NATURE OF MARRIAGE UNDER HINDU

MARRIAGE ACT 1955.

Before understanding nature of marriage under Hindu Marriage Act it is of
dire importance that one must understand the nature of marriage and its
importance under Hindu Mythology. For a Hindu, marriage is a samskara
(religious rite or sacrament). It is in fact, the last of the ten sacraments,
enjoined upon him by the Hindu religion for purifying the body from
inherited taint. This view has been accepted by the High Courts of Bombay
and Madras. Thus, a Hindu marriage is looked upon as something which is
more of a religious necessity and less of a physical luxury. As once observed
by the Calcutta High Court, a Hindu marriage is “more religious than secular
in character.”

According to the Vedas, a marriage is “the union of flesh with flesh and bone
with bone”. It is a union which the Vedas regard as indissoluble. As long as
her husband is alive, the wife is enjoined to regard him as her God; likewise,
the wife is declared to be half the body of her husband (Ardhangini) and
shares with him equally, the fruits of all his acts, good or bad.

The Sanskrit word ‘Vivaha’ literally means the ceremony of ‘carrying away’
the bride to the groom’s house. But, it has long come to mean the entire
ceremony of wedlock. The purpose of marriage, accordingly, is not to allow
mere physical pleasure to the individuals but to ensure his spiritual growth.
Hinduism associates three important aims with vivaha namely, Dharma ,
Praja and Rati. Of these, Dharma is given the prime of place. Vivaha is
primarily meant for the discharge of one’s Dharma “It is compulsory for a
Hindu Grihastha to perform the great sacrifices or maha Jajnas in order to
repay his debts to the Rishis, the Gods, the names, the spirits and one’s
fellowmen. Since these can be performed only in the company of a wife,
marriage is deemed a religious obligation. This might be the reason behind a
man being allowed to marry a second wife on the death of the first1.

The aim of ‘Praja’ is also religious in character, although it is also social, in

the sense that it is directly connected with the social function of perpetuating
the family and the community .It is the Hindu view that a son is absolutely
necessary to save one from a hell called ‘put’. A son is called a ‘putra’
because he is the one that saves the father from the put-named hell. Besides,
it is the son alone that is competent to offer ‘Pinda’ to his names thereby
giving them happiness. ‘Pindas’ by the way, are not mere rice-balls, but
highly mystic symbols through which higher degrees of reality such as the
names represent can actually be contacted.

It is interesting to note that ‘rati’ or sexual fulfillment is assigned a relatively

minor place, showing the Hindu’s serious concern with the higher values of
the precious human life. Based on ancient writings, a woman is considered
half of her husband and thus completes him. While a man is also considered

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incomplete without a woman. The concept of marriage is to establish a
relationship between husband and wife. Based on Hindu law, the marriage is
a sacred tie and last of ten sacraments that can never be broken. Also, it is a
relationship that is established by birth to birth. Based on smritikars even
death cannot break this relationship.

By and large, the vast core of Hindu marriages is still sacramental and is
sustained through thick and thin of life. Although these marriages do not fall
apart easily and survive for a lifetime, yet problems of different nature are
cropping up with the passage of time. The bonds of Hindu marriage have a
religious, social and legal sanction in India. Any violation of the sacred
marriage vows is punishable under the laws of the land.

2
The Hindu Marriage Act, 1955, has brought about important changes of far
reaching social consequences in matrimonial concept of Hindus,
compromising its sacramental character to some extent. The real force behind
its sacramental character was the concept of indissolubility and fulfillment of
a personal duty imposed by religious faith. This concept of marriage has been
diluted by this Act with the provision of divorce under Section 13 of Hindu
Marriage Act, 1955.

On this count there is criticism in some circles that the sacred identity of a
Hindu marriage has been diluted or even lost after this drastic amendment of

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Hindu Marriage Act, 1955, which has reduced a marriage to a mere contract
that can be broken even without any liability for damage. The amendments of
1976 introduced the mutual consent theory of divorce.
With change in time the Hindu marriage has undergone several changes.
Young people today marry not for performing duties but for companionship.
It has been observed that sacramental nature of a Hindu marriage under the
Act has been diluted to a great extent. Firstly, by recognizing divorce, the
indissoluble, eternal and a holy union for life has been destroyed. Secondly,
by allowing remarriage after widowhood or even after divorce by the statute,
the concept of holy union of body and mind has been shattered. Thirdly, an
element of a sacred ceremony has still been retained, although its religious
aspect is of least importance.

