Open Access Research Article
Changing Legal Dynamics Of Marriage In India- A Forward Move
Published Paper
Article Details
CHANGING
LEGAL DYNAMICS OF MARRIAGE IN INDIA- A FORWARD MOVE
AUTHORED BY
- DR. SONALI ROY
CHOUDHURY
Life is full of questions, doubts,
insecurities, conflicts, joys, sorrows, ups and downs so ancestors believed
that man needs a companionship into these journeys of life, hence marriage as
an institution was thought to be an apt answer to meet out this need. Marriage
has recognized and acknowledged the basic instinct of human behavior that he
can’t live in isolation. Marriage is considered to be the union of two souls,
for all kinds of futuristic rights and responsibilities to be carried on
together. Marriage holds its significance in every country and all the time
because it is considered that it completes a person emotionally,
psychologically and physically. In India marriage certainly holds more
significance than any of the country of the world. Marriage provides surety to
futuristic plans. It brings stability of young age, which helps in stable
convictions, positions and maintaining legacy.
Marriage is such a relationship whose
influence remains forever where both the partner shapes each other’s
personality both profoundly and substantially. It is also an endurance measure,
where both the partners come across with each other’s positive and negative
aspects for the smooth running of household.
The followers of different religions
in India have their different rituals, mandates and different issues arising
out of marriages which will be discussed under this chapter.
2.1.
CONCEPT AND DEFINITION OF
MARRIAGE
Marriage is
an institution in which men and women are admitted to family life. The purpose
is to live in the intimate personal relationship for a purpose of begetting
children. From the social point of view, marriage is an institution that serves
to ensure propagation and socialization of children of a particular society.
From the individual point of view, it provides assistance in bearing and rising
of children with love and affection. Marriage is a socially supported stable
and enduring union between individuals. It is the basis for the family and the
institution, comprehends few social functions such as regulation of sexual
behavior, reproduction, nurturance, protection of children, socialization.
As Mount
observes while reviewing a book Marriage
and Family “It is the essence of
marriage that it is private and apart from the rest of society. Its selfishness
or exclusiveness is not its undertone but its heart and soul.”[1]
In Mahabharata also while answering
one of Yaksha Prashna i.e. “kimsvin
mitram grihesatah?” i.e. who can be
the friend of a householder? Yudhishthir answered “bhaaryaa
mitram grihesatah” i.e. the friend of
a householder is his spouse[2].
According to sociologist Mazumdar, “marriage is a socially sanctioned union of
male and female for the purpose of establishing (a) household (b) entering into
sex relations (c) procreating and (d) providing care for the offspring”[3].
As per George A. Lundberg Marriages
has certain set of rules comprising duties, rights, privileges between husband
and wife towards each other, there is supposed to be mutual coexisting
understanding.[4]
As Vinogradoff asserts marriage has
been adopted as an institution primarily for upbringing of off springs and to take
care to financial and social aspect, however the regulation of sexual intimacy
and conjugal intimacy can’t be set aside all together. Hence marriage is the
only reason for the existence of family which
leads to the existence of society as
a whole[5].
In the light of current observations,
we can’t undermine the observation made by The Hon’ble Supreme Court of India
in the case of Shobha Rani v. Madhukar
Reddi[6]
where it was stated that there has to be love, compassion, affection, concern,
and epitome of mutual understanding between the partners within the
relationship of marriage to make it successful.
As per Hindu mythology man is
incomplete until he gets his wife. There is a concept of Ardhana Ishwara which
means the combination of Shiva and Shakti. According to this concept a man is
spiritually and emotionally incomplete till he gets his soulmate, his wife. The
ideal couple is of Shiva and Parvati where they were having responsibility of
Grihastya, children and rest of the world so the same is expected from an
individual too. Marriage is about the association of two correlative
individuals’ man and woman.
The famous writer Anita Desai writes
a lot about marriage as an institution. She reveals her inner feeling about
marriage and relationships in her novel where
shall we go this summer[7]. In
this novel the female lead is not accepting what is happening in marriage soon
she gets bored and irritated with the same routine, so she runs away from her
marital responsibilities in search of true happiness. Later she realizes the
value of family and marriage when even being free she didn’t find happiness.
Finally, she comes back to her family. This is the importance is marriage that
even absolute freedom can also be tarrying. One needs society and family to
feel secure and happy. Marriage is the glue which adjoins it.
2.2.
MARRIAGE
DURING DIFFERENT PERIODS
2.2.1.
DURING
ROMAN CIVILIZATION
In ancient Roman civilization
marriage has been considered as the purest form of human bond where the
relationship is unbreakable and free from any subjection. The first evidence of
marriage ceremony dates about 2350 B.C. in Mesopotamia. In primitive ages our
ancestors lived into a system of ‘primal horde’[8].
Primal horde refers a system where man and women stay together without any
marital bond without any emotional or social commitments attached to it. Males
were neither providers nor protectors[9].
Precisely 5000 years back the early primitive stage bade farewell to
the underdeveloped era. New inventions modified the ways of living in terms of
enhancing standard of living for the human civilization. Since it was agrarian economy and increase of
production gave opportunity for the growth of other societies, bigger cities
and different cultural amalgamations to flourish. This has left a deep impact
over families, marriages and over individuals too. With the passage of time
marriage is being considered as an association of two people where they work
together to have social, economic and emotional bonding with each other. Under
this system both the partners work equally for the survival and betterment of
the family. There used to be marriage in all the social strata from elite civil
class to slaves. It was regarded as a mutual bond or commitment where both the
partners commit to live life together irrespective of any social or legal
sanctity and this was how marriage in Roman civilization and Vedic
civilizations were different. Marriage was regarded as an essential bond to run
the society and the civilization.
2.2.2.
DURING
VEDIC PERIOD
During Vedic period Vedas laid the
foundation of Hinduism. Vedas are the ancient scriptures originally written in
Sanskrit which doesn’t only have religious significance but establishes ideas,
aspirations and principles for an ideal way of life. According to Vedas the
purpose of life is to have a balance in Dharma, Kama, Artha and Moksha. The
whole circle of life has been divided into four
Ashramas.
2.2.2.1.
ASHRAMA
SYSTEM OF VEDIC PERIOD
a.
BRAHMACHARYA
ASHRAM
It refers to the stage where a person
is evolved into attainment of knowledge and education under the guidance of
some learned person known as Guru. Guru
provides him the knowledge not only related to academics but also about the
practical aspects of life. During this stage there are certain restrictions
over the students such as they have to abide by what the Guru says, religiously
follow truthfulness, honesty, self-restraint and control over sexual desires.
b.
