Title: Legal Aspect of Marriage and Divorce in India: A Comparative View Across

Religion

Abstract:
The Legal regulation OF Marriage the Divorce in India Reflects the nations pluralistic
Character, where Personal Laws based on Religion coexist with secular statutory framework.
While Hindu, Muslim, Christian, Parsi communities each follow distinct legal regimes, The
Special Marriage Act, 1954 provides a Secular alternative for interfaith or civil Marriage.
This multiplicity of Laws has created tensions between Personal Law and autonomy and
Constitutional guarantees of Equality, non- discrimination and gender justice. Over the years,
The Indian Judiciary has played a transformative role in aligning Personal Law practices with
Constitutional values, striking down Discriminatory provisions and recognizing individual
rights within the Institution of Marriage. This Article undertakes a comparative analysis of
the legal aspects of marriage and divorce across major religions in India, explores statutory
and judicial developments, also examines the debate surrounding the Implementation of
Uniform civil Code [UCC]. By situating Personal Laws within the broader Constitutional
framework, it seeks to evaluate whether India’s pluralistic system can reconcile religious
freedoms with gender Equality and Human Dignity.
Introduction:
Marriage in India is not merely a civil status, it is a cultural, social, and religious institution.
Each community perceives marriage differently for Hindus it is a sacrament, for Muslims a
contract, for Christians and Parsis a religiously sanctioned institution. Divorce long
stigmatized has become increasingly normalized with growth of statutory reforms and
judicial recognition of Personal Autonomy. India’s legal framework governing marriage and
divorce is complex because it is not unified. The Hindu Marriage Act,1955[HMA], The
Muslim Personal Law [Shariat] Application Act, 1937, The Christian Marriage Act, 1872,
The Divorce Act, 1869, and The Parsi Marriage and Divorce Act,1936, All Operate
Simultaneously alongside The Special Marriage Act, 1954, [SMA], Which secular civil
operation. The Supreme Court of India has repeatedly emphasized the need to harmonize
personal laws with constitutional guarantees under Article 14, 15 and 21 of the Constitution
of India cases such as Shayara Bano v. Union of Indiai [2017] and Joseph Shine v. Union of
India [2019]ii illustrate judicial interventions aimed at discriminatory analysis to highlight
points of convergence and divergence.
Hindu Law on Marriage and Divorce:
Marriage: The Hindu Marriage Act, 1955 applies to Hindus, Buddhists, Jains and Sikhs.
Section 5 sets conditions for a Valid Marriage: Monogamy, Soundness of Mind, Legal Age
[21 years for Men, 18 years for Women] and absence of prohibited Degree of relationships.iii
Unlike Western Jurisdictions where Marriage is a contract, Hindu Law continues to retain
sacramental elements emphasizing permanence and religious Duties. The Supreme Court in
Smt. Seema v. Ashwani Kumar [2006]iv directed compulsory Registration of Marriages for all
communities recognizing it as a safeguard for women’s rights and preventions of child
Marriages.

