CHANAKYA NATIONAL LAW UNIVERSITY

TOPIC:- NATURE OF HINDU MARRIAGE :SACRAMENTAL TO CONTRACTUAL

SUBMITTED TO:- Mr. SHAIWAL SATHYARTHI

SUBMITTED BY:NAME: SRISHTI RAI ROLL NO: 820 SEMESTER: III BATCH : 2012-2017

ACKNOWLEDGEMENT

I feel highly elated to work on the topic Nature of hindu marriage : sacramental to contractual under the guidance of my teacher Mr.Shaiwal Sathyarthi .I am very grateful to him for his exemplary guidance. I would like to enlighten my readers regarding this topic and have tried my best to pave the way for bringing more luminosity to this topic. I also want to thank all my friends ,without whose cooperation this project would not have been possible .Apart from all these ,I want to give special thanks to the librarian of my university who made every relevant material related my topic available to me and gave me assistance . And finally yet importantly I would like to thank my parents for their support.

THANKING YOU SRISHTI RAI ROLL NO. 820

Contents
ACKNOWLEDGEMENT ............................................................................................................................ 2 CH1- INTRODUCTION .................................................................................................................................... 4 CH2 MARRIAGE :ITS SOCIAL ASPECT ........................................................................................................... 5 CH3-SACRAMENTAL NATURE OF HINDU MARRIAGE.................................................................................... 7 CH4- MARRIAGE AMONG MUSLIMS /CONTRACTUAL MARRIAGE ............................................................... 8 CH5- THEORIES REGARDING DIVORCE .......................................................................................................... 9 CH6- CONCLUSION ...................................................................................................................................... 14 BIBLIOGRAPHY ............................................................................................................................................ 16

CH1- INTRODUCTION
According to the tenets of Hinduism, marriage is a sacred relationship, a sacrament, and a divine covenant meant for procreation and the continuation of family lineage. In the traditional Hindu system of marriage, there is no role for the state as marriage remained a private affair within the social realm. Within this traditional framework reference, marriage is undoubtedly the most important transitional point in a Hindus life and the most important of all the Hindu samskaras, or life-cycle rituals. Historical Perspective - Manu, Ardhangini, marriage is an essential Sanskara, man is incomplete without wife. Once performed, it cannot be dissolved. Modern Perspective - Civil contract.Can be dissolved.Cannot force to live together.Equality of sexes.Can't be done without consent.

Marriage, whether considered as a sacrament or a contract, gives rise to a status.It confers a status of husband and wife on parties to the marriage, and a status of legitimacy onthe children of the marriage. For a valid marriage, in most systems of law, two conditions arenecessary(a) parties must have capacity to marry, and(b) they must undergo the necessary ceremonies and rites of marriage.1In some ancientcommunities both the requirements were nominal. Any two persons, a man and a woman, couldlive together as husband and wife if they intended to do so. Even today, in some systems of law,the requirement of capacity and formalities are not very stringent, though most systems requirethat some conditions must be satisfied. Some modern systems still lay down very stringentconditions of capacity and prescribe very elaborate ceremonies and rites of marriage. Some insiston the performance of some public ceremonies, while in others performance of privateceremonies is enough. In our contemporary world, in most systems, marriage is considered either as a contract or a near contract, and the requirements of capacity are laid down by law. Mostsystems even to-day insist on performance of some ceremonies of marriage, religious or secular,elaborate or simple. Hindus refined the institution of marriage and idealized it. In this processthey have laid down detailed rules covering practically all aspects of marriage. Whilemaintaining some continuity with the past, the Hindu Marriage Act has simplified the law of marriage. The Act has also added a chapter on matrimonial causes.InTikaitMunmohintiv. BasantKumar,it was observed that in Hindu
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http://www.scribd.com/doc/9411637/DIVORCE-UNDER-HINDU-MARRIAGE-ACT-1955

