LAW RELATING TO MARRIAGE AND DIVORCE AMONGST HINDUS :
Origin and Development
By:
ZEESHAN MANZOOR
Civil/Family Judge
Karachi South
To explain principles of Hinduism
and Hindu personal law to people unfamiliar with its frame of reference is not
an easy task. Some of the terms used herein do not have exact synonyms in
English. For instance, most of Hindu writers stress upon that dharma and
religion are not the same, and that Hinduism in its strict sense is a dharma
and not a religion. Sister Nivedita in her 'Religion and Dharma' (
Defining 'Hindu Law’
As Hindus understand it, the law is a branch of dharma. Dharma is that sacred law which is followed by those learned in Vedas and what is assented by the conscious of the virtuous, who are ever exempt from hatred and inordinate affection.[1] Dharma refers to the notion that implies both duties and obligations. It entails religious, moral, social and legal duties.
The rules of dharma are enunciated in the law of Smritis: a law that is basically based upon traditions and time-honoured injunctions, and comprises laws for regulating Hindu society from time to time. It practically is a guide to regulate rights, obligations and duties for all classes of men. It prescribes certain acts and prohibits some acts for a Hindu with an object to purify him and lead him towards perfection. It essentially covers all laws relating to Hindu Sastras excepting the Vedas.
Since the Smiriti rules are concerned with the practical administration of law, and are based principally upon social positions, time and climate, these keep changing and amending with respect to custom and usage in the existing society. Had it not been so, Hindu law could not have progressed.
Then there are the rules of Sruti: another authoritative source of Hindu laws. It literally means what is heard (a direct experience) as distinctive from Smirti which mainly refers to what is remembered (a collection of experience). The Sruti has little or no legal value for the reason it contains no statements of law. The scholars hold that Sruti is revelation while Smiriti is tradition; for example, Upanishad is a Sruti and Bhagwavad Gita is a Smiriti. By the term Sruti, the four Vedas, namely, the Rig, the Yajus, the Sama and the Atharva, along with their respective Brahmans are meant.[2]
Theoretically, 'Where there is a conflict between the Veda and the Smiriti - the Veda should prevail'[3]; the Veda is taken as original source of the dharma. It was far later when a deduction was made and it was established that the Smiritis were actually based on lost or forgotten Srutis and by this way these were accepted as an effective source of Hindu law for all practical purposes[4].
Sources
of Hindu Law
Hindu Law or dharma has three main sources: (a) the Sruti, (b) the Smriti, and, (c) custom.
The Sruti literally means that which was heard. The Smriti refers to recollection. According to Manu, Sruti or what was heard means Veda, while, Smriti or what was remembered from the beginning is the body of law, and, from these two evolve the whole systems of duties.[5] Then, there is recognition to the long usage or custom as a source of Hindu Law.
Application
of Hindu Law
The chief feature of Hindu Law is the acknowledgement and reverence of the Vedas. Strictly speaking, one cannot adumbrate that Hindu Law applies to all Hindus for there are different classes of Hindus who are governed by their customary laws and, fullest effect is given to custom both by Court and by legislation. Customs may override the Smritis until and unless it contradicts the obligatory text of the Smritis.
The power of the Courts of Pakistan to apply Hindu Laws is derived from and regulated by certain statutes of the British Parliament. Such were adopted under Indian Independence Act, 1947.
To
Whom Hindu Law Does Not Apply
The Hindu Law does not apply to the following:
(a) The illegitimate children of a Hindu father by a Christian mother who are brought up as Christians,[6] or to illegitimate children of a Hindu father by a Mohammadan mother; [7]
(b) The Hindu converts to Christianity;
(c) The converts from the Hinduism to the Islam; and,
(d) The property of any person professing the Hindu, Sikh or Jain religion who married under the Special Marriage Act, 1872, or the property of issue of such marriage.
Marriage
To Hindus, marriage is a holy union. It is a Sanskara or a sacrament, and not a contract; and therefore, indissoluble (in its origin). It is sacred because it becomes complete only upon the performance of the sacred rights attended with sacred procedure. It is one of the most important Sanskaras or rites that a Hindu observes during his life time; a Sanskara is a sacrament or a purificatory act. Hinduism promotes that every person who is able should be married. Unless a person has chosen to lead the life of a Sanyasi and has accepted the life of renunciation out of intense longing for liberation, marriage is a sacred responsibility or Dharma of each and every (Hindu) individual in society. The ceremony of wedding is known as Vivah. The Hindus believe that marriage subsists not only during the life time of the spouses but also in the next world.
