In its judgment, the SC unequivocally say what a marriage is not — “a commercial transaction” and “not an event for ‘song and dance’ and “wining and dining” or an “occasion to demand and exchange dowry or gifts by undue pressure”. File photo
In an order dated April 19, the bench of Justices B V Nagarathna and Augustine George Masih urged young people “to think deeply about the institution of marriage even before they enter upon it and as to how sacred the said institution is, in Indian society.” The case in consideration was primarily a matrimonial dispute, a couple seeking to part ways over allegations of cruelty and demands for dowry resulting in a divorce petition. Interestingly though, upon the request of the counsels of both parties, the judges ruled that their marriage itself was null and void. That there was no marriage at all that fulfilled the conditions laid out in Section 7 of the Hindu Marriage Act, 1955 (HMA) which necessitates solemnisation on the basis of saptapadi — “the taking of seven steps by the bridegroom and the bride jointly before the sacred fire”.
The petitioner and the respondent had registered their marriage under the HMA without undergoing a ceremonial wedding, which they claimed that their parents were planning for at a later date. The absence of these ceremonies was cited as a ground for seeking a declaration that the marriage was null and void. While granting their request, the judges noted that the “genesis of a sacred process cannot be trivial affair”. They go on to emphasise that the reasons for insistence on the ceremonial aspects of the HMA are because “marriage is a sacrament or a samskara” under Hindu law and “an event that confers salvation upon the individual”. These observations led to a lot of viral media coverage of this judgment. The judges rightly point out that there exist different solemnisation provisions in the Special Marriage Act, 1954 (SMA), effectively saying that registering/solemnising a marriage without saptapadi should ideally be under the SMA and not the HMA.
Marriage as a means of gatekeeping
Regardless, the invitation (especially to “young men and women”) by the bench to think about the significance and centrality of the institution of marriage in India, is an important one. In the judgment, they unequivocally say what a marriage is not — “a commercial transaction” and “not an event for ‘song and dance’ and “wining and dining” or an “occasion to demand and exchange dowry or gifts by undue pressure”. This is a scathing commentary on the burgeoning wedding planning and auxiliary businesses that seem to be booming in the country where the “song and dance” even extend to “pre-weddings” of late.
In terms of what a marriage is, the judges say it is “a solemn foundational event” which accords the “status of a husband and wife for an evolving family in future which is a basic unit of Indian society. A Hindu marriage facilitates procreation, consolidates the unit of family and solidifies the spirit of fraternity within various communities.” Firstly, the reference to facilitation here means granting legitimacy to the practice of procreation and building families. Possibilities of building families and parenthood surely exist beyond marriage — be it adoption or other forms of assisted reproductive technologies. But that the law has to intervene in order to keep marriage as a gatekeeping criteria for the same, is telling of the fragility of the institution of marriage — as feminist scholarship has demonstrated. Secondly, the claim about harmony between different communities is slightly unclear, given that a widely acknowledged sociological practice among Hindus is that of caste endogamy. Defiance or deviance from that practice, easily and often violently, breaks this fraternity.
Excluding and obscuring certain realities
The judgment also lays down that a marriage “provides a lifelong dignity-affirming, equal, consensual and healthy union of two individuals”. This seamless move between signifying marriage as a relationship between a “man and a woman” and “two individuals” is noteworthy. It is important that this distinction isn’t downplayed because if it were possible to understand this in gender-neutral terms, on what grounds is the exclusion of same-sex couples justifiable? An exclusion that the Supreme Court unfortunately upheld last year. On one hand, there are laments like that of the judges about young people not taking the institution seriously. On the other hand, it is important to recognise how certain exclusions obscure the lived realities and rendezvous with the law of people who do intend to exalt marriage to the status that the judges’ interpretation affirms — especially same-sex, inter-caste and inter-faith couples.
Changing idea of marriage
Judges cite the significance of the seventh step of the saptapadi according to Rig Veda as a promise of friendship (being “sakha”) “forever”. They believe that if this commitment is “adhered to by the couple, then there would be far fewer cases of breakdown of marriages leading to divorce or separation”. This is indicative of the anxieties around young people’s engagement with marriage and intimate relationships in contemporary India. The youth is thinking critically and even strategically about the institution of marriage. But their thinking is opening up possibilities that seem to be at odds with the so-called traditional values. Strategically considering the idea of marriage entails a recognition of all the privileges that come with it, including but not limited to financial security, legal modalities for travel and immigration and general ease of living away from the moral policing of coupledom outside of marriage.
Marriages as companionate relationships are an aspirational ideal-type. In heteronormative patriarchy, they are a site of reproducing gendered roles that often manifests as domestic violence. There is a stifling push for compliance with gendered roles where men are expected to be provider-protector husbands, notwithstanding the pushes and pulls of a harsh economy and women are to be domestically astute carers in addition to whatever else they may be (“allowed to be”) doing outside of their households. Patrilocality, the practice of living close to the husband’s family, and the imperatives of performing marital kinship roles add to the gamut of forces that young couples are increasingly weighing before signing up for marriage. With greater access to civic-political and economic-social-cultural rights for women in general and marginalised communities in particular, the anxieties around the status of marriage as an institution are bound to deepen.
The writer is assistant professor, Department of Political Science, School of Social Sciences, University of Hyderabad. Views are personal