Law, marriage wassacrament, a union, an indissoluble union of flesh with flesh, bone with boneto be continuedeven in the next world. According to the Hindu texts, a man cannot be said to have a material existence until he took a wife. A man is the only half of his self. Therefore he is not fully bornuntil he takes a wife and after marriage alone he becomes complete. That is why the Brahminsdeclare thus : The person known as the husband is verily known as the wife. Nature and concept of Marriage (under the Hindu Marriage Act).Marriage under the HinduMarriage Act,1955, no longer remains a sacrament an eternal union for spiritual purposes.Under the Act, provisions for the divorce are laid down in Sections 13 and 13-B of the Act.Moreover, remarriage of a widow woman or a widower is possible. Therefore, the sacramentalcharacter of the Hindu marriage has been done away with by this Act.Hindu marriage,however, has not become a contract, because essential requirements of contract are lacking in theHindu marriage. Marriage of a person of unsound mind or of a minor is not void, though theagreement entered into by these persons are void. Marriage of a person of unsound mind isvoidable under Section 12 (1) (b) of the Act; and marriage of a minor is valid marriage, though punishable under Section 18 (a) of the Hindu Marriage Act and also under the provisions of the Child Marriage Restraint Act, 1929. .

CH2 MARRIAGE :ITS SOCIAL ASPECT

Marriage is one of the deepest and most complex human relationships. It is the cornerstone of a society. It involves social sanction, generally in the form of civil or religious ceremony,

authorizing two persons of opposite sexes to engage Social Institution ofMarriage in sexual union. Dr. ,Radhakrishnan (former President of India) observe "marriage as not a mere convention, but an implicit condition of human society. It is institution devised for the expression and development of love.2Its purpose is not only the generation and nurturing of children but also the enrichment of the personality of the husband and wife through the fulfillment of their need

http://www.egyankosh.ac.in/bitstream/123456789/36902/1/Unit-2.pdf

for a permanent comradeship, in which each may supplement the life of the other and both may achieve completeness". Marriage is an institution in which men and women are admitted to family life, to live in the intimate personal relationship, primarily for a purpose of begetting and rearing children. From the social point of view, marriage is an institution that serves to ensure propagation and socialization of children of a particular society. From the individual point of view, it provides assistance in bearing and raising of children and controls for the receipt and extension of affection. Another view is that marriage is a socially legitimate sexual union, begun with a public announcement and undertaken with some idea of contract, which spells out reciprocal rights and obligations between spouses ant their future children. Indian Views on Marriage Marriage has been considered a ceremonial gift of the bride by her father, or other appropriate relative to the bride groom in order that both may together fulfill their duties which are necessary for human existence. These duties are "Dharma, Artha and Kama". Dharma is religious duty based on ethical values, that is to do good and attain Moskha or salvation. Artha is the economic aspect of life and Kama is the physical or sexual duties to the partner and to produce children to perpetuate race. Marriage is not for sense of enjoyment, but to perpetuate the race. This is the Indian conception of marriage. It is a social duty towards the family and community. Social Institution of Marriage , Indian religious texts say that marriage is a religious sacrament which is considered primarily a complex of obligations, religious and moral on the one hand, and social and economic on the other hand. The Hindu concept of marriage is that it is a sanskara (tradition) and a religious sacrament, not a contract. It is a holy union of the two souls and not simply of two bodies. It is an indissoluble bond which could be broken only by death. On the other hand Islam says that marriage is an institution ordained for the protection of the society and in order that human beings may guard themselves from foulness and unchastity. Marriage is not a sacrament but civil contract, the objectives of which are the promotion of normal family life and the legalization of children. Among the Christians marriage has been viewed as " a voluntary union for life of one man and one woman to the exclusion of others". This type of marriage is monogamous.

Summarizing the above views, marriage is a unionof two persons of different sexes to lifelong reciprocal possession of their sexual qualities, which aims at the individual's biological,

emotional, social and spiritual fulfillment and development and which cannot be achieved in isolation.

CH3-SACRAMENTAL NATURE OF HINDU MARRIAGE

The Hindu view of marriage is that it is for fulfilling dharma and the need for pleasure (Kama). It is considered as a sacrament. There are several reasons for considering the Hindus marriage a sacrament. 1) Dharma (fulfillment of religious duties) is the most important aim of marriage 2) Performance of religious ceremonies including certain rites like kanyadan,panigrahana,

