CHAPTER -H

CONCEPT OF MARRIAGE UNDER

ANCIENT INDIAN LAW
 CHAPTER - II

Concept Of Marriage Under Ancient

Indian Law

ILI. Introduction :
According to Shastra marriage is a Samskar for women.

It was rigidly hedged about elaborate rule of prohibited

degree, which though not observed exactly in same
manner everytime and everywhere, but were regarded as
mandatory.1

For the girl it was an essential samskar and treated as essential

condition so that she may acquire a status of patni and grahlaxmi. It is
the force of mantras which creates patnitva (wife wood) in the girl.

Hindu Law though emphasized and preferred a marriage in which

the bride properly adorned with ornaments is given to a suitable
bridegroom before the nuptial fire. However, the deviation in the forms
of marriage is indicative of the recognition of eight kinds of marriage -
(i) Brahma, (ii) Daiva, (iii) Arsha, (iv) Prajapati, (v) Gandharva,
(vi) Rakshasa, (vii) Paisacha, (viii) Ashur.

Hence the attitude towards marriage is in a constant change right

from ancient time to this stage. The concept of marriage therefore is in a
constant flux.

1. K.V. Rangaswami Aiyangar, 1952, Some Aspect of Hindu view of

Life According to Dharmashastra. Baroda, Ch. 5.
 7

Before we discuss the present state of marriage it become

necessary to have a perusal of 'Concept of Marriage' in the past. If we
go through the history of India in whole, it will reveal that the marriage
had different notions and concept in different periods depending upon
the circumstances and atmosphere prevailing during that period. As the
discussion below will reveal that the marriage during the age of Vedic
period, Upanishad and Sutras period, Later Smriti and Epics period,
Digests and Commentaries period, were governed by Hindu religion in
toto. But in period of Mughul Empire, it had some impact of Muslim
culture and religion. From this period, two different sets of marriages
had been introduced. One was for Hindu society and another for Muslim
people. With the advent of British rules, it had again added by two
different sets of marriages i.e. Christian and Parsi Marriages. From
British period, the law had started intervening in the concept of
marriage. The concept of marriage had been much shaken in this period
by way of introducing dissoluble element in the marriage which was no
doubt introduced in some earlier period but it had taken its Ml fledge
shape in this period. The people had also compelled to change their
attitudes towards marriage and spouse by the aforesaid changes in its
concept.

II.II. Concept of Marriage During Vedie Period :

The main objective of marriage was fulfillment of the desire for

offspring and male offspring in particular. Abundance of sons was
constantly prayed for along with cattle and land but no desire for
daughter was expressed. This desire for a son was natural in a
patriarchal organization of society.
 8

The son alone could perform the funeral rites for the
father and continue the line. Sonlessness was as much
deplored as poverty.2

The frequent mention of unmarried girls like Ghosa were grew

up in the houses of their parents3, the references to the ornaments worn
by maidens at festival occasions in order to win lovers4, to a youth's'
courtship of the maiden he loves , to the lover's gifts , to their mutual
love , to spell by which a lover hopes to lull the whole household to
sleep while he visited his beloved — all this evidence speaks in favour of
the custom of girls normally marrying long after they had reached
puberty. The marriage ceremony also supports this view, as it is
presumed to be immediately followed by consummation.9

The proper ceremonies were started by the bridegroom

grasping the hand of the bride and led her round the fire10.

These two acts constitute the essence of the marriage and the
bridegroom became the husband who took the bride by the hand
(hasta-grabha)11. The bridegroom next took the bride home in car, in a
wedding procession.12.

2. Rigveda. III. 16.5.

3. Rigveda. I. 117.7; X. 39.3, 40.5.
4. Rigveda. I. 123.11; XII.2.5.
5. Rigveda. 1.115.2.
6. Rigveda. 1.117.18.
7. Rigveda. 1.167.3; IX.32.5.
8. Rigveda. VII.55.5.8.
9. Rigveda. X.85.29.
10. Rigveda. X.85.36, 38.
11. Rigveda. X. 18.8.
12. Rigveda. X.85.7,8,10,24-27,42.
 9

There seems to have been considerable freedom on the part of

young persons concerned in the selection of a wife or husband, as they
generally married at a mature age. There is no clear evidence that the
consent of the parent or brother was essential.

The restrictions in the form of prohibition among Aryans

was. only the marriage of brother and sister, father and
daughter13.

A hymn of Rigveda showed marriage ritual14. The bridegroom

and party proceed to the bride's house15, where the well-adorned bride
remain ready16 to join the marriage-feast.

Rigveda describes the newly married wife as taking up a most

respected position as the mistress of her new household, wielding
authority over the husband's father, brother and unmarried sister . There
are also hymns in Rigveda which point out the practice of requiring a
childless widow to cohabit with her brother-in-law until the birth of a
son. This niyoga is a kind of short-term levirate. These passages are
clear evidence that the remarriage of widow was permitted in certain
circumstances.19

Gradually, some changes in the concept of marriage started

taking place during the Vedic period itself. The major change can be

13. Rigveda. X. 10.

14. Rigveda. X.85
15. Rigveda. X.17.1
16. Rigveda. IV.58.9.
17. Rigveda. X.85.49.
18. Rigveda. X.40.2 and Rigveda. X 18.7.
19. See Rigveda. 1.124.7.
 10

seen in regard restriction on marriage, it was banned within the circle of

agnates and cognates, but the Satapatha Brahmana allows marriages
within the third or fourth degree on either side. Though marriage
within the gotra was not explicitly prohibited, marriage outside the
gotra must have been more frequent. Brothers and sisters were not to
marry before their elder brother or sister so the order of birth was
generally respected.

