MARRIAGE IN INDIA

By Shivani Gupta, HNLU Raipur

Editor’s Note: This paper discusses the universal institution of marriage. It analyses the institution from the social point of view, taking into account the evolution from ancient times, factoring in modern developments. It also elaborates on the legal aspects of this most sacred institution.

Marriage as an Institution

There is no definition which adequately covers all types of human marriage. It has given a number of definitions and explanations. Some of them are as follows:

Edward Westermarck in his “History of Human Marriage” defines marriage as “the more or less durable connection between male and female lasting beyond the mere act of propagation till after the birth of offspring.”[1]

Malinowski says that marriage is a “contract for the production and maintenance of children.”[2]

According to Robert H.Lowie, “Marriage is a relatively permanent bond between permissible mates.”[3]

According to Lundberg, Marriage consists of the “rules and regulations which define the rights, duties, and privileges of husband and wife, with respect to each other.”[4]

According to Horton and Hunt, “Marriage is the approved social pattern whereby two or more persons establish a family.”[5]

According to Anderson and Parker, “Marriage is the sanctioning by a society of a durable bond between one or more males and one or more females established to permit sexual intercourse for the implied purpose of the parenthood.”[6]

Legal Perspective

The right to marry is a component of Right to Life under art. 21 of the constitution of India which says, ‘No person shall be deprived of his life or personal liberty except according to the procedure established by law’. This right has been recognized under the Universal Declaration of Human Rights 1948. Art. 16 of the same states:

1. Men and Women of full age without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during the marriage and at its dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.[7]

Types of Marriage

Polygyny

Polygyny is a form of marriage in which one man marries more than one woman at a given time. It was in practice in most of the ancient civilizations. It prevailed among the ancient Hebrews, Assyrians, Babylonians, Indians, and others. At present, it is widespread among primitive tribes but usually, it is confined to the wealthier class. It is in practice among the Eskimo tribes, Crow Indians, African Negroes, the Nagas, Gonds, and Baigas of India. However, it is permitted in the Muslim community.[8]

Types of Polygyny

It is of two types namely:

  1. Sororal Polygyny: It is a type in which the wives are invariably the sisters. It is often called ‘sororate’. The Latin word ‘Soror’ stands for the sister. When several sisters are simultaneously or potentially the spouses of the same man, the practice is called the sororate.[9]
  2. Non- Sororal Polygyny: As the term suggests, it is a type of marriage in which the spouses are not related as sisters.

For social, economic, political and other reasons, both the types are practiced by some people.[10]

Causes of Polygyny

Sociologists and anthropologists have made several studies to find out the causes of Polygyny. Some of the factors mentioned by them are:

  • Enforced Celibacy: Men do not approach the women during the period of pregnancy and while the child is being breastfed. Due to this long period of celibacy, a second marriage was contracted.
  • Earlier aging of the female: In the uncivilized tribesmen remarried a number of times because the women aged earlier.[11]
  • Women as badges of distinction: Among some tribal’s, a man’s social status is often measured in the terms of a number of wives. Greater the number, greater the prestige.
  • Taste of variety: Men go after several women for they have a taste for variety.
  • The constancy of sex urge in men: Unlike the woman, man is susceptible to sex stimulation throughout the year. Polygyny provides him an opportunity to enjoy sex life throughout the year.[12]

On account of the greater harmful effects of polygyny on family life, polygyny has been declared illegal in civilized societies. The Indian government has declared polygyny an offense under Hindu Marriage Act, 1955.[13]

Polyandry

Polyandry is the form of marriage in which a woman marries more than one man at a given time. It is practiced among the Tibetans, Marquesan Islanders of Polynesia, the Bahama of Africa, the tribal’s of Samoa and others. In India, the tribe’s such as Tiyan, the Toda, the Kota, the Khasa, and Ladhaki Bota also practice polyandry. The Nairs of Kerala were polyandrous previously. [14]It is however relatively a rare type of marriage and is generally an improvised adjustment to certain peculiar and extreme conditions.[15]

Types of polyandry

Polyandry may take two forms namely:

  1. Fraternal Polyandry: In this form, one wife is regarded as the wife of brothers who have sexual relations with her. It is also known as alelphic polyandry. The children are treated as the offspring of the elder brother.[16] This practice of being mate, actual or potential, to one’s husband’s brother is called “levirate.” It is prevalent among the Todas.[17]
  2. Non-fraternal polyandry: In this type, the husbands need not to haveany close relationship prior to marriage. The wife goes to spend some time with each husband. So long as a woman lives with one of her husbands, the others have no claims over her. Nair polyandry was one of these types[18]. If a child I born out of such a relationship, then any husband is chosen its social parent by a special ritual.[19]

