Abstract
Marriage in India is an event filled with customs and traditions which have been carried out through the centuries and are still honoured even after so many years. However, even if there are certain customs like saptadi which are necessary to validate the marriage we can also find some customs which could be considered unnecessary or regressive in today’s time. Such customs include sati, dowry, child marriage, etc. These brought the needs of reforms in the practices related to Indian marriages.
This paper analyses the practice of sati as well as the Commission of Sati Prevention Act, 1887 in brief. It further highlights the need for setting a minimum age limit for the people getting married and hence abolishing the practice of child marriage. Another prevalent practice of giving dowry to the groom in exchange of marrying the bride has been recognized and necessary laws have been enacted, still these laws have not deterred the people. In order to keep up with the changing times and accepting new thoughts and ideologies, we have understood the need to acknowledge people of different sexual orientation as well as accept same sex marriages. These reforms made regarding marriages in India over the centuries have been analysed in detail in this paper.
Keywords
Sati, Child Marriage, Same-Sex Marriage, Hindu Law, Reforms, Dowry
Research Methodology
When someone studies about the concept of marriage and marriage reforms in India, first it should be discussed the very concept of “marriage”. In India, the reforms regarding marriages and abolition of taboos and malpractices like ‘Sati’ was initiated during the British era. However, the malpractice like ‘Child Marriage’ is still prevalent. Here, the concept of ‘marriage’ and its importance as a social institution is discussed. Also, the loopholes regarding marriages in India is also highlighted.
Review of Literature
Marriage Reforms in India was started from the British era with the abolition of ‘Sati’. But still there are many malpractices in India regarding marriages like child marriage and dowry. Also, after the historic verdict by the Supreme Court in Navtej Singh Johar vs Union of India[1], where the Court de-criminalized homosexual relationship, the steps should be taken to legalize same-sex marriage. Petitioners Abhijit Iyer Mitra, Gopi Shankar Madurai, Giti Thadani and G. Oorvasi filed Abhijit Iyer Mitra & Ors v. Union of India[2]in the Delhi High Court in 2020 stating a right to marriage for same-sex couples under the Hindu Marriage Act, 1955 (HMA). They referenced that the demonstration doesn’t recognize hetero and gay marriage if one somehow happened to go by the way in which it has been phrased. It plainly expresses that marriage can without a doubt be solemnized between ‘any two Hindus’. In this perspective on the matter, it tends to be expressed that it is against the established command of non-intervention assuming the said right isn’t reached out to gay separated from hetero couples,” the request, addressed by attorneys Raghav Awasthi and Mukesh Sharma, said. The appeal looks for a revelation expressing that Section 5 of the Hindu Marriage Act doesn’t recognize gay and hetero couples and the right of same-sex couples to wed ought to be perceived under the Act.[3]
Marriage, moreover called marriage or wedlock is a socially and consistently lawfully saw connection between people called spouses.[4] Both society and law oversee human lead. Society gives rules and rules to direct and powers discipline assuming the comparable is manhandled. Exactly when society bombs in completing the norms, it accepts extreme measures; sets up laws. Establishments moreover gives the fundamental standards/verifiable guidelines for agreeable direct and train for manhandling the supported arrangement of acknowledged principles. Authorization gives value by repelling the reprehensible and giving various reliefs to setbacks. At whatever point sanctioning is organized, it is sent back to the neighborhood execution. It ought to be followed by all people, including individuals who had been mishandling society’s suggested verifiable standards. Thus, the law should be strong assuming the overall population recognizes it and takes firm measures for its execution. Marriage is socially maintained joining between individuals in what is a generally anticipated to be a consistent and enduring relationship. It has been contrastingly portrayed by sociologists and specialists. Regardless, the sanctified association of marriage has been existing through ages and has consumed in itself distinctive ravaged interpretations of the same. To address them, and thusly, guarantee that no irreproachable life perseveres. Different laws and perspectives have been obtained by various courts, with the most illuminating ones being from the Hon’ble Apex Court. Such misbehaviors, specifically: disloyalty, flight, or mercilessness, among others, are known to be offenses against marriage or conjugal offenses. Instances of wedding offenses continue to rise bit by bit and remain undisturbed regardless the diverse protective laws made by the order, and steps taken by the standard of harmony and law maintainers of the overall population. Over the long haul, a steadily expanding number of women are added into the summary of the setbacks from these authentic offenses. When we talk about laws which related to marriage and family and how it evolved from the past with customs like Sati, Dowry, Child Marriage and many more, undoubtedly, they are still prevalent in some parts. These reforms and changes which have taken place in our society have shown how we see the group cultures, customs and personal relations. Indian policy makers to a very much extent retained the cultures and values which were somewhere affected by the British invasion. They tried to bring back the personal laws related to marriage of specific religious groups. In the current scenario, personal laws which predate colonial times are forced upon people. India being a secular country where everybody has a right to follow any religion as per their desire. Although with lots of cultures and traditions, executing and explaining the motive of marriage has been difficult. Firstly, it was considered that after a marriage man should be the powerhouse of the family, a concept known as patriarchy but that too is longer visible. So, everything has changed and evolved for the betterment of society only. Marriages are viewed as a widespread social institution and an indispensable piece of humanity. In India, there is no single lawful system overseeing the organization of marriage, explicitly with the purpose of maintaining the precepts of strict opportunity and protecting the principal practices of different religions and convictions that comprise the country. The legitimation of the marital obligation of two individuals happens solely after achieving authorize from the current laws winning in the country, which overall speech are alluded to as wedding or marriage laws. An exceptional element of the current wedding law in India is its dynamic quality and variety in consonance with the country’s heterogeneous populace.[5] The Solemnization means to the presentation of a conventional wedding service before witnesses. At the end of the day, it’s the overall population execution of a holy observance or grave function with every single suitable custom. The Hindu Marriage Act, 1955 has secularized the Hindu law of marriage in all regards aside from one and has revoked custom besides in a couple of issues. It is about formal legitimacy of a Hindu marriage that the strict, sacrosanct, or non-mainstream character of Hindu relationships is held. One of the issues in regard of which custom is held is additionally the stately legitimacy of Hindu relationships. This implies that a Hindu marriage (and no marriage is substantial except if it’s solemnized with appropriate functions and customs). The solemnization of a Hindu marriage occurs as per the customs and services rehearsed by the gatherings according to Section 7 of the Act. In Reema Aggarwal v. Anupam[6], the Supreme Court held that these services are required to be demonstrated. A fundamental custom is that of saptapadi or a series of seven stages by the couple around the holy fire, wherein the last advance denotes the culmination of the service and accordingly the limiting power of the marriage. In Santi Deb Berma v. Kanchan Prava Devi (Smt.)[7], the Supreme Court upset the judgment of the High Court and decided that saptapadi is a fundamental service of a Hindu marriage, and the shortfall of sufficient proof to demonstrate the exhibition of similar makes the subsequent marriage attempted by the respondent for this situation as not lawfully legitimate under the Act of 1955. The Special Marriage Act (SMA) was established in 1954 as a piece of a progression of changes to individual laws in India. The SMA was asserted to be the means by which of evading social restrictions against wedding outside one’s religion or station.
Abolition of Sati
Sati is a practice wherein if a married man dies, his wife is supposed to sit on the funeral pyre of the husband and burn to death. This was a very prevalent social evil in India and became common after the 13th Century.[8] Sati was practiced to highlight the purity of a woman and her devotion towards her husband. The term sati is derived from Sanskrit and literally means ‘she is pure or true’.[9] The myth behind sati is that the goddess Sati burned herself to death because she couldn’t stand her father Daksha’s maltreatment of her husband Shiva. Jauhar is a practice considered under sati wherein the wives of the Hindu kings and the soldiers would throw themselves in fire if they lost a war against a Muslim enemy. The females supposedly sacrificed themselves in order to protect themselves from the clutches of the enemy.[10] These practices were most prevalent in the Rajasthan and Madhya Pradesh states in India. Christian missionaries launched a number of efforts opposing the Sati practice. However, Raja Ram Mohan Roy is credited with calling for an end to this social blight.[11] The Bengal Provincial administration prohibited Sati for the very first time in 1829, and other provinces & princely states soon followed suit. In 1861, Queen Victoria issued a blanket prohibition on the practice of Sati in India.[12] The Commission of Sati Prevention Act, 1987,[13] is now in effect. This Act aims to prohibit any practice of sati within Indian territory. The Act forbids both the forced and voluntary burning or burying alive of a widow, as well as glorifying Sati. Sati is defined as the burning or burying alive of a widow with the body of her deceased husband or other relative, or any article, object, or thing associated with the husband or such a relative, according to the Act. The commission of Sati involves 3 elements:
- Burning of the woman
- Glorification of the Act
- Establishment of a temple dedicated to the Sati
