Chapter 5

Concept of Marriage under other Personal Laws

5.1. Concept of Marriage under Muslim Law

Muslim law in India means ‘that portion of Islamic

Civil Law which is applied to Muslims as a personal Law’. 1
It consists of the injunctions of Quran, of the traditions
introduced by the ‘practice’ of the Prophet (Sunna), of the
common opinion of the jurists (Ijma), of the analogical
deductions of these three (Qiyas), and of the pre-Islamic
customs not abrogated by the Prophet Mohammad.
Further, it has been supplemented by the juristic
preference (Istihsan), public policy (Istilah), precedents
(Taqlid) and independent interpretation (Ijtihad). It has
been further supplemented and modified by State
Legislation and modern judicial precedents of the High
Courts and the Supreme Court of India and also of the
Privy Council. 2

Prophet Mohammad of Islam is reported to have said:

“Marriage is my Sunna and those who do not follow

this way of life are not my followers and there is no
mockery in Islam”.

Man & woman relationship has thus been

institutionalized in Islam by this dictate and whatever has

1 A.A. Fyzee, Asafand Tahir Mahmood, Outlines of Muhammadan Law, 4

(Oxford University Press, 2008).
2 I.A. Khan (ed.), Aqil Ahmed Text Book of Mohammadan Law, 41
(Central Law Agency, 2001).

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been practiced in Muslim community since ages is the
outcome of their peculiar socio-religious history.

Muslim law is till date uncodified and different set of

rules prevail amongst different sects of Muslims. Polygamy
under Muslim law has been accepted because of social,
economic and political reason, which has been sanctioned
by religious mandate. The practice of polygamy derives its
validity from the Quran and it has been transformed into a
binding rule of law. The reasons for permission to marry
up to four wives in exceptional cases were structured in
the society itself, which perpetuated its existence.

The translation of the Third Verse (AL NISA, verse 3),

of the Quran reads as follows: “and if you fear that you
cannot act equitably towards orphans, then marry such
women as seems good to you, fear that you will not do
justice (between them), then (marry) only one or what your
right hands possess, this is more proper that you may not
deviate from the right course”.

Sheikh Kidwai 3 states, “these verses were revealed

after a murderous battle the Battle of Ohud. Several male
Muslims were killed which resulted in the curtailment of
the Muslim male population. Numerous young widows and
girls were in need of protection. Thus to safeguard their
interest as well as to remove the imbalance in the
structure of society, polygamy became necessary. The
problem of unmarried ‘mothers’ and ‘war babies’
aggravated the situation further. At that time simple life
for a woman was not a natural life, a woman in health and

3 Sheikh M.H. Kidwai, Woman Under Different Social and Religious

Laws, 101 (Seema Publications, 1976).

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with natural vigor if condemned to simple life, would suffer
the consequences of ignoring the demands of nature.
Therefore, Mohammad being a religious teacher and a
moralist, came with a solution”.

The civilization changes of modernity are not always

reflected in the traditional institutions like marriage, which
have strong cultural history.

Broadly speaking Muslim marriage is a contract,

which like any other contract gets completed by a proposal
by the groom and acceptance by the bride or her legal
guardian in the presence of witnesses. This is based upon
the concept of individual liberty, which is the main theme
of Muslim jurisprudence, unlike Hindu law, these
formalities of proposal and acceptance are sine qua non
under Muslim law. Muslim marriage is called ‘Nikah’ which
literally means carnal conjunction. Abdur Rahim 4 says, the
Mohammadan jurists regard the institution of marriage as
pertaining both of the nature of ‘Ibadat’ or devotional acts
and ‘maulamaat’ or dealings among men.

A Muslim marriage requires ‘Ijab’ or proposal from

male party; ‘Qubool’ or acceptance from female party;
recitation of certain verses from the Quran/‘Khutab’ or
sermon declaring the marriage but the Mohammadan law
does not prescribe any service peculiar to the occasion;
declaration & acceptance by the natural legal guardians of
the marrying parties before competent and sufficient
witnesses; payment of ‘Dower’ a sum of money, property,

4 Abdur Rahim, The Principles of Mohammadan Jurisprudence, 327

(1985).

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ornaments or other articles promised by the husband to
the wife in consideration of marriage.

