ANALYSING THE MAJOR MARRIAGE SYSTEMS IN INDIA

Sarah Azad

ABSTRACT

Marriage can indeed be regarded as a significant and pivotal experience in a person 's existence. Regardless of just about any views, norms, laws, religion, or other factors, marriage is a notion that exists in all religions. Regardless of the various differences in their different religions, both Hindu as well as Muslim laws place a high value on marriage. Nevertheless, the approaches to marriage taken by these different cultures are diametrically opposite. In plain terminology, these faiths are all on the same journey to the very same objective, but they are using separate approaches to get there. Marriage, as per Hindu law, is about bringing two people together for the rest of their lives so they can follow their dharma, arth, and kama. Marriage, on the contrary side, is a formal agreement involving two people with complete permission and free choice, as per Muslim law. The purpose of this study project is to compare and contrast marriage under Hindu and Muslim legislation. Firstly, we'll look at the goal and purpose of both cultural marriages based on their ritual foundations in a comprehensive examination. Secondly, by contrasting their individual spiritual origins, we shall show how the cultural marriage's goal and purpose are completely distinct from one another. Thirdly, we'll examine the structure of both marriages, and finally, we'll look at how Hindu and Muslim legislation treat interfaith marriages. This study will additionally discuss the legality of Hindu and Muslim marriages. Both faiths have different perspectives on marriage, that will be discussed in this journal article.

Keywords: Hindu, Muslim, Dharma, Arth, Karma, legal contract, validity.

INTRODUCTION

Marriage is regarded as a traditionally acknowledged formalized unity of 2 people in an intimate connection that binds them financially, constitutionally, and psychologically. Marriage is the start of a household and is regarded as a lifetime obligation The notion of privileges and obligations amongst couples, and also respective offspring and in-laws, is established through marriage. The reasons, traditions, and form of marriage vary per faith, yet it all argument boils down towards the unity of 2 individuals at the conclusion of a day.

Whenever it relates to marriage, the contrasting examination of Muslim and Hindu marriage will illustrate how well these different systems have various objectives, customs, causes, and situations.

Marriage, as per Hindus, is a holy bond and the last of 10 rituals which could not be dissolved. They further think that marriage is a sacred connection which is formed from birth to birth so even demise cannot split the marital connection.[1]  According to historical traditions a female is her husband's better half, whereas a male is indeed worthless without her. This demonstrates how marriage is viewed in the Hindu faith. Nevertheless, in more recent years, the Hindu idea of marriage has evolved from a sacramental to a sacred institution.

The term "Nikah", that is Arabic for "contract", is used to describe Muslim marriage. Marriage, as per Muslims, is an agreement, as the word implies. The Nikah is regarded as an agreement with the purpose of reproduction and the legalisation of offspring.  Marriage is a contractual arrangement, not a sacramental, as per Mahomed Law. All of the privileges and liabilities it provides take effect instantly and are therefore not contingent on any prior circumstance including the paying of dower by the married couple.[2]

This demonstrates how well these two marriages are diametrically opposed. So, in order to gain a deeper grasp about what and how the above 2 cultural weddings vary, we shall contrast them in various ways –

  1. Nature of Marriage

  2. Objectives of Marriage

  3. Approaches within marriage

  4. Allowance of Inter Faith Marriage

  5. Essential of Marriage

  6. NATURE OF      MARRIAGE

As per Muslim law, marriage is an unadulterated common agreement while some different legal advisers say that it's a strict ceremony in nature. In any case, Muslim individuals consider Mohamed as the prophet which is sent by god as indicated by him "Marriage among Mohamed isn't a holy observance, yet simply a common agreement; and however it is solemnized for the most part with the recitation of specific refrains from the Quran, yet the Muhammad law doesn't decidedly endorse any assistance exceptional to the event." The fundamental of the Muslim marriage is like the fundamental of the common agreement. A Muslim marriage can't occur without a proposition, acknowledgment, thought, free assent, legal article and capability of the gatherings which are additionally fundamental with regards to a common agreement.

