FAMILY LAW NOTES – PRAKRITI 1901071 SECTION B

16 SAMSKARAS
1. Garbhadana Samskara – is performed by a married couple when conceiving a child. This important
Samskara raises the act of conception to a sacred occasion, and is powerfully purifying and uplifting
for the unborn child.
2. Pumsavana Samskara – is usually performed between the second and fourth month of pregnancy.
Its purpose is: to insure the good health of the foetus and the proper formation of its organs, so that
the family line and tradition will perpetuate thorugh the baby.
3. Simantonoyana Samskara – In the fourth or fifth month of pregnancy, the mind of the foetus begins
to develop. This is when simantonoyana Samskara is performed. Its purpose is to protect the foetus–
especially its newly forming mind–from all negative influences, and also to stimulate the development
of the unborn child’s intellect.
4. Jatakarma Samskara is the ritual performed at the birth of a child noting the birth time and star and
thus create a birth chart which is suppose to be the blue print of ones life.
5. Namakarana Samskara – On the eleventh day after the child’s birth, namakarana Samskara is
performed. In this ceremony, the child receives its name.
6. Nishkramana Samskara – The baby’s first outing into the world, beyond the confines of the home.
7. Annaprashana – The first feeding of solid food to the baby, usually in the sixth month after birth.
8. Karnavedha Samskara – usually performed in the sixth or seventh month after birth, consists of the
piercing of the baby’s ear lobes, so earrings may be worn.
9. Chudakarana Samskara – At the end of the first year after birth, or during the third year, the child’s
hair is shaved–all but a tuft on the top of the head. This ritual shaving of hair, performed with
ceremony, prayers, and chanting of Vedic hymns, is chudakarana Samskara This Samskara is for both
boys and girls.
10. Vidyarambha Samskara – begins a student’s primary education by ceremonially introducing the
child to the alphabet.
11. Upanayana Samskara – initiates the formal study of the Vedas. It is one of the most important and
esteemed of the samskaras. Upon performance of Upanayana, a boy traditionally moves from home to
live in the ashram of the guru.
12. Samavartana Samskara – With samavartana Samskara the disciple graduates from his Vedic
studies and returns from the house of his guru. Thereafter, the disciple will marry and raise a family,
and so enter the stage of householder, grihasthashrama.
13. Vivaha Samskara – The traditional Hindu wedding ceremony is known as vivaha Samskara It is
considered by many to be the most important of all the samskaras.
14. Panchamahayagna Samskara – A married couple performs the panchamahayajna, or five great
sacrifices, daily. In this Samskara, one honours, in turn, the rishis, the gods, the parents, humankind,
and all created beings.
15. Vanaprastha Samskara – According to the Vedic tradition, vanaprastha is the third stage of life,
following brahmacharya (Vedic student/disciple) and grihasta (householder). Here, a one leaves
behind ones life in the world and retires to the forest (or serving the society), to live an ascetic life
devoted to service, study of the scriptures and to meditation.
16. Antyeshti Samskara – The final sacrament, the funeral rites, are known as antyeshti Samskara.

FORMS OF MARRIAGE – 8 (Before 1955)

1. Brahma - ‘Brahma’ is one of the most practised forms of marriage in India and has the most
supreme position out of all the eight forms of marriage. Manu-Smriti has also laid great
importance on this form of marriage.
The Supreme court in Reema Aggarwal vs Anupam And Ors, 2004 discussed the possibility
of Brahma marriage being the origin of the dowry system in India but didn’t come to a
conclusion regarding it. There is no external pressure from the bridegroom according to the
Manu-Smriti. However, in practicality, the bridegroom may use the custom of “exchanging
gifts” for harassing and pressurising the bride and her parents to give dowry. Also, according
to Manu, the son of a wife married according to Brahma rites liberates ten ancestors and
descendants.
2. Daiva - Daiva-vivāha means ‘marriage related to the rite of the gods’. In this form of
marriage, unlike Brahma, the father gives away his daughter to a priest as a Dakshina
(sacrificial fee) for officiating in the sacrifice conducted by the father of the bride.
In this form of marriage, the groom doesn’t come looking for a bride, the parents of the bride
go looking for the groom for her daughter.
3. Arsha - The third form of approved marriage, that is Arsha Marriage, suggests marriage with
Rishi or sages. This is different from Brahma and Daiva forms of marriage because, in Arsha,
the father of the bride doesn’t have to give anything to the bridegroom. In the Arsha, the
father of the bridegroom is the one who gives 2 cows or bulls to the father of the bride.
4. Prajapatya - Prajapatya form of marriage is similar to Brahma form of marriage except there
is no trading or Kanyadan in Prajapatya and the father of the bride searches for the groom.
Because of these differences, Prajapatya is inferior to Brahma.
5. Asura - This is one of the most condemned forms of marriage. In this form, the father gives
away her daughter after the bridegroom has provided all the wealth that he can, to the father
of the bride and the bride herself. The test for determining whether a marriage is “asura” or
not was laid down in Kailasanatha Mudaliar v. Parasakthi Vadivanni, 1931.
6. Gandharva - This is a unique form of marriage and is different from other forms of marriage.
There is a mutual agreement between the girl and boy to get married. This mutual agreement
arises from pure lust. The approval of parents does not play a role.
7. Rakshasa - Rakshasa form of marriage is performed by abducting the bride and brutally
slaying her family and relatives. In some texts, another condition that needs to take place is
that the bridegroom shall fight with the family of the bride while following the ceremonial
steps in a tranquil wedding.
8. Paishacha - This is placed as the last form of marriage because this is the most atrocious form
of marriage out of the 8 marriages. In this, a man seduces women and enters in a sexual act
when the girl is either sleeping, intoxicated or mentally disordered mostly in the night. The
girl and her parents out of shame of such activity have to agree to the marriage with the man.
Paishacha means goblins who are supposed to act secretly at night.

