By Samarth Trigunayat, CNLU
Editor’s Note: In our country most marriages are governed by the specific personal laws governing each religion. However in extra ordinary circumstances when such nuptial ties are between two people of different castes, the Special Marriage Act, becomes the mandate. Our society has been grappling in the shackles of the caste system, since the very ancient times. Grave discrimination has been made on grounds of caste. There have been extremely stringent rules enforcing the same. Although we have come a long way in developing liberal perceptions, modern day society still has orthodox views and opinions inculcated within.
In today’s society intermingling between people from different castes is happening at different forums, be it for education, be it professionally. Thus it should not be a matter of grave consequence when marriage arrangements also involve such intermingling. The Special Marriage Act mandates certain pre-conditions essential for any marriage to be solemnized under this law. This legal provision is indeed a massive step towards a ‘broad-minded society’. Hindu Law has no stringent provisions regarding inter caste marriage as such, however Muslim Law clearly does.
The youth of today are quite receptive to the idea of inter-caste/ inter-religion marriage. Thus the real impediment is in altering the mind set of family elders. India has progressed significantly in terms of inter-caste marriages being on the rise. However this is still not embraced very well by people at large and we have a long way to go to rid our society of all prejudiced and pre-conceived notions, to widen our outlook.
An Introduction to the Concept of Marriage
Caste and religion are integral parts of Indian society. These two systems create water tight compartment between communities and by this gap, bring division, hatred and tension among various social groups. The basic problem in Indian society is not of class division but of caste division. Marriage within the same caste and same religion is the rule of land of the Indian society.
To think of marriages between different castes and different religions is a difficult and socially unacceptable proposition. To every such marriage social stigma is attached, making it difficult for the couples to survive. Recently the process of modernization, westernization, democratization and development has brought lots of positive changes in Indian society. The major objective of the present paper is to understand the social and legal issues involved in inter-caste and inter-religious marriages in India.
The discrimination on the basis of caste and religion are like a halt to the progress of India. For centuries Indian society has been divided on the basis of caste system and religion. The problem of caste system is so deep rooted that it will take a number of years for the Indians to come out of that idea. A custom which is prevalent in our society since the inception of the society cannot be eradicated totally in just 200 years.
Even today also India is struggling to come out of this social menace. And this struggle is very much justified. History reveals that efforts have been made not only by Indian reformers but by the British also during their reign in order to make India free from the clutches of caste system, untouchability and race discrimination.
When it comes to marriage between different castes and communities then it is like a taboo for most of the people. But it is believed by various social reformers that in order to remove this barrier of caste and religion, it is very much necessary that inter-caste and inter-religious marriages must take place. Marriages are regarded not only as a social institution in India, but also as a sacrament. In Hindu mythology, it is considered as the one of the most important ‘sanskara’.
Today, with change in time and change in era, the Indian society has also changed it to a certain level. With many social reforms coming, the cities in India have shown a remarkable growth in inter-caste and inter-religious marriages, ultimately helping the communities and castes to exist together.
Concept of Marriage
“I am the sky and you are the earth. I am the giver of energy and you are the receiver. I am the mind and you are the word. I am (saama) music and you are the song (Rik). You and I follow each other.”
The concept of marriage in Hinduism is much different from the way it is perceived these days. Marriage or ‘Paanigrahana’, is one of the most important and sacred ritual of Hinduism. The real essence of Marriage is described in Rig Veda.
The Karmakands of Vedas, details the different types of marriages, rituals and shlokas. In almost all the literary work of Hinduism, be it Mahabharata or Ramayana, the beautiful and elaborate descriptions of marriage ceremonies are given. It is even believed by many people if the shlokas and mantras of marriages are followed in the truest sense then it will lead to a never ending union of two souls.
Another peculiar feature of a Hindu marriage is that this sacred relationship that extends not only to this life but across seven or more lives. The adage that the marriages are made in Heavens is very much true in the case of Hinduism. In Hinduism, it is believed that two souls come together and marry because their Karmas are interlinked and they are meant to resolve them on this earth together.
Marriage in Hinduism is a sacred relationship. It is both Dharma (Duty) and a Samskara (Sacrament). Marriages in Hinduism are of eight types. Four of them are the approved form of marriage and the other forms are the unapproved forms.
