INTRODUCTION

Marriage signifies the ceremony or the event by means of which the common
intention of a man and a woman to marry is publicly contracted, that is to say
acknowledged and announced the married state is legal condition or status ,the rights of
the married persons are determined by law, and the termination of a marriage is possible
only in accordance with law.
Custom of marriage is the most basic institution of human society. Since the prehistoric
period up to the present age, marriage had remained the backbone of human civilization.
Therefore institution of marriage occupies a very important place in human society.
Marriage is considered as sacred contract in most religions. In the Indian tradition and
philosophy, marriage is holy act confirmed by all the ceremonies and ritual
accompanying it. It is also believed to be an irrevocable bond between the man and
woman who enter the secured alliance. It had been sanctified in several cultures as a
spiritual and functional relationship between man and woman leading to the birth of
children and building a family. The Hindu ideal of marriage is essentially a fellowship
between a man and woman who seek to live together in creative partnership for the
pursuit of great objects of life. Two personalities merge on ideals, purposes, attitudes,
possibilities, habits, friendship, aversions and prosperity have becomes the base for the
emotions which bond the two personalities, love stimulates, facilities and reinforce each
other in progressive integration. Thus marriage is the union of soul and body so closely
and so firmly established that one expects that it will lasts as long as life lasts. Jain (1988)
also agreed that marriage was essential for every individual.
With the advent of modernization and globalization many concepts have undergone
change. Marriage too, as an institution has been largely effected but in India it is still
surviving though structural changes in concepts have taken place. Hence it is interesting
at this time to understand the changes in concept among the orthodox Hindus especially
who still carry the pre-modernization beliefs like purity and prohibition with them
especially the women folk who seems to have been left behind by the development. The
aim of the study is to see whether the change has really occurred. The girls these days are
exposed to new ideas and have an opportunity for higher education and occupations
previously considered mens domain. No longer is the female just a child producing

machine. Now she supports the family planning and performs many roles at the same
time. There is an ardent need to give new definitions to concepts of masculinity and
feminity and also their respective roles. Thus the study will make a minor attempt to
define what exactly has changes in the domain of marriage and related
concepts.

Research Methodology
1.Aims and objectives
This project essentially aims at analyzing the changing concepts in hindu
marriage. It also compares hindu marriage during different periods of time
2. Scope and limitation
The project essentially aims at to find out what is the effect of changing concept
of marriage and it tries to find out wheather marriage is still sacred. The limitation of this
project is it confines only to the hindu marriage and its changing facets.
3. Mode of citation
A uniform mode of citation has been followed in the research paper. The MLA
Style of citation is adopted through out the research paper.
4. Mode of Research
The mode of research adopted in this project is descriptive method. The
researcher has relied primarily upon secondary sources of data like, books, journals,
online databases and miscellaneous web sources.
5. Chapterisation
The chapters deal about changing concept of hindu marriage, marriage during
vedic period , changes during british and post vedic period, sacramental position of hindu
marriage and finally concluding a difference between arranged marriage and love
marriage.
6. Research questions
a. What are the changes in Hindu marriage?
b. What are the laws regarding Hindu law marriage?
c. Whether Hindu marriage is still sacrament?

Marriage during Vedic period

Institution of Hindu marriage has been very strong from very beginning and there
is no reference of promiscus society in Veda. Marriage has been considered as an
indissoluble union between a man and women not only during this life but also for all
lives to come. Marriage of a Hindu couple is not only a union of a man and women but is
considered as a sacrament. Marriage has been placed one of the sixteen samskara of a
Hindu. Samskara is a socio religious rites by performance of which life of present Hindu
is sanctified. In Grahsutra, Vivaha is referred as one of the most important of all
samskara. Marriage was a sacrament, which brought about a "union of two personalities
into one for the purpose of the continuance of the society and for uplift of the two by self
restraint, by self sacrifice and mutual cooperation. According to the Vedas marriage is a
union of "bones with bones, flesh with flesh and skin with skin, the husband and wife
become as they were one person. In Hindu society marriage was not only a samskara to
be performed but also a religious duty of a Hindu towards his father, family and society
to fulfill certain purposes. Reference to Veda 1, Brahmanas2 and Dharamshastras reveals
following

three

purposes

of

marriage

under

Hindu

jurisprudence:

