Marriage is a socially and legally sanctioned union. Union usually between a woman and a man, it is regulated by laws, rules, beliefs and customs. The origin and concept of marriage came into being to ascertain the legitimacy of a child. It evolved from the concept of ‘Family’ for mental and physical security and comfort. It provides for a basic structure for many personal and community functions, like companionship, status and satisfaction of personal needs of affection. The primary legal function that marriage ensures is the rights of partners with respect to each other and to define the relationships of children within a community.
It determines the legitimate status of the offspring, which entitles the offspring to various legal rights and privileges that he is entitled to, such as inheritance. As time passed marriages have taken many different forms like exchange marriage, group marriage, polyandry (same woman has multiple husbands), polygamy (same man has multiple wives). The most practiced form of marriage is monogamy where an individual has only one spouse during lifetime or at any one time.
Marriage has been defined by several anthropologists in an attempt to encompass the wide variety of marital practices observed across cultures.
Marriage defined by Mark and Young: ‘Marriage is the institution or set of norms which determines the particular relation of harmony to each other and their children.’
Earnest R. Groves defines marriage as: ’Marriage is a public confession and legal registration of an adventure in fellowship’
According to Malinowski: ‘Marriage is a contract for the production and maintenance of children
Features and Characteristics:
Marriage is universal and not restricted bed b region or religion or boundary
It is the initiation of formation of a family
It creates or forges a new social link
It is accompanied with the responsibility of raising children
It is always an outcome of a religious ceremony
There is a division of responsibilities, labour and economics
It provides for legitimation of the child
Marriage in Hinduism
Hindu marriage is an ancient tradition which is prevailing from the vedic periods to the modern world with different modifications. A Hindu marriage is the union of two individuals as spouses, and is recognized by liveable continuity. It harmonizes two individuals for ultimate eternity, so they can pursue dharma (responsibilities and duties), arth (money) and kama (conjugal love).
Nature of Hindu Marriage: Sacrament or Contract?
In ancient Hindu tradition marriage is considered a sacrament. When we consider Hindu marriage as a sacrament it gives effects to the following considerations:
Marriage is Permanent and cannot be dissoluble
Marriage is eternal
Recognition by society through religious ceremonies
Hindu marriage is no more a Sacrament because: It is eternal, no more as widows can remarry. It is dissoluble as divorces are allowed and marriage can be terminated at any point of time. Hence, Hindu marriage is not fully a sacrament. It is Sacrament only with regards to social acceptance and ceremonies.
What if Hindu Marriage is considered a contract?
This means that essentials of a contract must be followed. According to ancient origins of Hindu marriage, a wife must accept her husband even if he is devoid of any virtue/potency/life. It was believed that the widow would reach heaven if she remained chaste after the death of her husband. Narada and Parashara have mentioned five cases where there can be a separation:
If the husband is missing
If the husband is dead
If the husband has become an ascetic
If he is an outcast
If he is Impotent
Vasistha has granted women powers of separation and remarriage if her betrothed has lost mental/physical vigour or if he is an outcast. Modern forms of separation include
Judicial separation: all rights of marriage exist except cohabitation. There is no right to remarry.
Divorce: Total end of marriage, both parties get right to remarry.
Reasons why a Hindu marriage in Not a Contract
There is no element of ‘consideration' in a Hindu Marriage
A Hindu marriage can be terminated by either party
No mutual consent of parties is required
There is no capacity of parties
Hence, Hindu Marriage is neither a Sacrament nor a Contract but it is a blend of both a Sacrament and a Contract.
Forms of Hindu Marriage
There are 8 forms of Hindu marriage which are:
1. Brahma Marriage: brahma is the highest and purest form of marriage. It is also known as arranged marriage where the bride’s father chooses the most suitable groom for his daughter. Religious ceremonies of the highest and holiest levels are performed.
2. Daiva Marriage: it is similar to brahma marriage with the exception that the groom here is a priest. The father gives away his daughter adorned with jewellery to a priest who himself officiates the marriage.
3. Arsha Marriage: The groom’s family will gift a cow and a bull to the bride’s family, not to be viewed as the bride is being purchased. It is the compensation for the loss of the daughter’s earning potential.
4. Prajapatya Marriage: The bride’s father gives away the bride and says “May you two perform all the rights and obligations (duties)together.” No dowry/gifts are exchanged here. Husband may be a widower, a divorce or maybe already married.
5. Asura Marriage: The bride is purchased by the groom by giving the highest forms of gifts to the bride’s family. There is no legal claim for the purchase amount. It was described in the case of Venkata Krishnayya v. Lakshmi Narayana (1908) The Madras HC said Asura marriage cannot be considered as opposed to public policy. It maintained that no suits can be filed against promises made, no refund or specific performance claims will be allowed.
6. Gandharva Marriage: it is the voluntary union of a maiden and her lover (i.e. love marriage). It was believed to be for the purpose of fulfilment of physical lust, devoid of holiness and ceremonies. In the case of Brindavana v. Radhamani (1889) The Madras HC gave the judgement that Gandharva marriages are legal if all nuptial rites and ceremonies are performed.
7. Rakshasa Marriage: In this form of marriage there is a forceful abduction of the bride. According to Manu- “the forceful abduction of a maiden from her home while she cries out and weeps after her kinsmen have been slain or wounded and their houses broken apart is called the Rakshasa ceremony.” This is not a valid form of marriage and is a voidable marriage.
8. Paishacha Marriage: it is considered the highest sin. It is when the bride is asleep, unconscious or intoxicated. When a man by stealth seduces a girl who is sleeping, intoxicated or unconscious, this is the most sinful.
From the 8 forms of marriage Brahma, Daiva, Arsha and Prajapatya are approved forms of marriage. Asura, Gandharva, Rakshasa and Paishacha are disapproved forms of marriages. Today the popular forms of marriages are Brahma, Asura and Gandharva. The remaining five forms of marriages are not void-ab-initio but are voidable.
This article is written by Owain Correia of ILS Law College.