Category: Marriage and family

Cruelty against Husband – A brief analysis

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The marital relationship between a husband and wife and is a mutual bond of trust and understanding. Though marriage isn’t gleeful and jubilant in all the cases, in some cases marriage becomes a stumbling block to happiness and peace of mind. Matrimonial matters demand trust, regard, respect, love, affection and belief.  Cruelty is one of the aspects that becomes a hamper against a happy marital relationship.

“Cruelty” is a word with much depth, and its definition may change according to different circumstances and situations. Cruelty, in general, is an inhuman treatment against any person. It may also include physical and mental sufferings. It cannot be assumed that cruelty can only be caused by violence or by giving mental trouble. Cruelty may differ from person to person and individual to individual, as observed in the case Sheldon vs. Sheldon, (1966 (2) All. ER 257). For each human cruelty is different. Someone may feel like a victim of cruelty when forced to do a work which they never wanted to do whereas in the same condition some other person may not feel the same.

Cruelty is not only against wife or women: it may be against male or husband, female, child, old-aged person, living animal etc. It is just that what kind of cruelty is recognized by the law. Cruelty in any marital relation may be of countless variety, it may be brutal or subtle. It may be done by the way of signs, gestures, words, unspoken signals or merely be silence. It may be caused by violence or non-violence. The character of parties, level of tolerance, and adjustment limit must also be taken into consideration. Cruelty will be established when the conduct itself is proved of admitted as held in the case Sobha Rani vs. Madhukar Reddi, (1988 (1) SCC 105).

Now the question arises that, what may amount to cruelty against husband? It is the duty of the court to take into consideration all the facts and circumstances of a case and also look at the physical and mental condition of the applicant as well as the victim to decide that the victim has been subject to cruelty or not. For a thing to fall under the category of cruelty under section 13 (1) (ia) of Hindu Marriage Act, it should create an apprehension in the mind of the other person that living with the other spouse may cause him/her mental or physical injury. Any willful unjustifiable conduct can be called cruelty which causes a problem for the other spouse. Cruelty also includes physical injuries and physical injuries can direct evidence whereas mental injury requires expert advice for corroboration. Mental cruelty is to be assessed bearing in mind the social status of the parties, their customs, traditions, their educational level, and the environment in which they live as stated in G.V.N. Kaneswara Rao vs. G. Jabilli (2002 (2) SCC 296).

In any state law is the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. It is sad to see when there is a law made for any particular section of the society for their protection and later that law is used unreasonably. The laws which were made for the protection of women against the crimes committed against them is now used as a tool by the women to intensify and satisfy their personal hatred against men and his family members. Women are not only given protection under the law but also given a priority by presuming their statement to be bona fide and genuine. There are few grounds which may be taken up and it may be presumed that the husband and his innocent family members were subject to cruelty by the women, by using the laws which are meant for her protection to satisfy her personal enmity against them.

  • Misuse of the laws provided against the demand of dowry, under section 498-A of IPC.
  • Desertion by wife and to bring cohabitation to a complete end. Desertion means withdrawing from all matrimonial obligations as in case Savitri Pandey vs. Prem Chandra Pandey (AIR 2002 SC 591).
  • Wife, choosing second marriage, even though the first one exists.
  • Wife threatening to commit suicide.
  • Abusing, insulting the husband and disrespecting on false grounds.
  • Adultery by the wife.
  • Lodging false FIRs and reports against husband and his family members.
  • Having extramarital affairs by the wife.
  • Accusing the husband to have extramarital affairs as observed in the case. Deepalakshmi Saehia Zingade v/s Sachi Rameshrao Zingade (AIR 2010 Bom 16).

Giving justification on the aforementioned grounds and making it obvious for the court to believe that the husband has been subjected to cruelty by wife, the husband can get the decree of divorce.

ABOUT THE AUTHOR

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YOGRICHA VERMA

Yogricha Verma, a fourth-year law student at Amity Law School, Amity University Madhya Pradesh, is also a student of Company Secretary under ICSI. She is a student member of Indian National Bar Association (INBA) and Chartered Institute of Arbitrators (CIArb). Her native is Bhopal, India. She is also a freelancer and an artist and loves to do social works.