The remarriage of widow was allowed.21 Polygamy undoubtedly

prevailed. The first wife claimed all the privileges of a wife, in the
religious and social life of the couple, but the two wives of
Yajnavalkya were apparently on a footing of equality. Conjugal
morality generally stood on a high level, thus the infidelity of the wife
was certainly not unknown.

The sale of a daughter was known, but viewed with disfavour.

Dowries were generally given. The various types of marriage had not
been formulated as yet. The elements of the marriage ceremony
described in the marriage hymn of the Rigveda are reproduced without
much change in the corresponding Atharvaveda hymn, which adds only
one important feature, which later became essential, namely the

20. Satapatha Brahmana. 1.8.3.6.

21. Atharvaveda. IX.5, 27, 28.
22. In the Maitrayani Samita and the Satapatha and the Taittiriya
Brahmanas, the rituals of the Varunapraghasa is prescribed in
which the wife of sacrificer is questioned as regards her lovers, is
evident a rite to expiate unchastity on the part of wife. The son of a
Kumariputra (son of maiden) is mentioned in the Vajasameyi
Samhita which refers also to illicit unions of sudras and aryas,
both male and female.
 11

bridegroom causing the bride to mount a stone before grasping her hand.
The poetic picture of an ideal family life in which the newly wedded
wife becomes the mistress of her husband's home, as depicted in the
Rigveda, holds true for the texts of this period also. The term patni
regularly applied to the wife in the Brahmanas is indicative of her equal
share in the social and religious side of the husband's life, while the term
jaya refers only to her conjugal position. Gradually, however, she lost
this important position, as a priest was more and more employed to offer
the oblations in certain ceremonies instead of the wife.

This deterioration of her status and dignity went so far as

to result in woman being classed with dice and wine, as
one of three chief evils23. On the whole judging from
references in the Taittiriya24 and the Kathaka Samhitas,
it appears clearly that woman, who held a high position in
the age of the Rigveda, had fallen in evil days in this age.
She was never allowed to take part in political life, by
attending the assembly, like men.25

The Athravaveda merely refers to the ancient practice of sati

and the Rigveda does not continue it. So it appears that this custom was
not very much prevalent during the Vedic age.

II.III. Attitude Towards Marriage in the Age of

Upanishada and Sutras :
• The change in the concept of marriage was apparent in this
period. The causes of the change were social as well as religious.

23. Maitrayani Samhita. III.6.3.

24. Taittiriya Samhita. VI.5.8.2.
25. Aittareya Brahmana. III. 24.7. says a good woman is one who does
not talk back.
26. Atharavaveda. XXIII.3.1.
 12

The anuloma system of marriage prevailed in this

period.27 The low status of the sudra wife is reflected in
the directions given in the Srauta-Sutras that a sacrifieer
is allowed to cohabit with a savarna wife (of the same
caste as his own) but not with the sudra one. The rule of
Panini regarding Abhivandana (salutation as a mark of
respect to elderly persons in a house) shows that the
presence of wives of the lower castes (especially the
sudra one) in a family and the consequent inevitable
association of higher caste ladies with them in the house
had brought down the general level of womanly culture
and led to a deterioration in their social status. Eight forms
of marriages were mentioned in the religious texts of this
period.

The prevalence of polygamy is implied in the anuloma system of

marriage. The element of bride price (sulka) are discernible in the
Asura form of the marriage, where the father of the bride was glanned
with money, and there were hints of dowry in the Brahma and Daiva
forms of marriage.

The prayers and rites of the ceremony clearly indicate that

matrimony was a holy band, and not a contract and that progeny
(especially male progeny) was the goal of marriage.

II.IV. Change in Position of Female :

The woman, however, held an honoured position in the

household. That a life of merriment, song and dance was not denied to
her is seen from certain sacraments in which women are asked to dance
and sing. The presence of widows were not particularly desired in
marriage and other sacraments. The Gobhila Grihya Sutra allows the

27. Anuloma marriage is a marriage between a male of a higher and

female of a lower caste.
 13

option that the wife may offer the morning and evening oblations in
place of the husband, because "the wife is as it were the house".

Since the dharmasutras treat of the widow's right in the property

of her husband, the possibility of the general prevalence of sati was
ruled out. The Vasistha Dharmasutras speaks of the marriage of
widows under certain circumstances. So the remarriage of widows was
not as strictly prohibited as it appears to have been in later days. The
custom of niyoga or appointment of it for widows was recognized by
the dharmasutras which gives detailed rules of it. Some of the
dharmasutras, however, condemn it.

Baudhayana Dharmasutra28 quotes the injunction that a barren

wife should be abandoned in the tenth year, one who bears daughter
(only) in the twelfth, one whose children (all) die in the fifteen, but she
who is quarrelsome without delay. So it is first time when the
abandonment of wife was permitted but not divorce as such. There is
only one circumstances when complete abandonment or divorce was
permitted without delay when wife is quarrelsome. However, Vasistha29
and Apasthamba30 had adopted a favourable attitude towards the wife.

There is general agreement among the dharmasutras that a

grown up maiden if not given in marriage in proper time by her father,
may choose her own husband after waiting three years (or months). The
later texts propounded the theory that male are master of women, their
father protects them in childhood, their husband in youth and their sons
in old age.

28. Baud. II.2.4.6.

29. Vasistha. XXVII.2.3.
30. Apasthamba. 1.10.28.19.
 14

II.V. Attitude Towards Marriage During the Epic's

Period :
During the Epic period, major changes took place in the concept
of marriage, which were responsible for the change in attitude of parties
to the marriage. The factor played important role for these changes were
religious texts. The marriage between members of the same caste was
preferred. However, the marriage with a girl of the same gotra or
pravara, and also within a certain degree of sapinda relationship, was
prohibited. On the whole they forbid marriage relation between agnate
and cognate upto a certain limit.

II.VI. Chastity of Woman Emphasized :

The lowering of the marriageable age must have affected the

general education and culture of women in an adverse way. Extreme
emphasis was now laid on the physical chastity of woman and her
unquestioned obedience to husband. Several causes induced society to
subscribed lower age of bride in marriage. In the first place there was a
reaction produced in society by maidens joining Budhist and Jain orders
without a genuine spiritual urge and it was a free and spontaneous
without permission of their elders. Some of these were unable to live up
to their high ideals and public furiously commented their lapses.
Secondly, the marriage of girls came to be compared to upanayana of
boys at about this time. If the upanyana was obligatory for boys,
marriage which was its counter part, ought to be absolutely binding on
girls. Thirdly, in epic literature expressed the opinion that there are more
pitfalls in the path of unmarried woman than those in the way of an
unmarried man.
 15

It was rather a transitional period, and we really find two entirely

different pictures of women reflected in the texts. In one set of verses in
the epic, women described as fickle, quarrelsome, untruthful, she must,
therefore under the control of man for her full life. In other set of verses,
woman is "the glory of the have, the symbol of prosperity to the family,
(the better) half of the husband, his friend, philosopher and guide, and
therefore worthy of all attention and respect. This sort of contradiction
appears in the smriti work like Manu.31

The growing importance attached to physical chastity explains

the gradual discouragement of widow remarriage, divorce and levirate
(niyoga) and encouragement of the system of sati. Kautilya permits
remarriage of a woman whose husband dead, has become an ascetic or
has gone abroad. However, Manu33 and Yajnavalkya34 forbade the
remarriage of widow. Parasara smriti and Agnipurana lays down that
a woman can remarry even during the lifetime of her husband if he is
lost (i.e. unheard of), has become an ascetic, is impotent or is an out
caste.

II.VII. Divorce Recognised :

The divorce was fully recognized in Epic's period. Kautilya

provides grounds of divorce to men and women on equal footing
whereas Manu made disfavour in respect to women. Kautilya provides
the grounds of divorce to wife that if husband is of bad character, or is

31. Manu. VIII.389 and VIII. 299.

32 . Kautilya Arthashastra. at 201.
33. ManuN. 153-7.
34. Yaj. 1.75.
 16

long gone abroad, or has become a traitor to his king or likely to

endanger the life of his wife or fallen from his caste or has lost virility.

Divorce on the ground of ill feeling was also possible by

mutual consent. Manu propounded the theory that wife is
not released from her marital obligation even she is sold or
repudiated by the husband35.

Whereas Manu made a long list of the grounds of divorce for the
wife by husband but not for husband by wife. It is doubtful whether
Narda is in favour of divorce but he asked not show love to a barren
woman, or to a woman who is mother of only female child or whose
conduct is blamable or who constantly contradicting him.36

The account of the birth of Pandu, Dhritarashtra and

Pandavas, considered along with the injunctions in the
dharmasastras, have no doubt that the system of levirate
(niyoga) was in use though gradually coming into
disfavour. Manu, curiously enough, mentions it with
approval and lays down detailed rule and regulations for
its control in five verses37 but violently condemns it in
next five.38 Yajnavalkya, however, does not condemn it39,
and both Vishnu40 and Narda41 permit it within certain
limits.

The Mahabharata records a few cases of sati. Madri bums

herself on the funeral pyre of her husband Pandu, and the bereaved
wives of Krishna immolate themselves in Indraprastha after his death.

35. Manu. IX.46.

36. Narda. XII.94.
37. Manu. IX.59-63.
38. Manu. IX.64-68.
39. Yaj. 1,68-9.
40. Vishnu. 15.3.
41. Narda. XII.80 ff.
 17

II.VIII. Attitude Towards Marriage During the Age of

Commentaries and Digests :

The caste system was very much established upto this period and
texts laid down a criterion of marriage on the basis of caste.
Medhatithi42 allowed intercaste marriage in between brahmanas with
kshatriya and vaisya woman but only in exceptional circumstances,
while the marriage of a brahmana with a sudra girl was banned.
Naradiya Purana43 declares that a marriage of twice bom men with
girls of other varnas are forbidden in the Kali age. In the case of
marriages in the natural (anuloma) order, the son took the caste of the
mother, and in the case of the marriage in the reverse (pratiloma) order,
he took the caste of father.

Marriage with maternal uncle's daughter was

condemned.44 Among the form of marriage, the
gandharva marriage was condemned and censured.45 The
marriageable age of girl was fixed either eight or six years
and called nagnika.46

The right time of giving away a girl in marriage was in between

her eight years and her attaining puberty. The relative age of bride and
bridegroom was not so fixed as fixed in smriti. (i.e. thirty years old
bridegroom was recommended to marry with bride of 12 years and

42. Medhatithi on Manu. III. 14. Medhatithi says, in the time of

difficulty or in the event of not finding a girl of own varna, girl of
two other varna may be married by brahmana but not girl of
sudra.
43. Naradya Purana. 1.24.13-16.
44. Medhatithi on Manu. II. 18 and Vishvarupa on Yaj. III. 254.
45. Medhatithi on Manu. VIII.366.
46. Medhatithi on Manu. IX.88.
 18

twenty four of bridegroom with bride of 8 to 10 years). But generally it

was accepted in this period that one should marry a girl very much
younger than him. Such being the practice of cultured men.

During this period, the texts47 allowed a girl to choose her

husband without fear of sin when she stayed in her father's
house for three years after attaining puberty. In a case the
bridegroom dies after payment of the nuptial fee, the girl
should be asked to choose her own husband.48

Medhatithi's rule49 relating to the repudiation of girl after her

betrothal reflects his view of the inviolability of the marriage sacrament.
According to him repudiation of a maiden suffering from physical or
mental defects, even after acceptance, is allowed before the performance
of the marriage. Even when girls were given away for a fee, they might
be treated like other commodities only before the marriage and could be
repudiated while a girl who had given up by any forms of marriage,
could not be revoked at all.50 So this thinking was in the line of
Yajnavalkya, When both the parties had necessary qualification, the
betrothal could not be revoked even before the marriage, and even a
defective wife (other than a non-virgin) could not be abandoned after
marriage.

The remarriage of women was allowed in the event of

five calamities, viz. when the husband was lost (i.e.
unheard of), or was dead, or had adopted the life of a

47. Medhatithi on Manu. IX.90-91.

48. Medhatithi on Manu. IX.99.
49. Medhatithi on Manu. IX.72.
50. Medhatithi on Manu. VIII.227.
 19

recluse, or was impotent, or had became an out caste.51

However, Brahma Purana and Medhatithi have
forbidden such marriage.

II.IX. Duties of Wife:

The duty of wife was prescribed that she should be in absolute

obedience and do personal services towards her husband like shampoo
his feet etc.53 Equal right to seek legal remedy against each other was
provided.

The special right of maintenance was provided to wife

even though she was guilty of bad acts. The faithful wife
must not abandoned by the husband if she has committed
any wrong, a warning should be given to bring her to her
senses and not confiscated her belonging. While an
unfaithful wife might be confined in a room when she had
been guilty of a single act of transgression, but if he
repeated the offence, she might be abandoned. The right to
correct the wife was provided to husband by way of
beating her on the back with a rope or split of hampers.54
But Medhatithi had recommended not actual beating but
only a method of putting her on the right path;55 Manu's
rule of repudiating the wife was continued in this period
also56 exception on the point of repudiation of wife who is
harsh in speech. The wife might remarry after waiting of
prescribed period for her husband's return from abroad.

51. Visvarupa on Yaj. 1.63. also sanction remarriage of women though

no longer virgin.
52. Brahma Purana quoted by Apararka on Yaj. 1.68-69; Medhatithi
on Manu VIII.225.
53. Medhatithi on Manu. IX. 1.
54. Matsya Purana. CCXXVII. 153-155.
55. Medhatithi on Manu. VIII.299.
56. Medhatithi on Manu. IX.81.
 20

II.X. Mutual Obligations During Sultanate Period :

On the subject of mutual duties of husband and wife, the authors

of Sultanate period supported the old smriti view. Parasara-
Madhava57 imposed duty on husband to maintain his wife irrespective
of their youth or old age, provided she was good in behaviour.
Grihastharatnakar has imposed heavy punishment to husband for
abandoning his chaste and gentle wife and compelling him to take her
back. Vyavaharavivekoddyota59 is of the view that even wicked wife
should be given maintenance in the shape of bad food. The author has
expressed that if the husband deserting his faithful wife, should be fined
and compel by the king to take her back, failing which the husband
should be made to pay one third of his property if he is rich and what is
sufficient for her maintenance, if he is poor. Madanaparijata imposes a
duty on wife that she should lead a life of studied, dependence, of
sobriety and above all of absolute devotion and loyalty to her husband
and adopt a life of ascetic restraint during her husband's absence abroad'.
Since the wife, undertaking vows and so forth, so if she disregards the
service to her husband she has to perform a penance at his dictation.

The Parasara Madhava60 has relaxed the old rule of super

session of the wife on moral and physical defect stating that out of these
two kinds of supersession, the one meant for fulfilling the law in shape
of begetting a legitimate son is justified whereas the gratifying sexual

57. Medhatithi on Manu. I. 506.

58. Grihasatharatnakar. 86.
59. Vyavaharavivekoddyota. 318.
60. Parasara Madhava. 1.508.
 21

passion needs no such occasion. In the latter case, the husband was
liable to appropriate wife, failure of which he may compel to pay one
third of his property or to maintain her fooding and clothing. The
superseding wife was also entitled to get as much as stridhana, which a
newly married wife get if she has not given stridhana before. In
contrary cases, she should get half.

On the point of abandonment of wife somewhere strict and

somewhere liberal attitude had been taken in period of Sultnate. The
Parasara-Madhava61 prohibited the abandonment of women on the
ground of sexual connection with men of low caste even though smritis
texts were in favour of abandonment of such wife. Whereas, in other
hand this text forbade social intercourse with a wife who had been
polluted by rape even after performance of penance even though
previous approach was that after performing penance such woman had
become pure. The same text referred that a couple of despised caste and
incapable of performing ceremony of marriage, incurred no blame but
mutual separation on account of disagreement62 while a wife who had
taken in accordance with ceremony of marriage could be abandoned
only for unchastity, for wonton character and serious crimes. However,
if she had been guilty of hating her kinsmen, to the point of applying
poison or black magic or procuring abortion, made the woman liable to
cut off from conversation.63 This act was made incapable of expiation
and guilty women must certainly be abandoned.

61. Parasara Madhava. 1.123-27.

62. Parasara Madhava. 11.324-25.
63. Parasara Madhava. III. 32.
 22

On the treatment of abandoned women, the various behaviour

had laid down, like, if women fallen with equal caste of man could be
taken back after performance of penance.64 Where as some texts had
expressed the view that neither death nor mutilation was to be lot of the
abandoned women.65 An abandoned wife on the ground of specific
crimes should be denied conjugal relations and participation in
ceremonies prescribed by vedic and smriti rules as well as conversation,
while one abandoned for disease should be denied conjugal relation
alone.66 A brahman women guilty of proved unchastity resulting
pregnancy shall be banished to a foreign land. A brahmana woman,
for suspected unchastity could not allowed to return back. A women,
angrily leaving her house on being assaulted by her guardians for her
fault might return after observing penance, but a brahmana women
returning home after three days of grace was incapable of penance and
was to be abandoned and the house where she was given shelter become
impure like that of chandalas.

II.XI. Attitude Towards Marriage During the Period of

Mughul Empire :
This period deals from 1526 to 1707 A.D. during which the
Mughuls gradually established their authority over nearly the whole
India. This is the brightest period in the history of Muslim rule in India,
which began in the 13th century A.D. and covers a period of nearly six

64. Madan Parijata. 968.

65. Vivadaratnakar. 426 and Parasara Madhava. 11.325.
66. Parasara Madhava. 11324-25.
67. Parasara Madhava. III. 284-90.
 23

hundred years in north and five hundred years in south India. So far as
the Hindus were concerned, there was no improvement either in their
material and moral conditions or their relations with the Muslims. With
the sole exception of Akbar, who sought to conciliate the Hindu by
removing some of evil to which they were subjected, almost all the other
Mughul emperors were notorious for their religious bigotry. The
Muslim law which imposed many disabilities and indignities upon the
Hindus, and thereby definitely gave them an inferior social and political
status, as compared to the Muslims, was followed by these Mughul
emperors. The climax was reached during the reign of Aurangzib, who
deliberately pursued the policy of destroying and desecrating Hindu
culture. No doubt, the institution of marriage had also been effected by
these Mughul empires. Since the Muslim reign was very well
established in this period and Muslim and Hindus both were living
together but had their own separate culture, so the concept of marriage
in these communities were distinct. Since, the Mughul emperor were
Hanafis, so the qadis appointed by them administered the Hanaf! sect
of law.68

In Muslim law, marriage known as "Nikah" is a contract and not

a sacrament. It has three aspects namely, First legal aspect i.e. there can
be no marriage without consent, it can be dissolve by act of parties as
well as by operation of law and the terms of marriage can be altered to
suit individual cases. Second is the social aspect, i.e. Islamic law gives a
high social status to woman after marriage, restriction are placed upon

68. A.A.A. Fazee, 1964, Outline of Mohammadan Law 3rd ed.,

(London, Oxford University Press), at 48.
 24

unlimited polygamy of pre-Islamic periods and a limited polygamy upto

the four wives at a time is allowed and the Prophet, both by example and
precept encourage the status of marriage and Thirdly, religious aspect;
the Quranic injunction regard the marriage as basis of society. It is a
contract, but it has also a sacred covenant. Temporary marriages are
forbidden. Marriage as an institution leads to the uplift of man and is
means for the continuance of human race. This aspect of the Muslim
marriage were of very often over look at the time Mughul Emperors.
The essentials of a valid marriage was the same as today.69

Early marriages were in vogue in both the communities. It is,

however, almost certain that the actual consummation did not take place
before the age of puberty. Inter-caste marriages were out of fashion
among Hindus. No such restrictions existed among the Muslim who has
complete freedom of choice barring a few closer relations. Akbar,
however, did not like marriage between near and dear ones. The
marriage rites and ceremonies of Hindus and Muslims were observed in
HA

much the same manner as today. Dowry system seems to have been
quite harsh and many a poor father had not the means to procure
wedding outfits for their daughters. Huge dowries have been referred by
Muhammad Jayasi, Tulsi Das and Surdas.71 Mughul Kings, too, used to
accept huge dowries. Akbar was no doubt against this custom but he had
not made any effort to check this evil practice.

69. See, for detail. Infra Chapter IV.

70. See, for detail. Infra Chapter III & Chapter IV.
71. See, Jayasi's Padumavati (Urdu) at 148-49; Tulsidas, Ram Charitra
Manas, at 159.
 25

With the advent of Islam new social forces affected Hindu

society. Strict veiling of women was the common practice among the
Muhammadans in their native lands. Naturally, in a foreign country like
India, greater stress was laid upon it. Even a liberal King like Akbar had
to issue the strict order for observance of purdah. Hindus adopted
purdah as a protective measure to save the honour of their women folk
and to maintain the purity of their social order. The tendency to imitate
the ruling class was another factor which operated in favour of
introducing purdah among Hindu families. Seclusion thus became a
sign of respect and was strictly observed among the high-class families
of both the communities. Eunuchs were freely employed as a means of
communication between male and female members of Royal or noble's
family. Even the male doctors were not allowed to face the ladies of
noble and princely families. The ladies would stir out of their houses
very rarely and that, too in covered palanquins, surrounded on all sides
by servants and eunuchs.

Purdah was, however, less rigorously observed in Rajput

families. There the woman, trained in all the arts of warfare, would
frequently take part in hunting, parties and other expeditions. Baring
notable Muslim families there, South India did not adopt purdah. No
such coercive purdah system was observed among the Hindu, middle
class, and certainly not among the Hindu masses. Hindu wives could
move out of doors with little or no restriction. It was enough to have a
sheet or dupatta to cover their heads. Wives of the lower stratum of the
society such as peasant and working classes were entirely free from the
 26

bondage of purdah. They were expected to help their husbands in all

"external pursuits and internal economy.

The customs in those days did not allow, for whatever reasons,
girls to remain in the parent's home for more than 6 to 8 years after their
birth. A father who could get his daughter married in her ninth year was
considered lucky and worthy of the favours of God.72 The rigidity of the
custom, together with the celebration of marriage at a very tender age,
left no room, whatsoever, for either the bride or bridegroom to have time
to think of a mate of their own choice. The custom left it solely to the
discretion of their parents or nearest relations and friends to arrange the
match. It seems that both the factors i.e. purdah and early marriage
made the wife as less useful in household activities for the husband. The
tender age of the new wedded untrained wife was the factor which was
responsible for deterioration of her status in the house of her husband.
She was usually in habit of committing fault which became a ground for
mother-in-law to showed her down and asserts authority over her. The
bride would become a kind of apprentice trainee under the guidance and
authority of her mother-in-law.

Dowry was demanded and sometimes parents disregarded the

suitability of the match and cared primarily for a rich dowry. In some
caste and localities the bridegroom had to pay money to the bride's
guardians.73 Some times for the sake of wealth, a young man would

72. Mukundarama. Author of the poem 'Chand? composed in the 16th

century, translated into English by J.N. Das Gupta, "Bengal in the
16th Century".
73. N.V. Manucci, 1957, Memories of the Mogul Court, trans. by W.
Irvine, ed. Michael, (London, Edwardes). Vol.III. at 56.
 27

marry a woman older than himself. The evil grew so much that Akbar
issued orders that if a woman "happened to be older by 12 years than her
husband, the marriage should be considered as illegal and annulled.74

Akbar tried to bring home to the people that the consent of the
bride and bridegroom as well as the permission of the parents was
essential before the confirmation of the engagement which had gone in
vein.75 There seems to have been greater liberty at least to girls
belonging to high class Rajputa families to choose a husband.
Sometimes a romantic lady would fix the price of her hand.76

Monogamy seems to have been the rule among the lower stratum
of society in both the communities during the Mughul period. Inspite of
the decision of the ulema in the Ibadat Khana, that a man might marry
any number of wives of mut'a but only four by nikah.

Akbar had issued definite orders that a man of ordinary

means should not possess more than one wife unless the
mtj

first proved to be barren.

He considered it highly injurious to a man's health to keep more

than one wife. Polygamy was the privilege of rich Muhammadans most
of whom kept 3 or 4 wives at a time. Hindus, with the exception of a

74. Badauni. II. at 39; Tr. II. at 405.

75. Shaik Abu-l-Fazal, 1873, Ain-i-Akbari, Ain, I at 227.
76. Tarabai, the daughter of Rao Surthan, promised to marry the youth
who would recover her father's domain Todah from the Pathans.
Jaimal, the brother of Prithvi Raj, won her. Karam Devi, the
beautiful daughter of the Mohil chieftain, renounced her betrothal
with the heir of the Rao of Mandor and choose to be the bride of
Slaw, heir of Pugal, whose admiration she had won.
77. Badauni. Vol. II. at 356; Tr. II. at 367, also Shaik Abu-l-fazal,
op.cit., at 211.
 28

small number of princes and very wealthy persons, strictly restricted

themselves to monogamy as enjoyed by their social custom. In extreme
case if a wife proved to barren, they had the liberty to marry another
with the consent of the Brahmans.

In the early part of her married life, the women (i.e brides) were
under the full command of mother-in-law. If she failed to come up to her
standard, she might be divorced in Muhammadan family, and in Hindu
home her life would became miserable. But when grown up and away
from the domineering influence of her mother-in-law, she had a large
share in the management of her household. She was to prove herself a
devoted wife who would not take meal until her husband had dined.78
The position of the wife with regard to her husband was that of
subordination, at least as long as mutual relations remained cordial. But
with all this, the ladies belonging to high and respectable old families,
especially, Rajaputanis, were reluctant to compromise when their self-
respect was at stake. It appears most of the Hindus led a happy domestic
life. The wife adored her husband with passionate reverence and in
return her husband rendered her all tenderness and protection.

Divorce or remarriage, common among Muslim, were prohibited

for Hindu wife. Widow remarriage except for the lower caste people had
completely disappeared in Hindu society during the medieval age. Sati
was the prevalent practice in spite of the effort of the Mughul to check
it. Even betrothed girls had to commit sati on the funeral pyre of their
would be husbands. Those widow who would not bum themselves with
their husbands were harshly treated by the society, they were not
allowed to wear their hair long or put on their ornaments. These

78. Manucci. op.cit., at 155.

 29

unfortunate widows had to put up with their parents who treated them no
better than ordinary maids, hated and despised by even their family as
•7Q
being afraid of death.

I.XII. Attitude Towards Marriage During the Age of

Maratha Supremacy:
This period deals the attitude towards marriage from the death of
Aurangzib (1707) to the Third Maratha War (1818). It was an eventful
period that witnessed the end of Muslim rule, the rise and fall of the
Maratha Empire and the foundation of British Empire in India. The
period began with political disintegration leading to struggle for power,
not only among the Indian States but also between the French and the
British trading companies in India.

The most striking feature of Hindu society was the institution of

caste and caste rules were strictly observed in matters of marriage, diet,
inter-dinning etc. Family system was mainly patriarchal in character,
except in Malabar and among some primitive communities in
comparatively backward areas. So the senior most member of a family
was its head and the woman (wife or daughter-in-law or mother) were
normally subject to the will of their master.

Purdah or seclusion of women in houses was observed in Hindu

and Muslim families, women of poor families who had to go out to work
for their livelihood, could not observe it. In South India, it was not
• on
practiced there. Marriage was a universal social practice except on the

79. Ibid.
80. Dubois, 1943, Hindu Manners, Customs and Ceremonies, 3rd ed.,
at 313.
 30

part of those who observed celibacy on religious grounds. To arrange for

marriage of sons and daughters was considered to be a duty of the
parents. In Hindu society, marriage was continuously treated as
indissoluble and sacred band for a happy conjugal life and not a
contractual relation for material comforts. It was cerebrated with
solemnity by offering prayers and invocations to Gods. A duly married
wife could not be discarded except on the charge of adultery. Marriage
of both boys and girls were continued to be celebrated at an early age,
although consummation did not take place till they attained maturity.

Good wives served as "ministering angels" at home. But if

necessary some of them could stand by the sides of men "in the word's
broad field" and "in the bivouac of life". The wives of both brahmin
and sudra marathas had great influence when their husband became
princes or chiefs, and mixed not only their power over individuals but
sometimes in the affairs of the state. If they married to men of rank, they
had usually a distinct provision and estate of their own, enjoyed as much
liberty as they can desire; seldom, if ever, wore a veil and gave feasts
and entertainment's to their friends on births and marriage and on
particular anniversaries.81

Some of the Muslim ladies also participated in political affairs.

Thus, Dardanah Begum, wife of Murshid Quli, Governor of Orissa
exhorted her husband to fight against "Ali Vardi" when the latter
proceeded to subjugate Orissa. Zebunnisa, Begum of Nawab Shuja-ud-
din, assisted her husband in matter of administration.

81. Two highly significant illustrations of such a role on the part of

women in eighteen century are those of Rani Bhavani of Nator and
Shri Devi Ahalya Bai, who ruled over Indore from 1766 to 1795.
 31

There was, ordinarily, no polygamy. All Hindus acknowledged

that it is a great mistake for a man to have two wives at a time.82
Polygamy was tolerated amongst persons of high rank such as Raj aha,
$

Princes. Polygamy had also become a regular and notorious practice

among those who were regarded as Kulins in Bengal and among some
of the brahmins of Mithila. Among the Kulins family pedigree was like
a marketable commodity. Sometimes out of financial consideration a
girl of full-blown youth was married to a boy of 12 or 13 and a young
girl was married to an old man.

The Kulins seldom lived with their wives who spent their
days in acute mental agony in their father's or brother's
house. In the year 1805, 3 the Raja of Darbhanga, who was
acknowledged as the undisputed head of the Mithila
brahmins "prohibited any man in his State from taking
more than five wives; formerly it was usual for men to
take a good many.84 Raja Ram Mohan Roy, the first
fearless champion of women's right in modem India, made
a strong protest against "horrible polygamy" and wrote
against Kulinism and polygamy.

Dowry system was not compulsory or prevalent among those

who were not Kulins. Polyandry was exceptionally practiced in Indian
society.85

Remarriage of widows in high Hindu families was not

permissible. But in 1756 Raja Rajballabh of Dacca tried to remarry his

82. Ward, A view of History, Literature and Religion of the Hindoos,

Vol. I., at 133.
83. Dubois, op.cit., at 207-208.
84. Buchanan, Purnia Report, at 260.
85. See, for detail, Buchanan, A Journey from Madras etc., Vol. II, at
416; Dubois, op. cit., at 313.
 32

widowed daughter and referred the matter to the learned Pandits of

Dravida, Telanga, Benaras, Mithila and of Some other places. They
expressed an unanimous opinion that remarriage of widow could be
possible. But Raja Raj Ballabh's effort went in vein.

One shocking practice rampant in certain part of India was sati.

The effort of some Mughul emperor proved to be fruitless. During 18th
century it was more widely prevalent in some part of North India as the
Bank of Ganga and in Rajasthan86 but was seldom seen in the Southern
part of the Peninsula of India.87 It was found very common in Central
India.88

There was not any remarkable change in attitude of Muslim

towards marriage. Polygamy was permissible by religion yet not much
practiced in the society except in rich as well as empires families.

II.XIII. Attitude Towards Marriage During the British

Period:
The British period may be called as social reform period because
many reform took place in the nineteen century and centre of reform
was women. The scenario of that time was that the marriage of girls at
early age, long before puberty was prevalent customs amongst the
Hindus. The ideal marriageable age was in between five to ten years old.
This deprived the girls of any opportunity of receiving any education
and denied them altogether any say in the matter of selecting their
partners in life. If husband died, even when the wife was quite young or

86. James Tod, 1914, Annals and Antiquities of Rajasthan (Crooke's

edition), London, Vol. II, at 737-739.
87. Dubois, op. citx at 357.
88. James Forbes, 1813, Oriental Memories, vol. II, at 373.
 33

a baby, she was faced with alternative of either burning herself along
with his dead body or living a desolate and miserable life, most often as
a neglected, if not hated, drudge in the family. The widow had no right
to marry after the death of her husband. However, the husband could
marry any number of wives not after her death but even during her
lifetime. The position of women in Kulins (in Bengal) was more pitiable
owing to strict restrictions which confined the choice of husband to a
very limited number of families. Sometime a large number of girls-fifty,
sixty or even more were married to one person. Cases are on record
where a large number of Kulin girls with age varying from ten to sixty,
and related as sisters, cousins and aunts of varying degree, were all
married together at one and the same time, by one common nuptial
ceremony, to an octogenarian on his death bed. Most of the Kulin girls,
even when married, had to spend their lives in their father's home. The
husband could maintain only a few at a time in his own house, and the
rest had to wait their turn. The husband had to take several rounds to
visit his numerous wives whose name and addresses he could find out
only by reference to written record. These tours were propped by the
regular honorarium paid to him by the wife he visited.

Though the education was not generally found in women, still

some women managed to get some education and ventilated to their
on

grievances through newspapers. In these publication they had depicted

in pathetic language the sad plight of widows and Kulin girls of Bengal
who were denied the pleasure of living with their husbands unlike

89. Reference may be made in this connection to two remarkable

• letters published in the Samachara Darpan on 14 and 21 March,
1835.
 34

women of some other parts of British territory. While the men might
freely enjoy the company of concubines and whores with impunity, and
still occupy honorable position in society, women was condemned if she
visited a paramour. They had also, raised an appeal to their father and
brother that why were they not allowed to mix freely with other men and
women like women of civilized countries, why were they transferred
like cattle, at the tender age of 4, 5, 10 or 12 to unknown men, they had
prayed that they might be permitted to select their husbands under the
general supervision of their fathers and brothers, why in the name of
marriage were they selling girls to the highest bidder so that their
husband who had purchased them by money, regard them as chattels,
why did they (fathers and brothers) had married them (women) to a
person who had already many wives, if the husband might marry after
the death of his wife, why was a wife debarred from marrying after her
husband's death?

Such appeals, however, did not go in vain, vigorous

agitation was carried on by the teeth of fierce opposition
by the orthodox section, to spread education among
women ,and to remove evils, referred above, from which
they were suffering. The reforms were partially successful
in their efforts. Education was promoted among women,
female infanticide and sati were prohibited, and widow-
remarriage was legalised. Efforts to stop polygamy were
not equally successful though its rigours, such as are
illustrated by Kulinism, were considerably minimized by
the spread of education and liberal ideas during the
nineteenth century. It is to be noted that while Ishwar
Chandra Vidyasagar put forth his efforts and energy to
prohibit the evil of polygamy he was opposed by men like
Bankim Chandra Chatterji, the great, Bengali writer and
author of the Vande Mataram hymn. Certainly Bankim
Chandra was not averse to social reforms, but it is
apparent that even some of the English educated and most
 35

advanced Indian thinkers of the nineteenth century were

very much against the principle of abolishing social abuses
like polygamy by legislation.90 They use of the opinion
that spread of western education and the resulting social
enlightenment, perhaps aided by economic causes, would
slowly eradicate the evils. This has not proved to be a
forlorn hope, for polygamy, declared illegal in
independent India, certainly fell into disfavour and
discussed, and a strong moral force was silently operating
against it, even at the end of the period under review. The
gradual abolition of child marriage has followed a similar
process.91

It is worthy of note that by end of 19th century the Mysore

Government passed a law to put down marriage of girl under 12 and
prevent unequal marriages between men over 45 and girls below 14. An
Act was passed in Baroda fixed the minimum age of marriage at 12 for
girls and 16 for boys.

Apart from this, Abbe Dubois referred to polyandry among the

Nairs in Malabar Coast and the custom among the Tolyas in Madura of
brothers, uncles and nephews having a common wife. In the Carnatic
hills men and women did not mash their clothes till they wore away by
use. Among a caste in Eastern Mysore the mother, giving her eldest
daughter in marriage had to puncture two of her fingers. Reference is
made to barren women who took vows to get children by resorting to the
most abominable practices, and also to procession in which the images
of Gods and Goddesses were made to mimic obscene gestures to one

90. Bankim Chandra argued at length, in several essays, against the

total prohibition of polygamy, as it was likely to produce some
• evils.
91. See, for detail, Infra Ch.III.
 36

another. All these customs, which prevailed at the beginning of 19th

century either altogether abolished or were in a process of steady decline
by the beginning of the 20th century.

In Muslim society, not much change had occurred during this

period. The marriage was treated as contract like in previous periods.
Restricted polygamy was permitted continuously.. The concept of
divorce was prevalent as in early time and power to pronounce it was
confined into hand of Muslim man. The Muslim women had no
independent right to get her marriage dissolved without the consent of
the husband. So before the year of 1939 the Muslim women had only
option to convert herself in other religion in order to get rid of from the
band of marriage. This practice can be seen in the beginning of 19th
century and Muslim women had adopted the recourse of converting
herself into other faith (religion) with the aim to get their marriages
dissolved. This incident was treated as dangerous by Muslim community
for their existence. Since they were already in minority (as regards
population) and this event had made endanger for their existence, so on
the stimulus of Muslim community an Act was passed in year 1939
known as the Dissolution of Muslim Marriage Act, 1939. By this Act for
the first time the right to divorce was provided to Muslim wife
independently and side by side the provision had also made that by only
act of conversion by Muslim wife, the marriage would not be
automatically (ipso facto) dissolved. This enactment continues even in
the modem time also.92

92. See, for detail, Infra Ch. IV.