• Atrijo Banerjee

Essential Rituals Needed for a Valid Hindu Marriage

Updated: Mar 24

Introduction

Marriage occupies an important role in the social life of Hindus. It is one of the oldest institutions of the Hindu society. It lays down the basic unit of a family.

Hindus believe that a person is born on the earth with certain duties called purusarthas like Dharma, Artha, Kama and Moksha. To fulfil these goals Hindus are believed to go through certain stages in life. Reproduction is considered to be one such sacred duty of a Hindu in order to attain moksha. Reproduction is possible through Kama or sexual intercourse. For that marriage or sacred union between two humans is necessary. Thus, marriage is considered to be compulsory among Hindus[1]. It is treated as a sacred union among a male and a female. According to Hindu traditions dharma performed by a man without his wife does not yield any fruitful results. Thus, marriage is a religious injunction or a “vidhi” among Hindus[2]. According to R.N. Sharma Hindu marriage is a sacrament in which a man and a woman are bound in an eternal relationship for spiritual, physical and social purposes like reproduction, pleasure and dharma. Hindus believe in the doctrine of rebirth. It is believed that a husband and wife remain united in successive rebirths. The Supreme Court of India recognised the sacramental nature of Hindu marriages in judgements like Tikait v. Basant [3] Also, a Hindu marriage is deemed to become a religious sacrament after certain rituals like the “saptapadi” “panigrahana” and “havan” are properly complete by religious priests. If these rites are not performed properly the validity of the marriage is questioned. [4] The customs and rituals for forming a binding marriage differ among various Hindu communities. In this project I will try to examine the various rituals prevalent in this regard and ascertain the position of law.


Hindu Marriage Act, 1955.

The Hindu marriage act was introduced by the government of India in 1955 with the intention of reforming and modernizing the Hindu law. It abrogated several regressive customs of the Hindu law and provided gender equality. But it gave recognition to the sacramental nature of Hindu marriage. A Hindu marriage was held to be valid only if certain customs were followed. According to section 2 of the act, Hindu marriage law is applicable to Hindus, Jains, Sikhs and Buddhists and anyone else who is not a Muslim, Parsi, Christian or Jew by faith. According to section 7 of the act Hindu marriage is complete when the rituals prevalent in the communities of either party to the marriage are performed properly. Now in this section the shastric ritual of “saptapadi” is specially mentioned. It is said that when such rituals include saptapadi the marriage is completed when the seventh step is taken. Thus, from the Hindu marriage act it can be deduced that to perform a valid Hindu marriage either the shastric ceremonies have to be performed or the customary rites of the community in which the parties belong have to be performed [5]. This has given rise to a lot of confusions as often it is difficult to ascertain whether a practice within a community can be held to be a customary practice or not.


Types of Marriages Under Ancient Hindu Laws

According to the ancient Hindu scriptures like Gṛhyasūtras there are eight types of marriages. They are Brahma, Daiva, Arsha, Prajapatya, Gandhrva, Raksha, Asura, Pishacha . Among these different forms of marriage, Brahma, Daiva, Arsha, Prajapatyavare considered to be approved forms of marriage according to Hindu Law. Gandhrva, Raksha, Asura, Pishacha marriges are considered to be unusual and hence unapproved. Among them Brahma marriage is the most commonly seen version of marriage [6]. In the case S. Authikesavulu Chetty vs S. Ramanujam Chetty and Anr [7]. theSupreme Court of India held that unless there is solid evidence to the contrary it will always be assumed that the marriage between two parties was done in approved form of marriage. Usually in approved forms of marriage ceremonies like Saptapadi, Kanyadan were performed, while they were not in un approved marriage. Some of the unapproved marriages like Pishacha, Raksha prescribe immoral acts and would be punishable under the Indian Penal Code if performed in the modern society [8].


