The judgment also overlooks the fact that divorce laws entitling a spouse to relief on the ground of the respondent’s medical condition do not debar a person from entering into a marriage. They only entitle the non-afflicted person to seek dissolution of the marriage if he/she so desires. Thus, if parties, with full knowledge and informed consent and without concealment of the fact enter into a marriage, there is no-law which can prevent them from doing so.

Fortunately, a-three-judge bench of the Supreme Court partly overruled this judgment in Mr. 'X' v. Hospital „Z‟[3] in 2003. The issue whether there can be complete bar for marriage if a healthy Spouse gives an informed consent to marriage with a spouse found to be HIV+? The court held that the two-judge Bench in the 1999 judgment had gone further that was warranted by declaring generally that in the event such persons marry, they would commit an offence under law or as to suspension of the right to marry, during the period of illness. Thus, it is implied that the right to marry is not taken away; any afflicted person can marry a non-afflicted person, or any two afflicted persons can marry each other without any legal bar, provided there is knowledge and informed consent for the same. Such partners need to adopt precautions and safe practices in the interest of children, the society and also in their own interest.

One of the earliest cases which dealt with this issue was Lata Singh v. State of UP[4], delivered in 2006, concerning an inter-caste marriage. The Supreme Court held that since the petitioner was a major, she was entitled to marry whoever she wanted and that no law bars an inter-caste marriage. The judgment, however, applied specifically to the case and there was no “declaration of law” as such by the Court. But the Court expressly recognized the petitioner’s right to choose a partner of her choice.

In Lata Singh v. State of Uttar Pradesh, the Supreme Court viewed the right of marriage as a component of right to life under Art. 21 of the Constitution of India. The facts that gave rise to the litigation were violent reactions following an inter-caste marriage between two adults. There were complaints, arrests, threats and criminal cases against the girl's husband and his family members. Then a petition was filed by the girl (wife), to issue a writ of mandmus and / or certiorari under the Article 32 of the Constitution of India for cancellation of the trials in the lower courts, against her husband and his relatives. The petition was proceeded futher, and the police & administration were directed to protect the couple from harassment, threats, injury or acts of violence, and take strict measures against wrong doers, by instituting criminal proceedings against them. The court observed and suggested as (in other words)- “India is a democratic and independent nation, when any individual becomes adult, can marry with any adult individual whatever she or he wishes to do so. If their guardians did not agree to such marriages which are out of religion or out of caste, they can maximum do that they can eliminate familiar relations with their daughter or son, but they cannot harass or bother and cannot do any act of atrocity to the person who goes through out of religion or out of caste[5]”.

Both the partners in the case were adults and so free to marry of their choice. The court further observed that under Hindu Marriage Act 1955 or any other laws there is no restriction for inter-caste marriages. Though, it is believed that inter caste marriages are indeed in the interest of the nation because they would result into the destruction of caste system in India.

Thus, supreme court safeguards right to marry through art. 21 of the constitution.

In Re: Indian Woman says gang-raped on orders of Village Court[6]  in 2014, the Supreme Court took suo motu cognizance of newspaper reports of the gang rape of a 20-year-old Indian woman on the orders of a village court. The village court or the community panchayat ordered this so-called punishment because the woman had a relationship with a man from a different community. The Supreme Court in no uncertain terms held that “an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. Such offences are resultant of the States incapacity or inability to protect the Fundamental Rights of its citizens.” Article 21, which deals with the right to life and personal liberty, is an a comprehensive provision which includes within its fold the inherent right to marry someone according to personal choice.

The matter of choice has been extensively dealt by a Constitution Bench of nine judges in Justice KS Puttaswamy (retd) and another v. Union of India and others[7]. The Court unanimously held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21”. In the majority opinion delivered by Dr. DY Chandrachud J, the Court in paragraph 81 held that in the Indian context, the fundamental right to privacy would cover at least the following three aspects - (i) privacy that involves the person, (ii) informational privacy and (iii) privacy of choice, which protects an individual’s autonomy over fundamental personal choices.

 The Court further opined, Eventually, in its conclusion, it held,

“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy….”

Shortly after the Puttaswamy case, two judgments were delivered in quick succession by the Supreme Court in which it held that the right of a person’s choice to marry whom she pleases in an inherent part of individual dignity and intrinsic to Article 21. In Shakti Vahini v. Union of India[8] the Court opined,

“It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected….”

Less than a fortnight later, the very same bench, in the most specific terms, reiterated this right in Shafin Jahan v. Asokan K.M. and others[9] while referring to Article 16 of Universal Declaration of Human Rights and the Puttaswamy case. The majority held,

“The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. …… Society has no role to play in determining our choice of partners.”