The sacredness of “solemnization of marriage” – an essential ingredient of a

valid marriage in law have been providing the requisite psychological as well
as religious sanctity to the newly created human relationship & raise the
consciousness of spouses from instinctive individuality to social
responsibility. This dimension is minimal in a civil ceremony. Thus, Hindu
marriage becomes a social institution different from an individual private
affair as in the west.
Western cultural values, in which ‘only the flesh matters’ have started
eroding the age-old family values and personal bonding. The advent of
civilization, with the twin slogans of individual rights and individual liberty
of choice, has put a question mark on marriage as a social institution.
Pre-nuptial agreements are on the rise among affluent urban couples. It is a
trend that has been borrowed from the West where couples divide their
finances, well before they go ahead with wedlock. A prenuptial agreement,
however, cannot be executed in a Court of law.
Betrothal or sagai is a contract of marriage. Under the statutory law of
marriage, this contract of marriage cannot be legally enforced, though an
action for damages is maintainable3. A marriage contracted in contravention
of betrothal agreement is valid4.
The sacramental nature of Hindu marriage developed into a contractual one
with the growing industrialization, urbanization, sweeping changes in the
religious moral.
What sustains the sacramental nature of marriage? It is due primarily to a
sense of duty, awareness of one’s marital rights and a pride in individual
freedom. Marriage ceremony only testifies its sacramental character in the
eye of society and law.
Loosening of moral values, weakening of personal character and an upsurge
of erotic instincts have made marriage either a trade off contract or a fun-
game love affair of physical pleasure and individual liberty.

3
Rajendra v. Roshan, AIR 1950 All 592, Gulab v Fuldat, (1930) 11, Lah. 598
4
Khimji v. Nari, (1915) 39 Bom. 682; Sribandy v. Bharathyamma, AIR 1962 Mad. 400.
On the point of whether marriage is contract there are some judgments and
view points which states that marriage is contract also. The tenth edition of
Mayne’s Book5 observes that “while marriage according to Hindu Law is a
sacrament, it is also a civil contract, which takes the form of a gift.”
Similar observations are to be found in several decided cases, a few of which
are given below:

(i) In Purshottamdas v. Purshottamdas6 the Court observed that “Marriage of

Hindu children is a contract made by their parents.”

(ii) In Muthusami v. Masilamani,7 the Court observed: “A marriage, whatever

else it is, i.e., a sacrament, and institution, is undoubtedly a contract entered
into for consideration, with co-relative rights and duties.

(iii) The Calcutta High Court has also observed, in Anjona Dasi v. Ghose
8
that suits relating to marriage deal with that which in the eye of the law must
be treated as a civil contract, and important civil rights arise out of that
contract.

But it is not in real sense a contract. According to Indian Contract Act, 1872,
Section 2(h), contract is defined as an agreement enforceable by law. Thus
two elements of a contract are: an agreement and its enforceability by law. To
make an agreement enforceable by law four conditions must be satisfied:

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6
(21 Bom. 23)
7
(33 Mad. 342)
8
(6 Bengal Law Reporter, 243)
some consideration; competence of parties; free consent of parties and a
lawful objective. On this analogy, marriage has three elements: proposal;
engagement or betrothal and marriage ceremony. In the eyes of law, marriage
becomes a contract bound by the personal law of the parties to marriage after
fulfilling the conditions laid down by the marriage law under which the
marriage is solemnized, lex loci celebrationis, till then there is no valid
marriage. In the language of a civil contract if one takes marriage gifts as
consideration; competence to marry under relevant sections of the personal
law of marriage and valid consent of both spouses, still marriage does not
become a contract enforceable by law till a religious/ customary or a civil
ceremony is performed according to prescribed rules. Moreover, Hindu
marriage is a social institution that affects not only the life of spouses but also
the next generation and the families on both sides. It is inevitable, therefore,
to consider marriage as a special type of contract and cannot be allowed to
end like an ordinary contract9.