Lavish Expenditure on Marriage? Bill Introduced to Banish the Same

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A bill titled The Marriages (Compulsory Registration and Prevention of Wasteful Expenditure) Bill, 2016 has been introduced by Congress MP RanjeetRanjan, which might be introduced as a private members’ bill in the next session of lower parliament. According to Ranjeet the sole purpose of bill is to ensure simpler solemnization and forbid thriftless expenditure incurred. She said, “These days, marriages are more about showing off your wealth and as a result, poor families are under tremendous social pressure to spend more. This is needed to be checked as it is not good for society at large”. Also, bill seeks to check ‘show of wealth’ and put jargon on those who spend extravagantly.

The Bill states that “if any family intends to spend more than Rupees. 5 Lakh towards expenditure on marriage, such family shall declare the amount proposed to be spent in advance to the appropriate government and contribute 10 per cent of such amount in a welfare fund which shall be established by the appropriate government to assist the poor and Below Poverty Line families for the marriage of their daughters”. Further, it imposes a limit on the number of guests to be invited and dishes to be served in weddings. According to The Marriages (Compulsory Registration and Prevention of Wasteful Expenditure) Bill, 2016 all marriages shall be registered within 60 days of solemnization.

Although, the historical trend indicates that being a private members’ bill it is unlikely that the bill, introduced by Congress MP RanjeetRanjan, will even come up for discussion. However, if events take place otherwise and it comes up for the discussion in the Lower House of the parliament it would be interesting to see how the bill imposes a cap on guests and spending.

ABOUT THE AUTHOR

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MAHAK PALIWAL

Mahak Paliwal is a student studying in Symbiosis Law School. Though, not a professional writer she has written few blogs and articles. Passionate about writing, this passion was a natural fit. With encouragement from family and friends, Mahak started writing some 3-4 years back. In her free time, she appraises reading various articles or blogs.

Delhi High Court playing with “Irretrievable Breakdown of Marriage”

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Is “irretrievable breakdown” of marriage is ground for dissolution of marriage by divorce, under Hindu Marriage Act, 1955? The answer to this question clearly is that no such express provision has been incorporated by the Parliament in Hindu Marriage Act, 1955 (HMA). Then why did the Delhi High Court by its Judgement dated 21st October 2016, in the case of Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)], agree to grant divorce on the ground of “irretrievable breakdown” of marriage?

Precisely a month before the above-mentioned judgement, the Delhi High Court in the judgment dated 21st September 2016, in case of Mini Appa Kanda Swami v. M. Indra [(2016) 234 DLT 243 (DB)], came up with decision that the High Court lacks the jurisdiction to grant divorce on the doctrine of “irretrievable breakdown”.

Why did the Delhi High Court reverse its stance on granting divorce on the basis of the “Doctrine of Irretrievable Breakdown”? Is it following the principles of stare decisis? Many more question arises after the Sandhya Kumari v. Manish Kumar case.

The rationale given by Delhi High Court, in the said judgment[1], was that, by virtue of Madhvi RameshDudani v. Ramesh K. Dudani [2006 (2) Mh.L.J. 307], Shrikumar V. Unnithan v. Manju K. Nair, [2007 (4) KHC 807],  V. Bhagat v. D. Bhagat [(1994) 1 SCC 337], andNavinKohli v. NeeluKohli [(2006) 4 SCC 558], “the concept of cruelty has been blended by the courts with irretrievable breakdown of marriage.”Hence, directly or indirectly, Delhi High court has read doctrine of irretrievable breakdown under ‘cruelty’, which is a ground for granting divorce.

Now coming to Madhvi RameshDudanicase, divorce was granted on the ground of cruelty, and it was only an observation of the Bombay High Court that marriage has been irretrievably broken. There was no observation regarding the blending of the same.

Moving on to another case of  V. Bhagat v. D. Bhagat, theApex Court has said that, HMA does not permit dissolution of marriage on doctrine of “irretrievable breakdown”, and cautioned to keep that in mind while ascertaining the type of cruelty contemplated by Section 13(1)(i-a).

