Since time immemorial marriage is referred to as the most important institution of human society. In Hinduism marriage is considered a very sacred and pious union. It is considered as an important social institution between two families rather than between two individuals marking the new beginning in the life of both the bride and groom. Ancient scripture like the Vedas has laid down the importance of marriage in a person’s life. Hindu Marriage.
Introduction
Marriage has been considered as one of the essential Sankaras (Sacrament) for every Hindu as per Shastric Hindu Law[1]. The sacramental aspect of Hindu marriage has three attributes: (1) It is considered as a sacred union i.e., it is meant to perform religious and spiritual duties and not to satisfy one’s physical needs; (2) “a sacred union” here implies that a marriage once entered into cannot be dissolved; (3) “a sacramental union” also refers to the union of body, mind, and the soul. It is a union for not only this life but for all lives to come. It is a union for not only this world but also for other worlds[2].
Many rituals are performed during an Indian marriage and each ritual has its own significance. But the most important ritual of every Hindu marriage is Sindoor Dana; here the groom puts Sindoor (red vermilion powder) on his bride’s hair partition in some places this ritual is performed by the groom’s mother to welcome the bride into their family and other one includes tying of a necklace made up of the black beads around bride’s neck by the groom thus, signifying the marital status of the bride. This institution of marriage is protected by both society and the Indian legislation. In India, the institution of marriage is protected under the Hindu Marriage Act 1955.
Indian society is predominantly patriarchal with strict gender roles, where the role of women is passive while the husbands play an active and dominant role. A woman is tied to various rules created by society for her well being. The onus of prejudice against women falls upon our patriarchal society which includes us all. A change can only be brought about when we amend our viewpoint about women and look towards her beyond her face, her curves, and her luscious long hair. A woman is a mother, a sister, a friend, a daughter, and a teacher – respect for the female gender shall come from within[3]. Even today, when the society has progressed people regardless of their educational status are exactly where they have always been. Whereas women have progressed in all spheres and this aspect leads to domestic conflicts from time to time.
Case
The Bombay High Court in this regard has quashed the decree of divorce in the case of Nitin Omprakash Agarwal v. Rekha Agarwal. This was an appeal case from the family court of Nagpur which allowed the petition by the respondent seeking restoration of conjugal rights. The respondent woman was earlier married to another man and later divorced, though she continued to stay with him in the interest of her two children. Later she met the appellant and fell in love with him. The appellant ‘married’ her by putting Mangalsutra and applying Sindoor (vermilion) on her forehead before the idol of Lord Krishna.
The court observed that as per the provisions of the Hindu Marriage Act 1955, a Hindu wedding must be performed as per ceremonies, rites, and rituals recognized by either of the parties. According to Section 7 of the Hindu Marriage Act,1955 following ceremonies can be performed to validate a marriage between two Hindus-
- A Hindu marriage shall be solemnized in accordance with the customary rites and ceremonies of either party thereto.
- Where such rites and ceremonies include the Saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes binding between the bride and the groom when the seventh step is taken. Section 7A (Pondicherry State Amendment) has further laid down other ceremonies that are accepted in a Hindu marriage. These are as follows-
(a) By each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or
(b) By each party to the marriage garlanding the other or putting a ring upon any finger of the other; or
(c) By the tying of the Mangalsutra (Thali). [4]
This act gives importance to the concept of Saptapadi which is considered as the most important rite in a Hindu marriage ceremony. The word “Saptapadi” is a Sanskrit word which translates to “Seven Steps”. It refers to taking of seven steps by the newlywed couple around the holy fire after tying Mangalsutra. It is only after the seventh step, that the couple is legally considered to be husband and wife. [5]
Revision of Women’s Legal Age for Marriage
In the case of S. Nagalingam v. Sivagami the court observed that Saptapadi is essential to validate a Hindu marriage and as per Section 7 of the Hindu Marriage Act, a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptapadi, the marriage is deemed to be complete and binding only after the seventh step is taken. It further stated that Saptapadi is essential to validate a Hindu marriage but in certain cases, Saptapadi does not form an essential part of Hindu marriage, in those cases the provisions contained in Section 7A of Hindu Marriage Act 1955 are applicable[6]. Section 7A provides for a particular kind of marriage called “Suyamariyathai” (self-respect) marriages among two Hindus. The main idea behind the insertion of Section 7A was to include the various forms of marriage that have traditionally existed within the Hindu religion depending on the area and the prevalent custom.
