Department of History Fatima Mata National College (NAAC Accredited) Kollam-1, Kerala

WOMEN AND MARRIAGE LAW IN INDIA: A HISTORICAL PERSPECTIVE

Marriage is an important social institution and it still exists as a well established foundation for the family. Legally the idea of marriage refers to a united husband and wife according to the social law, so throughout their life, fulfilling their duties to the society and to each other. In any legal system the marriage will be legal only if it has formal validity and essential validity. Formal validity is determined by the marriage ceremonies of the place or lex loci celebrations whereas the essential validity is determined by the personal law of the parties or the law of the place of residence or lex domicilli.1 The position of a married woman as the mistress in the home is very important in nation building. Any calamities like war, epidemics, financial crisis and the negative personality traits of the husband like drunkenness and immorality and treatment of relatives often affects her existence and that of the children and those who are being nursed by her. This can be cited as the backdrop for the formulation of social, religious and state laws in its different stages. In this paper I would like to address the different laws that existed in India and see how they evolved. We have no evidence showing us the nature of family life and the status of the married belonging to the pre- Vedic age. But the Rig Veda, the only source for a study relating to the period reveals that the Indian thinkers seem to have visualised an organised society with a set of laws. Vedic age speaks of the prevalence of a healthy marital relationship. The ideal of marital life was never parting, united pair, sharing the same married pleasures. There was a complete surrender on the part of the wife to which her husband responded and which he returned in full measure.
2

The Taittriya

Aranyaka Brahman states that a man continues to be half as long as he remains a bachelor, but after marrying a wife he becomes complete. The wife is the husbands ardhangini and the marriage ritual seeks to stress and reinforce this conjugal intimacy. Vivah (marriage) and Kudumba (family) become essential to start his or her life in the Grihasthasrama (the householders life). The objectives of marriage were defined to be dharma, praja (progeny), and rati (sex). The patni (the wife) came to be regarded as one who shared in the sacrifice. 3 But during the latter Vedic period the sanctity of marital life started deteriorating. A man could marry another woman in case he had no male progeny through the first wife. 4 In 'Shatpath Puran a sonless women has been termed as unfortunate.5 The Smritis regarded marriage as an essential Sanskar. A wife was not just a patni or grihapati but a dharmapatni. Since progeny was the most important factor, a husband could procure numerous wives for this purpose.6 The husband was bound to maintain the wife despite all her faults including a quarrelsome nature, neglect of household, barrenness and adultery, though the scale at which she had to be maintained would go down as per the severity of her faults. He could marry again, but he was under the legal obligation to continue to maintain the first wife. 7 For Manu marriage should be done early, as soon as the maiden attains marriageable age. If she stays in her fathers house for more than three years after attaining puberty, she is called Vrishala or a Shudra, i.e., a very low type. Manu prescribed eight methods of consecrating a marriage union. Six of them are lawful (Brahma, Daiva, Arsha, Prajapatya, Gandharva and Rakshasa) and the remaining two unlawful ( Asura and Paishacha).
8

Manusmriti says, "Let

women be always propitiated (worshipped) by their fathers and brothers, by their husbands and the brothers of their husbands, in other words, they should speak sweetly to them and provide them with good food, nice clothes and ornaments, and thereby keep them happy. Those who seek great prosperity and happiness should never inflict pain on women."
9

Though divorce and remarriage of divorcees is allowed in Manu

Smriti, widow remarriage is sanctioned only if the marriage has not been consummated, otherwise the widow (or widower) is to practice Brahmacharia. If the widow has to continue the family line, they are either to adopt children or apply to a

contract called 'niyoga', where a chosen man fathers children for her husband's lineage.
10

According to Manu ,"If the husband does not please his wife, she being unhappy,
11

the whole family is unhappy and miserable; but if the wife be quite contended with her husband, the whole family enjoys felicity." Manu states Where women are honored (worshipped), in that family great men are born; but where they are not honored, there all acts are fruitless. Where women pass their days in misery and sorrow because of the misdeed (such as adultery) of their husbands that family soon entirely perishes, but where they are happy because of the good conduct of their husbands, the family continually prospers."
12

