Marriage
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This article is written by Anuradha Panda.

Introduction

In the 1950s, after India’s independence, the Indian National Congress Government which was by Prime Minister Jawaharlal Nehru completed the codification of the Hindu Code Bills. A process started by the British Raj was successfully completed by passing four Hindu Code Bills in 1955-56: the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act. The Hindu Marriage Act, 1955 was enacted by the Parliament of India to amend and codify the law relating to marriage. 

Relationship between husband and wife: Pivot of the marriage

The connection between the married couple plays a major role in laying down the foundation of their marriage. This connection is built with feelings of mutual respect, trust, love and common progress. Marriage is an institution made up of bricks constituting of mutual care, mutual trust, mutual respect and love. Marriage can never exist unilaterally. An essential component in a marriage is the “sustenance” and “maintenance” of the relationship shared between the man and his wife. The subsistence of their relationship further strengthens the marital bond which satisfies both of them in terms of physical, psychological, social and economic requirements. Hindu marriage is a pure relationship between a man and his wife; tied in a sacred knot which is unbreakable, so that they can pursue dharma, and karma and attain paramount nirvana. 

Impact of Socio-legal changes on marriages

First and foremost, let us understand what social change actually means. Social change insinuates a needful shift from the traditional, conservative, religion oriented, autocratic and stratified society to an egalitarian, liberal, unorthodox and secular society. A social change is driven by open-mindedness, sense of equality before law and an accepting mindset of the society as a whole. 

It is true that one must never forget its roots, however, it is also relevant to say that with changing times, our values, beliefs and the governing rules must also evolve. Changes in the society, as a result of various political, social, economic and psychological factors is very important in the sense that they help the Nation to develop. 

Industrialization, urbanisation, education, progression and legislation have broadened the scope of necessary commutations that have to be made in order to ensure smooth functioning of the society. 

Sacramental Nature of marriage under the Hindu Marriage Act, 1955: Ancient Beliefs 

As per the Hindu law, marriage eventuates between two souls tied in a sacred knot which extends beyond one lifetime and continues to grow for at least seven lifetimes. Hindu marriage reflects a permanence characteristic which in-essence proves its sacramental nature. This gives us an idea that Hindu marriages are not developed only on the basis of a contract but by way of a gift. Here, the “gift” is referred to the bride (daughter). On the occasion of the solemnization of marriage, the father of the bride performs Kanyadanam. Kanyadanam is a Sanskrit term which means “giving away the bride” in the form of a gift to the bridegroom. It is a compulsory marriage ritual for the Bride’s parents and the wedding couple. The “gift’ is considered to be holy and this ritual is followed by Saptapadi. In the religious ceremony of Saptapadi, the bride and the groom hold hands and take seven steps together as husband and wife as they walk around Agni, the God of Fire. Before the Agni, the couple promises to safeguard and maintain their eternal friendship. 

Marital bonds are considered to be one of the aged practices amongst Hindus. Marriage, in the Hindu society, holds a valuable place. By virtue of the Hindu customary law, marriage is one amongst the ten sanskaras (sacraments). Marriage has been practiced as a religious mandate in order to perform religious responsibilities. Religious and pious duties, such as, Dharma, Artha, Kama and Moksha are meant to be performed by every Hindu individual to lead a wealthy life. 

The concept of marriage is deeply rooted to the Manava Dharma Shastra. The ancient civilization recognized marriage to be the cardinal requisite for a human being, considering the need for “companionship” through the journey of life. Marriage is based on the sentiments of trust, understanding and partnership between man and wife. Detailed rules were established solely on the basis of religious beliefs, culture and customs which ensured to maintain a delicate balance so that the family enjoys the fullness of life within the framework of what they called Dharma, the Hindu code of right conduct. 

