When we examine marriage laws in their historic context, it is interesting to note that the universally accepted notion that marriages are contractual rather than sacramental originates in Muslim law, which was accepted by the French law only in the 1800s and incorporated into the English law in the 1850s and became part of codified Hindu law as late as 1955. Today it appears to be the most practical way of dealing with the institution of marriage. Treating marriage as a sacrament which binds the parties for life has resulted in some of the most discriminatory practices against women such as sati and denial of right to divorce and remarriage, even in the most adverse conditions.
The cornerstone of a Muslim marriage is consent, ejab-o-qubul (proposal and acceptance) and requires the bride to accept the marriage proposal on her own free will. This freedom to consent (or refuse), which was given to Muslim women 1,400 years ago, is still not available under Hindu law since sacramental rituals such as saptapadi and kanya dan (seven steps round the nuptial fire and gifting of the bride to the groom) still form essential ceremonies of a Hindu marriage. Even after the codification of Hindu law, the notion of consent is not built into the marriage ceremonies.
The contract of marriage (nikahnama) allows for negotiated terms and conditions, it can also include the right to a delegated divorce (talaq-e-tafweez) where the woman is delegated the right to divorce her husband if any of the negotiated terms and conditions are violated.
Mehr is another unique concept of Muslim law meant to safeguard the financial future of the wife. It is an obligation, not a choice, and can be in the form of cash, valuables or securities. While there is no ceiling, a minimum amount to provide her security after marriage must be stipulated. This is a more beneficial concept than streedhan which is given by choice and usually by the natal family. In addition to Mehr, at the time of divorce, a Muslim woman has the right to fair and reasonable settlement, and this is statutorily recognised under the Muslim Women (Protection of Rights on Divorce) Act, 1986 as per the 2001 ruling of the Supreme Court in the Daniel Latifi case.
