CUSTOMARY RIGHTS AND CEREMONIES: PROBING THE LOOPHOLES OF CUSTOMS IN A HINDU MARRIAGE

INTRODUCTION

Marriage is considered the building block of a family. It is a ceremony and a matrimonial union by which two persons are made, husband and wife. Marriages generally involve many customs and rituals, especially when it comes to Hindu marriages. However, with changing times and liberalisation in thoughts, few members of the society are raising questions about some of the rituals that, prima facie, look biased towards females. In one such incident a few months ago, Tapasya Parihar, an IAS officer, refused to participate in the Hindu ritual of Kanyadaan during her marriage.[1] Bride, in her opinion, is not an item to be donated, especially against her choice. Parihar’s action sparked a controversy on social media, with many people applauding her for breaking with tradition, while others were angered and accused her of defaming Hindu practices. In a similar incident, Dia Mirza, a Bollywood actress, married businessman Vaibhav Rekhi in a ceremony administered by a female priest, breaking traditions. She also said they had opted not to undertake Kanyadaan and ‘bidaai’ rituals.[2]

The above-mentioned incidents in recent times have yet again ignited the debate on mandatory customary rites and ceremonies in a Hindu marriage. Hence, in light of the aforementioned premise, the article analyses the concept, necessity, and legality of such rituals and customs performed in Hindu marriages and whether they should legally be an intrinsic part of a Hindu marriage. Furthermore, the article will highlight the legal and jurisprudential loopholes in the legality of such ceremonies, along with putting forth some suggestions to overcome the same.

CEREMONIES IN HINDU MARRIAGE: DISSECTING THE LEGAL OUTLOOK

Under Section 7 of the Hindu Marriage Act, 1955[3] (hereinafter the HMA), only the solemnisation of customary rites and ceremonies accord the status of a valid marriage, and if these mandatory rites and ceremonies are not executed, unless the customs of a community permit such exclusion, the said marriage becomes null and void. To illustrate, in a landmark judgment of Bhaurao Shankar Lokhande v. State of Maharashtra,[4] the Supreme Court ruled that any rights or rituals will not solemnise a Hindu marriage; but only the ‘customary rites and ceremonies’ are compulsory. Even though clause (1) of Section 7 contains the term “may,” the courts have found in a plethora of judgments that the rituals and ceremonies for marriage are mandatory. In this context, the word “may” must be construed as “shall.”

However, even prior to HMA’s enactment, it was a settled law that an omission of certain shastric ceremonies and rites of marriage would not amount to marriage being rendered invalid, provided that those ceremonies and rites are not recognised by the said community and the accepted and established rites and ceremonies of the said community are performed instead. To perform certain customary rites and ceremonies, it is a precondition to establishing that the said caste or community is perennially following the said ceremonies since ancient times and is regarded de rigueur to be performed, and should not be against the law, public policy and morality.

Furthermore, no community, caste, cult or movement is permitted to change, modify, or invent a ritual at will. To illustrate, in the case of Deivayani v. Chidambara,[5]an organization viz. Anti-Purohit Association or Self-Respectors’ Cult, which exists in Tamil Nadu, devised some simplified rites and ceremonies of marriage with the objective of calling a halt to the prevalent ceremonies of Hindu marriages. The court, although commending the initiative of simplification of procedures, held that no one had the authority to meddle with the personal laws, and that if permitted, it would develop a precarious doctrine, however benevolent the object. The court declared the marriage performed in the instant case void.

Moreover, just like one is not free to devise a new ceremony, the performance of non-essential ceremonies and rites are also not valid, despite the parties to the marriage having an intent to marry. For instance, in Dr. A. N. Mukerji v. State,[6] the parties performed three different ceremonies at different times. It is a settled law that the marriage is regarded as legitimate if it is solemnised by customary rites and ceremonies of at least one party, i.e., either the groom or the bride. None of the three ceremonies fell into the aforementioned criterion. The court, in the instant case, held that performing such mock rites and ceremonies failed to account for a legal solemnisation of marriage.

CUSTOMARY RITES AND CEREMONIES: IDENTIFYING THE JURISPRUDENTIAL CAVITIES

The courts have rigidly held their judgments in favour of the performance of customary rites and ceremonies of both or one of the parties for the legal validity of marriage, overlooking the portion of intent. Whether the parties intended to become wife and husband is a redundant factor for the courts to examine, making it one of the substantial flaws in the jurisprudence related to Hindu marriages. Resultantly, many cases of bigamy fail to be prosecuted in the courts of law as a consequence of a lack of evidence in relation to the solemnisation of the second marriage due to the jurisprudence of mandatory customary rites and ceremonies, despite the parties intending to do so.