saptapadi etc. which are based on certain sacred formulae. 3) The rites are performed before Agni ( the most sacred god) by reciting mantras (passage) from Vedas (the most sacred scriptures) by a Brahmin. 4) The union is considered indissolvable and irrevocable and husband and wife are bound to each other not only until death, but even after death. 5 ) Though a man can perform several sacraments during the course of his life, a woman can perform only one sacrament in her life i.e. marriage, hence it has great importance for her. 6) Emphasis is on chastity of a woman and the faithfulness of a man. 7 ) Marriage is considered a "social duty" towards the family and community and there are no ideas of individual interest and aspiration. Why is it Sacramental? As per Contract Act 1872, contract with a minor is void ab initio. Even though section 5(2) says that valid consent is required and section 5(3) says that the boy should be above 21 yrs and the girl should be above 18 yrs, marriage done in contravention of these provisions is not void. Marriage with a minor is not even void able only on that ground. In one leadingcase, it was held

that the person married may be a minor or even of unsound mind, yet if the marriage rite is duly solemnized, it is a valid marriage.3 Section 7 of HMA1955 requires that religious ceremonies are a must to complete a marriage. A marriage done without "saptapadi" is void.

Even now bachelors are not eligible to perform several religious ceremonies. Only married couples are allowed. Thus, it still retains its sacramental property. No-fault divorce, as available in western countries, is not available in HMA 1955. Thus, breaking up of a marriage is very difficult.

CH4- MARRIAGE AMONG MUSLIMS /CONTRACTUAL MARRIAGE

Marriage among Muslim is universal and obligatory. Since the Muslim community discourages celibacy, marriage has to be performed. It is true that marriage among Muslim is a civil contract as it is meant for procreation of children and legalizing sexual intercourse; it is a religious duty also. It is considered an 'ibadat'. 4Characteristic features of Muslim marriage are;acceptance of the proposal of marriage by the bride; capability of the bridegroom to enter into a marriage contract; preferehce system i.e. parallel cousins (father's I brother's daughters) and cross cousins (mother's brother's daughters) are given preference; and marriage is valid only if it is free from legal complications. It may be noted that man and women did not enjoy equal rights with regard to the provision of divorce. Women have always been at the receiving end. However, industrialization, urbanization, modernization and I , spread of modern education have drastically changed the perspective. Spread of small family norm and lesser incidence of divorce are some of the impacts of social change on the institution of Muslim marriage.

Why is it Contractual?
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http://www.lawyersclubindia.com/forum/Hindu-Marriage-a-pure-Contract--12849.asp#.UHjgE8VheZ4 http://www.egyankosh.ac.in/bitstream/123456789/36902/1/Unit-2.pdf

The fact that consent of the boy and the girl is required means that it is contractual. If the consent is obtained by force or fraud, the marriage is voidable.Marriage is no more permanent since divorce is available by mutual consent.Marriage is no more holy because a marriage can be done without all the ceremonies such as vivahhomam. Only saptapadi is required.

CH5- THEORIES REGARDING DIVORCE

The provisions relating to divorce is contained in Sec 13 of Hindu Marriage Act, 1955.The Act recognizes two theories of Divorce: the fault theory and divorce by mutualconsent. Under the fault theory, marriage can be dissolved only when either party to themarriage had committed a matrimonial offence. Under this theory it is necessary to havea guilty and an innocent party and only innocent party can seek the remedy of divorce.However the most striking feature and drawback is that if both parties have been at fault,there is no remedy available.Another theory of divorce is that of mutual consent.5 The underlying rationale is that sincetwo persons can marry by their free will, they should also be allowed to move out of theirrelationship of their own free will. However critics of this theory say that this approachwill promote immorality as it will lead to hasty divorces and parties would dissolve theirmarriage even if there were slight incompatibility of temperament.Some of the grounds available under Hindu Marriage Act can be said to be under thetheory of frustration by reason of specified circumstances. These include civil death,renouncement of the world etc. In this article we shall see that how these theories, owingto change in social circumstances and change in attitude towards the institution of marriage had failed to provide full justice in matrimonial cases.

