The Practical Lawyer

Ceremonial Validity of Hindu Marriages : Need for Reform

Ceremonial Validity of Hindu Marriages : Need for Reform

By Paras Diwan*
Cite as : (1977) 2 SCC (Jour) 22

The Hindu Marriage Act, 1955 has secularized the Hindu law of marriage in all respects except one1 and has abrogated
custom except in a few matters2 It is in regard to ceremonial validity of a Hindu marriage that the religious, sacramental
or non-secular character of Hindu marriages is retained. One of the matters in respect of which custom is retained is also
the ceremonial validity of Hindu marriages. This means that a Hindu marriage (and no marriage is valid unless it is
solemnized with proper ceremonies and rites)3 must either be performed with the shastric ceremonies and rites or in
accordance with the customary rites and ceremonies.4 It should be clearly understood that customary ceremonies and
rites can be performed only between the parties among whom (i.e. either on the side of the bride or the bridegroom)
customary rites and ceremonies were recognized before the coming into force of the Hindu Marriage Act, 1955. No new
rites and ceremonies of marriage can come into existence.5 When customary ceremonies and rites are not available to
parties, then marriage must be performed by the shastric ceremonies and rites. A Hindu marriage cannot be performed
by any other method, though Hindus are free to perform a civil marriage6, with all its consequences.7 Thus, for the
ceremonial validity of a marriage, three alternatives are available to the Hindus :

(i) Shastric ceremonies and rites : these rites and ceremonies must be those that are laid down in the shastric Hindu law,

(ii) customary ceremonies and rites : these rites and ceremonies may be religious, secular, elaborate, brief or nominal,
and

(iii) civil ceremonies, as laid down in the Special Marriage Act 1954.

Shastric Ceremonies and Rites

The ceremonies and rites for Hindu marriages are not laid down in the Dharmashastras. These are laid down in the
Grihya sutras. The Grihya-sutras prescribe very elaborate rites and ceremonies for marriage. Although the performance
of some of the ceremonies and rites begins a few days before the actual solemnization of marriage both at the place of
the bride and the bridegroom, all the essential ceremonies are performed at the home of the bride. Here we would review
briefly those ceremonies which are performed at the bride's home.

The ceremonial day of the solemnization of the marriage begins with the vriddhi sraddha. The father of the bride (or, in
his absence the next nearest male relation of the bride), on the forenoon of the day of the solemnization of the marriage,
performs the vriddhi sraddha in which offerings are made to the departed ancestors with a view to obtaining their
blessings for the marriage. On the same forenoon is performed, with the chanting of the mantras, the ceremony of giving
bath to the bride.

Anciently, there was the practice of setting apart a cow for the wedding feast.8 But later on when beef-eating was
prohibited, a practice grew of tying a cow and then letting it loose on the arrival of the bridegroom. At several places this
practice is still followed, though is not of much significance in modern Hindu society.

On the arrival of the bridegroom at the bride's place begins the performance of several important ceremonies. The first of
these is the ceremony of sampradana. In this ceremony padya (or water), for washing the feet, araghya (water mixed
with flowers, durva grass, rice and sandal paste), for washing the head, a cushion to sit upon, and madhuparka (mixture
of honey, curd and ghee) are given to the bridegroom along with other presents. This ceremony is performed amidst the
chanting of mantras and recitation of prayers. This ceremony is followed by the kanyadana ceremony, in which the father
of the bride formally gives the bride to the bridegroom (the right hand of the bride is tied with that of the bridegroom with
durva grass), amidst the chanting of mantras. Then the bride is formally accepted by the bridegroom with the recitation of
the following Hymn to Love (Kama Sukta).

Who gave her?

To whom did he give her?

Love (Kama) gave her (to me),

To love he gave her,

Love is the giver,

Love is the taker.

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Enter thou, (Oh ! my bride) the ocean of love,

With love I accept her,

May she remain thine,

Thine own, O ! God of love (Kama),

Verily, thou art (Oh ! my bride),

Prosperity itself,

May the Heaven bestow thee,

May the Earth receive thee.

The father of the bride then gives a piece of gold to the bridegroom by way of a present. This is followed by the tying of
the skirts of the mantles of the pair, signifying their union. The father of the bride invokes the bride-groom not to fail the
bride in his pursuit of dharma, artha, kama and moksha.

Then, the holy fire is lit, and the vivaha-homa is performed. On the west of the agni kunda is placed a mill-stone and on
the north-east is placed a water-pot. The bridegroom and the bride offer oblations to the holy-fire (the bride participates in
the offering of oblations by grasping the hand of the bridegroom). These oblations are made to Earth, Sky and Heaven
(the mahavayahritu-homa). The bridegroom also recites several mantras and invocations. Addressing to the bride he
says :

May thou never admit sorrow to thy breast,

May thou prosper in thy husband's home, blessed

With his survival and viewing cheerful children.

