The Special Marriage Act was enacted to provide a special form of marriage by any person in India and all Indian nationals in foreign countries irrespective of the religion either party to the marriage may profess.

CONDITIONS NECESSARY FOR A MARRIAGE

The following conditions are necessary:

1. That neither party has a spouse living at the time of marriage.
2. That neither party is incapable of giving a valid consent to the marriage due to unsoundness of mind.
3. That neither party has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children.
4. That neither party has been subject to recurrent attacks of epilepsy or insanity.
5. That the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage.
6. That the parties are not within the degrees of prohibited relationship. However where a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnized non withstanding that they are within the degrees of prohibited relationship as follows :
**degrees of prohibited relationship-

A man and any of the person mentioned in part I of the first schedule and a woman and any of the person mentioned in Part II of the said schedule are with in the degrees of prohibited relationship.

Relationship includes-
a. relationship by half or uterine blood as well as by fool blood;
b. illegitimate blood relationship as well as legitimate;
c. relationship by adoption as well as by blood;
and all terms of relationship in this Act shell be construed accordingly.
"Full blood" and "half blood"- Two person are said to be related to each other by full blood when they are descended from the common ancestor but by different wives.
"Uterine blood"- Two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.
"Ancester" includes the father and "ancestress" the mother;

NOTICE OF INTENDED MARRIAGE

A notice has to be given in writing in the form given below to the Marriage Officer of the District in which at least one of the parties to the marriage has resided for a period of not less than 30 days immediately proceeding the date on which such notice was given.

PUBLICATION

The notice given is then published by affixing it in some conspicuous place in the office of the Marriage Officer, and before the expiration of thirty days from the date on which the notice was published any person can object to the marriage that it would contravene any of the conditions necessary for the marriage.
After the expiry of thirty days from the date on which the notice was published the marriage may be solemnized.

PLACE AND FORM OF SOLEMNIZATION

The marriage maybe solemnized at the office of the Marriage Officer, or at such place within reasonable distance, as the parties may desire, upon payment of such additional fees as may be prescribed.
The marriage may be solemnized in a form, which the parties may choose to adopt.
However, No marriage is complete and binding unless each party says to the other in the presence of the Marriage Officer and the three witnesses in any language understood by the parties, I_______take thee________to be my lawful wife (or husband)

CERTIFICATE OF MARRIAGE

After the marriage has been solemnized the Marriage Officer shall enter a certificate in the Marriage Certificate Book and this shall be signed by the parties to the marriage and the three witnesses and this shall be conclusive evidence of the marriage.

COSEQUENCES OF MARRIAGE UNDER THIS ACT
EFFECT OF MARRIAGE ON MEMBER OF UNDIVIDED FAMILY
Where any member of an undivided family who professes the Hindu, Bddhist, Sikh or Jaina religion marries a non- Hindu under this Act, he shall be severed from such family. However if two persons who are Hindus get married under this Act no such severence takes place.

SUCCESSION TO PROPERTY OF PARTIES MARRIED UNDER THIS ACT
Nonwithstanding anything contained in the Indian Succession Act, 1925 with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the Indian Succession Act. However if two persons who are Hindus get married under this Act the above provision does not apply and they are governed by the Hindu Succession Act.

The purpose and aim of establishing the Family Courts is to protect and preserve the institution of marriage and to promote the welfare of children and provide for settlement of disputes by conciliation. The Family Courts Act extends to the whole of India except Jammu and Kashmir.
Every State Government after consultation with the High Court establishes in every area in the state, a Family Court. One or more judges head it and preference is given to women judges.

