Nature Of Hindu Marriage

Stock Hindu Marriage - The Obsolete Past

• Sacrament – Marital relations are created by Virtue of a Gift by father
to Bridegroom.
• It was not regarded as a Contractual Obligation.
• Gift is Holy – Accompanied with Religious Ceremonies.
• Union - So long as they are alive.
Definition
• According to Raghunandan, a well known Bhasyakar “The acceptance
of bride as his wife by the bridegroom in a gift by her parents is
defined as marriage.”
• In the process of gift the father of the bride chooses a Bridegroom as
a suitable person to whom the girl is given.
• The pious duty of giving away the girl in marriage by way of gift has
been thrust upon the father or her guardian in his absence, as
according to Rigveda, the girl is the Property of the god of fire who
has entrusted the father with the responsibility of bringing her up and
to give her in gift to a virtuous person by invoking the fire god to
witness the act of giving.
• The father or guardian of the girl enjoys, absolute right to settle the
marriage and the assent of the girl does not carry any material
significance.
Definition
• But it is remarkable to note that the Dharmasastras have provided
several restrictions upon the power of the father in the Choice of the
Bridegroom.
• It is not open to the father to give his daughter to any random
person.
• According to Manu, even if the girl attains the age of Puberty and she
has to live in her father’s home for her entire life, she is not to be
given in marriage to someone worthless and without virtues.
• Yajyavalkya – Bride –
• Celebacy shouldn’t have been destroyed;
• Same Caste
• Should have acquired knowledge of Vedas
Fulfilling the above duty – father acquires spiritual bliss.
Definition – Contemporary
Recently in Indra Sarnia v. V.K. Sarnia, AIR 2014 SC 309 Court has
observed that,
Marriage is often describe as one of the basic civil rights of man
and woman which is voluntarily undertaken by the parties in public in
formal way and once concluded recognise the parties as husband and
wife. There are three elements of common law of marriage firstly,
agreement to be married, secondly living together as husband and
wife, thirdly, holding out to the public that they are married, and in
both sharing a common house hold and electing to live together and
afford each other reasonable marital privileges and rights and be
honest and faithful to each other.
Eight forms of marriage (Before 1955)
The wife in the approved forms of marriage enjoyed the status of
Dharmpatni and all its consequential rights whereas the wife in an
unapproved form does not enjoy such status.
The eight forms of marriage were as under :—
(1) Brahma,
(2) Daiva,
(3) Arsha, Approved Forms
(4) Prajapatya,
(5) Asur,
(6) Gandharva,
(7) Rakshasa, Unapproved Forms
(8) Paishach.
Eight forms of marriage (Before 1955)
Approved forms
1. Brahma - A Brahma marriage is where a boy is able to get married once
he has completed his student hood, or Brahmacharya. The father of the
girl respectfully invites the bridegroom at his residence, worships him
and offers him the girl as his wife along with a pair of fine clothes and
ornaments etc. Here the father does not accept any consideration in
exchange of bride and does not select the bridegroom with a view to
augment his own profession etc. A widow could not be remarried under
this form of marriage. Brahma marriage has the most supreme position
of the eight types
2. Daiva - A well decorated bride is offered to the priest who performs
religious acts and rituals for the spiritual benefits of the father of the
Bride. The type of marriage that is considered inferior because it is
degrading to womanhood is Daiva marriage. This is where the woman’s
family will wait for a specific time to get her wed. If she doesn’t get a
suitable groom, then she would be married off to places where sacrifices
are conducted.
Eight forms of marriage (Before 1955)
3. An Arsha marriage is where the girl is married to the sages. The
bride will be given in exchange for two cows. Because it is cows that
are given in exchange of the bride, it shows that the groom does
not have any special qualities. A noble marriage has no business
transactions, or monetary, so therefore an Arsha marriage is not
considered as a noble matrimony.
4. Prajapatya matrimony is where the bride’s father goes in search of
a groom, although this isn’t considered as good as the grooms
parents searching for the perfect bride. Also, unlike Arsha marriage,
monetary transactions are not a part of the Prajapatya marriage.
Eight forms of marriage (Before 1955)
Unapproved Forms:
5. Asura - This is a matrimony where the groom is not in the slightest
bit compatible with the bride, what is compatible is that the bride’s
father likes money and the groom is happy to surrender his own
wealth. In modern times this type of marriage isn’t entirely
acceptable because it is much like buying a product off the shelf.
6. Gandharva - ‘love’ marriage. This is where a groom and his bride
will wed without their parents knowledge. However, it is not
correctly considered as a type of marriage because it does not have
the consent of the parents.
7. Rakshasa - The groom will forge battles with the bride’s family,
overcome them and carry the bride away to convince her to marry
him. Because of the forcible methods used in this marriage type, it
is not considered right. But still, this type of marriage is prevalent in
the Gonda Castes of Barrar and Betul (Madhya Pradesh)
Eight forms of marriage (Before 1955)
8. Paishaca marriages are the last type of Hindu matrimonies. Against
her wish, she is seized and the man would marry her, a woman
whom he had seduced and had sexual intercourse while
intoxicated, asleep or insane. It is understandable why this type of
marriage has been prohibited.
• Under old law, these were considered serious crimes as they are
regarded today. There were provisions for various penalties as well.
• Ancient Hindu Jurists had intended to confer a respectable status to
these ill-fated girls i.e., the status of wifehood, if the girl so wished
through marital ceremonies.
• Otherwise she had to live her entire life in abstinence because the
Hindu Mentality is that a girl for marriage should be not only free
from stains but free from all suspicions of stain.
Difference in Essential Conditions
Ancient Eight Forms:
1. Identity of Caste between Parties
2. Beyond Prohibited Degrees – Sapinda; same gotra or pravara
3. Marital Ceremonies

Under Hindu Marriage Act 1955:

1. Monogamy
2. Soundness of Mind
3. Age of Marriage
4. Beyond prohibited degree
5. Beyond Sapinda relationship
1. Identity of Caste between Parties
i. Pratiloma Marriage – Prohibited – Girl of Higher Caste & Boy of Lower Caste
ii. Anuloma Marriage – Permitted – Vice Versa
• Caste system became more rigorous with the passage of time.
• British Rule – Validated Inter-caste marriage through various enactments viz.,
Arya Samaj Validation Act, 1937; Special Marriage Act, 1872; Hindu Marriage
Disabilities Removal Act, 1946; Hindu Marriages Validity Act, 1949.
2. Parties to be beyond Prohibited Degrees
• Sapinda – Illegal – Particles of the Body of the Same Ancestor
• Same Gotra – Lost its prevalence over time.
Exception – Customary Law
3. Performance of Religious Ceremonies
i. Betrothal or Tilak Ceremony – Promise to Marry –Revocable.
ii. Formalities including the recitation of holy texts before sacred fire.
iii. Saptapadi – Can be Revoked before Saptapadi is Complete.
Guardianship in Marriage
• Mitakshara:
1) Father
2) Grandfather
3) Brother
4) Relatives of the bride’s father’s family on the basis of their proximity
5) Mother
• Dhayabag:
Bride’s Maternal grandfather and Maternal uncle also can act as a guardian of
the bride and both of them have been listed above the Mother.

A girl was permitted to marry on her own after attaining the age of puberty in case
there was no guardian or there was guardian but failed to get the girl married
within a reasonable age.
 Effect of Marriage
• After Marriage the Husband acquires guardianship over his wife
• Both develop a right over each other and are supposed to live together
• Any agreement contrary to this would be void
• If separated – Either of Partners could institute a suit for Restitution of Conjugal Rights.
• Wife – Entitled to Claim Maintenance