The legal notion of marriage passes through many judicial and social meanings, making it a processed product that is not good for the health of what is essentially a private relationship, argues Manika Kamthan.
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I was born in 1985 in the historical town of Aligarh in Uttar Pradesh. I guess it was the best of times to be in India. We were at the cusp of liberalisation.
We witnessed the best and worst of all seasons, from harsh winters to sleepy autumns, we experienced it all. We woke up to Rangoli on Sunday mornings and were able to watch live telecasts of historic cricket matches because of the revolution around broadcasting rights of TV channels.
Everyone at my home was educated. We were educated at the best convent school in the town and later on, went on to study at the magnificent Aligarh Muslim University.
For a long time, I thought that I was born in a modern household. My unmarried aunts used to work and were quite outdoorsy.
For a long time, I thought that I was born in a modern household. My unmarried aunts used to work and were quite outdoorsy. We used to have regular movie outings and used to travel alone outside Aligarh too.
However, all of them were married off within the same caste. Growing up I saw a marriage every alternate year in the family. They were grand but they were also uniform in terms of caste.
Everyone knew everyone and every single marriage was an arranged marriage. The youngest of my uncles got married without even meeting his would-be wife. We always felt that it was quite normal.
My mother never went into a professional life but always told me that having a job is important. She always emphasised the importance of one’s own identity. So, securing a job was paramount for me.
But she never spoke about the futility of the institution of ‘marriage’. She always took pride in the fact that both her offspring, my brother and myself, were educated in some of the premier institutions of the country and were well-settled in decent jobs.
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She was unable to engage in a job primarily for two reasons, her own non-ambitious outlook and lack of support from the family.
Growing up, I was heavily influenced by my mother. I cannot recall even a single time when she said that it was a matter of choice to marry.
Even after achieving one’s goals and following your heart, marriage is inevitable. We never knew that not marrying is also an option that can be explored.
Later or sooner one needs to marry. Indian society never accepts the fact that not marrying can be a choice of an individual. Everyone wants to get married and that too, timely.
The inevitability of marriage was deeply rooted in my subconscious. Educated parents might not force their choices on their children but the fact remains that they keep praying hard for the marriage.
People who make an informed choice not to marry are perceived as selfish and looked down upon as stubborn. Married people of their age group also advise them to get married.
The problem with creating peer pressure to marry is that it can drive people to make desperate decisions which can prove to be disastrous later.
Article 16 of the Universal Declaration of Human Rights provides that every man and woman has a right to marry and to found a family.
It also provides that marriage should be entered into with free and full consent. Can we really say that marriages that are done under this compulsive desire to get married are free? Probably not.
It is really heartening that ‘consent’ is a luxury when it comes to marriage. There are many factors that need to align for a marriage to be socially accepted, such as caste, religion, financial status, good looks, etc.
Even after achieving one’s goals and following your heart, marriage is inevitable. We never knew that not marrying is also an option that can be explored.
I remember when it started becoming clearer to my parents that they would not be able to dictate to me, they started telling me that they were fine with me marrying a boy of my choice provided he is not from a particular caste and religion.
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Disagreement with parents is still one of the leading causes of break-ups. It reflects on how social acceptance is more important than personal fulfillment. According to a survey conducted by Forbes Advisor (2023) in the US, 43 percent of the respondents cited a lack of family support as the cause of their divorce.
Family expectations and experiences form a very compelling reason for people to continue in abusive marriages. Families are really not willing to walk down the hall of shame with their sons and daughters in case of divorce.
It is not surprising that ‘domestic violence’ is one of the top reasons for divorce, apart from infidelity and family issues. Ultimately, it is only a life-threatening cause that qualifies to be a good enough reason to get divorced.
It should not be forgotten that India is a country that witnesses political silence over ‘honor killings’ and real politicking around inter-religious marriages in the name of ‘love jihad’.
The Parliament is still not contemplating a law on khap panchayats, but anti-conversion laws have been put in place in states such as Uttar Pradesh to check ‘love jihad’.
We have judges who support the idea of “marrying your rapist” and some of them have also opined that a woman not wearing mangalsutra is cruelty of the highest order.
In another case, the Delhi High Court overturned a divorce granted by a lower court because “an isolated or stray incident, an angry look, a sugar-coated insult or a random quarrel cannot lead the court to grant a decree of divorce”.
