FACULTY OF LAW

Family law
SESSION 2020-2025
Assignment: Marriage under Hindu Law

Submitted to: Submitted by:

Dr. Kaushalendra Pratap Singh Akash Yadav
B.A.LL.B.(Hons.)
Semester: 3rd
.                                       200013015105
.                                                                             Section: B

INDEX
1. Acknowledgment Page 3
2. Introduction Page 4
3. Constituents of Tort Page 4
4. First Constituent of Tort Page 5
5. Injuria sine Damnum Page 6
6. Damnum sine Injuria Page 7
7. Conclusion Page 8
8. Bibliography Page 9

ACKNOWLEDGEMENT
I’m overwhelmed in all humbleness and gratefulness to acknowledge my depth
to all those who have helped me to put these ideas, well above the level of
simplicity and into something concrete. I would like to express my special
thanks of gratitude to my teacher Dr. Kaushalendra Pratap Singh who gave me
the golden opportunity to work on this wonderful project which also helped in
doing a lot of research, and I came to know about so many new things. I am
grateful to him.
Thank you.
 Introduction

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.

Also, it is not only considered as sacred but it is also a holy union. The main
objective of marriage is to enable a woman and a man to perform their religious
duties. Along with this, they also have to beget progeny. Based on ancient
writings, a woman is considered half of her husband and thus completes him.
While a man is also considered incomplete without a woman.

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

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 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.

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

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.

 Sapinda relationship

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.

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.

Conclusion
This assignment 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.
 Bibliography

Books:

 Modern Hindu Law- Dr. Paras Dewan

Websites:

 https://www.toppr.com/guides/legal-aptitude/family-law-
II/nature-of-marriage-under-hindu-law/
 https://www.legalbites.in/concept-of-marriage-under-hindu-law/