Tuesday, February 23, 2016

DIFFERENT TYPES OF MARRIAGES UNDER THE ANCIENT HINDU LAW - PART I




SASI K.G.
Well defined terms often contribute much to the proper understanding of any legal system. Thus before entering directly into the topic, it is useful to go through a few preliminaries.

01. Who is a Hindu?

The word Hindu was unknown to the Ancient Hindus. The term Hidush which is similar to Hindu is first found in the 6th-century BCE inscription of Darius[i]. In Zend Avesta the Vedic concept ‘Sapta Sindu’ is written as ‘Hapta Hindu[ii].’  7th-century CE Chinese traveler Xuanzang uses the word In-tu [iii]as the country name for Bhārata but I-tsing contradicts it by saying that In-tu was not a common name for the country[iv]. Al Biruni of 11th century also uses the term as country name in his work ‘Tarikh Al-Hind[v].’ The texts of the Delhi Sultanate period use the term 'Hindu', where it includes all non-Islamic people such as Buddhists, and retains the meaning of the region. Slowly, the Indian groups also started using this term, to identify themselves from the invaders.
In Mughal Empire era, the term Hindu referred to the people of India who had not converted to Islam. Jahangir, for example, called the Sikh Guru Arjun[vi] as a Hindu. During the colonial era, the term Hindu had connotations of native religions of India, that is religions other than Christianity and Islam. The Europeans absorbed the term Hindu into the corpus of the laws made by them.
Sati was abolished in 1829 by law. The Hindu Widow’s Remarriage Act enabling the marriage of Hindu widows came into existence in 1856. Indian Penal Code of 1860 prohibited polygamy. Native Converts Marriage Dissolution Act, 1866 benefitted the Hindus who embraced the Christian faith. The Special Marriage Act 1872 and the Indian Divorce Act 1869, however, excluded the Hindus from their purviews.
In the State of Mysore a penal law prohibiting men from marrying girls below eight years and punishing men above fifty marrying girls below fourteen years was enacted. In 1909 the Anand Marriage Act legalized the Sikh marriages. In 1923 Special Marriage Act was amended to legalize inter religious civil marriages between Hindus, Buddhists, Sikhs, and Jains. Child Marriage Restraint Act was passed in 1929. The Arya Marriage Validation Act, 1937 and the Hindu Marriage Disabilities Removal Act, 1946, Hindu Married Women’s Right to separate Residence and Maintenance Act, 1946, Hindu Marriages Validity Act, 1949 etc are some other important legislations.
Our constitution, being a continuity of the Imperial legal system, continued the same mistake of considering different religions and sects under the term Hindu. According to explanation to Article 25(2) of the Constitution of India, “Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion.” The definition as per Section 2 of ‘The Hindu Marriage Act, 1955 (Act No. 25 of 1955)’ is more wide. It runs as follows.
2. Application of Act. (1) This Act applies-
(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be :-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged ; and
(c) any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
(3) The expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.
 Thus Indian Legal system not only has an inherent conflict between ‘a person who believes in Hindu Religion’ and ‘a person who is a Hindu according to law being in force,’ but also excludes the Scheduled Tribe Hindus from the operation of Hindu Marriage Act, 1955.