Mental Capacity
One important objective of marriage is the legalisation of sexual intercourse and procreation of children. This involves a healthy mental and physical capacity. It has been held that marriage with a lunatic is valid, however. In one case, the Allahabad High Court observed that Mitakshara contemplates that a Hindu lunatic may take a wife and that such a marriage will be valid.[8]
Physical
Capacity
Hindu law gives great sanctity to a son. However, there have been cases when men have been physically incompetent to have sons. In such cases, the impotent persons were given the right to invite their relatives and friends to have sexual intercourse to have sons. Such issues were held to be legitimate.[9] Such a practice exists no more, however. The question as to whether marriage of an impotent person is valid was dealt with in a number of cases and was held to be valid. Thereafter, in one case, in Ratnam Mono Devi Vs Rajendra Narayan Singh vide (1944) 48 C.W.N.689, the Calcutta High Court concluded that such a marriage was invalid under the Hindu Law.
After the passing of Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, it may be conceived that if the husband is lunatic or impotent, the wife will be entitled to judicial separation.
The Hindu Marriage Act, 1955 of
Objectives
of Marriage
Traditionally, a Hindu marriage has been considered a sacred religious union between the parties to it. Its basis is found in the Vedas and Smritis. There have had been three basic objectives of a Hindu marriage: (a) dharma or the performance of religious and righteous duties, (b) praja or progeny, and, (c) rati or pleasure.
The Hindu law givers prioritised dharma over the other objectives. They believed and professed that a Hindu marriage was not merely for satisfying sexual desires and begetting children; it had far more important aim and, that was to secure partner for the observance of religious duties. The second objective of Hindu marriage was to procreate sons who were supposed to save a man from hell. Manu expressed that 'because a son delivers (trayate) his father from hell called Put, he was therefore called put-ra (a deliverer from Put.) [10] The birth of a son was given so much importance that a man who had a son was said to have conquered the spiritual worlds and to have obtained immortality.[11] Then comes the third objective of marriage, i.e. pleasure. Man becomes complete and perfect when he consists of himself, his wife and his offspring.[12]
Forms
of Hindu Marriages
Immense importance was given to the object of giving a female into marriage. Father was said to be under a heavy duty to give his daughter into marriage at appropriate age and any negligence in this regard would tantamount to a sin. The concept of marriage underwent changes with time;
(a) Marriage in the Vedic period: The Vedic period witnessed simplest form of marriage which merely consisted of grasping the hand of the bride by the bridegroom.
(b) Marriage in the Sutra period: During this period, the procedure underwent some complexity. The bridegroom was to lead the bride for three times round the nuptial fire, and the ceremony was completed after the couple had taken seven steps.
(c) Marriage in the Smriti period: During this period, various forms of marriage were witnessed; out of which eight were regarded as most important:
(i) The Brahma: The Brahma rite is the gift of a daughter after having been dressed and adorned by presents of jewels, to a man learned in Vedas who is invited by his father. Here, parents do not get any consideration for giving the girl in marriage;
(ii) The Daiva: In this form, the daughter is given as a gift to a person who operates as a priest and who performed the act of religion; it is made in lieu of fees due to the priest;
(iii) The Arsha: Arsha is a form wherein father gives his daughter according to the rule, when the bridegroom makes a present to the father of a cow and a bull or two cows and two bulls for the fulfilment of the sacred law or duty;
(iv) The Prajapatya: In this form, the father makes a gift of the daughter with the condition that he fulfils his duty, property and pleasure along with her.
(v) The Asura: In this form of marriage, the bridegroom in order to get the bride gives as much wealth as he could afford to the father or other kinsmen of the bride. This form of marriage is essentially a kind of sale and, thus, is not approved by Manu.[13]
(vi) The Gandaharva: This form of a marriage arises out of a mutual desire of a man and a woman and may be compared to the modern form of love marriage.
(vii) The Rakhshasa: This form of marriage was marked by forcible seizure of a girl at times when she would call for assistance and her kinsmen would not have been able to help her, and was allowed to the military class.
(viii) The Paisacha: This form of marriage reflects to the situation where the man would ravish the girl while she was asleep or drunk or disordered in intellect.