In Hindu law marriage in "a strict holy observance wherein man and lady are bound in a perpetual relationship for the physical, social and profound need of dharma, multiplication and sexual joy." According to Hindu law, in a marriage the couple has a suffering bond which is lasting in nature and will not earn back the original investment after their demises. There is a conviction that once a couple get tied in the obligation of marriage then that tie can't be loosened. Additionally, Hindu marriage is a strict and sacred association of the lady of the hour and husband to be which is important to be performed by the strict functions. Yet, this idea changed when Hindu marriage act came into picture. As per Hindu marriage act there were conditions for marriage like intellectual ability, free assent and legitimate age for marriage. These terms which are added to the Hindu marriage through the Act made it seems like an agreement. The attributes of Hindu marriage was characterized as lasting dissolvable association, everlasting association and heavenly association however this was crushed. Initially, the separation was got an acknowledgment.[3]Besides, the widow remarriage likewise came into picture and thirdly, despite the fact that marriage is considered to heavenly demonstration it went to degree the legitimate character had more significance in the marriage. After the Hindu Marriage Act, 1955 the Hindu marriage turned into a sacred which is the mix of an agreement and holy observance. The idea of both strict relationships is very surprising from one another. Muslim individuals accept that it's an unadulterated common agreement between two individuals to sanction the sex and reproduction of the kid, which by implication says it's an agreement to help each other inside their cutoff points limited by their privileges and commitment. With regards to Hindu marriage, it viewed as the main holy observance out of 16 ceremonies which are available in Hinduism. Despite the fact that the nature changed after the acquaintance of Hindu Marriage Act with control the Hindu marriage however for quite a while individuals actually believed it to be an unadulterated ceremony.

In Muslim marriage individuals are limited by the agreement yet with regards to Hindu marriage, they accept that it's sort of relationship which can't be equaled the initial investment after the demise of the either gathering of the marriage and they likewise accept that man is deficient without ladies. The point and the fundamental thought of Hindu marriage is considered as heavenly demonstration which is to finished one's life while then again, the Muslim marriage is consider to be an agreement all along and its temperament has not changed even after numerous progressions in the legitimate angle. In this way, it can consider that the Muslim marriage had a useful methodology about the marriage from the beginning while the Hindu's had profound way to deal with marriage by thinking about it as a sacred demonstration.[4]

  1. OBJECTIVES      OF THE CULTURAL MARRIAGES

UNDER HINDU LAW

  1. Dharma

The fundamental point of Hindu marriage was 'dharma'. For a Hindu, marriage is intended for the satisfaction of his dharma or strict obligations. As of now referenced, Hindu accepts that man is fragmented without lady. Likewise, if the spouse kicks the bucket, the house holder should get a second wife for playing out the commitments on the grounds, as indicated by them. Wife is a strict need of the Hindus.

  1. Descendants      or praja

The second point of the marriage is multiplication of kids, especially male kid. Hindu believes that the child saves the dad from going to damnation. Along these lines, the introduction of the male youngster has been raised among the Hindus that turned into a strict obligation.

  1. Sex      satisfaction or Kama

Indeed, even the sex satisfaction is one of the points of the Hindu marriage, however it's tge most un-attractive point of the marriage as per them. Despite the fact that sex is significant for the sound improvement of character of an individual, the Hindu scholars didn't believe it to be the sole point of the marriage.

  1. Rina or      obligation

There are three obligations which a man needs to reimburse in the course of his life.

● Deva Rina-obligation towards the god who made the universe

● Rishi Rina-obligation towards the instructor who empowered us to satisfy our commitments.

● Priti Rina-obligation towards our precursor who conceived an offspring.

  1. Socio-cultural      progression

Under this idea, the Hindu marriage have two methodologies. In the first place, for the congruity of the general public, it's a commitment of a person to build up a house hold and multiply another part to add to the general public. Second, it is obligation of each householder to pass on the social and customs of his Kula to the future

UNDER MUSLIM LAW

As per Muslims, marriage ought to just be embraced, subsequent to acquiring a comprehension of all that Allah has recommended as far as rights and commitments just as acquiring a comprehension of the shrewdness behind this establishment.

The two fundamental points of Muslim marriage are as per the following:

● Reproduction

Reproduction is the fundamental motivation behind marriage for the Muslim people group. They gets hitched with the reason to proceed with their bloodline and to contribute in the complete Muslim populace. Albeit this reason can be likewise accomplished without the marriage, however such an activity is considered as insubordination to Allah and they accept that this way they will not get the gift of Allah. The law doesn't just direct them to bring forth youngster yet it says to deliver a noble kid who is loyal to Allah.

● Joy

As indicated by Muslims the longing of man and lady for one another is a urge which should be satisfied. Indeed, even they perceive the fascination among people. The prophet likewise says that this fascination is something regular and not something to be denied or stifled. Along these lines, they think about this joy as second point of the Muslim marriage.

