ASSIGNMENT ON FAMILY LAW

Concept of Marriage- Sacrament or a Contract:

A Critical Analysis.

SUBJECT
Family Law-I

SUBMITTED BY

Name: Shantam Basu

Roll no.: 115

1ST Semester (3 Year LLB Course)

UNDER THE SUPERVISION OF

Prof. Ms. Arpita Mitra Roy
 ACKNOWLEDGEMENT

At first, I would like to thank my guide Prof. Ms. Arpita Mitra Roy for helping me
implement the information with the necessary guidance in my assignment titled “Concept of
marriage- Sacrament or a contract: A critical analysis”. My guide has used her
experience that she has gathered from his/her teaching career to help me write this
assignment. I would like to thank further the principal of my college Prof. (Dr.) Pradeepta
Kishore Sahoo and other teaching and non-teaching staff who have lent me their valuable
time and assistance and inspired me to complete my assignment. Without their valuable
inputs and help I would not have been able to complete this task within the given time.
 Table of contents

SL. NO. Topic Pages

1. List of cases 1

2. List of abbreviations 2

3. Introduction 3-5

4. Conceptual context 6-8

5. Analysis 9-13

6. Conclusion and suggestion 14-15

7. Bibliography 16
 LIST OF CASES

M
Mohd. Ahmed Khan v. Shah Bano Begum (1985)

S
Sarla Mudgal v. Union of India (1995)
Shayara Bano v. Union of India (2017)
 LIST OF ABBREVIATIONS

AIR: All India Reporter

SCC: Supreme Court Cases
 INTRODUCTION

Marriage is a fundamental institution that has evolved over centuries, transcending cultural,
religious, and legal boundaries. In India is a legal and social institution governed by a
combination of personal laws based on an individual's religion and certain secular laws that
apply uniformly across the country. The legal context of marriage in India is complex due to
the country's diverse religious and cultural backgrounds. India does not have a uniform civil
code governing marriage and family matters. Instead, individuals in India are subject to
different personal laws based on their religion. The major religious communities in India,
including Hindus, Muslims, Christians, and Sikhs, have their own personal laws governing
marriage, divorce, and inheritance.

The Hindu Marriage Act, 19551, governs marriages among Hindus, Buddhists, Jains, and
Sikhs. It provides for the conditions of a valid Hindu marriage, registration of marriages, and
provisions related to divorce and maintenance. Muslims in India are governed by their
personal laws, which are primarily based on Islamic principles. These laws cover various
aspects of marriage, divorce, maintenance, and inheritance.

The Parsi community in India is governed by the Parsi Marriage and Divorce Act, 1936,
which covers issues related to Parsi marriages and divorces.

The Special Marriage Act, 19543, is a secular law that allows people of different religions, or
those who do not want to follow their personal laws, to marry under a single civil code. It
provides for inter-religious and inter-caste marriages and does not require conversion to any
particular religion.

The legal age of marriage in India is 18 for females and 21 for males. Child marriages are
prohibited, and there are strict penalties for those involved in such marriages.

1. Hindu Marriage Act, 1955, Acts of Parliament, 1955 (India).

2. Special Marriage Act, 1954, Acts of Parliament, 1954 (India).
Marriage registration is not mandatory in India, but it is advisable to register a marriage to
establish legal proof of marriage. Registration can be done under the respective personal laws
or the Special Marriage Act.

Each personal law in India has its own provisions for divorce. Grounds for divorce and the
procedure vary depending on the personal law under which the marriage was solemnized.
The Special Marriage Act provides a separate procedure for divorce for couples married
under it. The various personal laws and the secular laws contain provisions for maintenance
and alimony in the event of divorce or separation.

Marriage is a cornerstone of human society, serving as the foundation for families and
communities worldwide. Throughout history, it has been viewed through two primary lenses:
as a sacred sacrament and as a legal contract. This paper aims to critically examine these dual
perspectives, offering insights into the intricate nature of marriage in modern society.

