DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

FAMILY LAW- I

CHANGING ASPECTS OF HINDU MARRIAGE

Submitted To Submitted By

Mrs Samreen Hussain AniketSachan

Assistant Professor, Law B.A. LLB(HONS)
Dr. Ram Manohar Lohiya IIIrd-semester
National Law University SECTION-“A”
Contents

INTRODUCTION ..................................................................................................................... 3

THE CHANGES IN THE MARRIAGE SYSTEM OF HINDUS ............................................ 4

 Marriage is not held as compulsory: ............................................................................... 4

 Change in the process of Mate Selection: ....................................................................... 4

 Same Gotra marriage restriction removed ...................................................................... 5

 The Age at Marriage: ...................................................................................................... 5

 Changes in the Rites of Marriage: .................................................................................. 5

 Change in the Stability of Marriage: ............................................................................... 6

 The Problem of Remarriage: ........................................................................................... 6

 Shift from old Hindu law to recent Hindu marriage act regarding forms of marriage ... 7

 Inter Caste marriage ........................................................................................................ 7

 Prohibition of Polygamy: ................................................................................................ 8

 Condition for marriage .................................................................................................... 8

CONCLUSION .......................................................................................................................... 9

BIBLIOGRAPHY .................................................................................................................... 10
 INTRODUCTION

Hindu marriage is an important institution and it is based on religion, religious rites and for the
pursuit of religion. The practice of monogamy, absence of widow remarriage lack of facility
for easy divorce and chastity are regarded as important ideals now we see that changes have
occurred in the institution of Hindu marriage, because of several factors such as urbanization,
industrialization, secularization, modern education impact of Western culture, and marriage
legislations; changes are taking place in Hindu ideals, forms and values of marriage.

Marriage is considered to be an institution in India. It is a ‘sanskara’ or purificatory ceremony

obligatory for every Hindu. The Hindu religious books have enjoined marriage as a duty
because an unmarried man cannot perform some of the most important religious
ceremonies. There are various types of marriages that are followed in our country monogamy
being followed at large.

As the society has advanced the Hindu marriage has gone through various changes. Even values
attached to it have changed tremendously. Individuals now are selecting their mates according
to their own requirements. Many are not getting into matrimonial alliances due to some
problems.

Family system in Hindu society is not just for man –woman relationship, it is for procreation,
healthy rearing of children, psychophysical sustenance, economic security, cultural continuity
down the generations and strengthening the foundation of human society as a whole.

Marriage as an institution is very old and popular in most parts of the world. Marriage is very
well accepted and supported by the society as it involves many religious rituals which
strengthen the family system. It is an unconditional sacrament in which husband and wife are
submissive to each other.

Due to the influence of Western culture and English education the Hindu marriage system has
undergone considerable changes. Some of the important ones are:
 THE CHANGES IN THE MARRIAGE SYSTEM OF HINDUS

 Marriage is not held as compulsory:

In Hindu society formerly marriage was considered to be absolutely compulsory for both male
and female. Universality of marriage was a special feature of Hindu society, since a son is
essential for attaining heaven and salvation of the ancestors. Besides, a wife was necessary for
performing his dharma and religious activities.
But today young educated boys and girls do not believe in the ancient religious values. Many
girls are not prepared to accept the slavery of boys. Many economic independent girls remain
unmarried unless they get a suitable match for them. So marriage has ceased to be universal
and compulsory in Hindu society.

 Change in the process of Mate Selection:

As far as the selection of the bride and bridegroom was concerned it was the prerogative of the
parents or the guardians This tradition of selecting the marriage partner for sons and daughters
continued till the end of 19th century but when the ideas of liberalism and industrialism were
incorporated into Indian society as a result of the impact of Western culture, the situation has
changed.

As a result of this some cases of individual choice of mate was found. In the post independent
India, the tendency of selecting one’s own partner has remarkably increased. Now-a-days the
younger generation is not very much in favour of parental choice in matter of selection of
marriage partners. A new trend is emerging in the process of mate selection among the middle
and upper class educated youth in urban areas. In some cases marriage partners are chosen by
children. In most of the cases the parents allow their children to have a say in selection of
partners.1

1
KM Kapadia, 'Changing Patterns of Hindu Marriage and Family' (JSTOR, 2018)
<https://www.jstor.org/stable/42864490?Search=yes&resultItemClick=true&searchText=changing&searchText
=aspect&searchText=of&searchText=hind > accessed 21 October 2018.
 Same Gotra marriage restriction removed
In the case of Madhavrao vs. Raghavendrara2, the essence of the case was whether 'sagotra'
marriage or marriage within the same gotra was valid under Hindu custom.
The court initially relied on a landmark 1868 case where the Privy Council had stated, "under
the Hindu system of law, clear proof of usage will outweigh the written text of the law.
However, a custom, which was at variance with the written text of Hindu law, had to be ancient,
certain and reasonable if it was to be recognised by the court.3
After going over several court rulings on the evidence to prove a custom, the bench concluded
that the marriage in question between a husband and wife belonging to same gotra was valid.

