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
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, Āraṇyaka 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
- The six Vedāṅgas (grammar, meter, phonetics, etymology, astronomy and rituals),
- The Itihāsa or the Epics (the Mahābhārata and Rāmāyaṇa),
- The texts on the four purushārthas or proper goals or aims of human life:
- Dharma: Mainly Dharma-sūtras (particularly by Gautama, Āpastamba, Baudhāyana and Vāsiṣṭha) and Dharma-śāstras (particularly Manusmṛti, Yājñavalkya Smṛti, Nāradasmṛti and Viṣṇusmṛti).
- Artha Mainly the Arthaśāstra of Chāṇakya, the Kamandakiya Nītisāra, Bŗhaspati Sūtra, and Śukra Nīti.
- Kāma: Mainly the Kāmasūtra of Vātsyāyana
- Mokșa: Mainly the later Upanishads (early Upanishads are considered Śruti literature), Vivekachūdamaṇi, Bhagavad Gīta, and the śāstras on Yoga.
- The Purāṇas (literally, "of old"),
- The Kāvya or poetical literature,
- The extensive Bhāșyas (reviews and commentaries on Śrutis and non-Śruti texts),
- The Sūtras and Śāstras of the various schools of Hindu philosophy
- 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
Svairiṇi (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 Sapiṇda 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].’
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
[v] Sharma, Arvind (2002), "On Hindu, Hindustan, Hinduism and Hindutva",
Numen 49 (1): 1–36, JSTOR 3270470
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