Author: Sukhkamal Walia
UILS, Panjab University
According to Ameer Ali, “ Marriage is an institution ordained for the protection of the society and in order that human beings may guard themselves from foulness and unchastity.”
EVOLUTION OF THE PHENOMENON OF MARRIAGE
Basically, Marriage is derived from various obsolete words to the current contemporary usage. Therefore, It is evolved from three segments, from the old French word “Marrier” to “Mariage”and lastly to the well known “Marriage”.
It is asserted that marriage is a tie or union between the two sexes for the procreation of children; it was also instituted for the comfort of life, and is one of the prime or original necessities of a person and for the regulation of social life in the interest of society.
In the primitive phase of life, there was no a specific relation between man and woman, the bond was unknown.Thus, the institution of marriage did not exist. The main objective of the people was to fulfill the primary needs as the man lived more like an animal, absence of secondary wants can be determined from the ancient texts. Consequently, the circumstances led to the licentious indulgence, the intimacy remain so unregulated that the paternity of child remained obscure. After some advancement and the proper discoveries of milch cattle and fire, a sense of ownership and possession clicked in the minds of inhabitants. Moreover, with the specific utilization of the resources, a sudden security infused related to the realm of family relationship came into notion. Afterwards, the relations were only permitted to the groups only. Thus, a sense of endogamy can be traced here. Exogamy was strictly prohibited. As an end result, the relationships in close proximity got abstained. The dissolution of union being as a simple matter as entering it. It is quite evident in the Roman civilization that marriage and divorce were easy matters. Hence, foundation of patriarchal stage came into existence empowering him with the corporeal chastisement and a power to kill his partner in the charge of infidelity. In that course of time, the institution of marriage came into force an an new era came into existence.
MARRIAGE AS SACRAMENT
Marriage as a sacramental union entails that it is sacred or sacrosanct. Under the Shastric Law, marriage was conceived as a holy union.
According to Brihdaranyaka Upanishad, marriage was considered as a sacrament, a holy union, a union of flesh with flesh, bone with bone and soul with soul to continue even in the next world.
According to Ramayana, wife as considered as half of the male, dharam-patni, a friend and adviser to be associated by the husband in all religious rites and ceremonies.
Rig Veda has declared:
“Be thou mother of heroic children, devoted to the Gods, be thou Queen in the father- in-law’s household. May all Gods unite the hearts of us two into one.”
According to Satpatha Brahmin, “ the wife is verily the half of the husband.”
Lord Shiva is shown as Ardhnarishwar, which means half man and half woman.
Marriage became one of the sacraments during a period when the church was taking control of marriage. Kenneth Stevenson famously spoke of the church’s “taking over” marriage during this period. He was referring chiefly to new liturgical practices, but these were aspects of a wider development that was above all about law and jurisdiction. The phrase “taking control” is more apt than “taking over,” however, for the church was not wresting control from a competing authority.
Peter Lombard defines marriage as “the marital union [coniunctio] of a man and a woman, between legitimate persons, holding together an indivisible way of life.” He depends partly on Gratian for this formula, which is a variant of the definition from Justinian’s Institutes. The addition of “between legitimate persons” follows in the tradition of the Cum omnia sacramenta and Hugh. The Lombard reverts to the legal tradition by defining marriage as a coniunctio (union or joining), and not as consent, but the term remains ambiguous, for it might denote either the act of marrying, which entails consent, or the resulting marriage.
Marriage taken place under sacred rituals and ceremonies is solely known as absolute as it is known as holy and united union which is valid not merely in this life but in the lives to come. A sense of faithfulness is supposed to be required on the wife`s side for the marriage to be pacified. It is regarded as a rule that marriage is a dissoluble union.
MARRIAGE AS CONTRACT
Marriage contracts are nothing new. For hundreds or even thousands of years, marriages have been based upon agreements between families and nations. Marriages were arranged by the parents in order to enhance family fortunes and keep peace between families and countries. Most people do not fully appreciate the legal rights and obligations that are created when they marry. The legal aspects are often overlooked until it comes time for divorce. Then they find out that marriage is easy to get into, but difficult to get out of. The death of a spouse can also cause various problems with the couple’s property. When you get married, the law gives you and your spouse certain rights in each other`s property. This includes property you acquire during your marriage, and may include property you acquired before you got married. The law also has provisions for how this property is handled in the event of divorce or death. A prenuptial agreement might be considered a will for the death of a marriage. In the era of modernization, the notions of equality and liberty groomed up which brings an enlightenment among suppressed sections of society especially among women to recognize their rights and duties seriously. An emergence of industrial revolution infused a sort of being independent and more reliable on oneself rather than others. The patriarchal theme of domination and volition on women started diminishing and a covenant came into force initially in Western countries presumed as a Prenuptial Contract in which both the partners lay down some conditions based on rationality and within the sphere of legal authorities, with the intent that no chauvinism and volition takes place and a woman can live a free life not as slaves as they were deemed to. How a court looks at a prenuptial agreement may depend upon the husband’s and wife’s situations and the type of prenuptial agreement. Prenuptial agreements may be divided or broken down into three types of provisions:
- Those concerning the division of property upon the death of one party;
- Those that simply designate each party’s separate property being brought into the marriage; and,
- Those that concern rights in property acquired during the marriage.
Any prenuptial agreement may contain one or more of these types of provisions.
ADVANTAGES OF PRENUPTIAL CONTRACT
- It serves as a guardian of rights of children and grandchildren from the broken marriages.
- Safeguarding one`s assets and interest of property especially from the spouse after the separation or divorce.
- Shielding the spouse from the drifting of debts/loans/liabilities of his/her spouse.
