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SACRED BONDS OR LEGAL CONTRACTS- ANALYZING RELIGIOUS MARRIAGES IN INDIA AND THE UCC DEBATE
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SACRED BONDS OR LEGAL CONTRACTS- ANALYZING
RELIGIOUS MARRIAGES IN INDIA AND THE UCC DEBATE
AUTHORED BY
- ANSHU KIRAN SINGH
BRANCH - BBA
LLB (Hons.), SEM - 8th
INSTITUTION
- KIIT School of Law
ABSTRACT
This paper explores the
potentialities and impediments linked with the adoption of uniform marriage
laws in diverse societies of India. Marriage laws serve as the bedrock of
stable families and societal structures, yet in India, these laws diverge
significantly across different religious communities. This variance underscores
the necessity for uniformity to foster equality and streamline legal processes.
The concept of a Uniform Civil Code (UCC) emerges as a solution to achieve
legal coherence and address disparities in marriage laws. The paper delves into
the different marriage laws under different religions, like, Hindu law, Muslim
law, Christian law and Parsi law. The paper also discusses about the Special
Marriage Act which deals with the marriages between people belonging to two
different communities. Lastly, the paper examines the implementation of UCC in
Goa and UCC in Uttarakhand. Considering all the relevant personal laws,
possibilities and challenges for implementation of uniform marriage laws are
analysed. The possibilities inherent in uniform marriage laws are multifaceted.
They promise legal consistency, ensuring that all citizens are subject to the same
set of marriage regulations regardless of their religious affiliation. This
would promote fairness and eliminate the perception of preferential treatment
based on religious identity. However,
the implementation of uniform marriage laws is not without challenges. Cultural
sensitivities pose a significant obstacle, as different communities may have
deeply ingrained customs and traditions regarding marriage. However, this
endeavor requires careful consideration of diverse perspectives and open
dialogue to navigate the complex terrain of cultural sensitivities, religious
freedoms, and political dynamics. By addressing these challenges thoughtfully,
uniform marriage laws have the potential to create a more equitable and unified
legal framework for marriage, thereby contributing to the overall progress and
harmony of society.
Key words – Uniform Marriage, Personal Laws, Diversity, Equality,
Secularism
INTRODUCTION
"The greatness of a nation lies in its ability to provide equal
rights to all its citizens." – Mahatma Gandhi
In India, all the laws, be it
criminal or civil are equally applicable to every individual. This is known as
uniformity of laws and the greatest example of such uniform laws is our Indian
Constitution of 1950, which guarantees equality to all the persons living in
India. Moreover, article 44 of our Constitution empowers the State to implement
a Uniform Civil Code for the entire territory of India.
However, we live in a nation which
allows a specific category of men to marry four times and denies others, allows
a specific class of females to marry before the age of eighteen and restricts
others and also allows some women to claim maintenance from their husbands for
a longer period of time than others. Therefore, the uniformity of laws has no
role to play in the realm of personal laws. Personal laws are not brought
within the ambit of uniformity because these laws reflect the diverse culture
of our country respecting all the religious sentiments. Every religious
community has its own customs and laws for marriage, divorce, inheritance,
succession and adoption. This pluralistic personal law approach has given rise
to complexities and inequalities in the modern day society. Hence, the need for
uniform marriage laws is rising to bridge the gap between different religions
in order to uphold constitutional equality irrespective of their gender or
religion.
HISTORICAL BACKGROUND
Before the colonial era, Hindus were
governed by their shastras which was interpreted by the Brahmins, the Muslims
were governed by their Shariya law interpreted by Qazis and all the other
religious sects followed their own personal laws but the Britishers introduced
a common law system in India for establishing their rule. However, the British
did not include personal laws in the ambit of the common law system to foster
their idea of “divide and rule”.[1]
However certain personal laws were also codified during this era for the ease
of resolving disputes.
