BIGAMY IN HINDU MARRIAGE: A MYTH OR REALITY
3.3 Family Law
Submitted by: -
Debarpita Pande UG 2016-17 2 Year Semester II nd
MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR I
TABLE OF CONTENTS
INDEX OF AUTHORITIES ....................................... ............................................................. ............................................ ..................................... ............... II AIMS AND OBJECTIVES ............................................. ................................................................... ............................................ ............................... ......... III RESEARCH METHODOLOGY ............................................................. ................................................................................... ........................... ..... III CHAPTERISATION CHAPTERISATION ............................................ .................................................................. ............................................ .......................................... .................... III CHAPTER 1 : INTRODUCTION............................................ ................................................................... ............................................. ......................1 CHAPTER 2 : BIGAMY IN HINDU MARRIAGE IS A REALITY ................................. 2
2.1 Position of bigamy in Hindu mythology: ........................................... .................................................................. .............................. ....... 2 2.2 Polygamy in the Hindu Law Books: ..................................................... ............................................................................ ........................... .... 2 2.3 Position today: ............................... ...................................................... ............................................. ............................................. ...................................... ............... 4 CHAPTER 3: HINDU MONOGAMY LAWS VIS A VIS MUSLIM BIGAMY LAWS .. 6 CHAPTER 4: MODIFICATION BY LAW COMMISSION COMMISSION OF INDIA ........................... ........................... 8 CHAPTER 5: CONCLUSION.......... CONCLUSION................................. ............................................. ............................................ ....................................... ................. 10 BIBLIOGRAPHY ............................................. ................................................................... ............................................ ............................................. ......................... .. 11
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INDEX OF AUTHORITIES Cases
Daniel Latifi and Anr. V. Union of India, 2001 AIR 3958............................................. ....................................................... ........... 4 Moh. Ahmed Khan v. Shah Bano Begum, 1985 SCR (3) 844 . ................................................ ................................................ 4 Shamim Era v. State of U.P., [2002]SUPP3SCR19; [2002]SUPP3SCR19; 2002(2)............................................. ................................................... ....... 4
Statutes
Hindu Marriage Act 1961 .................................................. ........................................................................ ............................................ .................................. ............ 1 Indian Penal Code (1864). ......................................... ............................................................... ............................................. ........................................ .................10 Special Marriage Act……………………………………………...…………………………...9
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AIMS AND OBJECTIVES
The project aims at analysing the situations relating to bigamy in Hindu law l aw and its social and legal consequences. It also aims to compare it with other laws of other religion like Muslim laws in India along with that t hat it aims to analyse the requirement of new laws and efficiency and loopholes of existing laws. RESEARCH METHODOLOGY
The project is a result of doctrinal method of research. It involved analysation of the present topic and various other situations along with books and commentaries. It even involved study of different articles.
CHAPTERISATION
The project develops in five chapters. It begins with the introduction in the 1 st Chapter where it deals with provisions of Hindu Law governing bigamy and then it moves to the second chapter where the bigamy in Hindu Law is discussed right from the Hindu Shastras and evolved to the contemporary era and situation. The next chapter deals with the parallel study of bigamy laws in Muslim and Hindu law. Then it discusses about the modifications made by the Law Commission of India regarding this matter. Finally the Conclusion deals with the loopholes in law and some suggestions towards the same.
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CHAPTER 1 : INTRODUCTION
Section 5 of the Hindu Marriage Act 1 stipulates that neither of the party part y should have a spouse living at the time t ime of marriage. Section 11 of the Act, renders polygamous marriages void. Due to this, Hindu men who contract bigamous marriages are allowed to go scot-free without any legal obligations towards their partners. Even if there are provisions prohibiting bigamy in Hindu Law it is more or less rampant in India which will be laid down further rendering the monogamy under Hindu Marriage Act a myth instead of reality. 2 It has raised eyebrows of the nation and it is high time that it requires legal attention looking at the plight of the women who are suffering because of the loopholes in the law.
