INDORE INSTITUTE OF LAW, INDORE

SUBJECT: MUSLIM LAW

TOPIC: COMPARATIVE ANALYSIS OF MARRIAGE UNDER MUSLIM AND HINDU

LAW

SUBMITTED TO: SUBMITTED BY:

MRS. KUSUM JOSHI PARYUSHI KOSHAL

[B.A. LL.B]

ROLL NO. – 11

SESSION: 2018-2023

SEMESTER – 4th

1
 CERTIFICATE

This is to certify that Paryushi Koshal , B.A.LLB (HONS.) , 2 nd year – 4th semester
has successfully completed the project assignment in partial fulfillment of
requirements for the knowledge of Muslim law provided by Mrs. Kusum Joshi
prescribed by INDORE INSTITUTE OF LAW .

This assignment is the record of authentic work carried out during the academic
year 2020 - 21.

Signature of faculty ----------------------------

Date - ----------------------------

2
 DECLARATION

I hereby declare that the project assignment entitled ‘Comparitive analysis of

marriage under muslim and hindu law’ submitted for fulfilling the essential criteria
of INDORE INSTITUTE OF LAW, is a record of an original work done by me
under the guidance of Mrs. Kusum Joshi, B.A.LLB, Indore Institute of Law for
the Academic session 2020 – 21.

Paryushi Koshal

BA.LL.B (Hons.)

2nd year – 4th sem

3
 ACKNOWLEDGEMENT

Trust in the lord with all you heart and lean not on your own understandings; in all your ways
acknowledge him, and he will direct your paths.

It is not possible to prepare a project without the assistance and encouragement of other people.
This is certainly no exception. On the very outset of this project I would like to extend my
sincere and heartfelt obligation towards all the personages who helped me in this endeavour.
Without their guidance, help, cooperation and support I would not have made headway in this
project.

I am ineffably thankful to Mrs. Kusum Joshi for conscientious guidance and encouragement to
accomplish this assignment.

I extend my sincere gratitude to INDORE INSTITUTE OF LAW for giving me this

opportunity.

I also acknowledge a deep sense of reverence, my gratitude towards my friends and family
members who have always supported me morally as well as economically.

Last but not the least I want to thank THE ALMIGHTY who made everything possible.

4
 TABLE OF CONTENTS

1. ABSTRACT……………………………………………………………..6
2. INTRODUCTION……………………………………………………….7
3. HINDU MARRIAGE……………………………………………………8
4. MUSLIM MARRIAGE…………………………………………………11
5. DIFFERENCES BETWEEN HINDU AND MUSLIM MARRIAGE….13
6. CONCLUSION………………………………………………………….15
7. BIBLIOGRAPHY……………………………………………………….16

5
 1. ABSTRACT

Despite the differences in the religions, one thing that is common in all is “marriage”. Marriages
in India are one of the most important social institutions that bind a family. In India before the
enactment of any act or code, marriages were usually governed by social traditions, customs
which have been prevalent in that particular community or tribe from time immemorial.
Although, even after the enactments of such acts and codes, the customs and traditions of a
community holds a 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 from the  inception of such community. The reason as to why the acts and
statutes were drafted was to give a uniform framework and skeleton as to how a particular
community would be governed if it doesn’t have any customs and traditions as such. It also
aimed to prevent any anomaly which existed in a particular community. Therefore Marriage and
Divorce provisions have been separately drafted in the act.

Keywords: marriage, community, customs, act.

6
 2. INTRODUCTION

Since time immemorial marriage has been the greatest and most important of all institutions in
human society. It has always existed in one form or another in every culture, ensuring social
sanction to a physical union between man and woman and laying the foundation for building up
of the family – the basic unit of society. Marriage is an institution which legalizes the sexual
relations between man and woman so as to preserve the human species, the growth of descent,
promotion of love and union between the parties and the mutual help to earn livelihood'. It is
allowed between two persons of different sex to whose mutual cohabitation there is no natural or
legal bar or prohibition. Marriage, whether considered as a sacrament or as a contract, apart from
giving rise to certain mutual rights and obligations, confers the status of husband and wife on the
parties, and of legitimacy on the children of marriage.

