Hindu Marriage Its Meaning Nature and kinds

In this article we will discuss Hindu Marriage its meaning , what type of nature and its kinds

Marriage : Meaning and Definition

Marriage: Meaning – According to Tomlin’s Law Dictionary –  “marriage is a civil and religious contract, whereby a man is joined and united to a woman, for the purpose of civilized society.

Marriage: Definition –

(i) According to Earnest R. Groves, “marriage is public confession and legal  registration of an adventure in fellowship”.

(ii) In the words of Lundberg “marriage consists of the rules and regulations which defines the rights, duties  and privileges of husband and wife, with respect to each other”.

(iii) According to Vedas, a marriage is “the union of flesh with flesh and bone with bone’’. It is the union  which Vedas regard indissoluble. So long as the husband is alive the wife is enjoined to regard him as her  God, similarly the wife is declared to be half the body of her husband (Ardhangini) who shares with him  equally the fruits of all his acts whether they be good or bad.

Nature of Hindu Marriage

Whether Hindu Marriage is a sacrament ( and Sacrosanct) or a Civil Contract or both the  Sacrament and Civil Contract?

It can be said that – “Hindu Marriage is both a sacrament and a civil contract”, for the following reasons :

A marriage to be sacramental shall comprise of the following features/constituents namely

  It is a permanent or indissoluble union

It is an eternal union

It is a holy union.

•The first feature i.e., permanent and indissoluble, union has been defeated since a provision is made  under Section 13 and 13-B of the Hindu Marriage Act for dissolution of the marriage by divorce.

The second feature i.e., eternal union, has been destroyed in 1856 by making provisions for widow  marriages by passing Hindu Widows Remarriage Act, 1856.

The third element i.e., Holy Union is still retained since the competence of religious rites and ceremonies  are necessary for validity of the marriage(Sec. 7, Hindu Marriage Act).

The statement, that ‘Hindu Marriage is both sacrament and Civil Contract can be justified with reference to the following heads:

i) Hindu Marriage is a Sacrament : The question that Hindu Marriage is a sacrament and sacrosanct can  be answered in the affirmative with reference to its position in (A) Ancient Texts ; and (B) Modern Law

Manu said that once man and woman are united in marriage, there should be no differences between them  and must remain faithful to each other.Wife being a man’s half, is the source of Dharma, Artha, Kama and Moksha.Wife plays a significant role in social, cultural and economics life of a man. In Gopala Krishna v. Mithilesh Kumar (AIR 1979) – The Allahabad High Court laid down that, the  institution of matrimony under the Hindu Law is a sacrament not a mere socio legal contract.

Modern Law : Hindu Marriage is a holy union, since religious rites and ceremonies (Kanyadan and  Saptpadi) are strictly complied with, in solemnization of a marriage ( Section 7 of Hindu Marriage Act).  Non-observance/performance of the ceremonies (Kanyadan and Saptapadi) renders the marriage  invalid.(Eg. DEVAIN ACHI vs. CHIDAMBARA CHETTIAR)

Similarly, Section 9 of the Hindu Marriage Act,1955 strengthens matrimonial tie by making provisions for  restitution of the conjugal rights. In many cases, the courts decided in favour of the preservation of marriage by  uniting the couple even by directing the married woman to quit employment for matrimonial society (Saroj  Rani vs. Sudarshan Kumar, AIR 1984 SC 1562).

In above view, marriage may be regarded as a sacrament and sacrosanct.

ii) Hindu Marriage is a Civil Contract :- Hindu Marriage cannot be regarded as a sacrament or sacrosanct at  all times in respect of all cases. According to the modern writers of Hindu Law, Hindu marriage is not only a  sacrament but also a contract. Mayne says, “while marriage according to Hindu Law is a sacrament, it is also a  civil contract, which takes the form of gift.” There are certain legislation in modern law, which render marriage  a civil contract by making provision for dissolution of marriage as follows :

Marriage to be sacrament, it should be indissoluble union. Section 13 and 13-B of the Hindu Marriage Act,  1955 made provisions for dissolution of marriage.

Section 24 & 25 of the Hindu Marriage Act and Section 125 of the Code of Criminal Procedure accelerate the  inclination of a married woman to break the matrimonial tie.

