Nowadays youngsters want to do something new to be some news. Especially Hindus want to break traditions which they are doing since colonial rule. We read in the newspaper a couple got married by taking oath on Constitution and some news girl refused to perform “Kanya Daan” as she wants to remain being Papa ki Pari.
Love has no boundaries may it be daughter and father. Till a family has only one daughter things are smooth, but there are twirls and twists if a family also has a son. Then the daughter-in-law is also her Papa ki Pari. Well, let’s now turn to the captioned question. How adventurous, heroic and courageous to break the traditions which are part of our Vedic scriptures. What does the law say?
Hindus have two types of schools. Mitakshara and Dayabhaga
Dayabhaga is followed in West Bengal and Mitakshara in the rest of India. The difference is about inheritance.
Now let us understand provisions of the Hindu Marriage Act,1955
Section 3 deals with definitions.
- Definitions.—In this Act, unless the context otherwise requires,— (a) the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy, and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.
What are the conditions of marriage under Hindu Law?
- 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 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) the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage; (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;
- 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.
TO EXPOUND AND EXPLAIN THE CEREMONIES UNDER VEDIC SCRIPTURES:
There is no standard Hindu marriage ceremony. Regional variation is prevalent in the sequence of rituals comprising the ceremony. There is also considerable flexibility within each ritual. The variation reflects family traditions, local traditions, resources of the families, and other factors. Three key rituals predominate, as follows. Two are yajna.
- Kanyadaan – the giving away of his daughter by the father.
- Panigrahana – a ritual in presence of fire, where the groom takes the bride’s hand as a sign of their union.
- Saptapadi – the crucial ritual. The term means ‘seven steps’, with each step corresponding (in the Long Form) to a pair of vows: groom to the bride, and bride to groom. The vows are pronounced in Sanskrit; sometimes also in the language of the couple. Fire is the divine witness (to the marriage), and after Saptapadi the couple is considered husband and wife.
Dictum:
In N.R. Raghavachariar’s Hindu Law, Eight Edition 1987, at page 37 it is stated that “there are really three stages in the ritual of a Hindu Marriage whether in the Brahma form or in the Asura form, and they are (i) the betrothal, (ii) the formalities including the recital of holy texts before the sacred fire and (iii) the Saptapatigamana. Of these the betrothal, though in some cases celebrated with much ceremony and ostentation, is only a promise to marry and is revocable.” It is further observed that “even the second stage of the ritual consisting of the invocation before the sacred fire and Kannikadana does not form the operative part of the transaction which is really the completion of the Sapatapadi or the taking seven steps by the bridal pair in the marriage ceremony.” Thus, it cannot be denied that ‘Kannikadana’ or ‘Kanyadana’ is an important part of rites of Hindu Marriage in ‘Brahma form’. It is a different matter that omission to perform ‘Kanyadana’ will not result in invalidity of the marriage. In fact, this has been incorporated in Section 7(2) of the Hindu Marriage Act, 1955. Thus, the observation of the learned single Judge that ‘Kanyadana’ is not an essential ceremony of a Hindu Marriage must be construed in the background of the fact the ‘Kanyadana’ was not considered as an essential condition for the validity of marriage even as per the customary Hindu Law and also as contemplated in Section 7(2) of Hindu Marriage Act, 1955. It cannot be denied that ‘Kanyadana’ is an important rite and ceremony in a Hindu Marriage unless the custom in a particular community or family recognises different rites for marriage. It is a different matter that non-performance of ‘Kanyadana’ would not result in the validity of the marriage.
(see Ramlal Agarwal vs Shanta Devi And Others on 2 April, 1999)
However, it appears that there was no discussion and arguments on Grihsutram
Hinduism is based on customs and usages and Vedas, Smriti, Samhitas, and Shruti. Shruti is an unwritten custom, and usage is passed on from mouth to mouth. Yet have its endorsement by dharma.
The Smritis and commentaries, it is obvious that there are really two essential elements necessary to constitute a valid marriage under Hindu law according to Shastras; one a secular element, viz., gift of the bride or ‘Kanyadhana’ in the four approved forms, the transference of dominion for consideration in the ‘Asura’ form and mutual consent or agreement between the maiden and the bridegroom in the ‘Gandharva’ form. These must be supplemented by the actual performance of the marriage by going through the form prescribed by the ‘Grihyasutras’ of which the essential elements are ‘panigrahana’ and ‘saptapadi’. In the case of ‘Rakshasa’ and ‘Paisacha’ forms also, there should be a marriage rite in the form prescribed by the Shastras. This is the religious element. Both the secular and the religious elements are essential for the validity of a marriage. The ‘Gandharva’ form of marriage is no exception to the rule.
Following is an excerpt from gruhsutram which is grihastha ashrama starts with the marriage ceremony.