SUITS OR PROCEEDINGS FILED IN FAMILY COURT
The Family Courts are empowered to deal with the following matters:
1. A suit or proceeding between the parties to a marriage for nullity of marriage or restitution of conjugal rights or dissolution of marriage.
2. A suit or declaration as to the validity of a marriage or as to the matrimonial status of any person
3. A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them.
4. A suit or proceeding for an order or injunction in circumstances arising out of a marital relationship.
5. A suit or proceeding for a declaration as to the legitimacy of any person
6. A suit or proceeding for maintenance.
7. A suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
Family Courts also have jurisdiction exercisable by a Magistrate of the 1st class relating to an order for maintenance of wife, children and parents under the Code of Criminal Procedure.

DUTIES OF FAMILY COURT
The family Court shall make an endeavor to assist and persuade the parties in arriving at a settlement.
If the Court feels that there is a reasonable possibility of a settlement the Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to arrive at a settlement.

FAMILY COURT - A CIVIL COURT
Family Court shall be deemed to be a civil Court (except for proceedings relating to Maintenance of wives, children and parents relating to the Code of Criminal Procedure).

PERSONAL APPEARANCE MANDATORY
No party shall be entitled as a right to be represented in a Family Court by a legal practitioner. The parties to the proceedings have to appear themselves and put forward their case.

RECORD OF ORAL EVIDENCE AND BY AFFIDAVIT
The Court shall record what the witness deposes and the memorandum shall be signed and form a part of a record. The Court may on the application of any of the parties summon and examine any such person as to the facts contained in the affidavit.

APPEAL
An appeal lies to the High Court from every judgement or order passed by the Family Court. However no appeal lies against a decree or order passed by the Family Court with the consent of the parties under proceedings relating to maintenance of wives, children and parents under the Code of Criminal Procedure.

LIMITATION
An appeal to the High Court from every judgement or order not being an interlocutory order passed by the Family Court has to be filed within 30 days.

MUSLIM MARRIAGE

Muslim Law in India means \" that portion of Islamic Civil Law which is applied to Muslims as a personal law\". It consists of injunctions of Quran and has been further supplemented and modified by state Legislation and modern judicial precedents of the High Courts and the Supreme Court of India and also of the Privy Council.
Marriage / \'Nikah\' according to Muslim Law is a contract underlying a permanent relationship based on mutual consent.

ESSENTIAL FEATURES

1. A Muslim marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the other as is required for a contract. Moreover there can be no marriage without free consent and such consent should not be obtained by means of coercion, fraud or undue influence.
2. Just as in case of contract, entered by a guardian, on attaining majority, so can a marriage contract in Muslim Law, be set aside by a minor on attaining the age of puberty.
3. The parties to a Muslim marriage may enter into any ante-nuptial or postnuptial agreement which is enforceable by law provided it is reasonable and not opposed to the policy of Islam. Same is the case with a contract.
4. The terms of a marriage contract may also be altered within legal limits to suit individual cases.
5. Although discouraged both by the holy Quran and Hadith, yet like any other contract, there is also provision for the breach of marriage contract.

REQUIREMENTS
The solomonisation of marriage requires adherence to certain forms and formulas. They are called the essentials of a valid marriage. If any of these requirements is not fulfilled the marriage becomes either void or irregular, as the case may be. Thus the essentials are as follows:
1. Proposal and Acceptance
2. Competent parties
3. No legal Disability

PROCEDURE
• Marriage like any other contract is constituted by ijab-o-qabool, that is by declaration and acceptance. One party to the marriage must make an offer (Ijab) to the other party. The marriage becomes complete only when the other party has accepted the offer.
• According to Muslim Law it is absolutely necessary that a man or someone on his behalf and the woman or someone on her behalf should agree to the marriage at one meeting and the agreement should be witnessed by two adult witnesses.
• The Words conveying proposal and acceptance must be uttered in each other\'s presence or in the presence of their agents, who are called Vakil\'s.
• The other condition for a valid marriage is that the transaction must be completed at one meeting. A proposal made at one meeting and an acceptance at another meeting do not constitute a valid marriage.
• There must be reciprocity between offer and acceptance. The acceptance must not be conditional
Under the Sunni Law, the proposal and acceptance must be made in presence of two males or one male and two female witnesses who are sane, adult and Muslim. Under Shia Law, witnesses are not necessary at the time of marriage. They are required at the time of dissolution of marriage.
• The parties contracting marriage must be acting under their free will and consent.

