Marriage in Hinduism
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Hindu Marriage joins two individuals for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksa (ultimate spiritual release) together. Its a union of two individuals from the opposite sex as husband / wife and is recognized by law. In Hinduism, marriage is followed by traditional rituals for consummation. In fact, marriage is not considered complete or valid until consummation. It also joins two families together. Favorable colours are normally red and gold for this occasion.
Since 2000, several countries and some other jurisdictions have also legalized same-sex marriage. Polygamy was practiced in many sections of Hindu society in ancient times. There was one example of polyandry in the ancient Hindu epic, Mahabharata, Draupadi marries the five Pandava brothers. Regarding polygyny, in Ramayana, father of Ram, King Dasharath has three wives, but Ram has pledged himself just one wife.
The Hindu god, Lord Krishna, the 9th incarnation of the Hindu god Vishnu, had 16,108 wives at his kingdom in Dwarka. In the post-Vedic periods, polygamy declined in Hinduism, and is now considered immoral, although it is thought that some sections of Hindu society still practice polygamy, in the areas of Tibet, Nepal, and China.
It was only in 1955, when the Hindu Marriage Act was passed that it became illegal for a Hindu to have more than one wife.
Marriage laws in India are dependent upon the religion of the subject in question. Although the Vedas and the Hindu religion itself do not outlaw polygamy, the terms under the Hindu Marriage Act has deemed polygamy to be illegal for Hindus, Jains, Buddhists, and Sikhs. Only Muslim men in India are allowed to have multiple wives, since they are governed under Sharia law.
- 1 Arranging the marriage
- 2 Eight types of marriage
- 3 The wedding
- 4 Modernity
- 4.1 Conditions for a Hindu marriage
- 4.2 Section 5 of the Hindu Marriage Act, 1955 runs as under
- 4.3 Monogamy, Polygamy and Polyandry
- 4.4 Monogamy: A condition precedent of valid Hindu marriage
- 4.5 Offence of Bigamy
- 4.6 Punishment for Bigamy
- 4.7 Second marriage with the consent of wife (or husband)
- 4.8 Limited Bigamy
- 4.9 Effect of Bigamous marriage
- 5 References
Arranging the marriage
The use of jathakam or Janam Kundali (astrological chart at the time of birth) of the son/daughter to match with the help of a priest is common, but not universal. Parents also take advice from the brahman called 'Jothidar' in Tamil or 'panthulu or siddanthi ' in Telugu and Kundali Milaan in North India who has details of many people looking to get married. Some communities, like the Brahmans in Mithila, use genealogical records ("Panjikas") maintained by the specialists.
Jatakam or Kundali is drawn based on the placement of the stars and planets at the time of birth. The maximum points for any match can be 36 and the minimum points for matching is 18. Any match with points under 18 is not considered as an auspicious match for a harmonial relationship. If the astrological chart of the two individuals (male and female) achieve the required threshold in points then further talks are considered for prospective marriage. Also the man and woman are given chance to talk and understand each other. Once there is an agreement then an auspicious time is chosen for the wedding to take place.
In recent years, with the onset of dating culture in India, arranged marriages have seen a marginal decrease, with prospective brides and grooms preferring to choose a spouse on their own and not Necessarily only the one whom their parents find agreeable; this has been more pronounced in urban and suburban areas than rural regions.
Eight types of marriage
According to Hinduism there are eight different types of Hindu marriages. Among the eight types not all had religious sanction. The first four were considered proper. Rakshasa and Gandharva marriage was regarded acceptable to Kshatriyas as was Asura marriage for Vaishyas and Shudras. The eight types are:
- Brahma marriage The Brahma marriage is the marriage of one's daughter, after decking her with costly garments and with presents of jewels, to a man of good conduct learned in the Vedas, and invited by oneself.
- Daiva marriage The Daiva rite is the marriage of one's daughter, decked with ornaments to a priest who duly officiates at a religious ceremony, during the course of its performance.
- Arsha marriage Arsha marriage is when the father gives away his daughter, after receiving from the bridegroom a cow and a bull or two pairs of either as bride price.