- Brahma Marriage: In this form of marriage, the father of the girl respectfully invites the bridegroom at his residence, worships him and offers him the girl as his wife along with a pair of fine clothes and ornaments etc. Here the father does not accept any consideration in exchange of bride and does not select the bridegroom with a view to augment his own profession etc. A widow could not be remarried under this form of marriage.[ii] To be clear, the Arranged Marriages come under this category.
- Daiva Marriage: In Daiva marriage the girl is married to a priest during a sacrifice. After waiting for a reasonable period for a suitable man for their daughter, when the parents do not find anyone for their girl, they go looking for a groom in a place where a sacrifice is being conducted. Here the girl is groomed with ornaments and married to a priest.According to the Shastras, Daiva marriage is considered inferior to Brahma marriage because it is considered bad for the womanhood to look for groom. In this marriage holy yajna is performed and to perform the yajna, a number of priests are invited. In this marriage some articles, clothes etc., are donated, unlike Brahma Marriage.[iii]
- Arsha Marriage: Arsha means ‘Rishi’ or ‘Sages’ in Sanskrit, and thus an Arsha Marriage is a marrying a girl to a Rishi or Sage. References from Dharmasastras tell us that in Arsha marriage, the bride is given in exchange of two cows, received from the groom. The girl is generally married to an old sage. The cows, which were taken in exchange of the bride, shows that even the groom do not have any remarkable qualities. According to Shastras, noble marriages had no monetary or business transactions. Therefore, this kind of marriage was not considered noble.[iv]
- Prajapatya Marriage: In this form of bride’s father, decorating the bride with colourful attires and after worshipping her, offers her to the bridegroom, making a recitation to the effect that they together may act religiously throughout and prosper and flourish in life. In this marriage it is not necessary that the bridegroom is bachelor.[v]
- Asura Marriage: Also known as Rite of the Asuras (Demons),in this form of marriage the bridegroom receives a maiden after bestowing wealth to the kinsmen and to the bride according to his own will.
- Gandharva Marriage: A Gandharva Marriageis one of the eight classical types of Hindu marriage. This historic marriage tradition from the Indian subcontinent was based on mutual attraction between a man and a woman, with no rituals, witnesses or family participation[vi]. The marriage of Dushyanta and Shakuntala was a historically-celebrated example of this class of marriage.[vii]
- Rakshash Marriage: This is more like a fairy tale. According to Rakshasa marriage, the groom fights battles with the bride’s family, overcomes them, carries her away and then persuades her to marry him. This is not considered as the righteous way to woo a girl for marriage, because forcible methods are used by the groom to tie the wedding knot[viii].
- Paisach Marriage: According to the Manusmriti, to have sex with a woman who is helpless, sleeping or drink is called paisach vivah[ix].
This was the concept of marriage prior to the advent of Islam to India in the 11th Century AD. Though Islam ruled over India for more than 700 years, followed by British rule of 200 years, yet this still remains the root of the Indian Society. The traditions brought by Islam and British, have some impact over the Ancient Indian culture, yet when it comes to religion, still majority of Indian population is still guided by the basic textbooks of Hinduism like Manusmriti, Vedas etc, which were composed in the ancient India. Still the religion and the caste factors are very strong in the Indian society.
Provisions Under Various Laws
1. Hindu Law
Justice and Equality are the two aspects often talked about by most of the nationalists. In order to achieve the following goals, several provisions are included in the Constitution of India. On the same lines, Hindu Marriage Act, 1955 was framed. This act not only provides possibility of marriage between two people of different castes but also makes their marriage a valid one.
Provisions under Hindu law are very simple. As such no restrictions regarding caste is there in Hindu marriage act. The only essentials defined under section 5 of Hindu Marriage Act are:
- Monogamy[x]: This provision means that if any party has a living spouse at the time of marriage, then he/she cannot enter into the marriage.
- Soundness of Mind[xi]: This provision makes it necessary that the parties should be capable of giving free consent and should be of sound mind and should not be suffering from recurrent attacks of insanity.
- Age[xii]: The bride groom is required to complete the age of 21 years and the bride should have completed the age of 18 years.
- The parties are not within prohibited relationships[xiii].
- The parties should not be ‘sapinda’ to each other[xiv].
If we analyze all the conditions laid down under section 5 of Hindu Marriage Act, 1955, then as such there are no restrictions on the individuals regarding caste or religion. All such marriages including the inter-caste and inter-religious marriages, which fulfill all these conditions, are valid irrespective of any other ground.
2. Muslim Law
Under Muslim law there is no division on the basis of Caste. They are divided into three schools:
The essentials for marriage under the three schools are nearly same and as such no prohibition is there on the parties to undergo inter-school marriages.