Despite the Justice Verma Committee’s recommendations, marital rape is still not criminalised and the anarchic law on restitution of conjugal rights is still valid.
In several cases, the judiciary has emphasised the sanctity of marriage and why the institutions of marriage and family are the foundations of a healthy society.
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The recent judgment of the Supreme Court on marriage equality is also evidence of the fact that marriage is not a matter of choice.
The court in unequivocal terms reiterated that the right to marry is not a fundamental right. Queer marriages cannot be read into the Special Marriages Act, 1954. The court observed that it will not exceed its judicial limits and has asked the Parliament to deliberate on the matter.
It is not surprising that ‘domestic violence’ is one of the top reasons for divorce, apart from infidelity and family issues.
The Supreme Court made a very convenient choice because in cases such as Anoop Baranwal versus Union of India, the same court observed that, “The theory that the courts cannot or do not make laws is a myth which has been exploded a long while ago. There was no ‘strict demarcation or separation of powers in India’ as legislature and judiciary have been performing varying roles in a democracy.”
As a matter of fact, till the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 came into force, the guidelines laid down in Vishakha versus State of Rajasthan operated as law for the matters of sexual harassment at the workplace.
It is a major setback to the discourse on the rights of the LGBTQIA+. It is the same judiciary that recognised the third gender and decriminalised homosexuality but could not gather enough jurisprudence to grant non-heterosexual couples the right to marry and found a family.
As of today, 37 countries have legalised non-heteronormative marriages and around 10 countries such as Austria, Brazil and South Africa have legalised them through a court judgment.
However, the Indian judiciary chose to stick to the narrative of ‘normal’ heterosexual marriages.
It seems that the law considers only reproduction as the primary byproduct of marriage. The idea of companionship is not appealing enough. The law is ignorant of the fact that today many married couples have mutually decided not to have kids owing to several reasons or they never got married to have kids in the first place.
The latest Uniform Civil Code Bill which will be implemented in Uttarakhand recognises only those live-in relationships which are heterosexual in nature.
We have judges who support the idea of “marrying your rapist” and some of them have also opined that a woman not wearing mangalsutra is cruelty of the highest order.
It defines live-in relationships as “relationship between a man and a woman who cohabit in a shared household through a relationship in the nature of marriage, provided that such relations are not prohibited’’.
It cannot be understood as a progressive piece of legislation because it provides that when starting a live-in relationship or ending one, the partners are required to give notice to the registrar within a month.
Failing to register a live-in relationship carries a maximum three-month jail sentence. After being found guilty, a six-month sentence is stipulated if no documentation of a live-in relationship is produced.
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Live-in relationships are anything but marriage but the obsession of law paints them also in the colour of marriage. It is like coming back to the same fate from which you were running.
Ultimately, the law is male. It gives less and takes away more in the garb of newer laws and policies. When it comes to marriages and relationships, choice is a privilege that only a few enjoy.
The entry as well as the exit route is hard. The law reaffirms society’s obsession with marriage. The society takes pride in fixing the features of a normal and stable marriage and also cautions against the perils of dying alone, thereby proclaiming the indispensability of marriage.
As a society, we need to grow out of this Obsessive Compulsive Disorder. In a country where child marriage is still considered voidable and not void, there is something seriously wrong with people.
One’s life should be a result of their free choices. The decisions on when to marry, who to marry, not marry, or to not have kids should ideally fall in the category of ‘negative rights’, in which the State should not interfere as a general rule with few exceptions such as child marriage. Unfortunately, the reality is totally opposite.
Anton Gramsci says that consent is manufactured, it is dominated and manipulated by the dominant class. It is true as far as marriage and relationships are concerned.
In a country where child marriage is still considered voidable and not void, there is something seriously wrong with people.
We are subconsciously guided by the norms fixed by society. Our choices are seldom revolutionary because unknowingly we align with the dominant narrative which is also legalised by the State.
The dominant narrative on marriages and relationships is a result of a patriarchal society. There is a huge scope for legal reform. The State should rise to the occasion and make the right to marry a fundamental right.
Also, the choices therein should be protected so that when society is not supportive enough, one can always seek shelter and remedy from the law.
The State needs to stop playing the role of the watchdog of the institution of marriage and should become the aggressive guardian of the personal rights of its citizens.
After all, to choose is a right and not a privilege.
