FORMS OF MARRIAGE UNDER HINDU LAW
Excerpt
Hindu Marriage is the concept of termination of the ascendancy of the Father over his damsel (unmarried girl) and presenting her to a virtuous person who, according to him is the most suitable person for her daughter. The marriage in Hindus is done by some important ceremonies rituals and rites. There are diverse forms of marriage according to prehistoric Hindu texts. According to Manu, marriages are classified into 8 kinds. These 8 types are further categorized into approved and unapproved kinds of Hindu marriage.
APPROVED
· Brahma
· Daiva
· Arsha
· Prajapatya
UNAPPROVED
· Asura
· Gandharva
· Rakshasa
· Paisacha
As per the Hindu Marriage Act,1955 Hindu marriage can be validated, if the former is performed by Shastric ceremonies or Customary ceremonies of either party. Kinds of marriage is not identified under this act. Prehistoric texts of Hindu religion validate Hindu Marriage which is performed by an approved style of marriage.
In KoppisettiSubbharao vs the State Of A.P[i], Hon’ble Supreme court held that Aryan Hindus identified 8 kinds of Hindu marriage which are further bifurcated into approved and unapproved.
APPROVED FORMS:
In S.Authikesavulu Chetty vs S. Ramanujam Chetty And Anr[ii],Court held that if no evidence is provided then it is believed that marriage is performed by the approved form and property of the married women who is without a child will be transferred to her spouse after her demise.
· Brahma-Vivaha
This is the most prevalent form of Marriage in the Hindu religion. Religious Text Manu-smriti has considered it as the most pious and salient form of Marriage. under this Form, Father has a responsibility to marry her daughter with a virtuous person who acquired knowledge of ‘Vedas’ and present her daughter as a gift to him by dressing her with precious-stones by inviting him. In this form, the Groom’s family finds the Bride with will be fit in their Menage. Damsel is presented in a single attire as a bride to the bridegroom in a respectful manner. It must be noted that Father should not receive any consideration for renouncing his daughter because it is not a trade but a divine union of husband and wife. This form of marriage is more widespread in Brahmans. However, the Brahma form is also carried out by Kshatriyas which was witnessed in Mahabharata.
In Reema Aggarwal vs Anupam And Ors[iii], the wife (appellant) was hard-pressed by her Husband and his family (respondent) for dowry. The Appellant was then hospitalized and a complaint was filed against the respondent. The Hon'ble Supreme court said in this case that the Dowry system possibly was originated from Brahma Marriage but there is no conclusive evidence. But to some extent, it cannot be true because in this form there is a father’s own accord to gift her daughter to the Bridegroom.
In accordance with the old divine Hindu text Manu, Son born from this form of marriage vindicates immortal acts of 10 forefathers and successors. Remarriage of a surviving wife is not allowed in Brahma Hindu marriage. As per prehistoric Hindu laws, this form comes under the Shastric marriages.
· Daiva-Vivaha
In this form of Hindu marriage, Father of the Damsel finds a suitable person who is Pujari (Priest) and gives present to the groom her daughter as an offering on behalf of the consideration (Dakshina) due to the priest for the sacred acts executed by him for the Damsel’s father. Here the father of the girl is receiving sacred satisfaction in return for his sacrifice of her daughter which is deplorable. This form is only for Brahmins because Brahmins are the only ones who are recognized as priests and the status of such marriage is lower than the Brahma marriage.
Daiva marriage is not similar to Brahma marriage as in Brahma marriage, father gives his daughter and no consideration is received by him for his sacrifice but on the other hand in Daiva-Vivaha, father gives his daughter in place of sacred satisfaction which he received from the holy acts of Priest performed for him. It is like guru-Dakshina in Brahma-vivaha. Damsel given is moral and saintly present. It is believed that this form gives rise to inter-caste marriages. A Son out of Daiva-Vivaha vindicates the immortal acts of 7 forefathers and successors[iv].
· Arsha-Vivaha
Under this form, Father offers his daughter as a present to the suitable man and in return, Bridegroom gives consideration of one cow and one bull or two cows and two bulls and the same must be used should not be used for commercial purpose[v]. This type of marriage is common in Rishis and Sages. This form symbolizes the priestly state of the Hindu religious society. This kind is witnessed in the marriage of Agasthya and lopamudra.
It is the kind of marriage which is between Brahma and Asura. According to prehistoric text Manu, this cannot be termed as a sale of the bride[vi]. As per Manu, the son of a married girl in this form vindicate the immortal acts of 3 forefathers and successors.
· Prajapatya-Vivaha
This form is like Brahma-Vivaha as Damsel is offered as a gift to the Bridegroom but at one condition that couple should fulfill their sacred responsibilities together. The condition of man to be Bachelor or learned is a bar in this form of Marriage like Brahma. This form has a lower status than Brahma marriage. Kanyadan is not a part of this kind of marriage. In this kind of Marriage, Girl’s father explore and find a groom for her daughter.
