Nirati Gupta, Asst. Prof., Law Centre – I, Faculty of Law, University of Delhi
Marriage has been defined as a formal union of a man and a woman as husband and wife ((Black’s Law Dictionary 986 (7th ed., 1999).)). It is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is considered a holy union by most religions, as well as the primary social institution. Some also consider it a civil contract. State exercises minimal control and regulation over freedom to marry. The reason for limiting its approach is the truly personal nature of the rights and obligations created as a consequence of marriage. Nonetheless, state considers it a subject fit for regulation. It is so because such rights and obligations need to be essentially legitimized and legalized. There are not only social and religious consequences flowing from a marriage but also legal ones, for example, legitimacy of marriage, legitimacy of children from marriage, succession to property, maintenance of spouse and children etc., to name but a few.
Nature of Marriage
It is an ongoing debate amongst theologians, jurists and anthropologists- what is the true nature of marriage? A brief discussion is warranted here, taking into consideration the different views that have been expressed.
Hinduism: Marriage, amongst Hindus, is essentially a sacrament. Mesnki cites ((Werner F. Menski, Hindu Law: Beyond Tradition and Modernity 282 (Oxford University Press, New Delhi, 2003).))from A. Mahadeva Sastri’s work ((A. Mahadeva Sastri, The Vedic Law of Marriage or the Emancipation of Woman, (re), 176 (Asian Education Service, New Delhi, 1988).)), “[Hindus] view marriage as a sacrament, as a holy act whose real meaning and purpose are beyond the ken of material and moral science. They regard it as a subject of injunction, of spiritual law or Dharma strictly so called, which should be learnt from the Shastra, from the Veda itself which deals with super-physical and purely spiritual matters.” In the Vedic period, within the framework of the ashrama theory and its sequence of stages of life, marriage became a major expectation that everyone, male or female, should be married. It became one of the samskara for women. Then religious motives were equally operative in assigning such a great regard to marriage. Worship of ancestors and gods was dependant on progeny, which could be only obtained through marriage; pinda-dan, for instance, or offering of spiritual ministration to an ancestor can only be performed by descendants upto three generations. Under the tenets of Hinduism marriage is declared to be ‘divine’ in nature and not a mere human contractual union.
Islam: Under Islamic jurisprudence there are two divergent views regarding the nature of marriage expressed by the earlier jurists and those of the post-modern era. The latest view is that marriage is a civil contract and the rights flowing out of it are contractual in nature. However, there is another view in the Islamic jurisprudence which says Muslim marriage is not purely a contract but a religious sacrament too. This is considered to be an orthodox view but it still holds ground. Mohammad Ali says that the contract of marriage is sanctified by a sermon before the parties announce their acceptance. He says that the Khutbah or sermon at marriage helps the publicity of the marriage and serves the double purpose of sanctifying the marriage contract and informing the parties of their future responsibilities ((See Aqil Ahmad, Mohammedan Law, (re) 109 (Central Law Agency, Allahbad, 2000).)). Jurists have heavily criticized the practice of comparing dower in a Muslim marriage to consideration under the Indian Contract Act, 1872. (reference required)
Christianity: The early Christian church viewed marriage as “subject to the law of nature, communicated in reason and conscience, and often confirmed in the Bible ((John Witte, Jr., “From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition” (1997), as cited in Vivian Hamilton,” Principles of U.S. Family Law”, 75 Fordham Law Review 31, (October) 2006)).” Christianity emphasizes on the enduring nature of the marital commitment with the words, “What God has joined together, no man must separate ((Matthew 19:6-9)).”
Quoting Karl Llewellyn, Carl Schneider named thirteen purposes of marriage ((Carl E. Schneider, “The Channeling Function in Family Law”, 20 Hofstra Law Review 495 (1992).)). Most pertinent to the present discussion are “the regulation of sexual behaviour, the reduction of sexual conflict, and the orderly perpetuation of the species,” along with the “development of individual personality ((Quoting Karl Llewellyn, “Behind the Law of Divorce”, 32 Columbia Law Review 1281, 1288-95 (1932).)).” Limiting “man’s aggressive instincts” by restricting sexual life, Freud thought, was a prerequisite to civilization, as observed by Schneider.
Marriage as a Social Institution: As a virtually universal human idea, marriage is about regulating the reproduction of children, families, and society. While marriage systems differ (and not every person or class within a society marries), marriage across societies is a publicly acknowledged and supported sexual union which creates kinship obligations and sharing of resources between men, women, and the children that their sexual union may produce. The family is vested with four important functions, i.e., reproduction, maintenance, placement and socialization of the young. But there are a number of secondary activities which have economic, political and religious implications ((T.K. Oommen, C.N. Venugopal, Sociology for Law Students, (re) Eastern Book Company, Delhi, 2001)).