This Act makes attempting to commit Sati unlawful by a prison sentence of up to one year or a penalty or both, and the individuals actively participating in the practice or simply witnessing it will be sentenced to imprisonment for life. The act of representing or depicting sati as admirable or honourable is now punishable by a seven-year prison sentence and a monetary fine. The last recorded case of sati was when Roop Kanwar sat on the funeral pry of her husband at the age of 18 on September 4 1987.[14]
Abolition of Child Marriage
Child marriage can be described as a union solemnized between two people where the age of the male is less than 21 years and that of the female is less than 18 years. In India, child marriages are common. The extent and scope of child marriages are estimated differently by different sources. Based on a survey conducted in 1998, the International Center for Research on Women-UNICEF[15] publications assessed India’s child marriage percentage to be 47 percent, whereas the United Nations[16] reported it to be 30 percent in 2005. 33.8 million child marriages were recorded in the 2011 Census for women under the age of 18 and boys under the age of 21. In India, there is a lot of variation in the prevalence of child marriage throughout locations, provinces, and between towns and cities.[17] Early marriage have their own set of consequences, such as medical issues for women owing to pregnancy at a young age, increased degradation in women’s standing, and a vicious circle of gender inequity and hence to overcome this The Child Marriage Restraint Act, 1929[18], which was the first secular law aimed at preventing child marriage, but it only imposed penalties on adult male who married a juvenile and on the parents who encouraged such unions. Due to the incompetence of this act, a new law was enacted as The Prohibition of Child Marriage Act, 2006[19], which envisage child marriage with penalties of two years of solitary confinement or fine of one lakh rupees or both. Under The Hindu Marriage Act, 1955[20], only the parties are penalised, there is no provision to prosecute the parents who solemnised the union. A girl can annul the marriage only before the age of fifteen and can challenge the marriage before attaining the age of eighteen. There is no explicit prohibition against juvenile marriage. In the case of Lajja v. State[21], while considering the legitimacy of alleged child marriages as referred in the petition before the bench, the Delhi High Court held that Prohibition of Child Marriage Act, 2006, which makes the act cognizable and non-bailable, has imposed harsher sanctions. It states that permission gained from juveniles under the age of sixteen is irrelevant, and that a superseding indictment, once filed, cannot be invalidated solely because the minor was a consenting party. The High Court of Gujarat in the case of Yusuf Ibrahim Mohammad Lokhat v. the State of Gujarat[22] held that “According to Muslim personal law, a girl is competent to marry without her parents’ consent as soon as she reaches puberty or reaches the age of 15, whichever comes first.” This clearly indicates that, in the opinion of the learned judges, that the personal laws should be used as the major source for deciding cases of underage marriage.
Abolition of Dowry
Dowry is a certain amount of money, jewellery, estate, automobiles, and other valuables paid by the bride ‘s family to the bridegroom and his family in exchange for marrying the woman. The word ‘dowry’ was derived from the Latin term ‘dotarium’ as well as the Anglo-Norman French term ‘dowarie,’ which created the word ‘dowry.’ It sounds like the late Middle English word ‘dower,’ which refers to a wife’s part of her partner’s estate following his demise. The tradition of providing a dowry transfers a significant percentage of the bride’s family’s wealth to the groom’s family merely on the basis of nuptials. As a result, marriage is transformed into a commercial act or exchange involving the amassing of wealth or money.[23] This social evil is extremely prevalent in India in spite of being illegal. The Indian law known as the Dowry Prohibition Act was enacted on May 1, 1961, with the goal of prohibiting the giving or receiving of a dowry.[24] The anti-dowry legislation in India makes dowry unlawful. Any action of taking or giving dowry is illegal in India, according to the Dowry Prohibition Act. The sanction for breaking the anti-dowry regulations is upto 5 years in prison and a penalty of Rs. 15,000 or the amount of said dowry paid, whichever is higher.[25] Negotiating with the groom’s family for a lower dowry when the bride’s family is unable to fulfil the dowry demanded by the groom and his family, as well as forcing the bride’s family to meet requests as compensation for marrying their daughter after the wedding has already taken place, are all illegal.[26] Often times, the family of the groom are seen to demand dowry from the bride’s family after the wedding and sometimes even torture the bride, verbally or physically. If the bride is facing such pressure for dowry from her in-laws and dies within 7 years of the marriage, it could be considered dowry death. Under Section 304B of the Indian Penal Code, dowry deaths are illegal, while mistreatment or domestic abuse for dowry expectations is illegal under Section 498A.[27] The IPC renders the offence non-bailable, which implies that if the husband or members of the family are apprehended by the police, they wouldn’t be able to post bail.[28]
Same-Sex Marriage
