Table of Contents

Evolution and Concept of the Institution of Marriage and forms of marriage

Table of Contents

Theoretical Overview

Introduction:

Hindu marriage brings two people for the eternal bond of life, so they can serve the purpose of Dharma (duties). Marriage ties two families together and everybody celebrates this union. Blessed by elders and the gods, the Hindu marriage is filled with rituals and lights to chase the darkness away. Hindu marriage holds a tradition that is held and followed throughout the years. Right from the ancient period, Hindu marriage is not just a ritual for consummation, but also, the merging of two souls that vows to be together forever.

Evolution of the Institution of Marriage: 

Marriage as an institution has changed over the years. It has not been a drastic but slow change over the century. Our forefathers had a completely different definition of marriage. The current generation has its own interpretation of marriage. Changes to marriage that we now take for granted have been controversial at some point in time. Many years ago, nobody agreed to the concept of same-sex marriage to the times today when the judiciary has declared it legal in almost all countries. Also, every religion has its own laws for marriage. Today, the underlying meaning that marriage is a legal contract remains the same but due to the changes in society, the legal obligations are not the same. 

The Concept of the Institution of Marriage

Marriage among the Hindus is considered divine in nature. It is a religious bond and not a contractual union. A sacramental union implies that it is a permanent bond that does not end in this world or after the death of either partner but it continues even after death, in the next life. 

However, marriage is considered a contractual bond between two parties according to the Hindu Marriage Act, of 1955. Marriage is a basic social institution. In Hinduism marriage is seemingly one the most important and greatest of all other social institutions. Marriage can be defined as the legal union of a man and a woman as husband and wife. It is a bond two parties share that no one can take away from them; unless and until divorce takes place.

Marriage as a concept has evolved according to time, place, people, and culture. In the early times, if a husband dies, the woman has no allowance to marry again. Instead, she had to perform sati. There is no age bar for marriage, so many people married during childhood. There was the involvement of the dowry system during the marriage. Which in turn made the parents of a girl child feel that a woman is a burden to their family. To stop such practices, the Hindu Marriage Act was passed and implemented in 1955.

Forms of Marriage

Under the Hindu system, eight types of marriages can take place:

The eight forms are divided into 2 categories of approved and unapproved forms of marriage.

Approved forms

Brahma, Daiva, Arsha and Prajapatya come under the approved forms of marriage. These marriages involve the exchange of gifts, the “gift of a maiden” (kanyādāna). Brahmins, according to the dharma texts, have the duty to accept gifts. Therefore, the first four marriage types are generally pronounced legal for Brahmins.

Brahma form of marriage: Brahma vivah is the best and most practiced form of marriage in India. In this form of marriage, the father of the girl gifts his daughter to a person of good character who is learned in Vedas. During this type of marriage, the girl is dressed and decked to a male who has good knowledge of Vedas. During this marriage, the male is invited by the father of the bride. Under Hindu sanskar it is the purest and most evolved form of marriage as this form of marriage does not include any force, carnal appetite, and exchange of money.

Daiva form of Marriage: In the Daiva form of marriage, the marriage takes place between the girl and a priest. Section IV of manusmriti defines daiva marriage.

Arsha form of Marriage: In this form of marriage, the marriage takes place with rishi or sages. In this marriage, the father of the girl doesn’t have to offer anything to the groom. In this marriage, the father of the groom gives two cows or bulls to the father of the bride.

Prajapatya form Marriage: This form of marriage is identical to Brahma vivah but there is no kanyadan in this form of marriage.

Unapproved forms 

Asura, Gandharva, Rakshasa, and Paisacha come under the unapproved forms of marriage.

Asura form of Marriage: It is the most unsocial form of marriage. In this marriage, the father gives his daughter after getting money from the groom. This form of marriage is basically a barter exchange between the father of the bride and the groom.

Gandharva form of marriage: In this form of marriage, the girl and boy mutually agree to get married but this mutual agreement arises from pure lust. In this form of marriage, the approval of parents plays no role.

Rakshasa form of marriage: In this form of marriage, the bride is abducted, and the marriage is performed. This form of marriage is the most condemned form of marriage since this form of marriage involves the abduction of the bride it is not only against nature and custom but also against laws.

Paishacha form of marriage: In this form of marriage, the man seduces the woman they entered a sexual act when the girl is not in a position to give her consent due to intoxication or mental disorder. Under the Hindu system, marriage is performed for the fulfillment of religious obligations and not for the fulfillment of sexual desire.

Relevant Sections

1. Section5 of The Hindu Marriage Act, 1955– defines the “Conditions for a Hindu marriage”. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:—

  • None of these parties have spouses living at the time of the marriage.
  • During the time of the marriage, neither party should be.
  • Incapable of giving valid consent due to the unsoundness of mind.
  • Suffering from mental disorder to an extent as to be unfit for marriage and procreation of children.
  • Subjected to repeated attacks of insanity.
  • Age- The bridegroom must be 21 years or above and the bride must be 18 years or above.
  • The parties are not in a degree of prohibited relationship.
  • Parties are not sapindas (blood relation) to each other.

