Introduction
The aim of this paper is to analyze the article by Flavia Agnes titled as “Has the Codified Hindu Law Changed Gender Relationships?” Before proceeding, the researcher wish to draw the attention of the readers to the limitations of the scope, as the article was published in the year 2016 by “Social Change” journal published by Sage Publications. The object of this paper is to critically analyze the article both internally as well as externally and try to further analyze the gendered relationship between man and woman before and after the codification with the help of the relevant provisions of the Hindu Marriage Act and the case laws and findings.
Summary of the Article
Before delving into the article, it is imperative to look the context in which the article was written and also the background of the author. This article was written when there was a renaissance in demand of Uniform Civil Code (UCC) owing to the surging debates around the idea of Triple Talaq and monogamy, there were suggestions to have codified Hindu Laws as base of UCC as considered to be a secular, non-sexist and equalitarian laws. This article appears to be validly and elaborately attacking on that presumption. Flavia Agnes is an activist and women rights lawyer. Her works on women rights are well acclaimed and accepted in the legal fraternity and has been guiding the path of young lawyers and judges as well. She being a staunch supporter of women rights her commentaries and examples lack certain antithetical aspects. The researcher shall try to locate those antithetical facts without jeopardizing the due appreciation of the article itself.
The article begins with giving the historical aspect of codification of Hindu law and the tussle between different ideologues, it glides us through 15 years of the debate taken place between the egalitarians and the nationalist leaders including Rajendra Prasad, P. Sitaramaiya etc. who opposed giving the property rights to woman and doing away with the sacramental nature of the marriage. These debates concluded in a compromise enactment of the piecemeal statutes instead of an equalitarian code. The noble idea of giving the proper rights to women to remove the power dynamics was dissolved and further dissolved in order to ensure the maximum consensus and appeasement. She has also pointed out the flaw in the legal ambit of definition if Hindus which has been a matter of debate since the time immemorial. As she goes into the main question of subjugation of woman, the article becomes more streamlined and critical. She starts her attack from the section 9 of Hindu Marriage Act which is read as restitution of the conjugal rights. She has called it as something which was induced by the colonials who have moved away from this law. She states that it has lead to commoditization of women and restricts them in getting gainful employment. She has also targeted the patriarchal notion of the Court proceeding where they favored the regressive interpretation and judgment of Delhi high court as against more progressive law given by Madras HC.
Her second line of attack bases on Monogamy. She has talked about the lacunae of section 5(1) of Hindu Marriage Act where though the legal provisions are there but due to the lacunae it has become detrimental to the woman in various ways such as the alleging 1st spouse is at the risk of losing her status if she fails to prove her customary marriage. Though the statute recognizes the customary forms of marriage as valid marriages, but the courts have been reluctant in considering any such marriage as valid one. Conviction rate are also low, due to all these technical grounds, the culprit husband often defies the maintenance rendering one of the spouse destitute. Thus this ground is challenged at two levels, one is discrepancies in law and the other is Hindu majority’s view of the government. This make a Hindu Wife worse off compared to her counterparts, who had right to residence and property.
Thirdly, she questions the soundness of the restrictions on the child marriage of the girls, which the researcher also believes is a pressing concern as more than 50% of the child marriages are under the umbrella of Hindus. She is pressing for making the same void. In the article she has also discussed certain evils which are though not important from the purpose of legal understanding but should find a mention in this paper as those might be the catalyzing agent. These problems are, infanticides, construction of purity, Paraya Dhan etc. Apart from this she also scoffs over the optional nature of requirement of registration under section 8 of HMA and inconclusive nature of the evidences resulting in desertion of young aspiring women and the researcher also believes lead to conflation of the Special Marriage Act. Despite all her contentions she recognizes that some traversing was done from the absolute and the sacramental nature of the marriages to the contractual one. She finally concludes that the codified Hindu laws have not helped in emancipation of the woman and there is a need to wait.
