Excerpt from Justice Ravindra Bhat Judgment in Same-Sex Marriage Case (paragraphs lengths are edited.)
Marriage, as a social institution predates all rights, forms of political thought and laws. The institution of family has no known origin in the sense that, there has been no stage of human existence, in which family was absent leading to another time in which it emerged.
Marriage, however, has been regarded – for the longest time, as a relationship of man to woman which is recognized by custom, and thereafter law; it involves certain rights and duties in the case of both persons entering the union.
It is considered to be one of the most important relationships, as it is not solely the individuals’ happiness and well-being but that of others too, that is affected by their conduct in it. It has long been regarded as the reason for society’s continuance on the one hand, and its building block on the other.
What is marriage and the conceptualisation of its role in society, has undergone change over the time; it has engaged the attention of philosophers, from Plato to Hegel, Kant and John Stuart Mill and of religious leaders, like St. Augustine.
Marriage, however, has been regarded – for the longest time, as a relationship of man to woman which is recognized by custom, and thereafter law; it involves certain rights and duties in the case of both persons entering the union.
Different traditions view marriage as sacraments, and indissoluble unions (Hindus and Catholic Christians); Islam regards marriage as both contractual and sacred; Parsis regard it as both a sacrament and contractual. Most – if not all, place importance on procreation, creation of family, co-habitation, shared values as the important markers; at the same time, these traditions also recognize – in varying degrees, importance of companionship, spiritual union, friendship and togetherness of the spouses, in every way.
The respondents are right, in one sense in underlining that all conceptions of what constitutes marriage, all traditions and societies, have by and large, historically understood marriage as between heterosexual couples. The contexts of culture, social understanding of what constitutes marriage, in every social order are undoubtedly very important.
At the same time, for the purpose of determining the claims in these petitions, it is also necessary to mark the progression of what were deemed constitutive and essential constituents, and essential boundaries within which marriages were accepted.
Marriages have not always been dictated by voluntary choice. In medieval European societies, when a girl was physically able to consummate marriage, she was eligible for matrimony. Among the nobility and landed gentry, the principal consideration for marriage was exchange of property- in the form of dowry. Thus, it was not uncommon that among the “upper classes” marriages were loveless and unhappy. The sole reason for marriage was touted to be procreation, which the church dictated; thus, consummation of marriage and physical sexual relations were considered the most important features of every marriage, since this meant the establishment of family.
Among Hindus, barriers of other kinds, such as ban on sagotra and sapinda marriages, and impermissibility of non-endogamous marriages, was widely prevalent, for the longest time. Although amongst Muslims, marriage is both sacramental and contractual, and requires exercise of free will, nevertheless, it is premised on the agreement of mehar, or the amount the groom would offer, for the bride.
Muslim are permitted to marry others of the same faith, or from the “People of the Book” (known as Kitabiyas), such as Jews, Sabians and Christians. No marriage with polytheists is permitted. Similarly, widow re-marriage amongst Hindus was prohibited. Likewise, injunctions against inter-caste marriages were widely prevalent.
Child marriages were widely prevalent too. Inter-religious marriages were impossible. In the USA, various laws had, in the past, prohibited interracial marriages. Arranged marriages were very common throughout the world until the 18th century.
It is, therefore, evident that for long periods, in many societies, the choice of a matrimonial partner was not free; it was bounded by social constraints. Much of the time, marriage was seen as an institution meant for procreation, and sexual union of the spouses.
In most societies marriage had cast “roles” for the spouses; they were fairly inflexible, with men controlling most decisions, and women placed in subordinate positions, with little or no voice, and, for the longest time, no legal authority, autonomy or agency. For millennia, custom, tradition, and law subordinated wives to husbands. Notions of equality of partners or their roles, were uncommon, if not totally unheard of. All these underwent radical change.
The greater part of history shows that choice of a spouse, based on love or choice played almost no role at all. Enlightenment, and Western thinkers of the eighteenth century established that pursuit of happiness was important to life. They advocated marrying for love, instead of status, or wealth or other considerations. The Industrial Revolution gave impetus to this thought. Marriages were solemnized and celebrated with increasing frequency, in Western cultures, based on choice, voluntary consent, and without parental approval.
This movement increased tremendously – as women’s-rights movement expanded and gained impetus in the nineteenth and twentieth centuries, wives started being regarded as their husbands’ equals, not their property. Couples were also enabled to choose whether to have, and if so, how many children to have. If they were unhappy with each other, they could divorce – a choice exercised by a large number of couples.
Marriage became primarily a personal contract between two equals seeking love, stability, and happiness. Therefore, although social mores prevailed in relation to marriage, traditions and legal regimes were not static; the changes that society underwent or the forces that brought change, also carried winds that breathed new content, new contexts and new values, into the institution of marriage.
Law’s progress stresses upon individual’s rights for equality. The form of marriage, or the legally prescribed procedures assume a secondary role – they are matters of belief and practice. They cannot be regarded as the essential content of marriage. Tying thali is necessary in South India among many Hindu communities; and in some parts the exchange of rings, garlands and some rituals is necessary in North India.
Many Hindu marriage customs and traditions insist on the saptapadi; amongst Muslims, the nikah ceremony, witnessed by invitees, and other customary rituals and practices, is generally followed; Christian customs emphasize on solemnization by the couples taking marriage vows.
The rich diversity of this country and its pluralism is reflected in customary practices surrounding marriage solemnization, all – if not most of which involve the couple, the members of their family, and the larger community. Ritualistic celebration of marriage is considered by some as essential, while many in other sections may deem that the factum of marriage sufficient. For relationships that did not have customary practice dating back in history, the State enacted law – much like the petitioners, seek.
Therefore, legislations governing inter-caste and inter faith marriages, and adoption, are two important social relations relating to the family, through which secularism finds its base for an egalitarian social order under the Constitution. The enactment of laws to facilitate this aspect is testimony of the right of individuals to personal choice and autonomy.
For instance, enactment of the Hindu Marriage (Removal of Disabilities) Act, 1946 enabled persons from the same gotra or pravara to marry. Likewise, the bar to Hindu widows’ remarriage, was removed by enacting the Hindu Widows Remarriage Act, 1856. Inter-caste and inter-faith marriages became a possibility under the SMA after 1954.
The ‘legal’ dimension of marriage, in the US – the jurisprudence of which the petitioners relied on, is markedly different from the nature of marriage in India, and its evolution. This contextual difference, is of great relevance, when considering a constitutional question of this kind. Marriage in countries like the US, was earlier a sacramental institution that flowed from the Church and its divine authority. However, in modern times, it flows from the State; which created a ‘license regime’ for marriage.
The result is that marriages may be performed and celebrated with religious traditions or rituals, that have great meaning personally for the individuals – but the legality of the marriage, is solely dependent on a validly obtained license. This regime has since been extended to queer couples as well in the US. The law relating to marriage in India, however, has had a different trajectory.
A deeply religious affair, it gained its legitimacy and legal status from personal law and customs, that govern this aspect of life – for members belonging to all faiths. The matrimonial laws that have been enacted– were a result of the codification project (in the 19th and 20th century), which expressly recognise these social practices, while continuing to offer space to unwritten customary practices as well (barring aspects like marriageable age, etc. which are regulated by law). As mentioned, the SMA is the only avenue for a form of secular/non-religious ‘civil marriage’ – which too still ties into personal law for succession, and other aspects.
Reference
Supriya @Supriyo Chakraborty & oth. v. Union of India (2023)