Changing Perceptions of Marriage in India: The Hindu Community

This article titled ‘Changing perceptions of marriage in India: The Hindu Community’ is written by Akriti Raina and focuses on the changes surrounding the idea of marriage in the Hindu community of the Indian society.

I. Introduction

Marriage has been considered sacred in Indian society. It makes the husband and wife one unit in the eyes of law as well. From ancient times, Hindu scriptures and shastras such as the Manusmriti have focused on the sanctity of marriage and seen it as a bond for life and beyond.

Under the Muslim Personal Law marriage is a contract between the bride and groom yet it is seen as a religious duty. The male can have four wives while the female can only have one husband. Under Christian law, marriage is considered to be a duty owed to God. Thus, in all major religions of the world, marriage is traditionally seen as indissoluble. However, these rigid ideas surrounding marriage have been changing in modern times.

In today’s time, marriage is seen as a mere contract that is dissoluble and the partners have equal rights and duties unlike in the traditional times, where the man was seen as the head of the house and wife had the obligation to sustain the house through the means provided by the husband.

Thus, one can say that a change in the age-old perception of roles assigned to men and women and the shift from patriarchy to equality in many spheres of social and private life has led to softening of rigid perceptions related to marriage as a sacred bond.

II. Exogamy

Exogamous rules imply that a person is prohibited from marrying into some relations or groups. The rules of Sapinda and Sagotra are widely followed in North and South India among the Hindus.

1. Sapinda Exogamy

The term sapinda means:

1. those who share the particles of the same body
2. people who are united by offering ‘pinda’ or balls of cooked rice to the same dead ancestor.[1]

Thus, sapinda means people belonging to the same family lineage, for example- a sister cannot marry her brother, the father cannot marry her daughter etc.

Under the old Hindu customs, marriage was prohibited within seven generations from the father’s side and five-generation from the mother’s side. However, the Hindu Marriage Act, 1955 prohibits marriage within five generations from the father’s side and three-generation from the mother’s side. The scientific reasons given for the same are the genetic disorders in babies born from incestuous marriages.

2. Sagotra Exogamy

Sagotra literally means someone belonging to the same gotra. Persons belonging to the same gotras are prohibited from marrying each other as they trace their lineage from the same Rishi. Example- A and B both trace lineage from Rishi C, thus, they are sagotras.

In Madhavrao Raghavendra and Ors. v. Raghavendrarao and Ors. [AIR 1946 Bom 377][2], the court upheld the validity of same gotra or sagotra marriages. 242^nd Report of the Law Commission of India on Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework 2012[3], upholds the validity of Sagotra marriages. It states that the Hindu Marriage Act does not prohibit Sagotra marriages. This report was written taking into view the issue of honour killings and the menace of Khaap panchayat in states such as Haryana.

The practice of exogamy is not uniform across all states in India. In many communities from southern India, an uncle or father’s brother is a preferred groom for the bride. While the practice of Sapinda is still relevant and forms an important part of the Hindu Marriage system and laws, Sagotra marriages are not legally prohibited. Thus, with changing times, while there is a retention of customary practices such as Sapinda, there is a shift from orthodox views on exogamy rules such as the prohibition of Sagotra marriage.[4]

III. Bigamy

Section 17 of the Hindu Marriage Act, 1955 prohibits the practice of bigamy and makes it punishable under section 494 of the Indian Penal Code.[5] Bigamy means a second marriage of a spouse while the husband or wife from the first marriage is alive. Such second marriage is only permitted in case a custom regarding the same is prevalent in the community.

In a patriarchal society like ours, women are often put in vulnerable positions by the second marriage of husband. They are left to sustain themselves on their own often without any means of survival or income. Even from a moral point of view, the relationship of marriage is one based on trust and mutual understanding. If viewed as a contract, it still demands confidence, trust and respect for the parties to the contract.

Practices such as bigamy affect the very structure of these bonds and cause mistrust. In the current times, the practice of bigamy is not that prevalent among the educated masses. It is practiced in some parts of the country, where the custom demands so.

IV. Inter-caste and Inter-religious marriage

Marrying outside one’s caste or religious community is a highly condemned practice in all religions. The Varna system lays down the four castes in the Indian society-

1. Brahmins
2. Kshatriyas
3. Vaishyas
4. Shudras

A fifth caste that emerged below all four was Dalits or untouchables.

The popular belief is that the Brahmin originates from the head of the divine authority and are the holders of knowledge. The Kshatriyas originate from the arms and thus, are warriors. The Vaishyas or traders/merchants originate from the legs. The Shudras who originate from the feet are considered the labourers and the Dalits or untouchables are considered the outcasts according to the varna system of division.

With caste-based resistance, uprisings and movements such as #smashbrahminpartiarchy and mobilization of disadvantaged communities combined with educational reforms and sensitization and acceptance of past mistakes, visible changes can be seen in the way society is getting rid of the stigma attached to the castes. Though there are incidents of violence against people belonging to the backward castes and classes every now and then, there is also a realization of their plight and support towards their causes from communities.

