CONTRACT OF MATRIMONY


During the last few days I came across two interesting views on marriage. The first one reads as below.

“Hindu marriage is a sacred and holy union of husband and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth. It is combination of bone to bone and flesh to flesh. To a Hindu wife her husband is her God and her life becomes one of the selfless service and profound dedication to her husband. She not only shares the life and love, but the joys and sorrows, the troubles and tribulation of her husband and becomes an integral part of her husband’s life and activities. Colebrook in his book “Digest of Hindu Law Volume II’ described the status of the wife thus:-
“A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts: – whether she ascends the pile after him or survive for the benefit of her husband, she is a faithful wife.”
(Ascend the pile here, in my view, means ascending the funeral pyre of the husband).

Further Colebrook in his book Digest of Hindu Law Volume II quoted Mahabharata at page 121 thus:-
‘Where females are honored, there the deities are pleased; but where they are unhonoured there all religious acts become fruitless.’
This clearly illustrates the high position which is bestowed on Hindu women under Shastric Law.”

The Second one had the following title.
“Will pre-nuptial agreements shorten the lengthy process of divorce? Will they help all women or just the urban elite?”

Pre-nuptial agreement “is just a signed, notarized and registered document for fair division of money, assets and liabilities and custody of children if a marriage falls apart in future.

The first extract is from a Supreme Court Order passed on December 2, 2015 Hon. Justice M Y Eqbal and Justice C Nagappan on a transfer petition for divorce by mutual consent. The Book titled “Digest of Hindu Law referred to in Order was published in 1801 and is based on translation of Sanskrit literature. The Order attempts to give an enduring relief to the wife – much beyond what she had asked for. The Order is brief and worth reading at the following link.

http://supremecourtofindia.nic.in/FileServer/2015-12-02_1449044155.pdf

The second one is a newspaper report which discusses the pre-nuptial agreement in the Indian context and can be read in the following link.

http://www.telegraphindia.com/1151125/jsp/opinion/story_54807.jsp#.VmAa8KEw_ug

I came across reference to the Supreme Court Order in newspapers and out of curiosity read the full Order. The passage quoted, above when juxtaposed with the subsequent news item on pre-nup, represents a very contrasting picture. The first one has the Pati Parameshwar approach (tum mere swami ho- common dialogue in old Hindi movies). The second one presents a contractual approach to matrimony. It is somewhat like the commercial agreements we draw which would have clear cut termination and penal clauses. The approach is “hope for the best and prepare for the worst.” We cannot fault the latter approach in the normal course, but such an approach to affairs of heart…?

The “husband is God” view appealed to me. I wondered whether I could use this concept to gain upper hand in domestic issues/arguments. After all God is never wrong. Unfortunately most wives know their spouses too well and this centuries old argument would have worn thin. It would be huge leap of imagination for a woman to have two images of God – one of a grey/white haired stooping aging/aged human being with a growing paunch and waning bank balance and another of a handsome God we see in temples such as Lord Balaji of Trupati, – and treat both with equal reverence.

The next remark about “selfless service and profound dedication” seemed inspiring. I wondered whether I could include making various varieties of bajji (Mirchi, potato, brinjal), bonda, medu vada etc. under this classification. Making these items well and at regular intervals with variety thrown in would, in my view, reflect selfless service and profound dedication. It could be worth a try, though earlier attempts had given only sporadic returns.

The other remarks about “joys and sorrows and trials and tribulations” seemed highly avoidable as it could invite scathing remarks about lack of any joy and a long enumeration of sorrows, trials and tribulations (like flow of water in Chennai during the recent floods). So this should remain firmly embedded in the Order and is not meant for general discussion. Discretion is always the better part of valor.

Now, quoting from late Henry Colebrook’s book published 214 years back without mentioning the vintage, to my mind seems unfair. Most readers would be wondering what pile the wife should ascend after her husband.
The other quote from Mahabharata about honoring women is perhaps more and more relevant today. I strongly believe that advancement of any society firmly rests on treating both gender with equal respect. Any society which does not honor women will remain backward in many respect. Examples are all around us. It also reinforces how our epics and puranas are still relevant from a conceptual context.

Now coming to Pre-Nuptial Agreement, this is a little known concept beyond the English speaking society which would represent 3% of the Indian population. Still we can explore how it may be implemented here.

In Indian context, would it be possible to discuss a draft pre-nup agreement before the engagement (Nischayathamboolam)? If so, how many members of both sides would be involved? Would the couple have a say in it? Would it be exchanged along with other gifts at the engagement ceremony? Would the priest apply Haldi & Kumkum paste on four corners of the draft document? Maharashtra Government would in due course impose a special stamp duty based on the financial figure stated in it, if it finds that ten such agreements are signed and appears in the Daily Mirror. Some minister would make some profound statement about sanctity of marriage and high stamp duty to be imposed as a deterrent against such commercial agreements.

When is a pre-nup agreement relevant to a normal middle class family? All of us have heard some horror story about divorce proceedings occurring within a brief period of marriage. I know of a case where the husband and his parents were jailed for some period of time based on trumped up charges of cruelty. Divorce was agreed after a compensation of several million rupees. The individual is now happily married again and has two children. I know him from the time he was born and know the injustice done. This was an arranged marriage where there were common relatives knowing both sides.

When we see such cases hurting ordinary middle class families (not those ultra -rich couples whose adventures in matrimony are splashed by Mirror regularly) we start thinking that pre-nup agreement makes eminent sense.

India is changing. Women- whichever economic, social, educational strata they belong to- have started asserting themselves. They desire their children to be educated and enjoy all benefits they were denied. This Pati Parameswar approach may survive in certain segments of society. But this would be in many cases due to inability of the women to assert due to various reasons rather than due to lack of opportunity.

The para quoted in beginning ( from the Supreme Court Order) some how misses the beauty of a man woman relationship (when positive). Any couple who have faced bad and good times together would know the difference between existence and living.

I am sure each reader would have some views on what is stated above. Do share it with all.

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3 Responses to CONTRACT OF MATRIMONY

  1. Subharaman says:

    Nice write up. These days pre nup agreements are in vogue. Children are aware of this. Signing of pre nup agreement has a presumption that marriage will not long last though practically appears to be good. I think value systems are getting eroded. Our society has become like an American society. Children were the greatest glueing factor in marriage. Now even this factor is losing its importance. Perhaps the new commode called kohler will make people to stick to each other. Have you seen this advt on TV?

    Well I think this piece is quite intellectual. Normally you write like R K Narayan.

  2. N S SUBRAMANIAN says:

    A very fine write up. Another point is that it is a conjuction of the heart & soul. Yes in the vintage the women were subjugated psychologically by her own parents, siblings, relative and friends w.r.t. the perception of her husband and his family. The failures
    were few, though the disagreements, fights or unhappiness were
    in existence through forbearance. Time healed and it was “ONE HAPPY FAMILY”. Contrary is today. Though the times have changed and women empowerment is gaining, there is a lot to be done by the society to the newly weds “councelling” (present day terminology). ADJUSTMENT, GIVE & TAKE POLICY – wil create a WIN WIN situation of the “institution of marriage”.

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