The Hindu Marriage Act, 1955 has secularized the Hindu law of marriage in all respects except one1

and
has abrogated custom except in a few matters2 It is in regard to ceremonial validity of a Hindu marriage
that the religious, sacramental or non-secular character of Hindu marriages is retained. One of the
matters in respect of which custom is retained is also the ceremonial validity of Hindu marriages. This
means that a Hindu marriage (and no marriage is valid unless it is solemnized with proper ceremonies
and rites)3 must either be performed with the shastric ceremonies and rites or in accordance with the
customary rites and ceremonies.4 It should be clearly understood that customary ceremonies and rites
can be performed only between the parties among whom (i.e. either on the side of the bride or the
bridegroom) customary rites and ceremonies were recognized before the coming into force of the Hindu
Marriage Act, 1955. No new rites and ceremonies of marriage can come into existence.5 When
customary ceremonies and rites are not available to parties, then marriage must be performed by the
shastric ceremonies and rites. A Hindu marriage cannot be performed by any other method, though
Hindus are free to perform a civil marriage6, with all its consequences.7 Thus, for the ceremonial validity
of a marriage, three alternatives are available to the Hindus : (i) Shastric ceremonies and rites : these
rites and ceremonies must be those that are laid down in the shastric Hindu law, (ii) customary
ceremonies and rites : these rites and ceremonies may be religious, secular, elaborate, brief or nominal,
and (iii) civil ceremonies, as laid down in the Special Marriage Act 1954
CEREMONIES RELEVANT TODAY

