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

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 INDEX

1. Acknowledgment Page 3
2. Introduction Page 4
3. Who are Hindus? Page 4
4. Characteristics Page 5

5. Forms of Marriage Page 6

6. Conditions for validity of Hindu Marriage Page 8

7. Conclusion Page 10

8. Bibliography Page 11

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 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.

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 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
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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

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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.
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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

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 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

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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.

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 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.

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 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/

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