Once again interfering in Hinduism as the Indian legislature and judiciary have been accustomed to, the Allahabad High Court stated on 22 March that kanyadan was not a mandatory requirement for the solemnisation of a marriage under the Hindu Marriage Act. The Lucknow bench of the high court ruled that saptapadi (saat phere in Hindi) alone was an essential ceremony for such a marriage.
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This ruling came during the hearing of a revision petition filed by Ashutosh Yadav, who had contested a criminal case filed by his parents-in-law, arguing that his marriage required a kanyadan ceremony as per the law, which was not conducted in his case.
“The act provides saptapadi as an essential ceremony… Whether the ceremony of kanyadan was performed or not, would not be essential for the just decision of the case and, therefore, a witness cannot be summoned under Section 311 CrPC for proving this fact,” Justice Subhash Vidyarthi of the high court said while rejecting Yadav’s revision plea.
Kanyadan or kanyādāna in Hindu texts and history
While vivāha (विवाह) is mentioned in several dharmashastras, Puranas and itihasas — 32 instances as counted by Swadharma — “kanyādāna” features rarely but definitively.
Kanyādāna is made of the Sanskrit words kanyā, meaning “maiden”, and dāna, which has varied implications like “giving away”, “bestowing”, “imparting”, “participating” etc even though feminists and the mainstream media in India harp on the first sense, ignoring the rest. Kanyadan refers to the tradition of a father presenting his daughter for marriage to the groom. symbolising the transfer of responsibility and care from one family to another.
According to the Anusasana Parva Section XLIV in the Mahabharata, kanyādāna means the parents of the girl have not demanded a dowry. It does not mean either donation or gifting.
In the Avanti and Reva Khandas of Skanda Purana, when Uttanapada inquires about kanyādāna, Ishwara says,
सर्वेषामेव दानानां कन्यादानं विशिष्यते। यो दद्यात्परया भक्त्याऽभिगम्य तनयां निजाम्॥३०॥
कुलीनायसुरूपाय गुणज्ञायमनीषिणे। सुलग्ने सुमुहूर्ते च दद्यात्कन्यामलङ्कृताम् अश्वान्नागांश्च पासांसि योऽत्र दद्यात्स्वशक्तितः। तस्य वासो भवेत्तत्र पदं यत्र निरामयम्॥३२॥
येनाऽत्रदुहितादत्ता प्राणेभ्योऽपि गरीयसी । तेनसर्वमिदंदत्तं त्रैलोक्यंसचराचरम् यः कन्यार्थं ततो लब्ध्वा भिक्षते चैव तद्धनम् । सभवेत्कर्मचण्डालः काष्ठकीलो भवेन्मृतः॥३४॥
गृहेऽपि तस्य योऽश्नीयाजिह्वालोल्यात्कथञ्चन । घान्द्रायणेन शुद्धयत तप्तकृच्छ्रण वा पुनः॥३५॥
The passage in Sanskrit above translates to: “Of all dānas, kanyādāna is the best. A parent should give his daughter after approaching a boy of noble birth, handsome features, learning and discretion. The father should give his well-adorned daughter an auspicious lagna (ascendant according to moon signs) and muhūrta (the exact auspicious hours and minutes). If he offers horses, elephants and garments by his capacity, his stay shall be in the region where there is no ailment.”
“If the daughter dearer than one’s own life is given away, it is as though all three worlds have been given away along with the mobile and immobile beings. If anyone begs for wealth for the sake of a virgin, he shall be a karmachāṇḍāla (a chāṇḍāla in action) and he shall become a woodworm after death. If, out of food-greediness, anyone takes food in his house, he will become pure only using the expiation called Cāndrāyaṇa or Taptakṛcchra.”
Uttanapada asks again, “If one has no wealth in one’s house but has a daughter to be given away, how can he celebrate her marriage if he does not beg?”
Ishwara says:
अवित्तेनैव कर्त्तव्यं कन्योद्वहनकं नृप। कन्यानाम समुच्चार्य न दोषाय कदाचन।३७।
अभिगम्योत्तमं दानं यच्च दानमयाचितम्। भविष्यति युगस्यान्तस्तस्यान्तो नैव विद्यते॥३८॥
The above means “Even without wealth, it is important for a king to celebrate his daughter’s marriage by simply uttering the name of the bride. This act does not result in any shortcomings. The most exceptional act of charity is when one offers it without begging, especially when it is done after finding a suitable groom.”
In documented history, a possible origin of this tradition can be traced to 15th-century stone inscriptions found in the Vijayanagara Empire in southern India. There are different interpretations regarding kanyādāna across India.
