DME LAW SCHOOL

Paper Code: LLB 201

SUBJECT: Family Law-I
SEMESTER: 3RD
CREDITS: 5
VRL No. 2 & Tutorial Lecture No. 2

Objective: This lecture focuses upon enhancing the understanding of the student
on the topics of forms of marriage in hindu law. Manu, the great Hindu law giver,
has mentioned eight forms of Hindu marriage, viz, Brahma, Daiva, Arsa,
Prajapatya, Asura, Gandharva. Rakksash and Paisacha. Prior to the enactment of
Hindu Marriage Act, there were eight forms of marriage, four approved and four
unapproved. Students will also come to know the kinds and condition of void,
valid and voidable marriages.

Outcome: The students will be familiarized with important concept of kinds of

marriages in ancient hindu law and also essentials of a valid marriage as provided
in section 5 of HMA, 1955. The kinds of marriages viz, void marriage under
section 11 and voidable marriage under section 12 of the said act.

Methodology: For the purpose of studying evolution and concept of the institution
of marriage Doctrinal Methodology will be followed. This includes referring to
primary sources like Bare Act and Judgments delivered various High Courts and
the Supreme Court of India. While secondary sources would include text books,
commentaries and articles by different eminent scholars.

Tutorials: Video Lectures as uploaded over Collpoll. Student is required to watch

the video lecture for topic 2 thoroughly and grasp the concepts enumerated in the
same, before attending the tutorial.

Topic 1.2: Forms, Validity and Voidability of Marriage

a) Forms of marriage in ancient hindu law,

The normative texts, dharma texts and some Gṛhyasūtras classify marriage into
eight different forms which are Brahma, Daiva, Arsha, Prajapatya, Asura,
Gandharva, Rakshasa, Paishacha. This order of forms of marriage is hierarchical.  
Even the Supreme Court of India in Koppisetti Subbharao vs the State Of A.P 
recognized the existence of 8 forms of marriage given by Aryan Hindus.

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
The Brahma marriage, in dharma texts, has been explained as the gift of a
daughter, after being decked with ornaments and honoured with jewels to a man
selected by the father himself and who is learned in Vedas is called the “Brahma
marriage”. The “Brahma” marriages are the rituals of the Brahmans who according
to Manu-Smriti have the duty to accept gifts. The Supreme court in Reema
Aggarwal vs Anupam And Ors, 2004 discussed the possibility of Brahma marriage
being the origin of the dowry system in India but didn’t come to a conclusion
regarding it. According to the author, “Brahma” marriages do not give rise to
dowry cases because the father of the girl himself voluntarily gives gifts to the
bridegroom. There is no external pressure from the bridegroom according to the
Manu-Smriti. However, in practicality, the bridegroom may use the custom of
“exchanging gifts” for harassing and pressurising the bride and her parents to give
dowry. Also, According to Manu, the son of a wife married according to Brahma
rites liberates ten ancestors and descendants.

Daiva

Daiva-vivāha means ‘marriage related to the rite of the gods’. In this form of
marriage, unlike Brahma, the father gives away his daughter to a priest as a
Dakshina (sacrificial fee) for officiating in the sacrifice conducted by the father of
the bride. In this form of marriage, the groom doesn’t come looking for a bride, the
parents of the bride go looking for the groom for her daughter.This form of
marriage is considered inferior to the Brahma marriage because, in Daiva, the
father derives a benefit by using her daughter as a sacrifice and also because it is
considered degrading for women to go looking for a groom. According to Manu,
the son of a wife married according to Daiva rite liberates seven of their ancestors
and descendants.
Arsha
The third form of approved marriage, that is Arsha Marriage, suggests marriage
with Rishi or sages. This is different from Brahma and Daiva forms of marriage
because, in Arsha, the father of the bride doesn’t have to give anything to the
bridegroom. In the Arsha, the father of the bridegroom is the one who gives 2 cows
or bulls to the father of the bride. Marriages of this type happen because the
parents of the girl couldn’t afford the expenses of their daughter’s marriage at the
right time according to the Brahma rite. So it is presumed that the girl is married
off to an old rishi or sage in exchange for 2 cows.  However, this form of marriage
was not considered noble as the marriage was treated as a business transaction
where the bride was exchanged for cows and bulls. According to Manu, the son of
a wife married according to arsha rite liberates three ancestors and descendants.

Prajapatya
Prajapatya form of marriage is similar to Brahma form of marriage except there is
no trading or Kanyadan in Prajapatya and the father of the bride searches for the
groom. Because of these differences, Prajapatya is inferior to Brahma. In this form
of marriage, the father while giving away her daughter addresses the couple with a
condition that both the bride and bridegroom may perform their dharma together.
The basic condition requested by the father of the bride is that the bridegroom must
treat the bride as a partner and fulfil their religious and secular duties together.
According to Manu, the son of a wife married according to prajapatya rite liberates
six ancestors and descendants.

Unapproved forms 

Asura
This is one of the most condemned forms of marriage. In this form, the father gives
away her daughter after the bridegroom has provided all the wealth that he can, to
the father of the bride and the bride herself. The Ramayana mentions that an
extravagant amount of price was given to the guardian of Kaikeyi for her marriage
with King Dasaratha. This is basically a commercial transaction where the bride is
purchased. According to Manusmriti, the father of the girl should not accept the
offer even for the least amount of price.
Gandharva
This is a unique form of marriage and is different from other forms of marriage.
There is a mutual agreement between the girl and boy to get married. This mutual
agreement arises from pure lust. The approval of parents does not play a role. The
concept of mutual consent for marriage was prevalent in the old Hindu system,
however, the solemnization of marriage coming out of the mutual consent was very
low.