No fault theory of Divorce The institution of marriage being distinct as regards its socio-economic and legal footings, it will be unjust if the law ignores the importance attached to 1 Section 13 of the Hindu Marriage Act 1955; Section 27 of the Special Marriage Act 1954; Section 32 of the Parsi Marriage and Divorce Act 1936; Section 10 of the Divorce Act 1869 and
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http://www.scribd.com/doc/9411637/DIVORCE-UNDER-HINDU-MARRIAGE-ACT-1955

Section 2 of the Dissolution of Muslim Marriage Act 1939.t. But at the same time it is the choice of the parties to a valid marriage tounderstand the importance of the institution and to preserve its sanctity. Withthe changing requirements, attitude and aptitude, the society has drasticallychanged and it is very difficult for the married couples to cope with change.While adjusting in a new atmosphere in the matrimonial home, spouses maycommit, knowingly or unknowingly, with or without intention, whether economicaldependent or independent, some kind of mistakes which lead to a communicationgap between them and create havoc in the matrimonial home.6Some times noparty is willingly ready to hurt another one but circumstances beyond controlcreate unhealthy atmosphere in the matrimonial home. It is difficult to say whichparty is at fault but matrimonial relationship loses its sweetness and its sanctity.At the same time it is more difficult to find out bitterness between the parties if they are well educated, working and economically independent because eachindividual has his own style of living.Where both the parties of a valid marriage are at fault of any kind of matrimonial offence, it is difficult to prove which one is an aggrieved party.According to the Doctrine of Recrimination, no remedy can be granted to theparty who is at fault. It is imperative in law to have one party as innocent andanother at fault to provide a matrimonial relief. A person who seeks matrimonialremedy must come to the Court with clean hands. For example, if in a petitionfor divorce on the ground of respondents adultery, it is found the petitioner is also guilty of adultery, then the petition will not be granted divorce even thoughthere is no corelationship between the two adulteries. English law abandonedthis position in later law and changed the matrimonial laws as per the need andrequirements of the time.In case of no fault theory of divorce, it is not necessary to prove whichparty is at fault. There may be many reasons based on which sweetness ofmatrimonial relationship is at risk. If the parties prove with reliable evidence onrecord that their marriage is beyond all possible repairs then law should understand the reality of the facts and should help the parties to the marriagewhich has broken down irretrievably.The Law Commission of India in its 71st Report on the Hindu Marriage Act 1955 - Irretrievable Breakdown of Marriage as a Ground of Divorce hadsuggested that the theoretical basis for introducing irretrievable breakdown asa ground of divorce is one with which, by now, lawyers and others have becomefamiliar. Restricting the ground of divorce to a
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Irretrievable Breakdown of Marriage : Right of a Married Couple, NALSAR Law Review Vol.5 : No.1.

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particular offence or matrimonialdisability, it is urged, causes injustice in those cases where the situation is suchthat although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen asituation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily,the marriage is merely a shell out of which the substance is gone. In suchcircumstances, it is stated, there is hardly any utility in maintaining the marriage as a faade, when the emotional and other bounds which are the essence of amarriage have disappeared.The breakdown theory of divorce which is inherently attached with nofault theory of divorce represents the modern view of divorce. Under this theory,the law realises a situation and says to the unhappy couple: if you can satisfythe Court that your marriage has broken down, and that you desire to terminatea situation that has become intolerable, then your marriage shall be dissolved,whatever may be the cause. The marriage can be said to be broken when the objects of the marriage cannot be fulfilled. When there is not an iota of hopethat parties can be reconciled, it can be considered as irretrievable breakdownof marriage. Another logic why this theory holds is that after the marriage hasceased to exist in substance and in reality, there is no reason for denying divorce.Divorce should be seen as a solution and an escape route out of a difficultsituation. Such divorce is unconcerned with the wrongs of the past, but isconcerned with bringing the parties and the children to terms with the newsituation and developments by working out the most satisfactory basis uponwhich they may regulate their relationship in the changed circumstances. Infact, the intention of the Parliament to introduce the concept of breakdown intothe Hindu Marriage Act 1955 is evident from the statement of objects and reasons of the Amendment Bill, which reads as follows: The rights to apply for divorce on the ground that cohabitation has notbeen resumed for a space of two years or more after the passing of a decreefor judicial separation, or on the ground that conjugal life has not been restoredafter the expiry of two years or more from the date of decree for restitution ofconjugal rights should be available to both the husband and the wife, as in such cases it is clear that the marriage has proved a complete failure. There is,therefore, no justification for making the right available only to the party whohas obtained the decree.7

Vide Gazette of India, Extraordinary, Part II, S. 2, p. 86.