Sacramental nature of Hindu marriage highlighted in the following points: 

  • Divinity Nature: A Hindu marriage is considered to be a sacred union rather than a contractual relationship. In ancient times, the Hindu lawmakers were of the opinion that Hindu marriage is a permanent union of two souls that lasts for seven lifetimes. It is, as if a Hindu man is marrying to his divine counterpart. Thus, they believed that marital relationship does not necessarily has to begin only when they have taken birth as human beings. The Puranas authenticate that two souls can come together as counterparts even when they have not taken birth in the form of a human being. The sole reason behind this is the belief that Marriage takes place between two souls. According to the principles of Hinduism, Hindu marriage is a consecrated foundation concocted by the Supreme Being (God) for two vital purposes
    • Procreation: The primary purpose of Hindu marriage is to keep the wheel of life moving forward, to ensure continuation of life on earth. Basically, the motive is to pursue the cycle of life. Nevertheless, such conjugation was conceived solely for this purpose and it was expected that sexual union should be used for the same. 
    • Spirituality within oneself: The secondary purpose of Hindu marriage is to sustain social order and stand by Hinduism by establishing a spiritual connection with oneself. Ultimate spirituality is attainable only when the Hindu married couple performs its religious fidelity and receive the almighty’s blessings. 
  • Permanency: Hindu marriage, being a sacramental union infers that it is a everlasting bond which does not culminate in this world or after the death of either partner. 

Instead, this marital bond continues to exist even after death, in the succeeding lives. 

  • Indissolubility: Indissolubility of Hindu Marriage signifies a pre-eminent corollary of its sacramental nature. In practice, on the successful completion of Hindu marriage, the man and the wife cannot be separated. The marital bond is indissoluble irrespective of it being an external factor or an internal complication. The infrangible characteristic of Hindu marriage originates from the spiritual paradigm of marital union. Once, the couple is tied in the sacred knot, they are expected to discharge their traditional and religious duties. The married couple is also expected to preserve the prestige of the family in the society and to act in a way that brings material and spiritual satisfaction to the family. 

The Apastama Dharma Sutra and Manu Dharma Sutra have emphasized the permanent character and indissolubility of the Hindu marriage. Furthermore, the Apastama Dharma Sutra enunciates that there is no scope for separation between the man and wife after marriage. They have to perform various religious and traditional activities together. 

The training through the responsibilities carried out by a married Hindu man is the highest Dharma ratified by the Shastras. On successful marriage, the man and wife enter the Grihasthashrama stage of life which requires the fulfilment of Panchamahajajnas’. Panchamahajajnas is a practice of making five sacrifices- recital of Vedas at home, oblation for the almighty, offering Shraddha Tarpana, inviting and serving guests wholeheartedly, and giving food to the Bhutas (spirits). 

Grihasthashrama is given high priority and is observed as an auspicious stage of life. Living the life of a householder is considered to be extremely superior which paves the way to fulfilment of life’s vital purposes. 

Hindu marriage lies in the belief that a Hindu is born on this earth with especial purposes that are to be accomplished in life. The purpose is to perform religious duties known as Purusarthas which comprises of Dharma, Artha, Kama and Moksha. For the sake of executing these religious missions during the lifetime, every Hindu has to live through different stages of life, well known as Ashramas. There are four stages in a Hindu’s life- Brahmacharyashrama, Grihasthasharama, Vanaprasthashrama, and Sanyasashrama. This Ashrama methodology is an integral of ethical theories in Indian Philosophy as well. It is believed the Ashrama system is associated with four conventional goals of human life: Life, Fulfilment, Happiness and Spiritual Liberation or Moksha. 

From the Sociology point of view, a marital bond is a legally recognized social contract between two people, traditionally founded on a sexual relationship and implying a permanence of the union. As per the legal point of view, a Hindu marriage is not just a contract between two people mutually consenting but a social contract and a moral practicality. 

Valid Hindu Marriage

Hindu marriages are to be solemnized according to the Shastric or customary rites. The Hindu Marriage Act, when enacted, had prescribed no minimum age for marriage. Inter-caste and inter-religious marriages were prohibited by the Hindu Marriage Act, 1955. However, inter-caste marriages could be performed only if it has been pre-sanctioned by the customary laws and practices prevailing in that locality. After the solemnization of marriage, the man and wife are supposed to live together in the house of the male. It was expected from the wife to fulfil all the demands and wishes of the husband. Wives were suppressed by the in-laws after marriage by imposing various restrictions and burdening them with orthodox expectations. 

Evolution of Hindu Marriage due to socio-legal changes

Hindu marriage has evolved from solely originating form Sastrik Law to the enactment of the Hindu Marriage Act, 1955. The Hindu Marriage Act is a combination of ancient Sastrik Law as well as has various amendments made in order to comply with the needs of the modern society. The Hindu marriage Act, 1955 introduced the concept of separation and divorce for the first time in to the realm of Hindu marriage. 

Let us contrast the ancient aims of marriage to the modern day aims of marriage. 

