ISSN: 2456–5474 RNI No.  UPBIL/2016/68367 VOL.- VII , ISSUE- XII January  - 2023
Innovation The Research Concept
Nature of Marriage Under Personal Laws: A Latest Study
Paper Id :  17103   Submission Date :  13/01/2023   Acceptance Date :  20/01/2023   Publication Date :  25/01/2023
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Chandra Jeet Singh
Associate Professor
Dept. Of Law
Government Law College
Kota,Rajasthan, India
Abstract Marriage is a pious relationship between two opposite sex persons. It is a miracle relation, which is incomparable to other relation. In this article discussed nature of marriage under various existing laws, and tried to explain actual situation of marriage in Indian context. Marriage may be either sacrament or a civil contract .it will be depend on our legal grounds, which have been discussed in this article.
Keywords Personal Laws, Common Laws, Marriage Institution, Doctrine of Fault Theory, Mutual Consent, Breakdown Theory, Judicial Separation, Reinstitution Of Conjugal Rights, Divorce, Dissolution Of Marriage, Void And Voidable Marriage , Talaq, Muta Marriage , Illa ,Jihar , Khula , Mubarat, Valid , Voidable And Irregular Marriage, Family Court ,Sharia Law, Hindu Marriage. Secularization, Supreme Court Etc
Introduction
In this paper we will discuss various personal as well common laws related to marriage, like : the Hindu marriage act, 1955, Muslim, Christian, parse laws, the Hindu widow remarriage act 1856 and special marriage act,1954 etc. after observing all facts of the laws, nature of marriage to be decided in present situation.
Aim of study If we see the ancient laws related to Hindu marriage then will find marriage is a permanent relation between spouses. If we read Muslim law then primafacie Nikah is a civil contract. Under special marriage act, 1954 marriage is just like a contract. In this article we will try to understand exact meaning and nature of marriage and rights and duties of the marriage spouses. Main object to write this article to introduce new gentry that marriage is not a game or breakable relationship, we should respect it honestly and peacefully. Because it is not matter of two persons, but it creates a civilized society. Therefore if specific legal ground which easily cannot be avoid available, we should not take step of divorce. Marriage gives us happiness, prosperity, harmony and permanent relationship among the family members.
Review of Literature

John M. Grohgol, 1997 in this  literature describe  that in  marriage   to strengthen the relationship they need to seven principles love, respect, value each other. Let your partner influence you, creating an inner life together.  Therefore to maintain marital life is very important.

Daniel lees 2007 and Riggio and Weiser 2008 both described that marital life also has an effect on people’s emotional or psychological well being. Research has consistently found that married couples have higher levels of emotional and psychological well being than singles, divorced and cohabiting couples. Other explained that parent’s marital interactions and the way they treat each other can influence the attitudes of their children in their own intimate relationship. The above studies focused on strengthening the relationship, commitment, satisfaction, love, understanding, valuing each other, creating an inner life together and promotion of well being. Journal of social studies education research 2021 according this customary and traditional rituals are valuable. Suleman & Maksum, 2017, Sumarni, 2018. 15 April 2020 the literature states that changing pattern of Hindu marriage concept states  that Hindu marriage is becoming contract slowly- slowly. 22 Jun 2022. Legal service India e-JOURNAL BY ISHWITA MONDAL – according this marriage is a contract or a religious sacrament. As per this literature marria ge is a social institution and it plays vital role in society. It is the means to carry forward our society. In contract all type of basic features are not available. Noshiravan h. Jhabvala book 2012 to be discussed in this article. https#www.yourarticlelibrary. com . Indian Christian Marriage act 1872 literature are  also reviewed. Indra Sharma vs. V. Sharma on 26 November 2013,  Praveen Tendon vs. Tanika Tendon on 7 June, 2021, Prabha  Tyagi vs. Kamlesh  Devion 12 May 2022 cases also reviewed in this article, live in  relationship  in the nature of marriage or civil union.
Main Text

