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Published : March 01, 2016 | Author : chitrita21@legalserviceindia.com
Category : family law | Total Views : 3219 | Rating :

B.A. LLB(Hons.) Nirma University

Hindu Marriage: A Journey From Sanskar to Philosophy

Research Paper on Hindu Marriage:
A journey from Sanskar to Philosophy Hindu Marriage: A journey from Sanskar to philosophy The purpose of this paper is to study the different aspects of marriage and most importantly its philosophy in aspect of jurisprudence. The researcher through this paper describes a journey of marriage to philosophy. The Hindu marriage is a carefully crafted, a beautifully sculpted institution and, like many concepts in the Hindu tradition, it is soaked in the acute and careful understanding of human nature.

There appears to be a correlation between the age of a bride and education. The paper seeks to highlight some of the salient features with an intention to draw attention to the richness of social and jurisprudential thought that has been involved to produce this beautifully sculpted institution.

The paper describes the history behind the word marriage. The basic idea of this paper is to relate the beautifully sculpted institution of marriage with the philosophical aspects of jurisprudence. This paper includes Origin and development of Hindu law and various other head points which are significant for the present topic.

I always compare marriage to communism.
They're both institutions that don't conform to human nature, so you're going to end up with lying and hypocrisy.

BILL MAHER The preliminary question as we approach the subject of Hindu law is: To whom does it apply Even more basic: Who is a Hindu? The answers to these seemingly simple questions lead us to an extremely difficult and complex legal sphere.

A precise meaning of the word 'Hindu' has defied all efforts at definition through statutes has defied all efforts at definition through statutes or judicial pronouncements. Not going much into the depth of Hindu the researcher moves on to the introduction of the title Hindu marriage……A sanskar or a sacred ritual performed. Marriage a bond which unites two people together. 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 sanskara of a Hindu. Sanskara is a socio religious rites by performance of which life of present Hindu is samctified.

In Grahsutra, Vivaha is referred as one of the most important of all sanskara. 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 person3. In Hindu society marriage was not only a sanskara to be performed but also a religious duty of a Hindu towards his father, family and society to fulfill certain purposes. (Reference to Veda), Brahmans and Dharamshastras reveals following three purposes of marriage under Hindu jurisprudence: Dharma sampatti (perform religious rites) Praja sampatti (for son to save the father from hell) 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 duty, as man alike his ancestor and himself. Who invented the concept of marriage This is one question whose answer continues to elude Indologists and Historians. There is absolutely no authentic record of state-of-affairs of a society sans marriage. Hindu mythology puts onus on one Shvekaketu the son of Udalaka in the kingdom North of Kurus who officially banned promiscuity and ushered in the concept of Marriage.

The "Hindu marriage" has espoused a great interest in the West not only because it is one of the oldest in the human history but the kind of mystic aura that surrounds it and the various ceremonial religious rites and rituals that are involved in it. For some strange reasons the West has been under the impression that the Hindus are obsessed with fidelity and celibacy and propose a forced human behavior though the reality has been completely contrary to the commonly perceived beliefs. The Vedas' which were composed for over at least a millennium and were in existence much before the composition of the famous epic "Mahabharata" do not talk about society sans marriage. In fact Rigveda defines marriage as an instrument through which man becomes a householder and bears children. Large part of the Hindu population in the peninsular India and Nepal has been used to wife being termed as man's ardhaangini . The word means one half of the body.

This concept originates from the verses in Shatapat Brahman Grantha - a treatise of the Vedic period. The famous epic "Mahabharata" which was composed around 3000 B.C describes sophisticated form of marriage with elaborate rituals and customs and talks about laws of inheritance of property and other aspects of a well-developed jurisprudence. Kautilya on Marriage: It is essential at the beginning of this century to re-visit some of the jurisprudential statements made by Kautilya in Arthashastra. We are still struggling to arrive at scrupulous definitions of many aspects and could take a lesson or two from Kautilya. One of the characteristics of Kautilya's writings is that he speaks with a God-like authority and borders on arrogance this has made sensitive poet like Baanbhatta (in his magnum-opus kaadambari) describe him to be a prisoner of persecution complex. However, despite the arrogance if Kautilya has had far-reaching impact on many great works written in his era like the sage Vatsayan's Kama-sutra, panch-tantra, or yogeshvar yajnavalkya smriti , it is because of the precision that he produced in his treatise and due to the fact that he wrote (perhaps under a constant fear of machinations) with deep understanding of the human nature, behaviour and with welfare of human society at heart. I shall not be covering the entire jurisprudential discussion of kautilya or others in this paper.