In marriage ceremony bride is symbolic Goddess Lakshmi and groom Bhagwan Vishnu. Before initiation of saptapadi groom family parents has to welcome the bride in their family which is called panigrahan and kanyadaan. There is transition of gotra of bride from fathers gotra during this ceremony to grooms gotra which is this kanyadaan ceremony. Without bride adopting gotra of groom during this ceremony saptapadi becomes a route or process. There is also mention of kanyadaan of Sitaji in Ramayan after swayamvar .
It’s good that girls are breaking all barriers, but this is breaking of very core value of religious fundamentals of life and one shouldn’t take it as progressive change.
Even Sri Sri Ravishankar denied on Republic Channel of mandatory performance of Kanyadaan . Person with influence on mass must be progressive but at the same time guiding force for righteous adoption and execution of custom and usage.
TYPES OF MARRIAGES AND KANYADAAN
NIRNAYA SINDHU “Even in Gandharva and other forms of marriages, gift preceded by pouring of water is insisted upon. In that context, Yama says: “A man is not to be called the husband of a girl merely by pouring water in his hand or by declaring him her husband. But only by Panigrahana ceremony (catching hold of” the hands of the girl) and having taken seven steps with her.”
Devala says in Parasaramadhaviya” “In the marriage like Gandharva, the marriage ceremony should again be performed by the people of the three castes by competent men haying the fire as witness. Hereby three castes is signified the three castes other than Brahmins, which three castes are eligible for the Gandharva marriage.”
In the Parisista (or reminder-Chapter of Parasaramadhaviya), it is said as follows: “In the marriages, Gandharva, Asura, Paisacha and Rakshasa the girt is to be accepted first and then a homa (ritual in fire) is ordained. So, if the homa is not performed, the girl does not attain wife-hood and therefore she may be given in marriage to another man.”
Vasishta and Baudhayana say in that context : “If a girl who was carried away by force was not purified by marriage mantras or ceremony, she may be given to any other man according to rules as if she was a kanya (unmarried girl).”
(Here the Commentator says by carrying away by force is meant Gandharva and other marriages).
Here (a question arises): If a girl is not married with the chanting of mantras, she may be given to any other person in any form of marriage. That being so, special mention in the case of the girl being carried away by force in Rakshasa and Palsacha (forms) is meaningless. The reply is as follows: “A girl who does not accept the man who carried her away by force, as her husband, may be given in marriage once again and it is immaterial in those marriages whether she is purified by samskara or otherwise.”
Narada says in Madanaparijata: “The mantras for marriage are considered to be essential to make a girl a wife, and the seventh step taken along with that girl is the culmination of that ceremony.”
The same is said in Apararka and Smritichandrika also.”
APPENDIX II IN THE SHUDRA KAMALAKARA Then the Samskaras of the Shudra. YAMA:
The Shudra should be purified by ceremonies in the following manner without mantra.
VYASA ALSO:- The rites of Garbhadanam (relating to the conception of one’s wife), Pumsavanam (religious rites performed for the birth of a male child), Seemanthonnayanam, Jathakarma, Namakarnam, Niskramanam (taking the child in the open), Annaprasanam (ceremony of the first feeding with cooked rice), Vapanam (tonsure ceremony), Karnavedha (ear-boring ceremony), Vi-atadesa (investiture of the holy thread), Vedaramba (commencement of the study of Veda), Kesantham (ceremony of the cutting of the child’s hair), Snanam (bathing ceremony), Udvaha (marriage), Vivahagni Parigraha (taking up of the lighted marriage fire), thretagnt sangraha (kindling of the three kinds of fire) are the sixteen purificatory rites ordained.
Having said this says as follows: These nine ending with Karnavedha should be done in the case of the woman without mantra. But marriage should be done in her case with mantra. In the case of the Sudra the ten should be done without mantra.
In the Matsya (purana), it is said: “In the case of the women, the Jathakarma, the Namakarana, Nishkrama, Amiaprasana, Chuda and Vivaha are the six samskaras. But, for the Shudras these six and the five Mahayagnas, thus making eleven.
Jayapala: In the case of the Shudras without Upanayana the nine samskaras beginning with. Garbhadana ending with Vivaha.
But Sarangadhara said: For the Dwijas there will only be sixteen. For the Shudras twelve only. For the mixed castes five only are the samskaras, according to the dharma of the family.
For the Shudras the 12 samskaras without the vedavrata, upanayanam, Mahanamni and. Mahavrita and with the ‘Namamantra’.
Then ‘Vivaha’: For the Shudra the ‘Namamantra’ only.
Manu also: “The mantras relating to marriage are the determining cause of wife-hood and these complete with the ‘saptapadi’ (walking 7 steps). Thus, it is understood by the learned.”
Here the catching hold of the hand ‘panigrahana’ is common to all the vamas as Yajnavalkya said: “Panigrahanam is common to all varnas” without making any distinction.
Then Prayoga (performance of ceremony) : “It is said in the Harihara Bashya in the marriage of Shudra male with the Shudra woman only the acts without the ‘mantra’ have to be done after going round the fire in the fourth and then sitting down and making the homa ‘I bow to ‘Prajapathi’ commenced by the Brahma priest and then placing seven small heaps of rice on the northern side the bridegroom should make’ the bride take seven steps with the right foot with the words ‘I bow to Vishnu’.