- Prajapatya marriage Prajapatya is when a girl's father gives her in marriage to the bridegroom, treating him with respect, and addresses them: 'May both of you perform together your duties'
- Gandharva marriage The voluntary union of a maiden and her lover which springs from sexual desire is called Gandharva marriage.
- Asura marriage Asura marriage is when the bridegroom receives a maiden, after having given of his own free will as much wealth as he can afford, to the bride and her kinsmen.
- Rakshasa marriage Rakshasa marriage is the marriage of a maiden involving her forcible abduction from her home after her kinsmen have been slain or wounded.
- Paishacha marriage When a man by stealth seduces a girl who is sleeping, intoxicated, or mentally challenged, it is called Paishacha marriage. This is condemned in the Manusmriti as a base and sinful act.
Wedding ceremonies can be expensive, and costs are typically borne by the parents. It is not uncommon for middle-or upper-class weddings to have a guest list of over 500 people. Often, a live instrumental band is played. Vedic rituals are performed and the family and friends then bless the couple. Food is served to all the invitees with lots of delicacies. The wedding celebrations can take up to one week depending on the practice in that different part of India.
Types of Hindu marriage and rituals
Historically the so-called vedic marriage was but one of the few different types of Hindu marriage customs. Love marriage was also seen in historical Hindu literature and has been variously described in many names: e.g. Gandharva vivaha etc. In certain poor vaishnav communities there is still a custom called kanthi-badal which is an exchange of bead-garlands as a very simplified form of ritual in solitude in front of an idol of Krishna, considered a form of acceptable love marriage.
Elopement has also been described in old Hindu literature. Lord Krishna himself eloped with Rukmini on a horse chariot. It is written that Rukmini's father was going to marry her to Shishupal, against her wishes. Rukimini sent a letter to Krishna informing of a place and time to pick her up.
Symbolic rituals worn by married Hindu women
The married Hindu women in different parts of India follow different customs. Mostly Sindoor, Mangalsutra and Bangles are considered as signs of a married woman. In some places, in especially Eastern India, instead of Mangalsutra they put only vermilion on the hair parting, wear a pair of conch bangles (shankha), red bangles (pala) and an iron bangle on the left hand (loha) while their husband is alive. In South India, a married woman is required to wear a necklace with a distinctive pendant called a thali and silver toe-rings. Both are put on her by the husband during the wedding ceremony. The pendant on the thali is custom-made and its design is different from family to family. Apart from this, the married woman also wears a red vermilion (Sindoor) dot on her forehead called Kumkum and (whenever possible) flowers in her hair and coloured glass Bangles. The married woman is encouraged to give up all of these when her husband dies (although some choose not to). In the Kashmiri tradition, women wear a small gold chain (with a small gold hexagonal bead hanging from the chain) through their upper ear which is a sign of being married. The married woman in Kumaon Uttarakhand wear a yellow cloth called pichoda.
Many people believe that arranged marriage is the traditional form of marriage in India; however love marriage is a modern form that an increasing number of couples opt for, usually in urban areas. Love marriage differs from an "arranged marriage" in that the couple, rather than the parents, choose their own partner. However, there are various instances from ancient scriptures of Hinduism, of romantic love marriages that were accepted in ancient times, for example Dushyanta and Shakuntala in the story of the Mahabharata who undergo a love marriage. Somewhere in the course of time, arranged marriages became predominant and love marriages became unacceptable or in the least, frowned upon. Despite some love marriages, the vast majority of Indians continue to have arranged marriages, though this is changing rapidly.
Conditions for a Hindu marriage
There is no system of law in the world which does not lay down certain requirements on the fulfillment of which alone a marriage should be performed. Simply put, these are covered under the heading of capacity to marry. Although freedom of marriage is granted to all, marriage can take place only on the fulfillment of certain conditions laid down by law. A marriage performed in violation of the conditions of marriage may not be valid.
It is a unique development of law that all systems of law lay down certain requirements or conditions on the fulfillment of which alone parties are said to have capacity to marry but these requirements or conditions vary vastly from system to system. Some lay down elaborate conditions of marriage, while some lay down only few conditions of marriage. Further, all systems of law do not provide uniform consequences of the violation of these conditions.