Causes of Polyandry

No universal generalizations can be made with regards to the causes of polyandry. Still factors which cause polyandry are:

  • The lesser number of Women: According to Westermark, when the number of women is lesser than the number of males in society, polyandry is found, for example among the Todas of Nilgiri that was the reason for this form of marriage.
  • Poverty: Polyandry has developed in areas where there was a scarcity of natural resources so that many men may support one woman and her children.
  • Bride Price: When in a society, the bride price is high on account of the lesser number of women, polyandry develops.
  • Backwardness: Generally, polyandry is found in such areas as are situated far away from the centers of culture and progress.
  • Joint family: the spirit of the joint family gets strengthened when several brothers marry the same woman.

So, polyandry is generally considered an obstacle in the way of social progress. It causes harm to married life and creates several other psychological problems. It is on this account that polyandry has come to an end in those societies also wherein it once prevailed.[20]

Monogamy

Monogamy is the form of marriage in which one man marries one woman at a given time. This is the most widespread form of marriage found among the primitives as well as the civilized people and is the leading form of marriage.[21] It produces the highest type of affection and sincere devotion. According to Malinowski “Monogamy is, has been, and will remain the only true type of marriage.” [22] It is practiced among the tribals such as the Kadars, the Santals, the Khasis, the Canella, the Hopi, the Iroquois, the Andaman Islanders, and few others.

Monogamy has a long history of its own. Westermarck is of the opinion that monogamy is as old as humanity. Ancient Greek philosopher Aristotle had recommended only monogamous marriage. Ancient Hindus regarded monogamy as the most ideal form of marriage.[23]

Advantages

Monogamy seems to be superior to other forms of marriage. It enjoys certain merits over other forms and these merits are now well recognized. Some of them are:

  • Universally Practicable: Since there is a one-to-one ratio in almost all the societies, only monogamy can provide marital opportunity and satisfaction to all the individuals. No other forms can equally satisfy all.
  • Economically Better Suited: No man of ordinary income can think of practicing polygyny. Only a rich man can maintain a couple of wives and their children. Only monogamy can adjust itself with poverty.
  • Promotes better Understanding between Husband and Wife: Monogamy produces the highest type of love and affection between husband and wife. It contributes to family peace, solidarity, and happiness.  Vatsayana, remarked “At best a man can only please one woman physically, mentally and spiritually. Therefore, the man who enters into marriage relations with more than one woman, voluntarily courts unhappiness and misery”.
  • Contributes to stable Family and Sex life: Monogamous family is more stable and long lasting. It is free from conflicts that are commonly found in polyandrous and polygynous families. Herbert Spencer has said that monogamy is more stable and the consequent family bond is stronger.
  • Aged parents are not neglected: It is only in monogamy that old parents are protected and looked after properly.
  • Provides better status for Women: Women are given only a very low position in polygyny. Their rights are never recognized. They can be divorced at will. But in monogamy, women enjoy better social status. In modern societies, they enjoy almost equal social status with men.[24]Thus some cultures value monogamy as an ideal form of family organization.However, many cultures prefer other forms of family organization. Anthropological data suggests a majority of societies prefer polygamous marriage as a cultural ideal. There are multipleforms of non-monogamy that are used to organize families, as well as multiple forms of monogamy such as marriagecohabitation and extended families.

Rules of Marriage

Marriage, as we know, is a very important social institution. That is why no society allows a couple quietly to pair off and start living as husband and wife. Marriage brings a number of obligations and privileges affecting many people. Every society has, therefore, developed a pattern for guiding marriages. So for marriage, the most important step is the choice of mates. Though there is no standard laid down for choosing a partner yet from time to time rules have been made to regulate the selection of mates.[25]

Exogamy

In every human society, there are certain regulations which control the relation of the sexes and the selection of a mate. Intercourse between close blood-relations as brother and sister, father and daughter, and mother and son is almost everywhere condemned. But among very many tribes it is forbidden both on grounds of consanguinity and because two individuals are members of the same social group.

This prohibition, based upon common membership of a social group, is the law of exogamy. If the group is a territorial unit, e.g., a village, the exogamy is local. More commonly, membership of the group concerned is determined by kinship, real or fictitious, as in the clan. Hence exogamy is often loosely used to indicate clan exogamy.

