Muslim marriage vis-à-vis Hindu marriage- A comparative Study
Authored By Anshu Prasd
Keywords- Hindu marriage, Muslim Marriage, religious sacrament, social contract.
Marriages in India are an important social institution that binds a family. The article deals with the essentials, the process of marriage, and divorce under the Hindu and Muslim marriages. The article even focuses on the differences and similarities between the two. They are similar in one aspect that is the religious aspect, where both the marriages are legalized by virtue of the togetherness and union of two souls. However, the major difference is that Muslim marriage is a civil contract between two parties, and the Hindu marriage is considered to be a religious sacrament.
Marriage is usually considered as a legal and social sanctioned union, between a man and a woman, that is regulated by-laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners. Although, even after the enactments of such acts and codes, the customs and traditions of a community holds good value in society and the courts have readily accepted them if it could be proved by one community that a particular custom has been practiced by that community from time immemorial or the inception of such community.
Marriage under the Hindu law is considered to be a religious sacrament as it is supposed to be completed only after the performance of certain religious rites with the accompaniment of the sacred Vedic hymns. In the case of Gopal kishan v. Mithilesh kumari(1), the Allahabad High court observed that the institution of marriage under the Hindu law is a sacrament and not a mere betrothal. The context of this marriage is religious. It is even regarded as part of the life of the soul. It is a holy spiritual union which corresponds to ‘consortium omntum vitoe of Rome’, a process by which, the husband and the wife become one.
In the case of a Hindu, marriage is an obligation for begetting a son, to discharge of his debt to his ancestors, and to perform his religious and spiritual duties. The Wife is not merely a Grihapatni but even a Dharmapatni and Sahadharmini. According to Manu, husband and wife are united to each other not only in this life but even after their death, in the other world. Its implication has been that widow remarriages as a rule were not recognized in Hindu law. However, for the men in society, there are no such restrictions. He is allowed to marry another woman as soon as his wife is dying.
Hindu law specifically prohibits polygamy (3). A person should not be married to any other woman before getting married or he/she must seek a valid divorce from the court before contracting any marriage. The Hindu marriage cannot be dissolved and it is a permanent bond, which is believed to last even after their death. At present, the decision of the court is required in order to dissolve a marriage. Section 13 of the Hindu Marriage Act, 1955 lays down the various ground on which divorce can be granted i.e. adultery, cruelty, desertion, conversion to other religion, insanity, Leprosy, Venerable Disease, renunciation, the presumption of death, and 13(B) defines divorce b mutual consent of the husband and wife.
The word ‘Nikah’ (marriage) means ‘the union of sexes’ and in law, this is known as “marriage”. The term ‘Nikah’ has been used for marriage under Muslim law. ‘Nikah’ literally means “to tie up together”. The sole motive of the Muslim marriage is to satisfy the sexual urges and to ensure a family and a lineage. It implies a particular contract for the purpose of legalizing generations and it has nothing to with religion. In a legal sense the nature of a Muslim marriage also fulfills the conditions imposed by contract law that are;
• Offer & acceptance
• Legal capacity of the parties
In Muslim marriage, the proposal comes from the boys’ side and it has to be accepted in the same meeting by the bride in the presence of two witnesses.(offer & acceptance). The dower(consideration), paid by the husband to his wife at the time of the marriage or even after the marriage in respect of wife and the wife has absolute control over it. in the case of Anis Begum v. Muhamad Istafa Wali Khan(3). It was held that the wife can even refuse to perform marital if prompt dower is refused by the husband. They also practice polygamy and have the consideration of irregular or void marriage. Shia community has approved ‘Muta’ marriage Muslims emphasize the capacity of a person to contract marriage. In the case of Muslim marriage also the husband-wife both has the right to dissolve the marriage simply by pronouncing talaq. The dissolution of marriages among Muslims does not require the intervention of the court.
Marriage forms an essential part for both the Hindu and the Muslims. They are similar in one aspect that is the religious aspect, where both the marriages are legalized by virtue of the togetherness and union of two souls. However, the major difference is that Muslim marriage is a civil contract between two parties, and the Hindu marriage is considered to be a religious sacrament. Whereas in the cases of divorce under the Hindu marriage both the husband and wife have the right to dissolve their marriage with the decision of the court. Whereas under the Muslim marriage the husband or the wife can dissolve their marriage simply by pronouncing talaq. The dissolution of marriages among Muslims does not require the intervention of the court.
1. AIR 1979 All 316.
2. AIR 1933 All 634
3. Monogamy (Section 5(1)) - If a man or woman is found in contracting a bigamous marriage then he/she shall be punishable under section 494 of Indian Penal Code and that new marriage will be of void nature.