• brillopedia

HINDU MARRIAGE IS A CONTRACT OR SACRAMENT

Updated: Dec 23, 2021

Author: Arindam Pushkar, II Year of LL.B from Thakur Ramnarayan College of Law, Mumbai.


INTRODUCTION

India is the only country that adheres to religions in the context that Hindu religion has its own culture, conventions, cultures, and laws. Marriage is considered a sacrament with solemn pledge under the Hindu Marriage Act of 1955, and it is not a contract that is only entered by the execution of a marriage. It is the mechanism by which our society will be carried forward. Everyone in society should understand what marriage seems to be. There is some debate in Society about whether marriage is a sacramental union or a contract. Marriage is defined as the establishment of a connection between a husband and a wife. Marriage, according to Hindu law, is a sacred bond and the last of 10 sacraments that can never be severed. It is also a bond that is formed from birth to birth. Even death, according to smritikars, cannot break this bond.



Similarly, there are 16 Samskaras, the most important of which is marriage (Vivah), which consists of seven steps and vows taken in front of a fire Sapta Padi. It's often regarded as a holy union, in addition to being sacred. The primary goal of marriage is to allow a woman and a man to fulfill their religious obligations. In addition to this, they must have progeny. A woman is considered half of her husband and so completes him, according to ancient literature. A man is considered incomplete without a woman. Is our Indian society prepared for this trend in light of the changing instances? Or does it require our conscious attention in way to sustain our society from circumstances? As a result, the purpose of this article was primarily to discuss both of these and try to reaching a conclusion.


WHY IS HINDU MARRIAGE A SACRAMENT?

A sacrament is a religious ceremony that is spiritual. Marriages between Hindus are recognized divine. There's no need for the girl's assent in ancient times. Where the fathers had to take decision about the boy without seeking her advice or consent. It is a religious bond between a man and a woman, but it is not a legally binding contract. It is also believed that Hindus have specific life missions, which are expressed by the 'purusharthas,' which include Dharma, Artha, Kama, and Moksha.


Marriage in Hinduism is regarded a religious sacrament since it is only valid when ritual and ceremonies are conducted.

The sacramental aspect of marriage has three elements.

  1. It is an eternal connection that will be valid for all future lives.

  2. It is regarded as a permanent connection since once tied, it cannot be dissolved.

  3. Moreover, it is a sacred union in which religious ceremonies are required.


There is no requirement for either party's consent since that Hindu marriage is deemed sacred. Thus, the marriage is regarded lawful even if the person is of unsound mind or a minor.


SECTION 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 the marriage, neither party—

a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

b) 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

c) has been subject to recurrent attacks of insanity


III. which deals with the age of the parties specifically mentions that bride groom should be 21 years of age and bride should be 18 years of age , this are also the requisite of a contract.;


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.


SECTION 7 OF HINDU MARRIAGE ACT PROVIDES

Ceremonies for a Hindu Marriage

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken


MARRIAGE AS A CONTRACT

The modern concept of marriage as a contract arose as a result of the industrial revolution and its lofty ideals of liberty and equality. The most significant contribution of the industrial revolution was the emergence of the concept that all human and social relations must be founded on the free violation of individuals. If human and social relations do not emerge from status and are based on the free violation of individuals. If human and social relationships do not emerge from status and are relationships that man has known, then marriage, too must be founded on the free violation of individuals. As a result, marriage came to be regarded as a legal contract.

Section 5 clause (ii) and (iii) of Hindu marriage Act content the pertinent provisions to deter mine Hindu marriage act as a contract.


CONCLUSION

According to Delhi High Court Marriage under the Hindu law is “sacrament” and “not a contract” which can be entered into by executing a deed.

Recently the Karnataka high court has observed that the Muslim marriage is a “contract with many shades of meaning, not a sacrament unlike a Hindu marriage” adding, that “such a marriage dissolved by divorce per se does not annihilate all the duties and obligations of parties by lock, stock and barrel”.

As a result, in the greater part of Hindu marriages, a religious ceremony is observed. We can conclude that marriage contains contractual elements, but it is not solely contractual. Furthermore, it is recognized as a sacrament under the Hindu Marriage Act. As Hindu marriage is a holy and eternal union of two bodies, it is more of a sacrament.


REFERENCE