Religious Ritual and the Rules of Marriage
Chapter Three
Syllabus topic 1.2, "Role of religious rituals and practices in molding the rules regulating to marital relations"
Pages 12 to 16 of 477
In one line
The ritual is not decoration around the marriage; in Hindu law the ritual is the marriage, and that single fact runs through the ceremony, the prohibitions and every practice the modern statutes have had to put down.
The claim the topic is making
MU's wording is worth reading slowly: the role of religious rituals and practices in molding the rules regulating marital relations. The claim is not that Hindus have rituals. It is that the legal rules were shaped by them.
That claim is true in three distinct ways, and a good answer separates them.
The ritual constitutes the marriage. There is no Hindu marriage without a ceremony, and where saptapadi is part of the applicable rites the marriage exists from the seventh step and not before.
The ritual supplied the reasons for the prohibitions. Sapinda relationship is measured by the funeral offering. The sapinda rule is a rule about ritual kinship that became a rule about who may marry whom.
The practices around the ritual became the abuses the law had to attack. Dowry, sati and child marriage were not lawless behaviour. Each grew out of a practice with religious justification, and each needed a statute precisely because custom would not give it up.
Ritual as the constitutive act
Marriage as a samskara
The classical scheme has a series of samskaras, sacraments marking the stages of a life, of which vivaha, marriage, is one and for most people the most important. That framing has three consequences that survive into the modern law.
It is a duty, not a bargain. A marriage is undertaken because the texts require it, for the performance of religious rites, the continuance of the line and the discharge of the debt to the ancestors.
It is performed, not agreed. What makes it happen is the correct performance of the rites, not the meeting of minds. Consent was not classically essential, which is how the marriage of children was possible.
Being a sacrament, it could not be undone. Divorce was unknown to the classical law of the higher castes, though it existed by custom among many others, and it is the sacramental theory that had to be displaced before section 13 could be written.
The essential ceremonies
The core rites of the orthodox ceremony are the kanyadana, the giving of the daughter by her father; the vivaha homa or invocation before the sacred fire; panigrahana, the taking of the bride's hand; and saptapadi, the taking of seven steps together before the fire.
Of these, the two the courts have treated as essential are the invocation before the sacred fire and saptapadi. That is the holding of Bhaurao Lokhande, AIR 1965 SC 1564, where a bigamy conviction was set aside because those two ceremonies had not been performed at the second marriage. The case is set out in full in the chapter on conditions and ceremonies; what matters here is the principle it rests on, that a marriage is not solemnized unless it is celebrated with proper ceremonies and in due form.
Religious Ritual and the Rules of Marriage
What the statute did with all this
Section 7 of the Hindu Marriage Act is a remarkable provision when read against that background, because it prescribes no ceremony at all. It says a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party, and then adds that where those rites include saptapadi the marriage is complete when the seventh step is taken.
Parliament in 1955 could have prescribed a national ceremony. It declined. The reason is the diversity of Hindu practice: a rite that is essential in one community is unknown in another, and communities exist whose customary marriage involves no fire and no seven steps. So the Act adopted custom instead of replacing it, and the burden of proving what the applicable custom is falls on whoever asserts it.
That is the clearest possible illustration of MU's topic. The ritual did not merely influence the rule. It is the rule, by statutory adoption.
Ritual as the source of the prohibitions
Sapinda
The word means those connected by pinda, the ball of rice offered to the ancestors in the funeral rites. The classical sapinda group was the group of relations who shared in those offerings, which is a ritual relationship before it is anything else.
From that grew a marriage prohibition, on the reasoning that persons connected by the offering are too close to marry. Section 5(v) of the Hindu Marriage Act carries the prohibition forward, and section 3(f) replaces the classical measurement with a statutory one, three generations in the line of ascent through the mother and five through the father. The rule is now arithmetic. Its origin is a funeral rite.
Gotra and pravara
The classical exogamy rules also forbade marriage within the gotra, the descent group traced to a common sage, and within the pravara, the line of ancestral sages invoked at sacrifice. Both are ritual categories, and both were marriage prohibitions.
The modern Act has dropped them. Gotra is nowhere in the Hindu Marriage Act, and marriage within the same gotra is lawful unless it happens also to fall within the prohibited degrees or the sapinda limits. Where a community still observes gotra exogamy, it does so as social practice and not as law.
Custom as the escape hatch
Sections 5(iv) and 5(v) both allow a custom or usage governing each of the parties to permit a marriage that would otherwise be forbidden. That is how the south Indian marriage between a man and his sister's daughter remains valid while the same marriage elsewhere is void.