For Hindus, marriage is a sacrosanct union. It is also an important social institution. Marriages in
India are between two families, rather two individuals, arranged marriages and dowry are
customary. The society as well as the Indian legislation attempt to protect marriage. Indian
society is predominantly patriarchal. There are stringent gender roles, with women having a
passive role and husband an active dominating role. Marriage and motherhood are the primary
status roles for women. When afflicted mental illness married women are discriminated against
married men. In the setting of mental illness many of the social values take their ugly forms in
the form of domestic violence, dowry harassment, abuse of dowry law, dowry death, separation,
and divorce. Societal norms are powerful and often override the legislative provisions in real life
situations.

The most remarkable feature of Muslim jurisprudence is that the Muslims considered marriage a
civil contract even at the beginning of the development of their juristic thought but to the extent
in which the Hindus and Christians call their marriage as sacrament, a permanent union, the
Muslim marriage too may be called an ibadat (devotional act). The Muslim conception of
marriage differs from the Hindu conception according to which marriage is not a mere civil
contract but a sacrament. There are no sacraments in Islam, not is it a coverture.

7
 3. HINDU MARRIAGE

3.1. Historical Refrences

Marriage is one of the necessary Samskaras (sacraments) or religious rites for all Hindus, what
ever the caste, who do not desire to adopt the life of a perpetual Brahmachari or of a sanyasi.1
The word ‘samskara’ is formed by uniting the verb “kr” with the word “Sam” and signifies a set
of ceremonies or rituals enjoined by the sastras in relation to an individual. The meaning of the
word “kr” is ‘imparts’ or ‘effects’. It effects a ‘fitness’ in the person regarding whom, the
samskara is performed.
Every Hindu must marry. “To be mother, were women created and to be fathers, men; the Veda
ordained that Dharma must be practiced by man together with his wife”.“He only is a perfect
man who consists of his wife, himself and his offspring”. “Those who have wives can fulfill their
due obligations in this world; those who have wives, truly have a family life; those who have
wives, can be happy; those who have wives can lead a full life”.
Thus, Hindus conceived of marriage as a sacramental union, as a holy union. This implies
several things. First the marriage between man and woman is of religious or holy character and
not a contractual union. For a Hindu, marriage is obligatory for begetting son, for discharge of
his debt to his ancestors, and for performing religious and spiritual duties. Wife is not merely a
Grihapatni but also Dharmapatni and Sahadharmini. According to Manu, husband and wife are
united to each other not merely in this life but even after death, in the other world. Its implication
has been that, widow remarriages as a rule was not recognised in Hindu law2.

3.2. Legal perspective

As part of the Hindu Code Bill, the Hindu Marriage Act was enacted by Parliament in 1955 to
amend and to codify marriage law between Hindus. As well as regulating the institution of
marriage (including validity of marriage and conditions for invalidity), it also regulates other
aspects of personal life among Hindus and the applicability of such lives in wider Indian
society.
1
Mayne’s-Hindu law & usage, 14th edn. 1998, p.125, Bharat law house, New Delhi
2
Manu Smriti, ix, 96; cited in Dr. Paras Diwan on Hindu Law, 2nd edn. 2005, p.547, Orient publishing company,
Allahabad

8
The Hindu Marriage Act provides guidance for Hindus to be in a systematic marriage bond. It
gives meaning to marriage, cohabiting rights for both the bride and groom, and a safety for their
family and children so that they do not suffer from parental problems.

3.3.Conditions for Marriage

Section 5 of The Hindu Marriage Act specifies that conditions must be met for a marriage to be
able to take place. If a ceremony takes place, but the conditions are not met, the marriage is
either void by default, or voidable. The conditions are-

1. Monogamy
2. Mental Capacity
3. Age of the parties (ie. 18 for females and 21 for males)
4. Prohibited degree of relationships
5. Prohibition of Sapinda relations 3

3.4.Voidable marriages
A marriage may be declared void if it contravenes any of the following:

1. Either party is under age. The bridegroom should be of 21 years of age and the bride of
18 years.
2. Either party is not of a Hindu religion. Both the bridegroom and the bride should be of
the Hindu religion at the time of marriage.
3. Either party is already married. The Act expressively prohibits polygamy. A marriage can
only be solemnized if neither party has a living spouse at the time of marriage.