02. What are the Sources of Hindu Law as far as Hindu Marriage is considered?

The Supreme Court of India while considering the case of Bramchari Sidheswar Shai & Ors. Etc v. State of West Bengal etc (dated 02.07.1995) attracting attention to the case of Shastri Yaganapurshadasji decided earlier by the Supreme Court enumerates the features of Hindu religion as recognized by Supreme Court as these,
“(i) Acceptance of the Vedas with reverence as the highest authority in religious and philosophic matters and acceptance with reverence of Vedas by Hindu thinkers and philosophers as the sole foundation of Hindu philosophy.
(ii) Spirit of tolerance and willingness to understand and appreciate the opponent's point of view based on the realization that truth was many-sided.
(iii) Acceptance of great world rhythm, vast period of creation, maintenance and dissolution follow each other in endless succession, by all six systems of Hindu philosophy.
(iv) Acceptance by all systems of Hindu philosophy the belief in rebirth and pre-existence.
(v) Recognition of the fact that the means or ways to salvation are many.
(vi) Realization of the truth that Gods to be worshipped may be large, yet there being Hindus who do not believe in the worshipping of idols.
(vii) Unlike other religions or religious creeds Hindu religion not being tied-down to any definite set of philosophic concepts, as such.”
A perusal of the above qualities reveal that they represent only the Hindu Religion but not a Hindu identity as revealed in the Constitution or in the Hindu Marriage Act 1955. However, there is no law being in force under the Indian legal system except under the name of customs specifically providing for any marriage rites for the Hindus as per law excepting the Hindus as per religion.
The Sources of Hindu Law until the enactment of the Hindu Marriage Act 1955 were identified as the Hindu Religious dictum as stated in Yājñavalkyasmirti  I.8 which runs as follows.
Śrutiḥ smŗtiḥ sadācāraḥ svasya ca priyamātmanaḥ
samyaksaṅkalpajaḥ kāmō dharmamūlamidaṁ smŗtaṁ[vii]
Śruti (what was heard), Smŗti (what was remembered), usage among- the good, one's own inclination, and a desire based on (Lit. born of) good motives—this is remembered as the origin of Dharma. Dharma here has a meaning equivalent to Law. A similar verse as follows is found in Manusmŗti II.12,
“The veda, the sacred tradition, the customs of virtuous men, and one’s own pleasure, they declare to be visibly the fourfold means of defining the sacred law[viii].”
However the present legal system cannot recognize the last two subjective sources leaving behind only śruti and smŗti as the only sources of Hindu Law.
Śruti comprises only of the Four Vedas namely, Ŗg, Yayur, Sāma, and Atharva and the four components to each of them namely Samhitā, Brāhmaṇa, Ārayaka and Upanishads. Altogether these books number a little more than a hundred, but for practical purposes, the most important 40-50 books alone are resorted to. Śrutis are considered as primary authorities.
The Smŗti literature has a vast corpus of derivative works and are regarded as rooted in or inspired by Śruti.
The Smŗti[ix] corpus includes, but is not limited to
  1. The six Vedāgas (grammar, meter, phonetics, etymology, astronomy and rituals),
  2. The Itihāsa or the Epics (the Mahābhārata and Rāmāyaa),
  3. The texts on the four purushārthas or proper goals or aims of human life:
    1. Dharma: Mainly Dharma-sūtras (particularly by Gautama,  Āpastamba, Baudhāyana and Vāsiṣṭha) and Dharma-śāstras (particularly Manusmṛti, Yājñavalkya Smṛti, Nāradasmṛti and Viṣṇusmṛti).
    2. Artha Mainly  the Arthaśāstra of Chāṇakya, the Kamandakiya Nītisāra,  Bŗhaspati Sūtra, and Śukra Nīti.
    3. Kāma: Mainly the Kāmasūtra of Vātsyāyana
    4. Mokșa: Mainly  the later Upanishads (early Upanishads are considered Śruti literature), Vivekachūdamai, Bhagavad Gīta, and the śāstras on Yoga.
  4. The Purāas (literally, "of old"),
  5. The Kāvya or poetical literature,
  6. The extensive Bhāșyas (reviews and commentaries on Śrutis and non-Śruti texts),
  7. The Sūtras and Śāstras of the various schools of Hindu philosophy
  8. The numerous Nibandhas (digests) covering politics, medicine (Caraka Samhitā), ethics (Nītiśāstras), culture, arts and society.
Thus it is evident that the Indian Constitutional Legal system has imposed on the Constitutional Hindus other than those who follow Hindu Religion to follow the laws prescribed by Hindu Religion, which is contrary to the Secular character offered by the Constitution.
However soon after the promulgation of the Constitution, as far as the marriages are concerned, on the enactment of Hindu Marriage Act, 1955, the emphasis on ancient Hindu Laws were overthrown by Section 4 of the Act which runs as follows,
4. Overriding effect of Act. Save as otherwise expressly provided in this Act,-
(a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.”
Such ancient laws however continued to operate under the guise of customs, usages etc as provided in Sections 3 (a), 5 (iv), 5(v), 7(1), 29(2), etc. of the Hindu Marriage Act. However by Hindu Marriages (Validation of Proceedings) Act, 1960 [Act, No. 19 of 1960] all Hindu Marriages until the enactment of it were deemed to be as good and valid in law.
Thus the ancient Hindu Law has practically been limited to marriages prior to 1960 and to a few cases after that where customs and usages were upheld. In this regard legal provisions of Sections 3 (1)(b), 3(1)(h), 7(1), and 17 of Indian Succession Act, 1956 reserves some rights to those who come under Marumakkathayam and Aliyasanthana Laws. There are other similar enactments also. The Supreme Court has issued some judgments in this regard too as in Sakuntalabai & Another v. L.V. Kulkarni & Another (28.03.1989) wherein Supreme Court has upheld the Udiki form of marriage prevalent among Lingayats. Thus Supreme Court accepts the validity of customary marriages.
For the reasons stated above, the application of ancient Hindu Law is justified.

