Social Institutions and Law: Family and Marriage in India

1. MARRIAGE
AND FAMILY
SOCIAL INSTITUTIONS AND LAW

2. FAMILY
▸We are born into a family
▸A universal social institution, despite its changing forms and
structures
▸A cradle of socialisation
▸Many functional roles: as a support system vs as a barrier to
individual liberty, promoting undesirable values like
patriarchy

3. FAMILY AS THE BASIC BUILDING BLOCKS OF THE
ARCHITECTURE OF SOCIAL ORGANISATION
▸Family as a result of evolutionary process- theory by Morgan
frazer- earlier promiscuous behaviour- when became a
social animal- social relations established- family started to
take a concrete shape- a rejected theory
▸Classical definitions- family as a group based on marriage,
parenthood, emotional bonds, common residence, and
stipulation of domestic services
▸Functionalists- George Peter Murdock- studied more than
250 societies-both industrial and traditional

4. ▸According to George Peter Murdock, the family is a social group
characterised by common residence, economic cooperation and
reproduction. It includes adults of both sexes, at least two of
whom maintain a socially approved sexual relationship, and one
or more children, own or adopted, of the sexually co-habiting
adult’s. (contested definition)
▸A family is a primary social institution, consisting of some adults,
reproductive relationship, children, emotional bond, relations-
consangual and affinal, household, economic cooperation and
so on.

5. DISTINCTIVE FEATURES OF FAMILY
(ACCORDING TO MCIVER AND PAGE)
▸Universality- found in all hitherto existing societies
▸Affective affinity- provides emotional basis
▸Limited size- smallest social unit
▸Nuclear position- in the social structure, a key position as a
cornerstone of socialisation
▸Responsibilities of the members- members are assigned with
specific duties
▸Social regulations- lays down values

6. FUNCTIONS OF FAMILY
According to George Murdock, family plays four universal
functions-
▸regulates sexual relations,
▸controls reproduction,
▸accounts for economic survival and
▸socialises children
▸Emotional support

7. TALCOTT PARSONS VIEW-‘INDIVIDUAL OR
MANIFEST’; ‘SOCIETAL OR LATENT’
Manifest functions
Emotional support- in modern society other kinship ties are weak-
personality stabilisation
Physical security- especially young ones and older ones
Financial security and placement- individuals take family business as a
means to economic security
Sexual gratification and regulation of sexual behaviour
Early learning, imparting life skills
Entertainment
Social status and identity to individuals

8. ▸Reproduction- keeps the society alive- physical
maintenance- formats important
▸Cultural transmission- values of society transmitted
▸Primary socialisation
▸Mechanism of social control- sanctions, rules, punishments
to ensure socially accepted norms
▸Physical and emotional care of the geriatrics and the
disabled
▸As a unit of economic production
SOCIETAL OR LATENT FUNCTIONS

9. DYSFUNCTIONS
▸Marxists- it breeds notions of conformity- as an ideological
conditioning device in an exploitative society- denies individual
freedom, hindrance in development of individual’s self
▸Edmund Leach- family is isolated from larger society- as a store
house of stress and tension; parents fight, children rebel
▸Feminists- Margret Benston- family perpetuates unpaid labour
▸Legitimises sexual abuse and violences, transmits the notion of
patriarchy

10. MARRIAGE
▸A socially acknowledged and approved sexual union between
two adult individuals
▸According to Malinowski, “Marriage is a contract for the
production and maintenance of children”
▸Many definitions: socially-accepted cohabitation, a legal and
social contract, commitment etc
▸Sexual gratification and procreation with socially sanctioned
sex-relationships and economic cooperation
▸Marriage is the most legitimate and accepted way of
establishing the most fundamental social unit called family

11. FUNCTIONS
According to Edmund Leach,
▸Marriage provides an opportunity to legitimise the offspring
▸Socially approved access to the spouse’s sexuality, labour
and property
▸For the establishment of affinal relationship between persons
and groups
▸Confers various domestic rights and it serves as the basis of
formation of household, division of labour, etc in the family

12. ▸But today, marriage is no longer an affair concerned with
adults of opposite sexes only
▸No longer a mechanism for procreation only
▸Edmund Leach: “all universal definitions of marriage are vain”
▸Incest taboo- a principle which disallows establishment of
sexual relationship with close primary kin like- father, mother,
sister, brother, son, daughter etc.; universally followed; in
some groups, parallel cousin marriages are allowed but for
some it is taboo; according to Levi Strauss incest taboo is
biologically ingrained!