CONDITIONS FOR HINDU MARRIAGE (After 1955) – Section 5 of the

Hindu Marriage Act
1. Any one party living to the spouse at the time of marriage i.e. Must be monogamous
2. At the time of the marriage, neither party,-
(a) Is incapable of giving valid consent, to it in consequence of unsoundness of mind; or
 (b) Though capable of giving a valid consent, has been suffering from mental disorder of
such a kind or to such an extend as to be unfit for marriage and the procreation of children;
or
(c) Has been subject to the recurrent attacks of insanity
3. The bridegroom has been completed age of twenty one years and the bride the age of
completed eighteen years at the time of marriage;
4. The parties are not within the decrees of prohibited relationship, unless the custom permits the
marriage;
5. The parties are not Sapindas of each other, unless the custom or usage permits the marriage
between two;

 Anuloma Marriage
Anuloma marriage is a social practice according to which a boy from upper varna / caste / class
can marry a girl from lower varna / caste / class.

 Pratiloma Marriage
Pratiloma is a type of marital practice in which a man of lower class / caste / varna marries a girl
of higher class / caste / varna.

CEREMONIES
Marriage among Hindus being a religious and sacred tie, performance of certain ceremonies is still
necessary for a valid marriage. There were three important stages wherein certain ceremonies were to
be performed. They were:
1. Betrothal or Sagai: it is a formal promise to give the girl in marriage.
2. Kanyadan: It is actual giving away of the girl in marriage by her father.
3. Saptapadi: it consisted in performing a ceremony of taking seven steps before the sacred fire by the
bride and the groom. The performance of Saptapadi marked the completion of a marriage. It made the
marriage irrevocable.
As per Section 7 of Hindu Marriage, Act a marriage is a ceremonial affair. Saptapadi is an essential
part of the ceremonies of marriage, its non performance will invalidate the marriage. The performance
of vedic rights is not enough to solemnise the marriage.
Customary ceremonies may not include any one of the Shastric ceremonies including Saptapadi. It
may be totally non-religious ceremony or it may be very simple ceremony. For instance, among
santhals smearing of vermilion by bridegroom on the forehead of the bride is the only essential
ceremony.

VOID AND VOIDABLE MARRIAGES (Sections 11 and 12)

There are three types of marriages under this Act: (i) valid, (ii) void, and (iii) voidable. Section 11
deals with void marriages and Section 12 deals with the voidable marriage. All other marriages which
are not covered by these two sections are valid.

VOID MARRIAGES
Section 11 states that any marriage solemnized at the commencement of this Act shall be null and
void and may, on a petition presented by either party thereto against the other party be so declared by
a decree of nullity if it contravenes any of the conditions specified in clauses (i), (iv) and (v) of
Section 5.
Thus a marriage will be void ab initio:
(1) If any party to marriage has a spouse living at the time of the marriage [Section 5(i)].
(2) If the parties are within the degree of prohibited relationship unless the custom or usage governing
each of them permits such a marriage [Section 5(iv)].
(3) If the parties are sapindas of each other, unless the custom or usage governing each of them
permits such a marriage [Section 5(v)].
Section 11 of this Act is prospective in nature. It is only applicable to marriages solemnised after the
commencement of the Hindu Marriage Act, 1955.

CONSENT OBTAINED BY FORCE OR FRAUD [SECTION 12(1)(C)]

For marriage the consent of the parties concerned must be free. This is not because marriage is a
contract but because the sweetness and success of a married life depends upon harmony between both
the parties. If the consent to marriage is not free, this harmony is a remote possibility. That is why it is
quite just and reasonable that a party whose consent is not free should be permitted to come out of the
wedlock. Section 12(1)(c) allows this. It makes the marriage voidable where consent to it was
obtained by force or fraud.
Section 12(1)(c) provides that a marriage is voidable on the ground that the consent of the petitioner
or of the guardian has been obtained by force or fraud. After the Child Marriage Restraint Act the
consent of guardian has became irrelevant as the minimum marriageable age was set 21 years and 18
years for bridegrooms and bride.