marriage as sacrament in hindu law

In modern society, the laws concerning Varna, castes, subcastes, endogamy and exogamy, sapinda, and gotra are forbidden. It has always existed in one form or another in all cultures, ensuring the social sanction of the physical union between man and woman and laying the foundations for the construction of the family, the basic unit of society. It only provides that such a marriage can be solemnized in accordance with the customary rites and ceremonies of any one of the parties to the marriage. Ancient Hindu tradition forbids the marriage of persons belonging to the same Gotra and Pravar. Even in Rig Vedas it is mentioned that marriage of Hindus was considered as a sacramental union. Ancient Hindu law did not prescribe any such age for marriage which is why child marriages were rampant in the country. Marriage in the Hindu religion is a sacrosanct and holy union of 2 individuals. So, to conclude we can say that Hindu marriage has neither become a contract nor has remained a sacramental union; it simply has a beautiful semblance of both. the procreation of children; or, has been subject to recurrent attacks of insanity, The bridegroom has completed the age of [twenty-one years] and the The person shall not be suffering from any insanity or mental disorder at the time of marriage. PDF Hindu Marriage no More Left Sacramental & Ceremonial, It's - RAIJMR According to ancient texts, a marriage is a samskara (religious rite) for Hindus. The three main characteristics: In the case Tikait v. Basant, the court held that marriage under Hindu Law was a sacrament, an indissoluble union of flesh with flesh, bone with a bone to be continued even in the next world. Among Hindus, it is well known that Marriage is an essential deed without which the person is only half. Is Marriage a Sacrament or a Contract? - LL.B Mania As per the ceremonies of Hindu marriage there must be performed for union to be finished, the fundamental customs are homa, offering of the hand of the lady of the hour and saptapadi, then the lady and spouse going seven steps together. Hindu Marriage A Sacrament [pnxkoqq6594v] - Documents and E-books In modern culture, Hindu marriage is both a sacrament and a contract. Marriage to be a sacrament should be an indissoluble union. sacramental union or a contract. According to the Bible, (Matthew 19:6) Jesus taught that marriages are irreversible and thus God has joined together so no human being must be separate. This item is part of a JSTOR Collection. With this, we can argue that since the Hindu Marriage Act does not even follow the legal principle enshrined in the Contract Act, Hindu Marriage does not stand a chance to prove itself as a Contract. The religious rites solemnizing a marriage include certain vows and prayers by parties made before the altar of God. step is taken [1]. In reality, secret dowry practises, bride burning, family disintegration, domestic abuse, singlehood, position dispute in marriage, and finally divorce have all resulted from these changes. These marriages involve the exchange of gifts (kanyadan). Concept of Marriage under Hindu law - Legal Bites Modern legislation has resulted in the modern model of Hindu marriage, the partner selection process, and the age of marriage. The Calcutta High Court once observed in the case of Manmohini v. Basant Kumar that a Hindu marriage is more religious than secular in character. In Muthusami v. Why is it Contractual? In Bhagwati Saran Singh v. Parmeshwari Nandar Singh, (1942 ILR All. What is really behind the violence in Manipur? Marriage existed in primitive form among pre-civilized societies, and it gained institutional status when religion patronised and sanctioned it as a necessary part of life, as well as a legal sanctity. (See Section 24.). Based on smritikars even death cannot break this relationship. Only the third requirement still stays intact to a certain level even today as religious and ritualistic practices are followed by Hindus. And such a concept that shuns the institution of marriage is not only accepted by Hinduism but also not accepted in any other religious books. But Section 12 of the Hindu Marriage Act of 1955 states that when consent is not obtained, the marriage is considered void. Polygamy was popular with the Kshatriyas. This finally leads us to the recent Judgement by Delhi High Court in 2017 which observed that Marriage under Hindu Law is a sacrament and not a contract that can be entered into