Concept of Marriage under Hindu law

This article deals with the Concept of Marriage under Hindu law. The concept of a Hindu marriage is to establish a relationship between husband and wife. Based on Hindu law, Hindu marriage is a sacred tie, and the last ten sacraments that can never break. Also, it is a relationship that is established by birth to birth and death to death.

I. Introduction

Hindu marriage harmonizes two individuals for ultimate eternity so that they can pursue dharma, arth, and karma. It is a union of two individuals as spouses and is recognized by livable continuity. In Hinduism, marriage is followed by traditional rituals for consummation.

As a part of the Hindu code bill, the Hindu Marriage Act was enacted by parliament in 1955 to amend and to codify marriage law between Hindus and Became on 18^th May 1955. It gives meaning to marriage, cohabiting rights for both the bride and groom, and satisfy for their family and children so that they do not suffer from their parental issues.

Hindu marriage refers to ‘kanyadan’, which means gifting a girl to the boy by the father with all the tradition and rites or custom. Hindu marriage is an ancient tradition which is prevailing form the Vedic period to the modern world with a different modification that has occurred until now. There are 16 sacraments in the Shastra humanism in which marriage is one of the important rituals of Hinduism.

It is not only considered as sacred, but it is also a holy union. The main objective of marriage is to enable a woman and a man to perform their religious duties. Along with this, they also have to beget progeny. Based on ancient writings, a woman is considered half of her husband and thus completes him. At the same time, a man is also regarded as incomplete without a woman.

II. Concept of Marriage under Hindu Law

For a long period, Hindu marriage rites have been changed accordingly due to the needs and convenience of the people from time to time. It is the relationship between husband and wife. According to Hinduism, this sacrament is one of the most important sacraments out of 16 sacraments in Hinduism. It is a sacred tie that can’t be broken. It is a relationship from birth to birth, it is a bond that continues after rebirth and death. According to Veda, a man is incomplete until he gets married and meets with his partner.

Marriage is a religious institution intended to fulfill religious duties and to achieve the higher ends of life, namely, Dharma, Artha, Kama and Moksha.

A. Who are Hindus?

A. Hindu by Religion

The Medieval period of Hinduism lasted from 500 to 1500 AD. Hinduism is the oldest religion which contains a wide range of tradition and culture which are followed by all the Hindus across the globe. Any person who is a Hindu by religion or born in Hindu family with Hindu father or mother in any of its forms such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Semaj or any person who is a Buddhist, Jain, or Sikh is also a Hindu by religion. Thus, any person except a follower of Muslim, Christen, Parsi, or Jew religion is a Hindu.

B. Hindu by birth

Any person born in a Hindu family or has a Hindu father or mother such a person is considered as a Hindu by birth. Any person born in any community apart from Muslim, Christian, and Jews is also a Hindu. Any child, legitimate or illegitimate if either of his parents is Hindu if he is brought up by the parent who is Hindu shall be considered as Hindu by birth.

Mahatma Gandhi believed that the word “Hindus” didn’t originate from Vedas but when the Greeks invaded India and started using the same for the country and people living beyond the Indus River. This belief is well established by many historians and is widely accepted among the academicians.

B. Marriage as Sacrament

Marriage is one of the most important of all Samskaras under the Girah Sutras. Among the Hindu, the marriage was considered as a sacrament. In Hinduism, the ultimate goal of human life is to attain Moksha. Marriage was meant for doing a good deed and for the attainment of Moksha. It was obligatory for every Hindu through which his well-conducted life progresses to its appointed end.

In ancient times, there was no need for the girls’ consent. Fathers have to decide the boy without asking for her advice or consent. It is the sole duty of the father to find a suitable boy.

Therefore, Religious sacrament in which a man and a woman are bound in a permanent relationship for the physical, social, and spiritual purposes of dharma, procreation, and sexual pleasure.” The Vedas hold marriage to be one of the important sacraments sanctifying the body. That is why marriage is given great importance by the Hindus. It is said, a man who does not win a wife is really half, and he is not the full man as long as he does not beget an offspring.