  1. Aim of Marriage: 

From the lawmakers’ point of view, the main aim of marriage was to keep the cycle of life on earth in motion. Sexual union of procreation is what makes continuation of life on earth possible. The Shastras clearly mention that the primary purpose of marriage is to ensure smooth functioning of the biorhythm. However, sexual union must be a methodology to achieve the sustenance of life process only. 

Although Kama is counted as an aim of the Hindu marriage but it does not articulate that sexual union shall become the sole desirable aim in a marital bond. 

Amidst speedy urbanization, people of the country have adopted various norms of the western world. This has not only affected marriage but has vigorously afflicted the rich Indian culture and values. Although a few positive changes have transformed the Hindu matrimonial laws and customs in a constructive manner. With changing times, people have placed much more importance in physical satisfaction than to spiritual connection. 

Earlier, there were five basic aims of marriage, them being, Dharma, Praja, Kama, Rina and Socio-cultural community. 

  • Dharma: The highest aim of Hindu marriage was to positively perform religious and traditional duties. A wife is supposed to be a religious necessity for a Hindu man in order to accomplish his Dharma. Without a wife, a Hindu man can in no way perform Panchamahajajnas. Basically, a Hindu man without tying a marital knot with a woman cannot perform his Dharma. 

Nevertheless, the present scenario of Hindu marriages tell us a different story. The need for temporary desires has replaced rich values and spiritual practices. In the modern daylight, sexual pleasures are given the utmost importance in a marriage. Feelings of lust have demolished the basic structure of a strong marital bond. Instead of treating marriage as a holistic institution, a large part of the society has made Kama (Sex) the topmost aim of the marriage. 

  • Praja or Progeny: Progeny refers to procreation of offsprings. But, in context of ancient times, it meant giving birth to a male child. A male child was preferred in Hinduism because it is believed that a father attains salvation only if his son perfroms his last rites and rituals. 

The patriarchal Hindu societies used to put immense pressure on women to give birth to a male offspring although it was a matter of biological chance. A male was considered to be an asset to the family because it was believed that the son would be the future breadwinner and caretaker of his parents. On the contrary, a female child were regarded as a liability. This is because of the fact that on attaining the minimum age of marriage, the daughter will leave her home to reside with her husband. Also, in that archaic era, parents of the daughter were pressurized to pay dowry at the time of marriage. 

There were instances where if the first wife was unable to borne a male child, the husband used to marry another woman, making her his second wife. Since, polygamy was not prohibited in ancient times, it was most commonly seen among aristocrats and rulers of the kingdom. 

However, the Hindu Marriage Act, 1955 prohibited marriage of a Hindu whose spouse was still alive. Thus, polygamy became illegal in India in 1956. Henceforth, the practice of polygamy in Hindu marriage is considered to be null and void.

Kama or Sex Fulfilment: Although sexual union or Kama is considered as one of the aims of marriage, it is scrutinized to be the least important aim of marriage. A Hindu marriage is not supposed to be solely established for the motive of satisfying sexual desires. 

Debts of Rina: According to the Hindu Dharma, it is believed that every Hindu is born with certain distinctive debts towards the society. These debt or Rina must be repaid to the society during one’s lifetime and customarily during the Grihasthashrama. Rinas must be fulfilled with an unselfish approach in order to express one’s responsibility to the society. As per the Shatpath Brahmana, there are four types of Rinas, namely, to Gods, to Seers, to companions and to the ancestors. Nonetheless, the three broadly classified categories of Rinas by the Indian philosophers are: Deva Rina, Rishi Rina and Pitra Rina. Deva Rina is the debt to be payed to the almighty, who is the creator of earth and the creator of one’s life. Rishi Rina is the debt to be paid to the prophets or the teachers who have imparted knowledge and values into a person. 

Anthropological Continuity: Hindu marriages have a two-fold objective which basically focuses on continuity of socio-cultural norms from one generation to the next. In ancient time, personal interest were not valued as they are being acknowledged in the present day. Marriage was considered only as a duty in order to perform sacred rites and rituals (with the wife) and for the aim to procreate. A man was considered to be half a person if he did not get married or experienced the life of a householder. Hinduism imposes an obligation on the Hindus to establish a family to ensure social continuity. Secondly, it imposes an obligation to pass on the culture or Kula to the next generations.

