MARRIAGE: A SOCIO-LEGAL INSTITUTION

Subject:
Family Law – I

Submitted to:
Prof. (Dr.) Vijender Kumar

Submitted by:
XYZ
1st Year 2nd Semester

NALSAR University of Law, Hyderabad

 TABLE OF CONTENTS
Table of Cases ............................................................................................................... iii
Table of Statutes ........................................................................................................... iv
Table of Abbreviations .................................................................................................. v
INTRODUCTION
Research Objectives ....................................................................................................... 1
Research Questions ........................................................................................................ 1
Research Methodology .................................................................................................. 1
Research Scope and Limitations .................................................................................... 1
CHAPTER-I
HISTORICAL PERSPECTIVE OF THE CONCEPT OF MARRIAGE
1.1 Introduction
1.2 Historical Perspective of the Concept of Marriage under Hindu Law
CHAPTER-II
EVOLUTION OF THE INSTITUTION OF MARRIAGE
2.1 Origin of the Concept of Marriage........................................................................... 4
2.2 Before the Codification of Hindu Law .................................................................... 6
2.3 After the Codification of Hindu Law ....................................................................... 8
CHAPTER-III
THE SOCIAL INSTITUTION OF MARRIAGE
3.1 Concept of Family.................................................................................................. 10
3.2 Why is marriage needed......................................................................................... 10
3.3 Rights and Obligations involved in Marriage ........................................................ 12
3.4 Breakdown of the Marital Tie ................................................................................ 13
CHAPTER - IV
CONCLUSION AND SUGGESTIONS
BIBLIOGRAPHY ................................................................................................v
List of Articles ............................................................................................................... v
List of Books .................................................................................................................. v
List of Websites ............................................................................................................. v

ii
 TABLE OF CASES

A-Plaintiff v B-Defendant.............................................................................................. 2
Bai Gulab v Jiwanlal ...................................................................................................... 8
Bai Kashi v Jamnadas .................................................................................................... 8
Chinna Perumal v Vinayagathammal .......................................................................... 13
Inderun Valungypooly v Ramaswamy Talaver ............................................................. 8
Kashi Nath v Bhawan Das ............................................................................................. 8
Katee Ram v Mt. Gendhenee ....................................................................................... 13
Kaura Devi v Indra Devi ................................................................................................ 8
Khudiram v Bonwarilal................................................................................................ 13
Lakshmi v Kalian Singh................................................................................................. 8
Makhana Katani v Thaneshwar ..................................................................................... 8
Malla Reddy v Subbamma ............................................................................................. 2
Manni Lal v Shiama ....................................................................................................... 8
Nalinaksha v Rajanikanta .............................................................................................. 8
Natha v Mehta Chhotalal ............................................................................................... 8
Navnit Lal v Purushotam ............................................................................................. 13
Re Dhuronidhur ........................................................................................................... 13
Sadagopa v Bakthavatsalam .......................................................................................... 8
Santosh Ram v Gera Pattuck........................................................................................ 13
Sitaram v Abeeree ........................................................................................................ 13
Tekait v Basanta ........................................................................................................... 13

iii
 TABLE OF STATUTES
Hindu Widow’s Remarriage Act 1856………………………………………………...8
Special Marriage Act 1872.. ………………………………………………..................8
Hindu Marriage Disabilities Removal Act 1946………………………………………7
Hindu Marriage Validity Act 1949………………………………………………........7
Hindu Marriage Act 1955………………………………………………...................7,8

iv
 TABLE OF ABBREVIATIONS
AIR : All India Report
Bom. : Bombay
Cal. : Calcutta
Ed. (s) : Editor (s) or edited or edition
E.G. : “Exempli gratia”; for example
Ibid : ‘Ibidem’; same as above
Id : Same as second previous
P :Page number
Rev. : Revised
S. : Section
SC : Supreme Court
V. : Verses

v
 INTRODUCTION
The research paper discusses about the concept of the institution of marriage as
perceived by the Hindu law in India. The concept of marriage first came up during the
pre-ancient times as evident from the Vedic texts. The institution of marriage had
retained its sacramental nature until recent past. A major change came about after the
codification of the Hindu law in the 20th century, which primarily changed the nature
of marriage from a pure and eternal sacrament to a partial social contract. But even
after the codification of Hindu law, marriage has successfully retained its social value.
It is a socially accepted institution with three main objectives, i.e., Dharma, Progeny
and Sexual Pleasure.
Research Objective
Through this research paper, the researcher has tried to delve into the debate as
to whether marriage as an institution deals only with the personal desires of the
parties to marriage or does the concept of ‘marriage’ encompasses within itself an
institution much deeper and complex than that.
Research Questions
The research paper tries to answer the question regarding the nature of Hindu
marriage, i.e., it deals with the debate addressing as to whether it is a sacramental
union of two people or a contract between two parties. It also delves into the
importance of marriage as an institution in the society and the need for it to stay
intact.
Research Methodology
The researcher has used the doctrinaire or principled approach to research for
the paper. For the purpose of research, the researcher has referred to various books,
journals, articles and websites to gather information regarding the sociological aspects
of marriage to determine the nature, function and importance of the institution of
marriage in one’s life and the society as a whole.
Research Scope and Limitations
Since, the presented research work deals with the concept of marriage as
prevalent at different points of time, beginning from the pre-Vedic times till the
present time, it encompasses various views and perspectives from which the
institution of marriage has been understood and analysed.

