Marriage and the law (Hindu): India
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The nature of a Hindu marriage
Marriage under Hindu law is sacrament, not contract
Marriage under the Hindu law is “sacrament“ and “not a contract“ which can be entered into by executing a deed, the Delhi high court observed while dismissing a plea by a woman who had challenged an order refusing to declare her as the legally wedded wife.
The woman had approached the court seeking her appointment for a job on compassionate ground after the death of her alleged husband, a former sanitation staff in a city government hospital, and a direction to the medical superintendent to release consequential benefits and allow her to join duties.
HC noted in its judgment that the petitioner had contended that she had married the man by way of execution of a marriage deed in June 1990 without disputing the fact that he was living with his earlier wife, who had died in May 1994.
“Since inception, the contention of the appellant (woman) had been that her marriage with the man on June 2, 1990 was performed by way of execution of a marriage deed and an affidavit. It is not disputed by her that the man had a living spouse on June 2, 1990 and she expired on May 11, 1994. “Under Hindu Law, marriage is a `sacrament' (solemn pledge) and not a contract which can be entered into by execution of a marriage deed,“ Justice Pratibha Rani said.
No employment on compassionate grounds for ‘second wife’: Delhi HC
Under the Hindu law, marriage is a sacrament and not a contract, which can be entered into by execution of a marriage deed, the Delhi High Court observed while rejecting the plea of a woman that she be declared the legally wedded wife of a government servant, now deceased, so that she can get a job on compassionate grounds and avail of the other benefits.
The court noted that when the woman got married to the government servant, Hari Ram, he already had a wife and had not applied for divorce. The second marriage, as claimed by the petitioner, was by way of a marriage deed.
The petitioner, Champa Devi, had initiated the litigation mainly to get an appointment on compassionate grounds as well as the financial benefits payable to legal heirs of Hari Ram on his death. Hari Ram was a sweeper at GTB Hospital.
Champa told the court that she got married to Hari Ram by way of a deed and affidavit in 1990. “Since inception, the contention of the appellant (Champa Devi) had been that her marriage with Hari Ram on June 2, 1990, was performed by way of execution of a marriage deed and an affidavit. It is not disputed by her that late Hari Ram had a living spouse, Phoolmati Devi, on June 2, 1990, and she expired on May 11, 1994,” said Justice Pratibha Rani.
In the instant case, Champa applied for appointment on compassionate grounds on demise of Hari Ram.
In August 2001, she was offered appointment as safai karamchari on temporary basis at GTB hospital.
Divorce not sought
A month later, she was issued a show-cause notice by the medical superintendent, GTB Hospital, asking her to explain the legality and validity of her marriage with Hari Ram. The notice said that being a government servant, Hari Ram could not have married during the lifetime of his first wife and there was no proof of him having sought divorce from Phoolmati Devi.
Champa Devi contended that since she was the only wife alive at the time of the death of Hari Ram on February 15, 1997, she was entitled to all the benefits payable to his legally wedded wife.
She said she got married to Hari Ram on June 2, 1990. After the death of his first wife, Hari Ram and Champa got married again in June, 1994, at Delhi and then again before the gram panchayat of Mahabalpur village, Farukhabad district, U.P. The marriage ceremony was performed on December 10, 1994, Champa said.
The suit was contested by the Lieutenant-Governor, the medical superintendent of GTB Hospital and the Delhi government. It was submitted that as per office record in 1994, Hari Ram had only one wife named Phoolmati Devi. Hari Ram never gave any intimation about his second marriage.
‘No satisfactory evidence’
“It’s been rightly held that the appellant/plaintiff cannot claim the status of a legally wedded wife of Hari Ram on the strength of alleged marriage dated June 2, 1990. The solemnisation of marriage thereafter at Delhi and on December 10, 1994, at the village of Hari Ram was also not proved by leading satisfactory evidence to this effect. Even the certificate issued by the Gram Panchayat stated the date of marriage as June 2, 1990, with no reference to remarriage,” the High Court held.
HC rejects woman’s plea to declare her legally wedded wife so she can get financial benefits
Marriage within the same gotra
1945 Bombay HC: They are legal
Same-gotra marriage legal, court had ruled 65 years ago
Wavering Netas Should Know About This Bombay HC Verdict
Ronojoy Sen | TNN
New Delhi: The sustained effort by aggressive khap panchayats and their influential political backers to force parties to have a rethink on samegotra marriages is patently illegal. Sixty-five years ago, in 1945, the issue was settled by the Bombay High Court which categorically declared samegotra marriages were legal. And that’s been the law of the land since.
In the wake of the khaps’ defiance of the law, not only have top politicians like Om Prakash Chautala and Naveen Jindal caved in — no doubt to retain the political support of these medieval organizations — but national parties like BJP, too, have been wavering. The BJP on Thursday talked about building ‘‘consensus’’ on the issue, indicating there was scope for modifying the legal view on same-gotra marriages. Even theCongress is said to be keeping its cards close to the chest.
So, even as khaps spit fire at courts for holding such marriages legal, it is instructive to learn about the rigour with which two reputed judges went into the issue in 1945, much before Hindu personal law was codified. They consulted the writings of leading experts and delved into Hindu scriptures to arrive at their verdict.