Section 5 of the Hindu Marriage Act, 1955 runs as under
5. Conditions for a Hindu marriage.—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 the marriage; (ii) at the time of marriage, neither party— 1.is incapable of giving a valid consent to in consequence of unsoundness of mind; or 2.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 the procreation of children; or 3.has been subject to recurrent attacks of insanity or epilepsy; (iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage; (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. So far as the Hindu Marriage Act is concerned contravention of any of the conditions specified in cls. (i), (iv) and (v) of s. 5 renders a Hindu marriage absolutely void (vide s.11).
Thus, Hindu Marriage Act bans all kinds of cousin marriages but allows when it is allowed by local custom. North Indian Hindus regard all kinds of cousin marriages as incest and these type of relationships are frowned uopon but south Indian Hindus frequently marry their cross cousins and nieces and these relationships are considered good among them, despite of negative biological consequences.
Monogamy, Polygamy and Polyandry
Most people—a predominant majority of people—do not practice bigamy (plurality of spouses) and most people perform monogamous marriage (only one spouse). Polygamy (plurality of wives) limited to four wives is allowed in some Muslim countries and some non-Muslim tribes of African continent. Before 1955, India was the largest country in the world which permitted its great majority of its people, Hindus And Muslims, to practice polygamy (none to Hindus and limited to four wives to Muslims). In some parts of India such as in Lahaul valley in Himachal Pradesh and among the Thiyyas of South Malabar, polyandry prevailed—and was recognized under custom. Strict monogamy was introduced for Hindus in Bombay Province in 1948 and in Madras Province in 1949. Finally in 1955 the Hindu Marriage Act introduced monogamy for all Hindus and made bigamy a penal offence. Bigamy among Hindus is now punishable with a term of imprisonment which may extend to seven years, and, if the fact of the first marriage was concealed from the spouse, the term of imprisonment may extend to ten years.
Monogamy: A condition precedent of valid Hindu marriage
The outstanding feature of the Hindu Marriage Act is introduction of monogamous form of marriage. Even before the commencement of the Hindu Marriage Act the marriage amongst the nayars and others governed by the Marumakkathyam Law of Kerala was strictly monogamous since the Madras Marumakkathyam Act 1932 prohibited bigamy and polygamy. This apart, certain States made provisions for prevention of bigamous marriage. These are as follows: Bombay: Bombay Prevention of Hindu bigamous marriage Act 1946. Madras: Madras Hindu (Bigamy Prevention and Divorce) Act 1946. Saurashtra: Saurashtra Prevention of Hindu Bigamous Marriage Act 1950. Madhya Pradesh: M.P. Prevention of Hindu Bigamy Act 1955. Textual Hindu Law permitted polygamy for a man. It is not a matter of long past that in India hypergamy brought forth wholesale polygamy and along with it a misery, plight and ignominy to Brahmin woman having no parallel in the world. A caste when is sub-divided into different sections of different social status the rule of hypergamy demanded that the parents must marry their daughters to a man of equal social status if not higher. The parents of higher sections found it extremely difficult to procure husbands for their daughters from a higher section or even husbands of equal status. During those days there was no injunction on polygamy. Some Bengali-Brahmins of higher status utilized this social phenomenon for earning a livelihood by indulging in wholesale polygamy. Those Brahmins popularly known as Kulin Brahmins used to marry innumerable women. The company of their husbands was required to be purchased. Not only in Bengal but hypergamy prevailed also in Anavil-Brahmins and Leva-patidars of Gujarat, Rajputs of Gujarat and Rajasthan, Mahrats of Maharashtra, and Nayars, Kshatriyas and Ambalavasis of Kerala. In post-Vedic India a king could take and generally took more than one wife, different wives having different designations, e.g. mahisi (chief queen), patni, parivirkti and vivata etc. Vivata meant the most favourite wife, parivirkti meant a wife who bore no children. When one had only one wife she used to be called patni. The sanction for polygamy in Dharmashastra-age can be deduced from a verse of Parasara, the law-giver who prescribed three wives for a Brahmin, two for a Rajanya or Kshatriya and one for a Vaishya. Section 4, Hindu Marriage Act puts an embargo to this practice all