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Hindu Law
From thousands of years people living in the Indian subcontinent have been
leading their lives by following the guidelines and concepts given in the Vedas.
These guidelines have evolved into rules followed by the people and enforced by
the rulers and have thus become de facto law. In this modern times, the same laws
have been retrofitted to suit present conditions and have been codified in the form
of several acts of which the important ones are - Hindu Marriage Act 1955, Hindu
Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956,
and Hindu Succession Act 1956.
Application of Hindu Law
A precise definition of Hinduism does not exist. Hence, it is impossible to define a
fixed criteria for determining who is a Hindu. So a negative definition of 'who is
not a Hindu' is used. Further, in this land, several religions have been born and they
they follow the same customs and practices. So it cannot be said that Hindu Law
can be applied only to people who are Hindus by religion. Due to these reasons, in
general, the following people are considered to be Hindu with respect to
application of Hindu Law.
Hindu by Religion - A person who is Hindu, Jain, Bauddha, or Sikh by religion. In
Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus such
as Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because
they follow the same basic concept of Hindu Philosophy. Converts and Reconverts
are also Hindus. SC, in the case of Peerumal v Poonuswami AIR 1971, has held
that a person can be a Hindu if after expressing the intention of becoming a Hindu,
follows the customs of the caste, tribe, or community, and the community accepts
him. In Mohandas vs Dewaswan board AIR 1975, Kerala HC has held that a mere
declaration and actions are enough for becoming a Hindu.
Hindu by Birth - A person who is born of Hindu parents. If only one parent is a
Hindu, the person can be a Hindu if he/she has been raised as a Hindu. In Sapna vs
State of kerala, Kerala HC, the son of Hindu father and Christian mother was held
to be a Christian.
bestowing wealth to the kinsmen and to the bride according to his own will.
-Rite of the Gandharva - the voluntary union of a maiden and her lover, which
arises from desire and sexual intercourse for its purpose.
-Rite of the Rakshasa - forcible abduction of a maiden from her home after her
kinsmen have been slain or wounded and their houses broken open.
-Rite of the Pisaka - when a man by stealth seduces a girl who is sleeping or
intoxicated or is mentally disbalanced or handicapped.
>Essential conditions of a VALID Hindu marriage:
Section 5
marriage may be solemnized between any two Hindus, if the following conditions
are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,(a) is incapable of giving a valid consent of it in consequence of unsoundness of
mind; or
(b) though capable of giving a valid consent has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and the
procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the
age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the
custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not 'sapindas' of each other, unless the custom or usage
governing each of them permits of a marriage between the two;
>Boy is over 21 and girl is over 18. years of age.
>Ceremonies for a Hindu Marriage (ACCORDING to section7)
(1) A Hindu marriage may be solemnized in accordance with the customary rites
and ceremonies of either party.
(2) Where such rites and ceremonies include the 'saptapadi' (that is, the taking of
seven steps by the bridegroom and the bride jointly before the sacred fire), the
marriage becomes complete and binding when the seventh step is taken.
VOID MARRIAGE
Grounds of void marriage are:(according to section 11)
>Performed in contravention of 5(i) 5(iv), or 5(v)
>Ceremonies in section 7 not performed.
>In contravention of section 15 - Divorce not granted yet or time to appeal has not
elapsed.
VOIDABLE MARRIAGE
according to section 12 voidable marriage are when:
>husband and wife are Unable to consummate - Impotence (not same as incapacity
to conceive or impregnate)
>marriage is In contravention of 5(ii) - Mentally unsound.
>Consent obtained by force or fraud.
>Girl was pregnant by some other person
NIKAH(muslim marriage)
Definition, objects and nature:
>DEFINATION-The legal contract between a bride and bridegroom as part of
muslim marriage is called nikah.
Nikah is an Arabic term used for marriage. It means "contract". The Quran
specifically refers to marriage as "mithaqun Ghalithun,". Which means "a strong
agreement".
