This article has been written by Ms. Kirti a Patil who is prepairing for judicial examination
Introduction:
Indian wedding customs are influenced by the bride and groom’s individual choices as well as the bride’s community, religion, and geographic location. In India, these are joyous occasions that are typically marked by elaborate decorations, vibrant colors, attire, dancing, music, costumes, and customs that are specific to the bride and groom’s community, location, and religion as well as their personal preferences. Approximately 80% of the 10 million marriages that take place in India each year are Hindu weddings.
The word “Sindhu,” which refers to the Indus River, is where it originated. Hindu law is regarded as being extremely divine since it is thought to have come from God or to be the words of God, revealed by God. The authors of the Dharmashastra codified Hindu law. Hindus’ numerous social features, including marriage, divorce, adoption, minority status and guardianship, inheritance, and other family affairs, are governed by Hindu law.
Hinduism’s Ceremonies:
While Hinduism has numerous festival-related rituals, the most elaborate personal ritual that adult Hindu performs in their lifetime is their marriage, or vivaah. Hindu families typically invest a lot of time, money, and effort into planning and celebrating weddings.
Hindu wedding customs and procedures differ based on the bride and groom’s preferences, the family’s resources, the location of the wedding, and local adaptations. However, there are a few essential Hindu wedding customs that are widely observed: Saptapadi, Panigrahana, and Kanyadaan, which involve the father giving away the daughter, willingly holding hands near a fire to symbolize the approaching union, and taking seven steps before the fire, each of which involves exchanging vows. Following the seventh step and the Saptapadi vows, the pair are lawfully wed. In India, weddings for Jain and Buddhists have many commonalities but are mostly focused on their own religious scriptures and concepts.
Customs:
Let’s now take a moment to define the word “custom.” It is possible to view custom as the primary basis from which Hindu law evolved. In popular culture, “custom” refers to an act or behavior that is routine, customary, or that has been followed consistently by a person for a long period of time. Another name for it is a “Rule of Conduct.”
Customary “Achara” has long been considered the highest form of “Dharma.” Local customs vary, as do those of different families. Customs are dynamic; rather, they are designed to alter and develop throughout time. Manusmriti states that customs have the capacity to supersede written texts and laws if they can be demonstrated to exist.
According to Section 3 of the Hindu Marriage Act of 1955, a custom is a rule that has been adhered to for a long time and has legal status among members of the Hindu community. Additionally, it stipulated that customs have to be fair, old, and not in conflict with national laws.
Hindu law was shaped by various types of custom:
Customs are mainly of four types. They are: Local Customs, General Custom, Family Customs, Class or Caste Custom.
Local Custom:
These are the obligatory rituals or practices for members of the Hindu community residing in a specific region. Consequently, the majority of that specific location’s culture.
General custom:
These are the national customs or practices that are followed. The main draw for travelers is witnessing traditional Indian rituals and traditions. Among these are the greeting “Namaste,” which is used to welcome others, and the ceremonial comment “Tilak,” which is a symbol of good fortune or favors.
Family Custom:
Family customs are described as customs or traditions that are passed down from their ancestors to their descendants over a long period of time. It is also the setting in which an individual is born and raised by their parents and ancestors.
Class or Caste Custom:
These are the traditions of a specific caste, industry, or social group, such traders, farmers, business owners, etc. Class and caste customs refer to the various customs that members of a particular caste or class have long adhered to and still maintain.
Essentials of valid Custom:
Customs can be something that describes the way a certain group of people behaves or an act that serves as a classification scheme for that group of people. They are among the first legal sources. Other names for it include cultural philosophy, cultural ideology, and traditions.
Ancient:
The custom needs to be very old; it need to have been formed much earlier and consistently maintained for a lengthy period of time. One of the most important and fundamental components of a legitimate custom is its age. Customs have to come from a very long time ago. People have to adhere to it from the beginning of time. While English law established the year 1189 to verify the antiquity of the custom, Hindu law did not specify any specific time frame for doing so.
constant and unchanging:
For customs to be considered legitimate, they must continue to exist after being used for a predetermined amount of time. It can be interpreted as proof that customs are recognized by the law and have legal power. It ought to be adhered to without fail. A tradition or practice ceases to exist and is no longer regarded as a custom if it is abandoned or not maintained for a certain amount of time.
Not opposed to any law:
For customs to be deemed legitimate and recognized by the legal system, they must not contravene national laws. The dharmashastras must not conflict with the customs. It cannot be prohibited by legislative enactments or legislation. For a tradition to be recognized as legitimate, it must be backed up by the law.
Usages and Customs under Hindu Law:
Numerous customs, including the sati system, were eliminated when Hindu law was codified. The Hindus once used the Sati system, in which a widow makes a sacrifice by sitting on her husband’s funeral. Prior to the codification of Hindu law, women were not given precedence for succession. However, the Hindu Succession Act, 1956, established equal treatment for sons and daughters in matters of succession, changed this. Narad smriti believed that customs had great power.
