Posted in Critical Analysis, Personal Laws

A case for a BAN ON POLYGAMY in India after the Landmark Triple Talaq Judgement

The Supreme Court of India on March 22, 2017, made a mark in history by declaring the practice of Triple Talaq as unconstitutional by 3:2 majority. The court said that it violates the fundamental rights of Muslim women as it irrevocably ends a marriage and is against the basic tenets of Qur’an. This judgement opens the door for challenging Polygamy on the basis of its being arbitrary, unilateral, and unconstitutional.

Sec 494 of the Indian Penal Code, 1860 outlaws polygamy but since the examination of personal laws is a pre-requisite to the applicability of this section, it is legal in the Muslim community as Islamic law allows polygamy for men (only in exceptional conditions) and imposes monogamy on women. Verse 4:3 of the Quran says that,

“And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that you may not incline [to injustice]

In the pre-Islamic era, men were entitled to have more than one wife. One must not forget the significance of the period and the circumstances in which verse 4:3 was revealed allowing men to marry up to four wives; the battle of Uhud took a heavy toll on men, leaving a large number of widows and orphans. The multiplicity of wives became a social necessity and in verse 4:3 which was revealed after this great battle, the Holy Prophet, allowed polygyny but under the strict injunction that all the wives must be treated with perfect equality. Many Classical jurists interpret the last portion of the verse to mean that polygamy should be restricted as The Quran states in the same chapter that it is not possible to be equitable and fair in these situations; “Ye are never able to do justice between wives even if it is your ardent desire

It is a well-known jurisprudential rule in Islam, that “verses in the Qur’an explain each other,” i.e., the Qur’an is an integral whole and thus the full and proper meaning of any verse cannot be understood in isolation from other verses in the rest of the Qur’an. We can thus logically conclude that a man should marry only one wife. Therefore, the general belief that under Muslim Law, a husband has an unfettered right to marry again even where his earlier marriage is subsisting is egregious and baseless. This is clearly a manifestation of how patriarchal interpretation can prevail over reason and gender equity.

Polygamy clearly violates Article 21 of the Indian constitution as the Right to Life also includes the right to live with dignity. As far as Indian Judiciary is concerned, a catena of Indian case laws suggests that the touchstone of judging laws on polygamy can be our own constitution. In Javed v. The State of Haryana, the court held that “Polygamy is injurious to public morals and can be superseded by the state just as the practice of Sati.”

The flag bearers of Polygamy have contended that banning polygamy would be in violation of Article 25 of the Indian Constitution which guarantees Freedom of conscience and free profession, practice, and propagation of religion. While interpreting the right to Religious freedom, Judiciary takes into consideration the essential religious practices and not the non-essential ones.  Judicial decisions have made an attempt to make a distinction between ‘essential’ and ‘non-essential’ religious practices. In the recent judgement of the Supreme Court in the case of Khursheed Ahmed Khan v. State Of U.P. & Ors , the honourable court reproduced the 1952 judicial precedent in the Narasu Appa Mali case;

“Sharp distinction must be drawn between religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give away before the good of the people as the State as a whole”

There can be no denying of the fact that Polygamy is an anathema to women’s economic, social and emotional well-being and hence, it is clearly opposed to Public order and morality. It is, therefore, safe to conclude that any law in favour of monogamy does not interfere with to right to profess, practice, and propagate religion and does not involve any violation of Article 25 of the Constitution.

Indian Judiciary through its various judgements has made it clear that Polygamy is an inhumane practice which should be eradicated from the society to restore the dignity of Muslim women and achieve the goal of gender justice. The legal reform in personal laws has been one of the critical and yet neglected areas in the Indian Democracy. Muslim women are denied their legal rights in the personal realm despite various rulings of The Supreme Court and various high courts which have declared the practice of Polygamy as unconstitutional. Practices such as polygamy persist in our society despite there being no sanction on these in the Quran.

It is extremely significant to note that a large no. of Muslim countries or countries with a large Muslim population have undertaken significant reforms in marriage and divorce laws. As per the Indian Law Commission’s report, bigamy has been fully abolished or severely controlled by law in most Muslim countries of the world. Turkey and Tunisia have completely outlawed it while in Egypt, Syria, Jordan, Iraq, Yemen, Morocco, Pakistan and Bangladesh; it has been subjected to administrative or judicial control. It is now India’s turn as the World’s largest democracy to put a complete ban on polygamy, thereby ensuring dignity and gender equality to women.


