Activism of Indian Courts on Marriage and Religion

Last updated on May 11, 2010

Posted on May 11, 2010

Marriage is a strange thing.  And the way the courts have been deciding recently in India, they seem to be doing a lot more activism than citizens of other countries may allow.

Here are some of the interesting decisions that the Indian Courts and the Government have recently taken which combine their take, both, on religion as well as marriage – laws for which are in many ways intertwined.

Muslim man’s marriage to Non-Muslim woman: Basically the Allahabad High court says that the marriage of a Muslim man will be void if the bride from other religion does not convert to Islam before marriage.

The Allahabad High Court has held that a Muslim man’s marriage to a woman of another religion shall be considered void and against the tenets of Islam if he fails to get her converted to the religion before wedlock.  In its order, a division bench comprising Justices Vinod Prasad and Rajesh Chandra also ruled that remarriage of a Muslim man shall be held void if he abandons his first wife without divorcing her and fails to treat children born of the marriage in a fair and just manner.
The order was passed on Monday when the bench dismissed a writ petition of one Dilbar Habib Siddiqui, a resident of Allahabad, who had married a Hindu girl named Khushboo on December 29, last year.  Siddiqui had moved the court with the plea to quash the FIR lodged against him by Khushboo’s mother Sunita Jaiswal alleging that he had kidnapped her daughter, a minor at that time, and had compelled her to marry him.

Khap Panchayat and Hindu Marriage Act:  A lot of debate and discussion is going on about the concept of Khap Panchayats – which are tribal in nature.  Government has stepped in to keep it separate from the Hindu Marriage Act.

Union law minister Veerappa Moily on Tuesday ruled out amending the Hindu Marriage Act in order to accommodate the Khap Panchayat’s demands.
“We have suggested to amend the simple marriage act, not the Hindu Marriage Act,” he added.  Moily comment comes just a day after Congress MP and industrialist Navin Jindal said that he had never said anything to support the honour killings committed by the Khap Panchayats.

Live-in Relationships and pre-marital sex: Staying together without marriage is no offence, now says the Indian Supreme Court.  Also any physical intimacy before marriage is no crime.  The purists in the society are obviously aghast, but the Court is interpreting the society as it changes in the current times.

In an observation that will cheer votaries of pre-marital sex and live-in-partners, the Supreme Court on Tuesday opined that a man and woman living together without marriage cannot be construed as an offence.
“When two adult people want to live together what is the offence. Does it amount to an offence? Living together is not an offence. It cannot be an offence,” a three judge bench of Chief Justice K G Balakrishnan, Deepak Verma and B S Chauhan observed.
The court said even Lord Krishna and Radha lived together according to mythology.  The apex court said there was no law which prohibits live-in relationship or pre-marital sex.

While the courts can say whatever the heck they want, it would be great if they can stay away from the religious interpretations and show their shallow knowledge!

Krishna left Vrindavan at the age of 16.. yes SIXTEEN!  Even if one were to say that Krishna started “young”, what kind of a “Live in” relationship could a 16 and 17 year old have at that time in a small village??   And he NEVER returned back to Vrindavan after that!  This absolute nonsense is what just makes me mad.  Even these smart ass judges – educated presumably – are shallow and low on knowledge!

Hindu Marriage Act and the NRIs: The Hindu Marriage Act does not apply to NRIs who have gotten married by that act, if they are domiciled abroad.  Now, how does that work?? Even if I am an Indian citizen and got married in India.. now, simply because I live abroad, does it mean that I LOSE my rights in India as a married man??  How asinine can the courts get??

A desire to get married the traditional way attracts young non-resident Indian couples to tie the knot in India, but the Hindu Marriage Act (HMA) may not be applicable to them if they are domicile of a foreign country. The Bombay high court has said that the HMA cannot apply to an estranged couple who were domiciled in the US.
Justice Roshan Dalvi quashed an order of the Pune family court which had said Indian courts would have jurisdiction to hear a divorce case even if the couple had resided for a single day in the city when they came to India for a holiday.
The court was hearing a petition filed by Michigan-based Smita Muley who had got a divorce from a US court. Her husband Suhas Muley came back to India and filed another divorce petition in a Pune court.
“The man cannot confer jurisdiction on the court of Pune where the couple never stayed together for any length of time in their own matrimonial home (India), they having had their matrimonial home in the US,’’ said the judge. “The HMA itself does not apply to the couple conse-qu-ent upon their domicile in the US and also because the rights between the parties have been settled by a judgment conclusive between them.’’

So, do you see where the Indian courts are going?  They are interpreting – freely, and at times in a rather shallow manner – the religious stuff and marriage itself!

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