The right to marry is not expressly recognized either as a fundamental or constitutional right under the Indian Constitution. Though marriage is regulated through various statutory enactments, its recognition as a fundamental right has only developed through judicial decisions of India’s Supreme Court. Such declaration of law is binding on all courts throughout India under Article 141 of the Constitution.

Right to Marry under different Personal Laws in India

In India, the Supreme court has provided liberal interpretation of the right to life and liberty under Article 21 of the Constitution. This includes the right to get married. However, in order to be married legally, both the bride and groom must complete certain requirements that are laid down by the several laws. These laws are quite different and diverse from each other. This because of the prevalent religious & cultural diversity. Even though some of the laws have been modified by the Parliament, some of the others still exist as per the customs. These laws relating to marriage are given below:

1.     Hindu Marriage Act, 1955

2.     Muslim Personal Law (Shariat) Application Act, 1937

3.     The Anand Marriage (Amendment) Act, 2012

4.     Christian Marriage Act, 1872

5.     Parsi Marriage and Divorce Act, 1936

6.     Special Marriage Act,1954

7.     The Foreign Marriage Act,1969

1.     Hindu Marriage Act, 1955

According to Graha Sutra, Vivaha or marriage is an auspicious sanskaras of Hindu religion. Which lies at 15^th position among the 16 sanskaras. Marriage is one of the essential samaskaras (sacraments) for every Hindu. Every Hindu must marry. “To be mothers were women created and to be father men, the Veda ordains that Dharma must be practised by man together with his wife”.[10]

It is a sacrament, a union of two personalities for the protection and maintenance of the society, by practising self-restraint, reciprocal cooperation, and self-sacrifice. Vedas recognise marriage as a religious and sacred duty for the followers of Hindu religion. In ancient Hindu law marriage was considered as a union of two bodies and soul.

The matrimony of a Hindu couple is governed by the Hindu Marriage Act, 1955 which deals with the registration of the marriage (after its solemnization) of a man and woman belonging to Hindu, Sikh, Buddhist, or Jain community or having proselytize themselves to either of these religions. The inclusion of the other three religions within the ambit of the term ‘Hindu’ is in pursuance of the definition of the term under Article 25(2)(b) of the Indian Constitution.

The significant features of the Hindu Marriage Act (hereafter, the Act) have been enlisted below:

The Preamble of the Act states that the enforcement of this law was solely related to the marriages of Hindus. This is further reinforced by Section 2 of the Act. In addition to this, certain obligatory conditions have been stipulated under Section 5 of the Act for the legitimation of a Hindu marriage, as held by the Supreme Court in Gullipilli Sowria Raj v. Bandaru Pavani[11] wherein the marriage of a practising Hindu man with a Catholic woman, despite having been conducted in accordance with the Hindu customs, was deemed void.

Essential conditions laid down in the Act

The various  conditions laid down in section 5 of the Hindu Marriage Act are enlisted below:

1. There should not be an already existing spouse (of either of the parties) alive at the time of solemnization of the marriage.

2. No party is incapacitated to give consent to their marriage due to unsound mind.

Despite the capability of giving consent to marriage, neither of the parties suffers from any mental disorder to a limit that may make it difficult for them to bear children. In R. Lakshmi Narayan v. Santhi[12], it was held by the Supreme Court that in order to hold a woman as incapable of marrying due to any mental illness, it is necessary to prove that such an ailment incapacitates her from leading a normal married life.

3. Neither of the parties has been a victim of repeated insanity attacks.

4. The legal age permitting marriage between a man and woman are being met; 21 for men, 18 for women.

5. The parties should not be a part of a prohibited relationship, defined under Section 5(4) of the Act. A marriage falling under either of these relationships shall be deemed void: Existence of lineal ascendancy of one party to another.

6. One party has been a spouse of either the lineal ascendant or descendant of the other.

The wife was initially a spouse of the brother, father, mother’s brother, grandfather, or grandfather’s brother of the prospective husband.

In relationships, like brother-sister, aunt-nephew, uncle-niece, wards of the brother and sister or of two brothers and two sisters.

However, an exception to the aforementioned conditions lies in the importance given to customs in the personal law. If a custom permits or warrants either of these, they shall be pursued and be deemed legally legitimate.

Penalty

Section 18(b) of the Act provides for the penalisation in case a married couple is found to be guilty of practising a prohibited relationship. They are either supposed to pay 10,000 rupees as fine or endure simple imprisonment of one month or both, as the Court deems correct.