Both Manusamhita and Arthashastra says that, if the husband

is impotent, a traitor, evil-liver, has become an ascetic or an outcast or is missing for a prescribed number of years, then the wife can leave him without blame and marry again. Arthashastra also declares that in other circumstances, divorce can take place only by mutual consent.13 Jains regard marriage as more or less a worldly affair. Marriage and family raising are recommended to all the Jains. Jainism advocates the peaceful co-existence and interaction of two different living organisms in mutual beneficence or mutual dependence. Life is regarded as a gift to be shared together, helping each other to exist and grow.14 To Buddhism women are hot tempered, jealous, envious and stupid. Buddha said, Crying is the power of the child; anger is the power of women. 15 The Great Renunciation is holy and divine to a Buddhist, but it can be interpreted as an unreasonable act of divorce. But the marriage rules and divorce in Buddhism are liberal. Polygamy existed in the Buddhist community. 16 It has been argued that the marital status of women began to decline with the advent of the Muslims. Jauhar was started to escape from captivity by the Muslims. The powerful Muslims started marrying Hindu women forcibly converting them to Islam. 17 The girls came to be married at an early age among the Muslims. But Akbar passed orders prohibiting marriage of girls before 14 years and boys 16. 18 Widow remarriage

began to disappear except among the lower classes. Strict moral control was imposed on the widows and this made their life deplorable. Many of them turned into whores. 19 The leaders of the Bhakti Movement emphasized devotion to God rather than service to the husbands for redemption. According to Eknath an aspirant must keep himself aloof from the influence of women. Thukaram declares, Give me the company of women, for by them I forget Gods worship and my mind goes beyond my control. Kabir called a woman, a hellish well. Shankaracharya treated women as a gateway to hell. 20 Lotika Sarkar argues that before independence the law governing the Hindus was Hindu Law but that law was in an extremely confused state. There were two schools Mitakshara and Dayabhaga- governing the Hindus and in addition there were a number of sub-schools. The underlying principle in all the schools governing the Hindus, was the unequal status of woman and her subordinate position to the male. This was clearly evident whether the law was governing marriage, adoption, succession or guardianship of children.21 The advent of the British and the missionary activities brought new trends in the position of marriage and divorce in India.The activities of the missionaries gave way to Hindu revivalism. Raja Ram Mohan Roy who is acclaimed as the Father of the Indian Renaissance opposed sati and polygamy and encouraged widow- remarriage.
22

Until 1858, the British rulers concentrated on consolidating their political base, and were cautious about their policy and actions regarding religious beliefs and traditions. They did modify certain practices, on the grounds of public demand (stimulated by the social reformers) and humanitarian consideration for the woes of women, by enacting such legislation as the Bengal Sati Regulation Act of 1829, the Caste Disabilities Removal Act of 1850 and the Widow Remarriage Act of 1856.
23

In 1856, the Widow

24

Remarriage Act was passed which validated the marriage of the widows.

After 1858,

they adopted a continuous policy of not disturbing the traditions of Indian society.

The Indian Penal Code enacted in 1860, two years after the take over of the administration of the companies' territories by the Crown provided, 1. Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her or any relative of her husband for or in connection with , any demand for dowry, such death shall be called dowry death. 2. Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. 25 Native Converts' Marriage Dissolution Act, 1866, allowed a Hindu to appeal for a divorce if a spouse converts to Christianity. 26 In 1874, The Married Womens Property Act was passed and this enabled married women to inherit family property.
27

The

Child Marriage Restraint Act XIX if 1929 ( Sarada Act ) punished the parties concerned if the marriage was performed in contravention of the law which prescribed 14 years for the girl and 18 years for the boys as minimum ages. 28 The highest aim of marriage for Gandhi was spiritual maturation, followed by service to society, duties towards the family and ancestors, and mutual attraction between husband and wife.29 Nehru wanted women to have a share in the property of their fathers and husbands.
30

The national leaders had really realised the importance of

empowering women through legal protection. In the twentieth century many womens associations came forward to fight for the amelioration of the grievances of women. All India Womens Conference conducted campaign against early marriage, polygamy, purdah, dowry, and pleaded for widow remarriage and the property right for women. In view of these developments we find many laws for providing protection to married women and prohibiting illegal divorce were enacted during the post- independence era.