by executing a deed. Hindu marriage is "a religious sacrament in which a man and a woman are bound in a permanent relationship for the physical, social and spiritual need of dharma, procreation and sexual pleasure." . Hindu marriage unites two people for life, so that they can pursue the dharma together. The term sapinda; has been explained in detail later on in this Chapter. Delhi High Courts Ruling on Public Disclosure of Proclaimed Offenders and Implementation Guidelines, Right to Privacy: Examining the Pegasus Virus Controversy, Non-Patentable Inventions under the Patents Act, 1970. Marriages in Hinduism is considered sacred. With the rise of coeducation, the education of women, and the democratic ideal of equality and freedom, inter-caste marriages are now seen as signs of advancement. Dowry was outlawed among Hindus by the Dowry Act of 1961. justice and rights. Divorce difficult as marriage is considered a sacrament: SC (See Section 8. Majority-Hindu Nepal has become increasingly progressive since a decade-long Maoist rebellion ended in 2006. In todays world, the goals, styles, customs, and functions of Hindu marriage are evolving. Concept of Marriage: Sacrament or Contract. An example of data being processed may be a unique identifier stored in a cookie. 518), [xiii] Anjana Dasi v. Ghose (6 Bengal Law Reporter, 243). There are wedding vows in Catholic marriages in the form of 3 questions . This view has been accepted by the High. All the rights and obligations it creates arise immediately and are not dependant on any condition precedent. The court also noted that repeated allegations and litigation against a spouse amount to cruelty which is a ground for divorce. Rahul Gandhi defamation case | How definite is Modi as a collection of persons? Sikhs, Janis, Buddhists, and Schedule Castes are all included in the Acts definition of Hindu. These are divided into 2 categories of approved and unapproved forms of marriage. Furthermore, the Calcutta High Court held in Anjana Dasi v. Ghose [6], that lawsuits related to marriage concern what in the eyes of the law should be treated as a civil contract, and important civil rights derive from that contract. There are various ceremonies, according to the different castes, that are essential for a marriage to be solemn. One must get married in order to become a full man or full woman. 5, 11, and 12 of the Hindu Marriage Act makes the readers understand that consent is not an essential part of the Hindu marriage. Hence, it is a Contract. Lexpeeps organises different events debates seminars of its own and also organises the major law school activities on tie-ups with leading law schools. 400, [3] Muthusami v. Masilamani, (33 Mad.342), [4] Purushottamdas v. Purushottamdas, (21 Bom.23), [5] Bhagwati Saran Singh v. Parmeshwari Nardar Singh, (1942 ILR All. It is very important to perform all the rites with the wife. Marriage in Hinduism - Wikipedia Marriage under Hindu Law is not only samskara or sacrament but the only samskara prescribed for women under Hindu Law. The bride should be younger than the bridegroom at the time of marriage, according to the Vedas, Brahmins, and Kama-Sutra. Thus it is very clear from the above arguments that the Hindu Marriage Act does not consider the question of consent as of much importance. Endogamy is a mate-selection process in which a family must choose a mate for their daughter or son from within the group or culture. 10 and 11 of the Indian Contract Act, 1872, states that contract by a minor or an incompetent person is void. Brahmins, according to the dharma texts, have a duty to accept gifts. Marriage in Hinduism - Sociologyguide Marriage As A Contract: 6. ), (2) The Act has abolished the divergence between the Mitakshara and the Dayabhaga Schools in connection with the prohibited degrees of relationship for the purposes of a Hindu marriage. But in recent years, with the onset of dating culture in India, arranged marriages have seen a marginal decline, and future brides and grooms prefer to choose a spouse on their own and not necessarily just the one their parents find nice. You may reach out to us by dropping an email to: Marriage under Hindu Law: Sacrament, Contract and Sacrosanct, Documents relating to Protection of Human Rights: UDHR, ICCPR and ICESCR, Corporate Breakdown: Winding up, Voluntarily Winding up, Liquidation and Dissolution under Companies Act. Public policy supports marriage as necessary to the stability of the family, the