CHANGING CONCEPT OF MARRIAGE

IN HINDU LAW

FAMILY LAW PSDA

SUBMITTED BY SUBMITTED TO
DIPANSHA GARG Ms. RAJNI KHERIA

06917703820
3rd Semester

Vivekananda School of Law and Legal Studies

VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES
Pritampura, Delhi-110034
2021
CHANGING CONCEPT OF MARRIAGE IN HINDU LAW

INTRODUCTION
The Hindus have been giving great importance to marriage since time
immemorial. even the RigVeda speaks of the sanctity of marriages and
according to Smritikars even death cannot break this relation of husband and
wife. Marriage has been considered as a sacrament and not a contract

. However, under modern Hindu law, Hindu marriage has no more remained
an indissoluble union. The Hindu marriage act, 1955 has introduced the
concept of divorce in Hindu law. To a great extent, Hindu marriage has
ceased to be a sacramental union. It has become a semblance of a contract
as well as a sacrament.

the social institution of marriage has observed many changed trends as

people move towards modernization and are now open to practices like live
in relationship, same sex marriage and sexual autonomy. The Supreme Court
also commented on sucgh practices like in Abhijit Bhikaseth v. State Of
Maharashtra that A woman in a live-in relationship may also claim
maintenance under section 125 Cr.P.C. and in Payal Katara case The
Supreme Court observed that a man and woman, if involved in a live-in
relationship for a long period, they will be treated as a married couple and
their child would be considered as legitimate.

Traditional Hindu law did not prescribe any age restriction for marriage.
Further, Polygyny was also an accepted form of marriage. Hindu Marriage
Act, 1955, which is also applicable to Sikh, Jain and Buddhist, has prescribed
the minimum age of marriage (21 for boys and 18 for girls). Polygamy in any
form (i.e. Polyandry or polygyny) has not been allowed under the act

The ancient text prescribed that if the parties did not belong to the same
caste, the marriage was invalid unless sanctioned by the custom. Under the
Hindu Marriage Act, 1955, any two Hindus, whether domiciled in India or not,
whether Indian citizens or foreigners, can perform their marriage. Inter caste
marriages are valid under Hindu Marriage Act, 1955.

Here’s a timeline of the evolution of marriage:

The first recorded marriage contract dates back to 4000 years ago which was
a completely different marriage compared to today’s times. Marriage has
evolved over the years. The current generation has a different definition of
marriage.
  Strategic alliances
o Marriage in olden days was based on strategic alliances of
Kings .The king when felt the need to acquire a certain
territory used to marry the princess of that province.
Marriage was no longer based on the consent of the woman
and depended solely on the will of the male. So, marriage
was basically based on the king’s will and his desire to
acquire the property.
 Consent
oIt turned to obtaining a political and economic advantage.
The bride had to agree to father’s wishes and oblige to the
marriage. Also, the presence of the bride and groom were
of no importance.
 Sacrament of marriage
o Marriage was not considered as sacred and now God’s
marriage was considered important. Also, the vows taken
by both the parties were to be taken in the name of God.
 Divorce
oBefore 1858, taking a divorce was difficult and rare. The
couple used to live in misery than take a divorce. The gates
for divorce opened by certain laws introduced in India and
other countries as well.
 Same-Sex Marriage
o No one in society would have imagined the acceptance of
same-sex marriage. The place where marriage without
elder’s permission was considered a taboo, acceptance of
marriage between same sexes posed problems. Though
legalised in most nations, it is still not completely
acceptable in society.
 Live in Relationships
o India has witnessed a change in the way couples now
perceive their relationships to be. Though they are still
considered beyond the pale in India. This concept means to
live together before marriage. Either of the partners can
walk out of the relationship as and when they feel like.
Now, the society has moved from a male-dominated society to a more
egalitarian society between men and women. It also changed from marrying
to have children to marry and not to reproduce.

 
Legal Perspective
The right to marry is available to all the Indians. In Lata Singh v. State of
Uttar Pradesh[1], it is provided under Article 21 of Right to Life that reads as,
“No person shall be deprived of his or her life or personal liberty except
according to the procedure established by law.” This right was also
recognised under the Universal Declaration of Human Rights 1948.

Recent case in India was the Hadiya Case, which stirred the topic of the right
to marry in India.

 Kerala has the highest literacy rate in India, yet when a girl thought
of changing her religion and marrying the person of her choice, it
became a matter of debates.
 A three-judge bench decided in the favour of Hadiya and ruled that
as she is a major she is free to decide the religion she wants to
follow and the person she wants to marry. J. Dipak Misra stated,
“Nobody has the right to interfere if two adults want to marry.”
 So, the marriage from parent’s will turned to the couple’s will and
the laws sanctions it to be valid.
There are laws for every religion’s person to marry and lead a peaceful life.
There are laws which prohibit marriage between certain types of people like
between close relatives etc.  Right to marry is a right but not a fundamental
right. It is also considered to be a contract in some religion.