The original meaning of the work nikah is the physical relationship between man
and woman. It is also used secondarily to refer to the contract of marriage which
makes that relationship lawful.
"A contract that results in the man and woman living with each other and
supporting each other within the limits of what has been laid down for them in
terms of rights and obligations."
Essential Condition Of Nikah
Nikah is based on few conditions. When these conditions are fulfilled, then a man
and a woman are proclaimed as husband and wife and can live together and carry
on their marital duties. These are:
>OBJECTS Of Nikah
-Procreation (Children)
One of the most important purposes of marriage is to continue and increase the
population of the Muslims. Clearly, this goal could be achieved without marriage,
but when actions are undertaken in disobedience to Allah, they do not receive the
blessing of Allah and the whole society is corrupted. The Prophet said:
-Pleasure
Islam is the religion of the fitrah- the religion which is consistent with the natural
instincts and needs of mankind. It is not like the man-made (of modified) religions
which set unnatural constraints on people whether self-inflicted prohibition of
marriage (nuns and monks, etc.), prohibition of divorce or monogamy. Men are
inclined toward women and women are inclined toward men. Marriage is the
institution which fulfills this desire and channels it in ways pleasing to Allah Most
High. Allah mentions this attraction:
The love of the desires for women, sons, ... has been made attractive to people.
>NATURE
Rights & Duties
>Kinds of Mahr
Mahr is of two kinds - Specified (Mahr i Musamma) and Customary or Proper
(Mahr i Misl)
Specified Dower means the dower that has been agreed upon by the parties at the
time of marriage. Such a dower can be settled before marriage, at the time of
marriage, or even after the marriage. In case of a minor or a lunatic, the guardian
can fix the amount of dower. Dower fixed by the guardian is binding upon the boy
and after attaining puberty or majority, he cannot take the plea that he was not a
party to it.
A husband can settle any amount as dower to his wife, even if that leaves nothing
to the heirs but he cannot settle for less that 10 dhirams in Sunni Law. Shia law has
no minimum. For those Muslims who are so poor that they cannot even pay 10
dhirams, they can teach the wife Quran in lieu of paying Mahr.
Specified dower can further be divided into two categories - Prompt (Mu Ajjal) and
Deferred (Mu Wajjal).
Mu Ajjal - As the names suggest, Mu ajjal dower means that the dower is payable
immediately upon the marriage.
The wife has a right to refuse cohabitation with the husband until she is paid the
dower.
If the wife is a minor, the guardian can refuse to allow the wife to be sent to the
husband until dower is paid.
Only after the payment of dower, the husband is able to enforce the conjugal rights.
However, if the marriage is consummated, the wife cannot refuse cohabitation after
that.
Prompt dower does not become deferred after consummation and the wife has the
right to demand and sue for it any time.
The period of limitation starts after demand and refusal and it is of three years.
Mu Wajjal - It means that the dower is payable upon dissolution of marriage either
by divorce or by death of husband.
Even though it is deferred, an agreement to pay be before is valid and binding.
A wife does not have a right to claim dower but a husband can treat it as prompt
and transfer property as payment.
A widow can relinquish her claim to dower at the time of the funeral of the
husband by reciting a formula, but her relinquishment must be a voluntary act.
The interest of wife in deferred dower is a vested one and her heirs can claim it
after her death.
Customary or Proper Mahr (Mahr i Misl)
When the amount of dower is not fixed in the marriage contract or even if the
marriage has been contracted on the condition that she will not claim any Mahr, the
wife is entitled to Proper Dower. The amount is to be arrived upon after taking into
consideration the amount of dower settled for other female members of the father's
family. It is also regulated with reference to the following factors age, beauty, fortune, understanding and virtue of wife.
social position of the father
dower given to her female paternal relations.
economic condition of the husband.
circumstances of the time.
There is no limit on the maximum limit in Sunni Law, but shia law prescribes a
maximum limit of 500 dhirams, which was the amount paid by Prophet
Mohammad for his daughter Fatima.