Family Law

Hindu Marriage – A Contract or A Sacrament?

By Renuka Madhav & Aditya Sen (School of Law, Presidency University, Bangalore)

Introduction

Marriage is regarded as a fundamental social institution. Marriage has been the largest and most important social institution in Hindu society since the beginning of time. According to scholars, the birth of a human is the birth of marriage. Marriage existed in primitive form among pre-civilized societies, and it gained institutional status when religion patronised and sanctioned it as a necessary part of life, as well as a legal sanctity. Individuals and groups preserve their purity through marriage rituals, whether consciously or unconsciously.

Hindu marriage from Vedic Philosophy and traditions

Marriage is a sacrament, and it is a bond that can never be severed, except by death. It is the product of the union of seven births. As a result, it is sacred and irreversible. Every Hindu is required to visit four ashrams. In general, all ashrams are beneficial to an individual’s growth. However, the Grihasthasram has been lauded for its social importance rather than its sheer superiority to the other three ashrams. Moksha is the ultimate aim of the marriage institution. However, it will not be achieved until a male progeny is born. Putra is a Sanskrit word that means “one who can save his own father from hell.” A son is important for a father in terms of performing social duties as well as for other purposes. Dharma, Proja, and Rati are the three primary subjects of marriage. According to the Ramayana, the wife was considered half of the male, dharmapatni, a friend and adviser to be included in all religious rituals and ceremonies by the husband. According to the Mahabharata, those who have wives are capable of carrying out their responsibilities in this world; those who have wives have a true family life. 

Various aspects of traditional Hindu marriage

  1. Age of marriage

In traditional culture, a guardian’s daughter should be married before she reaches puberty. The bride should be younger than the bridegroom at the time of marriage, according to the Vedas, Brahmins, and Kama-Sutra. Brahmanism adopted the pre-puberty marriage trend and influenced the majority of Hindu society’s castes.

  1. Mate selection

Mate selection is a crucial step in the process. Endogamy is a mate-selection process in which a family must choose a mate for their daughter or son from within the group or culture. The aim of endogamy is to make it easier to maintain marital harmony. In Hindu culture, exogamy marriages are forbidden. In Hindu culture, cross-cousin marriages are also favoured.

  1. Rituals and Rites

‘Mandap Mahurah’, ‘Ganesha puja’, ‘tikka’, ‘chadi, ‘mandva’, ‘Griha shanti’, ‘mameru’, ‘Pokavu’, ‘barraat’, ‘aarti’, ‘Kanya-Daan’, ‘Mangalpheras’, ‘Sapta Padi’, ‘Var Ghodyu Pokavanu Che’ etc were and are some of the most important rituals and rites performed before, during and after marriage even in contemporary times although the time duration has been reduced.

Changes undergone

In modern culture, Hindu marriage is both a sacrament and a contract. In today’s world, the goals, styles, customs, and functions of Hindu marriage are evolving. Previously, the primary goals of Hindu marriage were dharma, artha, kama, and moksha. However, in terms of conventional goals, the order of priority has been reversed, with sexual gratification taking precedence over praja and dharma. While most marriages are conducted according to sacred rites and rituals, the conventional philosophy of Hindu marriage continues to evolve. The individualist nature of society has completely replaced the traditional Hindu marriage concept. Furthermore, the modern objects of marriage are to satisfy their isolation and personalities, to bring division of labor, to help their ego, to achieve their shared interests, and to legitimize their sexual relationship and love. As a result, Hindu orthodox philosophy, rituals, attitude, conduct, and appropriate social norms clash with modern Hindu social life’s new evolving values and beliefs.

Modern legislation has resulted in the modern model of Hindu marriage, the partner selection process, and the age of marriage. In modern society, the laws concerning Varna, castes, subcastes, endogamy and exogamy, sapinda, and gotra are forbidden. In addition, attitudes against cousin marriage are shifting. In arranged marriages, the mate selection mechanism has been altered, and conventional mate selection factors are no longer important. Furthermore, modern outlets of mate selection are being used by urban Hindu society, such as newspaper advertisements, family relations, matrimonial web pages, marriage bureaus, matchmakers, NGOs, and so on. In today’s world, family, parents, and children all have an equal say in choosing a partner. Society has mastered the art of selecting a partner and is aware of the demands of modern life. As a result, some families demand that their son or daughter choose a partner based on a set of compatibility criteria. In reality, both parents and children prefer love marriages to arranged marriages.

