HINDU

MARRIAGES
LEARNING UNIT 6
THEME 1
LO1: DISCUSS THE
REQUIREMENTS OF THE
HINDU MARRIAGE
• Hindu personal law is not a recognized legal
system in South Africa there are however a few
examples of where the South African courts
came to the assistance of litigants who
experienced difficulties as a result of the
application of South African law.
• Hindu family law in South Africa is in a position
similar to that of both Muslim and Jewish law.
• All these legal systems are currently
unrecognized, and the implication is that
marriages concluded in terms of Hindu law are
not recognized as valid marriages due to their
non-compliance with the Marriage Act and they
are potentially polygamous nature.
LO1: DISCUSS THE REQUIREMENTS OF THE HINDU
MARRIAGE

• In practice a Hindu couple who wishes to marry concludes 2

marriages, namely, one according to Hindu rites and the other in
terms of the common law.
• We call this practice as having dual validity.
• If the parties do not comply with the requirements of the Marriage
Act, their marriage is invalid, and the wife or husband will not be
recognized as a legal wife or husband.
• The implications of non -recognition are similar to those of
unrecognized Muslim marriages.
• On the other hand, if they do comply with the requirements of the
Marriage Act, the implication is firstly, that the common law would
apply to their marriage and secondly, that their estates would be
distributed in terms of the South African law of intestate
succession.
LO1: DISCUSS THE REQUIREMENTS
OF THE HINDU MARRIAGE
• The courts have declared in some cases that a Hindu
marriage is a putative marriage.
• However, in order to be declared a putative marriage, it
must be proved that one or both of the parties acted in
good faith.
• Although the marriage is void, the children from such a
marriage have the same status as children born from a civil
marriage.
• The prohibition of Hindu marriages also applies to Hindu
marriages concluded out outside South Africa.
• Due to its polygamous nature such marriage are not yet
recognized as valid marriages in South Africa.
 • The fact that the Hindu marriage is not recognized as a valid marriage does not
LO1: DISCUSS mean that the courts are shy to afford relief to litigants.

THE • In the Govender case, the High Court held that although a Hindu marriage is
not regarded as a marriage in terms of South African law, it can be given some
REQUIREMENT recognition for certain purposes.
S OF THE HINDU • In this particular case, the court held that the surviving partner to a
MARRIAGE monogamous marriage is also a spouse in terms of the Intestate Succession
Act and she could thus inherit Intestate from her deceased husband despite
the fact that the marriage was regarded as invalid or in terms of South African
law.
LO2: DESCRIBE THE CEREMONIES,
FORMS AND CONSEQUENCES OF
HINDU MARRIAGES

• Hindu marriage is a religious sacrament

• It is the last of the 10 sacraments and is regarded as a divine unification of

souls.

• This public joining together of men and women as husband and wife is
accomplished by the solemnisation of customary rites and ceremonies by
both parties.

• A Hindu marriage is also regarded as a civil contract which takes the form
of a gift (namely the bride)

• An important part of the marriage ceremony is what is referred to as a

kanyadaan

• Such kanyadaan fulfills the requirements of a gift under Hindu law.

LO2: DESCRIBE THE CEREMONIES, FORMS
AND CONSEQUENCES OF HINDU MARRIAGES
• A subsequent marriage to another person in defiance of an earlier
betrothal is valid.

• However, where such a breach has occurred the innocent party may
institute a claim for damages in respect of expenses incurred.

• In addition, where jewels and other gifts have been presented to either
party these would have to be returned on grounds of justice and good
conscience.

• Where a relevant gift has perished, the value thereof may be claimed.

• But where the plaintiff bridegroom dies before legislation of the suit, his
representative may only recover the actual expenses incurred during the
betrothal.
LO2: DESCRIBE THE CEREMONIES, FORMS
AND CONSEQUENCES OF HINDU MARRIAGES
• The parents of the prospective bride and groom with the consent of
their children often arrange marriages.

