8/13/2019 201131227

1/11

Marriage according to Hindu traditions

Marriage,simply stated,is a legal union between a man and awoman to live together as man and wife to constitute a family.But

the laws of marriage are not that simple.Ancient Hindu Lawrecognised eight forms of marriage.Yet all these are only differentforms,the ultimate result being a legal and social union to live asman and wife.

As of today,in India,we have the following codified laws of marriage!he Hindu Marriage Act,"#$$!he Muslim Law of Marriage%&hariat'!he (arsi Marriage and )ivorce Act,"#*+!he &pecial Marriage Act,"#$!he Indian -hristian Marriage Act," /0!he 1oreign Marriage Act,"#+#,etc.

2ach religion has prescribed some ceremonies and ritualsconnected with marriage which are followed in the religious groupsin some parts of the country depending upon their geographicallocation,customs,etc.

Also,according to the law,some marriages are valid,some are voidabinitio and some are voidable at the option of the spouses.

A void marriage is no marriage in the eye of the law.!he parties arenot husband and wife.!he children born of such union are notlegitimate.&ince the marriage does not e3ist in law,it creates norights,nor entails any responsibilities or obligations.A voidablemarriage,on the other hand,is valid at the inception but can beavoided at the insistance of the parties on specific grounds.4ntil sodeclared,the marriage continues.

Hindu Marriage 5oins two individuals for life, so that they canpursue dharma%duty', artha %possessions', 6ama %physical desires',and mo6sa %ultimate spiritual release' together. Its a union of twoindividuals from the opposite se3 as husband 7 wife and isrecogni8ed by law. In Hinduism, marriage is followed by traditionalrituals for consummation. In fact, marriage is not consideredcomplete or valid until consummation. &e3ual activity is acceptableonly by the married couples in a Hindu society. It also 5oins two

8/13/2019 201131227

2/11

families together. 1avorable colours are normally red and gold forthis occasion.

(olygamy was practiced in many sections of Hindu society inancient times. !here was one e3ample of polyandry in the ancient

Hindu epic, Mahabharata, )raupadi marries the five (andavabrothers. 9egarding polygamy, in 9amayana, father of 9am, :ing)asharath has three wives, but 9am has pledged himself 5ust onewife.

In the post;

8/13/2019 201131227

3/11

Ene final definition of Hindu law, or classical Hindu law, brings therealm of legal practice together with the scholastic tradition of)harmaCDstra by defining Hindu law as a usable label for myriadlocali8ed legal systems of classical and medieval India that were

influenced by and in turn influenced the )harmaCDstra tradition.&uch local laws never conformed completely to the ideals of)harmaCDstra, but both substantive and procedural laws of thetradition did impact the practical law, though largelyindirectly%vyavahara'. It is worth emphasi8ing that &ans6rit containsno word that precisely corresponds to FlawF or religion and that,therefore, the label Hindu Law is a modern convenience used todescribe this tradition.

Ancient Hindu Dharma:)harma and law are not precisely the same. )harma refers to awider range of human activities than law in the usual sense andincludes ritual purification, personal hygiene regimens, and modesof dress, in addition to court procedures, contract law, inheritance,and other more familiarly legal issues. In this respect, Hindu lawreveals closer affinities to other religious legal systems, such as

>ewish law. )harma concerns both religious and legal duties andattempts to separate these two concerns within the Hindu traditionhave been widely criticised.According to 9ocher, the Britishimplemented a distinction between the religious and legal rulesfound in )harmaCDstra and thereby separated dharma into the2nglish categories of law and religion for the purposes of colonialadministration.However, a few scholars have argued thatdistinctions of law and religion, or something similar, are made in

the Hindu legal te3ts themselves.But the so called FHindu lawF whichis but only a recent FretrospectiveF term introduced by the British in"//0, based on their translations of the Hindu scriptures ,to a bodyof literature that dates bac6 to the 0nd millennium B.-. 2ven a basicawareness of these ancient scriptures will suffice to reveal thefundamental differences in the approach to law of the Hindu and the>udeo; -hristian traditionsG the latter being fundamentally based onstrict adherence to the religious doctrine and compliance with the

covenant as stated in the Abrahamic covenant and MosesF tencommandments. In fact, the etymology of the word FtestamentF, socentral to the >ewish and -hristian religions, itself can variously

8/13/2019 201131227

4/11

mean, a will, ma6e a will, be witness to,ultimately deriving fromFtestisF which simply means FwitnessF. &een in this light, it is hard toperceive of any affinities whatsoever between Hindu law and >ewishlaw.

Sources of Dharma:!here are usually three principal sources of dharma in the)harmaCDstra te3ts

".sruti,literally translates as what is heard, but refers to the

8/13/2019 201131227

5/11

during the course of its performance.

*.Arsha marriage

Arsha marriage is when the father gives away his daughter, afterreceiving from the bridegroom a suitable bride price.

