LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Avnish Kaur (Consultant)     20 March 2011

Hindu Marriage -Sacrament Or Contract

Marriage among the Hindus was considered a sacramental union and it continued to be so throughout the entire Hindu period.

The manu smriti says I hold your hand for saubhagya (good luck) that you may grow old with your husband, you are given to me by the just, the creator, the wise and the learned people.

Hindus conceived of marriage as a union primarily meant for the performance of religious and spiritual duties. It could not take place without the performance of sacred rites and ceremonies and it was a permanent and eternal union

However with changes in the society marriage among the Hindus which was essentially a sacrament partook the nature of a contract. The Hindu Marriage Act, 1955 covering entire India except the state of Jammu & Kashmir has reformed the Hindu law of marriage.

With changes of 1976 including fraud as a basis for divoce it has become a sacramental contract.




Learning

 12 Replies

Arup (UNEMPLOYED)     20 March 2011

The thread question should be, wheather a hindu marriage is a contract or not?

secrament has no relation with contract.

In legal arena, contract means, a contract under the indian contract act.

A contract has some basic character, without which, it can not be statused as a contract.

I am not sure most probably it is sec 10 of the Indian contract act.

1 Like

Arup (UNEMPLOYED)     20 March 2011

Hindu marrage, is a secrament - according to the religious point of vew. It is one of the tenth secrament.

Avnish Kaur (Consultant)     20 March 2011

but courts do not recognise it as a civil contract

its a sacramental contract

Damayanti (Unemployed)     20 March 2011

Except  MCD option it is not a contract!  (MCD is like a 'wind-up by mutual consent' clause in a contract!)

 

Those (i.e. both parties) who no longer think it is a sacrament, then law gives them an aperture of 'by consent' like a contract, to call off by mutual consent 

 

Contract etc shouldn't be confused with IRBM concept (which is ridiculous and gives a shade of 'gudda guddi ka khel')

 

When one party goes into court, that 'decision and action of going into court' itself speaks of itself the emotion/belief of the party that 'marriage seems irretrievably broken and needs to be called of legally also'.

 

Hence every "explicit divorce" ground (E.g. Cruelty, adultery, desertion etc etc ) already has IRBM as a "implied ground" but it gets verified because of the 'explicit grounds'

 

But above emotions/belief itself was sought to be made as a separate 'ground' with a easy passing conditions of 3 years separation.  And hence it was liable of blatant misuse!!

 

Also , Judicial separation and RCR were also available as preliminary step before calling the marriage as IRBM after1 year!!!

 

HENCE there is no need to include any new ground such as IRBM.

 

 

Actually if a husband or a wife gets RCR or judicial separation decree, then one can get an easy divorce  after 1 year, but lawyers avoid to give such suggestions to clients.

Deep (k)     20 March 2011

interesting....... needs a deep thinking........

I feel the marriage at present are totally change irrespective of religion....... don't know when the law should be re-thought......... so many conditions needs to be included in divorce / maintenance / dowry / dv laws...... probably duration of marriage, education of wife, equality of s*x, arresting innoncent people and try to harass unnecessary are the main points to be given thought........ and girls/women went to hi-fi these days that they only spoilng marriage life instead of making....... I believe the foundation of marriage is wife, she can make it more than a man...... sry not trying to do any man vs woman..... jst giving comments or thought.......... according to me marriage has become a  (only) CONTRACT..... and law is still following only religion, it should be rethough accordingly.......

Amit Singh (Updating)     20 March 2011

I agree with Deep.

Nowadays, women want to explore everything.

And their stupid feminist and their stupid demands of Right to FREEDOM & Right to ORGASM and Right to MISUSE law are toatally spoiling the marriage.

 

I want to ask a question to all the womens:

 

Why women nowadays don't believe in true love, family, bond ?

Arup (UNEMPLOYED)     20 March 2011

is there any rullng about - "the marriage is a secramental contract"?

Arup (UNEMPLOYED)     20 March 2011

I want to ask a question to all the womens: Why women nowadays don't believe in true love, family, bond ? sorry i am male still then answering there is nothing like, true love, family bond etc. true love & family bond are imaginations only.

Damayanti (Unemployed)     21 March 2011

is there any rullng about - "the marriage is a secramental contract"?