over India among the Hindus. The provision of the Hindu Marriage Act imposing monogamy as a condition for a valid marriage has been unsuccessfully challenged as ultra vires. It has been held that the provision does not offend Articles 14, 15 & 25 of the Constitution of India. A marriage in violation of the dictate that it must be monogamous is void ab initio. The provision in s. 11, Hindu Marriage Act about the decree of nullity is an additional provision. Though s. 11 Hindu Marriage Act gives a right to the parties to sue for declaration that the alleged marriage is a nullity, the filing of such a suit is not a condition precedent to putting an end of such marriage. What ultimately is declared in such suits is the status of the parties on the date of the alleged marriage. It is not that a bigamous marriage contracted in violation of s. 5(i), Hindu Marriage Act is valid until a decree declaring the marriage as nullity is passed. What is null and void is not in existence for any purpose whatsoever. Accordingly delay is no bar to institution of suit for declaration that a marriage is void ab initio. It may be recalled that Limitation Act does not apply to a suit or proceeding under the law relating to marriage and divorce [vide s. 29(3), Limitation Act 1963]. No matter whether the petitioner had contracted several marriages before, during the lifetime of the husbands if the petitioner proves that respondent with he or she entered into a sort of marriage had a spouse alive on the date of the marriage, the marriage is liable to be declared null and void. When divorce between spouses is obtained by a minor the decree of divorce is a nullity, if a spouse of such marriage contracts another marriage, such marriage is void, it being hit by cl. (i) of s. 5 of the Hindu Marriage Act. When one spouse assails a marriage as void as bigamous but the respondent husband while admitting the first marriage takes the plea of death of first wife, it has been held the wife is entitled to a decree of nullity as the marriage must be held to be void. But in the absence of proof of subsistence of first marriage, cannot be held invalid.
Offence of Bigamy
The offence of bigamy is committed by a person marrying again during the lifetime of his or her spouse (wife or husband as the case may be), provided that the first marriage is not null and void. If the subsisting marriage is voidable then also offence of bigamy is committed. The offence of bigamy is committed only if the requisite ceremonies of marriage are performed. The second marriage cannot be taken to be proved by the mere admission of the parties; essential ceremonies and rites must be proved to have taken place.
Punishment for Bigamy
The punishment for bigamy is laid down in sections 494 and 495 of the Indian Penal Code, 1860 under the former section (bare bigamy) the punishment may extend to a term of imprisonment which may extend to seven years as well as fine, under the latter (bigamy by concealment of former marriage), the punishment is a term of imprisonment which may extend to ten years and also fine.
The solemnization of marriage is proved by showing that the marriage was performed with the proper and essential rites and ceremonies of marriage prescribed under the law or custom applicable to the parties. A prosecution for bigamy will fail if what is established is that some sort of ceremonies (not the essential ceremonies as prescribed by law and custom) were performed with the avowed purpose that the ceremonies performed by them would confer marital status on them. It is now established that if the second marriage of the accused is declared void before the prosecution is commenced, no prosecution for bigamy can be made. The mere intention of parties however serious, will not made them husband and wife and the accused will escape prosecution even if he deliberately performed a defective ceremony. So long as the solemnization of a marriage depends upon the performance of a ceremony, the law cannot be otherwise. Persons who perform bigamous marriage cannot be guilty of bigamy if they omit, deliberately or inadvertently, to perform the essential ceremonies of marriage. The solution lies in prescribing one ceremony for all Hindu marriages and by providing for registration of marriages.
If first marriage is not proved, the second marriage is not bigamous. In the case of a bigamous marriage the “second wife” has no status of wife. The first wife of a bigamous marriage has no right to file a petition for nullity under the Hindu Marriage Act, 1955 since section 12 clearly lays down that a petition for a declaration that the marriage is null and void can be filed only by either party to the marriage.
