The concept of marriage is enshrined to be sacred in both Hinduism and Islam but, both the religions may have different ways to go about it. The concept of marriage under Hindu Law differs from the concept as compared  under Muslim Law. Under the two schools of thought, the marriages are legalised by virtue of the togetherness and union of two souls.

Concept of Hindu Marriage

Marriage is one of the necessary Samskaras(sacraments) or religious rites for all Hindus, whatever the caste, who do not desire to adopt the life of a perpetual Brahmachari or of a Sanyasi^[1]. An interesting fact about Hindu marriage is that the concept of marriage is said to be an essential part of one’s life rather than a choice or a luxury. According to Manu Smriti “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.” For a Hindu, an obligation lies to have a son so that he can payoff the debts of his ancestors by performing the spiritual and religious rites. More so that the man and woman are a sacred union and they are united in not only life which they live on earth but afterlife as well[2]. The wife is also considered the Ardhangini, or the ‘half of man’. According to Satpatha Brahmana, the wife is verily the half of the surgeon; Man is only half, not complete before he marries.[3] According to Narada and Parasara, they have given five instances where a woman can abandon a man viz;

1. when the husband is missing
2. when he is dead
3. when he has become an ascetic
4. when he is impotent
5. when he is an out-caste.

However, there is no bar on men as they can marry another woman when his wife dies.

Concept of Muslim Marriage

The Arabic word ‘Nikah’ (marriage) means “the union of sexes” and in law, this means “marriage” Nikka basically means two things, firstly togetherness and secondly, a contract of marriage between two parties[4]. The reason for marriage amongst Muslims is the uniting of two sexes to ensure a family and a lineage[5]. In Muslim law, Nikah is a contract for the legalization of intercourse and the procreation of children. 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 elements which define the contractual nature of a Muslim marriage are as follows:

• The parties to marriage must also be competent
• The marriage is not valid without the offer, acceptance and free consent of the parties or the guardians
• The terms of marriage contract within legal limits may be settled by the parties themselves.
• 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. ^[6]

DRAWING A COMPARISON

The most important social institutions that bind a family in India is marriage. 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[7]. In case of Hindus, marriage is governed by Hindu Marriage Act 1955 which is said to be the result of teachings given by Mitakshara and Dayabhaga Schools of law. According to section of HMA, the Act applies to any person who is a Hindu by both birth & religion as well as to the people following Buddhism, Jainism, and Sikhism. According to section 5 of HMA, for a Hindu marriage to be valid, some conditions which are necessary are that the marriage must be of a monogamous nature, neither party must suffer from unsoundness of mind, the male must be of 21 years of age and woman be 18 years. Apart from all these, the most important factor to be considered is that parties must not be related to each other in a way that they have any common ancestor to perform ‘Pind daan’. On the other hand, marriage under Muslim laws are solemnized as per the Muslim Personal Law (Shariat) Application Act, 1937 which also deals with divorce and succession apart from marriages. The Muslims consider Quran as the most important source as they believe that words and actions of the Prophet Mohammed are there. Validation of Muslim marriage is possible only if both the parties are Muslims. However, the conditions are slightly different in cases of Shias and Sunnis. Shias are free to marry a Jew, Parsi, Christian or a person from Kitabia religion in a Muta form of marriage[8]. Sunnis, on the other hand, are free to marry a person from Kitabia religion but the marriage will be of an irregular nature[9]. A person who has attained the age of puberty is free to enter into a contract of marriage. Marriages in Muslim law are of contractual basis which basically means that all the elements of a valid contract under the Indian Contract Act, 1872 will apply. For example, proposal and acceptance must both be expressed at one meeting in the presence of two male Muslims who are of sound mind and have attained puberty or one male and two female witnesses who are sane, adult and Muslim. One of the most important conditions of a Muslim marriage is the payment of Mahr or Dower. According to some sources of Muslim law, there needs to be a minimum dower of 10 dirhams and a maximum of 500 dirhams. Also, the woman are free to demand prompt dower any time during the marriage and the husband is obliged to pay.

CONCLUSION

However, it is to be noted that Muslims and Hindus can freely marry each other or a person of any other caste as per the provisions of the Special Marriage Act[10]. Taking a look at the above, we see that the two forms of marriage are vastly contrasting and there are several conflicts of ideology and procedure. Hindu marriage has certain outlooks on this matter which are grounded on principles and so does Muslim marriage. Although both the sects of marital beliefs may differ and conflict with the other, we cannot hold one above the other as the very institution of marriage is considered an important aspect in both religions. Both the religions have their own understanding of the institution of marriage and in relation to such have different ways to go about it. India, being a secular country cannot afford to hold one religion above the other and thus, both the forms of marriage may be considered to be held on the same level, although contrasting in their forms.

[1] Mayne’s-Hindu law & usage, 14^th edn. 1998, p.125, Bharat law house, New Delhi.

[2] Aakriti Vikas-Difference between Hindu & Muslim marriage, Difference between Hindu and Muslim marriages (legalbites.in), visited on 01-07-2021 at 18:43hrs.

[3] Satpata Brahmana, v. 1,6.10

[4] Aakriti Vikas-Difference between Hindu & Muslim marriage, Difference between Hindu and Muslim marriages (legalbites.in), visited on 01-07-2021 at 18:43hrs.

[5] IBID.

[6] Dr. R.K. Sinha-Muslim Law, 5thedn. 2003, p.41; Central Law Agency, Allahabad.

[7] Subodh Asthana-Concepts of Marriage and Divorce under Hindu and Muslim Law, Marriage and Divorce in context with Hindu and Muslim Laws (ipleaders.in), visited on 01-07-2021 at 19:21hrs.

[8] Subodh Asthana-Concepts of Marriage and Divorce under Hindu and Muslim Law, Marriage and Divorce in context with Hindu and Muslim Laws (ipleaders.in), visited on 01-07-2021 at 19:44hrs.  

[9] IBID.

[10] IBID.

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