That exogamy prevents the marriage of all near relatives is true only if members of the exogamous group is determined by descent reckoned through both parents, but this is very rare. Normally descent is traced through only one parent and it is therefore inevitable that certain close blood-relations will not belong to the same group and will, therefore, be possible mates for each other.

Thus if a tribe is patrilineal a man can select wives from among his mother’s sisters, her brother’s daughters and her brother’s son’s daughters, and, were exogamy the only marriage prohibition, even his mother would be available to him. On the other hand, clan exogamy does prevent unions between people bearing no relationship to each other, since membership of a clan is dependent upon fictive, not blood-related.

The rigidity with which the law of exogamy is observed varies considerably. Among some people a breach of it is regarded as incest; among others, though marriage is forbidden, extra-marital relations between clan members are tolerated; while in some cases, even marriage can be condoned.

McLennan, who first coined the word, regarded it as the outcome of female infanticide which, by limiting the number of women available within the group, forced tribesmen to capture their wives from their neighbors, but increased knowledge of the facts has made this theory untenable. Another suggestion is that the horror of incest, supposedly innate, has extended to all those women whom, under the classificatory system of relationship, a man addresses by the term for “sister.”

On another view, the original form was local exogamy arising from a natural distaste on the part of those who have been reared together to cohabit. Others believe it originated with Totemism while the diffusionists consider that it developed under special conditions in one place and spread thence throughout the world.[26]

Forms of Exogamy

Following are the forms of Exogamy found in India:

  1. Gotra Exogamy: Among the Hindus, the prevailing practice is to marry outside the ‘gotra’. People who marry within the ‘gotra’ have to repent and treat the woman as a sister or mother. The offspring resulting from her is believed to be heathen. This restriction has been imposed since people of the same ‘gotra’ are believed to have similar blood.[27]
  2. Pravar Exogamy: Besides forbidding marriage within the gotra, the Brahmins also forbid marriage between persons belonging to the same pravar. People who utter the name of a common saint at religious functions are believed to be of the same pravar. Thus, pravar is a kind of religious and spiritual bond.[28]
  3. Village Exogamy: Among many Indian tribes there is the recognized custom to marry outside the village. This restriction is prevalent in the Munda and other tribes of Chhota Nagpur of Madhya Pradesh. Among some tribes of Baroda, marriage is forbidden within the village since the residents of the same village are considered as relatives.[29]
  4. Pinda Exogamy: In Hindu society, marriage within the panda is prohibited. There is no one opinion as to who can be said to belong to the same pinda. According to Brahaspati, offspring from five maternal, generations and seven paternal generations are sapinda and they cannot inter-marry. The opinion of Brahaspati is not universally accepted. In several parts of India, the generations of the mother are not considered to be sapinda. Sapinda marriages take place in the southern parts of India whereas it is not usually practiced in the northern parts.[30]

Today, there is a greater trend towards exogamous marriages. Exogamy is appreciated as progressive and more scientific. Exogamy has brought people of various castes, races, religious groups, tribals together. It can effectively reduce social distance among peoples and encourage and support social solidarity and communal unity.

Endogamy

Endogamy is the form of marriage in which one must marry within one’s own caste or other groups. This rule doesn’t permit marriage of close kin. Endogamous marriage is one which is confined within the group. As a matter of fact, endogamy and exogamy are relative terms. That which is endogamous from one viewpoint is exogamous from the other.[31]

Forms of Endogamy

In India, the following forms of endogamy are to be found:

  1. Divisional or Tribal Endogamy: This is the endogamy in which no individual can marry outside his division or tribe.
  2. Caste Endogamy: In this endogamy, marriage is contracted within the caste.
  3. Class Endogamy: Class Endogamy is in which marriage can take place between people of one class or of a particular status.
  4. Sub-Caste Endogamy: this is the endogamy in which choice for marriage is restricted to the sub-caste.
  5. Race Endogamy: Race endogamy is that in which one can marry in the race. People of the Veddah race never marry outside their race.[32]

 Advantages

  • Preserves the group’s homogeneity.
  • Protects its prestige and status.
  • Maintains the numerical force of its group.
  • Preserves the purity in the group.
  • Keeps women happier.
  • Fosters the sense of unity within the group.
  • Keeps property within the group.[33]

Disadvantages

  • Endogamy shatters national unity because the nation is divided into small endogamous groups.
  • The scope of choice of a life partner is limited[34] due to which malpractices such as unsuitable marriage, polygamy, dowry system, bride price etc. are fostered.
  • It generates hatred and jealousy for other groups. This is the main cause at the root of casteism in India.