1 Section
5, Hindu Marriage Act 1961 (hereinafter referred to as HMA).
2 Rahman,
A. (2016). Situating law in the land. The Hindu. [online] Available at: http://www.thehindu.com/opinion/lead/Situating-law-in-the-land/article16083453.ece http://www.thehindu.com/opinion/lea d/Situating-law-in-the-land/article16083453.ece [Accessed 1 Oct. 2017]. 1
CHAPTER 2 : BIGAMY IN HINDU MARRIAGE IS A REALITY
2.1 Position of bigamy in Hindu mythology:
Polygamy and polyandry were prevalent In ancient India, but it is i s doubtful whether they were ever popular in the public opinion. It was practiced mostly by the warrior castes, rich merchants, and feudal lords. Polygamy in ancient India was a matter of personal choice, a status symbol and at times a social, moral and religious obligation. Marriage in Hinduism was traditionally and historically meant for progeny and carrying out obligatory duties (dharmakaryam) in accordance with a person's dharma (duty) so that the four major aims (purusharthas) of human life could be realized. If polygamy served such ideals, the Hindu law l aw books did not object object to its practice. practice. 3 2.2 Polygamy in the Hindu Law Books:
The Hindu law books (dharmashastras) made provision for polygamy, and certain marriage relationships under special circumstances, not for the purpose of carnal pleasures, but for procreation and continuation of family lineage. According to them, a woman had no independence independence of her own. She always needed the protection of her closest relations so that she would not seduce men and bring disrepute to herself and her family. Therefore, it was the duty of her husband and the male members of his family to keep a close watch on her and never leave her in the company of other males. If her husband died, leaving her childless and without care and protection, she had the permission to marry his brother, strictly for the purpose of begetting children and find a shelter1. A woman whose whose husband left her for a foreign country or disappeared for a particular period of time, unless he took sanyasa (renunciation), had the permission to remarray remarray according to her free will.4 In ancient India, women were often sold and purchased freely and publicly in markets and the people who purchased them had complete ownership rights over them. It was not same as slavery, but the purchased women were bound to the households or their masters. The law 3 Jayaram,
V. (2017). Hinduism and Polygamy. P olygamy. [online] Hinduwebsite.com. Available at: http://www.hinduwebsite.com/hinduism/h_polygamy.asp http://www.hinduwebsite.com/hindu ism/h_polygamy.asp [Accessed 18 Sep. 2017]. 4 Vidyarnava,
Y. (1918). Yajnavalkya smriti. With the commentary of Vijnanevara called the Mitaksara and notes from the gloss of Balambhatta. Translated by Rai Bahadur Srisa Chandra Vidyarnava : Yjñavalkya ,52-3. :Free Download & Streaming : Internet Archive. [online] Internet Archive. Available at: https://archive.org/details/yajnavalkyasmrit00yj https://archive.org/details/yajnava lkyasmrit00yj [Accessed 4 Sep. 2017]. 2
books declared any marriage between a man and any women he purchased as illegal. The Yagnavalkya Yagnavalkya Smriti, a Hindu law book, stipulates that men should marry women who were not married before. However, the same rule was not mentioned in case of men. The scripture suggests that if "a man's wife drinks alcohol, is sickly, cantankerous, barren, wastes money, quarrelsome, begets only female children or is hostile to men, then he may take another wife." However in the next verse there is a clear indication that the superceded wife should still be maintained and not abandoned. Yagnavalkya also suggested that if a man had many wives, he should not ask a younger wife to perform religious duties with him. 5 The Baudhayana Dharmashastra, another Hindu law book, prescribes the following rules regarding the number of wives and the status of children borne out of such wedlocks. 