COMPETENT PARTIES & LEGAL DISABILITY
The Parties to a marriage must have the capacity of entering into a contract. They must be competent to marry. Muslim who is of sound mind and who has attained puberty may enter into a contract of marriage. The parties must be able to understand the nature of their act.

LEGAL DISABILITY
Means the existence of certain circumstances under which marriage is not permitted. These prohibitions have been classified into four classes: -
1. Absolute incapacity or prohibition
2. Relative incapacity or prohibition
3. Prohibitive incapacity
4. Directory incapacity
1. ABSOLUTE INCAPACITY OR PROHIBITION: arises from:
(a) Consanguinity
(b) Affinity
(c) Fosterage
a) Consanguinity means blood relationship and bars a man from marrying:
1. His mother or grandmother how highsoever,
2. His daughter or grand-daughter how lowsoever,
3. His sister whether full, consanguine or uterine,
4. His niece or great niece how lowsoever,
5. His aunt (fathers sister, mothers sister) or great aunt, how highsoever, whether paternal or maternal A marriage with a woman prohibited by reason of consanguinity is void. Issues from such marriage are illegitimate.

b) Affinity prohibits a man from marrying:
1. His wife\'s mother or grand-mother how highsoever
2. His wife\'s daughter or grand-daughter how lowsoever
3. Wife of his father or paternal grand-father how highsoever
4. Wife of his son or son\'s son or daughter\'s son how lowsoever A marriage with a woman prohibited by reason of affinity is void.
c) Fosterage means when a woman other than its own mother has suckled a child under the age of two years, the woman becomes the foster-mother of the child. A man may not, for instance, marry his foster-mother or her daughter, or his foster sister.

EXCEPTIONS
Under the Sunni law, there are a few exceptions to the general rule of prohibition on the ground of fosterage and a valid marriage may be contracted with:
1. Sister\'s foster mother, or
2. Foster\'s sisters mother, or
3. Foster\'s sons sister, or
4. Foster brother\'s sister.
The Shia jurists place fosterage and consanguinity on the same footing and refuse to recognize the exception permitted by the Sunnis. The above mentioned prohibitions on account of \'consanguinity\', \'affinity\' or \'Fosterage\' are absolute and the marriages contracted in contravention of these rules are void.

2. RELATIVE INCAPACITY OR PROHIBITION: Springs from cases which render the marriage invalid only so long as the cause which creates the bar exist. The moment it is removed, the incapacity ends and the marriage become valid and binding. The following are the cases:
a) Unlawful conjunction,
b) Polygamy, or marrying a fifth wife.
c) Absence of proper witnesses
d) Differences of religion
e) Woman undergoing IDDAT
a) Unlawful conjunction: means contemporaneously marrying two women so related to each other by consanguinity, affinity or fosterage, which they could not have lawfully intermarried with each other if they had been of different sexes. Thus a Muslim cannot marry two sisters, or an aunt and her niece.
Under the Shia Law, a Muslim may marry his wife\'s aunt, but he cannot marry his wife\'s niece without her permission. Marriage prohibited by reason of unlawful conjunction is void under Shia Law.
b) Polygamy or marrying a fifth wife: means plurality of wives, i.e. marrying a fifth wife. It is unlawful for a Mohammedan to have more wives than four.
A Muslim woman cannot marry more than one husband. If a woman marries a second husband, she is liable for bigamy under Sec.494, Indian Penal Code and the issues of such a marriage are illegitimate.
In India no Muslim marrying under or getting his marriage registered under The Special Marriage Act, 1954,can marry a second wife during the lifetime of his spouse.
c) Absence of proper witnesses: It is essential amongst the Sunnis that at least two male witnesses or one male or two female witnesses must be present to testify that the contract was properly entered into between the parties. The witnesses must be of sound mind, adult and Muslim.
In Shia Law, a marriage contracted by the spouses themselves or their guardians in private are held valid. Presence of witnesses is not necessary.
d) Differences of religion: A Sunni male can marry a Muslim female (Of any sect) or a Kitabia. Marriage with the Kitabia, i.e. a woman who believes in a revealed religion possessing a Divine Book viz Islam, Christianity and Judaism is valid under the Sunni Law. But he cannot marry an idolatress or a fire-worshiper. A marriage, however with a idolatress or a fire worshiper is merely irregular in Sunni Law, but void in Shia Law. A Muslim woman cannot marry any man who is not a Muslim, whether he is Kitabia (i.e. man believing in a revealed religion possessing a divine book) or not . According to Mulla, a marriage between a Muslim woman and Non-Muslim male is irregular. But according to Fyzee, such a marriage is totally void
Under Shia Law, no Muslim, whether male or female can marry a non-Muslim in the Nikah form.
Thus a marriage between a Muslim and a non-Muslim can only take place under The Special Marriage Act, 1954.
e) Woman undergoing Iddat: Iddat is a period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death of her husband to remain in seclusion and to abstain from marrying another husband
Under Sunni Law marriage with a woman undergoing Iddat is irregular and not void. But under Shia law marriage with a woman who is undergoing Iddat is void.

