Hindu Men, Monogamy and Uniform Civil Code PDF

Hindu Men, Monogamy and Uniform Civil Code Author(s): Flavia Agnes Source: Economic and Political Weekly, Vol. 30, No. 50 (Dec. 16, 1995), pp. 3238-3244 Published by: Economic and Political Weekly Stable URL: http://www.jstor.org/stable/4403569 Accessed: 12-08-2016 14:18 UTC Your use of the JSTOR a...

Hindu Men, Monogamy and Uniform Civil Code Author(s): Flavia Agnes Source: Economic and Political Weekly, Vol. 30, No. 50 (Dec. 16, 1995), pp. 3238-3244 Published by: Economic and Political Weekly Stable URL: http://www.jstor.org/stable/4403569 Accessed: 12-08-2016 14:18 UTC Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://about.jstor.org/terms JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Economic and Political Weekly is collaborating with JSTOR to digitize, preserve and extend access to Economic and Political Weekly This content downloaded from 110.172.129.54 on Fri, 12 Aug 2016 14:18:46 UTC All use subject to http://about.jstor.org/terms  Hindu Men, Monogamy and Uniform Civil Code FlaviaAgnes The Hindu Marriage Act, 1955 transformed a Hindu marriagefrom an ancient and vedic 'sanskara ' or sacranment to a modern and dissoluble contract. It also introduced for the first time the principle of monogamy. Little attempt has been m1lade however, to rectify numnerous lacunae in the act which provide anmple scope for a Hindu mant to escape both from the criminal consequences of a bigamous marriage andfrom the economic responsibility towards the second wife. I is as follows: Hindus - 5.06 per cent, Muslims ceremonies of performing pat were described Debate Circumvents Basic Issue - 4.31 per cent and Tribals - 17.98 per cent. in detail: "A carpet was spread, and the bride No thought oreffort was directed to rectify and groom sat on two separate pats (low THE recent Supreme Court directive in the the lacunae of the act, which transformed a wooden stools) besides each other. A copper Sarla Mudgal case' has strengthened the Hindu marriage from an ancient and vedic ('tambya') pitcher, on which betel leaves arms of the Hindutva forces, whose main 'sanskar' or sacrament to a modern, and and coconut were kept was brought and political plank in the forthcoming elections dissoluble contract. The contract was not there was chanting ot'hymns and the couple will be the uniform civil code. The media required to be registered and all customary exchanged garlands, then they struck each publicity -following the judgment seems to forms as well as 'shastric' rituals were other's forehead." The father or the maternal have sidetracked the basic issue, i e, bigamy acknowledged by the act as valid forms of uncle of the bride facilitates the striking of by Hindu men. Hence the various 'solemnising' it. (see Appendix forthevarious the forehead. This ceremony completes a presumptions made by the judgment have legal provisions on this issue.) gandharva marriage. remained unaddressed, some of which are Since the act recognised all customary One witness who had attended two other listed below:. marriages in the gandharva form testified: forms of marriage and divorce, the uniformity (i) Hindu marriages are monogamous in among Hindus was a legal fiction created by Formerly a brahmin priest from the nature; the act. The ambiguity of the act provided neighbouring Kasara or Dhardana came and (ii) The judiciary has consistently and ample scope for a Hindu man to escape both chanted the 'mangal ashtak'. The presence systematically upheld the principle of trom thecriminal consequences of abigamous of a 'thakur', a brahmin and a barber was monogamy among Hindus by penalising marriage and from theeconomic responsibility required. Butinrecent times, itwasbecoming the errant husbands; towards the second wife. Prior to the act, difficult and expensive to secure the presence (iii) The only breach of monogamy among since polygamy was validated by the ancient of a brahmin and a thatkur from the Hindus is by conversion to Islam. To Hindu law and customs, women in bigamous neighbouring community and the community quote from the judgment, "....there is marriages had a right of residence and performed the ceremony only with the help an open inducement to a Hindu husband, maintenance. By introducing monogamy, of the barber. who waints to enter into a second women in bigamous relationships lost their The first wife pleaded that a person going mlarriage to become a Muslim..." right to maintenance, legitimacy and through arny form of marriage during the (iv) A uniform civil code will plug this respectaibility, lifetime of his wife would be guilty of the loophole and aimel oriate the sulffcrings offence and all the ceremonies of a Hindu of Hindu women: marriage need not be strictly proved. The trial (v) All thefourpetitions which thejudgment Apex Court Sets Seal on Monogamy court convicted the husband and the second dealt with were filed by women whose wife. This was upheld by the sessions court hushands had converted to Islamn and The loopholes created by the act are only and the high court. At the final appeal, the remarried: and a prelitniniary concernl of this article. The Supreme Court acquitted the husband and (vi) Botth the judges who hear-d the matter maijor thrust is to cQunter the presumptions held that the marriage was not performed in advocated enforcement ol a uniform - the judiciary has strictly upheld the principle according with the requirements of the law civil code on a priority baisis as the only olinonogamy among Hindus; conversion to and hence it was not solemnised. remedy to coiversionl and bigamy by [slam is the only avenue left for Hindu men Regarding the gandharva lorm the court Hindu men. to commit bigamy and a unilorm civil code relied upon Mulla's Hindu Law (12th edn) Until 1955, Hindu mazrriages were will plug this loophole. An analysis of the which stipulated: "The gandharva marriage polygamous and hence Hindu men did not caises reported in law journals will establishis the voluntary union of a youth and a attract the penal provision of S494 IPC. The that bigamny of the Hindu male persists with damsel which springs from desire and sensual Hindu Marriage Actolf 1955 For the first time the active benevolence of the Supreme Court. inclination. It has been erroneously described laid down the principle of monogamy. To A decade after the enactment of the code as an euphemism forconcubinage. This view whatextent has this principle been acccpted whichi was hailed as modlern, progressive and is based on at total misiconception of the by the Hindu society'? The rhetoric of a pro-womcn, the Supremne Couirt decided the leading texts of the Smritis. The essential uniform civil code does not concern itself