Customary Rites and Ceremonies in a valid Hindu marriage

The Hindu scriptures called Grihyasytras describe the rituals of marriage. Along with prescribing elaborate rituals for marriage it also states that marriages may be solemnized according to the customs of different villages and countries[9]. According to the Hindu Marriage act and its subsequent interpretations by the Supreme Court of India saptapadi and the havan by invoking the sacred fire have been considered essential ceremonies for a valid Hindu marriage. The courts have held that a Hindu marriage cannot be said to be solemnized unless the required ceremonies are performed in the proper way even if mangalsutra and sindoor are worn [10]. In the case Surjet Kaur vs Garja Singh [11] the court held that just performing certain ceremonies with the intention of getting married won’t make two people validly married in the eye of the law unless the specific ceremonies needed for the solemnisation of the marriage are performed. Saptapadi is considered to be one of the most important rituals for a valid marriage. According to the Manu smriti the marriage becomes complete and irrevocable after the two parties take the seven steps round the fire hand in hand [12]. However, a marriage with a proper sacred fire and saptapadi will be valid even if some other rituals are omitted. For example, in Ramlal Agarwal vs Shanta Devi [13] the plaintiff was the wife of the defendant. He lived separately from his wife and daughter. His wife and daughter did not want to perform the ritual of Kanyadan in the daughter’s marriage because of their differences with the plaintiff. The court held that though kanyadan was an essential ritual for a Brahma marriage, the validity of the marriage did not depend on it. But the exact procedure for performing a valid saptapadi ritual has not been specified by the Hindu Marriage Act or ancient scriptures. This question came up before the Bombay High Court in Mr. Samit Subhash Agarwal vs Ms. Kamlesh Laltaprasad Gupta [14]. Here the petitioner and respondent had got hurriedly married in a Hanuman temple. They had taken seven steps around a bunch of incense sticks. The petitioner later alleged he was forced to perform the marriage and that the ritual of saptapadi was not performed properly. The family court decided against the petitioner and he appealed. The Bombay High court gave importance to the evidence of the priest to decide saptapadi was performed or not. The appellant contended that he had not taken seven steps around a sacred fire. The court held from the evidence of the priest it was ascertained that they had taken the seven steps around a bunch of burning incense sticks. All required Vedic chants were recited. There is no definition of sacred fire in Hindu Marriage Act. The fire in the burning incense sticks can be considered to be sacred fire. So, it was held a valid ritual of saptapadi was performed by the parties and the marriage was binding. Form this judgement it can be deduced that if seven steps are taken around binding fire from any source in presence of a priest by reciting the proper Vedic chants the marriage would be valid.

The Hindu community in India is not homogenous in nature. People in different parts of the country follow different traditions. But in India there is no uniform tradition. Often different communities have their own traditions. For some of them Saptapadi is not essential. Even there are some communities which do not perform it altogether. The courts have often given recognition to the diverse traditions prevalent across the country. The courts in India give due recognition to the local customs and traditions if they can be established before them. For example, the Andhra High Court had to deal with this issue in the case Re: Dolgonti Raghava Reddy and vs Unknown [15]. Here a couple from the Reddy community was accused of committing bigamy. But they denied the fact that they had been married according to the proper rituals. It was also contended saptapadi required for a valid Hindu marriage was not performed. The court went into historical records to find out the customary wedding rituals among the Reddy community. By examining the texts, the court determined that the tying of Mangal sutra, the throwing of rice at each other and putting the toe ring on the bride are the essential rituals for the marriage. The performing of saptapadi was not an essential ritual in the community. So, the court reasoned that the parties had performed all the rituals for a valid marriage. Similarly, customs from other parts of the country have also been upheld by the courts. The court upheld a form of widow remarriage which involves exchanging a widow for a rupee seen in Gwalior in the case Mahadeo Sheoram v. Chandrabhaga Bai [16]. In traditional Assamese marriage exchange of knives and rings over a heap of rice as a part of the essential wedding ritual to make the marriage binding. The Gauhati High Court in Boloram Baruati vs Mt. Surjya Baruati [17] observed that this ritual is mentioned in History of Assam by Edward Gait. It is an ancient tradition of the Ahoms before Hinduism became popular among them. So, the court held that if the matrimonial ceremonies required for this form of marriage was properly performed the marriage would be considered to be valid. In the case Malakayya and Anr. vs Avait Bhommayya [18] the Andhra High Court dealt with the validity of Udiki form of marriage. This is a form of marriage for widowed and divorced ladies seen among some castes in the Telengana region. Here no saptapadi or sacred fire is required. The court found reference to Udiki marriage in “Castes and Tribes of H.E. H, The Nizam's Dominous” by Nawab Sirajul Hussian. Also, a witness confirmed to have seen it before. So, this was held to be a valid form of marriage. The issue of Udiki marriage also came up before the Karnataka High Court in Sri. Ramesh S/O Narasimharao vs Smt. Mangala W/O Raghavendra [19]. Here the first appellant judge had disbelieved the occurrence of Udiki marriage between the parties as it was not seen among Brahmins, the community to which they belonged. The High Court did not decide on the matter as there was presumption of valid marriage for the purpose of the case under Section 114 of the Evidence Act, 1872. Also, the Inuat form of marriage is valid among Santhals which involves putting vermilion on the forehead of the bride. In Gujrati community four steps are taken for saptapadi instead of seven. These customs are also held to be valid as they have been continuing for a long period of time and are well established in the respective communities [20].