3. PROHIBITIVE INCAPACITY:
It arises in the following cases:
a) Polyandry
b) A Muslim woman marrying a non-Muslim
a) Polyandry: means the fact of having more than one husband. Polyandry is forbidden in the Muslim system and a married woman cannot marry second time so long as the first marriage subsists.
b) Muslim woman marrying a Non -Muslim: A marriage of a Muslim female with a non-Muslim male, whether he be a Christian, or a Jew or an idolator or a Fire-Worshiper is irregular under Sunni Law and void under Shia Law.

4. DIRECTORY INCAPACITY:
This may arise from:
a) Marrying a woman \'enceinte\': It is unlawful to marry a woman who is already pregnant by her former husband.
b) Prohibition of divorce: When the marriage is dissolved by the pronouncements of divorce three times, re-union is prohibited except after the lawful marriage of the woman with another man and then its being dissolved after consummation.
c) Marriage during pilgrimage: Under Shia Law, Marriage during pilgrimage is void.
d)Marriage with a sick man: Marriage with a sick man suffering from disease which is likely to be fatal is invalid. If however, he recovers and the marriage is consummated, it is valid.

POLYGAMY
Even in the present context, when all other religions enjoin monogamy, polygamy i.e. authority to marry up to four women is a privilege of Muslim men. Since it is one of the religious practices it is claimed to be immune from any legislative enactment.

CONVERSION TO ISLAM FOR THE SAKE OF LEGITAMISING A MARRIAGE
Skinner v. orde (1871) 14 M.I. A. 309. Helen Skinner was married according to Christian rites with George Skinner who died in the lifetime of Helen. Thereafter she cohabited with John Thomas who was married to Christian Wife, who was alive at that time. In order to legalize their union Helen and John both converted themselves into Islam. However their conversion was not held to be bona fide. It was held that this conversion was pretended for the purpose of Bigamy that was not permissible under the law.

Hindu Marriage

Marriage among the Hindus was considered a sacramental union and it continued to be so throughout the entire Hindu period.

The manu smriti says I hold your hand for saubhagya (good luck) that you may grow old with your husband, you are given to me by the just, the creator, the wise and the learned people.
Hindus conceived of marriage as a union primarily meant for the performance of religious and spiritual duties. It could not take place without the performance of sacred rites and ceremonies and it was a permanent and eternal union

However with changes in the society marriage among the Hindus which was essentially a sacrament partook the nature of a contract. The Hindu Marriage Act, 1955 covering entire India except the state of Jammu & Kashmir has reformed the Hindu law of marriage.