Analysis
In this part of the paper, the researcher shall analyze the above mentioned article with the help of commentaries by various authors and jurists and the case laws. The methodology adopted shall include the analysis of the detrimental conditions of the law as considered by the author and giving antithetical facts, aspects to the same. While doing so the necessary comments to be made in the due course.
1. Restitution of the Conjugal rights- Section 9 of the Hindu Marriage Act talks about this relief, available to both the parties in a marriage, this is applicable when either of the spouses has deserted the society of the other. Author mounted the long going criticism of enforcing the sexual conduct on the spouses. Though sexual relations are enforced in essence if cohabitation is enforced but the honorable Supreme Court of India in the case of “Saroj Rani v. Sudarshan Kumar Chadha” affirmed that enforcement of the sexual conduct is a very narrow understanding of the marriage and its purposes rather it includes various obligations both on husband and wife. This can be seen when disposing the plea under cruelty, the learned High Court Judge pointed out – “just because there took place an act of intimacy between a couple does not rule out the otherwise neglectful and cruel conduct on the part of the husband”. We should not fall for reductionist approach but should not negate the lacunae and laws regarding marital rapes are in an order so that sexual liberty can be ensured. This has also ensured the greater security to woman and prevented them from being rendered destitute. This assertion is debated for many a time it has been seen that the husband uses this decree to get a decree of divorce from the wife on the grounds under section 13 of HMA. Thus the principles of equity come to the rescue in such cases. This most important principle is read as “He who comes to the court must come with the clean hands” or “No one can take the advantage of their own wrongful act”. How this acts in the cases as such is that if the court during the fact finding, comes to know that the person in whose favor a decree under the section 9 is passed and he/she by his/her conduct either implicit or explicit has restricted the operation of such decree then, this won’t be serving as a ground for divorce and more ever there are the possibilities of the legal consequences are also there. The leading example of such conduct is that of “Veena Handa vs. Avinash Handa” where after getting the decree for the restitution, the husband drove the wife away with maltreatment, and immediately marry another girl, court denied to give him relief of his choice. This was also affirmed and settled for good in the above mentioned supreme court case of “Saroj Rani v. Sudarshan Kumar Chadha.” Here, we see that the remedy under section 9 though abolished by more secular countries, but we cannot deny the fact that it has on many fronts has helped women. But the criticisms leveled by the author cannot be denied either, thus here is a need for some amendments in some places and more liberal and equitable interpretation on the other. Then this remedy shall completely be equalitarian.
2. Monogamy laws – Codified Hindu law has always been revered by people for doing away with the polygamy and giving greater rights to the wife, but the facts highlighted by the author about the ground realties should make us worried, high number of polygamies has been reported in Hindus and deemed Hindus family, but that shows procedural and operable problem with the law, the author has goes on to highlight more niche area of problems with the laws and unlike prior case, this is actually a pressing problem. Due to the deemed conversions of a numerous communities like Jains, Buddhists, Atheists and some of the tribal communities, the Hindu Society has become pluralistic, and the pressing concern with the Brahminical form of the marriages like Homa and Sapapadi, renders many of the marriages which do not follow marriages not involving those forms. Despite the fact of animus to marry. Though section 7 of the act talks of non-essentiality and the court has also in cases like “Gopal Lal vs. State” said that the culture of individual community will be valid. But for the courts have to widen their interpretation to some extent so that both parties can be put to the equal footing as oppose to a situation where an already destitute wife has to plead against her husband and at the same time has to satisfy the standards of antiquity etc. Therefore, the interpretative reforms are asked for. Despite these lacunae, there has been a comparative reduction in the cases of prostitution and concubinage after the year 1960. Another attack from the author is that there has been very low rate of conviction under Section 494 and 495 of Indian Penal Court (IPC). But the good thing has been that in most of the cases, despite severing the ties of the polygamous marriages or even while declaring a marriage non-existing on grounds of section 7, the courts have found ways to give apt relieves to the destitute wife under section 25 of the act and has inclined toward the legitimacy of the child in such cases. An apt example would be the case of “Ramchandra Daga Vs. Rameshwari Daga” and further affirmed by the highest Court of the country in the landmark case of “Badshah v. Urmila Badshah Godse” where the court resorted to the legislative intent, social justice and ruled that the women who were tricked into polygamous marriage should be protected from the conniving tricks of the alleged spouse to deny maintenance. The landmark rulings in the context of live-in relationships can also be employed to protect the interest of women who were so deceived. Thus, the researcher would conclude that reforms in the laws on various points as mentioned above but at the same time we should also realize that the rate of convictions in such cases is not the sole measure of judging the success though important and need changes.