GRIHASTYA
ASHRAM
It is the phase of life which starts
once the age of attaining education gets completed; person gets married and
begins with his new responsibility as a household having wife and children. At
this stage he has to take care to his family, wife, parents and children. He is
supposed to earn a decent living to support his family.
c.
VANPRASTHA
ASHRAM
At this phase of life person has to
take partial renunciation from his responsibilities and worldly pleasure in
order to attain Moksha.
d.
SANYASA
ASHRAM
This phase expects person to leave
the household completely, serve God and leave all the material pleasures and
relationship bonds.
Out of the aforesaid ashramas Grihastya Ashram talks about to have a
blissful family life where everyone is happy, content and satisfied. It
establishes a presumption that under this ashram there are certain
responsibilities, duties of the husband and wife towards each other as well as
towards the family and the society. So, the whole concept of Hindu marriage
rests upon certain prefixed duties and obligations nevertheless rights too.
As per Manu the ancient Indian
jurist, “every Hindu must marry. To be mothers, were women created and to be
father, men: The Veda ordained that Dharma must be practiced by man together
with his wife”.[10]
The Marriage happens to be the most
essential sanskara among the Hindus
because Marriage sanctifies the sexual pleasure which is restricted until one
enters Grihastya Ashram. The sexual pleasure helps in attainment of Kama one of the supreme values to attain
during the life cycle and giving birth to upcoming generations. Marriage teaches a person the basic practical
lessons, gives him rational prudence to justify his actions and reactions.
Evolution of marriage relates to the idea of paternity, sex satisfaction,
financial and social co-operation.
Marriage emerged as an institution
which controlled over the nomadic behavior of human being. Marriage establishes
a strong bond between two human beings for the satisfaction of sexual desires
otherwise man’s astray behavior would lead to several social imbalances in the
society. This institution not only fulfills his material desires but also
inspires to bring out the best of him, encourages creativity and meant to
provide him happiness in lieu of what he does for the family.
2.3.
MARRIAGES
IN DIFFERENT RELIGIONS
India is a multi-religious country,
having different outlook from each other with respect to marriage. The Hindus,
Muslims, Christians, Sikhs, Parsis, Buddhists and Jains have their different
rituals, customary practices and essentialities attached to marriage. It is
very important to discuss them all. So, the chapter discusses the essentials of
a valid marriage of all these religions covering the social and legal aspects.
2.3.1.
ASPECTS OF
HINDU MARRIAGE
Hindu mythology believes in Karma
theory followed by the theory of rebirth. Marriage is the 13thsanskar
out of 16thsanskar theory which begins from the existence of fetus
and ends at the death rituals. Marriage falls in between, which symbolizes the
beginning of Grihastya Ashram. Marriage is supposed to be a sanskara which
revives birth after birth and follows the theory of rebirth. ‘Janam–janmantar
ka bandhan’ is the slogan generally used which signifies its vicious
significance and this is the reason probably why Hindu ancient scriptures do
not mention anything about breaking it down. The concept of dissolution of
marriage is an alien concept among Hindus. Manu describes marriage as mutual
fidelity is to be continued until death[11].
This can be considered as a golden formula to run the marriage anyhow. But the
elite, educated and progressive feminist questions this formula and asks, ‘why it has to run any how if it can’t run
smoothly, why to deliberately pull yourself to reach till the finish line.’ This whole sacred philosophy is
being questioned on practical aspects which is an area of research to this
thesis. Vedic ancient period has lot more about marriage and its notions which
will be addressed in coming chapters.
Manusmriti, is the most authoritative
book which laid down the significance of Dharma (set of duties and
responsibilities for an individual to perform). It was written by the law giver
Manu who establishes the significance of marriage to perform Dharma. For this
purpose, he has classified marriage into following categories -[12] :
a. Approved also known as Prashasta
b. Disapproved also known as Aprashasta
|
Prashasta (Approved)
|
Aprashasta (Disapproved)
|
|
Brahma
|
Asura
|
|
Daiva
|
Gandharva
|
|
Arsha
|
Rakshsha
|
|
Prajapatya
|
Paishach
|
a. ‘Prashasta’ Form of Hindu
Marriages
These forms of Hindu
marriages are the ones which are the approved way of solemnizing marriage. They
are having validity in the eyes of society as it includes the presence and
blessings of members of society as parents and priests etc. They are first four
types, namely, Brahma, Daiva, Arsha and Prajapatya.
i. Brahma Vivah
Brahma marriage is the
most sacred way of getting married. Under this form daughter has to be married
to a good character person. The daughter is to be blessed with several
ornaments along with rich dresses by the paternal side. The legacy of this type
of marriage can be traced from Vedic era even as per smritis also it is the
most pious form of marriage. The marriages taking place in current times are
very much like this however, the gifts have now been replaced with Dowry which has become a social evil and
has taken a very ugly shape.
ii. Daivya Vivah
Under Daivya Vivah the
daughter was being given to the priest by the father as Dakshina. Though this comes under approved way of getting married,
but it is inferior to Brahma vivah. The girls were supposed to serve as maidens
of God and priests. The practice of Devdasi
was very much close to it except the part of sexual exploitation which has
turned up as a social evil afterwards which was not there during Vedic ancient
times. This practice must have started with some pure intention of offering
girls to the services of the God, temple, and its maintenance but later the
practical use of the practice became asocial evil.
iii. Arsha Vivah
In Arsha Vivah the groom
can only get the girl if he gives pair of cow or bull to him however this
shouldn’t be confused with bride price. This practice was to ensure financial
security from the paternal side for the groom as a requirement of Dharma. Basically, it was a token of
gratitude for the father who gives his daughter and to enable the groom to
fulfill the obligations under Grihastya
Ashram. With the passage of time this practice became obsolete.
iv. Prajapatya Vivah
This type of marriage was
being solemnized after the pledge of the Mantra “may both of you perform
together your Dharma.” It establishes that couple is supposed to perform all
the religious and civic duties together to perform the duties of Dharma.
The abovementioned four
forms of marriages come under the category of approved because there was
involvement of parents specifically father of the daughter to get the marriage
performed so where this key element is missing the marriage comes under
disapproved marriage.
b. “Aprashasta” Form of Marriages
This form of marriages,
they have been termed as forbidden in the eyes of society. It includes Asura,
Gandharva, Rakshasa and Paisacha.
i. Asura Vivah
This type of marriage was
performed by paying something to the father or the guardian of the bride. Basically,
there was a consideration for the marriage. Under this customary practice the Bride Price was paid officially. So,
bride was being purchased. Because of the involvement of money as consideration
it is considered as an inferior as compared to the above-mentioned forms of
marriage. Learned Manu considers that a father can’t receive consideration in
lieu of his children that is why such marriages were improper. However, such
marriages are not prevalent in India.
ii. Gandharva Vivah
The marriage where boy
and girl themselves choose for their partner it was known as Gandharva Vivah.
