By Keerthi N (School of Law, Presidency University, Bengaluru)
According to Hindu marriage act,1955 marriage is considered to be a sacrament with solemn pledge and it is not a contract which is only entered by the execution of a marriage. R.N Sharma has defined that a Hindu marriage is a religious sacrament. ‘When a man and woman are into a permanent relationship for the social, spiritual purposes of dharma, physical, procreation and sexual pleasure’.
India is the only country which follows religions in that Hinduism has its own culture, customs, traditions, laws.
Accordingly there are 16 Samskaras, in that Marriage i.e.(Vivah)is the most important part which follows 7 steps and vows in presence of fire Sapta Padi.
Why is Hindu marriage a sacrament?
Sacrament is a symbolic religious ceremony. Marriages are considered as divine between Hindus. In the ancient period, there was no need for the girl’s consent. Where the fathers had to decide the boy without asking for her advice or consent. It is a religious bond between a man and woman, but not completely a contract. It is also believed that Hindu has its specified missions in life which is expressed by the ‘purusharthas’ which comprises Dharma, Artha, Kama, Moksha.
- As per the ceremonies of Hindu marriage there must be performed for union to be finished, the fundamental customs are homa, offering of the hand of the lady of the hour and saptapadi, then the lady and spouse going seven steps together.
- In all the customs the Brahmin performs the rituals by telling the Mantras.
- Hindu marriage is additionally viewed as a ceremony where the male experiences the holy observances over a mind-blowing span and the female experiences the basic, since this is the main ceremony which will be remembered in their life.
The three main aspects of the sacramental nature of marriage:
- Once it is tied cannot be untied.
- It is a religious and holy union of the bride and the groom which is necessary to be performed by religious ceremonies and rites.
- The bond between the husband and wife which is permanent and tied even after death and they will remain together after the death.
As per the legal aspects of sacramental character of Hindu marriage
In the case Shivonandh v. Bhagawanthumma, the court observed that marriage was binding for life because a marriage performed by saptapadi before the consecrated fire was a religious tie which could never be united. The three main characteristics:
- It is a permanent union
- It is an eternal union.
- It was a holy or sacrosanct union.
In the case Tikait v. Basant, the court held that marriage under Hindu Law was a sacrament, an indissoluble union of flesh with flesh, bone with a bone to be continued even in the next world.
Or is it Contract
In the modern era the current idea of marriage is legally binding. Where the western thoughts are combined. There should be an understanding between the couple with balance and freedom in life.
Conditions valid for Hindu marriage act
Under section 5
A valid marriage shall be solemnized between two Hindus with the following conditions fulfilled.
- The groom shall attain the age of 21 and the bride should attain the age of 18. It is very much necessary at the time of marriage the person shall attain the specified age given in the act.
- The consent cannot be taken into consideration when there is a use of coercion or threat. In the modern world, a father can’t get the girl married to any without the girl’s consent. If in case that happens the will be void.
- The person shall not be suffering from any insanity or mental disorder at the time of marriage.
- During the time of marriage no person shall have a spouse living. According to the Hindu marriage Act, it is not permissible to have two living wives at the same point of time, which amounts to bigamy. Section 494 IPC gives punishment for the said offence.
- They don’t fall under the sapinda relationship, or within the decree of prohibited relationship unless it is allowed by the custom or tradition.
Solemnization of Marriage
Under section 7
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 parties or either anyone of them. It is concerned with the saptapadi which means that taking seven rounds the fire with their partner; after its completion marriage becomes complete and binding.
- Each party to the marriage shall put the ring upon any finger of the other.
- Tying the mangalsutra.
- Each party to marriage declaring in any language shall be understood by each other.
As per the legal aspects Hindu marriage act 1955
In the case Purushottamdas v. Purushottamdas the court held that the marriage of Hindu children is a contract made by the parents
In the case Bhagwati Saran Singh v. Parmeshwari Nandar Singh the court held that a Hindu Marriage is not only A sacrament but also a contract.
In the case of Anjona Dasi v. Ghose the court observed that the marriage, whatever else it is, sacrament and institution, which is undoubtedly a contract entered into for the consideration with correlative rights and duties.
In the case of Dhanjit Vadra v. Beena Vadra the court cited observations of a division bench of the Andhra Pradesh High court: Section 13-B radically altered the legal basis of a Hindu marriage by Treating it as an ordinary form of contract which competent parties can enter into and put an end to like any other contract by mutual consent.
Therefore, in the most Hindu marriage is a religious ceremony is followed. We can conclude that marriage has some elements of contract but it is not purely contract. Moreover it is a sacrament under Hindu marriage act. It is more of sacrament as Hindu marriage is a holy and eternal union of two bodies.