Restitution of Conjugal Rights Meaning
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This article is written by Simran Sabharwal.

Introduction

Marriage as an institution has changed over the years. It has not been a drastic change but a slow change over the century. Our forefathers had a complete different definition of marriage. The current generation has their own interpretation of marriage. Changes to marriage that we now take for granted have been controversial at some point in time. Many years ago, nobody agreed to the concept of same-sex marriage to the times of today when the judiciary has declared it legal in almost all the countries. Also, every religion has their own laws for marriage. Today, the underlying meaning that marriage is a legal contract remains the same but due to the changes in society, the legal obligations are not the same.

Marriage in olden times

For good or bad the world has changed over the years. The economy, education, lifestyle has completely changed from the 18th century. In the same way, the interpretation of marriage changed for better or worse. Marriage is considered to be the most basic institution of basic human life. The concept of marriage varies from community to community and nation to nation. It was the time of loveless marriage, though it still exists today but the norms are different.

Many people believed that marriage is an evil act because it completely changed the lifestyle of a human being, particularly of a woman as she has to leave her home and surrender her own identity. However, the institution of marriage cannot be neglected as it evolved with the changing demands of society.

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
    • Marriage in olden days was based on strategic alliances of Kings. In the Anglo-Saxon society, marriage was about relationships. But not the relationship sense, which we interpret today – the modern sense. The Anglo-Saxon society saw the institution of marriage as a tool to establish strategic ties between two empires. In one of the books, Stephanie Coontz says, “You establish peaceful relationships, trading relationships, mutual obligations with others by marrying them.”
    • The situation in India was quite the same. 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
    • It 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
    • 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
    • Before 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
    • 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
    • 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.

Under the Universal Declaration of Human Rights, Article 16 states:

  1. Men and women of full age without any limitation due to race, nationality or religion, have the right to marry and found a family. They are entitled to equal rights as to marriage, during a marriage and 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.[2]

 

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.
  • Hadiya, a girl living in Kerala decided to convert to Islam and marry the man she loves. But her family didn’t like her decision and when she refused to comply by her parent’s wishes, her parents filed a case in High Court of Kerala.
  • The High Court of Kerala annulled the marriage of Hadiya and handled Hadiya’s custody to her parents though she being a major at that time. The absurd decision given by the court observed that “we aren’t satisfied that it is safe to let Akhila (Hadiya) free to decide what she wants in her life.”
  • At the age of 18, an Indian woman can vote, drive a car and take up a job. So, it should be up to her to decide what she wants to do. The matter was passed to the Supreme Court of India.
  • 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. The United States of America has declared it as a constitutional right.

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. Email id – [email protected]. Also, NRI complaints are handled through a different mail id i.e. [email protected] . Similarly, there is a different cell for North-East complaints [email protected] .

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.”
  • Same-sex marriage is legalized in the United States and the community have their separate laws which govern them.

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.

 

Endnotes –

  1. AIR 2006 SC 2522
  2. Kusum, Family Law Lectures Family Law I (2d. ed.),p.3
  3. 2014(1) RCR(Crl) 179(SC)

 

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