In social institution marriage plays a vital role. It is the means to carry
forward our society. The idea of marriage should be clear to all who belongs to
society. In Hindu religion there is a confusion or conflict that marriage is a
sacramental union or a contract. So, this paper mainly tried to discuss both
this aspects in detail and then to arrive at a conclusion.
Since very early marriage is considered as a sacramental union. Vedas and
Shastras also contains the idea that marriage is a sacrament. In Hindu marriage
all the rites and ceremonies should be performed strictly for a complete
marriage. It is also believed that marriage is indissoluble in nature and the
ties remains even after the death. Marriage is also considered to be a means to
On the other hand due to the revolution in society , where contract plays a
vital role , marriage is also included within the ambit of contract. Hindu
Marriage Act, 1955 also contains provisions that relates marriage with contract.
But it is not having general consequences as contract. So, we can not also
considered it as a pure contract rather it can be said as a mixture of both
contract and sacrament.
At first Hindus are those people who follows Hindu religion or by claiming them
as Hindu’s, specially Hindu’s are those who is born to the Hindu parents or
brought up in a Hindu Community. Hinduism can also be adopted by the process of
conversion which can takes place through marriage. In the case of Shastri V.
Muldas the term Hindu was expressly defined by the Supreme Court of India.
In this case Satsangi, Arya Samajis and Rahaswami was also considered to be the
part of Hindu religion as they are originated under Hindu Philosophy. As per the
ancient texts Hindus are born to accomplish different task which is expressed
through ‘purusarthas’. There are different phase in life which is called
Ashramas .There are four Ashramas those are Bramhacharyashrama, Grihasthasharama,
Vanaprasthashrama and Sanyasasharama. and it is mandatory to go through with all
this phases to attain salvation.
Grihastha life which can be called as a married life also plays a vital role in
our society. Shastras also mentioned that a man is incompetent to perform all
his duties efficiently in the absence of a woman or vice versa. So, to become
full it is important to get married.
Marriage can be legally defined as the state of being united to a person
of the opposite sex as husband or wife in a legal , consensual and contractual
relationship recognized and sanctioned by and dissolvable only by law.
According to Dvaipayana the highest dharma as sanctioned by the sastras,
consists in a training through the duties and living the full life of
For continuing the family chain or society procreation is needed. Procreation is
possible through the gratification of sexual desires. For Hindus birth of child
is considered to be essential and also pathway to attain salvation. Hence
marriage becomes obligatory to Hindus.
In case of Hindu marriage there is a long standing debate regarding is Hindu
marriage is a sacrament or a contract. Here we will look into the aspects of
both the side.
Hindu Marriage As A Sacrament
Hindus has given complete effort or has completely endeavored to idealize the
institution of marriage. Even in Rig Vedas it is mentioned that marriage of
Hindus was considered as a sacramental union. Hindu marriage is considered to be
a religious sacrament because marriage becomes valid only when rituals and
ceremonies are performed.
The wife is also called as Ardhangini which is known as half of man. As per
shastras man alone is only half until or unless he marries. Manussmriti mentions
that once a man and woman gets united by marriage, there soul is considered to
be one and there is no difference between them . Marriage is not only performed
to get sexual pleasure but also to attain certain goals.
Husband and wife are also referred to by several names. Like husband is called
as pati because he has a duty to protect his wife. He can be also called as
bhartri as he have a duty to support his wife. On the other side the wife is
called as jaya , because one own self is begotten on her. She can be also called
as grihalakshmi and samrajayi.
Marriage is obligatory for the Hindus, so that they can get son to discharge
their debt towards their ancestor by offering them Pindas and for performing
religious and spiritual duties. So, wife is not merely grihapatni but also can
be called as dharmapatni and sahadharmini.
Section 7 of Hindu Marriage Act provides:
Ceremonies for a Hindu Marriage
- A Hindu Marriage may be solemnized in accordance with the customary
rites and ceremonies of either party thereto.
- Whether such rites and ceremonies includes Saptapadi (that is, the
taking of seven steps by the bridegroom and the bride jointly before the
sacred fire), the marriage becomes complete and binding when the seventh
step is taken .
The ceremonies and rites which is followed in Hindu marriage also shows its
sacramental character. There are certain rites which must be performed for a
complete marriage. The first are performance of homa, kanydana , that is
offering brides hand to the groom and Saptapadi.
These all should be performed in presence of Bramhin in front of the sacred fire
and mantras are chanted. If these rites are not performed then the question
arises about the validity of the marriage. Saptapadi that is seven round around
the fire is considered to be most important and if it remains incomplete then
marriage also remains incomplete.