Customs and usages have been given a prominent place in codified Hindu law and are regarded as the source of Hindu law; nevertheless, this authority is somewhat restricted because customs must be clearly demonstrated or made known in order for them to be recognized as law. The “Hindu Marriage Act of 1955” has three instances when custom has been used. First, the parties may request marriages in accordance with their usual traditions. Second, parties may request a divorce in accordance with current usage and customs. Thirdly, adoption can take place in accordance with custom.
Whether the Hindu Marriage Act is applicable:
The following individuals are covered by the Hindu Marriage Act:
- A Hindu, including a Lingayat, a Virashaiva, or a devotee of the Brahmo, Prarthana, or Arya Samaj.
- A person who is a Buddist, Jaina or Sikh.
- A resident of an area where this legislation is applicable; the resident must not be a Jew, Muslim, Christian, or Parsi.
- A resident of an area where this legislation is applicable; the resident must not be a Jew, Muslim, Christian, or Parsi.
- A child whose parents are Sikhs, Buddhists, Jains, or Hindus, whether they are born legally or not.
- A child raised as a part of the tribe, community, group, or family to which their parents belong and whose parents are Hindu, Buddhist, Jaina, or Sikh.
- Any person who has converted or reconverted to Buddhism, Jainism, Sikhism, or Hinduism.
- Members of any Scheduled Tribe are exempt from this under Clause (25) of Article 366 of the Constitution unless the Central Government notifies them in the Official Gazette.
Conditions for a Hindu Marriage:
Two Hindus can get married and have their marriage formally recognized if the following requirements are met:
- A spouse shouldn’t be living with the couple during the wedding.
- Due to insanity, neither couple is unable to give their consent to the marriage.
- Neither of the couples should be suffering from any mental problems.
- which renders him/ her unfit for marriage and the birth of children.
- Neither of the couples should not be suffering from attacks of lunacy or epilepsy.
- At the time of their marriage, the bridegroom must be at least 21 years old, and the bride must be at least 18 years old.
- If the couple’s tradition does not forbid marriage, they should not be in a banned relationship.
- If the couple’s custom forbids them from being married, they shouldn’t be sapindas, or cousins.
Women’s inheritance rights prior to the Act:
The state of reliance was defined by Shastras as the position that a lady or widow was allotted in society or within her family. Men regarded them to be incompetent and in need of continual protection. Because they were unable to read the Vedas and were deemed incapable of performing sacrifices, they were viewed as dependant. The ancient “Rishis” likewise disapproved of their ability to own property because they were dependant.
When it came to smritis, women were deemed incapable of performing certain religious rites, which consequently rendered them incapable of holding property. Thus, in those days, it was essentially forbidden for women to own property outright. Despite having a minimal entitlement to possess stridhan, or women estate, property. Even beyond a certain point, her spouse has the authority to veto.
Other religions:
Indian Sikh Anand Karaj is the ceremony used to consummate marriages. The couple performs an Ardaas, a customary Sikh prayer, after circumnavigating the Guru Granth Sahib four times.
Indian Muslims enjoy a conventional Islamic wedding complete with Nikah, the husband paying the bride a financial dower known as Maher, the signing of the marriage contract, and a reception.
Indian Christian nuptials that adhere to the traditional practices of Christian marriage. In India, Protestants celebrate a couple’s engagement with a betrothal process that involves a pastor blessing the engagement rings and prayers being said for the couple. The Haldi/Ubtan/Mayun ritual, or Roce ceremony as it is called in the Goa region of India, is held the day before the wedding. During this ceremony, “haldi or turmeric paste is applied on North Indian Christians and coconut paste is applied on South Indian Christians.
” After a while, Indian Christians get married in a church, usually in a church or other house of worship, where the couple gets married in front of a pastor. Bible readings are conducted. The bride and groom exchange vows of matrimony. The custom of the bride and groom exchanging rings represents their unending love.
In India, interfaith unions—particularly those involving Hindus and Muslims—have faced obstacles from the law in certain areas, vigilante intimidation, and violent fears.
Difference between Hindu marriage and Muslim marriage:
In India, Hindu and Muslim weddings are regulated by distinct personal laws that are a reflection of the various communities’ religious and cultural customs. The following are some significant distinctions between Muslim and Hindu weddings.
Hindu Marriage:
- Applicable Law: The Hindu Marriage Act of 1955 is the main legislation governing Hindu marriages. This act is applicable to Sikhs, Jains, Buddhists, and Hindus.
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- Ceremonial Customs: Hindu marriages entail a number of rites and customs that could change depending on the local and cultural context. The vows-exchange, the seven pheras (circumambulations around the sacred fire), and the garlands-exchange are common rites.
- Monogamy: The Hindu Marriage Act permits monogamy, which limits a Hindu’s ability to have more than one spouse at once. By this act, polygamy is prohibited legally.
- Registration: Hindu couples are encouraged to register their weddings under the Hindu Marriage Act in order to receive a legal certificate, even though it is not required.
