A constitutional order premised on equality, dignity, and autonomy would be unworkable if personal relationships which are the building blocks of a just society are grounded on values that are antithetical to the Constitution.
Through marriage, the State confers legal recognition to a relationship between two persons. By doing so, it recognises that relationships in the form of marriage are not merely a lifestyle but an important constituent unit for the sustenance of social life. The State confers innumerable benefits, both tangible and intangible, to a family unit constituted by marriage.
The Extent of State’s involvement in the institution of Marriage
The State:
Firstly, prescribes conditions with respect to who can enter into a valid marriage;
Secondly, regulates the marital relationship during its sustenance; and
Thirdly, regulates the repercussions of the breakdown of a relationship of marriage.
The State prescribes various conditions for the solemnization of a valid marriage which inter alia includes the conditions of consent, a minimum age requirement, and whether the parties are within the degrees of prohibited relationship. The law regulates the conduct of the parties to a marriage in numerous ways.
For example, the law penalises the husband and his family members if they treat the wife cruelly, including demands for dowry. Similarly, the Protection of Women from Domestic Violence Act 2005 penalises persons for domestic violence in the course of a domestic relationship which has been defined to include marriage.
The grounds for divorce prescribed in various marriage laws also regulate the conduct of parties because their actions during the sustenance of a marriage may be a ground for the legal dissolution of that marriage. The valid grounds for divorce include where one of the parties has a sexual relationship outside of marriage, or has deserted their spouse, or treats the spouse with cruelty. The State regulates the relationship between the parties after the divorce by prescribing the payment of maintenance.
Under the Special Marriage Act, the wife can claim alimony or maintenance and under the Hindu Marriage Act, 1955, both the husband and the wife can claim maintenance. The above discussion elucidates that the State plays a crucial role in regulating marriage. Marriage has attained both social and legal significance because of the active involvement of the State at every stage of the marital relationship – during entry into it, during its subsistence, and in its aftermath.
Why State regulates the marriage?
Marriage was earlier a purely social institution unregulated by the State. What prompted the State to regulate personal relationships? There are two prominent reasons. The first reason was to regulate the social order. The State regulated social order by firstly, regulating the sexual conduct of persons through marriage, and secondly, by prescribing a legal mechanism for the devolution of property based on the legitimacy of the heir.
With respect to the first of the reasons, the State used marriage as a tool to regulate sexual behaviour. The State prescribed social rules through the vehicle of law by devising marriage as an exclusive relationship. Engaging in sexual conduct outside of marriage is a ground for divorce under personal marriage laws and the civil marriage law.
It is also crucial to note that impotency and not sterility is a ground for divorce. Impotency is the inability of a man to engage in sexual intercourse. On the other hand, sterility is the inability of a man or a woman to procreate. By prescribing impotency as a ground for declaring a marriage void (and not sterility), the State emphasised the centrality of sexual relations in a marriage as opposed to procreation. In this way, the State governs the conduct of society by regulating sexual conduct in a marital relationship.
Another manner in which the State intended to regulate social order by regulating marriage is by placing marriage at the centre of property devolutions. Ownership and control over property was viewed as being important for the establishment of a just social order. One of the reasons for the establishment of a social contract for the creation of a State by which individuals gave up their right to live as unregulated free individuals in exchange of protection of their rights and freedom is for safeguarding of property rights.
There must be rules for the devolution of property to avoid conflicts. These rules may vary in nature. Societies may establish rules for a common property system, or private property system, or a mixture of both. These legal rules have two primary components which concern how the title over the property is secured and how the title further devolves in case of intestate succession. Legal rules for the devolution of title are premised on marriage in modern societies.
Brian H Bix in the paper “State interest and Marriage” argues that there is sufficient material to establish that the State regulates marriage to respond to the special interests of specific social groups. It has been argued that the propertied classes wanted to reduce any uncertainty about succession, which may have arisen because of a lack of clarity regarding the line of succession.