But courts have also been reluctant to accept new ceremonies when the parties could not give solid proof that the ceremony had been a part of custom for a long time. For example, in Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra [21] the appellant had been convicted of bigamy. He appealed to the Supreme Court of India. He alleged that the second marriage done by him was not valid in the eye of law as he had not performed havan and saptapadi. The prosecution contended that his second marriage was in Gandharva form. It was further contended that Gandharva marriage was seen among Maharashtrians and the accused and his second wife had performed all the rituals required for it. It was argued that the Gandharva marriage was made binding by the touching of foreheads by the bridegroom and the bride. But the witnesses produced by the prosecution failed to establish that customs like havan and saptapadi had been abolished by the community. They gave specific examples of marriages in which it was not performed. But the court defined the word custom as a practise prevalent in a family or tribe or community uninterruptedly for a long time so that it can be considered to be a law. So just the fact that the ceremonies were not performed in a few marriages is not enough to prove that they had been abolished. Hence the court held that the marriage between the parties was not solemnised according to the rules of the community and hence no bigamy was committed.

The Hindu religion is still evolving. Often newer sects emerge. These sects have their own rituals and customs. Some of these sects have modified the ceremonies needed to constitute a valid Hindu marriage. Courts have often had to deal with cases where one of the parties to the marriage questions the validity of the marriage in light of the facts that it was solemnised by the rules of some new sect not by the traditional rituals needed under Hindu law. The government has also sometimes passed special laws to recognise the validity of the marriages performed by people belonging to these special sects. For example, the erstwhile British government passed the Arya Marriage Validation Act, 1937 to recognise the wedding rituals of the members of the Arya Samaj, a Hindu sect. A similar question about the validity of the marriage performed by a new cult came up before the Madras High Court in Deivanai Achi and Anr. vs R.M. Al. Ct. Chidambaram Chettiar [22]. Here the respondent and her husband had got married under the rituals of a cult called Anti Purohit Association. This cult had done away with the requirement of priests and the marriage was presided by a friend of the parties. Also, shastric rituals like saptapadi were omitted. The Madras High Court in this case refused to uphold the validity of the marriage. The court held that no one could modify the personal laws according to their wishes without any statutory authority. Also, the rituals of the members of the sect did not fulfil the requirements of a valid custom practised through generations. But the court held the members of the sect could approach the legislature to have their practises recognised. This verdict can be contrasted with the verdict of the Bombay High Court in Baby vs Jayant Mahadeo Jagtap And Ors.[23] In this case questions were raised about the validity of neo Buddhist marriages. Buddhist marriages are also regulated by the Hindu Marriage act as discussed earlier. Neo Buddhists are the followers of Babasaheb Ambedkar who converted to Buddhism inspired by him[24]. The rituals followed by them were not similar to that of traditional Buddhists and were about twenty-five years old. The court observed that these rituals were uniformly followed by all Ambedkarite Buddhists without any discontinuance since their adoption and thousands of marriages were done following them. The court held that since the entire community had adopted these rituals and countless marriages were solemnized through them invalidating the marriage would have grave social consequences. The court held that the marriage was valid and rituals followed were sufficient for solemnising a marriage.


Conclusion

Thus, it can be seen that even though saptapadi and Havan are considered to be essential rituals for a valid marriage, marriages done without them have also been upheld by the courts. In cases like Re: Dolgonti Raghava Reddy and vs Unknown, Boloram Baruati vs Mt. Surjya Baruati and Malakayya and Anr. vs Avait Bhommayya, the courts have refered to historical records to determine the longevity and acceptability of a custom. But in Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra it refused to accept that Gandhrva marriage without saptapadi as valid because the parties could not give proof that it had been practised for generations and generally accepted by a significant number of the members of the community. Deivanai Achi and Anr. vs R.M. Al. Ct. Chidambaram Chettiar the Madras High Court refused to accept that any organisation could change personal laws at will and refused to accept the marriage valid when the rituals had not been followed for generations but were newly devised. But the Bombay High Court accepted newly devised marriage rituals for Ambedkarite Buddhists in Baby vs Jayant Mahadeo Jagtap and Ors. The difference in the two cases was that the use of the rituals was more widespread in the second. All members of the community observed them during wedding. So, the court reasoned the rituals to be valid. Hence to prove a ritual is valid to important factors need to be taken into account. It has to be established that the ritual was practised for a long period of time over generations and is accepted by the community. For a newer ritual like that of the Ambedkarite Buddhists it needs to be shown that the practise was adopted by the entire community and followed consistently such that a significant number of marriages were solemnized through it.

