This case involved Kedar Nath, a member of the Forward Communist Party in Bihar, who accused the ... more This case involved Kedar Nath, a member of the Forward Communist Party in Bihar, who accused the Congress of corruption, black-marketing and tyranny and targeted Vinobha Bhave’s attempts to redistribute land. He talked about a revolution that would overthrow capitalists, zamindars and Congress leaders. The trial court convicted Kedar under 124A and 505B of the IPC, and sentenced him to one-year imprisonment. Kedar Nath appealed against this decision. What follows in the paper is the journey of this case to script one of the most important laws in our country.
Hedaya says, "marriage implies a particular contract used for the purpose of legalising children.... more Hedaya says, "marriage implies a particular contract used for the purpose of legalising children." According to the Muhammadan law, marriage (nikah) is a civil contract, the object whereof is to legalise sexual intercourse and the procreation of children. This statement is, however, sometimes so overstressed, that the real nature of marriage is obscured, and it is forgotten that it has other important aspects as well, both social and religious. One would do well to remember that marriage is recognised in Islam as the basis of society. It is no doubt a contract, but it is also a sacred covenant. The Prophet once delivered a sermon on marriage, and to this day, it is repeated (with a few variations) at Muslim marriages, as it contains a lot of practical advice and many noble sentiments. As observed by Sir Shah Muhammad Sulaiman, C.J. in Anis Begam v. Muhammad Istafa : “It may not be out of place to mention here that Maulvi Samiullah collected some authorities showing that a marriage is not regarded as a mere civil contract, but as a religious sacrament.” To constitute a valid marriage, no formality is required; nor is any religious ceremony necessary. The usual conditions necessary to constitute a valid contract are also necessary to constitute a contract of marriage. Thus, the parties must be of sound mind and they must not be within prohibited degrees of relationship. Lunatics and minors who have not attained the age of puberty (i.e., completion of the 15th year) may be validly contracted in marriage by their respective guardians. In the case of a boy or girl who has not attained the age of puberty, the marriage is not valid unless the legal guardian has consented to it.
Enforcement of Morality through Law albeit being a convenient and an ideal concept is riddled wit... more Enforcement of Morality through Law albeit being a convenient and an ideal concept is riddled with contradictions when applied in a realistic realm. Law is an enactment made by the state. It is backed by physical coercion. Its breach is punishable by the courts and represents the will of the state and realizes its purpose. Laws reflect the political, social and economic relationships in the society. It determines rights and duties of the citizens towards one another and towards the state. It is through law that the government fulfills its promises to the people. It reflects the sociological need of society. Law and morality are intimately related to each other. Laws are generally based on the moral principles of society. Both regulate the conduct of the individual in society. They influence each other to a great extent. Laws, to be effective, must represent the moral ideas of the people. But good laws sometimes serve to rouse the moral conscience of the people and create and maintain such conditions as may encourage the growth of morality. In this research paper, we shall first look at the Hart-Fuller debate which began the entire furore about law and morality and then look at some laws where this conflict has arisen most.
This case involved Kedar Nath, a member of the Forward Communist Party in Bihar, who accused the ... more This case involved Kedar Nath, a member of the Forward Communist Party in Bihar, who accused the Congress of corruption, black-marketing and tyranny and targeted Vinobha Bhave’s attempts to redistribute land. He talked about a revolution that would overthrow capitalists, zamindars and Congress leaders. The trial court convicted Kedar under 124A and 505B of the IPC, and sentenced him to one-year imprisonment. Kedar Nath appealed against this decision. What follows in the paper is the journey of this case to script one of the most important laws in our country.
Hedaya says, "marriage implies a particular contract used for the purpose of legalising children.... more Hedaya says, "marriage implies a particular contract used for the purpose of legalising children." According to the Muhammadan law, marriage (nikah) is a civil contract, the object whereof is to legalise sexual intercourse and the procreation of children. This statement is, however, sometimes so overstressed, that the real nature of marriage is obscured, and it is forgotten that it has other important aspects as well, both social and religious. One would do well to remember that marriage is recognised in Islam as the basis of society. It is no doubt a contract, but it is also a sacred covenant. The Prophet once delivered a sermon on marriage, and to this day, it is repeated (with a few variations) at Muslim marriages, as it contains a lot of practical advice and many noble sentiments. As observed by Sir Shah Muhammad Sulaiman, C.J. in Anis Begam v. Muhammad Istafa : “It may not be out of place to mention here that Maulvi Samiullah collected some authorities showing that a marriage is not regarded as a mere civil contract, but as a religious sacrament.” To constitute a valid marriage, no formality is required; nor is any religious ceremony necessary. The usual conditions necessary to constitute a valid contract are also necessary to constitute a contract of marriage. Thus, the parties must be of sound mind and they must not be within prohibited degrees of relationship. Lunatics and minors who have not attained the age of puberty (i.e., completion of the 15th year) may be validly contracted in marriage by their respective guardians. In the case of a boy or girl who has not attained the age of puberty, the marriage is not valid unless the legal guardian has consented to it.