basic societal unit. 518), the Court after stating extensively from Macnaghten's Hindu Law, Strange's Hindu law and Vyavastha Chandrika, expressed the view that a Hindu marriage is not only a sacrament but also a contract. The wife plays a significant role in the social, cultural and economic life of a man. No man could perform yaja without a wife. Indian Law Institute is the publisher of Journal of the Indian Law Institute The Institute publishes various books, reports and studies of its research projects besides the publishing of JILI and ASIL. In view of the above, it may be concluded that Hindu Marriage is both a sacrament and a civil contract. In the case of Dhanjit Vadra v. Beena Vadra the court cited observations of a division bench of the Andhra Pradesh High court: Section 13-B radically altered the legal basis of a Hindu marriage by Treating it as an ordinary form of contract which competent parties can enter into and put an end to like any other contract by mutual consent. A man or a woman without a spouse (I.e. 3. Evolution of Marriage: 3. 400, [vii] https://www.news18.com/news/india/marriage-under-hindu-law-is-sacrament-not-contract-delhi-hc-1342165.html, [viii] A Treatise on Hindu Law and Usage, 1878 by John Dawson Mayne, [ix] Muthusami v. Masilamani, (33 Mad.342), [x] Purushottamdas v. Purushottamdas, (21 Bom.23), [xi] Macnaghten, Principles of Hindu Law, 1829, [xii] Bhagwati Saran Singh v. Parmeshwari Nardar Singh, (1942 ILR All. It is believed to be the strongest bond between husband and wife. "Sacrament In Hindu Law. Even In Islam": Centre Opposes Gay Marriage is regarded as a fundamental social institution. 5 of the Hindu Marriage Act talks about the mental capacity of the parties. However, from the Vedic era to the present day, the typical Hindu marriage concept has displayed its many colours and shades. Such Kanyadan completes all the requirements of a gift under the Hindu Law. People are becoming more aware of their desires and needs as a result of societys individualistic existence. 12 of the Hindu Marriage Act, a marriage of a minor or unsound person is voidable and not void. Let us first look at the shift in marriage from a sacred institution to a contract. In Bhagwati Saran Singh v. Parmeshwari Nardar Singh[xii], the court quoted Macnaghtens Hindu Law, Starnages Hindu Law, and Vyawastha Chandrika and finally expressed the opinion that Hindu marriage was not only a sacrament but also a contract. Thus, a Hindu marriage is considered as something which is more of a religious necessity and less of a physical luxury. In this form of marriage, the father of girl gift his daughter to person of good character who is learned in vedas. Certain legislation in modern law renders a marriage as a civil contract by making provisions for the dissolution of the marriage. It is religious rite or sacrament. Firstly let us see some interpretations of law highlighting that Hindu Marriage is only a Sacrament. Introduction. Society has mastered the art of selecting a partner and is aware of the demands of modern life. All we expect is that when put according to Contract Law terms, a Marriage with a person of unsound mind or less age must be void. 12 of the Hindu Marriage Law, a marriage of a minor or a sick person is voidable and not void. It is a permanent union. when the bridegroom and bride take 7 steps (pheras / feras), are taken around the holy fire it is said that they will be together for the next 7 lives. 1. Marriage Under Hindu Law is 'Sacrament', Not Contract: Delhi HC - News18 The Hindu marriage act 1955 states the solemnization of the Hindu marriage, a Hindu marriage may be performed by all the ceremonies and rituals of both parties or either anyone of them. 2023 LAWyersclubindia.com. Cohabitation does not carry such rights and privileges. ), (7) The Act does not prescribe any particular ceremony for a valid Hindu marriage. During that time, swayamvars were considered a modern way of choosing grooms based on their abilities and also provided brides with the opportunity to make their own decision. According to the Hindu scriptures, a person who does not father a child through marriage cannot reach heaven. Let us look at some of the very famous interpretations by the Court in this regard. HINDU MARRIAGE IS A CONTRACT OR SACRAMENT - brillopedia rites and ceremonies of either party thereto. In social institution marriage plays a vital role. The journal is a very highly rated journal of international repute. 