The first four forms of marriages are regarded as approved, and, the second four are considered as 'not approved'. The significance of this bifurcation lay in the devolution of woman's wealth on her death. In the `approved forms of marriage’, the husband and his family, and in the `not approved forms of marriage’ the father and his family were to succeed it.
Prohibited
Degrees of Relationship
Prohibition on the ground of affinity is attached to the direct line of ascendants or descendants. Hence, a man may not marry the widow of his father but he could certainly marry the sister of his wife or the widow of his brother, as under Hindu law. According to Vishnu,[14] one should not marry a wife belonging to the same gotra or paravasa.
India's Hindu Marriage Act, 1955 defines two persons to be within the “degrees of prohibited relationship” if one is a lineal ascendant of the other; or if one was the wife or husband of a lineal ascendant or descendant of the other; or if one was the wife of the brother or of the father's or mother's brother or of the grandmother's or grandmother's brother of the other; or if the two or brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.[15]
A marriage, generally, between persons related to each other
within prohibited degrees could be validated through sanction from custom and
not otherwise. The
The Hindu Marriage (Disabilities Removal) Act, 1946 was enacted to remove certain disabilities and doubts under the Hindu Law in respect of marriages between Hindus. The said Act, thus, laid down that notwithstanding any text, rule or interpretation of Hindu Law or any customs or usage, a marriage between Hindus, which is otherwise valid, shall not be invalid by reason only of the fact that the parties thereto belong to the same gorta or pravara, or, belong to different sub-divisions of the same caste.
It would be pertinent to explain the denotations: gorta and pravara. Gorta denotes family. And if two persons are descended in the male line from the rishi or sage, after whose name the gorta is called however distant either of them may be from the common ancestor, they are called sagorta. Two persons are samana-paravara, i.e. of the same paravara, if they are descendents in the main line of the three paternal ancestors of the founder of a gorta.[16]
Marriage
Ceremonies
Plain Smriti texts did not make it
obligatory to perform religious ceremonies in unapproved form of marriages;
however, the sastric law that was applied to Courts in
(a) Invocation before the sacred fire; and,
(b) The taking of seven steps by the bridegroom and the bride jointly before the sacred fire (Saptapadi, as it is called).
It is when the seventh step is completed that the marriage becomes complete. Notably, under Hindu Law, consummation is not necessary to make marriage complete and binding.
However, a Hindu marriage can be completed by ceremonies other than mentioned above but for that, the requirement is that such other ceremonies must have customary sanction. Thus, where a marriage takes place under a custom that does not require the performance of the ceremony of the saptapadi (taking of seven steps), the non-performance of the saptapadi does not invalidate marriage. A custom becomes binding when it is sufficiently ancient and definite. The validity of a marriage has to be tested by the yardstick of the laws governing the parties to marriage and not by the norms of society. If the caste has been able to establish its usage regulating the form and the requisites of a valid marriage, such a usage being translucent law, is obligatory and is binding not only upon the parties, but also on the Courts, who are bound to recognise and give effect to the usage.[18]
Again, though the ceremonies have their significance, their absence or wrong performance can be excused in certain circumstances by the doctrine of Factum valet, e.g. where the saptapadi (taking of seven steps) is not completed because of an accidental fire or some other mishaps, the validity of such a marriage cannot be questioned subsequently.[19]
Marital
Duties
Upon marriage, the person of the wife passes into the dominion of the husband. The husband becomes her legal guardian. He becomes entitled to live with her how young she may be unless some custom restrains him by enabling the wife to live with her parents till she has attained puberty. Out of consideration, the husband is bound to maintain her.
Upon death of the husband, the guardianship of the wife, if she is a minor, devolves on her husband's relations, in preference to her paternal relations.[20] However, if the husband's family be extinct, or has no male members, her father or the kin of her father are the guardians of the widow.[21]
Guardianship
in Marriage
According to Dharmashastra, the trend was to marry girls as soon as they became conspicuous. The Budhayana Dharmashstra says: Let him give his daughter, while she goes still naked, to a man who has not broken the vow of chastity and who possesses good qualities; let him not keep (the maiden) in (his house) after she has reached the age of puberty.[22] According to Manu Samhita, a man of thirty may marry a girl of twelve and a man of twenty four a girl of eight. Kapadia holds that in the Mahabharata, the ages of husband and wife are said to be thirty and ten and ten or twenty one and seven.[23] Three years after she becomes marriageable, a girl was at liberty to choose her husband for herself.[24] According to Hindu Law, children of any age can be validly married. The marriage of Hindu children is therefore the result of an arrangement between the parents and the children themselves exercised no volition.[25]
According to Mitakshra school of thought which is applicable to
rest of
But the Child Marriage Restraint Act (XIX of 1929) made it
punishable for a male above eighteen years of age to marry a girl under sixteen
years of age. Again, the Sindh Child Marriages Restraint Act, 2013 as notified
on June 11, 2014, and as applicable to the
Notably, the Majority Act, 1875 does apply to all citizens of
The Shastras provide for giving a girl before she attains puberty in marriage. Rules pertaining to giving a minor girl in marriage and such guardianship are prescribed by different schools.