Enforcement of Morality through Law albeit being a convenient and an ideal concept is riddled wit... more Enforcement of Morality through Law albeit being a convenient and an ideal concept is riddled with contradictions when applied in a realistic realm. Law is an enactment made by the state. It is backed by physical coercion. Its breach is punishable by the courts and represents the will of the state and realizes its purpose. Laws reflect the political, social and economic relationships in the society. It determines rights and duties of the citizens towards one another and towards the state. It is through law that the government fulfills its promises to the people. It reflects the sociological need of society. Law and morality are intimately related to each other. Laws are generally based on the moral principles of society. Both regulate the conduct of the individual in society. They influence each other to a great extent. Laws, to be effective, must represent the moral ideas of the people. But good laws sometimes serve to rouse the moral conscience of the people and create and maintain such conditions as may encourage the growth of morality. In this research paper, we shall first look at the Hart-Fuller debate which began the entire furore about law and morality and then look at some laws where this conflict has arisen most.
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What follows in the paper is the journey of this case to script one of the most important laws in our country.
According to the Muhammadan law, marriage (nikah) is a civil contract, the object whereof is to legalise sexual intercourse and the procreation of children. This statement is, however, sometimes so overstressed, that the real nature of marriage is obscured, and it is forgotten that it has other important aspects as well, both social and religious.
One would do well to remember that marriage is recognised in Islam as the basis of society. It is no doubt a contract, but it is also a sacred covenant. The Prophet once delivered a sermon on marriage, and to this day, it is repeated (with a few variations) at Muslim marriages, as it contains a lot of practical advice and many noble sentiments.
As observed by Sir Shah Muhammad Sulaiman, C.J. in Anis Begam v. Muhammad Istafa :
“It may not be out of place to mention here that Maulvi Samiullah collected some authorities showing that a marriage is not regarded as a mere civil contract, but as a religious sacrament.”
To constitute a valid marriage, no formality is required; nor is any religious ceremony necessary. The usual conditions necessary to constitute a valid contract are also necessary to constitute a contract of marriage. Thus, the parties must be of sound mind and they must not be within prohibited degrees of relationship.
Lunatics and minors who have not attained the age of puberty (i.e., completion of the 15th year) may be validly contracted in marriage by their respective guardians. In the case of a boy or girl who has not attained the age of puberty, the marriage is not valid unless the legal guardian has consented to it.
In this research paper, we shall first look at the Hart-Fuller debate which began the entire furore about law and morality and then look at some laws where this conflict has arisen most.
What follows in the paper is the journey of this case to script one of the most important laws in our country.
According to the Muhammadan law, marriage (nikah) is a civil contract, the object whereof is to legalise sexual intercourse and the procreation of children. This statement is, however, sometimes so overstressed, that the real nature of marriage is obscured, and it is forgotten that it has other important aspects as well, both social and religious.
One would do well to remember that marriage is recognised in Islam as the basis of society. It is no doubt a contract, but it is also a sacred covenant. The Prophet once delivered a sermon on marriage, and to this day, it is repeated (with a few variations) at Muslim marriages, as it contains a lot of practical advice and many noble sentiments.
As observed by Sir Shah Muhammad Sulaiman, C.J. in Anis Begam v. Muhammad Istafa :
“It may not be out of place to mention here that Maulvi Samiullah collected some authorities showing that a marriage is not regarded as a mere civil contract, but as a religious sacrament.”
To constitute a valid marriage, no formality is required; nor is any religious ceremony necessary. The usual conditions necessary to constitute a valid contract are also necessary to constitute a contract of marriage. Thus, the parties must be of sound mind and they must not be within prohibited degrees of relationship.
Lunatics and minors who have not attained the age of puberty (i.e., completion of the 15th year) may be validly contracted in marriage by their respective guardians. In the case of a boy or girl who has not attained the age of puberty, the marriage is not valid unless the legal guardian has consented to it.
In this research paper, we shall first look at the Hart-Fuller debate which began the entire furore about law and morality and then look at some laws where this conflict has arisen most.