This Article is written by Chalamalasetti Lakshmi Naga Sai of 4th Semester of ICFAI law school, Hyderabad
ABSTRACT
This research paper deals with forms of marriage in Hindu law and validity and voidability of marriage according to Hindu law. This paper starts with introducing the concept of marriage according to Hindu law to the reader and then various forms of marriage will be discussed as there eight forms which was further classified as approved and unapproved forms of marriage. These types of marriages are explained in detail. Then validity and voidability of marriage will be discussed, the ground in which marriage becomes voidable will be explained through examples. This research paper will be concluded with recent developments in Hindu law
KEY WORDS
Hindu marriage Act,1955, validity, voidability, ceremonies,
INTRODUCTION
Hindu marriage rituals have undergone modification over a long span of time in accordance with the necessities and ease of individuals. It concerns the bond between a husband and wife. Among the 16 rituals in the Hindu faith, this one is regarded as one of the most significant. It is an unbreakable holy bond. It is a link that endures through death and rebirth. A human being remains incomplete in as per Veda, unless the individual marries and spends time with his spouse.
“Kanyadan”, or the giving away of a girl to a boy by the father along with all the associated rituals or customs, is referred to as a Hindu marriage. The Hindu Marriage Act of 1955[1] provides that it is applicable to anyone who is a Hindu by the time of birth or who has converted to one of its forms, such as “Vira Shaiva”, a “Lingayat”, or a follower of the “Brahmo”, “Prarthana”, or “Arya Samaj”. Marriage is one of the 16 sacraments in Shastri Hinduism, which is one of the most significant ceremonies of “Hinduism”. Any Buddhist, Jain, or Sikh person is likewise covered by this law.[2]
Hindus have made a comprehensive effort or have tried their hardest to idealise the marital institution. Hindu marriage was regarded as a sacramental a relationship as is noted in the “Rig Vedas”. Hindu marriage is regarded as a religious sacrament since rites and practises must be carried out in order for a union of marriage to be deemed valid. The ceremonies and rituals that Hindu marriages follow demonstrate their sacred nature. The marriage cannot be considered complete without the performance of specific procedures. The initial ceremonies are the homa and Kanyadan rituals, which involve giving the bride’s hand to the husband, and Saptapadi. Each of these activities should be carried out in Brahmin’s presence in front of the sacred fire as chants are chanted. The legality of the marriage is questioned if certain procedures are not carried out. The seven-round ceremony known as Saptapadi is regarded as the most significant; if it is not completed, a marriage will likewise be unfinished.[3]
FORMS OF MARRIAGE
Eight various kinds of marriage are classified by normative writings, dharma texts, and some Ghyastras. These types are “Brahma”, “Daiva”, “Arsha”, “Prajapatya”, “Asura”, “Gandharva”, “Rakshasa”, and “Paishacha”. This hierarchy of marriage arrangements exists. Even the Supreme Court of India acknowledged the eight marriage arrangements made by Aryan Hindus in Koppisetti Subbarao v. State of A.P. The eight forms are separated into categories for Approved form and unapproved form of marriages.
APPROVED FORMS OF MARRIAGE
Brahma, Daiva, Arsha, and Prajapatya are examples of marriages that are legal. Gifts are exchanged in these marriages, the “gift of a maiden” (kanydna). According to the dharma teachings, Brahmins are required to accept gifts. As a result, the first four marriage configurations are typically deemed legitimate for Brahmins.
BRAHMA
Of the eight types of marriage, “Brahma” is one of the most popular and holds the position of supremacy in India. This type of marriage has also received a lot of attention from Manu-Smriti. According to dharma literature, the “Brahma marriage” is the gifting of a daughter to a man who is versed in the Vedas and chosen by her father alone after she has been decorated with diamonds and ornaments. The “Brahma” marriages are Brahman rites, and according to Manu-Smriti, it is their obligation to accept presents.
The Supreme Court debated the notion that Brahma marriage was the start of the dowry system in India in Reema Aggarwal vs. Anupam And Ors, 2004, but didn’t reach a verdict on the subject. “Brahma” marriages do not result in dowry charges since the girl’s father willingly presents gifts to the bridegroom. According to the “Manu-Smriti”, there is no external pressure from the bridegroom. Practically speaking, though, the bridegroom can use the tradition of “exchanging gifts” to pressure the bride and her parents into paying dowry. Additionally, according to Manu, the son of a wife who was married using Brahma ceremonies frees 10 ancestors and offspring.[4]
DAIVA
The term “marriage related to the rite of the gods” is “daiva-vivha”. Contrary to Brahma form of marriage, in this type of marriage, the father delivers his daughter to the priest as a Dakshina (sacrificial money) in exchange for the priest presiding in the sacrifice carried out by the father of the bride.