Such marriages are being performed with mutual love and consent of both the
parties without involvement of any consideration or guardian. It is named after
a tribe ‘Gandharva’ who lives at the
slopes of Himalaya. The famous and classical example of Gandharva marriage was
of Shakuntala and Dushyant. Manu describes Gandharva vivah as “where the bride
and the bridegroom meet each other of their own accord and the meeting is consummated
in copulation born of passion, that form is called Gandharva.”[13]
The custom of swayamvara among
Kshtriyas can also be cited as example of such marriage. However, the
contemporary practice of love marriages
is very much close to it.
iii. Rakshasa Vivah
In such marriages the boy
without the consent of girl abducts her and forces her to get married to him.
This type of marriage is not in practice rather such act would come under the
category of an offence.
iv. PaisachaVivah
Under Paisacha marriage
man seduces an intoxicated or sleeping girl i.e. not in position to give her
consent or to understand the nature and consequences of the act. Such type of
marriages is also no longer in practice rather such act would be termed as Rape and person can be punished under
IPC. P.V. Kane[14] thinks
that this marriage is called paishacha because in it there is action like that
of pishachas (goblins) that are supposed to act stealthily[15].This
form of marriage, however, has disappeared altogether in India.
After evaluating the
nature of all the above-mentioned marriages, it can be said that Brahma vivah was the most pious form of
marriage where the merits of the partners, consent of the partners and the
blessings of the parents were there to solemnize the marriage. Even in present
context the love cum arrange marriage
fits into the notion. Kanyadaan[16] is
considered as an essential ingredient of a Hindu marriage which is willfully
observed in Brahma vivah. In a nutshell
it can be said that an ideal way of getting married is Brahma vivah as it
provides social and financial security to the partners along with long life
companionship, mutual love and understanding.
After the evaluation of
the nature of marriages during Vedic age it is very much evident that even in
those times there used to be huge respect for the consent of girl when it comes
to marriage. If the consent of the girl was not free, the marriage could come
in the category of disproved marriage as in the case of Paisacha and Rakshsha
vivah. However, with the change of times the idea of consent for marriage has
taken a very shallow meaning and theorem of consent on the part of women is
taken at a superficial level. The decision of marriage is taken over twice or
thrice meetings. The pay packages and virginity are the basic criterion to
determine the merits of the boy and girls respectively. In ancient times there
was far more progressive thought process to take decision over marriage.
2.4.
CHANGING DIMENSIONS OF MARRIAGES IN
INDIA- A PROGRESSIVE CHANGE
With the rapid growth and advancement
in education of women there has been a huge progressive change with regard to
the status of women. It gets frustrating when
feminism is forced to fit into tradition. In each and every religion
now, there is a huge urge to treat men and women equally. Women are no more a
chattel of husband now.[17]
But still down the lines the concept of Husband superior to wife is not an
alien concept in Indian society. From Karwa Chauth to several other practices
we Indians don’t deny accepting ‘Pati’ as God and ‘wife’ as devotee and
surprisingly we proudly promote it. Women can’t be compelled to stay into
marriage if there is domestic violence physical or mental as it is against
Article 21 of the Constitution of India.
Now women are not ready to be a substitute of maid or compromise their
rights or happiness just to run the household anyhow or stick to the label of
‘Mrs’ with tears in eyes, rather they accept the status of divorcee gracefully
to move on from the unhappy or abusive married life. So, the concept of
marriage has changed drastically.
There are various points to evaluate
changes in the forms of marriage:
a. Change in the Purpose of Marriage
The conventional Hindu marriage
considers ‘Dharma’ concerning execution of strict duties. Earlier the
relationships were to play out the sacrosanct obligations and capacities. The
prime capacity was to become kinfolks and defenders of the family. With the
approach of communication, industrialization and globalization the relations
are fading. The points and purposes have changed their importance from regard,
dedication, genuineness to less respect, ravenousness, and unfaithfulness and
so on.
b. Changes in the Rituals of Marriage
There are various rituals which are
subject to several criticism by the pragmatic thinkers of the society such as
calling off the customary practice of Kanyadaan has started[18],
performing rites by female priests[19],
performing marriages under special marriage Act or court marriages to avoid
pomp and show in marriages. All these changes depict a different dimension of
getting married in a different way which is more progressive rather than
regressive.
c. Change in Process of Mate Selection
In days of yore, guardians used to
choose the companion and there was not really any state of the unmarried or
delayed marriages. There are various stories which bolster that guardian used
to marry their girls as indicated by their own will. Presently because of
different reasons such as financial independency among girls, urbanization, and
education the role of parents is passive rather active with regard to mate
selection[20]. The
relationships which were prior held by mediators are currently supplanted with
matchmaking offices, matrimonial sites, Tinder or Facebook and by the
Newspapers[21].
d. Change in the Age at Marriage
After assessing marriageable age in
India in comes out it that girls and boys used to get married at early age and
it was more in the case of girls. In some cases, like Rajasthan girls were
married at early age for example age of 3-4 years also, when they didn't have a
clue about the importance of marriage. The marriage framework was intensely
reliant on orchestrated marriage at an early age in the conventional social
orders of India. The sexuality of girls should be deliberately controlled to
maintain the respect of the family married couples ought not to be excessively
genuinely connected, as this could compromise the solidarity of the man centric
family.[22]
Early marriage works as guarantee for a virtuousness of a girl, it denotes a reasonable
break from their natal families, makes them bound to acknowledge the structure
of expert in their new family and strengthens the spouse bond[23].Now
because of appearance of different components like innovation and awareness
among girls there is a major change. Lawfully, the marriageable age of female
is 18 years and maleis21 years. Further because of professional studies and
jobs the age of marriage is around 25-30 years. The pattern towards late
marriage is related with the financial changes that upgrade the status of girls
by expanding instructive and work openings. It has assumed a significant job in
deciding the development pace of populace through its linkage to conjugal
fruitfulness.
e. Change in timeless bond concept
of Marriage
In the times past organization of
marriage was very steady and scarcely any separation was noted. Dread of family
relationship framework and solid social codes never permitted wedded couples to
separate relationships regardless of whether they want to live together or not.[24]
Presently due to legislations, training, innovation progression and more
awareness has changed dependability in the foundation of marriage. Separation
is expanding in the public arena over the globe. Love, individual duty and
inherent fulfillment are presently observed as the foundation of marriage.[25]
f. Inter Caste Marriages
Until at some point back, wedding an
individual having a place with some other position or religion was not allowed
by the families. A report which examined[26]
inter-caste relationships in India and the information uncovered that more than
50% guardians communicated their eagerness to permit their children wedding
outside their own position. The concept of inter caste marriage comes with a
lot of negative repercussions, adjustments and compromises even in this 21st
century but slowly people are getting accustomed to this change.
g. Change in Economic Aspects of Marriages
Marriage is regularly held in urban
communities as a social or a common function than strict service. The idea of
Indian wedding has seen extreme changes, in the course of the most recent
couple of years. Previously, the function was a family issue, kept to an
efficient spending plan, even though the list of attendees was long. Despite
what might be expected, in right now, the event is commonly celebrated in an
expounded manner, with number of ceremonies that are directed previously,
during and after it. A long list if people to attend, bright and excessive
setting, extravagant gala and a progression of customs are the key elements of
the 'gigantic Indian wedding' that we see today[27].