Hindu marriage is deemed valid and complete only when certain religious rites like (Home, Panigrahana, Saptapadi, etc.) are duty performed by a Brahmin with Agni devata taking cognizance of the rites. If not performed the legal validity of the marriage itself may be called into question.

The Hindu Marriage Act a marriage of a minor or unsound person is voidable and not void. So, although consent is necessary for the absence of consent, marriage becomes merely voidable and party to the marriage can treat their marriage as a valid marriage. Hindu marriage is not purely a contract.

Moreover, in the case of Tikait v. Basant[1], the court held that marriage under Hindu law was a sacrament, an indissoluble union of flesh, bone with a bone to be continued even in the next world.

In the case of Shivonandh v. Bhagwanthumma[2], the court observed that the sacraments marriage among Hindus has three main characteristics:

1. It is a permanent union.
2. It is an eternal union.
3. It was a holy or sacrosanct union.

C. Marriage as Contract

A Hindu marriage cannot take place without the performance of sacred rites. But after the enactment of the Hindu Marriage Act, 1955 Hindu marriage is no longer a sacrament but it is a contract.

Section 12 of the Hindu Marriage Act 1955 lays down that when one’s consent is not obtained, the marriage is considered void. It shows that despite the absence of consent of the bride, the marriage is valid and legal.

The nature of modern marriage is contractual. Thus, it accepts the idea of equality and liberty. It has been adopted due to western Ideas. There must be an agreement of voluntarily entering into it by both parties. Thus, the Hindu marriage is not a contract and neither is it a sacrament. But it can be said it is a semblance of both.

The first fundamental of sacrament marriage has been affected by section 13 of the Hindu Marriage Act, 1955 for Hindu marriage can be dissolved on certain specified grounds. And the Widow Remarriage Act, 1856 also affected the sacramental marriage.

Section 5 and 12 of the Hindu Marriage Act, are the pertinent provisions to determine whether Hindu marriage is sacrament or contract. Clause 2 of section 5 of the Hindu Marriage Act deals with the mental capacity of the parties. It says that neither party to the marriage must be incapable of giving a valid consent in consequence of unsoundness of mind. Further clause 3 of section 5 enumerates that the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage.

Prohibition of Child Marriage (Amendment) Bill 2021, if converted into law, will delay the daughters’ marriage for two to three years. The legislation that seeks to raise the minimum legal age of marriage for women to 21 from the present 18 has been sent to a parliamentary committee for deliberation.

Moreover, in the case of Bhagwati Seran Singh v. Parmeshwari Nandar Singh, [3] the court held that Hindu marriage is not only a sacrament but also a contract.

In the case of Anjona Dasi v. Ghose[4] Court observed that the marriage, whatever else it is, sacrament and institution, is undoubtedly a contract entered into for consideration with correlative rights and duties.

In most of the Hindu marriage, a religious ceremony is still the sine qua non. Viewed from side one may conclude that Hindu marriage has not remained purely a sacrament and at the same time, it has become complete a contract.

Conclusion

This article discusses the concept of Hindu marriage and all about marriage as sacrament or contract. So, it can be concluded that though Hindu marriage has some of the elements of a contract but it is not purely a contract. It is more of a sacrament as Hindu marriage is a holy and eternal union of two bodies.

According to Manu, husband and wife are united to each other not merely in this life but even after death, in the other world. The rule is that “once is a maiden given in marriage, a true wife must preserve her chastity as much after as before her husband’s death”.

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[1] Tikait v. Basant, (ILR 28 CAL.758).

[2] Shivonandh V. Bhagwanthumma, (AIR 1962 MAD. 400).

[3] Bhagwati Seran Singh v. Parmeshwari Nandar Singh, (1942 ILR ALL 518).

[4] Anjona Dasi v. Ghose, (6 BLR, 243).

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1. Evolution and History of Hindu Marriage
2. Hindu Law; Notes, Case Laws And Study Material