1
 CHAPTER-I
HISTORICAL PERSPECTIVE OF THE CONCEPT OF MARRIAGE

1.1 Introduction
Before the development of the institution of marriage, man and woman lived
together, procreated children and died unwept and unsung. Their sexual relations were
like birds and animals of momentary duration.Marriage as an institution slowly
developed over time. Marriage as a concept focused on regulating the sexual behavior
of people restricting it mainly to the person one is married to. This may have been in
order to eliminate social stress due to the sex rivalry. It also focused on legalizing the
procreation and maintenance of children born out of wedlock.
Under Hindu law, the marital relationship is considered to be sacramental and
not contractual, i.e., it does not rest on the contract entered into between the bride and
the bridegroom. On the contrary, marriage among Hindus is an effect of the
ceremonies performed according to the prescribed Vedic rituals and Mantras. Hence,
a Hindu marriage is a sacrament based upon sacred religious ceremony.
While this view is widely accepted and supported by most scholars, in some
recent judgments judges have suggested that it may also be a civil contract. inA-
Plaintiff v B-Defendant1, Tendolkar, J, quoted,
It (Hindu marriage) is also a civil contract for there is Kanyadana which
is a gift.
Similarly, in Malla Reddy v Subbamma,2 it was said that :
Marriage also partakes of a civil contract made by the spouses or by
their parents if they are minors and an essential part of the marriage
ceremonial is the gift of the bride either free as in the case of Brahma
marriage or for money as in the case of Asura marriage.
Similarly, there have been various instances where the learned judges have
supported the view that marriage is completely a civil contract. They support this
view by stating that Kanyadana can be treated as consideration for the contract. But
they fail to see that the gift is not based upon contract at all. This is so because even if
it is treated as a consideration, many times the done may not be a person eligible to
contract. Also, the Kanyadana is a ceremony, which only signifies the end of
dominion of the bride’s father over her and invests it into the hands of the

1 AIR 1952 Bom 486.

2 AIR 1956 AP 237.

2
bridegroom 3 Keeping these things in mind, it can be clearly stated that Hindu
marriage is not a civil contract. Rather, it is a sacramental and eternal bond between
two individuals.

3 T.V. Subba Rao and Vijender Kumar (rev.), G.C.V. Subba Rao, FAMILY LAW IN INDIA, 9 th ed.
2007, pp. 143-144.

3
 CHAPTER-II
EVOLUTION OF THE INSTITUTION OF MARRIAGE
2.1 Origin ofthe Concept of Marriage
Though there is no clear evidence as to when the institution of marriage was
first conceptualized but there have been few texts, which point to that matter. One of
such texts is that of the Mahabharata according to which, in ancient pre-Vedic times
there existed a situation where men and women behaved like birds and beasts 1
Mahabharata talks about when the institution of marriage was actually
conceptualized. It provides us with an instance where during the Adiparva, Yudhishtra
attributes the existence of the concept of marriage to King Svetaketu, who was the
first one to license marriage as a prerequisite to procreation.2
On the other hand, the Vedic texts do not provide for any specific details as to
the conceptualization of marriage. According to the Vedic texts, marriage was a well-
established institution since the Rig Vedic age and the Aryans had a strict
interpretation of the ideal of marriage.3 The text clearly states that monogamy was the
only approved and accepted form of marriage, though it does not exclude the
existence of polygamy as an aberration. Though monogamy was the approved rule, a
man was allowed to have several wives but a woman was prohibited from having
more than one husband.4 The Vedic society was strictly patriarchal i.e. the kinship
was traced through males only. This was so because of the religious system according
to which the deceased male ancestors to the remotest degrees were supposed to be
worshipped. The female ancestors were only worshipped in conjunction with their
deceased husbands.5
In the Vedic period, the sacredness attached to that of the marriage was very
high and the woman once given in marriage was given a highly honored position in
the family.6 Once married, the woman became the mistress in her husband’s home
and where she was the wife of the eldest son of the family; she exercised authority

1 Rangnath Mishra and Vijender Kumar (rev.), John D. Mayne, TREATISE ON HINDU LAW &
USAGE, 16thed. 2009, p. 98.
2 Vijender Kumar, “CONCEPT OF MARRIAGE UNDER HINDU LAW: A CRITIQUE”, Family
Law-I Module, Nalsar Law University, p. 17.
3 Rangnath Mishra and Vijender Kumar (rev.), John D. Mayne TREATISE ON HINDU LAW &
USAGE, 16th ed. 2009, p. 96.
4 Ibid.
5 Id.
6 Vijender Kumar, “CONCEPT OF MARRIAGE UNDER HINDU LAW: A CRITIQUE”, Family
Law-I Module, Nalsar Law University, p. 17.