  1. Mate selection system: 

In India, a major fraction of the female population are either not educated or are not financially independent. This is a significant factor because of which marriage is the only resort to secure the economic future of the ‘damsel’. Marriage to a wellestablished man is an antecedent of not being self-sufficient or self-supporting in terms of their financial needs. Status like aspects such as caste, gotra, reputation of the family play an important role in deciding whether or not the marriage is satisfactory. 

The term ‘caste’ in India refers to Jati or community as opposed to Varna. Varna implies an extensive conceptual system which classifies on the parameter of occupation. Different Varnas as per Indian Philosophy are Priests, Nobility, Merchants and Workers. The practice of getting married into a family belonging to the same community (Caste) was pervasive. It was endemic in a sense that marital advertisements in Indian newspapers are classified on the basis of caste. 

Under Section IV of the Manu Smriti, there are eight forms of Hindu marriage. In the case of Kopisetti Subbharao V. The State of Andhra Pradesh, it was held that there are eight traditional forms of marriage in India. These eight forms of marriage are further divided as approved and unapproved forms of marriage. 

  1. Approved Forms of marriage: These forms of marriage are approved by the society, as a whole. These forms of marriage are rendered to be suitable as well as lawful for the Brahmins to follow. Approved forms of marriage consist of- Brahma, Daiva, Ashwa and Prajapatya forms of marriage. 
  2. Daiva form of marriage: Daughter’s parents start looking for a perfect match for their daughter as soon as she attains the age of puberty. Finding a suitable match and getting their daughter married within a reasonable time period is a matter of utmost priority. However, the daiva form of marriage usually takes place when the parents fail to do so. Henceforth, they offer their daughter as Dakshina to a priest which is called Daiva marriage. Predominantly, daiva marriage amounts to giving away their daughter to the priest, at times of inability to organize her due to weak financial status. 

Hindu marriages shall continue to exhibit its sacramental nature only if there is an ethical and spiritual aspect attached to it. A marriage under Hindu Dharma, is the spiritual union of a man and a woman to share their responsibilities towards the society. Basically, forms of marriages were divided as Dharmik and Adharmik Marriages. The Manu Smriti lists three essentials to constitute a marriage: 

  • Dharma or fulfillment of religious and traditional duties. 
  • Rati or sexual gratification. 
  • Praja or procreation for socio—cultural continuity. 

Dharmik marriages were marriages that are performed pertaining to the principles of Hindu Dharma. Whereas, Adarmik marriages were those that were solely performed to satisfy sexual needs or lust. 

Dharmik marriages, also known as Approved forms of Hindu Marriages are accepted by the Indian society. There are four forms of Hindu marriage under the heading Dharmik Marriages: 

  • Brahma form of marriage: Brahma form of marriage is a form of marriage where a Hindu Brahmin male of good conduct gets married to a woman after completing his Brahmacharya phase. Brahma form of marriage is the highest ranking among the other forms of marriage. The Brahmin male is expected to be well grasped to the Vedas and has keen interest in Hindu religious rites and rituals. These factors are considered by the bride’s father while fixing the marriage. Dowry is not given importance in this form of marriage and is viewed as a sinful act. 

Brahma marriage as per Hindu Dharma is a gift of the daughter who has been decked with jewels and ornaments, to a Brahmin male who is accustomed to Hindu Dharma and its philosophies. The daughter supposedly has to marry the Brahmin male selected by her father. It is the duty of the Brahmin man to receive the gift – Kanyadanam. Although, the Brahma form of marriage does not include the concept of bribery, there is no clear conclusion to it. In the case of Reema Aggarwal v. Anupam and Ors., the possibility of Brahma marriage giving rise to the concept of bribery was in question. It was held that dowry as an exchange for marriage is illegal and not the practice of voluntary gifting gifts to the bridegroom. Thus, gifts (money, property or valuable security) given by the family members to the bridegroom shall not amount to dowry. Voluntary gifts given either to the bride or bridegroom, before or after marriage as a tradition, which does not serve the same purpose as a consideration for marriage is not considered as dowry. 