APPLICABILITY
Only if both the parties are Hindus can the marriage take place under the Hindu marriage Act.

The Act applies to :

1. any person who is Hindu, Buddhist, Jaina or Sikh by religion.
2. any person who is born to Hindu parents
any person who is not a Muslim Christian, Parsi or Jew, and who is not governed by any other law.

The Act does not apply :

1. to persons who are Muslims, Christians, Parsis or Jews by religion.
to members of the scheduled tribes coming within the meaning of clause (25) of Article 366 of the Constitution of India unless the Central Government by notice otherwise directs.

ELIGIBILITY
CONDITIONS OF A HINDU MARRIAGE
A marriage to be valid has to fulfill the following conditions:

(a) Neither party should have a spouse living at the time of marriage. The spouse does not include a divorced husband/ wife.
(b) At the time of marriage, the parties should be capable of giving a valid consent to the marriage. A person who is of a sound mind shall be considered to be a person capable to give a valid consent. Neither party, though capable of giving a valid consent should be suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children. Neither party should be suffering from recurrent attacks of insanity or epilepsy.
(c) The bridegroom should have attained the age of 21 years and the bride should have attained the age of 18 years at the time of marriage.
(d) The parties should not be within the degrees of prohibited relationships, unless the customs or usage, permits such a marriage.

Two persons are said to be within the degrees of prohibited relationships:

• If one is a lineal ascendant of the other. For example a Daughter can not marry her father and grandfather. Similarly, a mother can not marry her son or grandson.
• If one was the wife or husband of a lineal ascendant or descendant of the other. For example, a son can not marry his stepmother. Similarly, a person can not marry his Daughter-in -Law or son -in-law.
• If one was the wife of the brother or of the father\'s or mother\'s brother or the grandfather\'s or grandmother\'s brother of the other.
If the two are brother and sister; uncle and niece; Aunt and Nephew or children of brother and sister of two brothers or two sisters. It must have been noticed in some communities the marriage with the wife of the brother and mother\'s brother and the first cousins are solemnized, those marriages, in the absence of a custom in the community are not valid marriages.

(e) The parties are not apindas of each other, unless the customs or usage governing each of them permits of a marriage between the two. A apindas relationship with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father.
In plain words, a person can not marry upto his second cousin from the mother\'s side and upto his fourth cousin from the side of the father. It is also necessary the parties should not be apindas of each other from either side.
In case, either party has a spouse living at the time of marriage, within the degree of prohibited relationship and are apindas of each other, the marriage between the parties shall be null and void.

VOIDABLE MARRIAGES

Voidable marriages are those which are void at the option of the aggrieved party. Such marriages can be annulled by a decree of nullity on any of the following grounds :-

1. That the marriage has not been consummated owing to the impotence of the Respondent.
2. That the marriage is been performed with a person of unsound mind or having a mental disorder or suffering from recurrent attacks of epilepsy.
3. That the consent of the Petitioner or its Guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the Respondent.

To succeed on this ground, it is necessary that the Petition must be presented in the Court within one year after the force has ceased to operate or the fraud has been discovered. It is also necessary that after the force has ceased or fraud discovered, the Petitioner has not, with consent, lived with the other side.
That the Respondent was at the time of marriage pregnant by some person other than the Petitioner.

LEGITIMACY OF CHILDREN OF INVALID AND VOIDABLE MARRIAGES

The children born out of invalid and voidable marriages are legitimate children of the parties and are entitled to the share in the separate property of their parents.

ESSENTIAL CEREMONIES

A Hindu marriage can take place according to the customary rites and ceremonies.

The ceremony of saptapadi and kanyadana are important ceremonies prevalent among vast majority of Hindus and the ceremony of saptapadi before the sacred fire has been held essential for a valid Hindu Marriage.

REGISTRATION

The marriages solemnized, may be registered under the SPECIAL MARRIAGE ACT with office of the registrar, in the Hindu Marriage Register.

