Introduction of Hindu Marriage Law:
From ancient times marriage and family have a significant role in Indian society. Before the vaidic age also we find that family was considered to be a unit of society. In Indus Valley civilization we also get sculptures and scripts in support of these. Even on every anthropological races within India we see mythological stories which assure us about existence of marriage as institution from ancient times. Marriage is considered as a sacrament. It is also considered as a essential samskaras(sacraments) for every Hindu. Although just marriage was considered as a indissoluble union but in exceptional situation woman was allowed to abandon her husband and marry another. Vashistha said: ” A damsel betrothed to one devoid of character and good family or afflicted by impotency, blindness and the like or an outcaste or an epileptic or an infidel or incurably diseased… should be taken away from him and married to another”. Kautilya also says that a woman may abandon her husband if he is of bad character, if he is absent for a long time, if he has become a traitor, or is likely to endanger her life, is an outcaste or has lost his virility.
Evolution of modern concept of marriage as a contract and position of Hindu Marriage Act 1955:
As an impact of industrial revolution which has grown the ideas of liberty and equality modern concept of marriage as a contract has derived. The concept which has changed our society forever that all human and social relations must be based on the free and voluntary will of individuals. In western family law it is established that in order to be effective, a marriage must be an agreement voluntarily entered into by both parties.
Hindu sages has also lay down certain qualifications for bride or bridegrooms, but such qualifications are not compulsory. In continuation to that in Hindu law marriage will not be considered as void in absence of consent. So if a person who may be a minor or of unsound mind, on solemnisation of essential marriage rituals considered to be married validly. We can refer here a relevant case named – Venkatacharyalu v. Rangacharyalu. (1980) 14 Mad 816.
Section 5,11 and 12 of the Act are the relevant provisions. Section 5 of the act, by analysing these section we can understand whether Hindu Marriage is a contract or not. Section 5 lays down provisions regarding conditions of marriage, clause (ii) says about mental capacity, clause (iii) says about minimum age of marriage for both the parties. But non compliance of any of such provision does render a marriage as voidable not void. There is an Act named as Sharda Act by which any resistance or prevention of such marriage can be exercised.
So, features of sacrament like permanent union is not present now a days as divorce is possible by statutory Act. Secondly it is not a eternal union as widow marriage also has it’s recognition by Act. But a Hindu marriage is a holy union as rituals or customs still necessary for solemnisation of most of the Hindu marriage.
Various forms of Marriage:
In ancient times Hindu marriage was divided into approved marriage and unapproved marriage. Approved marriage divided into following categories-(i) Brahma (ii)Daivya (iii) Arsha and (iv) Prajapatya and unapproved marriage divided into following categories- (i) Asura (ii) Gandharva (iii) Rakshasha and (iv) Paishacha. However only Brahma, Gandharva and Asura of these were valid before enactment of Hindu Marriage Act 1955.
In Hindu Marriage Act 1955, there is no provision for specific forms of marriage. But according to section 7(1) of Hindu Marriage Act 1955 it must be performed with sastric rituals and ceremonies or with customary ceremonies of the community from which the bride or bridegroom come from.
Ceremonies of Hindu marriage:
For becoming a valid Hindu marriage performance of certain ceremonies is mandatory. Such ceremonies we can find in Grihya Sutras. As per section 7(2), of Hindu Marriage Act, 1955 a marriage to be a complete and binding to both the parties saptapadi is a essential ceremonies but must have to take complete seven steps. Although the shastric ceremonies and rituals are essential, but if one of the parties to the marriage able to establish a customary ceremony against a shastric ceremony then the marriage also will be valid. Famous judgement in favour of that is- Rabindra Nath v. State 1969 Cal 55. In modern times there are four compulsory shatric ceremonies and rituals, these are kanyadana, panigrahan, vivahahoma and saptpadi, out of these saptpadi is necessary for all sects of Hindus.
In Appibai v. Khimji 1937 Bom 138 and Modi v. Modi 1975Cr LJ 208 vivaha homa established as an ceremony which validate a marriage. Although presence of priest in such homa is not necessary.It is also established by law that chanting of mantras is not essential during performance of any ceremonies. The Hon’ble Madras High Court, after examining the texts of religious scriptures, came to the decision that there are two ceremonies which are mandatory for a valid Hindu Marriage. First one is gifting the girl to groom or kanyadanam and another is a religious ceremony as saptpadi. But in Gandharva marriage kanyadanam is not necessary. In marriage among the sudras, vivaha-homa is not essential.
Customary ceremonies which along can validate a marriage:
Among Santhals only necessary ceremony is smearing of vermilion by bridegroom on forehead of the bride. Among the Nayahans of southern India only necessary ceremony is tying of a vadu veeta thali around the neck of bride. Chadar andazi marriage among the jats, does not require any ceremony. Among the buddhists mutual consent along can validate a marriage.
Innovation of ceremonies:
A community, caste, organization or movement can alter, vary or create new ceremonies in replacement of the shastric or customery ceremonies. “Recently Arya Samajists did made innovation in marriage ceremonies, but to validate such marriage (called the Vedic marriage), the legislation had to be passed.” – Modern Hindu Law by Dr. Paras Diwan. In Tamil Nadu an association known as Self-Respector’s cult, innovated a new ceremony where relatives of bride and bridegroom and notable persons of the place are invited and one of them is requested to preside over the whole event of the marriage. The bride and bridegroom are also introduced to the invited persons, and in presence of the invitees bride and bridegroom exchange garlands and rings.In Rajaihi v. Selliah (1966) 2 MLJ 40 the Hon’ble Madras High Court held such marriage void. In 1967, the Tamil Nadu legislation validated such marriages by passing a law which inserted section 7 -A in the Hindu Marriage Act 1955.