It has also been argued that noble families desired to prevent their children’s marriages with partners of lower social status. Irrespective of whether the State regulated marriage to further entrench the existing social order or to transform the existing social order based on constitutional values, it is clear that property also plays a prominent role in the regulation of marriage.
The second reason for the State to be involved in the regulation of personal relationships was to remodel society, premised on the constitutional value of equality. A constitutional order premised on equality, dignity, and autonomy would be unworkable if personal relationships which are the building blocks of a just society are grounded on values that are antithetical to the Constitution.
The Constitution declares that there shall be no discrimination on the grounds of religion, race, caste, and sex. How would it be a just society if on the one hand the Constitution declares that there shall be no discrimination, and on the other hand, inter-faith and inter-caste relationships bear the brunt of a brutal society through ostracization and “honour” killings or caste-based murders? How just would society really be if in spite of the constitutional guarantees of equality of women in public posts and educational institutions, they suffer patriarchal attitudes in the private sphere?
The State regulates marriage to create a space of equal living where neither caste, religion, and sex prevent any person from forming bonds for eternity nor do they contribute to the creation of an unequal relationship. The State’s regulation of marriage recognised that even though a married couple is a ‘unit’ for the purposes of laws, they still retain their individual identity and are entitled to constitutional guarantees.
For example, one of the parties need not necessarily be at fault for the couple to secure divorce. Our laws recognise divorce by mutual consent. They recognise that the parties to a marriage are in the best position to decide if they should continue with the marital relationship. Divorce by mutual consent is grounded on the principle of autonomy. The involvement of the State in the regulation of marriage opened up the space for inter-caste marriages and interfaith marriages, and secured prominent constitutional rights.
The regulation by the State and its attempts to create a more equal personal sphere also contribute towards factual equality where women are empowered to defy patriarchal notions of gender roles in daily life. The impact of the State’s involvement in creating a more just personal space by reforming the institution of marriage on the basis of constitutional ideals can be seen when a wife chooses to retain her surname after her marriage or where the partners equally contribute towards raising their child.
The State recognised that a Constitution which upholds the values of freedom, liberty, and equality cannot permit the sustenance of a feudal institution undermining the rights of marginalised communities. Thus, it is important to view the involvement of the State in regulating the institution of marriage in terms of its transformative potential in ensuring equality in the personal sphere and in family life.
Tangible and Intangible Benefits of Marriage
Apart from the benefits of the State’s involvement which are recognised above (that is, in creating a social order in consonance with the principles laid down in the Constitution), there are other benefits. These benefits can be segregated into tangible and intangible benefits.
The intangible benefits of marriage are guided by hidden law. Hidden law comprises of norms and conventions which organize social expectations and regulate everyday behaviour. The benefits which are conferred by a legal institution must not be measured solely in terms of the benefits which are conferred by the law. It must also include the benefits which are conferred by hidden law. These are benefits which are not traceable to law but which are created by norms. One such benefit of marriage which is traceable to hidden law is the social validity and recognition which marriage as an institution confers upon relationships.
It is pertinent to note that the State only regulates heterosexual marriages. The law confers numerous rights and benefits which flow from a marriage but ignores the existence of any other form of relationship. The invisibilization of relationships which are not in the form of marriage on the one hand bestows sanctity and commitment to marriages and on the other hand strengthens the perception that any other form of relationship is fleeting and non-committal.
The DV Act has come the closest to recognising the existence of relationships in forms other than marriage. The Act defines “domestic relationship” as a relationship between two persons who live together in a shared household, when they are related by consanguinity, marriage, or ‘through a relationship in the nature of marriage.
In Indra Sarma v. VKV Sarma[1], the issue before this Court was whether live-in relationships can be considered to be a relationship in the nature of marriage. A two-Judge Bench of the Court observed that a relationship in the nature of marriage is distinct from a marriage.