03. What is the  Age of Marriage under the Ancient Hindu Law?

Even though marriage is allowed by ancient Hindu Law at any age of a female, normally marriage is preferred before attaining puberty of a girl. Verses 4 to 6 of the first chapter of Parāśara Smŗti are quoted below.
“4. Gauri (fair) is the appellation of a female child, when she is only eight years old; Rohim (scarlet) is her name when she is nine;
5. She is a Kanyā (virgin) when ten years old; thereafter she becomes similar to a female who has her courses month by month. When the twelfth year is reached by the female child, if the guardian does not give her away in marriage,
6. Her forefathers drink, without interruption, during each succeeding month, whatever blood is passed in her courses. The mother and the father and likewise the eldest brother, all these three relatives will go to hell, if before menstruation they neglect to marry the girl.”
The Dharmasūtras of Gautama Chapter XVIII stanzas 21 to 23 state as follows,
21. A girl should be given in marriage before (she attains the age of) puberty.
22. He who neglects it, commits sin.
23. Some (declare, that a girl shall be given in marriage) before she wears clothes[x].
Manusmŗti chapter IX, para 88 states. “88. To a distinguished, handsome suitor, (of) equal (caste) should (a father) give his daughter in accordance with the prescribed rule, though she have not attained (the proper age.)” Manusmŗti IX. 94 further states, “A man, aged thirty years, shall marry a maiden of twelve who pleases him, or a man of twenty four a girl eight years of age; if (the performance of) his duties would (otherwise) be impeded, (he must marry) sooner[xi].”
Stanza XVII. 70 of the Dharmasūtras of Vasiṣṭha even dictates, “Out of fear of the appearance of the menses let the father marry his daughter while she still runs about naked. For if she stays (in the house) after the age of puberty, sin falls on the father[xii].
Thus usual practice according to ancient Hindu Law was to marry a girl before attaining her majority. Therefore it was corollary that the decision of the marriage shall be taken by her natural guardian. Vișṇusmŗti XXIV.38 prescribes that, “A father, a paternal grandfather, a brother, a kinsman, a maternal grandfather, and the mother (are the persons) by whom a girl may be given in marriage[xiii].
Chapter III 63 and 64 of Yājñavalkya Smŗti goes beyond that by stating,
“63. Father, grandfather, brother, Sakulyas (kinsmen) and mother are respectively entitled to give a girl in marriage, provided the giver be in natural state. In the absence of the first, the second (is entitled) and so on.
64. If they fail to give her away in marriage, they incur the sin of killing the embryo at every menstruation; in the absence of persons who can give her away in marriage, the girl herself may elect a proper bridegroom.”[xiv]
Thus the Hindu sacrament of marriage is consented by the guardian of the bride and the groom or his guardian.
However girls after puberty were not considered to be unfit for marriage. If her guardians do not marry her to a fit groom, she may take a husband. Vasiṣṭha XVII.67-68 states,
67. A maiden who has attained puberty shall wait for three years.
68. After three years (have passed), she may take a husband of equal caste[xv].
Gautama XVIII. 20 curtails the above three year period as three monthly periods as, “20. A (marriageable) maiden (who is not given in marriage) shall allow three monthly periods to pass, and afterwards unite herself, of her own will, to a blameless man, giving up the ornaments received from her father (or her family)[xvi].
Manusmŗti IX.90-93 states, “90. Three years let a damsel wait, though she be marriageable; but after that time let her choose for herself a bridegroom (of) equal (caste and rank).
91. If, being not given in marriage, she herself seeks a husband, she incurs no guilt, nor (does) he whom she weds.
92. A maiden who chooses for herself, shall not take with her any ornaments, given by her father or her mother or her brothers; if she carries them away, it will be theft.
93. But he who takes (to wife) a marriageable damsel, shall not pay any nuptial fee to her father; for the (latter) will lose his dominion over her in consequence of his preventing (the legitimate result of the appearance of) her menses[xvii].”
Vișṇusmŗti XXIV. 40-41 states, “40. When she has allowed three monthly periods to pass (without being married), let her choose a husband for herself; three monthly periods having passed, she has in every case full power to dispose of herself (as she thinks best).
41. A damsel whose menses begin to appear (while she is living) at her father's house, before she has been betrothed to a man, has to be considered as a degraded woman: by taking her (without the consent of her kinsmen) a man commits no wrong[xviii].
This reveals that if the age of majority is achieved, the matter of marriage is not decided by the guardians, but by the girl herself. Let us now consider whether remarriage was admissible.

04. Whether remarriage allowed under the Ancient Hindu Law?

Nāradasmŗti XII 45-53 prescribes for Remarriage and marriages outside the purview of normal marriages as,
45. (Besides the lawful wives) seven other sorts of wives are mentioned in order, who have previously been enjoyed by another man. Among these, the Punarbhū (woman twice married) is of three kinds, and the Svairii (wanton woman) is fourfold.
46. A maiden not deflowered, but disgraced by the act of joining the bride and bridegroom's hands, is declared to be the first Punarbhū. She is required to have the marriage ceremony performed once more (when she is married for the second time).
47. One who, after having left the husband of her youth and betaken herself to another man, returns into the house of her husband, is declared the second (Punarbhū).
48. When a woman, on failure of brothers-in-law is delivered by her relations to a Sapida of the same caste, she is termed the third (Punarbhū).
49. When a woman, no matter whether she have children or not, goes to live with another man through love, her husband being alive, she is the first Svairiṇi (wanton woman).
50. When a woman, after the death of her husband, rejects her brothers-in-law or other (relations) who have come to her, and unites herself with a stranger through love, she is called the second (Svairiṇi).
51. One who, having come from a (foreign) country, or having been purchased with money, or being oppressed with hunger or thirst, gives herself up to a man, saying, ' I am thine,'—is declared to be the third (Svairiṇi).
52. When a woman, after having been given in marriage by her spiritual guides, in a manner corresponding with the usages of her country, (is afterwards married) to another by force, she is called the last Svairiṇi.
53. Thus has the law been declared with regard to Punarbhū and Svairiṇi wives. Among them, each preceding one is inferior to the next in order, and each following one is superior to the one preceding her[xix].
Nāradasmŗti XII.50[xx] allows a widow to live as a wife. In Nāradasmŗti XII.97 remarriage of a widow is specifically allowed as, “97. When her husband is lost or dead, when he has become a religious ascetic, when he is impotent, and when he has been expelled from caste: these are the five cases of legal necessity, in which a woman may be justified in taking another husband[xxi].”
However, the general view is different. Yājñavalkyasmŗti III. 86 states, “Deprived of her husband, she should not reside apart from her father, mother, son or brother, from her mother-in-law or father-in-law, or from her old maternal uncles. Otherwise she becomes infamous[xxii].”
Manusmŗti V.162 states, “Offspring begotten by another man is here not (considered lawful), nor (does offspring begotten) on another man’s wife (belonging to the begetter), nor is a second husband anywhere prescribed for virtuous women[xxiii].” Manusmŗti adds in IX.65, “65. In the sacred texts which refer to marriage the appointment (of widows) is nowhere mentioned, nor is the remarriage of widows prescribed in the rules concerning remarriage[xxiv].” However Manusmŗti IX.176 allows that, “176. If she be (still) a virgin, or one who returned (to her first husband) after leaving him, she is worthy to again perform with her second (or first deserted) husband the (nuptial) ceremony[xxv].”
Viṣṇusmŗti XXV.14 even goes to the extent, “14. After the death of her husband, to preserve her chastity, or to ascend the pile after him[xxvi].”
Thus remarriage though approved, was considered generally inferior.