6 There are four castes (varna, viz.) Brâhmanas, Kshatriyas, Vaisyas, and Sûdras. Males belonging to them may take wives according to the order of the castes, viz. a Brâhmana four, a Kshatriya three, a Vaisya two and a Sûdra one. Sons begotten on wives of equal or of the next lower castes are called Savarnas of equal caste. Those born of(wives of the second or third lower castes become Ambashthas, Ugras, and Nishâdas. Of females wedded in the inverse order of the castes are born Âyogavas, Mâgadhas, Vainas, Kshattris, Pulkasas, Kukkutakas, Vaidehakas, and Chandâlas. Many Hindu gods are also depicted as polygamous, with two or more wives. The goddesses are not actually wives in the physical sense but pure universal energies who assist their gods to maintain dharma (good order) in the universe. They do not possess physical bodies, though they can appear in human form if they want to. If we study the history of ancient India, we realize that polygamy and polyandry were practiced by the rich and the powerful, while the sages and seers were strictly monogamous or completely celibate. We also notice that whether it was in the past or in the t he present, polygamy was never a popular practice in the public opinion. Yet in the epics and the Puranas we cannot fail to notice the prevalence of the practice and the tensions and the obstacles it created in the families and in the performance of obligatory duties. Lord Rama, an incarnation of Vishnu, was strictly monogamous, monogamous, a practice that was probably in accordance with the moral standards of Treta yuga (the second great epoch) in which he incarnated. In contrast, Lord Krishna, another incarnation of Vishnu, who incarnated in the 5 Baudhayana
prasna i, adhyâya 8, kandikâ 16, verses 1-8, Bühler, G. ((2017). 2017). Introduction to the Baudhayana Dharma Sutra. [online] Hinduwebsite.com. Available at: http://www.hinduwebsite.com/sacredscripts/hinduism/dharma/bau_intro.as http://www.hinduwebsite.com/sa credscripts/hinduism/dharma/bau_intro.aspp [Accessed 6 Sep. 2017]. 6 Ibid.
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following Dwapara yuga, was polygamous. The Pandavas, to whom he was w as related through his sister, practiced both polyandry and polygamy. It was a sign of the declining moral standards and growing decadence of society, as a part of the progression of human society, in which the Eternal Dharma was meant to decline gradually from order to disorder, from monogamy to polygamy to mixed marriages to, finally, finally, sham marriage or or no marriage.7 2.3 Position today:
The recent comments of Justice Markandey Katju, a retired Supreme Court judge, in support of the uniform civil code on the ground that the Muslim personal law is “barbaric, backward and unjust” has raised many eyebrows. Citing the reversal of the controversial ruling in the
Shah Bano 8 case, these comments seem to lend support to the political agenda of the present government. Coming from a legal luminary, these comments sound almost pedestrian as they overlook the gains made by the apex court during the last three decades since the Shah Bano ruling in 1985, more particularly the path-breaking judgments such as Shamim Ara 9 (2002) and Daniel Latifi (2001)10 which have placed Muslim women’s rights on a firm ground, outlawing arbitrary triple talaq as well as securing the post-divorce economic rights of Muslim s uch as D. Velusamy (2010) which have women. Ironically, it is Justice Katju’s own judgments such
placed the rights rights of Hindu women on on a precarious footing. footing. 11 There had been several earlier rulings which had upheld the rights of Hindu women in bigamous relationships relationships by invoking a legal legal p remise that “marriage need not be strictly proved while awarding maintenance under section 125 of CrPC”. But one negative judgment, can
thwart these efforts. It is ironic that in the past 60 years there has not been a sustained campaign to secure the rights of such women. The Velusamy ruling which labelled such women as mistresses, keeps and concubines has served to add insult to injury. 12
7 Jayaram,
V. (2017). Hinduism and Polygamy. P olygamy. [online] Hinduwebsite.com. Available at: http://www.hinduwebsite.com/hinduism/h_polygamy.asp [Accessed 18 Sep. 2017]. http://www.hinduwebsite.com/hinduism/h_polygamy.asp 8 Moh.
Ahmed Khan v. Shah Bano Begum, 1985 SCR (3) 844 .
9 Shamim 10 Daniel
Era v. State of U.P., [2002]SUPP3SCR19; 2002(2).