Thus, Endogamy as a rule of marriage has both its advantages and disadvantages. But due to its disadvantages, endogamy is condemned. The modern civilized people are more in favor of exogamy than endogamy.[35]

Hindu Marriage

The institution of Hindu marriage occupies a prominent place in the social institutions of the civilized world. A Hindu marriage can be defined as a religious sacrament in which a man and woman are bound in a permanent relationship for physical, social and spiritual purposes of dharma, procreation and sexual pleasure. Thus, Hindu marriage is not merely a social contract but a religious sacrament.

It results in a more or less permanent relationship between a man and a woman. Its aim is not merely physical pleasure but spiritual advancement. It is not merely an individual function but has social importance. Its ideals are the fulfillment of Dharma, procreation, and enjoyment of sexual pleasure. It exhibits an integral approach to this social institution.

Aims of the Hindu Marriage

  1. Fulfilment of Dharma or religious duties: According to the Hindu scriptures marriage is the basis of all religious activities.[36] In the words of K.M. Kapadia “marriage being thus primarily for the fulfilment of duties, the basic aim of marriage was Dharma.”[37]According to Mahabharata, “wife is very source of the Purusharthas , not only of Dharma, Artha and Kama but even of Moksha. Those that have wives can fulfil their due obligations in this world; those that have wives can be happy, and those that have wives can lead a full life.” [38]
  2. Procreation: In the Hindu family, the child is given a very important place. According to Rigveda, the husband accepts the palm of the wife in order to get a high breed progeny. According to Manu, the chief aim of marriage is procreation.[39]
  3. Sexual Pleasure: According to Manu, marriage is a asocial institution for the regulation of proper relation between the sexes.[40] The Hindu scriptures have compared the sexual pleasure with the realization of divine bliss. According to Vatsyayan sexual pleasure is the chief aim of the marriage. A maiden who has attained youth should herself get married without waiting for the assistance of elders.[41]

 

Forms of Hindu Marriage

The Hindu scriptures admit the following eight forms of marriage:[42]

  1. Brahma marriage: In this form of marriage the girl, decorated with clothes and ornaments, is given in marriage to a learned and gentle bridegroom.[43] This is the prevalent form of marriage in Hindu society today.
  2. Prajapatya marriage: In this form of marriage the daughter is offered to the bride-groom by blessing them with the enjoyment of marital bliss and the fulfilment of dharma.[44]
  3. Aarsh marriage: In this form of marriage a rishi used to accept a girl in marriage after giving a cow or bull and some clothes to the parents of the girl.(id.III,29). These articles were not the price of the bride but indicated the resolve of the rishi to lead a house-hold life. According to P.K.Acharya the word aarsh has been derived from the word rishi.
  4. Daiva Marriage: In this form of marriage the girl, decorated with ornaments and clothes, was offered to the person who conducted the function of a Purohit in yajna.[45]
  5. Asura marriage: In this form of marriage the bride-groom gets the bride in exchange of some money or articles given to the family members of the bride.[46] Such form of marriage was conducted in the case of marriage of Pandu with Madri.
  6. Gandharva marriage: This form is marriage is the result of mutual affection and love of the bride and the bride-groom. An example of this type of marriage is the marriage of the King Dushyanata with Shakuntala. In this form of marriage the ceremonies can be performed after sexual relationship between the bride and the bride-groom.[47] In Taittariya Samhita it has been pointed out that this type of marriage has been so named because of its prevalence among the Gandharvas.
  7. Rakshas marriage: This type of marriage was prevalent in the age when women were considered to be the prize of the war. In this type of marriage the bride-groom takes away the bride from her house forcibly after killing and injuring her relatives.[48]
  8. Paisach marriage: This type of marriage has been called to be most degenerate. In this type a man enters into sexual relationship with a sleeping, drunk or unconscious woman.[49] Such acts were regularised after the performance of marriage ceremony which took place after physical relationship between the man and woman.

About the present conditions of the above mentioned forms, Dr. D.N. Majumdar has said, “Hindu society now recognises only two forms, the Brahma, and the Asura, the higher castes preferring the former, the backward castes the latter, though here and there among the higher castes the Asura practice has not died out.[50] This view rightly describes the present position of the traditional forms of Hindu marriage.