05. What is the concept of marriage in the śrutis?

Ancient Hindu sacrament of marriage was identified in all the Vedas and its components. Āśvalāyana Gŗhya Sūtra Chapter I, Kāṇdika 4 prescribes that the Ŗgveda manthras has to be chanted at the time of Marriage as follows,
“2. According to some (teachers), marriage (may be celebrated) at any time.
3. Before those (ceremonies) let him sacrifice four Arghya oblations-
4. With the three (verses),' Agni, thou purifies life' (Ŗg-veda IX, 66, 10 seq.), and with (the one verse),' Prajāpati, no other one than thou' (Ŗg-veda X, 121, 10).
5. Or with the Vyāhŗtis.
6. According to some (teachers), the one and the other.
7. No such (oblations) , according to some (teachers).
8. At the marriage the fourth oblation with the verse, 'Thou (O Agni) art Āryaman towards the girls' (Ŗg-veda V, 3, 2)[xxvii].
Book VI.Hymn 78 of the Atharvaveda is quoted below.
1. Through this oblation, that causes prosperity, may this man flourish anew; may he excel the wife that they have brought to him with his sap !
2. May he excel in strength, excel in royalty! May this couple be inexhaustible in wealth that bestows thousandfold lustre!
3. Tvașțar begot (for thee) a wife, Tvașțar for her begot thee as a husband. May Tvașțar bestow upon you two a thousand lives, may he bestow upon you long life[xxviii]!
Thus the Śrutis remain the basis of all ancient Hindu marital rites. However the types of marriages are spread in Smŗtis.

06. What are the types of Marriages under the Ancient Hindu Law?

In Section LXXII of Sambhava Parva of Ādi Parva of Mahābhārata of Vyāsa, during the dialogue between King Dușmanta and Śakuntala, with an intention to persuade Śakuntala to marry him, Dușmanta states, “There are, in all, eight kinds of marriages. These are Brāhma, Daiva, Ārșa, Prājāpatya, Āsura, Gāndharva, Rākșasa, and Paiśāca, the eighth Manu, the son of the self-create, hath spoken of the appropriateness of all these forms according to their order. Know, O faultless one, that the first four of these are fit for Brāhmaṇas, and the first six for Kșatriyas. As regards kings, even the Rākșasa form is permissible. The Āsura form is permitted to Vaiśyas and Śudras. Of the first five the three are proper, the other two being improper. The Paiśāca and the Āsura forms should never be practiced. These are the institutes of religion, and one should act according to them. The Gāndharva and the Rākșasa form are consistent with the practices of Kșatriyas[xxix].”
In Chapter II. Concerning Marriage, the Duty of Marriage, the Property of a Woman, and Compensations for Remarriage of Book II Concerning Law of Kauțilya’s Arthaśāstra the above said eight kinds of marriage are mentioned as,
Marriage precedes the other calls of life (vyavahāra.) The giving in marriage of a maiden well-adorned is called Brāhma marriage. The joint-performance of sacred duties (by a man and a woman) is known as prājāpatya marriage.
(The giving in marriage of a maiden) for a couple of cows is called Ārșa. (The giving in marriage of a maiden) to an officiating priest in a sacrifice is called Daiva. The voluntary union of a maiden with her lover is called Gāndharva. Giving a maiden after receiving plenty of wealth (śulka) is termed Āsura. The abduction of a maiden is called Rākșasa. The abduction of a maiden while she is asleep and in intoxication is called Paiśāca marraige.
Of these, the first four are ancestral customs of old and are valid on their being approved of by the father. The rest are to be sanctioned by both the father and the mother; for it is they that receive the money (śulka) paid by the bridegroom for their daughter. In case of the absence by death of either the father or the mother, the survivor will receive the śulka. If both of them are dead, the maiden herself shall receive it. Any kind of marriage is approvable, provided it pleases all those (that are concerned in it.[xxx])
Manusmŗti III.21, Yājñavalkyasmŗti III.58-61, Nāradasmŗti XII.38-39,  Viṣṇusmŗti XXIV.17-18, Baudhāyana I.11.20.1-9, Gautama IV. 6-13, and Āśvalāyana Gŗhya Sūtras I.6.1-8 accept this classification. Āpastamba II. 5. 11. 17-20 and II.5.12. 1-2 and Vasiṣṭha I.28-29 however, do not accept Prājāpatya and Paiśāca marriages. According to them, there are only six types of marriages. Vasiṣṭha I.28-29  says,
‘”28. There are six marriage-rites,
29. That of Brahman (Brāhma), that of the gods (Daiva), that of the Ŗșis (Ārșa), that of the Gandharvas (Gāndharva), that of the Kșatriyas (kshatra), and that of men (mānușa)[xxxi]. 
Here Kshātra is Rākșasa and Mānușa is Āsura.
The Kāmasūtra of Vātsyāyana though not exactly under the same name identifies the first four in Chapter I On Marriage of Part III About the Acquisition of a wife as, “When a girl is thus acquired, either according to the custom of the country, or according to his own desire, the man should marry her in accordance with the precepts of the Holy Writ, according to one of the four kinds of marriage[xxxii].” The last four are mentioned in Chapter V of Part III which shall be quoted while discussing individual types of marriages.
Even though Dharmasūtras, Gŗhyasūtras and Smŗtis generally accept this classification, they differ considerably in the definitions and operations of these types of Marriages. Let us consider each of these types of marriages individually in detail.

