CUSTOMARY PRACTICES AND HINDU MARRIAGE ACT, 1955

INTRODUCTION

In India, Caste system has a long history. In ancient times, when barter system
prevailedas an every day means of transaction, every caste had its own
significance and a certainnorm of duties. It was understood that a shoe
makers son would become a shoe maker and a kings would rule the
kingdom after him. A particular social group of an individualnot only decided
the profession of an individual but also entailed a certain social cla ssand
family conduct. However, though these professional duties were limited to the
sonsof the families to carry forward, it was important that they also pass on the
family genreand procreate the creed. Hence, marriages took place strictly within
the same castes.As the time changed there have been various changes in the system
of marriage prevalenti n t h e H i n d u s o c i e t y . L i k e w i s e , t h e r e h a d b e e n
a n d s t i l l a r e r e v o l u t i o n s t a k i n g p l a c e against a lot of mal practices in the
institution of marriage.Most ancient societies needed a secure environment for the
perpetuation of the species, asystem of rules to handle the granting of property
rights, and the protection of bloodlines.The institution of marriage handled these
needs. The Hindu Marriage Act 1955 providesfor various rules regarding
marriages and most of the provisions take into considerationt h a t t h e r e s t i l l
exist the customs and traditions a Hindu follows. The provisions
l i k e solemnization have been incorporated in the Act from the customs
and traditions thoseare observed by the Hindus but the provision of registration
of marriage and also that of divorce is new and was never followed by the Hindus.
However, with the modernizationa n d g l o b a l i z a t i o n , t h e p e o p l e o f
t h e n e w g e n e r a t i o n t h e m s e l v e s d o n o t b e l i e v e i n following the
obsolete traditions and therefore they are in fact in favor of more uniformlaws
rather than the customs
DEFINITION OF MARRIAGE
A contract made in due form of law, by which a free man and a free woman
reciprocallyengage to live with each other during their joint lives, in the
union which ought to exist between husband and wife. By the terms
freeman and freewoman in this definition are meant, not only that they are
free and not slaves, but also that they are clear of all bars toa lawful marriage. To
make a valid marriage, the parties must be willing to contract, ableto contract, and
have actually contracted.Hindu marriage is valid legal relationship between a man
(at least 21 years) and a woman(at least 18 years) meeting other conditions for
valid marriage.H i n d u m a r r i a g e i s p e r f o r m e d u n d e r S h a s t r i c
C e r e m o n i e s a n d r i t e s a s l a i d d o w n b y Shastric Hindu law or is
performed under customary ceremonies and rites. However,according to
the legal procedure, certain ceremonies are obligatory in the whol e of
themarriage function to have the marriage considered valid and
completely as per the law.All other customs and ceremonies do not have any
legal standing as far as the validity of the marriage is concerned.According to
Hindu religious texts there are four stages in life:1 . B r a h m a c h a r y a :
Student life2.Grihastha: Household life3.Vanaprastha:
R e t i r e d l i f e 4 . S a n y a s a : R e n o u n c e d l i f e Now the Grihastha (house
holder) stage is the one where marriage takes place.
HISTORY OF MARRIAGE
According to the tenets of Hinduism, marriage is a sacred relationship, a
sacrament, and adivine covenant meant for procreation and the
continuation of family lineage. In thetraditional Hindu system of marriage,
there is no role for the state as marriage remained a private affair within the social
real. Within this traditional framework reference, marriagei s u n d o u b t e d l y t h e
most important transitional point in a Hindus life and the
m o s t important of all the Hindu samskaras, or life-cycle rituals.
Ancient India
In the ancient India, especially in Hindu marriages, there are
certain references of polygamy and polyandry for political as
w e l l a s s o c i a l r e a s o n s , t h e y a r e c o n s i d e r e d criminal offenses today.
However, falling in love before marriage was seen as a sin , akind of
insanity. Still we do find the references of amorous relationships between
princesand princesses. It is observed through out history, a woman was considered
a possessionof first her father and then her husband. Her opinions and views were
not considered for any decision making and even about her own duties and
allowances. Most references tomarriage in the ancient texts suggest that the
Aryans were monogamous. However, somer e f e r e n c e s t o p o l y g a m y
and polyandry have been found in the Hindu epic
o f Mahabharata.
Medieval India
In the medieval age, there were Swayamwaras arranged by Kings for
their daughters,where women get to choose the groom of their choice
and men would have to coo themw i t h a p r e s e n t a t i o n o f t h e i r
abilities. These means sound more m odern rather thanancient.
There are also mentions of abductions of the women by men for
m a r r i a g e purpose. In fact, that was one acceptable way of acquiring the
bride of ones choice. Itwas considered rather gallant of a man to
display such act. In the later days, rights of women or even men while
selecting their life partners changed due to social changes andwars, due to
mixed inhabitant and cultures. It became a parents duty to search for
and
invite the matching alliances for their children. It beca me
n e c e s s a r y t o p e r f o r m a diligence check on any alliance before getting into a
deal. Yes, marriages sure turned intodeals with the dowry systems getting
attached to it. Women lost all the dignity in themarket of marriage and
became just a commodity to be exchanged in lieu of removingthe burden