Clause (1) of Article 15 provides that the state shall not discriminate between citizens on grounds of religion, race, caste, sex, place of birth or any of them. Clause ( 3) of Article 15 of Article empowers the state to make special provisions for the protection and welfare of women.
31

The Indian Criminal Procedure Code of 1973 provided for a

thorough police enquiry into the suicide by a woman within seven years of her marriage and suspicious death of a woman seven years of her marriage. Such cases should be forwarded to the Civil Surgeon for examination. The District Magistrate or Sub-divisional Magistrate or any other Executive Magistrate specially empowered on this behalf by the State Government or the District Magistrate were empowered to hold inquests.
32

Section 304-B, of 1986 provides for imprisonment of not less than seven

years but which may extend to imprisonment for life in the cases of dowry death. Section 498-A provides for a punishment for three years and fine to the husband or the relatives of husband for subjecting a woman to cruelty.33 According to the Special Marriage Act of 1954 the male should have completed the age of twenty-one years and the female the age of eighteen years at the time of marriage.
34

Any marriage solemnized under this Act shall be voidable and may be

annulled by a decree of nullity, if- (i) the marriage has not been consummated owing to the willful refusal of the respondent to consummate the marriage; or (ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or the consent of either party to the marriage was obtained by coercion or fraud.35 But in India as personal law is dependent on the religion of the parties there is no common personal law for the inhabitants of a place. Each community has its own personal law and consequently the concept of marriage has no uniformity. All major religions have their own laws which govern divorces within their own community, and separate regulations exist regarding divorce in interfaith marriages. Hindus, including Buddhists, Sikhs and Jains, are governed by the Hindu Marriage Act, 1955; Christians by the Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act, 1936; and Muslims by the Dissolution of Muslim Marriages Act, 1939, which provides the grounds on which women can obtain a divorce, and the uncodified civil law. Civil

marriages and inter-community marriages and divorces are governed by the Special Marriage Act, 1954.36 The Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands. A divorced woman shall be entitled to (a) A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) Where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children ; (c) An amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law ; and (d) All the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
37

Five main reasons are generally accepted as sufficient grounds for

divorce- Adultery, Desertion, Cruelty, and Impotency. 38 The Christian law concerning marriage and divorce began to be to be practiced among the Christian converts. The Bible stands sternly against divorce and so Christianity never sanctions divorce, except in the case of unfaithfulness in marriage. The devotees were instructed to love their spouses as Jesus loves the church. But the Indian Divorce Act permits divorce for adultery, desertion for three years, imprisonment for seven or more years, cruelty, unsound mind, leprosy, absence of news about the husband for seven years or more, lapse of two years after the passing of judicial separation, failure to comply with a decree of conjugal rights or when both parties together request the court that they have been living separately for a period of one year or more, that they have been unable to live together and that they have mutually agreed that the marriage should be dissolved.39

Dowry is an evil practice and it has been one of the reasons for breaking up of marital relations. Psychological reports reveal that it is very difficult to settle the family problems arising out of dowry. Government of India has made much legislation to prevent the causalities emanating from the question of dowry. The Dowry Prohibition Act, 1961, stated that if any person demands directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which may extend to ten thousand rupees. Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.40 The Dowry Prohibition ( Maintenance of Lists of Presents to the Bride and Bridegroom), Rules, 1985 mentions that the list of presents which are given at the time of the marriage to the bride shall be maintained by the bride and the list of present to the bridegroom shall be maintained by the bridegroom.41 To conclude, I would like to say that the irrational and to some extent male-made laws, the lust of men for bigamous life, distortion of religious texts and the exploitation under the mask of fake spirituality subordinated the Indian women and consequently they had to suffering lots of severity in marital life. The philosophical system, religious precepts, the colonial and post-colonial developments have also really determined the welfare of married women in the Indian society. In the beginning, agitations for the amelioration of their grievances first formed a part of the general social awakening. Later, it merged with the national movement, but this provided the necessary training for their women to organise movements of their own. At present, men have their hold in the activities of the womens associations for they are working as the branches of political parties. It can also be observed that other than the legal protection guaranteed through the Acts relating to marriage, the court judgments have also reinforced the protection of women in marital life. However the lack of a uniform law for guiding the marital life of womanhood has been pointed out as a grave problem by the jurists and the women activists. ..........

