Changing contours of the institution of marriage in contemporary India

Family Law- I
Academic Year: 2023-2024

B.BA.LL.B(HONS.)

Semester: III

Submitted by

Gaurav Ghuge

UID-UGB22-15

Submitted to

Prof. (Dr.) Vijender Kumar, Professor of Law

Prof. Priti, Assistant Professor of Law

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

 Table of Content

1.1

Introduction...............................................................................................................................2

1.2 Research Objectives.............................................................................................................3

1.3 Research Questions..............................................................................................................3

1.4 Research Methodology.........................................................................................................3

2.1 Concept of marriage in Ancient Times................................................................................3

2.1.1 Concept of marriage in Medieval Times.......................................................................5

2.2 Structural and Functional changes in the system of marriage..............................................6

2.2.1 Changes occurring in marriage patterns........................................................................6

2.2.2 Change in the age of marriage......................................................................................7

2.2.3 Changes in the ceremonies involved in Marriage.........................................................8

2.3 The advent of live-in relationship in the context of marriage..............................................8

2.3.1 Legality of Live-in Relationships and its relation with marriage.................................9

2.4 Same Sex Marriages...........................................................................................................10

3.1 Conclusion..........................................................................................................................11

4. Bibliography.........................................................................................................................12

1
1.1 Introduction

Marriage is a vital social institution found in all societies around the world, despite having
various forms of companion choices and various varieties. One of the key themes of this
institution is that it authorised the alliance of male and female for the intention of building a
family, having children, and caring for the children. Marriage is the most fundamental and
significant unit of society because of the significance it plays in the creation of human assets
and the power it has to affect personal, domestic, and societal behaviour. It is also a
significant cause of emotional commitment, and interpersonal interactions, as well as a
connect between continuity and change. Change is a universal principle. Everything about the
world is changing. Social institutions such as marriage and familial relationships are also
being swayed by societal influences. Both entities have survived the ravages of time as well
as the surprises of centuries. While the family has primarily modified from joint to nuclear,
the marital institution in India has experienced massive shifts such as the age of marriage, the
expansion of separation, the decrease in cohabitation instances and luxurious investment on
it, and so on. Some modifications are beneficial to society, while others are detrimental. 1

The Indian subcontinent has seen a diverse variety of marriages. Marriage has evolved and
transformed in interesting ways over time, from historical Vedic religion to traditional
orthodox Hinduism, and ultimately to the era of social reform and female independence.
Some historic marriage types continue to exist, while others have faded away or have been
revamped as a result of India's strong winds of industrial development, urban development,
and global capitalism. The primary objective of marriage in traditional Hindu society was
dharma, or the fulfilment of one's duties. Marriage is regarded as a "sunnah" in Islam, which
every Muslim had to fulfil. As a result, there was a limited notion of 'individualism' in
marriage. As the conventional society evolved into a contemporary one, these contributing
factors have taken a back seat. The main motives now are to avoid a feeling of loneliness i.e.,
companionship, while all other motives being subordinate.

Marriages have almost always arranged type in the past. Dowry payments were common.
Hindus married within their broad caste group for about 90-95 percent of the time. However,
these characteristics are rapidly evolving. Parents and elders used to arrange marriages, but

1
Aryan, A. (n.d.). “Describe the changes in the institution of marriage in India. What accounts for it?
https://www.sriramsias.com/article/describe-the-changes-in-the-institution-of-marriage-in-india-what-accounts-
for-it-200226133900104/”

2
nowadays youngsters choose their own companions, though parents can try to influence them
because marriage primarily is still a family matter. What has evolved is who is in charge of
the entire process. Young people use various online websites like Shaadi.com to find partners
for themselves, instead of their family members. Tech-savvy Indians can now learn
everything they need to know about prospective partners by following their digital footprints
on social networking sites or simply sending text messages and calling them. Here, parents
enter the picture much later as compared to the previous decades.2

This paper will first explain marriage interpretation in ancient and mediaeval India before
comparing it to contemporary days. It would then proceed to discuss some substantial
transformations that the institution of marriage has seen in Indian society, as well as the
causes of such variations.

1.2 Research Objectives

 To understand the institution of marriage in ancient and medieval India.