  • Daiva form of marriage: Daughter’s parents start looking for a perfect match for their daughter as soon as she attains the age of puberty. Finding a suitable match and getting their daughter married within a reasonable time period is a matter of utmost priority. However, the daiva form of marriage usually takes place when the parents fail to do so. Henceforth, they offer their daughter as Dakshina to a priest which is called Daiva marriage. Predominantly, daiva marriage amounts to giving away their daughter to the priest, at times of inability to organize her due to weak financial status. 
  • Arsha form of marriage is the wedding of a woman to a sage. The father of the bride does not have to pay anything to the bridegroom neither as a voluntary gift nor as a demand. In this form of marriage, the groom gifts the father of the bride a cow and a bull as an exchange for the bride. The bride takes the vow to protect and take care of his wife and fulfil his responsibilities as a householder. The girl marries an intellectual man with a good character who is comparatively older in age. The motive behind Arsha marriage is securing a brilliant progeny and a good homely environment. Arsha form of marriage stipulates the pastoral nature of Hindu society because exchange of cattle for the bride, was considered to be the consideration. 
  • Prajapatya form of marriage is different from the Brahma form of marriage in the sense that there is no ritual of Kanyadanam. Hence, it is considered to be menial as compared to Brahma form of marriage. 

The father of the bride inflicts a condition on the couple that they must perform the Hindu rituals and religious rites together. The basic requirement for Prajapatya form of marriage is that the bride must be given the position of an equal partner. 

  • Unapproved forms of marriage included four types of marriages- Asura, Gandharva, Rakshasa and Paisacha. 

In modern India, Brahma and Asura are the two forms of marriage widely practiced as held in the case of A.L.V.R.S.T. Veerappa Chettiar v. S Michael. 

As observed, all four forms of Dharmik marriage has an encompassing factor: “arranged marriage”. Arranged marriages, undoubtedly, were a means to unite and sustain the prestige of the upper-caste families. However, in modern day, the concept of arranged marriages is fading. Both men and women are equally eligible and financially independent in the urban areas. Nevertheless, arranged marriages are prevalent even today in most of the rural areas. In India, Marriage is not only treated as a union between two individuals but an alliance between two families. Thus, the decision of alliance was mainly taken by the family heads of the bride and the bridegroom. 

In order to maintain the purity and sanctity of kinship lineage and to prevent any external influence of social customs, the practice of endogamy was common across India. Endogamy was also known as in-marriage. It was a custom prevalent in the Indian society to get married within one’s own gotra, pravara, village or pinda. In ancient India, a Brahmin man could only marry a Brahmin woman. Endogamy restricted marriage between a lower caste and a upper caste member. The Indian society religiously believed in caste traditions and customs. They were reluctant to allow a person from other caste to enter their home/caste. A person having a low status could not interact with the person belonging to an industrial background. However, major changes in terms of caste, class and race endogamy have been witnessed during the last few decades. Endogamy limits the choice of the people to choose their partner in terms of caste, class and sub-caste. In 1949, the Hindu Marriage Removal Act aims to remove all obstacles arising from belonging to different castes, religion, sub-castes and sects. During the British Rule, certain acts were passed to grant autonomy to the individual to choose their life partners. 

As per the Child Marriage Restraint Act, which was in force from 1929-1978 specified clearly that the minimum legal age to enter a wedlock was 18 years for a female, and 21 years for males. However, once the girl attained the age of puberty, a suitable match was found for her and marriage was arranged by her father. The only condition laid down was that consummation of marriage must not take place until the man and the wife have attained the minimum legal age, that is, 18 and 21 years of age, respectively. India plays an acutely important milieu for analyzing the trends of arranged marriages. In the north, the kinship system in the Hindu society has a deep link to arranged marriages, which helps in preserving the patrimonial and patrilocal family system and the caste system. Although it is not possible to vigorously examine the extent of the practice of arranged marriages across India, there is decline in the practice of arranged marriage.

Change in mate selection is the major reason. Customarily, factors such as social status, economic status, ethnicity, caste, religion, were considered by Indian parents in order to finalize an alliance. These factors have now changed to individual compatibility, love, understanding, compromising attitude, chemistry which are considered by the spouses themselves in order to decide on an alliance. Earlier, marriages took place even without any personal contact between the spouses. But, in the present scenario, it is completely opposite. Women are comparatively much involved in looking for a suitable match for themselves. They might take advice from their parents but the parents do not solely select the mate for their daughter or son, except in backward and rural areas. The trend of love marriage is witnessed in the the modern Hindu society wherein the men and women select their own life partner and then inform this to their parents. With the blessings of their parents, they then enter into the wedlock to lead a happy and prosperous life. 