 

Yes!

There are citations which say 'marriage is sacrament and not merely a contract'.

 

Hence

"The marriage is a secramental (contract for life)"

 

Words in bracket are implied but do not hold any significance in view of 'wind-up clause/features' in a normal contract.

Avnish Kaur (Consultant)     21 March 2011

YES THERE ARE CITATIONS THAT IT IS A CONTRACT WITH SACRAMENTAL VALUE.

Tajobsindia (Senior Partner )     21 March 2011

@ Ms. Kaur 

1. If you read S. 5 till S. 12 HMA then it is a Contract . And for rest sections it is a sacrament. There are at least 9 Citations pre 1955 and 4 post 1955 and still 6 or so post 1974 Amendment all from SC so to speak that it is a contract. I know you have bundle of citation reference from SC stashed somewhere and if you need I will give you authorities name to read down yourself to your satisfaction that ultimately it is said even by Hon'ble SC that it is a contract.   


2. Mr Arup it is S. 17 of Indian Contract Act and not S. 10 so to correct you if I may ! 


3. Well UK and many a Commonwealth Laws are now Amended and it is all about economics of arrangements and somebody has to pay for welfare of a Lady (the era of opportunity cost are no more prevalent in energy crisis STATES) and once it (energy) becomes exhausted then no STATE like to pay from its own pocket (fund a marriage means make it  a welfare legislation) so Marriage Laws world over have Amended dramatically in last 20 years and what you are seeing in India now-a-days is pre 60's welfare Laws of western world ultra virally packaged with UNIFEM funding and getting Bharat Ratna (Indira Jaisingh) on them by Lawyers Collective. 


They are just making larger public fools in the name of SACRAMENT. Well it is sacrament only for husband's and not for wife's so to speak is vehement feminist views.

Arup (UNEMPLOYED)     22 March 2011

THE INDIAN CONTRACT ACT, 1872

 ACT No. 9 OF 1872.

 

29

Agreement void for uncertainty

10

What agreements are contracts

17

"Fraud" defined

 

29.Agreements void for uncertainty.- Agreements, the meaning of which is not certain, or capable of being made certain, are void.

 

Illustrations

(a) A agrees to sell to B " a hundred tons of oil ". There is nothing whatever to show what kind of oil was intended. The agreement is void for uncertainty.

(b) A agrees to sell to B one hundred tons of oil of a specified' descripttion, known as an article of commerce. There is no uncertainty here to make the agreement void.

(c) A, who is a dealer in cocoanut-oil only, agrees to sell to B "one hundred. tons of oil". The nature of A's trade affords an indication of the meaning of the words, and A has entered into a contract for the sale of one hundred tons of cocoanut-oil.

(d) A agrees to sell to B " all the grain in my granary at Ramnagar ". There is no uncertainty here to make the agreement void.

(e) A agrees to sell B " one thousand maunds of rice at a price to be fixed by C ". As the price is capable of being made certain, there is no uncertainty here to make the agreement void.

(f) A agrees to sell to B " my white horse for rupees five hundred or rupees one thousand". 'There I is nothing to show which of the two prices was to be given. The agreement is void.

 

10.What agreements are contracts.- All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India and not hereby expressly repealed by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.

 

17."Fraud" defined.-"Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto of his agent, or to induce him to enter into the contract:- (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true ; (2) the active concealment of a fact by one having knowledge or belief of the fact ; (3) a promise made without any intention of performing it (4) any other act fitted to deceive ; (5) any such act or omission as the law specially declares to be fraudulent. Explanation.-Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech. Illustrations (a) A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horse's unsoundness. This is not fraud in A. (b) B is A's daughter and has just come of age. Here, the relation between the parties would make it A's duty to tell B if the horse,is unsound. (c) B says to A--"If you do not deny it, I shall assume that the horse is sound." A says nothing. Here, A's silence is equivalent to speech. (d) A and B, being traders, enter upon a contract. A has private information of a change in prices which would affect B's willingness to proceed with the contract. A is not bound to inform B.//////

 

perhaps now it is clear that  marriage may be a secrament, but can not be a contract. please read sec 29. in a marriage all most all the things (components) are uncertain under this condition, it can not be a contract.. it marely be a memorendum of understanding, not contract.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Related Threads


Loading