Marriage under Hindu law is but a Sanskara or Sacrament

4th December 2020

According to Hindu Law, marriage is a holy union. It is not a contract but a Sanskara or sacrament.

Vows and prayers

The religious rites solemnizing a marriage include certain vows and prayers by parties made before the altar of God. Mr. K. P. Saksena has reproduced the original Sanskrit vows in his book “Commentaries on the Hindu Marriage Act, 1955” from the “Vivah Padathi” (marriage code according to Laugakshi) complied and translated by Pt. Bindheswar Nath Razdan Shastri, Rak, Vaidya. The translated portion is given below:

“In the three mantras of Laja (parched paddy) Hawan, the bride says:–

“I give oblation to the Fire God, the destroyer of enemies. With the grace of the said destroyer of enemies, may I never be separated from my husband’s house.

Other unmarried girls have worshipped the Fire God, the sustainer of the earth, for the fulfillment of their desire. Knowing that their desire were fulfilled, I have also made an oblation, may the same Fire God, sustainer of the earth, be pleased and with his grace may I never be separated from my husband’s house.

I worship Shankar in the from of Fire God, the God of good repute and the protector of husband. May by the grace of Shankar, the Fire God. I and my husband be free from death as the ripe melon is freed from its knot in the creeper. With His grace may I never be separated from my husband’s house.

May this oblation be acceptable to the Fire God. May sacred fire separate me from this (my father’s) house but never from my husband”s.

May my husband live long and my kinsen be prosperous. May this oblation be acceptable to the Fire God.

I cast this parched paddy in fire. May it make you (the husband) and me prosperous. The boon be granted by agni.”

Similarly, the bridegroom says to the bride:-

“O bride ! trace your fist step, by this may our foodstuffs increase. May God let me keep your company till I live.

O bride ! trace your second step, by this may our strength grow, may God let me keep your company till I live.

O bride ! trace your third step, by this may our wealth increase. May God let me keep your company till I live.

O bride ! trace your fourth step, by this may our comforts and pleasures increase. May God let me keep your company till I live.

O bride ! trace your fifth step. May our progeny increase. May God let me keep your company till I live.

O bride ! trace your sixth step. May we always get the fruits and flowers of the six seasons. May God let me keep your company till I live.

O bride ! trace your seventh step. By this may we live long and our relations be loving. May God let me keep your company till I live.”

Implication or Holy Ritual

The effect of these promises and prayers is that the marriage becomes indissoluble and each party becomes the complementary half of the other so that separation becomes unthinkable.

The terms prescribed by the Dharama Shastras, secure to the wife a high and strong position, as is indicated by the dialogue between the bride and the bridegroom during Saptapadi which again have been quoted in his book by Mr. K. P. Saksena on being supplied to him by Saahityacharya Shri Pandit Rameshwar Dwivedi. They are as under:-

“The bride groom says:-

“Madhupark has destroyed sins in the fire of Laja Hawan, so long as the girl does not sit on the left side, she is unmarried.

Madhupark have been performed first and oblation of parched paddy having been offered to the fire, so long as the girl does not sit on the left side she is unmarried.

The bridegroom says to the bride:

“Do not go without my permission, to a park, to one who is drunk, to King’s Court and to your father’s house.”

“The bride says “perform along with me the Bajpeya, Ashwamedha and Rajsuya Yogas, Tuladan and marriage.”

“With my consent and along with me consercreate Baoli, well and tank etc., and Gods, temples and take bath during the months of Magh, Kartik, and Baisakh.

Select a friend or enemy, a place worth a visit or not, go on pilgrimage, perform a marriage and engage in framing and commerce after obtaining my consent and along with me.

Render unto my hands what you earn by the grace of God whether it be hundered, a thousand, a hundred thousand a thousand million and ten billion.

After obtaining my consent purchase, sell or exchange a cow, a bull or a buffalo, a goat, an elephant, a horse or a camel.

My Lord, you should be my fired in the same way as Krishna is of Arjun, Brashapati is of Indra and as Swati is of Chatak.”

Once “Saptapadi” is completed the marriage tie becomes unbreakable.

Second marriage

The legal position of second marriage under the original Hindu Law is described in ‘Principles of Hindu Law’ by Jogendra Chunder Ghose, 1903 Edition, as under:

“Polygamy was not allowable according to the spirit of the law, but it was very generally practiced, though the second wife could not be associated in religious sacrifices, and was styled a wife not for duty but for lust.