While contrasting both strict relationships, it is very well seen that multiplication and sex are the two points which are regular between the two of them. In Hindu law,[5]they didn't give a lot of significance to sex delight and set it in the third spot, while in Muslim law it gets set on the runner up with a sensible and pragmatic explanation. With regards to reproduction, both the laws give significant spot to it however the Muslim law demands and puts more accentuation on having exemplary youngsters. In Hindu law, there is a presence of victimization of female kid, which says that 'solitary male youngster will keep his dad from going to damnation'. In any case, in Muslim law there is no such separation and its point are entirely sensible in each perspective. In Hindu law they gave three additional points. In that dharma is viewed as most elevated point of Hindu marriage and says that marriage is a commitment which is by implication said when they talk about the multiplication under Muslim marriage. At that point comes the obligations part which is absent under Muslim law with regards to points of marriage. Ultimately, they talk about sociocultural progression which is tied in with passing their practice to their future and commitment of building up family. This point of building up family is as of now referenced in the reproduction in Muslim marriage.

  1. APPROACHES      WITHIN RELIGIOUS MARRIAGE

In Hindu religion, meanwhile, both males and females are prohibited from marrying non-Hindus. Males and females are both exposed to the identical constraints, therefore there is zero difference. Polygamy is permitted within Muslim religion however it is prohibited within Hinduism. Females have certain privileges within Muslim rule if their spouse has greater than one bride, but such privileges are completely useless within Hindu rule since polygamy is prohibited. Dower is a secret weapon for Muslim females because it provides financial stability. Whenever it pertains to Hindu laws meanwhile, there really is no such concept as dower for females, although there is dowry for males. [6]

In terms of constitutional aspects, both cultural marriages have undergone significant adjustments. Once it relates to the essence of marriage Muslim legislation has traditionally depicted it as an agreement, whereas Hindu law has undergone significant modifications, transforming Hindu marriage from ceremonial to sacred. Individuals have a misconception that Muslim rule gives females fewer privileges than other religions' laws, even though there are no significant distinctions among Muslim and Hindu female privileges following marriage, with the exception of polygamy, interfaith marriage, and dower.

Whenever it relates to interfaith marriage, Muslim females are prohibited from marrying anybody other than Muslim males, while Muslim males are permitted to marry kitabi. Within Muslim law, there is a definite distinction among males and females.

In Muslim religion the goal of marriage is baby propagation and pleasures, whereas in Hindu rules the primary objective is dharma, following with offspring, sensual enjoyment, and Rina. In Hinduism, the next highest essential goal of marriage is to have offspring, especially a boy child. Putra, meaning son, is said to rescue the parent from burning into hell. Inequality exists within Hindu rule that does not exist within Muslim rule. As a result, Muslim law takes a much more rational approach to marriages.

Whenever it relates to same-sex marriages, Muslim legislation expressly prohibits it, although Hindu legislation is ambiguous on the subject. There were few paintings from the past that depicted the same sex relationship. Furthermore, several writings, including the Kamasutra, represented this relationship, thus we may presume that it was permitted in earlier civilizations. Hindu law is much more liberal unlike Muslim law on such regard.

Muta marriage is a transitory marriage permitted by Muslim religion it is a commitment involving a Muslim man and a Muslim woman. As per this, they would remain united for a set amount of duration before being split at the end of the allotted span. Although numerous individuals regard this relationship to be realistic, it goes against certain people's personal ethical values. In Hindu religion meanwhile, there really is no such thing as a transitory relationship.

If polygamy as well as the prohibition against same-sex marriages are removed, Muslim marriages could be deemed greater feasible. Although Hindu marriage lacks practicalities in a couple areas as well as takes a much more ethical and religious perspective to relationship.

  1. ALLOWANCE      OF INTER-FAITH MARRIAGES

UNDER HINDU LAW

Marriages among those who practised Hinduism, Jainism, or Sikhism are legal. Marriages among Hindus and non-Hindus were found to be lawful in several situations. There was really no provision in Hindu laws prohibiting the content of marriages among Hindus and non-Hindus, however the Hindu Marriage Act prohibits marriages among Hindus and non-Hindus who do not fall into one of the 4 primary classes of Hindus, and these marriages would be illegal if undertaken within India. The Hindu Marriage Act declares that marriages among Hindus and non-Hindus are null and invalid, unless the lex loci allows it, a marriage among a Hindu and a non-Hindu can take place in an international nation. However, underneath the Special Marriage Act of 1954, a relationship involving a Hindu and a non-Hindu is legal.

UNDER MUSLIM LAW

Inter-religious marriages is becoming more widespread in contemporary world. Whenever it pertains to inter-religious marriages, Muslim religion does have its own series of laws and restrictions.