In Hindu religion there is a confusion or conflict that marriage is a sacramental union or a contract. In Muslim law it is basically a civil contract. According to Hindu Vedas, Shastras Marriage is a sacrament because from since very early religious rites and ceremony are required strictly for a complete marriage. It is believed that marriage indissoluble in nature and the ties remains even after the death. It is a means to get moksha. For a Hindu marriage is a sanskara, if we read the Vedas, Vedas explained that marriage is the union of the flesh with flesh and bone with bone. Calcutta high court has decided that Hindu marriage is more religious than secular in character. But in some court cases were decided different things, like in purshottamdas versus purshottamdas (21 Bom. 23), marriage of Hindu children is a contract made by their parents. Muthusami versus masilamani (33 mad 342) the court observed that a marriage whatever else it is a sacrament, but also a contract.  In Bhagwati Saran Singh versus Parmeshwari Nandar singh, 1942ILR ALL518 in this case court again decided that according to macnghten,s hind law , starange,s Hindu law and Vyavastha  chandrika,  Hindu marriage is not only a sacrament but also a contract. Therefore we can say that in uncodified Hindu law a Hindu marriage to be treated a sacrament and a contract.  After observing all cases the concept of Hindu marriage is a issue of contract and sacrament, because the Hindu marriage act 1955 inserted three theories like; fault theory, mutual consent theory and break down theory etc which provide legal grounds to both spouses to marry, on above grounds they are entitled to get decree of judicial separation, divorce, and restitution of conjugal rights under sections 10,13,9. It becomes marriage contract. But section 5 and 7 of the Hindu marriage act 1955 explained different things which are not found in Contract Act, 1872 like  religious ceremony ( 7steps before fire , party of marry should not be  non Hindu, party of marry should not be   sapinda and within the prohibited degree of  relationship . marriage gives permanent relationship among the various social persons. It makes different from contract. Under Muslim Law marriage defines a contract, but some religious concept make it different. Therefore it is also a partly sacrament like Maher,  kalme in presence of kazi, they must follow religions  rules etc. The special marriage act, 1954 and the Hindu marriage act 1955 have enabled marriages between persons of different castes and religions. Arya Samaj institution increasing inter caste marriage. Indian Christian Marriage act 1872 is also explained terms and conditions for a valid marriage. Minimum age 21 and 18.under this act marriage is religion function because it must be completed according to provisions of the act. Under Christian religion marriage can seek dissolution of her marriage under the Indian Divorce Act of 1869. It makes different from contract.

 
Conclusion 1. Marriage under the Hindu marriage Act, 1955 although defined sacramental and partly contract, but over all study on this matter explained that it is not a part of trade , it is a social and religious institution which is required to run the community. 2. Contract is made for special purposes and for certain timing, but this concept is not applicable in matter of marriage. 3. Contract is made in lieu of consideration; in marriage consideration is not required. 4. Matrimonial remedies are available under the various personal as well as common law , but they are totally different from contractual remedies 5. Article 21 provides protection of life and personal liberty, it means not right to remarry, only in specific grounds that are required to protect humanity, to be applied to take advantage of Matrimonial remedies.
Suggestions for the future Study 1. Today we are facing problems that cases of divorce are increasing day by day in court. We shall have to find reasons; how can we maintain basic objects of marriage.
2. Main theme of the Hindu marriage is to establish permanent relation between spouses, because it is said that marriage relation is not of one birth, but is a relation of seven births. Therefore more research is required on this subject.
3. Further study is also required so that new generation may understand differentiate contract and sacrament nature
4. Marriage is not trading or business therefore in case of marriage our should be updated/ amended for removing contractual word. Today new law on marriage is also required to maintain dignity of marriage institution. If first wife is alive and marriage is not dissolved by competent court then no one should be allowed for second marriage.
5-In civilized society marriage should not be contract to maintain article 21 of the Indian constitution.
References
1. https#www.legalserviceindia.com 2. Principles of Hindu law Noshiravan h. Jhabvala book 2012pages61-80 3. Lexis nexix student series Butterworth’s, poonam pradhan saxena2004 4. R.K Agarwal HINDU LAW CLA2017 PAGE30-34 5. Indian constitution of india- basu article 21 and 14.Byjus 6. https#www.yourarticlelibrary. com 7. Indian Christian Marriage act 1872 8. INTERNATIONAL JOURNAL OF LAW MANAGEMENT(https#www.ijlmh.com) 9. Legislative.gov.in , https#legislative.gov.in
Endnote
1. H.T . CHRISTIAN DEVELOPMENT OF FAMILY FIELD STUDY, IN H.T. T . CHRISTENSEN (ED) CHICAGO; RAND MCNALLY AND COMPANY ,1964 P3-32.
2. The Hindu Marriage Act b,1955
3. In Bhagwati Saran Singh versus Parmeshwari Nandar singh, 1942ILR ALL518
4. Purshottamdas versus purshottamdas (21 Bom. 23),
5. Indian Christian Marriage act 1872 literature are also reviewed. Indra Sharma vs. V. Sharma on 26 November 2013,
6. Praveen Tendon vs. Tanika Tendon ON 7 JUNE, 2021, Prabha Tyagi vs. Kamlesh devion 12 May 2022 cases also reviewed in this artivcle, live in relationship in the nature of marriage or civil union.