4
over her husband’s brothers and his unmarried sisters. She was associated with all
religious offerings and rituals with her husband.7
Since the marriage was considered to be highly sacred, the chastity of women of
all the four castes was carefully protected and respected, though the degree of
punishment depended to some extent, upon the caste of the offender. Adultery was
deemed to be a serious offence and a severe sin on the part of both the wife and the
adulterer. Both were punished with severity and were made to expiate their sins by
appropriate penances. While, the unchaste wife was made to expiate by depriving her
of authority in her husband’s house and by providing her with bare maintenance, both
the adulterer and the son born out of adulterous wife or widow were excluded from
social intercourse as well as from invitations to Sraddhasor ceremonies.8
According to various texts, there were eight different types of Hindu marriages
prevalent in ancient India. Although not all the eight marriages had a religious
sanction attached to them. While the approved forms consisted of Brahma, Daiva,
Arshaand Prajapatya, the unapproved forms consisted of Asura, Gandharva,
Rakshasa and Paishacha.9
1. Brahma marriage: Brahma marriage is the marriage between an eligible boy who
has completed his Brahmacharya and is a man learned in the Vedas with an
eligible woman.10 The daughter after decking her with ornaments and honoring her
with jewels is gifted by the father to the bridegroom, thereby putting an end to his
dominion over his daughter.11
2. Daiva Marriage: In this type of marriage, the girl's family waits for a particular
time, to get her married. If they do not find a suitable groom for their daughter,
then they marry her to a priest, who conducts sacrifices. According to the sastras,
Daiva marriage is considered inferior to Brahma marriage, because it is considered
degrading for the womanhood.12

7 Rangnath Mishra and Vijender Kumar (rev.), John D. Mayne TREATISE ON HINDU LAW &
USAGE, 16th ed. 2009, p. 97.
8 Ibid at p. 99-100.
9 Satyajeet Desai (rev.), D.F. Mulla, PRINCIPLES OF HINDU LAW, Vol. I, 20th ed. 2007, p. 749.
10 Subhamoy Das, “Types of Hindu Marriage: The 8 Kinds of Marriage As Described by Manu”,
http://hinduism.about.com/od/matrimonial1/a/typesofmarriage.htm (last visited on November 14,
2016).
11 T.V. Subba Rao and Vijender Kumar (rev.), G.C.V. Subba Rao FAMILY LAW IN INDIA, 9 th ed.
2007, p. 178.
12 Jayaram V, “Hinduism And Marriage”, http://www.hinduwebsite.com/hinduism/h_marriage.asp.

5
3. Arsha Marriage:In Arsha marriage the girl is married to the sages or rishis in
exchange of two cows, received from the groom. The cows, which were taken in
exchange of the bride, shows that even the groom do not have any remarkable
qualities.13
4. Prajapatya Marriage: Unlike the Brahma marriage, here, the bride's father goes in
search for a groom for his daughter. The Brahma type is considered better than
Prajapatya, because in the former, the groom's family goes out to seek a suitable
bride for their son.14
5. Gandharva Marriage:In Gandharva marriage the bride, with her own consent, gives
herself to the bridegroom, without the knowledge of their parents. It is not
considered a right kind of marriage, as it is done without the consent of the
parents.15
6. Asura Marriage: In the Asura marriage, the bridegroom gives some consideration
to the bride’s father which ceases his dominion over his daughter by his sale of the
daughter to the bridegroom.16
7. Rakshasa Marriage: Rakshasa marriage is nothing but abduction of the bride from
her parental home to tie the marital knot. Since forcible methods are used by the
groom to tie the wedding knot, it is condemned by both Manu and Narada.17
8. Paishacha Marriage:Paishacha marriage is considered as the inferior type of
marriage, because the girl's wish is not considered and she is forced to marry. In
this kind of marriage, men used to seduce women while she was asleep,
intoxicated or insane.18
2.2 Before the Codification of Hindu Law
According to Hindu text, marriage is a sacramental relationship of husband and
wife, which is established exclusively by the performance of some religious
ceremonies and rites. Marriage, among Hindus, is not just a contract entered into by
the two parties.it is much more than that. According to Hindus:

13 Subhamoy Das, “Types of Hindu Marriage: The 8 Kinds of Marriage As Described by Manu”,
http://hinduism.about.com/od/matrimonial1/a/typesofmarriage.htm.
14 T.V. Subba Rao and Vijender Kumar (rev.), G.C.V. Subba Rao FAMILY LAW IN INDIA, 9 th ed.
2007, p. 179.
15 Jayaram V, “Hinduism and Marriage”, http://www.hinduwebsite.com/hinduism/h_marriage.asp.
16 Subhamoy Das, “Types of Hindu Marriage: The 8 Kinds of Marriage As Described by Manu”,
http://hinduism.about.com/od/matrimonial1/a/typesofmarriage.htm.
17 T.V. Subba Rao and Vijender Kumar (rev.), G.C.V. Subba Rao FAMILY LAW IN INDIA, 9 th ed.
2007, p. 179.
18 Jayaram V, “Hinduism and Marriage”, http://www.hinduwebsite.com/hinduism/h_marriage.asp.