The next important ceremony is the ceremony of panigrahana in which the bridegroom standing up and facing west takes
the hand of the bride, while the latter sits in front of him facing east. While so holding the hand of the bride, the
bridegroom recites the following Vedic hymn :

I take thy hand in mine,

Yearning for happiness,

I ask thee to live with me

As thy husband,

Till both of us, with age grow old.

Know this, as I desire that the Gods,

Bhragu, Aryama, Savita and Purandhi,

Have bestowed thy person upon me,

That I may fulfil my Dharma

Of the householder with thee.

On the completion of this invocation, the bride performs the laja-homa in which she offers oblations to Aryama, Varuna,
Pusha, and Agni so that the gods may be pleased to free her from their bonds.9

The ceremony of panigrahana is followed by the ceremony of agni-parnayana.10 According to the Griha-sutras,
parinayana are three, though in practice they are usually seven or five (in all sacramental marriages they are even now
invariably performed). The agni-parinayana is the rite of going round the nuptial fire and water-potall the time the couple
keeps to the right-hand side of the nuptial fire and the water-pot. The bride-groom recites the following hymn :

This I am, that art thou,

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That indeed, art thou, this, yea, This I am.

I, the heaven, thou, the earth,

I am saman11, thou are rik12,

Let us marry, let us marry here.

Let us join together and beget our little ones,

Loving each other, desirous of moral splendour,

With genial minds and hearts,

Thus, yea, thus may we live,

Through a hundred autumns.

At the end of each round around the holy fire, the bride with the helping hand of the bridegroom mounts the mill-stone.
The bridegroom recites the following hymn :

Mount upon this stone,

Like a stone be firm,

Overcome the enemies,

Tread over the foes down,

Even as you tread over this stone.

Chanting the hymn, "I release thee now from the bondage of Varuna", the bridegroom loosens two locks of the bride's
hair.

The last ceremony of the rites and ceremonies of a Hindu marriage is saptpadi which is the most important ceremony
and must be performed in all sacramental marriages. This is the ceremony in which the bridegroom leads the bride for
seven steps in the north-eastern direction, while chanting the following hymn :

Let us pray together,

For life's sap, as we tread one step along,

For life's juice, as we go two steps together,

For wealth more abundant, as we go three steps together,

For happiness in life, as we walk four steps together,

For off-spring, as we move along five steps together,

For a long wedded-life, as we go six steps together,

Be thou my life-mate as we walk up seven steps together,

Thus, thou go together with me for ever and for ever,

Let us acquire many sons who may reach old age.

On the completion of the seventh step the bridegroom addresses the bride thus :

May none interrupt thy association with me,

May such as are disposed to promote our happiness,

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Confirm thy association with me.

With the recitation of the following prayer, water is poured in the hands of the couple :

May water and all gods cleanse our hearts ;

May air do so, may Creator do so ;

May the divine instructress unite our hearts.

Joining his hand with his wife, the husband recites certain prayers and then addresses her thus :

Give thy heart to my religious duties,

May thy mind follow mine,

Be thou consentient to my speech,

May Brihaspati unite thee unto me.

The saptpadi is the most material of all the nuptial rites, as marriage becomes complete and irrevocable on the
completion of the seventh step. According to Manu : "The nuptial texts are a certain rule in regard to wed-lock ; and the
bridal contract is known by the learned to be complete and irrevocable on the seventh step of the married pair, hand in
hand, after those texts have been pronounced."13 Other sages14 are to the same effect ; so are the commentators15
and judicial pronouncements.16

The last ceremony that is performed at the bride's place is known as uttara-vivaha.17 After the completion of this
ceremony the bride is conducted is solemn procession to her husband's home where several texts are recited.18

In most of the Hindu marriages performed in average Hindu homes, these ceremoniesor at least most of themare
performed at the time of the solemnization of marriage, though only in a few marriages the sacred hymns and verses are
recited by the bride and the bridegroom. The function of recitation of hymns and sacred texts is performed by the pandit
or the priest officiating at the marriage. It seems to be clear that the chanting of the hymns, mantras, verses and sacred
texts is not essential in modern Hindu law for the validity of a Hindu marriage.

The question is : of the above ceremonies which are absolutely essential for the valid solemnization of a Hindu marriage
under the modern Hindu law?

