Rules Regulating Marriage

Rules Regulating Marriage

Marriage is a fundamental social institution governed by a complex of customs, norms and rules that regulate the relationship between a sexually associating pair of adults. These rules determine how marriage is established and terminated, define the reciprocal obligations and expected behaviour of the partners, and specify the socially accepted restrictions concerning who may enter into such a relationship. Thus, marriage is not merely a private relationship but a socially regulated institution concerned with family organisation, descent, inheritance, reproduction and the upbringing of children. Murdock describes marriage as a complex of customs that regulates the marital relationship and the obligations and restrictions associated with it (Murdock, 1965, pp. 1–2).

One of the most important areas regulated by marriage is sexual behaviour. Murdock argues that sexual behaviour cannot be left entirely without social restrictions because it may affect the cooperative relationships on which social life depends. Therefore, societies develop different sexual taboos, restrictions and permissions to regulate sexual relations. These rules vary considerably from one society to another. While marriage commonly provides socially recognised sexual rights between spouses, these rights are not always exclusive. Murdock’s cross-cultural evidence shows that extramarital sexual relations may be prohibited with unrelated persons while being permitted with certain relatives. In some societies, for example, a married man may legitimately have an affair with a female relative, including a sister-in-law.

Legal Rules Regulating Marriage: Indian Perspective

In India, marriage has traditionally been regulated by religious customs, caste and kinship norms, and community practices, and in modern times it is also governed by statutory law. Kapadia’s discussion shows that marriage selection in Indian society was historically shaped by rules of endogamy and exogamy, including restrictions associated with caste, gotra, pravara and sapinda relationships.

1. Age at Marriage

The law regulates the minimum age at which a person may marry. Under Section 5 of the Hindu Marriage Act, 1955, the bridegroom must have completed 21 years and the bride 18 years at the time of marriage. The Special Marriage Act, 1954, prescribes the same ages, while the Prohibition of Child Marriage Act, 2006, defines a child in relation to marriage as a male who has not completed 21 years of age or a female who has not completed 18 years of age.

2. Consent and Parental Involvement

Traditional Indian marriage was strongly influenced by the family and community, particularly in the selection of marriage partners. Kapadia’s discussion of marriage selection illustrates the importance of caste, kinship and customary rules in determining whom a person could or should marry. In the modern legal framework, however, parental consent is not a general requirement for an adult who satisfies the statutory conditions for marriage under laws such as the Hindu Marriage Act and the Special Marriage Act.

3. Prohibition of Bigamy and Regulation of Polygamy

The Hindu Marriage Act, 1955, requires that neither party have a spouse living at the time of marriage, thereby establishing monogamy for marriages governed by the Act. Similar monogamous requirements apply under the Indian Christian Marriage Act, 1872 and the Parsi Marriage and Divorce Act, 1936.

Kapadia also shows that polygyny historically existed among some Indian communities and discusses its connection with social status, caste and family organisation. The development of legislation gradually placed legal restrictions on such practices.

In the case of Muslims, marriage is governed in specified matters by Muslim Personal Law (Shariat) under the 1937 Act. The Supreme Court has noted that Muslim personal law permits a Muslim man to marry up to four women, although this is a permissive rule of personal law rather than a requirement of Islam.

4. Registration of Marriage

Marriage registration provides an official record of the marital relationship and can help establish the legal status and rights of the spouses and children. Indian marriage registration operates through different statutory frameworks, including the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and the Indian Christian Marriage Act, 1872.

The Special Marriage Act is particularly significant from a sociological perspective because it provides a civil form of marriage that can be solemnised between persons irrespective of their religious identities, subject to its statutory conditions. Kapadia discusses the historical development of the Special Marriage legislation in relation to marriage outside orthodox religious and caste restrictions.

5. Prohibited Relationships

Indian marriage law also places restrictions on marriage between certain close relatives. The Hindu Marriage Act prohibits marriage within specified degrees of prohibited relationship and between sapindas, unless a recognised custom permits such a marriage. These legal restrictions have a clear connection with the traditional sociological concepts of exogamy and kinship regulation discussed by Kapadia.

In traditional Indian society, marriage regulations are classified into prescriptive, preferential, and proscriptive rules, not only guide mate selection but also function as essential mechanisms for maintaining social order, cultural continuity, and collective solidarity,

1. Preferential Marriage Regulations

Preferential marriage is a system in which specific relatives or categories of relatives are preferred as spouses. These customs are often guided by societal norms, kinship systems, and the need to maintain alliances, property rights, or status within a community.

a. Cross-cousin marriage: The marriage between father’s sister’s children and mother’s brother’s children is called cross-cousin marriage. The marriage between father’s sister’s children and mother’s brother’s children is called a cross-cousin marriage. For example, Kharia, Oraon,  Khadar, Khasi and Gond. For example, Kharia, Oraon,  Khadar, Khasi and Gond.

b. Parallel cross-cousin marriage: The marriage between father’s brother’s children and mother’s sister’s children is known as parallel cousins. For example, among the Bedouins of Arabia, this type of marriage is very popular. It is also practised by the Riangs of Tripura.

c. Levirate (Latin: Levir means husband’s brother): The practice of being actual or potential mate to one’s husband’s brother is called levirate. This is practised by the natives of Australia, the Biblical Hebrews, the Incas, the Muslims of India, the Kukis, the Lushais, the Nagas, the Karbis, the Vedas etc. In patrilineal societies, after a man’s death, his heir is his brother, who not only succeeds to his status and responsibilities but also inherits all the deceased's possessions, including his wife or wives.

d. Sororate (Latin: Soror means sister): The practice of being actual or potential mate of one’s wife’s sister is called Sororate. It ensures the replacement of a spouse for the continuation of the alliance and childcare. Common among Sema Naga tribes, Eskimos, etc. The Yanomami tribe of Venezuela practices sororate marriage to ensure the continuity of familial alliances.