 

Conditions for a Hindu Marriage

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely-[51]

  1. Neither party has a spouse living at the time of the marriage;
  2. At the time of the marriage, neither party-
  • Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
  • Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
  • Has been subject to recurrent attacks of insanity. [52] The bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage;
  • The parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
  • The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.[53]

 

Hindu Marriage Act,1955

This act applies to all members of Hindu society. It has made the following important changes in the institution of Hindu marriage:

  • Classification of Hindu marriage: According to this act, Hindu marriage can be divided into three classes – void, voidable and valid.
  • Determination of the age for marriages: by the provisions of this act, the minimum age limit for the boys and girls has been fixed at 18 and 15 years respectively.
  • Provision for monogamy: According to this act, a Hindu male or female can enter into matrimony only if no spouse of either is alive at the time of the marriage. Thus, Section 5 and Clause 1 of this Act provide for monogamy in Hindu society.
  • Provision for the Guardianship of the Mother: According to this act, the mother will be considered as the legal guardian of the minor son or daughter after the father.
  • Provision for Divorce: This act provides for divorce by wife or husband under certain specific circumstances.

 

Special Marriage Act, 1954

Section 4 of the Special Marriage Act 1954 lays down conditions for solemnisation of special marriages. It states:

Conditions relating to solemnization of special marriages. – A marriage between any two persons may be solemnized under this Act, if at the time of marriage the following conditions are fulfilled, namely:

  1. Neither party has a spouse living;
  2. Neither party-
  • Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
  • Though incapable of giving a valid consent, has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
  • Has been subject to recurrent attacks of insanity;
  • The male has completed the age of twenty-one years and the female the age of eighteen years;
  • The parties are not within the degrees of prohibited relationship;Where the marriage is solemnized in the state of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.

 

Important Rites in the Hindu marriage

Among the Hindus there are certain rites which must be performed for marriage to be complete. These rites and the importance attached to them have added to the sanctity of the Hindu marriage. The main rites are:[54]

  1. Vagdana (Oral Promise): In the presence of the people gathered for the marriage the names, gotras and pravaras of the bride and the bridegroom are announced along with the announcement that they are ready for the marriage. The ritual is known as “Panigrahana Sankalpa” or Vagdana.
  2. Homa: ‘Homa’ refers to the offering in the sacred fire. A number of ‘homas’ or fire rituals are observed in the marriage of which “Laja Homa” is an important one. This ‘homa’ is symbolic of fecundity and prosperity. Fred grains dipped in ghee are offered to fire [that is lord Agni] by the couple with a prayer to the God requesting him to bless them with progeny and prosperity.
  3. Kanyadaana: This is the most important ceremony connected with marriage. It is the ceremony of giving away the bride as a gift to the bridegroom in presence of the sacred fire and in the presence of the people gathered.  The father of the bride gifts her away to the bridegroom with a promise on his part that he would not transgress her “in the attainment of piety, wealth and desire”. The same promise is repeated thrice and the bridegroom affirms his promise thrice.
  4. Panigrahana(Holding the Hand of the Bride): This ritual refers to taking the right hand of the bride with the words: “I seize thy hand for the sake of happiness that you may live to old age with me…” With this the bridegroom takes the responsibility of looking after the bride.
  5. Mangalaya Dharana(Tying of the Tali or Mangalasutra): This involves the act of  tying the tali or mangalasutra(which is regarded as the sign of longevity of the husband) round the neck of the bride by the bridegroom. This ritual for which there is no reference in the Dharmashastras is more in practice in South India than in North India.
  6. Saptapadi: This is the ritual in which the bride and the bridegroom go ‘seven-steps’ together. The husband makes the bride step forward in northern direction seven steps with the words : “one step for sap, two for juice, three for wealth, four for comfort, five for cattle, six for seasons, friend be with seven steps united to me”. This ritual is important from the legal point of view, for the Hindu marriage is regarded legally complete only after it is performed.

The rites cited above are performed by a Brahmin priest in the presence of the sacred fire and are accompanied by the Vedic mantras. “They are necessary for marriage to be complete, because when they or any of them are not properly performed, the marriage may be legally questioned. Hindu marriage is a sacrament. It is considered sacred because it is said to be complete only on the performance of the sacred rites accompanied by the sacred formulae”.