The answer to the above question is not simple. The judicial pronouncements do not clearly lay down which of the
ceremonies are essential for the valid performance of a Hindu marriage. However, there need not be any doubt about
one ceremony, viz., the saptpadi which is absolutely indispensable for the performance of a Hindu marriage by the
shastric rites.19 Sub-section (2) of Section 7, Hindu Marriage Act lays down : "Where such rites and ceremonies include
the saptpadi . . . the marriage becomes complete and binding when the seventh step is taken".20 The Madras High
Court, after examining all the relevant texts, came to the conclusion that in reality for the ceremonial validity of a Hindu
marriage only two ceremonies are essential, one consists of the secular element, i.e. the gift of the girl (this will include
sampradana and kanyadana); and the second consists of religious element, i.e. the performance of panigrahana and
saptpadi.21 The Bombay High Court said that for the validity of a Hindu marriage the two essential ceremonies are,
lajahoma and the saptpadi.22 In Rampiayar v. Deva Roma23, the court said that though vivaha homa is a usual
ceremony of a Hindu marriage, but its non-performance does not render the marriage void, if the saptpadi has been
performed. It also seems to be settled that in the Gandharva form of marriage which is available to all Hindus and which
is a marriage with the mutual consent of the bride and bridegroom, the ceremony of kanyadana is not necessary.
Although all the shastric rites that are performed among the twice born Hindus are also performed by sudras, the
performance of the vivaha-homa is not essential among them.24 It also seems to be established that the presence of a
priest to officiate at the nuptial rites is not necessary.

In view of this state of judicial authority, the text-book writers also do not add to clarity. Mayne said, "The performance of
the homam, the panigrahana or taking hold of bride's hand and going round the fire with Vedic mantras, the treading on
the stone, and the seven steps or saptpadithese are the more important rites mentioned by it. The marriage becomes
complete and irrevocable on the completion of the saptpadi or ceremony of seven steps and from that moment, the wife
passes into her husband's gotra. Till then the marriage is imperfect and revocable".25 Mulla holds the view that (i)
invocation before the sacred fire, and (ii) the saptpadi are the only two essential ceremonies of marriage.26 But he
quotes no authority.27

This means that the question as to which are the essential ceremonies of a Hindu marriage under the modern Hindu law
still remains unanswered. In the present submission the key may lie in looking at the character and nature of Hindu
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marriage in modern Hindu law. Although most Hindus still prefer to call their marriage a sacrament, the fact of the matter
is that very little of sacramental aspect of Hindu marriage has been left.28 It is neither an eternal union (a union for all
lives to come, as ancient Hindus held), since a widow29, widower and divorcee are free to remarry, nor is it an inviolable
marriage, since divorce is recognized.30 The Hindu Marriage Act calls a Hindu marriage simply as "Hindu marriage".31
What is left of the sacramental aspect of a Hindu marriage is that some shastric ceremonies are still required for its
solemnization. In view of this, it seems that the only ceremony that is obligatory for the solemnization of Hindu marriage
is the saptpadi.

Customary ceremonies and Rites

It is interesting to note that the Grihya-sutras, while prescribing all the elaborate ceremonies and rites, also lay down that
a marriage may be solemnized in accordance with "the customs of the different countries and villages."32 It has been the
settled law even before the coming into force of the Hindu Marriage Act that if a community does not recognize any of the
shastric ceremonies and rites of the marriage, their omission will not render a marriage invalid provided the ceremonies
and rites prescribed by the community are performed.33 Numerous customary ceremonies and rites have been
recognized by the courts.34 The only change that the Hindu Marriage Act makes in this regard is that if a marriage is
solemnized by the customary rites and ceremonies recognized on the side of one of the parties to the marriage (it may
not be recognized on the other side), then the marriage will be valid.35 For the performance of customary ceremonies
and rites it is essential to establish that the caste or community has been continuously following such rites and
ceremonies from ancient times and the caste or community regards performance of such ceremonies as obligatory,
provided such customary ceremony and rites are not against morality, law and public policy.

No one, not even a community, organization or movement, is free to alter, vary or create a ceremony at one's pleasure.
When the Arya Samaj movement simplified the ceremonies and rites for the solemnization of marriages among the Arya
Samajists, an Act had to be passed to set at rest all doubts relating to validity of such marriages.36 Even for the validity
of marriages among the Sikhs by ananda karaj a statute had to be passed.37 The question of innovation of new
ceremonies and rites came before the Madras High Court in an interesting manner.38 In Tamilnadu there exists an
organization, now for at least half a century, known as Anti-Purohit Association or Self-Respectors' Cult. This is an inter-
caste organization, the main objective of which is to do away with the traditional rites and ceremonies prevalent among
the Hindus. It has also innovated some very simple rites and ceremonies of marriages. Such marriages are known by the
name of suyamariyathai or seerthiththa marriages. When such a marriage is to be performed then the relatives and
friends of the bride and bridegroom and the notable persons of the locality are invited, and among the invitees some one
is requested to preside over the function. The bride and the bridegroom are introduced to the guests, and in their
presence the simple ceremony of exchanging garlands and rings between the bride and the bridegroom is performed.
Two other alternative ceremonies may also be performed : (a) a simple ceremony of tying the thali, or (b) the bride and
bridegroom may declare in any language understood by them that each takes the other to be his wife or, as the case
may be, her husband. When the validity of one such marriage was questioned before the Madras High Court,
Satyanarayana Rao, J., said that it may be very laudable object to simplify the procedure applicable to marriages as laid
down in the shastras and custom, but it will be a dangerous doctrine to lay down that a community should have liberty to
prescribe the requisites of a valid marriage without any statutory authority. No one can alter personal law. The marriage
was held void. This decision led to statutory recognition of such ceremonies and rites.39 The result of this statutory
modification is that a mere execution of a document by the spouses that they have become husband and wife will
amount to a declaration in the presence of friends and other persons,40 and will confer the status of husband and wife
on the parties.