Rakshasa
Rakshasa form of marriage is performed by abducting the bride and brutally
slaying her family and relatives. In some texts, another condition that needs to take
place is that the bridegroom shall fight with the family of the bride while following
the ceremonial steps in a tranquil wedding. However, this condition is not essential
for having a “Rakshasa” marriage.  This form of marriage was practised by
Kshtraiyas or military classes. “Rakshasa” marriage resembles a right of a victor
over the person held captive in war.  In the modern era, this form is a criminal
offence u/s 366 of IPC. Section 366 prescribes punishment for
abducting/kidnapping a woman to compel her to marriage is punishable with
imprisonment up to 10 years and/or fine. 

Paishacha

This is placed as the last form of marriage because this is the most atrocious form
of marriage out of the 8 marriages. In this, a man seduces women and enters in a
sexual act when the girl is either sleeping, intoxicated or mentally disordered
mostly in the night. The girl and her parents out of shame of such activity have to
agree to the marriage with the man.  Paishacha means goblins who are supposed to
act secretly at night. It resembles as an act of rape, which in the modern era is the
most abominable act one could ever commit and is punishable u/s 376 of the IPC.
Whoever commits rape shall be punished with imprisonment of not less than 7
years and may extend to lifetime along with fine.  

b) Validity and Voidability of Marriage : The term “void” can in general parlance be
understood to be a synonym of the word “illegal”. Hence anything which is void
would have one consequence for sure – that it would be illegal. A void marriage
therefore means an illegal marriage. Now the question is when would a marriage
be called illegal? A and B, both major, enter into a matrimonial relationship with
each other and with their own consent but without the consent of their parents. Is
this marriage illegal? No, this marriage is not illegal merely because the parents of
A and B have refused their consent. But what would be the position if both A and
B are already married to say C and D or either A or B is married to someone else?
In such a case, the marriage between A and B would be illegal as it would not be
fulfilling the conditions for a valid Hindu marriage as prescribed under clause 1 of
section 5 of the Hindu Marriage Act, 1955 [hereinafter referred to as ‘the
Act’].  It is to be noted that section 5 just lays down the requirements of a valid
Hindu marriage but it does not lay down the effect if any of the conditions laid
therein are not followed. This effect provided for in section 11 and 12 of the Act.
Out of these two sections it is section 11 that deals with nullity of marriage. The
effect of the above two sections, i.e. section 5 and section 11 when read together is
that all marriages which fall within either clauses i, iv or v of section 5 are void.
Under law, these marriages would have no recognition except as is provided under
any law. It has been held by various High Courts that conditions mentioned is
section 11 rendering a Hindu marriage null and void are exhaustive. It is only on
these grounds that that a Court can grant a decree of nullity.

Essential Reading:
1. Section 5-8, 11 & 12 of Hindu Marriage Act, 1955

2. Paras Diwan, Modern Hindu Law, Allahabad Law Agency, 1993

3. Mulla, Principles of Hindu Law, Lexis Nexis, 2007

Further Readings Case Laws

S Case title Citation
No.
1 Koppisetti Subbharao vs the State AIR.2009,SC
Of A.P (https://indiankanoon.org/doc/389094/)
2 Naurang Singh Chuni Singh vs AIR 1968 All 412
Smt. Sapla
3 Sunder Lal Soni v. Smt. Namita AIR 2006 MP 51.
Jain
E-Pack: (Scanned copy/ PDF/link of essential readings/e-articles)

1. Section 5,7,8,11,&12 of Hindu Marriage Act, 1955

https://www.advocatekhoj.com/library/bareacts/hindumarriage/index.php?
Title=Hindu%20Marriage%20Act,%201955
2. By Ayush VermaForms of Marriage under the Hindu Law
https://blog.ipleaders.in/nature-hindu-marriage-hindu-law/

3. Marriage in Hinduismhttps://en.wikipedia.org/wiki/Marriage_in_Hinduism

4. International Journal of Law ISSN: 2455-2194; RJIF 5.12 www.lawjournals.org

Volume 2; Issue 6; November 2016; Page No. 87-89
http://webcache.googleusercontent.com/search?
q=cache:JmjUh1DcamYJ:www.lawjournals.org/download/365/4-4-41-
519.pdf+&cd=17&hl=en&ct=clnk&gl=in

PSDA: Presentation (15min)

Topic 1: What is a proper or valid Hindu marriage? (7 min)

Topic 2: Is it possible for Hindus to marry without undergoing Hindu marriage

rituals and still remain Hindu for other aspects of the law?

15 Min
Discussion Questions/Short Ans Type: (5min)

Q.1. What conditions do persons wishing to marry have to fulfill before a proper
Hindu marriage can be solemnized as per the Hindu Marriage Act,1955.

Q.2. What marriages are void and what marriages are voidable?

Essay Type Questions / Previous Year Questions (7 min)

Q.1. If a woman has been forced into a marriage, is such a marriage void or
voidable? What if a fraud has been played on her?
Quiz
1. There are three parties ‘A’,’B’ and ‘C’ where ‘A’ has a living spouse ‘B’,
but he again marries to ‘C’ then this will it be called as bigamy and will it
be void.

2. There are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is his
wife. They both went on a relationship which is prohibited by law. This
marriage can also be called………… marriage.

3. There are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is the
wife, who has blood relation or close relation to A which can also be termed
as Sapinda. So, this process will be treated as……………
Summing up of Session-10 min