What do you mean by the dictum that “Hindu marriage is a sacrament and not a contract”?

What do you mean by the dictum that “Hindu marriage is a sacrament and not a contract”?

Ans. Nature of marriage under the old Hindu Law.—If we turn over the pages of our Hindu Shastras; or if we have a glance over ancient Hindu Jurisprudence, we find that marriage ceremony is the last of the tea sacraments of the purifying ceremonies. Marriage tie is a tie which can never be broken and it is a relation established from birth to birth, according to ancient Hindu Law. Some Smritikars have said that even death can not break off the relation of wife and husband, which is sacred and religious. Their Lordships of the Calcutta High Court held in the case of Manmohini v. Basant Kumar, that “Hindu marriage is more than a sanskar (sacrament). It is the union of flesh with flesh and bone with bone.” The object of marriage, according to the Hindus, is the getting of children and the proper performance of religious ceremonies.The sanctify of marriage was held to be so great that it was regarded to have some divine origin and was thought to be predestined. The husband receives his wife from the gods and must always support his wife if she is faithful. In Shivanandy v. Bhagavanthymma (A.LR. 1962 Mad. 400), the court observed that marriage is binding for life because the marriage rite completed by saplapadi before the consecrated fire creates a religious tie, and a religious tie when once created .cannot be untied. It is not a mere contract in which a Consenting mind is indispensable. In case of Copal Kishan v. Mithilesh Kumari, (A.LR. 1979 AIL 316), the Allahabad High Court observed that the institution ofmatrimony under the Hindu Law is a sacrement, and not a mere socio-legal contract. In ancient Hindu Law women were to be respected and honoured. Manu has said, “Women must be honoured and adorned by their fathers, brothers, husbands and brothers-in-law who desire their own welfare. Where women are honoured, there the Gods are pleased, but where they are not honoured, no sacred rite yields rewards”. Only the present Act (i.e., the Hindu Marriage Act, 1955) has introduced divorce or dissolution of marriage. None can trace out divorce in ancient Hindu Law. The Vedic rules expressly declare that a man may have several wives but a woman cannot have many husbands. Husbands were treated as God for the wives. Wives were always associated in all the religious offerings and rituals with their ljusband. Mayne has commented- “In the Vedic period, the sacredness of the marriage tie was repeatedly declared, the family ideal was decidedly high and was often realised”. Many old writers said, “A woman is hal f of her husband and completes him”. Manu disapproves of divorce and remarriage of women : “The husband is declared to be one with the wife. Neither by sale nor by repudiation is a wife released from her husband. Only once a maiden is given in marriage”. The ancient textual Hindu Law never allowed divorce or judicial separation except in some categories of lower castes. Remarriage is found in the text of Narada and Kautilya but the field is very narrow. According to Narada, “If the husband, be missing or dead or, retired from the world, or impotent, or degraded, in these five calamities a woman may take another husband”. Kautilya says, “If the husband is wicked, is settled in a foreign country, is a traitor has become a danger to the life of the wife, is out caste or is impotent, the wife may abandon him.” But Manu opposed this idea very vehemently. Marriage as a sacramental union implies several things, first, the marriage between man and woman is of religious or holy character not a contractual union. For a Hindu, marriage is obligatory not merely for begetting a son in order to discharge; the debt of his ancestors but also for the performance of other religious and spiritual duties. Marriage, according to Shasiras, is a holy sacrament and the gift of the girl to a suitable person is a sacred duty put on the father on the performance of which the father gets great spiritual benefit. Definition of Marriage : Marriage is not a civil contract.—Thus under the old Hindu Law. Hindu marriage is unlike a Christian marriage where marriage is treated as a contract and can be made and broken by mere offer and acceptance. This is different from any Muslim marriage which is contractual and has its objects to be procreation and the legalization of children. It is a sacrament or a holy union for the performance of religious duties. Marriage involves the transfer of dominion over the damsel from the father to the husband and has always been the foundation of peace and order in any,civilised society. It was amongst Hindus, a settled institution with a religious character attached thereto even at the Vedic period. In Copal Kishan v. Mithilesh Kumari, (A.I.R. 1979 All. 316), the Allahabad High Court observed thus about the nature of the institution of Hindu Marriage : “The institution of matrimony under the Hindu Law is a sacrament, and not a mere socio-legal contract. It is not performed for mere emotional gratification and is not a mere betrothal. Its context is religious. It is regarded as part of life of the soul. It is a holy spiritual union corresponding to Consortium omnium vitoe of Rome, a process by which the husband and the wife become one. The bride on the seventh step of the “saptapadi” loses her original Cotra and acquires the Gotra of the bridegroom, and a kinship is created what is not a mere friendship for pleasure. A Hindu marriage thus performed is regarded as indissoluble”. It does not become invalid on the ground that it is effected during minority of either the bride or the bridegroom but it is strictly a religious institution. Nature of marriage under the Hindu Marriage Act (Present Law).—The Hindu marriage contemplated by the Act hardly remains sacramental. Mr. S.T. Desai, the editor of Mullas Principles of Hindu Law concludes that a Hindu marriage under the Act is hot entirely or necessarily a sacrament but a union of one man with one woman to the exclusion of all others satisfied by solemnization of the customary rites and ceremonies of either party essential for a marriage and directly it exists, creates a relation and status not imposed or defined by contract by law.