Just as no one is free to innovate ceremonies, similarly no one is free to perform any ceremonies of marriage, even
though the intention to be man and wife may be there. This question has come before our courts in bigamy cases.41
Prosecution for bigamy cannot stand unless the solemnization of the second marriage by the requisite rites and
ceremonies is established. The question came before the Allahabad High Court in a very interesting manner.42 One Dr.
N. A. Mukerji performed three different ceremonies of marriage at three different times with one Smt. Harbans Kaur (who
was a married woman and whose husband was living). The first ceremony was performed in a moonlit night in the open
where Dr. Mukerji after reciting a few Sanskrit verses embraced Smt. Harbans Kaur and exclaimed, "Moon you are my
witness. I am marrying Harbans and she is my wife and I am her husband". The second ceremony was performed eight
years later in a Kali temple where the parties exchanged garlands in front of the deity and walked seven steps together.
The third ceremony was performed a day later before Guru Granth Sahib : an imitation of ananda karaj. The court held
that the performance of such mock ceremonies of marriage does not constitute a valid solemnization of marriage.

Not merely the ceremony and rite should not be a mockery, but it is also necessary that the requisite ceremony prevalent
and recognized either on the side of the bride or on the side of the bridegroom should be performed. Thus, if a Buddhist
and a Jain solemnize their marriage by ananda karaj (which is a valid Sikh ceremony), then marriage will not be valid,
since ananda karaj is neither recognized on the side of the bride nor on the side of the bridegroom. But if a Sikh and a
Jain solemnize their marriage by ananda karaj, the marriage will be valid.

Thus, neither the innovation of ceremonies is allowed nor can a marriage be performed by any sort of ceremonies. In
either case, the marriage will be void. Derrett says that intention should be the criterion. "Did they intend to become man
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and wife? If they did so, the choice of ceremony is irrelevant . . . . If on the other hand she aimed to be no more than a
permanent concubine, the ceremonies, no matter how elaborate, should not have the effect of turning her into a patni
against her intention !"43 It is submitted that this is not so under Hindu law. Under Hindu law it is the solemnization of
requisite ceremonies and rites that confers the status of husband and wife, and if requisite ceremonies are not
performed, the marriage is null and void, unless custom permits such a marriage.44

In this jumble of customary ceremonies and rites of marriage, where the burden of proof is on the party who alleges the
customary ceremonies and rites, the only redeeming feature seems to be the rule of presumption of marriage. Section
144 of the Evidence Act lays down that where independent evidence of solemnization of marriage is not available, it will
be proved to be a valid marriage by continuous cohabitation between the parties unless contrary is proved. It has been
held at an early date that the policy of law is to lean in favour of validity of marriage.45 It has also been held that
continuous and prolonged cohabitation gives rise to a presumption in favour of marriage, and against concubinage.46 In
every case it is necessary to establish that solemnization of marriage took place, once that is proved. It is not necessary
to show that each and every ceremony was performed.47 Where it is alleged that all ceremonies were performed, but
there is no proof of the performance of any ceremony and rite, such as of kanyadana or saptpadi, and where no guardian
for marriage (the girl being below eighteen) of the bride was present at the time of marriage, it cannot be presumed that
essential ceremonies were performed.48 Thus, the rule of presumption in favour of solemnization of marriage helps only
to an extent.

This writer is in respectful agreement with S. V. Gupte that "it is unfortunate that in each case even after the codification it
would have to be ascertained whether the marriage was performed according to the customary rites and ceremonies of
any particular spouse".49 In the submission of the present writer it would be better that if a simple ceremony of marriage
is devised which is available uniformly to all Hindus.