In 'Maynes's Hindu Law & Usage’, the author refers to Narada (at page 128) saying, “A father shall give his daughter in marriage himself, or a brother with the father's consent, or a grand father, or a maternal uncle, kinsmen, or relatives. In default of all these, the mother, if she is qualified; if she is not, the remoter relations should give a marriage in girl. If there be none of these, the girl shall apply to the king, and having obtained her permission to make her own choice, choose a husband for herself.”
The said author then refers to Yajnavalkya who speaks of the rule of Mitakshara school that the order of guardianship for giving a girl in marriage is father, paternal grandfather, brother, kinsmen (Sakulya) and mother, provided the giver is free from defects like madness.
While according to
Number
of Wives and Husbands
Under Hindu Law, a Hindu may marry as many wives as he wishes though he has a wife or wives; the exception is where law of the land disapproves or disallows the same. On the contrary, a Hindu woman cannot marry another man during the time her husband is living except when the marriage has been dissolved.
Polygamy is not prohibited in Hindu law however, it was intended in certain circumstances making it a necessity rather than a privilege. One of the circumstances allowing the same may be want of a son which has prime importance in Hindu smritis. According to Manu, a barren wife may be superseded in the eighth year; a wife whose all children die in the may be superseded in the tenth year; a wife who bears only daughters may be superseded in the eleventh year; a wife who is quarrelsome may be superseded without delay;[26] and, a wife who drinks spirituous liquor, is of bad conduct, rebellious, diseased, mischievous, or wasteful may be superseded at any time by another wife.[27]
'Superseding' is distinctive from “abandonment” in the sense that it relates to the worldly and or spiritual aspects of marriage.
Restitution
of Conjugal Rights
Where marriage is complete and other party refuses to live with the spouse, a suit of restitution of conjugal rights can be filed by the aggrieved party. The Court shall have discretion to refuse to pass a decree for restitution of conjugal rights if the husband is suffering from some loathsome disease, such as leprosy or syphilis,[28] or if he keeps a concubine in his house, or is guilty of cruelty no matter physical or mental[29], or if he adopts another religion.[30]
Under the Hindu Married Women's right to Separate Residence and Maintenance Act (XIX of 1946); which is also applicable to Pakistan; a Hindu married woman shall not be entitled to separate residence (which may be treated as judicial separation in its strict sense) in case she does not comply with a decree of a competent Court for the restitution of conjugal rights.
Judicial
Separation
A decree for judicial separation means immediate suspension of marital life leaving no responsibility on the part of the respondent to cohabit with the petitioner. Judicial separation entitles two kinds of remedies: immediate relief and leaving way open for divorce, and, a remedy with ultimate hope of reconciliation later on. Importantly, it does not prohibit parties to resume cohabitation later and to revive their original status by living as husband and wife. Generally, a judicial separation implies two options; either reconciliation or divorce. It is only in exceptional circumstances that it turns out to be a permanent separation between the parties.
Under the old Hindu Law, a wife had to prove the husband's misconduct or his refusal to maintain her in his house or some other justifiable reason which may have compelled her to live away from her husband, in order to obtain judicial separation.
The (Indian) Hindu Marriage Act, 1955 under Section 10 allows for judicial separation upon the instance of either of the parties on the ground that the other party has deserted the petitioner for a continuous period of two or more years, or has treated the petitioner with cruelty, or has been suffering from a virulent disease such as leprosy for at least one year, or has been suffering from a venereal disease in a communicable form, or has remained of unsound mind for a period of no less than two years, or has been guilty of adultery.
