Hindu Marriage: Whether a Sacrament or a Civil Contract – Essay

It may be noted that a marriage under Hindu Law is not only a samskara or sacrament, but the only samskara prescribed for women under Hindu Law. Although there was a conflict of decisions on the point, it was generally accepted that a Hindu marriage is also a contract.

A reference to Manu shows that there is actually a gift of the bride. Thus, an essential part of the marriage ceremony is what is called kanyadan. Such kanyadan fulfils all the requirements of a gift under the Hindu Law. It is, therefore, clear that to the extent that a marriage is a gift, it is also a contract.

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Writers on Hindu Law, both ancient and modern, have also generally taken the view that a Hindu marriage is not only a sacrament, but also a contract. The editor of the tenth edition of Mayne’s Book also observes that “while marriage according to Hindu Law is a sacrament, it is also a civil contract, which takes the form of a gift.”

Similar observations are to be found in several decided cases, a few of which are given below:

(i) In Purshottamdas v. Purshottamdas (21 Bom. 23), the Court observed that “Marriage of Hindu children is a contract made by their parents.”

(ii) In Bhagwati Saran Singh v. Parmeshwari Nandar Singh, (1942 ILR All. 518), the Court after quoting extensively from Macnaghten’s Hindu Law, Strange’s Hindu law and Vyavastha Chandrika, expressed the view that a Hindu marriage is not only a sacrament, but also a contract.

(iii) In Muthusami v. Masilamani, (33 Mad. 342), the Court observed: “A marriage, whatever else it is, i.e., a sacrament, and institution, is undoubtedly a contract entered into for consideration, with co-relative rights and duties.”

(iv) The Calcutta High Court has also observed, in Anjona Dasi v. Ghose (6 Bengal Law Reporter, 243), that suits relating to marriage deal with that which in the eye of the law must be treated as a civil contract, and important civil rights arise out of that contract.

In view of the above-mentioned and other cases, it can safely be concluded that under the ancient, uncodified Hindu Law, a Hindu Marriage was not only a sacrament, but also a contract.

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