The Apex court gave a clarification that “Irretrievable breakdown of the marriage is not a ground by itself … The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the court finds it in the interest of both the parties.”Therefore, this case did not suggest any blending of cruelty with irretrievable breakdown of marriage.On the other hand, it granted divorce on that ground of mental cruelty.

Now here the word”court” can be widely interpreted to include “HighCourt” or any other court, but moving along the line with Anil Kumar Jain v. Maya Jain [(2009) 10 SCC 415], where the Apex court has held that only the Supreme Court can invoke“its extraordinary powers under Article 142 of the Constitution of India in order to do complete justice to the parties when faced with a situation where the marriage ties had completely broken and there was no possibility whatsoever of the spouses coming together again.”

It further indicated that, the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution cannot grant divorce despite the fact that the marriage has irretrievably broken down.

Another decision which was mentioned in Sandhya Kumari case, was NavinKohli v. NeeluKohli case. In which the Apex Court discussed major cases where, either the divorce was granted under Section 13B of HMA, stating “irretrievable breakdown” of marriage; or, under Article 142, when divorce was prayed under Section 13.  Mostly, the alleged grounds for divorcee were adultery, desertion, or cruelty. Navin Kohli casewas alsosolved by granting divorce on ground of cruelty and not by invoking the doctrine of “irretrievable breakdown”.

Coming back to the Sandhya Kumaricase, in which the breakdown theory (Doctrine of “irretrievable breakdown”) and fault theory (mental cruelty) regarding divorce has been blended by the Delhi High Court, while foundation of thetwo, lies on two different kinds of bed rocks.

This judgement[2] has violated the precedent laid down by Apex Court in the case of Vishnu Dutt Sharma v. Manju Sharma [(2009) 6 SCC 379], by indirectly reading “irretrievable breakdown” of marriage as ground for divorce. In Vishnu Dutt Sharma Case it washeld that Supreme Court cannot add “irretrievable breakdown” of marriage as ground for divorce under section 13, as that would amount to amending the act, which is thefunction of legislature.

Delhi High Court in Sandhya Kumari Casehas either, acted arbitrarily or, opened a new road  of hope for people who would like to seek divorce easily, by reading “irretrievable breakdown” in cruelty. This decision can be appraised for judicial activism, as much as, it can becriticized, for not following the principle of Stare Decisis.

[1] Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)]

[2] Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)]\

ABOUT THE AUTHOR

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DHRUV CHANDORA

Dhruv Chandora is currently pursuing 4th year of BA LLB (Hons) course at Rajiv Gandhi National University of Law, Punjab. A voracious reader and a keen learner, Dhruv is also a moot court enthusiast.

“Talaq, talaq, talaq”- the concept of Triple Talaq

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Talaq is the repudiation or rejection of marriage under Muslim law. Talaq is a unilateral right given to man to divorce his wife.  Husband can give talaq to wife at any point of time, without stating any cause, after attaining the age of puberty. It has been mentioned that a Muslim husband cannot give divorce during the iddat period (4month, 10days).

Under Islamic law, there are different ways of giving divorce. Dissolution of Muslim marriage can be done by either four of them or way.

  1. by husband
  2. by wife
  3. by mutual consent
  4. by judicial separation under dissolution of Muslim Marriage Act, 1939

Triple talaq

“Talaq, talaq, talaq”, when pronounced by the husband, the marriage automatically ends at that particular moment. Triple talaq is practised by Muslims under their personal laws. When a husband pronounced “I divorce you” thrice to his wife, both of them are free from each other. It is the process where husband grants divorce to his wife. Talaq-e-biddat means sinful divorce where husband pronounces talaq thrice for the completion of the divorce process. The pronouncement of talaq thrice is known as Triple Talaq.