 To understand and analyse the concept of marriage in contemporary India.
 To examine the recent changes and trends in the conception of marriage in
contemporary India.

1.3 Research Questions

 How was the concept of marriage different from ancient to medieval India?
 How has the concept of marriage evolved with respect to contemporary India?
 How is live-in relationship related to marriage?
 How has the concept of same sex marriages evolved?

1.4 Research Methodology

This project effort employs an analytical and instructive methodology. The primary focus is
on document analysis, and secondary elements like websites and postings have been utilized
to draw parallels. This endeavor is a doctrinal kind of analysis since it is research centered on
books, articles, and journals that can be accessed online. A study of several relevant

2
“Analysis: Same-Sex Marriage in India. (n.d.). https://www.legalserviceindia.com/legal/article-8025-analysis-
same-sex-marriage-in-india.html”

3
references—mostly from online sources—is one of the topics this research examines. There
were additional footnotes and references at the conclusion to credit the sources.

2.1 “Concept of marriage in Ancient Times

According to Manu smriti, the laws of Manu or Manava Dharma Shastra, there were eight
basic forms of Hindu weddings in ancient India: Brahma Vivah, Daiva Vivah, Arsha Vivah,
Prajapatya Vivah, Gandharva Vivah, Asura Vivah, Rakshasa Vivah, and Pisaka Vivah.
Similar to the case Koppisetti Subbharao v. the State of A.P.” The Indian Supreme Court
recognized the existence of these eight types of marriage. Even though not all eight marriages
were religiously sanctioned, it is said that in olden days, all of these marital forms were
recognised by many different groups of people. Only the initial four of these eight types of
marital relationship were accepted and empowered by the society. Marriage was firmly
established during the Rig Vedic era. In accordance with the Rig Veda, the intention of
marriage was to empower a man to conduct sacrifice to the divinities and procreate sons by
serving as a householder. Marriage (Vivah) was one of the holy sacraments that every person
had to go through, also known as the second stage of one's life as recommended by the
Ashrama dharma, Grihasthashrama (householder). Dampati is a term used in the Rig Vedic
times to refer to both the mistress and the master of the house, who is both wife and husband.
Marriage was widely used in ancient times to bring together the two different halves of life,
man and woman. Both husband and wife were just not independent entities that could be
divided, but rather two halves that made up an entire, solitary natural unity. Perfect humanity
could only manifest itself in their oneness. Marriage was regarded as a religious ceremony
during all those times because the family, rather than the person, was viewed as the political
and social entity. Marriage, according to ancient Hindus, is not an agreement that is entered
into to meet a temporary physical need or to appreciate good company for a short period of
time and then terminate it at the mildest discomfort. It is a stable union that endures life's
intricacies only to develop more stable and stronger.3

Swayamvara was deeply embedded in historical Vedas and had a dominance in mainstream
culture because it was the methodology used for marriage by Rama and Sita in the
Ramayana. Also, Dushyanta and Shakuntala's marriage in the Mahabharata was an
illustration of this marriage. The ritual of Swayamvars, which were organised by kings for
their daughters, which began in the Medieval Era. This way of marriage was regarded as a

3
S. (2017, March 20). “Institution of Marriage in Ancient India. Ithihas.
https://ithihas.wordpress.com/2016/10/26/institution-of-marriage-in-ancient-india/”

4
contemporary way of selecting grooms based on their qualities at the time, and they also gave
brides the opportunity to make their own preference. As the Vedic religion developed into
traditional religious Hinduism (around 500BC), Manu's social ideologies gained some
traction, and significant portions of Indian society shifted toward patriarchal and caste-based
rules. Manu and others criticised the Gandharva and other related methods, calling them
"relics from the time of promiscuity" that were only appropriate for a limited segment of
society. Women were deprived of their conventional autonomy and placed entirely in male
custodianship under the framework they advocated (sometimes called Manuvad): first of their
fathers in young age, then of their husbands throughout married life, and eventually of their
sons in old age. After getting married, women started to relocate to their partner's residence. 4