6
 “… the status of wife is acquired only by the Praigrahanika mantras of
which, as the wise and learned have indicated, the limit is the ceremony of
Saptapadi.”19
Thus, marriage is the result of the utterance of the sacred mantras and hence, it
is regarded as a sacramental marriage. There are two ceremonies in the ritual of
marriage, which are essential, Kanyadanaand Saptapadi.20 Kanyadana is the gift of
the bride to the bridegroom, which puts an end to the dominion of the genitive family
over the girl. And Saptapadi is circumambulation of the sacred fire with the bride and
bridegroom pronouncing certain Mantras and pledging mutual fidelity with the Agni
or sacred fire as witness. Since, the Hindu marriage is created by mantras, it can be
dissolved only by other mantras. Since, no such mantras exist, the Hindu marriage is
indissoluble.21
Yajnavalkya states the conditions necessary for a valid Hindu marriage in the
chapter dealing with marriage. The conditions include that: 1) The bride should not be
the Sapinda of the bridegroom. 2) She should be separated by seven degrees on the
father’s side and five degrees on the mother’s side. 3) She should not have the same
Gotra or Parvara as the bridegroom. 4) She should not have been married to another
earlier.22
Marriage leads to change the Gotra of the woman given in marriage. As a result
of marriage the bride is transferred to the Gotra of her husband. When the husband
dies, she continues in the Gotra of her husband. The Smritis do not contemplate the
re-marriage of a widow. As Manu puts it:
“A second husband is not ordained for a virtuous woman”.23
One of the conditions for marriage mentioned by Yajnavalkya is that the bride
should be AnanyaPurvika, i.e. she should not be married to another previously. 24
Thus, there was no concept of widow remarriage.
Till 1955, though monogamy was the accepted rule, polygamy has existed as an
25
aberration to this rule. However, in cases of polygamy, peculiar

19 T.V. Subba Rao and Vijender Kumar (rev.), G.C.V. Subba Rao, FAMILY LAW IN INDIA, 9 th ed.
2007, p. 19.
20Ibid at p. 173.
21 Id at p. 144.
22 T.V. Subba Rao and Vijender Kumar (rev.), G.C.V. Subba Rao, FAMILY LAW IN INDIA, 9 th ed.
2007, p. 162.
23Ibid at p. 156.
24Rangnath Mishra and Vijender Kumar (rev.), John D. Mayne, TREATISE ON HINDU LAW &
USAGE, 16th ed. 2009, p. 156.

7
sanctitywasattributed to the first marriage. The first married wife has precedence over
the others and her first-born son over his half-brothers.
Ancient texts prohibited Prathiloma marriages, i.e. between males of lower
caste and females of higher caste. Accordingly, such marriages have been held by
court to be invalid. 26 However, Anuloma marriages, i.e. between females of lower
caste and males of higher caste were permitted and recognized by the texts.
Accordingly, such marriages have been held to be valid27 and the son born out of such
a marriage is legitimate.28
2.3 After the Codification of Hindu Law
Before the Hindu Marriage Act 1955, a marriage between persons belonging to
the same caste or same Gotra was considered to be invalid. But after the Act of 1955,
a marriage between persons belonging to different sub-divisions of the same caste is
valid. 29 This was first embodied in the Hindu Marriage Disabilities Removal Act
1946, and then subsequently in the Hindu Marriage Validity Act 1949. Both these
Acts were later repealed by Section 30 of the Hindu Marriage Act 1955, and their
provisions are now embodied in Section29(1) of the Hindu marriage Act 1955. 30
Section 3 of the Hindu Marriage Validity Act 1949 laid down that no marriage
between Hindu shall be deemed to be invalid or ever to have been invalid by reason
only of the fact that the parties thereto belong to different religions, castes, sub-castes
or sects, where different religion only includes those who come under the purview of
the Act. The objective of the Act was not to regularize the status of husband and wife
but to confer legitimacy on the children born of the validated marriages.31
The Hindu Widow’s Remarriage Act 1856 permitted the remarriage of a widow.
Even the problem related to the Gotra of the woman while remarriage has been
removed by the Hindu Marriage Act 1955,32 which permits Sagotra marriages.