• In some instances, parents persuade their children into consenting.

• A Hindu priest chooses a suitable date for the wedding ceremony

which is selected according to the Hindu calendar.

• Monogamy is the norm though polygamy does exist in India.

• However, monogamy is now a statutory requirement for a valid

marriage in terms of the Hindu Marriage Act.

• This act also substantially modified the institution of marriage as

recognized by ancient Hindu law and has brought about radical changes
to the law of marriage.
LO2: DESCRIBE THE CEREMONIES, FORMS
AND CONSEQUENCES OF HINDU MARRIAGES
REQUIREMENTS FOR A VALID MARRIAGE
• Ancient Hindu law prescribed three conditions for a valid marriage

• First, the parties had to be from the same caste.

• If the parties did not belong to the same caste the marriage was invalid unless sanctioned by custom.

• This requirement lost its force in India after the commencement of the Hindu marriage validity act

• Secondly the parties should not be Sapindas except where custom permits such a marriage

• The third requirement relates to the performance of proper marriage ceremonies.

• In general, there were two marriage ceremonies namely : viva homa ( invocation before the sacred
fire);

• and

• Saptapadi (the bride and bridegroom takes seven steps around the sacred fire)

• The parties may deviate from these two marriage ceremonies if it is allowed in terms of custom
LO2: DESCRIBE THE
CEREMONIES, FORMS
AND CONSEQUENCES
OF HINDU MARRIAGES

• In order for the marriage to be valid

the relevant marriage ceremonies must
be performed.
• The status of a husband and wife is
constituted by the performance of the
marriage rights, either prescribed by
the marriage texts and or by customs.
• Modern Hindu law thus prescribes 3
requirements for a valid marriage
namely: adult consent, the ceremonies
and civil registration.
LO2: DESCRIBE THE CEREMONIES, FORMS
AND CONSEQUENCES OF HINDU MARRIAGES
FORMS OF MARRIAGES
• Classic Hindu law recognized eight forms of marriage the first four forms were
approved forms and the last four were unapproved namely:
1. Brahma
2. Daiva
3. Arsha
4. Prajapatya
5. Asura
6. Gandharva
7. Rakshasa
8. Paishacha
• Only two forms of marriage are recognized in India Today namely brahma
(approved form) and Asura (unapproved form).
LO2: DESCRIBE THE CEREMONIES, FORMS
AND CONSEQUENCES OF HINDU MARRIAGES
BRAHMA

• when the father or guardian of the bride gives the bride in marriage
without receiving any compensation from the bride groom the
marriage is referred to as brahma

• The bride is dressed in costly garments and decked in jewelry and is

given to the bridegroom by her father

• The bride is not a contracting party but rather the subject of a gift.

• The distinguishing feature of this form of marriage is that the parents

of the bride do not receive any compensation for their daughter.

• The bridegroom's family who goes seeking a bride for their son chooses
the bride.
LO2: DESCRIBE THE
CEREMONIES, FORMS AND
CONSEQUENCES OF HINDU
MARRIAGES

DAIVA
• the father of the bride presents his daughter
as a gift.
• She is presented to a person who officiated
as a priest at a sacrifice performed by the
bride's father in lieu of the dakshina payable
to the priest.
• It is the second form of marriage in Order of
Merit and was considered to be inferior to
the brahma
LO2: DESCRIBE THE CEREMONIES, FORMS
AND CONSEQUENCES OF HINDU MARRIAGES
ARSHA
• Father of the bride gives away his daughter after receiving a cow
and a bull or two such pairs of animals from the bridegroom.
• The kettle constitutes a price for the bride, and this gives the
marriage a degree of inferiority.
• This form of marriage indicates the pastoral state of earlier
Hindu society.
• Although this was an approved form of marriage the acceptance
of the animals was contrary to the meaning of kanyadaan (this
refers to the gift of a daughter).
LO2: DESCRIBE THE CEREMONIES, FORMS
AND CONSEQUENCES OF HINDU MARRIAGES
PRAJAPATYA

• This form of marriage entails giving a daughter as a gift to

the bridegroom, but the bride's father has gone in search
of a bridegroom for his daughter.