Hindu Marriage
Further, in the case of Bhaurao Lokhande v. State of Maharashtra and another, the Hon’ble Apex court has discussed in length the meaning of the term ‘solemnize’. The court referred the Oxford short dictionary and discussed the dictionary meaning of the term wherein it is stated that in connection with a marriage, ‘to celebrate the marriage with proper ceremonies and in due form. Therefore it is clear that unless the marriage is performed using proper ceremonies and in due form, it cannot be said to be solemnized. Thus, the ceremonies which are claimed were not prescribed by law or approved by custom and therefore the marriage does not come within the purview of Section 7 of the Hindu Marriage Act. [7]
However, the Apex court in many cases has stated that in the matter of custom a party has to plead in specific terms as to what is the custom that he is relying on and he must prove the custom pleaded by him. He cannot be permitted to prove a custom not pleaded by him. [8]
A very recent Judgment delivered by Guwahati High Court in the case of Sri Bhaskar Das V Smt. Renu Das has seen mixed responses from people across the country. The judgment which was delivered by Chief Justice Ajai Lamba and Justice Soumitra Saikia granted divorce to a man observing that the refusal to wear “Shakha” (a bangle made of conch shells) and “Sindoor” as per customs by a Hindu married woman signifies her refusal to accept the marriage. [9]
Wearing Mangalsutra or Sindoor is a custom that has been followed for ages and therefore it could be treated as a pointer to ascertain whether a woman is interested in the marriage or treats the marriage as valid. The court is not completely wrong in using it as a pointer especially because during the cross-examination it was specifically stated by the wife that she doesn’t wear Shakha and Sindoor because she does not consider him as her husband. However, it is a very parochial way of looking at a marriage especially during the 21st century where women empowerment is in trend.
Summing up, every case has its own set of facts and circumstances. In some cases, it may come as collateral evidence in any proceeding for Divorce or Restitution of conjugal rights. Therefore while judging the relationship between two persons, there is no tailor-made approach that can be applied. The court’s inquiry should always be based on the cultural and mental set up of the parties. Legally speaking, under Section 7 of the Hindu Marriage Act,1955 a Hindu marriage is deemed to be legally valid when the seventh step of the ‘Saptapadi’ is taken by the Bride and the Groom. Therefore the law doesn’t mandate putting ‘Sindoor’ and ‘Mangalsutra’ and thus it cannot be considered as an integral part of a valid Hindu marriage but owing to India’s rich cultural history, putting ‘Sindoor’ and ‘Mangalsutra’ is considered as an important ritual in any Hindu marriage.
Endnotes
1 Diwan P, Diwan P. Modern Hindu Law. Allahabad: Allahabad Law Agency; 2008. [Google Scholar]
2 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3705690/
3 https://thelogicalindian.com/news/mangalsutra-sindoor-divorce/
4 Hindu Marriage Act 1955, § 7, https://indiankanoon.org/doc/358783/
5 Nitin Omprakash Agarwal v. Rekha Agarwal, fca.57.15, https://indiankanoon.org/doc/112701761/
6 S. Nagalingam vs Sivagami, AIR 2001 SC 3576, https://indiankanoon.org/doc/1386675/
7 Bhaurao Lokhande v. State of Maharashtra and Others, AIR 1965 SC 1564,
https://indiankanoon.org/doc/1630427/
8 Konchan Kani v. Mathevan Kani, 1971(2) SCC 345, https://indiankanoon.org/doc/486410/
9 Shri Bhaskar Das v. Smt. Renu Das, Mat.App. 20/2019, https://indiankanoon.org/doc/18530566/
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Pritha Lahiri and Khushi Kabra | Institute of Law, Nirma University