But when it comes to inter-religious marriages, Islamic laws prohibit them[xv].
In respect of inter-religious marriages, Sunni and Shia laws are different. The law is therefore discussed separately in both the schools.
- Sunni Law
Under Sunni law, a boy is allowed to marry a Muslim girl of any sect, and is also allowed to marry a ‘Kitabia’ girl. A girl is kitabia if she belongs to a community origin of which is from a heavenly book. Under law, Christians and Jews are considered to be kitabia. Thus a sunni male has the right to contract a lawful marriage with a Christian or a Jew woman; their marriage is perfectly valid.
If a sunni male marries a female who is neither a Muslim not Kitabia, the marriage is not void; it is merely irregular (Fasid). An irregular marriage is neither valid nor void. As soon as irregularity is removed, an irregular marriage becomes completely valid. For example, the marriage of a sunni boy with a fore worshipper or a Hindu girl is merely irregular and may be regularized and treated as valid when the girl converts to Islam. That is to say, the marriage of a sunni male is not void; it is merely irregular with any non muslim or non-kitabia girl.
- Shia Law
Shia male has no right to contract a marriage with any non-muslim female. A shia muslim cannot even marry even a kitabia female. All such marriages of a Shia Muslim are void. However a Shia male may contract a Muta marriage with a kitabia or a fire worshipper female.
Marriage of a non Muslim Female with a non-Muslim male
A Muslim female, whether Shia or Sunni has no right to marry any non-Muslim male. If a Muslim female marries any Hindu or Jew or Christian or Parsi, the marriage under both the schools is void[xvi].
Muslim Male + Muslim Female = Valid Marriage.
Sunni Male + Kitabia Female = Valid Marriage.
Sunni Male + Non- Muslim/ Non-kitabia Female = Irregular Marriage.
Shia Male + Non Muslim Female = Void Marriage.
Muslim female + Non- Muslim Male = Void Marriage.
Provisions Under Special Marriage Act, 1954
Anyone irrespective of religion can lawfully marry any one of opposite gender, under this act. Marriage contracted under this act is known as ‘court marriage’. When a person solemnizes marriage under this law then the marriage is not governed by personal laws but by the secular laws. Similarly the rights and duties arising out of marriage are also governed by the secular law. Succession is governed by Indian Succession Act, 1925, and not by the personal laws.
The main reason behind the enactment of the Special Marriage Act was to provide a special form of marriage for the people of India and all Indians residing in foreign countries, irrespective of the religion or faith followed by either party, to perform the intended the marriage. According to the Act, the bride and the groom shall observe any ceremonies for the solemnization of their marriage, provided they complete certain formalities that are prescribed for the marriage, by the Act[xvii].
The Special Marriage Act 1954 has proved to be beneficial for the NRIs, because it provides for the appointment of diplomatic and consular officers as marriage officers (registrars), for solemnizing and registering marriages between citizens of India, in a foreign country. The Special Marriage Act 1954 is applicable throughout India, except the state of Jammu and Kashmir. Check out the clauses of the Act in the following lines.
The Special Marriage Act states that a marriage between two persons can be legalized, only if the following conditions are satisfied at the time of marriage[xviii]:
- Neither of the two has a spouse living, at the time of the marriage.
- Neither of the two is incapable of giving a valid consent to the marriage due to unsoundness of mind.
- Neither of the party has been suffering from mental ailments to such an extent, that they are unfit for marriage and the procreation of children.
- Neither party has been subjected to recurrent attacks of epilepsy or insanity.
- At the time of marriage, the groom should be of twenty-one years of age and the bride should be of eighteen years of age.
- Both the parties are not within the degrees of prohibited relationship; provided where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship.
- If the marriage is solemnized in the State of Jammu and Kashmir, both parties should be the citizens of India, domiciled in the territories to which this Act extends.
- When a marriage is intended to be performed in accordance with the Act, the parties of the marriage shall give notice in writing, in the Form specified in the Second Schedule to the Marriage Officer of the district, where the marriage is going to be solemnized.
- The marriage shall be solemnized after the expiration of thirty days of the notice period that has been published under sub-section of the Act.
- At least one of the parties going to perform the marriage should have resided for a period of not less than thirty days, immediately preceding the date on which the notice for marriage is issued to the registrar.
- The marriage officer is bound to display the notice of the intended marriage, by affixing a copy to some conspicuous place in his office.
