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.”
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
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
, 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
, the court observed that
the sacraments marriage among hindus has three main characteristics:
- It is a permanent union
- It is an eternal union
- 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
In the case of Bhagwati Seran Singh v. Parmeshwari Nandar Singh
court held that hindu marriage is not only a sacrament but also a contract.
In the case of Anjona Dasi v. Ghose
 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
 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
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
 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
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
 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
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.
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.
- Black’s law dictionary (9th ed. 2009), available at westlaw blacks
- Tikait v. Basant, (ILR 28 CAL.758)
- Shivonandh v. Bhagwanthumma, (AIR 1962 MAD.400)
- Bhagwati Seran Singh v. Pae Rmeshwari Nandar Singh, (1942 IRL ALL 518)
- Anjona Dasi v. Ghose, (6 BLR, 243
- IRL 1996 KAR 3615
- (2005)2 SCC 244
- (2008) 4 SCC 520
- AIR 2009 (NOC) 808 (BOM)
- (2008) 2 SCC 238
- (2011) 11 SCC 1