What can one do if his/her right to marry is denied in India

In a country like India, it is quite common that parents are advising their
children to marry or not to marry a person. Parents do deny the children’s
right to marry a particular person if they don’t like him. Parents also
forcefully marry their daughter or son to a person whom they feel is suitable.
There are remedies provided by the Indian law if you feel your right to marry
is infringed. The various remedies provided are as follows –

 File a complaint with the Women Cell – Every locality has a police
station. One can file a complaint in the women cell of that Local
Police Station where she/he resides. A complaint letter needs to be
submitted which includes the names of people who are forcing her
to marry and other relevant details along with date and place.
 File a complaint with the Domestic Violence Act – One can file a case
under the Protection of Women from Domestic Violence Act, 2005
against the person who is forcing you to get married. It can be your
parents or your relatives. A restraining order will be issued to
prevent your family from forcing you to marry the person.
  Approach the National Commission for Women – You can also
contact the National Commission for Women. Also, writing a
complaint letter or an email may prove helpful to the victim. Apart,
from all this hiring a lawyer can help the best. The right to marry
cannot be infringed on any grounds.

Ideology of marriage under different religion

Marriage is defined under personal laws differently. It is the most sacred of
all family institutions.

 Marriage according to Hindu law, is a body to perform a religious

duty. It is deemed as a holy union under the Hindu law. It is a
religious sacrament and unlike Muslim Law, it is not a civil contract.
 While in Muslim Law, Quran states, “every person must marry”. It
mentions that marriage is the only way to satisfy one’s desire. Nikah
(marriage) is a contract which is the legal contract for the
procreation of children. It is equivalent to a contract, the proposal
by the groom and acceptance by a bride completes it to be a
contract.
 According to Christian Law, a marriage is neither a civil contract nor
a religious contract. It is is a sacrament. The marriages are
governed by the Indian Christian Marriage Act of 1872.
 According to Parsis, it is a spiritual disciple and not merely a civil
contract. For the union to be declared legal, the marriage between
the two people must be solemnised by the priest in an “Ashirvaad”
ceremony.
 Marriage under Sikhs, there is a special marriage act called the
Anand Marriage Act which governs marriage of Sikhs. The marriage
is called Anand Karaj and describes marriage as a peaceful union.
People marrying outside their caste is considered outrageous in India. That is
the reason there is a humongous increase in honour killings recently.
According to National Crime Record Bureau Statistics, honour killing has
received a spike of 796% in a year. Though every religion defines marriage
differently, as the time changed the meaning of marriage changed. There are
no personal laws for live-in relationships or people who wish to marry the
person of the same gender.

Same-Sex Marriage
Ever imagined of a time when the country like India which still looks down
upon inter-caste marriage will be making laws for homosexuality? Recently,
in a historic judgement, the Supreme Court of India decriminalised
homosexuality.

 The next step by LGBTQ community is to get marriage rights and

parenting rights though the Indian government opposes on giving
any such rights.  
 The Supreme Court legalised the consensual sex between
homosexuals mentioning, “ I am what I am, so take me as I am.”

Live-in Relationships
India has seen a drastic change in the way relationships are perceived.
Couples nowadays prefer live-in relationships. The Supreme Court of India
defined live-in relationships in Indra Sharma v. V.K.V. Sharma[3] in different
ways. It is a relationship between an adult unmarried male and an adult
unmarried female.

In western countries, there is a broader understanding of the idea of couples

in a relationship as compared to India. Also, there is no law binding on the
couples, so either of them can move out of the relationship when one wants.

One should know that –

 The child born out of live-in relationships are to be maintained by
both the parents and claim their share in the inherited property.
 Domestic Violence Act applies to live-in relationship.
 The courts presume that the couple living for a long time in live-in
relationships are more or less like a married couple and the
maintenance laws apply to them.
 The live-in couple may face a problem if they have joint accounts or
claiming insurance or visas. Similar thing happened with Anuradha
Beniwal, when her partner decided to get a job but due to improper
documents, they had to hurriedly get married.
 Section 125 of Criminal Procedure Code mentions providing
maintenance to women in or out of marriage.
Though the society considered it to be immoral, the law does not define it as
illegal. It is a right to life and cannot be denied. The court is also trying to
improve the conditions of children born out of live-in relationships.
Conclusion
 Marriage is an institution in India which is witnessing a change over
the years. Every person and every religion has its own interpretation
for marriage. Also, various types of marriages are followed in our
country.
 Every person marries according to his/her own needs. The marriage
has also seen various changes.
 Marriage is a sacred institution. Nowadays people also to save a
large amount of money prefer going for court marriage.
 The future may also see new forms of marriage being added and
certain legislation being added.