7 This is admittedly something of a caricature of the sacramental nature of Hindu marriage. Marriage, Divorce And Hindu Religion - Legal Articles in India ), Author: Akshada Sarpande,MIT School of law, student of FY BBA LLB. We and our partners use cookies to Store and/or access information on a device. In Hindu culture, cross-cousin marriages are also favoured. Marriage under Hindu law is 'sacrament', not contract: Delhi High Court Description: This project essentially aims at analyzing the changing concepts in hindu marriage. It is concerned with the saptapadi which means that taking seven rounds the fire with their partner; after its completion marriage becomes complete and binding. This Act has brought about certain radical charges, the most important of which are as follows: (1) Act has declared that marriages amongst Hindus, Jains, Sikhs and Buddhists, are valid Hindu marriages in the eyes of the law. INTRODUCTION India is the only country that adheres to religions in the context that Hindu religion has its own culture, conventions, cultures, and laws. Where the western thoughts are combined. After the passage of the Sarada Law, child marriages have become illegal. starting Saveetha School of Law, Chennai. Hindu Marriage: Is It Sacrament or A Civil Contract? 1991 Indian Law Institute Thus the very foundation of family and society is marriage. Also, it is not only considered as sacred but it is also a holy union. unite which gives rise to conjugal rights. Legal Service India.com is Copyrighted under the Registrar of Copyright Act (Govt of India) 2000-2023. Please enter your username or email address. Section 2 of the Hindu Marriage Act of 1955 states that this law applies to anyone who is a Hindu by birth or who has changed his religion to any of its forms, such as Virashaiva, Lingayat or follower of Brahmo, Prarthana. There are no strings attached to it nor the same creates any legal bonding between the parties. If you are already a registered user of The Hindu and logged in, you may continue to engage with our articles. Marriage is considered a sacred institution in India. Every Hindu is required to visit four ashrams. According to Sec. It shows that there is actually a gift of the bride. But, due to the influence of Western culture, many men and women do not consider marriage necessary these days. When a man and woman are into a permanent relationship for the social, spiritual purposes of dharma, physical, procreation and sexual pleasure. The Hindu girl with modern education is not ready to accept the slavery of men. According to Hindu marriage act,1955 marriage is considered to be a sacrament with solemn pledge and it is not a contract which is only entered by the execution of a marriage. The Hindu Marriage Act, 1955, (Act 25 of 1955), s. 7. Also, it is a relationship that is established by birth to birth. This Article is written by Karthik Varun chasing B.A. ), (8) The Act provides, for the first time, for the registration of Hindu marriages. Polygamy and polyandry prevailed during ancient times. It shows that despite the absence of the brides consent, the marriage is valid and legal. divorce. It is a holy union. It has also been rejected by law. ), The Act also makes a provision for re-marriage, inasmuch as it provides that after a valid divorce, either party may marry again. conditions are fulfilled, namely: At the time of the marriage, neither party: is incapable of giving a valid consent to it in consequence of Your email address will not be published. Thus, as is believed, the Hindu marriage is no longer indissoluble. Based on Hindu law, Hindu marriage is a sacred tie, and the last ten sacraments that can never break. New Delhi: Marriage under the Hindu law is "sacrament" and "not a contract" which can be entered into by executing a deed, Delhi High Court has observed while dismissing a plea by a woman who had challenged an order refusing to declare her as the legally-wedded wife. A Hindu marriage is considered a religious sacrament mainly because only when religious rites are done it would mean a valid and complete marriage. Hindu Marriage: Whether a Sacrament or a Civil Contract Also, it is a relationship that is established by birth to birth and Read More This article deals with the Concept of Marriage under Hindu law. Activists hail Nepal ruling allowing same-sex marriage | Reuters As a result, it is sacred and irreversible. Even then, the Draupadi family bitterly opposed this marriage. In