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EVOLUTION AND CONCEPT OF THE INSTITUTION OF MARRIAGE

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This article is written by Khushi Bansal of 5th Semester of University Institute of Legal Studies, Panjab University, Chandigarh, an intern under Legal Vidhiya

Abstract:

Since time immemorial, marriage has been a universal social institution. There is no denying the fact that the norms and perceptions of marriage have changed from time to time depending upon the social circumstances. But the one thing that has remained constant till date is the basic concept of marriage. The functions, purposes, and forms of marriage may differ from society to society, but it is present everywhere as a significant social institution. From social aspects to legal perspectives, everything has been covered in the following article. The reformative view about marriage also forms an important part of this article. Hope the content will help the viewers to know about the topic.

Keywords:

Marriage, Solemnization, Modernization, Reforms and developments, Sacrament, Traditions, Rituals, Contract, Social Acceptance

Introduction:

There is no such definition of marriage that covers all aspects of marriage. However, different scholars have come up with different definitions. For instance, Robert H. Lowie says that marriage is a relatively permanent bond between permissible mates. Malinowski defines it as a contract for the production and maintenance of children. The institution of marriage is closely related and complementary to the institution of family. In this context, Gillin and Gillin have said that marriage is a socially approved way of establishing a family of procreation. Westermarck has also remarked that marriage is rooted in the family rather than the family in the marriage. In our society, marriage has always been considered a significant part of human life. It is one of the turning points in a person’s life that binds them to marital obligations and responsibilities.

Before moving into the technicalities of marriage, it is essential to go through the basics like characteristics, functions, etc. Traditionally speaking, a marriage is a universal and enduring relationship between a man and a woman that creates mutual obligations towards each other. It is generally associated with some civil or religious ceremonies for its solemnization and requires social approval. It plays an important role in every person’s life. First and foremost, it leads to the establishment of the family. It regulates sex life and provides an automatic acceptance from society to have sexual intercourse for fulfilling each other’s sexual desires and for the procreation of children. Cooperation is required for the smooth functioning of a marriage. A marriage also aims at social solidarity.

Marriage in Old Times:

In India, marriage traces back its existence to the Vedic times when hymns and ceremonies played the most important role in the solemnization of marriage. The marriage was not merely a relationship between a male and a female. Rather, when two persons were tied in the wedding bond, it was believed to be the alliance of two families. It also symbolized the merger of their values, customs, and traditions. Generally, the wife was the one who was asked to adapt to the norms and rituals of the family of her husband. Arranged marriages were prevalent and the parents played a pivotal role in deciding the partner for their children. Their decision was largely based on the caste, status of the other family, and astrological compatibility. During the later years, the bride was allowed to choose her bridegroom from a group of suitors. This selection was done by the method of Swayamwara. In Sanskrit, swayam means self and vara means groom. Therefore, at the selected auspicious time and venue, a group of suitors gathered. The bride would select a groom for herself and the marriage was held immediately. We find the mention of this ritual in the great epic Ramayana as Lord Rama and Mata Sita were married by Swayamwar.

In the medieval period, the marriage practices changed as a consequence of invasion. Since Muslims practiced polygamy, it had a great impact on Indians. “Nikah” in Islam and “Saptapadi” in Hindus were developed in this period. The British colonization of India during the nineteenth century inspired the codification of marriage laws like the Hindu Marriage Act, the Special Marriage Act, etc.

Modernization of Marriage:

In contrast to the marriage discussed above, the twentieth century was the time when marriages began to modernize. There was a shift from the culture of arranged marriages to the culture of love marriages. When people began choosing their spouses on their own, this resulted in the abolition of caste in consideration in marriage leading to inter-caste marriages. Since the wave of independence was at its peak during the twentieth century and the abolition of the caste system also formed an important part of the freedom struggle, the caste barriers in marriage started to be eliminated. India saw the blend of the modern concept of love marriages and the traditional practices in the nation. The roles of husband and wife have completely changed. Nowadays, there is no division of labour in marriage, as it used to be in earlier times. Both the parties to a marriage have an equal status in marriage, the male not being dominant as in the older times. As a result of active feminism throughout the world, women now search for a partner who believes in equality, shared responsibilities, and mutual cooperation. In present times, rapport is considered to be the criteria for selecting the spouse and not caste.

Nowadays, the participation of parents in the selection of spouses for their children has also decreased. The youngsters prefer to marry the person whom they love, even if it is against the will of their parents. With the coming of social media, the concept of online dating has come into being. Many of the successful romantic relationships, starting from social media, also end up as marriage. Therefore, social media has had a great impact on the concept of marriage. With the growth of urbanization and modernization, the culture of live-in relationships has also grown rapidly over time. Human rights activism has led to the bringing in limelight the issue of recognizing the marriage of people belonging to the LGBTQ+ community. All these changes in the norms of marriage are live examples showing that the concept of marriage is dynamic.

