By Shubhi Agrawal

Abstract

This paper explores the evolving socio-legal aspects of Hindu marriage in India. It examines the shift from a sacramental view to a blend of religious and secular contracts, the changing role of consent, and the recognition of live-in relationships. The paper underscores the need for the Hindu Marriage Act of 1955, to adapt to these changes to ensure clarity and fairness in Hindu marriage matters, as societal norms and customs continue to evolve.

Introduction

Marriages in India are regulated through various personal laws that govern different religions. So, for instance, Hindu marriages are governed by the provisions of the Hindu Marriage Act “HMA”, 1955. Over the years, modernisation has meant that the traditional outlook on marriage has changed significantly. It follows therefore that our marriage laws have also undergone numerous changes such as the abolition of Triple Talaq or the judicial recognition of live-in relationships. Considering the varied number of personal laws in India, the changes that have occurred are several. As such, the author has chosen to limit the subject matter of this paper to the changing socio-legal facets of Hindu Marriage Law.

The overarching aim of this paper would be to study the major socio-legal changes Hindu marriage has undergone and how such changes have or should be reflected in the provisions of the HMA, 1955. The author has first discussed how the nature of Hindu marriage has evolved in light of contemporary social and legal developments. These changes have been elucidated by discussing the evolution of Hindu marriage from a sacrament to a contract and also the changing role of consent in Hindu marriage. These developments have introduced a variety of changes in Hindu marriage. The author discusses mainly one such major change which is the presumption of live-in relationships as marriages.

Evolution of the Nature of Hindu Marriage: A Samskara Or A Contract?

Marriage traditionally has been viewed as a status that arises between a ‘man’ and a ‘woman’ on the completion of certain procedures either secular or religious or partly both. Once such a status is attained, it imposes certain rights, obligations and duties on both parties and this status can only be terminated in accordance with the law. 

The traditional Hindu marriage was viewed as a samskara or sacrament. This means that a Hindu marriage was considered to be a holy undertaking. It is complete only when certain necessary rituals are performed by the man and woman under the supervision of a priest. These sastric rituals not only bind the man and wife physically but also spiritually. It is said that their souls are bound forever after such a marriage. From here arose the idea that Hindu marriages are indissoluble. Hence, the ideas of divorce and widow remarriage were not accepted in Hindu society. 

However, Hindu law had no single source of law, society was governed by different schools of law and customs. No one school of law exercised supremacy. This amalgamation of laws and customs co-existed harmoniously. When the British came to India, they were befuddled by the strange mix of customs and laws that were seen in Hindu society. Initially, they made attempts to dispense justice in cases of Hindu law by employing the help of pandits who had knowledge of Sanskrit. However, since they did not have a grasp of the varying laws of different communities, courts often gave contradictory opinions. The British had already begun the process of codifying Hindu laws, in particular marriage laws with the introduction of Acts such as the Widow Remarriage Act, 1865 and the Restraint of Child Marriage Act, 1929. This was the start of the erosion of the sacramental status of Hindu marriage.

This was carried forward by our founding fathers, in particular, Ambedkar who sought to codify the personal laws of the Hindus. Though initially, a single law governing all the personal affairs of Hindus was envisaged, the stark opposition to such a bill meant that it had to be broken up into separate legislations. One of these was the law governing marriage and divorce known officially as the HMA, 1955. 

This law significantly changed Hindu Marriage. While it continued to give rituals and traditional ceremonies importance, it introduced hitherto unknown concepts into Hindu marriage such as dissolution and nullity of marriage. Various pre-requisites for marriage such as age, soundness of mind, and blood relations are also mentioned under this act which were not considered to impede a Hindu marriage previously. So, though marriages are still solemnised after completing the aforementioned rituals, the Hindu marriage can no longer be viewed as an unbreakable union of souls. Hindu marriage has become a spiritual as well as secular exercise. 