ABOUT THE AUTHOR

Rashi Rawat

picsart_10-31-10.30.48

Rashi Rawat is a second-year student from Gujarat National Law University, Gandhinagar pursuing B.A. LLB (Hons.). She has a keen interest in Competition law, Intellectual Property Rights, Family Law, Public International law and Human Rights law. She is also a member of the Editorial Board of the GNLU Journal of Law and Economics and keeps herself updated with the role that law and economics play in improving the efficiency of laws. Being a staunch feminist, she loves to read and research about contemporary issues revolving around women empowerment.  She’s a huge Potterhead and firmly believes in the saying, “It is our choices that show what we truly are, far more than our abilities.”

Posted in Family Law, Marriage and family

Delhi High Court playing with “Irretrievable Breakdown of Marriage”

Is “irretrievable breakdown” of marriage is ground for dissolution of marriage by divorce, under Hindu Marriage Act, 1955? The answer to this question clearly is that no such express provision has been incorporated by the Parliament in Hindu Marriage Act, 1955 (HMA). Then why did the Delhi High Court by its Judgement dated 21st October 2016, in the case of Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)], agree to grant divorce on the ground of “irretrievable breakdown” of marriage?

Precisely a month before the above-mentioned judgement, the Delhi High Court in the judgment dated 21st September 2016, in case of Mini Appa Kanda Swami v. M. Indra [(2016) 234 DLT 243 (DB)], came up with decision that the High Court lacks the jurisdiction to grant divorce on the doctrine of “irretrievable breakdown”.

Why did the Delhi High Court reverse its stance on granting divorce on the basis of the “Doctrine of Irretrievable Breakdown”? Is it following the principles of stare decisis? Many more question arises after the Sandhya Kumari v. Manish Kumar case.

The rationale given by Delhi High Court, in the said judgment[1], was that, by virtue of Madhvi RameshDudani v. Ramesh K. Dudani [2006 (2) Mh.L.J. 307], Shrikumar V. Unnithan v. Manju K. Nair, [2007 (4) KHC 807],  V. Bhagat v. D. Bhagat [(1994) 1 SCC 337], andNavinKohli v. NeeluKohli [(2006) 4 SCC 558], “the concept of cruelty has been blended by the courts with irretrievable breakdown of marriage.”Hence, directly or indirectly, Delhi High court has read doctrine of irretrievable breakdown under ‘cruelty’, which is a ground for granting divorce.

Now coming to Madhvi RameshDudanicase, divorce was granted on the ground of cruelty, and it was only an observation of the Bombay High Court that marriage has been irretrievably broken. There was no observation regarding the blending of the same.

Moving on to another case of  V. Bhagat v. D. Bhagat, theApex Court has said that, HMA does not permit dissolution of marriage on doctrine of “irretrievable breakdown”, and cautioned to keep that in mind while ascertaining the type of cruelty contemplated by Section 13(1)(i-a).

The Apex court gave a clarification that “Irretrievable breakdown of the marriage is not a ground by itself … The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the court finds it in the interest of both the parties.”Therefore, this case did not suggest any blending of cruelty with irretrievable breakdown of marriage.On the other hand, it granted divorce on that ground of mental cruelty.

Now here the word”court” can be widely interpreted to include “HighCourt” or any other court, but moving along the line with Anil Kumar Jain v. Maya Jain [(2009) 10 SCC 415], where the Apex court has held that only the Supreme Court can invoke“its extraordinary powers under Article 142 of the Constitution of India in order to do complete justice to the parties when faced with a situation where the marriage ties had completely broken and there was no possibility whatsoever of the spouses coming together again.”

It further indicated that, the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution cannot grant divorce despite the fact that the marriage has irretrievably broken down.

Another decision which was mentioned in Sandhya Kumari case, was NavinKohli v. NeeluKohli case. In which the Apex Court discussed major cases where, either the divorce was granted under Section 13B of HMA, stating “irretrievable breakdown” of marriage; or, under Article 142, when divorce was prayed under Section 13.  Mostly, the alleged grounds for divorcee were adultery, desertion, or cruelty. Navin Kohli casewas alsosolved by granting divorce on ground of cruelty and not by invoking the doctrine of “irretrievable breakdown”.

Coming back to the Sandhya Kumaricase, in which the breakdown theory (Doctrine of “irretrievable breakdown”) and fault theory (mental cruelty) regarding divorce has been blended by the Delhi High Court, while foundation of thetwo, lies on two different kinds of bed rocks.

This judgement[2] has violated the precedent laid down by Apex Court in the case of Vishnu Dutt Sharma v. Manju Sharma [(2009) 6 SCC 379], by indirectly reading “irretrievable breakdown” of marriage as ground for divorce. In Vishnu Dutt Sharma Case it washeld that Supreme Court cannot add “irretrievable breakdown” of marriage as ground for divorce under section 13, as that would amount to amending the act, which is thefunction of legislature.

