Module 3: Laws on Marriage

Hindu Law has been ordained as a necessary sacrament (Samskar). As mentioned under
Hindu law jurisprudence every Hindu must marry and the man is incomplete without his wife
or better half also known as ’ardhangini’. Marriage helps in begetting a son, discharge his
debt to his ancestors, perform religious and spiritual duties. Smritis mention duties attached
to marriage. Manusmriti mentions, ‘Him to whom her father may give her, or her brother
with the father’s permission, she shall obey as long as he lives, and when he is dead, she
must not insult.’ (Manusmriti, Chp. 5.151). There had been a strong message given to the
society to preserve chastity of women.
Marriage has been considered as a sacrosanct, permanent, indissoluble and eternal union.
Manusmriti as has reference to the concept of eternal bond between husband and wife, ‘He is
only a perfect man who consists (of three persons united), his wife, himself, and his offspring:
thus says the Veda and learned Brahmanas propound – The husband is declared to be one
with the wife.’ (Manusmriti, Chp. 9.45). It further states, ‘Neither by sale nor by repudiation
is a wife released from her husband; such we know the law to be which the Lord of creatures
(Prajapati) made of old.( Manusmriti, Chp. 9.46).
If we look into Muslim law marriage if contract and moreso a civil contract. The intent is to
legalize sexual intercourse and procreation of children, solemnized by recitation of verses
from Koran. Fyzeee mentions ‘Nikah’ is an institution with manifold objects which helps in
preservation of species, fixing descent, restrain men from debauchery, encourage chastity,
promote love and union and develop mutual help in earning livelihood. As essential
conditions to marriage there must be an offer made by groom and accepted by another in the
same meeting in the presence of two witnesses (either two adult males or one adult male and
two adult females). However witnesses are not required in case of Shias. Unlike Hindus,
however requirements of or performance of religious ceremonies are not essential part of
marriage.
If we look into Parsi Law, marriage is also a contract but the religious ceremony of ashirbad
is essential for validity of marriage. Marriage is solemnized by a Parsi priest in presence of
two witnesses. Under the Christian law, contract of Marriage is solemnized under Christian
Marriage Act, 1872 by the Minister of Religion or the marriage can also be performed under
Special Marriage Act, 1954.

Forms of marriage under Hindu Law

There were eight forms of marriage under Hindu Law out of which four were considered to
be approved form whereas four unapproved forms of marriage. About the present conditions
of the above mentioned forms, Dr. D.N. Majumdar has said, “Hindu society now recognises
only two forms, the Brahma, and the Asura, the higher castes preferring the former, the
backward castes the latter, though here and there among the higher castes the Asura
practice has not died out.”
From the days of Grihas Sutra, Dharma Sutra and Smritis the forms of marriage are said to be
eight. But according to historical point of view there were more prevalent forms than eight. It
is believed that the other forms of marriage, apart from the eight forms of marriage as
ordained by the sastrakaras, were based on custom and convenience of people. Smriti
recognized eight modes of obtaining a maiden as one’s wife and these have come to be
known in Hindu law as the eight forms of marriage.
Manu, the great Hindu law giver, has mentioned eight forms of Hindu marriage, viz, Brahma,
Daiva, Arsa, Prajapatya, Asura, Gandharva. Rakksash and Paisacha. Prior to the enactment of
Hindu Marriage Act, there were eight forms of marriage, four approved and four unapproved.
This was owing to the large extent over which the Hindu society was spread and the
dissimilar elements of which it was composed.
(1) Brahma form of marriage:
Brahma form of marriage is said to be the best and mostly practiced throughout India. It is
considered an advanced stage of social progress. Manu described this Brahma form of
marriage as “the gift of a maiden spontaneously after clothing and reverencing her, to one
learned in the Vedas and of good character,”

Thus the “gift of the daughter, clothed and decked, to a man learned in the Vedas, whom her
father voluntarily invites and respectfully receives, is the nuptial rite called “Brahma” C.D.
Banerjee is of the view that this form of marriage was called so because it was fit for the
Brahmans. But in the Mahabharata it is also found that the Kshatriyas practiced the Brahma
form of marriage.

The Hindu Sastrakaras have considered it the highest, purest and most evolved method of
marriage as it was free from physical force, carnal appetite, imposition of conditions and
money. In the Brahma form of marriage social decency was fully maintained and the
religious rites were fully observed. Manu and Yajnavalkya held that the son born of a Brahma
marriage redeems from sin, ten ancestors, ten descendants and himself.