Civil Ceremonies

If two Hindus want to perform a marriage under Hindu law, then it has to be either according to the shastric ceremonies
or the customary ceremonies. If two Hindus want to perform their marriage by a civil ceremony they can do so under the
Special Marriage Act, 1954, but then it will not be a Hindu marriage. It will be a marriage which will be governed not by
Hindu law but the Special Marriage Act, 1954. Further, if a Hindu wants to perform a marriage with a non-Hindu without
converting to the religion of the non-Hindu, then he has no option but to perform his marriage in the civil form. The
Special Marriage Act, 1954 is an enabling statute : if two personsany two persons50want to solemnize their marriage
under the Act, they may do so. But, the fact of the matter is that in the aforesaid two situations a Hindu has no option
(unless he wants to remain a celibate) but to perform his or her marriage under the Special Marriage Act. In fact, any
inter-religious or inter-communal (i. e. when both persons are not Hindus, Muslims, Christians, Parsi or Jews) marriage
has to be performed under the Act.

Apart from the consequences that capacity to marry, ceremonies of marriage, matrimonial reliefs and ancillary reliefs are
all governed by the Special Marriage Act, if a person wants to perform a civil marriage (popularly known as court
marriage), there are other consequences also. Some of these consequences apply to all persons who marry under the
Act. These are : (a) succession to the property of any person whose marriage is solemnized under the Act and to the
property of the issue of such marriage "shall be regulated" by the provisions of the Succession Act, 1925, and not by their
personal law,51 and (b) any person whose marriage is solemnized under the Act "shall have the same rights and shall be
subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste
Disabilities Removal Act, 1850 (21 of 1850) applies,"52 The Marriage Laws (Amendment) Act, 1976 has now modified
these consequences so far as the Hindus are concerned, if both the parties to the marriage are Hindus.53 In such a case
succession to their property as well as the property of their issue will be governed by Hindu law.54 But if only one of the
parties is a Hindu, then the same consequence will follow.55 This modification does not apply if both the parties are
Muslims, Christians, Jews or Parsis. The Act of 1976 modifies the second consequence by laying down it will not apply
so far as it "creates a disability". Again, this modification will apply only if both the parties are Hindus. It will not apply to
non-Hindus even if both the parties belong to the same religion or faith.

One of the consequences of marrying under the Special Marriage Act, 1954 applied only to the Hindus. Before the
Amendment of 1976 it was laid down that if a Hindu performed a civil marriage then it "shall be deemed to effect his
severance" from the coparcenary whose member he was at the time of the marriage.56 The Marriage Laws
(Amendment) Act, 1976 modifies this consequence on the same line as it has modified the other two consequences, so
that, if both the parties to the civil marriage are Hindus then it will not affect their severance, but if only one of them is a
Hindu, then it will still effect severance of status.

The three consequences which flowed if a Hindu performed a civil marriage were obviously a deterrent (and probably
meant to be) to the performance of a civil marriage by a Hindu, and thus only a rebel Hindu could take recourse to it (i.e.
when a marriage was to be performed against the wishes of the parents even if both the parties were Hindus, or when
only one of the parties was a Hindu). Thus, though a person marrying under the Act has not to "abjure his religion"57, he
has to abjure his personal law.

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In the present submission the civil marriage form has been provided to Hindus (i.e. when both the parties are Hindus) by
a circuitous route, and somewhat grudgingly.

Conclusion

Then, this is the state of law of ceremonial validity of Hindu marriages. This state of law is far from being satisfactory.
Many cases of prosecution for bigamy fail because of the lack of proof of solemnization of the second marriage with
requisite rites and ceremonies.58 This writer would submit that in respect of ceremonial validity of Hindu marriages, the
Hindu Marriage Act may be amended incorporating the following suggestions :

(I) A simple ceremony of marriage should be laid down which should uniformly apply to all Hindu marriages. This may be
something like this : in the presence of relatives and/or friends and/or acquaintances (whose total number should not be
less than five), the bride and the bridegroom should exchange garlands, and with the skirts of their mantles tied together
they should seek blessing from the elders present there (if any) and greet friends and acquaintances. It is submitted that
the tying of the skirts of the mantles of the bride and the bridegroom is part of the ceremony and not the seeking of elders
and greeting of others.

(II) A civil ceremony of marriage59 on the lines of the Special Marriage Act, 1954 with simple formalities should also be
made available to all Hindus under the Hindu Marriage Act (contrary to popular belief, formalities of a civil marriage or
court marriages, as they are commonly called, are not simple or easy ; ten sections of the Special Marriage Act deal with
them60), and facilities for its solemnization should be made available in the villages also. All the panchas of a gram
panchayat, all the revenue officers upto the level of patwari and all officers of the rank of magistrate (of all grades, and
both executive and judicial) should be empowered to officiate (they may be designated as marriage officers) at civil
marriages61 Not more than three days' notice of marriage should be necessary if parties belong to the same locality, and
not more than ten days notice should be necessary if parties do not belong to the locality where the marriage is to be
solemnized.62 All objections to the solemnization of the marriage should be disposed of within twenty-four hours.63 No
appeal should lie if the objection is rejected. But if the objection is sustained the parties should have a right to appeal to
the lowest civil court within thirty days of the order. The marriage may be solemnized at any place wherever the bride and
the bridegroom want it to be solemnized on payment of a fee of Rs. 11 to the marriage officer. The parties should also
provide free transport (whatever mode may be available locally) to the marriage officer. The usual civil form of
solemnization of marriage may be laid down, viz., in the presence of marriage officer and three witnesses, the parties
should say to each other in the language understood by them, "I (A) take thee (B) to be my lawful wife (or husband)".

