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Recent Trends In The Institution Of Marriage

Marriage as an institution is very old and popular in most parts of the world. It is very will accepted by society and also by the religions. It has also got many rituals and ceremonies to strengthen the family system. It leads to sustain a longer relationship unless and until it is annulled either by the husband or the wife. The institution of the marriage is one of the oldest social institution and also provides a structure for the civilizations that is built.

Marriage is defined as the “legal status, condition, or relation of one man and one woman united in law for life, or until divorced, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.”[1]

Marriage in India is considered to be a sacred institution and has got lot of ceremonies and also according to Hindu beliefs marriages are made in heaven.

But in the present world the meaning of marriage and relationships have changed drastically.

Concept of marriage under Hindu law

For a long period of time Hindu marriage rites have been changed accordingly due to the needs and convenience of the people from time to time. Hindus are the ones who are Hindus by birth and those who have converted to Hinduism. Any person who is a Jain, Buddhist or Sikh is a Hindu by religion.

In Hinduism marriage is considered as sacrament. Hindu marriage is deemed valid and complete only when certain religious rites like home, panigrahana, saptapadi etc are duty performed by a brahmin with agni devata taking cognizance of the rites. If not performed the legal validity of the marriage itself may be called in to question.

In the case of Tikait v. Basant[2], court held that marriage under Hindu law was a sacrament, an indissoluble union of flesh, bine with a bone to be continued even in the text world.
In the case of Shivonandh v. Bhagwanthumma[3], the court observed that the sacraments marriage among hindus has three main characteristics:
  1. It is a permanent union
  2. It is an eternal union
  3. It was a holy or sacrosanct union

Hindu marriage as a contract:

a hindu marriage cannot takr place without the performance of sacred rites. But after the enactment of the hindu marriage act 1955 Hindu marriage is no longer a sacrament but it is a contract. Section 12 of the act says that if the consent of the person who is getting married is not there then that marriage is considered to be void.

The nature of modern marriage is contractual. Thus, it accepts the idea of equality and liberty.

The first fundamental of sacrament marriage has been affected by section 13 of the Hindu marriage Act 1955 for hindu marriage can be dissolved on certain specified grounds and the widow remarriage act 1856 also affected the sacramental marriage.

In the case of Bhagwati Seran Singh v. Parmeshwari Nandar Singh[4] the court held that hindu marriage is not only a sacrament but also a contract.

In the case of Anjona Dasi v. Ghose[5] court observed that the marriage, whatever else it is, sacrament and institution, is undoubtedly a contract entered into for consideration with correlative rights and duties.

In most of the hindu marriage, a religious ceremony is still the sine qua non viewed from side one may conclude that hindu marriage has not remained purely a sacrament and at the same time, it has become a complete contract.

Trends in marriage – live in relations

Live in relation that is cohabitation is an arrangement whereby two people decide to live together on a long term or permanent basis in an emotionally or sexually intimate relationship. The term is most frequently applied to couples who are not married. The legal definition of the live-in relationship is an ocean arrangement of living under which the couple which is unmarried lives together to conduct a long going relationship similarly as in marriage.

Now in India live in relations are now legal. Till recently and even now in small towns and cities, there is much social criticism and stigma attached to such relationships, forcing them to remain largely secretive. No law at present deal with concept of live-in relationships and their legality in india. None of the statutes dealing with succession or marriage such as hindu marriage act 1955, the special marriage act 1954 or Indian succession act 1925 recognise live-in relationships directly.

Under section 17 of Hindu marriage act children born out of such relationships are considered to be legitimate and have been granted the right to succession. In india the judicial attitude is some what in favor of holding such relationship at par with marriage and granting all such rights that are available to married couples.

In the case of Gurubasawwa v. Irawwa[6] it was held that a presumption is available if a man and a woman are living under the same roof and cohabit for a number of years.
In the case of Sobha Hymavathi Devi v. Setti Gangadhara swamy[7]it was held that a continuous and prolonged cohabitation raises a presumption in favor of marriage and against concubine. This is accordance with section 50 and section 114 of the Indian evidence act 1872.

In Tulsa v. Durghatiya[8] the supreme court held that when a man and women live together for a long spell there would be a presumption in favour of their having been married, unless rebutted by convincing evidence. This decision suggests that the law treats long living relationships as good marriages.

Maintenance rights of live-in partners:

In case of Abhijit Bhikaseth auti v. state of Maharashtra and others.[9] It was held that it not necessary for women to strictly establish the marriage to claim maintenance under sec 125 of crpc. a woman living in relationship may also claim maintenance under sec. 125 crpc.

Maintenance right s of live-in partners

In the case of Vidhyadhari v. Sukhrana Bai [10] supreme court created a hope for persons living in together as husband and wife by providing that those who have been in a live-in relationship for a reasonably long period of time can receive property in inheritance from a live-in partner. Similarly, in Revanasiddappa v. Mallikarjun[11]property of a Hindu male, upon his death was given to a woman with whom he enjoyed live-in relationship, even though he had a legally wedded wife alive.

Children born out of live-in relations:

In the case of Vidhyadhari v. Sukhrana Bai the supreme court granted the inheritance right to the four children born from the women with whom the man shared a live-in relationship, calling them as his legal heirs. It was further held that a child born out of a live-in relationship is not entitled to claim inheritance in Hindu ancestral coparcenary property and can only claim a share in the parents self-acquired property.

Conclusion
Marriage is a culturally sanctioned union between two or more people that establishes certain rights and obligation between the spouses and their children, and between them and their in-laws and with the whole world. The definition of marriage is different in different cultures according to Hindu law it is both sacrament and a contract.
If live in relationships are legalized then the very definition of marriage put forth in our personal laws needs to be amended.

References: End-Notes:
  1. Black’s law dictionary (9th ed. 2009), available at westlaw blacks
  2. Tikait v. Basant, (ILR 28 CAL.758)
  3. Shivonandh v. Bhagwanthumma, (AIR 1962 MAD.400)
  4. Bhagwati Seran Singh v. Pae Rmeshwari Nandar Singh, (1942 IRL ALL 518)
  5. Anjona Dasi v. Ghose, (6 BLR, 243
  6. IRL 1996 KAR 3615
  7. (2005)2 SCC 244
  8. (2008) 4 SCC 520
  9. AIR 2009 (NOC) 808 (BOM)
  10. (2008) 2 SCC 238
  11. (2011) 11 SCC 1

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