According to S.T. Desai10, a marriage under the Hindu Marriage Act, 1955 is
not entirely or necessarily a sacrament but a union of one man with one
woman to the exclusion of all others satisfied by solemnization of the
customary rites and ceremonies of either party essential for a marriage; and
directly it exists, creates a relation and status not imposed or defined by
contract but by law.

9
Id. At 86
S.T. Desai (ed), A.N. Mulla’s Principles of Hindu Law, 686 (Lexinexi’s Butterworth, N. Delhi,
10

Vol. II, 2005)

The Supreme Court of India has held that marriage under Hindu Law is a
sacrament and in every personal law, it is a sacred institution, which needs to
be preserved and respected.11
According to Cheshire12, a contract to marry fundamentally differs from a
commercial contract, since it creates a status that affects both the parties
themselves and the society to which they belong. It is sui generis. It is
fulfilled on the solemnization of the marriage ceremony, and thereafter there
is a change in the law that governs the relationship between the parties.

In the Contract Act, 1872, under Section 11, a contract of a minor or of a

person of unsound mind is void. Thus, a contract without the capacity to enter
into a contract is void ab initio. However, under Hindu Marriage Act, 1955,
although age of spouses and soundness of mind of marrying spouses are
essential conditions for a valid marriage yet the marriage of a person of
unsound mind or of a minor, is a valid marriage as violation of Section 5(ii)
and (iii) of Hindu Marriage Act, 1955, does not make the marriage void but
only voidable under Section 12 of the Act. Thus it is a well established rule
of law of contract that contract for want for capacity is totally void, it is void
ab initio.

Thus it is amply clear that Hindu Marriage Act does not consider consent as
much of importance. It does desire that a person below certain of age does
not marry but it is not serious about that. It is not visible that person unable to

11
Lily Thomas v. Union of India, AIR 2000 SC 1650
12
Cheshire & North’s, Private International Law, (Oxford University Press, First Indian Reprint
2006).
give consent can not marry. The H.M.A. Act ignores this aspect only Sharda
Act (Child Marriage Restrain Act, 1929) tries to restrain such marriages.
Apart from clauses (ii) and (iii), section 5 does not speak of consent. Nor do
sections 11 and 12 speak of consent, tough section 12(1) (c) does lay down
that in case of consent of the either of the party is obtained by force or fraud,
then the marriage is voidable. The result is this: if one shows that one’s
consent was not obtained such marriage is nonetheless valid, if one shows
that consent is taken by fraud or force than only the marriage is voidable at
the instance of party whose consent is such taken.13 Thus, the Hindu
Marriage Act, 1955, does not prescribe the same consequences, which follow
the violation of such conditions in an contract. .

The sacramental nature of Hindu marriage developed into a contractual one

with the growing industrialization, urbanization, sweeping changes in the
religious moral outlook and dissipation of Hindu joint family system. In view
of this, Hindu Widow’s Remarriage Act, 1856 and Special Marriage Act,
1954 legalized the trend of breaking the traditional marital sanctity of Hindu
Marriage. Hindu Marriage Act, 1955, insisted on monogamy, extended the
Shastric ceremony to the customary ceremonies, introduced the concept of
dissolution of marriage, added the concept of nullity i.e. categorizing
marriage into void, valid and voidable marriages, valid spousal consent for
performing the marriage and introduced the concept of remarriage, all these
changes shattered the fabric of sacredness of marriage for life adding the
contractual nature to Hindu marriage system. The sacramental nature of

13
Paras diwan, Modern Hindu law, (Allahbad law Agency, Faridabad, Haryana, 2019)
Hindu marriage suffered yet another blow with the implicit theory of
breakdown of marriage leading to divorce under amendments to the Hindu
Marriage Act, 1955. Thus, marriage is being treated as a contractual union
like the Muslim Personal Law where it is a civil contract.14
Thus, although a Hindu marriage has not remained a purely sacramental
marriage yet it has also not become a contract, though it has a semblance of
both. It has a 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.

14
I.A.Khan(ed.),Aquil Ahmad,Text Book of Mohammdan Law, 41 (Central Law Agency 20th
Edition, 2001).