Indian Journal of Law and Legal Research Volume IV Issue IV | ISSN: 2582-8878

HINDU MARRIAGE IN INDIA: SOCIAL SACRAMENT AND

LEGAL CONTRACT

Dr. Vaibhav Uniyal, Assistant Professor, Law College Dehradun, Uttaranchal University
Dehradun

ABSTRACT

Matrimonial disputes have always been a necessary component of Indian

society and law. Whereas these were once deemed taboo in societal norms,
they are now commonplace in the legal system. Today's courts are inundated
with cases involving marriage issues. The goal of law (as it is commonly
understood) is to establish norms that function as duties with the goal of
maintaining law and order and peace in society. However, the rising number
of marriage problems suggests otherwise.

Marriage has been considered a sacrament both in law and in society

throughout the majority of India (following Hindu rules). However, in the
twenty-first century, the debate is whether Hindu marriage is still a
sacrament or a contract. The sacred aspect of Hindu marriages appears to
have been reduced to just contractual requirements by Indian legislation.

Keywords: Hindu, marriage, sacrament, contract, patriarchy, matriarchy

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Indian Journal of Law and Legal Research Volume IV Issue IV | ISSN: 2582-8878

Meaning and Evolution of a Hindu Marriage

For some, marriage is only a tool to attain the goal of child procreation, but for others, it is a
union of two souls who are linked not only in this life but also after death. Marriage is not a
new concept, but rather a centuries-old custom. Men and women's sexual connections were not
regulated among primitive men. At the period, life was comparable to that of animals.
Maternity may have been determined on its own, but paternity was unknown at the time. To
determine paternity of offspring, it became necessary to establish the sexual interaction
between man and woman an exclusive union. (Diwan, 2012)

The ancient Hindu civilization acknowledged eight different types of weddings. (Jain, 2020):

1. Brahma: The father (or guardian) gave the bride away (as a gift) in marriage without
getting any payment from the bridegroom in this type of marriage.
2. Daiva: In this type of marriage, the father surrendered his daughter to a priest in
exchange for a spiritual benefit, at a sacrifice given by the girl's father in place of the
priest's 'dakshina.' It is thought to be inferior to the brahma version.
3. Arsha: The bridegroom was obligated to provide one or two pairs of cows to the bride's
father in this type of marriage.
4. Prajapatya: This type of marriage was identical to the brahma type, except that the
bridegroom did not have to be a bachelor.
5. Asura: The bride was 'sold' by the father (or guardian) for monetary consideration in
this type of marriage. "Asura marriage" is when a man marries a girl for the purpose of
financially benefiting her father or guardian.
6. Gandharva: The bride and groom agree to marry in this type of marriage, which is
referred to as "love marriage."
7. Rakshasha: In times of war, rape or the kidnapping of a virgin girl preceded this type
of marriage.
8. Paishacha: The crime of ravishing a girl while she was asleep or intoxicated preceded
this type of marriage. This was the most abhorrent of Hindu marriages.

With the passage of time and changes in society, the ancient Indian system lost its character.
The eight types of marriage acknowledged in ancient days are no longer followed in modern
Hindu society. Despite the fact that the rituals (rites and ceremonies) are observed, the

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originality has faded with time. Customs have changed over time to meet the needs of society.
This shift raised the question of whether a Hindu marriage may still be considered a sacrament.

Hindu Marriage as a sacrament

Marriage was understood and honoured in the Hindu way of life as the union of two souls for
a lifetime and even after the mortal existence. Its origins may have been in the regulation of
human sexual relations, but it was transformed into a duty by ancient texts. It was realised that
those who follow the Hindu religion are required to marry at some point in their life. The female
companion was dubbed an ardhangini, which means she was half of the male partner. It is
referred to as "the better half" in modern society. On the other hand, the male spouse was given
the title of 'pati parmeshwar,' which meant that the husband was treated as if he were god. The
words are still well-known in society, but they are now used as innuendos in everyday speech.
Divorce was frowned upon because the couple's union was considered forever. Things, on the
other hand, deteriorated over time. Once married, it was understood that marriage would
triumph no matter what. Males frequently misapplied this principle. It was realised that the guy
had to be excellent with his spouse until marriage. After marriage, he was free to treat his
companion anyway he pleased (being aware of the fact that marriage could not be broken).
This misunderstanding and misinterpretation paved the way for the so-called "patriarchal
society." A male was expected to pay a visit to the female's home and express his feelings about
her. The female and her relatives did everything they could to impress the guests. The girl's
beauty and cooking talents, among other things, were criteria for judging her. The girl and her
family used to prepare tea and snacks in the most elegant manner imaginable, as well as getting
ready in the most elegant attire possible. The girl was expected to act in a way that would meet
everyone's expectations. This was possibly the most difficult difficulty for a girl because it was
and still is hard to know what the other person expects. Furthermore, in certain cultures, the
soon-to-be couple was not even allowed to see each other. The parents of the two families
conferred and decided on their children's marriage. The only item the soon-to-be couple
possessed was a photograph of each other (if one was available). The boy's family, on the other
hand, had to present information on the boy's income (in the case of a major), the family's social
standing, and the assets they held, among other things. This was commonly used as a chance
to praise oneself rather than delivering facts. After that, there was an engagement and marriage.