This system has caused several problems. Sometimes the existence of the marriage may be denied using the fact that the proper rituals were not performed even though the parties clearly intended to enter into a married relationship. This may put one of the parties to the marriage in disadvantage and also help people evade punishment for offences like bigamy. In this manner in Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra & Anr the appellant escaped punishment for his crime. In Deivanai Achi and Anr. vs R.M. Al. Ct. Chidambaram Chettiar the woman faced problem during inheritance and her rights as the spouse were undermined even though she acted as the wife of her husband for several years. Thus, to avoid these types of situations the courts may also take into account the intention of the parties and the conduct of them and their family members while determining the validity of the marriages. Also making registration of marriages mandatory in all states of the country is another option in the way forward.




[1] Nitisha, Hindu Marriage as a Religious Sacrament, available at https://www.yourarticlelibrary.com/marriage/hindu-marriage-as-a-religious-sacrament/47463 (Last Visited 9th June 2021). [2] Puja Mondal, Hindu Marriage a Sacrament, available at https://www.yourarticlelibrary.com/marriage/essay-on-hindu-marriage-a-sacrament/4373 (Last Visited 9th May 2021). [3] Tikait v. Basant, ILR 28 Cal. 758. [4] Indian Law news, Hindu marriage: A sacrament or contract or both, available at https://indianlawnews.wordpress.com/2016/04/07/hindu-marriage-a-sacrament-or-contract-or-both/ (Last Visited 9th June 2021). [5] Paras Diwan, Ceremonial Validity of Hindu Marriages : Need for Reform, (1977) 2 SCC (Jour) 22. [6] Diganth Raj Sehgal, Forms of Marriage in Hindu Religion, available at https://blog.ipleaders.in/forms-marriage-hindu-religion/ (Last Visited 9th June 2021). [7]S. Authikesavulu Chetty v. S. Ramanujam Chetty and Anr, (1909) 3 Ind Cas 541. [8]Diganth Raj Sehgal, Forms of Marriage in Hindu Religion, available at https://blog.ipleaders.in/forms-marriage-hindu-religion/ (Last Visited 9th June 2021). [9]Puneet Dhupparh, What Ceremonies Are Important For A Valid Hindu Marriage, available at https://lawjustify.com/index.php/2020/08/27/what-ceremonies-are-important-for-a-valid-hindu-marriage/ (Last Visited 9th June 2021). [10] Shanti Dev Barma v. Kanchan Prawa, AIR 1991 SC 816. [11] Surjet Kaur v. Garja Singh ,1994 SCC (1) 407. [12]Paras Diwan, Ceremonial Validity of Hindu Marriages : Need for Reform, (1977) 2 SCC (Jour) 22. [13] Ramlal Agarwal v. Shanta Devi, 1999 (3) ALD 19. [14] Mr. Samit Subhash Agarwal v. Ms. Kamlesh Laltaprasad Gupta, Civil Application no 325 Of 2012. [15] Re: Dolgonti Raghava Reddy and vs Unknown, AIR 1968 AP 117. [16] Mahadeo Sheoram v. Chandrabhaga Bai, AIR 1946 Nag. 232. [17] Boloram Baruati v. Mt. Surjya Baruati, 1969 CriLJ 858. [18] Malakayya and Anr. v. Avait Bhommayya, AIR 1971 AP 270 [19] Sri. Ramesh S/O Narasimharao v. Smt. Mangala W/O Raghavendra, RSA No.1092 Of 2004 (RES). [20]Shailja Rawal, Essential Ceremonies in Hindu Marriage: A Sanskara or a Tool in the Hands of Judiciary to Thwart Gender Equality, 3(4) International Journal of Law Management & Humanities, 1308 (2020), 1311. [21]Bhaurao Shankar Lokhande & Anr v. State Of Maharashtra, 1965 SCR (2) 837. [22] Deivanai Achi and Anr. v. R.M. Al. Ct. Chidambaram Chettiar, AIR 1954 Mad 657. [23] Baby v. Jayant Mahadeo Jagtap And Ors, AIR 1981 Bom 283. [24] Encyclopedia.com, Neo-Buddhist, available at https://www.encyclopedia.com/humanities/encyclopedias-almanacs-transcripts-and-maps/neo-buddhist (Last Visited 8th June 2021).

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