As India got its independence, the
debate of whether to make the personal laws uniform in the country or not
started. The drafting committee of the Indian Constitution made a proposal to
include Uniform Civil Code in Article 35 of the Constitution which was
contested by the Muslim members present in the committee. They wanted to
include a proviso stating “Any group, section or community of people shall not
be obliged to give up its own personal laws." The inclusion of such
proviso was protested by Dr. B. R. Ambedkar and then the debate continued on
whether to include the provision for UCC in the Fundamental rights or Directive
Principles of State Policy, and the final decision was made by voting. With a
majority of 5:4, it was added in Article 44 under the DPSP.[2]
MARRIAGE UNDER HINDU LAW
Under Hindu laws, marriage is
considered to be a sacred part of life which unites two individuals not only
for their present life but also for the upcoming seven lives. Marriage is one
of the sixteen sacraments for Hindus and it was not a subject to dissolution
for a long period of time. According to the ancient scriptures under Hindu
laws, it is believed that a man is incomplete without marriage.
The Hindu Marriage Act of 1955 is
codified for governing marriages among the Hindus. It is also important to note
that the definition of Hindu under the Act includes Sikhs, Jains and Buddhists
which shows uniformity in marriage laws already exists among some of the
religions in India. Section 5 of the Hindu Marriage Act, 1955, lays down
certain essential conditions which should be fulfilled for a valid marriage.
For a marriage to be valid, it is important that neither party has a living
spouse at the time of marriage, both the parties should be able to give free
consent, the male should be of 21 years of age and the female of 18 years of
age, both the parties should not be in the prohibited degrees of marriage
neither the “sapindas” (exception- if the customs or usages governing them
allows that).[3] Bigamy
is strictly prohibited under the Hindu law and is punishable under section 494
and 495 of Indian Penal Code, 1860.
Section 7 of the Act states a Hindu
marriage is solemnised when the bride and the bridegroom together take
“saptapadi” or seven steps around the sacred fire.[4]
“Kanyadaan” is also considered to be an important part of the rites and
ceremonies of marriage, however, it is not recognised in the Act.
Although it is not mandatory to
register marriages under Hindu law, section 8 of the Hindu Marriage Act, 1955
states that for facilitating the proof of Hindu marriages, the State Government
has the power to make rules regarding registration of marriages under Hindu
law.[5]
Section 11 and 12 of the Act deals
with void and voidable marriages.[6]
Section 11 states that a marriage, which is in contravention with essentials of
Hindu marriage laid down in section 5 of the Act, solemnised after the
commencement of the Act, would be declared void be a decree of nullity if
either of the parties files a petition against the other party. Section 12
states certain conditions when the marriage can be held voidable if the husband
is impotent and due to this reason they cannot consummate; or if the husband
was not of 21 years of age or the wife was not of 18 years at the time of
marriage; or if the consent of the petitioner or the guardian of the petitioner
(in case the petitioner was a minor at the time of marriage) was obtained by
fraud; or if the wife was pregnant with someone other than the husband, at the
time of marriage.
Hindu law is very flexible with
adapting the changing needs of the society. The religion is tolerant towards
removing various social evils which existed earlier. “Sati pratha” which was a
part of the religion for a very long period, was abolished as it demolished the
dignity of women. Bigamy was also a practice under this religion in various
parts of India but such practices were also abolished and bigamy was made a
punishable offence by the policy makers.
MARRIAGE UNDER MUSLIM LAW
Marriage under Muslim law has been
derived from various sources of Muslim law like the Quran, Ijmas, Sunnats, and
Qiyas. It is considered to be a civil contract between the bride and the groom
for the purpose of procreation. According to many Muslim scholars, it is the
religious duty of every man to marry.[7]
There are certain essential conditions for a Muslim marriage or “Niqah” to be
valid. The marriage has to comply with all the formalities mentioned under the
Muslim law or the Sharia law. The first essential condition for a valid muslim
marriage is that there should be a proposal (ijab) and an acceptance (qubool),
similar to any other contract. Marriage is completed only when the party
accepts the proposal of the other party. The two different sects of Muslims-
Shia and Sunni, have different opinion regarding the presence of the witnesses
during the ceremony. According to the Sunnis, the proposal and acceptance
should be made in the presence of atleast two adult males or at least one adult
male and two adult females, However, marriages are not held void if the
witnesses are absent. According to the Shias, presence of witnesses is not
mandatory during the ceremony.