(III) The performance of either of the two ceremonies suggested above should be necessary for the ceremonial validity of
all Hindu marriages. This suggestion, however, does not prevent parties from performing any other additional ceremonies
and rites, shastric or customary, very elaborate or very brief.

(IV) Registration of Hindu marriages performed in either of the above forms should be made compulsory. All revenue
officers upto the level of patwari, all local self-government bodies, such as corporations, municipal boards, town area
committees, village panchayats and all magistrates (of any rank, executive as well as judicial) should be authorized to
keep a marriage registration book and should be empowered to enter a certificate of marriage therein. Such certificate
should be signed by the parties to the marriage and two witnesses who were present at the time of the solemnization of
marriage.

All marriages solemnized in a State should be published in Official Gazette of the State Government.

* Professor of Laws, Punjab University, Chandigarh. Return to Text

- Some still show a lingering attachment to the notion that Hindu law is still a religious law. The fallacy lies in the belief
that all personal laws in India are religious laws. The fact of the matter is that modern Hindu law, particularly the codified
Hindu law, is not a religious law at all. Modern Hindu law, both codified and uncodified, undoubtedly applies to the
persons who are Hindus, Jains, Sikhs and Buddhists by religion. It is equally true that Hindu law applies to all those
persons who are not Muslims, Jews, Christians or Parsis, irrespective of the fact whether they are or are not Hindus,
Jains, etc. To both the categories of these persons Hindu law applies irrespective of the fact that they are atheists or
totally anti-Hindusim. Return to Text
- Under the Hindu Marriage Act 1955 the following matters are still governed by custom : prohibition for marriage either
on the ground of consanguinity or affinity, ceremonies of marriage and customary mode and forum of divorce. Return to
Text
- Bhaurao Shankar v. State of Maharashtra, AIR 1965 SC 1584; Ranwalram v. H.P., AIR 1965 SC 614. Return to Text
- Section 7 runs : (1) Hindu marriage may be solemnized in accordance with customary rites and ceremonies of either
party thereto. (2) Where such rites and ceremonies include saptpadi (that is taking of seven steps by the bridegroom and
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the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
Return to Text
- Ralathi v. Selliah, (1966) 2 MLJ 40. The case has been discussed by G. Sitaram Sastry, in (1967) I Law Review, 86-87.
Return to Text
- Under the Special Marriage Act 1954. Return to Text
- See Chapter IV of the Special Marriage Act 1954. Return to Text
- See the UTTARCHARITA, IV. Return to Text
- This is based on the following legend : The bride is given to man by three gods, viz., Soma, Gandharva and Agni, who
were her first three husbands. The mantra that is recited before the nuptials is, "Soma had acquired thee as his wife ;
after him Gandharva acquired thee, thy third husband was Agni : and the fourth is thy human husband. Soma had given
thee to Gandharva, Gandharva gave thee to Agni. Oh ! wife, Agni has, besides thee, given wealth and children to me".
Return to Text
- Popularly known as pheras. Return to Text
- That is to say, music, song and rhythm. Return to Text
- That is to say, poetry and verse. Return to Text
- The MANU SMRITI, VIII, 227 Return to Text
- Yama see COLEBROOKE'S DIGEST, IV, 175; Vashistha see COLEBROOKE'S DIGEST, IV, 174; NARADA SMRITI,
XII, 3. Return to Text
- Medhatithi quoted in NIRNAYA SINDHU, III, 1; see for other texts, COLEBROOKE'S DIGEST, IV. Kulluka Bhatt says
that wifehood is not constitued without saptpadi and the nuptial texts. Return to Text
- Brindaban v. Chandra, 12 Cal 140 ; Bulli Appana v. Subamal, 1938 Rang 111 ; Devani v. Chindavaram, AIR 1954 Mad
