Nature of Hindu Marriage under

the Hindu Law

Introduction
Hindu Marriage refers to kanyadan which means gifting a girl to
the boy by the father with all the tradition and rites or custom.
Hindu marriage is an ancient tradition which is prevailing from
the Vedic periods to the modern world with different
modifications that have occurred until now. There are 16
sacraments in the Shastri Hinduism in which marriage is one of
the important sacraments of Hinduism.
Section 2 of the Hindu Marriage Act 1955 states that this act
applies to any person who is a Hindu by birth or who has
changed his/her religion to either any of its forms such as
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or
Arya Samaj. Any person who is a Buddhist, Jain, or Sikh also
comes under this act. It also applies to any person living outside
this territory except who is a Muslim, Christan, Parsi, or Jew by
religion or it is proved that such person is being governed by
Hindu law. It is believed that it is the strongest bond between
husband and wife. It is an unbreakable bond that remains even
after death. The importance of marriage is not to the extent of
one generation but it is an in-depth belief of Hinduism. Without
a wife, a person is considered incomplete while performing any
rites of Hinduism. It is very important to perform all the rites
with the wife.
Who are Hindus? Hindu by Religion
The Medieval period of Hinduism lasted from 500 to 1500 AD.
Hinduism is the oldest religion which contains a wide range of
tradition and culture which are followed by all the Hindus across
the globe. Any person who is a Hindu by religion or born in
Hindu family with Hindu father or mother in any of its forms
such as Virashaiva, a Lingayat or a follower of the Brahmo,
Prarthana or Arya Samaj or any person who is a Buddhist, Jain,
or Sikh is also
a Hindu by religion. Thus, any person except a follower of Muslim,
Christan, Parsi, or Jew religion is a Hindu.
Hindu by Birth
Any person born in a Hindu family or has a Hindu father or mother
such a person is considered as Hindu by birth. Any person born in
any community apart from Muslim, Christian, Jews is also a Hindu.
Any child, legitimate or illegitimate if either of his parents is Hindu, if
he is brought up by the parent who is hindu shall be considered as
Hindu by birth.
The Concept of Marriage under the Hindu Law
For a long period of time Hindu marriage rites have been changed
accordingly due to the needs and convenience of the people from
time to time. It is the relationship between husband and wife.
According to Hinduism, this sacrament is one of the most important
sacraments out of 16 sacraments in Hinduism. It is a sacred tie that
can’t be broken. It is a relationship from birth to birth, it is a bond
which continues after rebirth and death. According to Veda, a man is
incomplete until he gets married and meets with his partner.
Sacramental Nature of Marriage
Characteristics of the Sacramental Nature of a
Hindu Marriage
Hindu marriage is “a religious sacrament in which a man and a
woman are bound in a permanent relationship for the physical,
social and spiritual need of dharma, procreation and sexual
pleasure.”
There are three characteristics of the sacramental nature of
marriage:
It is an enduring bond of the husband and wife which is permanent
and tied even after death and they will remain together after the
death.
Once it is tied cannot be untied.
It is a religious and holy union of the bride and groom which is
necessary to be performed by religious ceremonies and rites.
Hindu marriage is considered as one of the most important
sacraments. In ancient times, there was no need for the girls’
consent. Fathers have to decide the boy without asking for her
advice or consent. It is the sole duty of the father to find a suitable
boy. If the person was of unsound mind or minor at the time of the
marriage, it was not considered as a void marriage. But in the
present world, consent and mental soundness of the person are a
very essential part of the Hindu Marriage, without the absence of
any such element marriage will be annulled or void or no legal
entity.
Section 12 of the Hindu Marriage Act 1955 lays down that when
one’s consent is not obtained, the marriage is considered void. It
shows that despite the absence of consent of the bride, the
marriage is valid and legal.
The nature of modern marriage is contractual. Thus, it accepts the
idea of equality and liberty. It has been adopted due to western
Ideas. There must be an agreement of voluntarily entering into it by
both parties.
Thus, the Hindu marriage is not a contract and neither is it a
sacrament. But it can be said it is a semblance of both.
