This article is written by Mohd Sarim Khan from Lloyd Law College. This article will discuss the scope and various provisions related to the Hindu marriage act of 1955.
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.
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.
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 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.
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.
This article discusses the concept of Hindu marriage; to whom Hindu marriage act 1955 applies, how many forms of marriage are valid in Hindu marriage and different ceremonies performed before the marriage, validity of a marriage, who is sapinda, ritual, and customs of the marriage.
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