1. Dharma sampati (perform religious rites)

2. Praja sampati (for son to save father from hell)
3.Rati palam {sexual and other pleasure).
It is perfectly true to laid down that with the Hindu, the Greek, and the Romans marriages
was a religious was a religious duty, as man alike his ancestor and himself3

Rig.X.85.360
Sat.V.2
3
Changing facets of hindu marriage by Praveen Dalal
2

Ceremonies of marriage in Vedic period4

Marriage being a samskara was performed by certain ceremonies some of which
were essential for valid marriage. Some of the important ceremonies were following:
Virdi Sarda: On the day of marriage the father of the bride used to perform this in the
honour of his ancestor. However it was not an essential ceremony.
Sampradana: When the bridegroom arrived at the house of the bride, he was
ceremoniously received by the bride family. In this ceremony he was offered with padya
i.e. water for washing the feet, arghya i.e.water mixed with flowers, dhruva grass, rice
and sandal paste for washing the head, a cushion to sit upon and madhuparkha: This was
to be performed with chanting mantra.
Kanyadana: In this ceremony the father of the bride formally give the bride to the
bridegroom and the bridegroom accept the bride with the recitation of the hymn from
Kamasukta.
Panigrahana: In this ceremony the hand of the bride is accepted by the bridegroom with
utterance of the mantra from Rig Veda:"I take hold of the hand for happiness".
Agni-Parnayana: The ceremony of Panigrahanais followed by Agni-parnayana.In this
ceremony the sacred fire is kindled and oblation are made. Thebridegroom takes the hand
of the bride and she steps on a stone; the bridegroom leads the bride round the fire thrice
chanting mantra.
Laja-homa: In this ceremony some fried grains and butter are poured in the joined hand
of the bride by the mother or brother or by somebody representing the brother, which she
poured in the fire and rest of the havis is to be poured by the bridegroom, reciting
mantras. Then the bride is made to loosen the two lock of her hair, and then the groom
pours vermilion.
Saptapdi: After Laja-homa, the most important rites of Hindu marriage i.e. Saptapdi is
performed. In this ceremony the bridegroom leads the bride seven steps in the northeast
direction chanting a mantra from Manu Smriti. The priest sprinkles the water on the head
4

Introduction to sociology C.N.Shankar Rao

of the bride and groom from the water jar. Then the bride and groom make a prayer:
"May water r and all goods clean our hearts.
May air do so, may creators do so,
May the divine instructress unite our hearts
After completion of the Saptapdi the marriage becomes complete and irrevocable and the
wife passes into the gotra of the husband. After the completion of the marriage the bride
was supposed to live with the bridegroom family. The bride would become a kind of
apprentice-trainee under the guidance and the authority of the mother-in-law. After some
time the bride become the part of her husband family and acquire a new status.
Concept of divorce during Vedic period
Vedic text as well as Smritis contains no advertence at all to divorce. Manu
declares "Let mutual fidelity {between husband and wife} continue till death: this in brief
may be understood to be the highest dharma of man and wife. Manu also lays down that
"neither by sale nor by desertion is the wife released from the husband; we understand
that this is the law ordained by the creator in former times". Manu further says that the
duty of a wife continues even after the death of her husband. However a wife could be
superseded by another for barrenness, misconduct, sickness, or incompatibility. In case
she is superseded by a younger co-wife, she was to treat her like sister because they are
all mother of a son of any of them. Actual separation between husband and wife was
unthinkable. However in certain circumstances separation was possible. According to
Manu if a husband went away for approved purposes his wife must wait his return for a
prescribed period and if he did not return she was entitle to seek new husband. The wife
could abandon a husband who was cruel, vicious, or impotent, But whether she was free
to remarry or not was left vague. Plainly she could remarry in a non-approved form, a
non-dharmic form, or becomes some one's concubine. A text attributed to Narda and
Parasara says that a woman could obtain another husband if her first husband is missing,
dead, a religious recluse, impotent or outcaste Under Kautilya's Arthrastra marriage might
be dissolve by mutual consent in case of the unapproved form of marriage.