The issue of marriage reforms in India, especially the questions of same-sex marriage, its validity and its legality have, of late, attracted huge attention.[29] Undoubtedly, the same-sex union is social reality in India but people take it as a bitter truth which is hard for them to digest. Bond between two people of same sex is not naturally different between the same bond with people of different sex. Being gay is just one side of the story and marriage encircles the whole person. Most of same-sex couples who have tied knots and promised each other to be together with their partner, whatever the condition and challenges will be do not consider themselves as gay. When people assert their right of marriage, their sexuality is not innate to this right, although the social thinking and prejudice makes it appear so.[30] If we talk about U.S.A, when a debate on same-sex marriages was going on in state of Vermont, many senators who opposed these same-sex marriages at first, changed the arguments and supported it after hearing the couples who lived together for years. Section 377 was an invention of British which banned homosexuality.[31] In 1997, ABVA filed a PIL questioning the constitutional validity of section 377. It was the first step against the government oppression of LGBTQ community. The Delhi HC struck down this law stating that it stood against fundamental rights provided by the Indian constitution. This was overturned by SC and section 377 of IPC was reinstated. A landmark judgement was given by SC in 2018 in which section 377 was declared unconstitutional and it was stated by court that this was unconstitutional to an individual’s dignity and identity. But still Indians find themselves under tremendous pressure when they are told to open about their sexual orientation and talk freely about it. It’s like a mental pressure on them[32]. If we see the current scenario, same- sex marriages are still not recognized in India and they are frowned upon too because of orthodox thinking of the society. Some societal beliefs need to be changed, because if the judiciary can evolve with time, law can evolve with time, why cannot the society?
Suggestion
The Supreme Court and High Court’s verdicts had dependably rehashed the interest in changes in Marriage in ongoing numerous years. The rectifications to the Acts referred to a change of the strategy of getting a partition when the marriage has horrendously isolated. They also endeavour to ensure that, regardless; support plans are more than a straightforward token. Nevertheless, after specific amendments, there are a few important changes required. It is bounteously apparent that the Hindu Marriage Act doesn’t contemplate the Question of Consent as of much importance. Thusly, marriage without consent is Valid except for the individual encountering broken conduct, mental disarray can’t be prepared to marry and can’t give consent for marriage. This is the unavoidable eventual outcome of merged Section 5, 11 and 12. Neither Section 5 nor Section 11 and 12 address consent. Expecting any party can exhibit the deficit of a consenting mind, the marriage will reliably remain significant. Then, how should Hindu marriage be Sacrament? As demonstrated by the Hindu Marriage Act, Sacrament marriage has three credits:
- It is super durable and constant association.
- It is a timeless association.
- Furthermore, it is a blessed association
An upheld marriage among Hindus has reliably been considered a kanyadan be it a marriage in any construction. Beside that presents given to the woman of great importance through decorations, pieces of clothing and various articles similarly as Cash from the side of her father and Husband set up her Stridhan. Without Kanyadan the marriage isn’t completely upheld. Throughout the range of time, Dowry becomes wide treachery, cases come out when the woman of great importance forgot to bring the ensured and expected blessing has been pounded, tortured actually and mentally, kept without food and water for quite a while, etc Area 19 of SMA is remedial in character. The marriage solemnized under this Act of any person from a bound together family who indicates the Hindu, Buddhist, Sikh or Jain religion will be considered to impact his severance from such family. The prerequisite for such a course of action as notice in region 19 is odd especially when such severance could incite difficulty of inheritance and various honours of the couple significance to marry under this Act.
Conclusion
When it comes to laws relating to marriage and family rituals such as Sati, Dowry, Child Marriage, and others, they are surely still present in some areas. These reforms and transformations in our society have influenced how we view group traditions, conventions, and interpersonal relationships. Indian policymakers preserved, to a large measure, the traditions and values that have been influenced by the British conquest. They intended to reintroduce personal regulations governing marriage between members of specified religious groups. People are currently subjected to personal laws that trace back to colonial times. The Hindu Marriage Act of 1955, the Special Marriage Act of 1954, the Indian Christian Marriage Act of 1872, and a number of others are only a few examples. Marriage is an institution that brings two people together in a loving relationship until death separates them. Despite the fact that there are several cultures and customs, implementing and communicating the purpose of marriage has proven challenging. Initially, it was thought that after marriage, the man should be the family’s powerhouse, a belief termed as patriarchy, but this is no longer the case. As a result, everything has altered and developed solely for the benefit of humanity.
