The Real Nature of Hindu Marriage, the following paragraph by Jurist Paras Diwan has become the locus classicus on examining the real nature of Hindu Marriage ?
The HMA has reformed the Hindu Law of Marriage, But on question which people often raise, has the HIndu marriage now become a Contract or remains a sacrament ? S.5/11 & 12 of the HMA are pertinent here. S.5 deals with the conditions of marriage. Clause (ii) of the section deals with mental capacity. Clause (iii) layus down that at the time of marriage the bridegroom and bride should be atleast 21 & 18 respectively. The age of marriage hence apparently looks like a contract as consent by competent parties is a condition precedent to marriage. The Contract of minor, unsound is void as we all know as per S.11 (Indian Contract Act, 1872) However should not the same test be applicable to marriage, if marriage is regarded as a contract ?
But the fact of the matter is that the marriage of a unsound/minor is just voidable and not void (in normal situations) – a perfectly valid marriage unless choosen to be avoided.
Thus it is amply clear that the HMA does not consider the question of consent as of much importance. Then could we say that the HMA continues to be a sacrament ? It has been seen that the sacramental marriage among Hindus has 3 characteristics : it is a permanent & indissoluble union, it is an eternal union, and it is a holy union. It is evident that the first element has been destroyed by the act since divorce is recognised.
Second element was destroyed in 1856 by recognition of Widow Remarriage.
Probably to some extent third element is still retained. In most of the Hindu Marriages a sacred or religious ceremony is still necessary. But the ceremonial aspect of the sacramental marriage is of least importance.
From the above it may be concluded that the Hindu Marriage has not remained a sacramental marriage and at the same time has not become a contract, though it has semblance of both . It has semblance of a contract as consent is of some importance; it has semblance of a sacrament as in most marriages a sacramental ceremony is necessary.