13. TYPES OF MARRIAGE
Civil marriage and ritualistic marriage
▸Religious practices often influence family and marriage
▸At the same time, governments have specific legislations to
permit or promote marriages beyond such ritualistic
frameworks; e.g.: The Special Marriage Act, 1954 in India
(freedom to adults; can marry with their mutual consensus if
they have crossed minimum age for marriage); as a tool of
social reformation
▸Facilitated inter-caste and inter-religious marriage in India
▸Breaking the orthodox traditions and values regarding
marriage

14. MONOGAMY AND POLYGAMY
▸Monogamy- single partner, most predominant form of marriage
▸Polygamy- many partners; e.g. Muslim personal laws in most
of the countries allow upto four wives for a man! However,
instances of polygamous behaviour are coming down
▸Polyandry- many husbands- eg: Himalayan tribes like Kinni of
Himachal Pradesh, Sherpa of Nepal, Namboothiri-Nair
Sambandham in Kerala
▸Many countries like USA have banned Polygamy as a matter
of state policy

15. ▸Endogamy (must marry within the same religion or caste) VS
Exogamy (cannot marry from one’s own village/gotra)
▸Arranged Vs Love Marriage (love marriage not a product of
modernity; existed earlier too. e.g.., ‘Gandharv Vivah’ was a
common form of marriage during ancient India)
▸Preferential marriage- cousin marriage (especially among Hindus
and Muslims), levirate marriage (a woman marries one of her
husband’s brothers after her husband’s death if there were no
children, in order to continue his line), sororate marriage (husband
marriage the sister of his wife after the death or infertility)
SOME OTHER TYPES

16. ▸Re-marriage: in case of widowhood and divorce or desertion;
modern societies like USA, divorce rates are as high as 35
percent; remarriages are very common these days; Anthony
Giddens calls it as “serial monogamy”
▸Community specific rules based marriages- among the
tribals, various forms of marriages like: marriage by
kidnapping, elopement, forced marriage etc
▸Convenience or sham marriage- to get citizenship (as the
spouse of a permanent citizen)

17. OTHER SIDE OF THE COIN-
DYSFUNCTIONS
▸Dowry- Iravati Karve in her study found that dowry is becoming more
entrenched and price of grooms are increasing with education
▸Marital rape and violence
▸Child marriage- still practiced in Rajputs of Rajasthan and in states like
Bihar
▸Polygamy- among many tribes and Muslims (many countries like Pakistan
introduced legislations were introduced making it necessary for the Khazi to
solemnise plural marriages only if the first wife gave her written consent,
triple talaque bill); hypergamy- notion of inferiority of woman
▸Increasing divorce and marital breakdowns- impact on individuals and
children
▸Feminists view marriage as an institution promoting patriarchy- wife as a
property of husband

18. MARRIAGE AS A SACRAMENT VS
CONTRACT
▸In India, marriage is a universal social institution- only .5 percent of
women never marry in India
▸According to Mandelbaum- “marriage is much more than a sexual
union in India, as a marriage mobilises the family’s social resources
and through marriage, members renew kin ties or establish new bonds
of kinship”
▸In India, marriage is a sacrament and a duty among Hindus
▸Ancient Hindu texts point out three main aims of marriage- Dharma
(duty); Praja (progeny); and Rati (sensual Pleasure)
▸According to Kapadia, rites like ‘Homa’ or offering to fire, ‘Panigrahana’
or taking the hand of bride and ‘Saptapadi’ or taking seven steps
together by bride and groom etc give marriage a social meaning

19. ▸Considered as indissoluble among Hindus
▸Bound by endogamy and exogamy
▸Endogamy- based on caste and religion
▸Exogamy- based on Gotra/clan/village etc (not that strict in
south India)
▸Hindu Marriage Act 1955- doesn’t allow marriage within five
generations on father’s side and three on mother’s side,
polygamy is also prevented
▸Many rituals are accompanied by the many ceremony

20. MARRIAGE AS A CONTRACT AMONG MUSLIMS
▸Among Muslims, marriage is still governed by religious factors
▸Not a sacrament, but a contract
▸Marriage is solemnised through a document called Nikahnama
▸Polygamy is allowed as per law- male can have upto four wives
▸Endogamy is followed- both cross cousin and parallel cousin
marriages allowed
▸Concept of ‘purity of blood’- marriage preference
▸Mehr- guaranteeing of some security in the name of bride

21. IMPACT OF LEGISLATIONS ON
MARRIAGE
▸Widow remarriage
▸Raising of marriageable age through Sarda Act of 1929- child
marriage
▸Hindu Marriage Act 1955, Special Marriage Act 1954,
rationalise the institution of marriage and get rid of certain
social evils
▸Bombay Hindu Bigamous Marriage Act, 1946
▸Women friendly divorce and separation laws

22. ACTIVITY
▸Discuss family as the most fundamental building block of
society
▸Discuss the impact of legislation on the institution of
marriage and family (ch.10 of T.K Oommen)
▸Analyse the concept of marriage as a sacrament and
marriage as a contract. Also discuss the concept of civil
marriages.