Legalizing inter-caste and inter-faith marriages: 

The modern marriage laws, specifically the Special Marriage Act, 1954, enables intercaste marriages and inter-faith marriages. This Act was enacted in order to remove the religious and community obstacles in the process of mate selection. Mutual consent is an essential ingredient for a marriage to be registered under this Act. The basic requirements for marriage to be valid under this Act are identical to that of other personal laws. A time period of 30 days must be given for public scrutiny through a notice. The notice shall be displayed in a “conspicuous place” which commonly refers to the office of the marriage registrar. The Act caters no scope for intrusion by the society as well as family members when the adults have mutually consented.

In the case of Nandini Praveen V. Union of India, where a law student from Kerala filed a PIL in the Supreme Court challenging the constitutional validity of certain provisions of the Special Marriage Act, 1954 which required exhibition of details of the inter-caste or inter-faith marriage for public scrutiny. Inquiry by the Marriage Officer to the couple is not an issue and there is no infringement to right of privacy. But publishing of details in the public domain, surely amounts to privacy infringement. The Act also necessitates that anyone can object to the marriage during the period of public scrutiny and if this happens, there shall be proper investigation. 

Although modernization has persuaded the Indian society to adopt liberal values, a part of the society still remains in the conservative form of mind. Inter-caste and inter-faith marriages are still not approved by the society which is a threat to the couples who decide to marry under the special marriage laws. In various instances of inter-caste and inter-faith marriages, the couples are harassed to an extent where it also leads to brutal murder. The reaction of the Indian society to inter-caste and inter-faith marriages often cause mental, emotional and physical hurt to the couple. Inter-caste and inter-faith marriages result in honour killings and hate murder. 

In the case of Shakti Vahini V. Union of India, the Supreme Court was of the opinion that couples who enter inter-caste or inter-faith marriages must be provided protection in the society. Two adults getting into a marriage is their manifestation of choice and it shall be respected at all costs. The interests of the couple is protected under Articles 19 and 21 of the Constitution. In order to prevent practices like honour killings must be abolished from the roots of the society. 

Legalization of same-sex marriages: 

In the ancient era, same sex marriage was unapproved as it was considered to be against the rules of nature. The society firmly believed that a man can only marry a woman. The conservative and orthodox society caused various homosexual persons to draw out from the society. Looking at our ancient Hindu texts, one can find relevancy to the present state of homosexuality. As per the Rig Veda, one of the apostolic religious texts states the phrase, Vikriti Evam Prakriti, which means what seems unnatural is also natural. Few of the philosophers while studying the evolution of homosexuality in India, pointed this out. They are of the belief that here “unnatural” referred to homosexual relations. If so, the Vedas itself states that homosexual relations or marriages might seem unnatural but they must be treated as natural. 

However, there is no conclusive proof to this assumption. 

The Arthashastra imposed certain punishments and fine for homosexual intercourse as well as heterogenous intercourse. Such relations were neither sanctioned by the Government nor the society. In the medieval age, homosexualism and queerness were not accepted in the Hindu society. 

During the British rule, activities against the order of nature, specifically, homosexual activities were criminalized under Section 377 of the Indian Penal Code, 1860. 

Homosexual sexual connections were associated to be illegal even after India’s independence. Nevertheless, in 2009, the judgment in the case of Naz Foundation V. Government of NCT of Delhi decriminalized homosexual conduct for the first time in Indian Legal history. Delhi High Court was of the view that such a prohibition was against the fundamental rights enshrined in the Constitution. In 2013, homosexual relations were criminalized again by declaring that such acts were immoral and against social order. 

 Recently in 2018, in the case of Navtej Singh Johar & Ors. V. Union of India & Ors., the Supreme Court while declaring same-sex marriages to be legal added that an individual has the right to choose a life partner of his or her choice and such right falls under the purview of Article 21 of the Indian Constitution. Right to choose your life partner and get married is a fundamental right enshrined as under the Right to Life and personal liberty. The Supreme Court also highlighted that keeping in mind the autonomy principle, every person has sovereign power over his own body. Every person has the liberty to willfully relinquish his autonomy to any person of his/her choice. Matters of intimacy in such cases shall be treated as matter of privacy. The Court held that “privacy” extends to all the parameters that affect human existence such as procreation, contraception and marriage. Criminalization of consensual activities between two individuals in order to exercise their constitutional right to sexual preference is an unlawful prohibition by the State. The State shall not interfere one’s right to intimacy. Each and every person is free to decide whom to choose as their partner and what relationship they want to be in. 