The Hindu Married Women's right to Separate Residence and Maintenance Act (XIX of 1946); which is also applicable to Pakistan; provides under Section 2 for a Hindu married woman's entitlement to separate residence (which may be treated as judicial separation in its strict sense) in situations when the husband has been suffering from any loathsome disease not contracted from her, or is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him, or is guilty of abandoning her without her consent, or marries again, or ceases to be a Hindu by conversion to another religion, or keeps a concubine in the house, or habitually resides with a concubine, or for any other justifiable cause; the entitlement shall also be subject to the condition of her having remained chaste and within Hindu religion.
Divorce
The notion of severance of marital tie was inexistent under ancient Hindu law. Manu expressed, “Let mutual fidelity continue until death. This is the summary of the highest law for husband and wife.”[31] And “Let man and woman, united in marriage, constantly exert themselves, that (they may not be) disunited (and) may not violate their mutual fidelity.” [32]
The Sastric recognises spiritual aspect of a Hindu marriage attached with so much importance that the man was said to have received his wife from the gods and not have wedded to her out of his own will. Manu (Manu IX, 95) puts it, “The husband receives his wife from the gods, (he does not wed her) according to his own will; doing what is agreeable to the gods, he must always support her (while she is) faithful. In the revealed texts of Veda and so also in the popular usage, the wife is declared to be half of the body of her husband, equally sharing the outcome of good and evil acts. Manu calls the man perfect when he consists of his wife, himself and his offspring. [33]
This reflects that a Hindu marriage is a sacred union of two personalities into one for the purpose of continuance of the society and for the mutual cooperation of holy rites.
It is observed that a Hindu marriage being a sacrament, once performed before the nuptial fire with the sacred texts becomes complete and irrevocable with the seventh step of the bride around the sacred fire.[34] No evidence has come on record that may admit practice of divorce as such in early Vedic and post Vedic periods. Marriage was a holy union of mind, body and soul of the spouses, and, it was believed that even death did not put an end to it, for the wife remained linked with her husband in soul after death in the next world.[35] To remain united and faithful to each other has been the highest duty of the spouses. According to Manu, the Creator ordained that a husband could release his wife neither by sale nor by repudiation;[36] and, that the wife must remain obedient to and worship as a god her husband even though he may be devoid of virtue and good qualities.[37] Thus, it is gained that divorce in the sense of dissolution of marriage whereby the status of the husband and the wife cease to exist, as such marital rights and duties are severed by law and the spouses are free to remarry, was not sanctioned in the sastra and it was unrighteous act to do so. The hymen of the Atharva-Veda supported it: “Be not divided, O husband and wife; live together all your lives, sporting with sons and grandsons, rejoicing in your happy home.”[38] In nutshell, no divorce was acknowledged by dharma sastra.
However, a husband could abandon or supersede his wife in certain circumstances, such as when she yields herself to the pupil of her husband, or to his teacher, or a man of degraded caste or attempts to kill her husband.[39] Such abandonment must be just and reasonable else it would invite humiliating punishment as prescribed in sastras.
Abandonment should not be equated with divorce. Let the term be understood. The Sanskrit word for 'abandonment' is tyaga. Medhatithi defines tyaga as giving up all intercourse with her and forbidding her to do household work.[40] Tyaga denotes separation as opposed to Moksa, which might be technical divorce.[41] Tyaga implies abandonment from marital intercourse and religious duties on account of different reasons; it may be seen as temporary separation for a limited period but in no case, can it be termed dissolution of marriage as is the case of divorce. The object of abandonment is not to cease relations permanently with the wife but to punish her for her misdeeds, e.g. by not allowing her to participate in religious ceremonies and conjugal matters, and, by keeping her apart in one room provided with food and dirty clothing coupled with scornful attitude towards her. The abandonment on reasonable causes is justified as Manu said a husband must be constantly worshipped by a virtuous wife.[42] Where she violated the principle and disrespected the husband, she must be punished.
Kautiliya, the author of Arthasastra, a secular book, holds that there can be no divorce in approved forms of marriage; however, a marriage can be dissolved if it is in unapproved form and if both the parties to it come to hate each other. He says, “The law does not allow the dissolution of marriage between spouses who have undergone a dharmic vivaha.”[43] P.K.. Virdi in his 'The grounds for divorce in Hindu and English Law a study in comparative law' (at pg. 14) observes that the first four marriages are dhermya, i.e. connected with righteousness, because they are brought about under the authority of a father, and such marriages do not admit divorce.