Furthermore, due to the lack of uniformity in customs and rites in a Hindu marriage, it becomes complex to identify a consistent custom. Even the judiciary has failed to do so. Through a plethora of judgments, the customs in Hindu law have not been allowed to be invented or altered, however progressive or simplified they have been. The justification for the judgments rested on the jurisprudence that a Hindu marriage is sacramental.

However, this jurisprudence fails to appear impeccable. Although most Hindus still like to refer to their marriage as a sacrament, the truth is that not very much of the sacramental part of a Hindu marriage is left in contemporary times. To illustrate, it is neither a perpetual union (a unification for all future lives, as ancient Hindus believed) nor an inviolable marriage, as divorcees, widowers, and widows, are unconfined to remarry. Moreover, a Hindu marriage is simply referred to as a “Hindu marriage” under the HMA, and not a sacrament. The only remaining sacramental feature of a Hindu marriage is that it must be solemnised with various shastric ceremonies. As a result, it appears that the saptpadi is the only rite required for the solemnisation of Hindu marriages, that too with acknowledgeable exceptions.

Therefore, a dire need arises for a simplified and uniform version of customary rites and ceremonies to legally constitute a valid marriage, which will be applied to all Hindus. In furtherance of this step, an uncomplicated and streamlined civil marriage ceremony can also be provided to persons marrying or willing to marry under the HMA in lines with the provisions of the Special Marriage Act, 1954[7] (hereinafter ‘the SMA’). Contrary to the doubts prevalent in common parlance, marriages under the provisions of the SMA are not plain and effortless. Marriages under the SMA are managed by ten sections, making it a comprehensive exercise. Streamlining the marriages of HMA in line with SMA will, however, make the process uniform, which shall be the foremost aspect to fulfil in light of several discrepancies pervasive in relation to customary rites and ceremonies in marriages under HMA.

Furthermore, mandatory registration of Hindu marriages under personal laws can be a breakthrough in getting rid of inconsistencies related to ceremonies. However, mandatory registration of marriages should not disable the parties from performing any other additional rites and ceremonies, whether customary or shastric. The arch focus should be located in rural India, where all panchs of gram panchayats, revenue officers and officers of magistrate rank, both judicial and executive, may be assigned additional duty as marriage officers and should be sanctioned to officiate civil ceremonies of the marriages.

CONCLUSION

It is obvious to establish from the above-mentioned judgments that the ceremonies like saptapadi or Kanyadaan in a marriage are not a necessity. Marriage is legal and, as per the Hindu law, if it is solemnised according to the ‘customary rites and ceremonies’ of either the bride or the groom along with their consent. However, the ambit of customary rites and ceremonies in itself is wide, extensive and inexplicit. A custom for one person may not be a custom for another, especially in a diverse country like India. Since the judicial pronouncements to date do not emphatically set out the essential and must-do rites for a Hindu marriage, the question about important ceremonies of a Hindu marriage remains assorted and unaddressed in precise terms, making way for numerous conflicts. As modern Indian society gradually becomes homogeneous, a need for a uniform custom for the legality of marriage may forge a satisfactory solution, starting with mandatory marriage registration.

Author(s) Name: Ashutosh Anand (National University of Study and Research in Law, Ranchi)

Reference(s):

[1] Trending Desk, UPSC AIR 23 IAS Officer Tapasya Parihar Denies to Perform Kanyadan, Sparks Row, News 18 (Dec. 20, 2021), https://www.news18.com/news/education-career/upsc-air-23-ias-officer-tapasya-parihar-denies-to-perform-kanyadan-sparks-row-4573685.html.

[2] Entertainment Desk, Dia Mirza wedding solemnised by a female priest, actor says ‘we said no to Kanyadaan and Bidaai’, The Indian Express (Feb. 18, 2021), https://indianexpress.com/article/entertainment/bollywood/dia-mirza-is-proud-as-she-takes-on-patriarchy-with-a-priestess-performing-her-nuptials-7192313/.

[3] The Hindu Marriage Act, 1955, s. 7.

[4] Bhaurao Shankar Lokhande v. State of Maharashtra (1965) 2 SCR 837.

[5] Deivayani v. Chidambara AIR 1954 Mad 657.

[6] Dr. A. N. Mukerji v. State AIR 1969 All. 489.

[7] Special Marriage Act, 1954.