The concept of marriage has deep historical roots, with origins dating back thousands of
years. In ancient civilizations such as Rome and Greece, marriage was often seen as a
contractual arrangement, designed to facilitate social, economic, and political stability. This
contractual aspect of marriage is still prevalent in contemporary legal systems, where it
governs issues like property, inheritance, and custody. On the other hand, many religious
traditions have viewed marriage as a sacred sacrament. For instance, in Christianity, marriage
is considered a covenant between two individuals before God, symbolizing the union of
Christ and the Church. Similarly, Hinduism regards marriage as a sacred union between two
souls, with religious rituals and ceremonies playing a significant role.

The perception of marriage as either a sacrament or a contract is heavily influenced by

cultural factors. In some cultures, arranged marriages emphasize the contractual aspect,
prioritizing family interests and social compatibility. In contrast, Western cultures often
emphasize the romantic and sacramental dimensions of marriage, where individuals are free
to choose their partners based on personal affection and love.

In many modern societies, marriage is a legal contract with defined rights and
responsibilities. This contract governs issues like property division, alimony, and child
custody. This legal framework is essential for safeguarding the rights of individuals within a
marriage and providing a structured approach to dispute resolution and dissolution.

The religious dimension of marriage as a sacrament is central to many faiths. In Catholicism,

marriage is considered a sacrament, and divorce is generally discouraged. In contrast, Islamic
law allows for divorce under specific circumstances, demonstrating the variation in religious
interpretations of marriage as a sacrament or contract.

In today's diverse and interconnected world, the concept of marriage is continuously

evolving. Changing social norms, including acceptance of same-sex marriage, challenge
traditional views of marriage as a sacrament or contract. These shifts in perspective highlight
the need for an inclusive and adaptable understanding of marriage in the 21st century.

The concept of marriage as a sacrament or a contract is deeply rooted in history, culture, and
religion. While some view it primarily as a sacred union before a higher power, others
emphasize the legal and contractual aspects of marriage. In reality, marriage is a complex and
multifaceted institution that can encompass both perspectives simultaneously.
 CONCEPTUAL CONTEXT

Marriage in India is a complex and diverse institution with a deep-rooted cultural, religious,
and legal significance. It encompasses a wide range of concepts, propositions, and doctrines
that vary across different regions, communities, and religions. Here are some key concepts,
propositions, and doctrines related to marriage in India:

Arranged Marriage: Arranged marriages are common in India, where families play a
significant role in selecting a spouse for their children. Compatibility in terms of caste,
religion, social status, and horoscope matching is often considered.

Love Marriage: Love marriages, where individuals choose their partners based on personal
feelings and preferences, are becoming increasingly common, especially in urban areas.

Inter-caste and Inter-religious Marriages: Despite traditional norms, inter-caste and inter-
religious marriages are becoming more accepted, although they can still face societal and
familial opposition.

Saptapadi: In Hindu marriages, the Saptapadi or Seven Steps are a central ritual where the
couple takes seven vows to uphold their marital responsibilities and principles. Each step
signifies a commitment to different aspects of married life.

Kanyadaan: In Hindu weddings, Kanyadaan is a ritual where the father of the bride gives
her away to the groom, symbolizing the transfer of responsibility from the father to the
husband.

Mangalsutra and Sindoor: These are traditional symbols of marriage in many Indian
cultures. The mangalsutra is a sacred necklace, and sindoor is a red vermillion powder
applied to the bride's forehead.

Dowry: Although illegal, the practice of dowry continues to exist in some parts of India. It
involves the bride's family giving gifts or money to the groom's family, which can sometimes
lead to financial exploitation and social issues.
Legal Aspects: The legal framework for marriage in India is governed by various personal
laws based on religion. The Special Marriage Act, 1954, allows inter-religious and inter-caste
marriages and provides a secular option for marriage registration.