In the case of Bhaurao Shankar Lokhande v. State of Maharashtra
 , in
this case Appellant was married to complainant as per religious rites and
customs but in this course of time he married another women. Issued raised that
whether the second marriage was solemnized by appellant was valid or not? It was
held that the second marriage is not proved unless the essential ceremonies
required for the solemnization of marriage are proved to have performed.
In the case of Ram Singh V. R.Susila Bai And Anr
. The court upheld the
judgement of Bhauro Shankar Lokhande’s case and gave the accused the benefit of
doubt that marriage is valid until the performance of two essential ceremonies
that is invocation before sacred fire and saptapadi.
The case Piya Bala Ghosh v. Suresh Chandra Ghosh
 that Homa and
Saptapadi are the two essential rites of marriage , if it is not proved or
performed then it is not consider as valid marriage.
The concept of marriage as a mere civil institution or social contract is
entirely foreign to the Hindu mind. Manu holds that a man without marriage
cannot fully develop his her personality and must be regarded incomplete and
imperfect. To be mothers are women created and to be fathers are men. Manu says
that an unmarried person will never get peace after his death. The Mahabharata
makes us believe that if an unmarried girl wants to go to heaven she cannot do
so because she has not seen married life.
The Hindu marriage is additionally viewed as ceremony in another sense. A Hindu
male experiences the exhibition of a few holy observances over a mind-blowing
span. These start with the laying of hatching and end with the incineration of
his body. In the middle of laying embryo (Garbhadhana) and incineration (Antyesthi)
lie a few sanskaras (ceremonies) and marriage happens to be the most huge and
fundamental among them. Additionally , marriage is supposed to be basic for
women since that is the main ceremony performed by them.
Hindu marriage is considered to be so sacred ,it is believed that once marriage
is complete by performing proper rites and ceremonies, the marriage can not be
dissolved at any cost and even after death their soul remains united. Husband
and wife are considered to be one soul. For this reason the gotra of the wife is
merged with the status of husband. They can not dissolve their marriage at their
Even it is also believed that the tie of husband and wife continues for their
seven birth. Marriage is an association both over earth and beyond earth,
productive of full partnership with divine rights. Marriage can only save people
from going to hell that is narak. In the case of Tikait v. Basant
was held that marriage is a sacrament and an a indissoluble union of flesh and
blood which continues even after death.
The case Shivonandh v. Bhagawanthuma
 it was held that marriage is
binding and can not be separated because saptapadi or the rites which takes
place in front of sacred fire is a religious tie which can not be separated and
the marriage among Hindus has three main characteristic and those are:- It is a
permanent union , It is an eternal union and It was a holy and sacrosanct union.
In the case of Manmohini v. Basant Kumar
 that Hindu marriage is more
of a sacrament than a contract. Delhi High court held that Hindu marriage is a
sacrament and not a contract that can be entered into by execution of deed.
Marriage As A Contract
The modern concept of marriage as a contract is an outcome of industrial
revolution , of its lofty ideals of liberty and equality. The greatest
contribution of the industrial revolution is the emergence of the concept that
all human and social relations must be based on the free violation of
If human and social relations do not emerge out of ‘status’ and are based on the
free violation of individuals. If human and social relations do not emerge out
of ‘status’ and are relationship that man has known , i.e., the marriage , too,
must be squarely based on the free violation of individuals. Thus, marriage came
to be considered as contractual union.
Section 5 clause (ii) and (iii) of Hindu marriage Act content the pertinent
provisions to deter mine Hindu marriage act as a contract.
Conditions for a Hindu marriage:
- A marriage may be solemnized between any two Hindus, if the following
conditions are fulfilled, namely:
- At the time of the marriage, neither party:
- is incapable of giving a valid consent to it in consequence of
unsoundness of mind; or
- though capable of giving a valid consent, has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and
the procreation of children; or
- has been subject to recurrent attacks of insanity
- The bridegroom has completed the age of [twenty-one years] and the
bride, the age of [eighteen years] at the time of the marriage;
Section 5 (ii) of Hindu marriage Act says that valid consent should be given by
both the parties and should be in sound mind, and clause (iii) which deals with
the age of the parties specifically mentions that bride groom should be 21 years
of age and bride should be 18 years of age , this are also the requisite of a
Section 12 of Hindu marriage Act states that in case one of the party or parties
is of unsound mind or minor or there was no valid consent in that case marriage
will be voidable and not void but as per section 11 and 12 of Indian contract
Act states that contract with a minor or who is of unsound mind and not capable
to give valid consent in this case contract becomes void. Hindu marriage Act
does not gives much emphasis or importance to all this point but in case of a
normal contract it plays a vital role.