(2) Daiva form of Marriage:

The Daiva form of marriage was slightly different from the Brahma form of marriage in the
sense that the suitor was an official priest. Special qualities like good character, scholarship in
the Vedas or good family background of the bridegroom were not emphasized in selection.
“The rite which sages call ‘Daiva’ is the gift of a daughter whom her father has decked in gay
attire when the sacrifice is already begin, to the officiating priest, who performs the act of
religion. The Daiva form of marriage was described by Manu as “the gift of a daughter, after
having adorned her, to a sacrificial present rightly doing his work in a sacrifice begun.”

Manu and Yajnavalkya hold the view that the son born of such a marriage is said to redeem
from sin seven parental ascendants and seven male descendants and himself. This from of
marriage is exclusively for the Brahmins, because the Brahmins can only officiate in the
sacrifices, as priests. But this form of marriage was rated lower than the Brahma form of
marriage because here the father or other guardians of the bride took into account the services
of the bridegroom. On the contrary, in the Brahma form of marriage, the bride figured as an
object of ‘dana’ or gift by her father or guardian to the bridegroom.
(3) Arsha form of Marriage:

“When the father gives his daughter away after having received from the bridegroom one pair
of kine, or two pairs for uses prescribed by law, that marriage is termed Arsha”. This form of
marriage is called Arsha because it was current mostly in the priestly families as its very
name suggests. In this form of marriage, the pair of kine, or two pairs, constitute the price of
the bride. Sir Gooroodas Banerjee holds the view that” it means the ceremony of the Rishis
and is perhaps indicative of the pastoral state of Hindu society, when the free gift of
daughters in marriage was not common and cattle formed the pecuniary consideration for the
gift.” The epics and Puranas contain many examples of this form of marriage, one such being
the marriage of sage Agastya with Lopamudra.
The number of persons redeemed by the male offspring of such marriage is only six (three
male descendants and three female ascendants), Nevertheless, the importance of this form of
marriage has been highlighted in the Visnu Purana and the Matsya Purana. This form of
marriage was also peculiar to the Brahmins.
(4) Prajapatya form Marriage:

The very name Prajapatya indicates that the pair enters the solemn bond for repayment of
debts or rinas to Prajapati for procreation and upbringing of children. The basic condition in
this form of marriage is that the bridegroom is to treat the bride as a partner for secular and
religious purposes and the proposal comes from the bridegroom who is a suitor for the
damsel.
The Prajapatya form of marriage is an orthodox form where the parental approval figures and
the economic complications of betrothal are bypassed. The prajapatya form of marriage is
construed to be inferior to the first three forms because here the gift is not free but it loses its
dignity due to conditions which should not have been imposed according to the religious
concept of a gift. This form of marriage may have fallen into disuse due to the practice of
child marriage.
(5) Asura form of Marriage:

In the Asura form of marriage, the bride was given to the husband in payment of a
consideration called ‘sulka” or bride-price. When the bridegroom, having given its much
wealth as he can afford to the father or paternal kinsmen and to the damsel herself, takes her
voluntarily as his bride ‘ it is called the Asura Marriage.

The Ramayana mentions that a fabulous amount of bride price was given to the guardian of
Kaikeyi for her marriage with king Dasaratha. The Mahabharata also contains descriptions
regarding purchase of a maiden through the offer of a great amount of wealth as an act of
allurement for the kinsmen of the bride. Iravati Karve writes that Madri was obtained by King
Pandu by means of a lavish amount of money, paid to the king of Madra.
The Asura form of marriage was prevalent in ancient India when the bride had a value or she
was construed to be an article of merchandise. He who wished to procure her had to pay for
her. Thus this form of marriage is based on an agreement between two families as a
commercial transaction.

It was called the Asura form of marriage, as being the ceremony of the Asuras, or the
aboriginal non-Aryan tribes of India. But a marriage was not construed as ‘asura’ form of
marriage by the mere fact of the bridegroom giving the bride or her father a present as a token
of complement.

(6) Gandharva form of marriage:

The Gandharva form of marriage is the union of a man and a woman by mutual consent.
According to Manu “The voluntary connection of a maiden and a man is to be known as a
Gandharva union which arises from lust”. Thus “the reciprocal connection of a youth and a
damsel with mutual desire is the marriage denominated “Gandharva”, contractual for the
purpose of amorous embraces and proceeding from sensual inclination.” “

It is believed that this form of marriage is called ‘Gandtarva’ because of its wide practice by
the tribe called ‘Gandharva’ living on the slopes of the Himalayas. However, Manu and
Narada prescribed this form of marriage to all the caste groups. The Mahabharata contains
several instances of this Gandharva form of marriage. King ‘Dusyanta’ induced ‘Sakuntala’
to accept him in the Gandharva form of marriage.