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Divorce: Section 13 of HMA provides fault-based grounds for divorce including cruelty,
desertion, conversion and adulteryv. The 1976 Amendment introduced mutual consent
divorce under Section13-B, reflecting a shift towards liberalizations. Indian Courts have also
recognized the Concept of Irretrievable breakdown of Marriagevi as a ground for divorce even
though it is not codified in HMA. In Shilpa Sailesh v. Varun Sreenivasan (2023)vii. The
willingness to adapt personal Law to contemporary realities.
Muslim Law on Marriage and Divorce:
Marriage: In Islamic Law Marriage [Nikah] is a contract with essential elements like: Offer,
Acceptance, consent and dower [Mehr] polygamy is permitted for men through
constitutionally contentious, The Muslim Personal Law [Shariat] Application Act, 1937,
reinforced the Applications of Sharia principles in Personal Matters.viii
Divorce: Muslim divorce takes various forms: Talaq [ Husband’s repudiation], Khula [
wife’s-initiated divorce with consent of husband], Mubarat [ Mutual Consent] and judicial
decree under the Dissolution of Muslim Marriages Act, 1939ix. In Shayara Bano v. Union of
India [2017], the Supreme Court declared instant triple talaq [Talaq -e -biddat],
unconstitutional for violating fundamental rights to equality and dignity. Subsequently,
Parliament enacted the Muslim Women [ Protection of Rights on Marriage] Act,2019
criminalizing instant triple talaq. Judicial Interventions have thus transformed Muslim
Divorce Law, reinforcing women’s rights within the framework of religious autonomy.
Christian Law on Marriage and Divorce:
Marriage: The Indian Christian Marriage Act, 1872 governs solemnization of Christian
marriages. Essential conditions include Monogamy, consent and performance before a
licensed minister or registrar.x
Divorce: Divorce was historically governed by the Divorce Act, 1869 which initially
required Christian women to prove adultery, cruelty and desertion while men could obtain
divorce on adultery alone. This gender bias was struck down in Ammini E.J v. Union of India
[1995]xi. Today, the divorce Act provides grounds such as Adultery, cruelty, desertion,
conversion and mental disorder. Mutual consent divorce was introduced in 2001 bringing
Christian Law closer to parity with Hindu Law.
Parsi Law on Marriage and Divorce:
Marriage: The Parsi Marriage and Divorce Act, 1936 mandates a religious ceremony known
as Ashirvad performed by a priest and compulsory registration. Monogamy is Mandatory
reflecting reformist tendencies within the Parsi Community.xii
Divorce: Grounds for divorce under the Act include adultery, cruelty, desertion, unsoundness
of mind and non- consummation within one year.xiii The Parsi Matrimonial courts with
community representatives have exclusive jurisdiction. This blend of religious and legal
authority underscores the community desire to preserve identity while embracing statutory
regulation.
Special Marriage Act, 1954
The Special Marriage Act provides a secular alternative enabling interfaith marriages and
civil unions. Conditions under Section 4 resemble those of HMA: Monogamy, Sound mind,
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Legal age. Divorce provisions under SMA align with HMA, Including Mutual
consentxiv.However, the Act requires a 30-day public notice before marriage, which has been
criticized for exposing interfaith couples to harassment. Such as in Safiya Sultana v. State of
U.P [2021]xv, have permitted couples to opt out of the notice period reflecting a judicial push
for privacy rights.
Constitutional Perspective:
The Constitution of India guarantees equality before Law [Article 14], Prohibition of
Discrimination [Article 15] and Protection of Life and Personal Liberty [Article 21]. Personal
laws however, often conflict with these principles. The judiciary has thus sought to balance
religious freedom with constitutional morality, progressively expanding individual rights
within personal law.
Conclusion:
India’s personal law system reflects its pluralistic ethos but also creates inconsistencies and
gender-based inequalities. Hindu Law retains sacramental elements but has liberalized with
mutual consent Divorce. Muslim Law rooted in contract, has been significantly reformed
through judicial and legislative interventions, particularly in safeguarding women’s rights
Christian and Parsi Law have progressively move toward gender neutrality, while the special
marriage Act offers a secular alternative. Yet, the Coexistence of Multiple Personal law
undermines uniformity and often perpetuates discrimination. The debate on UCC continues to
be politically and socially contested. While Judicial pronouncements have pushed for
harmonization, legislative reform is necessary to reconcile religious diversity with
constitutional guarantees of Equality, Dignity and Secularism. The future of Marriage and
Divorce Law in India lies in balancing respect for religious traditions with the imperatives of
constitutional morality. Achieving this balance will determine whether India can move
towards a truly egalitarian family Law regime.

i
Shayara Bano v. Union of India, (2017) 9 SCC 1 (India).
ii
Joseph Shine v. Union of India, (2019) 3 SCC 39 (India).
iii
Hindu Marriage Act, No. 25 of 1955, § 5 (India).
iv
Seema v. Ashwani Kumar, (2006) 2 SCC 578 (India).
v
Hindu Marriage Act, No. 25 of 1955, § 13 (India).
vi
Shilpa Sailesh v. Varun Sreenivasan, (2023) 7 SCC 1 (India).
vii
Muslim Personal Law (Shariat) Application Act, No. 26 of 1937 (India).
viii
Dissolution of Muslim Marriage Act, No. 8 of 1939 § 2 (India).
ix
Indian Christian Marriage Act, No. 15 of 1872, § 4 (India).
x
Parsi Marriage and Divorce Act, No. 03 of 1936, § 4 (India).
xi
Ammini E.J v. Union of India, (1995), 1 SCC 217 (India).
xii
Parsi Marriage and Divorce Act, No. 03 of 1936, § 4 (India).
xiii
Parsi Marriage And Divorce Act, No. 3 of 1936, § 32 (India).
xiv
Special Marriage Act, No. 43 of 1954, § 4 (India).
xv
Safiya Sultana v. State of Uttar Pradesh, 2021 (2) ALJ 363 (AII.).