2. Nature of Marriage before 1955: -
Marriage is one of the oldest institutions of
Hindus.
It is regarded as one of most important ten
Sacraments.
According to Raghunandan, a Hindu Marriage
implies with acceptance of the bride as wife
by the groom through ceremonial process
which is technically known as KANYADAAN.
This mode of marriage is well settled since
Vedic period and has assumed religious
significance.
3. A Hindu Marriage has been said to be
sacrament also because the marital relations
between the spouses are created not on
account any contract between the two but by
virtue of a gift of the girl by her father to the
bridegroom.
This gift is holy and accompanied with the
religious ceremony of Saptapadi or any other
customary religious rites.
In absence of such religious ceremonies and
rites marriage is said to have not to taken
place at all in the eyes of law.
4. Marriage is essential because all the religious
ceremonies and rites are to be performed by a
Hindu in the companionship of his wife
otherwise they will not bear any fruits.
By marriage an inseparable relationship is
created between the husband and wife. The
relationship cannot be broken by any means
whatsoever.
But Narada and Parasar have stated 5
conditions in which a wife could abandon her
husband and remarry –
1. Where the husband is lost; or
5. 2. dead; or
3. Has renounced the and has become sanyasi; or
4. Has become impotent; or
5. Has been ousted from his caste.
But these conditions of remarriage were provided
only for the
Marriages of unapproved forms.
6. Definition of Marriage: -
According to Raghunandan: -
“ The acceptance of bride as his wife by the
bridegroom in a gift by her parents is defined as
marriage.”
According to Lundberg: -
“ Marriage consists of the rules & regulations which
define the rights, duties and privileges of husband
and wife with respect to each other.”
7. Forms of marriage (Before 1955):
-
Smriti, Vedas and Shrutis provide eight forms of
marriage, four of them are approved and four of
them are unapproved.
The legal consequences in approved and
unapproved marriages are not similar – wife in
the approved form enjoys rights and status of
Dharmpatni but in unapproved marriage wife any
status in society and has no rights.
Eight forms of marriage are: -
1. Brahma
2. Daiva
3. Arsha
9. Approved forms of marriage: -
Brahma form: -
In this form of marriage the father of the girl
respectfully invites the bridegroom at his residence,
worships him and requests him to marry his daughter
along with a pair of fine clothes and ornaments. The
father does not accepts any consideration in
exchange of bride. The bridegroom should be
bachelor.
Daiva form: -
In this form of marriage, the daughter is married to
the priest who performs religious acts and rituals for
the spiritual benefits of the father of the bride.
10. Arsha form: -
In this form of marriage the bride is given to a
person, from whom the father has accepted a pair
of cow or bull for religious ceremonies only.
Prajapati form: -
In this form the bride’s father, decorating the
bride with colorful attires and after worshipping
her, marries her to the bridegroom, making the
declaration to the effect that they together may
act religiously throughout and prosper and
flourish in life. It is not necessary that the
bridegroom must be bachelor.
11. Unapproved form of marriages: -
Asura form: -
In this form, bridegroom receives bride b paying
money. This form of marriage is almost a marriage by
sale because it amounts to a sale of daughter by the
father. This type of marriage is practised widely
amongst Sudras of Southern India.
In Venkata Krishnaya vs. Lakshminarayana ILR 32
Mad 185: -
It was held that the validity of a marriage in Asura
form in the present days has been upheld by judicial
decisions and there can be no question of its being
unrecognised today on the score of public policy, but
an arrangement to pay any consideration to the
father or brother of bride cannot be enforced nor can
a suit be filed for its refund.
12. Essential conditions for marriage
under old Hindu Law: -
Under old Hindu Law only three essential
conditions were required: -
Identity of caste between the parties
Parties to marriage must be beyond the
prohibited degrees of relationship
There must be proper performance of marital
ceremonies
13. Identity of Caste: -
If in a marriage bride and bridegroom did not
belong to the same caste, the marriage was
considered to be invalid unless sanctioned by
custom.
Ancient Hindu scriptures prohibited “PRATILOMA
marriage” i.e. a marriage between a girl of higher
caste and the boy of lower caste.
But in “Anuloma marriage” i.e. males of higher
caste and females of lower caste was permitted
and recognised by the Hindu text.
As caste system became more and more rigorous
with time,
14. Identity of caste between the parties to marriage
became one of the essential conditions of
marriage.
But during the British rule several legislative
provisions were enacted which validated inter
caste marriage – Arya Samaj Validation Act,
1937, Special marriage Act, 1872 etc.
15. Parities to be beyond prohibited
degrees: -
Hindu jurists prohibited marriage between
persons related to each other within certain
degrees probably for social reasons so that a
marriage is invalid if it is made between persons
related to each other within the prohibited
degrees, unless such marriage is sanctioned by
customs.
The law of sagotra prohibition was not applicable
to the Sudras as they did not have any gotra of
their own.
Amongst the persons of higher castes too
customary law could validate a marriage between
persons of the same gotra.
16. The parties to the marriage should not be
Sapinda to each other. A marriage between
sapindas was labelled as illegal. “Sapinda”
according to Mitakshara, are the persons who
have in them particles of the body of the same
ancestor.
According to Raghunandan, it was prohibited to
marry a girl if she was the daughter of the
brothers or any of the wives of his fathers or his
daughter or daughter of his guru because of
marriages with such relations would disturb the
social stability.
17. Performance of religious ceremonies:
-
Dharmashastra, there were three religious
ceremonies which were necessary for the
completion of Hindu marriages, namely –
i. Betrothal or Tilak ceremony
ii. Formalities including the recitation of holy texts
before the sacred fire.
iii. Saptapadi
18. Guardianship in marriage: -
Under the Mitakshara the following persons
could act as guardians of the bride for the
purposes of giving her in marriage: -
Father
Grand Father
Brother
Relatives of bride from father’s family
Mother
According to Dayabhag, the bride’s maternal
grandfather and maternal uncle.
19. Effect of marriage: -
After marriage the husband acquires
guardianship over his wife.
They both developed a right over each other and
are supposed to live together.
If the wife lives separately from her husband be
could institute a suit in the court for the restitution
of conjugal rights.( Suryamani vs. Kali kant, ILR
28 Cal 37)
Wife was entitled to claim maintenance from her
husband so long she discharges her marital
obligations.
20. After the marriage the groom was to be the
swami and protector of the wife. After the death of
the husband her sons protect her.
British rulers t o establish their own judicial
system passed many statutes to alter the ancient
textual law in regard to marriage.
21. Summary: -
The Hindu law of marriage, as the British rulers
of India found, interpretated and applied, was in a
nutshell, as follows: -
Hindu marriage was a holy sanskar, it could be
solemnised in one of the eight forms of marriages
recognised by law.
The solemnisation would be according to shastric
form or customary rites.
One could marry at any age, there being no
lowest age of marriage and a man could marry
any number of women.
Inter –religious and inter caste marriage were
prohibited, but the latter could be sanctioned by
custom.
22. Marrying within own’s gotra was not allowed,
except among the Sudras.
Husband and wife would live together, the latter
would submit to the wishes of the former, and the
former would maintain the latter.
Marriage was indissoluble, divorce was not
permitted unless recognised by custom.
Death did not dissolve a marriage and therefore a
widow could not re marry unless permitted by
custom so to do.
23. Divorce and remarriage: -
According to textual Hindu law, an over lasting
bond of relationship comes into existence
between husband and wife after their marriage.
Therefore the question of breaking off the
marriage does not arise at all.