Reforms of marriage during British period

During British period India experienced various social reform movements as a
result of which Britishers brought various changes through legislation. Special Marriage
Act was passed with a view to legalize inter caste and inter religion marriages. It also
allowed the parties to dissolve the marriage on certain grounds and by mutual consent.
However there were no major changes in hindu law of marriage except Widow
Remarriage Act and Child Marriage Restraint Act. In1931 the local rural of Baroda state,
influenced by the judicial divorce of England brought concept of judicial divorce through
a progressive legislation called Hindu Lagna viccheda Nibandha of 1931 which later on
replaced by Hindu Nibandha of 1937. This law was applicable only to the subjects of
Baroda state. Under this law customary divorce was still valid. Baroda reform brought
the concept of judicial divorce for the communities, which did not, had concept of
customary divorce. Section 148 of Hindu Nibandha of 1937 provided for divorce on
following grounds:
1.Whereabout not known for a period of seven years or more,
2.becomming a recluse;
3.conversion to other religion;
4.cruelty;
5.desertion more than three years after cohabitation commenced;
6.addiction to intoxicant for more than three years;
7.committing adultery, or
8.bigamy.
Baroda reform was followed by Bombay as a result of which Bombay Hindu Divorce Act
of 1947 was passed. Under this Act divorce was available on the following grounds: (1)
impotency, (2) lunacy for seven years, (3) desertion for four years, (4) disappearance for

seven years, (5) that the husband kept a concubine or the wife is concubine of another
man or prostitute.

Post-independence reforms
After independence Madras followed the trends set by Baroda and passed Madras
Hindu5 Act of 1949 thereby bigamy was made punishable and void. Dissolution of
marriage was introduced at the petition of spouse who have attain the age of eighteen
years .New ground of venereal disease for five years, lunacy and leprosy for
five years, desertion for three years, conversion from Hinduism, such cruelty as to render
it unsafe for the petitioner to live with the other party, were added. With the reforms in
Baroda, Bombay, and Madras dilution of Shastric marriage law began. The differences
between these three statutes evidenced deep uncertainty, which needed reform. This laid
to the foundation of Hindu code Bill crisis and formation of Hindu Marriage Act 1955.
Hindu Marriage Act, 1955
The Hindu Marriage Act was passed after great discussion. It was the first codified law of
marriage of Hindus, which is applicable to whole territory of India except Jammu and
Kashmir. Then Hindu Marriage Act 1955 reformed the Shastric law of marriage to such
an extent that it diluted its sacramental feature and its amendment in 1964 and 1974
brought the Hindu marriage very close to a civil contract. The Act provided for
sapindaship to be a bar to the marriage and marriage within sapindas would be void
under section 11 but the act redefined the degree of sapinda relationship much narrowly
then the Dharamshastras allowed, so that many more relations which could not marry
under Shastric law could marry under Hindu Marriage Act .The degree of prohibited
relationship was introduced to clarified that certain affiances could not be married, nor
ascendant nor first cousins; both bars subject to customs sand usages of the parties.
Following were grounds of divorce under Hindu Marriage Act, for the either spouse that
the other [1] was living in adultery, [2] had ceased to be Hindu by conversion, [3] had
been incurably of unsound mind for three years, [4] had suffered for three years from
leprosy, [5] had suffered for three years with venereal disease, [6] had renounced the
world, [7] had disappeared for seven years, [8] had not resumed cohabitation two years
the decree of judicial separation after the passing of the decree of judicial separation ,or
[9]had failed to comply with the decree of restitution of conjugal rites for two years .The
5

{Bigamy Prevention and Divorce}

grounds of simple adultery ,cruelty and desertion was absent for the reason that on these
grounds judicial separation and restitution of conjugal rites was available to the parties. 6
Hindu Marriage Amendment Act
In 1960's an agitation to reform English law of divorce started. This agitation
produced a rapid response in India which laid to 1964 amendment of Hindu Marriage Act
1955.This amendment amended Section 13 by removing grounds 7 of divorce and inserted
a new sub section 13{1A}. This sub section provides that either party can file a petition
for divorce on the sole ground that there had been no resumption of cohabitation for two
years or more since the decree of judicial separation, or that there had been no restitution
of conjugal rites for two years after the decree for the same. Recognition of this ground of
divorce amounted to introduction of break down theory divorce. Guilt theory of divorce
has already been recognized under different grounds of divorce in Hindu Marriage Act
1955. Introduction of break down theory under Section 13{1A} created a problem as, it
was understood that once it was proved that there is no resumption of cohabitation for
two years after passing of the decree of judicial separation or restitution of conjugal rites
the marriage breaks down and on this ground divorce become inevitable. Introduction of
this ground i.e. Section 13{1A} brought a drastic change in the matrimonial
jurisprudence and caused immediate differences in judicial opinion with respect to the
new sub Section 13{1A} and Section 23 of Hindu Marriage Act 1955. Section 23
requires that the court may refuse the relief of the petitioner where he himself is taking
advantage of his/her own wrong or disability .The letter of law require that the petitioner
must prove that he is not taking advantage of his/her own wrong or disability, though the
breakdown theory does not requires any such provision. But as Section 23 {1}{a} was
not excluded from the purview of Section 13{1A} in zeal to dispense justice by reading
Section 23 into this section. Dr. Paras Diwan has criticized the above trend in the
following words: If technical view of Section 23{1}{a} is taken then there would
hardly be a petition under Section 13{1A}, where divorce could be granted. Thus a
spouse who have obtained a decree restitution of conjugal rights fails to impress the other
spouse to join him or a spouse against whom a decree has been obtained fails or refuses
6
7

Mullas Hindu Law

{VIII} and {IX}

10

to comply with it, he or she will be in the wrong and a petition under Section 13{1A} will
fail. On the other hand, if successfully entreats the other spouse to join him, in the former
case, if he complies with the petition in the letter case, there is left no cause of action to
file a petition for divorce. It appears that when the amendment of 1964 was debated in the
parliament, no one gave any thought to the possibility of applicability of Section 23 to the
petition under Section 13{1A}. Since the divorce structure in the original Hindu Marriage
Act was based on the fault theory it is in that structure only Section 23 has any relevance
when a new structure of irretrievable marriage breakdown was laid down, the projecting
arm of Section 23 was not cut down but rather allowed to caste its shadow; the courts
applied Section 23 to irretrievable breakdown of marriage basis of divorce also. They
overlooked the spirit and law behind Section 13{1A}, and adhered as they do to
mechanical jurisprudence, applied Section 23 as a result Section 13{1A] was rendered
almost nugatory. Some of the High Courts however endevoured to make this section
successful. Bombay High Court in Madhukar v Sarla [18] took the view that no
consideration should prevent either party from taking advantage of Section 13{1A}
except his or her own wrong subsequent to the decree that founded the right of suit. The
Supreme Court in Hirachand Srinivas Managaonkar v Sunanda [19] held that if provision
in section 13{1A} are read together the position that emerges is that petitioner does not
have a vested right for getting a decree of divorce against the other party merely on
showing that the ground in support of relief sought as stated in the petition exist. The
Court further observed that the contention that the provision of Section23 {1} are not
relevant in deciding a petition under section 13 {1A} not acceptable.
The 1976 Amendment
The amendment in 1976 further distorted the sacramental feature of Hindu marriage and
that to such an extent that it has become a civil contract in actual sense though it still bear
some

colour

of

sacrament.

Following

are

some

important

changes-

1.Section 5 was changed to the effect that neither spouse should be incapable of giving a
valid consent to the marriage or though giving a valid consent, should have been
[
[

11

suffering from mental disorder so as to unfit for marriage and the procreation of children.
2.Any ground for divorce may be a ground for judicial separation.
3.Fraud as a ground of nullity has been amplified as to the nature of the ceremony or as to
the material fact or circumstances concerning the respondent.
4.Simple adultery i.e. voluntary sexual intercourse with a person other than the spouse, is
substituted as a ground of divorce at the place of living in adultery
5.Cruelty and Desertion for two years are added as a ground of divorce.
6. The period of three years for which the respondent must have suffered leprosy or
venereal

disease

has

been

eliminated,

and

now

there

is

no

time

limit.

7. Section 13{1A} is amended only upto the extent that the waiting period is reduced to
one year.
8. Breakdown theory of marriage once again recognized by incorporating a new ground
of divorce that where a wife is living apart and obtained an order for maintenance under
section 125 Cr.P.C or under section 18 of Hindu Adoption and Maintenance Act 1956,and
cohabitation has not been resumed for a period of one year, she may use this fact as a
ground of divorce, similar to section 13{1A}. This ground is available to the wife only.
9.A provision similar to the option of puberty available to the Muslim wife was
incorporated by inserting a new ground of divorce under which, the wife may file a
petition for divorce on the ground that her marriage {whether consummated or not} was
solemnised before she attained the age of fifteen years and she has repudiated the
marriage after attaining the age of 15 years.
10. The progressive demand of divorce by mutual consent is incorporated by adding a
new section 13-B, which provides that both the spouses may jointly present a petition for
divorce on the ground that they have not been able to live together, that they have been
living separately for a period of one year or more, and they have mutually agreed to
dissolve the marriage.