of social and moral responsibility from their family. As this became
favor from the grooms family over to the brides it was a right to have
compensated for that interms of dowry, which took away most of the wealth and
pride from the brides family.
Modern India
However, the times sure have changed recently and marriages are performed
keeping thed i g n i t y ( e s p e c i a l l y o f t h e b r i d e s f a m i l y ) i n t a c t .
T h a n k s t o m o d e r n i z a t i o n a n d globalization, and changing status
of women in India, the custom of sati got diminished for good. The people
involved didn't and don't have much to say about the decision. The people have a
broad outlook towards their future especially when it comes to
decidingabout their marriage, they dont want to get involved in any kind of
obsolete or orthodoxcustomary rule and rather they want that every step
should be more of a legal nature.Thus they find shelter in Acts like Hindu
Marriage Act and Special Marriages Act.
Customary Practices Related to Marriage
Law may be enacted law based on legislation, conventional law based on
agreement, caselaw based on precedent and customary law based on customs.
Customs reflect norms andvalues of the society. Hindu law has always been to a
great extent customary. Custom istranscendent law. The Smritis and Digests were
largely based upon customary law. Evenwhere a custom exits in derogation of a
laid down in Smritis, it is nonetheless a source of law governing the Hindus.
1
T h e r e m a r k a b l e f e a t u r e o f H i n d u l a w i s t h a t t h o u g h t h e importance
of sacred law is emphasized yet the new development and the local needs arenot
disregarded and sacred law is subordinated to custom.
In the past, the selection of the couple was based on Shastric ideas. The guardians
of thegirl should not only see the boys body, but also consider his
conduct, family means,education and repute. They should choose one
whose age is more than the girl. The boys h o u l d b e s o u n d i n b o d y a n d
i n m i n d a n d h i s f a m i l y s h o u l d b e f r e e f r o m h e r e d i t a r y diseases.
3
The marriage was compulsory for all the girls except for
t h o s e o p t e d asceticism. Brahmin girls were married between ages eight and ten
from sixth or centuryonwards up to the modern times. Polygamy was permitted to
all who could afford, and itw a s e s p e c i a l l y p o p u l a r a m o n g K s h a t r i y a s
f o r p o l i t i c a l r e a s o n s . A c c o r d i n g t o t h e Manasollasa, the king should
marry a Kshatriya girl of noble birth for a chief queen t h o u g h h e
is permitted to have Vaishya or Shudra
w i v e s f o r p l e a s u r e . Early societies for social as well as
political reasons had to have secure means for the perpetuation of the
species and an institution to handle the granting of property
rights.Marriage handled these needs. Arranged marriages have a history since
fourth century inIndian culture. In fact, it is consider as a foundation of
the Indian marriage system. Theculture of arranged marriages has still
survived modernization and industrialization in India. The systems of
divorce and registration were not there in the Hindu Customs. Butwith the
advancement of the society and the legal system the concept of divorce
wasrecognized and the concept of registration of marriage was introduced.
Systematic Building Up of Law
In course of time, the commentaries appear to have acted with ever
increasing force tog i v e a n i m p u l s e t o t h e s y s t e m a t i c b u i l d i n g
u p o f l a w . T h e l a w w a s b a s i c a l l y a n d essentially traditional and
rooted in customs. As a result, the process of development and
assimilation continued and the law had to be gathered having
r e g a r d t o t h e r u l e s o f conduct and practices reflected in the approved
usage and customs.
4
The outstandingfeature of the Hindu Marriage Act 1955 is that
monogamy is now enforced as a rule of law and bigamy is rendered
punishable as a crime. The conditions and ceremonial HinduMarriage are
considerably simplified and any two Hindus can solemnize the
ceremonialm a r r i a g e r e c o g n i z e d b y t h i s a c t . U n d e r t h e S p e c i a l
M a r r i a g e A c t a l l r e s t r i c t i o n s o n marriage, imposed by law or
customs, are removed except as regards certain prohibited degrees of
consanguinity or affinity
5
.
Enactments:
Social usage in relation to Hindu marriage h as been considerable
affected by variouslegal enactments passed, perhaps right from 1833
when the regulation prohibiting satiwas declared. (1) A common form of
civil marriage for all communities in India was provided by the Special
Marriage Act III of 1872, which made it possible for an Indian of whatever caste
or creed to enter into a valid marriage with a person belonging to
anycaste or creed, provided the parties registered the contract of marriage
declaring inter aliathat they did not belong to any reli gion. This Act was
amended by Act XXX of 1923;making it possible for Hindus, Buddhists,
Sikhs and Jains (but not for Christians, Jews, Mahavardans and Parsees) to
declare their religion and yet get their marriage registered.( 2 ) t h e C h i l d
Marriage Restraint Act XIX of 1929, as amended by Act 19 of
1 9 4 6 prohibited marriages of boys under 18 years of age and girls under
14 years of age (3)The Hindu Marriage between parties (a) belonging to the
same gotra or (b) belonging todifferent sub-divisions of the same caste; and
now (4) The Hindu Marriage Act of 1955 which abrogates and modifies all
the past laws. It has made Hindu marriage now strictlyadult and monogamous; has
done away with the caste and gotra restrictions which limitedt h e f i e l d o f
marriage; and has set down definite conditions under which a
d e g r e e o f nullity and further of dissolution of marriage could be obtained.
HINDU MARRIAGE ACT 1955