Some of the authors like Sengupta believe that this form is an altered form of Gandharva kind of Marriage which is termed as the approved form of marriage and altered form is adopted by Aryans. In accordance with Hindu religious text Manu, Son of a married girl in Prajapatya-vivaha release six forefather and successors from their immortal acts.
UNAPPROVED FORMS
There are 4 kinds of Unapproved Kinds of marriages namely Asura, Gandharva, Rakshasa, and Paisacha. In Rajbir Singh Dalal vs Chaudhari Devi Lal University[vii], the Supreme court held that if the wife dies who was married through an unapproved kind of marriage and does not have any child than the property of the wife will be transferred to her family rather than to her Husband.
· Asura
In this type of unapproved marriage, Groom selects a suitable girl and talk to her Father and give them all the riches in return for the Damsel. It is more like a sale of the bride to the bridegroom who pays money. This kind is common in Sudras of southern India. In this form, the Groom doesn't need to be suitable for the Bride and no requirements or qualities like needed in the Brahma type of marriage. Money paid by the Groom for the bride is called ‘SULKA’. An example of such marriage is also in the Epic Ramayana in which the protector or the Guardian of Kaikeyi was given numerous wealth for her marriage with King Dasaratha.
Asura marriage is out of the most criticized form of marriage as the father gives his daughter for increasing his economic status. As per Manu, the Father of the damsel should not receive any benefit in the marriage of his daughter.
In KailasanathaMudaliar v. ParasakthiVadivanni[viii], Madras High court stated certain tests for the determination of marriage as Asura or not and said that if the Bridegroom provides wealth as a consideration for the marriage to the father of the daughter then the said marriage will be termed as an Asura marriage.
· Gandharva
This is a distinct kind of marriage, in this type, girl and boy gets married as per their own will based on a collaborative decision. ‘Gandharva’ tribe of Himalayas performs this type of marriage. In English law, this marriage is called Gretna Green. An example of this form is also in the Epic Mahabharata in which King Dusyanta and Sakuntala married on their own as Dusyanta convinced her for the same. Roman law also has this type of marriage known as Usus. But such marriage is opposed by the Hindu society as it is against the will of the father of Damsel and because of the culture of performing marriage in his caste. Girls who are not of the adolescent age are not allowed to marry under this type. This form can also be called as love marriage as both boys and girls get attracted to each other under this type.
In Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra &Anr[ix], the Supreme court mentioned the important requirements for the Gandharva marriage and said that the blessing of the father of bride by placing a hand on the foreheads of both Bride and Bridegroom is necessary for the performance of the marriage.
· Rakshasa
In Rakshasa marriage, girl is captured by the person without the consent of herself and her parents or kidnaped after killing her relatives. This form originated when the kingdom was captured by the invaders in battle and all the men slew in the war[x]. In prehistoric times, this form can be seen in Kshatriyas. The girl sheds her tears in the hope of help but all her protectors got killed in the battle. The person kept her as a hostage and performs the essential ceremonies of marriage and get married to her. This practice was prevalent in the Gond tribes. In today’s modern times, the Rakshasa form is penalized under section 366 of the Indian Penal Code and the mentioned act punishes the wrongdoer with 10 years of incarceration.
· Paisacha
It is the most monstrous type of marriage in which man ravishes the damsel either when she is dozed or when she is in the state of insobriety. Under Indian law, this form amounts to rape under section 376 of the Indian penal code. The retribution of this act is in between 7 years and life imprisonment. Such kind is the cheapest form of marriage.
Conclusion
Solemnization of Hindu Marriage is according to the Hindu Marriage Act, 1955. But the mentioned act has not mentioned any specific type of marriage but only conditions are specified. As per the Hindu Marriage Act (1955), Hindu marriage can be validated, if the former is performed by Shastric ceremonies or Customary ceremonies of either party. Kind of marriage is not identified under this act. Prehistoric texts of Hindu religion validate Hindu Marriage which is performed by an approved style of marriage. Some of the forms were considered to be traditions like Brahma, Gandharva, and Asura were categorized as Shastric marriages. But in modern Hindu society, Gandharva is getting more recognition but still, society is not fully adopting it.
#hindumarriage #formsofmarriage #IPC #HMA1955
Author : Navraj Rawl
Sources : A.K Jain (2009).Hindu Law, HINDU MARRIAGE ACT,1955, Hindu Law, A new History of Dharmasastra by Oxford University & The Laws of Manu translated by G. Buhler
Picture : legalbites.in [i](2009) 12 SCC 331 [ii]3 Ind Cas 541 [iii] 3 SCC 199 (2004) [iv] Manu iii, 28; cited in R.K. Agarwala- Hindu Law, 21st edn. 2003, p.33, Central law Agency, Allahabad. [v] . Manu iii, 29; cf: R.K. Agarwala- Hindu Law, 21st edn. 2003, p.33, Central law Agency, Allahabad [vi]Manu.smr iii [vii] 2008 9 SCC 284 [viii]1963 AIR 933 [ix]AIR 1965 SC 1564 [x] R.K. Agarwala- Hindu Law, 21st edn. 2003, p.34, Central Law Agency, Allahabad