Delhi High Court in Sandhya Kumari Casehas either, acted arbitrarily or, opened a new road  of hope for people who would like to seek divorce easily, by reading “irretrievable breakdown” in cruelty. This decision can be appraised for judicial activism, as much as, it can becriticized, for not following the principle of Stare Decisis.

[1] Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)]

[2] Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)]\



ABOUT THE AUTHOR

dhruv-chandora

DHRUV CHANDORA

Dhruv Chandora is currently pursuing 4th year of BA LLB (Hons) course at Rajiv Gandhi National University of Law, Punjab. A voracious reader and a keen learner, Dhruv is also a moot court enthusiast.

Posted in Marriage and family

Battle of Love: Special Marriage Act, 1954

This article has been written by Piyush Bajaj. Piyush is currently a BCom LLB student at Amity Law School, Noida.

Marriage is considered to be a sacrament in our country, as it is the most integral tradition which is being followed from over hundreds of years.

India has been a land where a boy and a girl weren’t allowed to select their partners on their own as it was their parent’s duty because of their thinking that they were a lot wiser and experienced than their children and will decide the best for them. The concept of marriage is considered to be very auspicious in every religion in the country as it is a summit of two souls with the personal laws of every religion being followed.

The influence of caste and religion is enormous in our society especially in matters of marriage as it is considered to be the most important criteria for a properly solemnized marriage. Parents search for the bride or groom in the same cast or religion of theirs, as Inter-cast or Inter-religion marriages are considered to be a taboo. People are forced to marry according to their family’s will or due to the pressure of the society, but the question arises “What if someone wants to marry a person of other caste or religion”? So the society gave the answer to us as “Honour Killing”. The grave need of ending such crimes and to support people who believed in stepping up of the cast or religion barriers, the parliament enacted the Special Marriage Act, 1954. The act provides a special form of marriage in which any citizen of India can marry irrespective of any caste or religion barrier.

This act resolves the problem of caste or religion being a barrier for the people who believe in marrying outside their caste or religion. So here are some features of the act enlisted for a better understanding –

  1. Requirements

To marry under this act, the parties need to file a notice to the Marriage Registrar of the district with the intention of marrying each other, in which one of the party has resided for at least 30 days preceding the date on which such notice is to be filed, then the marriage is said to be solemnized.

  1. Conditions
  • The groom must be of 21 and the bride must be of 18 years of age at the time of marriage.
  • The parties should be mentally fit in order to be able to decide for themselves.
  • They should not be under prohibited relationship or else it will otherwise act as a ground to dissolve their marriage.
  1. General Understanding

The general understanding is that marriages under this act don’t make it any less sacred or invalid. The constitution provides the right to marry any person of their choice, but this idea is supported as well as criticized too because of the influence of arranged marriages over love marriages has brought such situation, which even after so much of legislative and judicial progress hasn’t brought about a major change in the mindsets of people .

Conclusion

After such progress in matters of special marriages, people still face difficulties in accepting it as they feel it is a dishonour to them. But if we look at the positive side of these marriages, they add up to the national integrity. Most importantly the people of the country need to appreciate such marriages between different caste and religion as it will increase equality amongst the citizens and it will also set an example how to love and respect each and every person irrespective of their caste or religion barriers.


The December book bucket

court-room-genius                    Learning the law.jpg                     legal-eagles


 

Posted in Marriage and family

Judicial Separation: A second thought to divorce

This article is written by Shreya Bansal. Shreya is commerce graduate from Shri Ram College Of Commerce and is currently pursuing Bachelors Of Law from Faculty Of Law, DU.

 

 

