This article is written by Vishesh Gupta from the Institute of Law, Nirma University, Ahmedabad. This article discusses the various forms of approved and unapproved marriages in the Hindu religion.
Various dharma texts of Hindu religion such as Manu-Smriti and the Vedas, mention 8 different forms of marriages in the Hindu religion. The different forms of Hindu marriages have not been specified in the central legislation called The Hindu Marriage Act, 1956 which governs Hindu marriages. However, these forms of marriages are still present and defined in the law as ‘customs’ which has been given a legal status under Sec. 3(a) of The Hindu Marriage Act, 1956.
Marriage in Hindu religion is a sacrosanct (sacred) and holy union of 2 individuals. There are various ceremonies, according to different castes, that are essential for a marriage to become solemnized (official). Some of these ceremonies and traditions are now codified into the Indian legal system as customs.
However, for a certain ceremony, practice or a form of marriage to be a custom as per the law, it should have been uniformly and continuously observed for a very long time and it should not be unreasonable or opposed to public policy.
In this article, the author discusses the various approved and unapproved forms of marriages and their legal standing in the present times. The opinions of various Indian courts on different forms of marriages have also been discussed.
Forms of marriage and problems
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.
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.
In S. Authikesavulu Chetty vs S. Ramanujam Chetty And Anr., two precedents were set:
- Firstly, in a case where there is no proof to the contrary, it must be presumed that the marriage is in one of the approved forms.
- Secondly, another question arose, who will be the heir of the property of a childless mother? It was held that the property of a childless woman married in one of the four approved forms will go to her husband after her death.
‘Brahma’ is one of the most practised forms of marriage in India and has the most supreme position out of all the eight forms of marriage. Manu-Smriti has also laid great importance on this form of marriage.
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-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.
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.
Sir Gurudas Banerjee (also known as Gooroodas Banerjee), a Bengali Indian Judge, believed that this form of marriage indicated the pastoral state of Hindu society, where the cattle was considered as the monetary consideration for the marriage.
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 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.
Asura, Gandharva, Rakshasa and Paisacha come under the unapproved forms of marriage. According to Rajbir Singh Dalal vs Chaudhari Devi Lal University, 2008, the property of a childless woman married in one of the unapproved forms goes to her family rather than her husband.
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.
The test for determining whether a marriage is “asura” or not was laid down in Kailasanatha Mudaliar v. Parasakthi Vadivanni, 1931. If the bridegroom gives money or anything that has money’s worth (like wheat, cows etc) to the bride’s father for his benefit or as consideration for him to give her daughter in marriage is called Asura marriage.
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. This was because:
- This led to the Hindu culture shifting to child-marriage.
- Possibility of inter-caste relation became high.
- This form of marriage was not in accordance with Hindu cultures and practices as there was no parental consent.
The Supreme Court in the case of Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra & Anr, 1965 discussed essential ceremonies required for performing Gandharva marriage. In this form, there is a custom that the father of a female should touch the foreheads of the female and male to each other and the Gandharva is completed by the act. Along with this custom, another custom which required the presence of a Brahmin priest and a barber was pleaded not to be essential for Gandharva marriage. However, it was held that without these essential ceremonies, a Gandharva marriage was not solemnised u/s 17 of the Hindu Marriage Act and u/s 494 of Indian Penal Code.
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. According to P. V. Kane, a noble Indologist, this form of marriage is named Rakshasa because Rakshasas (demons) are known from history to have been ensuing cruelty on their captives.
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.
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.
Marriage in modern days
In the present time, as explained in A. L. V. R. S. T. Veerappa Chettiar vs S. Michael Etc, 1962 there exist only 2 forms of marriage, that are Brahma and Asura.
The concept of gift In Brahma form of weddings has been viewed as the origin of the dowry system in India.
The Asura marriage, as held in A. L. V. R. S. T. Veerappa Chettiar vs S. Michael Etc, 1962 has also evolved from being an actual sale transaction to a form of marriage where the consciousness of the parties or the community involved in a marriage indicates that the marriage is “Asura” in nature.
The other forms have become almost obsolete in the present time as they are now a punishable offence under IPC and unacceptable as per the societal standards and morals. However, they are not fully extinct as these practices are still followed by some of the lower castes.
The eight forms of marriage, as prescribed in dharma texts like Manu-smriti, were created according to different castes of the people. The approved forms of marriages were mostly practiced by Brahmins. The unapproved forms were usually practised by Kshatriya, Vaisya and Shudra.
Some of these forms have been accepted as customs under the Hindu Marriage Act, 1956 whereas others have become punishable offences under various Penal laws in India.
- Hindu Law, A new History of Dharmasastra by Oxford University
- The Laws of Manu translated by G. Buhler
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: