CHAPTER- II

LAWS ON MARRIAGE

Marriage is an important social institution. It admits man and woman

to family life. It isa stable relationship in which a man and a woman are

socially permitted to have children. People do not marry because it is their

social duty to perpetuate the institution o f family or because the scriptures

recommend matrimony. It is because of the feeling that being in a family is

the only proper way to live in society. Lowie defined marriage as a relatively

permanent bond between permissible mates. According to Lundberg, marriage

consists of the rules and regulations which define the rights, duties and

privileges of husband and wife with respect to each other. According to

Horton and Hunt, marriage is the approved social pattern whereby two or

more persons establish a family.1 The institution of marriage has a wide

impact on the social organisation of a country.

According to the Hindu view, marriage or vivaha is in essence an

obligatory ritual which an individual has to perform to be able to start his

life as a householder or grhastha. The Vedas prescribe that dharma must be

1. Sachdcva, Vidya Bhushan, An Introduction to Sociology, Kitab Mahal,

Allahabad, 1987, p. 290.
 41

practised by a man together with his wife.2 The ritual of marriage enables a

man to have a son and without a son a Hindu cannot hope to get salvation or

moksa which is the ultimate aim o f his life. It is therefore, regarded as a

«

sacrament or samskara which purifies the body. Manu declares that marriage

is a social institution for the regulation o f proper relation between the two

sexes.3 He also says that he is only a perfect man who consists of his wife,

himself and his offsprings.4

v';. According to Rgveda, the marriage has two objectives, namely, to

enable an individual to perform sacrifices for gods and to have children. The f'Jh'
0 ,
- >V
Aitareya Brahmana states that the wife is called a jdya because in her the

husband is bom in the form of a son. Apastamba and Jaimini are of the same

view that performance of rituals and having sons arc the two chief aims of

marriage.5 Manu adds another aim that is the satisfaction o f the sex instinct.6

FORMS OF MARRIAGE

In ancient Hindu law, there were different kinds o f marriage. From the

times of the Gryasutras, Dharmasutras and Smrlis the forms of marriage are

said to be eight. The early Grhyasutras mention only one form o f marriage.

2. ‘tasmat sadharano dharmah srutau patnya sahoditah. ’ Manusmrti, IX.96.

3. Manusmrti, IX.25.
4. ‘etavanevapurusoycLfjaycLt.mdprajeti ha.’’Manusmrti, IX.45.
5. Kane, P.V., History o f Dharmasastra, Vol. II, Part I, Bhandarkar Oriental
Research Institute, Puna, 1974, p.428,
6. Manusmrti, IX.28.
# *
 42

But they have not given any name to it. Manavagrhyasutra which is a later

work mentions two forms, namely, brahma and saulkya? The eight different

kinds of marriage were described for the first time in the

Asvalayanagrhyasutra. But some scholars assume that this part is an

interpolation.8

The eight forms of marriage are mentioned by Manu in this manner-

brahma, daiva, arsa, prajapatya, dsura, gandharva, raksasa and paisaca.9

Asvlayanagrhyasulra arranges the first four differently as brahma, daiva,

prajapatya and arsa. It also places paisaca before raksasa. Visnu arranges the

first four as done by Manu. Apastambadharmasutra speaks o f only six

omitting prajapatya and paisaca10 while Vasisthadharmasutra expressly says

that there are only six forms of marriage namely, brahma, daiva, ~arsa,

gandharva, ksatra and manusa.n

There is a general agreement on the special characteristics of each

form and it is sufficient to point out these as given by Manu.

7. ‘samjustam dharmenopayacchet brahmena saulkena vd. ’

Manavagrhyasutra, \.lA \
8. Sengupta,Nilakshi, Evolution o f Hindu Marriage, Bombay Popular
Prakashan, 1965, p.88
9. 'brdhmo daivastalhaivarsahprdjdpalyastatha' ’surah:
gandharvo raksasaLScaivapaisacascasiamo ’dhamah: ’ Manusmrti, III.21
10. Supra, Note 5, p.516
11. lsadvivahah. brahmo daivaHrso gdndharvah ksatro tnanusasceli:'
Vasisthadharmasutra,
t i
1.28-29
 43

Brahma - The brahma is the form of marriage in which the

bridegroom, who is o f good conduct and well versed in Vedas, is invited by

the bride’s father. The daughter decked with ornament is given as a gift to the

groom by her father.12 Vasislha and Asvalayana mention that the gift is made

by pouring out a libation of water.13 Baudhayana mentions that in brahma

form the bridegroom asks for the hand of the bride.14

The brahma form is one o f the approved forms of marriage. The bride

plays no part in choosing o f her husband which depends entirely on her father

or guardian.15

Daiva- In the daiva form of marriage the father gives away his

daughter after decking her with ornaments to a priest who duly officiates at a
*

sacrifice during the course of its performance.16 Govinda’s commentary on

Baudhayanadharmasutra says that the recipient has to accept the gift and the

12. ‘acchadya carcayitva ca sruiisUavate svayam.

~ah'uya danairt kanyaya brahmo dharmah p ra kfrtita h M a n u sm rti, 111.27
13. ‘icchata udakapurvam yarn dadyatsa Brahmahd
Vasisthadharmasutra, 1.30, and also
Asvalayanagrhyasutra, 1.6.1.
14. ‘srutislle vijnaya bramacarine ’rthine kanya diyate sa brahmah:'
BaudhdyOJnadharmasutra, 1.11'.2.
15. Supra, Note 8, p.89.
16. ‘yajne tu vilate samyagrtvije karma kurvate.
alamkrlya suladartam daivam dharmam pracaksate: ’

Manusmrti, 111.28.
 44

regular marriage ceremony is performed later.17 This form is called divine

because the bridegroom himself acts as a priest in a sacrifice with some

special objectives such as begetting a son.18

In the daiva form the bride has no choice o f her husband. It is made by

the father or guardian. The participation of the priest is probably not necessary

because the priest is himself the bridegroom in this form o f marriage.19

Arsa - In this form of marriage there is a gift of one’s daughter after

taking one pair or two pairs of cattle as a matter o f fulfilling the law.20 Manu

states that the receipt of a pair o f cattle does not constitute the sale o f the bride

as the father gives these to his daughter.21

Prajapatya- The prajapatya form o f marriage implies the gift of the

bride to the bridegroom with the injunction that they should never cease to

perform dharma together.22 The aim o f this form of marriage is that they

17. Govinda’s commentary on Baudhayoauadharmasutra, 1.20.5.

18. Prakash, Om, Religion and Society in Ancient India, Bharatiya Vidya
Prakashan, Delhi, 1985, pp.212-213.
19. Supra, Note 15, p.90.
20. ‘ekarn gomithunam dve va varadadaya dharmatah.
kanyapradanam vidhivaddrso dharmah sa itcyate: ’ Manusmrti, III.29.
21. Manusmrti, 111.54.

22. ‘sahobhau caratam dharmamiti vaca 'nubhasya ca.

kanydpraddnamabhyarcya prajapatyo vidhih smrlah: ’ Manusmrti, 111.30.
 45

might not separate throughout their lives and both jointly discharge their

duties as householders.23

According to the Mitaksara of Haradatta, the commentary on

Gautamadharmasutra, though like in the brahma form, to perform dharma

{
together is the peculiarity of this form, the commentator adds that he should

not take another wife. This is the difference between brahma and prajapatya

forms.24

Brahma and prajapatya are synonymous words and it is quite possible

that the brahma marriage was originally identical with the prajapatya one.

This conclusion is supported by the fact that two of the early writers, Vasistha

and'Apastamba do not mention Prajapatya marriage at all.

Asura- In the Hsura form of marriage the girl is given away at the

father’s will after the bridegroom gives as much wealth as he can afford to pay

to the relatives of the girl and to the girl herself.25

In this form the bridegroom paid some money and got the bride in

exchange for that money. It may be regarded as the sale of the girl.26

23. Supra, Note 18, p.213.

24. 'yadyapi brahmadisvapi saha dharmacarya bhavati ....napi
stryantaramupayantavyamiti..,. esa brahmddehprajapatyasya
visesah. ’Mitaksara on Gautamadharmasutra, 1.4.5.
• * * *

25. ljnatibhyo dravinam dalva kanydyai caiva saktitah.

kanyapradanam svacchandydddsuro dharma ucyateP Manusmrti, III.31
26. Supra, Note 23.
 46

Gandharva- The union o f a girl and the bridegroom by their mutual

consent is known as gandharva. It springs from the passion of love and has
• • 27
intercourse as its purpose.

Raksasa- Raksasa is the form of marriage in which the girl is forcibly

carried away against her will from her father’s house. The striking element of

this form is the forcible abduction.28 Vasi^tha calls raksasa form of marriage

as ksatra. It suggests that this form may be common among ksatriyas who

must have found it suitable on certain occasion.29 If the lawgivers would not

have recognised this form of marriage the children of such marriage and their

mother could not get social security.

Paisaca- In this form the bridegroom stealthily outrages the modesty

of a girl who is sleeping, is drunk or is mad.31

27. ‘icchyaya ’nyonyasamyogah kanyayasca varasya ca.

gandharvah sa tu vijnyeyo maithunyah kamasambhefcah: '
Manusmrti, III.32
28. ‘hatva chitva ca bhitva ca krosantim rudatim grhdt.
prasahya kanyaharanam rakfaso vidhirucyate:’Manusmrti, III.33
29. Vasisthadharmasutra,
t«
1.35
30. Supra, Note 18, p,214
31. ‘suplam matlam pramattam va raho yatropagacchati.
sa papisiho vivahanam paisacascasjamo ’dhamahf Manusmrti, 111.34.
 47

The difference between raksasa vivaha and paisaca vivaha is not very

great. In the former the girl is taken away by force while in the latter she is

taken by deception and fraud. This is always considered to be the worst type

o f marriage. Apastamba and Vasistha do not mention this form at all.

These eight forms of marriage were classified into two groups. They

were approved \.e.,dharmya and unapproved i.e., adharmya. According to the

lawgivers the first four forms were the approved forms.32 The forms of

marriage in which the bride and the bridegroom married each other with the

consent of their parents without any consideration of wealth or property were

considered good i.e.tdharmya. Those in which marriages took place for money

or by force against the wishes of the parents of the bride and the bridegroom

were called adharmya. 33 This classification affected the law o f inheritance.

For example, according to Yajnavalkya the strTdhana o f a woman who was

married by an approved form of marriage went to her husband if she had no

child. In case she was married by an adharmya form of marriage the strTdhana
1 i

went to the family of her father.34 Manu states that the children bom of

32. *icatvaro dharmyahprathanmh.’’Gautamadharmasutra, L/f-12

lesam tu dharmydscatvaro brahmadyah samudShrtah. ’
Naradasmrti, IV. 12.44, and also
Baudhayanadharmasutra, 1.11,'2.0-tO -li
33.Supra, Note 18, p.215
34 .Yajnavalkyasmrli, 11.145
 48

dharmya form of marriage are virtuous, praiseworthy and learned. Again he

declares that those children born of adharmya forms o f marriage are cruel, liar

and not likely to observe the rules of dharma. 35

y
^ ..-"The recognition o f the lower forms of marriage might be due to

prevalence of rape, seduction and liaison in some sections o f society. By

giving them recognition the position of a woman and her children was to some

extent safeguarded.36 By the eight different forms o f marriage it was meant

that those were actually not eight kinds o f vivahas but rather eight ways in
*27
which wives might be secured.

Among the eight forms of marriage prevailed in ancient India, only

three were valid before 1955. These forms were brahma, gandharva and

asura. The Hindu marriage Act, 1955 does not specially provide for any form

o f marriage. The Act calls marriage solemnised under the Act as Hindu

marriage}which may be performed in accordance with the shastric rites and

ceremonies or in accordance with the customary ceremonies prevalent in the

community.

CEREMONIES

Hindu marriage is a ritual ridden marriage. The marriage under the

Hindu law consists of two parts- betrothal or vagdana and the nuptial rite or

35. Manmmrti, III. 39,41.

36. Supra, Note 8, p.96.
37. Medhatithi on Manusmrti, 111.34, V11I.366.
 49

ceremony. The former is only a contract. According to Manu, if a girl is

promised in marriage to one man, the good men do not give her in marriage to

another man.38(l) According to Narad a man who withdraws from his contract v.

without proper cause may be compelled to marry the girl against his will.38(ll) ,

The nuptial rite or ceremony is that without it a marriage cannot be completed

and no status of husband and wife is created. When a marriage is proved, the

law presumes that the necessary ceremonies have been performed.

The Grhyasuiras describe the ceremonies usually or commonly

observed by Hindus in a marriage. There are three parts in samskara of

marriage. There are certain rites which are preliminary, there are then a few

rites which are o f the essence of the samskara and there are certain rites which

are subsequent to the central rite. The essential rites are mentioned by all the

sutrakaras, but as to the preceding and subsequent rites, the sequence, in

which they take place, differs.

Preliminary m arriage ceremony- Under Preliminary marriage ceremony

these are included namely- selection of the bride, selecting the auspicious day,

negotiation or sending o f the wooers to the girl’s house, sacrifice made by the

bridegroom, the ritual bath, clothing and anointing the bride, dance of girls,

38(i). Diwan Paras, Modern Hindu Law, Allahabad Law Agency, 2003, p.85

38(ii). ‘pratigrhya luyah kanyamadustamutsrjennarah

sa vineyastvakamo ’p i kanyarn iamevacodvahet: ’

Ndradasmfti, IV. 12.35

 50

arghya reception etc.39

M ain marriage ceremonies—the main marriage ceremonies include

kanyadana, vivdhahoma, panigrahana and saptapadi.m

Kanyadana- The actual marriage starts from the ceremony of

kanyadana. This ceremony is described in the Manavagrhyasutra. The groom

is led into the place where the sampradana is performed. Either her father or

the brother is competent to give the bride away.4’

Kanyadana which is considered to be one o f the essential ceremonies

of the later period is not mentioned by most o f the Grhyasulras. The Vedic

references, those in the Grhyasutras show that it was believed that the

bridegroom received the bride as a gift from the gods and not from the father.
y
The right of sampradana evidently became an essential ceremony only in the

later period. Its introduction can be connected with the development of

different forms of marriage in Hindu society and with the deterioration o f the

39. Supra, Note 8, pp.34-47

40.1bid., p.48

41. ‘mangalanyukta dadami pratigrhnanitti trirbrahmadeyd pita bhrdta va

dadyat-sahiranydnanjalmavapati dhariaya tvetidatapuirebhyastveti
prligrahTla lasmai priyavapati. caiurvyatihrtya dadati. '
Manavagrhyasutra, I.8.6-8
 51

position o f women who were considered as a kind of property.42

Vivaha homa - The putting of wood in the fire is performed with

appropriate ceremonies and ajyabhaga oblations are offered to the fire. Then Vr\&i

the bridegroom leads his bride round the fire. After the circumambulation of

the fire the bride and bridegroom sit down to the West of the fire on a mat.

The bridegroom takes hold of the hands of the bride while he offers the

oblations, with specific verses.43

Panigrahana - Panigrahana is one of the essential ceremonies

constituting the marriage. In this ceremony the bridegroom can take hold of

the fingers of the bride’s right hand only without the thumb, if he wishes for

sons only. If he wishes to procreate children of both sexes he should take hold

of her hand and the little hair on the back.44

Saptapadi- Saptapadfor taking the seven steps together is another

essential ceremony. It occurs in different sequences according to different

Grhyasutras. In the Sankhayanagrhyasutra it is found that after the sacrifice

with fried grain, the acarya makes the couple take seven steps forward in a

North-eastern direction.45 According to Apastamba, this ceremony takes place

42. Supra, Note 8, p.49

43. Ibid., pp. 49-50
44. Ibid., p.53
45. ‘pragudicyam diii sapta padani prakramayati. ’
Sankhayanagrhyasutra, 1.14.5
 52

after the panigrahana but before the sacrifices to the fire, the stepping on the

stone and the lajahoma. After the panigrahana the groom makes his bride

take seven steps with specific verses.46

Ceremonies performed after the main rites- After the main

marriage ceremony these rites are performed - the weeping of the bride,

carrying to the husband’s house, looking at the polestar, crossing the

threshold, etc.47

Among the above ceremonies, the main marriage ceremonies are such

that they are essential to declare two persons as husband and wife. Among

these main ceremonies also that which is the most essential is the saptapadu

With the completion o f the seventh step the marriage becomes complete and

irrevocable.48

Section 7(i) of the Hindu Marriage Act, 1955 states that a Hindu marriage

may be solemnised in accordance with the customary rites and ceremonies of

either party thereto. Section 7(ii) states that where such rites and ceremonies

46. Supra, Note 8, p.56

47. Ibid!, p.59
48. Supra, Note 38(i),p.87
 53

include the saptapadi, the marriage becomes complete and binding when the

seventh step is taken.

Thus, a Hindu marriage under the Act must be solemnised in

accordance with the customary rites and ceremonies of at least one o f the two
i

parties. The word ‘solemnise’ means to celebrate the marriage with proper

ceremonies and in due form. Unless the marriage is celebrated or performed

with proper ceremonies and in due form it cannot be said to be solemnised.

The Act does not prescribe the ceremonies requisite for solemnisation

o f the marriage. It leaves it to the parties to choose a form o f ceremonial

marriage which is in accordance with any custom or usage applicable to either

party^ Where the form adopted includes the saptapadi before the sacred fire,

the marriage becomes complete.

The rule relating to the essential ceremonies of a Hindu marriage

proceeds on the principle that marriage being one o f the samskoras for a

Hindu male and a female whether being bom in twice bom castes or a sudra,

must be performed with the necessary ceremonies. It also recognises the

position that the customary rites and ceremonies vary in different parts of the
!

country and also among different castes and communities.49

The essential rites which may be said as requirement common in all

49. Desai, Sunderlal T., (ed.), M ulla’s Principles o f Hindu Law, N.M. Tripathi

Private Limited, Bombay, 1990, p.638

 54

ceremonial marriages are- invocation before the sacred fire and saptapadn50

Nowadays, any two persons who are Hindus are competent to

solemnise a ceremonial marriage under the Act and all that is insisted upon for

the purpose of solemnisation of the marriage is that it must be in accordance

with the customary rites and ceremonies of either party to the marriage.

Though the sastras prescribe different ceremonies for solemnisation of

marriage, all those ceremonies are not equally important. If no customary

ceremony can be established by the parties then the marriage is to be

solemnised under sastric rites and ceremonies which must include saptapadf.

So, the ceremonies play an important role in ancient Hindu marriage

as well as in modem marriage. If proper ceremonies are not performed a

Hindu marriage becomes void.

CONDITIONS OF A VALID MARRIAGE

According to the Hindu view, marriage is an obligatory ritual. It is

to be performed by an individual to start his life as a householder.51 To make

the marriage a valid one, certain conditions must have to be fulfilled by both

the bride and the bridegroom. In ancient days as well as in modem times some

SO.Ibid '
51. Supra, Notel8, p.200
 55

conditions are laid down by the lawgivers which are to be fulfilled at the time

o f marriage.
/
In the iSmrtis, there are certain conditions which are quite insignificant

for today’s circumstances. Such conditions are completely avoided by the Act

of 1955. Some of such conditions as stated by different Smrti writers are

presented here. Manu has declared ten different kinds of families to be

avoided for marriage. Amongst them those which neglect the sacred rites, in

which no male children are bom, in which Veda is not studied, the members

o f which have thick hair on their bodies52 are worth mentioning. Both Manu

and Yajnavalkya require that die girl should be possessed o f auspicious

characteristics.53 Yajnavalkya is also of the view that the bridegroom must be

young, intelligent, a favourite among people and apart from these his virility

must be tested.54 A girl having tawny hair, who is hairless and who is very

hairy must not be chosen as a bride. The bride should not be bodily defective

as to having an excessive limb or a deficient limb. One who is talkative and

having yellowish eyes are also to be avoided. But one can marry a girl whose

52. *strisamvandhe dasaitdni kulani parivarjayet: ’

‘hmakriyam nispurusam ni&chando romasarsasam. ’Manusmrti,111.6,7
53. Manusmrti, III.4, Ydjnavalkyasmpi, 1.52.
54. ‘yatriat panksitah pumstve y u m dhtnicmjanapriyah: ’
Yajnavalkyasmrti, 1.55
 56

gait is like a swan or an elephant, on whose head or body hair is o f slight

growth, whose teeth are small and whose body is delicate. These are the

opinions of Manu55 and Visnu.56 Narada mentions some characteristics of

the virile men and enumerates 14 varieties of impotent persons.A girl devoid

o f limbs,; already connected with another man, who is a wicked one, is

, c"I CQ / CQ

regarded by Narada as unsuitable for marriage. Gautama Vasistha and

also Yajnavalkya60 remark that the girl must be younger than the bridegroom,

v/^bcording to Vatsayana, the bride’s age should be three years less than that of

55. 'nodvahetkapilam kanyam nadhikamgTm na rogitnm

rialomikam ndlilomdm na vdcatam na pingatam:

avyamgamgim..........hamsavaranagaminfm. ,

(anulomakesadasariam mrdvamgimudvahetstnyam:’ Manusmrti, III. 8, 10

56. Jha(Ganganath, Manusmrti, Notes, Part III, Comparative, University of

Calcutta, 1929, p. 166

57. Naraddsmrti, 1V.12. 11-13, 36

58. Gautamadharmasutra, 1.4.1

59. Vasisthadharmasutra, VIII. 1

60. ‘aviplutabrahmacaryo laksanyam striyamudvahet. ’ Yajnavalkyasmrti, 1.52

 57

bridegroom.61 Katyayana is of the view that one guilty of grave sins, devoid of

eyesight or hearing is not fit to be chosen both as bridegroom or a bride.62

Apart from these, there is another rule in the Smptis which is not

counted by the modern lawmakers as a condition of valid marriage. According

to the Smrtis the parties to the marriage should not be of the same gotra and

pravara. Gotra is well known as family succession or lineage or vamia

parampara or line of descent. The originators o f gotras are chiefly eight Rsis.
, / * fm
They are Visvamitra, Jamadagni, Bharadvaja, Gautama, Atri, Vasishtha,

Kasyapa and Agastya. Their offsprings are considered to be of their gotra.63

The pravaras are groups o f m s differentiating from the rsis who are the

^founders of gotras.64 According to Baudhayana, there are millions of gotras.

In the Baudhayanapravaradhyaya there are over five hundred names o f gotras

61. ‘.... trivarsdlprabhrti nyunavayasam.,... ’ Kamasutra, III.1.2

62. Kalydyanasmrli, cited in Kane, P.V., History o f Dharmasastra, Vol. 11,

Part I, Bhandarkar Oriental Research Institute, Puna, 1974, p.431

63. Ganapati iyer.P.R., Hindu Law, A Treatise, p.439

64. Mayne,John.D., Hindu Law and Usage, Bharat Law house, New Delhi,

1991, p.134
 58

and pravara sages.65 The Pravaramanjarfquotes a verse that there are three

crores of gotras. 66(0 The innumerable gotras are placed under groups and

distribute them among 49 pravaras.66(11) The system o f gotra is difficult to

comprehend. The rule as to gotra and pravara does not apply to ail castes but

only to the first three castes.

The ancient lawgivers laid down that the identity of gotra and pravara

between the parties to a marriage renders it invalid. Baudhayana laid down

that if a man jjnwilJinglyj' married., a.worn an of the same gotra, he should

maintain her like a mother.66(l,1) According to Manu, a man may marry a girl

who is not of the same gotra as her father.67 Gautama declares that marriage

should be performed with persons not belonging to the same p ra va ra ^

65.Supra, Note 5, p.489

66(i). ‘gotfanam kotisamkhyatritayamitimatam durgrahatvacca tasmdt. ’
Pravaramanjarf quoted in Kane, P.V. History o f

Dharmasaslra, Vol.II, Part I, Bhandarkar Oriental Research Institute,

Puna, 1974, p.489

66(ii). Supra, Note 63.

66.(iii). 'sagotram cedamatyopayacchenmatrvadenam bibhryat. ’
Baudhdyanadharmasutra^ Id 1.3 8
67... ‘..... asagotra caydpituh'M anusmrti, III.5
68. Gautamadharmasutra, 1.4.2

V
 59

Vasistha states in this regard, that a person should marry a girl who has no

/c o m m o n rs/.69 Visnu opines that a person should obtain a wife who is not of

the same gotra as himself nor with -the same pravara rsis.10 According to

Yajnavalkya the girl who does not belong to the same gotra or the same rsi is

fit for marriage.71 The Mitaksara states that a girl who is a sapinda, sagoira

and samanapravara does not acquire the status o f a wife on marriage.

The above-mentioned conditions are quite insignificant in modem era.

These are superfluous for the present society. Therefore, Hindu Marriage Act,

1955 has not included these as the conditions of a valid Hindu marriage and

the violation of any of these rules nowadays cannot affect the validity of

marriage.

The conditions which are provided in the modem Hindu Marriage

Act, 1955 were also required in the days of Smrtis. However, to cope up the

ancient conditions with the modern circumstances some changes and

modifications have been made. These are discussed below.

Number of spouse

In accordance with the number o f spouse a parriage may be of three

types; namely, monogamy, polygamy and polyandry. A peep into the ancient

69. Vasisjhadharmasutra, VII1.1,2

70. Supra, Note 56, p.162
71. Yajnavalkyasmrli, 1.53 .
72. Mitaksara on Yajnavalkyasmrti, 1.52, -53.
 60

days may give the idea whether the society maintained monogamy or

polygamy.

It is found that in regard to polygamy the Vedic age was less degraded.

In the ancient Rgvedic society monogamy was the general rule. A number of

passages found in the Rgveda which use the word jayd or wife in singular

number, indicate that monogamy was a general practice. It is clear from the

passage which stales- surely men want and gain their wish when the wife

clings to her husband.73

In the entire hymn of the 10th mandala of the Rgveda there is a

discourse on monogamous marriage between Soma and Surya, the daughter of

Sun-God. The very word dampatt and jdyapatf occurring in the Vedic

Literature prove that the fundamental conception of marriage was

monogamous and not polygamous.

However, numerous indications of polygamy also are available in the

Rgveda?* But all of them generally carry a sense o f disapproval. In one

passage it is stated that a double wedded man is like a car-horse between two

poles, and is pressed closely on both sides.75 Thus, a man with two wives was

supposed to be in a state of endless embarrassment. The plurality o f wives was

73. ‘arlhamidvdu arthinaHjayayuvate,patim.' Rgveda, 1.105.2

74. ‘patim na palmrusalirusanlam sprsanti tvdsavasavanmamsd:'
Rgveda, 1.62.11
75. Indra, Prof., The Status o f women in ancient India, Motilal Banarasidass,
Banaras, 1955, p.55
 61

never considered as contributing to the happiness of domestic life. An entire

hymn is devoted to the loathsome fulminations of a jealous wife, who is

enraged with a more favoured rival of hers.76

Thus, polygamy existed in Vedic age with condemnation.

However, the practice went on spreading and it became a very

77
common feature of the social system in the later ages.

In the time of the Sutras, some sages wanted to hold up a high ideal.78

The Apastambadharmasutra declares that when a man has a wife who is

endowed with dharmajmd progeny, he shall not marry another wife. But if

any one of the two i ,e.dharma and progeny is wanting in the case of the wife

he may marry another before he has consecrated the sacred srauta fires.

In the ages of Dharmasastras the practice o f polygamy was planted f)

very firmly. The position of women had been degraded in these days. The

writers of the Smrtis did not treat the person of woman with the same sanctity

as they bestowed it on the other sex. She was not regarded as an equal partner.

76. Ibid., p.56

77. Supra, Note 74, p.5
78. Supra, Note 5, p.551
79. ‘dharmaprajdsampanne dare nan,,yam kurvTta. anyatardbhdve kdryd
pfagagnyadheydt.’ Apastamba Dharmasutra 11.5.11.12-13 cited in
Kane,P.V., History o f Dharmasastra, Vol. II,Part I, Bhandarkar Oriental
Research Institute, Puna, 1974, p.551
 62

The practice o f polygamy was treated as a privilege reserved for the

twice bom classes. According to Manu a brahmana was allowed to have as

many as four wives. One of them belonged to his own caste and the rest to the

remaining three castes. Likewise a ksatriya could have three wives one being

from his own caste and the rest from, two lower castes. Similarly, a vaisya

was entitled to two wives, one belonging to the vaisya caste and the other to

the sudra caste. A sudra was allowed one wife only and therefore was to lead

a perfectly monogamous life.80 Yajnavalkya also legalises the practice. He

lays down that the first and chief wife should be of the husband’s own rank.

But also states as Manu that she may be supplemented by other wives from

the lower castes in due succession, so that the sudra can have only one

consort.81 Vasislha declares that in the order o f the castes, there are three

wives for the brahmana, two for the ksatriya, one each for the vaisya and

sudra}2 Devala, quoted in the Grhastharalnakara, says that the sudra may

have only one wife, a vaisya two, a ksatriya three and a brahmana four, but a

king may have as many as he desires.83 Thus, polygamy appears to have been

80. ‘ sudraiva bharya sudrasya sa ca sva ca visah smrle.

te ca svacaiva rajndsca tasca svd cagrajanmanah: ’Manusmrti, III. 13
81. '‘lisro varnanupurvena dve tathaika yathakramam.
brahmanaksatriyavisam bharyya svd sudrajanmanah: ’
Yajnavalkyasmrti, 1.57
82. Vasisthadharmasutra, 1.24, 25
83. Supra, Note5, p.552
 63

quite in vogue not only amongst the aristocratic classes but also even amid the

common people. But according to the smrtikaras a person could not have

wives as many as he wished. They laid restriction on it. The bmhmanas got

more opportunity in this regard than the other three classes. But the system of

polygamy was not allowed to follow in the case of sudras. The Adiparvan of

Mahabharata remarks that to have many wives is no adharma on the part of

men.84

In ancient India the system o f polyandry was quite rare and almost

unheard of. The custom by which a woman is taken as common wife of a

number of men is termed as polyandry. No Vedic passage can be cited that

clearly refers to the practice o f polyandry. The passages cited in the Aitareya

Bfdhmancr85 and TaUlirTya Samhiid%

6 that a woman cannot have several

husbands at the same lime make it clear. '

The Smrtis do not allow a woman to have more than one husband.

According to Manu a girl could marry only for one time.87 So, it can be easily

said that a girl could have only one husband and in those days there was no

» 84. 'na cdpyadharmah kalydna bahupatmkata nrnam.' Adiparvan of

Mahabharata 160.36 cited in Kane, P.V., History o f Dharmasastra, Vol.
II, part I, Bhandarkar Oriental Research Institute, Puna, 1974, p.552
85. Supra, Note 5, p. 554
86. Taitlirtya Samhita, VI.6.4.3
i

87. ‘....... Sakrt kanydpradiyate Manusmrti,\XAl

 64

trace of polyandry.

The conditions of a valid marriage that are laid down by the modern

Hindu lawgivers are placed in Sec.5 of the Hindu Marriage Act, 1955. It has

totally abolished the system of polygamy as well as polyandry. Section 5of the

Hindu Marriage Act, 1955 introduces monogamy. It is essentially the

voluntary union for life of one man with one woman. Section 5(i) states that

neither party has a spouse living at the time of marriage. It means that
r ~
polygamy and polyandry are completely prohibited under modem law on

Hindu Marriage. In the days of Smrtis it is seen that polygamy was firmly

planted though some restrictions as to the number of wives were there among

different classes of people. The Smrtiwriters did not treat the woman equally

with the male. But it can also be noticed that the mindset of the people till mid

of 20th century remained same as that of the people o f thousands o f years ago.

Physical and mental capacity

It is the desire o f all that the marriage to be performed must continue

with happiness. Certain diseases, defects and deformities were taken as

grounds of disqualification for marriage by the writers of the Smrlis. It is also

laid down by the modern lawgivers that a bride or a bridegroom must have

physical as well as mental capacity to marry.

Different defects and deformities like blindness, deafness, excess or

i

devoid o f some limbs were taken into account in the days of the Smrtis to

disqualify one from getting married. Among the ten kinds of people which
 65

Ijvlanu had declared to be avoided for marriage, there the mention o f those who
i

were suffering from some particular diseases were also present. According to

him, one who was suffering from diseases called piles or

epilepsy and whits or black leprosy should be rejected.88

Katyayana also mentions some defects and diseases which are to be avoided

in case o f both bridegroom and bride. According to him, one who is lunatic,

leprous, impotent, devoid o f eyesight or hearing, epileptic, he or she should be

avoided.89About the bride, Manu90and Visnu91 say that one should not marry a

girl who is having an excessive limb, such as a sixth finger or a deficient limb.

One should marry a girl having limb without any defect, whose head apd body

is o f slight growth, teeth are small and the body is delicate. Narada mentions

about some defects o f a girl who suffers from longstanding or disgusting

diseases, devoid o f a limb are to be avoided.92

88Manusmrli, III.7
89. '‘unmattah patitah kusthTtatha Sandhah svagotrajah
caksuhsrotraviMnasca tathdpasmdra dusitah. varadosah smrtd hyete
kanyddosdsca kTrtitah: ’ Katyayanasmrti, cited in Kane, P.V. History o f
Dharmasastra, Vol. II, part I, Bhandarkar Oriental Research Institute, Puna,
1974, p.431
90. Manusmrti, III.8-9
91.Supra, Note 56, p.166
92.Naradasmrti,
e
IV. 12.36 '
 66

However, it cannot be said that marriage with a disqualified lunatic .

was not performed. Because the ancient lawgivers have laid provision which

declares the sons o f disqualified persons to be entitled to share and the wives
93
of such disqualified persons to be entitled to maintenance.

Section 5(ii)94 states about mental and physical capacity to marry.

Section 5(ii)(a) provides that at the time of the marriage neither party should

be incapable of giving a valid consent to it in consequence of unsoundness of

i

mind. Section 5(ii)(b) declares that a marriage cannot be solemnised if a party

at the time o f marriage is capable of giving consent to the marriage but has

been suffering from mental disorder of such a kind or to such an extent as to

be unfit for marriage and the procreation o f children. Section 5(ii)(c) states

that a marriage is not valid if a party at the time o f marriage has been subject

to recurrent attacks of insanity.

So, from the above, it is found that in the days o f Smrtis certain

diseases, defects and deformities were regarded as grounds which disqualified

a person for marriage. However, Smrtiwriters mentioned some such physical

and mental diseases and defects that can be easily ignored in today’s

circumstances. It is for the advancement o f the medical science and also of the

93. ‘yadyarthita tu ddrail) syatklTvadinam kathancana.

tesamutparmatantunamapatyam dayamarhatv. ’
Manusmrti, 1X.203

94. The Hindu Marriage Act, 1955

 67

mindset of the people of the present day society .The Act of 1955 points out

only those diseases and defects for which a person is not in a position to give

consent. One who can give consent, but unfit for marriage for suffering from

mental disorder should also be disqualified. Some recurrent attacks of insanity

are also taken into account for disqualification.

So, those diseases and defects which can hamper the purpose of

marriage, and do not affect in any other way are taken into account by th e .

modem legislators. Again, for the advancement of medical science, some

diseases are no longer incurable in modem age which were causes of

disqualification in the days of Smrtis.

Age

The age of a bride and a bridegroom has been an important condition

to be considered during marriage. But the opinions of the lawgivers in

different times regarding the minimum age for boys and girls are different

since the Vedic period. However, some early lawgivers suggest that the age o f
QC
the bride should be less than that of the bridegroom.

The marriage in the early Vedic India was performed when maidens

were generally in mature age. It can be observed from the fact that women had

95.*igr hasthah...bharyam vindeta....yavTyasTmGautamadharmasutra, 1/h .1.,

‘yavTyasTm......bharyam vindeta. ’ Vasisthadharmasutra VIII. 1 ,
i #

and also MdnavagnhyasTitra, 1.7.8

 68

the right of choice of their own husband.96 There is mention of such girls '

in the Rgyeda who married very late and stayed for long in their

parents’house.97 A girl must be folly developed physically and intellectually

in her father’s home before the marriage could even be thought of.98 Surya,

the daughter of Surya was given away to Soma in marriage only when she

became youthful and yearned for a husband.99

Gautama in his Dharmasuira is of the opinion that a girl should be

given in marriage before she attains puberty. He goes even further and

explicitly says that a girl ought to be married before she wears clothes.100

Parasara, who is regarded as the authority of the Kali age, also supports the

marriage of infant girls.101 The greatest lawgiver Manu is in favour of the

marriage of girls at a very tender age. According to him a father who does not

give his daughter for marriage is reprehensible. Gautama is also of the same

view.102 Manu is again of the opinion that though a girl has not attained proper

age she should be given by her father to a distinguished handsome suitor of

96. Supra, Note 75, p. 76

97. Rgveda I. 117.7 and X. 39.3
98. Ib id . X. 85.21
99. . I b id . X. 85.9
100. ‘pradaham pragrtoh
prdgvasasah pratipatteh.. .Gautamadharmasutra.W.^ .21,23
101. Supra, Note 75, p.44.
102. ‘■kale ’data pita vacyo ’ Manusmrii IX. 4.
laprayacchandosT’ Gautamadharmasutra, II.9.22
 69

the same class.103 In commenting upon this text Kulluka says that proper age

means the age of eight years. However, Medhatithi interprets it to mean the

age before she is bodily fit for marriage.104 Yajnavalkya also insists that girls

should be married before the age of puberty.105 Vyasa, another lawgiver, also

declares that he who does not give away a daughter in marriage before she

attains puberty becomes degraded. Yama, another authority on social matters,

also proceedes in the same strain. Visnu also lays stress on the marriage of-a

girl before she attains puberty.106

Thus, the writers of Smriis advocated that the marriage of girls was to

take place before puberty. But it is also found that no blame is attached to the

girl married after puberty. Manu is of the opinion in this regard that a girl

having reached the age of puberty should wait for three years. But at the end

of that period she herself should choose a husband.107

103. ‘utkrstayabhirupaya varaya sadrsaya ca.

apraplamapi tarn tasmai kanyaih dadyaddyathdvidhi: ’ Manusmrti IX. 88
104.‘......vivahayedastavarsam. . , ’ Kulluka on Manusmrti IX. 88
‘....... apmplamapyayogyamapij Medhatithi on Manusmrti IX. 88
105. ‘’aprayacchan samdpnati bhrunahatyamrtavrtau. ’
Yajnavalkyasmrti, 1.64
106. Supra, Note 75, pp.50, 51
107. ‘trTni varsanyudikseta kumaryriumati salF ,
vrdhath tu kalddetasmadvindeta sadrsam palim: ’Manusmrti, IX .90
 70

Baudhayanadharmasulra, Vasisthadharmasutra, Yajnavalkyasmrt i,

108
Naradasmpi state the same as Manu.

There are a number of factors for which the lawgivers prescribed a

lower age for the marriage of girls in India. The most important factor seems

to be their desire to raise the moral standard o f the society. It was for this

reason that they laid down thalrgirlsshould be virgin. The non-performance of

upanayana ceremony in case of the girls seems to be another factor o f lower

age of a girl for marriage.109 The third factor which contributed to the

tendency for lowering the age of marriage of girls was the belief in the society

that a married girl had to face less risks in life than an unmarried girl.

Regarding the bridegroom there is no special rule as to the age before

which a man was obliged to marry. A man was to marry after he finished his

Vedic studies.110 But the period of Vedic study was fluctuating. According to

Manu a student takes thirty six years or half of that or quarter of that or only

until mastery to finish the study of the three Vedas.111 Gautama is of the

108. Baudhayanadharmasulra, IV. 1.14, Vasistjiadharmasutra,XV11.67-68

Yajnavalkyasmrti 1.64, Naradasmrjti ,IV.12.25-27
109. Altekar.A.S., The position o f -women in Hindu Civilization, Motilal
Banarasidass,Banaras, 1956, p.33
110. ‘vedanadhitya vedo va vedam v a ’p iyathakramam
t

aviplutabrahmacaryo grhastfmramamavaset: ’ Manusmrti, III. 2

‘aviplutabrahmacaryo laksanyam striyamudvahet. ’
Yajnavalkyasmrti, III.52
111. ‘saitrimsadabdikam caryaih gurau traivedikam vralam.
tadardhikam pddikam va grahanantikameva va: ' Manusmrti, III. 1
 71

opinion that one should keep up his studentship for twelve years over one

Veda or for twelve years in each of the four Vedas or till they have been fully

acqired. 12 Yajnavalkya declares that over each Veda studentship should

continue for twelve years or five years or according to some for such time as
1

may suffice for it being got up.113 Baudhayana states that the ancient

studentship over the Veda lasts for 48 years or for 24 years or for 12 years

over each Veda or for one year over each Vanda or till it has been got up.114

Thus, there is no definite duration to finish the Vedic studies. It could be 12,

24, 36 or 48 years or as much time as was necessary to master one Veda or a

portion of Veda.

As upanayana took place in the eighth year115 for a brahmana and if

twelve years was taken for study then a boy would ordinarily be twenty years

old or more at the time of marriage. It is found in the text of Manu. Manu says

that a man aged 30 years should marry a girl of 12 years of age and a man of

112. 'dvadasa varsanyekavede brahmacaryam caret: pratidvadasa va

sarvesu: grahananiam va: ’ Gautamadharmasutra, 1.2.51 -53
113. ‘prativedam brahmacarya dvadasabdani panca va. ’
grahariantika.......................... Yajnavalkyasmrli, 1.36
114. 'astacatvdrimsadvarsani pauranam vedabrahmacaryam:caturvimsatim
dvadasa vdprativedam: samvatsaravama’m va pratikdndam.grahanahtam vaV
jfvitasyasthiratvdt: 'Baudhayanadharmasutra, 1.2.1 -4
115Manusmrli, 11.36, Gautamadharmasutra 1.7, 8, 13, Vasisthadharmasutra

XI.44, Yajnavalkyasmrti, 1.14, Visnusmrti, XVII.15-17

 72

24 years should marry a girl of 8 years of age.116 Here, it is not extended to lay

down any hard and fast rule but merely to suggest suitable ages. In a different

place Manu stales that having dwelt with a teacher during the fourth part of

man’s life a person should live the second quarter in his house with a wedded

wife.117 The man’s age was generally supposed in the Vedic and post Vedic

literature to be 100 years and so, the one fourth of man’s age is at 25 years."8

Thus, the Smrtiwriters though preferred minor girls for marriage, the

bridegroom was a matured one. However, the Smrtiwriters have not given any

definite age o f a bridegroom. But it is stated clearly that crossing the first

stage o f life successfully one is fit to enter into second stage and becomes a

householder.

At the time when the British rule came to be established in India, the >

child marriages were very common.119 To restrain this, an attempt was made

to lay down the minimum age of marriage for both boys and girls in 1929. The

Child Marriage Restraint Act, 1929 prescribed 15 as the minimum age for

girls and 18 for the boys. But the child marriages were made neither void nor

voidable.120 It was the impact of the then prevailing social notions. But once

-•-116. ‘trimsadvarsodvahetkanyam hrddfam dvadasavarsikim.

tryastavarso’stavarsam vddharme sTdati satvarah:’ Manusmrti, IX. 94
117. ‘calurthamdyuso hhdgamusitvd ’’dyam gurau dvijah.
dvitiyamayuso bhagafn krtadaro grhe vaset:' Manusmrti, IV.l
118. Rgveda, 1.30.3, cited in Indra, Prof., The Status o f women in ancient
India,: Motilal Banarasidass, Banaras, 1955, p. 45
119. Supra, Note 38(i), p. 107
120. Balasami vs. Balakrishna, AIR 1957 Mad 97
 73

performed they were perfectly valid.121 This position was maintained by the

Hindu Marriage Act, 1955. After the amendment of the Child Marriage

Restraint Act in 1978, nowadays the minimum age of marriage for the girls is

eighteen and for the boys is twenty-one. However, marriage performed in

violation of this condition is valid.

The Hindu Marriage Act and the Child Marriage Restraint Act, 1929

provide punishment for such marriage. Section 18 o f the former Act provides

that anyone who procures a marriage for himself or herself in contravention of

section 5(iii) may be punished with simple imprisonment which may extend

upto 15 days or with a fine which may extend upto Rs,.1000/- or with both.

Under the later Act, if a male above 18 years and below 21 years marries a

girl below 15 years he is liable to a sentence of simple imprisonment which

may extend upto 15 days or fine which may extend up to Rs.1000/- or with

both. A male above the age of 21 marrying a girl below 15 is punishable with

simple imprisonment of upto three months and is also liable to fine.

The Hindu Marriage Act affects a great mass in whom child marriages

have been performed for centuries. An attempt to prohibit such marriages, at

the time of passing of the Act, would have been failed and 80% to 90% void

marriages could have been found in the countryside.

For the above reason the legislators did not make the child marriage

121.Gindcn vs. Barclai, AIR 1976 MP 83

 74

void at the time of making the Act. But after fifty years also the same

provision remains intact unamended. Child marriages still now are going on in

different parts of the country.522(0 So, an immediate amendment of this

provision is necessary which can abolish child marriage.

Sapinda and prohibited degrees of relationship

At the time of solemnisation of marriage ceremony it is to be

t

considered whether the girl is related to the bridegroom by sapinda and

prohibited degrees of relationship. Both the ancient as well as modern

lawgivers have laid down this condition which is to be fulfilled during

marriage.

Different Smrtiwrilers have laid down that a person is fit to marry a

girl if they are not related with sapinda relation. According to Manu a damsel

who is neither a sapinda from the mother’s nor belongs to a family from the

father’s side is recommended for wedlock and conjugal union.,22{ll)

Yajnavalkya also allows one to marry a woman who is asapinda.123

In the ancient Hindu law two theories of sapinda relationship were

propounded - oblation theory and the particles o f the same body theory.

Oblation theory- The Hindus believe in offering to the departed

ancestors. One offers one full pinda each to his three immediate paternal

122(i). Krishnakumar Asha and T.K Rajalakshmi, Child brides o f India,

Frontline, July 15,2005, pp.4-11
122(ii). Manusmrti, III.5
123. ‘.. .Kantamasapindam.......’ Yajnavalkyasmrli, 1.52
 75

ancestors and one divided pinda each to his three next paternal ancestors.124

Moreover, he is the giver of the full pindas each to his two immediate

maternal ancestors and one divided pinda each to two next maternal ancestors.

Thus, he is connected by pindadana to the six ancestors on the paternal side

„ t

and the four ancestors on the maternal side and is sapinda to them. When two

persons offer pindas to the same ancestors they are also sapindas to each

other.125

Particles of the same body theory: Sapinda as understood by the

above theory is discarded by Vijnanesv'ara, the writer of Mitaksara, the

commentary on Yajnavalkyasmrti. He considered that the older meaning of

the word “Sapinda” did not cover all the cases.126

Vijnanesvara propounded the theory called particles o f the same body

theory. He changed the meaning of pinda from ball to the particles of same

body. According to him sapinda relationship arises between two persons on

account of their being connected by particles of one body. But such a

definition of sapinda is too wide as it may exist upto one hundred or more

generations so long as one can trace his descent through a male or female to a

common ancestor or ancestress. Realising this Vijnanesvara fixed the limit by

124. Supra, Note 68, p.127

125. Supra, Note 38(i), p. 93
\26.Mitaksardon Yajnavalkyasmrti, 1.254
 76

saying that it existed upto seventh degree on the father's side, and upto fifth

degree on the mother’s side. He fixed this limit on the basis of traditional

meaning of sapinda}21

The marriage of two persons who were related with sapinda

relationship was not allowed earlier. The number of degrees o f sapinda

relationship is variously laid down in ancient time. In the Satapatha

brahmana, it is found that the prohibition extended only to the third or fourth

degree.128 In Yajnavalkya’s opinion the prohibition should be seven degrees

on father’s side and five degrees on mother’s side. Narada Gautama

and Vasistha132 are also of the similar view with Yajnavalkya. Manu states

that sapindaship ceases with seventh person.133 Visvarupa and Kulluka apply

the seven degrees to relations through mother also. But in elucidating

127. Supra, Note 38(i), p. 94

128. Satapatha Brahmana, I.8.3.6.cited in Macdonell, A.A. and A.B., Keith,
Vedic Index,vo\.\ j Motilal Banarsidass Publishers Private Limited,
Delhi, 1995, p.475
129. Yqjnavalkyasmrti, I. 52-53
130. 'a saptamatpancamadva bandhubhyah pitrmatrtah. ’ Naradasmfli, IV.12.7
\3 \ I’urdham saptamatpitrbandhubhyo byinasca matrbandhubhayh
pancamal. ’ Gautamadharmasutra, 1.4.3,
132. ‘[naj pancanum matrbandhubhayh saptaimm pitrbandhubhyah:’
Vasisthadharmasutra, VIII. ;.2

133. ‘sapindata tu puruse saptame vinivartate., Manusmrti, V.60

 77

Yajnavalkya’s text Vijnanesvara relies upon a text of Brhat Manu which

confers the seven degrees limit only to sagotra sapindas.m However, the

majority of the above opinions direct to consider live degrees on the mother’s

side and seven degrees on the father’s side.

Different lawgivers have shown some specific members of the family

and prohibited sex relationship with them. They considered sex relationship

with one’s mother, sister, daughter or even with one’s son’s wife as the

highest sin.135

Section 5 (iv) and 5 (v) o f the Hindu Marriage Act, 1955 deal with

degrees of prohibited relationship and sapinda relationship respectively.

i * 4

Section 5 (iv) declares that a marriage may be solemnised between any

two Hindus if the parties are not within the degrees of prohibited relationship.

According to Section 5 (v), the marriage may be solemnised if the parties are

not sapindas of each other. However, these two conditions are not applicable

in those places where the custom or usage governing each of them permits of

a marriage between the two.

134. Mitaksara on Yajnavalkyasmrti, 1.53

135. ‘relahse/cah svayonisu kuniarisvantyajasu ca.
sakhyuh putrasya ca strfsu gurutalpasamam viduh. ’ Manusmrti, XI.59
‘sakhibhdrydkumarTsu svayonisvantyajasu ca.
sagotrasu sutastnsu gurutalpasamam smrtam:'
Yajnavalkyasmrti, 111.231.

\
 78

Thus, the consideration o f sapiqda and prohibited degrees of

relationship regarding marriage has got equal importance in ancient and

modem law. The marriages in which these rules are not observed, considered

as illegal. These exogamic taboos are designed for the restriction of free

marital relationship. Their psychological origin lies in the horror of incest and

the consequent incest taboo which aims at preventing sex relationship between

parents and off springs and between brothers and sisters.

The number of degrees found in ancient days has been reduced to two

degrees each from the father’s and mother’s side in the present time. So,

according to the modem law, number is fixed at five on the father’s side and

three on the mother’s side. Moreover, sapinda and prohibited relationship are

differently shown in the modem law and thus it becomes very much clear and

systematic. But it must be admitted that regarding sapinda and prohibited

relationship modem laws are based on the laws in the Smrtis. However,

modification and improvements for the changing circumstances cannot be

denied in this regard.

DIVORCE

The term ‘divorce’ which is at present very popular was quite

unfamiliar for the ancient people. In the Vedic literature, there is no reference

to divorce. 136 In Indian marriage, the husband and wife were tied in a bond

which was unbreakable because their relations did not come to an end in this

world. In the Smrtis also marriage is considered to be indispensable and is

I3 g. Sup>a,No£e g^ p.f.4-2.
 79

regarded as sacrament.137 In this regard, Manu says that mutual fidelity

continues till death and it is considered as the highest dharma of the husband

and the wife. He is again of the opinion that neither by sale, nor1by
138
abandonment by the husband, the wife’s marital tie comes to an end.

Apastamba states that there is no division between husband and wife.

The general Hindu law set its face against the dissolution of marriage.

But it has not opposed to supersession of the wife by the husband. There were

various grounds for which a wife could be superseded. Manu has shown

different grounds of supersession. According to him, if a wife drinks

intoxicating liquor, is of bad conduct, rebellious, diseased, mischievous or

wasteful^, she may be superseded at any time and the husband may

marry another wife.140 Some other kinds of wife such as a barren wife, a wife

whose all the children die, she who bears only daughters and a quarrelsome

137.1bid
138. 'anyonyasyavyabhicari bhaveddmarariantikah.
esa dharmah satnasena jneyah sirtpumsayoh parah. ’ Manusmrti, IX. 101,
‘na niskrayavisargabhyam bharturbhdrya vimucyate.
evain dharmam vijandnah prakprajapatinirmitam: ’ Manusmrti, IX.46
139. Supra, Nole56, p.709
140. ‘madyap'd ’sadhuvrttta ca pratikula ca y d bhavet.
vyadhitava’dhiveltvya himsfathaghm ca sarvatha: ’Manusmrti, IX. 80.
 80

wife may be superseded. But he has shown sympathy to a sick wife who

is kind and virtuous. Such a wife may be superseded only with her own

consent and must never be disgraced.141 The latter law givers too lay down the

husband’s right of supersession in similar terms. As Yajnavalkya declares that

one who drinks wine or is diseased and guileful, one who is barren,

destructive of wealth, harsh tongued, bears malice to her husband, one who

bears only female children shall be superseded.142

Vasistha is of the opinion that one who is averse to sexual intercourse,

or to pilgrimage or to the performance of her duties or who has intercourse

with a disciple or an elder, these four kinds of wife should be abandoned.

According to Sankha Likhila, one shall supersede a wife who is habitually

unpleasant or inimical towards men or disagreeable.143 Narada is of the

opinion that a wife who always shows malice to her husband or makes unkind

141. Manusmrti, IX. 81,82

i

142. ‘surapfvyadhila dHurta vandhyarthaghnyapriyamvada

slrTprasuplddhivettavyd purusadvesim (athd: ’ Yajmvalkyasmrli, 1.73
143. Supra, Note 56, p.719
 81

words or eats before her husband shall be expelled from his house. 144 But in

cases of supersession also, the husband is to support his wife.145 j ;

. In the modern days the circumstances are such that the dissolution of

marriage termed as divorce is permitted by the government. The happiness of

the married life depends on the ability o f the husband and the wife to adjust

themselves. Each must respect the feelings and independence o f the other.

Where such an adjustment is impossible divorce is the only course open to

them. But it should be resorted to only in the circumstances provided by the

Hindu Marriage Act, 1955and not on flimsy grounds.

There are different grounds on which a marriage may be dissolved by

a decree of divorce. These are stated in section 13 of the Hindu Marriage Act,

1955. It declares that if the party other than the petitioner has voluntary sexual

intercourse with a person other than the spouse, if the petitioner is treated with

cruelly, if the other parly has deserted the petitioner for a continuous period of

two years, if the other party has ceased to be a Hindu and has been incurably

o f unsound mind then a marriage may be dissolved. Apart from these if the

144. ‘anarthcmlam satatam iathaivapriyavadinim ,

purvdsirim ca y d bharluh ksipram nirvasayed grhai: ’
Naradasmrti,IVJ2.93
145. Yajnavalkyasmrti, 1.74
 82

party other than the petitioner has been suffering from a virulent and incurable

form of ;tleprosy or has been suffering from venereal disease in a

communicable form or has renouced the world by entering any religious order

or has not been heard of as being alive for a period of seven years or more,

then also a decree of divorce can be given.

In the laws of the Smrtis it is seen that in those days if a wife was

diseased and harsh tongued then she was allowed to abandon. Section

13(iii),(iv) and(v) mention diseases as grounds of divorce. Section 13(i)(a)

permits one to divorce if treated with cruelty.

Hindu marriage was a bond which continued as long as husband and

wife were alive. Hinduism held that the marriage union was indissoluble.146

Even by sell or abandon the wife’s marital tie and duty did not come to an

end.147 Even if the wife commited adultery, the husband had to accept her as

his wife when she had expiated for it.148 Thus, the abandonment was not

divorce that is dissolution of the marriage tie and it was quite unknown to the

Smrtis.
*

REMARRIAGE OF WIDOWS

Almost all the legal authorities o f old are holding the view that a wife

once united with a man is united for good and there can be no separation from

146. Supra, Note 75, p.82

147. ‘na niskriyavisargabhyam bharturbharya vimucyate,
evain dharmam vijanimah prakprajapatinirmitam: ' Manusmrti, IX.46
148. ‘vipradustam striyam bharia niruddhyadekavesmani.
yalpumsah paraddresu taccainam carayed vraiam: ’ Manusmrti,Xl. 176

%
 83

him. Bute il may be observed that the custom o f levirale or Niyoga was quite

common in ancient times. Under this system if a woman’s husband was dead

or incapable o f procreating children then she was allowed to have conjugal

relations with her brother-in-law or some other relation till she got some

children.149

Side by side with Niyoga the widow remarriage also prevailed in

Vcdic society. Some widows in the Vedic age used to marry outside the circle

o f their late husband’s families. There is a reference to it in the Atharvaveda.

It slates that when a woman has one husband before and gets another; if they

present the panchaudana offering, they shall not be separated after the death. ^

A second husband dwells in the same world with his re-wedded wife, if he

offers the ajapdnchaudana.iS0 There is another clear indication of the w id o w s

remarriage in the same Samhita. There, it is said, ‘I have seen the young

maiden taken away from the dead and married.’151 Thus, there is no ground

for doubt that a widow after the death o f her husband was allowed to remarry.

Here, there is no suggestion to the effect that the widow is to marry only her

brother-in-law. However, references to regular remarriages of widows in

Vedie literature are few. It might be because Niyoga was then more popular

149. Supra, Note 109, p.144

150. ‘ydpun>ampatim vitvathanyam vindate’param.
pdiicaudanam ca tdvajam daddto na viyosatah:
samdnaloko bhavati punarbhuvaparah patih.
y o ’jampancaudanam daksiridjyotisam daddti:’Atharvaveda, IX.5.27-28
15\. Atharvaveda, XV111.3.3

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 84

than remarriage.152

In the days of Smrtis the practice of Niyoga was very common. In the

Dharmasutra of Gautama the writer considers and elaborates this practice.

According to him a woman who desires offspring when her husband is dead

can bear a son to her brother-in-law. The lawgiver Vaisistha while approving

of the practice of Niyoga lays down certain rules for the observance of a

woman who is desirous of getting a son by resorting to this expedient.

The rules of the institution o f Niyoga are given in various verses in the

Manusmrti. However, contradictions are found in this regard. He approves of

the practice of Niyoga but at the same time in certain verses he disapproves

this. It is stated in the Manusmrti that the appointment of widows is

considered as a good blame.154 But in another passage it is slated that on

failure of issue by her husband a woman who has been authorised, may obtain

the desired offspring by cohabitation with a brother- in-law or with some other

sapindas of the husband.155 The appearance that these ideas are conflicting

152. Supra, Note 109, p. 151

153. 'apatirapatyalipsurdevarat: ’Gautamadharmasutra, H.9.4.;
and also Vasisthadharmasulra, XVII.49, XVII.55-56
154. ‘latah prabhrtiyo mohdtpramftapatikam striyam.
niyojayalyapatydrtham (am vigarhanti sadhavah: ’ Manusmrti,JX68.,
155. ‘ devarddva sapindadva striydsamyamniyuktaya.
prajepsilddhiganlohyd santanasya pariksaye: ’ Manusmrti, IX.59.
 85

with one another may be Tor the reason that the Manusmrti many limes

reproduces the opinions of ancient schools of thought but omits possibly for
t

metrical reasons to mark them as belonging to different authors and

schools.156 Yajnavaikya declares that if a widow is without a son, her brother-

in-law or a sapinda or a sagolra shall approach her,for the purpose of

obtaining a son for her. In his law of inheritance, he quite unmistakably

acknowledges the existence of ksetraja sons who are bom in an appointed

wife.157 Narada is of the opinion that if the husband of a childless woman dies
I SR
she should go to her brother-in law through desire to obtain a son.

Thus, a widow was allowed after the drnth of her husband to approach

her brothcr-in law. It is only cohabitation, bci known by the technical name

of Niyoga, and not practice of remarriage.159 the possession o f a son to carry

on the household worship was regarded a vital necessity for a Hindu. This

caused the origin o f the practice.160

156. Supra, Note 75, p. 110.

157. '’aputrdm gurvanujnaio devarah putrakamyaya.
sapindo va sagotro vd dhrtdbhykta rtaviyat:
'agarbhasambhavdgdacchel patitastvanyatlia bhavet.
anena vidhind jatah ksetrajah sa bhavet sulah: ’
Ydjnavalkyasmrti, 1.68-69.
158. ‘anutpamaprajaydstupatihpreyadyadi slriyah,
niyukidgurubhirgaccheddevaram putrakamyaya: ’
Naradasmrti, IV. 12.80.
159. Supra, Note 75, p.105
160. Ibid., p.106

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 86

T h e S m r tis n e v e r o p in e in s u p p o r t o f w id o w re m a r r ia g e . T h e

M a n u s a m h ita is m o s t e m p h a tic in th is m a tte r w h ic h la y s d o w n th a t a w if e

m a y e m a c ia te h e r b o d y b y liv in g o n p u r e f lo w e r s , r o o ts a n d f r u its . B u t s h e

m u s t n e v e r m e n tio n th e n a m e o f a n o th e r m a n a fte rJ th e d e a th o f h e r h u s b a n d .

M a n u a ls o w a n ts th a t s h e m u s t r e m a in c h a s te a f te r th e d e a th o f h e r h u s b a n d . 161

T h e d ic tu m th a t a g ir l is g iv e n in m a r r ia g e o n ly o n c e 162 a l s o in d ic a te s th e firm

b e lie f o f M a n u th a t th e r e c a n b e n o re m a r r ia g e f o r w o m e n . T h e te s tim o n y to

p r o v e th e v a lid ity o f th is in f e r e n c e , a n u n m is ta k a b le p a s s a g e is f o u n d in th e

S m r ti w h ic h d e c la r e s th a t a s e c o n d h u s b a n d is n o w h e r e p r e s c r i b e d jo r v ir tu o u s

w o m e n . 163_ I t is a ls o s ta te d th a t a w id o w s h o u ld n e v e r e v e n th in k o f

r e m a r r i a g e . 164 Y a jn a v a lk y a a ls o d id n o t s u p p o r t r e m a rria g e . H e is o f th e

o p in io n th a t a m a id e n ’s m a r r ia g e c a n ta k e p la c e o n ly o n c e . 165 T h e

A p a s ta m b a d h a r m a s u tr a c o n d e m n s r e m a r r ia g e w h e n h e s a y s i f o n e h a s

in te r c o u r s e w ith a w o m a n w h o h a d a lr e a d y a n o th e r h u s b a n d o r w ith a w o m a n

o n w h o m n o m a r r ia g e s a m s k a r a h a s ta k e n p la c e o r w h o is o f a d if f e r e n t

v a r n a , th e n s in is in c u r r e d a n d th e s o n , b o r n o u t o f s u c h r e la tio n s h ip , a ls o is

1 6 1 . I b id ., p .9 6

1 6 2 . ‘ ........................s a k r t k a n y a p r a d i y a t e . ’ M a n u s m r t i , 1 X .4 7

16 3 . ‘n a d v itfy a s c a s a d h v T n d m k v a c id b h a r lo p a d is y a te : ' M a n u s m r ti, V . 1 6 2

1 6 4 . M a n u s m r ti, V . 1 5 7

1 6 5 . Y a j n a v a l k y a s m r t i , 1 .6 5 .
 7 i t , s
!-

87

sinful. Visnu recommends cdibacy to the widow.166 Narada can think of a

girl’s marriage only once.167

The actual instances of widow remarriages that can be clearly

distinguished from Niyoga are few. But they must not have been infrequent in

the society. The Vasislhadharmasutra allows remarriage even when the death

of the husband is only presumed and not proved. He says that even a

brahmana lady with living children should wait for 5 years if the husband

goes out and does not return.. She then may marry a near relative and person

outside the family. Here, it cannot be stated as a case o f Niyoga because he

extends permission to her who is having living children.168

Narada169and Parasara170 have given certain cases in which a woman

can obtain another husband. Those are- when the husband is lost, is dead, has

become a sahyasin, is impotent or is a patita. So, Narada and Parasara allow a

wife to remarry whose husband is dead. Great controversies raged round on

166. Supra, Note 109,pl53

167. ‘..... sakrl kanya pradiyate NiTradasmrti, XI1.28
168. Vasislhadharmasulra, XVll.69,70
169. ‘naste mrie p rat rajHe klfve ca paiite palau.
pancasvapatSit riarmam patiranyo vidhtyateNaradasmrti, IVTZ.97
170. ‘naste mrte prabrajite IdTve ca patite patau.
pdncasvapatsu riarmam patiranyo vidhtyate: ’Parasarasamhita, IV.30
cited in Chakravarty, Subodh,(ed). Vidyasagar Rachanavali, Kamini
Prakashalay,Calcutta, 1992, p.583

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this opinion. Pandit Iswarchandra Vidyasagara mainly on the text o f Parasara

contended that widow remarriage was permissible under Hindu law. The

Adi Purdna shows that the practice must be eschewed in the Kali age.172 The

Parasara Madhavtya gives the same opinion and states that the above

principle laid down by Parasara and Narada refers to the state of society of

another yuga and has no application in Kali age.173 The Smrtyarlhasdra

mentions certain views in this regard. It declares that according to some a girl

may be married to another if the bridegroom dies before saptapadf. Another

opinion is that she may be remarried if the first husband dies before

consummating the marriage.174 Thus, the interpretations found on the texts of

Narada and Parasara do not allow remarriage o f widows by any means.

Narada shows seven sorts o f wives who have been previously married

to another man. Among them the punarbhu is of three kinds and svairinTls of

four kinds.175 Among the three punarbhus the third one is that a widow can

171.Chakravarly, Subodh,(ed)., Vidyasagar Rachanavali?Kamfril

Prakashalay,Calcutta, 1992, p.587
172. ‘ udhdyah punarudvaham jyesthamsam govadhantathal
Kalau panca na kurvlta bhrtjjaydm kumandalum:’ Adipurana cited in
0

Sen, Priya Nath, General principles o f Hindu Jurisprudence, Allahabad

Law Agency, 1984, p.279

173. Supra, Note 5, p.611

174. Smrlyarthasara, cited in Kane, P.V., History o f Dharmamstra, Vol. 11,
Part 1, Bhandarkar Oriental Research institute, Puna, 1974, p.611.
175. lpunarbhustrividha idsdih svairinf tu caturvidha. ’ Naradasmrti, 1Y-J2.-45
 89

be given by husband’s relatives to a sapinda o f the deceased husband or the

person of the same caste on failure o f brother-in-law.176 But this is a case of

Niyoga and not actual remarriage.

Thus, in the days of Smrtis the system of Niyoga was quite prevalent.

Marriage in those days was regarded to be a permanent tie which once tied

could not be untied. It was indissoluble. The Smrtikaras opine that a girl can

be given in marriage only once. They also declare how a widow should stick

to different vows. However, in some o f the Smrtis a hint o f performance of

remarriage is also found. '

The Hindu Marriage Act, 1955 is very clear in allowing a widow for

remarriage. The section 5(i) of the Act provides that the parties to the

marriage must be either single or divorced- or widow or a widower. Though

certain Smjtiwriters mentioned about remarriage of a woman it may be

assumed that under normal circumstances the widow remarriage was not

prevalent in the days of Smrtis. According to them marriage was an eternal

union. At present, this idea regarding marriage has been given up and

remarriage of widows has been allowed to perform.

INTER-CASTE MARRIAGE

In the societies of ancient India, there was the recognition o f inter-

176. ‘asatsu devaresu strf bandhavairya pradiyate.

savarriaya sapindaya sa tr.tiydpraKTrtitaNaradasmjrti, IV-t 2.48
 90

caste marriages. However, there were some restrictions in this matter. Since

the Vedic times several examples of the inter-caste marriages were available.

In the Rgveda there' is the reference of the Brahmana sage Syavasva marrying
✓ _
the daughter of king Rathaviti Darbhya. In. the Satapatha Brahmana the story

of the sage Cyavana is found who was a descendant o f Bhrgu, marrying the
/ _
daughter of king Saryata. In another verse o f Satapatha Brahmana it is seen

that a king was allowed to marry a vaisya woman but her son would not be

entitled to the Vedic coronation ceremony.177

It is already stated in the discussion o f polygamy that in the days of

Smrtis also, the lawgivers have approved this type of marriage with some

restrictions. However, many conflicting opinions are also there.

i

BaudHayana178 says that a brahmana is allowed to marry one wife from his

own caste and another three from the three lower classes. Similarly, ksatriyas

are allowed to marry three wives- form vaisyas two and sudras one. While

discussing the inter-caste marriage Manu says that a sudra woman alone can

be the wife of a iudra, she and vaisya woman can be the wives o f a vai/ya;

ksatriya can have three wives namely ksatriya, vaisya and sudra and a

brahmana is allowed to marry four wives of all the different castes.179

177. Supra, Note, 5, p.447

178. ctesam varndnupur/ena catasro biidrya brahmanasya: tisro rajanyasya:
dve vaisyasya: ekSsudrasya: ’ Baudhayanadharmasutra 1.8.16.2-5,
/j_ __ __ / _ _ __ /
179. ‘sudraiva bharya sudrasya sa ca sva ca visah smrteh
ie ca f>vdcaiva rajnahjpstasca sva • ' edgrajanmanah: ’ Manusmrti III. 13

*
 91

However, there is another verse of Manu which contradicts their statement. It

states that a sudra woman is not mentioned even in any story as the wife of a

brahmana or of a ksatriya though they lived in distress.180 Yajnavalkya allows

three wives for the brahmana, two for the ksatriya and vaifya and only one

for the sudra.m

Though inter-caste marriages were allowed the lawgivers preferred

marriages of one’s own caste.182 The wives of the lower castes did not hold

the same dignified position as the wives of the same caste. In case of the

inheritance the sons of the wife o f the higher caste were entitled more shares

than the sons of the wife of the lower caste.183 Thus, the son of a brahmana

wife takes four shares, the son of a ksatriya wife takes three, the son of a

vaifya wife takes two and the son o f a siidra wife takes one share.184

(t
180. 'na bfdhmanaksalriyayorapdyapi hi tisthatoh.
kasmimscidapi vrttdnte sudra bHaryopadifyate: ’ Manusmrti III. 14
181. Yajnavalkyasmrti, 1.57
182. ‘savarnagre dvijatmam prasasta ddrakarmani.' Manusmrti III. 12,
‘sajatih sreyasi bharya sajatiscapatih striyah: ’Naradasmrti, 1VT2.,5
183. ‘vibhaktesu suto jatah savarndLydm vibfidgabhak: ’
Yajnavalkyasmrti, 11.125,
lcaturo 'msan haredviprastrTnamsdnksatriyasutah.
vaisyaputro hareddvyamsamamsam sudrasuto haret: ’
Manusmrti, IX. 152-153
184. Supra, Note 5, p. 449

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O f all the inter- caste marriages the marriage with a sudra wife though

allowed, was very much condemned. Even the marriage with a sudra woman

was performed without Vedic mantras.185 Apastamba prescribes the penances

for connection with sudra woman. Visnu says that a union o f a twice bom

man with sudra wife can never produce religious merit.186 Manu is of the

opinion that ' twice, bom men who marry sudra wives are responsible for

degrading their family and children.187 Yajnavalkya says that though marriage

of a brahmana with a sudra woman is legal, it is not approved by him because

C

188
the atman or soul itself is bom there in the wife as the son.

The ancient marriages ungrudgingly recognised marriages between a

brahmana and a ksatriya or a vaisya girl. But opinion o f marriage with a

sudra woman by a dvijatl is not unanimous. Such marriages took place but

were looked upon with disfavour and often condemned.189

185. *sudramapyeke mantravarjam tadvat: ’ Vasisthadharmasiitra,1.24.

186 Supra, Note 5, p. 448.
187. 'hmajdtistriyam moHadudvahanto dvijatayah.
kulahycva nayantyiisu sasantandni sudratdm:' Manusmrti 111.15.
188, ‘yaducyate dvijatmam sudraddaropasamgrahafy.
na tanmama matam yasmattatratma jayate svayarn: ’

Yajnavalkyasmrli, 1.56.

189. Supra, Note 184.

 93

Nowadays inter caste marriages are also valid as Hindu Marriage Act

has not laid any prohibition on the basis of caste. After 1955 marriages under

Hindu Marriage Act can be solemnised if both the parties are Hindus. In the

days o f the Smrtis though inter caste marriages were allowed there was

inequality among the castes. The wife belonging to a lower caste did not get

the same status as the higher one. After Independence the Democratic

Constitution of India has established equality among all its citizens. In part III

of the Constitution, it has been clearly stated that irrespective of religion, race

and caste all people are entitled to enjoy the fundamental rights.

WHETHER MARRIAGE IS A SACRAMENT OR A CONTRACT

Marriage is regarded as a sacrament by the ancient lawgivers. It is one

of the many samskaras prescribed for a dvija and the only one prescribed for a

woman who can perform it with mantras. Unlike the English and the

Mohammedan systems of law, marriage is not a mere civil contract but a

religious ceremony for the Hindus.190 Probably no other people have

endeavoured to idealise the institution o f marriage as the Hindus have done.191

190 Supra, Note 63, p.387

191. Supra, Note 48, p.63
 94

The effects as regards the permanency and indissolubility of a

marriage tie are apparently the result of Hindu law viewing marriage as a

religious institution in the sense that it is a sacrament and it is a holy union

affected through the law.

The marriage tie is indissoluble. Manu says that mutual fidelity

between the husband and wife continues till death, and this may be considered

as the highest dharma. He further says that once a man and a woman are

united in marriage, they must see that there are no differences between them

and that they remain faithful to each other.192

Marriage is one of the essential samskaras for every Hindu. Every

Hindu must marry. He only is a perfect man who consists of his wife, himself

and his offspring.193 Yajnavalkya states that on the death of her husband, or

while he is alive if she never approaches another man, she attains fame in this

world and rejoices in the company o f Goddess Uma.194(l)

192. ‘anyonyasyavyabhicari bhavedamarariantikah.

esa dharmah samdsena jneyah slnpumsayoh par ah:' Manusrart/, IX. 101,
and also IX. 102.
193. ‘etdvanevapurusoyajjaya’’imaprajeii ha.' Manusmrii,lXA5.
194(i). ‘mrte jfvati va patyauya ridnyamupagacchati.
seha kTrtimavapnoti modaie comaya saha: ’ Yajnavalkyasmrti, 1.75.
 95

Marriage as a sacramental union implies that it is a sacrosanct. Hindus

conceived of their marriage as a union primarily meant for performance of

religious and spiritual duties. Such a marriage cannot take place without the

performance of sacred rites and ceremonies. Secondly, a sacramental union

implies that it is a permanent union. Marriage is a tie, which once tied cannot

be untied. This., implies that marriage cannot be dissolved. Thirdly, the

sacramental union means that it is an eternal union; it is valid not merely in

this life but even after death in the other world.194^ Its implication has been

that widow remarriage as a rule was not recognised in Hindu law. The rule

was ‘once a maiden is given in marriage, a true wife must preserve her

chastity as much after as before her husband’s death’.!9S

The modem concept of marriage as a contract is an outcome of

industrial revolution, of its lofty ideals of liberty and equality. The great

contribution of the industrial revolution is emergence of the concept that ail

human and social relations must be based on the free volition o f individuals,

the highest human and social relationship that man has known, i.e., the

marriage, too, must be squarely based on the free volition of individuals.

Thus, marriage came to be considered as contractual union. Today, it is an

established notion of the western family law that a marriage in order to be

194(ii). Supra, Note 38(i), pp.64-65.

195. ‘nnie bhartari saxLhvTstn brahmacatye vyavasthita.
svargam gacchatyaputrapi yatfiale brahmacarinah. ’ Manusmrti, V.160.

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effective must be an agreement voluntarily entered into by both parties. The

consent of parties thus plays an important part in the formation o f marriage

contract.

The Hindu Marriage Act, 1955, has reformed the law o f marriage.

Sections 5, 11 and 12 of the Act are the pertinent provisions. The violation of

the requirements of clauses (ii) and (iii) of Section 5 do not render the

marriage void. Under Section 12, the violation of the former requirement

renders the marriage merely voidable, while the violation o f the latter

condition does not render the marriage void or voidable; the marriage if

performed is a perfectly valid marriage. It is a well-established rule of law of

contract that a contract for want o f capacity is totally void, it is void ab

initio.m Thus, it is clear that the Hindu marriage Act does not consider the

question of consent as of much importance. It does visualize that persons

incapable of giving valid consent or persons suffering from mental disorder or

recurrent attacks o f insanity should not marry. It does not attach the flame

consequences which are attached to the violation o f such conditions in an

ordinary contract. Here a marriage without consent is valid. A consenting

mind even now is not a condition precedent to a marriage. This is the

inevitable result of the combined reading o f Sections 5, 11 and 12 o f the

Hindu Marriage Act, 1955.

196. Indian Contract Act,l 872, Section 11.

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Tlius, Hindu marriage has not remained a sacramental union and has

.also not become a contract, though it has semblance of both. It has a

semblance of a contract as consent is of some importance. It has a semblance

of a sacrament as in most marriages a sacramental ceremony is necessary.

The ancient outlook on marriage has been changed in many respects in

modem times. It is because of the advancement of the modern society. So,

different changes and modifications have been done. By this the Hindu

Marriage Act gives protection to a woman which she did not get in ancient

days. However, many principles o f Smrtis are kept intact in modem law.