Hindu Marriage Act
The Hindu Marriage Act (HMA) is a legislation passed by the parliament on 18 May 1955. Alongside this act, three other significant acts were enacted as part of the Hindu Code Bills during the same period. These acts were
- the Hindu Succession Act (1956)
- the Hindu Minority and Guardianship Act (1956)
- the Hindu Adoptions and Maintenance Act (1956)
The primary objective of the HMA was to amend and consolidate the legal provisions concerning marriage among Hindus and other communities. In addition to amending and consolidating the Sastrik Law, it also addressed matters of separation and divorce, which were already present in the Sastrik Law.
This enactment aimed to establish a uniform legal framework for all sections of Hindus. It is important to note that in India, there are separate civil codes that govern individuals belonging to specific religions.
The HMA applies 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;
- any person who is a Buddhist, Jain or Sikh by religion; and
- 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.
Who can get married under HMA
Section 5 of the HMA holds that a marriage may be solemnised between any two Hindus if the following conditions are fulfilled:
- neither party has a spouse living at the time of the marriage
- at the time of the marriage, neither party
- is incapable of giving valid consent to it in consequence of unsoundness of mind or
- though capable of giving valid consent, has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children.
- the bridegroom has completed the age of twenty-one years at the time of the marriage;
- the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits a marriage between the two;
- the parties are not sapindas of each other unless the custom or usage governing each of them permits a marriage between the two.”
Section 6 of the Hindu Marriage Act outlines the guardianship of the bride for marriage. In cases where the consent of a guardian is required for a bride under this Act, the individuals authorized to provide such consent include the father, mother, paternal grandfather, paternal grandmother, full-blooded brother, half-blooded brother, and so forth.
The provision for Guardianship For Marriage was abolished in 1978 following the enactment of the Child Marriage Restraint Amendment. This amendment raised the minimum age for marriage to combat child marriages.
Applicability and procedure
The law applies to Hindus residing outside India only if they are domiciled within the country.
Marriages are promptly registered by the Registrar of Marriage under Section 8 of the Hindu Marriage Act, 1955. All necessary documents are verified on the day of application and the marriage is registered on the same working day by a registrar appointed by the central government, with the marriage certificate issued accordingly.
According to Section 8 of the law, the state government has the authority to establish regulations for the registration of Hindu marriages. These regulations allow the parties involved in such marriages to provide details about their marriage, which will be recorded in the Hindu Marriage Register according to the prescribed conditions.
The purpose of this registration is to simplify the process of validating Hindu marriages. Any rules formulated under this section must be presented to the state legislature.
The Hindu Marriage Register should be accessible for examination during reasonable hours and can be used as evidence for the information it contains.
Traditional Hindu view of marriage
Traditional Hindus hold marriage as a sacred bond. In certain Hindu marriage traditions, the involvement of the state is not required, as marriage is seen as a private matter within the societal context. Within this traditional perspective, marriage holds great significance as a pivotal moment in a Hindu individual’s life and is considered the most important of all Hindu life-cycle rituals.
But then, the HMA allows traditional marriages that are not registered. Section 7 of the law acknowledges the traditions and practices related to marriage. Hindu marriage can be formalised through the traditional customs and rituals of both individuals. These customs involve the saptapadi which entails the bride and groom walking around the holy fire together, taking seven steps. The marriage is considered final and legally binding after the seventh step is taken.
In some Hindu communities, it is seven circumambulations around the fire, with the groom leading the bride and vice versa in three-and-a-half circles each.
Resistance when HMA was made
The union government of the Indian National Congress (INC) made changes to Hindu Marriage laws in 1955 through the Hindu Marriage Act, the Special Marriage Act of 1954, and later in 1983 with the addition of Section 498A to the Indian Penal Code and Section 198A to the Criminal Procedure Code. These legal modifications faced strong opposition from religious groups, particularly concerning divorce, which goes against Hindu beliefs.
Traditional Hindus also opposed the idea of equal inheritance rights for sons and daughters, regardless of the daughter’s marital status. This contradicted the Hindu concept of family, where married daughters were considered part of their husband’s family rather than their father’s.
Some argue that Hindu marriage should not be subject to legislative interference, as the prevailing belief in Hindu society is that marriage is a social duty.
The resistance from the community notwithstanding, another INC-led government tried to change the HMA again in 2010.
Based on the recommendations of the Law Commission, a proposal for legislation was made. The Marriage Laws (Amendment) Bill, 2010, aimed to amend the HMA, 1955, and the Special Marriage Act, 1954, to facilitate divorce on the grounds of irretrievable breakdown of marriage. This bill was presented in the parliament in 2012, replacing the phrase “not earlier than six months” in Section 13 B with “upon receipt of a petition.” But this section could not stand judicial scrutiny.