By: Arryan Mohanty
Symbiosis Law School, Nagpur
[1] AIR 2018 SC 4321
[2] W.P.(C) 6371/2020
[3] Delhi High Court asks Centre to respond to plea to recognise same sex marriages under law (last visited on January 11, 2022 at 07:24 PM) https://economictimes.indiatimes.com/news/politics-and-nation/delhi-high-court-asks-centre-to-respond-to-plea-to-recognise-same-sex-marriages-under-law/articleshow/79298017.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[4] Haviland, William A.; Prins, Harald E.L.; McBride, Bunny; Walrath, Dana (2011). Cultural Anthropology: The Human Challenge (13th ed.). Cengage Learning.
[5] Family Law in India: An Insight on Indian Family Laws – Marriage, Divorce, Adoption, Maintenance, Family law, Bankruptcy, Entertainment, Hindu Laws, Special Marriage Act, Legal Service India (last visited on January 5, 2022 at 11:51 AM) http://www.legalserviceindia.com/helpline/helpline_HOME.htm
[6] 2004 Cr LJ 892 (SC)
[7] AIR 1991 SC 816.
[8] SHAMSUDDİN, M. “A Brief Historical Background of Sati Tradition in India”. Din ve Felsefe Araştırmaları 3 (2020): 44-63 https://dergipark.org.tr/en/download/article-file/1170035
[9] Richa Jain, The History Behind Sati, a Banned Funeral Custom in India, Culture Trip, (May 2, 2018)
[10]Ibid.
[11] Kanksha Raina, How Did Sati Get Abolished in India? FII, (Oct. 29, 2018)
[12]HISTORY BEHIND THE ORIGIN AND ABOLITION OF SATI SYSTEM IN INDIA, LawzGrid, (Jan. 7, 2019) https://medium.com/@marketing_13585/history-behind-the-origin-and-abolition-of-sati-system-in-india-dc969dee7591
[13] Commission of Sati Prevention Act, 1987
[14] Hamza Khan, India’s last known case of sati: ‘She ceased to be a woman… was a Goddess’, The Indian Express, (Sep. 22, 2019, 6:49 a.m.)
https://indianexpress.com/article/india/she-ceased-to-be-a-woman-was-a-goddess-6016915/
[15]International Center for research on women, https://www.icrw.org/issues/child-marriage/
[16] Child Marriage, (Oct. 2021), https://data.unicef.org/topic/child-protection/child-marriage/
[17] A statistical analysis of child marriage in India based on 2011 census, Young Lives, (Jun. 1, 2017), https://www.younglives-india.org/node/1180
[18] The Child Marriage Restraint Act, 1929, § 4 and 6.
[19] The Prohibition of Child Marriage Act, 2006, § 9.
[20] The Hindu Marriage Act, 1955, § 5(iii).
[21] Lajja v. State (2012) Cri LJ 3458
[22] Yusuf Ibrahim Mohammad Lokhat v. the State of Gujarat (2014) MA
[23]Padma Mohapatra, what is a dowry and the terms similar to it? Study.com, (Mar. 10, 2021) https://study.com/learn/lesson/what-is-dowry-bride-price.html
[24] Sharmila Lodhia, Dowry Prohibition Act, Encyclopaedia Britannica, (Apr. 24, 2021)
https://www.britannica.com/event/Dowry-Prohibition-Act
[25] Swati Shalini, Anti-Dowry Law in India, MyAdvo, (Aug. 23, 2018)
https://www.myadvo.in/blog/anti-dowry-laws-in-india/
[26] Guest Post, What Are the Laws Prohibiting Dowry in India, iPleaders, (Mar. 4, 2016)
[27] Indian Penal Code, 1860, § 498 & § 304B.
[28] Amrita Chakravorty, Dowry in India, India Filings,
https://www.indiafilings.com/learn/dowry-in-india/
[29] Ghosh N.L., SOCIAL REFORMS IN INDIA, 8 The National review 45, 361-368 (1886).
[30] Ruth Vanita, Love’s Rite, pg.6, 1st ed., 2005.
[31] Bubb A., Blustering Sahibs and Section 377, 44 EPW 35, 25-28 (2009).
[32] Tamang N., Section 377: Challenges and Changing Perspectives in the Indian Society. Changing Trends in Human Thoughts and Perspectives,1 Science, Humanities and Culture68, 3-7 (2020).