Decriminalization of Adultery: 

Adultery was not an offence under the first draft of the IPC released by the Law Commission of India in 1837. According to Lord Macaulay, marital infidelity was a private wrong between the man and the wife, thus, it must not be contemplated as criminal offence. 

Adultery was considered to be an offence that harms marital relations built on trust and love. Adultery not only affects the spouse and the children, but also has a negative impact on the society. The landmark judgment in Joseph Shine V. Union of India, proved the unconstitutionality of section 497 of the Indian Penal Code which renders adultery to be an offence. The offence of adultery was solely based on the notion of patriarchy and male racism. Section 497 of the IPC prima facie violates Article 14, 15 and 21 of the Constitution. When sexual intercourse takes place with mutual consent of both the parties, excluding one from infliction of liability cannot be reasonable.

If consent of the husband of the woman involved has been taken prior to sexual intercourse, it does not attract section 497. Therefore, this provision also discriminates on the basis of gender by projecting women as a property of the husband. This provision enunciates that the consent of the woman involved has no weightage. Adultery holds a man criminally liable for keeping sexual relation with a married woman. However, if the husband consents to such an activity, it does not amount to adultery. There is no such remedy for the woman whose husband has committed adultery. Women were portrayed as an ‘object’ or the ‘property’ of her husband. Furthermore, they were victimized of being seduced by a man (who is not her husband). This provision was patriarchic in nature and violated the rights of the women granted under Article 14, 15 and 21 of the Constitution, that is, Right to equality before law, right to non-discrimination and right to life and personal liberty, respectively. 

This judgment depended on the following reasons: 

  1. Classification involved in the offence was capricious: Firstly, section 497 gives a legal remedy only to the husband of the wife involved in adultery to proceed to the Court for such offence. It provides no scope for the wife of the husband (who has committed adultery) to sue him in the Court. This provisions considers only the husband of the woman involved in adultery to be the aggrieved person. Adultery depicts the woman as a property of the husband and adultery refers to the theft of his property, which gives him the power to proceed legally to the Court. 

In present date, where women are expanding their career and economic status and fighting for their equality, this provision is absolutely discriminatory. The women of the country must be empowered rather than being treated as objects belonging to somebody else. 

2. Gender discrimination: Violation of Article 15: As stated earlier, rights provided to a married man and rights provided to a married woman accentuates the issue of gender discrimination. Such provisions are founded on stereotypical beliefs that wife has to submit to the decisions made by the husband. As a consequence of his immoral conduct, the wife has to bear the ill treatment and disrespect. A woman’s sexuality has been controlled by men since ages but such a representation demeans the present status of the women in India. In the era of rising feminism, the progressive female population shall not be associated with qualities such as passiveness and indecisiveness pertaining to their sexual freedom or choice. It shall be noted that section 497 safeguards the women from being punished as an accomplice. Nonetheless, such a protection is not protective as it is gender-bias, although, Article 15(3) was inserted with the intention to protect women from patriarchal and suppression.

3. Dignity of a woman being hindered: Dignity of a certain individual and his sexual privacy has been granted protection under Article 21 of the Constitution. Women possess equal right to privacy as a male. The sexual autonomy of the woman has been denied under this provision enumerating that a woman in incapable of making vital decisions in her life. Section 497 permitting adultery on the husband’s connivance implicates that the wife is a “puppet” of her husband and he is the one who takes decisions about her sexual autonomy. 

However, decriminalization of adultery also had an unfavourable impact on marital relations. There was rise in extra-marital affairs which caused problems in the wedlock. These problems due to lack of mediation and compromise resulted into divorce legal proceedings. Even in this stage, the ego driven spouses either refused to reconcile or decided to separate. This affected the mental health of the children. 

Conclusion 

Modernization, Urbanization and Industrialization have immensely contributed in the sociocultural norms pertaining to Hindu marriages. Modernization and liberal ideas have both brought pros and cons into the scenario. Certain laws are in line with today’s social beliefs and practicalities. However, some laws have affected the purity of a Hindu marriage in a way that they have completely altered the main substance of a Hindu marriage. For instance, some philosophers are of the belief that section 497 could be held unconstitutional only to the extent of it infringement. But the provision should have been in force. They are of the opinion that striking down Adultery as an offence was detrimental to the inherent Indian ethics and values that upheld the foundation and sanctity of marriage. 


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