25Rangnath Mishra and Vijender Kumar (rev.), John D. Mayne TREATISE ON HINDU LAW &
USAGE, 16th ed. 2009, p. 155.
26Lakshmi vKalian Singh (1900) 2 Bom LR 128; Bai Kashi v Jamnadas (1912) 14 Bom LR 547;
Manni Lal v Shiama AIR 1926 All 656.
27 Bai Gulab v Jiwanlal AIR 1922 Bom 32; Nalinaksha v Rajanikanta AIR 1931 Cal 714;
MakhanaKatani v ThaneshwarAIR 1956 Assam 11.
28Natha v Mehta Chhotalal AIR 1931 Bom 89.
29InderunValungypooly vRamaswamyTalaver (1869) 13 MIA 141, pg 15-59; Kashi Nath v Bhawan
Das 1947 All 578; Kaura Devi v Indra Devi AIR 1943 All 310.
30Satyajeet Desai (rev.), D.F. Mulla, PRINCIPLES OF HINDU LAW, Vol. I, 20th ed. 2007, p. 756-
757.
31Sadagopa v Bakthavatsalam AIR 1964 SC 1126.
32 T.V. Subba Rao and Vijender Kumar (rev.), G.C.V. Subba Rao FAMILY LAW IN INDIA, 9 th ed.
2007, p. 156.

8
 Also, marriages contracted by Hindus were necessarily made monogamous by
nature underSections 15 and 16 of the Special Marriage Act 1872 and Section 5(i) of
Hindu Marriage Act 1955.33

33Rangnath Mishra and Vijender Kumar (rev.), John D. Mayne, TREATISE ON HINDU LAW &
USAGE, 16th ed. 2009, p. 156.

9
 CHAPTER-III
THE SOCIAL INSTITUTION OF MARRIAGE
3.1 Concept of Family
Family is a biological unit regularizing the sex relationship and emotional and
psychological intensities bind its members. The relationship among the members of
the family is based upon consanguinity, marriage or adoption. Burgess and Locke
observe:
Family is a social group of persons united by the ties of marriage, blood
or adoption; consisting a single household, interacting and
intercommunicating with each other in their respective social roles of
husband and wife, mother and father, son and daughter, brother and
sister creating a common culture.1
The family basically provides for home, which works as a giant shock absorber
against emotional intensities, and provides for warmth and affectionate relationship
and sense of belonging. Through the concept of family,exclusive sexual satisfaction
and harmony is promoted. It is regulated as against premarital or extramarital or
promiscuous sexual relationship or mating. 2 The regulated sex is institutionalized.
Family legalizes the procreation of the children along with parental satisfaction. It
forms the basis of closely knitted family relations and regulated development of the
society. Family is a basic economic unit, socialization factor. It influences the conduct
of its members and development of traditions. It is strategic social unit at the root of
social behavior.
3.2 Why is marriage needed
The fundamental aim of the Hindu society is considered to the fulfillment of
various Samskaras throughout the lifetime of the person in order to attain
Moksha.3Marriage is one of the necessary Samskaras or religious rites for all Hindus,
whatever the caste, who do not desire to adopt the life of the perpetual Brahmachari
or of a sanyasi.4 The Dharmasastras prescribe marriage for the attainment of three
objectives in life, i.e., Dharmasampati, Prajyaand Rati. According to Manu, the main
aim of marriage was not the satisfaction of vernal desires but that a man was complete

1 T.V. Subba Rao and Vijender Kumar (rev.), G.C.V. Subba Rao FAMILY LAW IN INDIA, 9 th ed.
2007, p. 1.
2Ibid at p. 1-4.
3Vijender Kumar, “CONCEPT OF MARRIAGE UNDER HINDU LAW: A CRITIQUE”, Family
Law-I Module, Nalsar Law University, p. 17.
4Rangnath Mishra and Vijender Kumar (rev.), John D. Mayne TREATISE ON HINDU LAW &
USAGE, 16th ed. 2009, p. 125.

10
as an individual only after he got married and the wife was described to be the other
half of the man. Apart of the attainment of the three objectives mentioned above, the
Mahabharata speaks of the forth objective that is the Samajaruna that is the discharge
of one’s duty towards one’s wife5, which requires the presence of a wife.
According to Hindu Dharma, marriage is a sacrament. Its purpose is to create
and develop a religious and spiritual outlook in life. The ceremony of marriage is a
firm uniting of two souls such that after marriage the individual bodies remain as
separate entities but the souls merge into one harmonious whole. The idea behind the
institution of marriage in Hindu dharma is to foster not self-interest, but love for the
entire family and society.6 It is the love and duty cultivated for the entire family that
prevents break-ups.
The desire for male offspring in particular way was very natural in all early
societies. Male issue was prized both for the continuance of the family as well as for
the performance of the funeral rites and offerings. This was done in order to fulfill the
Pitra Rina. The Veda declares:
Endless are the worlds of those who have sons; there is no place for the
man who is destitute of male offspring.7
According to Vedas an Aryan is born burdened with three debts:
He owes to the study of the Vedas to the Rishis, sacrifices to the Gods, and
a son to the manes.8
Manu emphasized the Vedic injunction regarding the necessity for a son thus:
Through a son, he conquers the world: through a son’s son, he obtains
immortality but through his son’s grandson, the gains the world of the
Sun”. Yajnavalkya “Because through sons, son’s son, sons’ grandson,
therefore women should be loved and protected.9
Marriage as an institution establishes household, regulating sexual relations,
procreating and providing care for the offspring. 10 Marriage creates new social
relationships and reciprocal rights between the spouses. It establishes the rights and