The Hindu Marriage Act was enacted by the Indian Parliament in the year 1955,
with the purpose of regulating the personal life among the Hindus,
especially their institution of marriage, its validity, conditions for invalidity
and applicability etc. Legislation of lawsrelating to Hindu marriage began from the
year 1829 when sati was abolished by law anddeclared an offence. However,
the Hindu Marriage Law is been getting amended as thesocial and
political changes took place and more and more rights were introduced
to provide differing social status to individuals. Finally, in 1955 the
Hindu Marriage Billwas introduced in the Parliament and was passed by
both the Houses of Parliament.There are many salient features in the
provisions of the act that makes and even prompt a person to consider it as
rather conservative. The underlying note or we can say that the lifeline
that runs throughout the act is that it duly recognizes the religious sentiments
andv a l u e s o f t h e H i n d u s w h i c h t h e y r e s p e c t f u l l y c h e r i s h
a n d c o n s i d e r a s v a l u a b l e . Accordingly the Hindu Marriage Act
h a s c o n s i d e r e d a n d t r e a t e d t h e i n s t i t u t i o n o f marriage among the
Hindus so sacrosanct as it evolved through ages among them,
dulyrecognizing their time immemorial customs, traditions, shastras that include
their ritualsand other practices as practiced and evolved by them over a
long period. Above all theact by covering and encompassing all the people
from the modern offshoots of Hinduismlike Prarthana Samaj, Arya Samaj
and Brahma Samaj also has a modern look by dulyrecognizing those
modern offshoots of Hindu religion.
Applicability:
The Act applies to:

Any person who is Hindu, Buddhist, Jain or Sikh by religion.

Any person who is born to Hindu parents.

