January 24, 2022

Marriage under Hindu Law: Sacrament, Contract and Sacrosanct

Family Law

Introduction:

Since time immemorial, marriage has been the most important of all the institutions of human society. It has always existed in one form or another in all cultures, ensuring the social sanction of the physical union between man and woman and laying the foundations for the construction of the family, the basic unit of society. Hindu marriage refers to kanyadan, which means that the father presents a girl to the boy with all the tradition and rites or customs. Hindu marriage is an ancient tradition prevailing from the Vedic periods to the modern world with different modifications that have occurred up to now. There are 16 sacraments in Shastri Hinduism in which marriage is one of the important sacraments of Hinduism.

Section 2 of the Hindu Marriage Act of 1955 states that this law applies to anyone who is a Hindu by birth or who has changed his religion to any of its forms, such as Virashaiva, Lingayat or follower of Brahmo, Prarthana. or Arya Samaj. Anyone who is a Buddhist, Jain, or Sikh is also subject to this law. It also applies to any person living outside this territory, unless he is a Muslim, Christian, Parsi or Jewish by religion or it is shown that such person is governed by Hindu law. It is believed to be the strongest bond between husband and wife.  The importance of marriage is not one generation, but it is a deep belief of Hinduism. Without a wife, a person is considered incomplete while performing any rite of Hinduism. It is very important to perform all the rites with the wife.

Evolution of Marriage:

Polygamy and polyandry prevailed during ancient times. Polygamy was sanctioned by the old legislators in certain chosen circumstances, such as sterility or lack of religious mentality, that is, if the wife was not fit to participate in the performance of her husband’s religious rites. The husband had the right to remarry if the wife did not give birth to a male child. Polygamy was popular with the Kshatriyas. Example- Draupadi was married to five Pandav brothers in special circumstances to fulfill the wish of their mother Kunti, whom they adored very much. Even then, the Draupadi family bitterly opposed this marriage. This shows that polyandry was not the usual practice in the Vedic period. As time went by, polygamy and polyandry were gradually replaced by monogamy as a social norm, but bigamy in one form or another is still seen in society. With the evolution of civilization, marriage came to be recognized as a religious, holy, and sacramental bond, and the wife regained a respectable member in the home. The Vedic literature generally endorsed monogamy and it was considered the best practice of the highest virtue.

The tradition of the Swayamvars organized by kings for their daughters was born in the Middle Ages. During that time, swayamvars were considered a modern way of choosing grooms based on their abilities and also provided brides with the opportunity to make their own decision. In a swayamvara, the girl’s parents conveyed the girl’s intention to marry and invited all interested men to be present in a wedding hall at a specific date and time. The girl, who was also often given some prior knowledge of men or was aware of their general reputations, circulated around the hall and indicated her choice by garlanding the man she wanted to marry.

Modern Changes:

The important modern changes are:

  • In Hindu society, marriage was considered absolutely compulsory for both men and women. According to the Hindu scriptures, a person who does not father a child through marriage cannot reach heaven. No man could perform “yajña” without a wife. Marriage, therefore, was necessary even for religious purposes. But, due to the influence of Western culture, many men and women do not consider marriage necessary these days. Due to financial difficulties, some people also do not get married. The Hindu girl with modern education is not ready to accept the slavery of men. Educated men and women do not believe in ancient religious values ​​and therefore do not consider marriage necessary.
  • Ancient Hindu tradition forbids the marriage of persons belonging to the same Gotra and Pravar. This greatly restricts the field of choice of partner. Therefore, at present, educated people are gradually violating the restriction. It has also been rejected by law.
  • After the passage of the Sarada Law, child marriages have become illegal. Another factor leading to the restriction of child marriage in Hindu society is a huge increase in the education of women. The boys do not marry early due to the delay in their careers.
  • Previously, inter-caste marriage was considered wrong in Hindu society. It is now legally permitted. With the rise of coeducation, the education of women, and the democratic ideal of equality and freedom, inter-caste marriages are now seen as signs of advancement.
  • Due to the tireless efforts of social reformers and educated person, the remarriage of widows is no longer considered bad in Hindu society. Consequently, its incidence is now decreasing.
  • Previously, a man was allowed to marry multiple women to have a child. With the increased education of women, women are demanding equal rights in marriage. The Hindu Marriage Act of 1955 has made polygamy illegal. No one can marry a second time while the ex-spouse is alive.
  • The Hindu Marriage Act 1955 has made a significant change to the institution of Hindu marriage by allowing divorce in certain specific circumstances.
  • More and more couples are seeking live relationships, not just celebrities, but even middle-class couples who choose to live together for various personal or social reasons. Some of these reasons are: society and families no longer disapprove of the “living together relationship” as much as they used to and couples who do not want to make life-long commitments prefer to live together before getting married. Others say they need to get to know each other better before getting married. However, others live together due to circumstances such as job requirements or to save money by keeping one house instead of two. Finally, young men and women live together because they no longer believe in the traditional sanctity of marriage.

Marriage As A Sacrament:

The three characteristics of the sacramental nature of marriage are:

  • It is a lasting bond between husband and wife that is permanent and linked even after death and they will remain together after death.
  •  Once it is tied, it cannot be untied.
  •  It is a religious and sacred union of the bride and groom that is necessary to carry out through religious ceremonies and rites.

A Hindu marriage is considered a religious sacrament mainly because only when religious rites are performed would it signify a valid and complete marriage. Clause 2 of Sec. 5 of the Hindu Marriage Act talks about the mental capacity of the parties. It states very clearly that neither party should be incapable of giving valid consent. Additionally, clause 3 of Sec. 5 states that the groom must have reached the age of twenty-one and the bride must have reached the age of eighteen at the time of marriage. According to Sec. 12 of the Hindu Marriage Law, a marriage of a minor or a sick person is voidable and not void.