Whether a Hindu marriage is still a pure sacrament?

From the above mentioned chronological survey it has become crystal clear that Shastric
law of marriage has been distorted by various reforms, legislative enactments, and its
12

amendments .The matrimonial legislation has brought about a situation in which it would
be foolish to pretend that basic notion of samskara still obtain ion the courts .As per
Shastric law a man unable to procreate is not a perfect man .The Shastra would not have
regarded a woman without reproductive organ as a woman, and encouraged polygamous
marriages where the first wife bore no son. Contrary to the Shastric law, Hindu Marriage
Act prohibit second marriage if the first wife is alive even if the first wife is not capable
of bearing a child and the law as stood before 1940 is regarded as dead. Thus a marriage,
which prevents husband from taking second wife when the first is barren, is something
more than the samskara. According too Paras Diwan8 "sacramental marriages among
Hindus has three characteristic, it is a permanent and indissoluble union, it is an eternal
union, and it is a holy union. The first element has been destroyed by Hindu Marriage Act
1955 as it recognized divorce. The second element was destroyed in 1856 when widow
remarriage was given statutory recognition. Probably to some extent the third element is
still retained. In most of the Hindu marriages a sacred or religious ceremony is still
necessary.
(1) Hindu marriage and ceremonial degradation.
Section 7 of Hindu Marriage Act requires that the Hindu Marriage may be solemnized
according to customary rites and ceremony of either party thereto and where such
ceremony includes saptapdi the marriage becomes complete and binding when seventh
step is taken. These ceremonies and rites are still necessary. These can be dispense with
only if one of the parties to the marriage can establish customary ceremonies in
substitution of Shastric ceremony. This characteristic of Hindu marriage is also diluting
as a result of socio-economic changes in the society. In Tamil Nadu there had been a
secularistic movement, which was basically anti Sanskrit and anti Brahmins, which
opposed the interference of Brahmins in religious matter. The followers of this movement
were performing marriages without offering in the holy fire and without Brahmins; the
secularist leaders were acting as 'solemnizer' of marriage, called self-respect marriages ,
Such marriage got statutory recognition when the Tamil Nadu legislature passed Hindu
Marriage9 Act 1967,thereby declared that that the marriage in simple forms whether
8
9

www.indiatogether.com
{Madras Amendment}

13

called self respect marriage or not would be valid. A mere tying of Tali in presence of
friends, and relations amount to a valid marriage as per the amendment Act. A similar
kind of reformist and anti Brahmins movement started in Chapra District of Bihar by
social organization called Samajoddhar Sangh. This organization organized thousands of
social marriages without Brahmins and without performing essential ceremonies. In such
marriages the bride and groom garlands each other in presence of family, friends and
relations thereafter the member of Samajoddhar Sangh, who perform as solmnizer reads
out the Hindi translation of mantra of Saptapdi, and the marriage is complete. Unlike
Tamil Nadu there is no statutory sanction to such marriages, it is accepted by the society
of the area. Such marriages have been successful and there is no case of breakdown or
dissolution of marriage. The exclusion of Brahmins from the marriage ceremony in Sikh
and Arya samajist marriage has been recognized and alternative form of marriages has
been recognized by the statute. The aforementioned instances of non-performance of
essential ceremonies shows that the only remaining religious character of Hindu Marriage
is also diluting. A Samskara cannot be dissolve and hence a marriage though starts in
form of samskara, is capable of being ended by judicial divorce, is apparently no
samskara at all. Getting divorce is becoming easier day-by-day some time because of
legislative changes and some time because of judicial decisions. The following are the
three theory of divorce recognized by Hindu Marriage Act 1955:
(1) The guilt theory of divorce,
(2) The consent theory of divorce, and
(3) The irretrievably breakdown theory of divorce.
(1) Guilt theory of divorce: According to this theory of divorce, a marriage can be
dissolve if one of the spouse committed some matrimonial offences and The offences
must be one recognized by the law as a ground of divorce. Section 13 of Hindu
Marriage Act recognized nine grounds of divorce available to both the husband and
wife, and two additional grounds which available only to the wife. These grounds are
adultery, cruelty, desertion, conversion, insanity, leprosy, venereal diseases,
renunciation of the world, and presumption of death. The grounds available to the
wife are; husband is guilty of rape, sodomy or bestiality and bigamy. Out of these