A marriage is a blissful companionship of two people sharing mutual love, trust and understanding which promises to be the most beautiful phase of a person’s life. But sometimes the fruits of misunderstanding, distrust and anger get sown in it which might make surviving each other’s company even for a minute to be an excruciating experience. Well, most people assume that the last resort to end this menace is divorce. Is it so? Certainly not.
There is a provision of Judicial Separation under The Hindu Marriage Act, 1955 to give time to each of the partners to resolve their issues by living separately. The basic rationale behind this kind of provision is that through the method of judicial separation, both the partners get a chance to think rationally about their relationship without the strain of living together which results in tension and further wear and tear of their marriage.
A decree of judicial separation does not answer the question of continuance or discontinuance of marriage but it frees the partners from the obligation to live together, thus preventing them from indulging into any other fights or misunderstanding which can strain their marriage further.
As per Section 10 of The Hindu Marriage Act, 1955 a case for judicial separation can be claimed on the grounds of cruelty, adultery, desertion, forced conversion of religion, incurable diseases like leprosy, insanity, venereal diseases that are communicable, renunciation of the world by a spouse on religious grounds, either of the spouse not alive and seen for more than seven years. Moreover, a woman can claim judicial separation if there is enough proof that her husband solemnized another marriage and his other wife is still alive as well as on grounds of rape, sodomy, and bestiality.
One of the interesting features of judicial separation is that it is upon the discretion of the court whether to grant judicial separation or divorce straightway depending upon the facts and circumstances of each case. Thus, a second chance will be even to all the couples to resolve their issues keeping into consideration the severity of their differences and the scope for further reconciliation.
As per Section 13 of The Hindu Marriage Act, 1955 if a couple is not able to reconcile their differences within the period of one year from the date on which the decree of judicial separation is granted and are not able to cohabit again, they can obtain a divorce on this ground itself.
On the other hand if the parties are able to reconcile their differences during the period of one year of judicial separation and want to cohabit again, they can get their decree of judicial separation annulled anytime by the court. So as per Section 10(2), the court has the power to
rescind the order of judicial separation if it considers it just and reasonable to do so, provided such power of annulment is exercised with utmost care and upon complete satisfaction with regards to the same.
Hence, not only nature but law also gives second chance to all. To protect the institution of marriage and maintain the trust of people of our country into the same, the legal institution of our country has come up with this system of judicial separation for preventing them from taking any decision in the heat of the moment and resorting to a wrong life changing decision.

Posted in Critical Analysis, Marriage and family

Live-in relationships: Deemed to be marriage?

This article is written by Yuvina Goyal. Yuvina is a third-year student of BSc. LLB at NUJS Kolkata.

 

The Indian society is deeply rooted on traditional values and customary practices and the idea of live-in relationships is one which still has not come out of its closed shell and has not gained an active recognition by a very large section of the society. Marriage in our society is considered to be the basic foundation of the society and governing all heterosexual relations since time immemorial.

In such a context, the concept of live-in relationship seems to challenge the basic tenets of marriage as a sacrosanct institution.  It is still considered to be a taboo in India for two adults to enter into a relationship without the sacrament of marriage and it has social stigma attached to it. The growing trend of borrowing the Western culture and values have harnessed the growth of materialistic relations like these. The most important stake holder of such a relationship is the children born out of these relations. Whence, legitimacy of such children, their right to inheritance, maintenance, welfare, education etc. are some pertinent spheres to be taken into consideration.

The concept of live-in relationships has not yet been granted a legal status or recognition in the Indian legal system. But it is slowly emerging and there are various legal reforms in this direction. One such is that of the Malimath Commission which was set up by the Supreme Court for reforms in Criminal Justice system of India. The Committee which later submitted the report mentioned that-“The definition of the word ‘wife ‘in Section 125 should be amended so as to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage.”[1]This will thereby, entitle a female live-in partner the lawful right to claim alimony   as well. The same idea has further been reiterated by a report from the National Commission for Women in 2008.

On a similar note, even the Supreme Court of India has recognised the living together of two major unmarried heterogeneous couples in the case Lata Singh v. State of U.P [2] (with the exception of Adultery). A similar approach was taken in the case Khushboo v. Kaniammal[3] where 22 criminal petitioners were filed against a south-indian actress following her comments in a magazine during a survey on premarital sex and she endorsed the concept of live-in relationships. The court cited the example of Radha and Krishna to substantiate its judgement. Furthermore, the Supreme Court in the landmark case Tulsa v. Durgaditya., held that,” when a man and a woman have cohabited for a long period of time they will be considered to be married unless there is an evidence to the contrary[4].This judgment is evidence to the fact that the court has taken an approach in favour of treating live-in relations as marriage. However, on a perverse end, the Delhi High Court in its decision in  Alok Kumar v State case, while dealing with the validity of live in relationship held that ,“Live-in relationship’ is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time.”

Having discussed the legality pertaining to live-in relationships it is quite evident that the position of law in this subject is still unclear and a lot of confusion prevails. This is also the case with regards to the legitimacy of children born out of such relations. The severity is more so because of the vulnerable position that have in the socio-economic sphere. In the present scenario, live-in relationship is not only a socially condemned practice but it has also been criticized legally. The legislature and the judiciary has remained silent on this matter considering the stigma attached to it and in one way shows their reluctance to accept the shift to such volatile and unstable relations in place of a sacramental union of marriage. It is an instrument used to curb the adaption to the western culture and a tool to act as a deterrent so that people do not commit themselves into such union. The sufferers are the innocent children who are born into the world with no clear legal status or security and continue to lead their life with emotional and mental instability. Hence, there is a need to develop laws for the protection of these innocent ones whose security is the state’s responsibility.