07. What is a Brāhma Marriage?

Manusmŗti III.27 defines a Brāhma marriage as, “27. The gift of a daughter, after decking her (with costly garments) and honouring (her by presents of jewels), to a man learned in the Veda and of good conduct, whom (the father) himself invites, is called the Brāhma rite[xxxiii].’
Yājñavalkyasmŗti III.58 defines it as, “58. That is called a Brāhma marriage (wherein the bridegroom) being invited, (the bride) is given away (to him) bedecked according to the (giver's) means. The son born of her purifies twenty-one persons on both sides[xxxiv].
Nāradasmŗti XII.40 defines Brāhma rite as, “40. In the Brāhma form, a maiden decked with ornaments is given (to the bridegroom), after he has been invited and honourably received (by the father[xxxv]). 
Viṣṇusmŗti XXIV.19 defines Brāhma as, “19. The gift of a damsel to a fit bridegroom, who has been invited, is called a Brāhma marriage[xxxvi].
Baudhāyana I.11.20.2 defines it as, “2. If (the father) gives (his daughter) to a student (who has not broken his vow of chastity and) who asks for her, after fully enquiring into his learning and character, that (is) the rite of Brahman (Brāhma)[xxxvii].
Āpastamba II. 5. 11. 17 defines Brāhma marriage as, “17. At the wedding called Brāhma, he shall give away his daughter for performing (with her husband) the rites that must be performed together (by a husband and his wife), after having enquired regarding the bridegroom's family, character, learning, and
health, and after having given (to the bride) ornaments according to his power[xxxviii].
Gautama IV. 6 defines it as, “6. (If the father) gives (his daughter) dressed (in two garments) and decked with ornaments to a person possessing (sacred) learning, of virtuous conduct, who has relatives and a (good) disposition, (that is a) Brāhma (wedding[xxxix]).
Āśvalāyana Gŗhya Sūtras I.6.1 defines the Brāhma rite as, “1. (The father) may give away the girl, having decked her with ornaments, pouring out a libation of water : this is the wedding (called) Brāhma. A son born by her (after a wedding of this kind) brings purification to twelve descendants and to twelve ancestors on both (the husband's and the wife's) sides[xl].
According to Vasiṣṭha I.30, Brāhma marriage is, “30. If the father, pouring out a libation of water, gives his (daughter) to a suitor, that (is called) the Brāhma-rite[xli].
The simplest definition among the above is that of Vasiṣṭha. Libation of water was an ancient rite practiced at the time of dāna (gifting) with a solemn oath that the giver shall have no claims or liabilities on the gift, and that the receiver of the gift alone shall have all claims or liabilities over the gift. Thus according to Vasiṣṭha the Kanyā who was the property of her father is now voluntarily gifted by him to the suitor with the understanding that he shall have no rights or liabilities over her anymore and that the suitor alone shall be her protector.
The mentioning of garments and jewels were of the nature of property rights the girl possessed at the time of the gift, for which the father has lost all rights through the rite of libation of water.
The other authors provides also for ensuring the wisdom, character, health and other qualities of the bride groom considering the importance of the institution of family. Baudhāyana insists that the suitor must be chaste and that he must have shown interest in the girl. Nārada and some others insist that the suitor shall be invited and honoured by the father of the bride. Thus the duty of arranging the marriage is entrusted to the father of the girl. The Brāhma marriage rite is considered to be the best among the eight types of marriages.

08. What is a Daiva Marriage?

Manusmŗti III.28 defines a Daiva marriage as, “28. The gift of a daughter, who has been decked with ornaments, to a priest who duly officiates at a sacrifice, during the course of its performance, they call the Daiva rite[xlii].’
Yājñavalkyasmŗti III.59 defines it as, “59. (The giving away of the bride) to the Ŗtvij, officiating at a sacrifice (constitutes) a Daiva marriage………………..The son, born of the first marriage, purifies fourteen generations[xliii].
Nāradasmŗti XII.41 defines Daiva rite as, “41. …………… When she is given, before the altar, to a priest, who officiates at a sacrifice, it is termed the Daiva form[xliv].”
Viṣṇusmŗti XXIV.20 defines Daiva as, “20. If she is given to a Ŗtvij (priest), while he is officiating at a sacrifice, it is called a Daiva marriage[xlv].
Baudhāyana I.11.20.5 defines it as, “5. If (a maiden is given) to an officiating priest within the sacrificial enclosure, while the presents are being taken away, that (is) the rite of the gods (daiva[xlvi]).
Āpastamba II. 5. 11. 19 defines Daiva marriage as, “19. At the wedding called Daiva, (the father) shall give her to an officiating priest, who is performing a Śrauta-sacrifice[xlvii].
Gautama IV. 9 defines it as, “9. (If the bride) is given, decked with ornaments, to a priest at the altar, that is a Daiva wedding[xlviii].”
Āśvalāyana Gŗhya Sūtras I.6.2 defines the Daiva rite as, “2. He may give her, having decked her with ornaments, to an officiating priest, whilst a sacrifice with the three (Śrauta) fires is going on: this (is the wedding called) Daiva. (A son) brings purification to ten descendants and to ten ancestors on both sides[xlix].
According to Vasiṣṭha I.31, Daiva marriage is, “31. If (the father) gives his daughter, decking her with ornaments, to an officiating priest, whilst a sacrifice is being performed, that is called the Daiva-rite[l].
Thus it is evident that a Daiva marriage is the result of a gift of a girl to an officiating priest at the time of a sacrifice. As the number of sacrifices and the practice of offering girls as wife to the priest at the time of sacrifice are rare, the Daiva form of marriage can rightly be termed as obsolete and has no practical value at all.