Latifi and Anr. V. Union of India, 2001 AIR 3958.
11 Jamal,
A. (2016). Is the Hindu marriage legislation divorced from reality?. Herald. [online] Available at: https://herald.dawn.com/news/1153359 [Accessed [Accessed 4 Sep. 2017].
12
D’Mello, A. (2014). The myth of Hindu monogamy. The Kashmir Monitor. [online] Available at:
https://www.kashmirmonitor.in/Details/73754/the-myth-of-hindu-monogamy https://www.kashmirmonitor.in/Deta ils/73754/the-myth-of-hindu-monogamy [Accessed 4 Sep. 2017]. 4
Official reports brought out in 1974, almost 20 years after the enactment of the Hindu Marriage Act (Towards Equality) highlighted the disturbing fact that polygamy among Hindus, Buddhists and Jains (communities governed by the codified Hindu law) is higher than among Muslims (Muslims 5.6 per cent, Hindus 5.8 per cent, Jains 6.7 per cent, Buddhists 7.9 per cent). These percentages percentages conceal the actual number of women who live li ve in legally invalid marriages, which is huge. Around 65 per cent of the Hindu women who approach us for help are trapped in these situations.
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CHAPTER 3: HINDU MONOGAMY LAWS VIS A VIS MUSLIM BIGAMY LAWS
Section 5 of the Hindu Marriage Act stipulates that neither of the party should have a spouse living at the time t ime of marriage. Section 11 of the Act, renders polygamous marriages void. Due to this, Hindu men who contract bigamous marriages are allowed to go scot-free without any legal obligations towards their partners. 13 Faced with this travesty of justice, it is important to compare the legal provisions under the Muslim Personal Law: Muslim marriage is a contract, hence the consent of a bride is essential; Women can stipulate conditions which are binding (including monogamy) in the marriage contract; Mehr which is stipulated on the basis of the husband’s status at the time of Nikah, is the
exclusive property of the wife; The right of khula through which the wife can dissolve her marriage; Muslim men who marry more than once are legally bound to fulfil their legal and social obligations towards each wife including residence and maintenance. An un-Islamic or arbitrary talaq does not extinguish the rights of a Muslim wife. 14 Apart from approaching a darrul-qaza, Muslim women can also approach a civil court to safeguard their right of maintenance, return of her mehr, custody of children or for dissolution of marriage under the civil law and for a fair and reasonable settlement upon divorce.15 Despite this, there is a skewed perception that Muslim women have no rights because the Muslim law is barbaric. It is rather rathe r shocking that even a jurist of Justice Katju’s stature endorses
this view. This noti on has also been internalised by some Muslim women’s groups, who wish to reform the Muslim law along the lines of the Hindu Marriage Act. For instance, a draft prepared by a group, Bharatiya Muslim Mahila Andolan, Andolan, attempts to ban Muslim Muslim polygamy. polygamy.
13 Ibid. 14 D'Mello,
A. (2014). The myth of Hindu monogamy. Deccan Chronicle. [online] Available at: http://www.deccanchronicle.com/141023/commentary-op-ed/article/myth-hindu-monogamy http://www.deccanchronicle.com/141023/c ommentary-op-ed/article/myth-hindu-monogamy [Accessed 4 Sep. 2017]. 15 Menski,
W. (2012). Hindu law:Beyond law:Beyond Tradition and Modernity. New Delhi: Oxford University University Press. 6
Feminist legal scholar Flavia Agnes has cautioned that attempts to codify the Muslim law to bring in legal monogamy “should not end up subjecting Muslim women to a plight which is similar to that of the ‘Hindu second wife’”. That polygamy pol ygamy cannot be controlled by co dification
is a painful lesson which multitude of Hindu women have learnt.