Social and Family Expectations: Marriage is often seen as a social obligation, and there is
immense pressure on individuals to marry within a certain age. The expectation to have
children and maintain family honor is significant.

Gender Roles and Patriarchy: Traditional gender roles and patriarchy have historically
influenced Indian marriages, although there is a growing movement towards gender equality
and women's empowerment.

Divorce and Separation: The concept of divorce was traditionally stigmatized, but divorce
laws have evolved to provide individuals with legal remedies in case of failed marriages.
Divorce rates have been increasing, especially in urban areas.

Family Values and Joint Families: Indian marriages often involve the merging of families,
with many couples living in joint family setups where multiple generations coexist.

Widowhood and Remarriage: The treatment of widows and their opportunities for
remarriage have varied across different regions and communities, with some areas being
more progressive than others.

With all these taken into account we now move on to analyze the nature of marriages in India
to classify them into the category of either a sacrament or a contract.
 ANALYSIS

Marriage in Hinduism transcends mere legal contract; it is a divine union, a sacrament

imbued with spiritual significance. Understanding this dimension requires delving into the
sections of ceremonies and registration in the Hindu Marriage Act of 1955, revealing the
sacred threads woven into the legal fabric. Marriage is a deeply cherished institution in India,
a country known for its rich cultural diversity and traditions. In the mosaic of Indian culture,
marriage stands as a sacred sacrament, a bond that transcends physical and emotional realms
and touches upon the spiritual dimension of life through the following aspects:

Historical and Cultural Significance: Marriage has been a pivotal institution in India for
thousands of years, and its significance can be traced back to ancient scriptures and texts. The
Vedas, the oldest sacred texts in Hinduism, contain references to the rituals and ceremonies
associated with marriage. This historical connection establishes marriage as an integral part
of Indian culture and tradition. In Indian culture, marriage is considered a sacred union, not
just between two individuals, but also between two families. It is a union that goes beyond
the mere union of two souls; it is seen as the union of two families, two communities, and
often, two religions. The exchange of vows and the performance of rituals during the
wedding ceremony are believed to create a bond that is not just physical but also spiritual,
binding the couple in this life and the afterlife.

Rituals and Ceremonies: Hindu marriage ceremonies are replete with rituals and customs
that symbolize the sacred nature of the union. The exchange of vows, the circling of the
sacred fire (agni), and the tying of the mangalsutra are all rituals that hold deep religious
significance. These rituals are not merely symbolic but are seen as acts of devotion and
commitment to the spiritual journey of marriage.

Religious Significance: In Hinduism, the majority religion in India, marriage is considered

one of the sixteen samskaras (sacraments) that mark an individual's life journey. The sacred
ceremony, known as "Vivaha," is replete with rituals and customs that symbolize the spiritual
and moral commitment of the couple. The sacred fire, known as the "Agni," is central to
Hindu weddings, representing purity, light, and divine witness to the union. For Sikhs,
another significant religious community in India, marriage is a pivotal sacrament called
"Anand Karaj," which means 'Blissful Union.' Sikh marriage ceremonies take place in a
Gurudwara (Sikh temple) and are centered around the recitation of hymns and prayers from
the Guru Granth Sahib, the Sikh holy scripture. The focus here is on spiritual union and
devotion to God. In Christianity, another prominent religion in India, marriage is considered a
sacrament that brings together two individuals under the grace of God. The ceremony is a
solemn affair conducted in a church and is seen as a covenant between the couple and God. It
underscores the sacredness of the union and the commitment to honor and cherish each other.

Social Significance: Beyond its religious and spiritual aspects, Hindu marriage plays a
crucial role in shaping the social fabric of Indian society. It fosters family ties, strengthens
community bonds, and provides a framework for the continuity of cultural traditions. The
institution of marriage is considered a cornerstone of a well-ordered and harmonious society,
contributing to the preservation of values and social stability.