It was further observed that for a relationship to be considered to be in the nature of marriage, factors such as the duration of the relationship, whether the couple live in a shared household, the pooling of resources and financial arrangements such as long-term investment plans which indicate the existence of a long standing relationship, and domestic arrangements such as entrusting the responsibility especially on women to run the household and do household activities, the sexual relationship, procreation, socialisation in public, and the intention and conduct of the parties must be considered.
The observations of the Court in Indra Sarma (supra) elucidate that a relationship is in the nature of marriage only when an inference can be drawn from the surrounding circumstances that it will be a long-lasting relationship. Thus, while there is a positive presumption that marriages are long-lasting, there is also a negative inference that all other relationships which are not in the form of marriage are short-lived.
In addition, the observations of the Court in Indra Sarma (supra) indicate that marriage has always been understood and continues to be understood in terms of the stereotyped traditional gender roles. The wife is entrusted with the responsibility of taking care of household chores and the husband is expected to be the breadwinner of the family. The public-private divide is stark. Women are relegated to the private sphere where their contribution towards running the household is diminished.
An inherent feature of the institution of marriage is the unequal heteronormative setting in which it operates. It is important for us to observe that the State while recognising the relationship between two heterosexual individuals in the form of marriage does not recognise or promote the gendered division of labour in the home. The State by regulating marriage has sought to redefine heterosexual relationships by emphasising on the autonomy of both parties.
The intangible benefits of marriage extend beyond the conferment of social recognition to the relationship of the couple. It also confers benefits which cannot be measured in tangible form to the children born of the marital relationship. The law confers on children who are born of wedlock with benefits in succession. In addition, the law’s recognition of the concepts of legitimate and illegitimate children have social repercussions in that illegitimate children are shunned by the society.
These intangible benefits of marriage indicate that society regards marriage as the primary and sole unit through which familial relationships can be forged.
As Marshall CJ observed in Goodridge v. Department of Public Health,[2] in a very real sense, there are three partners in a civil marriage: two willing partners and an approving State.
There are numerous tangible benefits conferred by the State which flow from marriage and touch upon every aspect of life. Tangible benefits conferred by marriage can be classified into,
(i) matrimonial and child care related benefits;
(ii) property benefits;
(iii) monetary benefits;
(iv) evidentiary privilege;
(v) civic benefits; and
(vi) miscellaneous benefits.
Matrimonial and child care related benefits include the provisions of permanent alimony and maintenance, maintenance if a person with sufficient means refuses to maintain his wife, to adopt a child as a couple, and to avail rights related to surrogacy. Property benefits would include securing a share in case of intestate succession.
Legislation such as Section 16 of the HMA has conferred legitimacy on children born from void or voidable marriages with a consequential right to or in the property of the parents (and not of any other person). Monetary or financial benefits which flow from marriage include the provisions to be nominated for the payment of gratuity, to receive funeral expenditure for the deceased spouse, for the payment of medical benefits to the spouse of the insured person, and to claim provident fund as the dependent of a deceased spouse.
Additionally, the provisions of the Income Tax Act 1961 provide numerous tax benefits for payments made on behalf of the spouse. For example, Section 80C of the Income Tax Act 1961 permits deduction of the insurance premia paid for the spouse’s life insurance policy and Section 80D permits deduction of expenses towards the premium of spouses health insurance.
Evidentiary privilege includes the privilege accorded to communications during marriage under the Indian Evidence Act 1872. Civic benefits include the provision to apply for citizenship or to be an overseas citizen of India by virtue of the spouse’s citizenship. Miscellaneous benefits include other benefits under law which cannot be grouped under the above categories which inter alia includes the recognition of a spouse as a ‘near relative’ for the purpose of the Transplantation of Human Organs and Tissues Act 1994.
Reference
Justice DY Chandrachud in Supriya @ Supriyo Chakraborty v. Union of India (2023)
[1] (2013) 15 SCC 755
[2] 7 798 N.E.2d 941 (Mass. 20003)