Second marriage with the consent of wife (or husband)
A notion still prevails that a childless person can take a second wife with the consent of his first wife. This is entirely wrong. Such a marriage will be bigamous and void. However, this erroneous notion led a Himachal Pradesh Court to grant a declaration on the suit of the wife that, since on account of her frail health she was not in a position to beget children, her husband be allowed to take a second wife. On appeal, the Himachal Pradesh High Court held the declaration as illegal (Santosh Kumari v. Surjit Singh, AIR 1990 HP 70).
In some systems of law which recognize monogamy, concession for polygamy or second marriage is granted to those males who fail to beget a child even after the elapse of several years of the marriage. In Goa, Daman and Diu, during the Portuguese rule, a Hindu husband was permitted to take a second wife during the life-time of the former, in some specified cases and in some circumstances with the consent of his first wife. That continues to be the law in those territories. Some philosophers had suggested that polygamy should be tolerated for some classes on economic grounds. There are others also who support recognition of polygamy in some limited cases. One of them Derrett says: “It is argued that carefully regulated bigamy, i.e., plural marriages, in cases of “infertility, mental instability of the wife, and other cases where the good sense and humanity of the husband and his family recoils from divorcing her or annulling the marriage where she is impotent or very sick, would not only be in accord with traditional Hindu religious sentiment and practice, but also much more realistic”, in a book titled Critique of Modern Hindu Law, at page no. 308. What is here advocated is not bigamy but polygamy. The same arguments hold good for polyandry also and not merely for Hindu society but also for all societies in East as well as West. But, so far, polyandry on these grounds has not been suggested by Kane, Derrett or any one else. As to ‘traditional Hindu religious sentiment and practice’, it is now well known that polygamy at no stage of Hindu society, right from the Vedic age to this day, had been practiced widely. There have been only stray cases. The Hindu sentiment has always been against polygamy. Rama has been the ideal and Rama practiced strict monogamy. In the contemporary society, any argument in favour of bigamy, polyandry or polygamy, is based on crude sentimentalism. It is a worst form of male narrow-mindedness.
Effect of Bigamous marriage
A bigamous marriage is non-existent and simply because there is no recourse to the Court it cannot be said that exists unless and until a decree is passed declaring it to be null and void. A spouse may restrain the other from marrying another by an injunction. A brief resume of the relevant provisions of the Hindu Marriage Act would show that Sect. 5 (i) lays down that the marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of the marriage. This section had been introduced by the Parliament with a view to prohibit bigamy. Before enactment of the Hindu Marriage Act there was no such prohibition in the pure Hindu law. Section 11 of the Act provides that a marriage between any two Hindus, if it contravenes the conditions specified in cls. (i), (iv) and (v) of Sec. 5 and if it is solemnized after the commencement of the Act, the same shall be null and void. Under Sec. 11 of the Act any marriage solemnized after the commencement of the Hindu Marriage Act can be declared null and void on a petition presented by either party, thereto against the other party. Sec. 11 is exhaustive, the right to get the marriage against Sec. 5, Cls. (i), (iv) and (v) is limited to the parties ton a marriage and that a third person cannot bring any suit for its declaration as a nullity. There is no doubt that the phrase “either party thereto” can only mean to person, namely, the actual parties to the marriage and no third party. According to the language of this section even the first wife cannot apply under Sec. 11 for declaration of the second marriage as void but there is nothing in Sec. 11 or in any provisions of the Hindu Marriage Act which debars a person affected by the illegal marriage performed in contravention of Cls. (i), (iv) and (v) of Sec. 5 to file a suit in the Civil Court for its declaration as void. There is a presumption against exclusion of jurisdiction and it cannot be easily inferred. There is inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may at one’s peril bring a suit of one’s choice. A suit for it maintainability requires no authority in law. It is enough no statute debars the suit. Accordingly not only the first wife but also anyone who is affected by the marriage performed in contravention of Cls. (i), (iv) and (v) of Sec. 5 of the Hindu Marriage Act would be entitled to bring the civil suit.
- B. R. Kishore, Lord Krishna,page 47
- Francis Hamilton, Genealogies of the Hindus extracted from Sacred Texts, page 123, 145
- Manusmriti 3.24 & 26.
- Manusmriti 3.27-34.
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