first case undter the new act, which set the marriage ceremonies are as much a requisite with this issue. An indication of the status seal upon monogamy ot the Hindu male. The part of this form ot marriage as of any other of Hindu marriages in the post- 1955 period appe,al was against a conviction trom the unless it is shown that some modification of came to us in 1974 in the report of the Bombay High Court in the case of Bhaurao those ceremoniies has been introduced by Committee on the Status of Women, Towards Lokhande.2 The first wife pleaded that the custom in any partiCUlarconimunity orcaste. Eqiualitiv. As per this report, the rate of second marriage was pertormed in the The court lalid downi that the two essential polygamous marriages among Hindus, gandharva form prevalent in the region. which ceremoniies for a vatlidi Hindu marriage are: Muslims and tribals for the period 1951-60 is customarily known as a 'pat' marriaoc. The (i) invocaition before the sacred. i e, 'vivaha 3238 Economic tiid Poliiicail Weekly December 16, 1995 This content downloaded from 110.172.129.54 on Fri, 12 Aug 2016 14:18:46 UTC All use subject to http://about.jstor.org/terms lioma' and (ii) seven steps round the fire by The trial court convicted the husband and III ihe groom and the bride, i e, 'saptapadi'. The second wife to one year of rigorous Unsurmountable Obstacles court furtherexplained: It was contended that imprisonment and a fine of Rs 500 half of in the gandharva form of marriage prevalent which was to be paid to the first wife. In A discernible pattern emerging is conviction in the community, the custom performance appeal, the sessions court upheld the by the lower judiciary and leniency by the of certain ceremonies with the help of a conviction. The conviction was set aside by apex court, which rescued the errant husbands brahmin has been abdicated. This does not the Calcutta High Court. by prescribing rigid standards tor proving mean that the ceremonies of 'homa' and The Supreme Court confirmed the acquittal bigamy, which rendered it impossible for saptapadi have been abrogated and that the and held: There is no dispute about the even the high courts to convict the husbands ceremonies performed between the husband second marriage having been performed as the following rules laid down by the and second wife are sufficient to hold the during the subsistence of the first marriage. Supreme Court became binding upon them: marriage valid. The bare fact of a man and But relying upon Kanwal Ram the court held (i) Proof of' performance of homa and a woman living as huisband and wife does that admission by the husband in proceedings saptapadi is essential for conviction of not give them the status of husband and wifefor maintenance is not sufficient; further, a Hindu man for bigamy; even though they hold themselves out before reaffirming the decision in Bhaurao held that (ii) Performance of valid ceremonies cannot society as husband and wife and the society proof of solemnisation of second marriage be inferred by leading the evidence of accepts them as such. in accordance with essential religious rites is a purohit or an officiating priest; In the following year the apex court a must tor conviction. The court further ruled (iii) If acustom to the contrary is tobe relied decided another case that of Kanwal Rami. that the sole responsibility ot proving the upon, it must be validated by a law text; The parties belonged toa village in Himachal offence with the clinching proof is upon the (iv) Admission by the husband in Pradesh among whom a customary form of complainaint, i e, the first wife. matrimonial proceedings, i e, divorce, marriage called 'praina' is recognised. The Two more cases were decided by the maintenance, restitution ofconjugal rites, custom does not include saptapadi. The Supreme Court in 1979. In Lingari etc, is not sufficient to prove bigamy; Obulamnna5, the parties belonged to(v) essential ceremnonies include offering 'suhag' theAdmission reddy by the second wife is not to the bride at her residence by a relative community of of Rai Iseelma. The prosecution sufficient; contended that the essential ceremony was the bridegroom, relative of the bride bringing (vi) 1lusband and second wife living together the bride to the groom's house (praina), coins putting a yarn thread and not performance as a domestic unit and the community put in a pot, pooja and 'katha' (reading of of saptapadi and homa. One of the witnesses accepting them as such is not sufficient. holy scriptures), bride picking up the pot and stated: Among kapus, each community The Supreme Court ground down the taking it to the family hearth, obeisance to customs and rituals of a pluralistic society performs the marriage according to theirown theelders and feasting. The first wife admittedcustom. The kapus have only yarn thread into an absurd notion of uniformity by that pooja at the entrance and bowing at the instead of mangal sutramn. I do not know what enforcing upon them rituals which were hearth areessential ceremonies. The witnesses is the custom ('acharam') of the parties. traditionally confined only to higher castes who were examined stated that suhag and There was no custom of agni gundam (going of specific regions. If a community observed praina was performed. But did not mention a custom which is contrary to the shastric round the sacred 'ire). I do not know whether the otherceremonies. Prior to the prosecution this is true of' a secret marriage. ritual, thecustom had tobe privileged enough for bigamy, the wife had filed a petition for In appeal the Supreme Court upheld the to attract the attention of a legal scholar, who restitution of conjugal rights. In reply, the acquittal on the ground that there was no would then have the good sense to mention seconid wite had stated that Kanwal Ram had evidence of' any custom amongst reddys it in a law text and further, it should have miarried her al'ter his first; marriage was which outweighed the written textot law. The remained static down the ages. In a vast dissolved. prosecution relied upon a decision of Andhracountry and within a dynamic society, this The husband was convicted by thejudicial Pradesh High Court in IJolgonti Raglhava would amount to the proverbial needle in commissioner of Hi machal Pradesh. But in Recdde "which had held that among the reddy a hay stack and confine societies which are aippeal. the Supreme Court acquitted him on community of Telanganasaptapadi and homa rapidly changing under the pressures of' the ground thait conviction based on a statemcnt were not essential for a valid marriage. But modernisation to fossilised forms, totally ol the aiccused that he had sexual relationship the