Concept and forms of marriage

Introduction

The concept of marriage is to constitute relationship of husband and wife. According to ancient Hindu law, marriage is the last of ten sacraments and is a sacred tie which can never be broken. It is a relation established by birth to birth. According to Smritikars even death cannot break this relation of husband and wife which is not only sacred and religious but is a holy union also.

The object of marriage was to enable a man and a woman perform religious duties and to beget progeny. According to ancient writers a man was incomplete without a woman and a woman is half of her husband (ardhangini) and completes him.

Every Hindu male or female had to marry. Where a person could not remain a perpetual student or where he did not desire to be an ascetic (sanyasi), he was enjoined by the shastra to marry. Marriage, therefore was as good as compulsory and more so in case of a female.

Marriage: Sacrament or Contract

Marriage being one of the essential Samskaras is sacramental in nature. The sacramental nature of marriage has three characteristics:

1. It is a permanent union i.e. once tied cannot be untied.
2. It is an eternal union i.e. valid not only in this life but in lives to come.
3. It is a holy union i.e. performance of religious ceremonies is essential.

Since Hindu marriage was considered to be sacrament, the consent of the parties did not occupy any important place. Thus the person married may be a minor or even of unsound mind, if the marriage is duly solemnized there is valid marriage. Under the Contract Act, the contract of a minor or of a person of unsound mind is void. Further, Section 12 of Hindu Marriage Act does lay down that a marriage is voidable if consent is obtained by fraud or force, but it is not laid down that if one’s consent was not obtained the marriage is voidable. This shows that despite the fact that a party is able to prove the absence of consenting mind, the marriage will continue to remain valid.

The modern concept of marriage is contractual in nature. It receives the ideals of liberty and equality (free volition of individuals). Today, it is an established notion of the west that marriage, to be effective, must be an agreement voluntarily entered into by both parties.

In the light of modern concept of marriage could we say that Hindu marriage continues to be sacrament? By recognising the divorce and widow remarriage the first two characteristics of sacramental marriage have been waived. However, the third characteristic is still retained.

To sum up the Hindu marriage has not remained a sacrament and has also not become a contract, but it has a semblance of both.

Forms of marriage

The ancient Hindu law recognised three forms of Shastric marriages as regular and valid. These were Brahma (bride given gift by father), Gandharva (mutual agreement of bride and bridegroom) and Asura (bride virtually sold by the father). The first and the third are arranged marriage whereas the second one is love marriage.

Forms of marriages in modern Hindu law: The Hindu marriage Act, 1955, does not specially provide for any forms of marriage. The Act calls marriage solemnized under the Act as Hindu marriage which may be performed in accordance with shastric rites and ceremonies or in accordance with the customary ceremonies prevalent in the community to which bride or bridegroom belongs. However, it does not mean that a marriage cannot take any of the aforesaid forms now. Marriage can still be entered into in anyone of the three forms.

Looking at from another aspect in Hindu society there are mainly two forms of marriages: arranged marriages and love marriages. Most Hindu marriages are still arranged marriages. An arranged marriage may be either in the form of Brahma marriage or in the form of Asura marriage. Among the Sudras, the Asura form of marriage is very common. Among the high-class Hindus, the Brahma form of marriage is common. The Gandharva form of marriage is fast becoming popular among the younger generation.

Ceremonies

Marriage among Hindus being a religious and sacred tie, performance of certain ceremonies is still necessary for a valid marriage. There were three important stages wherein certain ceremonies were to be performed. They were:

1. Betrothal or Sagai: it is a formal promise to give the girl in marriage.
2. Kanyadan: It is actual giving away of the girl in marriage by her father.
3. Saptapadi: it consisted in performing a ceremony of taking seven steps before the sacred fire by the bride and the groom. The performance of Saptapadi marked the completion of a marriage. It made the marriage irrevocable.

As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the ceremonies of marriage, its non-performance will invalidate the marriage. The performance of vedic rights is not enough to solemnise the marriage.

Customary ceremonies may not include any one of the Shastric ceremonies including Saptapadi. It may be totally non-religious ceremony or it may be very simple ceremony. For instance, among santhals smearing of vermilion by bridegroom on the forehead of the bride is the only essential ceremony.

Necessary ceremonies, shastric or customary, whichever are prevalent on the side of the bride or bridegroom, must be performed otherwise marriage will not be valid. No one can innovate new ceremonies and a marriage performed with the innovated ceremonies and rites is invalid. Hindu Marriage Act allows inter-caste marriages. But marriage between a Hindu and a Non-Hindu is not permissible under Hindu Marriage Act and such a marriage if performed in India, will be invalid. But foreign country such marriage is valid. Such marriage is also valid in India, if performed under the Special Marriage Act, 1954.

Conditions for the validity of marriage (Section 3 and 5)

A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely:–

1. Neither party has a spouse living at the time of the marriage;
2. At the time of the marriage, neither party: a. Is incapable of giving a valid consent to in consequences of unsoundness of mind; or b.Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or c.Has been subject to recurrent attacks of insanity or epilepsy.
3. The bridegroom has completed the age of twenty one (21) years and the bride the age of eighteen years at the time of marriage.
4. The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
5. The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.