HINDU MARRIAGE: WHETHER A SACRAMENT OR A CIVIL CONTRACT
For a Hindu, marriage is a samskara. It is religious rite or sacrament. It is, in fact, the last of the ten sacraments, enjoined upon him by the Hindu religion for purifying the body from inherited taint. This view has been accepted by the High. Thus, a Hindu marriage is considered as something which is more of a religious necessity and less of a physical luxury. As once observed by Calcutta Court, a Hindu-marriage is more religious than secular in character.”
According to the Vedas, marriage is the union of flesh with flesh and bone with bone.” It is a union which the Vedas regard as an indissoluble. As long as her husband is alive, the wife is enjoined to regard him as her God; likewise, the wife is declared on behalf of the body of her husband (Ardhangini) and shares with him equally, the fruits of all his acts. It may be noted that the concept of a Hindu marriage as a sacrament continues to exist even after the enactment of the Hindu Marriage Act. This concept is not, in any way, inconsistent with the provisions of the Act, which has merely laid down certain conditions for a valid Hindu marriage, and certain grounds for obtaining judicial separation and divorce. The concept of divorce was, of course, recognized by the ancient Hindu Law, and this is a vital innovation introduced by the law in the Hindu social framework.
Marriage under Hindu Law is not only samskara or sacrament but the only samskara prescribed for women under Hindu Law. Although there was a conflict on the point, it was generally accepted that a Hindu marriage also a contract. It shows that there is actually a gift of the bride. Thus, an essential part of the marriage ceremony is called Kanyadan. Such Kanyadan fulfils all the requirements of a gift under the Hindu Law. Therefore, clear that to the extent that marriage is a gift, it is also a contract.
Thus, most writers on Hindu Law, both ancient and modern, have also generally taken the view that a Hindu marriage is not only a sacrament but also a civil contract.
Similar observations are to be found in several decided cases, some of which are given below:
- In Purshottamdas v. Purshottamdas , the Court observed that “Marriage of Hindu children is a contract made by their parents.”
- In Bhagwati Saran Singh v. Parmeshwari Nandar Singh, (1942 ILR All. 518), the Court after stating extensively from Macnaghten’s Hindu Law, Strange’s Hindu law and Vyavastha Chandrika, expressed the view that a Hindu marriage is not only a sacrament but also a contract.
- In Muthusami v. Masilamani, (33 Mad. 342), the Court observed: “A marriage, whatever else it is, i.e., a sacrament, and institution, is undoubtedly a contract entered into for consideration, with co-relative rights and duties.”
- The Calcutta High Court has also observed, in Anjona Dasi Ghose (6 Bengal Law Reporter, 243), that suits relating to marriage deal with that which in the eye of the law must be treated as a civil contract, and important civil rights arise out of that contract.
In view of the above-mentioned and other cases, it can safely be concluded that under the ancient, uncodified Hindu Law, a Hindu Marriage was not only a sacrament but also a contract.
Essential conditions of a valid marriage under the ancient textual Hindu law
The ancient textual Hindu law prescribed three conditions for a valid marriage, as follows:
- (i) Identity of caste — The ancient texts prescribed that if the parties did not belong to the same caste, the marriage was invalid unless sanctioned by custom. These texts prohibit marriage between a male of a lower caste and a female of a higher caste (pratiloma marriage). However, a marriage between a male of a higher caste and a female of a lower caste (anuloma marriage) was permitted and recognized by the ancient Hindu texts. This requirement of the textual Hindu Law (that both parties to the marriage must belong to the same caste) lost its force after the passing of the Hindu Marriage Validity Act, 1948, which provided that no marriage shall be deemed to be invalid only because of the fact that the parties thereto belong to different religions, castes, subcastes or sects.
- (ii) Parties should be beyond the prohibited degrees— The second condition prescribed by the ancient Hindu texts was that a man could not marry a girl of the same gotra or pravara, and that the parties to a marriage should not be sapindas of each other. However, this rule did not apply to Sudras, as they had no gotra of their own.
(The term “gotra”; is applied to the family name derived from the personal name of the original ancestor of such family. The term “sapinda”; has been explained in detail later on in this Chapter.)
- (iii) Performance of proper marriage ceremonies—The third and the last condition prescribed by the ancient Hindu texts was as regards the proper marriage ceremonies. Broadly speaking, there were two such ceremonies, which were necessary to validate a Hindu marriage, viz.,
- Vivah homa, or invocation before the sacred fire, and
- Saptapadi, which consists of the bride and groom take seven steps around the sacred fire, the marriage is completed only when the seventh step is taken.
CHANGES BROUGHT ABOUT BY THE HINDU MARRIAGE ACT
The passing of the Hindu Marriage Act, in 1955, has substantially modified the institution of marriage as recognized by Hindu law. This Act has brought about certain radical charges, the most important of which are as follows:
(1) Act has declared that marriages amongst Hindus, Jains, Sikhs and Buddhists, are valid Hindu marriages in the eyes of the law. (See Section 2.)
(2) The Act has abolished the divergence between the Mitakshara and the Dayabhaga Schools in connection with the prohibited degrees of relationship for the purposes of a Hindu marriage. (See Section 3.)
(3) The Act also introduces monogamy for the first time amongst the Hindus and provides for punishment for bigamy under the Indian Penal Code. (See Sections 5 and 17.)
(4) Act abolishes the distinction between the marriage of a maiden and that of a widow.
(5) The Act also prescribes the minimum age for marriage, being 21 in the case of a boy, and 18 in the case of a girl. (See Section 5.) Ancient Hindu law did not prescribe any such age for marriage — which is why child marriages were rampant in the country.
(6) The Act does not specifically recognize any particular form of the eight ancient forms of Hindu marriage. Rather, it merely lays down conditions of a valid Hindu marriage. (See Section 5.)
(7) The Act does not prescribe any particular ceremony for a valid Hindu marriage. It only provides that such a marriage can be solemnized in accordance with the customary rites and ceremonies of any one of the parties to the marriage. (See Sections 5 and 7.)
(8) The Act provides, for the first time, for the registration of Hindu marriages. (See Section 8.)
(9) The Act also contains provisions for restitution of conjugal rights of the parties to a marriage. (See Section 9.)
(10) The Act also lays down grounds on which a judicial separation can be decreed by the Court. (See Section 10.)
(11) The Act lays down the grounds on which a divorce can be obtained by any of the parties to Hindu marriage. Further, the concept of divorce by mutual consent has also been introduced in the Act. (See sections 13, 13B and 14.)
The Act also makes a provision for re-marriage, inasmuch as it provides that after a valid divorce, either party may marry again. (See Section 15.)
(13) The Act also provides for maintenance pendent life and for expenses of legal proceedings. (See Section 24.)
(14) The Act also provides for permanent alimony and maintenance. (See Section 25.)
(15) The Act also makes provisions for the custody of children during the pendency of legal proceedings, as also after the passing of a decree. (See Section 26.)
Author: Akshada Sarpande,
MIT School of law, student of FY BBA LLB