Registration is not compulsory and in no way effects the validity of the marriage. It is entirely upto the parties to have the marriage registered.

No marriage can be registered unless the following conditions are fulfilled
1. A ceremony of marriage has been performed between the parties and they have been living together as husband and wife
2. Neither party has at the time of registration more than one spouse living
3. Neither party is an idiot or lunatic at the time of registration
4. The parties have completed the age of twenty one years at the time of registration
5. The parties are not within the degrees of prohibited relationship
The parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration.

On receiving the application signed by both the parties the Marriage Officer shall give public notice and after allowing 30 days for objections and on being satisfied that all the conditions are fulfilled he shall enter a certificate in the marriage certificate book, which shall be signed by the parties and three witnesses.

RESTITUTION OF CONJUGAL RIGHTS - (Right to stay together)

If either the husband or the wife, without reasonable excuses, withdraws from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights.

The decree of restitution of conjugal rights cannot be executed by forcing the party who has withdrawn from the society from the other to stay with the person who institutes Petition for restitution. The decree can be executed only by attachment of the properties of the judgement debtor. The practice has shown that the decree of restitution is a paper decree.

However, if the decree of restitution of conjugal right is not honoured for a period of more than one year, subsequent to the date of the decree, it becomes a ground for divorce.

JUDICIAL SEPARATION: Legal Separation without divorce

Either party to the marriage may present a petition on any of the grounds stated in the provisions for divorce, praying for a decree of judicial separation. A judicial separation is a legal way to stay separate from the spouse, without obtaining a decree of divorce. It also helps in cases to defend a petition for restitution of conjugal rights. A judicially separated spouse cannot be given a meaning to include a spouse merely living separately, and who has not obtained a decree for judicial separation.
In case, there has been no resumption of cohabitation between the parties to the marriage for a period of one year or upwards, after the passing of the decree for judicial separation, it shall be a ground for a divorce.

The practice of giving a \"dowry\" or a gift to a woman at marriage is said to have its origins in the system of \"streedhan\" (women\'s share of parental wealth given to her at the time of her marriage).

As a woman had no right to inherit a share of the ancestral property streedhan was seen as a way by which the family ensured that she had access to some of its wealth. There is no clear proof as to when this practice was first started in India.

What began as gifts of land to a woman as her inheritance in an essentially agricultural economy today has degenerated into gifts of gold, clothes, consumer durables and large sums of cash, which has sometimes entailed the impoverishment and heavy indebtedness of poor families. The dowry is often used by the receiving families for business purposes, family member\'s education, or the dowry to be given for the husband\'s sister. The transaction of dowry often does not end with the actual wedding ceremony as the family is expected to continue to give gifts.

In the course of time dowry has become a widespread evil and it has now assumed menacing proportions. Surprisingly it has spread to other communities, which were traditionally non-dowry taking communities. With the increasing greed for the easy inflow of money on account of a bride the chilling stories of bride burning started coming to light.

With a view to eradicate the rampant social evil of dowry from the Indian society, Parliament in 1961 passed the Dowry Prohibition Act which applies not merely to Hindus but all people, Muslims, Christians, Parsees and Jews. It extends to the whole of India except the State of Jammu and Kashmir.

WHAT CONSTITUTES DOWRY?

Dowry is defined as any property or valuable security given or agreed to be given either directly or indirectly:
1. By one party to a marriage to the other party to the marriage or ;
2. By parents of either party to a marriage or ;
By any other person to either party to the marriage.

BAN ON ADVERTISEMENT

Any advertisement in any newspaper, periodical, journal or through any other media offering dowry as consideration for marriage is punishable with imprisonment for a term not less than 6 months and it may extend up to 5 years or with fine upto RS. 15,000 (Fifteen thousand).

DOWRY AGREEMENT - NOT VALID

An agreement for giving and taking of dowry shall be void.

