WHAT IF THERE WERE NO LAWS TO GOVERN HINDU MARRIAGES IN INDIA?
ABSTRACT
Imagine, In the times like the era of 19th century where there was no introduction of Hindu Marriage Act, if there were two people bound by a sacramental bond like marriage who did not see eye to eye at all and was completely impossible to live with, were force to continue upon their marriage. How unfair that situation would be. With no other remedies available to them to take advantage of. How helpless it would be for them, isn’t it?
In present scenario if such is the case a person can easily take legal aid in the form of various provisions mentioned under the Hindu marriage act of 1954. The growing concern of the people of today is the increase in number of divorces happening all around the world and also in India. You must have heard the elders say that in their times it was not the case and the people taking remedies in the form of divorce are generally frowned upon or are judged for the said act, but that is actually a much rather regressive approach towards people who seek divorces by the society as a whole. Still there is a need of much more acceptance and changes to be done in India regarding divorces or any other disputes arising out of marriages at large. People specially in present time need to accept the fact that dispute in marriages are a real problem which should be talked about.
Imagine, if a Man has multiple wives in today time is it legalised or will his other marriages would be considered void under the eye of law, how is it possible and what is the legal aspects behind it. Was the situation same around 100 years ago. Through times people have changed and so as the laws in regards to them. There have been many changes made in the India Legal system and new laws introduction have been done through times as deem fit according to the period.
The objectives of having these laws regulating marriages was to ensure that every individual rights are protected and to uphold the norms being followed in India that are essential for Human Dignity, since it is found that laws act as an agent of social changes and has the potential in succeeding to improve individuals’ status in the society.
There are many laws in India that regulates marriages for instances for Hindus there is Hindu marriage act, For Muslims we have Muslim marriage act similarly for Christians and Parsis we have their marriages act respectively. And one secular marriage act is called special marriage act which governs marriages of all Indians under the territory of India. In this blog I will be focusing on the laws regulating Hindu marriages.?
Keywords: Marriages, India, Provisions, Hindu, Laws, Disputes, Divorces.
PROVISIONS REGULATING HINDU MARRIAGES UNDER HINDU MARRIAGE ACT, 1954
Before the origin of Hindu marriage act in India people relied on customs which governed the marriages among two people. It was only after independence that Hindu courts were adopted for regulating Hindu matters and laws were establishes in regards to the same. It was only done keeping the Indian pre-followed customs in mind as some of the customs which was previously prevalent were contrary to the rights of Hindu women for example the practice of Bigamy followed by Indian men in earlier days. Which was now made unlawful as well as a punishable offence. If we talk of the applicability of Hindu marriage act, the act regulates Buddhists, Jain, Sikh, Virashaiva, Lingayat, follower of Brahmo, Prarthana or Arya samaj, a child born or brought up as Hindu or any person converts or reconverts themselves as a Hindu.
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[1] Earlier marriage was considered as a sacramental bond but now it is thought to be partly sacramental partly contractual as divorce in Marriages can only be granted if there ever was a contract between the parties which upon breached demanded divorce.?
[2] Sec. 5 of the act laid down conditions for a valid Hindu marriage in order to protect the rights of women in India. S.5(1) talks about monogamy, if present it is a valid marriage any other marriages later to that results in to Bigamy which is punishable under S. 17 of the act. S.5(2) laid down the need for a valid consent to be present free from unsoundness of mind, coercion, misrepresentation etc. for there to be a valid solemnized marriages between two Hindus, the petition for no free consent will not be entertained if filling of petition took more than 1 year after finding out, given consent and lived as husband and wife after fraud discovered, either party was negligent at the time of marriage. S.5(3) talks about the valid age of parties to marriage to reduce child marriages which was previous very much prevalent in India but now somewhat in under control as it is made a punishable offence under S.18 of the act, for the protection of minor Girls they are also given with the option of puberty as per S.13[2(4)] of the Hindu marriage act where in the girl has rights to annul her marriage after attaining puberty if she was a victim of child marriage. S.5(4) speaks that no marriages should be of solemnised nature if done under the degree of prohibited relationship which is only permitted if customs or usage permits of it. S.5(5) marriages of two Hindu will only be valid if they are not sapindas of each other. If these conditions are not followed then the marriages become void. Lastly, another essential thing of a Hindu marriage to be solemnized is the presence of saptapadi (taking 7 steps in marriage).
[3] Judicial separation under S. 10 of the act is also another way to protect the right of women against any injustice which she might face in her marriage. Through this the parties through the agreement with the decree of court agrees to stay apart for time being until the matters gets resolved or they ask for divorce. In judicial separation marital rights are just suspended not dissolved unlike divorce. Divorce is a permanent solution unlike judicial separation, if parties want to end their marriage without giving any thoughts they generally opt for this method. It is given under S.13 of the act, there can be various grounds for divorce such as adultery which can no more be a ground if you have condoned the act, cruelty towards wife or husband, desertion for a period of 2 years continuously, conversion, presumption of death etc.?
S.13(2) gives rights to women as well to file for divorce under ground of being bigamous in nature, held guilty of an offence or the option of puberty as discussed above. S. 13 B talks about divorce by mutual consent of the parties where 1st motion is passed after living separately for 1 year then comes the cooling off period of 6-18 months where the parties are given chance to reconcile or be adamant in taking divorce. The 2nd motion is passed where decree of divorce is taken from the courts.?
These rights and their protection not only for women precisely but for either party has only been possible because of the coming up of laws in order to regulates these matters or unless the situation would have been as hopeless as it was few decades ago.?
CONCLUSION
[4] Eminent jurist Leila Seth in her essay ‘A Uniform Civil Code Towards Gender Justice’ emphasises the need for unification of personal law saying that “We have a duty to the women of India to do away with all discrimination between men and women and make a personal law that will benefit all Indian women without distinction, be they Christian, Hindu, Muslim, Parsi, Sikh, or Buddhist. Take what is best in all laws and frame a Uniform Civil Code.”
But the question that arises is will such uniform civil code do justice to the women when Individual laws governing them has failed to do so for so long, there are still many cases of women being harassed mentally and physically in their marriage by their spouse now even violence against men has become a topic for discussion but these people keep quiet and endure such inhumanity with the fear of being judged about it and not take actions against it. Presently that is the only concern regarding laws regulating Hindu marriages in India rather then that presently the good thing after coming up of these laws is that it is evidently indeed found that the injustice which use to happen to women of earlier decades has been reduced to less because of the fear of being penalised for the same instilled in the minds of people committing such injustices.
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