14

grounds cruelty and desertion are most commonly used grounds of divorce, rather it
would be proper to say that these are most commonly misused grounds of divorce.
The combination of cruelty, desertion and mutual consent has bring the Hindu
marriage to such a situation where it has become a play thing in the hand of the
spouse, who can throw it whenever they so desire. The first step of a wife in case of
dispute with her husband is to file a complaint under Section 498A of IPC along with
a petition of divorce on the ground of cruelty and desertion, thereafter the game starts
and ultimately after pressure tactics and bargaining the game over with some lump
sum amount for wife and dissolution of marriage by mutual consent.
(2) Consent theory of divorce: According to this theory the basis of every
marriage is
mutual understanding and mutual fidelity between husband and wife .If both the
parties are of the view that mutual fidelity can not continue then they should have
freedom to dissolve the marriage by mutual consent. Section 13-B of the Hindu
Marriage Act provides that marriage can be dissolved by the court on a joint petition
of husband and wife on the ground that
(1) they have been living separately for a period of one year or more,
(2) they have not been able to live together, and
(3) they have mutually agreed that the marriage should be dissolved.
The expression 'living separately' only means not living as husband and wife. They
may live in the same room, yet living separately. What is required is that they have no
desire to perform matrimonial obligation. After filing of a joint petition for
dissolution of marriage on the ground of mutual consent, parties has to wait for a
period of six months from the date of filing of the first motion petition. There after
the parties to file second motion petition after six month but not later than 18 month
from filing of first motion petition. Marriage shall be dissolve by the court if the
petition is not withdrawn in the mean time .The waiting period of six month has been
provided with a view to give a chance to the belligerent spouses to re conciliate and to
save the marriage. However this waiting period of six month has been held to be
directory and not mandatory and hence can be waived. So now the Hindu Marriage

15

can be dissolved even on the same day when the first motion is filed, just the parties
has to show that the marriage has been broken down. Now the Hindu marriage, which
was an indissoluble union of husband and wife, subsist upon the will of the parties
and it can be said that that addition of provision of mutual consent is actually
deleation of sacramental feature of Hindu marriage.
(3) Break down theory of divorce
Breakdown theory of divorce has been recognized by Hindu Marriage Act by
incorporating Section 13 {1A}, Section 13{2}{III} and Section 13{2}{IV}. We have
already discussed these grounds above. However a new ground, which has been in
controversy in, is Irretrievable Breakdown of marriage 10. This is an emerging ground of
divorce in India. Since the Divorce under fault theory is available only when sufficient
grounds is proved whereas consent theory requires consent of both the parties, which may
not be possible some time. Hence divorce by mutual consent is either too easy or too
difficult. Some time there may be a case where relation of the parties has broken down to
such an extent that there is no chance of reconciliation as they have no relation whatever
from a long time, and they are also not ready for divorce by mutual consent, so in such a
circumstances continuing such relation is futile, so according to irretrievable breakdown
of marriage such marriage should be dissolve only on this ground alone. It has been
recognised as a separate ground of divorce by may countries. In India the Law
Commission in its 71st Report has recommended that irretrievable breakdown of
marriage should be a separate ground of divorce for Hindus. On the basis of this report,
the Marriage Law Amendment Bill 1981was introduced in Parliament, but it was allowed
to lapse due to opposition by some women organization. Dispite the rule that a marriage
can not be dissolve on any other ground other than the grounds given in the Hindu
Marriage Act, in Chandrakala Trivedi v S.P. Trivedi, the Supreme Court allowed the
marriage to dissolve on the ground that the marriage has been broken down irretrievably.
It was observed that it appears that a marriage in which the parties could no more live
together deserves to be dissolved. Following the decision in Chandrakala Trivedi case the
Supreme Court in Ramesh Chandra v Savitri laid down that if the marriage is broken
10