court ruled that since this case concerned removed from their contemporary lifestyles. with the al leged bride aind admission that the reddys not otfTelangana but Railseelma, theThe Bhaurao judgment is a case in point. remarriage wats perlormed after the lirst same rule could not apply. imarriage wasdissolved hald not been testified. In the same year, the Supreme Court also IV The c:ourt alsio ruled that an admission from decided the case of Gopall Ll.a The parties The High Courts Follow the Trail the seicond wife cannot bc relied upon as belonged to telli caste of Rajasthan. The evidence agaiin.st Ka.nwal Rain and further ithusband remarried according to the local The high courts not only followed the ciannoteven be relied upon against the secondcustom of 'nata' marriage. Two essential trail, but in their zeal advanced the logic to wi'e. Relying upon BRhiatiuIrao the court heldceremonies of a nata marriage: Husband absurd ends, erasing all hopes ofjustice and that. to prove a seconid marriage, essentialtakes a pitcher ot water which is placed onfairness in criminal prosecutions. ceremonies conistituting it must be proved. the bride's head and the bride wears the Ceremonies performed in a temple, The third leading case was in 197 L.'The 'chura' (bangles) presented by the husband. registration with the caste or temple wife relied upon husband's admission in The lowercourts held that the second marriage authorities oreven with acivil registrar fell maintenance proceedings where he had stated was performed according to the custom of short of the degree of clinching proof which thatdue tothe wife'sconiducthe wa.scompelled natamarriage prevalent in the telli community the wife was expected to produce. The to remarry. The priesit who performed the and convicted the husband to two years rigor- paternity of the child of a second marriage second marriage did not claborate on the ous imprisonment and a fine of Rs 2,000. if proved could only amount to its ceremonies, but merely stated thaitthemarriage The Supreme Court, at long last, recognised bastardisation and not proof of bigamy by had been solemnisecd acc:ording to Hindu the validity of a local custom and the proof its father. The complainant wif'e could als^o rites. The wifec pleaded that the perf'ormance of the same having been performed. But the lay herself open to the risk of invalidating of essentiall ceremonlies must be presumed. court reduced the sentence to one year. her existing marriage. Economivc aind Politicall Weckly December 16, 1995 3239 This content downloaded from 110.172.129.54 on Fri, 12 Aug 2016 14:18:46 UTC All use subject to http://about.jstor.org/terms  Following is a random sampling of some plunged, each finds the other's ring and wears ceremonies were performed at the -reported judgments during the intervening it. The exchange of knives and rings is the Guruvayoor temple will not make itavalid period of 30 years from Bhaurao in 1965 binding part of the ceremony. The couple then marriage recognised by the community. to Sarla Mudgal in 1995. The vivid pays homage to the bride's parents. Unless it can be proved that cloth was description of the marriage ceremonies of Since the prosecution had not proved the openly presented by the male to the female various communities, at the risk of being performance of these rituals, thecourtacquittedit cannot be said that a valid conjugal union repetitive, is deliberate. The case law is relied the husband and held: Mere admission of has taken place. upon not only to expose the hollowness of second marriageby the husbandis notadequate. 1973, Bombay - Firstmrriage performed the provision of monogamy but as a study 1970, Mysore - Invalidation of first as per Neo-Buddhist rites is ivalid: 2 The of a society rich in its diverse culture, a marriage: "'The first marriage was solemnised first wife pleaded that the community had diversity which could be comprehended at the renowned Tirupathi temple according to embraced Buddhism under the leadership neither by our legislators nor by ourjudiciary Hindu rites. The second marriage was of Ambedkar and she had been married as and also to highlight the adverse implications performed at Jolarpet. During the proceedings per the Buddhist rites of the community. to women, of sweeping it with a brush of the first wife could not prove the performance She stated that she had embraced Buddhism uniformity. of homa and saptapadi. So she relied upon after marriage but she could not prove that 1965, Jammnu and Kashinir - Hindu law proceedings for maintenance filed by her after her husband had also converted to does notlpenalise concubinage:8The second her desertion. In his reply to her application, Buddhism. She described the marriage marriage was performed in the village Dundal. the husband admitted both the first and the ceremonies as follows: In the mandap the The on ly evidence avai lable was that people second marriage. bride and groom sat facing each other on had assembled at the village, and a priest The trial court convicted the husband with two sides of a table and recited an oath in officiated at the marriage. The priest had notrigorous imprisonment of six months which the name ofBuddhaand exchanged garlands stated that he had performed the requisite was confirmed by the sessions court. But the and clothes. It was a simple ceremony ceremonies. The first wife pleaded that the high court held that the proceedings for where two consenting parties took an oath performance of valid ceremonies ought to be maintenance are summary in nature, meant to to be husband and wife. This was followed presumed since the presence of the priest was prevent vagrancy and hence the degree of by afeast. There was no invocation by the proved. proof is not as high as in a prosecution for fire or saptapadi. The sessions court convicted the husband bigamy. When a woman initiates proceedings On her behalf it was argued that since with sinmple imprisonment of five months and forbigamy against herhusband she cannot rely under the Hindu Marriage Act the term a fine of Rs 25 whichi was confirmed by the upon the presumption of a valid marriage Hindu includes Buddhist, the Buddhistrites sessions court. The high court acquitted the which is laid down under S 50 of the Evidence should be recognised as valid. Since husband on the ground that all the ceremonies Act and has to prove the validity of hermarriage thousands of marriages were being of a valid marriage were not proved. The by proving the performance of essential performed in this form, the courts should court clarit-ied: If the conviction is based on ceremonies. lean in favourof recognising these marriages insufficient evidence there would be no During cross examination, the