The proposal & acceptance called ‘Ijabe-o-Qabool’

should be made in the presence and hearing of two male or
one male and one female witness who must be sane and
adult Muslims. These must be expressed at the same
meeting. A proposal made at one meeting and acceptance
made at another meeting, do not constitute a valid
marriage. Neither writing nor any religious ceremony is
essential. 5

Where the words of offer and acceptance are laid

down in a written document, such a document is called
Kabin-nama and the witnesses are called vakils. It is a
documentary evidence of marriage. Under the Shia law,
witnesses are not necessary at the time of marriage but are
required at the time of divorce. Free consent in case of
adult persons is not only essential for a valid marriage but
is absolutely necessary. Consent by the father is no
substitute for the consent by the girl. 6

Puberty and majority are synonymous in Muslim law.

The presumption of majority age is 15 years but the
Hedaya lays down that the earliest period for a boy is 12
years and a girl is 9 years. 7 In the Shia law female age of
puberty begins with menstruation.

In Abdul Kadir v. Salima, 8 it has been laid that a

Muslim marriage is a civil contract upon the completion of

5 Rahim Khatoon v. Saburjanessa, AIR 1996 Gau 33.

6 Hassan Kutti v. Jainbha, AIR 1928 Mad 1285.
7 Baillie, Digest of the Hanafi Law, 90.
8 (1886) 8 All 149.

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which by proposal and acceptance, all the rights and
obligations, which it creates, arise immediately and
simultaneously. Marriage among Muslims is not a
sacrament but purely a civil contract and though
solemnized generally with recitations of certain verses from
the Holy Quran yet Mohammadan Law does not positively
prescribe any service peculiar to the occasion.

Fitzgerald observed, 9 “Although a religious duty,

marriage is emphatically not a sacrament. There are no
sacraments in Islam nor it is coverture”.

The traditional Muslim law practiced in India allows

marriage not only between two Muslims (the leading two
sects, Sunnis and Shias) but also between a Muslim male
and a non-Muslim female who can be a Christian, Jewish
but not a fire worshipper nor a idol worshipper.

The Muslim Personal Law (Shariat) Application Act,

1937; The Dissolution of Muslim Marriage Act, 1939 and
The Muslim Women (Protection of Rights on Divorce) Act,
1986 apply to Muslims in India.

5.2. Muslim Marriage compared with other Marriages

A Muslim marriage being essentially a contract differs

from a Hindu marriage, which was regarded as a sacrament
and to which great religious sanctity was attached. A
Muslim marriage is treated on the very lines of a contract
which can be made and broken by mere offer and
acceptance; Thus:

9 Fitzgerald, Muslim Law, 37.

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1. Muslim marriage is a civil contract, whereas a
Hindu marriage under the old Hindu Law was a
sacrament. Under the modern Hindu Law
marriage is no longer a sacrament, it has not
even become a contract, though it has the
resemblance of both.

2. Payment of consideration in any form is not

essential in Hindu Law unlike Muslim
marriages.

3. According to Muslim law, a woman does not by

marriage merge her existence into that of her
husband but retains her separate legal status
unlike the Hindu wife. Amongst the Hindus, on
marriage the wife passes from the Gotra or
family of her father into that of her husband. A
Hindu wife becomes her husband’s helpmate not
only in worldly affairs but also in the
performance of religious sacrifices.

4. The Hindu conception of marriage under the old

Hindu law was that it created an indissoluble tie
between the husband and the wife. However,
Section 13 of the Hindu Marriage Act, 1955
introduces a vital change. It gives to both
husband and wife the right to petition the Court
for divorce on certain grounds enumerated in
the Section. A Muslim marriage on the other
hand is dissoluble. Divorce or Talak in Muslims
is easy and at the personal will of the male even
without the intervention of the Court. Marriage

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 under Muslim Law is terminated on death or
divorce.

5. Under Muslim Law, husband can have as many

as four wives at a time, but Section 5 of the
Hindu Marriage Act, 1955 prohibits polygamy.

A Muslim marriage differs from marriage under

English law. A marriage under English law is no doubt also
a civil contract but it differs from a Muslim marriage in
that it is essentially a monogamous institution. It was
observed in Hyde v. Hyde, 10 case that an English marriage
is the voluntary union of one man with one woman to the
exclusion of others. This rule of exclusion applies to the
male as well as to the female; while under Muslim law, only
the female is subject to the rule, male being at liberty to
take as many as four wives at a time. Again, English law
recognizes the doctrine of coverture, whereas Muslim does
not. 11

The evil practice of conversion to Islam for the sake of

marrying again has caused a great concern to the
Matrimonial law in India. Infact these ‘Mock conversions’
take place by taking undue advantage of the Muslim
Personal Law, thereby taking away the protective umbrella
of monogamy given to the woman by other religious
personal laws. The non-Muslim husbands have been lured
by the permissibility of polygamy in the Muslim law.
However, when a Hindu or a Christian husband converts to
Islam and marries again, it does not ipso f acto dissolve his
earlier marriage with the Hindu or the Christian wife as the

10 (1866) L I P & D 130.