In this type of union, parents of the bride will be searching for the groom for their daughter instead of the groom coming looking for a bride. As the father in the Daiva marriage receives an advantage from offering her daughter as an act of sacrifice and because it is viewed as demeaning for women to look for a husband, this type of marriage is seen as being less honourable than the Brahma marriage. “Manu scripture” claims that the offspring of a wife who was married through the Daiva rite frees seven ancestors and descendants.
ARSHA
The third type of legal marriage called “Arsha” form of Marriage, encourages unions with Rishi or sages. In contrast to Brahma and Daiva marriages, Arsha does not require bride’s father to contribute anything to the husband. In the Arsha, it is the father of the bridegroom who presents the father of the bride with two cows or bulls. These kinds of marriages take place because the girl’s parents were unable to cover the expenses of their daughter’s wedding at the appropriate period as per the Brahma ceremony. It is therefore assumed that the girl is wed off to an elderly rishi or sage in return for two cows. A Bengali Indian judge named Sir Gurudas Banerjee (also known as Gooroodas Banerjee) thought that this type of marriage revealed the pastoral nature of Hindu society, where animals were regarded as the marriage’s financial factor. This type of marriage however, is not regarded as noble because the bride was traded in for bulls and cows and viewed as a commercial transaction. Manu claims that the son of a wife who underwent an arsha rite marriage frees three ancestors and descendants.
PRAJAPATYA
The “Prajapatya” type of marriage is comparable to the Brahma form, with the exception that there is no bartering or kanyadan and the father of bride looks for the groom. These distinctions make Prajapatya inferior to Brahma. In this type of marriage, the father greets the pair as she gives her daughter in marriage, with the caveat that the bride and groom must both practise their dharma together. The groom of the marriage is required to view his spouse as a partner and carry out their religious and social responsibilities together, according to the bride’s father’s basic wish. Manu claims that the son of a wife who was married via the prajapatya rite frees six generations of forebears and descendants.
UNAPPROVED FORMS OF MARRIAGE
The unapproved types of marriage include “Asura”, “Gandharva”, “Rakshasa”, and “Paisacha”. The assets of a woman who have no children married in one of the illegal forms, according to Rajbir Singh Dalal vs. Chaudhari Devi Lal University, 2008, goes to her family rather than her spouse.
ASURA
One of the most detested types of marriage is this one. In this arrangement, the father offers her daughter to the bridegroom after he has given the bride’s father and the bride all the wealth, he is able to. According to the “Ramayana”, Kaikeyi’s guardian received an excessive sum of money in exchange for arranging for her marriage to King Dasaratha. The bride is essentially being purchased in this deal. Manu smriti instructs the girl’s father to reject the offer, even if it comes with the lowest possible price.
In the case of Kailasanatha Mudaliar v. Parasakthi Vadivanni[5], the criteria for establishing whether a marriage is “asura” or not were established. Asura marriages occur when the bridegroom offers the father of the bride money or anything else with monetary value (such as wheat, cows, etc.) in exchange for him giving his daughter in marriage.
GANDHARVA
This type of marriage is distinctive and distinct from other types of marriage. The girl and the boy have mutually decided to get married. This mutual understanding is the result of sheer lust. No part is played by parental approval. The old Hindu system was based on the idea of mutual agreement for marriage, but there was relatively little solemnization of marriage as a result of this concept. Consequently, because As a result, child marriage became more common in Hindu culture. Inter caste relationships are now more likely. As there was no parental approval, this type of marriage was against Hindu cultures and practises.
The Supreme Court addressed the crucial rituals needed to perform Gandharva marriage in the case of Bhaurao Shankar Lokhande & Anr vs. State Of Maharashtra & Anr.[6] In this form, it is customary for the father of a female to touch the foreheads of the male and female, which completes the Gandharva. In addition to this custom, it was argued that another one, which called for the presence of a Brahmin priest and a barber, was not necessary for Gandharva marriage. However, it was determined that a Gandharva marriage was not valid under sections 17 of the Hindu Marriage Act[7] and 494 of the “Indian Penal Code” without these necessary procedures.
RAKSHASA
The bride is kidnapped and her family and relations are ruthlessly murdered during the Rakshasa kind of marriage. According to certain writings, there is also a need that the bridegroom battle with the bride’s family while performing the wedding rituals in peace. This prerequisite is not necessary to have a “Rakshasa” marriage, though. According to eminent Indologist P. V. Kane, this type of union is called a rakshasa since rakshasas (demons) are believed to have inflicted cruelty on their captives throughout history. Kshtraiyas, or the military classes, used this type of marriage. “Rakshasa” marriage reflects a conqueror’s claim to the captive of a battle.
