Family Law

Introduction
• Hindu marriage- kanyadan- gifting a girl to boy by
father- tradition/rites/customs.
• Ancient tradition prevailing from Vedic periods to
modern world with different modifications-
occurred till now.
Sacramental Nature of Marriage
Hindu marriage- “a religious sacrament in which a man
& a woman are bound in a permanent relationship
for physical, social & spiritual need of dharma,
procreation & sexual pleasure.
Three characteristics of sacramental nature
of marriage
1. Enduring bond of husband & wife- permanent & tied even after
death & they will remain together after death.
2. Once tied can not be untied.
3. Religious & holy union of bride & groom- necessary to be
performed by religious ceremonies & rites.
• Hindu marriage- considered as one of most imp. Sacraments.
• In ancient times- no need for girl’s consent.
• Sole duty of father to find a suitable boy.
• If person- unsound mind/ minor- at time of marriage- not
considered as void marriage.
• But- in present world- consent/ mental soundness- essential part
of H.M.
• If any element missing- marriage- annulled/ void/ no legal entity.
 Nature of Hindu Marriage
• Nature of modern marriage- Contractual.
• It accepts- idea of equality & liberty.
• Adopted due to western ideas.
• Must be an agreement of voluntarily entering
into it by both parties.
• Thus, Hindu marriage- not a contract & neither is
it a sacrament.

But- combination of both

 Importance of Marriage as an Institution

• Vital social institution.

• Relation between man/ woman socially recognized.
• “The animal mates, but man marries”.

Means- mating is biological, while marriage is social &

culture.
• Every human society in past & throughout world
has regarded marriage as important for welfare of
society.
 Forms of Marriage
Eight Forms
1. Brahma
2. Daiva
3. Arsha
4. Prajapatya
5. Asura
6. Gandharva
7. Rakshasa
8. Paishacha

• Order of forms of marriage is hierarchical.

• These 8 forms- divided into 2 categories- Approved/ unapproved.
 Approved Forms
• Brahma, Daiva, Arsha, Prajapatya- approved
forms.
• Involve- exchange of gifts, the “gift of a
maiden”(kanyadan).
• Brahmins- acc. to dharma texts- duty to
accept gifts.
• So these marriages- pronounced legal for
Brahmins.
 Approved Forms
1. Brahma Marriage
• Most supreme position out of eight forms.
• Most practiced forms of marriage in India.
• In this, daughter given as a gift after being decked with
ornaments & honored with jewels to a man selected by
father himself & who is learned in Vedas- “Brahma
Marriage”.
• Brahma Marriages- rituals of Brahmans who according to
Manu-Smriti have duty to accept it.
 Reema Aggarwal v. Anupam & Ors.
Issue- Brahma Marriage gave rise to dowry system in India
but Courts did not come to conclusion regarding it.
 Approved Forms
2. Daiva Marriage
• Means- ‘marriage related to rite of the Gods’.
• Father gives away his daughter to a priest as Dakshina
(sacrificial fee) for officiating in sacrifice conducted by
father of bride.
• Groom does not come looking for a bride, parents of
bride go looking for groom for her daughter.
• This marriage- considered inferior to Brahma
marriage as the father derives a benefit by using her
daughter as a sacrifice & also degrading for woman to
go looking for a groom.
 Approved Forms
3. Arsha Marriage
• Marriage of a daughter with Rishi or sages.
• Different from Brahma & Daiva as the father of bride- not
to give nything to bride groom but the father of bridegroom
is the one who gives 2 cows or bulls to father of bride.
• Parents of girl couldn’t afford expenses of their daughter’s
marriage at the right time acc. to Brahma rites.
• It is presumed that girl is married off to an old Rishi or sage
in exchange for 2 Cows.
• This marriage is not considered noble as marriage was
treated as business transaction where bride was exchanged
for cows & bulls.
 Approved Forms
4. Prajapatya Marriage
• Similar to Brahma form except there is no trading or
kanyadan .
• Father of bride searches for groom & because of
these differences- inferior to Brahma form.
• Father while giving away his daughter addresses
couple with a condition that both bride & bride
groom may perform their dharma together.
• Basic condition- requested by father of bride- that
bride groom must treat bride as partner & fulfill
religious/ secular duties together.
 Unapproved Forms
5. Asura Marriage
• One of most condemned form.
• Father gives away his daughter after bridegroom provided
all wealth that he can to father of bride & the bride
herself.
• Commercial transaction where the bride is purchased.
• Acc. to Manusmriti- father of girl- not to accept offer even
for least amount of price.
• Test for determining whether marriage is “Asura”- if
bridegroom gives money or anything that has money’s
worth to bride’s father for his benefit or as consideration
for him to give his daughter in marriage.
 Unapproved Forms
6. Gandharva Marriage
• Unique form of marriage & different from other forms.
• Mutual agreement between girl & boy to get married.
• Mutual agreement arises from pure lust.
• Approval of parents- does not play a role.
• Concept of mutual consent for marriage-prevalent in old
Hindu system, however solemnization of marriage coming
out of mutual consent was very low. This was because:-
1. This led to Hindu culture shifting to child marriage.
2. Possibility of inter caste relation became high.
3. This form of marriage was not in accordance with Hindu
cultures & practices as there was no parental consent.
 Unapproved Forms
7. Rakshasa Marriage
• Performed by abducting bride & brutally slaying her family
& relatives.
• Bridegroom fight with family of bride while performing
ceremonial steps in a tranquil wedding.
• Practiced by kshtraiyas or military classes.
• Resembles a right of a victor over a person help captive in
war.
• In modern era, this form- criminal offence U/s. 366 IPC-
prescribes punishment for abducting, kidnapping a
woman to compel her to marriage is punishable with
imprisonment up to 10 years or fine.
 Unapproved Forms
8. Paishacha Marriage
• Last form of marriage as most atrocious form out of 8
marriages.
• Man seduces women & enters in a sexual act when girl is
either sleeping, intoxicated or mentally disordered mostly in
night.
• Girl & her parents out of shame of such activity have to agree
to marriage with that man.
• Paishacha- goblins who are supposed to act secretly at night.
• Resembles as an act of rape, which in modern era is most
heinous act one could ever commit & punishable U/s. 376 IPC-
whoever commits rape shall be punished with imprisonment
of not less than 7 years & may extend to lifetime along with
fine.
 Conclusion
• Eight forms as prescribed- dharma texts like
Manu Smriti- created according to different
castes of people.
• Approved forms- mostly practiced by Brahmins.
• Unapproved forms- practiced by Kshatriya,
Vaishya & Shudra.
• Some of these forms- accepted as customs under
HMA whereas others have become punishable
offenses under various penal laws in India.