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Hindu Marriage: sacrament to contract


Authored By- Aishwarya Bhat NS


Keywords:

Hindu Marriage, Indissoluble Tie, Sacrament, Dharma, Veda, Contract, Hindu Marriage Act, 1955.

Abstract:

Marriage among the Hindus is a sacramental relation. From the time of Vedas, marriages have been performed according to tradition and culture. This article covers the historical aspect of evolution of the Hindu marriage, concept of marriage under old and modern Hindu law and codification of Hindu law along with the case laws.

Introduction:

Under the ancient Hindu law, the object of marriage was supreme.


According to Apasthamba, “marriage was meant for doing good deeds and for the attainment of moksha.” Hindu marriage was more connected with the performance of religious duties and begetting of a son, who enables a man to get deliverance from the sufferings of hell.

According to Manu; “marriage is solemnised once and for all” [i].

The historical aspect of evolution of Hindu marriage:

Hindus have idealized marriage in a big way. Marriage was considered as a sacramental union in the patriarchal society of the Rig Vedic Hindus. This continued during the entire Vedic period. In the Shastric Hindu law, marriage has been regarded as one of the essential sacrament for every Hindu. The Vedic period of dharma was practiced by man together with his wife and his offspring. Hindu marriage is essential, not only for begetting a son but also to discharge his debt to the ancestors, and to perform other religious and spiritual duties. A marriage is considered sacred even by those who view it as a civil contract.

Manu declared that mutual loyalty between husband and wife was the highest dharma. According to Mahabharata, by cherishing the woman one virtually cherishes the Goddess of prosperity herself. She is the source of Dharma, Artha, Kama, and Moksha.

Concept of marriage under the old Hindu law:


Hindu marriage- whether a sacrament or contract?

The sacramental aspect of the marriage under Hindu law has three characteristics:


(1) It is a sacrament union, which means that marriage is not to gratify one's physical needs; but is primarily meant for the performance of religious and spiritual duties.


(2) A sacramental union signifies that a marriage once entered cannot be dissolved on any ground whatsoever.


(3) A sacramental union refers to the union of soul and body and mind. It is a union not only for this life, but for all lives to come. The union is not only for this world, but also for other worlds as well. Performance of certain Shastras or ceremonies laid down in Griha Sutras, are necessary for a Hindu marriage[ii].


In Tikait Munmohinti v Basant Kumar[1], it was observed that Hindu marriage was a sacrament, a union, an indissoluble union of flesh with flesh and bone with bone which is to be continued even in the next world.


In the case of Gopal Kishan v Mithilesh Kumari[2], The Allahabad High Court observed that the institution of matrimony under the Hindu law is a sacrament, and not a mere socio-legal contract. It is not performed for mere emotional gratification and is not a mere betrothal.


In A v B[3], the court held that marriage is the last of the ten sacraments enjoined by the Hindu religion purifying the body from inherited taint.


In the Vedic period, the sacredness of the marriage was repeatedly emphasised. Under old Hindu law, marriage was regarded as sacrament which can be understood by above-mentioned case laws. Therefore, at the time of marriage, the performance of religious ceremonies was necessary, marriage was an indissoluble union and it was an eternal union.

Codification of Hindu law:

Hindu law is believed to be the divine law. It had been revealed by God through Vedas to the people. People living on the Indian subcontinent have led their lives by following guidelines and concepts as provided in the Vedas for thousands of years. Such guidelines and concepts as provided in the Vedas developed into laws that were followed by the people and implemented by the rulers thus became the law of truth. Later on, the same laws were retrofitted to match present circumstances and were codified in the form of multiple acts of which the main one is the Hindu Marriage Act, 1955 while the other acts are Hindu Adoption and Maintenance Act 1956, the Hindu Minority and Guardianship Act 1956 and Hindu Succession Act 1956 [iii].

Concept of marriage under Modern law (Hindu Marriage Act, 1955):

Marriage under the Hindu Marriage Act,1955 no longer remained sacrament and an eternal union for spiritual purposes. Under the act, provisions for the divorce are laid down under section 13 and 13-B of the act. Moreover, remarriage of a widow woman or a widower is possible. Therefore, the sacramental character of Hindu marriage has been done away with by this act.


Hindu marriage, however, has not become a contract, because essential requirements of a valid contract as mentioned under section 10 of the Indian Contract Act,1872 are lacking in Hindu marriage. Section 12 of the Hindu Marriage Act 1955 lays down that when one's consent is not obtained; the marriage is considered void and unlawful. Thus, the Hindu marriage is neither a contract nor a sacrament.[iv]

Conclusion:

It is, therefore, clear that, though Hindu marriage has some of the elements of a contract but it is not purely a contract. It is more of a sacrament as Hindu marriage is a holy and eternal union of two bodies. The author concludes that Hindu marriage is neither a sacrament nor a contract.

[1] ILR 28 Cal.758. [2] AIR 1979 All.316. [3] AIR 1925 Bom.486. References-

[i] R.K Agarwal, Hindu Law 36(26th edn.,2019).

[ii] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3705690/.

[iii] https://www.legalsarcasm.com/legal-notes/hindu-law-and-modern-sources-of-hindu-law/.

[iv] https://blog.ipleaders.in/nature-hindu-marriage-hindu-law.