Similarly, inter-religious alliances are also being encouraged by the youth. Marriage has become a bond of faith, love and acceptance with couples from different communities coming together to replace hate with respect for each other’s traditions, forming an amalgamation of cultures and practices. In the case of Shafin Jahan v. Asokan K.M. and Ors., (2018) 16 SCC 368, AIR 2018 SC 1933[6], the Supreme Court upheld Hadiya’s right to marry the person of her choice as a fundamentally guaranteed freedom under Articles 19 and 21.

V. Live-in relationships

Living with your partner in a shared household before marriage is known as a live-in relationship. The idea is predominantly a western one but has gained prominence in Indian society. The courts have recognized the rights of individuals to live together before marriage.

The partners of such presumed marriages have rights similar to those who are legally married. Courts have upheld the inheritance rights of children born out of such marriages to their parent’s property. Maintenance rights of women in such arrangements have also been recognized.

VI. Child marriage

Child marriage is the practice of performing the marriage of children before the attainment of legally marriageable age. The minimum age of marriage in the case of men is 21 years and in the case of women is 18 years. It has been set taking into consideration the mental, physical and psychological development of men and women.

The Prohibition of Child Marriage Act,2006 prohibits marriage of men below the age of 21 years and women below the age of 18 years. The evil of child marriage ruins the young lives of children. They leave their education and innocence at a very young age and are burdened with household responsibilities. Such a practice is prevalent in parts of Rajasthan, Gujarat and Haryana even today.

Such marriages are considered voidable at the option of the parties to the marriage and not void in the eyes of law. Exception 2 to section 375 did not punish the rape of a wife above the age of 15 years by her husband, thus in a way, it gave legitimacy to child marriage. The Supreme court in Independent Thought v. Union of India and Anr. [2017] 10 SCC 800, AIR 2017 SC 4904][7] held that sexual intercourse with a minor will constitute the offence of Rape under the Indian Penal Code, even if committed by the husband.

Even though there have been positive changes in increasing awareness regarding the problem of child marriage, the problem still persists. During the nationwide lockdown itself, many young children and especially girls became victims of child marriage.

VII. Dowry

The system of Dowry is a major social issue in Indian society. Dowry refers to the money, gifts, valuables etc. offered to the groom in exchange for the promise to marry the bride. It is often demanded by the groom’s family as a matter of their right, exercised through humiliation, domestic violence, manipulation of the bride and her family.[8]

The practice of dowry is still relevant among many communities in Indian society. However, with increasing awareness about the equality inherent in marital bonds, many couples are breaking away from the old age shackles of the dowry system. The recent trends include sharing of marriage expenses, refusing dowry, court marriages, bride’s entitlement to her Stridhan etc. Offering dowry and demanding the same is also punishable under the Dowry Prohibition Act, 1961.

VIII. Divorce

Marriage, as discussed earlier, is considered a sacred bond in Indian society. In earlier times, divorce was seen as undesirable and partners were asked to compromise in their relationships. The stigma around divorce and the emphasis on settlement and sacredness of the bond made it difficult for spouses to severe the same. Section 13 of the Hindu Marriage Act, 1955, provides for the different grounds of divorce.

The perception surrounding divorce is changing, marriage is no more seen as a bond for life and thus, dissoluble through the legal processes. This change is reflected in women coming out of their abusive marriages, legal second marriages between divorcees, independence to select one’s partner etc.

IX. Conclusion

The traditional concept of marriage as a sacred union of man and wife has been replaced by the new age concepts of equality of relationship between two parties, mutual understanding, freedom to choose and walk away from the bonds. The evils such as the caste system and child marriage have been abolished, yet there is a need for stricter implementation of the legal framework regarding the same. Thus, the sacredness surrounding the marriage has undergone a shift in how it is defined and in modern Indian society marriage is now synonymous with a contract like an obligation.

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References

[1] UNIT 7 MARRIAGE AND ITS CHANGING PATTERNS, Available Here

[2] Madhavrao Raghavendra and Ors. v. Raghavendrarao and Ors. [AIR 1946 Bom 377], Available Here

[3] 242^nd Report of the Law Commission of India on Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework 2012, Available Here

[4] CHANGING DIMENSIONS OF THE CONCEPT OF MARRIAGE – A CONTEMPORARY CHALLENGE TO PERSONAL LAWS IN INDIA by Balwinder Singh, in International Journal on Advanced Research(IJAR), ISSN: 2320-5407, Published on July 2017, Available Here

[5] Hindu Marriage: A Changing Concept Among Youths In Modern Times by Basundhara Simpal for International Journal of Humanities and Social Science Invention (IJHSSI), ISSN (Online): 2319 – 7722, ISSN (Print): 2319 – 7714, ||Volume 8 Issue 2 Series. I || February 2019 || PP 37-40, Available Here

[6] Shafin Jahan v. Asokan K.M. and Ors., (2018) 16 SCC 368, AIR 2018 SC 1933 Available Here

[7] Independent Thought v. Union of India and Anr. [2017] 10 SCC 800, AIR 2017 SC 4904] Available Here

[8] Definition of ‘Dowry’ – A Continued Enigma in 61(2) JILI 213-228 (April-June 2019) ISSN 0019-5731 by Prof. Ved Kumari.

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