The case, ‘Madhavrao vs Raghavendrarao’, involved a Deshastha Brahmin couple and the two-judge bench comprised Harilal Kania, the first chief justice of independent India, and P B Gajendragadkar, who became CJI in the 1960s. The essence of the case was whether ‘sagotra’ marriage or marriage within the same gotra was valid under Hindu custom.
The court initially relied on a landmark 1868 case where the Privy Council had stated, ‘‘under the Hindu system of law, clear proof of usage will outweigh the written text of the law’’. However, a custom which was at variance with the written text of Hindu law, had to be ancient, certain and reasonable if it was to be recognized by the court.
Ban on same-gotra marriages rejected
SC throws out PIL seeking ban on same-gotra unions
TIMES NEWS NETWORK
New Delhi: The Supreme Court on Monday refused to entertain a PIL seeking amendment to the Hindu Marriage Act to ban same ‘gotra’ marriages, a plea that was earlier raised by khap panchayats that got support from political circles in Haryana.
A vacation bench comprising justices Deepak Verma and K S Radhakrishnan told petitioner Naresh Kadyan’s counsel K T S Tulsi that his client would do better to move the high court concerned which had the power and jurisdiction to decide the issue.
When Tulsi argued that the issues raised in the petition had a pan-Indian appeal, the bench said the HC could decide such matters. This made Tulsi to request withdrawal of the PIL. The bench allowed that with liberty to the petitioner to raise the issue afresh before the HC. Though the SC refused to entertain the PIL on amendment to HMA, another PIL by NGO ‘Shakti Vahini’ was filed in the apex court seeking protection for couples facing threat from khap panchayats for marrying against prevailing social norms.
Seeking a direction to the Centre and the states of Punjab, Haryana, UP, Rajasthan, Jharkhand, Bihar, Himachal Pradesh and Madhya Pradesh, where honour killings have been practised in one form or the other, the petitioner NGO said it was time the governments at the Centre and the states thought of taking preventive measures against this social evil.
“Such crimes include battery, torture, mutilation, rape, forced marriage, imprisonment within the home and even murder. These crimes are intended to protect the family honour by preventing and punishing women for allegedly violating community norms of behaviour, particularly sexual behaviour. Women have been abducted, arrested or raped and are often blamed for shaming their families. Reasons for honour killings can be as trivial as talking to a man, or as innocent as suffering rape. These crimes are often collective and premeditated,” it said.
The NGO said states should constitute a special cell in each district where couples could approach for safety that should lead to active prosecution of those responsible for honour killings.
Drawing The Line
A vacation bench told petitioner that it would do better to move the HC concerned which had the power and jurisdiction to decide the issue Another PIL was filed by NGO in SC seeking protection for couples facing threat from khaps for marrying against prevailing social norms NGO said it was time the Centre and the states thought of taking preventive measures against this social evil
Valid even if plea against divorce is pending: SC
Though the Hindu Marriage Act prescribes that it is lawful to remarry only after dismissal of any appeal by a spouse against a decree of divorce, the Supreme Court has clarified that a second marriage will not be void if solemnised during the pendency of the appeal.
In a significant interpretation of Section 15 of the Hindu Marriage Act, a bench of Justices S A Bobde and L Nageswara Rao said the period of time when a marriage is not lawfully permissible — during pendency of appeal against divorce — did not mean the dissolved marriage continues, and held that nuptials solemnised in this interregnum will not be held void due to being held under an “incapacity”.
Section 15 of the Hindu Marriage Act says when a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decision or the time for appeal has expired where there is such a recourse to appeal, or an appeal has been presented and dismissed, remarriage will be legally permissible.
‘Breach of Sec 15 doesn’t render a marriage void’
Section 5(1) of the Hindu Marriage Act further says a marriage may be solemnised between any two Hindus if neither party has a spouse living at the time of the marriage.
The apex court set aside a Delhi high court ruling that held any marriage solemnised by a party during pendency of appeal wherein the operation of the decree of divorce was stayed would be in contravention of Section 5 (1) of the act. It passed the order on an appeal filed by a man challenging the HC verdict which declared his second marriage void on a plea by his second wife.
The man had married a second time when his appeal against divorce from his first wife was pending in HC. During pendency of his plea, he had settled the dispute with his first wife and filed an application for accepting the divorce and sought withdrawal of his appeal. But a fortnight before the HC passed the formal order allowing him to withdraw his appeal, he married a second time.
His second marriage also did not turn out to be blissful and matrimonial discord led his second wife to challenge validity of the marriage, saying that it was void as it was solemnised during pendency of the case in HC. A family court dismissed her plea but the HC ruled in her favour and declared the marriage void.
The SC came to the conclusion that violation of Section 15 did not render a marriage void and said “if a provision of law prescribes incapacity to marry and yet the person marries while under that incapacity, the marriage would not be void in the absence of an express provision that declares nullity”.
“The Hindu Marriage Act is a social welfare legislation and a beneficent legislation and it has to be interpreted in a manner which advances the object of the legislation. The act intends to bring about social reforms. It is well-known that this court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone,” the bench said.
“The dissolution of marriage is complete once the decree is made, subject of course to appeal...,” the bench said.