New Delhi: In a short three-page order, the Allahabad High Court reiterated last month that kanyadaan – the age-old tradition of giving away one’s daughter – was not an essential ceremony to solemnise a Hindu marriage.
Quoting Section 7 of the Hindu Marriage Act (HMA), a single-bench of Justice Subhash Vidyarthi held that the law only prescribed saptapadi (the seven rounds a couple takes around the sacred fire) as essential.
Justice Vidyarthi’s decision came on a criminal revision petition filed by a man who approached the high court with a request to let him re-examine his wife and her father in a case against him. He wanted both prosecution witnesses to re-appear in the trial court, even though they had already recorded their statements.
A prosecution witness can be recalled if it is essential for a just decision in a case. Discrepancies in the examination and cross-examination of a witness do not give rise to a ground to recall the witnesses.
In the case decided by him, Justice Vidyarthi noticed that the petitioner wanted to re-examine his wife and her father to establish the solemnisation of the kanyadaan ceremony. However, since this ritual was not essential to prove the factum of a valid marriage, the judge dismissed the man’s application to summon the two witnesses.
Said to be a vedic-era ritual, kanyadaan is performed by the bride’s family. The literal translation of the word is giving away the daughter. The ceremony entails the bride’s parents offering their daughter to the groom in the presence of the sacred fire.
The bride’s father puts her right hand over the groom’s and requests him to treat her as an equal. This is followed by the bride’s mother pouring water on the couple’s palms, after which flowers, fruits and betel nuts are placed in their hands.
Believed to be mentioned in Manusmriti, the kanyadaan practice was established with the notion that male guardianship was necessary for a woman and hence the father would be the guardian until she was married, passing on the responsibility to the husband — thereby also legalising the marriage of minor girls.
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How kanyadaan was ‘abolished’ in 1978
An Andhra Pradesh High Court judgment in 1998 observed that the concept of giving a daughter away in marriage had been “abolished” in 1978, following an amendment to the Child Marriage Restraint Act and the subsequent deletion of Section 6 of the HMA.
Introduced in 1929 to fix the minimum age limit for marriage, the law was amended in 1978 to increase the age of marriage for females to 18 from 15 and to 21 from 18 for males.
Changes in the Child Marriage Restraint Act led to the repeal of Section 6 of the HMA, which had legalised the marriage of a girl child who was not a major. This section listed male members of a family whose approval was needed under the act to marry the bride.
While dealing with a petition filed by a man who claimed it was his right to conduct kanyadaan of his two adult daughters, a single-judge bench of the Andhra Pradesh High Court opined that the concept of kanyadaan existed only in the “good old days” because daughters were married when they were young and minor.
Justice Ramesh Madhav Bapat’s argument held: “The girl used to be a minor and therefore [when] gifting the daughter in marriage the consent of the father was necessary as the minor was incompetent to give consent.”
However, with the amendment to the Child Marriage Restraint Act and repeal of Section 6 of the HMA, the concept of giving the daughter in marriage was totally abolished.
The man, who lived separately from his wife and daughters, had moved the high court when one of the daughters decided against including the father for a kanyadaan ceremony. The petitioner asserted his right to be part of the ceremony in accordance with the customs of the Agarwal community to which he belonged.
In his verdict, Justice Bapat referred to one of the “vedic” verses recited during the marriage ceremony in which a priest, on behalf of the bride’s father, offers “his eight-year-old” daughter to the groom’s father as a gift so that she is looked after with love and affection.
Pointing to this verse, the judge had said: “From the above mantra we can definitely infer knowledge that in the good old days the marriageable age of the daughter was taken to be eight.”
But the current law, he said, permitted a woman who had reached 18 years of age and a man who had reached 21 to marry, even ignoring the wishes of their parents. “The parents of both the spouses have no legal rights to restrain them from marrying each other,” he had said.
The judge further observed that treating a daughter as a gift also had religious significance, with the bride’s parents believing that they would earn “punyam” (religious merit) by gifting their daughter to the groom. “Such a concept does not exist today,” Justice Bapat had declared.
He, thereafter, cited Section 7 of the HMA, holding that the law required a marriage to be performed in accordance customs prevailing in the families of either party. In view of the reading of Section 7 and in the backdrop of the deletion of Section , the judge had held that a father cannot claim he has a right to perform kanyadaan of his own daughter.
Justice Bapat’s ruling was affirmed by the division bench of the Andhra Pradesh HC. In this judgment, the judges drew reference from the eighth edition of N.R. Raghavachariar’s Hindu Law: Principles and Precedents, published in 1987, to state that kanyadaan or “kannikadana” was an important part of the rites of Hindu marriage in the “Brahma form”.
But its omission would not result in invalidity of the marriage, the judgment said, adding that the single judge’s decision must be construed in the background of the fact that kanyadaan was not considered as an essential condition for the validity of marriage even under “customary Hindu law” or as contemplated in Section 7(2) of the HMA.
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Saptapadi essential: SC in 1965
As for saptapadi or the “seven pheras,” the Supreme Court in 1965 held it to be an essential ceremony for a valid marriage unless it was established that the custom prevailing in a particular community had abrogated it.
Delivered by a three-judge bench in the Bhaurao Shankar Lokhande case, the ruling came on an appeal filed by two people who were charged with bigamy. They challenged the criminal prosecution on the ground that the alleged second marriage was invalid as the necessary customary rituals of a “gandharva marriage,” particularly the saptapadi, were not followed.
Acquitting the two in the case, the top court had determined the essential ceremonies for a valid marriage. The judgment noted that in Mulla’s Hindu Law, two essential ceremonies were enumerated for any form of marriage — invocation before the sacred fire and saptapadi.
Mulla’s Hindu Law is a treatise on personal laws governing Hindus, including marriage, divorce and inheritance.
Applying the principle in the case before it, the top court found that there was no solemnisation of the second marriage as the two essential ceremonies outlined in Mulla’s Hindu Law were not performed. Hence, it concluded that the petitioners could not be charged with bigamy.
The top court said there was no evidence before the court to prove the two essential ceremonies were abrogated by the custom prevailing in the community to which the petitioners belonged.
A year later, the Andhra Pradesh HC relied upon this judgment to grant relief in a bigamy case where the factum of valid marriage remained unproven due to the non-performance of the essential ceremony, saptapadi.
However, a recent Delhi High Court judgment has questioned the need to prove a legally-valid marriage in cases of bigamy. Authored by Justice Swarana Kanta Sharma, the judgment said “the potential invalidity of the second marriage, on account of skipping of a ceremony,” would not alter the fact that there was a double marriage.
The judge was dealing with a case in which a man had questioned a trial court’s order to summon him in a bigamy case lodged by his first wife. The man claimed he never solemnised his second marriage but was in a live-in relationship with the other woman and had a girl child with her.
While acknowledging the rising popularity of live-in relationships, the judge said that it was crucial to strike a balance to ensure legal protection for those who have committed to the “sanctity and values of marriage”.
According to her, the second marriage during the subsistence of the first legally valid marriage would generally be a “clandestine” one and, in such circumstances, it was difficult to prove whether the persons married following all rituals.
(Edited by Tikli Basu)
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