The question is : of the above ceremonies which are absolutely essential for the valid solemnization of a
Hindu marriage under the modern Hindu law? The answer to the above question is not simple. The
judicial pronouncements do not clearly lay down which of the ceremonies are essential for the valid
performance of a Hindu marriage. However, there need not be any doubt about one ceremony, viz., the
saptpadi which is absolutely indispensable for the performance of a Hindu marriage by the shastric
rites.19 Sub-section (2) of Section 7, Hindu Marriage Act lays down : "Where such rites and ceremonies
include the saptpadi . . . the marriage becomes complete and binding when the seventh step is
taken".20 The Madras High Court, after examining all the relevant texts, came to the conclusion that in
reality for the ceremonial validity of a Hindu marriage only two ceremonies are essential, one consists of
the secular element, i.e. the gift of the girl (this will include sampradana and kanyadana); and the
second consists of religious element, i.e. the performance of panigrahana and saptpadi.21 The Bombay
High Court said that for the validity of a Hindu marriage the two essential ceremonies are, lajahoma and
the saptpadi.22 In Rampiayar v. Deva Roma23, the court said that though vivaha homa is a usual
ceremony of a Hindu marriage, but its non-performance does not render the marriage void, if the
saptpadi has been performed. It also seems to be settled that in the Gandharva form of marriage which
is available to all Hindus and which is a marriage with the mutual consent of the bride and bridegroom,
the ceremony of kanyadana is not necessary. Although all the shastric rites that are performed among
the twice born Hindus are also performed by sudras, the performance of the vivaha-homa is not
essential among them.24 It also seems to be established that the presence of a priest to officiate at the
nuptial rites is not necessary. In view of this state of judicial authority, the text-book writers also do not
add to clarity. Mayne said, "The performance of the homam, the panigrahana or taking hold of bride's
hand and going round the fire with Vedic mantras, the treading on the stone, and the seven steps or
saptpadi—these are the more important rites mentioned by it. The marriage becomes complete and
irrevocable on the completion of the saptpadi or ceremony of seven steps and from that moment, the
wife passes into her husband's gotra. Till then the marriage is imperfect and revocable".25 Mulla holds
the view that (i) invocation before the sacred fire, and (ii) the saptpadi are the only two essential
ceremonies of marriage.26 But he quotes no authority.27 This means that the question as to which are
the essential ceremonies of a Hindu marriage under the modern Hindu law still remains unanswered. In
the present submission the key may lie in looking at the character and nature of Hindu The Practical
Lawyer https://www.supremecourtcases.com Eastern Book Company Generated: Tuesday, October 22,
2019 marriage in modern Hindu law. Although most Hindus still prefer to call their marriage a
sacrament, the fact of the matter is that very little of sacramental aspect of Hindu marriage has been
left.28 It is neither an eternal union (a union for all lives to come, as ancient Hindus held), since a
widow29, widower and divorcee are free to remarry, nor is it an inviolable marriage, since divorce is
recognized.30 The Hindu Marriage Act calls a Hindu marriage simply as "Hindu marriage".31 What is left
of the sacramental aspect of a Hindu marriage is that some shastric ceremonies are still required for its
solemnization. In view of this, it seems that the only ceremony that is obligatory for the solemnization of
Hindu marriage is the saptpadi
Customary ceremonies and Rites It is interesting to note that the Grihya-sutras, while prescribing all the
elaborate ceremonies and rites, also lay down that a marriage may be solemnized in accordance with
"the customs of the different countries and villages."32 It has been the settled law even before the
coming into force of the Hindu Marriage Act that if a community does not recognize any of the shastric
ceremonies and rites of the marriage, their omission will not render a marriage invalid provided the
ceremonies and rites prescribed by the community are performed.33 Numerous customary ceremonies
and rites have been recognized by the courts.34 The only change that the Hindu Marriage Act makes in
this regard is that if a marriage is solemnized by the customary rites and ceremonies recognized on the
side of one of the parties to the marriage (it may not be recognized on the other side), then the
marriage will be valid.35 For the performance of customary ceremonies and rites it is essential to
establish that the caste or community has been continuously following such rites and ceremonies from
ancient times and the caste or community regards performance of such ceremonies as obligatory,
provided such customary ceremony and rites are not against morality, law and public policy. No one, not
even a community, organization or movement, is free to alter, vary or create a ceremony at one's
pleasure. When the Arya Samaj movement simplified the ceremonies and rites for the solemnization of
marriages among the Arya Samajists, an Act had to be passed to set at rest all doubts relating to validity
of such marriages.36 Even for the validity of marriages among the Sikhs by ananda karaj a statute had to
be passed.37 The question of innovation of new ceremonies and rites came before the Madras High
Court in an interesting manner.38 In Tamilnadu there exists an organization, now for at least half a
century, known as Anti-Purohit Association or Self-Respectors' Cult. This is an intercaste organization,
the main objective of which is to do away with the traditional rites and ceremonies prevalent among the
Hindus. It has also innovated some very simple rites and ceremonies of marriages. Such marriages are
known by the name of suyamariyathai or seerthiththa marriages. When such a marriage is to be
performed then the relatives and friends of the bride and bridegroom and the notable persons of the
locality are invited, and among the invitees some one is requested to preside over the function. The
bride and the bridegroom are introduced to the guests, and in their presence the simple ceremony of
exchanging garlands and rings between the bride and the bridegroom is performed. Two other
alternative ceremonies may also be performed : (a) a simple ceremony of tying the thali, or (b) the bride
and bridegroom may declare in any language understood by them that each takes the other to be his
wife or, as the case may be, her husband. When the validity of one such marriage was questioned
before the Madras High Court, Satyanarayana Rao, J., said that it may be very laudable object to simplify
the procedure applicable to marriages as laid down in the shastras and custom, but it will be a
dangerous doctrine to lay down that a community should have liberty to prescribe the requisites of a
valid marriage without any statutory authority. No one can alter personal law. The marriage was held
void. This decision led to statutory recognition of such ceremonies and rites.39 The result of this
statutory modification is that a mere execution of a document by the spouses that they have become
husband and wife will amount to a declaration in the presence of friends and other persons,40 and will
confer the status of husband and wife on the parties. Just as no one is free to innovate ceremonies,
similarly no one is free to perform any ceremonies of marriage, even though the intention to be man
and wife may be there. This question has come before our courts in bigamy cases.41 Prosecution for
bigamy cannot stand unless the solemnization of the second marriage by the requisite rites and
ceremonies is established. The question came before the Allahabad High Court in a very interesting
manner.42 One Dr. N. A. Mukerji performed three different ceremonies of marriage at three different
times with one Smt. Harbans Kaur (who was a married woman and whose husband was living). The first
ceremony was performed in a moonlit night in the open where Dr. Mukerji after reciting a few Sanskrit
verses embraced Smt. Harbans Kaur and exclaimed, "Moon you are my witness. I am marrying Harbans
and she is my wife and I am her husband". The second ceremony was performed eight years later in a
Kali temple where the parties exchanged garlands in front of the deity and walked seven steps together.
The third ceremony was performed a day later before Guru Granth Sahib : an imitation of ananda karaj.
The court held that the performance of such mock ceremonies of marriage does not constitute a valid
solemnization of marriage. Not merely the ceremony and rite should not be a mockery, but it is also
necessary that the requisite ceremony prevalent and recognized either on the side of the bride or on the
side of the bridegroom should be performed. Thus, if a Buddhist and a Jain solemnize their marriage by
ananda karaj (which is a valid Sikh ceremony), then marriage will not be valid, since ananda karaj is
neither recognized on the side of the bride nor on the side of the bridegroom. But if a Sikh and a Jain
solemnize their marriage by ananda karaj, the marriage will be valid. Thus, neither the innovation of
ceremonies is allowed nor can a marriage be performed by any sort of ceremonies. In either case, the
marriage will be void. Derrett says that intention should be the criterion. "Did they intend to become
man The Practical Lawyer https://www.supremecourtcases.com Eastern Book Company Generated:
Tuesday, October 22, 2019 and wife? If they did so, the choice of ceremony is irrelevant . . . . If on the
other hand she aimed to be no more than a permanent concubine, the ceremonies, no matter how
elaborate, should not have the effect of turning her into a patni against her intention !"43 It is submitted
that this is not so under Hindu law. Under Hindu law it is the solemnization of requisite ceremonies and
rites that confers the status of husband and wife, and if requisite ceremonies are not performed, the
marriage is null and void, unless custom permits such a marriage.44 In this jumble of customary
ceremonies and rites of marriage, where the burden of proof is on the party who alleges the customary
ceremonies and rites, the only redeeming feature seems to be the rule of presumption of marriage.
Section 144 of the Evidence Act lays down that where independent evidence of solemnization of
marriage is not available, it will be proved to be a valid marriage by continuous cohabitation between
the parties unless contrary is proved. It has been held at an early date that the policy of law is to lean in
favour of validity of marriage.45 It has also been held that continuous and prolonged cohabitation gives
rise to a presumption in favour of marriage, and against concubinage.46 In every case it is necessary to
establish that solemnization of marriage took place, once that is proved. It is not necessary to show that
each and every ceremony was performed.47 Where it is alleged that all ceremonies were performed,
but there is no proof of the performance of any ceremony and rite, such as of kanyadana or saptpadi,
and where no guardian for marriage (the girl being below eighteen) of the bride was present at the time
of marriage, it cannot be presumed that essential ceremonies were performed.48 Thus, the rule of
presumption in favour of solemnization of marriage helps only to an extent. This writer is in respectful
agreement with S. V. Gupte that "it is unfortunate that in each case even after the codification it would
have to be ascertained whether the marriage was performed according to the customary rites and
ceremonies of any particular spouse".49 In the submission of the present writer it would be better that
if a simple ceremony of marriage is devised w
hich is available uniformly to all Hindus.