The concept of divorce is alien to the general Hindu Law. The reason is quite simple: in Hinduism, a marriage is an indissoluble tie between the husband and the wife.
The only exception to this rule is customary sanction to divorce. Neither party to marriage can divorce the other, unless divorce is allowed by custom.[44] However, a Court is not competent to recognize a customary consent divorce, unless it is specifically permitted by the law. Such custom must be pleaded and proved, it being an exception to the general law as regards divorced.[45]
It is pertinent to mention here that there is no rule existing in Hindu Law which forbids the subsistence of a marriage one of the parties to which is a non-Hindu; difference of religion is no impediment to recognition of a conjugal union.[46]
The (Indian) Hindu Marriage Act, 1955 allows for divorce on several grounds yet the Act under Section 14 restricts Courts to entertain any petition for dissolution of marriage by a decree of divorce, within one year of marriage except when it is a case of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent.
The (Indian) Hindu Marriage Act, 1955 under Section 13 provides several grounds for obtaining divorce by either party to the marriage when the other party has been guilty of adultery, or cruelty, or desertion for a continuous period of two or more years, or conversion to other religion; or when the other party has been suffering from incurable unsoundness of mind, or mental disorder, or from a virulent and incurable form of leprosy, venereal disease in a communicable form; or when the other party has renounced the world by entering any religious order or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive. It further provides that either party may also present petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of one or more years after passing a decree for judicial separation in a proceeding to which they were parties; such a petition may also be filed by wife on the grounds that the husband had another wife, that the husband had been guilty of rape, sodomy, or bestiality, and that the marriage was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the age but before attaining the age of eighteen years. The Act under Section 13-A also provides for the dissolution of marriage upon mutual agreement between the parties.
Drastic changes were effected in
personal laws for Hindus in
Re-Marriage of Females
The earlier discussion reflected that the sastra did not allow divorce. By the same token, remarriage was certainly not warranted by the sastra. A sastric marriage could only performed by a virgin. Manu contended that the texts did not apply to those who had lost their virginity.[47] Manu also said that a female was fit to be given in marriage only once: “Once is the partition of (the inheritance) made, (Once is) a maiden given in marriage, (and) once does (a man) say, 'I will give;' each of those three (acts, is done) once only.”[48] The sastra expected a woman to live a life of chastity, and, that “she must not even mention the name of another man after her husband has died.”[49] According to Manu, nowhere is a second husband prescribed for a virtuous woman.[50]
However, Narada, Parasara and Vasishtha prescribe for five situations wherein a woman may be allowed to take another husband i.e. when her husband is lost or dead, when he has become a religious ascetic, when he is impotent and when he has been expelled from caste.[51] In accordance with Artha sastra of Kautiliya, a woman may remarry when her husband had gone away for a long journey, or had become ascetic or was dead.[52] Remarriage of such cases can well be attributed to custom and usage that go side by side with the sastra.
Remarriage
of Widows
Widow-remarriage was utterly disapproved in the orthodox Hindu society where sastra applied. She was called a Punarbhu who might be of three kinds: a 'widow' whose marriage had not been consummated, one who after having left the husband of her youth had betaken herself to another, returns to the house of former husband, and the woman, who on failure of the brothers-in-law, is delivered by her relations to a sapinda (blood relative) of the same caste.[53] The Punarbhu was regarded as inferior wife[54] but her issues were legitimate;[55] however, according to the quality of her marriage, the issues attained inferior status[56] and, her son (punarbhava) did not inherit his father's property as an heir but as a kinsman.[57] Likewise, the daughters of the punarbhus were also treated as of lowest birth.
Later, The Hindu Widow's Marriage Act, 1856 expressly sanctioned and legalised the remarriage of Hindu widows in the face of the situation where many Hindus believe that their imputed legal capacity, although it is in accordance with established custom, is not in accordance with a true interpretation of the precepts of their religion, and desire that the Civil Law administered by the Courts of Justice shall longer prevent those Hindus who may be so minded from adopting a different custom, in accordance with the dictates of their own conscience; and, where it was just to relieve all such Hindus from this legal incapacity of which they complain, and, the removal of all legal obstacles to marriage of Hindu widows will tend to the promotion of good morals and to the public welfare.
Thus, the said Act provided under Section 1 that no marriage contracted between Hindus shall be invalid, and the issue of no such marriage shall be illegitimate, by reason of the woman having been previously married or betrothed to another person who was dead at the time of such marriage, notwithstanding any custom and any interpretation of the Hindu Law to the contrary.
