SACRAMENT OR CONTRACT
Whether marriage under Hindu Marriage Act, 1955 is sacrament or contract?
Marriage is a personal activity which allows the two persons of different sex to live together under one roof and perform their respective matrimonial obligations. Every religion in the world recognizes the concept of marriage but the nature of marriage is different in every religion. According to some religions, it is a sacrament and according to some religions it is a contract and some says that it is semblance of both i.e. marriage is a combination of sacrament as well as contract.
Now, the question arises “what is the nature of Hindu marriage under Hindu Marriage Act, 1955?”
According to Hindu Mythology, Marriage is one of the essential samskaras for every Hindu. It is a holy activity which unites two persons of different sex to perform matrimonial obligations and to help each other physically, emotionally and financially.
Moreover, it is also important because after getting married, they can procreate a boy who will perform the last ceremonies of their parents so that they can get “Moksha”. According to Hindu religion, marriage is permanent, indissoluble union, eternal union and holy union.
Every Hindu considers that once a marriage is solemnized, it cannot be untied. Marriage unites them not only for present life but for “n” number of years because it is solemnized after performing religious ceremonies. According to Hindu religion, it is a sacramental in nature because it is solemnized in the presence of Lord Agni and many other Gods.
But after the enactment of Hindu Marriage Act,1955, the nature of Hindu Marriage has changed. This Act has introduced the concept of “Divorce” which was alien to Hindus before the enactment of this Act. Moreover, this act prescribes the conditions under section 5 for solemnizing a valid marriage.
If, parties to marriage does not fulfill these conditions then their marriage will not be considered a valid marriage. After the introduction of the provisions of “Divorce”, marriage has not remained a permanent and indissoluble union. Now, according to this act, if a spouse does not want to love with another spouse, the former can take the divorce and dissolve the marriage.
Because of these conditions, some scholars say that “Now marriage is contractual in nature”.
But, actually it is neither a sacrament nor a contract. It is a semblance of both i.e. Sacrament and Contract. It is a sacrament because it is solemnized only after performing religious ceremonies. It is also a contract because section- 5 of Hindu Marriage Act 1955, states some conditions which are required to be fulfilled like to solemnize a valid marriage Bride should be of 18 years and Groom should be of 21 years, the consent of both the parties to solemnize a valid marriage must be free. According to section- 12 of Hindu Marriage Act, 1955, if the consent of parties is not free then in such a case marriage will be considered “Voidable”.
The conditions which have been laid under section- 5 of Hindu Marriage Act, 1955, are somewhere similar with the conditions which have been laid down under section- 10 of Indian Contract Act, 1872 and section- 10 talks about the competency of the parties to make a contract.
According to section-10 of ICA, 1872, if parties want to make a contract, they must be major i.e. they must be of 18 years or more and they must be of sound mind and the consent given by them must be free. If, the parties or any of the party is not a major i.e. not of 18 years or more then the agreement will be considered as null and void. It was held in a leading case of Mohori bibee vs. Dharmodas Ghose Ilr (1903) (Pc).
But under a Hindu Marriage Act, 1955, if the parties are not of prescribed age i.e. if they are minor and they solemnize a marriage, then in such a case their marriage will not be considered as null and void. The marriage between minors is a valid marriage under Hindu Marriage Act, 1955. Moreover, this act does not render marriage invalid if the parties have not given their consent.
So, according to Hindu Marriage Act, 1955, a marriage is not a pure contract even if it can be dissolved like a contract. Somewhere, marriage can be considered as a civil contract because the parties have fulfill some conditions which are same to make a contract.
Hence, it can be concluded that it is neither a sacrament nor a contract. It is a semblance of both i.e. sacrament and contract.
Although, marriage under Hindu Marriage Act, 1955 is somewhere contractual in nature but according to section- 7 of Hindu Marriage Act, 1955, to solemnize a valid marriage it is essential for the parties to perform the requisite religious ceremonies. According to this section Saptapadi is one of the essential ceremony and the marriage is completely solemnized when the parties complete the seventh round around the holy fire.
If, in a caste or community religious ceremonies have not been prescribed then in that caste or community the parties have to perform the customary ceremonies which are prevalent in that caste or community. If the parties belong to different caste or communities then in that case they can perform ceremonies prescribed in any of the caste or community. According to this section, if the parties do not perform the requisite ceremonies, in that case their marriage will not be considered as valid marriage.
In a leading case of Bhaurao Shankar Lokhande vs. State of Maharashtra AIR 1965 SC, Supreme Court held that “Unless the marriage is celebrated or performed with proper ceremonies and due form, it cannot be said to be solemnized.”
In a leading case of S. Nagalingam vs. Sivagami 2001 Supreme Court held that “as per section- 7 of Hindu Marriage Act, 1955 and the decision in Bhaurao case, for the proper solemnization of a valid marriage, Saptapadi and invocation before the fire is necessary and without performing this ceremony, marriage will not be considered a valid marriage.”
Hence, it can concluded that to solemnize a valid marriage, it is essential for the parties to perform requisite ceremonies.