The second essential condition for a
valid marriage under Muslim law is free consent. It is necessary that both the
contracting parties give free consent at the time of marriage without any undue
influence or fear. In case the bride and the bridegroom are minors, free
consent must be given by their legal guardians. Consent in these marriages can
be either expressed or implied.
The third essential of a valid Muslim
marriage is the age of the contracting parties. According to the Muslim law,
the Indian Majority Act, 1875, does not apply to determine the age of the
consenting parties, rather it is necessary that the parties have attained puberty.
Puberty is the age when a boy or a girl transition into an adult and are
capable of consummating. In the absence of evidence whether the parties have
attained puberty or not, it is presumed that puberty has been attained after
the age of 15. In case the parties are minor, consent is required from their
legal guardian and if the marriage takes place without their guardian’s
consent, it is invalid unless it has been ratified by the minors after they
attain the age of majority. Therefore, the legal age for marriage under Muslim
law is 15 years for both males and females.
The next essential condition of a
Muslim marriage is the receipt of “dower” or “mehr” by the wife or her father
from the husband. Mehr is the amount that is paid by the husband as a
consideration to the wife for marriage. Dower can be paid either at the time of
marriage or promised to be paid any time after the marriage. Although a Muslim
marriage is a contract, “consideration” referred here is not the same as
defined under the Indian Contract Act. It is rather for the gift of marriage,
which is the “wife”.
There are two kinds of prohibitions
laid down under the Muslim law for a valid marriage- absolute prohibition and
relative prohibition. Absolute prohibition is made for marrying within the
blood relationship or close relationship or foster relationship. Such
relationships are of a mother and son, father and daughter or granddaughter,
brother and sister, uncle and niece, aunt and nephew, husband and mother-in-law
or grandmother-in-law, husband and stepdaughter or step granddaughter and a
lady who has breastfed the child under 2 years of age. Relative prohibition is
made for marrying two women who are each other's blood relative or close relative
or foster relative and polygamy. However, under the shia law, a muslim man can
marry his wife’s aunt but cannot marry her niece without her permission. Also,
a man cannot marry more than four times and if he does so, then the fifth
marriage becomes irregular until the termination of earlier marriage. Relative
prohibition is also made for a Muslim man to marry a woman who worships idols.
Such marriages are considered to be irregular under Muslim law. Moreover,
marriage during the “iddat” period is also prohibited. Under Shia law, marriage
during iddat becomes void and under sunni law, such marriages are considered
irregular.
MARRIAGE UNDER CHRISTIAN LAW
Christians are a minority group in
India who migrated here long time age. The term Christian according to Section
3 means persons professing the Christian religion and Indian Christian includes
the Christian descendants of natives of India converted to Christianity, as
well as such converts.[8] Marriage
under this religion is held sacred. Christian marriages are also in the form of
a contract by a priest or a person licensed under the Christian Marriage Act of
1872. It can also be solemnized by a marriage registrar. The Act is a law
governing all the marriages of Indian Christian. It is different from the
Indian Marriage Act, 1955 which governs all the marriages in India irrespective
of their religion.
Part I of the Christian Marriage Act
specifies conditions for a valid marriage under the Act:
·
Both
parties must be Christians according to Section 3, or at least one must be a
Christian, and the marriage must be solemnized in accordance with Section 5 by
an authorized person.
·
State
Governments can grant and revoke licenses for marriage solemnization.
·
The
marriage must be performed in a prescribed form and recorded in the marriage
register.
·
Evidence
of marriage can be provided through entries in the marriage register or other
means, such as eyewitness accounts or the couple's subsequent conduct.
·
Marriage
at the bride's mother's house doesn't require signing the Marriage Register.
·
A
Christian marriage, even if one party is Hindu, cannot be dissolved under the
Hindu Marriage Act.
·
A
Christian marriage, validly registered under the Special Marriage Act, remains
legal if conditions specified in that Act are met.