Any person who is not a Muslim Christian, Parsi or Jew, and who is not
governed by any other law.The Act does not apply:

To persons who are Muslims, Christians, Parsis or Jews by religion


To members of the scheduled tribes coming within the meaning
of clause (25) of Article 366 of the Constitution of India unless
t h e C e n t r a l G o v e r n m e n t b y n o t i c e otherwise directs.It would be
pertinent to mention the remarkable changes in ancient Hindu Law in
Indiathrough the Hindu Marriage Act-1955:
1.
Inter marriage between persons of different castes is not prohibited.
2.
Monogamy which is essentially the voluntary union for life of one man with
onewoman to the exclusion of all others is now enforced by legislation.3 . B i g a m y
has been made punishable as an offence.
4.
The conditions and requirements of a valid marriage have been
c o n s i d e r a b l y simplified.5.Several matrimonial reliefs e.g., restitution of
conjugal rights, judicial separation,nullity of marriage and divorce have been
provided in this Act.It is a matter of great regret that the Hindu women of our
country fail to avail this kind of opportunity due to the lack of proper legislation.
6
The concept of Solemnization has been there in the Hindu
c u s t o m s b u t t h e l e g a l recognition to divorce and the concept
o f r e g i s t r a t i o n w a s i n t r o d u c e d i n t h e H i n d u Marriage Act 1955 for
the first time. The three are discussed in detail in the
following paragraphs:
SOLEMNIZATION
The word solemnized means to celebrate marriage with proper
ceremonies and in dueform. According to Hindu religious texts marriage is an
act to fulfill Dharma (righteousduty), Arth (acquiring material wealth to
fulfill household duties), Kama (satisfying righteous desires) and Moksha
(achieving liberation or salvation). Both husband and wifeare equal partners
who have the responsibility to uphold the values and pass it on to the
next generation before commencing on to the final journey.
7
In order that the rites andceremonies of marriage could be regarded as
customary, they must stand the test of timeand force of law without discontinuance
at any point of time.
8
The conditions imposed by the Hindu Marriage Act for a valid marriage,
though mayl o o k i n s i g n i f i c a n t o n a s u p e r f i c i a l l o o k , a c t u a l l y
h a v e t h e m o d e r n e l e m e n t s a n d characteristics, of course with a far
sightedness. So as to solemnize a marriage between two Hindus, the
following conditions have been imposed:Section 5 of the Hindu Marriage Act 1955
provides the following conditions for a validmarriage:( i ) N e i t h e r p a r t y
has a spouse living at the time of the marriage; which
a c t u a l l y discourages plural marriages and in the present modern day context, the
provision helpst o p r e v e n t d i s s e m i n a t i o n o f i n c u r a b l e d i s e a s e s l i k e
A I D S a n d o t h e r v i r u l e n t f o r m o f venereal diseases in the society.iii) The
age of eligibility for getting married is fixed as 21 for bridegrooms and
18 for brides, which actually helps to prevent social evils like child
marriages from the IndianSociety.iv) Prevents marriages between prohibited
degrees of relationships.v) Prevents marriages between Sapindas.The provisions
(iv) and (v) have a scientific base because the prevention of a
marriage between persons of prohibited degree of relationship or
sapindas, will actually preventthe birth of physically deformed children
or deaf, dumb and blind children, because the possibility of delivering such
children is more in marriages between persons of prohibited
relationship and sapindas.
9
A s p e r t h e H i n d u s o c i a l c u s t o m s , H i n d u m a r r i a g e s a r e solemnized
through religious rituals.I n S e c t i o n 7 o f t h e A c t , t h e c e r e m o n i e s a n d
c u s t o m s o f a H i n d u M a r r i a g e a r e d u l y recognized, giving a sentimental
value to the act.
Ceremonies of a Hindu marriage
(1) A Hindu marriage may be solemnized in accordance with the
customary rites andceremonies of either party thereto.(2) Where such rites
and ceremonies include the saptapadi (that is, the taking of seven s t e p s
by the bridegroom and the bride jointly before the sacred fire),
t h e m a r r i a g e becomes complete and binding when the seventh step is
taken.Section 7 of the Hindu Marriage Act recognizes the ceremonies and customs
of marriage.H i n d u m a r r i a g e m a y b e s o l e m n i z e d i n a c c o r d a n c e
w i t h t h e c u s t o m a r y r i t e s a n d ceremonies of either party. Such
rites and rituals include the Saptapadi the taking of seven steps by the
bridegroom and the bride jointly before the sacred fire. The marriage b e c o m e s
complete and binding when the seventh step is taken. Even by
g o i n g a s t e p forward, the act stipulates that the marriage is not valid if
Saptapadi is not performed.T h e r e b y t h e H i n d u M a r r i a g e A c t a l s o
r e c o g n i s e s t h e t i m e i m m e m o r i a l c u s t o m s a n d rituals followed by the
Hindus. Where ceremonies like saptapadi and kanyadaan were not performed and
also photographs were not admissible in the court, the marriage was heldnot
solemnized according to the Hindu rights.
10
The expression customary rites andr i t u a l s n a t u r a l l y m e a n s u c h
S h a s t r i c c e r e m o n i e s w h i c h t h e c a s t e o r c o m m u n i t i e s t o which the
party belongs is customarily following. The Hindu Marriage Act does not lay
down any special form of ceremony which has to be performed in all
Hindu Marriages.As a Hindu Marriage is a sacrament the performance of a
sanskar the customary religiousrite must be observed in order to make a marriage
valid.
11
REGISTRATION
In India, a marriage can be registered under either of the two Marriage
Acts:the Hindu Marriage Act, 1955or the Special Marriage Act, 1954.To
be eligible for marriage, the minimum age limit is 21 for males and 18
for females. The parties to a hindu marriageshould be unmarried or
divorced, or if previously married, the spouse by that marriage should not
be alive. In addition, the parties should be physically and mentally healthy andmust
not be related in a way prohibited by the law. The Hindu Marriage Act is
applicableonly to the Hindus, whereas the Special Marriage Act is applicable to all
citizens of India.The Hindu Marriage Act provides for registration of an already
solemnized marriage. Itdoes not provide for solemnization of a marriage by the
Registrar. The Special MarriageA c t p r o v i d e s f o r s o l e m n i z a t i o n o f a
m a r r i a g e a s w e l l a s r e g i s t r a t i o n b y a M a r r i a g e Officer.
12
As provided by Section 8 of Hindu Marriage Act 1955:
No marriage can be registered unless the following conditions are fulfilled
1.A ceremony of marriage has been performed between the
p a r t i e s a n d t h e y h a v e been living together as husband and wife.2.Neither
party has at the time of registration more than one spou se
living.3.Neither party is an idiot or lunatic at the time of registration.
IV Ceremonies of Marriage

