Saptapadi, facts and perceptions

This is a Research Material by our Intern;

Customary requirement of "Saptapadi" seven steps by the bride and bridegroom is codified and is now a requirement under Hindu Marriage Act.

1. Comment whether Saptapadi satisfies the test of reasonableness.

2. Explain the "test of Antiquity" for validity of local custom.

Introduction: -

Hindu law is about 6000 years old and is considered as divine and sacrosanct. Both, ‘Ancient or traditional Sources’ and ‘Modern Sources’ are responsible for the ancient legal recognised system of Hindu Law to be followed by Hindu community.

It is said that, in ancient times, the Rishis used to hear words of god, known as ‘Srutis or Vedas’. These words which when remembered by sages were known as ‘Smritis’. The Smritis became ‘Dharma Sutras’ when it was written in prose or text by Smritikars (teachers) who exponded 4 Vedas to their followers i.e Rig Veda, Yajur Veda, Sama Veda and Atharva Veda. Manusmriti written by Smrikar ‘Manu’ is the oldest Smriti and is a very important reservoir of Hindu Law. It has 12

chapters with 2,694 slokas.

Manu recognised custom to be transcendent law - extending or lying beyond one can remember. A traditional practice followed by members of a society when repeatedly use becomes a ‘habit’. When such habits are practiced continuously for a very long time, it gradually becomes ‘custom’ for that group or community. Custom means ‘Achara or Usage’.

The privy Council in Collector of Madura Vs. Mootoo Ramalinga Sethupathy (1868) 12 MLA. 397

- Has recognised ‘Custom’ as the supreme authority in Hindu Law.

Customs are not ‘Recognised’ as laws unless it is recognised as Valid custom by the State.

Requirements for Valid Custom:-

1) Reasonableness - Customs should be reasonable and fair. It should do good and not mischief and not oppose the principle of justice, equity and good Conscience.

2) Consistency – it should not be contrary or conflict with other to legislative enacted Acts. As if there is a conflict the law will prevail over custom.

3) Compulsory Observance - The society must observe it and follow it with conviction. It should become a universally acceptable obligation and mandatory duty towards others.

4) Continuity - It is very important that custom must be followed continuously and not abandoned or suspended in between. Or else it will be assumed that such custom was not binding rule and

society could do without it.

5) Immemorial Antiquity - Custom should be followed since such a time that nobody could show the beginning of it, or can define a date since when it was being followed.

6) Certainty - Custom must be definite and certain. Its followers must have clear knowledge of it. Any vagueness or ambiguity will lead to confusion and will be difficult to interpret as law.

For eg. in case of Guruswamy Raja v. Preumal case (AIR 1929 Mad. 815.) , Plaintiff claimed customary right of easement for the shadow of trees from neighbours field. It was held that there cannot be a custom relating to the shadow of trees because it is so uncertain, ambiguous and transitory, that it cannot give rise to any customary right.

7) Public policy - Custom should not oppose public policy. It should be good for the public at large. This is covered under the reasonableness requirement of custom.

Other than custom there are modern sources of laws such as -

1) Legislation - enacted laws by Center and State

2) Judicial precedents - case laws and judicial decisions

3) Professional Opinion - writings if eminent jurist

4) Agreements - treaties, conventions.

WHEN CUSTOM BECOMES USAGE

In, Bihar v. S.G. Bose (1968 (1) SCR 313), it was signified that, a custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality. To the extent to which it is inconsistent with the general law, undoubtedly the custom prevails. But to be valid, a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly.

Codification of Custom

U/S 3(a) of Hindu Marriage Act, 1955, Custom and Usage is signified as :-

The expression custom and usage signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is Certain and Not unreasonable or opposed to public policy and

Provided further that in the case of rule applicable only to a family it has not been discontinued by the family.

Under Personal laws for Hindus, "Saptapadi" seven steps by the bride and bridegroom is codified and is now a requirement under Hindu Marriage Act.

Section 7 of Hindu marriage Act 1955, lays down ceremonies for a Hindu marriage. It says that Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto. In subclause i.e U/S 7(2) it states, where such rights and ceremonies include the Saptapadi (seven steps by the bride groom and bride jointly taken before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

It was held in Kanwal Ram v. Himachal Pradesh Administration A.I.R.1966 S.C.614 - A marriage is not proved unless the essential ceremonies require for its solemnisation are proved to have been

performed:

Analysis whether Saptapadi satisfies the test of Reasonableness Customary law has not been established by legislatures or professionally trained judges, but it has come into existence by popular acceptance and practice.

Reasonableness -

Reasonability and fairness of a custom is very important. People should know why it exists? There should not be any form of biasness or discrimination in it.

Custom of Saptapadi for solemnizing a marriage under Hindu law has been followed since immemorial time. In order to ascertain the reasonableness of a custom, it must be traced back to the time of its origin. Whether since its origin did it ever oppose the principles of justice, equity and good conscience. Or does it oppose any public policy established by the Central or State government?

The court cannot reject an established custom unless it is extremely distasteful and unacceptable or incompatible with the general law of the country. Or it is against the notions of right and reason as in the case of Custom of ‘Sati Pratha’. Sati Pratha was a custom in which the widow of a dead husband was burnt alive along with the pyre - ‘agni moksh’ of her husband - was outlawed under British Rule in 1829 and 1830 under the Governor Generalship of Lord William Bentinck in the Bengal, Madras and Bombay Presidencies.

Later during the independent era of the country it was considered a blatant violation of ‘Article 21 Constitutional Right to Life’ which was therefore banned.