2.1.1 Concept of marriage in Medieval Times

In mediaeval India, except for those who chose asceticism, all girls in mediaeval India were
forced to marry. From the sixth or seventh century to the present, Brahmanical girls were
married between the ages of eight and ten. Polygamy was authorised for those who could
afford it, and it was particularly prominent among Kshatriyas for political purposes. The
Manasollasa states that the ruler should marry a Kshatriya girl of noble blood for a chief
queen, even though he can have Vaishya or Shudra wives for pleasure. However, there were
exceptional cases in the ancient age when women could rule empires, act as divine guides to
their sons, and take precedence over their male partners on political aspects. This divine
union of marriage occurred in eight various aspects. However, child marriage was uncommon
in ancient India, but it became prevalent in the mediaeval ages as a result of political anarchy.
Divorce, while not illegal, was uncommon. Marriage was viewed as a lifelong relationship,
but if the husband and wife got divorced, their assets were usually equally distributed, and if
there was any child, he/she used to stay with the mother. When a couple married, it was
customary for the husband to live with his bride's family, though the pair was sometimes
given their own place to live. The groom was expected to care for and support his bride's
family, and he was to be submissive to his mother-in-law.

The Mughal Empire was a fascinating period in Indian history. This is because Mughal
history is so recent that it blends with contemporary issues. Weddings during the Mughal era
were full of charm, display, and lavishness. From a historical and commercial point of view,
4
Sahgal, K. N., & Sahgal, K. N. (2022, March 31). “Same-sex marriage in India: Why are Indian courts taking
so long? – The Leaflet. The Leaflet – an Independent Platform for Cutting-edge, Progressive, Legal, and
Political Opinion. https://theleaflet.in/same-sex-marriage-in-india-why-are-indian-courts-taking-so-long/
s://blog.theweddingbrigade.com/blog/evolution-hindu-marriage-trends-indian-history/”

5
the Mughal Empire was not only a flourishing period, but the wedding ceremonies in this era
were substantial and unforgettable, ushering in a new era of history. Following any conquest,
all religious lands were generally seized, and the Ruler certified marriages among noble
families. The Ruler also established market and price controls for grain crops, clothing, and
other necessities. The revenue from land was expanded and made more productive. As a
result, the Ruler levied a highly centralised political structure. Despite the fact that the
Muslim rulers came to India as intruders, they adopted the nation as their own and settled
here. The liberal religious strategy and marriages among Mughal and Hindu princesses
brought about a period of knowledge between people of the two beliefs of Mughal marriages.
It also resulted in a tempering of the aggressive behaviour that characterised Hindu-Muslim
ties during the mediaeval period. Marriages in Mughal India also resulted in collaboration
between the Mughal emperors, Kshatriyas, and various other local landowners, which
provided a period of political stability for the country. Thus, Medieval law went through a
time of relative progress and stability at least until the era of Shah Jahan.5

2.2 Structural and Functional changes in the system of marriage –

Marriage is an indication of sociological, conventional, and religious norms, making marriage

study essential. Marriage and its traditions have been extensively studied by Indologists in
India. Marriage studies shed light on critical parts such as women's position in the society, the
relevance of faith and traditions in Indian society, and the significance of having children in
Indian families. However, in comparison to ancient and mediaeval India, the concept of
marriage has changed dramatically subject to socioeconomic, lawful, and scientific
advancements. Marriage today is much more flexible, which includes women participation
and an emphasize on individual preference and freedom. Examining these variations is
crucial, especially for legislators, because marital and family laws are based on the present
state of marriage.6

2.2.1 Changes occurring in marriage patterns

Traditional Hindu marriages regard "dharma" as the fulfilment of religious duties. Previously,
marriages were to fulfil sacred roles and responsibilities. The key responsibility was to grow

5
.Wedding in Mughal Period. (n.d.). IndiaNetzone.com.
https://www.indianetzone.com/28/wedding_mughal_period_indian_wedding.html
6
An Analysis of the Changes in the Institution of Marriage in India - International Journal of Law Management
& Humanities. (2021, September 14). International Journal of Law Management & Humanities.
https://www.ijlmh.com/paper/an-analysis-of-the-changes-in-the-institution-of-marriage-in-india/