The Hindu marriage ceremony consists of several steps. The following is a description of this colourful
and unique ceremony. This is a generalized wedding ceremony, and there are regional and community
variations. Some of the steps may be omitted or added from the following list based on local and family
customs. The dichotomy is that there is no uniformity in the ceremony of the marriage. There is no
uniformity of following ceremonies, rites, rituals or customs in Hindu marriages, neither, there is strict
rules in Hindu law to be followed for solemnizing marriage nor there is consensus among pundits about
essential ceremonies to be followed by Hindu couples. The customs or rituals vary from region to region
or caste or family.

The Hindu Marriage Act, 1955 codified the law relating to marriage among Hindus. Section 2 rules that
the Act applies to any person who is a Hindu by religion in any of its forms and developments. Thus for
instance, Lingayats, Brahmos, Aryasamajists and others who have deviated from orthodox standards of
Hinduism in matters of ceremonial observances are Hindus within the ambit of the Act. So are Buddists,
Jains and Sikhs and also persons converts and reconverts.

Section 4 is of vital importance and gives an overriding effect to the provisions of the Act. It abrogates all
rules of the law of marriage hitherto applicable to Hindus, whether by virtue of any text or law, in
respect of all matters dealt within the Act. The Act also supersedes any other law contained in any
central or state insofar as such legislation is inconsistent with the provisions contained in the Act.
Another section is section 29 which states that nothing contained in the Act is to be deemed to affect
any right recognized by custom or conferred by any special enactment to the same.

