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Study Of Marriage Reforms In India: A Comparative Analysis Throughout Timelines

Marriage in India is an event filled with customs and traditions which have been carried out through the centuries and are still honored even after so many years. However, even if there are certain customs like saptadi which are necessary to validate the marriage we can also find some customs which could be considered unnecessary or regressive in today's time. Such customs include sati, dowry, child marriage, etc. These brought the needs of reforms in the practices related to Indian marriages.

This paper analyses the practice of sati as well as the Commission of Sati Prevention Act, 1987 in brief. It further highlights the need for setting a minimum age limit for the people getting married and hence abolishing the practice of child marriage.

Another prevalent practice of giving dowry to the groom in exchange of marrying the bride has been recognized and necessary laws have been enacted, still these laws have not deterred the people. In order to keep up with the changing times and accepting new thoughts and ideologies, we have understood the need to acknowledge people of different sexual orientation as well as accept same sex marriages. These reforms made regarding marriages in India over the centuries have been analysed in detail in this paper.

When we talk about laws which related to marriage and family and how it evolved from the past with customs like Sati, Dowry, Child Marriage and many more, undoubtedly they are still prevalent in some parts. These reforms and changes which have taken place in our society have shown how we see the group cultures, customs and personal relations. Indian policy makers to a very much extent retained the cultures and values which were somewhere affected by the British invasion. They tried to bring back the personal laws related to marriage of specific religious groups. In the current scenario, personal laws which predate colonial times are forced upon people.

The Hindu Marriage Act 1955, The Special Marriage Act 1954, The Indian Christian Marriage Act 1872 and many more. Simply put, marriage is an institution that binds 2 partners together with love till death parts them. India being a secular country where everybody has a right to follow any religion as per their desire.

Although with lots of cultures and traditions, executing and explaining the motive of marriage has been difficult. Firstly, it was considered that after a marriage man should be the powerhouse of the family, a concept known as patriarchy but that too is longer visible. So everything has changed and evolved for the betterment of society only.

Abolition of Sati

Sati is a practice wherein if a married man dies, his wife is supposed to sit on the funeral pyre of the husband and burn to death. This was a very prevalent social evil in India and became common after the 13th Century. Sati was practiced to highlight the purity of a woman and her devotion towards her husband. The term sati is derived from Sanskrit and literally means 'she is pure or true'.

The myth behind sati is that the goddess Sati burned herself to death because she couldn't stand her father Daksha's maltreatment of her husband Shiva. Jauhar is a practice considered under sati wherein the wives of the Hindu kings and the soldiers would throw themselves in fire if they lost a war against a Muslim enemy. The females supposedly sacrificed themselves in order to protect themselves from the clutches of the enemy. These practices were most prevalent in the Rajasthan and Madhya Pradesh states in India.

Christian missionaries launched a number of efforts opposing the Sati practice. However, Raja Ram Mohan Roy is credited with calling for an end to this social blight. The Bengal Provincial administration prohibited Sati for the very first time in 1829, and other provinces & princely kingdoms soon followed suit. In 1861, Queen Victoria issued a blanket prohibition on the practice of Sati in India.

The Commission of Sati Prevention Act, 1987, is now in effect. This Act aims to prohibit any practice of sati within Indian territory. The Act forbids both the forced and voluntary burning or burying alive of a widow, as well as glorifying Sati. Sati is defined as the burning or burying alive of a widow with the body of her deceased husband or other relative, or any article, object, or thing associated with the husband or such a relative, according to the Act.

The commission of Sati involves 3 elements:

  1. Burning of the woman
  2. Glorification of the Act
  3. Establishment of a temple dedicated to the Sati

This Act makes attempting to commit Sati unlawful by a prison sentence of up to one year or a penalty or both, and the individuals actively participating in the practice or simply witnessing it will be sentenced to imprisonment for life. The act of representing or depicting sati as admirable or honorable is now punishable by a seven-year prison sentence and a monetary fine. The last recorded case of sati was when Roop Kanwar sat on the funeral pry of her husband at the age of 18 on September 4 1987.

Abolition of Child Marriage

Child marriage can be described as a union solemnized between two people where the age of the male is less than 21 years and that of the female is less than 18 years. In India, child marriages are common. The extent and scope of child marriages are estimated differently by different sources. Based on a survey conducted in 1998, the International Center for Research on Women-UNICEF publications assessed India's child marriage percentage to be 47 percent, whereas the United Nations reported it to be 30 percent in 2005. 33.8 million child marriages were recorded in the 2011 Census for women under the age of 18 and boys under the age of 21.

In India, there is a lot of variation in the prevalence of child marriage throughout locations, provinces, and between towns and cities. Early marriage have their own set of consequences, such as medical issues for women owing to pregnancy at a young age, increased degradation in women's standing, and a vicious circle of gender inequity and hence to overcome this The Child Marriage Restraint Act, 1929, which was the first secular law aimed at preventing child marriage, but it only imposed penalties on adult male who married a juvenile and on the parents who encouraged such unions.

Due to the incompetence of this act, a new law was enacted as The Prohibition of Child Marriage Act, 2006, which envisage child marriage with penalties of two years of solitary confinement or fine of one lakh rupees or both. Under The Hindu Marriage Act, 1955, only the parties are penalised, there is no provision to prosecute the parents who solemnised the union. A girl can annul the marriage only before the age of fifteen and can challenge the marriage before attaining the age of eighteen. There is no explicit prohibition against juvenile marriage.