 Being a sinful kind of a talaq, Hanafis (Sunnis) allow triple talaq system and makes it a valid one. Once talaq is pronounced thrice, divorce will take place and wife will become totally separated from husband in terms of responsibilities and relationship. Once talaq is done, the husband cannot marry her once again. She becomes prohibited (haram) for him. The provision of remarriage is also given in Muslim law. Husband can remarry her once if she marries another man and that person gives her divorce. Then only, the husband will be allowed to remarry her once again. Triple Talaq is a mental cruelty against the Muslim women as husband can give talaq at any point of time except the iddat period and also without stating any further reasons behind it.

Recent controversies

Considering all these facts, a Muslim lady, Shayara Bano in May, 2016 approached to the Hon’ble Supreme Court to abolish triple talaq[1]. It directly amounts to mental cruelty. Two-judge Bench of the Supreme Court held that there is a gender discrimination against Muslim women by practicing arbitrary divorce and triple talaq.  Shayara Bano said that she only wished to secure a life with dignity, unmarred by discrimination on the basis of gender or religion as when she challenged her Muslim personal laws.

In August, 2016 the hon’ble Supreme Court held that the practices of triple talaq under Muslim personal laws illegal and unconstitutional.

A West Bengal based Muslim woman, Ishrat Jahan with other Muslim women and women’s rights organization filed a petition challenging the constitutionality of triple talaq and polygamy under the Muslim personal law. Supreme Court in its Suo moto action, considered the PIL to consider whether certain practices of marriage and divorce under Islamic personal laws amounts to gender discrimination. Ishrat Jahan filed the petition against her husband Murtaza Ansari challenging the validity of triple talaq. The court issued a notice to the husband. It contended that triple talaq is void and also violative of fundamental rights.

The case was further taken and the respondent contended from their side that personal can’t be amended as it is governed by Article 25 and 26 of the Constitution of India. If personal laws will not prevail, then there will a uniform civil code which is again violative of personal and customary laws.  All India Muslim Personal Law Board (AIMPLB) told to the Supreme Court that personal laws of a community cannot be re-written. Triple talaq reduces those chances of killing wives[2].  It was also contended that triple talaq is a legislative matter and cannot be interfered with.  The practice of triple talaq and polygamy were based on Holy Scripture Al-Quran and courts cannot supplant its own interpretations over the text of scriptures.[3]

On 5th September 2016, Supreme court granted centre four weeks to respond on triple talaq issue as the court feels that it is violative of Article 14(equality), Article 15( non-discrimination) , Article 21(life) and Article 25(religion) of the constitution of India.

Conclusion

Talaq means the dissolution of marriage under Muslim law. But every divorce should be the consensus of mind of the both the parties. Husband and wife should agree and then the divorce process should be initiated. Triple talaq is a concept in Muslim personal law which is followed by Sunnis. Under this, the husband has the power to give divorce to his wife irrespective of any reason. Cases are running in the hon’ble Supreme Court of quashing the validity of triple talaq as it violates fundamental rights f a woman. Women are not a piece of a toy that can be thrown away directly for the course of marriage. Hence, triple talaq should be held unconstitutional and void.

[1] http://www.hindustantimes.com/india/muslim-women-rise-against-triple-talaq/story-Es5CckBWJfsTDLF6MLb3bK.html

[2] http://indianexpress.com/article/india/india-news-india/triple-talaq-islam-muslim-law-board-supreme-court-prevents-killing-wife-divorce-3010683/

[3] http://www.thehindu.com/news/national/sc-gives-centre-four-weeks-to-respond-on-triple-talaq-issue/article9074875.ece

ABOUT THE AUTHOR

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SAKSHI JAIN

Sakshi Jain is currently pursuing her BLS LLB from Government Law College, Mumbai. Although she’s keen to gain knowledge and explore things going around her, her priority always stays focused on law only. Although she yearns for a career in the corporate sector, she’s quite confident regarding her capability to endure in other fields also. A passionate law student and a natural reader, she wants to complete her master degree from Harvard, Oxford, or London University.