EXCEPTIONS

1. The dower or Mahr given during marriage under the Shariat (Muslim Personal) Law.
2. Gifts that are given to the bride or the bridegroom at the time of the marriage (without any demand being made) will not amount to dowry, if such presents are entered in a list in the following manner :
o The bride shall maintain the list of presents given to the bride
o The bridegroom shall maintain the list of presents given to the bridegroom
o The lists shall be prepared at the time of marriage and shall be in writing
o The list shall contain a brief description of each present, approximate value, the name of the person who presented it, relationship of the presenter to the bride or the groom
o The list shall be signed (or thumb impression) by both the bride and the groom
3. Where dowry already given - Where any dowry is received by any person other than the woman in connection with whose marriage it is given that person shall transfer it in the name of the women
o if it was received before marriage within three months after the date of marriage
o if it was received at the time of marriage or after the marriage within three months after the date of it\'s receipt
if the dowry was received when the woman was a minor within 3 months after she has attained the age of 18 years.
Pending such transfer that person shall hold the dowry in trust for the benefit of the woman. In the event of death of the woman dowry shall be transferred to her children or her parents.
If any person fails to transfer any property within the time limit specified, he shall be punishable with imprisonment for a term not less than 6 months, but which may extend to 2 years or with fine which shall not be less than RS. 15,000 (Fifteen thousand) or with both.

REMEDIES AVAILABLE
Giving, taking and demanding dowry is a criminal offence under the Dowry Protection Act and the Indian Penal Code. Under the Dowry Prohibition Act only Metropolitan Magistrate or the Magistrate of the first class is competent to try these offences

A Complaint may be made in the following manner:

1. A complaint may be filed in the court of the Metropolitan Magistrate or the Magistrate of the first class by the following
1. The person aggrieved of the offence
2. A parent or
3. Other relation of such person or
4. By a recognised welfare institute or organisation
2. A complaint may be filed by the above mentioned persons in the police station or in the crime against women Cell who then make an investigation in the matter and report the facts to court which then takes cognizance of the matter. (Cognizance means notice or knowledge upon which a judge is bound to act)
3. The Metropolitan Magistrate or the Magistrate of the first class may take cognizance himself if such facts come to his own knowledge.
A complaint may be filed under the Indian Penal Code for cruelty by husband or relatives of husband.

The Code of Criminal Procedure shall apply to offences under the Dowry Prevention Act as if they were cognizable offences (cognizable offence is one in which a police officer may arrest without warrant)
1. for the purpose of investigation of such offences.
2. arrest of a person without a warrant or without order of a magistrate.
Every offence under this Act is a non bailable and non compoundable offence (that which cannot be compromised or settled out of court, between the complainant and the accused, at any stage of the trial)

BURDEN OF PROOF

Where any person is prosecuted for taking or abetting the taking of any dowry or the demanding of dowry, the burden of proving that he has not committed an offence shall be on him. (One of the principles of the Indian Criminal Law is that a person is innocent until proven guilty and the onus of proving the guilt is on the complainant / prosecutor. This onus has been shifted in certain specific offences such as Dowry, Rape, etc.).

PENALTY FOR TAKING OR GIVING DOWRY

The giving, taking or even abetting to give or take dowry amounts to an offence punishable with imprisonment for not less than 5 years and with fine which shall not be less than RS. 15,000 (Fifteen thousand) or the amount of value of the dowry, which ever is more.

PENALTY FOR DEMANDING DOWRY

If any person demands directly or indirectly, from the parents or other relatives of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with an imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which may extend to RS. 10,000 (ten thousand)

LIMITATION
There is no period of Limitation for filing a complaint under the Dowry Protection Act. For example: If a person was harassed for dowry in the year 1996 she can file a complaint in the year 2001 or even later as for prosecution under the Act bar of limitation has been removed.

