Patanjali Dhar (RM (HRD)) 01 May 2016

Voilation of contract provisions under marriage laws

India is one of the few democratic Countries having personal laws for the minorities. While this may have some merits in ensuring the safety of the minorities but some people do misuse these laws. While there is complete freedom for the individual in India in the matter of religious conversion and marriage but the matter becomes complicated due to the operation of the personal laws of some of the communities. A marriage is a contract between the two parties but when the contract is heavily tilted against one of the parties, is it not incumbent upon the State to ensure that all the clauses of the marriage are explained to the parties, in particular weaker party? As per the civil law of the Country, both man and woman have equal rights in the contract of the marriage. In the personal law of a particular community, the marriage contract has clauses, which are heavily tilted against wife. e.g. i) A man can have four wives but wife can have no rights to take divorce in such situations. ii) A man can divorce his wife any time even without any cause or reason while as wife can not take divorce even on genuine reasons. iii) A man is master of his wife and can even reprimand his wife while wife is subservient to him. She has to live with other wives of the person if he wants to marry more than one wife. iv) Father has all the rights on the children while mother has almost no rights. As the tenets of the marriage contract are not explained to woman at the tiem of the marriage, can she plead before the Hon'ble Cour that such marriage should be deemed as dissolved as the terms and conditions of the contract have not been explained to her. As I know a contract become void if all the terms and conditions of the contract are not known to both the parties, particularly those which infringe upon the rights of one of the parties. Can any genuinely concerned Lawyer file a PIL on this issue in the Hon'ble Supreme Court?

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3 Replies

Vijay Raj Mahajan (Advocate) 02 May 2016

What you mentioned here is with regard to Shariat Law concerning Indian Muslims. The validity of triple divorce is already matter pending in the Supreme Court of India where notice to government of India and Muslim religious organizations has been served notice.

The Supreme Court if hold that triple divorce in Muslims is itself null and void, the whole scenario with regard to Muslim personal law's applicability in India will change. The present government in centre is all out for implementing the civil code statute in India where irrespective of religion for all civil matters concerning family matters including marriage, divorce, inheritance, custody of children a common civil law should be enacted and implemented. Its only the minority groups, Muslims and such other religions not in favor of common civil code otherwise the Supreme Court of India as well the Law Commission on India has on so many words asked the central government to bring about the common civil code as provided under Article 44 of the Constitution of India.

Kumar Doab (FIN) 02 May 2016

The apex court has taken notice of the matter.

Wait for the verdict.

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer) 02 May 2016

What is written pertains to Muslims. Though Muslim marriages are contracts, the contract terms are neither spelt out nor written down at the time of nikah. What are applicable are laws and not specific terms of contract. Girls will generally be young and follow the advice of parents. The parents can explain the applicable laws. No alterations in the laws unlike the terms of a contract are possible.