The text of Manu that is referred to was already adverted to and it was pointed out that that text as observed by Kalluka Bhatta is not in conflict with Manu Chapter VIII-227. The religious ceremonies are not merely for the purpose of procuring good fortune to the bride nor merely to serve as a piece of evidence but ‘panigrahana’ and the ‘saptapadi’ are essential to complete the marriage and to bring about the unalterable status of the husband and wife, i.e., the legal nexus.
In Sarkar’s Hindu law. 8th Edn. at p. 129, the following passage occurs: “The latest commentators unanimously maintain the necessity of the performance of religious rites for the completion of marriage in all cases including even the Gandharva, although the well-known instance of Sakuntala’s espousal by Dushyanta negatives that view. In order to arrive at a correct conclusion, we must take in to consideration the marriages of virgins, nonvirgins, and widows, and the ceremonies that are common to them. Manu appears to lay down that the essential ceremony for creating the status or marital dominion of the husband is the gift of the damsel by the father or other person having authority in that behalf; the religious ceremonies being performed for procuring good fortune to the bride. Grown-up damsels who have passed the nubile age, as well as widows, are deemed ‘sui juris’ in this respect, and therefore may become self-given or give their ownselves in marriage to men willing to marry them. The secular gift and acceptance of the bride would be sufficient to create the relation of husband and wife between the acceptor and the woman. Even acceptance is not necessary for the completion of a gift, according to the author of the Dayabhaga, who maintains that the relinquishment by the donor causes the right of the donee, whose non-acceptance would extinguish the right created by the donor’s act.”
See Deivanai Achi And Anr. vs R.M. Al. Ct. Chidambaram Chettiar … on 26 August, 1953
WHETHER MARRIAGE IS VALID WITHOUT PERFORMING ESSENTIAL RITUALS OF MARRIAGE ?
Inderun Valungypooly v. Ramaswamy (1869 (13) MIA 141.) So also where a man and woman have been proved to have lived together as husband and wife, the law will presume, until the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. (See Sastry Velaider v. Sembicutty (1881 (6) AC 364) following De Thoren v. Attorney General (1876 (1) AC 686) and Piers v. Piers (L.R.(2) H.L.C. 331).
Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra & Anr on 1 February 1965
Section 494 I.P.C. reads : “Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
Prima facie, the expression ‘whoever…. marries’ must mean ‘whoever marries-validly’ or ‘whoever…. marries and whose marriage is a valid one’. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife.
Koppiset@ … vs the State Of A.P on 29 April 2009 Supreme Court ti Subbharao Where a marriage is accepted as valid by relations, friends, and others for a long time it cannot be declared as invalid. In Lokhande’s case (supra), it was observed by this Court “The bare fact that man and woman live as husband and wife it does not at any rate normally give them the status of husband and wife even though they may hold themselves before the society as husband and wife and the society treats them as husband and wife”.
In State vs Parveen Bhanderwal // Fir passed on 17 September, 2019
Pandit Deepak did not say a single State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS – Bhalswa Dairy page 14 of 16 word about the ceremonies under which the accused and victim underwent while marrying with each other on 20.01.2010. He merely placed on record some documents. In crossexamination by the accused, he deposed that necessary ceremonies of vaidik marriage are : (a) Enchanting of mantras, (b) jaimala, (c) kanyadaan, (d) hawan, (e) gathbandhan, (f) feras, (g) sindur, (h) daan and (i) mangalsutra.
He did not depose specifically that accused and victim had undergone those ceremonies. Even it is presumed that the accused and victim had undergone the ceremonies deposed by PW4 in cross examination, still, the prosecution has failed to prove the case because as per above citation two essential ceremonies for a valid marriage are: (i) Invocation of the sacred fire and (ii) Saptapadi.
If the parties did not undergo the above ceremonies, they can marry validly by performing ceremonies that are allowed by the custom of the caste to which they belong. In the case in hand, PW4 did not depose that chanting of mantras was before the sacred fire. He did not depose about the number of saptapadi undertaken by the parties. Due to that reason, the prosecution has failed to prove that marriage between parties was performed by observing the above two essential ceremonies. It is not the prosecution case that for marrying validly, the parties had an exception of ceremonies as per the custom of their caste. The accused was acquitted.
INFERENCE:
Considering smritis, Vedas and Samhitas kanyadaan that is panigrahan is one of the necessary to make marriage valid under provisions of Hindu Marriage Act,1955; provided it is mandatory in the varna, caste, community of the bride and groom. If one does not perform the necessary ingredients of marriage to bring change or say she wants to remain the daughter of her father may be in the future run marriage may be declared void as the girl refuses to accept the transition of Gotra. This will certainly affect the inheritance of the wife and her children in the future. We will discuss this in another write-up in detail.
Shruti Desai
23rd December,2021
Leave a Reply