IBM
16

down both emotionally and practically, continuance of marital alliance for names sake is
prolonging the agony and affliction. It would be a cruelty. In this case the husband was
not dutiful. For about a decade the spouses were litigating each other. The only child born
was in service. The Supreme Court exercised the power under Article 142 of the
constitution and directed the marriage to be dissolved. Further in Ms Jorden Dinesh v
S.S. Chopra the Supreme Court suggested for a complete reform in the marriage law. The
court observed, "It appears to be necessary to introduce irretrievable breakdown of
marriage and mutual consent as ground of divorce in all cases. There is no point or
purpose to be served by the continuance of a marriage, which has so completely, and
signally broken down. We suggest that time has come for the intervention of legislature in
those matters to provide uniform code of marriage and divorce and to provide by the law
a way out of the unhappy situation in which couples like the present have found
themselves. In B.Bhagat V. D.Bhagat the Supreme Court held that irretrievable
breakdown of marriage is not a ground by itself to dissolve the marriage. In Savitri
Pandey v Prem Chandra Pandey observed that marriage between the parties can not be
dissolve only on the averment made by one of the parties that as the marriage between
them has broken down, no useful purpose would be served to keep it alive. The
legislature in its wisdom, despite observation of the court, has not thought it proper to
provide for dissolution of the on such averments. There may be case where, on facts it is
found that, as the marriage has become dead on account of contributory acts of
commission or omission of the parties, no useful purpose would be served by keeping
such marriage alive. The sanctity of the marriage cannot be left at whims of one of the
annoying spouse. Recently the Supreme Court in Shyam Sunder Kohli v Sushma Kohli
observed that courts should not grant divorce on the ground that marriage has been
broken down irretrievably, unless every avenue has been explored to see if it actually has.
The court said that it is only in the extreme circumstances that the court may use this
as ground for divorce.

Conflict between love and arranged marriage11

Love or arranged marriages is still a debatable topic in the Indian society. People
still debate on the issue, which one is better. What should be the basis of the marriage
11

www.indiatogether.com

17

love or social norms? We are still confused about these issues. Education and media
played a vital role in changing the perception of the Indian mind. As people started
thinking beyond the social customs and traditions of arranged marriages. They realized
that they have the right to choose their life partner without any kind of social pressure. It
is after all their life. They can decide without having to rely on parents, relatives and
matchmakers. This change in the mental set up of the people gave birth to love marriages.
Now in India people are open to love marriages. It is no more forbidden in the society. In
our country we are having both love and arranged marriages. If we start comparing love
and arranged marriages we will see that both has certain pros and cons. But the common
factor in both the concept is physical attraction. When a man and a woman go out on their
first date physical attraction is the deciding factor. Same in case of arranged marriage
where the relation starts only after the girl or boy likes each other. But there are certain
things, which are found in love marriages and not in arranged. Like spending time
together and getting to know each other. Because when you have decided to spend the life
together it is important you know the person. There should be metal compatibility and
understanding among both of you. And this happens when you spend time together. On
this people may argue that even after knowing each other for so long than why people get
divorced after marriage. It is because when two people are in love they are at their best to
impress each other. They behave, they talk and they wear what the other person likes. But
it is after marriage that you get to know the real person. There are couples who are still
discovering each other even after twenty years of their marriage. This is the actual beauty
of a relationship where everyday you discover a new thing about your partner.
In case of arranged marriages the relation starts when the girl and the boy get to know
each other in a couple of meeting before the final commitment. Before deciding anything
the parents check the family background and financial stability. Which is also very
important. As most of the people have an idea that those who go for arranged marriages
are not in an advantageous position but it's not so you may get the right person for whom
you have been waiting. Even in love marriages after many years of courtship people find
their partner not suitable and they break up. So it is not about spending time together but
successful marriage is all about understanding and respecting each other's feelings, love
and concern. It is argued that love marriages offer more independence and freedom as