5Vijender Kumar, “CONCEPT OF MARRIAGE UNDER HINDU LAW: A CRITIQUE”, Family

Law-I Module, Nalsar Law University, p. 17.
6 Shivani Mehta, “The Hindu Marriage - VivahaSanskara”,
http://www.nhsf.org.uk/index.php?option=com_content&view=article&id=416:the-hindu-
marriage-a-vivaha-sanskara&catid=267:why-do-we&Itemid=240.
7Rangnath Mishra and Vijender Kumar (rev.), John D. Mayne TREATISE ON HINDU LAW &
USAGE, 16th ed. 2009, p. 75.
8Ibid.
9Id.
10 T.V. Subba Rao and Vijender Kumar (rev.), G.C.V. Subba Rao FAMILY LAW IN INDIA, 9 th ed.
2007, p. 4.

11
the status of the children when they are born. Each society recognizes certain
procedures for creating such relationship and rights. It is this institution through
which a man sustains the continuity of his race and attains satisfaction in a socially
recognized manner.
The Hindu marriage has three main objectives such as Dharma, Progeny and
Sexual Pleasure.Individual happiness has been given the least importance. It is
considered to be sacrament, a spiritual union between a man and a woman in the
social status of husband and wife.
Basic features of marriage as a social institution are: itis a heterosexual union,
including at least one male and one female; which legitimizes or grants approval to
the sexual relationship and the bearing of children without any loss of standing in the
community or society; it is a public affair rather than a private, personal matter; with
rules which determine who can marry whom. Marriage gives new statuses to man and
woman in the shape of husband and wife and father and mother. 11 There is
development of personal intimate and affectionate relationships between the spouses
and parent and children.
Family bound my marital ties perform various functions, which includes basic
personality formation, status ascriptions, socialization, tension management, and
replacement of members, economic cooperation, reproduction, stabilization of adults,
and the like. 12 Many of these functions, while not requiring marriage for their
fulfillment, are enhanced by the marital system.
3.3 Rights and Obligations Involved in Marriage
Marriage does not only fulfill the requirement of Samskaras or sexual desire but
also bestows some rights and obligations on both the parties to marriage, i.e. husband
and wife. On one hand, the wife is bound to live with her husband and to submit
herself to his authority.13 An agreement enabling the wife to avoid a marriage or to
live separate from her husband is void since such an agreement is against public
policy and contrary to the spirit of Hindu Law. Such an agreement, if entered into by

11 Shivani Mehta, “The Hindu Marriage - VivahaSanskara”,

http://www.nhsf.org.uk/index.php?option=com_content&view=article&id=416:the-hindu-
marriage-a-vivaha-sanskara&catid=267:why-do-we&Itemid=240.
12 Puja Mondal, “Essay on Marriage: Meaning, Functions and Forms”,
http://www.yourarticlelibrary.com/marriage/essay-on-marriage-meaning-functions-and-
forms/8592/.
13 T.V. Subba Rao and Vijender Kumar (rev.), G.C.V. Subba Rao FAMILY LAW IN INDIA, 9 th ed.
2007, p. 15-17.

12
the parties cannot be treated as an answer to the suit for restitution of conjugal rights
by a husband against his wife.14On the other hand, the husband is bound to live with
his wife and to maintain her.15 The husband is the lawful guardian of his minor wife16
and on his death, the guardianship of the wife, if still a minor, passes to her husband’s
relations.17On marriage the wife passes into the dominion of her husband. Hindu law
expects every husband to live with his wife and to maintain her and mutual fidelity is
the legal duty, both on the part of the husband and wife.18 The husband is therefore
entitled to require his wife to live in his house from the moment of the marriage,
however young she may be, but this right does not exist where, by custom or
agreement, the wife is to remain in her parent’s house till her puberty19 or in case of
some tribes even afterwards.
On one hand, marriage has a very positive impact on an adult. Research has
shown that those individuals who live a stable marital relationship tend to live longer,
have a better physical health, better functional health at old age and better emotional
health than those in troubled marriages or who are divorced.20On the other hand, there
can be a few negative influences of marriage on an adult as well. An adult can
become stressed out on the fact that they will need to make compromises and
sacrifices, in order to form a good marital relationship. The adult may also develop a
sense of stress because they have a lot of responsibility ahead of them.21 In addition,
the individuals in the relationship can become upset by the fact that they have to make
sure that their relationship has no betrayals, and it is kept loyal, throughout the
couple’s lives.
3.4 Breakdown ofthe Marital Tie
Hindu marriages are considered to be a sacrament, which are complete after the
performance of religious rites and ceremonies only. Since, marriages among Hindus
are a result of sacred mantras, they are considered unbreakable since there are no