11 Supra note 2.

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case may be. It provides only a ground for divorce to the
aggrieved wife but she still continues to be governed by the
rule of monogamy enjoined by her personal law. A
conversion to Islam undergone merely for the purpose of
avoiding the application of Section 17 of Hindu Marriage
Act, 1955 and without any bonafide belief in Islam would
be a fraud on the law. 12

Muslim marriage in form and appearance is

contractual but in essence, its nature is socio-religious as,
it creates the rights and obligations of the husband & wife,
confers a definite social status on them, is also a religious
duty. It is believed in Islam that marriage is ‘sunnat
muwakkidah’ this means that it is an act of such a nature
that if a person does it, he gets religious benefits, if he
abstains from doing it, then he commits sin. 13

5.3 Concept of Marriage under Christian Law

According to the declaration of the Cast Cannubi, 14

“let it be repeated as an immutable and inviolable
fundamental doctrine that matrimony was not instituted or
restored by man, but God, not by men, were the laws made
to strengthen and force and elevate it but by God, the
Author of Nature and the Christ, our Lord by whom nature
was redeemed and hence these laws cannot be subjected to
any human decrees or to any contrary packer even of the
spouses themselves. This is the doctrine of holy scriptures
which declare and establish from the words of Holy writ

12 Satya(Smt.) v. Teja Singh, AIR 1975 SC 105.

13 Available at http://wwwaticlebase.com/marriage-articles/muslim-
marriage (visited on June 22, 2011).
14 Fremantle Anne, Christian Marriage of the Papal Encyclicals, 235-236
(1956).

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itself that God is the Author of perpetual stability of the
marriage bond, its unity and its firmness”.

According to Canon law, both consent and

consummation of marriage are essential for a valid
marriage. Marriage as a conjugal union of a man and a
woman argues only from free consent of each spouses but
this freedom relates to the question whether two persons
really wish to enter into matrimony, but once they decide
to do so, the nature of matrimony is entirely independent
from the free will of spouses. The marriage came to be
regarded as a sacrament, as an indissoluble union; only
death can put it to an end. Nonetheless, the consensual
aspect of the Christian Marriage has also been emphasized.
In 1866, nine years after coming into force of the
Matrimonial Causes Act, 1857, which recognized judicial
divorce, in the Hyde v. Hyde, 15 Lord Penzance gave the
following definition of marriage, “I conceive that marriage
as understood in Christendom may be defined as the
voluntary union for life of one man and woman to the
exclusion of all others”.

Christian marriage in India is also a sacramental

contract and it is usually solemnized by a Minister of
Religion licensed under the Indian Christian marriage Act,
1872. It can also be solemnized by the Marriage Registrar.

The Indian Christian Marriage Act, 1872 provides for

marriage in a monogamous form only. Section 60; of the
Act lays down the following condition; Section 60(2) neither
of the persons intending to be married shall have a wife or

15 Supra note 10.

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a husband still living. Section 4 of the Christian Marriage
Act, 1872 states that every marriage between persons, one
or both of whom is or are Christians, shall be solemnized
in accordance with the provisions of the next following
Section; and any such marriage solemnized, between a
Christian and a non-Christian, otherwise than in
accordance with such provisions shall be void.

This act is applicable where one of the parties is a

Christian. In other words, the non-Christian party may be
a Muslim, a Hindu or a person belonging to any other
religion. This factor gives rise to issues concerning conflict
of laws, which are interpersonal. Indeed it is on the same
lines in this respect as that of the Special Marriage Act,
1954.

Section 5 of the Christian Marriage Act, 1872

solemnization of marriages: by any person who has
received Episcopal ordination. Provided that the marriage
solemnized according to the rules, rites, ceremonies and
customs of the Church of which he is a Minister; by any
Clergyman of the Church of Scotland, provided that such
marriage be solemnized according to the rules, ceremonies
and customs of the Church of Scotland; by any Minister of
Religion licensed under this Act to solemnize marriages; by
or in the presence of a Marriage Registrar appointed under
this Act; by any person licensed under this Act to grant
certificates of marriage between Indian Christians.