Similarly ‘Biagamy’ was abolished by Prevention of Hindu Bigamous Marriage Act, 1946 and Child Marriage by Child Marriage Restraint Act.

The party disputing the validity of custom must satisfy the court of its unreasonableness.

As Dr. Allen stated. “The true rule seems to be not that a custom will be admitted is reasonable, but that it will be admitted unless it is unreasonable”.

Salmond had rightly cautioned that “before denying the legal recognition of a custom, it must be found out that the mischief resulting from its denial outweighs the harm that would result from

the multiplication of natural expectation of the people.” In a country like India, intervention of courts in affairs of one religion can stir unrest over others.

It was observed by the Supreme Court in the Sarla Mudgal case; .. “ours is a Secular Democratic Republic. Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fibre”.

Besides Saptapadi is a positive and harmless law that unifies a couple in marriage.

Saptapadi is the most important rite of a Hindu marriage ceremony. Saptapadi means "Seven steps" or “sath phere”. There are seven vows that the bride and groom promises each other during Saptapadi for lifelong togetherness in good and bad times and for seven lifes. They make these vows and promises in the presence of holy fire. Mantras and slokas are chanted to offer good prayers to deities. After the seventh step, the couple legally become husband and wife. The entire saptapadi ceremony is mesmerising.

Therefore it is not unreasonable. Besides it is consistently and continuously being followed since its inception. It is also certain and not vague that creates ambiguity of its interpretation by law.

2) “Test of Antiquity” for validity of local custom.

A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law. Under English law, “A Custom for legal recognition, must have been used for so long that the man does not have any memory of its origin." It reckons immemorial antiquity from the accession of Richard I, i.e 1189 AD.

In India, however this does not apply. There is no definite year laid down to determine the antiquity of a custom. Even it need not be beyond memory.

In Mst. Subbhani v. Nawab, ILR 1941 PC 21. at 32, it was stated that, ‘All that is necessary to prove is that the custom has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to be established as the governing rule of a particular locality.’

Justice Rankin in Baba Narayan V. Saboosa , (1943) 2 MLJ 186 (189), -------pg 322

CASE LAW:

Shaji vs Gopinath, AIR 1995 Mad 161;

Facts of the case:-

Appellant was introduced to the defendant by a common friend. The defendant gave a flowery picture that he was going to the U.S.A. soon and he could get a visa for Appellant. He assured Appellant that after her completion of B.A., he would get her employment in the U.S.A. For that purpose, he told her that a certificate would be necessary, showing her as his wife. They went to the office of the Registrar at Nagar and registered the marriage. Immediately thereafter, she went to her house and he went to his place and further as assured by him, he did not get her any employment.

Issues:-

REGISTRATION OF MARRIAGE u/s 8 of Hindu Marriage Act 1955 IS A MARRIAGE ITSELF OR NOT?

“Satapadi” for a Hindu Marriage under Section 7 were not performed

A perusal of the evidence shows that there was no form of marriage gone through between the plaintiff and the defendant at any time. What all has happened is only the registration of a marriage under sec 8, of the Hindu Marriage Act. Section 7 of the Hindu Marriage Act provides

that -

1) A Hindu Marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto;

2) Where such rites and ceremonies include the saptapadi, that is, the taking of seven steps by the Bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken.

Section 8 of the Hindu Marriage Act provides for registration of Hindu Marriages for the purpose of facilitating the proof of such marriages.

On the evidence before the Court, the only conclusion possible is that there was no marriage at all, as contemplated by the provisions of the Hindu Marriage Act and that there could not have been any valid registration of a marriage between the plaintiff and the defendant.

CASE LAW 2

S. Nagalingam vs Sivagami on 31 August, 2001.

FACT

The appellant, married respondent-complainant in 1970. Three children were born from that wedlock. The respondent alleged that due to ill-treating and physically tortured by the appellant, she left her marital home and started staying with her parents. Meanwhile the appellant had entered into a marriage with another woman named Kasturi in 1984. Respondent filed a case on

Appellant for offence of Bigamy under Section 494 IPC.

The Metropolitan Magistrate held that an important ceremony, namely, "Saptapadi" had not been performed in the second marriage and therefore it was not a valid marriage and no offence was committed by the appellant. In appeal it was pleaded that the parties are governed by Section 7-A of the Hindu Marriage Act as the parties are Hindus residing within the State of Tamil Nadu and among the "Reddy community'' in Andhra Pradesh, "Saptapadi", was not essential for valid marriage.

PROVISIONS OF 7-A

"7-A. Special provision regarding suyamariyathai and seerthirutha marriages-

(1) This section shall apply to any marriage between any two Hindus, whether called suyamariyathai marriage or seerthirutha marriage or by any other name, solemnized in the presence of relatives friends or other persons-

(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or

(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or

(c) by the tying of the thali.

ISSUES

Is "Saptapadi" an essential ceremony for a valid marriage for all Hindu’s following other customs of marriage ?

"Saptapadi" was held to be an essential ceremony for a valid marriage only in cases it was admitted by the parties that as per the form of marriage applicable to them that was an essential ceremony. In present case, however, had no such case that "Saptapadi" was not an essential ceremony for a valid marriage as per the personal law applicable to the appellant. whereas the provisions contained in Section 7-A are applicable to the parties. In any view of the matter, there was a valid marriage on 18.6.1984 between the appellant and the second accused, Kasturi.

Therefore, it was proved that the appellant had committed the offence of bigamy as it was done during the subsistence of his earlier marriage held on 6.9.1970.