That can become an independent research some other time. However, it is my attempt to highlight some of the important issues that still haunt the society in AD 2006 as they are dealt with by kautilya and his predecessors. Jurisprudential shift by Kautilya: "Vivaahapurvo Vyavahaara" – the marriage precedes all civil disputes. This is as brusque as he gets at the first line of in Book III Ch II of Arthashastra and in the process brings about a exemplar shift in the civil jurisprudence from his predecessors. To illustrate the difference: Manu says it is debt which precedes dispute, Bhargava says it is the house and landed property and according to Brihaspati it is the deposits and investments. Kautilya does not mince words or indulge in defining different types of marriages, he just lists them from Manusmriti and ends the commentary by using precisely three words: "Sarvesaam Pritya.aropanaam Apratisidhdam " – any type of marriage is acceptable, provided it pleases all those (concerned with the marriage). In the process he counsels the Crown to accept paishaachya (satanic) marriage where a rapist offers to marry the victim! Manusmriti - Predicament Given the fact that one female with many men can produce maximum of one human baby a year and many babies can be produced if the equation is reversed it is clear that in the process of conservation of human species which is the prime objective (or brahma-uddiShTa), it is the woman who takes the centre stage and the men, by and large, are expendable. As a corollary to this, it is the woman who should be protected and the men must be motivated to do so.

Motivating men was easy; glamorising heroism and machismo seemed to do the trick at least to the extent of protecting women from physical assault by wild beasts or by enemies. As civil society developed, the concept of "protection" acquired a whole new meaning and concept of "exploitation" too began to rear its head. This is the classic philosopher's predicament in which Manu too seems to be trapped. Throughout the ‘Manusmriti', he is acutely aware that in order to achieve an orderly behaviour he must impose synthetic norms which may not come naturally to the most. In his own words, "balavaan indriyagraamo vidvaamsam api karshati" (the senses are powerful, and master even the learned.") . To attain his objective, he is aware that he must use language that is authoritative, forceful and bordering on arrogance. Therefore, on one hand, he seems to exalt women to the status of goddess stating unequivocally that, "a society where the women are unhappy the Gods get angry". and on the other hand, he imposes such restrictions on the behaviour of women which, unless interpreted with understanding, could easily become tools of exploitation - something that lamentably happened. Notwithstanding anything else, one thing in which Manu succeeds is in balancing the freedom with responsibility. To whomsoever he grants freedom' he burdens them with responsibilities and he reduces responsibilities as he restrains behaviour. Anyone who is familiar with the process of drafting legislation should understand how difficult the task is. Much has been said about Manusmriti in the political realm of independent India.

To blame the current "mess" on a man who wrote his treatise more than three millenniums back is intellectually not a palatable argument. That, of course, is a totally different subject. All things said and done, Manusmriti is indeed a significant document that cannot go uncommented in study of any human institution in the Indic civilisation. Ironically, even the modern lawmakers at the advent of 21st century are seriously found wanting in the same area as Manu.

For the purpose of illustration take the case of Section 498A of IPC dealing with domestic violence or the famous "Vishakha guidelines on sexual harassment of women at workplace" issued by the Supreme Court of India in 1997 . Both legislations have been repeatedly criticised for being amenable to serious abuse. The heart of the problem is the same with which Manu seems to be grappling throughout his treatise - balancing freedom and protection. Hindu marriage and ceremonial degradation:- Under Shastric law some ceremonies were necessary for a valid Hindu marriage, which were performed with chanting mantras by the Brahmins.

Section 7 of Hindu Marriage Act requires that the Hindu Marriage may be solemnize 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. Thus Shastric ceremony 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 'solemnize' of marriage, called self-respect marriages . Two important wedding rites and their significance: Kanyadana (kanyadana) The word is clearly a misnomer. If it is split as Kanyaa' (meaning girl) and ‘Dana' (meaning gift) all tenets laid down in the Vedas and associated scriptures would stand contradicted. The word ‘Dana' (dana) is comprehensively defined by Yogeshwar Yajnavalkya as: svasvatavanivRittiH parasvatvApAdanam ca dAnam.