Modern Changes in the Hindu Marriage

Due to the influence of Western culture and English education the Hindu marriage system has undergone considerable changes. Some of the important ones are:[55]

  • Marriage is not held as compulsory:In the Hindu society formerly marriage was considered to be absolutely compulsory for both male and female. According to Hindu scriptures, a person who does not beget a son through marriage cannot attain heaven. No man could perform ‘yajna’ without a wife. Marriage therefore was necessary even for religious purposes. But, due to influence of Western culture many males and females do not consider marriage to be necessary these days. Due to economic difficulties also some persons do not enter into matrimony. The modern educated Hindu girl is not ready to accept the slavery of male. The educated men and women do not believe in the ancient religious values and therefore do not consider marriage to be necessary. Breaking of the taboos of Sagotra and Sapravar marriage: Ancient Hindu tradition forbids the marriage of persons belonging to same Gotra and Pravar. This very much restricts the field of choice of mate. Therefore, at the present the educated persons are gradually violating the restriction. It has been also rejected by law.
  • Opposition of Child Marriages:In medieval India the custom of child marriage was very much in vogue. After the passing of Sarada Act child marriages have become illegal. Another factor leading to the restriction of child marriage in Hindu society is the tremendous increase of women education. The boys do not marry early because of late settlement in career.
  • Permission of Inter-caste Marriage:Formerly, inter-caste marriage was considered to be wrong in the Hindu society. It has now been legally permitted. With the increase of co-education, women education and the democratic ideal of equality and liberty, inter-caste marriages are now considered to be signs of forwardness.
  • Permission of Widow Remarriage:due to the untiring efforts of the social reformers and educated persons widow remarriage is no more considered to be wrong in Hindu society. Consequently, its incidence is now on the decrease.
  • Prohibition of Polygamy:Formerly, a man was allowed to marry several women in order to get a son. With the increase of women education the ladies are demanding equal rights in marriage. The Hindu Marriage Act of 1955 has declared polygamy to be illegal. No one can marry a second time, while the former spouse is alive.
  • Provision for Divorce:The Hindu Marriage Act of 1955 has introduced a significant change in the institution of Hindu marriage by permitting divorce under certain specific circumstances.

 

Problems of Marriage

Following are the main problems faced by the institution of Hindu marriage:[56]

  • Child marriage:The problem of child marriage was very serious in Hindu society till the passing of Sarada Act. The reasons behind the child marriages in Hindu society were religious conservatism, endogamy, sati-custom, the custom of dowry and the joint family. The Hindu marriage act of 1955 has fixed the valid age for marriage of the boys and girls at 18 and 15 respectively. These legal steps could not work immediately because of the widespread conservatism among Hindus, incompleteness of Prohibitive Act and the absence of female education. With the removal of these difficulties in the way of restraint of child marriages, this problem has appreciably diminished in Hindu society.
  • Widow Remarriage:About the condition of widow remarriage in ancient India, A.S.Aletkar has written, “side by side with Niyoga, the widow remarriage also prevailed in the Vedic society.”[57] The custom of widow remarriage, however, disappeared gradually and it was considered to be wrong as early as 200 AD. The restriction of widow remarriage resulted in the increase of immorality among widows, sexual exploitation of child widows, increase of prostitutes and the lowering of general status of women in the Hindu society. Then due to the untiring efforts of Ishwarchandra Vidyasagar the Hindu Widows Remarriage Act was passed in the year of 1856 which declared the legal validity of widow remarriage and laid specific circumstances for its validity.
  • Dowry:According to Max Radin, “ordinarily dowry is the property which a man receives when he marries, either from his wife or her family.”[58] The Websters New International Dictionary has defined dowry as, “the money, goods or estate, which a woman brings to her husband in marriage.”[59] In brief, dowry is that money, property or valuables which the bride party has to give to the bride-groom party in exchange of marriage.[60].Some persons have pointed out to some so-called advantages of the dowry system. They have maintained that it helps in the establishment of the new house-hold of the newly married couple and that the lure of dowry helps in marriage of ugly and uneducated girls. But these advantages do not have a stand before the gross evils of dowry systems such as murder of female children, increasing family disharmony, child marriages to avoid dowry and finally in the hindrance of women education. Recently, some sort of legal restriction on dowry was made by an act passed by the government. This however has not been sufficiently effective.