purohit who as valid to avoid social mischief (harm). had performed the ceremonies admitted that he difference between concubinaggeandalawful The comments of Justice Masadkar of marriage. The legislature has made no was a teacher by profession for the last 18 Bombay High Court while acquitting the provision to punish a person who keeps a years. He had not studied the sanskrit texts and husband need to be quoted in detail: The concubine durinn the subsistence of the valid he did not know the existence of various formsconcept of marriage under the Hindu law marriaige. Since ther e was no evidence that of marriage under the Hindu law. The court has not undergone any radical change by the parties were governed by any custom held that because of his ignorance, saptapadi the enactment of the Hindu Marriage Act. which dlispenise(d with saptaipadi and homa, was not performed. The other witnesses who In fact the basic stricture of that concept these two ceremonies need to be proved. were examined did not know the meaning of has not been touched and it remains a 1 969, Assam and Nagaland - Marriage saptapadi. The court held that since the validitysanskar or a sacrament. To a Hindu among Alhoms:` The hushand married the of the first marriage was not proved, the secondmarriage is not a matter of agreement or first wife as per Hindu rites and subsequentlymarriage does not amount to bigamy. contract but a spiritual union of two souls. remarried in the 'saklong' forrm as per the 1972, Kerala - Ceremonies ofNairs: " The Holy invocation before the fire and saptapadi custonm of the athoms. Since the husband had witness merely stated that the marriage was are its minimum requiremenit. admitted tlhe second matrriage, the prosecutionperformed according to the custom and practices The argument that exodus from Hinduism did not lead elaborate evidence regarding theof the community. The trial court convicted the to Buddhism should be taken note of and essential ceremonlies. husband with eight months rigorous Buddhist rites should be held as part of The court ref'erre(d to Gait's History of imprisonment and a fine of Rs 100 which wasrites for the purpose of marriage Hindu Assam where asaklOng marriage is described confirmed by the sessions court. While cannot be accepted. Only because such as follows: The bride is brought into the acquitting the husband, the high court relied marriages are taking place due to some courtyard and aJfter walking seven times roundupon the acts passed by independent statessocial of or religious conivulsions the courts the groom, is made to sit by his side. One Cochin and Travancore in the last century. S cannot be asked to hold that this custom end of' the cloth is tied around the neck of 3oftheTravancoreNayarActof 1888 stipulates should be treated as a rule having the force the bride, the other fastened to the that a conjugal union as per social custom and of custom or usage. A custom should be bridegroom's waist. They walk to a corner, usage, solemnised by the presentation of cloth continuously and uniformly observed for where nine vessels full of water are placed to the female by the male is a valid marriage a long time and should obtain the force of on plantain leaves. 'The master of the forall legal purposes. S4of the Cochin Nayar law among Hindus in any local area, tribe ceremonies reads from the saklong 'puthi'. Act stipulated that a valid marriage may be community or group. The rule must be Three cups containing milk, honey and rice solemnised "..by the presentation of cloth to hardened into law by continuous and f'rumenty are produced, which the bride and the female by the maleor in any othercustomary uniform observation. Since the wife herself groom have to smell. Some uncooked rice form". has stated that the cuKstom is in practice only is brought in a basket, into which, after the Since the second wif'e was f'rom Cochin, thefor the last 10-1 5 years, the cu.stom cannot couple has exchanged knivess, rings are court held that the mere fact that some meet the requirement of law. 3240 Econoinic and Political Weekly December 16. 1995 This content downloaded from 110.172.129.54 on Fri, 12 Aug 2016 14:18:46 UTC All use subject to http://about.jstor.org/terms  If thousands of marriages are taking place bigamy, the husband admitted that the second same degree of proof as the second marriage. in this or in any other form, an appeal lies' marriage was performed during the Apart from the presumption under S 50, to the legislature and not to the court of law. subsistence of the first marriage, according Evidence Act, the admissions and other It is not the function of the courts to make to the ceremonies and the customary rites. surrounding circumstantial evidence that has the law or lay down social policies, but apply The trial court convicted the husband and the been brought in to prove that they are husband the law as legislated. The form of marriage second wife to three months rigorous and wife is sufficient. It is very difficult to that was followed is not according to any imprisonmentand afineof Rs 300. In appeal, prove all the ceremonies or rememberall the known custom or rituals sanctioned by the the sessions court acquitted them on the events of a marriage which was solemnised Hindu' law. Since there was no proof of ground that the first marriage cannot be held 20 or 30 years ago as against the proof of conversion and since homa and saptapadi to be proved merely by the admission ol the a recent marriage which took place one or had not been performed, the marriage between husband. To establish a valid first-marriage, two years prior to the date of giving evidence. the first wife and her husband is not valid. the prosecution should prove its The court suggested that the standard of However, since it is mentioned in Customs solemnisation. Since the validity ofproof the regarding first the validity of first marriage and Custonmary Law in British India by marriage was not proved, there can be no should be lowered. S Roy thatconsent is an essential elementof conviction for bigamy. (ii) Second marriage as per Muslim law the marriage tie between two Buddhists and Relying upon Kanwal Ram, the high court is not valid: Under Muslim law, there should no ceremony is requisite, if it was proved thatconfirmed the sessions court order that thebe a proposal made by or on behalf of one either party was Buddhist, it might have been first marriage cannot be proved by an party to the marriage and acceptance by the possible to hold the marriage was valid. admission. The prosecution pointed out that other, in the absence of which the marriage 1974, Gujarat - Proofofregistration under in Kanwal Rani, the Supreme Court ruling will