Evolution of Marriage:

Marriage has drastically evolved with time. The traditional view and the modern view are completely different. Here is how it has evolved from the ancient times till date:

  1. Strategic alliances

In ancient times, marriage was based on strategic alliances of Kings. The Anglo-Saxon society viewed marriage as a tool to establish strategic alliances and tie bonds between two empires. Stephanie Coontz, the author of ‘Marriage, A History: How Love Conquered Marriage’ wrote, “You establish peaceful relationships, trading relationships, mutual obligations with others by marrying them.”

Even in India, the perspective on marriage was no different. The king used to marry the princess of that province to some prince of another kingdom in order to acquire a certain territory or establish friendly relations. The decision of women was often neglected in those days. Marriage was often based on the desires of the king and the needs of the kingdom.

Marriage turned out to be a way of obtaining a political and economic advantage. Though an element of consent was added later on, the bride was bound to agree to her father’s wishes and give her consent for the marriage. The consent of the bride and groom was not given due consideration and the desires of the kings of both provinces were at the top.

Marriage was no longer used to establish alliances. It was considered as a sacrament. The marriage was considered to be God’s marriage and the vows taken by both the parties were to be taken in the name of God.

In ancient times, there was nothing known as divorce. The couple was forced to live in miserable circumstances but there was no provision of separation. With time, the gates for divorce were opened in India as well as other nations. Several laws were made for its regulation. In other words, divorce came into being.

Our ancestors would have never thought of modernization to such an extent that same-sex marriages would come into being and the law would recognize such marriages. But nowadays, same-sex marriages are quite common. However, society has not fully accepted this change yet and many countries have still not legalized these marriages.

As a consequence of westernization, Indian culture has seen a major change, i.e. live-in relationships. This is something different from marriage. Unlike, the traditional concept of marriage including rituals and vows in the name of God, live-in relationships merely mean to live together as a married couple without actually tying the knot of marriage. At any point of time, the partner can step out of the relationship.

Moreover, the relationship of husband and wife has also undergone a change. For instance, earlier the husband was to earn money for the family and the wife was to take care of the family. With the coming of feminism, women have started working outside their homes and earn their livelihood. For this reason, the typical division of labour has come to an end. Both works to earn money for the family and both manage the household chores together. However, the situation varies from society to society. Furthermore, the male dominance in a marriage has also come to an end. In this way, marriage has evolved till date.

Marriages in India:

Being a country accommodating different religions and cultures, India witnesses different traditions and rituals relating to marriage. All marriages in India are governed by the personal laws of the citizens tying the knot. Some marriage laws have been codified keeping in mind the customs, while others are still governed by the religious texts only. The three most common marriages found in India, based on the religious majority are Hindu marriage, Muslim marriage, and inter-religion marriages. The Population Census of 2011 declares Hinduism as the dominant religion in India followed by Islam. Therefore, most of the marriages in India are governed by Hindu law. The Hindu Marriage Act, 1955 deals with Hindu marriages. The laws for a Muslim marriage are still not codified. So these marriages are majorly governed by the Quran or other personal laws. Apart from these two, we see a huge number of inter-religion marriages taking place in India nowadays. Such marriages are governed by the Special Marriage Act, 1954.

While studying the concept of marriage in India, it becomes highly important to go through a brief about the marriages of all religions.

Legal Landscape:

Some international instruments expressly provide the right to marry and the freedom to marry a person of their own choice. For instance, Article 16 of the Universal Declaration of Human Rights, Article 12 of the Human Right Act and Article 23 of the International Covenant on Civil and Political Rights deal with the aforementioned right. However, Indian laws are not identical to the provisions of international law.

It states that men and women of full age have the right to marry and to establish a family without any limitation of race, nationality, or religion. Free and full consent of the intending spouses is required to enter into marriage.

This article provides the right to marry to all men and women of marriageable age along with the right to start a family, as per the national laws governing the matter.

In addition to the rights provided in the aforesaid clauses, this article also binds the State Parties to take appropriate steps for ensuring the equality of rights and responsibilities of spouses as to marriage, during marriage, and at its dissolution.

In India, the right to marry is a fundamental right as it has been covered under the ambit of Article 21 of the Constitution of India which provides the Right to Life and Personal Liberty. Though it has not been expressly mentioned in the Indian Constitution but Indian judiciary has interpreted that the fundamental right, i.e. right to life and personal liberty also provides the right to a major person to marry a person whoever they desire. In the landmark case of Lata Singh vs. State of UP[1], the honourable Supreme Court ruled that a person who is not a minor has the right to marry a partner of their own choice. In Shakti Vahini vs. Union of India[2] as well, the apex court stood in the favour of two adults who consensually choose their partners. It further observed that their act of freely choosing each other as their life partners is in the exercise of their fundamental rights under Articles 19 and 21 of the Indian Constitution. Also in the famous Hadiya Case[3], the court once again made it clear that the right to marry a person of one’s choice is integral to the right to life and liberty.