Immense money is being spent on function to make it a 'terrific affair'. Cash
is spent luxuriously for finishing marriage mandaps, organizing fabulous
supper, music symphony, video-shooting, photography, marriage parades and so
forth. Some progressive thinkers are stressing over changing these extravagant
ceremonies to be economical and eco-friendly.
2.5.
ILLUSTRATIONS OF CHANGES IN THE
INSTITUTION OF MARRIAGE
2.5.1.
Restitution of Conjugal Rights
Hindu Marriage Act under section 9
provides for restitution of conjugal rights according to which if one of the
spouses withdraws others’ company without any reasonable reason to justify then
the later gets the right to file petition for restitution. In case where court
is satisfied that there is no sufficient reason for staying away from each
other’s company by the former the court may grant the decree for restitution of
conjugal rights.
However, the Andhra Pradesh High
Court in the case of T Sareetha v.
Venkata Subbaiah[28]
stated that compelling spouse to live together under restitution of conjugal
right is not only gross violation of Article 21 of Indian Constitution but also
gross violation of Human Rights and human dignity. Moreover, it is often
contended that a decree of restitution of conjugal rights which compels wife to
stay with husband and to establish a matrimonial bond also expects her to have
unwilling sexual intimacy which is undoubtedly violation of bodily autonomy.
But Delhi High Court[29]
dissented with the judgment of Andhra Pradesh High Court and further Supreme
Court in Saroj Rani[30],
has put end to this dispute by stating that the objective of the section 9 of
the concern act is not to give space to unwilling sexual intimacy but focus
over ‘Consortium’.
However, the various observations
available accuse Delhi High Court and Supreme Court for being so insensitive.
Somewhere down the lines both the courts forgot that being a patriarchal
society husband holds a dominant position where he can easily force wife to have
sex. This can be an easy escape for him from long litigation for domestic
violence, cruelty and what not. In matrimonial relations it is impossible to
draw a fine line difference between ‘just a cohabitation’ and ‘cohabitation
with sexual intimacy’.[31].
In March 2019, the Hon’ble Supreme
Court of India admitted a writ petition Ojaswa
Pathak v. Union of India[32]
challenging the constitutionality of the remedy of restitution of conjugal
rights present under Section 9 of Hindu Marriage Act, 1955. The judgment is
still pending by the court. The question of law i.e. constitutionality of the
remedy of conjugal rights still remains a contentious issue because of the
competing interest of protecting individual human rights on one hand and
state’s interest in protecting the marriage on the other hand. The petitioners
cited the reference of Anuj Garg v.
Hotel Association of India[33],
where the court upheld that “a statute although could have been held to be a
valid piece of legislation keeping in view the societal condition of those
times, but with the changes occurring therein both in the domestic as also
international arena, such a law can also be declared invalid.”
The arguments against RCR contend
that UK, Ireland, Australia and South Africa have abolished it so now India
should also follow the footsteps.
2.5.2.
Recognizing cruelty against wife
Acknowledging cruelty against wife by
husband indeed happens to be a remarkable thing for a patriarchal society like
ours. In India there is deep rooted concept of accepting husband as ‘Dev’ so
the realization that even ‘Dev’ can do something wrong is indeed a sign of
pragmatism.
To interpret cruelty, Indian Courts
initially took assistance from western cases such as Russell v. Russell[34],
Buchler v. Buchler[35],
Sheldon v. Sheldon[36].It
is significant to discuss the case of Russell.[37]
In this case, Earl Russell and Mabel Scott married in 1890 and then in December
1891, Mrs. Russell filed a petition of Judicial Separation against Mr. Russell.
She accused her husband of committing sodomy with a male friend. However, she
could not win in the case. Thereafter, Mr. Russell filed a petition for
Judicial Separation stating that it was the cruelty on the part of her wife by
making false charge of sodomy. And it was granted and then Mrs. Russell made an
application for appeal against the decision. The Appeal authority decided
cruelty as a conduct of such character as to have caused danger to life, limb
or health or as to give rise to reasonable, apprehension of such danger. The
rational of this case ruled the Indian matrimonial disputes for a long period
of time.
The reason why Indian Courts were
taking assistance from western cases was because under the Hindu Marriage Act
1955, cruelty was nowhere defined. Prior to the 1976 amendment in the Hindu
Marriage Act, 1955 cruelty was not a ground for claiming divorce under the
Hindu Marriage Act. It was only a ground for claiming judicial separation under
Section 10 of the Act. By 1976 Amendment, the Cruelty was made ground for
divorce.
It began from 1975 that Indian
Judiciary had to search for deriving into the meaning of cruelty on Indian
moorings. In the case of Broja Kishore
v. Krishna[38], it was
held that the cruelty is not necessarily restricted to physical violence but
may extend to behaviour which may cause mental pain or injury to mind as well.
Various acts of non–physical violence such as harassment, insulting behaviour,
cessation of marital intercourse, refusal to provide food, clothing or
accommodation by the husband also form a part of the phenomenon of violence
against women.
Mrs. Flora Bose v. Suproti Bose[39] in this case unemployed husband used
to ask money from his wife to spend over liquor and hefty lifestyle. He even
used to beat her and abuse her. Court granted divorce considering the scenario
as cruelty.
Cruelty is not only
a civil offence anymore, but it is also covered under section 498A of IPC[40].
This section recognizes domestic violence against women as a crime. Insertion
of Section 498A was done with the idea of curbing cruelty on married women by
her husband and in-laws and subsequent amendments were also made in the Code
of Criminal Procedure, 1973 and
the Indian
Evidence Act, 1972 by the same
amendment to effectively deal with cases of dowry deaths and cruelty to married
women by the husband, in-laws and relatives. The basic essentials to attract
Section 498A are:
a.
