Introduction

The landmark verdict by the Supreme Court on 27^th March 2018 declared the interference of Khap Panchayats or any such quasi-judicial body with an intent to scuttle a marriage between two consenting adults, within the permissible codes of the Hindu Marriage Act 1955, as illegal. It brought relief to those from the rural or the interior areas of North Indian states like Haryana, Rajasthan and UP who lived under the diktat of the Khaps. The question here is, are these laws in accordance with the rules as stated in our Shashtras or relevant in today’s time?

Hindu marriage

In Hinduism, marriage or Vivaha is not only a contract, it’s a sacrament. It is not simply a ritual; it is an institution in itself. It is considered to be one of the most sacred bonds between two individuals, a union not only of the body but also of the mind and soul, to bring forth and nurture the progeny of life and to repay the debt of our ancestors. For such a sacred union to form, true and honoured companionship between individuals is necessary. A man without a wife is never considered complete. Without a wife, he might also be prevented from performing various religious sacraments. Only a wife can complete him, in his journey of life for attaining the four aspects of life, Dharma (obligation), Artha (possession), Kama (love and desires) and finally Moksha (emancipation). That’s why a wife is not only known as “Patni”, but more significantly “Sahadharmini”, “Dharampatni” or “Ardhangini”. It is a union which is not confined to one life only. It’s a union that extends to seven lives and beyond. This union is considered irrevocable and indissoluble and hence words like divorce, separation are alien to Hinduism in literal terms.

The institution of marriage and the virtuous practice of fidelity was introduced by a sage named Svetaketu, whose references can be found in the Upanishads. He was the son of sage Uddalaka, who was the grandson of sage Aruni. At that time women were not confined to a single husband, they had the liberty to seek pleasure as they wanted. One day, a Brahman made a proposition to his mother for a physical desire to which she readily agreed and moved ahead with him, without any resentment from Uddalaka. This deeply annoyed Svetaketu, and he questioned Uddakala for not averting his mother from going with the other man. Uddalaka tried to soothe down the infuriated Svetaketu by telling him that since antiquity, women have had the freedom to do so. However, Svetaketu condemned such customs, and he finally envisaged the concept of marriage and ethics of absolute fidelity between a husband and wife.

A Hindu marriage predominantly follows the principles as stated in the Manu Smriti, the types of marriages, the permitted and forbidden decrees, the roles and responsibilities of husband and wife and more importantly the purpose of marriage.

The Vedic Hinduism recognises eight types of marriages which are mentioned in the Manusmriti, describing it as below:

1. Brahma Vivaha – This is considered as the ultimate form of marriage, where the maiden decked with fine ornaments and clothes given in hand to a suitor who has completed his Brahmacharya Ashram and has knowledge of the Vedas, whose family goes to the bride’s place, asking her hand to be the GrahaLakshmi of their household.

2. Arsa Vivaha – In this type of marriage a girl is married off to a groom whose family has paid the kanya-shulkam or bride-price to the parents of the bride. The price would generally be a cow with half a calf and a bull. In ancient times, the brides were given in hand to sages or rishis whoever paid the kanya-shulkam.

3. Daiva Vivaha:- After waiting for a considerable period of time, if the bride’s family isn’t able to find a suitable groom, the girl is given as a Dakshina along with jewelleries and fineries to young priests as a sacrifice for appesing the Devas or Gods. The royals used this vivaha as a medium to create diplomatic alliances with foes or superior kings, by gifting their daughters as rewards for these ties.

4. Prajapatya Vivaha:- In this marriage the bride is handed over to the groom similarly as in Brahma Vivaha, the only difference being is that in this marriage the father of the bride goes to fetch the groom, instead of the groom’s family searching for the bride.

5. Gandharva Vivaha:- In this marriage the two individuals can marry out of their free will. They have the freedom to start a conjugal life with or without the consent of their parents, by exchanging vows in presence of some deities, sages or nature.

6. Asura Vivaha:- In this marriage though the groom may not be compatible with the bride or lack in many qualities, but by paying wealth and treasure to the bride’s parents and kith and kin, he can marry the woman.

7. Rakshasa Vivaha:- In this marriage after slaying or wounding the girl’s family, by forging battles with them, the girl is then forced or convinced to marry against her will.

