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N.K.Assumi (Advocate)     04 January 2010

Hindu Marriage a pure Contract?

Hindu Marriage under the Hindu Marriage Act is a pure Contract or a Sacrament?



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 18 Replies

J.D.Sharma (lawyer)     04 January 2010

According to the tenets of Hinduism, marriage is a sacred relationship, a sacrament, and a divine covenant meant for procreation and the continuation of family lineage. In the traditional Hindu system of marriage, there is no role for the state as marriage remained a private affair within the social realm. Within this traditional framework reference, marriage is undoubtedly the most important transitional point in a Hindu’s life and the most important of all the Hindu samskaras, or life-cycle rituals.

Historical Perspective - Manu, Ardhangini, marriage is an essential Sanskara, man is incomplete without wife. Once performed, it cannot be dissolved.
Modern Perspective - Civil contract. Can be dissolved. Cannot force to live together. Equality of s*xes. Can't be done without consent.
 
Why is it Sacramental?
As per Contract Act 1872, contract with a minor is void ab initio. Even though section 5(2) says that valid consent is required and section 5(3) says that the boy should be above 21 yrs and the girl should be above 18 yrs, marriage done in contravention of these provisions is not void. Marriage with a minor is not even void able only on that ground. In one leadingcase, it was held that the person married may be a minor or even of unsound mind, yet if the marriage rite is duly solemnized, it is a valid marriage. 
Section 7 of HMA1955 requires that religious ceremonies are a must to complete a marriage. A marriage done without "saptapadi" is void.
 
Even now bachelors are not eligible to perform several religious ceremonies. Only married couples are allowed. Thus, it still retains its sacramental property. No-fault divorce, as available in western countries, is not available in HMA 1955. Thus, breaking up of a marriage is very difficult. 
 
Why is it Contractual?
The fact that consent of the boy and the girl is required means that it is contractual. If the consent is obtained by force or fraud, the marriage is voidable.
Marriage is no more permanent since divorce is available by mutual consent.
Marriage is no more holy because a marriage can be done without all the ceremonies such as vivah homam. Only saptapadi is required.
 
 

Conclusion: It is has a unique blend of sacramental and contractual characteristics

 

Parveen Kr. Aggarwal (Advocate)     04 January 2010

A marriage under the Hindu Marriage Act is not a contract but a sacrament.

In India, law of contracts is contained in the Contract Act, 1872.

Section 2(h) of the Act defines a contract as: "An agreement enforceable by law is a contract".

Section 10 of the Act provides: For becoming a lawful contract, it is mandatory all the conditions mentioned in section 10 are fulfilled. In a Hindu Marriage, the conditions of section 10 are not at all fulfilled. No consideration passes in case of a Hindu Marriage.

"All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void."

 

 Otherwise also, a Hindu Marriage has always been considered as a sacrament.

 As such, a Hindu Marriage is only a sacrament and not a contract.

Parveen Kr. Aggarwal (Advocate)     04 January 2010

A marriage under the Hindu Marriage Act is not a contract but a sacrament.

In India, law of contracts is contained in the Contract Act, 1872.

 

Section 2(h) of the Act defines a contract as: "An agreement enforceable by law is a contract".

Section 10 of the Act provides: 

"All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void."

For becoming a lawful contract, it is mandatory all the conditions mentioned in section 10 are fulfilled. In a Hindu Marriage, the conditions of section 10 are not at all fulfilled. No consideration passes in case of a Hindu Marriage.

 Otherwise also, a Hindu Marriage has always been considered as a sacrament.

 

 As such, a Hindu Marriage is only a sacrament and not a contract.

 

Kiran Kumar (Lawyer)     04 January 2010

its an academic question primarily.

 

but the way Hindu marriages are loosing sacramental character, this query needs an elaborate discussion.

 

espacially in metro cities the divorce rate is going high and nowadays Hindu marriages look like commercial transaction.

 

hope i ve conveyed what I intended to, lets c what Ld. members opine.

1 Like

Parveen Kr. Aggarwal (Advocate)     04 January 2010

It may be correct considering the current trend that Hindu Marriages may have been turned into commercial transactions but till date the Hindu Marriage Act contemplates a Hindu Marriage as a sacrament and does not lay down conditions as those of a contract.