The
woman must be married;
b.
She
must be subjected to cruelty or harassment; and
c.
Such
cruelty or harassment must have been inflicted either by the husband of the
woman or by the relative of her husband.
A bare reading of
this section highlights that the word ‘cruelty’ covers the occurrence of the
following act(s):
i.
Any
willful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb, or
ii.
health
(whether mental or physical) of the woman; or
iii.
Harassment
of the woman where such harassment is with a view to coercing her to meet any
unlawful demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such demand.
iv.
The
offence is cognizable and non bailable in nature.
v.
The
punishment may increase upto 3years.
In
the case of Rupali Devi v. State of Uttar Pradesh and Others[41], wherein it was
held that, Cruelty shall mean intentional and malicious infliction of mental or
physical suffering upon a woman. Cruelty includes physical as well as mental
aspects. The impact on the mental health of the wife and mental stress or
trauma of being driven away from the matrimonial home are aspects that must be
taken into consideration while understanding the meaning of the expression
“cruelty” appearing in Section 498-A of the Penal Code.
In addition to the
498A, the Protection
of Women from Domestic Violence Act, 2005,
is also a linchpin to curtail the immoral and offensive practices against
women. The complainant can apply for the reliefs under section 18-22 and
interim reliefs can be obtained by the appellant under Section 21 of the
Domestic Violence Act.
In the case of Indra Sarma v. VK Sarma[42]
Supreme Court highlighted the importance of section 498A of IPC and DV Act for
the protection of women against cruelty and made observation as “…when a woman is subjected to cruelty by
husband or his relatives, it is an offence punishable under Section 498-A IPC.
The civil law, it was noticed, did not address this phenomenon in its entirety.
Consequently, Parliament, to provide more effective protection of rights of
women guaranteed under the Constitution under Articles 14, 15 and 21, who are
victims of violence of any kind occurring in the family, enacted the DV Act”.
However, it is sheer irony that non
availability of sexual intercourse in marriage comes under the category of
Mental Cruelty but excessive, violent and brutal sexual intercourse in marriage
is welcoming and doesn’t amount to rape. Undoubtedly acknowledging cruelty as
ground of divorce and an offence is a progressive step for a country which has
patriarchal culture all together, but it has to go a long way in determining
sexual violence as an offence within marriage too.
2.5.3.
Decriminalizing Adultery
Section 497 of Adultery is always
subject to question because of its being gender
biased. Under this section women being an auxiliary accused but can’t be
punished. The law of adultery used to assume that in all cases ‘man is the
seducer’ and the women, who is an equal participant is viewed as a victim.
There have been numerous debates about the discriminatory stance of the
provision. However, in the case of Joseph
Shine v. Union of India[43]
Section 497 of IPC was held to be unconstitutional on the ground of gender
bias. Further, Court also observed that wife is not a chattel of husband. This
way it is presumed that if the adulterous male has committed an offence against
the husband establishes the predominance of patriarchal thought process where
wife is considered as a property of husband. Court explained the concept of expectation of sexual fidelity. This
expectation of sexual fidelity should be a two-way process, expectation from
both the partners not only from one. All five Supreme Court judges hearing
the case unanimously said the law was archaic, arbitrary and unconstitutional.
Chief Justice Misra remarked that husband is not the master of wife. Women
should be treated with equality along with men. Judge Rohinton Nariman said
that “ancient notions of man being perpetrator and woman being victim no longer
hold good”. Justice DY Chandrachud said the law “perpetuates subordinate status
of women, denies dignity, sexual autonomy, is based on gender stereotypes”. The
judgment specified that the law sought to "control sexuality of woman
(and) hits the autonomy and dignity of woman". Many blog writers and
social activists remarked it “staggeringly sexist”, “crudely anti-woman” and
“violative of the right to equality”.
The word ‘connivance’ has been
interpreted in a harsh manner. The word connivance is placed to give a reason
to husband to sue the third person because matrimonial bliss is
devastated. So that the husband has a
good reason to sue the man who is responsible for destroying former’s
matrimonial relationship. On other hand if he would have been consented to this
adulterous life, he can’t play his victim card. The doctrine of one who seeks remedy must come with clean
hands applies over here.
These days when ‘wife swapping’ and
‘open relationship’ is trend in matrimonial life in such cases restoring
matrimonial relations can’t be put over the heads of judiciary. Couples are
themselves choosing to be into adulterous life with mutual consent and bringing
fake cases of Adultery afterwards, in such a scenario it is better not to give
benefit of doubt to one partner as a weaker gender since they are knowingly
consented to this lifestyle.
The Supreme Court has argued that the
law unfairly considers women as property of men and goes against fundamental
rights; adultery is still a legal ground for divorce. It can also be seen as
something which places a fair restriction on sexual autonomy, which means that
there are legitimate restrictions on sexual autonomy. Therefore, it can be
inferred that if one of the two spouses violates the sanctity of marriage, the
legal system does not control which one should sleep with, but rather regulate
the separation process. In addition, the criminalization of broken faith in a
marriage does not lead to a couple returning to a blissful way of life, nor
does it alter society’s social conduct.
2.5.4.
Live in Relationship
Undoubtedly marriages play a very
important role in India they hold social, emotional and legal sanctity.
However, there are many who do not believe in the significance of marriage.
There are quite a few numbers of people who prefer to stay together under one
roof without getting hitched socially or legally. Even having pre-marital sex[44]
is quite a common phenomenon. The social morality standards are changing
drastically, but the notions of personal autonomy are to be respected as
greater social norm.
Live-in Relationship is a voluntary
arrangement wherein two people of opposite sex cohabit on a long-term or
permanent basis to fulfill their emotional and/or sexual needs. The legal definition
of live in relationship is “an arrangement of living under which the couple
which is unmarried lives together to conduct a long going relationship
similarly as in marriage.”[45]
While in a live-in relationship a couple portray themselves as husband and wife
while legally there is no solemnization of marriage.
In Lata Singh v. State of U.P.[46],
it was observed that a live-in relationship between two consenting adults of
heterogenic sex does not amount to any offence (with the obvious exception of
“adultery”), even though it may be perceived as immoral. A major girl is free
to marry anyone she likes or “live with anyone she likes”.