3. Child Marriage- The author has shown concerns for the pressing problem of child marriage in the society especially in deemed and de facto Hindu society. She has also pressed that such child marriage be declared void but the issue that comes is that the husbands might get any such child marriage void and then the concerned woman who was once a victim of the child marriage is again victimized by destitution. There is rather a need to incentivize the society to do away with the practices as these. This has been done by PCMA a secular legislation overwriting the personal law. The Highest Court of the country in case of “Independent Thoughts vs. Union of India” has penalize the child marriage in essence as a form of rape. These type of legislations need to be amended further to de-incentivize such malpractices. Moreover, what is more required is to educate society as the evil lies in the society not in law, where child marriage is done to preserve chastity of the girl, and family honor and many other similar reasons.
4. Registration of marriages- The another main concern is with respect to section 8 of the act hic optional and not very solid and conclusive in nature, this leads to a problem where though both parties having animus along with the prove of that animus, and the factum of cohabitation as well but the poor wife is left with invalid marriage if challenged, despite such certificate being conclusive for the third party acting further to the detriment of the spouse. Thus, changes in this regard are needed. Though we cannot do away with the ceremonies having a major place in the sentiments of the people, but efforts can be made to put the registration in equal footing with ceremonies as much as possible. The judiciary has tried to do this in various verdicts but the legislatures are not heeding to those verdicts.
While talking of all these aspects, the researcher coincides with the author’s understanding of need of stricter legislation and provisions against the dowry. As clearly we have seen that more than 80% cases of dowry deaths are in Hindu society and the convictions rate is often quite low.
While discussing these things, we should not forget that the codification has led to greater certainty in the law. This has also helped in improvement of the social position and mobility. In the ancient Hindu Society the divorce was not given except for a few circumstances that to mostly favor man (Death, infidelity of woman). Now as we see there has been a shift toward greater acceptance of divorce, the grounds such as desertion, cruelty etc. apart from this several grounds especially for the woman has been recognized, for an example section 13(1-A)(2)(ii) has reduced the evils of having concubines and induced ethics into marriages. Maintenance has been recognized and w have moved away from practice of giving merger maintenance. Moreover the recent amendment of 2005, has given women the coparcener’s rights. All these things and many more were denied to woman in patriarchal and Brahminical society and were way detrimental.
Conclusion
In this paper, the researcher has tried to analyze the article. The researcher ventured to analyze the clams and conclusion of the author and the reasoning given by her. From the analysis the researcher concludes that though there is a need of great changes in the codified Hindu law and in the socialization of the judges so that the need of the interpretative and procedural liberty could be satisfied and the law becomes more equalitarian for both husband and wife. But at the same time we should not out rightly reject the changes that have been brought up by the legislations and a great deal of upliftment as compared to pre-codification era in search of perfect solutions. The codification has definitely changed the gendered relationship between a couple but as far as the question of considering the codified Hindu law as the base of UCC, it is not feasible due to inadequacies and the sentimental reasons as well. Accumulation of different personnel laws as advised.
Towards the end the researcher would say that there is no need to wait for the debate of Fundamental rights vs. personnel laws to be settled. They can relieve the couple with the help of personnel laws itself as we have seen done by many progressive and benevolent judges.
This article is authored by Ajitesh Arya, First-year BA LLB (Hons.) student at NALSAR University of Law.
Also Read – Uniform Civil Code under article 44 of Indian Constitution