Contemporary Relevance: While the traditional and religious significance of marriage in

India remains strong, the institution has also evolved to meet the changing dynamics of
society. Modern Indian marriages often incorporate elements of love, companionship, and
personal choice alongside the traditional customs. Arranged marriages, once prevalent, are
giving way to more love marriages, where individuals choose their life partners based on
personal compatibility.

However, even in contemporary India, the sacramental aspect of marriage remains deeply
rooted. Regardless of the type of marriage, the ceremonies, rituals, and traditions are still
upheld with great reverence. The sacred fire, the exchange of vows, and the blessings of
elders continue to play a central role in weddings, reaffirming the spiritual dimension of the
union.
Marriage, in India, is not just a union of two individuals; it is a complex and multifaceted
institution that carries significant legal, social, and cultural implications. While it is often
seen as a sacred and emotional bond, it is equally important to recognize that marriage in
India can also be viewed as a contract. The following points will help us under marriage in
India as a contract in terms of the legal, social, and economic baggage that comes along with
it:
Marriage Registration under Sec. 8 of the Hindu marriage act: In India, marriages are
often registered under the Special Marriage Act or the Hindu Marriage Act, depending on the
religion and personal preferences of the individuals involved. These acts provide a legal
framework that defines the rights and responsibilities of spouses, akin to a contract. By
registering their marriage, couples voluntarily enter into a legal agreement, consenting to
abide by the laws governing marriage.

Conditions and Terms: While the analogy of a contract holds true for some aspects of
Hindu marriage, it paints an incomplete picture. Beyond ensuring mutual consent and
meeting minimum criteria, these conditions and terms are imbued with social and spiritual
significance. Hindu marriages go beyond legal agreements, aligning with auspicious timings
and principles of Dharma (righteous living). Certain days, astrological configurations, and
rituals hold immense importance, ensuring blessings and a harmonious life for the couple.
Marriage isn't just a union of two individuals. Consent and blessings from families are
crucial, acknowledging the interweaving of lineages and social responsibilities. Additionally,
Gotra exogamy, avoiding unions within certain close family lineages, safeguards against
genetic risks and maintains social order. Sapinda refers to individuals sharing specific
familial bonds within which marriage is prohibited. This not only prevents potential conflicts
but also upholds notions of ritual purity and lineage sanctity. Hindu marriage ceremonies
aren't mere formalities; they are symbolic journeys infused with spiritual meaning. From
Kanyadan (father offering the bride) to Mangalpher (auspicious veil), each ritual reinforces
the couple's vows, societal commitment, and divine blessings. Marriage is seen as a sacred
duty (Dharmakarth), with the couple expected to perform their roles within the family and
society while striving towards spiritual growth together. This elevates the relationship beyond
a legal contract, emphasizing shared goals and mutual upliftment. Therefore, while the
contractual aspects of Hindu marriage are undeniable, considering it solely as such overlooks
its rich tapestry of social, spiritual, and symbolic elements. It's a multifaceted union rooted in
tradition, faith, and a shared journey towards fulfillment, making it much more than just a set
of conditions and terms.

Legal Obligations: Indian law recognizes certain rights and obligations of spouses within a
marriage, including maintenance, property rights, and inheritance. These rights and
obligations are legally enforceable, much like the terms of a contract, and failure to adhere to
them can result in legal consequences.
Family Alliances: In many Indian marriages, especially in arranged marriages, families play
a pivotal role in selecting suitable partners. These alliances are often forged with an
understanding of the social and economic benefits that come with the union, resembling a
contract between two families to unite their resources and status.

Dowry and Gifts: The practice of dowry, though illegal, still persists in many parts of India.
It can be viewed as a form of economic contract, where the bride's family offers gifts and
assets to the groom's family in exchange for the marriage. This transactional aspect of
marriage underscores its contract-like nature.