Though the Gandharva form of marriage was prevalent in the ancient Hindu social system,
the frequency of solemnization of such marriage was very low on account of a couple of
reasons. First, the individual taste was not given any emphasis in the Hindu ideology and this
did not result in love and mutual consent. Moreover, love, emotion or mutual consent were
discouraged by the Hindu society. Secondly, in the ancient days, romantic attachment
between partners could not develop due to the rare possibility of physical proximity.
However, the ancient Hindu Juridical literature empowered a maiden to select a husband of
her own caste, provided that she was not given in marriage by her father or guardians within
three months or three years of the attainment of puberty.

A minor girl is incompetent to contract this ‘Gandharava’ form of marriage as she is

incapable of giving her consent. This form of marriage indicates that the parties must be
adults so that they will be capable of sexual enjoyment. This form of marriage was prevalent
among the Rajbanshis and in Manipur.

(7) Rakshasa form of marriage:

In simple terms the ‘Rakshasa’ form of marriage may be described as marriage by capture,
resembling the right of a victor to the person of the captive in war. Manu holds, “The seizure
of a maiden by force from her house while she weeps and calls for assistance, after her
kinsmen and friends have been slain in battle or wounded, and their houses broken open, is
the marriage styled Rakshasa”

Traditionally, this form was allowed to the Kshatriyas or military classes. It is chiefly found
either as an incident of war or as a method of procuring a wife when it is difficult or
inconvenient to get one in the ordinary manner.

(8) ‘Paishacha’ form of marriage:

It is the worst form of marriage among the Hindus. When the lover secretly embraces the
damsel, either sleeping of flushed with strong liquor, or disordered in her intellect, that sinful
marriage, called paishacha is the eighth and the lowest form. This form of marriage was the
most abominable and reprehensible, originating from a sort of rape committed by man upon a
damsel either when asleep or when made drunk by administering intoxicating drug. P.V.
Kane thinks that this marriage is called paishacha because in it there is action like that of
pisachas (goblins) that are supposed to act stealthily at night. Vatsyayan’s ‘Kamasutra’ places
the paisacha form of marriage as the seventh, before the Rakshasa and thus considers it better
than the Rakshasa form of marriage. According to Sir G.D. Banerjee the paishacha form of
marriage has been enumerated as a form of marriage only out of regard for the honour of the
unfortunate damsel.

Out of the eight forms of Hindu marriage, the first four, i.e. ‘Brahma’, ‘Daiva’, ‘Arsha’ and
‘Prajapatya’ were the approved forms of marriage and the last four, such as, ‘Asura’,
‘Gandharva’, ‘Rakshasa’ and ‘Paisacha’ were unapproved forms of marriage. In the first four
forms of marriage, the dominion of the father or guardian over the maiden is fully recognised.
The dominion of the father is completely undermined in the ‘Gandharva’, ‘Paishacha’ and
‘Rakshasa’ forms of marriage.

In the present Indian scenario, considering from the socio-legal point of view, three forms of
Hindu marriage appear to be existent. These are the Brahma, Asura and Gandharva forms of
marriage. The higher caste Hindus solemnize the Brahma form of marriage in the most
cultured form. The Asura form of marriage is commonly practised among the lower castes
and the Gandharva marriage is gaining momentum among the modern youths in the form of
love marriage.

Anuloma and Pratiloma Marriage

Anuloma and pratiloma marriage, as a rule of marriage is an inseparable part of the Hindu
caste system. The rule of anuloma and pratiloma marriages has greater significance for the
caste structure of Hindu society than for the marriage pattern of the Hindus.
Anuloma Marriage - Hypergamy form of marriage.

During the Vedic Age inter-class marriages used to take place in the form of Anuloma
marriage. Anuloma marriage is a social practice according to which a boy from upper varna /
caste / class can marry a girl from lower varna / caste / class.

Anuloma marriage was recommended by the ancient Hindu law writers for the first three
varnas or classes of the then society namely,

1. the Brahmins;
2. the Kshatriyas; and
3. the Vaishyas.

According to the Dharmashastrakaras, a girl should marry in her own varna, failing which she
may marry one in any of the higher varna. In the Rig Vedic period, the priests who performed
Yajnas [sacrifices] arranged by the kings, married Kshatriya girls offered to them as
“dakshina” or fees for their services.