Forms of Marriage under the Hindu Law
The ancient Hindu law recognized three forms of Shastric marriages
as regular and valid. These were Brahma (bride given gift by father),
Gandharva (mutual agreement of bride and bridegroom) and Asura
(bride virtually sold by the father).
There are three forms of marriage which are been described in
Shastri’s law as valid and regular:
Brahma Marriage
The bride is given as a gift to the groom by the father generally
known as the arranged marriage that is mostly followed in India. The
act called marriage which is performed according to the Shastric
rites and ceremony or customary ceremonies prevalent in the
community.
Gandharva marriage
There is the mutual consent of the bride and groom and is generally
known as love marriage. These marriages are prevalent in the
present modern world. where the bride and groom select each other
and perform marriage according to the Shatri rites and ceremony.
Asura marriage
Asura marriage is aggressive and forced marriage where the bride is
sold by the father, it is still prevalent and performed very commonly
even by high-class Hindu.
The Current Hindu Marriage Act doesn’t define or describe or
acknowledge these forms of marriage. So, in the present world,
people are not obsessed with only these forms of marriage. People
are more aware of their choices and instead of accepting their
father’s choice they want to select their partner on their own.
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Ceremonies to be performed in a Hindu
Marriage
Marriage in the Hindu religion is a sacred tie performed by certain
ceremonies and rites which are necessary for a valid marriage.
There are three important stages wherein certain ceremonies are to
be performed.
Sagai -Hindu engagement is an important pre-wedding ritual in
Indian culture, it is a type of culture in which the bride and groom
come face to face and are engaged with a religious bond by each
other’s families. The Hindu tradition of “Vagdanam” dates back to
Vedic period where the groom’s father gives their words to the
bride’s father that they will accept their daughter and will be
responsible for their future well being. There are various terms
which are used instead of engagement in different places like Mangi,
Sagai, Ashirbad, Nishchayam etc.
Kanyadan– The word kanyadan consists of two words- Kanya which
is maiden or girl and daan which means donation. It is the donation
of a girl. It is an age-old tradition where the bride’s father presents
his daughter to the groom, giving him responsibility for her future
wellbeing. It is an emotional and sentimental laden ritual which
recognizes the sacrifice a father makes in order to ensure her
daughter’s happiness. It is followed till now from the Vedic times. It
is an integral part of traditional Hindu marriage.
Saptapadi– Saptapadi is a very important and integral component
of a typical Hindu marriage. It is an activity which is undertaken by
the bride and groom in front of the fire god, where couples go
around the sacred fire seven times while reciting certain vows. This
movement is also known as phera. Fire or Agni is considered highly
sacred in the Hindu religion, vows taken in front of the Agni are
unbreakable. The god of fire, Agni deva is considered to be a witness
to be solemnization of the marriage as well as a representative of
the supreme being to provide his blessing to the newlywed couple.
Section 7 of the Hindu marriage act 1955 states the solemnization of
the Hindu marriage, a Hindu marriage may be performed by all the
ceremonies and rituals of both the party or either anyone. It is
concerned with the Saptapadi which means that taking seven
rounds around the fire with their partner; after its completion,
marriage becomes complete.
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Conditions for validity of a Hindu Marriage
Section 5 A valid marriage shall be solemnized between two Hindus
if the following conditions are fulfilled:
Any person doesn’t have a spouse living at the time of the marriage.
According to the Hindu Marriage Act, It is not permissible to have
two living wives at the same point in time, which amounts to
bigamy. It is punishable under Section 494 of the Indian Penal Code.
The groom shall attain the age of 21 and the bride attains the age of
18. It is necessary at the time of marriage the person shall attain the
specified age given in this Act.
The consent shall not be given by coercion or threat. In the modern
world, a father can’t get the girl married to any without a girl’s
consent. Marriage will be void.
They don’t fall under the Sapinda relationship, or within the degree
of prohibited relationship unless it is allowed by their custom or
tradition.
The person shall be not suffering from any insanity or mental
disorder at the time of the marriage.
