A lot of controversy was created recently by an advertisement of Tanishq jewelers which allegedly promoted love jihad by showing a Hindu girl married into a Muslim family. The advertisement had received a huge backlash from people whose religious sentiments were hurt by it. As a result, Tanishq issued a clarification and withdrew the advertisement without apologising. This has become a sort of norm for big brands and companies to give moral sermons particularly in the name of promoting ‘religious harmony’ through advertisements.
The Tanishq advertisement projected an ideal picture of interreligious marriages which is far from the reality of many interreligious marriages in India. The advertisement showed a Muslim household accommodating the customs and rituals of their Hindu daughter-in-law. Even if one chooses to overlook the social reality of such interreligious unions, the legal aspects of a marriage between a Muslim and a Hindu speak loud and clear. Here is a look at the nature of marriage between a Hindu and a Muslim under the Muslim law as applicable in India:
Unlike Hinduism, Islam strongly advocates for marriage and does not promote celibacy. Marriage under the Islamic law is a contract and not a sacrament like in Hindu law. Under the Muslim law, marriage between a Muslim and a Hindu is not considered as a valid marriage. And therefore, several rights do not arise in such a marriage. However, according to Supreme Court, children born out of such marriage are legitimate and are entitled to claim a share in father’s property.
There are mainly three types of marriage (Nikaah) under the Muslim. law- sahi, batil and fasid which mean valid, void and irregular respectively.
Valid Marriage (Sahi)
Sahi nikaah under the Muslim law is a valid marriage in which all the pre-requisites of a valid marriage are fulfilled. The husband and the wife enjoys all the mutual rights and obligations arising from the marriage. The children born of a sahi marriage are legitimate and have the right of inheritance in their parents’ property.
Void Marriage (Batil)
In a void marriage, the mutual rights and obligations of the spouses do not arise and the children born out of such marriages are considered illegitimate. A marriage is void under Muslim law for the following reasons: (i) Consanguinity (when contracted between parties having same ancestor), (ii) Affinity (kinship relationship),(iii) Fosterage, (iv) Marriage with the wife of another man and remarriage with a divorced wife when legal bar still exists.
Being a void marriage, the parties to a batil marriage do not have any mutual rights of inheritance. However, if the marriage has been consummated, the wife is entitled to customary dower.
Irregular Marriage (Fasid)
This is the category in which the marriage between a Muslim and a Hindu falls until the Hindu partner converts to either Islam or Christianity or Judaism in case of wife or to only Islam in case of husband. A fasid marriage is an irregular marriage under the Muslim law which is rendered irregular due to lack of some formality or due to some impediment which can be rectified. Though the irregularities do not make the marriage unlawful, the irregularity must be done away with for the marriage to become valid.
Among the several reasons that make marriage under Muslim law irregular or fasid, one is the difference of religion. The difference of religion does not render a marriage irregular if the wife, if she is not a Muslim, converts to Islam, Christianity or Judaism and in the case where the husband is not a Muslim, if he converts to Islam. But the marriage of a Muslim with an idol worshipper or a fire worshipper is not a valid marriage and is considered fasid under the Muslim law unless conversion happens in the above-mentioned manner.
So, applying the law to a situation where the wife is a Hindu and the husband is a Muslim, the marriage will be an irregular or fasid marriage. It will have no legal effect unless it has been consummated. Even after consummation, the wife will only be entitled to dower but she will have no right of inheritance to her husband’s property.
Therefore, the marriage shows in the Tanishq ad is an irregular marriage as per Islamic law, and the Hindu daughter in law does not have equal legal rights as others in the family.
Muta Marriage (Marriage for Pleasure)
There is one more category of marriages under the Muslim law called the ‘Muta’ marriage. The word ‘Muta’ means enjoyment or use. Muta marriage is a marriage for pleasure and is contracted for a temporary period. This type of marriage is not recognised by any school of Muslim law India except the Shia school and even among the Shias the marriage is almost non-existent in India. In this kind of marriage the period of cohabitation is fixed. A Muslim man can contract Muta marriage with a Muslim, Christian, Jewish or a fire-worshipping woman but not with the woman of any other religion. A Muslim woman, however, cannot contract a Muta marriage with a non-Muslim. There are no mutual rights of inheritance of the spouses in a Mutah marriage but the woman is entitled to dower. A Muslim man can contract Muta marriage with as many woman as he wants.