14 Sitaram v Abeeree (1873) 11 Beng LR 129; Tekait v Basanta (1901) 28 Cal 751.
15Satyajeet Desai (rev.), D.F. Mulla, PRINCIPLES OF HINDU LAW, Vol. I, 20 th ed. 2007, p. 769.
16Re Dhuronidhur(1890) 17 Cal 298.
17Khudiram v Bonwarilal(1889) 16 Cal 584; ChinnaPerumal v Vinayagathammal(1928) 55 MLJ 861.
18 Rangnath Mishra and Vijender Kumar (rev.), John D. Mayne TREATISE ON HINDU LAW &
USAGE, 16th ed. 2009, p. 159.
19Katee Ram v Mt. Gendhenee (1875) 23 WR 178; Santosh Ram v Gera Pattuck (1875) 23 WR 22;
Navnit Lal v Purushotam (1926) 50 Bom 268.
20 Shivani Mehta, “The Hindu Marriage - VivahaSanskara”,
http://www.nhsf.org.uk/index.php?option=com_content&view=article&id=416:the-hindu-
marriage-a-vivaha-sanskara&catid=267:why-do-we&Itemid=240.
21
Ibid.

13
mantras or religious ceremonies to break a marriage. Marriages, according to Hindu
law, are supposed to be till eternity. Though is recent years, marriage, even among
Hindus, is partially treated as a social contract. Accordingly, the law provides the
option to the parties to break the tie of marriage under special circumstances in the
form of judicial separation and ultimately divorce.22
Usually, people opt for breaking the marital tie as they feel frustrated or
unhappy with the marriage. They take up such a step in expectation of a happy life
after separation. Rarely do they realize that the separation often brings along more
problems than it seems to avoid. Divorce is usually accompanied by heavy financial
expenses, emotional and psychological trauma, not only for the parties to the marriage
but also for their families and the children born out of the wedlock.
The decision to end a relationship is traumatic, chaotic, and filled with
contradictory emotions for not just those parties to marriage but also for the children.
While, the initiator experiences fear, relief, distance, impatience, resentment, doubt,
and guilt,the party who has not initiated the divorce may feel shock, betrayal, loss of
control, victimization, decreased self-esteem, insecurity, anger, a desire to
venegnance and wishes to reconcile.23
Also, during the time of divorce, partners try to create distance from the former
partner. This distancing often takes the form of faultfinding where every single flaw is
noticed and highly exaggerated in order to justifyseparating. Also, if the other person
is portrayed as really awful, one can escape any responsibility for the end of the
marriage.
Divorced couples have to deal with the added responsibilities and roles,
particularly with regard to the children. Each parent has to be both father and mother
to the children.
The impact of marriage breakdown can be seen most clearly on children. They
are the unfortunate victims of the internal strife between the parents. Faced with their
own problems, parents tend to disregard their children's feelings, thus making the
children feel that they are unwanted. If the situation is not handled properly, they may
develop a negative attitude towards parents and marriage, as a result of what they see

22Bahasa Melayu, “EFFECTS OF DIVORCE”, http://app.syariahcourt.gov.sg/syariah/front-

end/abtdivorce_effectsofdivorce_e.aspx(November 1, 2006)
23James C. Melamed, “Psychological Impact of Divorce”,http://www.to-agree.com/pg34.cfm

14
happening in the home.24 Typically, children whose parents are going through a rough
divorce engage in behaviors, which are designed to help them feel secure. When
parents separate, the children face a situation where they can be with only one of their
parents. They are not sure as to who will take care of them. This leads to the feeling
of being abandoned by one or both of their parents. Strict and difficult times like
divorce of parents have a great psychological impact on the children. The more
conflict there is between the parents, the longer children hold onto the notion of their
parents' reconciliation. Since, the parents do not get along, children often act out in
ways, which force their parents to interact. Not only this, because many marital
conflict may be related to the stress of parenting, children often feel responsible for
their parents' divorce, they feel that somehow their behavior contributed to it. In such
a situation, they may try to bargain with their parents and try to get them back
together by promises of good behavior. Children often tend to get frustrated by the
strained relationship of their parents and ultimately end up acting out their own and
their parents' anger.Children may express anger and hostility with peers, siblings, or
parents. On the other hand, those children who do not release their hostility often end
up under depression. Divorce may lead to either immaturity or hyper maturity.
It can be concluded that divorce leads to the test a parent's loyalty, and
childrentend to express anger over the divorce.25Left unchecked, these effects may
dwell permanently in the minds of children right through adulthood.
Divorce, along with psychological impact also has great financial impact on the
parties. While, the woman might need to work to support herself and the children, the
man, on the other hand, needs to work overtime to make ends meet as he as an
additional burden of maintenance for the children in the wife's custody after divorce,
and must support a new family if he has re-married.
A litigated divorce can cost each party a lot of money. The focus of the
attorneys is on assigning blame and fault and skirmishing for the most powerful
position. Attorneys advocate for the best interest of their client and often there is no
consideration of the best interests of the children or recognition for the need for
parties to have an ongoing relationship because they have children, friends, extended
family, and community together. Going to court is an expensive risk.