As Hindu marriage is considered to be a sacrament that’s why consent of the
parties does not have much importance. If marriage takes place with a person who
is a minor or of unsound mind and all the ceremonies and rites are performed
then the consent becomes implied. Here the question arise that if one of the
parities can prove that free consent is not obtained, then nullity of marriage
can be obtained from court of law?
It was decided that no such nullity can be obtained under the Act rather the
marriage will be still valid. But according to Indian Contract Act, contract
with a minor or of unsound mind is considered to be void on first instance and
consent should not be taken by fraud or force but in case of marriage , this all
this becomes voidable and not void.
If we look to the history, Manu says that in Hindu marriage Kanyadana, this
means gift of a lady, should be performed by the father of the lady by giving
her hand and duties to maintain to her husband and it is essential part of a
marriage which is followed since vedic age. It can be considered as gift, thus
it becomes a contract. But there is consideration from only one side , instead
of having it from both the sides.
Additionally Section 13 of Hindu Marriage Act, which deals with divorce
overthrows the idea of marriage as a permanent and eternal union which can not
be dissolved by any cost . There are several ground where both parties can
dissolve their marriages. Even after divorce they can remarry. The Widow
Remarriage Act allows widow to remarry which brakes the concept of eternal
Section 8 of Hindu marriage Act gives the idea of Registration of marriage which
can be said as a form of contract. Previously there was no concept of
registration in Hindu marriage. But as per present rule registration is not
compulsory but state govt. can make it compulsory if they think fit. Even state
have the power to impose fine for not registering.
‘In the famous case of Seema V. Ashwini Kumar
 , the Hon’ble Supreme
Court held that registration should be made compulsory by state govt. for all
citizen irrespective of caste, religion, sex to check or control bigamy , child
marriage, forceful marriage, to save the time of the court in determining
whether the marriage is solemnized or not properly.’
Some instances where Hindu marriage was declared as contract:
In the case Purshotamdas v. Puroshotamdas
 it was held that in case of
Hindu marriage the consent of the parents in the behalf of the parties is
considered to be valid.
In the case of Bhagwati Saran Singh V. Parmeshwari Nandar Singh
was held that Hindu marriage is not only a sacrament but also a contract.
In the case of Muthuswami V. Masilamani
 it was held that marriage is
undoubtedly a contract entered into for consideration with co-relative rights
In the case of Dhanjit Vadra v. Beena Vadra
 it was held that Section
13-B radically altered the legal basis of a Hindu marriage by treating it as
ordinary form of contract which competent parties can enter into and put an end
to like any other contract by mutual consent.
Most importantly the case Anjana Desi V. Ghose
 the court held that
suits relating to marriage deal with that which in the eye of the Law must be
treated as a civil contract, and important civil rights arise out of that
Hindu marriage can be considered sacramental because it have the provisions like
contract but the marriage institutions does not follow it strictly.
And also lacks the basic requisite of valid contract that is:
Proposal , acceptance and consideration and addition to this there are few
provision which are not exactly as per the provisions of contract.
We have looked into the perspective of both marriage as a Sacrament and marriage
as a contract. In sacramental character there are certain rituals which are
mandatory for marriage and vedas and shastras also considered that marriage is a
sacramental union. But gradually as society develop the concept of contract
evolved and some features was also included in marriage . Some provision in
Hindu marriage act gives the idea that marriage is also a contract.
But those are not exactly same there is some deviation which we have seen in
marriage as a contract. It can not be said that marriage is a pure contract or
pure sacrament rather Hindu marriage can be considered as a mixture of sacrament
and contract as it contains the perspectives from both the sides.
- 6 Bengal Law Reporter, 243
- 2006(2) SCC 578
- Pooja, Concept Of Hindu Marriage: Whether Sacramental Or Contractual
Vol.3 of International Journal of Legal Research and Studies 113(2018)
- 21 Bom 23
- 1942 ILR ALL 518
- AIR 1990 Del.146 at 151
- Dr. Paras Diwan and Peeyushi Diwan, Modern Hindu Law 66 ( Allahabad Law
Agency, Faridabad, 24th edn., 2020)
- The Hindu Marriage Act, 1955,(Act 25 of 1955) s. 5
- (1901) ILR 28 Cal 751
- AIR1962 Mad.400
- (1901) ILR 28 Cal 751
- Nitisha, Hindu Marriage as a Religious Sacrament, Your Article Library ,
available at https://www.yourarticlelibrary.com/marriage/hindu-marriage-as-a-religious-sacrament/47463.
(last visited on 5th march 2021)
- AIR 1965 SC 1564
- AIR 1970 Mys 201.
- (1971) SCR (3) 961
- The Hindu Marriage Act, 1955, (Act 25 of 1955), s. 7.
- 1966 SCR (3) 242.