Financial Arrangements: Within marriages, financial arrangements such as joint bank

accounts, shared assets, and mutual investments are common. These financial agreements
represent a form of economic partnership, akin to a contractual arrangement where both
parties agree on how to manage their resources.

Ceremonies: Ritual as Embodiment of Divine Blessing: Section 7 of the Act outlines the
essential ceremonies constituting a Hindu marriage. From the mangalpatra reading, invoking
blessings upon the couple, to the kanyadaan, the symbolic offering of the daughter by the
father, each ritual transcends the physical. The fire, a sacred witness, transforms offerings
into celestial smoke, carrying prayers to the heavens. The saptapadi, seven steps taken
together, signifies not just a social union but a spiritual journey undertaken as one. These
ceremonies are not mere formalities; they are meticulously prescribed, each element acting as
a conduit for divine grace, infusing the union with sanctity.

Beyond Contract: The Sacramental Core: While the Act codifies marriage as a legal
contract, its essence lies beyond legal bindings. Section 5, for instance, states that only
Hindus can solemnize a Hindu marriage. This exclusivity indicates that the union transcends
legal recognition; it is a spiritual bond within the Hindu community, governed by shared
values and beliefs. Similarly, Section 12(c) allows for dissolution of marriage only under
exceptional circumstances, highlighting the enduring nature of the union, mirroring the
permanence of a sacrament.
Symbols Unveiling the Spiritual Dimension: The Act, though legal in nature, employs
powerful symbols that unveil the underlying sacramentality. The mangalsutra, worn by the
bride, is not just an ornament; it represents the wife's auspiciousness, her role as a sacred
shakti alongside her husband. The sindoor, a red vermilion mark, signifies not just marital
status but the wife's integration into the husband's lineage, a spiritual merging of destinies.
These symbols, deeply embedded in Hindu tradition, speak of a union that transcends the
mundane, resonating with the essence of a sacrament.

Registration or sealing the bond with divine witness: While Section 8 mandates
registration of the marriage, it is not merely a bureaucratic formality. It serves as a public
declaration of the sacred union, a testament witnessed not just by the state but by the divine.
The registration document becomes a tangible symbol of the couple's commitment, not just to
each other but to the tenets of their faith. It is a solemn record etched in the annals of time,
acknowledging the divine stamp upon their union.

Sacramentality: A Tapestry of Ritual, Law, and Faith: Through its intricate tapestry of
rituals, legal provisions, and symbolic motifs, the Hindu Marriage Act of 1955 reveals the
profound sacramentality of Hindu marriage. The Act, while upholding legal obligations,
simultaneously grants space for the expression of faith, weaving a sacred thread into the very
fabric of the union. It is this unique blend of legal and spiritual elements that elevates Hindu
marriage from a mere contract to a sacred sacrament, a divine blessing bestowed upon the
couple, their families, and their community.

The courts of India has delivered several landmark judgments regarding the nature of
marriage in India, whether it is considered a sacrament or a contract. The debate over whether
marriage is a sacrament or a civil contract is a complex and evolving one in India, as it
involves various personal laws and religious beliefs. Here are some important judgments that
shed light on this issue:

Tikait Ram Prasad v. Basant Singh (1885): This early case held that Hindu marriage is a
holy and indissoluble union of body and soul, continuing even after death. It emphasized the
religious and social aspects, viewing it as a sacrament beyond mere contract.
Shivonandh v. Bhagawanthuma (1924): This case reiterated the sanctity of marriage as a
bond formed before the sacred fire, declaring it inseparable due to the religious ceremony and
its eternal consequences.

Manmohini Devi v. Narayan Singh (1985): While acknowledging contractual elements, the
court stressed the sacramental essence of Hindu marriage, stating that its dissolution should
be considered only in exceptional circumstances due to its religious weight.