The Christian Marriage Act, 1872 prescribes the

rituals and rites like the living and place for solemnization
of marriage quite in detail since marriage amongst the
Christians has been considered to be a sacrament or a holy

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union. Therefore, no ground in the Act has been prescribed
for the matrimonial reliefs like dissolution and separation.
The Act prescribes penalties for the violation of certain
provisions, which are necessary to be complied with under
Section 6 of the Act. The age for marriage under Section
60(2) of the Indian Marriage Act, 1872, is 21 years for man
and 18 years for the woman. Further sub Section (2) lays
down that neither of the persons intending to be married
shall have a wife nor husband still living.

Section 88 of the Act states, “nothing in this Act shall

be deemed to validate any marriage which the personal law
applicable either of the parties forbids him or her to enter”.

The Divorce Act, 1869 as amended in 2001 is an Act

relating to divorce and matrimonial causes relating to
Christians in India.

5.4 Concept of Marriage under Parsi Law

The Parsi Marriage is also regarded as a contract

though religious ceremony of Ashirvad is essential for its
validity. ‘Ashirvad’ literally means blessing, a prayer or
divine exhortation to the parties to observe their marital
obligations with faith.

Section 2 of Parsi Marriage and Divorce act 1936

defines a Parsi as Parsi Zoroastrian, professing Zoroastrian
religion. The Act provides for solemnization of marriages
between Parsis only and also provides granting of
matrimonial reliefs such as restitution of conjugal rights,
judicial separation, divorce and nullity. There is no
reference to the requirement of domicile in the whole of the

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Act for any purpose. In Jamshed Irani v. Banu Irani, 16 case
it was held that the word “Parsi” as used in the Parsi
Marriage and Divorce Act includes not only the Parsi
Zoroastrians of India but also the Zoroastrians of Iran.
Section 3 lays down requisites to validity of Parsi
marriages. Sub-Section (1) (a) lays that no marriage will be
valid if the contracting parties are related to each other in
any of the degrees of consanguinity or affinity set forth in
Schedule I. The marriage is solemnized under Section 3
(1)(b) of Parsi Marriage and Divorce Act, 1936, according to
the Parsi form of ceremony called ‘Ashirvad’ by the Priest
in the presence of two Parsi witnesses other than the Priest
himself. Section 3 (1) (c), as amended in 1988, fixes the age
for marriage as 21 years for man and 18 years for the
woman.

Section 4 of the Act follows the policy of monogamous

marriages only and bars a Parsi spouse, even if he/she has
changed his/her religion, from remarrying except after the
marriage is duly dissolved. However, Parsi law gives equal
treatment to both the sexes. The rights as well as remedies
prescribed under Parsi law are equally available to both
husband and the wife. Thus, it is radically different from
Muslim law where the wife has limited rights and remedies
available to her as compared to the husband and is replete
with gender discrimination in favour of Muslim male as
against the Muslim female.

16 (1967) Mh.LJ 33: 68 Bom. LR 794 as Quoted by V.C. Govindaraja and

C. Jayaram (eds), Lakshmi Jambholkar Conflict of Laws - Nature &
Scope, Non-Resident Indians and Private International Law, 141 (ILI
Hope Indian Publications, Gurgaon, 2008).

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 Section 5 of Parsi Marriage and Divorce Act, 1936
makes Bigamy punishable. It states that every Parsi who
during the life time of his or her wife or husband, whether
a Parsi or not, contracts a marriage without his or her
marriage with such wife or husband having legally been
declared null and void or dissolved, shall be subject to the
penalties provided in Section 494 and Section 495 of
Indian Penal Code 1860.

The Parsi Marriage and Divorce Act 1936 is unique in

that it suggests a distinction between divorce and
dissolution of marriage. The Act seems to have been framed
on two underlying principles: Nobody should be allowed to
use conversion to another faith for the purpose of defeating
the provisions relating to monogamy in the law governing
such person at present. A marriage essentially
monogamous in its inception cannot become polygamous
by change of faith.

Section 52 (2) provides that a Parsi marrying under

1865 or 1936 Act, even if he or she were to change his or
her religion or domicile shall remain bound by the
provisions of the Act.

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