DOWRY DEATHS
The Indian Penal Code provides that where any women dies an unnatural death within seven years of her marriage and it is shown that she was harassed or subjected to cruelty by her husband or his relative for dowry, such death shall be called a Dowry death. The husband or the relative shall be deemed to have caused the death of the women. The offence is punishable with imprisonment of not less than seven years (Section 304B Indian Penal Code).

CRUELTY/ HARASSMENT TOWARDS WOMEN

Whoever, being a husband or relative of the husband subjects such women to cruelty shall be punished with imprisonment for a term of three years.

Cruelty has been defined as:
1. Any conduct which is likely to drive the women to commit suicide or to cause grave injury or danger to life, limb or health (Mental or physical) of the women, or
Harassment with a view to coercing her or any person related to her to meet any lawful demand for property or valuable security or is on account of failure by her or any person related to her to meet such demand. (Section 498A Indian Penal Code)

The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum and others has held that if the divorced woman is able to maintain herself, the husband\'s liability ceases with the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to maintenance under section 125 of the Code of Criminal Procedure. This led to controversy as to the obligations of the Muslim husband to pay maintenance to the divorced wife. The Muslim Women (Protection of Rights on Divorce) Act was passed to dilute the judgement given in the decision of Shah Bano case.

OPTION TO BE GOVERNED BY CODE OF CRIMINAL PROCEDURE
If a divorced woman and her former husband declare, by affidavit or any other declaration in writing, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.

COMPARATIVE CHART - BROAD OUTLINE

Muslim Women(Protection of Rights on Divorce) Act 1986 Section 125 Code of Criminal Procedure
Jurisdiction Application is filed in the area where divorced woman resides Application where the husband is, or resides or where he last resided with his wife
Relief available Reasonable and fair provision and maintenance, or the amount of mahr or dower paid, all properties given at the time of marriage or after marriage. If unable to maintain herself, after Iddat period relatives ordered to pay maintenance and if no relatives exist then Warf board pays. Allowed a monthly allowance, not exceeding Rs.500. No provision for maintenance by children, relatives or Wakf Board after Iddat period.
Punishment on failure to pay Imprisonment which may extend to one year. Imprisonment which may extend to one month.
Applies to Only to divorced woman To every married or divorced woman.
Alteration /allowance No such Provision. On change of circumstances Alteration maybe made.
Maintenance after Iddat Woman to be maintained by her children or parents or relatives or the Warf board. No such provision.

A divorced woman means a Muslim woman who was married according to Muslim law, and has been divorced by, or obtained divorce from her husband in accordance with Muslim law. –

Iddat period means in the case of a divorced woman -
1. three menstrual courses after the date of divorce, if she is subject to menstruation; and
2. three lunar months after her divorce, if she is not subject to menstruation; and
if she is pregnant at the time of her divorce, the period between the divorce and delivery of her child or the termination of her pregnancy whichever is earlier.

RIGHTS
A Muslim woman at the time of divorce is entitled to the following
1. A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
2. Where she herself maintains the children born to her before or after her divorce, reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
3. An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and
4. All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
5. An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and
6. All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

FAILURE TO PAY
If any person against whom an order has been made fails without sufficient cause to comply with the order, the Magistrate may
1. Issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure and
2. May sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.

FAILURE TO MAINTAIN HERSELF AFTER IDDAT PERIOD
Where the Magistrate is satisfied that
• A divorced woman has not re-married and
• Is not able to maintain herself after the iddat period,
He may make an order directing such of her relatives who would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order.

WHERE THERE ARE CHILDREN
Where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her:

WHERE PARENTS ARE UNABLE TO PAY

If any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him, be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.

WHERE DIVORCED WOMAN HAS NO RELATIVES

Where a divorced woman is unable to maintain herself and she has no relatives as mentioned above or any one of them have not enough means to pay the maintenance ordered by the Magistrate, the Magistrate may, by order direct the State Wakf Board, functioning in the area in which the woman resides,

• To pay such maintenance as determined by him or,
As the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as be may specify in his order.