Sarla Mudgal v. Union of India (1995)3: In this case, the Supreme Court discussed the issue
of whether a Hindu marriage is a sacrament or a contract. The court held that under the Hindu
Marriage Act, 1955, a Hindu marriage is neither a sacrament nor a contract but a religious
sacrament and a civil contract.

Mohd. Ahmed Khan v. Shah Bano Begum (1985) 4: While this case primarily dealt with the
issue of maintenance for Muslim women, it also touched upon the nature of marriage in
Islam. The Supreme Court held that marriage in Islam is a contract, and therefore, Muslim
women have a right to claim maintenance under Section 125 of the Code of Criminal
Procedure.

Shayara Bano v. Union of India (2017)5: This landmark case dealt with the practice of
Triple Talaq (Talaq-e-Bid'ah) in Islam. While the primary issue was the validity of Triple
Talaq, the court also discussed the nature of marriage in Islam. The court observed that
marriage is a contract in Islam and that Triple Talaq is not an essential religious practice.
3. Sarla Mudgal v. Union of India, 1995 AIR 1531
4. Mohd. Ahmed Khan v. Shah Bano Begum 1985 AIR 945
5. Shayara Bano v. Union of India and Ors., 2017, 9 SCC

CONCLUSION & SUGGESTION

Marriage in India is not just a social contract; it is a sacred sacrament deeply embedded in the
country's historical, religious, and cultural fabric. It represents the fusion of two souls,
families, and often, two faiths. Despite evolving social dynamics, the sacredness of marriage
in India endures, with couples embracing both tradition and modernity as they embark on this
sacred journey. In India, marriage is not just an earthly bond but a spiritual connection that
resonates through generations, making it a truly remarkable and enduring institution.

In contemporary society, it is crucial to recognize the diversity of beliefs and values

surrounding marriage. In this assignment, we critically analyse the concept of marriage as
both a sacrament and a contract, where Hindu marriage stands out to be a sacrament. We
explore the historical, cultural, and religious dimensions of marriage, examining the varying
perspectives on whether it is primarily a sacred sacrament or a legal contract. Through this
analysis, we aim to shed light on the complex and multifaceted nature of marriage in
contemporary society.
It's important to note that India is a diverse and pluralistic country, and practices and beliefs
around marriage can differ significantly from one region, community, and religion to another.
While some traditions remain deeply entrenched, there is also a growing trend toward more
liberal and individualistic perspectives on marriage in modern India.

In India, marriage is not considered a sacrament in the way it is in some other cultures or
religions. However, marriage is a significant and sacred institution in Indian society, and it
holds great cultural and religious importance for many people.

Marriage in India is often seen as a social contract between two individuals and their families,
and it is accompanied by various religious and cultural rituals and ceremonies. Different
communities in India have their own traditions and customs associated with marriage, which
can vary widely across regions and religions.
In some religions practiced in India, such as Hinduism, Sikhism, and Jainism, marriage is
considered a sacrament, and there are specific religious rituals and ceremonies associated
with it. These ceremonies are meant to sanctify and solemnize the union of two individuals.
On the other hand, in Islam, marriage is a contract between two individuals, and while it is
not considered a sacrament, it is a highly respected institution with its own set of religious
customs and ceremonies.

In Christianity, which is a minority religion in India, marriage is often considered a sacrament

by various denominations.

So, while marriage is not universally considered a sacrament in India, it is undoubtedly a

deeply significant and sacred institution with diverse cultural and religious variations
depending on the region and the religious beliefs of the individuals involved.
 BIBLIOGRAPHY
1. Hindu Marriage Act, 1955, Acts of Parliament, 1955 (India).
2. Special Marriage Act, 1954, Acts of Parliament, 1954 (India).
3. Manmohini Devi v. Narayan Singh 1985 AIR 1678, 1985 SCR Supl. (2) 319
4. Mohd. Ahmed Khan v. Shah Bano Begum 1985 AIR 945
5. Shayara Bano v. Union of India and Ors., 2017, 9 SCC