8. Paishacha Vivaha:– This is considered as the most degraded form of marriage. When the girl is in an unconscious state, intoxicated or mentally challenged, while being married and thus marrying without her consent or knowledge, is condemned as a sinful act.

The first four matrimonial bonds reflect the paradigm behind arranged marriages. The last three are prohibited as per Manu Smriti, out of which the last two are condemned. The Gandharva marriage is an analogy to the modern day love marriages, where the individuals have the liberty to choose their partners. Though Gandharva marriage had its due prominence in our Shahstras, but with advancement of time, Vedic Hinduism giving way to classic Hinduism, the concept of arranged marriage rose to prominence, which till today is predominant ritual for a marriage between two individuals.

Manu Smriti also supported Anuloma, where a girl marrying within her caste or a caste higher than hers. But it shunned Protiloma, a nuptial or marriage where a girl marries to a caste which is lower than her own caste. In today’s time, Anuloma and Protiloma are determined by the financial status of the groom rather than the caste. Definitely for a secure future, a woman would want to marry someone with higher financial status known as hypergamy, whereas the reverse is known as hypogamy where a woman marries someone without considering financial status, but out of sheer emotion, despite the angst of her family or well-wishers. Hindu code bill neither encourages Anuloma nor condemns Protiloma, unless the consenting adults are forcefully married.

Prevalent at that time was prohibition of marriage within the same Gotras. It is believed the Hindu Gotra system has evolved from the eight Rishis or the Saptarishi, namely, Gautama, Bharadwaja, Vishvamitra, Jamadagni, Vashista, Kashyapa, Atri and Agastya borne out of Brahma’s mind through yogic powers. Marrying within the same Gotra implies marrying someone from the same bloodline. The offspring conceived out of such consanguineous marriage suffers various disorders and congenital anomalies because of the genetic mutation that takes place at the time of conception. Owing to different Gotras, the marriage between maternal cousins could be acceptable, but due to to the same bloodline, these nuptials are ideally not encouraged in India, other than some specific regions. Scientifically, in consanguineous marriages, the problem arises when one of the partners carries a defect in the genes, when it mutates with a gene from the same community, which too might be the carrier of the same abnormality, then the offspring conceived, inherits two copies of the faulty genes thus triggering the defect. But marriage within different Gotras reduces genetic disorders to a larger extent as the genes that mutates are basically from a larger pool. The same Gotra  or Sagotra marriage is possible, if the individuals are not related to six generations both from maternal and paternal side. The Gotra system has been significant in preventing genetic abnormalities since its inception thousands of years ago. But with changes in Indian demographics, the Gotras becoming wider, this prohibition barely exists, even in the Hindu Code Bill, unless they are linked as Sapindas or don’t fall within the decree of prohibited relationship marriage.

Sapinda marriage is basically marriage amongst cousins. Though prohibited under Hindu Marriage Act 1955, it is permitted only under special customary practices. Sapinda relationship extends to five generations within the line of ascent on the paternal side and within three generations on the maternal side.

Khaps and Hindu Marriage Act

Who are these so called moral keepers of the society? How and why were they formed? Are they within the parameters of Indian law and judiciary or outside it? It is not exactly known how they were formed. In ancient times, as people started giving up nomadic lives and were heading towards civilization, villages were formed. Now, to resolve the disputes and for meting out justice, a group of senior members from the upper clans came together forming assemblies or Sabhas for governing these villages. They came to be known as Panchayats. In India, even after this rapid development or civilization, the rural and the tribal areas have hold on to their ancient cultures and traditions and their own methodologies for delivering justice. The elected Panchayats from atleast 12, (though originally it was 84), individual villages come together to decide on matters at the highest level and all the Khaps of state collectively are known as “Sarv Khap Panchayat”. Every Khap elects a member to represent their Khaps at the Sarv Khap level. The irony is, though these are arbitrary judicial systems outside the parameters of Indian judiciary, their promptness in delivering a verdict in just one sitting has kept them intact, contrary to Indian courts where cases linger on for months and years. Despite changing times, these Khaps haven’t kept pace with changing mindsets or laws. Though in 2014, the Satrol Khap in Hisar gave its go-ahead to inter-caste marriages, inter-village as well as intra-gotra in some special cases.