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In Madhukar v. Saral,8 the Bombay High Court held that the enactmentof Section 13 (1-A) in 1964 is a legislative recognition of the principle that in theinterest of society, if there has been a breakdown of the marriage, there is nopurpose in keeping the parties tied down to each other. In Abu Baker Haji v.ManuKoya,9the Kerala High Court held that trivial differences get dissolved in course of time and may be treated as teething troubles of early matrimonialadjustment. The stream of life lived in married mutuality washes away smallerpebbles but that is not the case when the incompability of minds breaks up theflow of stream. In such circumstances the breakdown of marriage is evident sowe recognize that fact and accord divorce.10 The Delhi High Court also observedin Ram Kali v. Gopal Das11 that it would not be a practical and realistic approach,indeed it would be unreasonable and inhuman to compel, the parties to keep up the face of marriage even though the rift between them is completed and thereare no prospects of their ever living together as husband and wife.The Law Commission of India in its 71st Report on Reform of theGrounds of Divorce said that objectives of any good divorce law are two fold: One, to buttress, rather than undermine, the stability of marriage, and two,when regrettably, a marriage has irretrievably broken down, to enable the emptyshell to be destroyed with the maximum fairness, and the minimum bitterness,distress and humiliation.12 If a marriage has broken down beyond all possibilitiesof repair, then it should be brought to an end, without looking into the causes ofbreakdown and without fixing any responsibility on either party. In contemporary society, the breakdown of marriage theory is recognized by the laws of many countries and a trend towards this theory becomesdiscernable through two methods: (1) by enlarging the number of grounds basedon the fault theory; and (2) by giving the widest possible interpretation to thetraditional fault grounds. Cruelty has proved to be the most fertile ground. In Gollins v. Gollins,13 the husbands failure to take up a job, his inabilityto maintain his wife and his dependence on his wife to pay off his pressingdebts was held to be a conduct amounting

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AIR 1973 Bom.55-57. AIR 1971 ILR 338 (Ker.).

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Aboobacker v. Mam 1997 KLT, 66 as quoted in ParasDiwan, Hindu Law, 2nd ed. 2002, p. 565. (1971) ILR 1 Del. 6 12 71st Report of the Law Commission of India, para 15.
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[1963] 3 All ER 966: [1964] AC 644.

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to cruelty. In Williams v. Williams,14husbands persistent accusations of adultery against the wife were consideredamounting to cruelty, despite the fact that the husband was found to be insane. In Masarati v. Masarati,15 the Court of Appeal held that today we areperhaps faced with a new situation as regards the weight to be attached to oneparticular factor that is the breakdown of marriage. In the MortimerCommittees report the breakdown of marriage is defined as: such failure inthe matrimonial relationship or such circumstances adverse to that relation thatno reasonable probability remains for the spouses again living together as husband and wife.16 In Hindu law, the breakdown theory has its own version. Under the HinduMarriage Act 1955-76 divorce can be obtained by either party to a valid marriageon the following grounds: (a) If it is shown that a decree of restitution of conjugal rights has not beencomplied with for a period of one year or more, or (b) If it is shown that cohabitation has not been resumed for a period of oneyear or more after passing of the decree for judicial separation. These grounds of divorce are not recognised under the Special MarriageAct 1954-76. Thus, the breakdown theory was introduced into the Indian Law byallowing divorce both to the so called innocent and the guilty parties. However,the provisions of the matrimonial bars under both the Acts were overlooked.The Law Commission of India in its 71st report has recommended thatirretrievable breakdown of marriage should be a separate ground of divorce forHindus. It suggests the period of three years separation as a criterion ofbreakdown. On the basis of the report, the Marriage Laws (Amendment) Bill198115 was introduced in the Parliament but was allowed to lapse on accountof opposition by some womens organizations.17

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[1963] 2 AII ER 994. [1969] 1 WLR 392. ParasDiwan, Modern Hindu Law, 17th ed. 2006, pp. 68-77.2010 http://www.nalsar.ac.in/pdf/Journals/Nalsar%20Law%20Review-Vol.%205.pdf