Functions of Preferential Marriage:

a. Strengthening Kinship Ties: Preferential marriages ensure that alliances remain within the kin group.

b. Economic Benefits: Consolidation of property and resources within the family or lineage.

c. Cultural and Social Stability: Ensures continuity of traditions, norms, and values, which lead to social stability and cultural continuity.

Criticism of Preferential Marriages:

a. Genetic Risks: Edward Tylor argued that close-kin marriages could lead to higher genetic risks.

b. Social Challenges: Modern societies moving towards individual choice in marriage often perceive such customs as restrictive.

Preferential marriages reinforce alliances, protect property, and maintain social continuity, providing a deeper understanding of the relationship between marriage, kinship, and social structure.

2. Prescriptive Marriage Regulations

Prescriptive marriage regulations are strict marriage rules that must be followed within a society, with sanctions imposed for any violations. The most common prescribed norms are exogamy and endogamy, which dictate whether one must marry outside or within a specific social group.

a. Endogamy: Endogamy, derived from the Greek “endo” (within) and “gamy” (marriage), requires individuals to marry within their social group, such as a caste or tribe. Lewis defines endogamy as “The rule that requires a person to marry within a specific social group of which he is a member”. Endogamy is the custom of marrying within one’s own group, such as within a specific religion or social class. For example, the Urapmin tribe of Papua New Guinea practices strict endogamy, and caste endogamy is common in many Indian communities.

Significance of Endogamy:

i. Preservation of Social Status: Endogamy helps maintain social boundaries and purity, conserving property and resources within the group.

ii. Economic and Social Security: Endogamous marriages prevent the loss of property or labour services to external groups, ensuring that resources remain within the community.

iii. Protection from Outside Influence: Among some communities, such as the Tharu of Tarai, fear of external influence or black magic reinforces the practice of endogamy to protect the group’s purity and security.

b. Exogamy: Endogamy, derived from the Greek “endo” (within) and “gamy” (marriage), requires individuals to marry within their social group, such as a caste or tribe. Exogamy is a social rule mandating marriage outside of a culturally defined group, such as a clan or lineage. Anthropologists like Hoebel define exogamy as a way to maintain genetic diversity and avoid inbreeding within close blood relations. Bronislaw Malinowski further explained that exogamy aligns with the incest taboo, preventing marriages between close relatives. For example, exogamy is observed among groups like the Gonds, Baiga, Ho, and Oraon, as well as in the Toda tribe of India, which practices clan exogamy. The Hindu gotra system is another example, where individuals are prohibited from marrying within the same gotra (lineage).

Reasons for Exogamy:

i. Preventing Inbreeding: Exogamy reduces the risk of genetic disorders by preventing marriages between close blood relatives.

ii. Expanding Social Ties: Marrying outside one’s group fosters alliances with other families and communities, strengthening social bonds.

3. Proscriptive Marriage Regulations

Proscriptive marriage regulations define the boundaries of taboo, prohibiting unions that are socially or biologically unacceptable.

a. Incest Taboo: The incest taboo forbids marriage and sexual relations between close relatives, reinforcing the boundaries within family structures. Although widespread across societies, there are notable historical exceptions, such as in early Greek and Hawaiian royal families, where incestuous unions were permitted for political or religious reasons.

Significance:

i. Genetic Diversity: The incest taboo reduces the likelihood of genetic disorders by promoting diversity in the gene pool.

ii. Family Harmony: By prohibiting sexual relations between close relatives, the incest taboo maintains familial harmony and reduces potential conflicts.

iii. Rules Against Marriage within Same Gotra or Sapinda: Violations are met with social sanctions, particularly by caste panchayats or khap councils. These prohibitions safeguard the sacredness of ancestral lines, reduce social friction, and ensure that marriage serves broader community interests.

Conclusion

Marriage regulations, whether preferential, prescriptive, or proscriptive, have played a significant role in shaping societies throughout history. While these regulations can serve specific social functions, such as promoting cohesion within groups or protecting against genetic issues, they can also lead to social divisions, coercion, and discrimination. It is essential to continue examining and reassessing these regulations in contemporary societies to ensure they align with the principles of justice, equality, and individual autonomy. However, modern dynamics such as inter-caste marriages, urbanisation, and judicial reforms have introduced new patterns. For instance, the Supreme Court’s decisions in Lata Singh v. State of UP (2006) and Shafin Jahan v. Asokan (2018) upheld the right to marry of one's choice, signalling a shift toward individual rights over community-enforced rules. Yet, even today, marriage remains a negotiation between tradition and modernity, between social solidarity and personal liberty, a field rich for continued anthropological reflection.

 

References

Murdock, G. P. (1965). Social structure. The Free Press.

Kapadia, K. M. (1966). Marriage and family in India (3rd ed.). Oxford University Press.