This type of behaviour is illegal now under section 366 of the IPC[8]. According to Section 366, kidnapping or enforcing the marriage of a woman is punished by up to 10 years in prison and/or a fine.
PAISHACHA
Given that it is the worst of the eight types of marriage, this one is included as the final option. In this scenario, a male seduces a woman and performs a sexual act on her while she is either dozing off, drunk, or psychologically unstable, usually at night. The girl and her parents must consent to the man’s marriage because of the embarrassment of such behaviour. Goblins that operate covertly at night are referred to as “paishacha”.
It resembles a rape, which is the most heinous conduct a person can commit today and is prohibited by IPC Section 376. Rape offenders must serve at least seven years in jail and may also face additional penalties.
VALIDITY MARRIAGE OF MARRIAGE
The requirements for a lawful marriage are laid out in Section 5 of the Hindu Marriage Act[9], 1955. If a marriage meets the criteria below, it is considered valid:
At the time of the marriage, none of these parties had a spouse who was still alive.
In the period leading up to the marriage, neither side should:
1-unable to give informed consent because of mental incapacity.
2-having a mental condition to the point of being inappropriate for marriage and childbearing.
repeatedly experiencing mental illness attacks.
Age Requirements: The bride must be at least 18 years old and the groom must be at least 21.
There is no level of prohibited relationship between the parties.
The two parties are not sapindas (blood relatives).
VOIDABILITY OF MARRIAGE
A marriage that can be annulled by any partner is referred to as voidable. Until a petition to void the marriage is filed, it will be lawful. A competent court must declare this marriage null and void in accordance with the “Hindu Marriage Act of 1955”[10]. The partners to such a marriage must determine whether they want to continue with the union or declare it null and void.
The following circumstances make a marriage voidable:
- Due to mental incapacity, the marriage-related party is unable to consent. Illustration: Two parties, A and B, are involved. A is the husband, and B is the wife. B gave her marriage consent while suffering from mental incapacitation. After a few years, “B” receives treatment and claims that her marriage is voidable since she was not of sound mind when she gave her assent. This is a reason for a voidable marriage.
- She has a mental illness that prevents her from being able to have children. Example: There are two parties, “A” and “B,” where “A” represents the husband and “B” represents his wife. If ‘B’ has a mental illness that makes her unfit for childbearing. The marriage may therefore be voidable as a result of this.
- if the party has experienced recurrent episodes of lunacy. Example: There are two parties, “A” and “B,” where “A” represents the husband and “B” represents his wife. If either person from ‘A’ or ‘B’ experiences recurrent episodes of insanity, this can also be a basis for annulling a marriage.
- Either party must give their forced or fraudulent consent in order for the marriage to proceed. As an example, consider the situation where A is the husband and B is the wife. The marriage will be voidable if either party consented to it under duress or via fraud.
- If one of the parties is underage, the bride must be under 18 and the groom under 21. Illustration: Two parties, A and B, are involved. A is the husband, and B is the wife. This marriage will be deemed voidable if “B” is under the age of 18, and it may also be deemed voidable if “A” is under the age of 21.
- if, at the time of marriage, the respondent is carrying a child not of the bridegroom. Example: There are two parties, “A” and “B,” where “A” represents the husband and “B” represents the wife. if B becomes pregnant during the marriage through a different person. The marriage would then be null and void.[11]
CONCLUSION
The partners to a marriage had no legal means of ending it until the Hindu Marriage Act of 1955. The parties in a null and voidable marriage have recourse under Sections 11 and 12 of the Hindu Marriage Act of 1955. After the Amendment Act of 1976 was passed, a child born from a null and voidable marriage would be considered legitimate. According to Section 5 of the Hindu Marriage Act of 1955[12], there are a few requirements for a lawful marriage; if any of them are disregarded, the marriage is void or voidable.
[1] Hindu marriage Act 1955.
[2] Nature of Hindu marriage under Hindu law, Available at: Nature of Hindu Marriage under the Hindu Law – iPleaders. (last visited on May 5 2023)
[3] Hindu marriage is a contract or a religious sacrament? Available at: Hindu Marriage Is A Contract Or A Religious Sacrament? (legalserviceindia.com). (Last visited on June 5,2023).
[4] Forms of marriage in Hindu religion, Available at: Forms of Marriage in Hindu Religion – iPleaders (last visited on June 6,2023)
[5] 159 Ind Cas 845
[6] 1965 AIR 1564, 1965 SCR (2) 837
[7] The Hindu marriage Act 1955
[8] Indian penal code,1860
[9] Hindu marriage Act,1955
[10] ibid
[11] Void and voidable marriages under Hindu marriage Act 1955, available at: Void and Voidable Marriages under Hindu Marriage Act, 1955 – iPleaders (last visited on June 6,2023)
[12] The Hindu marriage Act 1955
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