History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v2.c26.458

v2.c26.458

Manu says (VIII. 168) 'what is given by force, what is enjoyed by force, also what has been caused to be written by force and all other transactions done by force, Manu has declared void;' and in VIII. 165 he places fraudulent transactions on the same footing as those brought about by force. There is great difficulty in applying these dicta to marriages. We saw above that Vas. Dh. S. (17. 73) and Baud. Dh. S. declare that if a girl has been carried off by force and has not been wedded with the repetition of sacred texts she may be given to another man in marriage. Viśvarūpa (p. 74) and Aparārka (p. 79) add a gloss that this can be done only after she has undergone a prāyaścitta. From this it appears that if the marriage rites (like saptapadī) have been performed, the ancient law-givers would not have declared the marriage null and void even if the girl had been carried away by force or married by fraud. In modern works on Hindu Law the proposition is stated¹²⁴⁴ that 'a marriage, though performed with the necessary ceremonies, may be set aside by the court, if it was brought about by force or fraud.' This opinion is based on what was said in some decided cases e. g. *Aunjona Dasi v. Prahlada Chandra* (6 Bengal L. R. 243 at p. 254), *Venkatacharyulu v. Rangacharyulu* I. L. R. 14 Mad. 316 at p. 320, *Mulchand v. Bhudhia* I. L. R. 22 Bom. 812. But in none of these cases was a marriage duly solemnized by the performance of the rites of pāṇigrahaṇa, going round the fire and saptapadī, set aside. There are mere *obiter dicta* in these cases to the effect that a marriage may be set aside by the court for force or fraud.