Relevant Case Laws :

In Bhagwati Saran Singh v. Parmeshwari Manohar Singh [1942 ILR All 518] , the Court after quoting  extensively from Macnaghton’s Hindu Law, Stranger’s Hindu Law and Vyavahara Chandrika, expressed the  view that a Hindu Marriage is not only a sacrament but also is a contract.

In Mathusami v. Masilamani, the Court has observed, “A marriage whatever else it is i.e., a sacrament or  an institution, is undoubtedly a contract entered into for consideration with correlative rights and duties.”

§Conclusion: In above view, it may be concluded that the Hindu Marriage is both a sacrament and civil  contract.

Kinds of Marriage :

Manu classified marriages as follows :

i)Brahma

ii)Daiva

iii)Arsha, and

iv)Prajapatya.

v)Asura

vi)Gandharva

vii)Rakshasa

viii)Paisachika.

Conditions of Marriage:

Ancient Texts(Old Law) : According to the Ancient Texts, a marriage to be valid, the  following conditions are to be satisfied.

i)Identification of castes.

ii)Monogamy.

iii)Sapinda Relationship.

iv)Prohibited degrees of relationship.

v)Prohibition of Sagotra and Sapravara, and

vi)Marriage Ceremonies.

Conditions of Marriage under the Hindu Marriage Act,1955 : Section 5 of Hindu Marriage Act,1955,  lays down the condition of a valid marriage as follows:

(i) Monogamy – Sec 5(i) : A Hindu cannot have more than one spouse living. So, a person  who wants to get married should not have spouse living at the time of marriage. He/She should be  unmarried or a widower/widow or divorced.

If the person having a spouse (living at the time of marriage and not divorced) marries again, he/she is  guilty of Bigamy under Section 17 of the Hindu Marriage Act,1955.Such marriage is declared void under  Section 11 of the Hindu Marriage Act, 1955.The person, guilty of the offence of Bigamy is liable for  punishment under Section 494 and 495 I.P.C.

Sarla Mudgal & Others v/s. U.O.I (A.I.R 1995) and

Lily Thomas v/s. U.O.I (A.I.R 2000) –

The above two cases are landmark case laws in respect of commission of Bigamy after conversion into  another religion – The Court in both the cases have held that the 1^st Marriage would have to be dissolved  under Hindu Marriage Act,1955 .

Law his second marriage, solemnized after conversion to another religion, would be illegal under Section 494  & 495 of Indian Penal Code and Section 17 of Hindu Marriage Act,1955.

The Sarla Mudgal & Others v/s. U.O.I (A.I.R 1995) was cited in Lily Thomas v/s. U.O.I (A.I.R 2000).

 (ii) Mental Capacity – Sec.5(ii) : At the time of the marriage, neither party:

  Is incapable of giving a valid consent, to it in consequence of unsoundness of mind; or

  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

Has been subject to recurrent attacks of insanity or epilepsy.

(iii) Age of parties Sec. 5(iii)

The Bride must have completed the age of 18 years and the bridegroom must have completed the age of 21  years to get married.

Prior to the Act, Child Marriage were prevalent/common among girls and widow marriages were not  allowed. In 1929, the Child Marriage Restraint Act was passed. This Act prescribed the age limit of 14  years for a Girl and 18 years for a boy for the marriage. Subsequently, age limit for girls was raised to  15years.

  A marriage solemnized contary to the above provision is neither void nor voidable. The bride can exercise  the option of puberty under Section 13(2) of the Act, for decree of divorce. The person concerned are liable  for simple imprisonment as per Section 18(a) of the Hindu Marriage Act, 1955.

In Appala Saramma v/s. Ganapatulu AIR 1975 : AP High Court held in this case that, a child marriage  in contravention to Sec.5(iii) of Hindu Marriage Act is void.

iv) Prohibited Degree of Relationship – Sec.5(iii) : The parties to the marriage should not be within the  degrees of prohibited relationship unless the custom permits. A marriage falling within the prohibited degrees  of relationship would be void under Section 11 of the Act. Moreover Section 18(b) punishes the erring party  with the simple imprisonment which may extend upto one month or with fine with may extend to one thousand  rupees or with both.

Sec.5(iv) of the Act provides that if there is a custom or usage governing the contracting parties which  sanctions such a marriage it would validate the marriage and the voidability of the same prescribed by  Section 11 of the Act will not come into play.

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