Hindu Marriage - Father's consent

Hindu marriage father’s consent

Hindu marriage without the consent of girl’s father:

The plaintiff ( a Hindu boy) married a girl on 14^th May 1894. The girl’s father had not allowed the girl to live with that boy, because of the reason that his (girl’s father) consent was not obtained for that marriage. Therefore the boy filed the suit against his father-in-law.

The marriage was celebrated by the girl’s mother and without the consent of the defendant (girl’s father). The girl’s father did not support his wife and daughter and therefore they (mother and daughter) had been living with the girl’s mother’s brother. The girl had attained marriageable age and father did not care about her and therefore the mother secretly married the girl to the plaintiff-boy.

The usual rites of marriage were gone through, and that the relationship between the boy and the girl was not such as to render the marriage illegal under the Hindu Law.

The Lower Court raised the question whether under such circumstances (i.e. without the consent of the father of the girl) the marriage was valid according to Hindu Law. The Lower Court found that it was a valid marriage and decreed the suit.

The girl’s father filed the appeal before High Court of Allahabad in 1897.

The father contended that the marriage of the plaintiff with his daughter, without his consent was not a valid marriage.

The uniform course of rulings, dating back to 1843, has laid down that the want of a guardian’s consent would not invalidate a marriage actually and properly celebrated.

The Madras High Court after carefully reviewed on the subject by Justice Muthusami Ayyar and Justice Shepard and held in the case of Venkatacharyulu v. Rangacharyulu, iLR 14 Mad. 316, that:

“Where there is gift in marriage (kanniyaa-thanam கன்னியாக தானம்) by the legal guardian and the marriage rites were duly solemnized, the marriage is irrevocable. The mother is a legal guardian of the daughter, though the father is a preferential guardian.

If the girl was given away in marriage by her mother and all the necessary rites were duly performed that would make the marriage a valid marriage, and in the absence of force or fraud, such marriage would not be regarded as void by reason of the father of the girl not consenting to it.”

The Madras High Court further held that:

“It was also held by the High Courts at Calcutta and Bombay that when the marriage rite was duly solemnized and there was no fraud or force, the doctrine of ‘factum valet’ appliedd and the marriage was irrevocable.

Doctrine of Factum Valet:

This doctrine was applied by the British Courts in India, while administering Hindu Law, on grounds of equity, justice and good conscience.

The full maxim is: Factum valet quod fieri non debet. It literally means ‘what should not be done, yet being done, shall be valid.’

To understand this doctrine: That under the Hindu Law, the father’s consent is necessary to give his daughter in marriage. Suppose the mother, without the consent of the father, gives in marriage of her daughter, such marriage is not valid normally under the Hindu Law. But by applying this doctrine, such marriage should not be done, yet being done, it shall be valid.

The substantial question was – whether a gift of the bride by the father or her proper legal guardian, is of the essence of Hindu marriage as a religious ceremony.

As a religious ceremony it becomes complete when the saptapadi (7 steps before the sacred fire) is performed, and there are several Smritis to that effect.

Several Smritis:

Manu says:

The relation of wife is created, by the texts pronounced, when the girl is taken by the hand. Be it known that those texts end with the texts prescribed for walking seven steps.

Vasishta says:

In connection with the formation of the relation of husband and wife, agreement is first prescribed. Then taking by the hand is prescribed. It is said that mere agreement is defective, and that of the two, taking by the hands is indispensable.

Yama says:

Not by the pouring of water nor by the words of gift, is the relation of husband and wife formed, but it is formed by the rite of taking the bride by the hand, and when they walk together the seventh step. (completion of the 7^th step).

Justice Muthusamy Ayyar further held:

I may here mention that the marriage ritual prescribed for Brahmans, and now in general use amongst them is what is known as the Brahma marriage. And this is the form customarily adopted, even where the father accepts a price for the girl. And the marriage is in substance of ‘asura’ kind.

The ritual, so far as it extends to saptapadi, may be divided into three parts.

1) the Vakda-nam – the promise to give the girl;

2) the Kanyaka-danam – the actual gift of the birde;

3) the Panigrahanam – the marriage rite which commences with taking the bride by hand;

And such marriage ends with the seventh step taken around the consecrated fire (saptapadi).

The Vak danam and Kannyaka danam may be treated as forming one essential part, and the marriage rite as the other.

It must be remembered that the ritual is prescribed for a minor or a child, for according to Hindu Law and custom, a Brahman girl, must be married before she attains her maturity (puberty), and therefore, at a time when she is not in a position to choose a suitable husband for herself.

Two principles therefore form together the groundwork of the marriage ceremony:

(1) A natural or legal guardian acting in the interest of the girl with due regard to her welfare should choose a suitable husband for her;

(2) The choice should be consecrated by the marriage rite and thereby unalterably fixed.

Hence, two propositions of law may be taken to be established beyond controversy, viz, (1) where there is a gift by a legal guardian, and the marriage rite is duly solemnized, the marriage is irrevocable; and (2) where the girl is abducted by fraud or force, and married, and there is no gift either by a natural or legal guardian, there is a fraud upon the policy of the religious ceremony, and there is therefor no valid religious ceremony.