The Hindu Marriage (Removal of Disabilities) Act, 1946 validated sagotra and sapravara
marriages. Such marriages are also valid under Hindu Marriage Act, 1955. It removed all the
restrictions on inter-caste, inter-sub-caste, sagotra and sapravara marriages.

 The Age at Marriage:

In course of time child marriage became the prevalent mode of marriage in India. Hence, child
marriage was the practice to safeguard chastity and purity of females. The practice of child
marriage was strong even in the 20th century. In the 20th century, the Child Marriage Restraint
Act, popularly known as Sharada Act prescribed the minimum age of marriage at 14 years for
girls and 18 years for boys.

Then, the Indian Parliament raised the age of marriage. For girls, the minimum age is 18 years
and for boys 21 years. Marriage of boys and girls below the prescribed age has been made a
cognisable offence.

Various sociological studies conducted in the last few decades have revealed that the trend in
age at marriage from 1930 onwards has shown a continuous change. Due to certain changed
social conditions, people prefer marriage at a higher age now-a-days.

 Changes in the Rites of Marriage:

Traditionally, Hindu marriage is a religious sacrament and the Hindu marriage can take place
only through the performance of certain rights and rituals. Some of the most important rites

2
AIR 1946 Bom 377.
3
Ronojoy Sen, 'Same-Gotra Marriage Legal, Court Had Ruled 65 Years Ago - Times Of India' (The Times of
India, 2018) <https://timesofindia.indiatimes.com/india/Same-gotra-marriage-legal-court-had-ruled-65-years-
ago/articleshow/5932546.cms> accessed 20 October 2018.
and rituals connected with Hindu marriage are Kanya Dana, Vivaha Home, Panigrahana, Agni
Parinayana and Saptapadi etc. But today the situation is that some changes have taken place
regarding the rites and rituals of marriage.

On the other hand, some marriages are performed in civil courts. As a result of this, the sacred
nature of rites and rituals has been diminished to a considerable extent. Apart from this, the
Arya Samaj movement has also simplified the rites and rituals of marriage. Another factor
responsible for the decline in the religionsity of marriage is that Indian society as a whole is
moving from sacred to secular nature and as a result of this; the traditional values are
undergoing vast changes.

 Change in the Stability of Marriage:

Traditionally, divorce was not easily granted and permitted in Hindu society. The hindrance on
divorce made the institution of family and marriage stable and enduring. Due to the enactment
of marriage and family legislations and many other factors the divorce rate in India has been
steadily increasing.4

The incidence of divorce is a clear indication of the fact that the institution of marriage is
undergoing changes. The stability of married life is gradually being affected. Marital instability
is gradually increasing. There was a time when a wife could not think of divorce. But now
women have started taking resort to dissolution of marital bond.

 The Problem of Remarriage:

Although widow remarriage was in rare cases permitted, it was not regarded as sacramental as

the first marriage was. The remarriage is not marriage once a maiden is given in marriage.

The Widow Remarriage Act, 1856 allowed widows to remarry if they liked. Apart from this

law, the Arya Samaj Movement also favoured widow remarriage. During early period of the

20th century, we come across sporadic cases of widow remarriage. In the post- independence

era the number of widow remarriages has considerably increased. Hence, we can say that our

old values are changing. The attitude of hatred and abhorrence which was associated with the

4
Dr. Paras Diwan on Hindu Law, 2nd edn. 2005, Orient Publishing Co. Allahabad
idea of widow remarriage is being replaced by more liberal ideas of accepting the widow

remarriage.

The remarriage of widows had been legalized by the Hindu Widows Remarriage Act, 1856. It

is valid and legal under the provisions of Hindu Marriage Act, 1955. Under the Act of 1955, a

provision for dissolution of marriage through divorce, annulment of marriage has been made,

so ‘when a marriage has been dissolved by a decree of divorce and either there is no right of

appeal against the decree or if there is such a right of appeal, the time for appeal has expired

(without an appeal having been presented or an appeal has been presented but has been

dismissed), it shall be lawful for either party to the marriage to marry again’5

 Shift from old Hindu law to recent Hindu marriage act regarding forms of marriage
Under old Hindu law, there were eight forms of marriages of which, four are approved and four
are unapproved. Brahma, Daiva, Arsha and Prajapatya falls under the former category and
Asura, Gandharva, Rakshasa and Paisacha are under the latter6.

The Hindu Marriage Act, 1955 has not prescribed any particular form of marriage. It simply
lays down the conditions for a valid marriage. The Act calls marriages solemnized under the
Act as Hindu marriages which may be performed in accordance with the customary ceremonies
prevalent in the community to which, the bride belongs.