 

Divorce in India

The Hindu shastras regarded marriage a bond indissoluble in life. the wife was to worship her husband as a god. To Hindu Law there was no such thing as divorce. The custom of divorce existed only among the lower castes.[61]

The term ‘divorce’ comes from the Latin word ‘divortium’ which means to turn aside; to separate. Divorce is the legal cessation of a matrimonial bond. All the personal laws in India provide for divorce under certain grounds and conditions. Though there are different Acts governing people belonging to different religions, the grounds provided for divorce are more or less the same, with minor variations though.[62]

Divorce provisions and grounds under the laws are as follows:

Hindu Law[63]

Section 13 of the Hindu Marriage Act 1955, which provides for divorce, is as follows:

(1.)  Any marriage solemnized, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party –

  • has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
  • has, after the solemnization of marriage, treated the petitioner with cruelty; or
  • has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
  • has ceased to be a Hindu by conversion to another religion; or
  • has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot be reasonably expected to live with the respondent.
  • has been suffering from a virulent and incurable form of leprosy; or
  • has been suffering from venereal disease in a communicable form; or
  • has renounced the world by entering any religious order; or
  • has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.

(1A)  either party to a marriage whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-

  • that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
  • That there has been no restitution of conjugal rights in a proceeding to which they were parties.

(2.) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-

  • In the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner. Provided that in either case the other wife is alive at the time of the presentation of the petition, or
  • that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
  • that in a suit under section 18 of the Hindu Adoption and Maintenance Act 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure 1973(2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure Code 1898) (5 of 1898) a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
  • that her marriage(whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before the age of eighteen years.

Special Marriage Act, 1954[64]

The divorce provision under the Special Marriage Act 1954, is contained in Section 27, which is as follows:

(1.) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or thee wife on the ground that the respondent-

  • has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
  • has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
  • is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code(45 of 1860);
  • has since the solemnization of the marriage treated the petitioner with cruelty; or
  • has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
  • has been suffering from venereal disease in a communicable form; or
  • has been suffering from leprosy, the disease not having been contracted from the petitioner; or
  • has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive;

(1-A) A wife may also present a petition for divorce to the district on the ground,-

  • that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
  • that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956(78 of 1956) or in a proceeding under Section 125 of the Code of Criminal Procedure 1973(2 of 1974) (or under the corresponding Section 488 of the Code of Criminal Procedure of 1898) (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.
  • Subject to the provisions of this Act and to the rules there under, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage(Amendment) Act, 1970(29 0f 1970), may present a petition for divorce to the district court on the ground-
  • that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
  • that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one years or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

Although it may be said that divorce has helped the women to develop the feeling of independence in them and make them feel equal partner, yet it may not be advocated that divorce should not be easily granted by the courts. It cannot be denied that divorce causes instability of family. In view of its serious repercussions on family life, divorce should not be within easy reach of these partners. Efforts should be made to bring reunion between husband and wife. Divorce should be granted only when it has become unavoidable and is in the interests of both the husband and wife and the society at large.[65]

Conclusion

Marriage is considered to be an institution in India.  It is a ‘sanskara’ or purificatory ceremony obligatory for every Hindu.  The Hindu religious books have enjoined marriage as a duty because an unmarried man cannot perform some of the most important religious ceremonies.  There are various types of marriages that are followed in our country monogamy being followed at large.

As the society has advanced the Hindu marriage has gone through various changes. Even values attached to it have changed tremendously.  Individuals now are selecting their mates according to their own requirements. Many are not getting into matrimonial alliances due to some problems.

The marriages in India are governed by Hindu Marriage Act and Special Marriage Act which regulates the marriage. The provision of divorce has also helped many people to come out of their marriage. Thus, as believed Hindu marriage is no more indissoluble.

Formatted on February 26th, 2019.

Footnotes

[1] C.N. Shankar  Rao,  Sociology, Principles of Sociology with an Introduction to Social Thought  p.327 (6h ed. 2007).

[2]  Ibid. at 327.

[3] Ibid. at 327.

[4] Lundberg, Sociology p.133 .

[5] Horton and Hunt, Sociology p.216.

[6]  Anderson and Parker, Society p.144.

 

[7] Kusum, Family Law Lectures Family Law I (2d. ed.),p.3.

[8] C.N. Shankar  Rao,  Sociology, Principles of Sociology with an Introduction to Social Thought  p.329 (6h ed. 2007).

[9] Ibid. at 329

[10] Ibid. at 329.

[11] Vidya Bhushan & D.R. Sachdeva An Introduction to Sociology (44h Ed.).