DR.SANAT KUMAR DASH (Eye Specialist)     04 January 2010

 MARRIAGES   ARE   HELD   IN  THE  HEAVEN. IT  IS  NEVER  BE  A  CONTRACT.   THERE      ARE    BOYS    &    GIRLS    IN   EVERY     VILLAGE   &  TOWNS.   PARENTS   SEARCH     FOR    OTHER   CITIES  &   NOT    OF  HIS   OWN   TOWN.    NOBODY    KNOWS    ABOUT  HIS/HER   PARTNER.    SO   IT    IS    SACRAMENTAL.

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429)     04 January 2010

The question is " Wheather a  Hindu Marriage under the 'Hindu Marriage Act' is a pure Contract or a Sacrament?"  In the eye's of law it was treated as secrament, but after introducing/injecting the divorce procedure in hindu marriage act, the marriages took shape as a contratual form. now a days court treating it as a contract.

But my opinion is somehow diffrent. IT is neither secremental nor contractual but a memorundum of understanding. Because, hindu marriages lost its secremental status long before when hindu marriage acts introduced & it is not a contract also, it is a memorendum of understanding.  In a contract, it is prefixed that the which party will give what and what will get.. This is the base of a contract.. In a memorendum of understanding though give and take may fixed but it is not a rigid one and not enforciable by court.. Though the parties of a hindu marriage may go to court, but compulsion is not there. Think about - restitution of conjugal rights; Judicial seperation; mutal divorce; voidable and void marriages.

Though the nature of hindu marriages are nearer to the contractual form, but it is more in the form of memorendum of understanding, rather than a contract.

Not only Hindu marriages, or other religious and non religious mariages, all the mariages are basically a memorendum of understanding.

Suchitra. S (Advocate)     04 January 2010

Hindu marriage does not fulfil all the charecteristics of contract and so, it is not a contract. At the same time it is losing its sacramental value nowadays. So, I cnat agree it is purely sacramental either.  :)


(Guest)

Hi,

With the compulsary registeration of marraiges, mutual and free consent, evidences, etc., the recent marriages seem mostly a contract to me.  But as mentioned by others, it has a unique blend of both.

So, it is 75% a contract and 25% a sacramental, in my opinion.

Cheers!

 

 

 

N.K.Assumi (Advocate)     05 January 2010

I think Nagas ways of amrriage is much better than the Hindus. Ours is neither a christian nor customary but a harmonious blending of both. See its very simple. If a male and a female right after meeting in the streets falls in love and started living togther is also regarded as marriage, If the females gets pregnant and marries other male is also marriage, if it is solemnized in Church as per Christian rituals also is a marriage, a man can marry as much wife as ones wishes in some tribes like mine, and those are marriages. If the spouse wants to end the marriage that is also divorce and at times without divorce the spouse started living seperately with each other with their repsctive spouse and that is alo divorce and concept like RCJ is unknown to us. And ofcourse there is no time limitations like waiting period or Iddat etc. If the wife or the husband commits adultery it is the village Council that imposed fine and at times fine are imposed by way of pigs even before the customary trials.begins. I had an occassions to plead for the husband in one of such case.Ours is very simple and I think it is much better in comparison with HMA.

Anish goyal (Advocate)     05 January 2010

Enough is said on the point. But wanna add one thing that whether it is contractual or sacrament , the thing required to be debated is the alarming rates of broken marriages and divorces.

Parveen Kr. Aggarwal (Advocate)     05 January 2010

Assumi Sir,

Whether Nagas ways of marriage is a codified law?

If so, please spell out the name of the statute?

 

Daksh (Student)     06 January 2010

Hi All,

Thanks a tonne for such a thought provoking thread.  What Mr.N.K.Assumi wanted to highlight the two sub division within Hindu Marriage Act i.e. Mitakshara and Dayabhaga stream and prohibition within Sapinda relationship.  As such the peculiar system gets regulated through norms and is surviving day in and day out.  In so far question of blending is concerned the changing trends in the society and upbringing contributes a lot.

Best regards

Daksh

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429)     06 January 2010

Mr.Assumi,what you have said regarding naga marriage is correct. you compared a hindu marriage and naga marriage and tried to find the traditional naga marriage is superior- that is also right in my personal opinion. I sevved nagaland pulp and paper mill five and half years. i know your comments are almost perfect.

but one thing which escaped from your kind notice that , the tribals do not come under the attraction of the hindu marriage act. as they are out of the attraction of hindu marriage act as wll as sec 494 of the IPC therefore they can do so. tribals governed by their own laws, in this regard. It is due to the follow  of british and mughal reign, particularly from british reign .


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