6
into family kin and guardians. These sacrosanct types of relationships are fading as a result of
a variety of factors such as mainstream media, consumer culture, and globalisation. The goals
and objectives have shifted from respect, loyalty, and honesty to less respect, selfishness, and
dishonesty, among other things. “Though monogamy was the most common concept of
marriage in traditional Hindu society, polyandry, polygamy, bigamy, and marriage by
exchange were also common. Polygamy, polyandry, and exchange marriages have all
reduced significantly over time, and even most Indians now practise monogamy.”
Traditionally, parents chose a partner for their kids, and the wedding was strictly regulated by
ceremonies. The ceremonies were very structured, with the goal of pleasing the boy's family
as much as feasible. Today, many youngsters choose their own companions and chose court
marriages to avoid debates between families over ritual practices. In other cases, people
acknowledge their children's decision and take charge of formalising the relationship with
great fanfare. Previously, the boy and girl were not permitted to cross paths prior to the
marriage. They only saw each other on their wedding day. It ultimately led to telephone calls
and a few conversations in the existence of a member of the family before getting married.
However, in the twenty-first century, both partners seek to spend as much time as possible
together. Contrary to the past, many girls work before getting married and express their wish
to continue working after marriage as well. As a consequence, girls are able to balance their
professional and private lives successfully. As a result, the line between gender stereotypes
has blurred. Boys and girls are now equally involved in domestic duties. Girls, on the other
hand, provide financial assistance in times of need. Increased female workforce and the
number of women-centric laws have contributed to financial and intellectual empowerment
for women. It is now difficult to expose her to any type of exploitation because she has
everything, she needs to live an independent life.7

2.2.2 “Change in the age of marriage

When it comes to marriageable age in India, it is discovered that children used to marry at a
young age, especially girls. In certain cases, such as Rajasthan, girls were married when they
were of three-four years of age, even though they had no idea what a marriage meant. In
traditional Indian communities, the marital system was heavily dependent on arranged
marriages from a young age. To maintain the dignity of the family, female sexuality had to be
strictly controlled. Wives and husbands should not be overly emotionally connected, as this

7
Darlong, J. L. (2021, November 9). Marriage – Types, Rules and Changes. Sociology.
https://www.sociologylens.in/2021/11/marriage-types-rules-and-changes.html

7
may jeopardise” the paternalistic family's harmony. Early marriage protects adolescent
women's modesty, labels a radical departure from their natal households, increases their
likelihood of accepting the strict hierarchy in their new family, and hinders the husband-wife
bond. There is a significant change now as a result of several factors such as technology and
increased awareness between girls. Legally, girls can marry at the age of 18 and boys at the
age of 21. Furthermore, with the advent of professional learning, children are occupied with
studies for a longer period of time, causing marriages to be postponed by 25-30 years.

In recent times, to put women on an equitable ground to men, Prime Minister Narendra
Modi's NDA government has decided to increase the legal marriage age for women from 18
to 21 years. As per Prime Minister Modi, raising the legal marriage age will encourage girls
and enable them to advance in their careers. Which will further help breaking the stereotype
of marrying girls at a very young age and promote equality among both the genders.

2.2.3 Changes in the ceremonies involved in Marriage –

Customarily, Hindu marriage is a religious ceremony, and Hindu marriage can actually
happen only after certain rights and traditions are fulfilled. Kanya Dana, Vivaha Home,
Panigrahana, Agni Parinayana, and Saptapadi are some of the most important Hindu marriage
rites and ceremonies. However, some modifications have taken place in the ceremony and
rites of marriage in recent years. On one hand, due to a lack of time, the customs and rituals
associated with the Hindu marriage have been reduced. In general, people have been known
to request that the priest to speed up the wedding ceremonies. Some marriages, on the other
hand, are also performed in civil courts.

As a result, the sacred nature of rituals and ceremonies has been significantly decreased.
Aside from that, the Arya Samaj movement has refined marriage rites and rituals. One other
component contributing to the downturn in the religiosity of marriage is that Indian
community as a whole is shifting from a sacred to a secular nature, and as a consequence,
traditional values are changing dramatically.8

2.3 The advent of live-in relationship in the context of marriage –

Marriage is still regarded as a holy and immortal union in Indian society. However, as times
change, Indian society is gradually becoming more open to western civilization and way of

8
Mondal, P. “(2013, December 10). Changes in the Marriage System of Hindus in Modern India & ndash;
Essay. Your Article Library. https://www.yourarticlelibrary.com/marriage/changes-in-the-marriage-system-of-
hindus-in-modern-india-essay/4376”

8
living, and one of the most important episodes among them is the idea of live-in-relationship.
Live-in relationships have a distinguishing feature of way of living for many couples,
particularly those in metro regions. The number of unmarried men and women living together
is increasing by the day. Coexistence or live-in relationships are not illegal in India, but they
are viewed as ethically and socially inappropriate.