be void.The marriage under Muslim law the caste panchayat of Luhana community regarding strict proof was confined to the is also not valid as the conversion was not insufficient: '3 The first wife proved bigamy second marriage. But the high court held that real and bona fide and was only for of the husband by producing a registration since a strict proof of the validity of the convenience. Hence even if the formalities certificate (Nondh) which contained the second marriage is required, it is not have been complied with during the signature of the husband, the second wife and understandable as to why such a strict proof performance of the marriage under Muslim an office bearer of Luhana Mahajan Vandi. is not required for the first marriage also. Ifcannot be treated as a valid marriage. law, it Based on this, the trial court convicted the it is necessary for the complainant to prove Since the parties continued to remain Hindus, husband. In appeal, the sessions court all theessential requirementsofavalid second the marriage would have to be proved under acquitted the husband on the ground that marriage, then by the same standard and Hindu law and not Muslim law. mere registration of the marriage with acaste reasoning it is also necessary to prove all the (iii) Saptapadi and homa not proved in panchayat or admission by second wife is not essential requirementsof avalid firstmarriage. second marriageand hence no convictionfor sufficient. The high court affirmed the order 1989, Andhra Pradesh - Ceremonies of bigamyunderHindulaw: Inkamacommunity, olf acquittal on the ground that no-one had marriage among the Kamas:'6 The first homa is not necessary, -but saptapadi is deposed that registration of marriage was the marriage was solemnised according to Hindu essential and it has to be proved by cogent only requirement of marriagye of the Luhana rites atTirupathi. Subsequently the husband evidence. One witness stated that touching of community. remarried. Evidence of persons who had feet by each other is a saptapadi'and it is a /975, Calcutta Highl Court - Registration attended the second marriage was relied upon custom in the kama community. The court of tmzarriage under the Sp(ecial MarriageAct who stated that the second marriage was refuted this statement and commented that the in1suficient:'4 (Section 16 of the Special performed by putting 'jeelakarra and bellam' meaning of saptapadi is totally different. Marriage Act, 1954. an optional, secular on the couple's heads, chanting of mantras Since there was no proof of saptapadi during marriage act, provides for a subsequent and tying a 'mangal sutra'. Thereafter, the the first and the seccind marriage, the court registration of a marriage solemnised underhusband went through another marriage held that there cannot be conviction. The any religious rites. Once the marriage is ceremony with the second wife according court to also recommended that suitable Muslinm rites. The husband and second wife registered under this act, the parties are bound amendment to the mode of proof of the by the provisions of the secular law regarding lived with the husband's parents, worshipped second marriage. If second marriages are marriage and divorce and the provisions of Hindu deities, celebrated Hindu festivals and being performed in secrecy knowing fully the Hindu Marriage Actdo not apply to them. were known by Hindu names. The second well that it is an offence and if the courts insist Registration under the act is sufficient proof wife wore mnangalsutramn, 'metlu' and on strict proof, it amounts to encouraging of the vilidJily ot'marriage.) After performing 'tilakam'. symbols of marriage among kamaperjury, the court commented. a bigiamous marriage under Hindu rites, the women. 1990, Karanataka - Cereinonies of husband registered the marriage under S 16 The trial court convicted the husband and lingayats, invalidation of first marriage: 7 ot'the Special Marriage Act. During the trial, the second wife. In appeal, the sessions court The first wife was employed as the first wife relied upon the certificate issuedheld that since the first marriage was not telecommunication office assistant with by the registrar under this act to prove bigamy. proved the second marriagedoes notconstitute divisional engineer, Telegraphs at Hubli. Her Relying upon it, the trial court framed charges. bigamy. The marriage under Muslim rites father was a retired principal of a training The second wi fe appealed to the high court was in fact the first valid marriage. In appeal,college. The first marriage was through a which quashed the charges an the ground that the high court affirmed the acquittal but on proposal where cash and gold articles were thecertificate cannotbe aproof of the marriage totally different grounds: given to the groom as per his demands. The performed in other form prior to the (i) The first marriage is valid: Relying marriage was performed in Hubli, as per the registration. It only records adeclaration by upon the husband's admission to the marriage lingayatjangam custom on July 3, 1983. The prior to the filing of the complaint the courtwife described the ceremonies as follows: the parties that they have gone through another form of marriage before the registration. ruled that the first marriage was valid. The After applying turmeric paste to the bride, Such declaration cannot be a proof of court held: There is a clear distinction with 'surgi' was perf'ormed, the couple bowed performance of saptapadi and homa. regard to the mode of proof for the first andbefore the gods and the bridegroom was tied; 1985, Bombay High Court - Invalidation second marriages. It is well-settled that the with 'basinga'. The bride was made to sit on offirst marriage:'!5 During proceedings for first marriage need not be proved with the a black woollen carpet and was gifted to the Economic and Political Weekly December 16, 1995 3241 This content downloaded from 110.172.129.54 on Fri, 12 Aug 2016 14:18:46 UTC All use subject to http://about.jstor.org/terms groom. Then the groom tied the mangalsutra was argued that the second marriage was witnesses have used terms and idioms which round her neck. Rice was showered on their performed according to Arya Samaj rites for can only be interpreted within a specific heads. Then mantras were chanted and which three and a half round of sacred tire cultural context. Perhaps a magistrate who is garlands were exchanged' The priest testified were sufficient to complete a valid marriage. familiar with customs and traditions of the that Gouri pooja was performed, and the But the high court held that according to local area, is able to relate these idioms to couple worshipped 'panchagurugalu', which