Introduction
Various dharma texts of Hindu religion such as Manu-Smriti and the Vedas, mention 8 different forms of marriages in the Hindu religion. The different forms of Hindu marriages have not been specified in the central legislation called The Hindu Marriage Act, 1956 which governs Hindu marriages. However, these forms of marriages are still present and defined in the law as ‘customs’ which has been given a legal status under Sec. 3(a) of The Hindu Marriage Act, 1956.
Marriage in Hindu religion is a sacrosanct (sacred) and holy union of 2 individuals. There are various ceremonies, according to different castes, that are essential for a marriage to become solemnized (official). Some of these ceremonies and traditions are now codified into the Indian legal system as customs.
However, for a certain ceremony, practice or a form of marriage to be a custom as per the law, it should have been uniformly and continuously observed for a very long time and it should not be unreasonable or opposed to public policy.
In this article, the author discusses the various approved and unapproved forms of marriages and their legal standing in the present times. The opinions of various Indian courts on different forms of marriages have also been discussed.
Forms of marriage and problems
The normative texts, dharma texts and some Gṛhyasūtras classify marriage into eight different forms which are Brahma, Daiva, Arsha, Prajapatya, Asura, Gandharva, Rakshasa, Paishacha. This order of forms of marriage is hierarchical.
Even the Supreme Court of India in Koppisetti Subbharao vs the State Of A.P, recognized the existence of 8 forms of marriage given by Aryan Hindus.
The eight forms are divided into 2 categories of approved and unapproved forms of marriage.
Approved forms
Brahma, Daiva, Arsha and Prajapatya come under the approved forms of marriage. These marriages involve the exchange of gifts, the “gift of a maiden” (kanyādāna). Brahmins, according to the dharma texts, have the duty to accept gifts. Therefore, the first four marriage types are generally pronounced legal for Brahmins.
In S. Authikesavulu Chetty vs S. Ramanujam Chetty And Anr., two precedents were set:
1. Firstly, in a case where there is no proof to the contrary, it must be presumed that the marriage is in one of the approved forms.
2. Secondly, another question arose, who will be the heir of the property of a childless mother? It was held that the property of a childless woman married in one of the four approved forms will go to her husband after her death.
Brahma
‘Brahma’ is one of the most practised forms of marriage in India and has the most supreme position out of all the eight forms of marriage. Manu-Smriti has also laid great importance on this form of marriage.
The Brahma marriage, in dharma texts, has been explained as the gift of a daughter, after being decked with ornaments and honoured with jewels to a man selected by the father himself and who is learned in Vedas is called the “Brahma marriage”.
The “Brahma” marriages are the rituals of the Brahmans who according to Manu-Smriti have the duty to accept gifts.
The Supreme court in Reema Aggarwal vs Anupam And Ors, 2004 discussed the possibility of Brahma marriage being the origin of the dowry system in India but didn’t come to a conclusion regarding it. According to the author, “Brahma” marriages do not give rise to dowry cases because the father of the girl himself voluntarily gives gifts to the bridegroom. There is no external pressure from the bridegroom according to the Manu-Smriti. However, in practicality, the bridegroom may use the custom of “exchanging gifts” for harassing and pressurising the bride and her parents to give dowry. Also, According to Manu, the son of a wife married according to Brahma rites liberates ten ancestors and descendants.
Daiva
Daiva-vivāha means ‘marriage related to the rite of the gods’. In this form of marriage, unlike Brahma, the father gives away his daughter to a priest as a Dakshina (sacrificial fee) for officiating in the sacrifice conducted by the father of the bride.
In this form of marriage, the groom doesn’t come looking for a bride, the parents of the bride go looking for the groom for her daughter.
This form of marriage is considered inferior to the Brahma marriage because, in Daiva, the father derives a benefit by using her daughter as a sacrifice and also because it is considered degrading for women to go looking for a groom.
According to Manu, the son of a wife married according to Daiva rite liberates seven of their ancestors and descendants.
Arsha
The third form of approved marriage, that is Arsha Marriage, suggests marriage with Rishi or sages. This is different from Brahma and Daiva forms of marriage because, in Arsha, the father of the bride doesn’t have to give anything to the bridegroom. In the Arsha, the father of the bridegroom is the one who gives 2 cows or bulls to the father of the bride.
Marriages of this type happen because the parents of the girl couldn’t afford the expenses of their daughter’s marriage at the right time according to the Brahma rite. So it is presumed that the girl is married off to an old rishi or sage in exchange for 2 cows.
Sir Gurudas Banerjee (also known as Gooroodas Banerjee), a Bengali Indian Judge, believed that this form of marriage indicated the pastoral state of Hindu society, where the cattle was considered as the monetary consideration for the marriage.
However, this form of marriage was not considered noble as the marriage was treated as a business transaction where the bride was exchanged for cows and bulls.
According to Manu, the son of a wife married according to arsha rite liberates three ancestors and descendants.
Prajapatya
Prajapatya form of marriage is similar to Brahma form of marriage except there is no trading or Kanyadan in Prajapatya and the father of the bride searches for the groom. Because of these differences, Prajapatya is inferior to Brahma.
In this form of marriage, the father while giving away her daughter addresses the couple with a condition that both the bride and bridegroom may perform their dharma together.
The basic condition requested by the father of the bride is that the bridegroom must treat the bride as a partner and fulfil their religious and secular duties together.
According to Manu, the son of a wife married according to prajapatya rite liberates six ancestors and descendants.
Unapproved forms
Asura, Gandharva, Rakshasa and Paisacha come under the unapproved forms of marriage. According to Rajbir Singh Dalal vs Chaudhari Devi Lal University, 2008, the property of a childless woman married in one of the unapproved forms goes to her family rather than her husband.