Individuals choose to have a live-in relationship to test the compatibility of two individuals
before getting technically married. It also protects partners from the chaos of family drama
and long legal procedures in the event that the couple intends to divorce. Whatever the
reason, it is clear that in a traditional society such as ours, where the institution of marriage is
regarded as "sacred," an escalating number of couples prefer a live-in relationship, even as a
long-term plan, to marriage.

2.3.1 Legality of Live-in Relationships and its relation with marriage

Live-in relationships are not specifically governed by legislation in India. The status of
children conceived by such men and women, as well as the rights and duties of participants in
a live-in relationship, are not defined by law. The legal status of live-in relationships is
likewise unclear because there is no such thing as a live-in relationship. Under Indian law,
there are no rights or responsibilities for parties in a live-in relationship. Nonetheless, the
concept of a live-in partnership has been clarified by the court through judicial interpretation.
The notion of a live-in relationship was recognised by the Allahabad High Court in Payal
Sharma v. Nari Niketan9, where the Two - Judge bench of Justice M. Katju and Justice R.B.
Misra stated, "In our opinion, a man and a woman, even without getting married, can live
together if they wish to. Society may regard this as immoral, but it is not illegal. “There is a
distinction to be made between law and morality.” Following that, the Court held in Ramdev
Food Products (P) Ltd. v. Arvindbhai Rambhai Patel that two individuals in a live-in
relationship without a civil marriage are not lawbreakers. This judgement was then extended
to a number of other case scenarios. In Madan Mohan Singh v. Rajni Kant 10, the Court ruled
that a long-term live-in relationship cannot be called a “walk-in and walk-out” relationship,
and that there is a presumption of marriage between the two individuals. The Court's
initiative clearly indicates that the Court prefers to recognise long-term living relationships as
marriage instead of just creating a new idea such as a live-in relationship. “The Supreme

9
2001 SCC OnLine All 332.
10
(2010) 9 SCC 209

9
Court ruled in the landmark case of S. Khushboo v. Kanniammal11 that a living relationship is
protected by the right to life under Article 21 of the Indian Constitution. The Court also ruled
that live-in relationships are legitimate and that the initiative of two adults living together is
not a criminal or an illegitimate act.12”

In the case of “D. Velusamy v. D. Patchaiammal13 it was suggested that, Under the 2005 Act,
a relationship, such as marriage, must agree to some basic criteria. It states that the couple
must be of legitimate marriageable age or be competent to sign a legally binding marriage. It
was also asserted that the couple must have wilfully cohabited and presented themselves to
the world as married people for an extended period of time. Hence, the Act of 2005 shall not
apply to every type of live-in relationship. Having spent a week with someone or having a
one-night stand does not constitute a domestic relationship.”

Recently, in a landmark case, the Supreme Court addressed the issue of live-in relationships
in depth and established the prerequisites for a live-in relationship to be granted the status of
marriage. In Indra Sarma v. V.K.V. Sarma14, the Supreme Court bench comprised of K.S.P.
Radhakrishnan and Pinaki Chandra Ghose, JJ. held that “when the woman is aware of the fact
that the man with whom she is in a live-in relationship and who already has a legally wedded
wife and two children, is not entitled to various reliefs available to a legally wedded wife and
also to those who enter into a relationship in the nature of marriage.”

Hence, because of this broad judicial interpretation people are accepting live-in relationships
but they are in minority. Live in relationships still remain a taboo in Indian Society.