Sir Gooroodas Banrjee in his book Hindu Law of marriage and Stridhana, 4th Edition (reprinted in India in 1984)” lays down as under:

“A Hindu husband is always permitted to marry again during the lifetime of his wife, though such marriage, if contracted without just cause, is strongly disapproved. “The first is the wife married from a sense of duty,” and the others are regarded as married from senxual motives. “With sorrow,” says

Daksha feelingly, “Does he eat who has two contentious wives; dissension, mutual enmity, meanness, and pain distract his mind; but his commentator, Jagannath, who lived at a time when kulinism and polygamy were widely prevalent, tries to soften the effect of the text, by showing that if the wives be complacent, none of the evil consequences would follow. The causes which justify suppression of the wife and re-marriage during her lifetime, are barrenness, ill-health, ill-temper, and misconduct of the wife.

It should be observed that supersession (which is adhivedana in Sanskri) here means, as explained in the Mitakshra and the Sobodhini, merely the contracting of a second marriage while the first wife lives; and it does not imply that the first wife is actually forsaken, for that her place is taken by the second, in respect of any matter except perhaps the husband’s affection. It is true that Vijnaneswara in one place uses supersession and desertion as synonymous, but Sulpani, another high authority, uses the term in the sense given above, and Jagannatha appears to follow the latter. This view is further confirmed by the rules regarding precedence among wives, which is settled by law with a view to prevent disputes.”

Mr. K. P. Saksena, in his Commentary on the Hindu marriage act, 1955, 3rd Edition (1964), writes as under:

“According to the Hindu jurisprudence, a husband is always permitted to marry again during the lifetime of the first wife but such marriage, if contracted without just cause, is strongly disapproved. Many has justified the supersession of the wife and remarriage during her lifetime on the following grounds, viz. (i) barrenness, (ii) ill-health, (iii) ill-temper and misconduct of the wife, vide, Manu (IX, 80-81).

He further maintains that (1) that first wife is married from a sense of duty, and (2) the others are regarded as married from sexual motives, vide, Manu (III, 12-13).

Supersession has been explained in Mistakshara and Subodhini as a contract of second marriage while the first wife is alive and not the desertion of the wife, for in desertion she is deprived for her rights such as association in performance of religious rites, religious duties, adoption, etc. In Ranjit Lal v. Bijoy Krishna, it has been held that adoption by a senior widow though late in time is valid notwithstanding an earlier adoption by a junior widow without the consent of the senior widow whose adoption was declared to be invalid, though both were authorised to adopt by the deceased. The Rishis do the approve of unrestricted polygamy.

They permit men to take a second wife in the lifetime of the first only under special circumstances.

Thus, Manu says:

“A wife, who drinks any spurious liquors, who acts immorally, who shows hearted to her lord, who is incurably diseased, who is mischievous, who wastes his property, may at all times be superseded by another wife, A barren wife may be superseded by another in the the 8th year; she who brings forth stillborn children or whose children all in fants die in the tenth; she who brings forth only daughters, in the elevent and she who speaks unkindly, without delay,” It is, therefore, incorrect to suppose that the Hindu Law permits a man to espouse a second wife during the life of the first except under particular circumstances. Manu appears to present the perfect ideal of conjugal fidelity by requiring both the husband and the wife to be faithful to each other. Thus in conclusion on the subject of mutual duties of husband and wife, the sage ordains:

“Let mutual fidelity continue till death:this, in few words, may be considered as the supreme law between husband and wife; let a man and a women united by marriage, constantly beware. least at any time being disunited they violate their mutual fidelity.” (Manu IX, 101 -102; V, 162-168). This passage clearly implies monogamy to be essential condition of the supreme law of conjugal duties. But it should be observed that the sages did not prohibit polygamy which was prevelant at the time but the tendency of their legislation was to discourage that practice by investing the first marriage with a religious character, and by permitting the marriage for religious purposes of second wife in the lifetime of the first, only in certain contingencies when there was a failure of the object of marriage.

From the above, it would be seen that though polygamy was not permitted, a second marriage was allowed in a restricted sense, and that too, under stringent circumstances as for example, when there was to total failure of the object of marriage. Monogamy was the Rule and Ethos of the Hindu Society which decided a second marriage and rejected it altogether. The touch of religion in all marriage did not allow polygamy to become part of Hindu culture. This was the effort of community. Otherwise, this Court in Bhaurao v. State of Maharashtra AIR 1965 SC 1564 (para 4) observed:-

“Apart from these considerations, there is nothing in the Hindu Law, as applicable to marriage till the enactment of the Hindu marriage act, 1955, which made a second marriage of a male Hindu, during the lifetime of his previous wife, void.”