Cultural interactions, international history, westernisation, and Americanization have all had a major impact on Hindu society. People are moving away from collectivism and toward individualism. Increased age at marriage is due to increased knowledge of the effects of early marriage, educational obligations, family responsibilities, fulfilment of dreams, job, and anticipation of an ideal life partner. In reality, dowry has become a major social issue as a mandatory pre-condition of marriage. Broken marriages and bride burning have arisen from dowry non-payment or deferment. Polygyny, polyandry, and polygynandry were all kinds of marriage that were practised in the past. Following independence, the Special Marriage Act of 1954 and the Hindu Marriage Act of 1955 were passed, prohibiting polygamy and strictly enforcing monogamy.

Present scenario of Hindu marriage in Indian society

In today’s culture, changes in the shape, object, and purpose are leading to new marriage options. People are becoming more aware of their desires and needs as a result of society’s individualistic existence. Marriages do not always work out, and some do result in divorce. Modern culture introduces social change as well as other significant challenges to the institution of marriage, such as an increase in extramarital affairs, multiple modern grounds for divorce, singlehood, cohabitation, and sexual alternatives. The Indian government has adopted numerous Acts and Amendments to protect human rights and eliminate social evils. In 1978, the Child Marriage Restraint Act was revised, increasing the minimum age of marriage for a boy to 21 and for a girl to 18 years. Anuloma and Pratiloma marriages are legal under the Hindu Marriage Disabilities Removal Act of 1946 and the Hindu Marriage Validity Act of 1949. The 1872 Special Marriage Act was repealed by the 1954 Special Marriage Act. Except for Jammu and Kashmir, the Hindu Marriage Act of 1955 applies across India. Sikhs, Janis, Buddhists, and Schedule Castes are all included in the Act’s definition of Hindu. Dowry was outlawed among Hindus by the Dowry Act of 1961. The Widow Remarriage Act of 1856 allowed widows to remarry and receive maintenance from their husband’s properties. Literacy rates, democratic ideas, secularism, western philosophy, cultural interactions, industrialization, urbanisation, modernization, technological development, and globalisation are all factors that have influenced the objects of marriage.

Conclusion

Hindu marriage serves as a bridge between individuals and society. However, from the Vedic era to the present day, the typical Hindu marriage concept has displayed its many colours and shades. In reality, secret dowry practises, bride burning, family disintegration, domestic abuse, singlehood, position dispute in marriage, and finally divorce have all resulted from these changes. Marriage as an institution in modern times needs to be redefined and relocated, according to sociologists. The law traditionally has been biased in favor of marriage. Public policy supports marriage as necessary to the stability of the family, the basic societal unit. To preserve and encourage marriage, the law reserves many rights and privileges to married persons. Cohabitation does not carry such rights and privileges. It has been said in the context the cohabitation has all the headaches of marriage without any of the benefits. There are no strings attached to it nor the same creates any legal bonding between the parties. Such relationship is a contract of living together which is renewed every day by the parties, In live-in relationship a/c to the sweet will of the parties they will walk in and walk out of such relationship and can be terminated by either without consent of the other party.

The Calcutta High Court once observed in the case of Manmohini v. Basant Kumar that a Hindu marriage is “more religious than secular in character”. But in Anjona Dasi v. Ghose it is observed that suits relating to marriage deal with that which in the eyes of law must be treated as a civil contract, and important civil rights arise out of that contract. Hindu marriage is thus rightly acclaimed as sacramental rather than contract as it lacks every essential of a valid contract e.g., proposal, acceptance and consideration. Thus, in light of above study, it comes to the conclusion that the Hindu marriage has not remained a sacramental marriage and has also not become a contract, though it has semblance of both. We can say that Hindu marriage is not purely contract or not purely contract. It has semblance of a contract as consent is of some importance. It has a semblance of a sacrament as in most marriages a sacramental ceremony is still necessary. To sum up the Hindu marriage has not remained a sacrament and has also not become a contract, but it is a Sacrosanct.

Categories: Family Law, Hindu Law

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