There has long been a debate as to the status of Hindu marriage. Legal scholars are divided on whether it is a sacrament or a contract. The courts too have given different opinions.

In several cases, courts have decided that Hindu marriage is a sacrament. Such as in Boodapati Ankamma v. Boodapati Bamanappa the court was of the opinion that, “Hindu Marriage is a sacrament and not a civil contract and that it will not be permissible to apply to a Hindu marriage all the principles of the Law of Contract.” In B. Sivanandy vs. P. Bhagavathy Amma, the court again reiterated the stance that Hindu marriage is a sacrament and not a contract. This very year, In Venkatesh Narasimhan v. V. Sujatha, the Delhi High Court stated that Hindu marriage is no doubt a sacrament. 

Courts have also given conflicting opinions. In Dhanjit Vadra vs Smt. Beena Vadra, the court explicitly stated, “Section 13-B has radically changed the old concept of Hindu marriage being a sacrament by treating it as an ordinary form of contract which the parties can enter into and put an end to like any other contact by mutual consent.”

In A v. B, the court attempted to apply a tempered view by saying that Hindu marriage today is partly a sacrament and partly a contract.

These inconsistent views of the courts mean that there is no consensus on the exact nature of Hindu marriage. Some are of the view that the new provisions of divorce and separation do not hamper the sacramental nature of the Hindu marriage. The reasoning here is that a statutory separation cannot affect the religious nature of a samskara. Others are of the opinion that it has become a contract due to the fact that there are certain conditions to be met and also that it can be terminated on certain grounds.

The author here is of the view that Hindu marriage today is neither a contract nor a samskara. It has adopted principles from both. While the religious aspects of samskara are essential for the solemnisation of a Hindu marriage, it is not an eternal union and can be terminated. Further, under the Contract Act, contracts with a minor are void ab initio. However, this does not hold water under the HMA, where a marriage with a minor is only voidable. So we see that it is not a true contract but it is also not a true sacrament.

The shift in the Understanding of Consent under HMA

Arranged marriages have been the traditional norm for Hindu families. These usually involved the parents of the man and woman choosing the spouse for their children. In such cases, consent of either parties was often not taken into account.

Under the HMA, 1956 for the first-time consent was discussed as a condition for a valid marriage. This however is ambiguous at best. Section 12 (1) (c) provides that any marriage where the consent either party was not given, is voidable at the option of the party whose consent was not given. 

In spite of this act, forced marriages in India persisted. The main victims of such marriages were women due to the patriarchal nature of society. Their lack of economic independence meant that they could not often choose for themselves. Surprisingly, the courts too initially upheld the validity of marriages in which the consent of the parents rather than the children was obtained. For instance, in Purushottamdas v. Purushottamdas, the court stated that the marriage of Hindu children is a contract made by their parents. Such decisions only served to perpetuate the prejudices ingrained in our society. Though things had improved to a degree since independence, education amongst women had increased, and most women did not yet have the freedom of choice to put their education to use. They were instead married off. 

Things changed quite drastically post-1991 when the LPG (Liberalisation, Privatisation and Globalisation) Policy was introduced. Several women took up jobs and at last attained economic freedom. This meant that they could finally exercise their choice as far as marriage was concerned. As the country modernised, the courts too began to take a more liberalised approach. In Nandakumar V. The State of Kerala, the Supreme Court upheld the right of two adults to enter into a marriage or a relationship in the nature of marriage. In doing so, the court overturned the judgement of the Kerala High Court which had on the petition of the father, directed that his daughter be returned to him. This was done in spite of the fact that the girl was an adult woman eligible to marry. The fact that the Supreme Court affirmed the right of the girl to consent to her own marriage demonstrates that the social outlook on women has changed

Revolutionary Changes in Hindu Marriage

Since the HMA came into being, Hindu marriage has undergone several changes. The erosion of the sacramental nature of marriage has enabled parties who are unhappy in their unions to ask for a divorce. The economic independence of women, on the other hand, has enabled them to exercise their choice in matters of marriage. Consent-based marriages have become the norm. Both these factors have spawned a variety of significant changes in the concept of Hindu marriage. Due to the limitations in the word limit, here, the author has dealt with only one of these changes that has been judicially affirmed and operates in practice but has not yet been incorporated into the law.