The Supreme Court determined that it possesses the authority to utilize Article 142(1) to issue a divorce decree based on mutual consent, thereby circumventing the stipulations outlined in Section 13B of The Hindu Marriage Act, 1955. Additionally, the highest judicial body acknowledged its discretionary jurisdiction to dissolve a marriage due to irretrievable breakdown, a ground not explicitly mentioned in Section 13 of the HMA, 1955.
Furthermore, the introduction of Section 13 D in the bill aimed to provide additional protection to wives. This section allowed the wife to contest the granting of a decree if the dissolution of the marriage would lead to severe financial difficulties for her and if it would be unjust to dissolve the marriage under the circumstances.
Additionally, the new Section 13 E imposed limitations on divorce decrees that could impact children born out of wedlock. It stipulated that a court cannot issue a divorce decree under Section 13 C unless it is satisfied that adequate provisions for the maintenance of children born from the marriage have been made, considering the financial capabilities of both parties.
The Marriage Laws (Amendment) Bill of 2010 proposed similar modifications to the Special Marriage Act, 1954, by substituting the phrase “not earlier than six months” in Section 28 with “upon receipt of a petition,” and imposing restrictions on divorce decrees affecting children born out of wedlock.
Despite initial opposition to the bill, particularly concerning potential hardships for women and the perceived bias towards one party in divorce proceedings, amendments were made to address these concerns. The revised bill now includes provisions for the wife’s consent to waive the six-month notice period, with the phrase “Upon receipt of petitions by the husband and the wife.”
Although the Bill was approved by the Rajya Sabha in 2013, it did not pass in the Lok Sabha.
Men’s rights movement groups expressed their opposition to the bill, while Hridaya, an NGO based in Kolkata, took part in a demonstration against it. Amartya Talukdar, a prominent men’s rights activist, voiced his concerns about the bill’s provision of no-fault divorce exclusively for Hindus. According to him, “If the government really wants to bring about empowerment of women, let them make it open for all sections of the society. Let them bring a uniform civil code. Why is it only for the Hindus?”
Demanding of either spouse that marriage be respected
By Section 9 of the legislation, if one spouse withdraws from the company of the other without a valid reason, the offended party has the right to seek the restoration of conjugal rights by applying to the district court. Upon verifying the accuracy of the claims and identifying no legal basis to reject the request, the court may order the restoration of conjugal rights.
Ending marriage
By either spouse
A marriage can be voidable and annulable for the following reasons: the respondent was pregnant by someone other than the petitioning spouse at the time of the marriage, the marriage has not been consummated due to impotency, which can be complete or partial (for example, conditions such as impotence), or the marriage violates the valid consent mental illness condition listed in Section 5.
Husband or wife may file for divorce under specific circumstances:
- continuous desertion for two years or more
- conversion to a faith other than Hinduism
- a mental illness
- leprosy
- venereal disease
If the husband commits rape, sodomy or bestiality, or he has remarried after the start of his first marriage, the wife may file a petition for the dissolution of the marriage.
It is not possible for recently weds to file for divorce within the first year of their union.
By both spouses
Mutual divorce is a clause in Section 13 B of the Act that permits the husband and wife to end their marriage by mutual consent. It’s a legal process that provides a less confrontational and more friendly way to dissolve a marriage. Couples can split up on mutually agreeable terms through mutual divorce, which reduces friction and emotional distress.
No divorce petition may be filed within a year of marriage, according to Section 14 of the Act. There is an exception, nevertheless, in which if one spouse can show extraordinary depravity or hardship from the other spouse, the court may grant the request before the year has passed.
Alimony
Following the finalisation of divorce or judicial separation, Section 25 of the HMA permits either spouse to seek a court order for permanent alimony or maintenance. This provision is designed to offer long-term financial assistance to the spouse with fewer financial resources or earning capacity.
The court takes into account various factors, including the income, assets, and liabilities of both parties, as well as their individual needs and circumstances, when determining the appropriate amount of alimony or maintenance to be granted.
Section 24 of the Act, on the other hand, allows either spouse to request financial support from the other party during the ongoing legal proceedings. The primary goal is to ensure that the dependent spouse can maintain a reasonable standard of living and have the necessary resources to cover their daily expenses. This provision aims to provide temporary relief to the financially weaker spouse until a final settlement is reached.
Court cases dealing with demands to make exceptions to the law are not in the scope of this exposition.
