This research paper aims to examine and analyze Sec 7 of the HMA,1955. Marriage is regarded as a sacred and holy institution in society. This sanctity has been granted to Hindu Marriage as it derives its origin from the ancient Vedic literature and Dharmasutras. For Hindus, marriage is a union made indefinitely for 7 lives. Marriage among Hindus consists of a variety of ceremonies from the promise in the form of Sagai, Baraat, Haldi, etc. but these ceremonies differ from region to region and community to community.

So, it becomes necessary to confer the status of validity to a marriage but to seek marital relief arising out of a marriage it is necessary to establish a marriage at the first instance. This is where Sec 7 of the HMA comes into existence which provides for grounds through which it becomes easier to prove a marriage valid in the eyes of law, then only remedy could be claimed through law under the HMA. This paper significantly focuses on these grounds and their effects on the solemnization of marriage. For the purpose of this research, the researcher considers Hindu marriage as a sacrament and not a contract.

Defining Sec 7 of HMA,1955
Sec 7 of the HMA,1955 provides for the essential ceremonies necessary for solemnization of Hindu marriage. Without the performance of such ceremonies mentioned in this section, a marriage cannot be proved to have happened.[i]

Sec 7 of the HMA,1955 states as follows:

• A Hindu marriage may be solemnized as per the customary rites and ceremonies of either party.
• These rites and ceremonies include the saptapadi, and the marriage becomes complete only when the seventh step is taken."[ii]

The ceremonies discussed in Sec7(2) can be categorised under two categories:

• Shastric ceremonies prescribed under the Vedic literature and Hindu shastras.
• Customary ceremony specific to the either of the party's community or caste group.

Hindu Marriage: A Sacrament:
Hindu marriage has been referred to as a Sacrament and not a contract because of the customary rites and practices associated with the solemnization of marriage. The remedy of divorce provided under sec 13 of the HMA is not an original concept of Hindu law and is borrowed heavily from the institution of Talaq, a part of Muslim jurisprudence.

In the case of Tikait v. Basant [iii] it was held that marriage is a sacrament and an imperishable union between two people that continuing eternally. The case of Shivonandh v. Bhagawanthuma [iv] held that marriage is ever binding and cannot sundered because of its religious sanctity and also pointed out the three main characteristics of Hindu marriage: Permanent, eternal, and holy alliance. In the case of Manmohini v. Basant Kumar [v] it was opined that Hindu marriage is more of a sacrament than a contract. Delhi HC held that Hindu marriage as a sacrament and not a contract which can be entered into by execution of a deed or could be dissolved by recission."

Shastric Ceremonies Of Hindu Marriage:
"These Shastric ceremonies find significant mention in the Grihya Sutras. Hindu marriage can only be validated through the performance of these shastric ceremonies.

These ceremonies consist of the following:

1. Sampradana: This follows the washing of the groom's feet with water mixed with flowers, Durva grass, rice, and sandal paste and by bathing with a mixture of curd, honey, and ghee.
    
2. Kanyadana: The bride is gifted to the bridegroom by her father or the next guardian in order. The groom while reciting the kama sukta accepts the gift. The bride's father takes a promise from the groom of his duties towards the bride in his pursuit of Dharma, Artha, kama, and moksha.
    
3. Vivaha-homa: this involves lighting up the sacred fire and invoking the fire god. The groom then offers oblations to the holy fire together with the bride by holding her hand. These oblations are known as mahavayahritu-homa offered to the earth, sky, and heaven.
    
4. Panigrahana: while holding the bride's hand the groom recites certain Vedic hymns followed by the bride offering oblations to Aryama, Varuna, Pusha, and Agni to free her from their bond.
    
5. Saptapadi: this is the most important and uncompromisable ceremony among all of the ceremonies. This constitutes taking seven steps around the fire in the north-east direction while reciting hymns. Only upon the completion of the seventh step is the marriage solemnized.

Calcutta HC held Homa and saptapadi as the two essential ceremonies for the sanctity of marriage in the case of Subir Kumar Kundu case [vi]. Whereas in Sindhiya devi v. State of U.P [vii], the Allahabad HC in the absence of homa declared the second marriage as valid since evidence led to prove the performance of Saptapadi. It can thus be interpreted from the court's decision that even though Homa and Saptapadi are two of the essential ceremonies for solemnization. Saptapadi alone would suffice for the marriage's validation.

Indispensability of Saptapadi

Mere going through certain customary rites and ceremonies would not be enough for the solemnization of marriage wherein invoking the holy fire and Saptapadi is necessary.[viii] Along with Saptapadi, Homa is also an essential Shastric Ceremony.[ix]

In Deivani v. Chindavdram [x], the Madras HC ruled that the two fundamental ceremonies for the solemnization of a Hindu marriage are kanyadaan , and saptapadi and on omission of saptapadi, marriage is not legitimate. The Calcutta High Court has ruled in Tarapada Jana v. Kumar Bhawani Giri [xi] that if Saptapadi is performed, non-recitation of shlokas will not render the marriage invalid.

The SC in the case of Rathnamma v. Sujathamma [xii] did not recognize the marriage performed by agreeing with the consent and permission of both their fathers in the absence of any evidence to prove the performance of any ceremony or customary rites as mandated by Sec 7 of the HMA.