MARRIAGE UNDER PARSI LAW
The matrimonial laws of the Parsi
community are codified in the Parsi Marriage and Divorce Act, 1936. Section 3,4
and 6 of the Parsi Marriage and Divorce Act lays down the essentials of a valid
Parsi marriage. The parties to the marriage must not be related within the
prohibited degrees of relationship. The male must be at least 21 years old and
the female must be at least 18 years old at the time of marriage. The marriage
ceremony, called Ashirwad, must be performed by a priest in the presence of two
witnesses other than himself. Children born from such a union are considered
legitimate if the above conditions are met. Polygamy is prohibited under this
Act. After the marriage ceremony, a certificate signed by the priest, the
contracting parties and two witnesses must be obtained and a fee of ?2 must be
paid to the registrar, then the Registrar enters the certificate into the
official records.[9]
SPECIAL MARRIAGE ACT, 1954
The Special Marriage Act allows
marriages between individuals of different religions in India. It closely
resembles the Hindu Marriage Act of 1955, indicating a secular approach to
marriage laws and is accessible to all communities, including Muslims. The Act
prohibits polygamy and governs succession and divorce procedures, with certain
provisions differing in marriages registered in Goa. Certain conditions are
mentioned in Section 4 of the Act for a valid marriage: nonexistence of a
living spouse at the time of new marriage; free consent of both the parties to
marriage; age of male should be at least 21 years and of female should be at
least 18 years; marriage should not be solemnised between the prohibited
degrees.
Registration is compulsory under this
Act. The registration process should be initiated after a month’s notice has
been given to the sub- registrar under whose jurisdiction either of the parties
reside. A public notice invitation is served in the presence of the parties.
The registration is complete after 30 days from the service of the notice. The
spouses are then required to be present on the fixed date of registration of
marriage along with three witnesses.[10]
UNIFORM CIVIL CODE IN GOA
Until 2023, Goa was the only state in
India which followed a uniform civil code for all the people residing there
irrespective of their caste, religion and gender. All the religions were bound
by the uniform laws of Goa. The UCC in Goa existed from the period of the
Portuguese. They enacted their legislation named Portuguese Civil Code of 1867
to govern the province of Goa. However, in 1962, Goa was merged as a part of
India and the Indian Government allowed the existing UCC to continue in the
state.[11]
Marriage is a type of contract
between two individuals in order to constitute a legitimate family under the
UCC of Goa. Marriages are registered in the office of Civil Registrar in Goa.
UNIFORM CIVIL CODE IN UTTARAKHAND
The UCC mandates that marriages must
be registered within 60 days of being solemnized in Uttarakhand. This rule
applies to both residents marrying within the state and residents marrying
outside the state. Although failure to register a marriage won't make it
invalid, both the parties of marriage may be fined with Rs 10,000. Providing
false information regarding marriage intentionally could result in a penalty of
Rs 25,000 and a three-month jail term. Additionally, marriages cannot be
dissolved without a court order, and violating this provision could lead to
imprisonment for up to 3 years.
Moreover, the highlight of this code
is that it recognizes live- in relationships and makes it mandatory to register
such relationships with the Government.
If couples in a live-in relationship fail to provide a statement, they
will receive a notice, and a criminal prosecution may follow. Ending the relationship
requires submitting a formal statement to the Registrar. Women abandoned by
their live-in partners can seek maintenance through the appropriate court and
the children born from such relationships will be regarded as legitimate.
The Bill has prohibited specific
marriage customs common in the Muslim community, including “nikah-halala” and
triple talaq, without explicitly naming them. For instance, under Section 30(1)
of the bill, individuals have the right to remarry their divorced spouse
without any prerequisites, effectively abolishing the practice of
“nikah-halala”.
POSSIBILITIES OF UNIFORM MARRIAGE
LAWS
Marriage is the building block of a
stable family and gives the status of “husband and “wife” to the respective
spouses. The present personal laws of different religions portray marriage as
completely different for different religions. Under Hindu laws, marriage is
held sacred and sacrament whereas for Muslims, marriage is a civil contract.
According to the Christian Law, marriage is a conjugal union of a man and a
woman which arises from a free consent of each spouse.[12]
In Hindus, it is the union of two people for not only this life but for the
upcoming seven lives whereas in Christian law, divorce is not considered as a
good option. In Muslims, the girl is gifted to a man in exchange of Mehr or
Dower.