An Analysis of Restitution of Conjugal Rights

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Marriage is union of endless supply of the life partners certain conjugal obligations and provides for each of them certain legitimate rights. The important ramifications of marriage are that parties will live respectively. Every companion is qualified for solace consortium of the other. So after the solemnisation of the marriage if either spouse has left the other without giving any reasonable ground, the Hindu Marriage Act 1955 gives the aggrieved party remedy in the form of Section 9 under the restitution of conjugal rights. The section 9 of the HMA reads that,

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply for restitution of conjugal rights.What the aggrieved party needs to do is file a petition to the district court and on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, the judge may decree restitution of conjugal rights in his favour.”

Historically tracing the concept of this Law we can go back to the fact that Hindu marriage is seen as a sacrosanct. It has both contractual and sacrament aspects. The smritis, which contain a noteworthy wellspring of Hindu law, generally see marriage as a fundamental samskara or religious obligation. The order of spouse as dharampatni implies an arrangement of unalienable religious duties and obligations. The courts expect that in trade for the rights gave by the individual laws on the gatherings to the marriage; they satisfy the conjugal commitments forced on them by the arrangements of the demonstration. In this unique situation, the execution of religious functions and ceremonies are regarded required and the consecrated conjugal bond as endless and in dissolvable.

The constitutional validity of the arrangement has over and over been addressed and tested. In 1983 the Andhra Pradesh High Courtin T. Sareetha v. T. Venkatasubbaiah, A.I.R 1983 A.P. 356 held that the denounced provision was unlawful. The Delhi High Court in Harvinder Kaur v Harminder SinghAIR 1984 Del.66 however had non-accommodating perspectives. At last Supreme Court in Saroj Rani v. Sudharshan Kumar Chadha A.I.R 1984 S.C 1562gave a judgment which was in accordance with the Delhi High Court sees and maintained the protected legitimacy of the segment 9 and over-ruled the choice given in T. Sareetha v. T. Venkatasubbaiah.

The instance of T.Sareetha, was the first to scrutinize the foundational authenticity of the stipulation on the rebuilding of conjugal rights. The petitioner contended that Sec 9 was “liable to be removed from the statute as it was in violation of articles 14, 19 and 21. The petitioner implied that this remedy is contrary to the freedoms of life, liberty and dignity.”

According to Justice Chowdary, marital rights connote two formulations, first that marriage partners have right for each other and second, marital intercourse. He held that “enforcing this right would amount to transfer of the right of the individual over her body, to the state”. He posited against the continued use of the section to enforce unwilling sex over a partner, under the garb of tyranny of the law.
Lord Herschell has also recorded his strong opinion about such proviso, since it violates the sanctity of the body. In Russel v Russel(1897) AC 395he went as far to say that ‘some of the case outcomes, based on restitution, bordered on the barbaric’. The judgement highlights the way that even the choice to have a child is a personal choice that ought to be taken by the lady and not something she ought to be forced into without wanting to. This provision is genuinely an indication of the ill-conceived frontier time. It needs legitimate sponsorship and is a glaring encroachment of an individual’s directly over his/her body, in this manner disregarding an individual’s freedom under Article 21 of the Indian constitution. Justice Subba Rao insightfully mentioned this objective fact and extended the privilege to life to incorporate individual’s freedom also.

One year after the historic Sareetha judgment, the Delhi High Court in Harvinder Kaur v Harminder Singh,re-examined this issue and held to the contrary. In this case the wife challenged a decree for restitution granted to her husband by the lower court. The court, while dismissing the appeal, held that the section was constitutionally valid, stating that the dual objective of the section was ‘restoring amity in marital life through a legally enforced rapprochement’. The court went ahead to include that presenting protected law in the circle of marriage resembles a bull in a china shop, and that articles 14, 21 have no place in the security of the home. The Delhi court re-imagined the establishments of conjugal connections, far from the security of appropriate to protection. Facilitate, the court considered intercourse as an imperative component of marriage, yet not really the ‘sumnumbonum’, behind petitions of restitution. Hence, not at all like Justice Chowdhary, the Delhi high court took a more restricted perspective of the stipulation of restitution.