Essential elements of Section 5
Condition of monogamy
Section 5 (i) of the Hindu marriage act 1955 states that at the time
of the marriage a person should not have a living spouse. It is not
permissible in Shastri law to have two married women at a point in
time. It is also punishable under the Indian penal code 1955.
Bigamy
Bigamy amounts to having two living wives at the same time which
is illegal in Hindu law; without finalizing the divorce from the first
marriage, a person can’t marry someone else. The first one will be
considered a legal marriage. The provision of section 494 and 495 of
the Indian Penal Code 1860 will be applicable to the person
performing the second marriage after already having a living
husband and wife.
Conditions regarding mental health or capacity
Section 5 (ii) (a),(b),(c) Hindu marriage Act 1955 discusses the
condition of valid of Hindu marriage related to mental health or
capacity of the person; if a person is suffering from unsoundness of
mind at the time of marriage, Marriage will be considered as void. It
is necessary that a person shall be capable of giving valid consent at
the time of the marriage.
Condition for marriageable age
Section 5 (iii) of the Hindu Marriage Act 1955 states that the
bridegroom has completed the age of twenty-one and the bride has
completed the age of eighteen years at the time of the marriage. If
the person has not attained given in section 5 (iii) the marriage will
be void it has no legal status.
Sapinda relationship
All prohibited relationships are Sapinda but all Sapinda relationships
are not prohibited relationships. Sapinda relationship is the chain of
all the relationship from the side of the brother and sister in the
family; they can’t marry each other due to prohibited relationship
and also their generation till three generations from the girl side and
five-generation from the boy side, till that they all are in Sapinda
relationship. Avoidance of Sapinda can be achieved as the girl
reaches the fourth generation and boy (brother) reaches the sixth
generation after that both families can have a marriage that will be
neither prohibited relationship nor Sapinda relationship.
Some other essential provisions for a Hindu
Marriage
Solemnization of Marriage (Section 7)
Section 7 of the Hindu marriage act 1955 states the solemnization of
the Hindu marriage, a Hindu marriage may be performed by all the
ceremonies and rituals of both the party or either anyone. It is
concerned with the Saptapadi which means that taking seven
rounds around the fire with their partner; after its completion
marriage becomes complete and binding.
Each party to the marriage declaring in any language shall be
understood by each of the parties.
Each party to the marriage shall put the ring upon any finger of the
other. tying of the thali.
The marriage renders to be valid if it is performed between Hindu
couples according to the customary ceremony and rituals of each
party or any one of them. Any child born after performing the
marriage according to this section will be legitimate. The beginning
of the child before the dissolution of the marriage is not the cause to
dissolve the marriage. It is one of the most important duties of the
father to bring up the girl child, find a suitable boy for her and do
Kanyadan for the girl. Girl leaves their gotra and enters into the
gotra of the boy. It is an unbreakable bond that is tied for the
generation to generation. It is a sacrament, not a contract.
Registration of Marriage (Section 8)
Section 8 states that:The state government is facilitating the
provision as a proof to Hindu so that the person
comes into a valid marriage with the prescribed manner.
All the rules made in this section shall be laid before the state
legislature as soon as May.
Hindu marriage registrar has all the powers and reasonable time
open for the inspection and collects evidence and certified them
after the payment of a prescribed fee.
Void Marriages (Section 11)
Section 11 of the Hindu Marriage Act 1996 states that any marriage
solemnized after the commencement of the Hindu Marriage Act
1955, if it contravenes any of the provisions of this act, the marriage
will be void. The marriage will have not any legal entity nor will it be
enforceable.
Voidable Marriages (Section 12)
Any marriage solemnized after or before the commencement of this
will be voidable on the following grounds:
No sexual intercourse has been done after the marriage due to the
impotence of the Husband.
Marriage is in contravention of Section 5 (ii) of this Act which states
that the bride shall attain the age of 18 and the groom shall attain
the age of 21.
There shall be a consent of the bride.If the husband has pregnant
another woman other than the wife. The wife has filed a request for
annulling the marriage.