- Under the Hindu Marriage Act 1955 the following matters are still governed by custom : prohibition for
marriage either on the ground of consanguinity or affinity, ceremonies of marriage and customary mode
and forum of divorce. Return to Text

While changes in the Hindu law through codification was a step ahead to move away of aspects that
protect institutional inequality, diversity in customary laws itself accepted the changes of Hindu law
differently. The law itself while overpowering the varied customs through section 4 of the Hindu
Succession Act, 1956, left spaces open and unchallenged certain other customary laws such as; the
Marumakkathayee law of Kerala which while protecting the matrilineal transfer of property through
female line also gave rise to gendered inequality and sustained certain institutions. The law which
apparently might seem to be all encompassing ended up protecting caste based distinctions.
Marumakkatayam system benefitted from the differences between Nambudhri men and Nair women,
where the former being Brahmins followed primogeniture system of succession in which the lack of
succession by other sons except the elder son could be linked to matrilineal succession of property for
the other sons.73 Following this system, Nambudhri men could also have access to the Nair women
behind the façade74 of protecting and safeguarding their interest in the matrilineal succession. In the
process, there continued to be a hierarchised land ownership and practices of customary laws in
complete divergence to the changes in the Hindu law

Succession Act, 1956, transformed the position of women as limited owners of their land holdings to
absolute owners of property giving rise in legal battles with their male collaterals. It also led to
reinforcing the strict gender divide in southern India through section 1771 of the succession act and
protecting the Marumakkattayam system among the Nairs of Kerala. The devolution of property under
this system protects the tarawad property, the matrilineal succession of property, which is passed
among mother‟s „Thazavi‟comprising mother and mother‟s descendants along female line. In the
process, there were various court cases over conflict of interest between provisions under section 15
and section 17. This also led to rise in court cases that brought the issue of male relative of the women
and those representing the tarawad system. In the process, upholding the rights of women in South
through maintaining of customary law left behind a larger issue of whether such a devolution of
property was indeed making women equal and absolute owners as would have been in the case of men
in agnatic structure.72 While the customs of the Nairs found precedence, those of the Ezhavas were lost
in these unending conundrums of overlapping laws in the same geographical region itself. Similar
overlaps were also found in Haryana which influenced a parallel situation differently based on the
customary law of the place