.(ra5apatya marriage

(ra5apatya is when a girlFs father gives her in marriage to thebridegroom, treating him with respect, and addresses them FMayboth of you perform together your dutiesF.

$.@handharva marraige

!he voluntary union of a maiden and her lover which springs fromse3ual desire is called @andharva marriage.

+.Asura marriage

Asura marriage is when the bridegroom receives a maiden, afterhaving given of his own free will as much wealth as he can afford, tothe bride and her 6insmen.

/.9a6shasa marriage

9a6shasa marriage is the marriage of a maiden involving her

forcible abduction from her home after her 6insmen have been slainor wounded.

.(aishacha marriage

hen a man by stealth seduces a girl who is sleeping, into3icated,or mentally challenged, it is called (aishacha marriage. !his iscondemned in the Manusmriti as a base and sinful act.

Anglo-Hindu Law:

!he early period of Anglo;Hindu Law%"//0K" + ' is characterisedby three main features

". the collection and translation of important )harmasastra te3tsby British administrator;scholars %especially >ones,Hency !homas-olebroo6e, &utherland, and Borrodaile' in order to apply therules of such te3ts to Hindus which further e3panded the politicalrule of the British,

0. the use of court pandits in British courts to aid British 5udges inthe interpretation of classical Hindu law, and

8/13/2019 201131227

6/11

*.the proliferation of case law that resulted eventually in theredundancy of court pandits.

In " + , 5ust after India became a formal part of the British 2mpire, Anglo;Hindu law entered into a second phase %" + K"# /', one in

which the court pandits were dismissed due to the e3tensive caselaw that emerged during the first phase. )uring this time a series ofparliamentary acts were passed to fi3 certain aspects of Anglo;Hindu law and to provide it with a legislative foundation. ith thedisappearance of court pandits, continual growth of case law %ontopics involving uestions of Anglo;Hindu law', and new legislativefoundation, the relevance and interest in )harmaCDstra as thesource of law also diminished as the parliamentary codified what

they believed to be Anglo;Hindu law . !he gap between theidealised legal system of )harmaCDstra and the diversity ofcustomary law throughout British;India led to the fi3ing of regionalcustomary laws by the British officials. !his was done throughinterviews, observations, and discussions with locals. Massivevolumes of customary rules that were in theory being enforced werecollected throughout British;India and became part of theconsultative resources of the courts.

Ene of the most interesting aspects of the development of Anglo;Hindu law is the warm reception it generally received in India.

!he British felt that one of their great gifts to India was in fact amore rational system of law and it appears that a lot of Indiansagreed. Law was generally not among the colonial legacies that thenationalist movement in India wanted to remove or overturn.

Modern Hindu Law:ith the formal independence of India from Britain in "# /,Anglo;

Hindu Law and the other ma5or personal law system of the colonialperiod, the so;called Anglo;Muhammadan law %Islamic law', cameunder the constitutional authority of the new nation. !he newconstitution was officially adopted by India in "#$? and had aprimary focus on securing e uality in the social, political, andeconomic realms.Although there has been discussion that theIndian -onstitution has a secular Hindu bias, an amendment to theconstitution % 0nd Amendment, "#/+' formally inserted the word

8/13/2019 201131227

7/11

secular as a feature of the Indian republic.

In the early "#$?s, contentious debates ensued over the so;calledHindu -ode Bill, which had been offered in the Indian parliament, asa way to fi3 still unclear elements of the AngloKHindu law. !hough a

small minority suggested some 6ind of return to classical Hindu law,the real debate was over how to appropriate the AngloKHindu law.In the end, a series of four ma5or pieces of legislation were passedin "#$$K$+ and these laws form the first point of reference formodern Hindu law Hindu Marriage Act%"#$$',Hindu &uccession

Act%"#$+',Hindu Minority and @aurdianship Act%"#$+' and Hindu Adoptions and Maintenance Act%"#$+'.

-riticism of the document is based on the belief that the laws in theHindu -ode bill should apply to all citi8ens regardless of religiousaffiliation.!hough these legislative moves purported to resolve stillunclear parts of the Anglo;Hindu law, the case law and interpretivetradition of British 5udges and Indian 5udges in the British employremained and remains crucial to the application of Modern HinduLaw.

!here are no religious courts in IndiaG rather all cases aread5udicated within the state district courts, presided over by statebureaucrats. In the countryside it is possible for there to still e3istvillage tribunals that try community members according to customand religious lawG however this is not ad5udicated or enforced by thestate. &tate 5udges have no formal religious legal training and arethus re uired to apply Hindu law in an abbreviated version. It ispossible for a Hindu 5udge to preside over a Muslim coupleFsdivorce, 5ust as it is possible for a -hristian to preside over theadoption case of a Hindu family. It is here where courts rely on thelawyers to argue the religious laws and advocate on behalf of theirclients.