In order to unify different sects of Hinduism, the historic Hindu Code Bill was introduced in 1951, leading to criticism from various spiritual leaders, groups and devotees. This Hindu Code Bill also introduced the Hindu Marriage Act, to amend and codify the Sastrik law (the classical Hindu laws prior to the Hindu Marriage Act) as our civilization progressed rapidly. It piloted the abolition of practices like polygamy, polyandry, dowry, child marriage and introduced concepts like divorce, separation, widow remarriage, which had its own pros and cons. Finally, more than the rules laid out in the Vedas, the doctrines of this act became the foundation of a valid Hindu marriage. Section 5 of this act mentions the mandatory conditions for solemnizing a marriage between two consenting adults.

1. Neither party has a spouse living at the time of marriage (thus ruling out polygamy or polyandry),

2. At the time of marriage, neither party:-

1. is incapable of giving a valid consent to it in consequence of unsoundness of mind;
2. though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children;

3. The bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage; (thus        prohibiting child-marriage).

4. The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

5. The parties are not Sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.”

The Hindu Marriage Act also doesn’t discourage Sagotra marriages (until it doesn’t violate the decree of prohibited relationship), nor it encourages or discourages Anuloma and Protiloma, hypergamy or hypogamy as discussed above. Also, it doesn’t prohibit or support exogamy (inter-caste, community even religion) marriages or endogamy (marriage within its own caste, clan, community).

As these codes became progressive, there was some degeneration in this sacred institution. In present day, with the advancement of western culture, marriage is no longer a compulsory obligation. It has become more of an individual choice. As marriages started becoming a lavish affair or a measure for financial status, persons with economic difficulties also prefer not to enter into matrimony. With girls becoming more educated and financially independent, there is no compulsion to get married.

There has always been a debate on the process of selection of suitable mates in Hinduism. Classical Hinduism emphasised on the selections made by the families rather than considering the opinion of the bride and the groom, considering marriage more as a contract than a sacrament. But our puranas tell a different story awhere there was freedom in choosing one’s life partner. The marriages of Gods like Shiva, Krishna exemplifies the same. The swayamvara of Draupadi where she had the freedom to choose Arjuna over Karna, or the swayamvara of Sita testifies the same. With the Hindu Marriage Act ruling out Sagotra or inter-caste marriages, there has been rise in exogamy with more increase in inter-caste, community and religion marriages.

A Hindu marriage was never considered accomplished until Saptapadi or the seven rounds around the sacred fire were taken. But in the modern world, where people are constantly running short of time and concerned with their financial wellbeing, they prefer not to get into the hassle of elaborate and lavish ceremonies. Today, marriages can be solemnized in the civil courts as per the Act and in other social institutions like Arya Samaj with simplified rules.

To safeguard against domestic violence and other forms of harassment, concepts such as divorce and separation have been introduced, so either a man or woman can come out of such relationships and start life afresh. But over the years, divorce has become a mockery. The sanctity of this nuptial bond has diminished. With a fast paced life, nobody has the patience to understand the purpose of this sacrament and thrive towards its accomplishment. Divorce has become an easy escape. Thus, Hindu marriage no longer holds as an unbreakable bond for life.

Also in today’s time the concept of marriage has become more of a social contract than the union of two souls. More than the bonds of love and compassion, it is based on financial, social or hormonal illusion. Traditionally, “Dharma”, “Praja”(progeny) and “Rati”(pleasure) were the basic aims of a Hindu marriage, where attaining Dharma was a priority, followed by Praja.and then Rati. But presently, it is seen that Rati has been gaining prominence over Dharma. The bond too has become fragile.

Conclusion

In the Mahabharata, the committed friendship in marriage is emphasized. Out of the 120 questions asked by the Yaksha to Yudhistira, one of the questions is “kimsvin mitram grihesatah?” meaning “Who is the friend of a householder”? To which he replied “bhaaryaa mitram grihesatah” implying “the friend of a householder is his spouse”. In another question he is asked, “kimsvid daiva krutah sakha?” which states, “Who is man’s god-given friend?” to this he responded, “bhaaryaa daivakrutah sakha”, implicating, “A man’s God-given friend is his wife”. Though the Hindu marriage Act of 1955, strives its best to safeguard this sacrosanct union between two individuals by implanting various laws under Indian panel code, again it basically depends how an individual perceives the concept behind this sacred union. But to sum it up, in India. marriage is still a sacred union not only between two individuals but between two families as well.
References / Footnotes

– The statements of section 5 are similar as stated in various legal books and pages.