Whether religion gave birth to marriage or it only controls the form of marriage, its true character being social? One argument in favour of anthropology is that society, or human beings comprising the society, crave marital union more than religion does. Taking marriage out of society would be depriving it of its primary institution that gives birth to several others like family, progeny etc.
Stake of the State
Marriage has been made a subject of state regulation. State regulates personal laws relating to marriage through various legislations. We are presented with the question- what is the stake of the state in codifying personal law? Simply put, the main objectives can be identified as- (i) Uniformity of law, (ii) Separating secular activities, such as, inheritance, covered by personal laws, from religion, and (iii) Discouraging Legislature from forcibly amending any personal law in future if people are opposed to it.
Besides these, there are a number of state interests served by the marriage law including support of procreation, child welfare and social stability which are “based on innate, complementary, procreative roles, a function of biology, not mere legal rights.” The law assumes that a marriage will produce children and affords benefits based on that assumption. It sets up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital childbearing to sustain the population and society; the entire society, even those who do not marry, depend on a healthy marriage culture for this latter critical, but presently undervalued, benefit ((William C. Duncan, “Constitution and Marriages”, 6 Whittier Journal of Child and Family Advocacy 331, 2007)).
Schneider emphasizes two tasks that the state performs ((Supra n. 7)): (1) to “create, or more often, to recruit, social institutions and to mold and sustain them” and (2) “to channel people into institutions.” To perform these tasks, family law recognizes and endorses institutions, “giving them some aura of legitimacy and permanence.” Family law has set a framework of rules to support or sustain these institutions in various ways. For example, the state recognizes the social institution of marriage by regulating entrance into and exit out of marriage and by defining certain terms of marriage. Another channelling technique is to “reward participation in an institution”: an example is the status of marriage as a trigger for favorable tax treatment and for various public, employment, and property advantages. The law channels by “disfavoring competing institutions”: criminal law has played a role in supporting marriage and parenting, channelling sexual expression and parenthood into marriage by punishing fornication, sodomy, cohabitation, adultery, bigamy, and contraception. The law can channel simply by disadvantaging competing institutions: for example, “the rule making contracts for meretricious consideration unenforceable traditionally denied unmarried couples the law’s help in resolving some disputes.”
Freedom to Marry – Whether a Fundamental Right?
Before moving any further it first needs to be understood whether freedom to marry can be included within the ambit of a ‘right’. ‘Right’, in stricto senso, is understood as a claim, a claim against the state and against other individuals. At the same time, ‘liberty’, ‘power’ and ‘immunity,’ also included within the meaning of ‘right’, form a part of ‘right’.
Traditional definition of liberty is understood as the absence of constraints placed by government upon what a man might do if he wants to. Liberty is what I may do without being prevented by the law. The concept of liberty is included within ‘right’ but strictly the two are distinct- right being what others ought to do, and liberty to what one may do for oneself ((Julius Stone, Province and Functions of Law, 118)).
Coming to marriage, it can be construed to mean the voluntary union of two persons as spouses, to the exclusion of all others ((Hyde v. Hyde, All ER 175)). This definition of marriage must essentially exclude state, as falling within the meaning of the phrase “all others”. So under which definition of right does marriage fall? Of the four, the right to marry must be included within the concept of right-liberty.
Right to marry, or to choose to marry, is at the core of individual privacy and autonomy. Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family are among the most basic of every individual’s liberty as secured by state constitutions.
The right to marry and form a family is, without doubt, a fundamental and basic right that vests in every individual. Right to life [and personal liberty] includes the right to carry on such functions and activities as constitute the bare minimum expression of the human self ((Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746.)). Decisions whether to marry or have children bear in shaping one’s identity.
In a case before the U.S. Supreme Court it was argued that, “[T]he deeply rooted traditions and practices that ‘constitute’ a nation or state are also part of its ‘constitution’ in an important sense. Sometimes those traditions are of such weight that they are deemed worthy of judicial protection. In a related sense, the institution of marriage also has a constitutional stature that entitles it to judicial respect ((William C. Duncan, ‘Constitution and Marriages’, Whittier Journal of Child and Family Advocacy, 2007, Fn.91[ Amici Curiae Br. of The Church of Jesus Christ of Latter-day Saints, et al. at 26, In re Marriage Cases, 143 Cal. App. 4th 873 (Cal. App. 1st Dist. 2006)].)).”
