Philosophy of Hindu Marriage In India
Q. 6 Discuss the Nature and Philosophy of Hindu Marriages under Hindu Law? What are the various types of Hindu Marriage?
Philosophy of Hindu Marriage
Definitions
of Marriage
The
legal status, condition, or relationship that results from a contract by which
one man and women who have the capacity to enter into such an agreement,
mutually promise to live together in the relationship of Husband and Wife in
law for life, or until the legal termination of the relationship.[1]
Collins Dictionary of Sociology
“Marriage is a socially acknowledged and sometimes
legally ratified union between an adult male and adult female”
Definition of Hindu Marriage
According to Raghunandan, a well known Bhasyakar, “the
acceptance of bride as his wife by the bridegroom in a gift by her parents is defined as
marriage”[2]
According to Veda, A marriage is, “the union of flesh
with flesh and bone with bone”[3]
Nature of Hindu Marriages,
A Sacrament
Marriage
according to Hindu law is a samaskara (sacrament) a purificatory
ceremony prescribed by religion and is not a contract. The maxim “Conjuctic
martitet peminae eet de nature”
means that to keep husband and wife together is the law of nature and
the maxim “ Viretunor consenture in lege una persona” means that the
husband and wife are considered one in the eye of law.
Marriage,
according to Shastras is a holy sacrament and the gift of the girl (kanyadan)
to a suitable boy is sacred duty put upon the father after the performance of
which the father gets great spiritual benefits. In Purushottam v.
Purushottam[4]
it was held that the father or guardian of the girl enjoys the absolute right to
settle the marriage and the assent of the girl does not carry any material
significance. In Gopal Krishan v Mithilesh Kumar[5] Allahabad High Court observed that the “The institution of matrimony under the Hindu law is a sacrament and not a mere
socio-legal contract. It is not performed for mere emotional gratification and
is not a mere betrothal. It is regarded as part of the life of the soul. A Hindu
marriage thus performed regarded indissoluble”.
Marriage
was considered as a sacrament and not a contract under Hindu Laws for the
following reason:-
(i)
Unlike a contract, marriage was an indissoluble tie
and could not be dissolved by decree of Divorce.
(ii)
Marriage between minors has been considered valid
if contracted by lawful guardians.
(iii)
Moreover no consideration is required to render
the marriage valid; on the other hand payment of sulka or bride price has been
deprecated in old Hindu Law.
A
Contract
Some argue that Hindu marriage is a contract
as Mannu Smriti makes it clear that there is a gift of the bride to a bridegroom in Hindu Marriage. Modern writers on Hindu laws after codification
have generally taken the view that a Hindu Marriage is not only a sacrament but
also a contract.
In Purushottam
Das v. Purushottam Das[6] the court observed that the “marriage of Hindu children is a contract. In Mathusami v. Masilamani[7], the court has observed that
“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”.
In Anjana
Dasi v. Ghose[8]
, the Calcatta High Court has observed that “Suits relating to marriage
deals with that which in the eye of law must be treated as a civil contract and
important civil rights, arise out of that contract”. In Bhagwati Saran Singh v.
Parmashwaeri Manoher Singh[9], the court after quoting
extensively from Macnaghton’s Hindu Law, Strange’s Hindu Law and Vyavahara
Chandrika, expressed that a Hindu marriage is not only a sacrament but also a
contract. [10]
In
spite of the fact that the ancient Hindu Marriage was a sacrament, some elements of the contract
were present even in the old concept of Hindu Marriage:-
(i)
Firstly, acceptance of the bride was an
important element in the ceremony of the marriage.
(ii)
Secondly,
both the bride and the bridegroom must be physically and mentally capable of
marriage. Marriage with a congenital idiot who is unable to have any
comprehension of marriage is invalid.
(iii)
Thirdly, a marriage contracted by force or fraud
is invalid and the court may in appropriate cases pass a decree of nullity of marriage.
(iv)
Moreover, although the ancient Hindu law did not
favour payment of any consideration by the bridegroom to the father or the
guardian of the bride, payment of such consideration or bride price did not
render the marriage invalid.
Changes were made by Hindu Marriage Act, 1955.—
The Hindu Marriage Act, 1955 has changed the concept of
marriage and introduced some element of contract in marriage. According to the new
codified Hindu, Law marriage is a union of one man and woman to the exclusion of
the other. Some elements of are set out as
follows:-
(i)
Firstly, the Minimum age of marriage as prescribed
by Sec 5(iii) is 18 years for the bride and 21 years for the bridegroom. Any marriage
solemnised in the contravention of this
rule is neither void nor voidable but gives an option of puberty to a female and a
decree of divorce can be granted under Sec 13 subsection 2 clause (iv).