4. The parties are sapindas or within the degree of prohibited relationship.4

3.5. Void marriages

A marriage is void (annulled) if it contravenes any of the following:

3
The Hindu Marriage Act, 1955
4
The Hindu Marriage Act, 1955

9
 1. Either party is impotent, unable to consummate the marriage, or otherwise unfit for the
procreation of children.
2. One party did not willingly consent. In order to consent, both parties must be sound of
mind and capable of understanding the implications of marriage. If either party suffers
from a mental disorder or recurrent attacks of insanity or epilepsy, then that may indicate
that consent was not (or could not be) given. Likewise, if consent was forced or obtained
fraudulently, then the marriage may be voidable.
3. The bride was pregnant by another man other then the bridegroom at the time of the
marriage.
4. Unsoundness of mind
5. Bigamy5

4. MUSLIM MARRIAGE

5
The Hindu Marriage Act, 1955

10
4.1. The Concept of Muslim Marriage:
The Arabic word ‘Nikah’ (marriage) means “the union of sexes” and in law, this means
“marriage”. The term ‘Nikah’ has been used for marriage under Muslim law. ‘Nikah’ literally
means “to tie up together”. It implies a particular contract for the purpose of legalizing
generation. Nikah in its primitive sense means carnal conjugation.
In Quran, the word Nikah has been used in both senses of sexual connection and of contract of
marriage. Quran prohibits Nikah with a woman with whom their fathers had Nikah.

The Quran’s injunctions regarding marriage are:

Marriage is recognized as the basis of society. Marriage as an institution leads to the uplift of
man and is a means for the continuance of the human race. Spouses are strictly enjoined to
honour and love each other. The prophet was determined to raise the status of woman. He asked
people to see their brides before marrying them; and thought that nobility of character is the best
reason for marrying a woman. It is a contract for the legalization of intercourse and procreation
of children. 6 The objectives of marriage are:
1. to provide legal validity to the sexual relationship of husband and wife.
2. to legalize the children. Without a valid contract of marriage, the intercourse between a man
and woman is unlawful.
Marriage legalizes also the children born out of that marriage. Children born out of any union
other than a valid marriage are illegitimate.
Legally speaking, Muslim marriage is a civil contract. Therefore, its legal nature is contractual.
Besides being a civil contract, Muslim marriage is also a social and religious institution.

Essentials of Marriage :
1. Offer (Ijab) and acceptance (Qubul)
2. Competent parties
3. No legal disability
4. Free consent
4.2 LEGAL ASPECT

6
. Dr. R.K. Sinha- Muslim Law, 5th edn. 2003, p.42; Central Law Agency, Allahabad

11
Legally, a Muslim marriage is considered as a contract; because the elements which
constitute a marriage and the manner in which it is completed, is almost similar to that of a
civil contract. The contractual nature of a Muslim marriage is explained on the basis of the
following elements:
1)The parties to the marriage also must be competent.
2) The marriage is not complete without offer, acceptance and free consent of the parties or
guardians.

3) The terms of marriage contract within legal limits may be settled by the parties
themselves.

4) Just as there are rules for regulating the rights and duties of the parties upon the breach
of a contract, there are also provisions for respective rights and duties of husband and wife
on divorce or dissolution of marriage
Therefore, the nature of Muslim marriage is similar to that of a civil contract. But only on
the basis of the above mentioned contractual elements, it is not correct to define it as
purely a civil contract. In its form, a Muslim marriage may look like a contract; but it is not
so in its essence. As is evident from the following arguments, its social aspect is also very
important.

5. DIFFERENCE BETWEEN HINDU AND MUSLIM MARRIAGE

12
i) Aims and ideals Hindu marriage is a religious sacrament, wherein religious sentiments play an
important role. Dharma is considered the primary aim of Hindu marriage; a son is desired to
offer pinda-dan to pitras. On the contrary, the Muslim ‘nikah’ is a contract for the satisfaction of
sexual appetite and procreation.

