According to Tomlin's Law Dictionary – “Marriage is a civil and religious contract, whereby a man is joined and united to a woman for a civilised society.” In other words, the very foundation of a family and society is marriage. This article discusses the views of different religions on whether the institution of marriage is regarded as sacred or a contract between 2 persons.
CHRISTIAN MARRIAGES – WHETHER CONTRACT OR SACRAMENT?
“Marriage consists of rules and regulations which define the rights, duties, privileges of husband and wife, with respect to each other.” - Lundberg
“Marriage is a stable relationship in which a man and a woman are socially permitted, without loss of standing in the community to have children.” - Harry M. Johnson
Marriage is considered to be a part of the Church and a sacrament marriage is part of the church’s ritual. Consent between a man and a woman is an important part of Christian marriages because when a man and woman convey their consent to marry before the Church and God it is said that they have conferred themselves to the sacrament of marriage. There are wedding vows in Catholic marriages in the form of 3 questions –
1. Whether they have come with free consent?
2. Will they honour each other as husband and wives for the rest of their lives?
3. Will they accept children lovingly and bring them up as per the laws of Christ and church?
According to the Bible, (Matthew 19:6) Jesus taught that marriages are irreversible and thus God has joined together so no human being must be separate. It is said that – “Through Sacrament of marriages, Jesus gives dignity and strength to the real meaning of marriages.”
As per the writings of St. Paul (Ephesians 5:25 - 26), it says “husbands love your wives even as Christ loved the church and handed himself over her to glorify her.”
According to the teachings of the church, God created man out of love and so asks a man to love and thus the union of man & woman is a sacrament. In Christianity, marriage becomes a sacrament once it is conferred by a bishop or a priest. The teachings of the church also point out that if the popular belief of the people regarding marriage is believed that a wedding is a business between the bride and the groom then it cannot be said to be true in a sacramental sense. The Church, witnesses in a marriage has a part in the sacrament of marriage.
For those who are followers of the Roman Catholic Church, Catholics and Orthodox Christians believe in the sacrament of marriages. While the Protestants do not believe in the idea of calling marriage a sacrament.
HINDU MARRIAGES – WHETHER CONTRACT OR SACRAMENT?
According to Vedas, “A marriage is the union of flesh with flesh and bone with bone.”
In Hinduism, marriage is highly regarded as a sacramental union – a sacrosanct, permanent, indissoluble and eternal union. A man or a woman without a spouse (I.e. a lawfully wedded husband or wife) enjoys no social status and is looked down on in the community. In other words, it used to be regarded as “a spouseless person is like a leafless tree.”
It is the union of marriage which the Vedas regard as indissoluble. Hindu marriages as sacrament imply 3 things mainly –
1. Marriages in Hinduism is considered sacred. It is not a contractual bond rather considered a religious bond. It is a holy union.
2. It is a permanent bond between husband and wife that does not end with life it continues even after death I.e. when the bridegroom and bride take 7 steps (pheras / feras), are taken around the holy fire it is said that they will be together for the next 7 lives.
3. Hindu marriages are said to be indissoluble because once a marriage is performed nobody can break this union. Hence it is considered a permanent bond.
Marriage confers social status and regulates social life as well. Thus the very foundation of family and society is marriage. In this view, a Hindu marriage is considered to be sacred. The Hindu religious books consider marriage as one of the holy union amongst other holy rituals and customs. Hindu marriages as a sacrosanct can be justified with reference to the ancient texts and modern law.
According to ancient texts, a marriage is a ‘samskara’ (religious rite) for Hindus. According to Shastras, marriage is a holy sacrament and the gift of a girl (Kanyadaan) to a suitable person is a sacred duty on the father, who derives spiritual benefit after the performance of “Kanyadaan.” As per the Vedas, marriage is a sacred institution, which regulates social life.
Hindus regard marriage as sacred due to the following reasons given in the ancient text:
1. According to Sathpatha Brahmana, the wife is half of the husband I.e. ‘Ardhangini.’ Man is only half before marriage and becomes a full-fledged person on marriage.
2. Manu said that once a man and woman are united in marriage, there should be no differences between them and must remain faithful to each other.
3. Wife considered being man's half, is the source of Dharma, Artha, Kama & Moksha.
4. A marriage confers social status on a man. Hence Shastras do not allow a man to honour guests without a wife, which is an act of Dharma.