 Inter Caste marriage

Formerly, inter-caste marriage was considered to be wrong in the Hindu society. It has now
been legally permitted. With the increase of co-education, women education and the
democratic ideal of equality and liberty, inter-caste marriages are now considered to be signs
of forwardness.
The Act of 1955 prescribed conditions for a Hindu marriage. There is no requirement under
Section 5 of the Act that the parties to a Hindu marriage should belong to the same caste. So
inter-caste marriages are now perfectly valid under Hindu law. Under this Act, “any two
Hindus” can marry. 7

5
Section 15 of the Hindu Marriage Act, 1955.
6
Prof. G.C.V.Subba Rao- Family Law in India, 9th edn. 2009, p.178, S.Gogia&Company, Hyderabad.
7
Dr. Paras Diwan on Hindu Law, 2nd edn. 2005, p.584, Orient Publishing Co. Allahabad
The requirement of pure Hindu law that both parties to the marriage must belong to the same
caste was changed from time to time through legislations providing inter-caste marriages.
Similarly the prohibitions on the basis of gotra and pravara were also relaxed through
legislation. Marriages between Hindu, Jain, Sikh and Buddhists were also legalized. The Hindu
Marriage Act, 1955 validated such marriages.

 Prohibition of Polygamy:

Formerly, a man was allowed to marry several women in order to get a son. With the increase
of women education the ladies are demanding equal rights in marriage. The Hindu Marriage
Act of 1955 has declared polygamy to be illegal. No one can marry a second time, while the
former spouse is alive.

 Condition for marriage

Under old Hindu law, three conditions were required for a valid marriage. These were:
i. Identity of caste between parties. i.e., the parties should belong to same caste, unless
sanctioned by custom.
ii. Parties to be beyond the prohibited degrees of relationship. i.e., were not of the same gotra
or pravara and were not the sapinda of each other;
iii. Proper performance of ceremonies of marriage.

But with the commencement of Hindu Marriage Act, 1955 position changed. According to
Section 5 of the Act of 1955 prescribes conditions for a valid Hindu Marriage.8
A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled, namely-
i) neither party has a spouse living at the time of marriage;
ii) at the time of the marriage, neither party-
a) is incapable of giving a valid consent to it inconsequence of unsoundness of mind; or
b) though capable of giving a valid consent, has been suffering from mental disorder of such a
kind or to such an extent as to be unfit for marriage and procreation of children; or
c) has been subject to recurrent attacks of insanity ( or epilepsy)14
iii) the bridegroom has completed the age of 21 years and the bride, the age of 18 years at the
time of the marriage;

8
Section 5 Hindu Marriage Act, 1955.
iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage
governing each of them permits of a marriage between the two.
v) the parties are not sapindas of each other, unless the custom or usage governing each of them
permits of a marriage between the two.9

CONCLUSION

In Shastric Hindu law marriage is considered as a sacrament, which was an indissoluble union
of a man and a women forever, but the society has changed by the passage of time and so the
concept of marriage and it has now become akin to a civil contract. The modern concept of
marriage as a contract is an outcome of industrial revolution, of its lofty ideals of liberty and
equality.

Marriage is a culturally sanctioned union between two or more people that establishes certain
rights and obligations between the spouses and their children, and between them and their in-
laws and with the whole World. The definition of marriage varies according to different
cultures, but it is principally an institution in which interpersonal relationships, usually intimate
and sexual, are acknowledged. Our country is known for its rich culture and heritage.

Every effort should be made to stabilize the institution of marriage so that our future generation
can stabilize their lives and wind it with morality. It is to the legislature and the courts to look
into the matter seriously and protect the institution of marriage and in the long run the
institution of family which is the very basis of sound legal system.

9
Section 5 Hindu Marriage Act, 1955.
 BIBLIOGRAPHY

Books:

Dr. Paras Diwan on Hindu Law, 2nd edn. 2005, p.584, Orient Publishing Co. Allahabad

Articles

Prof. G.C.V.Subba Rao- Family Law in India, Hyderabad

KM Kapadia, 'Changing Patterns Of Hindu Marriage And Family' (JSTOR, 2018)

<https://www.jstor.org/stable/42864490?Search=yes&resultItemClick=true&searchText=cha
nging&searchText=aspect&searchText=of&searchText=hindu&searchText=marriage&searc
hUri=%2Faction%)

Websites

Ronojoy Sen, 'Same-Gotra Marriage Legal, Court Had Ruled 65 Years Ago - Times Of India'
(The Times of India, 2018) <https://timesofindia.indiatimes.com/india/Same-gotra-marriage-
legal-court-had-ruled-65-years-ago/articleshow/5932546.cms> accessed 20 October 2018.

https://www.ukessays.com/essays/cultural-studies/changing-indian-marriages-cultural-
studies-essay.php .