(ii)
Secondly, the marriage can be avoided by the court
by decree of nullity, If the consent of the parties/guardian was obtained by
force or fraud on the ground of insanity or importance.
(iii)
Thirdly, newly codified law conferred the right of judicial
separation and dissolution of marriage by a decree of divorce.
Forms of Marriage:-
The
ancient Hindu Laws recognized Eight forms of marriage, namely:-
The
four obsolete approved forms of Hindu marriage are:-
(i)
Brahma – The old Brahma form of
marriage was peculiar to Brahmin only.
According to Manu , the gift of a daughter bedecked and bejeweled with costly
ornaments and present, to a man learned in veda and good conduct whom her
father or guardian voluntarily invites and respectfully receives. The chief
feature of this form is that the parents do not receives any kind of
consideration for giving the girl in marriage.
(ii)
Daiva
– According to Manu, the gift of a daughter who has been decked with
ornaments, to a priest who dully officiates at a sacrifice during the course of
its performance, they call the Daiva rite. This form of marriage is inferior to
the Brahma form because the father gives away his daughter for deriving a
spiritual benefit. The Daiva is only different from the Brahma in that the gift
was made to a priest officiating at a sacrifice during its performance.
(iii)
Arsha-- In this form of marriage father gives away
his daughter according to the rule, after receiving from the bridegroom a cow, bull
or two pairs, for the fulfilment of the sacred law, that is named as Arsha
rite. There being no intention to sell the sell the child; the bull and caw
were returned back to the bridegroom after the marriage.
(iv)
Prajapatya – Prajapatya marriage
is similar to Brahma form except that the bridegroom need not be a bachelor.
According to manu, the gift of a daughter by her father after he address the
couple with the text, “May both of you perform together your duties ” and has
shown honour to bridegroom
is called Prajapatya rite.
Four unapproved form of Hindu marriage:-
(i)
Asura ---According to
Asvalayana, a wedding is called Asura where a man marriage to a girl after
gladdening her father by money. This form of marriage is almost a sale of a
girl.
(ii)
Gandharwa – According to
Asvalayana, where a man marriage a women
after a mutual agreement has been made between the lover and the damsel, it is
called the Gandharwa marriage.
(iii)
Rakshasa—According to Manu, the
forcible abduction of a maiden from her home, while she cries out and weeps,
after her kinsmen have been slain or wounded and their houses broken open, is
called the Rakshasa rite.
(iv)
Paishacha—According to Manu, when
a man by stealth seduces a girl who is sleeping, intoxicated, or unconscious,
is the eighth, the most base and sinful paishacha rite.
Classification of marriage
The verna notion and classification of marriage propounded by
Manu found unquestioned acceptance in later Dharmshstras. Kane State[11]that “all writers on
Dharmshastra” start with two propositions: first, the descending scale of the social status of Brahmans, Kshatriyas,Vaishyas and Shudras; and Second, the
classification of marriage into anuloma and partiloma.
Marriages were classified as anuloma (according to the order
of castes) and partiloma (against the order of castes). Under the anuloma form
of marriages, a Brahman could take not only a Brahman wife, but also a
Kshatriya, a Vaishya and a Shudra women,. Kshtriya man apart from Kshtriya
women, also a vaishya, and sudra women in marriage. Vaishya man apart from
vaishya, also a Shudra woman in marriage. However, a disapproved an anuloma
marriage was recognized, and the offspring were treated as legitimate. However,
a partiloma marriage, that is, the marriage of a male belonging to a lower
caste with a female of a higher caste, was prohibited and condemned.
[1]
https://legal-dictionary.thefreedictionary.com/marriage
[2]
Cited in Myneni’s Dr.S.R., “Family Law in India” p. 142 Ist Ed. 2009 (Asia Law
House Hyderabad)
[3]
ibid
[4]
[21 Bom. 28]
[5]
AIR 1979 ALL 316
[6]
[21 Bom 23]
[7]
[33Mad 342]
[8]
[Bengal Law Reporter, P.243]
[9]
[1942 ILR ALL 518]
[10]
Cited in Myneni’s Dr.S.R., “Family Law in India” p. 146 Ist Ed. 2009 (Asia Law
House Hyderabad)
[11]
Kane,P.V., , “History of Dharmshatra,”P.1.27 Vol.II(2nd Ed…1947)
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