Hindu Marriage Act

Application of Act: %"' !his Act applies,;%a' to any person who is a Hindu by religion in any of of its forms ordevelopments,including a

8/13/2019 201131227

8/11

%c' to any other person domiciled in the territories to which this Acte3tends who is not a Muslim, -hristian, (arsi or >ew by religion,unless it is proved that any such person would not have beengoverned by the Hindu law or by any custom or usage as part of

that law in respect of any of the matters dealt with herein if this Acthad not been passed.

Condition for a Hindu Marriage A marriage may be solemni8ed between any two Hindus, if thefollowing conditions are fulfilled, namely%i' neither party has a spouse living at the time of the marriageG%ii' at the time of the marriage, neither party,;%a' is incapable of giving a valid consent of it in conse uence ofunsoundness ofmindG or %b' though capable of giving a valid consent has been suffering frommentaldisorder of such a 6ind or to such an e3tent as to be unfit formarriage and the procreation of childrenG or %c' has been sub5ect to recurrent attac6s of insanity or epilepsyG%iii' the bridegroom has completed the age of twenty one years andthe bride the age of eighteen years at the time of the marriageG%iv' the parties are not within the degrees of prohibited relationshipunless the custom or usage governing each of them permits of amarriage between the two.%v' the parties are not sapindas of each other, unless the customor usage governing each of them permits of a marriage between thetwo.

Ceremonies for a Hindu marriage ;

%"' A Hindu marriage may be solemni8ed in accordance with thecustomary rites and ceremonies of either party thereto.

%0' here such rites and ceremonies include the saptapadi %thatis, the ta6ing of seven steps by the bridegroom and the bride 5ointlybefore the sacred fire', the marriage becomes complete and bindingwhen the seventh step is ta6en.

&aptapadi

8/13/2019 201131227

9/11

Besides a religious meaning behind the seven steps, there is also amathematical rationale on performing the / rounds circling the fire.

A circle is *+? degrees, all the numbers from " to # divides *+?e3cept the number /.It becomes a non;terminating number, hence

symboli8ing the marriage as indivisible.!he ends of their garments %the bridegroom s scarf and uppergarment of the bride' are tied together by the priest %signifyingmarriage 6not'. !hen both shall stand facing the north. !hebridegroom shall place his right hand upon the right shoulder of thebride.

!hey shall ta6e the first step in the north easterly direction.

In ta6ing these seven steps, the right foot shall always lead and theleft foot be brought forward in line with it. 4ncoo6ed grains of rice%about a small handful' are placed in a line at e ual distance atseven places. !he bride and the groom ta6e seven steps together,stepping upon first mound of rice with the right foot as the priestrecites a mantra. !hen stepping upon the second mount of rice withthe right foot as the priest recites a mantra. %All seven steps aredone the same way'.

May the first step lead to food that is both nourishing and pure. May the second step lead to strength %at the physical, emotional,intellectual and spiritual levels'. May the third step lead to prosperity. May the fourth step lead to all round happiness. May the fifth step lead to progeny %noble and virtuous children'. May the si3th step lead to long life. May the seventh step lead to bondage %through harmony'.!he bridegroom says

Having completed the seven steps, be thou my lifelongcompanion. Mayst thou be my associate and helper insuccessful performance of the duties that now devolve uponme as a householder. May we be blessed with manychildren who may live the full duration of human lifeN

After the completion of the seven steps ceremony, the couple %with6nots tied to each other' ta6e their seats. !he wife now ta6es herrightful place on the left side of her husband as the marriage is now

8/13/2019 201131227

10/11

religiously solemni8ed in its entirety. =ow the couple are husbandand wife. !he husband garlands the wife and she in turn garlandsher husband.

lossary: degrees of prohibited relationship

; two persons are said to be within the degrees of prohibitedrelationship ;

%I' if one is a lineal ascendant of the otherG or

%ii' if one was the wife or husband of a lineal ascendant ordescendant of the otherG or

%iii'if one was the wife of the brother or of the fatherFs or motherFsbrother or of the

grandfatherFs or grandmotherFs brother or the otherG or

%iv'if the two are brother and sister, uncle and niece, aunt andnephew, or children

of brother and sister or of two brothers or of two sisters. full blood and half blood ; two persons are said to be related

to each other by full blood when they are descended from acommon ancestor by the same wife and by half blood whenthey are descended from a common ancestor but by differentwives.

&apinda relationship with reference to any person e3tends asfar as the third generation%inclusive' in the line of ascentthrough the mother, and the fifth %inclusive' in the line of ascentthrough the father, the line being traced upwards in each casefrom the person concerned, who is to be counted as the firstgeneration.

uterine blood ; two persons are said to be related to eachother by uterine blood when they are descended from acommon ancestor but by different husbands.

8/13/2019 201131227

11/11