(ii) The endogamy rules restrict the Hindus to marry within their own caste. But among the
Muslims, marriage takes place between kiths and kins.

(iii) As regards the rules of exogamy, the Muslim community applies it to very near relatives.
But among the Hindus several types of exogamic rules prevail such as gotra exogamy, pravar
exogamy and sapinda exogamy which stipulate that the relatives of seven generations from the
paternal side and five generations from the maternal side cannot marry, each other.

(iv) As regards the features of the marriage system, in Muslim marriage, the proposal comes
from the boy’s side and it has to be accepted in the same meeting by the girl, in the presence of
two witnesses. The Muslims also emphasize on the capacity of a person to contract marriage.
They practise polygamy and have the consideration of irregular or void marriages. They have
also a preferential system in mate selection. On the other hand, the Hindus do not have the
custom of proposal and acceptance and they do not believe in the capacity of making a contract.
The Hindus do not favour polygamy and do not have irregular or void marriages or a preferential
system in mate selection.

(v) Hindu and Muslim marriages differ from each other in the very nature of marriage. Among
the Shia community of the Muslims there prevails a system of temporary marriage, called
‘muta’. In the Hindu society, there is no provision for temporary marriage. Furthermore, the
Hindus do not observe ‘iddat’ for contracting marriage.

(vi) The Hindus believe that in marriage, the wife and the husband are united together for seven
lives. As such, the Hindu marriage is indissoluble which comes to an end only after the death of
the spouses of course, at present the decision of the court is required for a dissolution of

13
marriage. On the other hand Muslim male can divorce his wife according to his whims.
Dissolution of marriage among the Muslims does not necessitate the intervention of the court.

(vii) Hindus look notwithstanding the enactment of laws for widow remarriage, the fact remains
that the Hindus look down upon widow remarriage and socially reject it. But the Muslims do not.
Muslim widow is allowed to remarry after waiting for the period of ‘Iddat’.

14
 6. CONCLUSION

Though there is a general consensus that the codification of Hindu law has immensely improved
the status of Hindu women but the importance of Islam on uplifting the status of women is not
widely accepted.
Islam improved the status of Muslim women. They were also given important rights. Islam
reformed the law of marriage and introduced only one form of marriage which is permanent
(nikah), though Ithna Asharis recognized a temporary marriage (muta) also. Islam laid down the
conditions for a valid marriage; for that it classified the marriages in to valid, void and irregular.

Islam provided for guardianship of marriage for marriages of minors and of unsound mind. It
also contained a provision for dissolution of marriage in such cases.

Islam provided a provided a provision for presumption of marriage under certain cases in the
absence of direct proof of marriage.

Islam prohibits limitless polygamy and no Muslim is now allowed to marry more than 4 wives at
a time.

Islam provided the unilateral pronouncement of talaq to the husband but denies the like power to
the wife unless delegated.

Apostasy of a Muslim husband results in an instant dissolution of marriage; but not so in case of
Muslim wife.

The Dissolution of Muslim Marriage Act, 1939 provided a relief of dissolution of marriage to a
Muslim wife on the grounds specified therein.

15
 7.BIBLIOGRAPHY

 The Hindu Marriage Act 1955

7.1.Books

 Dr Paras Diwan , Modern Hindu Law, Allhabad Law Agency 22nd edition (Reprint 2015)
 H.K. Saharay , Law of Marriage and Divorce, Eastern Law House,2007.
 Aqil Ahmad- “Mohammedan Law”, 21st edn. 2004, Central Law Agency, Allahabad.
 Dr. Mohammad Nazmi- “Mohammadan Law”, 2nd edn. 2008, Central Law Publications,
Allahabad

7.2.Articles
 Bagga, V. : “Locus of Matrimonial Home and right to Consortium”, Journal of the Indian
Law Institute.
 Sarkar, L. : “Status of women and Law as an instrument of social change”, Journal of the
Indian Law Institute.

7.3.Website
 http://www.yourarticlelibrary.com/muslim-marriage/muslim-marriage-essential-
conditions-and-prohibitions/47625
 https://www.lawtendo.com/blogs/complete-guide-on-hindu-marriage-act

16