09. What is an Ārșa Marriage?

Manusmŗti III.29 defines an Ārșa marriage as, “29. When (the father) gives away his daughter according to the rule, after receiving from the bridegroom, for (the fulfillment of) the sacred law, a cow and a bull or two pairs, that is named the Ārșa rite[li].”
Yājñavalkyasmŗti III.59 defines it as, “59. (The giving away of the bride) to the Ritvij, officiating at a sacrifice (constitutes) a Daiva marriage. The giving of the bride, after taking two cows, is an Ārșa marriage. The son, born of the first marriage, purifies fourteen generations, that born of the second, six[lii].
Nāradasmŗti XII.41 defines Ārșa rite as, “41. When (the father) receives (from the bridegroom) a dress and a bull and a cow, it is termed the Ārșa form[liii]…… 
Viṣṇusmŗti XXIV.21 defines Ārșa as, “21. If (the giver of the bride) receives a pair of kine in return, it is called an Ārșa marriage[liv].
Baudhāyana I.11.20.4 defines it as, “4. If (the bridegroom) after offering the first burnt oblation of parched grain (receives the maiden) for a bull and a cow, that is the rite of the Ŗșis (Ārșa)[lv].
Āpastamba II. 5. 11. 18 defines Ārșa marriage as, “18. At the wedding called Ārșa, the bridegroom shall present to the father of the bride a bull and a cow[lvi].
Gautama IV. 8 defines it as, “8. At the Ārșa (wedding the bridegroom) shall present a cow and a bull to him who has (authority over) the maiden[lvii].”
Āśvalāyana Gŗhya Sūtras I.6.4 defines the Ārșa rite as, “4. He may marry her after having given a bull and a cow (to the girl's father): this (is the wedding called) Ārșa. (A son) brings purification to seven descendants and to seven ancestors on both sides[lviii].
According to Vasiṣṭha I.32, Ārșa marriage is, “32. And (if the father gives his daughter) for a cow and a bull, (that is called) the Ārșa rite[lix].
Even though assigned as the practice of ancient sages, Ārșa marriage rite of exchanging the girl for a cow and a bull was criticized severely on the ground that the gift has a nature of a sale.
Manusmŗti III.53 states, “Some call the cow and bull (given) at an Ārșa wedding a gratuity; (but) that is wrong, since (the acceptance of ) a fee, be it small or great, is a sale (of the daughter)[lx]. ”
Vasiṣṭha I.36 mentions “36. The purchase (of a wife) is mentioned in the following passage of the Veda, 'Therefore one hundred (cows) besides a chariot should be given to the father of the bride[lxi].'”
Āpastamba II. 6. 13. 12 refutes this averment by stating, “12. It is declared in the Veda that at the time of marriage a gift, for (the fulfillment of) his wishes, should be made (by the bridegroom) to the father of the bride, in order to fulfill the law. ‘Therefore he should give a hundred (cows) besides a chariot; that (gift) he should make bootless (by returning it to the giver).’ In reference to those (marriage-rites), the word ' sale ' (which occurs in some Smŗtis is only used as) a metaphorical expression; for the union (of the husband and wife) is effected through the law[lxii].”
The period of the Ŗșis has long ago gone and the ascetics of today rather like to live unmarried. People have abandoned the practice of accepting kine at the time of marriage and Ārșa marriage has also become obsolete.

10. What is a Prājāpatya Marriage?

Manusmŗti III.30 defines a Prājāpatya marriage as, “30. The gift of a daughter (by her father) after he has addressed (the couple) with the text, ‘May both of you perform together your duties,’ and has shown honour (to the bridegroom), is called in the Smŗti Prājāpatya rite[lxiii].’
Yājñavalkyasmŗti III.60 defines it as, “60. Where (the daughter) is given to a suppliant (bridegroom) by saying to the couple, ‘May both of you perform together your duties,’ that is Kāyā marriage. The son born of her purifies six generations on each side, together with himself[lxiv].Kāyā is another name for Prājāpatya.
Nāradasmŗti XII.40 defines Prājāpatya rite as, “40. ………….. When he has been addressed with the words, 'Fulfill your sacred duties together (with her),' it is termed the Prājāpatya form[lxv]. 
Viṣṇusmŗti XXIV.22 defines Prājāpatya as, “22. (If she is given to a suitor) by his demand, it is called a Prājāpatya marriage[lxvi].
Baudhāyana I.11.20.3 defines it as, “3. If (the father gives his daughter away) after clothing her and decking her with ornaments, (saying) 'That (is thy wife), fulfill the law (with her).’ that (is) the rite of Prajāpati (Prājāpatya[lxvii]).
Gautama IV. 7 defines it as, “7. At the Prājāpatya (wedding) the marriage formula is,'Fulfill ye the law conjointly[lxviii].”
Āśvalāyana Gŗhya Sūtras I.6.3 defines Prājāpatya rite as, “3. They fulfill the law together: this (is the wedding called) Prājāpatya. (A son) brings purification to eight descendants and to eight ancestors on both sides[lxix].
The core of the Prājāpatya marriage lies on the joint duty of the couple to fulfill the law. So there is a rude kind of equality between the man and wife married in this way. However the actual key is revealed by Viṣṇusmŗti which prescribes only the demand for the girl by the suitor and its acceptance by the father of the girl. In Brāhma marriage it is the duty of the father to seek a bridegroom. But in Prājāpatya the bridegroom seeks the bride. However Bālambhațța when commenting on the Mithākșara vyākhyā of Vijñānesvara on Yājñavalkyasmŗti III. 60 maintains that, “the supplication for the girl by the bridegroom, is not a necessary condition[lxx].” But if it is so, and if the father takes initiation, then why can’t he resort to the more recognized and easy rite of Brāhma? The answer may point to the fact that Prājāpatya as well as Daiva and Ārșa is a certain type of ceremonial marriage, whereas Brāhma marriage has remained the general lawful marriage.
Unlike Gāndharva, there is no element of mutual love in Prājāpatya at the time of marriage, even if the suitor demands the girl. All the authors except Baudhāyana do not speak of clothes and ornaments. This reveals that as the suitor has demanded for the girl, the father of the girl is not duty bound to hand over her properties to the suitor. Baudhāyana on the other hand maintains that the property belonging to the girl should be given to her. Āpastamba and Vasiṣṭha do not accept Prājāpatya marriages at all. Even though the words for addressing the couple with the text have undergone change, the demand by the suitor and subsequent gift of the girl is still existent. However law maintains that Prājāpatya marriage is obsolete.