Recent Developments:

The definition of marriage in the times of our forefathers was quite different from the interpretation of marriage in today’s world. The concept of marriage has come a long way since its inception. For instance, marriage was considered to be the beginning of a relationship not only between two individuals but two families as well. As a result, the permission of the family members was given due consideration. Presently, marriage has become an individual affair where the bride and groom are free to choose their life partners as it is their right. Therefore, in the light of westernization and modernization along with legal backing of fundamental rights of the citizens, the concept of marriage has undergone substantial changes.

While the right to marry as a fundamental right has already received legal acceptance, the issue of same-sex marriages is still pending to be adjudicated by the Indian judiciary. In the year 2018, India witnessed a huge progression in the recognition and acknowledgment of the existence and identity of homosexual couples. In the landmark judgment of Navtej Singh Johar vs. Union of India[4], the apex court decriminalized Section 377 of IPC to the extent that carnal intercourse ‘against the order of nature’ between consenting adults is no more a criminal offence. The growing awareness of their rights among people has raised the demand to legalize same-sex marriages in the nation but the opposition rests on the moral footing. India is still waiting for the judgment of the apex court on the legalization of same-sex marriages in the country.

Not only same-sex marriages, the matters of live-in relationships are also increasing in the court day by day for the purpose of adjudication containing the question of law somewhere. In the case of S. Khushboo vs. Kanniammal[5], the court held that live-in relationships fall within the ambit of the right of life provided under Article 21 of the Indian Constitution. It also observed that such relationships are permissible and cannot be considered illegal or unlawful. This was the major turning point for the Indian laws of marriage. Thereafter, numerous issues have been raised regarding the maintenance, custody of children, inheritance and succession, etc. The interpretation of law in the matters of live-in relationships is still under development. But there is no denying the modern reality that the youth is happier with the concept of live-in relationships nowadays. With this social change, the legal framework will surely change rapidly.

Contemporary Challenges:

In this article, we have seen that marriage has evolved largely over time. However, this evolution has posed several challenges in front of society and our system. These largely include acceptance of the growing culture of live-in relationships and LGBTQ+ partnerships along with the equality of status in marriage. The gender-based issues in marriage continue in many sections of the society. Whenever a social system changes, it is always accompanied by numerous challenges. Therefore, the changing system of marriage has also led to several contemporary challenges.

As mentioned above, accepting new concepts like live-in relationships and same-sex marriages is difficult for society due to the deep-rooted traditional concept of marriage. The opposition to these rests on the moral footing. Since time immemorial, living together as spouses without actually being married has been viewed as an immoral act. Therefore, no matter what legal support is provided to live-in couples, the ground reality is that society at large is not ready to accept this change. Undoubtedly, the metropolitan societies and other big cities have still started to consider such relationships but the rural and other population is still against this reform. A similar problem is faced by LGBTQ+ couples, i.e. the problem of non-acceptance in society.

In addition to this, the patriarchal minds of our nation have found it difficult to digest the stronger status of women in a marriage. The equal status of wives and the abolition of gender roles have been highly criticized by such people. The financial autonomy of women and the strong raising of their voices against injustice have increased the cases of domestic violence and marital. However, the women are no longer silently tolerating these ill practices against themselves. Instead, they are coming up with these issues. Also, social media has been conducive to solving these issues along with the challenges mentioned above. It is a universally accepted fact that every change or reform needs some reasonable time to get accepted by society. It is hoped that these challenges will also be resolved with time.

Conclusion:

Upon considering all the information and ideas mentioned in this article, it can be inferred that the concept of marriage exists till date but not in the same way as it used to be in ancient times. It has completely changed as per the changing social conditions. The youth of today has its own perception of marriage. Not limiting the scope of marriage to the procreation of children and establishment of a family, it has widened to mutual cooperation in all aspects. It would be wrong to conclude that the traditional notions of marriage were wrong or the present ones are wrong. It is quite necessary to understand that everything changes with time and social conditions. In a similar way, marriage has also evolved. Though few sections of society are reluctant to accept these reforms, ultimately it is the youth that builds up the future. Since youngsters are happily accepting these changes, there is a high probability of the prevalence of these new practices at a larger level in the near future.

References:

  1. Sociology (Principles of Sociology with an Introduction to Sociological Thought) by C.N. Shankara Rao, Seventh Revised Edition
  2. https://blog.ipleaders.in/jurisprudential-understanding-behind-evolution-marriage-institution/ (last seen on 25 September 2023)
  3. https://www.indialawjournal.org/the-fundamental-right-to-marriage.php (last seen on 25 September 2023)
  4. https://bnwjournal.com/2020/11/29/evolution-and-concept-of-the-institution-of-marriage/ (last seen on 25 September 2023)
  5. https://legalvidhiya.com/evolution-and-concept-of-the-institution-of-marriage/ (last seen on 08 October 2023)

[1] Lata Singh vs. State of UP (2006) 5 SCC 475

[2] Shakti Vahini vs. Union of India (2018) 7 SCC 192

[3] Shafin Jahan vs. Ashokan K.M. and Ors. (2018) SC 1933

[4] Navtej Singh Johar vs. Union of India (2018) 10 SCC 1

[5] S. Khushboo vs. Kanniammal AIR (2010) 5 SCC 600

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