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CH6- CONCLUSION
Marriage is one of those institutions that distinguishes society from simply a herd of human beings. Marriage among the Hindus is a sacrament since time immemorial; it is almost obligatory and unavoidable for an average Hindu. Every Hindu is committed to marriage, as it is regarded as a great sacrament. With the marriage sacrament, husband and wife enter Grihasthashrama to establish family life. The basic aim of marriage is dharma for it is necessary for fulfillment of number of moral duties. The desire to have progeny or praja is also regarded as one of the sacred purposes of Hindu marriage. To attain moksha, every Hindu male must have a son behind him to perform the rites at his funeral pyre and to perform parental obligations. Such a son must be from his marriage and not illicit relationships. This was considered as a social duty towards the family and community. Thus, the prime goal in a marriage was to become united in purpose and spirit. There are certain rites which must take place to complete a Hindu marriage. The three main rites associated with marriage are: offerings to the sacred fire, taking of the hand of the bride and taking of the seven steps around the fire by bride and bridegroom together. During the nuptial ceremony in a Vedic marriage, both the bride and the bridegroom take oath for the practice of self-restraint, to work together for the welfare of the family and to help each other to attain spiritual peace. This lofty ideal of sanctity is a great gift of Hinduism to the world at large. Marriage holds much importance for a woman, as observed by K.M.Kapadia, that it is the only sacrament that can be performed by her. It involves sacrifices on the part of both. So, it is indissoluble, as the bond of marriage once tied can never be broken, eternal a relationship for seven births and religious, which can be said to be complete only on the performance of certain rites by a Brahmin. The Hindu Marriage Act, 1956 by permitting divorce, whether by court or by the parties through mutual consent, has allowed the institution to loose its permanence. The Widows Remarriage Act, 1856 has changed the notion of pativrata. Lastly, marriage is given a status of life-long companionship by the society. Modernization has allowed the differences to creep in men and womens expectations from a marriage, by entrusting women with double roles, both inside and outside home. Dr.TharaSrinivasan, Marriage Counsellor and Director, Schizophrenia Research Foundation, Chennai (SCARF), observed that marriage is no longer held to be a divine match
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or a sacred union. Further, she found that there is disenchantment with the system of arranged marriages and a reluctance to take the matrimonial plunge. She added that marriage must be regarded as a life-long process of cementing a relationship in the face of several adversities and an ongoing process of physical and emotional accommodation, sharing and loving. All imitation marriages, which are flourishing are leading to erosion of values in matrimonial life and increase in the instability in relationships. If the trend towards living-together arrangements gains momentum, tense relationships between children and parents could develop and problems in dividing parenting responsibilities may increase. They accompany with themselves lack of respect and integrity for each other. The only advantage that can be predicted is that the partners are free from the pain of separating or continuing a painful relationship. There is increase in the number of extra-marital relationships, including open gay and lesbian relationships, a delay in the age of getting married and more egalitarian gender-role attitudes among men and women, where norms and values have been totally restructured. In 1993, Popenoe characterized marriage as more flexible and as a path towards self-fulfillment a voluntary relationship that people can make or break at will. A study of historical traditions of religion may help in understanding the importance of marriage. The institution of marriage must be accorded recognition and accepted, as it enjoys social recognition and cultural support in Hindu society. As a beautifully sculpted institution, soaked in the acute deep and careful understanding of human nature, a samaskar must continue the way it has been for centuries by recognizing its ever-increasing role in the society.

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BIBLIOGRAPHY
BOOKS: 1. A. N. Saha, Marriage and Divorce (5thedn., Calcutta: Eastern Law House, 1996). 2. B. Sivaramayya, Matrimonial Property Law in India (New York: Oxford University Press, 1999). 3. Dr. P. Diwan and P. Diwan, Modern Hindu Law (Codified and Uncodified) (12thedn., Haryana: Allahabad Law Agency, 1998). 4. Dr. P. Diwan, Law and Marriage and Divorce (Allahabad: Wadhwa and Co., 1988). 5. Dr. Sir H. S. Gour, The Hindu Code: II (6thedn., Allahabad: Law Publishers Pvt. Ltd., 1998). 6. Lawmanns Matrimonial Laws (New Delhi: Kamal Publishers, 2007). 7. P. M. Bromley, Family Law (5thedn., London: Butterworths, 1976). 8. S. A. Desai, Mulla Hindu Law: II (17thedn., New Delhi: Butterworths, 1998).

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