Where a widow is of full age, or whose marriage has been consummated, her own consent shall be sufficient to constitute her remarriage lawful and valid. Where the widow remarrying is a minor whose marriage has not been consummated, she shall not re-marry without the consent of her father, or if she has no father, of her paternal grand father, or if she has no such grandfather, of her
mother, or, failing all these, of her elder brother, or failing also brothers, of her next male relative.
Conclusion
Marriage is an important institution of family in any society,
and, has evolved gradually. Same is the case with Hindus. Hindu laws as
prevalent in our country limit freedom of Hindus with respect to their marital
laws, for the laws that had been adopted by the country at the time of
partition as under Indian Independence Act, 1947 have not progressed. The
Hindus who live in
[1]. Manu II, 1
[2]. Manu II, 12 : Yajn, 1, 7. Medhatithion
Manu II, 6 cited in Jha., (HLS) I, 22 (referred in Mayne's Treatise on Hindu
Law & Usage ate page 15)
[3]. Vyasa, 1.4. Manusmriti, 11, 13, 14.
[4]. S.A Desai, Mulla Principles of Hindu Law,
Twelfth Edition, Volume I, page 5
[5]. Manusmriti, II, 10; referred by Satyajeet
A Desai in his “Mulla Hindu Law” at pg. 7 (21st Edt.)
[6]. (1904)27 Mad 13
[7]. AIR 1921 Lah. 121
[8]. I.L.R. (1942), All 518 at p. 583
[9]. Mayne, Hindu Law and Usage, pgs. 111-113
[10]. Manu IX 138
[11]. Manu IX 137
[12]. Manu IX 45
[13]. Manu III 51 says, “No father who knows
(the law) must take even the smallest gratuity for his daughter; for a man, who
though avarice, takes a gratuity, is a seller of his offspring.”
[14]. Vishnu is one of the Smriti writers, D F
Mulla (n 19) 17
[15]. Sec. 3(g) of the Act. Note- The Act is not
applicable to
[16]. S A Desai, Multa Principles of Hindu Law,
Twelfth Edition, Volume I, pages 760-761
[17]. (1899) 12
[18]. AIR 1954 Mad 657, AIR 1964 Mad 126
[19]. P. K. Virdi, The grounds for divorce in
Hindu and English Law, 16
[20]. (1889) 16
[21]. AIR 1959 AP 40, pg. 46
[22]. Muhammed A Qureshi, Marriage and
Matrimonial Remedies, first edition 1978, pg. 56
[23]. G. M. Kapadia, Marriage and Family in
India, p. 139, as referred by Mohammed A Qureshi, in his 'Marriage and
Matrimonial Remedies', first edition 1978, pg. 56
[24]. Manu IX, 90
[25]. (1897) 21 Bom 23, 27, 30.
[26]. Manu IX, 81
[27]. Manu IX, 80
[28]. (1868) 5 Bom HCAC 209
[29]. (1905) 34
[30]. (1886) 8 All 78
[31]. Manu IX, 101
[32]. Manu IX, 102
[33]. Manu IX, 45
[34]. Manu VIII, 227
[35]. (1991) 28
[36]. Manu IX, 46
[37]. Manu V, 154
[38]. Atharvaveda XIV.I. 21-22
[39]. Vasishta XXI, 10-11
[40]. Medatithi on Manu VIII, 389
[41]. S. Venkataraman, “Matrimonial causes among
Hindus” (1962) I. M.L.J. p.1 as referred by P. K. Virdi, in his 'The grounds
for divorce in Hindu and English Law', at pg. 28
[42]. Manu V, 154
[43]. Kautiliya III, 3, 19, translated version
from J.D.M. Derrette
[44]. AIR 1958 AP 611
[45]. AIR 2001 SC 971
[46]. AIR 1959 All 529
[47]. Manu VIII, 226
[48]. Manu IX 47
[49]. Manu V, 157
[50]. Manu V, 162
[51]. Narada XII, 97; Parasara IV, 30; Vasishtha
XVII, 74.
[52]. Kautiliya III, 4, 24-31
[53]. Narada XII, 46-48; Vasishta XVII, 19-20
[54]. Narada XII, 45
[55]. Manu IX, 159
[56]. Manu V, 162
[57]. Manu IX, 160