Until 2010, the rights and legal
position of the partners in a live-in relationship was obscure as there was no
specific legislation dealing with the subject nor was there any direct decision
of the Supreme Court of India. But all the clouds of uncertainty were blown
away by the landmark decision in D. Velusamy v. D. Patchaiammal[47],
wherein the bench of Justice M Katju and Justice T S Thakur held that the
expression “domestic relationship” occurring in the Protection of Women from
Domestic Violence Act, 2005 includes not only the relationship of marriage but
also a relationship “in the nature of marriage”.[48]
The court held that the parliament had drawn a distinction and in either case
the person who enters into either relationship is entitled to the benefit of
the Act.[49] The
court ratified the fact that the Parliament has taken notice of a new social
phenomenon which has emerged in our country known as live-in relationship while
drafting the 2005 Act.[50]
The Supreme Court in Velusamy[51]
opined that the live-in relationships are akin to common law marriages. The
court said that merely spending weekends together or a one night stand would not
make it a “domestic relationship” and laid down the following requirements of a
live-in relationship:
a. The couple must be spouses in the
eyes of society.
b. Must be major by age.
c. Must not be already married.
d. The cohabitation must be voluntarily
and has been for a considerably long period of time.
e. The cohabitation must be in a ‘shared
household’.
The court in unequivocal terms held
that all the relationships will not amount to relationship in nature of
marriage but only those that not only satisfy the above conditions but also
prove these by evidence will be entitled to claim benefit under the 2005. If a
man has a ‘keep’ whom he maintains financially and uses mainly for sexual
purpose and/or as a servant it would not, in our opinion, be a relationship in
marriage.[52] This
landmark decision marked the beginning of the acceptance of the live-in
relationships by the law of land.
Yet another landmark decision with
respect to live-in relationships was Chanmuniya
v. Virendra Kumar Singh Kushwaha[53],
wherein Apex court upheld the maintenance to woman by a man where both were
living together in a shared household for a considerable long duration without
undergoing legal or social procedure to get married. The rational of the court
was not to give benefit of doubt of to the person who willfully and pleasurably
enjoyed the benefits of de facto status of his relation and when the time came
to take the burden of responsibilities he is shrinking to his obligations and
such situation woman can’t be left alone to suffer and victimized. Under
Section 125 CrPC such woman can also claim for her due maintenance.
2.5.5.
Triple Talaq
Triple
Talaq has been the most controversial topic of deliberation not in only Muslim
community but also for the whole country. Triple Talaq pertains to be a subject
of personal law, but it is a matter of hue and cry among the people who want
change and for those who want to stick with the old school of thought.
The most
striking and most prejudicial element of Islamic law of separation is the
acknowledgment of the idea of one-sided separation, wherein just the husband
can separate from his wife other with no reason, without doling out any reason,
even in a joke or in a condition of inebriation and without plan of action to
the court and even without the wife, by basically articulating the equation of
disavowal.
Under
the Islamic law, divorce can be classified into three categories viz. ‘talaq’:
divorce at the instance of husband, ‘khula’: divorce at the instance of wife,
‘mubaraat’: divorce by mutual consent. Further, ‘talaq’ is classified into:
a. ‘talaq-e-ahsan’ single pronouncement
of ‘talaq’ by the husband followed by a period of abstinence or ‘iddat’ for 90
days or three menstrual cycles.
b. ‘talaq-e-hasan’ three successive
pronouncements of ‘talaq’ by the husband followed by three period of abstinence
of 30days each or three successive menstrual cycles.
c. ‘talaq-e-biddat’ this is effective by
one definitive pronouncement of ‘talaq’ and effective forthwith and hence
irrevocable the moment it is pronounced.
‘Talaq-e-ahsan’
and ‘Talaq-e-hasan’ are the proper forms of talaq while ‘Talaq-e-biddat’ is
considered to be irregular form. Only a few schools recognize this as a form of
divorce, most prominently, the Hanafi sect of the Sunni Muslims. This sect also describes ‘talaq-e-biddat’ ‘as
a sinful form of divorce’. This form of
divorce is also described as “bad in theology, but good in law”.
‘Talaq-e-biddat’
popularly referred to as ‘triple talaq’ has been supported on the grounds that
is it personal law. However, the recent judgment of Shayra Bano[54]
the Apex Court struck down such practice as it was violating Fundamental Rights
enshrined under Constitution of India. Ms. Bano was the original petitioner in
the case she approached the court in 2016 demanding that the talaq-e-biddat
pronounced by her husband be declared as void. She also contended that such
unilateral, abrupt and irrevocable form of divorce be declared
unconstitutional, arguing that the practice of triple talaq violated the
fundamental rights of Muslim women. As per her claim, she was often beaten and
kept hungry in a closed room for days on not bring adequate dowry. The final
cut came in October 2015, when her husband sent her a divorce note by speed
post. The letter contained a pronouncement of instant triple talaq. The custody
of her two children, 11 and 13 years, was kept by the husband. She filed the
petition against this draconian practice. Her legal battle received more
coverage after other victims of triple talaq also approached the court, though
she was the first petitioner. The judgment reads as
“200. Till such time as legislation
in the matter is considered, we are satisfied in injuncting Muslim husbands,
from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial
relationship. The instant injunction, shall in the first instance, be operative
for a period of six months. If the legislative process commences before the
expiry of the period of six months, and a positive decision emerges towards
redefining ‘talaq-e-biddat’ (three pronouncements of ‘talaq’, at one and the
same time) – as one, or alternatively, if it is decided that the practice of
‘talaq-e-biddat’ be done away with altogether, the injunction would continue,
till legislation is finally enacted. Failing which, the injunction shall cease
to operate.”[55]
Such a revolutionary judgment not
only uprooted the patriarchy imbibed in customary practices but also changed
the laws of Sharia about marriages. The judgment directed the legislature to
bring a legislation to abolish Triple Talaq. The Parliament in the year 2019
brought Muslim Women (Protection of Rights on Marriage) Act, 2019. This Act
under Section 3 and 4 not only abolishes the practice of Triple Talaq but also
makes it a punishable offence[56].
Under the Act, bail can be granted only after hearing the victim woman and on
reasonable grounds. There is provision for subsistence allowance for the wife
and her dependent children as determined by the magistrate. There is also the
right of the wife for the custody of her minor children. Significantly, the
offence punishable under the Act has also been made compoundable but only at
the insistence of the Muslim woman and with the permission of the magistrate on
appropriate terms, which the court may determine.
Indeed, such progressive changes are
much needed in the society for the better survival as we should not be governed
by the people who are in Graves.
2.5.6.
Registration of Marriage
As long as Hindu marriage is
concerned, marriage registration is not compulsory except in those states where
compulsory marriage registration Act has been passed such as Uttar Pradesh,
Telangana, Delhi etc. Those individuals who had married but had not registered
their marriage are bound by penalty and such penalty being charged at a lesser
extent. For Muslims, Christians and Parsi’s registration of marriage is
compulsory by one or the other way.