2. Section -7 of The Hindu Marriage Act, 1955- defines “Ceremonies for a Hindu marriage”. (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

3. Section -8 of The Hindu Marriage Act, 1955- defines the “Registration of Hindu marriages”. Section 8(1) says that as proof of the Hindu marriages, the State Governments will be granted authority to make rules which will provide that the parties involved in the marriage have been so in terms of the conditions that are provided by the Hindu Marriage Register and along with this the documents that are associated with the marriage should also be kept with the parties for future references.

Section 8(2) provides that it is the responsibility on the part of the State Governments to ensure that the parties to the marriage have abided with the rules that have been provided in Section 8(1) and if there are any signs of contravention by the parties, then it is the State who will charge a fine of twenty-five rupees from the parties.

Section 8(3) says that the rules that have been talked about in Section 8(1) should be provided to the State Legislatures after their formation.

Section 8(4) lays down the duty of the Hindu Marriage Register that is to inspect the marriage in order to have sufficient evidence as to the marriage concerned to prove it to be legal.

Section 8(5) summarises the fact that the validity of the Section will not be affected in any way if the registration of a Hindu marriage does not take place in the course.

Important Case Law

1. Seema vs Ashwani Kumar (2006), the court issued the directions that the marriage of all Indian citizens belonging to various religions should be made compulsory registration. If the marriage is registered, most disputes was easily avoided. Registration protected women’s rights, and also avoid the legitimacy issues of children. It’s also safe the children’s rights.

2. Ram Chandra Bhagat vs. the State of Jharkhand (2010), the Hon’ble Supreme Court held that an inter-caste marriage may be solemnized either following the customs and ceremonies of the boy’s caste or the girl’s caste.

3. Devki Nandan Das v. Smt. Manorama Das (2022), the Chattisgarh High Court held that a false allegation of torture and impotency amounts to mental cruelty.

Important Legal Maxims

1.  “Ab initio” – From the very beginning of the law/ act it was bad. Such a term is used in reference to the law, agreements, a deed executed between parties, marriage, etc. If something is said to be void ab initio, the thing was never created or void, to begin with.

Void marriages are void ab initio which means that in the eye of the law that marriage has never come into being.

2. “A mensa et thoro”– The literal meaning of the maxim a mensa et thoro is from bed and board. It means legal separation of husband and wife which means they aren’t legally obligated towards each other but their marriage has not dissolved. The main objective of this maxim is to give space to the couple so that they can live separately and not to dissolve the marriage.

3. “Vinculo Matrimonii”– The literal meaning of this maxim is from the bond of matrimony which means complete or absolute divorce. The parties are not bound to perform any obligation towards each other which arose from their marriage. Basically, it applies to those marriages which are voidable or void ab initio i.e void from the beginning and applies in the cases of bigamy and marriages which are not permitted by law.

Other Important Concepts

1. Sapinda Relationships are prohibited under Hindu marriage law. A sapinda is someone who is within or has a common ancestor relative within three generations above you on your mother’s side of the family or has a common ancestor relative within five generations above you on your father’s side of the family. A sapinda can be someone from your father’s side or mother’s side hence, you are not eligible for a hindu marriage if you marry someone who is a Sapinda.

However, in some cases, despite a sapinda relationship being prohibited by law, a person’s custom might still permit marriage with another person. In this case, they can get married because their custom allows them to do so. Jail time up to one month or a fine up to Rs. 1000 or both is the punishment but there are exceptions.

2.Saptapadi which means taking seven rounds in front of the holy fire, i.e., ‘Agni’ in the mandap, upon the completion of the seventh round, the marriage is said to be completed, which is of binding nature and is said to be a valid marriage.

Points to Remember

1. Marriage is an institution in India which is witnessed a change over the years. Every person and every religion has its own interpretation for marriage.

2. In ancient Hindu law the matrimonial that is the marriage was considered to be a sacred Union that was eternal. 

3. Modern Hindu law is based on the concept of both ancient texts and modern principles of law.

4. Prior to the Hindu Marriage Act, 1955 the parties to the marriage had no remedy to get out of the marriage. 

5. Section 11 and Section 12 of the Hindu Marriage Act, 1955 a remedy for the parties, who are in a void and voidable marriage.

6. After the enactment of the Amendment Act, 1976 the child born out of void and voidable marriage shall be termed as legitimate. 

7. There are certain grounds for a valid marriage under Section 5 of the Hindu Marriage Act,1955, if someone violates it then it amounts to void marriage or voidable marriage.

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