The merely wearing mangalsutra or sindoor on forehead does not constitute legally accepted marriage,
if other rites like saptapadi before holy fire were not performed.24 But Homa or Kanyadhan is not
obligatory in Hindu marriage Act. A clear proof of usage outweighs the written text on the ceremonies of
marriage among the Hindus.

According to Section 7 of the Hindu Marriage Act, 1. A Hindu marriage may be solemnized in accordance
with the customary rites and ceremonies of either party thereto. 2. Where such rites and ceremonies
include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before
the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

Before the codification, it was a rule that the marriage should be solemnized according to shastric or
customary rites. If the necessary ceremonies are not performed then it is not a valid marriage.25 The
Hindu marriage contemplated by the Act is a ceremonial marriage and it must be solemnised in
accordance with the customary rites and ceremonies of one of the two parties and the word solemnise
means, to celebrate the marriage with proper ceremonies and in due form. Unless the marriage is
celebrated or performed with proper ceremonies and due for, it cannot be said to be solemnised.
Merely going through certain ceremonies with the intention that the parties are taken to be married,
will not make them ceremonies prescribed by law or approved by any established custom.
Non- observance of the essential ceremonies is, under the Act, no marriage at all. What amounts to
customary rites or mandatory ceremonies is not clear. Once the law27 says necessary ceremonies are
saptapadi and on the other hand the same law says it is not.28 Therefore, the law recognized in Hindu
Society does not make "saptapadi" an indispensable custom in every incident of marriage. The court
further stated that, what is required is substantial compliance with only those rites and ceremonies,
performance of which is, by the customary law of either party, peculiar to it and deemed as absolutely
necessary, and, non-performance of such rites and ceremonies of prime necessity would be regarded as
failure to solemnize the marriage and no valid Hindu marriage can result. This is because a marriage, not
duly solemnized by performance of the essential ceremonies prevalent in the society which the parties
or either of them, belong to, is no marriage at all.

One particular custom observed in one group or clan is very often not recognized by the other and is
often incompatible with the custom followed by any other group of clan or tribe. Though the law
emphasis the importance of the saptapadi, it does not insist upon the same. So marriage may be
complete by the performance of ceremonies other than those referred when the custom of the case to
which the parties belong are followed. kanyadaan is an essential ceremony. Its absence, however, may
not invalidate a marriage.

The court in Virasangappa v. Rudrappa and Anr30 observed that, in matters where the ceremonies are
of different kind (other than stated in vedic text or types of marriage ceremonies) hearsay evidence like
tradition may be received and direct evidence of such marriages was not always possible and one of the
ways in which they might be proved was from the manner of their living and from the way in which they
were treated by the neighbours. Such incidents can be observed among the lingayats, Dudekulas, and
other communities.

Among the Dudekulas the marriage is performed according to Mohammedan law though they observe
certain Hindu rituals on the matters pertaining to right to property by birth, joint family system and in
celebration of Hindu festivals, the court held that the parties are Mohammedans as marriage was
performed according the Muslim law.31 And among the lingayats who predominantly reside in northern
part of Karnataka and southern part of Maharastra, the ceremonies is very simple where the
bridegroom gives the bride a pair of saree and blouse and there is tying of magalsutra after haldi
(turmeric) application ceremony. There is no ceremony such as saptapadi or homa, yet it is a valid
marriage. Among the Gujaratis, the ceremony of the marriage is again different. The main ceremony is
garlanding the groom by the bride and vice versa which is called vara mala. And only four steps are
taken as saptapadi. There is no specific sign to say that they are married.

There has also been an innovation in ceremonies of marriage. In one such case in Tamil Nadu, there
exists an organization, now for at least half a century, known as Anti-Purohit Association or Self-
Respectors' Cult.33 The question was whether these kinds of marriage are valid marriage as there is no
prescribed ceremony is being performed? The court declared it as void.34 Later the Madras Legislature
amended the Hindu Marriage Act by inserting a new Section 7-A which validates such marriages.
V Conclusion

The ceremonies and rites for Hindu marriages are not laid down in the Dharmashastras. These are laid
down in the Grihya sutras. The Grihya-sutras prescribe very elaborate rites and ceremonies for marriage.
The ceremonial day of the solemnization of the marriage begins with the vriddhi sraddha. The ceremony
of panigrahana is followed by the ceremony of agniparnayana. 36 The saptpadi is the most material of
all the nuptial rites, as marriage becomes complete and irrevocable on the completion of the seventh
step.