In Tikait v. Basant[1], the court held that marriage under Hindu law was a sacrament, an indissoluble union of flesh to flesh, bone to bone that would continue even in the next world. The court in Shivonandh v. Bhagawanthuma[2] held that marriage was binding for life because a marriage performed by saptapadi before the consecrated fire was a religious bond that could never be separated. The Calcutta High Court also observed that a Hindu marriage is “more religious than secular in character”. This finally brings us to the recent Ruling of the Delhi High Court in 2017, which noted that marriage under Hindu law is a “sacrament” and not a contract that can be entered into by the execution of a deed.

Marriage As A Contract:

The Court in Muthusami v. Masilamani[3] held that a marriage, whether a sacrament or institution, is undoubtedly a contract entered into for consideration, with co-relative rights and duties. In Purushottamdas v. Purushottamdas [4], the court held that the marriage of Hindu person is a contract made by their parents. In Bhagwati Saran Singh v. Parmeshwari Nardar Singh[5], the court referred the Hindu Law of Macnaghten, the Hindu Law of Starnages and Vyawastha Chandrika and finally expressed the opinion that Hindu marriage was not only a sacrament but also a contract. Furthermore, the Calcutta High Court held in Anjana Dasi v. Ghose [6], that lawsuits related to marriage concern what in the eyes of the law should be treated as a civil contract, and important civil rights derive from that contract.

 Also, Kanyadan meets the requirement of a gift under Hindu law. Therefore, it is a contract. But Section 12 of the Hindu Marriage Act of 1955 states that when consent is not obtained, the marriage is considered void. It shows that despite the absence of the bride’s consent, the marriage is valid and legal. The nature of modern marriage is contractual. Therefore, it accepts the idea of ​​equality and freedom. It has been adopted due to western ideas. There must be a voluntary participation agreement by both parties. Therefore, Hindu marriage is neither a contract nor a sacrament. But it can be said that it is a mixture of both.

 

Marriage as A Sacrosanct:

Marriage in the Hindu religion is a sacrosanct and holy union of 2 individuals. There are various ceremonies, according to the different castes, that are essential for a marriage to be solemn. Some of these ceremonies and traditions are now codified in the Indian legal system as customs. The Supreme Court of India in Koppisetti Subbharao vs. the State of Andhra Pradesh[7] recognized the existence of 8 forms of marriage given by Aryan Hindus.

These are divided into 2 categories of approved and unapproved forms of marriage. Brahma, Daiva, Arsha and Prajapatya belong to the approved forms of marriage. These marriages involve the exchange of gifts (kanyadan).  Brahmins, according to the dharma texts, have a duty to accept gifts. In S. Authikesavulu Chetty vs. S. Ramanujam Chetty And Anr[8]., It was held that:

  • It must be presumed that the marriage is in one of the approved forms.
  •  It was held that the property of a childless woman married in one of the four approved ways will pass to her husband after his death.

Asura, Gandharva, Rakshasa and Paisacha are included in the unapproved forms of marriage. It was held in the case of Rajbir Singh Dalal v. Chaudhari Devi Lal University[9] that the property of a childless woman married in one of the unapproved ways goes to her family rather than to her husband.

CONCLUSION:

Hindu marriage unites two people for life, so that they can pursue the dharma together. It is a union of two people as husband and wife, and is recognized by law. In Hinduism, marriage is followed by traditional consummation rituals. In fact, the marriage is not considered complete or valid until its consummation. Ancient Hindu law has been patriarchal in nature and has favored men in all respects. Along with this, the concept of love marriage was not recognized either. But in recent years, with the onset of dating culture in India, arranged marriages have seen a marginal decline, and future brides and grooms prefer to choose a spouse on their own and not necessarily just the one their parents find nice.

Marriage is considered a sacred institution in India. It is a “sanskara” or purifying ceremony obligatory for every Hindu. Marriages, according to Hindu beliefs, are made in heaven, and once you are married, the bond is supposed to last seven lives. As society has advanced, Hindu marriage has undergone several changes. Even the values ​​attributed to it have changed enormously. Individuals now select their partners according to their own requirements. Many are not getting into marriage alliances due to some problems. Marriages in India are governed by the Hindu Marriage Act 1955 and the Special Marriage Law regulating marriage. The divorce provision has also helped many people to get out of their marriage. Thus, as is believed, the Hindu marriage is no longer indissoluble.


[1] Tikait v. Basant, ILR 28 Cal. 758

[2] Shivonandh V. Bhagawanthuma, AIR (1962) Mad. 400

[3] Muthusami v. Masilamani, (33 Mad.342)

[4] Purushottamdas v. Purushottamdas, (21 Bom.23)

[5] Bhagwati Saran Singh v. Parmeshwari Nardar Singh, (1942 ILR All. 518)

[6] Anjana Dasi v.  Ghose (6 Bengal Law Reporter, 243)

[7] Koppisetti Subbharao vs State Of A.P on 29 April, 2009 CR NO. 867 OF 2009

[8] S. Authikesavulu Chetty vs S. Ramanujam Chetty And Anr. on 21 April, 1909, 3 Ind Cas 541

[9] Rajbir Singh Dalal vs Chaudhari Devi Lal University on 6 August, 2008 CA NO 4908 OF 2008


Author Details: A Thiruthi [Student, UPES Dehradun]

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