11. What is an Āsura Marriage?

Manusmŗti III.31 defines an Āsura marriage as, “31.When (the bridegroom) receives a maiden, after giving as much wealth as he can afford, to the kinsmen and to the bride herself, according to his own will, that is called the Āsura rite[lxxi].’
Yājñavalkyasmŗti III.61 defines it as, “61. The Āsura by largely giving of money[lxxii]…….
Nāradasmŗti XII.42 defines Āsura rite as, “42. …………… When a price is (asked for the bride by the father and) taken (by him), it is the form termed Āsura[lxxiii]. 
Viṣṇusmŗti XXIV.24 defines Āsura as, “24. If the damsel is sold (to the bridegroom), it is called an Āsura marriage[lxxiv].
Baudhāyana I.11.20.7 defines it as, “7. (If the bridegroom receives the maiden) after gladdening (the parents) by money, (that is) the rite of the Asuras (Āsura[lxxv]).
Āpastamba II. 5. 12. 1 defines Āsura marriage as, “1. If the suitor pays money (for his bride) according to his ability, and marries her (afterwards), that (marriage is called) the Āsura rite[lxxvi].
Gautama IV. 11 defines it as, “11. If those who have (authority over) a female are propitiated by money, (that is) an Āsura wedding[lxxvii].”
Āśvalāyana Gŗhya Sūtras I.6.6 defines the Āsura rite as, “6. He may marry her after gladdening (her father) by money: this (is the wedding called) Āsura[lxxviii].
According to Vasiṣṭha I.35, Āsura marriage is, “35. If, after making a bargain (with the father, a suitor) marries (a damsel) purchased for money, that (is called) the Mānușa rite[lxxix].” Here Mānușa and Āsura make the same sense.
In Chapter V of Part III of the Kāmasūtra of Vātsyāyana there is a paragraph that can be termed as a form of Āsura Marriage. It runs, “The man should become a great friend of the brother of the girl, the said brother being of the same age as himself, and addicted to courtesans, and to intrigues with the wives of other people, and should give him assistance in such matters, and also give him occasional presents. He should then tell him about his great love for his sister, as young men will sacrifice even their lives for the sake of those who may be of the same age, habits, and dispositions as themselves. After this the man should get the girl brought by means of her brother to some secure place, and having brought fire from the house of a Brāhman, should proceed (for marriage) as before[lxxx].”
Manusmŗti III. 51-52 strongly criticizes this rite and maintains that what is given is the property of women. He states,
“51. No father who knows (the law) must take even the smallest gratuity for his daughter; for a man who, through avarice, takes a gratuity, is a seller of his offspring.
52. But those (male) relations who, in their folly, live on the separate property of women, (e.g. appropriate) the beasts of burden, carriages, and clothes of women, commit sin and will sink into hell[lxxxi].”
Manusmŗti III.54 adds, “54. When the relatives do not appropriate (for their use) the gratuity (given), it is not sale; (in that case) the (gift) is only a token of respect and of kindness towards the maidens[lxxxii].”
Manusmŗti IX. 98 and 100 state, “98. Even a Śudra ought not to take a nuptial fee, when he gives away his daughter; for he who takes a fee sells his daughter, covering (the transaction) by another name.)
100. Nor, indeed, have we heard, even in former creations, of such (a thing as) the covert sale of a daughter[lxxxiii]
Contemning Āsura marriage Bālambhațța when commenting on the Mithākșara vyākhyā  of Vijñānesvara on Yājñavalkyasmŗti III. 61 states, “In Ārșa form of marriage also, the bridegroom gives presents to the father of the bride, but that is allowed by the Śāstra. But in the present case (Āsura), the bridegroom of his own will and not because there is any injunction of the Śāstra, voluntarily, and in a way, purchases the girl, by spending a large amount of wealth[lxxxiv].”
The ingredients of an Āsura marriage are receiving the money given by the suitor by the kinsmen of the girl and subsequent marriage. More or less all the authors think that there is an element of sale of a girl in it. However Manu maintains that if the relatives of the girl does not utilize such wealth for their sake, and keeps it as belonging to the girl, what is given can be considered as a token of respect and of kindness towards the maidens. Vasiṣṭha I.35 empowers the father and the suitor to make a bargain on the price of the girl.