This definition requires three ingredients to be fulfilled for a contract to qualify as ‘Dana'
(i) The giver must have a clear title of what he is giving,
(ii) The transfer of the title must be completely wilful and
(iii) such a transfer when enacted is irrevocable under any and all circumstances.

All scriptures are clear about the fact that writ of the parents over children is not wide enough to be called ‘title of ownership'. Perhaps such practise existed at the very beginning of the civilisation which makes ‘baudhayan dharmasutra' to categorically emphasise that right of parenthood does not tantamount to title of ownership.

The sutra further insists that selling of children in any form is a "high level of sin" (or mahApAtaka). Manu in Manusmriti too is absolutely clear on this and is emphatic in stating that parents do not have the title of ownership of the girl/boy child. Therefore, the ingredients of the ‘Dana', as mentioned above, are not fulfilled; and, the word ‘Kanyadana' cannot be understood by splitting the words. Meaning of Kanyadana? Having thus established successfully that the word Kanyadana has nothing to do with "Dana" (Gift) of "Kanyaa"(girl chid) let us see what it actually means. There are words in Sanskrit language which are called ‘yogarudh' (yogarUDh) i.e. words having a special as well as etymological and general meaning. To illustrate, take example of the word Pankaja (pa~jkaja). Though the etymological meaning of the word is "anything that grows in the mud" this word is used only to refer to "Lotus flower"; same is the case with the word "Shivaratri" (shivarAtri).

This word is used only to indicate a special night associated with Lord Shiva which is the night before new moon (note: if the word is split as shivam-ratri' it should mean "auspicious night" as shivam vastu in which means auspicious creation). Similarly, the word Kanyadana is a yogarudh word which means an act where parental responsibility of an individual changes/transferred. What is transferred in Kanyadana is the ‘parental responsibility'. The word indicates change in the support system of the ‘girl'. It must also be understood here that since the word Kanyadana has nothing to do with the meaning of Dana, this transfer of parental responsibility is not irrevocable. In the event, by the writ of the crown, the marriage is dissolved then the responsibility is reversed in the same order. Even in the modern era we are struggling with formation of strong and enforceable legislature on this and there are parents who refuse to admit their daughter/s back into their own house by quoting some obscure references to culture obviously with their own axe to grind - scriptures do not support such an outlandish stand.

Saptapadi (or saat phera):

This is the most important rite of Hindu marriage. It is taking a final and irrevocable step towards marriage. The rite is known as saptapadi and involves walking seven steps along with groom around the Homa fire (called yojaka ) in a manner that the fire is always at the right side of the couple. In certain parts of India, this rite is also known as Sat-phera (sAta-pherA) meaning taking seven revolutions around the Homa fire. Both are accepted customs and mean the same thing.

While taking the seventh step (or phera) the groom tells his bride, "From now, you be my friend, be loyal to me (my objectives), let us have children who would live healthy and have long life." All rites performed prior to the seventh step (or revolution) could be cancelled voluntarily by either the bride or the groom who could request the presiding priest to stop, postpone or altogether cancel the marriage or if the presiding priest suspected force, coercion or any other element denounced by the scriptures (such as financial transaction) either from the body language of the couple (Manu: sobbing of bride) or through any other source/s he could suo-moto declare all rites performed prior to the seventh step (or phera) as null and void and could cancel the marriage. Such a cancellation of marriage by the presiding priest was then socially acceptable and the woman returned to her father's house without any social stigma. However, after the seventh step, the writ of the presiding priest ended and the Hindu marriage could not be revoked at the will of anybody except by the writ of the Crown who too was constrained to act according to the prevalent customs, legal tenets and needed to have sought opinion of his ministers or a committee of scholars (usually referred as parishada). In short, dissolution of Hindu marriage in the ancient times was an extremely difficult proposition though not always impossible.

In the modern India though the custom of saptapadi (or Satphera) is meticulously followed and also been given as much importance as in the olden times, the legal right and crown's protection granted to presiding priest does not exist anymore. The institution called "Hindu Priests" too does not exist, in its noble form, during the current times. Modern priest has been reduced to being a ‘local pundit' who chants mantras at any religious ceremony. Role of priest as Crown's representative and as a principal witness in legal trial before the court has been obliterated in the modern times. The cause for this could be in the fall of Hindu dynasties by 11th Century AD when the Priests sans the Crown's patronage were left to fend for themselves. This perhaps led to commercialisation and eventual denigration and the fall of this institution. Medieval times, lamentably saw rise of priestdom - group of people who struggled to keep the stranglehold over the society by using dubious methods ultimately bringing the entire profession in disrepute.