- If the marriage officer refuses to solemnize the intended marriage, then within a period of thirty days of the intended marriage, either party can prefer an appeal to the District Court, within the local limits of whose jurisdiction the marriage officer has his office. The decision of the District Court, regarding the solemnization of the intended marriage, shall be final.
Hence it can be said that Special Marriage Act is basically the legislation formalized to give validity to few specific marriages which are declared as void or voidable under the provisions of various personal laws. Due to this feature of the act, it is one of the most secular laws in civil matter of an individual. This step can further help in strengthening good relationship between various castes and religions.
Perception of Youth towards Inter-caste and Inter-religious marriages
Inter-caste marriage (ICM) is a marriage between spouses of different ethnicities and castes. Caste is a form of social organization based on Hindu religious belief and has been practiced from the early time in India. The origin of the caste system is in Hinduism, but it affected the whole Indian society. The ethnic groups and castes are by no means isolated from each other in India. They have been interacting with each other groups over many years.
Furthermore, with more globalization and increase in educational facilities there is great change in the views of people on caste behavior. With the opportunities for cultural exchanges, travel, work and study abroad have brought contacts and relationships with different castes. Within India also, more and more young people are in contact with one another across caste and ethnic lines in schools, colleges, and workplaces. Thus, mingling with different castes and ethnic groups many people are entering in to such marriages. In this changing social scenario this paper examines the attitude towards inter-caste marriage among educated youths[xix].
Attitude towards Inter-caste marriages in India coincides with higher educational achievements of many minority castes. The educational institutions provide opportunities for inter-caste interactions between people of similar status, thus promoting inter-caste relationships. With the spread of higher education both among males and females inter-caste marriages find great favor amongst the younger generation.
Respondents showed high degree of acceptance of inter-caste marriage regardless of ethnic group, caste and social class. Despite the fact that the youth’s attitude toward acceptance of ICM is increasing, the majority of the respondents are still against intermarriage. In general, the responses indicate a fairly favorable attitude towards inter-caste marriage. This view is not performing in real practice and traditional caste value and parent’s role still play a key role in inter-caste marriage[xx].
With awareness programmes and various other activities now the youth of our country is trying to make people aware about the adverse affects of this system. A society which is divided does not subsist for long. With education playing key role, the people are now thinking beyond these boundaries. When God while creating men have not discriminated on the basis of caste or religion then why such discrimination is made on earth.
With such discrimination, we are not only going away from each other but also developing enmity between us. The reservation system has again played a key role in bringing different castes and religions together. By providing the downtrodden society of India access to education and various other opportunities, has remarkably reduced such caste and religious distinctions.
The modern youth who are well educated are very positive towards such marriages. As they study along with people of different castes and religions thus they develop good relations with them. Due to this their mindset is improving with every successive generation. But the sad part is this that the older generations are still very strict with the caste and religion aspect of marriage. Similarly the uneducated youth is also an obstacle in this way.
India is still more or less a traditional society with rigid caste and religious system. Caste and Religion play a very important role in the selection of mates in marriages. To most Indians, it is difficult to think of marriage beyond the own caste. But it is quite heartening to notice that the force of the caste in marriage selection is gradually loosening over time as about ten percent of the marriages in India are reported to be inter-caste marriages.
This is a good beginning to completely eradicate the caste system in India. This change in the marriage pattern in India is a very recent phenomenon due to the impact of modernization, socio-economic development and globalization of Indian economy. Various socio-economic and demographic factors also affect the pattern of inter-caste marriages in India.
There is a significant spatial variation in the pattern of inter-caste marriages. There seems to be higher inter-caste marriages in socio-economically developed states like Punjab, Haryana, Assam, Maharashtra and Karnataka in comparison with the socio-economically backward states of northern India namely Uttar Pradesh, Madhya Pradesh, Bihar and Rajasthan.
It is expected that the incidence of such inter-caste marriages will increase with degree of modernization and socio-economic development. There is need to glorify, give media exposure and encourage such marriages in order to reduce the caste barrier prevalent in Indian society. India will require long time yet to come when the marriage system in India will be completely feed of caste discrimination.
Inter-caste marriages are the only means of completely eradicating the caste barriers in India, whether urban or rural. The initiative should begin from the urban areas proceeding towards the rural areas as the urban areas have cosmopolitan educated and well aware population making it easier to promote the inter-caste marriages. The Government should improve the structure of the incentives granted to the couples registering under this act and availing the incentive.