According to Manu : "The nuptial texts are a certain rule in regard to wed-lock ; and the bridal contract
is known by the learned to be complete and irrevocable on the seventh step of the married pair, hand in
hand, after those texts have been pronounced."37 Apart from the mentioned ceremonies, judicial
pronouncements have been towards one important ceremony that is saptapadi,38 though in some
community this has been dispensed.39

In Rampiayar v.Deva Roma,40 the court said that though vivaha homa is a usual ceremony of a Hindu
marriage, but its non-performance does not render the marriage void, if the saptpadi has been
performed. Hence, the Madras High Court, after examining all the relevant texts, came to the conclusion
that in reality for the ceremonial validity of a Hindu marriage only two ceremonies are essential, one
consists of the secular element, i.e. the gift of the girl (this will include sampradana and kanyadana); and
the second consists of religious element, i.e. the performance of panigrahana and saptpadi. 41 In view of
this state of judicial authority, the textbook writers also do not add to clarity. Mulla holds the view that
(i) invocation before the sacred fire, and (ii) the saptpadi are the only two essential ceremonies of
marriage.42 But he quotes no authority.43

The problem arises in cases of bigamy. A man solemnizes second marriage under different ceremony,
can it be valid marriage? This question came before the court in Dr. A. N. Mukerji v. State, 44 where the
court held that the performance of such mock ceremonies of marriage does not constitute a valid
solemnization of marriage. The court further stated that, not merely the ceremony and rite should not
be a mockery, but it is also necessary that the requisite ceremony prevalent and recognized either on
the side of the bride or on the side of the bridegroom should be performed. Thus, neither the
innovation of ceremonies is allowed nor can a marriage be performed by any sort of ceremonies. In
either case, the marriage will be void.

In midst of all, this jumble of customary ceremonies and rites of marriage, where the burden of proof is
on the party who alleges the customary ceremonies and rites, the only redeeming feature seems to be
the rule of presumption of marriage. Section 144 of the Indian Evidence Act, 187245 says that where
independent evidence of solemnization of marriage is not available, it will be proved to be a valid
marriage by continuous cohabitation between the parties unless contrary is proved. It has been held at
an early date that the policy of law is to lean in favour of validity of marriage.46 In the same breath it
has also been held that continuous and prolonged cohabitation gives rise to a presumption in favour of
marriage, and against concubinage.47 In every case it is necessary to establish that solemnization of
marriage took place, once that is proved. It is not necessary to show that each and every ceremony was
performed.

To conclude the following summary can be drawn- 1. If two Hindus want to perform a marriage under
Hindu law, then it has to be either according to the shastric ceremonies or the customary ceremonies.

2. If two Hindus want to perform their marriage by a civil ceremony they can do so under the Special
Marriage Act, 1954,48 but then it will not be a Hindu marriage. It will be a marriage which will be
governed not by Hindu law but the Special Marriage Act, 1954 and the person opting for marriage under
this law has to forego his personal Law.

VI. Suggestions In view of the above controversy regarding ceremonies of marriage among the Hindus,
the writer humbly submits following suggestions to be inserted in Hindu Marriage Act- 1. Cases of
bigamy are rising due to non uniformity of ceremonies of marriage among the Hindus. Hence a simple
uniform mode or ceremony must be prescribed in the law so as to remove the difficulty in addressing
the validity of marriage. 2. The performance of either of ceremonies (kanyadhan or saptapadi) should be
made mandatory to recognize that requisite ceremony for a valid marriage has been fulfilled. 3. Above
all marriage should be made compulsorily registered like the birth and death; if they are not registered
they should not be any legal sanctity to it. 4. All the marriages registered should be available in website
stating the name, address, parents or guardians name, date and place of marriage and occupation of the
parties. This suggestion is due to increase use of technology in rural as well as urban areas in India.