The Supreme Court inSaroj Rani V. S.K Chadda,illuminated its position on this arrangement. The court translated that marriage, as a socially endorsed practice and family as its basic structure, gave a couple innate rights over each other’s society. The Supreme Court communicated its inspiration to ensure these uncodified laws towards, the social capacity of keeping the separation of the marriage. The Supreme Court likewise called attention to how the segment contained adequate shields to counteract abuse of a gathering to the marriage. Promote, the court held that the rule 32 of Order 21 was not coercive, but rather just a money related instrument to instigate the re-foundation of conjugal relations and to keep the separating of the conjugal tie. Hence, Justice Mukherjee found that area 9 was not disregarding Art 14 and 21 of the constitution.

In conclusion it can be said that the proverb “You can take a horse to the water, but you can’t make him drink”, suits well on the provision for restitution of conjugal rights under the Indian personal laws. The court can pass a decree for restitution of conjugal rights and request the failing mate to live together with the distressed life partner. However, it is to be noticed that the court can’t force the defaulting mate to physically come back to the solace consortium of the announcement holder life partner.

ABOUT THE AUTHOR

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PRERNA DEEP

Prerna Deep is currently a first-year student at Campus Law Centre, University of Delhi.  She has completed English Honours from Miranda House, DU. Literature gave this forever bibliophile the wings to follow her heart and Law gave her the strength to believe that she too can change the world. She considers receiving an award for her essay on ‘Women and Law in India’ from Mr Ram Jethmalani a treasure. When not writing she’s probably binge-watching sitcoms.  She believes nothing describes her best than Virginia Woolf’s words:
“I have a deeply hidden and inarticulate desire for something beyond the daily life.”

Battle of Love: Special Marriage Act, 1954

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This article has been written by Piyush Bajaj. Piyush is currently a BCom LLB student at Amity Law School, Noida.

Marriage is considered to be a sacrament in our country, as it is the most integral tradition which is being followed from over hundreds of years.

India has been a land where a boy and a girl weren’t allowed to select their partners on their own as it was their parent’s duty because of their thinking that they were a lot wiser and experienced than their children and will decide the best for them. The concept of marriage is considered to be very auspicious in every religion in the country as it is a summit of two souls with the personal laws of every religion being followed.

The influence of caste and religion is enormous in our society especially in matters of marriage as it is considered to be the most important criteria for a properly solemnized marriage. Parents search for the bride or groom in the same cast or religion of theirs, as Inter-cast or Inter-religion marriages are considered to be a taboo. People are forced to marry according to their family’s will or due to the pressure of the society, but the question arises “What if someone wants to marry a person of other caste or religion”? So the society gave the answer to us as “Honour Killing”. The grave need of ending such crimes and to support people who believed in stepping up of the cast or religion barriers, the parliament enacted the Special Marriage Act, 1954. The act provides a special form of marriage in which any citizen of India can marry irrespective of any caste or religion barrier.

This act resolves the problem of caste or religion being a barrier for the people who believe in marrying outside their caste or religion. So here are some features of the act enlisted for a better understanding –

  1. Requirements

To marry under this act, the parties need to file a notice to the Marriage Registrar of the district with the intention of marrying each other, in which one of the party has resided for at least 30 days preceding the date on which such notice is to be filed, then the marriage is said to be solemnized.

  1. Conditions
  • The groom must be of 21 and the bride must be of 18 years of age at the time of marriage.
  • The parties should be mentally fit in order to be able to decide for themselves.
  • They should not be under prohibited relationship or else it will otherwise act as a ground to dissolve their marriage.
  1. General Understanding

The general understanding is that marriages under this act don’t make it any less sacred or invalid. The constitution provides the right to marry any person of their choice, but this idea is supported as well as criticized too because of the influence of arranged marriages over love marriages has brought such situation, which even after so much of legislative and judicial progress hasn’t brought about a major change in the mindsets of people .

Conclusion

After such progress in matters of special marriages, people still face difficulties in accepting it as they feel it is a dishonour to them. But if we look at the positive side of these marriages, they add up to the national integrity. Most importantly the people of the country need to appreciate such marriages between different caste and religion as it will increase equality amongst the citizens and it will also set an example how to love and respect each and every person irrespective of their caste or religion barriers.

The December book bucket

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