- Prevention of legal battle in the pursuit of deciding the alimony or maintenance prior.
DISADVANTAGES OF PRENUPTIAL AGREEMENT
- Loosing the right to inherit spouse`s property.
- Any rise in business of spouse owing to other spouse, the latter cannot claim that surge as per the premarital conditions.
- Lack of trust between couple.
- Endanger the pureness of a relationship.
WHAT MAKES A PRENUPTIAL AGREEMENT UNFORCEABLE?
- Agreement not made voluntarily
- Agreement unconscionable when signed and prior to signing, party objecting to enforcement did not know other party’s finances and was not given fair and reasonable disclosure
- Alimony waiver, if it would make waiving spouse eligible for public assistance
- Annulment, unless result would be inequitable
- Subject of agreement against public policy or criminal laws
- Agreement is not a “fair and reasonable” relinquishment of surviving spouse’s rights and there was no “frank, full, and truthful” disclosure of rights being relinquished.
CONCEPT OF MARRIAGE UNDER HINDU LAW
It is widely accepted that marriage in Hindu law is determined as a sacrament. The Vedic texts whether Smritis, Srutis, Dharamshastras and Digests and Commentaries portrays the aspects regarding marriage as source of salvation(Moksh) and is a symbol of purity but in reality it was just delusional, the patriarchal rule can be apprehended from the ancient texts. Every obligations or regulations are only imposed upon female section only as it can assumed that the “rule makers were only the males.” Customs and rituals always subordinate females. To halt the discriminatory rules in the name of sacrosanct, The Hindu Marriage Act,1955 enforced in order to put full stop on exploitation of women. This act consists of codified and uncodified laws , all are put together in a same stream and interpreted it according to the present situations with keeping an eye on future too. It shaped the family disputes resolution into a specified law. To end the gruesome practice of child marriage, Section-5 was introduced which specifies the ages of bride and groom as eighteen years and twenty-one years and propounded an utmost element known as “consent” which had no place in the history as consent of woman was not termed as essential and every matter was decided by her family members. Since this provision was added, the term “sacrament” has now an amount of consent also. Marriage of minor and a person of mentally incapable is regarded as void ab initio. Whereas in past, it was duty of wife to serve his unsound husband till the end of his life. In the sub section 5, the marriage between sapindas is prohibited as to cease the loose sex relationships among people. Evidently, the proposition of the act quashes the conditions of the sacramental union. Initially by establishing the aspect of “DIVORCE.” According the ancient sources, marriage is a holy union which one cannot break it as by marrying each other, both the partners are united for seven lives. Secondly, the Widow Remarriage act which was instituted in 1856 by keeping in view the betterment of widows and lastly the characteristic, to marry under the sacred or religious ceremony, which has importance in present too but in some aspects it has little value as court marriages has been introduced which do not constitute any ceremony rituals as there is only need to sign the documents with an witness by there side. Therefore, the several advances lead the change of the facade of Hindu marriage as sacrament to contract but it is neither a full sacrament nor a complete contract, it is a combination of both.
CONCEPT OF MARRIAGE UNDER MUSLIM LAW
Muslim law is founded upon revelation and is blend with religion. Marriage under Muslim law is considered as civil contract. Woman does not lose her individuality after the marriage. As on the basis of contract, woman can transfer her property to anyone without any justification; she remains the absolute owner. She can enter into binding contracts with her husband and proceed against him in the courts. Islamic mahr (also sometimes called sadaqa or faridah), a kind of premarital agreement, involves the promise of payment of a certain sum to the wife. Occasionally this payment is made prior to the marriage, but usually it is held to be due after the termination of the marriage. The majority interpretation appears to be that this post-marriage payment should be above and beyond the civil law division of property and obligation of alimony; however, a minority view argues that the mahr payment is in lieu of any post-marriage financial obligations of husband to wife.
Justice Mahmood`s observation of marriage is a civil contract cannot be appreciated only because that upto some extent marriage resembles with civil contract. After observing minutely it will be found that besides some similarities there are so many basic differences between the two. For instance.
Muslim marriage is not merely a civil contract, because:
- Unlike civil contract, it cannot be made contingent on future event; and
- Unlike civil contracts, it cannot be for a limited time ( muta marriage is an exception.)
- Unlike civil contract, the analogy, of lien cannot be applied to a marriage contract. Secondly, the contract of the sale of goods may be cancelled by unpaid seller. He may resell the goods by rescinding such contract, whereas in a contract of marriage, the wife is not entitled to divorce her husband or to remain with a third person if a part of his dower remain unpaid.
CONCEPT OF MARRIAGE UNDER CHRISTIAN LAW
The Indian Christian Marriage Act, 1872 was enacted on July 18, 1872. Marriage under Christian community is regarded as covenant. The age of the bride and groom must be of 18 years and 21 years.The marriage must be done between 6a.m. and 7p.m. It ought be done under the supervision of marriage registrar. The agreement between the both parties should be voluntary not based on the undue influence, coercion or fraud. There is a provision of Indian Divorce Act, 1869 under Christian law. Marriage is considered as a divine institution by God. Three way contract is instituted in Christian law, initially among God,man and woman, secondly between couple and the state. The sacrifice is considered as an integral aspect of marriage under Christians. In Christians, woman is regarded as on the equal partner as man. The essence of marriage can be found under Biblical imagery and prophecy.
Without any doubt, Marriages under every law is regarded as a holy union of two souls but it differs in nature as in Hindu law, marriage is considered as sacrosanct but in the nuance, it is a combination of sacrament and contract whereas as in Muslim law, the extent of marriage is limited as on contract basis and lastly in Christian law, marriage is termed as a covenant.