sanskar vidhi, after the parikrama round the people's lives. Hence one can observe was followed by Ganapati pooja. Thereafter,sacred fire, the bride and the bridegroom convictions at the level of trial courts. But the wife returned to her natal home and on have to take seven steps and each step should for the higher judiciary, presiding over the an auspicious day, the husband had to come be taken after pronouncement of a specific citadels ofjustice in their ivory towers, these and f-etch her. On July 8, 1983, he married mantra by the groom. The court held that the terms can only mean 'technicalities' which another woman from the same community in ceremonies of Arya Samaj wedding remain do not in any way relate to the cultural Birur, Chickmagalur district. The second the same as any other Hindu wedding. Since realities of the people whose lives and wife was a lecturer at the junior college at there were no pleadings regarding customary legitimacy they determine. If the ceremonies Taikare. Thereaft'er. he wrote letters to the rites and saiptapadi was not proved the second of a marriage performed at the renowned l'irst wi l'e admitting the second marriage and marriage was not valid and hence there can temple of Tirupati could not stand the scrutiny asking her forgiveness for the mistake he had he no conviction for bigamy. of the courts, what will be validity of marriages cnommitted. The wife relied upon these letters 1995 Madras - Proof of paternity oJ theperformed at informal spaces, i e, courtyard and the photographs takeni during both the child of subsequent marriage irrelevant:2) of a Hindu home in the rural area or a marriage ceremonlies. During prosecution, the husband and second marriage hall in the urban area. The trial court conivicted the husband to wife specifically pleaded that there was no The courts have upheld the ancient six months rigorous imprisonment and Rs marriage at all between them and that the brahminical rituals of homa, saptapadi and 500 tor each offence, i e, going through a second wife was a virgin. The first wife kanyadan which are derogative to women, 1'raudulent marriaige ceremony and cheating. produced a birth certificate to prove that a against more egalitarian and secular forms. The sessions court reduced the sentence to son was born to second wife and her husband.The imposition of a uniform norm where one day and increased the l'ine to Rs 10,000 She pleaded that parentage of the child is none existed has caused further confusion. f'or eatch offtence. In appeal. the husband's material to decide the factum of the second It needs to be mentioned that to many of the a(lvocate did not clispute the celebration of marriage and applied for a paternity test. communities, whose ceremonies are the two marriages but only contended that While dismissing the application the high discussed above, the Hindu code did not they were not performed as per the valid court held that the wife had to prove that the bring any progress as the communities already ccremonies of'lingayatjangum community, essential ceremonies were performed in both recognised divorce and remarriage of women according to which, al'ter c:ompletion of all the marriages and asked how a paternity test prior to the code. The marriages were neither items the saptapadi must be perf'ormed. While of the child would prove the same. The court sacramental, a union of souls or a bond setting aside the conviction, the high court further held that this was only an attempt to between a man and woman to the exclusion held: Since saiptapaidi was not performed input a slur on the chastity of the second wife of everyone else. These concepts imposed both the marriage an-ad sinice in the complaint.and undermine her dignity. either by a foreign Christian doctrine or by it was not specifically stated that in Hubli an upper class brahminical tradition do not saptapadi was n(t in vogue, neither marriage V have much relevance to these cultures. was valid. The court also ruled that the first Illusory Nature of a Hindu Marriage The artificial imposition of monogamy has wife was not the aggrieved party. It was the not been able to regu late customary practices second wife who ought to have lodged the A reading of the judgments brings home of polygamy and simultaneous marriages. As complaint. Since the second wifeorherfather the point that a Hindu marriage is an illusive can be observed the marriages discussed in have not filed any coomplai nt, there cannot be legal occurrence, the validity of which is the case law have been performed in full any conviction. constantly suspect. In their evidence, the public view with the participation of the 1992. A Ilaliabad - Ceremiionies ofRaidais (comt?inunil: IXThe harijansbelongingtoRaid-as CONFERENCE ANNOUNCEMENT community recognised polygamous marriages which arc known as 'Ghar Bethau'. Conference on Science and Technology in Reconstruction The twoessential ceremoniesofthe marriage and Development (STRAD) aire placing of bangles on the bride's hand by the husband and a wedding feast. The 23-26 September 1996, Petermatizburg, South Africa second wif'e also had an earlier marriage Call for Papers subsisting. Although the wedding feastcould The third international conference of the Third World Science, Technology not be proved, the trial court convicted the and Development Forum. The conference will explore all issues, including accused. The sessions court upheld the gender, environment, legal, technological, in relation to the role of science conviction but reduced the sentence. In appeal, and technology in economic development. the high court acquitted the husband and held: The second marriage was void since Proposals forpapers, by June 1 996 with 250 words abstract to, and further both the parties had an earlier spouse. In information from addition, the ceremony of holding a feast was Professor -Ahmed C Bawa, University of Natal, Private Bag X01, not completed. Even if the earlier spouses Scottsville 3209, Pietermartizburg, South Africa. Tel +27 331 260 5975, were excluded, the sccond marriage would Fx. +27331 2605788,e-mail:[email protected] still not be valid as an essenitial requirement of'the said marriage had not been performed. Dr Dipak Ghosh, Department of Economics, University of Stirling, Stirling 1994. Allahac badu - Aria Sama12Cj rites: '9The FK94LA, Scotland, UK. Tel +44 178.6 467449, Fx +44 1786 467469, hu.sband was conlvicted by the trial co)urt but e-mail: [email protected] acquitted by the siessiions court. In appeal, it 3242 Economic aniid Poliltical Weekly December 16. I1995 This content downloaded from 110.172.129.54 on Fri, 12 Aug 2016 14:18:46 UTC All use subject to http://about.jstor.org/terms community. The