Nature of marriage

Submitted by:MandeepB.A.LL.B. 2nd yrMITS

IndexMarriage

under Hindu marriage Act,1955

as contract

sacrament

Evolution

Evolution of the Institution of marriage

•Sex promiscuity was the rule among the primitive men •Paternity could not be determined as sex relationship remained unregulated•man’s quest to know paternity of child lie the seeds of the institution of marriage

concept of marriage• Wife becomes a

Paturnuvrate• i.e., she should

follow the same principle as her husband. She is ardhagini (half of man)

Manu Smriti

• The wife is verily half of the husband. Man is only half, not complete until he marries

Satpatha Brahmana

• The husband is known as bhartri or pati as he is to support his wife and wife is known as jaya

Shastra

• Acc. to this wife is source of Dharma, Artha, and kama, and she is also the source of Moksha

Mahabharta

• The wife is said to be grihini (the lady of the house), sachiva (wise counsellor), sakhi (friend)

Ramyana

• It declared that mutual fidelity b/w husband and wife is the highest Dharma

Taittiriya Samhita

Marriage as Sacrament•Marriage is one of the essential samskaras (sacrament) for every Hindu

•Even in the patriarchal society of the Rig Vedic Hindus, marriage was considered as a sacramental union

• it continued to be so in the entire Hindu period, and even in our contemporary world most Hindus regard their marriage as a sacrament

Hindus conceived of marriage as a sacrament union which implies several things:

First, the marriage b/w man and woman is of religious or

holy character and not a contractual union

Marriage is obligatory,for getting son,for discharging his debt to his

ancestors and for performing religious and spiritual duties

Wife is not merely a grihapatni but also dharmapatni and

sadhaharmini

Such marriage can’t take place without the performance of religious and spiritual duties

It implies that it is a permanent union. It is a tie which once tied cnt be untied

The sacramental union also means that it is an eternal union

Hindu marriage was a sacrament in the sense that a wife could never ask for divorce or for another husband even if her husband was a lunatic, impotent etc

As regards the husband, he could always mock at this sacrament with impunity and arrogance by taking another wife with similar sacramental fold; and he could do so as many times as he liked

Thus marriage as an exclusive and sacramental union also gave birth to:

Polygamy concubinage

prostitution

Marriage as a contract• The modern concept of marriage as a contract is an outcome of industrial revolution

•Acc. to the modern era, the highest human and social relationship that man has known, i.e., marriage, too, must be squarely based on free volition of individuals

• And to remove the polygamy, concubinage it was made a contract

Similarities between Hindu Marriage and a contract

Hindu Marriage Act,1955 Sec. 5 deals with the

conditions of marriageo Mental capacityo Competencyo Free consent of both the

parties to marriage

Contract Act,1872 Sec. 11 of this Act deals

with the competency of parties to contract

Sec 12 deals with mental capacity of the parties

Sec 14 deals with the free consent of the parties

By the above mentioned similarities, we can conclude that marriage according to the Hindu Marriage Act is more a contract than a sacrament

Thanks