Hindu Marriage is considered to be a religious sacrament for both the party. A Hindu Marriage is valid and complete only when certain religious rites like ‘home’, ‘Panigrahana’, ‘Saptapadi’ etc. are duly performed by a Brahmin with Agni Devata taking cognizance of the rites. If not so performed, the legal validity of the marriage itself may be called into question.
Section 5 and 12 of the Hindu Marriage Act, are the pertinent provisions to determine whether Hindu marriage is sacrament or contract. Clause 2 of section 5 of the Hindu Marriage Act deals with the mental capacity of the parties. This section says that neither party to the marriage must be incapable of giving valid consent in consequence of unsoundness of mind. Further clause 3 of section 5 enumerates that the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage.
Read more: What is voidable marriage?
On the other hand, as per sections 10 and 11 of the Indian Contract Act, 1872 a contract by a minor or an incompetent person is void. However, according to section 12 of the Hindu Marriage Act, a marriage of a minor or unsound person is voidable and not void. So, although consent is necessary but in absence of consent, marriage becomes merely voidable and parties to the marriage can treat their marriage as a valid marriage.
Further, a reference to Manu shows that there is actually a gift of the bride. Thus, an essential part of the marriage ceremony is what is called Kanyadan. Such Kanyadan completes all the requirements of a gift under the Hindu Law. It is, therefore, clear that to the extent that marriage is a gift, it is also a contract.
So, it can be concluded that though Hindu marriage has some of the elements of a contract but it is not purely a contract. It is more of a sacrament as Hindu marriage is a holy and eternal union of two bodies.
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