Live-in Relationships

A live-in relationship can be characterised as a relationship in which a couple cohabits without being lawfully wedded. It is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship.  Today, no law aside from the Protection of Women from Domestic Violence Act, 2005 wherein a female living in a relationship in the nature of marriage is considered as an aggrieved female, recognizes a live-in relationship. Moreover, the right to maintenance under live-in relationships is decided by the court using the provision of the Domestic Violence Act and the very facts of the case. Protection of Women from Domestic Violence Act provides for the protection and maintenance of an aggrieved live-in relationship partner, thus granting the rights of alimony to a live-in partner. The scope of section 125 of the criminal procedure code has been extended too by the Indian courts so as to provide a remedy and legal right to lady partners in marriage or ladies outside the marriage, i.e., live-in relationships. This however does not change the fact that more and more couples today are choosing to engage in live-in relationships. 

From this however several problems have arisen. While society is slowly becoming amenable to the idea of couples living together before marriage, we have no laws to regulate the difficulties arising from this practice. So, for instance, if children are born of such a union or adultery is committed or one partner deserts another or there is a property issue, there exists very little clarity as to how such situations may be dealt with.

The courts have in the absence of any such law, sought to fill in the void. For instance, in D. Velusamy v. D. Patchaiammal, the court stated that “in our opinion, a `relationship in the nature of marriage’ is akin to a common law marriage. However, there is a need to recognize or legislate live-ins so that there is a uniform framework that will aid in solving issues arising from such relationships. As far as Hindu law is concerned, there seems to be no reason as to why live-in relationships cannot be incorporated within the framework. 

Gandharva marriage which is has been recognized as a valid marriage under ancient Hindu law, could be equated to the modern live-in. Though in such a marriage the couple was required to make certain vows to each other, there existed no necessity of performing religious rites.

Following this precedent, an amendment could be made to the HMA which would prescribe the conditions to be satisfied if a couple in a live-in is to have the same rights as a lawfully wedded couple. On satisfaction of the conditions, they may be treated according to the provisions of the HMA. This would ensure that the main aim of couples in a live-in which is not to be bogged down by the constraints of marriage would still remain. However, a degree of responsibility would arise which would ensure that no undue advantage is taken or that the parties are not cheated. 

Conclusion

As society progresses, the customs and beliefs of the people also evolve. In Hindu society, marriage occupies a very prime place. It is often considered a social rite of passage and a religious step that every person must take to attain moksha. We have seen through this paper that marriage is no longer the sacrament that Hindu Society envisioned. As women and other disadvantaged groups have realised their rights, the acceptable forms of marriage have evolved. Separation and divorce too have ceased to be a taboo and have instead become a way out for couples who aren’t happy together or have been forced together.

Several new phenomena such as gay marriage, live-in relationships and irretrievable breakdown of marriage are gaining traction in society. The judiciary has attempted to fill the lacunae in the laws. However, this cannot act as a permanent solution because it causes both a strain on the judiciary as well as the parties who have to go through long drawn-out litigation. There is a need for an amendment to the HMA to incorporate such changing socio-legal facets. Through this paper, the author has attempted to show how Hindu law is flexible enough to accommodate such changes. Though things do seem to be changing, the law must reflect the changes in social practices.

Author’s Bio

Shubhi Agrawal is a final-year law student pursuing B.A.LLB (Hons) at Jindal Global Law School. With a keen interest in the multifaceted realm of law, Shubhi has devoted her academic journey to exploring various dimensions of the legal landscape. Her areas of focus encompass not only the intricate domains of taxation, technology, and competition laws but also extend to socio-economic rights and family matters.

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