Introduction of Uniform Civil Code
(UCC) in India has been a matter of debate recently. Uniform marriage laws will
form a major part of the Uniform Civil Code and it would aim to create a single
framework for marriage that would be applicable to all the citizens in India
irrespective of the religion they follow. Uniform marriage laws will bring all
the marriage related laws of different religions under the same roof. The
concept would be based on providing equal rights to every individual and
simplifying the legal system by eliminating the irrationality that has arisen
in recent times because of the existence of multiple personal laws.[13] Uniform
marriage laws under the UCC would include legal uniformity, gender equality,
simplification of legal processes, secularism and national integration.
The 21st Law Commission of India
which was headed by Justice Balbir Singh Chouhan suggested that implementing
UCC might not not be necessary at this time. The committee instead suggested
certain reforms under the existing personal laws for the time being.They
believed that such amendments would aim to ensure equality among all
irrespective of their religion. However, the implementation of uniform marriage
laws would be challenging as it would require careful consideration of India's
diverse culture. It would involve legislative changes and possibly a
re-evaluation of the existing practices to ensure that the new laws are fair
and respectful for all the religions.
Then the 22nd Law Commission of India was established with Justice
Rituraj Awasthi as the head. After consultation, the commission issued a
consultation form for the public to know the public opinion on UCC.[14]
Implementation of Uniform Marriage
Laws would ensure a simplified legal system. A single code would govern all the
marriages in India and hence promote equality and secularism among everyone.
Women belonging to all the religions would have equal rights in their marital
relationships. Certain social evils from the society would be removed like
polygamy, the legal age to marry would be made uniform throughout the country.
This would also help in enhancing the global image of India. It would reflect modernization
as the country would be committed to upholding equality and justice within the
nation keeping aside the various discrepancies personal laws. Harmonious
construction of all the conflicting personal laws into a single code would help
in simplifying the process.
The existence of Special Marriage
Act, 1954 shows that secular marriage laws can be enacted in India without
hurting the religious sentiments. The Special Marriage Act of 1954 is a
regulatory law that governs both inter caste and inter religious marriages in
India. It also covers marriages between an Indian and a foreigner. Such laws
can be implemented and made uniform for all the citizens in India without considering
their religion. Registration of marriages could be made compulsory for every
citizen. Uniform marriage laws would ensure that all the marriages have a
standard legal procedure for solemnization.
CHALLENGES OF UNIFORM MARRIAGE LAWS
Although it seems like
uniform marriage laws would bring a great reform in the personal laws of India,
it is very challenging to implement the same in a place with such a diverse
culture. Some of the major challenges that the Central Government would face
while implementing uniform marriage laws are- lack of agreement between all the
communities, threat to the freedom of religion, loss of cultural diversity and
the fear of majority rule.
As we know, India is a
country with a vast culture. People belonging to all the religion profess here.
Customary laws and practices are deeply ingrained and vary widely across the
country. The constitution of India promises the right to religion as a
fundamental right. The existing personal laws are believed to be the protectors
of their religion and making a uniform marriage law for all would hurt such
sentiments. India is a country with the majority of Hindu population and many
religious communities oppose the uniformity as a fear of majority rule. They
view it as a threat to their rights and customs. Implementing uniform marriage
laws would also be hindered by the political parties as Indian politics is greatly
influenced by religions.
Moreover, harmonizing
various personal laws into a single code would be a complex task for the policy
makers. Evaluating the differences and considering a uniform code abiding by
the Indian Constitution would be a difficult task. A single
law involves a multifaceted process that requires expertise and consistency
across various aspects. Firstly, policy makers must thoroughly analyze the existing
laws of different religions and identify similarities and differences among
them. This process entails a deep understanding of the historical, cultural,
and religious contexts in which these laws were developed. Secondly, experts
must navigate complex legislative procedures to propose and draft a unified law
that addresses the key aspects of marriage, such as age requirements, consent,
registration procedures, and dissolution processes. Achieving consistency
across these aspects is crucial to ensure fairness and equality under the law.
Moreover, it would not
be easy for all the communities to adapt with the uniform marriage laws. It
might lead to social discontent between communities and lead to a nationwide
protest against such laws. Administration of such uniform laws would also be
challenging, and it would require a better administrative framework.