A Mahomedan male, in addition to a Mahomedan female,[7]may engage into a lawful marriage with a kitabia, as per the Muslim doctrine (Jewess or Christian). If he marries a fire worshipper or idolatress, though, it would be considered an unusual wedding rather than a null. A Mahomedan female, unlike a Mahomedan male, is unable to engage into a legitimate relationship with anybody other than another Mahomedan male. Once she marries a non-Muslim, whether kitabi or non-kitabi, the relationship would be deemed unusual but not invalid.

There really is no discrimination among invalid and abnormal marriages in Shia doctrine. Owing to this legislation, marriages can either be lawful or invalid, and there is no such concept as an unusual relationship. In addition, within Shia rule, marriages which are deemed abnormal, the same marriages, within Sunni law are ruled invalid.

Even while Sunni law recognises unusual marriages and would never deem them invalid, these unions have their unique set of problems. An unusual relationship doesn't really establish equal privileges of succession among the man and a woman, and it could be cancelled at the whim of any partner.

  1. ESSENTIALS      OF MARRIAGE

UNDER HINDU LAW

The following are the elements that must be present in order for traditional Hindu marriages to be legitimate:[8]

  1. Free consent

The basic need for validating the marriages is free will. Permission must not be obtained through threats or force.

  1. Competent parties

(i) Majority- At the moment of relationship, the man must be 21 years old and the woman must be 18 years old. Only thereafter would the matrimony be regarded legal.

(ii) Sound mind- At the period of matrimony the individual must be free of lunacy or psychiatric illnesses.

  1. Monogamy

The conduct of marrying two alive brides before concluding the separation from the former spouse or the demise of the former spouse is regarded prohibited in Marriage ceremony.

  1. Sapinda relationship

Unless the local culture or traditions permit it, the union must not come underneath the sapinda connection or beyond the extent of any forbidden groups.

UNDER MUSLIM LAW

The foregoing are just the elements that must be present in order for the Muslim marriages to be legitimate:[9]

  1. Proposal and acceptance

Muslim marriages seems to be a contractual arrangement, as previously stated. As a result, the request and approval are required. The offer is called a "ijab", and the acceptance is called a "qubul". The other side or on representation of one side must make a proposal, which must be approved by the other side. In addition, the proposal and acceptance should take place at the identical time.

  1. Capability of the gatherings

a) Major- for the Muslim marriage, the time of marriage is viewed as when an individual arrives at the period of adolescence. As per hedya, the time of pubescence is 9 years for female and 12 years for the male. The Privy Council on account of "Muhammad Ibrahim v. Akita begum &Anr Muslims" held that time of getting pubescence should 15 years. At this age the individual can give their own assent without relying upon their gatekeeper.

b) Sound mind- Sufficiency of psyche, both the parties ought to be of sound brain when going into the marriage contract in light of the fact that a shaky brain has no ability to go into the agreement.

  1. Free assent

For a legitimate marriage, the free assent ought to be available. In the event that the assent is acquired through extortion, error or compulsion, it's viewed as invalid. Free assent of grown-up parties is totally vital to approve the marriage. Particularly under Sunni school presence of two male observers during marriage is necessary.

  1. Dower

It's additionally alluded as 'Mahr'. It's the measure of cash or the property which a spouse provides for his significant other while getting hitched. It's the privilege of the spouse to get dower from her significant other. In the event that the man of the hour is poor, at that point he can instruct Quran to his significant other as a dower.

Under Muslim law, there are relationships that can't be allowed under particular conditions. Those denied classifications are isolated into four sections:

a) Total insufficiency

b) Relative inadequacy

c) Prohibitory inadequacy

d) Registry insufficiency

When evaluating the legitimacy of cultural weddings both faiths agree on the importance of mutual agreement and moral conscience throughout the union. According to Hindu teachings, marriage is not an agreement, and therefore there is no notion of solicitation and approval. Dower is a term found mostly in Muslim culture. It is regarded as a duty put on the man to treat his spouse with regard. So, as per Islam Muslim community it should be donated and a precise quantity should be paid, although there is an exemption for those who are unable to do that. Conversely, there really is no such idea in Hindu laws. The maturity level of majority is a similar feature of both spiritual weddings, however the stage at which it is referred to as majority is unique in each. As per Hindu policy an individual is permitted to possess three to 4 relationships, and the 5th matrimony is deemed polygamy, that also happens to fall under comparative lack of capacity. In Muslim rules a husband is permitted to possess up to four relationships, and the 5th wedding is regarded polygamy, that also tends to fall under comparative lack of capacity. Furthermore, there are specific relationships in both religion unions where a person cannot marry, such as sapinda relationships in Hindu weddings and total inability in Muslim unions.