If from sufficient evidence, it is not possible to deduce the performance of saptapadi, marriage is deemed to not exist.[xiii]

Role Of Customary Rites
Apart from Shastric ceremonies, customary rites on either side of the party are sufficient enough for solemnizing the marriage. Customs that have been followed consistently from indefinite times by the members of the sect or community can only be given due recognition for the validity of marriage.[xiv] Saptapadi is not the only essential ceremony for proving the validity among hindus, customary rites also hold equal status to that of shastric ceremony.[xv]

"Some of these customary ceremonies practiced by different Hindu communities in India consist of the smearing of vermillion by the groom on the bride's forehead among the Santhals, Tying of vadu veeta thali into the bride's neck is the only essential ceremony among the Nayahan community of South India."[xvi]

The apex court in Gopal Lal v. State of Rajasthan [xvii] ruled that under 7(1) of HMA, parties are governed by the custom of nata marriage prevalent in the Telli community.

Validity of Marriage

Marriage, where it is impossible to prove the performance of either the Shastric ceremony or customary rites on either side of the party, loses its validity.

In order to claim any relief arising out of HMA, it becomes of utmost importance to prove the existence of a valid marriage, and a valid marriage according to Sec 7 comes into existence only when there has been a performance of either shastric ceremony or customary ceremony.

"Saptapadi is an essential ceremony for a valid marriage only in cases where parties have entered into the marriage by performing a ritual as per their personal marriage or form of marriage applicable to them."[xviii]

"Marriage can be solemnized following customary rites and ceremonies of either the girl's side or the boy's side."[xix]

"Mere living together as a couple is not enough to confer the status of marriage to the union. A statement that gur was distributed and the couple lived together is not sufficient enough to establish the existence of a valid marriage. Marriage cannot be facilitated without ceremonies."[xx]

"Non-performance of essential ceremonies of datta homa and saptapadi invalidated the marriage, hence the offence of bigamy due to second marriage not made out in the case of Lingari Obulamma v. L. Venkata Reddy & Ors."[xxi]

Cohabitation as a favourable ground
Sec 114 of the Evidence Act [xxii] lays down cohabitation for a longer period by a couple as a ground for De Facto marriage in the absence of sufficient evidence to prove the marriage valid by establishing the performance of any ceremonies.

Cohabitation in this case raises a presumption of marriage in the eyes of law and gives a benefit of doubt to the parties. The burden to prove otherwise lies on the party asserting contrary. But, this cannot be used in cases of restitution of conjugal rights and bigamy, where it becomes essential to prove marriage as a fact.

In the case of Chowdegowda and Ors v. C. Nagaraju and Ors.[xxiii], SC allowed the presumption of marriage between the parties under Sec 114 of the Evidence Act since there existed a prolonged cohabitation of 40 years out of which a child had also been born.

Conclusion
To sum up, all the facts and ruling stated, it is explicitly understood that ceremonies for the confirmation of a valid status to marriage among Hindus essentially involve the performance of necessary ceremonies as has been specified under Sec 7 of the HMA. The hypothesis taken of Hindu marriage as a sacrament for the purpose of this research also holds true as has been established through rulings and judicial pronouncements by the judiciary in various cases. Saptapdi in the absence of any customary rites is the only essential ceremony that facilitates to prove the legitimacy and validity of marriage.

End-Notes:

1. Kanwal Ram v. Himachal Pradesh Administration A.I.R.1966 S.C. 614
2. Hindu Marriage Act, 1955, §7, No.25, Acts of Parliament, 1955 (India)
3. Tikait v. Basant 6 Bengal Law Reporter, 243
4. Shivonandh v. Bhagawanthuma 2006(2) SCC 578
5. Pooja, Concept Of Hindu Marriage: Whether Sacramental Or Contractual Vol.3 of International Journal of Legal Research and Studies 113(2018)
6. Subir Kumar Kundu @ Sambhu v. State of W.B., 1990 SCC OnLine Cal 301
7. Sindhiya Devi v. State of U.P., 1974 SCC OnLine All 127
8. Subbarayudu v. Venkatiah AIR 1968 AP 107
9. Priya Bala Ghosh v. Surendra Chandra Ghosh (1971) 1 SCC 864 : AIR 1971 SC 1153
10. Deivani v. Chindavdram, 1954 Mad 65
11. Tarapada Jana v. Kumar Bhawani Giri, 2020 Cal 78
12. Rathnamma v. Sujathamma, (2019) 19 SCC 714
13. Santi Deb Berma v. Kanchan Prava Devi (Smt), 1991 Supp (2) SCC 616
14. Rabindranath v. State, 1969 Cal 58, Chakki v. Ayyappan, 1989, Ker 89
15. Neelavva Somnath Tarapur v. Division Controller KSRTC, Bijapur, 2002 Kant. 347
16. PARAS DIWAN, MODERN HINDU LAW 89 (8th ed. 2007)
17. Gopal Lal v. State of Rajasthan, (1979) 2 SCC 170
18. S. Nagalingam v. Sivagami, (2001) 7 SCC 487
19. Ram Chandra Bhagat v. State of Jharkhand, (2010) 13 SCC 780
20. Surjit Kaur v. Garja Singh, (1994) 1 SCC 407
21. Lingari Obulamma v. L. Venkata Reddy, (1979) 3 SCC 80
22. Indian Evidence Act, 1872, §114, No.1, Acts of Parliament, 1872 (India)
23. Chowdegowda v. C. Nagaraju, (1996) 5 SCC 623