pat and nata were accepted marriage subsisting, then in any case the ambiguous comment: The marriage forms of remarriageof divorcees and widows second marriage will be void and will not solemnised by a Hindu husband after in the western region. The point in question attract the provisions of S 494 IPC. embracing Islam may not strictly be void is not whether there have been convictions While the Hindu male is granted a clear under the Hindu Marriage Act because he is for bigamy but whether a norn of monogamy advantage, the disadvantage is suffered by no longer a Hindu... The review petition which is far removed from the customs of two sets of women. The first wife stands the which is admitted, seeks to clarify this legal the community can be effectively imposed. risk of invalidating her own marriage in a position of this child and its mother. The Bombay High Court judgment prosecution for bigamy. If she cannot prove The second judge on the bench in the regarding neo-Buddhist rites indicates the the valid ceremonies of her marriage, the controversial case, Justice Sahai, has made ostrich like attitude of courts. which reflect court will validate.the second marriage and a valuable suggestion:-' "... No religion not only gender bias but also class and caste thus she will not only lose out in the bigamy permits deliberate distortions... The biases. Refusal to validate the forms of proceedings but will lose hereconomic rights government should consider the feasibility of ceremonies olfdalits and imposing upon them in matrimonial proceedings. appointing acommittee to enact aConversion the shastric ceremonies of homa and A notion still prevails amongst Hindus that of Religion Act, immediately, to check the saptapadi is adding insult to an age old ainjury. bigamous marriage can be contracted if the abuse of religion by any person. The law may Ironically, Ambedkar, the arch supporter of first wifeconsents to it. Since only a first wife provide that every citizen who changes his Hindu law reform, seems to have made no can initiate the complaint the belief is not religion cannot marry another wife unless he provision for the validation of the marriages without any legal base. With the consent of divorces his first wife. The provision shiould of the community whom he led out of the the first wife the husband need not fear be made applicable to every person whether Hindu fold in 1956. How can the rituals conviction for bigamy. But since the consent Hindu, Muslim, Christian, Sikh, Jain or practised by them meet the standard ot an of the wife will not validate the second Buddhist. Such an act could effectively deal ancient, immemorial custom havinig the force marriage, the husband will be redeemed of with the problem of conversion and bigamy of law'? alleconomic liabilitiesoftthe second marriage. which the judgments seek to arrest. The ceremonies ol Arya Samaj marriages The disadvantages suffered by the second It also needs to be pointed out that while are another controversial issue. One of the wife have not received any attention by the Justice Sahai concurred that entorcement of judgment cited above has held that the Arya advocates of monogamy. When a woman a uniform civil code is an ideal to be pursued, Samajis are Hindus and hence the marriage approaches thecourtformaintenance, aroutine he cautioned that it would be possible only can only be solemnisedby homanandsaptapadi. ploy adopted by husbands is to question the when sentiments and emotions have to be But in 'vivah,i karyala', (roughly translated validly of her marriage, by stating that he cooled and tempered by sincere eftort, and - 'marriage shops') which have mushroomed either has an earlier marriage subsisting or advocated several inter-mediary meeasures as in all metropolitan cities, such marriages are that the woman is a concubine or in popular stepping stones towards the uniform code. routinely pertormed by unscrupulous lawyers parlance a mistress or keep. Then it is left to "... But ours is a seculardemocratic republic. and are referred to as affidavit marriages. The hertoprove the validity of hermarriage both Freedom of religion is thecoreof ourculture. formalities can be completed withiin an hour in terms of ceremonies as well as its mono- Even the slightest deviation shakes the social at a premium. Neither a notice, nor any gamous character. If the husband can prove fibre... Whi le a unified code is imperative... documentary proof of age, marital status orthat he has an earlier marriage subsisting the the first step should be to rationalise the domicile is required. The marriages have a second wife will have no legal recourse left. personal law of the minorities to develop pretension of being performed according to I am constrained by the scope of this article religious and cultural amity." Arva Samqj rites which dispenses with homafrom venturing into an elaborate discussion This note of caution seems to have been and saptapadi. Only a Hindu can avail of this about the attitude of judges in maintenance totally drowned in the media campaign for 'quickie' marriage. But infidels need not be proceedings. But the fact that out of the 40 the enforcement of a uniform code on a daunted. A priest is available at hand to issue cases of maintenances reported in Volume I priority basis. It is wishful thinking (or a a certificate of conversion. of Divorce and Matrimonial Cases (DMC), political ploy) to advocate a uni form code as These marriages of convenience will not 1994, in 36 per cent of the cases husbands a means of curbing polygamous tendencies stand the test of legal scrutiny in proceedingsraised the plea of validity of their marriages of men. If codified Hindu law worsened the of bigamy. Through a stroke of luck, civil is suffice to establish the point that the situation of Hindu women, what is the basis courts still apply the presumption of validitydefence is used widely by Hindu husbands upon which auniformity is being advocated under S 50 of the Indi an Evidence Act which to deny the maintenance to wives. In 16 per for lesser mortals? rays down that a valid ceremony will be cent of the reported cases, the courts upheld [I would like to acknowledge the conitribution of presumed if acouple lives together as husband the plea and denied women the maintenance. Saumya in researching this article.] and wife and the community accepts them as Contrary to popular belief that the four such. But as the reported judgments are petitions were filed by women whose Appendix binding on the lower judiciary, there can husbands were converted, one of the petitions THF HINDU MARRIAGE ACT, 1955 never be conviction based on proof of such was filed by the second wife, whose husband marrages. induced