general, all ashrams are beneficial to an individuals growth. The Indian government has adopted numerous Acts and Amendments to protect human rights and eliminate social evils. Hindu Marriage Is A Contract Or A Religious Sacrament? India needs a Uniform Civil Code - The Hindu Section 5 and 12 of the Hindu Marriage Act, are the pertinent provisions to determine whether Hindu marriage is sacrament or contract. JINALI SHAH, You can also submit your article by sending to email. The Hindu Marriage Act 1955 has made a significant change to the institution of Hindu marriage by allowing divorce in certain specific circumstances. Hindu marriage can be defined as religions sacrament in which a man and woman are bound in permanent relationship for physical, social and spiritual purpose of dharma, procreation and sexual pleasure. It talks of the change of tradition to modernity. It is often said in Hindu's Jodiya to uppar se ban kar aati hai That life partner's are made in heaven they just meet on Earth. In Shivonandh v. Bhagawanthumma, AIR (1962) Mad. It is a religious and sacred union of the bride and groom that is necessary to carry out through religious ceremonies and rites. (See sections 13, 13B and 14. In general, all ashrams are beneficial to an individual's growth. (See Sections 5 and 17. The 1872 Special Marriage Act was repealed by the 1954 Special Marriage Act. Legal Service India.com is Copyrighted under the Registrar of Copyright Act (Govt of India) 2000-2023, An Introduction to Sociology ByNavendu K. Thakur, Pg: 141, https://www.google.com/amp/s/blog.ipleaders.in/nature-hindu-marriage-hindu-law/%3famp=1. To read more about the nature of marriage under Hindu law click here. In fact, the marriage is not considered complete or valid until its consummation. (3) The Act also introduces monogamy for the first time amongst the Hindus and provides for punishment for bigamy under the Indian Penal Code. Continue with Recommended Cookies. Your email address will not be published. taking of seven steps by the bridegroom and the bride jointly before the According to some modern writers of Hindu law, Hindu marriage is not only a sacrament but also a contract. Section-2 of the Hindu Marriage Act, 1955 states that this act applies to any person who is a Hindu by birth or who has changed his/her religion and follows the Brahmo, Prarthana, or Arya Samaj. This conduct shows disintegration of marital unity and thus disintegration of the marriage. As a Muslim marriage in the legal sense is a civil contract that can be rescinded by divorcing the spouse by pronouncing talaq I.e. [1] Forms of marriage Under Hindu system eight types of marriages can take place: Brahma form of marriage: Brahma vivah is the best and most practiced form of marriage in India. Save my name, email, and website in this browser for the next time I comment. We now will look into some of them. It is very much necessary at the time of marriage the person shall attain the specified age given in the act. Or at least, it is far more difficult for women to retain social acceptance after a decree of divorce. Copyright 2023, THG PUBLISHING PVT LTD. or its affiliated companies. So let husband and wife ever strive doing all their duties, that they may not be separated from each other, wander apart". Therefore, in the most Hindu marriage is a religious ceremony is followed. Comments have to be in English, and in full sentences. The passing of the Hindu Marriage Act, in 1955, has substantially modified the institution of marriage as recognized by Hindu law. Thus, an essential part of the marriage ceremony is called Kanyadan. It is a permanent union. LATE ENGR. RAYMOND ANTHONY ALEOGHO DOKPESI - Facebook In the case Purushottamdas v. Purushottamdas the court held that the marriage of Hindu children is a contract made by the parents. It states very clearly that neither party should be incapable of giving valid consent. Save my name, email, and website in this browser for the next time I comment. Moreover, among the Hindus the birth of a son is considered essential as it would enable the householder to attain 'moksha'. It was held that the property of a childless woman married in one of the four approved ways will pass to her husband after his death. It is a permanent bond between husband and wife that does not end with life it continues even after death I.e. Author: Arindam Pushkar, II Year of LL.B from Thakur Ramnarayan College of Law, Mumbai. Non-observance or performance of the