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CHAPTER 4: MODIFICATION BY LAW COMMISSION OF INDIA
The Law Commission has recommended amendments to the Hindu Marriage Act (HMA) and other personal laws to the effect that a person whose marriage is governed by such legislation cannot marry again even after changing religion unless the first marriage is dissolved or declared null and void. 16 In its 227th report submitted to the Union government on Wednesday, the Commission, headed by Justice A.R. Lakshmanan, Lakshmanan, also suggested that amendments be made in the Criminal Procedure Code to make bigamy a cognisable offence. 17 It said: “For a long time, married men whose personal law does not allow bigamy have been
resorting to the unhealthy and immoral practice of converting to Islam for the sake of contracting a second bigamous marriage under a belief that such conversion enables them to marry again without getting their first marriage dissolved.”
The Supreme Court outlawed this practice by its decision in 1995, and reaffirmed it again in 2000. In view of this, the Commission took a suo motu review of the subject for examination of the legal position to suggest changes in family laws. The Commission said: “The law of monogamy u nder
the HMA is indeed full of serious
shortcomings and loopholes. Combined with the Act’s provisions relating to marriage rites, it built devices for easy avoidance of all the consequences of its violation.” provides in- built
The Commission, accordingly, recommended insertion of Section 17-A after 17 in the HMA to the effect that “if such a marriage is contracted it will be null and void and shall attract
application of Sections 494 and 495 of the Indian Penal Code [relating to bigamy]. A similar provision be inserted in the Christian Marriage Act, Act, 1872; the Parsi Marriage and and Divorce Act, 1936; and the Dissolution of Muslim Marriages Act [DMMA], 1939.” “The proviso to Section 4 of the DMMA, saying that this Section would not apply to a married
woman who is originally a non-Muslim if she reverts to her original faith, should be deleted.” In the Special Marriage Act, 1954, a provision should be inserted to the effect that if i f an existing marriage, by whatever law governed, becomes inter-religious due to a change of religion by 16 The
Hindu (2010). Law Commission: make bigamy, on change of religion, an offence. [online] Available at: http://www.thehindu.com/todays-paper/tp-national/Law-Commission-make-bigamy-on-change-of-religion-anoffence/article16530213.ece [Accessed [Accessed 4 Sep. 2017].
17 Ibid.
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either party, it will thenceforth be governed by the SMA, including its anti-bigamy provisions, the report said.
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CHAPTER 5: CONCLUSION
It is evident from the scenario in the society that the bigamy in Hindu Law is no more a myth, m yth, it is indeed a harsh reality detrimental to the respect and rights of the women. It is high time to curb the loopholes of the Hindu laws of bigamy with stringent penalty provisions and punishments. Section 494 of the Indian Penal Code states that “Marrying again during lifetime of husband or wife: Whoever having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”. Exception to this section is that it does not extend to any person whose
marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such such marriage takes place, place, inform the person person with whom whom such marriage marriage is contracted contracted of the real state of facts so far as the same are within his or her knowledge. 18 Here when the former marriage is being declared void then the wife is the sufferer without she being guilty guilty of anything. anything. This part should be reconsidered reconsidered and and there should be relief provide to the woman who had married the man.
18 Section
494. Indian Penal Code (1864). 10
BIBLIOGRAPHY Newspaper Articles:
1. Rahman, A. (2016). Situating law in the land. The Hindu. 2. Jamal, A. (2016). Is the Hindu marriage legislation divorced from reality?. Herald. 3. D’Mello, A. (2014). The myth of Hindu monogamy. The Kashmir Monitor. 4. The Hindu (2010). Law Commission: make bigamy, on change of religion, an offence. Books:
1. Baudhayana prasna i, adhyâya 8, kandikâ 16, verses 1-8, Bühler, G. (2017). Introduction to the Baudhayana Dharma Sutra. 2. Vidyarnava, Y. (1918). Yajnavalkya smriti. With the commentary of Vijnanevara called the Mitaksara and notes from the gloss of Balambhatta. Translated by Rai Bahadur Srisa Chandra Vidyarnava. 3. Menski, W. (2012). (2012). Hindu law:Beyond law:Beyond Tradition and Modernity. Others:
1. Law Commission Reports.
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