her to convert and marry him and S 2 Applicability of lhe Act: The legal position can be summarised as subsequently due to pressure from the first (I) This act applies follows: A Hindu husband can live in a wifereconverted to Hinduism and lived with (a) To any person who is a Hindu by religion polygamous marriage with impunity so long the first wife. The woman has a two-yearinold any of its forms ordevelopments, including as he does not perform either one of the son out of this marriage. a Virashaiva, a Lingayat or a follower of ceremonies of homaor saptapadi. Since most While the Supreme Court eulogised a Brahmo, Prarthana or Arya Samaj; communities do not even consider these uniform code as a remedy for all ills, it has(b) To any person who is Buddhist, Jaina formalities as essential, non performance notofcommented upon the status of this child.or Sikh by religion, and these ceremonies does not pose any obstacle Does acourthave the power tode-clare a valid (c) to any other person domiciled in the on the path of a Hindu husband desirous of marriage contracted under Muslim law territories to which this act extends who is committing bigamy. If in thecaseofa secondbetween Muslims as invalid? At para 18 not a Muslim, Christian, Pairsi or Jew by marriage, both spouses have an earlier validJJustice Kuldip Singh makes a curiously religion... Economic and Political Weekly December 16, 1995 3243 This content downloaded from 110.172.129.54 on Fri, 12 Aug 2016 14:18:46 UTC All use subject to http://about.jstor.org/terms S 5 Condiiions of aHindu Marriaige: if at the date of such marriage either party Notes A marriauegc maly be solemnised between any had a husband or wife living and the two Hindus if the lollowing conditions are provisions of S 494 and 495 of the Indian I Sarla Mudgal v Union of India and Ors (1995) 3 SCC 635. fulfilled, namely- Penal Code shall apply accordingly. 2 Bhaurao Shankar Lokhande v St of (i) neither party hals a spouie living at the INDIAN PENAL COIDE Maharashtra AIR 1965 SC 1566. time of the marriage: 3 Kanwal Ram and Ors v The H P S 7 cere/}7(Jlle for -a Hindul Marritage: Chapter XX - Qf Offjnces Relating to Administration AIR 1966 SC 614. (1) A Hindu mnarriaige maiy he solemnised in Mar-riage 4 Priya Bala Ghosh v Suresh Chandra Ghosh accordanice with customiairy rites and S 494: Marrying again during lifetime of AIR 1971 SC 1153. 5 Gopal Lal v State of Rajasthan AIR 1979 ceremonics of either party thereto, husband or wife: Whoever, having a SC 713. (2) Where sutc riitesi nd ceremilonies include husband or wife living, marries in any case 6 Lingari Obuilamma v L Venkata Reddy and the saiptapaidi (tlhat is, the taking of seven in which such marriage is void by reason Ors AIR 1979 SC 848. steps by the bridegroomil aind the bridejointly of its taking place during the life of such 7 In Re Dolgonti Raghava Reddy AIR 1968 before the sacred fire) the marriage becomes husband or wife, shall all be punished with Andh Pra 117. 8 Phankari v State AIR 1965 J and K 105. complete anicd hinding when the seventh step imprisonment of either description for a 9 Boloramn v Mt Surjya AIR 1969 A and N 90. is talken:, term which may extend to seven years anid 10 Vanajakshamma v P Gopala Krishna AIR S 8 R'egisInwion of'Hindu Marrliages: shall also he liable to iine. 1970 Mys 305. For the purpose of iacilitating the prooi of 11 Govindan Nair v State of Kerala 1972 Cri Hi nd u nduiari ialt es. the state governmenit may TFiW- INDIAN EVIDENCE ACT, 1 872 L 122 (Ker). 12 Shakuntala v Nilkanth 1973.Mah U 310. maike rU les plrov t itI ng the parties to any such 13 Mukta Jesing v Vallabhadas 1974 Cri LJ 121 marriage miay have plarticulars relating to S 50 Opinion on relationshiip when relevant: (Guj). tlheir mlarriicge enitered in suchi manner and When the Court has to form an opinion as 14 Baby Kar v Raim Rati 1975 Cri LJ 836 (Cal). subhjct to 0SuLIcIh coniditionis as may be to the relationship of one person to another, 15 Godawari v State of Maharashtra 1985 Cri prescribe (in a IHindi Mairriaige Register kept the opinion expressed by conduct, a's to the LJ 1472 (Born). 16 Chandra Manikyanimna v Sudarsana Rao I or tihe purpose; existence of such relationshi p of any person (1989) DMC 109 (AP). S 11 Voi(d Mrriaiiges: who as a niember ol'the family or otherwi se 17 Ravanasiddaswariy v Public Prosecutor 1990 Any miarriare soleinnised aifter the has special means of knowledge on the Cri U I(X)I (.Kant). comimeniceiment of this act shall be null and is a relevant fact. subject 18 Rajktlima-i v Kalawati 1992 Cri LJ 1373 voidand... if it contravenes clauLses ( Provided (Ail). I)... of that such opinion shall be sufficient 19 Urmila v The State ot UP 1994 Cri LI 29'1(0 S 5 to prove mlarriage proceedings under the (All). S 17 Puni.sv1nenui(kw- Bigam,'yi: Indian Divorce Act, 1 869, or in prosecutions 20 Gomnathi v Vijayaraghavan 1995 Cri LJ 81 under section 494. 495, 497 or 498 of the Any malrrialge lbetween two Hiiduis solemnised (Mad). aLiter the commnenceitent of this act st votd Penal Code. 1860. Indian 21 Siupa (I) at para 45. Child Labour in India: Results of Methodological Survey in Surendranagar and Surat Districts of Gujarat State by Pravin Visaria and Paul Jacob The book presents the results of a methodological survey of over 5000 households selected from 90 villages and 100 urban blocks in two districts of Gujarat state. The survey, conducted during March-May 1993, has identified the conditions under which children join the workforce. The perceptions and preferences of children and their parents about the continuation of child labour have also been ascertained. The schedules tried out in the survey and the elaborate tabulations attempted with the data are presented in the book along with detailed comments on the strengths and weaknesses of such studies. Here is what one reader had to say on reading the book. "The book bears all the marks of authors' meticulous search for facts and lucid analysis and presentation... I do not recollect any study on this problem with so much to offer..." V.N. Kothari pp. xl + 328. Rs. 300/- hardcover: available at a special price of Rs. 240/- (postage free) to academic institutions/researchers. Of related interest: Self-Employed Women, Population and Human Resource Development edited by Pravin Visaria and Jeemol Unni, pp. 206, Price Rs. 175/- Available at a special price of Rs. 120/- (postage free). Please send your orders with a demand draft in favour of Gujarat Institute of Development Research, Gota 382 481, Ahmedabad. 3244 Economic anid Political Wecely December 16. 1995 This content downloaded from 110.172.129.54 on Fri, 12 Aug 2016 14:18:46 UTC All use subject to http://about.jstor.org/terms