For a Hindu, marriage is a samskara (religious rite or sacrament). It is in fact, the last of the ten sacraments, enjoined upon him by the Hindu religion for purifying the body from inherited taint. This view has been accepted by the High Courts of Bombay and Madras. Thus, a Hindu marriage is looked upon as something which is more of a religious necessity and less of a physical luxury. As once observed by the Calcutta High Court, a Hindu marriage is “more religious than secular in character.”
According to the Vedas, a marriage is “the union of flesh with flesh and bone with bone”. It is a union which the Vedas regard as indissoluble. As long as her husband is alive, the wife is enjoined to regard him as her God; likewise, the wife is declared to be half the body of her husband (Ardhangini) and shares with him equally, the fruits of all his acts, good or bad.
It may be noted that the concept of a Hindu marriage as a sacrament continues to exist even after the enactment of the Hindu Marriage Act. This concept is not, in any way, inconsistent with the provisions of the Act, which has merely laid down certain conditions for a valid Hindu marriage, and certain grounds for obtaining judicial separation and divorce. The concept of divorce was, of course, not recognised by the ancient Hindu Law, and this is a vital innovation introduced by the law in the Hindu social framework.
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It may be noted that a marriage under Hindu Law is not only a samskara or sacrament, but the only samskara prescribed for women under Hindu Law. Although there was a conflict of decisions on the point, it was generally accepted that a Hindu marriage is also a contract.
A reference to Manu shows that there is actually a gift of the bride. Thus, an essential part of the marriage ceremony is what is called kanyadan. Such kanyadan fulfils all the requirements of a gift under the Hindu Law. It is, therefore, clear that to the extent that a marriage is a gift, it is also a contract.
Writers on Hindu Law, both ancient and modern, have also generally taken the view that a Hindu marriage is not only a sacrament, but also a contract. The editor of the tenth edition of Mayne’s Book also observes that “while marriage according to Hindu Law is a sacrament, it is also a civil contract, which takes the form of a gift.”
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Similar observations are to be found in several decided cases, a few of which are given below:
(i) In Purshottamdas v. Purshottamdas (21 Bom. 23), the Court observed that “Marriage of Hindu children is a contract made by their parents.”
(ii) In Bhagwati Saran Singh v. Parmeshwari Nandar Singh, (1942 ILR All. 518), the Court after quoting extensively from Macnaghten’s Hindu Law, Strange’s Hindu law and Vyavastha Chandrika, expressed the view that a Hindu marriage is not only a sacrament, but also a contract.
(iii) In Muthusami v. Masilamani, (33 Mad. 342), the Court observed: “A marriage, whatever else it is, i.e., a sacrament, and institution, is undoubtedly a contract entered into for consideration, with co-relative rights and duties.”
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(iv) The Calcutta High Court has also observed, in Anjona Dasi v. Ghose (6 Bengal Law Reporter, 243), that suits relating to marriage deal with that which in the eye of the law must be treated as a civil contract, and important civil rights arise out of that contract.
In view of the above-mentioned and other cases, it can safely be concluded that under the ancient, uncodified Hindu Law, a Hindu Marriage was not only a sacrament, but also a contract.