NOTES
1. Archana Parasar, Vivahathile Sangharsha Khattangal,( The Conflicting Stages in Marriage), Stree Neethi (Gender Justice), V. M. Rajalekshmi, ed.,Trivandrum,1996, p.58. 2. Bhagavat Saran Upadhyay, Women in Rig Vedas, Banares, 1941, pp. 130. 3. Taittriya Aranyaka Brahman, Anandasharma Sanskrit Series, Vol. III, trans. A. B. Keith, 1927, p. 1. 4. Neelam Upadhyaya and Rekha Pandey , Women Past and Present, 1990, p.7. 5 http://humanists.net/avijit/article/women_in_hindu_purans 6. Flavia Agnes Plurality of Hindu Law and Womens Rights Under it, Womens Law in India, New Delhi, 2004, pp.13-14. 7. Ibid. 8. http://en.wikipedia.org/wiki/Manusmriti 9. Ibid., V: 151-156. 10. Ibid. 11. Ibid. 12.Ibid. 13. http://en.wikipedia.org/wiki/Women_in_Hinduism#Marriage. 14. http://india.mapsofindia.com/culture/indian-weddings/jain-wedding. 15. Albert Schweitzer, Indian Thought and its Development, Bombay , 1960, p.95. 16. Anjani Kant, Women and the Law, New Delhi, 1997, p.7. 17. A. L. Srivastava, Delhi Sultanate, 1971, p.332. 18. Mulla Abdul Quadir Badouni, Vol. II, trans.,W.H. Lowe, 1884, p.349. 19. Anjani Kant, op.cit. p.8. 20. Ibid., pp.9-10.

21. Lotika Sarkar, Reform of Hindu Marriage and Succession Laws Still the Unequal Sex, Bharati Ray and Aparna Basu ( ed ), From Independence Towards Freedom, Indian Women Since 1947, Oxford, 1999,pp.100-101. 22. J. C. Ghose, English Works of Raja Ram Mohan Roy, Allahabad, 1906, Vol. II, pp.123-128. 23. Neera Desai and Usha Thakkar, Women in Indian Society, New Delhi, 2001, p.123. 24. Sachichidananda and Ramesh P. Sinha, Womens Rights: Myth and Reality, Jaipur, 1984, p.35. 25. Extract from the Indian Penal Code, 45 of 1860, Appended in Women Power in India, Premlata Pujari and Vijay Kaushik, Delhi, 1994, p.335.) 26. http://www.english.emory.edu 27. Anjani Kant, op.cit., p12. 28. Sachichidananda and Ramesh P. Sinha, op.cit. 29. M.K. Gandhi, To women, A.T. Hingorani (ed.), Vol. III, Karachi, 1946, pp.122-23. 30. Kiran Devendra, Changing Status of Women in India, New Delhi, 1994, p.84. 31. Uma Shankar Jha, Arati Mehta and Latika Menon, Status of Indian Women, Vol. 3, New Delhi, 2001, p. 75. 32. Extract from the Code of Criminal Procedure, 2 of 1973, Premlata Pujari and Vijay Kaushik, op.cit., p.338-39. 33. First Schedule , Offences Under the Indian Penal Code , Act No 43 of 1986, Section II, Premlata Pujari and Vijay Kaushik, op.cit., pp.342-43. 34. The Special Marriage Act, 1954, Act No.43 of 1954, 9th October 1954. 35. http://www.nrilegalservices. com 36. http://www.english.emory.edu 37. http://www.nrilegalservices.com. 38. http://www.english.emory.edu. 39. Sachichidananda and Ramesh P. Sinha, op.cit., p.38.

40. The Dowry Prohibition Act, 1961, Act No.28 of 1961, 20th May. 1961, http: //www.nrilegalservices.com. 41. The Dowry Prohibition ( Maintenance of Lists of Presents to the Bride and Bridegroom), Rules, 1985, G.R.R. ( E ), dated 19th August, 1985, Appended in Women Power in India, Premlata Pujari and Vijay Kaushik, op.cit., pp.375-76. .