ceremonies (I.e. According to Shastras, marriage is a holy sacrament and the gift of a girl (Kanyadaan) to a suitable person is a sacred duty on the father, who derives spiritual benefit after the performance of Kanyadaan. As per the Vedas, marriage is a sacred institution, which regulates social life. Anyone who is a Buddhist, Jain, or Sikh is also subject to this law. Moreover it is a sacrament under Hindu marriage act. But in Anjona Dasi v. Ghose it is observed that suits relating to marriage deal with that which in the eyes of law must be treated as a civil contract, and important civil rights arise out of that contract. In Purushottamdas v. Purushottamdas[x], the court observed that Marriage of Hindu people is a contract made by their parents. 1. Kanyadaan and Saptapadi) renders the marriage void or invalid. Hindu marriage is a samskara or a sacrament. It is a lasting bond between husband and wife that is permanent and linked even after death and they will remain together after death. Manu said that once a man and woman are united in marriage, there should be no differences between them and must remain faithful to each other. So, this paper mainly tried to discuss both It has been said in the context the cohabitation has all the headaches of marriage without any of the benefits. This shows that polyandry was not the usual practice in the Vedic period. It is, therefore, clear that to the . Vows and prayers . (See Sections 5 and 7. Vol.3 of International Journal of Legal Research and Studies 113(2018), Dr. Paras Diwan and Peeyushi Diwan, Modern Hindu Law 66 ( Allahabad Law Unlike Hindu marriage, which is a sacrament, according to Islamic Law, a marriage Nikaah is permanent and an unconditional civil contract made between 2 parties of opposite sexes with a view to mutual enjoyment and procreation of children. With this, we can argue that since the Hindu Marriage Act does not even follow the legal principle enshrined in the Contract Act, Hindu Marriage does not stand a chance to prove itself as a Contract. According to Sec. Previously, inter-caste marriage was considered wrong in Hindu society. Also. [3] Aspects Conception Hindu marriage serves as a bridge between individuals and society. The judgment came in a case in which the wife left on the wedding day itself. In a swayamvara, the girls parents conveyed the girls intention to marry and invited all interested men to be present in a wedding hall at a specific date and time. HDFC Bank-HDFC merger: What should you do with the stock of HDFC Bank now, AI taking away jobs? ins.style.display='block';ins.style.minWidth=container.attributes.ezaw.value+'px';ins.style.width='100%';ins.style.height=container.attributes.ezah.value+'px';container.appendChild(ins);(adsbygoogle=window.adsbygoogle||[]).push({});window.ezoSTPixelAdd(slotId,'stat_source_id',44);window.ezoSTPixelAdd(slotId,'adsensetype',1);var lo=new MutationObserver(window.ezaslEvent);lo.observe(document.getElementById(slotId+'-asloaded'),{attributes:true}); Thus, most writers on Hindu Law, both ancient and modern, have also generally taken the view that a Hindu marriage is not only a sacrament but also a civil contract. This coupled with laws failure to guarantee economic and financial security to women in the event of a breakdown of marriage is stated to be the reason for the legislatures reluctance to introduce irretrievable breakdown as a ground for divorce, a Bench of Justices S.K. The Court in Muthusami v. Masilamani[ix] observed that: A marriage, whatever it may be a sacrament or institution, it un-doubtfully is a contract entered into for consideration, with co-relative rights and duties. To view the purposes they believe they have legitimate interest for, or to object to this data processing use the vendor list link below. PDF Concept of Hindu Marriage of India - Jetir Some of these ceremonies and traditions are now codified in the Indian legal system as customs. First qualification being permanent, the second being indissoluble and finally, the third requirement is holy. The tradition of the Swayamvars organized by kings for their daughters was born in the Middle Ages. Hindu marriage is thus rightly acclaimed as sacramental rather than contract as it lacks every essential of a valid contract e.g., proposal, acceptance and consideration. unsoundness of mind; or, though capable of giving a valid consent, has been suffering from mental It is a holy union.

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