In 2006, the Supreme Court in the
case of Seema v. Ashwani Kumar[57]
laid that different state should come up with laws regarding marriage
registration and subsequently several states passed this law. The legislative
efforts to make registration of marriages compulsory in India can be traced
from the year 2012 when it was tabled for the first time after the observations
made by the Apex Court. The bill aimed at amending certain provisions of Births
and Deaths Act 1969 and provided for registration of marriage compulsorily for
all the religious denominations. However, the Bill couldn’t see the day of
light as got lapsed on dissolution of 15th Lok Sabha in the year
2014 after getting passed from Rajya Sabha.
The observations made by the panel
were not in favor of it as they realized that due to the huge size of
population and large diversity of customs in marriages it would be very
difficult to come up with a uniform structure of marriage that too without
hindering Fundamental Right i.e. Right to religion. The panel pointed out that
in India because of its size, population and the sheer diversity of customary
forms of marriages; it is a tedious endeavor to register all marriages.
However, the difficulty in the path can’t defy the benefits of having such a
uniform law about registration of marriages.
"It would provide citizens, not
new rights but better enforcement of existing rights under various family laws
that grant and provide to protect many rights of spouses within a
marriage," observed by the Law commission.[58]
Hence to conclude it can be said that
marriage is a legally, socially, and religiously recognized interpersonal
relationship, usually intimate, sexual and often created as a contract.
Marriages are perpetual agreements with legal consequences, terminated only by
the death of one party or by formal dissolution processes such as divorce and
annulment. It is not just a social convenience or an invention for living together;
it is ordained by God and patterned to reflect the loving relationship. Many
religions have extensive teachings regarding marriage. With the changing time
the role has changed but the basic idea remains unchanged. Since our childhood when children play home
-home, the sister takes on the role of the mother and brother becomes the
father even if he is younger. The mother packs lunch for the father before
sending him to office. She then washes clothes, feeds, and puts her doll
children to sleep, dresses up and goes marketing. Sometimes the ‘couple’ even
has mock fights, mostly over minor matters. At that very moment they are only
imitating their parents but with every single day of play, the idea of married
family life becomes much deep rooted in the minds of the children. The same
minds of these children read fairy tales where everybody lives happily ever
after. This is the dictum they have been brought to believe in and try to make
their marriage successful at every cost. Children are always taught and will
always be taught that, there are many paths they will travel in life, but for
the greatest self-respect and fulfillment, they are to get but, one traveling
companion, keeping their lives warm and fresh by discovering new truths about
each other along the way. It is the most common way of life, the path that the
majority are called to tread. Fundamentally, marital relations regulate human
behavior between persons of opposite sex. It is evolved and developed with the
socio-economic progress of mankind. Socially, it is an announcement of the new
relationship. Since it is a demographic event, it has a great impact on social
welfare. Marriage is considered as a main domain of the kinsmen. One of the
most important structural sub systems of every society is its kinship system,
which is made up of families and other types of kin group. In Indian life, job
desires are exceptionally explicit and institutional in marriage; consequently,
the life of female is overburdened. Family is complex system of human development
and marriage binds it. The culture and traditions of family passes from one
generation to another. From primitive Vedic Ages to Medieval and later, there
has a been a drastic change with regard to the institution of marriage, even
the enactment of laws Marriage among Hindus, Christians and to some extent
Muslims have tried to give equal rights to man and woman both under the marital
setup but some where they have failed to do so in few aspects. Though there has
been lot many changes rather to say transformation in the concept of marriage.
With the progress of time the age at marriage, procedure of mate choice, the
reasons for marriage, patterns of separation rates and the financial parts of
marriage have experienced a gigantic change. There are unquestionably genuine
consequences of the changing concept of marriage such as advancement,
industrialization, and individualism. These are changing the dimensions of
marriage in India. In such a scenario the current inconsistent influence of
adopting shortcuts for getting rich rapidly at any cost is giving birth to new
conflict issues within matrimonial relations. Clashes in this foundation are
additionally developing because of the connection of custom with advancement.
With the advent of modernization, industrialization, and urbanization the
traditional outlook took a backseat in the society. Traditional marriage is now
considered as a loss of individuality, loss of privacy, lack of freedom, lack
of individual growth, lack of social and sexual variety, dissatisfaction with
spouse, sexual frustration, problem with in-laws etc. All these factors have
led to a change in the form and purposes of marriage. At present the new trend
of live-in-relationship is emerging in urban Indian society.
Live-in-relationship or cohabitation is an arrangement where two people, who
are not married, live together in an intimate relationship, particularly an
emotionally or sexually intimate one, on a long term or permanent basis. Today
individuals have become career oriented. Women are going out for work. This is
preventing them to go into the bonds of married life that is full of
responsibility. Economic independence of people in urban society also paves way
to live-in relations as these people don’t want interference in their personal
life. These days’ young men and women are getting opportunity to know and spend
time with each other. This enhances the chances of getting into live-in
relationship.
Many people believe that live-in
relationship is a good way to test their relationship before marriage. Besides
this many other alternative forms of marriage are also emerging such as the
intrinsic marriage, utilitarian marriage, open marriage, two step marriage/multi
step marriage, temporary marriage, group marriage, consensual marriage,
covenant marriage, commuter marriage, swinging and sexually open marriage. If
an analysis is made of need of such relationship, avoiding responsibility would
emerge as the prime reason. The lack of commitment, the disrespect for social
bonds and the zero-tolerance power in relationship have given rise to find
these various alternatives to marriage.
The processes of educational and
urban development have, no doubt, created new situations and problems and have
upset certain traditional morals and values. Yet the marriage institution
continues to be the core of Indian society and has not experienced a general
disintegration. People are okay in adopting new changes into marriage as
discussed in the present chapter, even the COVID19 Lockdown period has totally
changed the big fat wedding concept
to a normal gathering into wedding but still there are lot many transformations
that are still in waiting zone. There
remain certain Grey areas where the right to equality is not reached into its
black and white letters, Sexual Consent within marriage happens to be one of
such areas. The concept of sex in Indian
society in each and every religion happens to be talk behind the curtains. Since
the convenience or comfort in sex is something that is not a usual thing to
talk about though the irony of the country is that in every second house
daughter in laws are blessed with the saying ‘Dudhonahao putto fallo’ (May you
are blessed with children and grandchildren). So, the consent somewhere down
the lines remain to be covered with the blanket of ‘shyness of wife’. The
desire of sex and avoidance of sex both by the woman are treated as a curse or
a malfunctioning in her feminine portrayal. Marriage is an apparatus for
achieving profound flawlessness. It is a blessing, a gigantic Grace from God.
