By Guneet Singh Sidhu
A first glance at the heading of this essay is likely to remind anyone involved in academia of Adam Smith’s “An Inquiry into the Nature and Causes of the Wealth of Nations”. Perhaps, this work might not be as revolutionary or as ground-breaking as Adam Smith’s Magnum Opus (although, the intention remains the same), this essay is aimed at critiquing the moral premise of the institution of marriage.
Adam Smith happened to be a moral philosopher, the branch of philosophy dealing with what is right and wrong or how people ought to live their lives in relation to others. Prima facie, this is a tricky branch as it deals with the most basic issues that question our existence or rather, the way we exist. We shall refer to Lord Russell’s book “Marriage and Morals” and retrospectively apply it against contemporary marriage scenarios to test the cogency of his arguments. It is clear that even after 9 decades since Russell’s book has been published, the foundations of marriage are deeply embedded in the influence of orthodox moralists and in the grand scheme of things, the Church. Family law, much like moral philosophy, also ask the question, “Who is responsible for whom across different relationships?” and it is evident that the application of law involving such questions comes with the possibility of moral bias whose roots have, hopefully, been unveiled in this essay.
It may seem counter-intuitive but the institution of marriage is not as “holy” or “pious” as it appears to the “Average Joe”. A candid examination of Bertrand Russell’s book indicates that according to the teachings of St. Paul, fornication is the biggest sin while marriage only “enables the weaker brethren to withstand temptation; he does not suggest for a moment that there may be a positive good in marriage”. According to Russell’s interpretation of St Paul, sexual intercourse without marriage is the center stage of his thoughts and marriage is the morally acceptable alternative. In Russell’s words, “It is as if one were to maintain that the sole reason for baking bread is to prevent people from stealing the cake.”. As it turns out, most of the laws related to marriage are a result of the influence of orthodox moralists. For instance, the notion that boys shouldn’t be allowed to converse on sexual subjects has the intended effect of increasing the likelihood “that when he marries he will give his wife a disgust of sex and thus preserve her from the risk of adultery.”.
The Catholic Church, unlike St Paul, believes that the only reason which can justify marriage and sexual intercourse isn’t pleasure but the desire for a legitimate offspring. This motive always justifies marriage irrespective of the cruelty that may accompany it. Perhaps, it is from such influence that the question of whether marital rape is even actual rape arise. Consider this excerpt from Marriage and Morals: “If the wife hates sexual intercourse, if she is likely to die of another pregnancy, if the child is likely to be diseased or insane, if there isn’t enough money to prevent the utmost extreme of misery, that does not prevent the man from being justified in insisting his conjugal rights, provided only that he hopes to beget a child.”. Although this book was published in 1929, the highlighted text does not seem absurd in light of the current legal scenario and it comes without any surprise that the Delhi High Court in the case of Shashi Bala v Rajiv Arora extended the meaning of the word “cruelty” under section 13(1)(ia) of the Hindu Marriage Act to the spouse denying sex and the court justified it as “mental cruelty to such spouse”.
In the movie, “A Separation” by Asghar Farhadi, there is a scene where Nader is in Court for his trial for allegedly pushing the maid from the stairs who eventually had a miscarriage and the victim’s husband brings to light the fact that Nader is also involved in a divorce proceeding. Rationally, such a fact is immaterial as far as the present case is concerned but the fact that it was brought up clearly shows that the victim’s husband had the intention of portraying Nader as an “immoral” man. Going back to the orthodox moralists, “If, for example, married persons find themselves incompatible, the opponents of reasons seem to think that they should go on comfortably thinking themselves in a state of marital bliss.” In Russell’s opinion, this is an outcome of taboo morality and perhaps, it still continues to play a significant role in shaping the societal view of divorcees. This taboo morality is also highlighted by Srimati Basu in her essay, “Judges of Normality”, where she argues that for Indian courts, reconciliation is the optimal outcome and “the drive towards reunions lengthens cases despite the directive to clear out cases as soon as possible.”.
While describing the “hush-hush” behaviour of the Victorian society with regard to sex (which resonates a lot with modern Indian society) Russell comments, “It is possible by these means to keep a girl in ignorance until the night of her marriage, when it is to be expected that the facts will so shock her as to produce exactly the attitude towards sex which every sound moralist considers desirable in women.”. The harrowing tales of women raped or assaulted on their wedding nights are only a spot in an entire spectrum of abusive marital relationships, most of which don’t even come to light because the economic and more importantly, moral consequences of divorce or even protest are “disproportionately impoverishing for women”.
It is clear that the institution of marriage is only a less regrettable alternative to fornication according to orthodox moralists whose influence across centuries continues to affect the sacrosanct union of a couple in the present day or rather, the contemporary notion that upon reaching 30 “you are not single, you are unmarried.”.
Russell, Bertrand R. Marriage and Morals. New York: Liveright, 1929. Print.
Independent Thought v Union of India (W.P. (c) No. 382 of 2013)
188 (2012) DLT 1
Basu, Srimati. “Judges of Normality: Mediating Marriage in the Family Courts of Kolkata, India.” Signs, vol. 37, no. 2, 2012, pp. 469–492. JSTOR, JSTOR, www.jstor.org/stable/10.1086/661712
Guneet Singh Sidhu, the author, is a third year law student at Jindal Global Law School.
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