2.4 Same Sex Marriages

Homosexuality has a long history in India, as evidenced by several manuscripts dating back
to prehistoric times. Sexual encounters between women are depicted as disclosures in a
feminine universe of joy and procreation in ancient scriptures such as the Rig Veda, statues,
and relics dating back to around 1500 BC. However, with the emergence of Vedic
Brahmanism and later British colonization, these encounters began to fade and the Western
point of view strongly influenced reproductive expectations regarding sexuality after colonial
development.15
11
(2010) 5 SCC 600.
12
https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-judiciary/
13
(2010) 10 SCC 469
14
(2013) 15 SCC 755
15
Jain, A. (2022, June 12). ‘No reason to hold them back’ — how courts have become a support
system for same-sex couples. ThePrint. https://theprint.in/india/no-reason-to-hold-them-back-how-courts-have-

10
Over the last century, the concept of homosexuality started shifting substantially.
Homosexuality was no longer regarded as an irregular activity after 1974 and was therefore
removed from the psychiatric illness category. This was also decriminalised in several
countries, including India, in 2018. Also, in the landmark judgement of NALSA v. Union of
India in 2014, recognised the constitutional rights of the third gender for the first time.

In India, marriage is a traditional ethnic and cultural relationship that is exclusively known as
male-female, despite the fact that most marriage laws use gender-neutral nomenclature.
Although there have only recently been so many circumstances of homosexual marriages
being accepted, culture is gradually becoming liberal. This change is also reflected in Navtej
Singh V. Union of India, in which the Supreme Court struck down Section 377 of the IPC.
“The Supreme Court of India stated unequivocally in this case that mutually consented and
personal same-sex activities between two adults are an essential component of one's privacy,
but the court did not make the demarcation between the private and public spheres explicitly.
In its judgment, the jury talked a great deal about the sociocultural marginalization and
humiliation faced by the Indian LGBTQIA+ community, but by restricting itself to the realm
of the private realm, it is left to one’s own intellectual curiosity that whether the marriage was
public or private. Anyways, marriage can be both a private and public affair – just like
sexuality.16”

Even after this landmark judgment, the implementation of this in Indian society is a tough
task. Because India is a country whose roots are deeply embedded in cultural ethics and
morals the concept of same-sex relationships is very new to this society and it is still
considered a taboo and is stereotyped among others. Also, Multiple petitions are now subject
to review before the Delhi High Court desiring to recognise same-sex marriages in India
under the Special Marriage Act, Hindu Marriage Act, and Foreign Marriage Act, etc. In
reaction to these pleas, Tushar Mehta, Solicitor General of India, appearing on behalf of the
Union Government, made a few inferences in October last year. He claimed that "the terms
“spouse” and “marriage” in the Citizenship Act only referred to heterosexual couples,
effectively excluding same-sex couples.”

This clearly indicates that Indian society needs to evolve more to accept same-sex marriages
in the surroundings that they live in.

become-a-support-system-for-same-sex-couples/990223/
16
Sahgal, K. N., & Sahgal, K. N. (2022, March 31). Same-sex marriage in India: why are Indian courts taking so
long? – The Leaflet. The Leaflet – an Independent Platform for Cutting-edge, Progressive, Legal, and Political
Opinion. https://theleaflet.in/same-sex-marriage-in-india-why-are-indian-courts-taking-so-long/

11
3.1 Conclusion

Marriage is a socially approved union of two or more individuals that affirms certain rights
and responsibilities between the partners and their children, as well as between the married
people and their in-laws and the outside world. With the advent of this new western culture a
lot of changes have been observed in the mindset of the society. But still the Indian culture
remains a bit stereotype and more acceptance is required from the society for every kind of
marriage including same sex marriages to gain legality.

4. Bibliography

 Gaganpreet Kaur and Sukhdev Singh, “Changing patterns of marriage in Indian

society”, INDIAN JOURNAL OF ECONOMICS AND DEVELOPMENT, 2013, pp.
9-13.
 Astha Saxena, “Live-In Relationship and Indian Judiciary”,
https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-
judiciary/, 2019
 Puja Mundal, “Changes in the Marriage System of Hindus in Modern India”,
https://www.yourarticlelibrary.com/marriage/changes-in-the-marriage-system-of-
hindus-in-modern-india-essay/4376.
 Ishank, “Analysis: Same-Sex Marriage in India”,
https://www.legalserviceindia.com/legal/article-8025-analysis-same-sex-marriage-in-
india.html.

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