18

compared to arranged marriages since both of them knows each other so the social
pressure and family pressure is less. If you know somebody before marriage it allows
partners to have better respect and understanding for each other's needs and desires. In
love marriages expectations are more compared to arrange marriages, as they know each
other and want their partner to act in the best possible manner.
Arranged marriages, offer more protection, security to the women. As the parents
decides the family. Parents make use of maturity and wise decision while choosing
suitable spouses for their children. The mature decision of parents sometimes helps to
make the right choice. But it doesn't mean that arranged marriages are ideal marriages.
Even in an arranged marriage there is a different sort of social pressure. Social evils like
dowry, caste system, matching of horoscopes and community issues are taken at such
extreme levels that people don't support arranged marriages. So whether it is love or
arranged ultimately it is up to the individual to decide, which one to go for. Love or
arranged both is based on empathy, responsibility, commitment, love and concern. So it's
not just about initial love and attraction it needs a lot of dedication and effort to sustain a
marriage. So there is nothing like an ideal marriage it's all about the way you perceive
your marriage. After all you should be happy with your life partner irrespective of love or
arranged marriage.

Conclusion
Marriage being the principal event of hindus life, and the future prospects of
himself, his family, and of his sub caste, being bound up with the alliance to a degree
unknown in most modern western countries, it is natural that marriages should be
arranged by parents and should be solemnized at a time convenient to the two families

19

rather than consistently with the couples own preferences,should these differ.early
marriages occour, eve those frowned up by law , sometimes these lead to tragedies , and
according to the traditional outlook a young bride should not be exposed to hazard merely
because of the youth, shyness, or ill health of her husband thus contrary to western usage
failure ,or even reluctance, to consummate the marriage by sexual intercourse is not fatal
to the full validity of the intention, once acknowledged and announced, as the foundation
of marriage
In Hindu law, marriage is considered as a sacrament, which was an indissoluble union of
a man and a women forever, but the society has changed by the passage of time and so
the concept of marriage and it has now become akin to a civil contract. The modern
concept of marriage as a contract is an outcome of industrial revolution, of its lofty ideals
of liberty and equality. Vyavastha Chandrika12 laid down that marriage among Hindus
though essentially a sacrament partakes also the nature of a contract. A contract is an
agreement enforceable by law .An agreement becomes a valid contract if it is made by
the parties competent to make a contract for some consideration with free consent and for
a lawful object .The Hindu marriage contains almost all essential of a contract. In every
marriage there is always a proposal to marry and its acceptance by the parties. In case of
an arrange marriage generally family members of bride go to the house of the bridegroom
with a proposal of marriage, which generally contains the implied consent of bride and
when it is accepted by the family of bridegroom, either with express or implied consent
of the bridegroom, it becomes a contract to marry. The agreement to marry is further
confirmed by the bride and bridegroom at the time of ceremony of Sagai when the bride
and bridegroom exchange gifts and put ring to each others finger. Some time education,
personality, professional skills may be consideration whereas some time status of family,
wealth of the family and its position in the society may be consideration for a valid
marriage. Because giving and taking dowry is illegal, some time people adopt a method
of exchange of bride and bridegroom between two families in marriage. One family gives
girl to other family and in consideration takes girl of that family as bride for its boy. In
case of a love marriage we can say that love and affection to each other, mutual fidelity
and cohabitation between the parties are consideration. So far as capacity to contract is
12

Vol.II. P.432

20

concerned Section 11 of the Indian Contract provides that every person is competent to
contract who is the age of majority as per law and who is of sound mind, and not
disqualified from contracting by any law to which he is subject. Section 5{III} of Hindu
Marriage Act 1955 requires that at the time of marriage the bridegroom has completed the
age of 21 years and bride has completed 18 years of age. This section also requires that at
the time of marriage neither party should incapable of giving a valid consent in
consequence of unsoundness of mind. According to Indian Majority Act 18 years of age
is the age of majority. Thus the basic idea of the Hindu Marriage Act is that parties should
be major at the time of their marriage, so that they can able to give consent to the
marriage. The marriage in contravention of Sec.5 {II} and {III} is not void under the Act,
it renders such marriages voidable. Marriage of a minor is valid marriage under the Act.
Generally agreement of the marriage of a minor child is made by the guardian of the child
and such contract is prima facie for the benefit of minor and it can be kept in category of
beneficial contract which is valid even in absence of a valid consent. Section 12{1}{c} of
Hindu Marriage Act requires that where consent of either party to the marriage or the
consent of the guardian, whenever necessary, is obtained by force or fraud the marriage is
void able hence this provision confirms provision of contract Act that the parties should
enter into contract with free consent.thus it can safely concluded that contract of hindu
marriage being sacrament has taken contractual form and shade

21