[12] C.N. Shankar  Rao,  Sociology, Principles of Sociology with an Introduction to Social Thought  p.330  (6h ed. 2007).

[13] Vidya Bhushan & D.R. Sachdeva An Introduction to Sociology (44h Ed.).

[14] C.N. Shankar  Rao,  Sociology, Principles of Sociology with an Introduction to Social Thought  p.330  (6h ed. 2007).

[15] Vidya Bhushan & D.R. Sachdeva An Introduction to Sociology (44h Ed.).

[16]   Ibid.                                

[17] C.N. Shankar  Rao,  Sociology, Principles of Sociology with an Introduction to Social Thought  p.330  (6h ed. 2007).

[18] Ibid. at 330.

[19] Vidya Bhushan & D.R. Sachdeva An Introduction to Sociology (44h Ed.).

[20] Vidya Bhushan & D.R. Sachdeva An Introduction to Sociology (44h Ed.).

[21] C.N. Shankar  Rao,  Sociology, Principles of Sociology with an Introduction to Social Thought  p.331  (6h ed. 2007).

[22] Vidya Bhushan & D.R. Sachdeva An Introduction to Sociology (44h Ed.).

[23] C.N. Shankar  Rao,  Sociology, Principles of Sociology with an Introduction to Social Thought  p.331  (6h ed. 2007).

[24] Ibid. at 331-332.

[25] Vidya Bhushan & D.R. Sachdeva An Introduction to Sociology (44h Ed.).

 

[26]http://gluedideas.com/Encyclopedia-Britannica-Volume-8-Part-2-Edward-Extract/Exogamy.html, (last accessed on 16/09/11).

 

[27] Rajendra.K.Sharma, Indian Society, Institutions and Change, p.113.

[28] Ibid. at 113.

[29] Ibid. at 113.

[30] Ibid. at 114.

[31] Ibid. at 111.

 

[32] Ibid. at 111.

[33] Vidya Bhushan & D.R. Sachdeva, An Introduction to Sociology (44h Ed.).

[34] K.M.Kapadia, Marriage and Family in India, p.160

[35] Rajendra.K.Sharma, Indian Society, Institutions and Change, p.112.

[36] Kalidasa, Kumarasambhava, p.13

[37] K.M.Kapadia, Marriage and Family in India, p.168

[38] Mahabharata, Adi Parva, 74, 40-41.

 

[39] Rajendra.K.Sharma, Indian Society, Institutions and Change, p.107.

[40] Manu,IX,25.

[41] Kamasutra, III, IV, 36.

[42] Manu, III, 21.

[43] Ibid. at 27.

[44] Ibid. at 30.

[45] Ibid. at 28.

[46] Ibid at 31.

[47] Ibid at 32.

[48] Ibid at 33.

[49] Ibid at 34.

[50] Majumdar,D.N., Races and Cultures of India, p.173

[51]Kuldeep, The Hindu Marriage Act & Rules with Allied Laws, R.K. Publications 2003.

 

[52]  The words “or epilepsy”, omitted by Act 39 of 1999, Section 2 (w.e.f. 29-12-1999).

 

[53] Omitted by Act No. 2 of 1978, Section 6, Schedule (w.e.f. 1-10-1978).

 

[54] Vidya Bhushan & D.R. Sachdeva,  An Introduction to Sociology (44h Ed.).

[55] Rajendra.K.Sharma, Indian Society, Institutions and Change,  p.109.

[56] Rajendra.K.Sharma, Indian Society, Institutions and Change.

[57] Altekar,A.S., The Position of Women in Hindu Civilisation,p.150

[58] Max Radin, Encyclopedia of Social Sciences,V, p.230)

[59] Websters New International Dictionary, I,p.668

[60] Encyclopedia Britannica, VII,p.565

[61] Vidya Bhushan & D.R. Sachdeva,  An Introduction to Sociology (44h Ed.).

[62] Kusum, Family Law Lectures Family Law I (2d. ed.),p.23.

[63] Ibid. at 23-25.

[64] Ibid. at 26-27.

[65] Vidya Bhushan & D.R. Sachdeva,  An Introduction to Sociology (44h Ed.).

One Reply to “MARRIAGE IN INDIA”

  1. Hello
    My name is Arman
    I decided at the age of 18 to 25 years is a Hindi girl to marry her height is 170 to 200 cm
    Then talk with each other about where to live

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