Reaching for the Indian perspective, the Apex Court addressed the same question in Mr. ‘X’ v. Hospital Z. It said (( 8 SCC 296));
““Right” is an interest recognized and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty… the elements of “legal right” are that the “right” is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right and has to act or forebear from acting in a manner so as to prevent the violation of the right…” (( 8 SCC 296, at 304.))It further said, “… a person may have a right to marry but this right is not without a duty. If that person is suffering from any communicable venereal disease or is impotent… that person is under a moral, as also a legal duty, to inform the woman with whom the marriage is proposed… In this case, the right to marry and the duty to inform about his ailment are vested in the same person. It is a right in respect of which a corresponding duty cannot be claimed as against some other person… [It] shall be treated to be a ‘suspended right (( 8 SCC 296, at 308)).”
As discussed earlier, it stands to reason that the right to marry is not a right in the sense of a right stricto senso, rather, it is a liberty which ought to be protected by the state, subject to appropriate government restrictions in the interests of public health, safety, and welfare. But the court has given it a restricted interpretation by implying it to be a mere legal right. The fundamental right to marry, the rational mind feels, is not a claim against any individual but a freedom claimed against the state.
But it would seem that state is reluctant to recognize right to marry as a fundamental right. This deduction finds support in various other decisions of the Hon’ble Supreme Court. In Sarla Mudgal and others v. Union of India (( 3 SCC 635))the Apex Court observed, “Article 33 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and the like, matters of a secular character, cannot be brought within the guarantee enshrined under Article 25, 26 and 27.
A very important judgment on this point is Ahmedabad Women Action Group v. Union of India (( 3 SCC 573)). Along with this two other petitions were heard, namely Sevak Sangh v. Union of India and Young Women Christian Association (YWCA) v. Union of India. The relief sought under these petitions was declaration of certain provisions of various personal law enactments as unconstitutional. The Hon’ble Supreme Court circumvented the question whether Part III of the Constitution had any application to personal laws or not by remarking that the court has never been presented with this question. After an examination of these cases the Court held that the matters presented in this petition do not deserve to be disposed on merits as they involve issues of State policy with which the court would ordinarily have no concern.
A reading of these cases shows that the Apex Court is maintaining a safe stand by not making any declaration about the status of marriage and other personal laws as a fundamental right. It seems till the time it is not specifically claimed before the court as such this ambiguity will persist.
Elasctic Definition of Marriage?
Question came before the Supreme Court in D.Velusamy v. D.Patchaiammal (( 10 SCC 469))- whether a woman in a live-in relationship with a man can claim maintenance from him? The Court was clear that neither the Hindu Marriage Act, 1955 nor The Criminal Procedure Code, 1974 contemplate a live-in partner as a “wife”. It was then argued that the Protection of Women from Domestic Violence Act, 2005, in Section 2(f), talks about (i) relationship created by marriage, i.e., spouses, and (ii) relationship in the nature of marriage ((S. 2 (f), Protection of Women from Domestic Violence Act, 2005 says: domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family)). Supreme Court decided to read live-in relationships within the meaning of this phrase, holding it to be akin to comon law marriage, or informal marriage, subject to some conditions ((Conditions laid down for award of maintenance to live-in partner under the Protection of Women from Domestic Violence Act, 2005 (1) The couple must hold themselves out to society as being akin to spouses (2) They must be of legal age to marry (3) They must be otherwise qualified to enter into a legal marriage including being unmarried (4) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.))and, consequently, awarded maintenance to the lady in question.
The winds of change have started blowing. Does the stance of the Apex Court indicate that soon we might see amendments on similar lines in the Hindu Marriage Act, 1955, as well? Hypothetically speaking, if such an amendment is brought about and a live-in partner is read within the definition of “wife” under the Hindu Marriage Act, it would amount to a dilution of the meaning of “marriage” itself. Neither sacramental, nor contarctual; neither religious nor a social institution. Would that amont to sabotaging the fundamental right to marry or raising it to newer heights?
The nature and definition of marriage differs within different societies, communities and religious convictions. Some consider it a sacrament, some a civil contract, yet all believe it has some religious backing to it. Marriage as a social institution occupies primary status. Marriage is required to govern sexual relations in a given society to give them proper form and legitimacy and earn respect in society. It is usually understood as the originator of civilization and an essential for its continuance.
What cannot be denied is that marriage is something more than just state recognition of a committed relationship between two adults. It has a vital role in propagating the species and in providing the ideal environment for raising children. At the same time marriage is a matter of personal choice. It is the premier choice that an individual makes in life.
It cannot be said that marriage is a creation of the state or society. Rather it is an inherent right of a person, to marry, to have a family, as is the right to pursue happiness in life. The right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare.
Recognition of marriage as a right is fairly recent, only couple of centuries old but it is taking deep roots in the society and the ever evolving minds of the youth. So far the court and legislature recognize marriage as a social institution, and also refer to the individual and societal purposes served by marriage. Yet there can be discerned a change in the attitude of state subjects who have started concentrating more on marriage as a personal freedom rather than an institution serving societal needs or a sacred ceremony.