- Grounds for Divorce: A number of reasons, including cruelty, adultery, abandonment, conversion to a different faith, mental illness, and terminal illnesses, are listed in the Hindu Marriage Act as grounds for divorce.
Muslim Marriage:
- Applicable Law: The Muslim Personal Law (Shariat) Application Act, 1937 is the principal law that governs Muslim marriages in India. Within the Muslim community, distinct sects may follow different unique customs and protocols.
- Ceremonial Customs: Muslim marriages take place in a straightforward, serious ceremony officiated by an Imam or Qazi, the Islamic legal authority. The offer and acceptance (Ijab and Qubool) in front of witnesses are crucial components.
- Polygamy: A Muslim man is permitted to have up to four wives under Muslim personal law, as long as he treats each one fairly and justly. It’s crucial to remember that many Muslim men only have one wife and that polygamy is not a requirement in Islam.
- Registration: The Supreme Court of India has stressed the significance of registration in order to guarantee legal recognition and protection of women’s and children’s rights, even though it is not required for a Muslim marriage.
- Dissolution of Marriage: Muslim marriages can be ended by mutual consent, Khula, or a divorce started by the wife, or Talaq, which is a divorce started by the husband.
- Maintenance: Under Muslim personal law, the woman is entitled to maintenance, or monetary assistance, both during and after the marriage is dissolved.
It’s important to remember that individual beliefs and customs may differ, and that there is diversity in behaviors and interpretations within both Muslim and Hindu communities. To guarantee compliance with the applicable legislation, people should seek legal assistance as the legal landscape is subject to change.
Court notification of a Custom:
If a custom has been so firmly established, is so clearly visible, and has been consistently brought to the attention of the court via a number of cases, then the court will take judicial notice of it. Such practices should be created and recognized by the Court without the requirement for any supporting evidence. It is not required to be proven in every single instance by different actions or behaviors, and nobody bears the burden of evidence. These traditions are regarded as a component of common law.
Land mark cases:
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- A. Asuvathaman vs. Union of India (2015) In 2015, the Madras High Court affirmed Section 7-A of the HMA’s legality. In the current case, the petitioner contested the constitutionality of the state’s amendment, claiming that it went against every Hindu religious value and was ultra-vires of Section 7. Additionally, he stated that it has been established that the amendment violates Article 14 of the Indian Constitution. The Court denied the case, stating that the modification does not discriminate because it only affects the two marriages, Suyamariyathai and Seerthiruththa. The Court further declared that unless the petitioner can provide evidence that the act violates any fundamental principles, there is a presumption in favor of the statute’s legitimacy.
- Bhaurao Shankar Lokhande vs. The State of Maharashtra (1965) The Honorable Supreme Court ruled that if a marriage is not observed or carried out with the required customary ceremonies, it cannot be considered to exist. Legally speaking, a marriage is considered solemnized when it is performed in accordance with one of the spouses’ rituals. The Court further decided that the partners cannot be considered married just because they performed certain ceremonies in accordance with their wishes, as this is not recognized by law or custom. It is important to remember that the rituals must be performed in accordance with the parties’ traditions and customs.
- Sumit Subhash Agarwal vs. Kamalesh Lalita Prasad Gupta (2018) According to the Honorable Bombay High Court, pheras surrounding a group of agarbattis is deemed Saptapadi and, therefore, forms a lawful marriage.
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- Shri. Nitin S/O. Omprakash vs. Smt. Rekha W/O. Nitin Agrawal (2017), The Hon’ble Bombay High Court noted that a woman’s physical relationship, sindoor applied to her forehead, and mangalsutra tied do not signify a lawful marriage.
- Surjit Kaur vs. Garja Singh (1993), The Honorable Supreme Court ruled that a long-term cohabitation without the observance of religious rituals would not qualify as a lawful marriage.
- S. Nagalingam vs. Sivagami (2001), The Honorable Supreme Court ruled that when both parties acknowledge the importance of the Saptapadi ceremony, it is necessary. In cases where Saptapadi is not observed and alternative ceremonies are carried out in accordance with the traditions of both parties, a lawful marriage has been sealed.
Conclusion:
Not all of the ceremonies must be completed in order for a marriage to be legally recognized as solemnized. According to the Hindu Marriage Act of 1955, each partner is free to carry out the rituals required for a marriage to be legally recognized. Furthermore, because Indian civilization is diverse, the legislation does not specify or offer a rigid formula for what these mandatory ceremonies are. The essential requirement for completing or solemnizing a marriage is that the ceremony, whether performed by the bride or the husband, must be vital and essential.
In Shastric Hindu law, marriage is considered a sacrament since it was formerly an irreversible bond between a man and a woman. However, as society has changed, the idea of marriage has also changed, and it is now more akin to a civil contract. The modern concept of marriage as a contract originated with the industrial revolution and its high ideals of liberty and equality.
References:
- https://blog.ipleaders.in/hindu-law custom/#Judicial_notice_of_a_Custom