Religious Ritual and the Rules of Marriage
So the statute both codifies a ritual prohibition and then lets a contrary ritual practice defeat it, provided the practice meets section 3(a): continuous, uniform, long observed, certain, not unreasonable and not opposed to public policy.
Ritual practices, and the statutes that had to put them down
This is where topic 1.2 becomes examinable, and it is why the next three chapters exist.
Sati. A practice with an explicit religious justification, abolished in the nineteenth century and needing a fresh statute in 1987 after a death at Deorala was followed by processions and a proposal for a temple. The Commission of Sati (Prevention) Act 1987 is unusual in punishing glorification more severely than the widow's own attempt, which tells you the legislature understood it as a community practice rather than an individual crime. See [Sati, and the Commission of Sati (Prevention) Act 1987].
Dowry. Grew out of the gifts made at a daughter's marriage and the giving of the bride, hardened into demand, and required the Dowry Prohibition Act 1961 and two later amendments. Notice that the classical texts themselves condemned the asura form, in which the bridegroom's side pays: the tradition disapproved of purchase, and the practice ran the other way regardless. See [Dowry, and the Dowry Prohibition Act 1961].
Child marriage. Follows directly from the sacramental theory. If marriage is a sacrament performed by the giving of a daughter, and consent is not essential, there is no reason in the system itself why the daughter must be adult. The age condition had to be imposed from outside, and the modern Act still cannot bring itself to make a child marriage void. See [Child Marriage, and the Prohibition of Child Marriage Act 2006].
Each of the three is the same story: a practice with a place inside a religious framework, which the law has had to attack from outside because the framework would not yield.
A worked example
A couple marry in a temple. The bride's family follows a custom in which the essential ceremony is the tying of the thali; the groom's family performs saptapadi. Neither family's rite is fully completed: they exchange garlands, take four steps, and the priest declares them married. Years later the wife prosecutes the husband for bigamy over a later ceremony.
Was the first marriage validly solemnized? Section 7(1): a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party. So the couple may use the bride's rite or the groom's, and the Act prescribes no ceremony of its own.
Religious Ritual and the Rules of Marriage
Does it matter that the seventh step was not taken? Section 7(2): where the rites include saptapadi, the marriage becomes complete and binding when the seventh step is taken. If the ceremony chosen was saptapadi, four steps do not marry them.
And if the customary rite is the thali? Then the marriage is complete when that rite is performed, because the section adopts the custom rather than any particular ritual.
Why does that matter to the bigamy charge? Because a prosecution must prove the ceremonies of the second marriage, and that is where such prosecutions usually fail; the point is developed in [Bigamy and the Punishments the Act Imposes].
Where do the prohibitions come from? From ritual too. Sapinda derives from the funeral offering, the pinda, and it is now measured by section 3(f), three generations up through the mother and five through the father, counting the person as the first. Gotra and pravara, which the classical law used, have dropped out of the law altogether.
And the practices that grew around the ritual? Sati, dowry and child marriage, each of which required a statute to put it down.
What it does NOT mean
Ritual is not a formality here. It is constitutive: the marriage exists because the ceremony was performed.
Section 7 does not prescribe a ceremony. It adopts the custom of either party.
Saptapadi is not required. It is required only where the rite chosen includes it.
Sapinda is no longer a ritual test. It is whatever section 3(f) defines, and the definition counts generations.
Gotra is not a legal prohibition. It has dropped out of the Act.
The three statutes are not about ritual as such. They are about the practices that grew around it.
Quick revision
- Ritual as the constitutive act: s.7(1) adopts the customary rites and ceremonies of either party; s.7(2) completes a saptapadi marriage at the seventh step.
- Ritual as the source of the prohibitions: sapinda from the pinda, the funeral offering, now measured by s.3(f), three generations up through the mother and five through the father, counting the person as the first; gotra and pravara have no place in the Act.
- The practices that grew around it, and the statutes that answer them: sati, the Commission of Sati (Prevention) Act 1987; dowry, the Dowry Prohibition Act 1961; and child marriage, the Prohibition of Child Marriage Act 2006.
Test yourself
1. How does the Hindu Marriage Act treat ceremonies? Section 7(1) provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. The Act prescribes no ceremony of its own.
Religious Ritual and the Rules of Marriage
2. What is the significance of saptapadi? Where the rites and ceremonies include the saptapadi, 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, under section 7(2).
3. What is sapinda relationship, and where does the term come from? It comes from the pinda, the ball of rice offered to ancestors at the funeral rite. Under section 3(f) it extends, in the line of ascent, three generations through the mother and five through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.
4. Does gotra still matter in law? No. Gotra and pravara, which the classical law used to bar certain marriages, have no place in the Hindu Marriage Act.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.