Chaucer writes in his famous essay
‘The Merchant’s tale about marriage specifically about the relationship of
husband and wife
“Thilke
blissful lyf
That is
betwixean husband and his wyf
And for to
live under that holy bond
With which
that first God man and woman bond
Non other
lyf, sayde he, is worth a bene;
For wedlock
is so easy and so clene
That in this
world it is a paradys”.[59]
[1] ed. Marvin B. Sussman and Suzanne K.
Steinmet, Handbook of Marriage and the Family, Plenum Press, Review Paperbacks,
? Springer, 2nd edition 1999.
[2]Available at: http://www.avsrinivasan.com/?page_id=93, last accessed on 1st January 2018.
[3] H.T. Mazumdar, Grammar of
Sociology, Asia Publishing House 1966, pp502.
[4] George Andrew Lundberg, Sociology,
Harper and Brothers, New York, 1958, pp133.
[5] Vinogradoff, Grammar of Sociology,
Asia Publishing House, 1966, pp 502.
[6] AIR 1988 SC 121.
[7] Anita Desai, 1982. Where Shall We Go
This Summer? New Delhi: Orient, pp.139.
[8] Coontz, S. Marriage, A History: From
Obedience to Intimacy or How Love Conquered Marriage, New York,
2005.
[9]H.Fisher, Why We love: The Nature and Chemistry of
Romantic Love. Henry Holt & Co. New York, 2004.
[10] Manu Smriti, ix. 96; citated in
Dr. Paras Diwan on Hindu law- 2nd edn. 2005, p.547, Orient Publishing Company,
Allahabad.
[11] Available at https://files.instapdf.in/wp-content/uploads/pdf-thumbnails/2020/06/manusmriti-the-laws-manu-2998.webp
, last accessed on 9th April 2018.
[12] Manu Smritis IX- 101, available at: http://www.hindubooks.org/manusmriti.pdf
, (verse 3.21 relates to type of marriages) last accessed on 11th April,
2017.
[13]Available at: https://archive.org/details/ManuSmriti_201601,
last visited on 10th April 2019.
[14] Renowned Sanskrit scholar of 20th
Century who wrote and translated several ancient books
[15] Available at https://www.yourarticlelibrary.com/marriage/8-traditional-forms-of-hindu-marriage-in-india/47455
, last accessed on 9th July 2021.
[16] Manu Smritis IX- 101, available
at: http://www.hindubooks.org/manusmriti.pdf
, last accessed on 8th April 2017.
[17] Joseph Shine v. Union of India,
2018 SCC OnLine SC 1676.
[18] Available at: https://northeasternchronicle.in/news/kanyadaan-ritual-to-be-questioned/
, last accessed on 5th September 2021.
[19] Recently a Bollywood celebrity and
former Miss Asia Pacific Dia Mirza got married, where she arranged female
priest to do the rituals.
[20] J Cadwell, “The causes of marriage change in South
India,” Population Studies 3 (1992) pp 343-361.
[21] Jones, G. (2010). Post-traumatic stress disorder
among battered women: Risk and resiliency factors, J Marriage and Family, 8:17-28.
[23] Reddy, V.
Marriages in India-A
Psycho-sociological Study. The Academic Press. Haryana, 1982.
[24] Goody, J. and Tambiah, Bride wealth and Dowry. Cambridge University Press, 1973.
[25] Allen B. and Grow M, Anatomy of Love: The Natural
History of Monogamy, Adultery, and Divorce. Simon & Schuster, New
York,2001.
[26] K.M Kapadia, Marriage
and family in India, Oxford University Press, 1982.
[27]Miher, ‘Status
relations in South Asian marriage alliances: Toward a general theory’,
Contributions to Indian Sociology (NS) 22: 145-69, 1988.
[28] AIR 1983 AP 356.
[29]Harvinder Kaur v. Harmander Singh
AIR 1984 Del. 66.
[30]Saroj Rani v. Sudarshan Kumar AIR
1984, SC, 1652.
[31]Available at: https://www.firstpost.com/india/compelling-wife-to-cohabit-with-husband-violates-fundamental-rights-time-sc-reviewed-section-9-of-hindu-marriage-act-6200151.html,
last accessed on 9th January 2019.
[32] W.P.(C) No. 250/2019 PIL-W.
[33] (2008) 3 SCC 1.
[34]
1897(A.C.) (395).
[35] (1947) 1 ALL.E.R. 319.
[36] (1966) 2 ALL.ER 257, In this case,
Lord Denning MR, Davis L.J. and Salmon LJ. Decided that the husband’s refusal
to sexual intercourse over a long period without excuse, which is causing
injury to his wife’s health, amounted to cruelty.
[37]1897 (A.C.) (395).
[38] AIR 1989 Cal 327.
[39]AIR 2011 Delhi 5.
[40]Husband or relative of husband of a
woman subjecting her to cruelty — Whoever, being the husband or the relative of
the husband of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be
liable to fine.
Explanation. — For this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to cause grave injury or danger
to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is
with a view to coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or is on account of failure by her
or any person related to her to meet such demand.
[41](2019) 5 SCC 384.
[44] S. Khushboo v. Kanniammal, (2010)
5 SCC 600 (2010) 2 SCC (Cri) 1299, Para 41.
[45] Live-in Relationship: Recent
Development and Challenges in India by Dr. Kalpana V. Jawale, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2046460
, last accessed on 9th February 2018.
[48]Ibid.
at Para 19.
[49]Ibid.
at Para 20.
[51] (2010) 10 SCC 469: (2011) 1 SCC
(Cri) 59: (2010) 4 SCC (Civ) 223.
[52]Ibid.
at Para 32.
[54] Shayra Bano vs. Union of India WP
C No. 118 of 2016.
[55] Ibid para 200 supra note 32.
[56] Section 3 - Any pronouncement of
talaq by a Muslim husband upon his wife, by words, either spoken or written or
in electronic form or in any other manner whatsoever, shall be void and
illegal.
Section 4- Any Muslim husband who pronounces talaq
referred to in section 3 upon his wife shall be punished with imprisonment for
a term which may extend to three years, and shall also be liable to fine.
[57] AIR 2006 SC 1158.
[58]Available at: https://www.business-standard.com/article/pti-stories/law-panel-wants-marriage-registration-to-be-compulsory-to-117070400893_1.html
, last accessed on 9th January, 2019.
[59]Available at: https://docplayer.net/184755179-Social-values-and-society-svs-doi.html,
Kittredge, G.L. Chaucer’s Discussion of Marriage in The Mercantile Tales (www.
Luminarium.org) last accessed on 13th April, 2018.
Article Information
Changing Legal Dynamics Of Marriage In India- A Forward Move
Authors: DR. SONALI ROY CHOUDHURY
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/28
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.