The legislature should make an amendment in this act for the protection of the couples marrying under the special marriage act, to protect them religious believers who think they have committed a sin by marrying inter-caste. The procedure and registrars made under this act should also be simplified and can be given adequate appreciation/incentives to promote the inter-caste marriages as well help the couples coming to the Registrar’s office for the marriage under this act.
When the marriage is inter communal for example Hindu marrying a Muslim, Hindu marrying a Parsi, or Christian or any other combination, the maternal and the paternal succession have complications and they should be resolved. Any other important aspect which should be positively looked into is the caste of the children born out of such wed locks, there is no direct provision to determine the caste of the children born out of the special marriages. As today in the current scenario we see that the girl: boy ratio is diminishing every day despite all the measures taken by the government to combat this issue.
The question today arises that when there will be no women or hardly any women to marry will our caste barriers remain? Wont people then marry women from other caste, what will happen to all the religious beliefs then, will the couples then commit a sin. The answers to all these questions are a big No. in the given set of circumstances if it was not a sin then, then so it shall not be now as well.
The Constitution of India gives us the fundamental rights of Right to Equality, Right of Freedom & Personal Liberty, Right to Life, and all these are also conferred to the couples marrying under the Special Marriage Act as well. So the government, NGOs, teams of Lawyers, young students should take up initiatives to promote the inter-caste marriages even at the rural areas at the grass root panchayat levels.
Caste systems and racial discriminations act as a bane for progressive India. For years, the different societies of India, especially Hindu society have been divided on the basis of caste system and religion. The problem of caste system was so deep rooted that it took years for the Indians to come out of that idea. Even today also India is struggling to come out of this social menace. History reveals that efforts have been made by various social reformers and individuals to make India free from the clutches of caste system, untouchability and race discrimination.
For years, Indians had an orthodox mindset. They couldn’t imagine inter caste marriages. They had a conception that marriages are only possible in the same community and caste. Talking about inter caste and inter religion marriages in India was a taboo for most people in the earlier days.
However, with time, things changed and inter caste marriage also became a part of the society. Marriages are regarded as the most important social custom and hence, were viewed as the best means to remove the barrier of caste system. Today, in Indian society, though we can see inter caste marriages, but mostly it is the part of the city culture. The rural parts of the country still have a long way to go.
Formatted on 15th March 2019.
[i] This is recited by the groom after taking the seven steps around the altar., Vivah Karmakand.
[ii] U.P.D Kesari, ‘Modern Hindu Law’, (Central Law Publications, Allahabad, 2007), p37.
[iii]http://shagun.net/types-of-marriage/daiva-marriage/, accessed on 2/9/2013
[iv]http://weddings.iloveindia.com/features/types-of-hindu-marriages.html, accessed on 2/9/2013.
[v]U.P.D, Kesari, ‘Modern Hindu Law’, (Central Law Publications, Allahabad, 2007), p37.
[vi] Catherine Benton, ‘God of Desire’, (Sunny Press, Kolkata, 2006), p16.
[vii]http://en.wikipedia.org/wiki/Gandharva_marriage, accessed on 3/9/2013.
[viii]http://marriages-life.blogspot.in/2010/08/hindu-weddings-rakshasa-marriage.html, accessed on 3/9/2013
[ix]http://www.preservearticles.com/2011122419195/according-to-the-ancient-scriptures-how-many-types-of-marriages-are-there-in-the-hindus.html, accessed on 3/9/2013.
[x] Section 5(i), Hindu Marriage Act, 1955.
[xi] Section 5(ii), Hindu Marriage Act, 1955.
[xii] Section 5(iii), Hindu Marriage Act, 1955.
[xiii] Section 5(iv), Hindu Marriage Act, 1955.
[xiv] Section 5(v), Hindu Marriage Act, 1955.
[xv] See’ M.C. RICKLEFS, ‘A HISTORY OF MODERN INDONESIA SINCE C. 1300’, 3–14 (1991).
[xvi] Fyzee ‘Outlines of Muhammedan Law’, Ed IV, p.99.
[xvii]http://www.webcitation.org/5symq8ed8, accessed on 3/10/2013
[xviii] Special Marriage Act, 1954.
[xix] http://www.womenstudies.in/elib/adolescent_health/ah_attitudes_and.pdf, accessed on 4/10/2013.
[xx]http://www.scielo.br/pdf/ptp/v17n2/7878.pdf, accessed on 4/10/2013.