5. The wife plays a significant role in the social, cultural and economic life of a man. Hindu philosophy describes wife as – a. Karyeshu Mantri; b. Karaneshu Daasi; c. Bhojyeshu Maatha; d. Sayaneshu Rambha. It is further said that the wife is considered instrumental for the growth and destruction of a man's career.
• Case Laws: Gopala Krishna v. Mithilesh Kumar [AIR 1979 All. 316]
The Allahabad High Court laid down that the institution of marriage under the Hindu Law is a sacrament, not a mere social legal contract.
According to modern law, Hindu marriage is a holy union, since religious rites and ceremonies are strictly complied with, in the solemnization of marriage. Non-observance or performance of the ceremonies (I.e. Kanyadaan and Saptapadi) renders the marriage void or invalid. Similarly, section 9 of the Hindu Marriage Act, 1995 strengthens the matrimonial tie by making provision for restitution of conjugal rights.
– Is Hindu Marriage a Civil Contract?
A Hindu marriage cannot be regarded as sacred or sacrosanct at all times in respect of all the cases. According to some modern writers of Hindu law, Hindu marriage is not only a sacrament but also a contract. Certain legislation in modern law renders a marriage as a civil contract by making provisions for the dissolution of the marriage.
Though in today’s time, indeed, it is no more understood an indissoluble bond rather nowadays this bond ends up in divorce within few months or few years leave alone 7 lifetimes. Marriage to be a sacrament should be an indissoluble union. Sections 13 and 13-B of The Hindu Marriage Act, 1955 made provisions for the dissolution of marriage. The marriage to be a sacrament as per ancient Hindu texts should be an eternal bond. This view was liberalised by the passing of the Hindu Widows Remarriages Act, 1856.
In view of the above, it may be concluded that Hindu Marriage is both a sacrament and a civil contract.
MUSLIM MARRIAGES – WHETHER CONTRACT OR SACRAMENT?
Marriage under Mohammedan law is a civil contract. Hence, it should attract all the incidents of a valid contract like any other stipulated in the Contract Act. The essentials of a valid contract are – offer/ proposal, acceptance, free consent, consideration, competency of parties likewise in a Muslim marriage (Ijab) offer, (Qubool Hai) acceptance, (Mehr) consideration, free consent, competency of the parties are essentials to a valid Muslim marriage.
Like a contract is void or rendered invalid if any of the above conditions are not fulfilled similarly a Muslim marriage can be rendered void or invalid if the same is not complied with. Marriage under Islam is not a sacrament but a civil contract. All the rights and obligations it creates arise immediately and are not dependant on any condition precedent.
Marriage (Nikaah) under Islam is deemed to be a civil contract for mainly 2 purposes mainly – a. procreation and b. legalization of children. Unlike Hindu marriage, which is a sacrament, according to Islamic Law, a marriage Nikaah is permanent and an unconditional civil contract made between 2 parties of opposite sexes with a view to mutual enjoyment and procreation of children.
As a Muslim marriage in the legal sense is a civil contract that can be rescinded by divorcing the spouse by pronouncing ‘talaq’ I.e. divorce. There are different types of divorce in Islam to end a marriage and a person can remarry again with another person after a proper divorce and after woman completing iddat (the period of the menstrual cycle)
• Case Law: Khurshid Bibi v. Mohd. Amin
This was a judgement passed by the Supreme Court of Pakistan. The judgement stated that among Muslims, marriage is not a sacrament, but it is like a civil contract. Such a contract undoubtedly has spiritual overtones and undertones but in legal essence, it remains a contract between 2 parties.
The judgement did not clearly state that a Mohammedan marriage is purely a civil contract. It merely regards to be in nature of a civil contract.
Most religious books of all the above religions believe in marriage being a sacrament except in Islam in legal essence marriage is regarded as a civil contract. Although a famous judgement in the case of Anis Begum v. Mohd. Istifa wherein the judgement stated that a Muslim marriage is both a sacrament in the religious context and a civil contract in a legal context.
Though there are other alternatives to marriage which is opted by people in today's time who do not believe in the institution of marriage, for example, a live-in relationship where it is not necessary to marry but 2 persons live together, consummate just like husband and wife. But such relationships are not accepted by society though it is accepted by courts of law. And such a concept that shuns the institution of marriage is not only accepted by Hinduism but also not accepted in any other religious books.
But in reality, it is upon the people whether they consider marriage as sacred or as a contract that can be discontinued whenever they wish to.