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Hindu Marriage Is A Contract Or A Religious Sacrament?

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 attain moksha.

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.

Introduction
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[1] 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 householder.

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

  1. A Hindu Marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
  2. 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 [1].

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[1] , 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.[2] 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[3] 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.[1]

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[2].

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 own will.

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[1] it 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[2] 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[3] 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 individuals.

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.[1]

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:

  1. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
     
  2. At the time of the marriage, neither party:
    1. is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
    2. 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
    3. has been subject to recurrent attacks of insanity
  3. The bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage;[2]

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 contract.

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 union.

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[1] , 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.’[2]

Some instances where Hindu marriage was declared as contract:
In the case Purshotamdas v. Puroshotamdas [3] 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 [4], it was held that Hindu marriage is not only a sacrament but also a contract.

In the case of Muthuswami V. Masilamani [5] it was held that marriage is undoubtedly a contract entered into for consideration with co-relative rights and duties.

In the case of Dhanjit Vadra v. Beena Vadra [6] 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[1] 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 contract.

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.

Conclusion
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.

End-Notes:
  1. 6 Bengal Law Reporter, 243
  2. 2006(2) SCC 578
  3. Pooja, Concept Of Hindu Marriage: Whether Sacramental Or Contractual Vol.3 of International Journal of Legal Research and Studies 113(2018)
  4. 21 Bom 23
  5. 1942 ILR ALL 518
  6. 33Mad.32
  7. AIR 1990 Del.146 at 151
  8. Dr. Paras Diwan and Peeyushi Diwan, Modern Hindu Law 66 ( Allahabad Law Agency, Faridabad, 24th edn., 2020)
  9. The Hindu Marriage Act, 1955,(Act 25 of 1955) s. 5
  10. (1901) ILR 28 Cal 751
  11. AIR1962 Mad.400
  12. (1901) ILR 28 Cal 751
  13. 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)
  14. Ibid
  15. AIR 1965 SC 1564
  16. AIR 1970 Mys 201.
  17. (1971) SCR (3) 961
  18. The Hindu Marriage Act, 1955, (Act 25 of 1955), s. 7.
  19. 1966 SCR (3) 242.

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