Whether A Changing Face In Hindu Marriage System?

Divorce a most common term heard by all of us.....but the question which arise in the researcher's mind is that When hindu marriage or any marriage is such a religious and sacred ritual performed or rather say an institution comprised of saat phere and other things than from where does the concept of divorce arises. Divorce was not a part or wing of the Hindu marriage system. As a result of rapid urbanization and social change, as a need of the society, it was added as an attribute to the Hindu marriage system. So, divorce may be considered as a change in the Hindu marriage system. Vedic text as well as Smithies 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 "nether 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.

Kautilya on divorce:

Kautilya alias Arya Chanakya alias Arya Vishnugupt author of the famous treatise on governance, "Arthashastra" (approx 300 BC), brought in a paradigm shift in the civil jurisprudence by saying: "Vivahapurvo Vyavaharah " - Marriage precedes all civil disputes. It was Kautilya who brought in the concept of divorce and dealt with it like no other lawmaker before him. True, clarified butter (Ghee) cannot be converted to butter; but, a particular bowl of Ghee can be declared by the writ of the crown to be unfit for consumption. Kautilya understood that under certain circumstances marriage may become a bondage from which exit should be possible. While upholding the sanctity of marriage as a Sanskara and without allowing it to degenerate into a mere civil contract Kautilya introduced a concept of "liberation due to mutual enmity or parasparandveShaan mokshah" . If husband is either of a bad character or has long gone (abroad), turned traitor to the King, or is likely to endanger the life of his wife or has fallen (in esteem) of his cast or lost virility, he may be abandoned by his wife. Neither can woman dissolve her marriage against the will of husband nor can man against the wishes of wife. However, through mutual enmity (that's the word used in the arthashastra) divorce is possible. Kautilya while holding that the divorce was not possible if any of the partners in marriage did not give the consent for it, he allowed the king to dissolve the marriage if there was personal enmity between the partners.

While making mutual enmity mandatory for the divorce Kautilya allowed women to seek freedom from marriage in the following circumstances

(i) Man is of a bad character (or is convicted),
(ii) He has long gone abroad (this is irrelevant today),
(iii) Likely to endanger the life of a wife,
(iv) Turned traitor to the King
(v) Lost virility

(on the last one recent judgement was given by SC of India - Ref Kautilya introduces a concept of "shulka" and "graasacChadaana" The former means a fee, property and compensation to woman for allowing a man to re-marry (by divorcing them) and latter means a livelihood in terms of sufficient clothing and food in case the husband has limited means or a fixed proportion of his income if he is wealthy. Kautilya is categorical in saying that the right of woman over livelihood is for an unlimited period unless she re-marries. Conclusion My endeavour in this research has been to sketch the outline of the robust institution of Hindu Marriage that has, despite all odds, stood its test on the anvil of time. The research seeks to highlight some of the salient features with an intention to draw attention to the richness of social and jurisprudential thought that has been involved to produce this beautifully sculpted institution. Middle ages saw chaos and deliberate misinterpretation of scriptures by people who had their own axe to grind. Time from 16th Century was spent, as noted Indologist Dr D. D. Kossambi observes, "in meaningless activities to preserve orthodoxy at the cost of progress" – a habit that is not yet kicked by us. This is a time to deeply apply our minds both sociologically and jurisprudentially to further strengthen this institution that is the foundation of the basic unit of the society. Unless the fundamental unit is strengthened much of the turbulence observed in the society shall not disappear. Supreme court on its latest decision on the Hindu divorce (in Saxena v/s Pandit) has upheld the Kautilya's jurisprudence on Hindu marriage. Justices A R Laxmanan and Dalveer Bhandari ruled that "Where the parties are young and the mental disorder is of such a type that the sexual act and procreation of children is not possible, it may furnish a good enough ground for nullifying the marriage".

The author can be reached at: chitrita21@legalserviceindia.com

Writing award This article has been Awarded Certificate of Excellence for Original Legal Research work by our Penal of Judges

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