• It is similar to the brahma form of marriage except that it is

not necessary for the bridegroom to be a bachelor.

GANDHARVA

• This form is based solely on the consent of the bride and

bridegroom and is referred to as a love marriage.

• This form is regarded as unapproved because it lacks the

religious ceremonies and rituals.
LO2: DESCRIBE THE
CEREMONIES, FORMS AND
CONSEQUENCES OF HINDU
MARRIAGES
RAKSHASA
• This form involved the seizure of a girl by force from her home in times of war.
• The consent of the girl and her family were irrelevant and rape or the abduction of the girls usually
preceded this form of marriage.
• The relatives of the girl were brutally killed or wounded by the bridegroom during battle.
• This form has been condemned and is referred to by author as a relic of a barbarous age.
•
PAISHACHA
• This form of marriage is that which takes place when a man has committed the crime of ravishing a
girl when she was asleep or intoxicated.
• In such a case the man was obliged to marry the girl.
• This has been regarded as the most reprehensible form of marriage and has been condemned in the
institutes.
Consequences of marriage status and maintenance

• A marriage confers the status of husband and wife on

the parties.
• It gives rights to certain rights and duties between the
spouses as well as against third parties and confers the
status of legitimacy on the children of the marriage.
• The wife follows the domicile of her husband the
husband has the obligation to maintain and support his
wife, minor sons and unmarried daughters.
• This is a personal obligation and does not depend on
the possession of property.
LO2: DESCRIBE THE CEREMONIES, FORMS
AND CONSEQUENCES OF HINDU MARRIAGES
PERSONAL LIABILITY

• The Hindu male has a personal obligation to support his wife, aged parents and
minor children.

• His obligation towards his wife arises from the status of marriage.

• The obligation towards the aged parents is based on the parent child
relationship.

• Ancient Hindu law restricted this obligation to sons.

• Also, parents did not include stepparents.

• However statutory provisions in India now provides that both sons and daughters
have an obligation to support parents who are unable to support themselves.
PERSONAL LIABILITY CONTINUED
• Stepparent is also included under the definition of parent.

• Extramarital sons have a claim for maintenance from the natural father

• A widows right to maintenance stems from her membership of the deceased husband's family.

• In general, a Hindu husband is not entitled to include a provision stipulating that his wife be excluded from receiving
maintenance.

• A widow may be reluctant to live in the family home of her late husband.

• In Hindu law she may be permitted to move out and still retain her claim for maintenance provided she does not leave for
the purpose of leading a disreputable lifestyle.

• A widow's claim for maintenance is determined according to the specific circumstances of the case.

• The maintenance should be such an amount as will enable her to live consistently with the same degree of comfort and
luxury as she reasonably had in her husband's house.

• In Hindu law a woman forfeits her right to maintenance by remarriage, however, if the heirs of her husband have settled
her claim to maintenance by granting her specified sum of money or a specific property, they may not reclaim it from her.
LO2: DESCRIBE THE CEREMONIES, FORMS
AND CONSEQUENCES OF HINDU MARRIAGES
• LIABILITY IF A MANAGER

• The obligation of a manager is dependent on possession of the copernacery property.

• He is under a legal obligation to maintain the male members of the family, their wives
and their children.

• On the death of the male members, he is responsible for maintaining the widow and
children of the deceased.

LIABILITIES OF AN HEIR

• The liabilities of an heir depends on possession of inherited property.

• An heir is under a legal obligation to maintain those persons to whom the deceased
was morally and legally obliged to maintain out of the estate he had inherited.

• In India many of these provisions have been incorporated into legislation.