Pratiloma - Hypogamy form of Marriage.

Pratiloma  is a type of marital practice in which a man of lower class / caste / varna marries a
girl of higher class / caste / varna. Such cases of Shudra-Aryan connections are also recorded
in the Vedic texts.

Some Dharmashastrakaras had even permitted the practice of “pratiloma” while many
condemned it. By the time of Dharmashastras, greater disapproval was shown towards this
practice. Even here, the marriage of Brahmin / Kshatriya / Vaishya girl with Shudra boy was
more despised with, than the marriage of a Brahmin girl with a Kshatriya / Vaishya boy.

Of the two types of marital practices, “anuloma” and “pratiloma”, anuloma marriage was
considered preferable to pratiloma marriage. Pratiloma marriage was very much discouraged
and even condemned. Marriage of a girl of higher caste with a boy of lower caste faced more
resistance in the society. Shastrakara Manu was of the opinion that the progeny of the most
hated pratiloma would become “chandalas” or “untouchables.” In the Chandukya Upanishad
and also in the “Buddhist Jatakas” we find vast references to Chandalas. In fact, the origin of
the practice of untouchability is to be seen in the practice of pratiloma marriage.

Muslim Law
The legal contract between a bride and bridegroom as part of an Islamic marriage is known as
nikah. Nikah is an Arabis term used for marriage. It means ‘contract’. The Quran refers to
marriage as a ‘strong agreement’
Essential Condition of Nikah

Nikah is based on few conditions. When these conditions are fulfilled, then a man and a
woman are proclaimed as husband and wife and can live together and carry on their marital
duties. These are:
Essentials of Marriage

The essentials of a valid marriage are as follows:-

(i) There should be a proposal made by or on behalf of one of the parties to the marriage, and
an acceptance of the proposal by or on behalf of the other party. A Muslim marriage requires
proposal 'Ijab' from one party and acceptance 'Qubul' from the other side. This must be done
in one sitting.
(ii) The proposal and acceptance must both be expressed at once meeting. The acceptance
must be corresponding to what is being offered. The marriage must be effectively immediate.
If the Wali says I will marry her to you after two months, there is no marriage.
(iii) The parties must be competent. The two parties must be legally competent; i.e. they must
be sane and adult.
(iv) There must be two male or one male & two female witnesses, who must be sane and
adult Mahomedan present & hearing during the marriage proposal and acceptance. (Not
needed in Shia Law)
(v) Neither writing nor any religious ceremony is needed.
Types of marriages
Valid Marriage (Sahih)

Under the Muslim law, a valid marriage is that which has been constituted in accordance with
the essential conditioned prescribed earlier. It confers upon the wife; the right of dower,
maintenance and residence, imposes on her obligation to be faithful and obedient to her
husband, admit sexual intercourse with him and observe Iddat.
Irregular Marriage (Fasid)

Those marriages which are outcome of failures on part of parties in non fulfillment of
prerequisites but then also are marriages; to be terminated by one of the party is termed to be
Irregular marriages. They are outcome of-
(a) A marriage without witness (Not under Shia Law)
(b) Marriage with fifth wife.
(c) Marriage with a women undergoing Iddat.
(d) Marriage with a fire-worshipper.
(e) Marriage outcome of bar of unlawful conjunction.
An irregular marriage has no legal effect before consummation but when consummated give
rise to several rights & obligations.
Void Marriage (Batil)

A marriage which is unlawful from it's beginning. It does not create any civil rights or
obligations between the parties. The offspring of a void marriage is illegitimate. They are
outcome of-
(a) Marriage through forced consent.
(b) Plurality of husband.
(c) Marriage prohibited on the ground of consanguinity.
(d) Marriage prohibited on the ground of affinity.
(e) Marriage prohibited on the ground of fosterage