Importance of Ceremonies, particularly ‘saptapadi’

The solemnization of a Hindu marriage happens in accordance with the rites and ceremonies practised by the parties as per Section 7 of the Act. In Reema Aggarwal v. Anupam[13], the apex court held that these ceremonies are necessitated to be proved. An essential rite is that of saptapadi or a round of seven steps by the couple around the sacred fire, wherein the last step marks the completion of the ceremony and thus the binding authority of the marriage. In Santi Deb Berma v. Kanchan Prava Devi (Smt.)[14], the Supreme Court overturned the judgement of the High Court and ruled that saptapadi is an essential ceremony of a Hindu marriage, and the absence of adequate evidence to prove the performance of the same makes the second marriage undertaken by the respondent in this case as not legally valid under the Act of 1955.

Forms of Marriages

The Act does not validate or recognize any forms of Hindu marriages. Whereas in Shastras, there are eight forms of marriages, namely the Asura (where the bride is sold off by the father), Gandharva (love marriage, based on sensual desires), and Brahma (where the bride is given as a gift by the father), Daiva(wherein the suitor was an official priest), Arsha (where the groom presented a cow and bull or two cows and two bulls as gift(s) to the bride’s father for religious purposes), Prajapatya (marriage in order to repay the debts or obligations to the Prajapati for reproductive purposes), Rakshasa (forced marriage with someone kidnapped or held captive) and Paisacha (lowest form, where the damsel is made love with when she is not in her senses). Out of these, only Brahma, Daiva, Arsha, and Prajapatya forms were valid under ancient laws. 

2. Muslim Personal Law (Shariat) Application Act, 1937

Muslim marriage is an Ibadat (devotional act). The Prophet is reported to have said that marriage is essential for every physically fit Muslim who could afford it. The Prophet says” O assembly of youths, whoever among you is able to have, he should marry, for it is a restraint to the looks and he who is not able let him keep fast.” And “there is no monkery in Islam.”

M.C.J. Jung observed that” Marriage is an institution of Ibadat clothed in the legal form of contract regulating sexual intercourse; but its continuance is dependent upon the the maintenance of conjugal affection”. So, it can be said that the marriage in Islam is neither purely a civil contract nor as a sacrament. It is devoid of none but the blending of the two.

There is no codified law for governing Muslim marriages in India. The main difference that lies between Hindu and Islamic perception about marriages is that the former believes the institution to be a sacrament while the latter believes that it a civil contract (nikahnama) between a Muslim man and woman. Muslim law has been derived from various codified and uncodified sources like- Quran, Ijma, Qiyas, customs, urf, precedents, equity and various legislations. There are 4 major sunni school of thoughts- hanifa, hamabli, maliki and shafai. These four schools recognize each other’s validity and they have interacted in legal debate over the centuries. In India, Hanifa school of Islamic law is dominant.

Essentials of a Muslim Niqah

The general essentials of a Muslim Niqah are:

1. Parties must have capacity to marry.

2. Proposal (ijab) and acceptance (qubool).

3. Free consent of both the parties.

4.  A consideration (mehr).

5.  No legal Impediment.

6.  Sufficient witnesses (different in shia and sunni).

Classification of Marriage

Muslim marriages can be classified as sahih or valid marriages, batil or void marriages, and fasid or irregular marriages. Marriages are irregular when errors like the absence of an adequate number of witnesses, marriage with women during the Iddat period, a difference of religion; to name a few. Marriage of a man with his two sisters shall also be counted as a condition making the marriage irregular, as held by the Supreme Court in Chand Patel v. Bismillah Begum.[15]

Valid (sahih)

When all the legal requirements are fulfilled and there are no prohibitions affecting the parties, then the marriage is correct or ‘sahih’. The prohibitions can be permanent as well as temporary, in case of permanent prohibitions: the marriage will be void and if the prohibitions are temporary then the marriage is irregular.

Effects of a valid marriage

1.  The cohabitation between the husband and the wife becomes lawful.

2. The children born out of a valid marriage are legitimate and they have right to inherit their parent’s properties.

3.  Mutual rights of inheritance between husband and wife are established. That is, after the death of the husband, the wife is entitled to inherit the husband’s properties and after the wife’s death, husband may also inherit her properties.

4.  Prohibited relationship for purposes of marriage is created between the husband and wife and each of them is prohibited to marry the relations of the other within prohibited degrees.

5.  The wife’s right to claim dower is fully established just after the completion of marriage.

6. The marriage gives to the wife also the right of maintenance from her husband with immediate effect.

7.  After the dissolution of the marriage, the widow or the divorced wife is under an obligation to observe the Iddat, during which she cannot remarry.

Void (Batil)

The marriage being void ab initio creates no rights or obligations and the children born out of such marriage are illegitimate. A marriage forbidden by the rules of blood relationship, affinity or fosterage is void. Similarly, a marriage with the wife of another or a divorced wife during iddat period is also void.