65 ; Kanta Devi v. Sri Ram, AIR 1963 Punj 235 ; Venkata v. Tangutaru, AIR 1968 AP107. Return to Text
- This ceremony consists of two parts, one, in which the bridegroom shows the bride the polar star, the emblem of
stability and exhorts her to be stable in her husband's family. The other part is the one in which the husband takes a part
of meal and the wife takes the remainder. See Gurudas Bannerji, HINDU LAW OF MARRIAGE AND STRIDHAN, (4th
edition), 97-98. Return to Text
- Ibid., at 98. Return to Text
- See cases cited in footnote 16. Return to Text
- The authorities of Hindu law like Colebrooke (ASIATIC RESEARCHES, Vol. VII, 303), MacNaughten (PRINCIPLES OF
HINDU LAW, 61), Strange (ELEMENTS OF HINDU LAW, 37) take this view. Return to Text
- Deviani v. Chindaravam, AIR 1954 Mad 65. Return to Text
- Appibai v. Khimji, AIR 1936 Bom 138. Return to Text
- AIR 1923 Rang 202. Return to Text
- Authikeshavalu v. Ramanujan, (1909) 32 Mad 512 ; Kameshwara v. Veeracharlu, (1911) 34 Mad 422. According to the
VYAVAHARA MAYUKHA (IV, 5, 12-14) the performance of homan may be done through a Brahaman. Return to Text
- Mayne, HINDU LAW AND USAGE (11th ed.) 161. Return to Text
- Mulla, HINDU LAW (13th ed.) para 437. Return to Text
- The only case which takes this view is Appibai v. Khimji, AIR 1936 Bom 138. Return to Text
- See author's work MODERN HINDU LAW, CODIFIED AND UNCODIFIED, (3rd edition), 66-68. Return to Text
- See Hindu Widows' Remarriage Act, 1856. Before the commencement of this statute, on account of the notion that a
Hindu marriage is a union for all lives to come, a widow was not permitted to remarry, since even on becoming widow
she continued to be the wife of her deceased husband. Return to Text
- Hindu Marriage Act, 1955, Sections 13 and 13-B. Return to Text
- The marginal note to Section 7 runs, "Ceremonies of Hindu Marriage". It may be recalled that the Hindu Code Bill
called Hindu marriage as a "sacramental marriage", See Part II, Chapter I. Return to Text
- See the ASVALAYANA GRIHYASUTRA, 1, 7, 3-22 ; APASTAMBA GRIHYASUTRA, IV, V, VI, VIII. Return to Text
- Authikesavalu v. Ramanujan, (1909) 32 Mad 512 ; Muthusami v. Masilmni, (1910) 33 Mad 342. Return to Text
- Some of the customary ceremonies and rites may be noted here. Among the Santhals the only ceremony necessary
for solemnization of a marriage is the smearing of vermillion by a santhal man on the forehead of the santhal bride ;
Dhama v. E., AIR 1943 Pat 109 ; Layya Charan v. Dhkhee, (1850) 5 Cal 692. Among the Nayahans in the South India,
the only ceremony necessary for the solemnization of the marriage is, tying of a nadu veeta thali in the neck of the bride :
Tirumalai v. Ethirajammah, (1946) I MLJ 438. Among the Jati Vaishavavas the only necessary ceremony is the exchange
of garlands between the bride and the bridegroom, called Kanti-badal : Bonodeberharry v. Sashy Bhushan, (1919) 24
CWN 968. Return to Text
- Section 7. Return to Text
- The Arya Marriage Validation Act, 1937. Return to Text
- The Anand Marriage Act, 1909. Return to Text
- Deivayani v. Chidambara, AIR 1954 Mad 657 ; Rajathi v. Selliah, (1966) 2 MLJ 40. The same view was expressed by
the Calcutta High Court in Radindranath v. State, AIR 1969 Cal 55. Return to Text
- The Madras Legislature amended the Hindu Marriage Act by inserting a new Section 7-A which validates such
marriages. The new provision came into effect from January 17, 1968 and it applies only to the marriages performed in
State of Tamilnadu. Return to Text
- Raghubir v. Shammugvadiyar, 1971 Mad 330. Sub-section (1)(a) of Section 7-A stipulates that a mere declaration by
the parties that they take each other as husband and wife is enough for the solemnization of marriage. Return to Text
- Bhau Rao v. State of Maharashtra, AIR 1965 SC 1564 ; Kanwal Ram v. State of Himachal Pradesh, AIR 1966 SC 614.
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 The Practical Lawyer