Permanent or temporary
Another classification of forms of marriage can be based on its nature: temporary or
permanent. Generally marrying no intention to dissolve the marriage can be termed as
permanent marriage. Though the term permanent marriage is not of much relevance now after
availability of dissolution of marriage under modern Hindu law.
In Muslim law under Shia sect of Ithana Asharis school there is a concept of muta marriage
which is temporary in form. A muslim male can perform any number of muta marriages with
a Christian, Jew or fire worshipper (like Parsis) but not an idol worshipper (like Hindus).
However, muslim female can only marry a muslim male. In case of female minor consent of
wali (guardian) required or else the marriage will be void. Stipulations or conditions should
be made at time of marriage not before or after the marriage.
Valid muta marriage condition:
1. Dower specified otherwise void
2. Duration should be specified – hours, days, weeks, months, years or else void
Incidents of muta marriage:
1. No right of mutual inheritance
2. No maintenance if not stipulated
3. If there is no consummation wife is entitled to half dower; if consummation done then
full dower and if wife leaves before completion of term dower shall be proportionate.
4. If marriage is consummated the wife needs to undergo idda of 2 courses after the
completion of term but if there is no consummation no idda is required.
5. Husband has right of izl or right of procreation
6. Children born out the marriage are legitimate and eligible to inherit from both the
parents.
7. Marriage automatically ends on expiry of term but extension possible
8. If either party dies the marriage comes to an end
9. No right of talak but termination by mutual consent is possible
Hindu Marriage Act, 1955
Conditions of valid marriage (refer to Section 5)
1. Neither party’s spouse living
2. Not incapable of valid consent due to unsoundness
3. Capable of giving valid consent but suffering from mental disorder rendering unfit for
marriage and procreation
4. Recurrent attack of insanity
5. Groom 21 years and bride 18 years completed
6. Not within prohibited degrees of relationship except custom and usage
7. Not sapindas of each other except custom and usage (not in Special Marriage Act)
Ceremonies of Hindu marriage (refer to Section 7)
1. May be solemnized as per customary right and ceremonies of either parties
2. Where rights include saptapadi, the marriage shall be complete and binding after
completion of seventh step
Also refer to Section 3(c), 3(d), 3(f) and 3(g) for full blood, half blood, uterine blood, sapinda
and degrees of prohibited relationship.
Under Hindu law ceremonies of marriage can be classified as:
1. Sashtric rites as mentioned in Grihya Sutra (translated by Herman Oldenberg in the
1880s and 1890s) kanyadan, panigrahan, vivaha homam, saptapadi are considered as
various rites during the marriage and lead to consummation of marriage. Though in
Gandharva form kanyadan was not essential, in Sudras vivaha homam was not
necessary and in some cases even phera (round across fire) varied from 7, 5 or 3.

2. Customary ceremonies varied from castes, community and tribes. However such
ceremonies should conform with requirement of valid custom. In such marriages there
may not be performance of sashtric ceremonies. Ceremonies may be non religious,
simple and minimal. For example in Santhals smearing of vermilion on forehead is
enough. For Nair in south India tying of vadu thali aroud neck and Jats of Punjab in
chadar andazi form no ceremony is required. Jats and lower castes of Punjab and
Haryana in Karewa form of marriage mere cohabitation is enough. Performance of
ceremonies is important for validity of marriage. However correct ceremony is
required. Jain marrying Buddhist in anand karaj (Sikh ceremony) form is void.

In case of Muslim law there should be a proposal and acceptance in presence of 2 witnesses
either two males adults or one male adult and two female adults. However this requirement of
witness is essential for the Sunnis and not the Shias. Marriage is generally solemnized by the
Kazi who are conversant with law. The terms of marriage should be mentioned in the Kabin
namah or the deed of marriage. Terms shall include amount of dower, mode of payment or
custody of children.
Under Parsi law ashirbad is considered as an essential ceremony in presence of 2 Parsi
witnesses. But registration of the marriage is essential where the officiating priest shall certify
in a prescribed form (Schedule II of Parsi Marriage and Divorce Act). The priest sends
certificate to the Registrar of Marriages but failure to register does not affect the validity of
marriage.

Under Christian law there are authorities for solemnizing the marriage. They are Minister of
Religion, Marriage Registrar and persons licensed to solemnize marriage.

Special Marriage Act

Marriage under Special Marriage Act is considered as a civil marriage. The procedure of
marriage is has been laid down under the Act where notice is required to be given by the
parties (refer to Section 5). There is also a window for raising objections by anyone if it
violates the conditions stipulated under Section 4 of the Act (refer to Section 7, 8, 9 and 10).
The marriage can be solemnized in any form which the parties wish to adopt in the office of
the Marriage Officer or any other place in the presence of Marriage Officer and 3 witnesses
(refer to Section 12). However there should be a clear understanding that both the parties
accept each other as husband and wife.
Read Civil Marriage Law: Nature and Scope available at
http://14.139.60.114:8080/jspui/bitstream/123456789/667/6/Civil%20Marriage%20Law_Nature
%20and%20Scope.pdf