Ceremonies with an intention to considered themselves to be married :
In Margarit palai v. Savita palai 2010 Oru 45 it was held that in section 7 of The Hindu Marriage Act 1955 the word solemnized used, which means performance of proper ceremonies with an intention to considered themselves to be married.
Presumption of marriage:
Section 114 of the Indian Evidence Act says that valid marriage can be presumed by continuous cohabitation between the parties unless any evidence against solemnisation of marriage is available. “It has been held in Madan Mohan Singh v. Rajni Kant (2010) 9 SCC 209 that law presumes in favour of marriage and concubinage” – Modern Hindu Law by Dr. Paras Diwan.
Registration of marriage (section 8 of Hindu Marriage Act 1955):
Registration of marriages is one type of evidence of marriage. The Hindus don’t have any law of compulsory registration. Because Hindu Marriage have been performing in presence of related persons of society. The present Hindu Marriage Act says that facility for registration of marriage may be provided. Under the Act marriage between two Hindus can only be registered. The Supreme Court held in Seema v. Ashwani Kumar AIR 2006 SC 1158 that as provided in Entry 30, List -3, Sec 7 of the Constitution Of India registration of marriage comes within the meaning “vital statistics”. Therefore registration of marriage should be made compulsory of all citizens of India respectively in the states where solemnization of a marriage take place.
Inter-caste marriage and legislation:
For all Hindus inter-caste marriage is valid by the Hindu Marriage Validity Act, 1949. In Hindu Marriage Act 1955 we see the term that “any two Hindus” can fulfill a Hindu marriage.
Marriage between Hindus and non-Hundus:
Under the Hindu Marriage Act, marriages between a Hindu and a non-Hindu if performed within India will not be valid. But such under the Special Marriage Act, 1954 such marriage will be valid.
Degrees of Prohibited Relationship:
“The Dharamshastra considered marrital relationship with one’s mother, or one’s sister or one’s daughter or even with one’s son’s wife as the highest sin, mahapataka”-Modern Hindu Law by Dr. Paras Diwan.
Theories of sapinda relationship:
Among the Hindus one cannot marry a person related to him within five degrees on mother’s side and seven degrees on the father’s side. This is prohibited by theory of sapinda relationship.
Before Vijnaneshwara the sapinda relationship means the oblations which one offered to his departed ancestors. The Hindus worship their ancestors and offer pinda to them. In the shradha fortnight they offers pinda to their departed ancestors every year.” The rule is that one offers one full pinda each to his three paternal ancestors and one full pinda each to his two maternal ancestors. One also offers one divided pinda each to his three next paternal ancestors and one divided pinda each to his two next maternal ancestors.” – Modern Hindu Law by Dr. Paras Diwan.
Section 5 (v), of The Hindu Marriage Act, 1955 reduces the degrees of Sapinda relationship by two degrees on either side. In modern Hindu law, sapinda relationship extends upto five degrees on the paternal side and three degrees on the maternal side.
Bigamy:
Bigamy includes both polygamy and polyandry. Both of them now has abolished and monogamy is now a rule for all Hindus as per section 5(i) of the Hindu Marriage Act, 1955, as per that section neither party should have a spouse living at the time of marriage.
Exception- In Goa, Daman and Diu, taking of a second wife during the life-time of the former, in some specific circumstances was permitted but consent of his first wife is necessary. That is still continuing as law in those territories.
Prohibition of Child Marriage Act, 2006:
This act consider males those have not completed the age of 21 years and females those have not completed the age of 18 years as a child. It makes a child marriage voidable and in some cases void also.
Matrimonial causes:
It means legal action against any marriage. The Hindu Marriage Act, 1955, endorses four matrimonial causes these are:
1.Nullity of marriage.
2.Judicial separation.
3.Dissolution of marriage.
4.Restitution of conjugal rights.
Of Hindu Marriage Act, 1955, section 9 deals with restitution of conjugal rights section 11 and 12 deals with void and voidable marriage, section 13 deals with divorce, section 16 deals with children of void and voidable marriages, section 25 deals with maintenance and alimony and section 26 deals with custody, maintenance and education of children, section 29(2) deals with divorce under custom and special enactment, section 19 deals with jurisdiction.
Conclusion:
From ancient times marriage has been given utter importance in Indian Subcontinent. Before British period anuloma and pratiloma marriages also have existence. In Indian philosophy marriage is called an institution rather sacrament, that means it address the sociological aspect with legal aspect. Now a days divorce on the wish of female has legal sanction, but it was in Indian society from ancient times, responsibility of children out of marriage also from ancient times for example we can mention the name of a famous novel written by poet Kalidas – Avigyan Shakuntala. Western Philosophy bring the concept of inclusion of ceremonies and rituals within legislation.
References:
Dr. Paras Diwan, Modern Hindu Law ( ALLAHABAD LAW AGENCY, 2023 ).
Dr. S.R.Myneni, Hindu Law (ASIA LAW HOUSE, 2023).
Sir Dinshaw Fardunji Mulla,Satyajeet A Deshai, Hindu Law ( LEXIS NEXIS, 2022 ).