See a very interesting and learned comment on the former case by M. B. Majumdar in (1966) 68 Bom LR (J) 57. Return
to Text
- Dr. A. N. Mukerji v. State, AIR 1969 All 489. Return to Text
- CRITIQUE OF MODERN HINDU LAW, 300. However, Derrett has said this in a different context-a girl who intended to
marry is duped into masquerade ceremony and finally is told that she was not the wife. In this context, Derrett says that
the intention of the parties to be married should be conclusive. Return to Text
- In Punjab, under customary law in the kerava and chadar Andazi marriages there are no ceremonies : intention to live
together as husband and wife followed by actually so living is enough to constitute it a valid marriage and confer the
status of husband and wife on the parties : Sohan Singh v. Kabla Singh, AIR 1928 Lah 706 ; Charan Singh v. Gurdial
Singh, AIR 1961 Punj 301(FB). See an interesting article by M. L. Jain in AIR 1961 Jour 84, where the author comes to
the conclusion that under the Hindu Marriage Act no specific ceremonies are required. This article has been replied by K.
S. Mathur in AIR 1962 Jour 27. The author says (it is submitted rightly) that under the Act a marriage must be performed
either by the shastric or customary rites and ceremonies, and it cannot be performed without any ceremony or with rites
and ceremonies which may please the whims and fancies of parties. Return to Text
- Inderu v. Ramaswamy, (1869) 13 MIA 141 ; Maujilal v. Chandravati, 38 IA 122 ; Chettiar v. Michael, AIR 1963 SC 933.
Return to Text
- Gola v. Parvan, AIR 1952 SC 231 ; Sitabai v. Vittalbai, AIR 1959 Bom 508 ; Kewa v. Galharsingh, AIR 1967 MP 164 ;
Kastoori v. Chiranjilal, AIR 1960 All 446. Return to Text
- Inderu v. Ramaswamy, (1869) 13 MIA 141. Return to Text
- Kunta Devi v. Sir Ram, 1963 Punj 235. Return to Text
- S. V. Gupte, Hindu Law of Marriage (1976), 154. Return to Text
- Section 4. Return to Text
- Section 21, Special Marriage Act. Return to Text
- Section 20, Special Marriage Act. Return to Text
- If both the parties are Hindus, Jains, Sikhs or Buddhists. Return to Text
- Hindu Succession Act, 1956. Return to Text
- Section 21-A, Hindu Marriage Act 1955. Return to Text
- Section 19, Special Marriage Act, 1954. It may be interesting to note that such a provision was inserted in 1923 (when
the civil marriages were made available to Hindus by an amendment of that year in the Special Marriage Act, 1872. Dr.
Gour, who had sponsored the 1923 amendment, said, "The orthodox members of the Select Committee had proposed
this clause as a deterrent against persons resorting to such marriages. But the present writer accepted it (Dr. Gour was a
member of the Select Committee) as a happy release from a continued union in which embarrassing situations might be
created by the orthodox members of his family, contesting his right in his property by survivorship or inheritance, in which
case the misfortunes of the widows married under the Amended Act and their children would be aggravated because of
the persons marrying under the Amended Act, having to declare that they professed the Hindu religion, and since the lex
loci is construed by the Privy Council in a limited sense as noted under that Act, a Hindu marrying under the Act, does
not stand to gain by continuing to remain a member of the coparcenary. But so far as his own rights are concerned, he
remains entitled to all those rights of inheritance to his other relations, near or remote as if he had never married under
the Act". (HINDU LAW 1938, p. 1199). Return to Text
- A. A. A. Fyzee, Some Problems of Muhammadan Law in India in I. L. I's Property Relations in Independent India, 261
at 263. It seems that this observation was made in the context of a Muslim marrying, or registering his marriage, under
the Special Marriage Act. In that event succession to his property is governed not by Muslim Law but by the Indian
Succession Act. Thus, a Muslim is, happily, relieved of the disability of his personal law which does not permit him to
dispose of more than one-third his bequeathable assets by a will, unless heirs consent to it. Now, if he so chooses he
can bequeath his entire property and he can bequeath it to anybody. The Hanafi law does not permit a Muslim to
bequeath any property to an heir unless other heirs agree to it after the death of the testator. Return to Text
- See cases cited in footnotes 41 and 42. Return to Text
- It appears that when the Law Commission considered (59th Report), and the Select Committee and Parliament
deliberated on, the matter, nobody cared to have a look at the Rau Committee's Report and the draft Hindu Code Bill.
The Hindu Code Bill contained two provisions relating to ceremonies of marriage. For marriages which were called
"sacramental marriages" it was laid down, "A sacramental marriage shall not be complete and binding on the parties
unless it is solemnized in accordance with such customary rites and ceremonies of either party thereto as are essential
for such marriages" (clause 8). For marriages, which were called "civil marriages", it laid down that a civil marriage may
be solemnized in any form, 'provided that it shall not be complete and binding on the parties unless each party says to
the other in the presence of the Registrar and the three witnesses, 'I (A) take thee (B) to be my lawful wife (or husband)'
clause 18(2). Return to Text
- From Section 5 to Section 14. In all the Act has 51 sections. Return to Text
- Under Section 3, Special Marriage Act, 1954 the State Governments have power to appoint marriage officers by a
notification issued in the Official Gazette. A similar provision could be enacted in the Hindu Marriage Act. Return to Text
- Under the Special Marriage Act, 1954 a notice of 30 days is required. Return to Text
- Under the Special Marriage Act this may take considerable time. Return to Text

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