24Bahasa Melayu, “EFFECTS OF DIVORCE”, http://app.syariahcourt.gov.sg/syariah/front-

end/abtdivorce_effectsofdivorce_e.aspx(November 1, 2006)
25James C. Melamed, “Psychological Impact of Divorce”,http://www.to-agree.com/pg34.cfm

15
 Other than the psychological and financial impact of divorce, another major
impact is the social stigma that is usually attached to a divorce.26 While it is true that
in many cases a partner in marriage comes to this painful decision because of the
irresponsible behavior of the other partner, it is also true that a divorce may not be the
best solution to the problem.

26James C. Melamed, “Psychological Impact of Divorce”,http://www.to-agree.com/pg34.cfm

16
 CONCLUSION
Through the research work, it can be concluded that the institution of marriage
is still perceived as a social contract with some religious sanctity attached to it by the
Hindu law in India. This is true even after the codification of the Hindu law in the 20th
century, which primarily changed the nature of marriage from a pure and eternal
sacrament to a partial social contract. But even after the codification of Hindu law,
marriage has successfully retained its social value. It is a socially accepted institution
with three main objectives, i.e., Dharma, Progeny and Sexual Pleasure. The main
objective of marriage is not only to regulate sexual behavior of people but also to
legitimize procreation of children.
Unlike other streams if law, the Hindu jurisprudence is a duty-oriented law, a
Hindu marriage bestows upon both the parties to marriage certain rights and
obligations.While it is the duty of the wife to submit herself to the authority of her
husband and cohabit with him, it is the duty of the husband to maintain his wife and
to cohabit with her.
A Hindu marriage, since its conception, is treated as an unbreakable tie, which
is eternal and sacramental in nature. Though, in recent times, the option to break the
tie of marriage has been provided by law, it is usually considered better to continue in
marriage. This is so because the decision to separate may at first appeal to both the
parties, promising a happy future. But it usually comes with a disturbing package of
other problems such as financial issues, psychological issues, impact on children and
the social stigma involved with separation. Hence, it can be said that though there is
an option to break away from the marriage, it is usually better to stay intact not only
to avoid further problems but also to maintain the sanctity of the institution of
marriage.

17
 BIBLIOGRAPHY
List of Articles
Vijender Kumar, “CONCEPT OF MARRIAGE UNDER HINDU LAW: A
CRITIQUE”, Family Law-I Module, NALSAR Law Universityof Law, Hyderabad.
List of Books
Rangnath Mishra and Vijender Kumar (rev.), John D. Mayne, TREATISE ON
HINDU LAW & USAGE, 16th ed. 2009, Bharat Law House, New Delhi.
Satyajeet Desai (rev.), D.F. Mulla, PRINCIPLES OF HINDU LAW, Vol. I, 20 thed.
2007, Lexis Nexis, Nagpur.
T.V. Subba Rao and Vijender Kumar (rev.), G.C.V. Subba Rao, FAMILY LAW IN
INDIA, 9th ed. 2007, S. Gogia and Company, Hyderabad.
List of Websites
Puja Mondal, “Essay on Marriage: Meaning, Functions and Forms”,
http://www.yourarticlelibrary.com/marriage/essay-on-marriage-meaning-
functions-and-forms/8592/.
Subhamoy Das, “Types of Hindu Marriage: The 8 Kinds of Marriage as Described by
Manu”,http://hinduism.about.com/od/matrimonial1/a/typesofmarriage.htm.
Jayaram V, “Hinduism and Marriage”,
http://www.hinduwebsite.com/hinduism/h_marriage.asp
Shivani Mehta, “The Hindu Marriage - VivahaSanskara”,
http://www.nhsf.org.uk/index.php?option=com_content&view=article&id=41
6:the-hindu-marriage-a-vivaha-sanskara&catid=267:why-do-we&Itemid=240
James C. Melamed, “Psychological Impact of Divorce”,
http://www.to-agree.com/pg34.cfm
Bahasa Melayu, “EFFECTS OF DIVORCE”,
http://app.syariahcourt.gov.sg/syariah/front-
end/abtdivorce_effectsofdivorce_e.aspx.