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CONCLUSION

Marriage not alone connects two individuals united, but it generally connects two families around each other. These 2 ritual unions are diametrically opposed to one another. In this academic research, we compared Hindu and Muslim marriage laws in terms of their structure goals, and objectives, as well as their legitimacy and privileges. As we contrasted the characteristics of both spiritual marriages we discovered that Muslim marriage policy takes a realistic strategy because it is viewed as a straight legal transaction, whereas Hindu marriage law takes a religious perspective because it views marriage as sacred.

While we examine the goals of both weddings, we could see that the major goal of Muslim legislation is to legalise sex and production of offspring, whereas Hindu legislation does not place such a high value on sex fulfilment. Hindu marriage prioritised dharma, something I regard to be the most important religious duty, as well as social and cultural connection, which states that married people would have an impact on future generations.

Through both traditional marriages and civil marriages we found that voluntary agreement mentally competent, and seniority were common features within either systems. There's really, though, a distinction in the age of large proportion for marriage within both statutes. Several situations in both ritual unions nullify the partnership, which would be categorised into four groups within Muslim legislation and Sapinda connection in Hindu laws. In Muslim legislation interfaith marriage is prohibited for women, but men are permitted to marrying a kitabi female, and in Hindu law, both genders are subject to the same restrictions under the Hindu Marriage Act. Dower is required in Muslim marriages as a show of affection for the woman, although there is nothing equivalent concept as dower in Hindu legislation In Hindus, only monogamy is permitted, although in Muslim rules a male may marry up to 4 women Both religions marriages have their very own distinct style. If we eliminate the issue of polygamy, Muslim marriage has a realistic perspective but Hindu marriage has a religious one.

References

Menski, W. And Solanki, G., 2019. Hindu law: Marriage. In Routledge Handbook of Religious Laws (pp. 263-278). Routledge.

Carroll, L., 1983. The Muslim family in India: Law, custom, and empirical research. Contributions to Indian sociology, 17(2), pp.205-222.

Mubarki, M.A., 2014. Exploring the ‘Other’: inter-faith marriages in Jodhaa Akbar and beyond. Contemporary South Asia, 22(3), pp.255-267.

Uberoi, P., 1995. When is a marriage not a marriage? Sex, sacrament and contract in Hindu marriage. Contributions to Indian sociology, 29(1-2), pp.319-345.

A Nair, U., 1955. Essentials of Valid Hindu Marriage Under Hindu Marriage Act 1955. Essentials of Valid Hindu Marriage Under Hindu Marriage Act.

Singh, R.K., 2015. Textbook on Muslim law. Universal Law Publishing.

Sonawat, R., 2001. Understanding families in India: A reflection of societal changes. Psicologia: Teoria e Pesquisa, 17(2), pp.177-186.

Ziadeh, F.J., 1957. Equality (kafā'ah) in the Muslim Law of Marriage. The American Journal of Comparative Law, pp.503-517.

[1] Menski, W. And Solanki, G., 2019. Hindu law: Marriage. In Routledge Handbook of Religious Laws (pp. 263-278). Routledge.

[2] Carroll, L., 1983. The Muslim family in India: Law, custom, and empirical research. Contributions to Indian sociology, 17(2), pp.205-222.

[3] Barman, M., 2016. Dharmasūtras and Modern Hindu marriage (Vivāha).

[4] Ziadeh, F.J., 1957. Equality (kafā'ah) in the Muslim Law of Marriage. The American Journal of Comparative Law, pp.503-517.

[5] Uberoi, P., 1995. When is a marriage not a marriage? Sex, sacrament and contract in Hindu marriage. Contributions to Indian sociology, 29(1-2), pp.319-345.

[6] Sonawat, R., 2001. Understanding families in India: A reflection of societal changes. Psicologia: Teoria e Pesquisa, 17(2), pp.177-186.

[7] Mubarki, M.A., 2014. Exploring the ‘Other’: inter-faith marriages in Jodhaa Akbar and beyond. Contemporary South Asia, 22(3), pp.255-267.

[8] A Nair, U., 1955. Essentials of Valid Hindu Marriage Under Hindu Marriage Act 1955. Essentials of Valid Hindu Marriage Under Hindu Marriage Act.

[9] Singh, R.K., 2015. Textbook on Muslim law. Universal Law Publishing.