CONCLUSION
In conclusion, implementing uniform
marriage laws in India presents both possibilities and challenges. On one hand,
uniform marriage laws would aim to create a single framework applicable to all
the citizens in India promoting equality, secularism and justice. However, on
the other hand, uniform marriage laws would face significant challenges for
implementation. The diverse cultural practices, concerns about freedom of
religion and fear of majority rule would arise within the different
communities.
In the case of S.R. Bommai v. Union
of India[15],
Justice Jeevan Reddy ruled that religion is a matter of personal faith for
individual communities, and they have the right to follow their own customs
without interference from uniform laws. This ruling upholds the concept of
"positive secularism" in India, which emphasizes the separation of
individual spiritual beliefs from state intervention. Article 25 of the Indian
Constitution guarantees the right to freedom of religion, allowing individuals
to practice their own faith. However, this right is subject to limitations
concerning public order, morality, and peace.[16]
Therefore, the implementation of uniform marriage laws which are just and
equitable for all the citizens should not harm the religious sentiments of
people.
As the legal framework evolves, the
introduction of Uniform marriages in the form of UCC would represent as a
significant step towards rationalizing and simplifying the legal system
governing marriages. For implementing uniform marriage laws in India, extensive
consultation is required between all the religious communities. The needs and
requirements of all of them should be addressed in the making of the new laws.
Awareness campaigns should be conducted to teach people about the benefit of
uniform laws.
[1] Saha, S. (2023). UNIFORM CIVIL
CODE IN INDIA: ISSUES & CHALLENGES (journal-article). Indian Journal of Law
and Legal Research (Vol. V, pp. 3796–3796).
[2] Uniform Civil Code in
India: Balancing Uniformity and Diversity in Personal Laws, Legal
Service India (Feb. 26, 2024), https://www.legalserviceindia.com/legal/article-13954-uniform-civil-code-in-india-balancing-uniformity-and-diversity-in-personal-laws.html
[7] D. Rai, Marriage
Under Muslim Law: All You Need to Know, iPleaders (Feb. 15, 2022), https://blog.ipleaders.in/marriage-under-muslim-law/
[8] Christian Law Regarding Marriage
and Divorce in India: Indian Christian Marriage Act, 1872, Legal
Service India, https://www.legalserviceindia.com/legal/article-1764-christian-law-regarding-marriage-and-divorce-in-india-indian-christian-marriage-act-1872.html
(last visited Mar. 4, 2025)
[9] R. Garg, Marriage Laws in India:
An Analysis of Legal Solemnization of Marriages, iPleaders (Jan. 12,
2021), https://blog.ipleaders.in/marriage-laws-india-analysis-legal-solemnization-marriages/.
[10] ibid
[11] Uniform Civil Code in
Goa: A Legacy from the Portuguese Era, Legal Service India,
https://www.legalserviceindia.com/articles/goa_ucc.htm (last visited Mar. 4,
2025)
[12] A.H. More, Conditions for Valid
Christian Marriage, The Legal Quotient (Nov. 4, 2022), https://thelegalquotient.com/family-laws/christian-laws/valid-christian-marriage/702/
[13] Uniform
Civil Code in Family Law: A Progressive Step for India, Legal Service India, https://www.legalserviceindia.com/legal/article-13479--uniform-civil-code-in-family-law-a-progressive-step-for-india.html
(last visited Mar. 4, 2025)
[14] After Previous Panel
Rejected Uniform Civil Code, Law Commission Seeks Public Views Afresh,
The Wire, https://thewire.in/government/law-commission-uniform-civil-code-notice
(last visited Mar. 4, 2025)
[16] Uniform Civil Code in
Goa, Legal Service India, https://www.legalservicesindia.com/article/2157/Uniform-Civil-Code-in-Goa.html
(last visited Mar. 4, 2025)
Article Information
SACRED BONDS OR LEGAL CONTRACTS- ANALYZING RELIGIOUS MARRIAGES IN INDIA AND THE UCC DEBATE
Authors: ANSHU KIRAN SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/06
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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