Irregular (Fasid)

Due to lack of some formality, or the existence of an impediment which can be rectified, a marriage becomes irregular, However, this irregularity is not permanent in nature and can be removed. Thus, the marriage itself is not unlawful. It can be made valid once the prohibitions are rectified. Marriages in such circumstances or with following prohibitions are called ‘Fasid’.

1.     A marriage contracted without required number of witnesses.

2.     A marriage with women during her Iddat period.

3.     A marriage with women without the consent of her guardian when such consent is considered mandatory.

4.     A marriage prohibited on account of difference of religion.

5.     A marriage with a woman who is pregnant, when the pregnancy was not caused by adultery or fornication.

6.     A marriage with a fifth wife. 

Muta or Nikah mut’ah

The term literally means “pleasure marriage”. Muta marriage is a temporary agreement for a limited time period, upon which both the parties agreed. There is no prescribed minimum or maximum time limit; it can be for a day, a month or year(s). The marriage dissolves itself after the expiration of the decided period, however if no such time limit was expressed or written, the marriage will be presumed permanent. This type of marriage is seen as prostitution by the Sunni Muslims and thus, is not approved by Sunnis. 

However, it is considered legitimate by the Twelver Shia sect, which is predominant in Iran and constitutes 90% of India’s Shia population. In Iran, the word mut’ah is only from time to time utilized and this practice is called ‘sigah’. The rules for sigah are fixed for eg- the contract for temporary marriage can be attracted for one hour to 99 years; it can’t be for an indeterminate period. This provision distinguishes mut’a from nikah or lasting marriage, which has no time limit. However, just like in nikah, in sigah too, the bride must get some monetary benefit.

No witnesses are required for mut’ah. And just like in any other contract, the woman being a party can lay down conditions for her sexual union throughout this time limit, this can also include her daily maintenance. Her temporary husband must respect these conditions. The marriage automatically dissolves at the end of the stated period. No matter how short the duration was, the woman has to practice abstinence lasting up to two menstrual cycles.

Interesting part is that the temporary husband and wife can renew the contract, but the husband must regardless of this pay the amount to the bride. Husband has a unilateral right to revoke the marriage-mark of his superior position in the relationship. But the woman can refuse to be intimate with him or even leave him, but in such case, she must return back the amount she received from him.

Inter-faith marriages 

Muslims are prohibited by their personal law. However, under the principles of Shariat, the marriage between a Muslim man and non-Muslim woman from non-kitabbiya religions (or those religions which do not follow or abide by a single religious text or idol/fire-worshippers) is not void but irregular and can be validated by conversion of the woman to Islam or other Abrahamic religions (Christian or Jewish).

Children born out of a Muslim father and Hindu mother (fasid marriage) are held by the Supreme Court to be legitimate and thus legally vested with the right to inherit the property of their father in Mohammad Salim v. Shamsudeen[16]. The Supreme Court also upheld the rights of consenting adults to marry out of their free will in the famous Hadiya Case or Shafin Jahan v. Ashokan K.M.[17] overturning the Kerala High Court’s judgement which held that Hadiya was forced to convert to Islam.

3.     The Special Marriage Act,1954

The Special Marriage Act, 1954 unlike its communal counterparts discussed above, applies to Hindus, Muslims, Sikhs, Christians, Jains, Buddhists, and Parsis. In fact, this Act is a regulatory law governing both inter-caste and inter-religious marriages in India. The Special Marriage Act (hereafter, the Act) incorporates provisions for both the solemnisation as well as registration of marriage between two consenting adults.

Essential conditions laid down in the Act

Section 4 of the Act, which is analogous to Section 5 of the Hindu Marriage Act, 1955 provides for certain conditions that are necessary to be met in order to deem a marriage to be legally valid. These have been discussed below:

1. Section 4(a) provides for the non-existence of a living spouse during the conduction of the new marriage

2. Section 4(b) lays down certain conditions of mental and physical capacities that are necessary to be met for the validity of the marriage.

3. Section 4(c) limits men below the age of twenty-one and women below the age of eighteen years to be legally marriageable.

4. Section 4(d) prohibits nuptials between people in a prohibited relationship unless permitted by their customs.

A violation of any of the above-mentioned conditions will result in the annulment of the couple’s marriage. The Special Marriage Act offers a significant substitute to other personal laws prevalent in India. Special Marriage Act governs marriage of two individuals belonging to different religion. It provides a legitimate legal status to the marriage of interfaith couples. It offers a refuge to individuals who wish to marry outside their faith. This act surely supports the right to marry of an individual.