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Hindu marriage as a contract

As time passes, it is critical that societal standards and practises change as well. The same may
be said of marriage. Laws needed to alter as a result of the girls raising their voices against
patriarchy. As a result of the era of globalisation and industrialisation, women's empowerment
has become a major problem. Women's rights legislation has been enacted. Personal rules were
codified as a result of changes in the ancient Hindu scriptures. Marriage, divorce, succession,
maintenance, inheritance, and other legal issues are no longer limited to ancient customs and
texts. Marriage has characteristics ingrained in it that affect its character, despite the fact that
it is still acknowledged as a sacrament. In India, laws stipulate three things at the
commencement of a Hindu marriage: capacity, consent, and ceremonies. The capacity covers
the marrying couple's mental capacity as well as their age. On the other hand, free consent is
an unavoidable requirement of marriage. To be considered free, assent must not have been
obtained through deception, force, undue influence, or mistake. It's worth noting that these
fundamental characteristics are also included in The Indian Contract Act of 1872. A legitimate
agreement and contract must include the elements of free consent and the parties' capacity.
Another thing to keep in mind is that the parties to a marriage always have the option of ending
it if the essentials are not fulfilled. This is akin to an agreement made under the Indian Contract
Act of 1872. In a Hindu marriage, the only sacramental aspect is the performance of rites. The
ceremonies, on the other hand, are not performed exactly as they were intended. Rather, they
have gone through alterations over time.

From Patriarchy to ‘Matriarchy’

The changes that are occurring in society are crucial. "Change is the only constant," as the
saying goes. Henry Maine used the term "progressive nature" to describe this shifting
personality. The advancement of women's standing from what it was to what it is now is a
beneficial act. Change in the institution of marriage, likewise, was an unavoidable condition.
Time, on the other hand, necessitates adjustments once more. Situations have evolved to the
point that the patriarchal society of the past has given way to the 'matriarchal' society of today.
Previously, the males of society dominated the females. Female liberation had thus become a
necessity. As a result, women's rights were codified in law. However, the situation has now
flipped around.

Women's abuse of the law has become so frequent that Indian parents of young boys prepare

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for matrimonial conflicts even before their son marries. After marriage, a girl is given the
option of working or staying at home, and she frequently chooses neither. A guy, on the other
hand, is obligated to care for his parents and wife, which means he is expected to work hard all
day and night and cover all expenses. Furthermore, raising one's voice against one's wife may
be considered mental abuse under Indian law. If a female, on the other hand, desires to have a
sexual intercourse against her husband's will, it is both a boy's marital obligation and a girl's
right. Because there are no rules in India to control and regulate such matrimonial cases against
males, they go unreported. The irony is that a girl can still claim her rights even if she does not
fulfil her responsibilities. A newlywed female requesting a separate dwelling from her in-laws
just a few weeks after marriage is a very prevalent circumstance that has arisen throughout
time. Her spouse is then educated that there is nothing wrong with it and that if the daughter
has trouble adjusting, she can be granted her own house. This is simply a "who cares about the
son" and "who cares about his old parents" attitude that should not be encouraged.

Conclusion

The institution of marriage as we know it today is not what it once was. As a result, calling
Hindu marriage a sacrament is unjustified. Gone are the days when people depended on one
another to survive. The current era has demonstrated that everyone is concerned with their own
personal fulfilment. In this context, it is not unreasonable to suggest that Hindu marriages be
recognised as full-fledged contracts. Contractual laws should apply to a marriage that meets all
of the requirements for a legitimate contract. The rights and responsibilities of both spouses
would be determined by a contract signed in this manner (parties to the contract). It would also
be a significant step toward realising the long-awaited ambition of a Uniform Civil Code.

References

Diwan, P. (2012). Modern Hindu Law. Delhi: Allahabad Law Agency.

Jain, A. (2020). Law Guide for Judicial Service Examinations. Delhi: Ascent Publications.

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