In the case of Lajja v. State, while considering the legitimacy of alleged child marriages as referred in the petition before the bench, the Delhi High Court held that Prohibition of Child Marriage Act, 2006, which makes the act cognizable and non-bailable, has imposed harsher sanctions. It states that permission gained from juveniles under the age of sixteen is irrelevant, and that a superseding indictment, once filed, cannot be invalidated solely because the minor was a consenting party.

The High Court of Gujarat in the case of Yusuf Ibrahim Mohammad Lokhat v. the State of Gujarat held that "According to Muslim personal law, a girl is competent to marry without her parents' consent as soon as she reaches puberty or reaches the age of 15, whichever comes first." This clearly indicates that, in the opinion of the learned judges, that the personal laws should be used as the major source for deciding cases of underage marriage.

Abolition of Dowry

Dowry is a certain amount of money, jewelry, estate, automobiles, and other valuables paid by the bride 's family to the bridegroom and his family in exchange for marrying the woman. The word 'dowry' was derived from the Latin term 'dotarium' as well as the Anglo-Norman French term 'dowarie,' which created the word 'dowry.' It sounds like the late Middle English word 'dower,' which refers to a wife's part of her partner's estate following his demise.

The tradition of providing a dowry transfers a significant percentage of the bride's family's wealth to the groom's family merely on the basis of nuptials. As a result, marriage is transformed into a commercial act or exchange involving the amassing of wealth or money. This social evil is extremely prevalent in India in spite of being illegal.

The Indian law known as the Dowry Prohibition Act was enacted on May 1, 1961, with the goal of prohibiting the giving or receiving of a dowry. The anti-dowry legislation in India makes dowry unlawful. Any action of taking or giving dowry is illegal in India, according to the Dowry Prohibition Act. The sanction for breaking the anti-dowry regulations is upto 5 years in prison and a penalty of Rs. 15,000 or the amount of said dowry paid, whichever is higher.

Negotiating with the groom's family for a lower dowry when the bride's family is unable to fulfill the dowry demanded by the groom and his family, as well as forcing the bride's family to meet requests as compensation for marrying their daughter after the wedding has already taken place, are all illegal.

Often times, the family of the groom are seen to demand dowry from the bride's family after the wedding and sometimes even torture the bride, verbally or physically. If the bride is facing such pressure for dowry from her in-laws and dies within 7 years of the marriage, it could be considered dowry death. Under Section 304B of the Indian Penal Code, dowry deaths are illegal, while mistreatment or domestic abuse for dowry expectations is illegal under Section 498A. The IPC renders the offence non-bailable, which implies that if the husband or members of the family are apprehended by the police, they wouldn't be able to post bail.

Same Sex Marriage

The issue of marriage reforms in India, especially the questions of same-sex marriage, its validity and its legality have, of late, attracted huge attention. Undoubtedly, the same-sex union is social reality in India but people take it as a bitter truth which is hard for them to digest. Bond between two people of same sex is not naturally different between the same bond with people of different sex.

Being gay is just one side of the story and marriage encircles the whole person. Most of same-sex couples who have tied knots and promised each other to be together with their partner, whatever the condition and challenges will be do not consider themselves as gay. When people assert their right of marriage, their sexuality is not innate to this right, although the social thinking and prejudice makes it appear so.

If we talk about U.S.A, when a debate on same-sex marriages was going on in state of Vermont, many senators who opposed these same-sex marriages at first, changed the arguments and supported it after hearing the couples who lived together for years.

Section 377 was a invention of British which banned homosexuality. In 1997, ABVA filed a PIL questioning the constitutional validity of section 377. It was the first step against the government oppression of LGBTQ community. The Delhi HC struck down this law stating that it stood against fundamental rights provided by the Indian constitution.

This was overturned by SC and section 377 of IPC was reinstated. A landmark judgement was given by SC in 2018 in which section 377 was declared unconstitutional and it was stated by court that this was unconstitutional to an individual's dignity and identity. But still Indians find themselves under tremendous pressure when they are told to open about their sexual orientation and talk freely about it. It's like a mental pressure on them.

If we see the current scenario, same- sex marriages are still not recognized in India and they are frowned upon too because of orthodox thinking of the society. Some societal beliefs need to be changed, because if the judiciary can evolve with time, law can evolve with time, why cannot the society ?

When it comes to laws relating to marriage and family rituals such as Sati, Dowry, Child Marriage, and others, they are surely still present in some areas. These reforms and transformations in our society have influenced how we view group traditions, conventions, and interpersonal relationships. Indian policymakers preserved, to a large measure, the traditions and values that have been influenced by the British conquest.

They intended to reintroduce personal regulations governing marriage between members of specified religious groups. People are currently subjected to personal laws that trace back to colonial times. The Hindu Marriage Act of 1955, the Special Marriage Act of 1954, the Indian Christian Marriage Act of 1872, and a number of others are only a few examples.

Marriage is an institution that brings two people together in a loving relationship until death separates them. Despite the fact that there are several cultures and customs, implementing and communicating the purpose of marriage has proven challenging. Initially, it was thought that after marriage, the man should be the family's powerhouse, a belief termed as patriarchy, but this is no longer the case. As a result, everything has altered and developed solely for the benefit of humanity.

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