There are two surviving forms of Hindu marriage which have come down from ancient times: (1) Brahma (2) Asura. In Brahma the girl is gifted and in Asura she is “sold”. The Brahma form is approved and the Asura form is disapproved though in both there are the usual marriage ceremonies. Asura is disapproved because the father collects a bride-price, which he ought not to do according to social norms.
The significance of these forms of marriage is to be seen in the law of succession. When a woman married in Asura form dies without issue, her property goes to her father (or if he is dead, to his heirs) and not to her husband (or if he is dead, to his heirs). If the marriage was in ‘Brahma’ form, her husband and his heirs are preferred in such a situation to her father and paternal relations.
Under the Hindu Succession Act, 1956, nothing turns upon the form of marriage in regard to succession to the estate of a female dying without issue. This Act introduces a simpler distinction. If the property in question had been inherited by the propositus (deceased owner) from her mother or father, it devolves upon her father (or his heirs).
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If the property had been inherited by her from her husband, it will devolve upon his heirs. If the property had been inherited by her from her father-in-law, it will devolve upon her husband (or his heirs). So the form of marriage has now absolutely no legal significance.
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When there is a prosecution for Bigamy the question whether the alleged second marriage conformed to the recognised form assumes importance. In Bhaurao v. State of Maharashtra, AIR 1965 SC 1564, there was a prosecution for Bigamy. With reference to the alleged second marriage there was no proof that the essential shastric ceremonies of invocation before the sacred fire and Saptapadi were performed.
It was held that the conviction for Bigamy in such circumstances was not justified. The Supreme Court observed: “the marriage to which s. 494 Indian Penal Code (Bigamy) applies on account of the provisions of the Act (s. 17 of the Act of 1955) should have been celebrated with proper ceremonies and in due form.
Merely going through certain ceremonies with the intention that the parties be taken to be married will not make the ceremonies prescribed by law or approved by any established custom”. The conviction for Bigamy was quashed.