NOTES


i. Sharma, Arvind (2002), "On Hindu, Hindustan, Hinduism and Hindutva", Numen 49 (1): 1–36, JSTOR 3270470
[ii] Sharma, Arvind (2002), "On Hindu, Hindustan, Hinduism and Hindutva", Numen 49 (1): 1–36, JSTOR 3270470
[iii] Sharma, Arvind (2002), "On Hindu, Hindustan, Hinduism and Hindutva", Numen 49 (1): 1–36, JSTOR 3270470
[iv] Jha, D. N. (2009), Rethinking Hindu Identity, Routledge, ISBN 978-1-84553-459-2 Page 15
[v] Sharma, Arvind (2002), "On Hindu, Hindustan, Hinduism and Hindutva", Numen 49 (1): 1–36, JSTOR 3270470
[vi] Chapter III The flight of Khusrau in the middle of the first year of my reign of The Memoirs of Jahangueir by Rogers
[vii] The Mithakshara with Visvarupa and Commentaries of Subodhini Balambhatti, Edited by S.S.Setler, 1912, Brahmavadin Press, Georgetown, Madras, Page 30
[viii] SBE Vol.25, P 176
[x] SBE, Vol 2, Page 269
[xi] SBE, Vol 25, Page 343
[xii] SBE. Vol 14, Page 91
[xiii] SBE. Vol 7, Page 109
[xiv] SBH Vol 21, Page 129
[xv] SBE, Vol 14, Page 91
[xvi] SBE, Vol 2, Page 269
[xvii] SBE, Vol 25, Page 343-344
[xviii] SBE, Vol 7, Page 109
[xix] SBE, Vol 33, Page 174-176
[xx] SBE, Vol 33, Page 175
[xxi] SBE, Vol 33, Page 184-185
[xxii] SBH Vol 21, Page 166
[xxiii] SBE, Vol 25, Page 197
[xxiv] SBE, Vol 25, Page 339
[xxv] SBE, Vol 25, Page 363
[xxvi] SBE, Vol 7, Page 111
[xxvii] SBE, Vol 29, Page 164
[xxviii] SBE, Vol 42, Page 96
[xxix] The MahaBharata of Krishna-Dwaipayana Vyasa Translated into English Prose Adi Parva Translated by Kisari Mohan Ganguli, 2005 Electronic version of Project Gutenberg
[xxx] Kautilya’s Arthashastra, Translated and Published by R. Shamasastri, Electronic version, Page 219
[xxxi] SBE, Vol 14, Page 6
[xxxii] The Kamasutra Aphorisms on Love by Vatsyayana Translated by Sir Richard Burton, electronic version, Page 63
[xxxiii] SBE, Vol 25, Page 80
[xxxiv] SBH, Vol 21, Page 123
[xxxv] SBE, Vol 33, Page 173
[xxxvi] SBE, Vol 7, Page 107
[xxxvii] SBE, Vol 14, Page205
[xxxviii] SBE, Vol 2, Page 126
[xxxix] SBE, Vol 2, Page 194-195
[xl] SBE, Vol 29, Page 166
[xli] SBE, Vol 14, Page 6
[xlii] SBE, Vol 25, Page 80
[xliii] SBH, Vol 21, Page 124
[xliv] SBE, Vol 33, Page 173-174
[xlv] SBE, Vol 7, Page 107
[xlvi] SBE, Vol 14, Page 205
[xlvii] SBE, Vol 2, Page 126
[xlviii] SBE, Vol 2, Page 195
[xlix] SBE, Vol 29, Page 166
[l] SBE, Vol 14, Page 6
[li] SBE, Vol 25, Page 81
[lii] SBH, Vol 21, Page 124
[liii] SBE, Vol 33, Page 173-174
[liv] SBE, Vol 7, Page 107
[lv] SBE, Vol 14, Page 205
[lvi] SBE, Vol 2, Page 126
[lvii] SBE, Vol 2, Page 195
[lviii] SBE, Vol 29, Page 166
[lix] SBE, Vol 14, Page 6
[lx] SBE, Vol 25, Page 85
[lxi] SBE, Vol 14, Page 7
[lxii] SBE, Vol 2, Page 131-132
[lxiii] SBE, Vol 25, Page 80-81
[lxiv] SBH, Vol 21, Page 125
[lxv] SBE, Vol 33, Page 173
[lxvi] SBE, Vol 7, Page 107
[lxvii] SBE, Vol 14, Page 205
[lxviii] SBE, Vol 2, Page 195
[lxix] SBE, Vol 29, Page 166
[lxx] SBH, Vol 21, Page 126
[lxxi] SBE, Vol 25, Page 81
[lxxii] SBH, Vol 21, Page 126
[lxxiii] SBE, Vol 33, Page 174
[lxxiv] SBE, Vol 7, Page 108
[lxxv] SBE, Vol 14, Page 206
[lxxvi] SBE, Vol 2, Page 127
[lxxvii] SBE, Vol 2, Page 195
[lxxviii] SBE, Vol 29, Page 166
[lxxix] SBE, Vol 14, Page 6-7
[lxxx] The Kamasutra Aphorisms on Love by Vatsyayana, Translated by Sir Richard Burton, Electronic version, Page 71-72
[lxxxi] SBE, Vol 25, Page 84
[lxxxii] SBE, Vol 25, Page 85
[lxxxiii] SBE, Vol 25, Page 345
[lxxxiv] SBH, Vol 21, Page 127

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