 

[1] Malimath Comittee Report, 2003

[2] AIR 2006 SC 2522

[3] .AIR 2010 SC 3196

[4] 2008 SC 1193

Posted in Debatable topics, Marriage and family

Live-in-relationships and the Indian Legal Perspective

Traditionally, the Indian society might have frowned upon live-in relationships. But the growing number of such couples indicates a degree of acceptance. Women, however, are still the losers.

‘Live-in-relationship’ is a living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. There is no marriage between the parties, in the sense of solemnization of a marriage under any law[1]. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without the consent of the other party and one party can walk out at will at any time. Thus, people who  chose to have ‘live-in relationship’ cannot complain of infidelity or immorality.[2]

‘The idea of live-in-relationships may seem to be unique and appealing but in reality the problems likely to arise are many and challenging. The status of the women in such relationship is not that of a wife and lacks social approval or sanctity. Increase in litigation on matters pertaining to maintenance, legitimacy of children, inheritance etc is another area of great concern’.

Legal Status of Female Live-in-Partners and Judicial Approach

The partner of a live-in relationship was first time accorded protection by the Protection of Women from Domestic Violence Act, 2005, which considers females who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife[3]. The Supreme Court in D. Veluswamy v. D. Patchaiammal[4] has opined that the Parliament has drawn a distinction between the relationship of marriage and the relationship in the nature of marriage, and has provided that in either case the person is entitled to benefits under the Protection of Women from Domestic Violence Act, 2005.

The Malimath Committee on Reforms of Criminal Justice System, 2003, made recommendation that the definition of the word ‘wife’ in Section 125 should be amended so as to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage.[5]

In June, 2008, it was recommended by the National Commission for Women to the Ministry of Women and Child Development to include live-in female partners for the right of maintenance under Section 125 of Criminal Procedure Code, 1973. The view was also supported by the judgment in Abhijit Bhikaseth Auti v. State of Maharashtra and Others[6].

A bench of Justices Vikramajit Sen and A.M. Sapre dismissed a petition by a man who claimed that since he was already married before entering into the live-in relationship; his partner could not claim the status of a wife to be legally entitled to maintenance under Hindu Marriage Act.[7]

All that we can observe is, that a live-in-relationship constitutes a distinct class from marriage. The question of legitimacy of child is also directly related to protection of women. On this point apex court in Madan Mohan Singh vs Rajni Kant[8] case said, “The courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years.”

In the absence of legislative framework in relation to relevant subject matter people may get confused due to different approaches of courts. The attempt by judges to fill the vacuum in law sometimes leads to arbitrariness, uncertainty and non-uniform application of law.[9]

The need of the present hour is not to try bringing live-in relationships under the ambit of any existing law but to enact a new different law which would look into the matter of live-in separately and would grant rights and obligations on the part of the couples.

 

[1] Swarupa N. Dholam, Socio-Legal Dimensions of Live-In Relationship in India, MAHARASHTRA JUDICIAL ACADEMY, 2(July 25, 2015), http://mja.gov.in/Site/…/final%20article%20in%20both%20lanuage%20(1).pdf

[2] Alok Kumar  v. State and Another, Crl.M.C. No. 299/2009 (Order dated 09August,2010)

[3] See Section2(f) Domestic Violence Act 2005

 [4] D. Veluswamy v. D. Patchaiammal,  10 SCC, 469, 475(2010)

[5] Report of Justice Malimath Committee on Reforms of Criminal Justice System, MINISTRY OF HOME AFFAIRS (August 21, 2003, 12:30 PM), http:// mha.nic.in/pdfs/criminal_justice_system.pdf, p.197

[6] Abhijit Bhikaseth Auti v. State Of Maharashtra and Others, 3 Cri.LJ, 889, 892(Bom.2009)

[7]Amit Anand Choudhary, Supreme Court Upholds Maintenance for Live-in Partners, THE TIMES OF INDIA (Sept 3,2016, 5:29 PM), http://timesofindia.indiatimes.com/india/Supreme-Court-upholds-maintenance-for-live- in-partners/articleshow/47169351.cms

[8] Madan Mohan Singh vs Rajni Kant,  9 SCC, 209(2010)

[9]J. Venkatesan, Amend Law to Protect Women and Children in Live-In Relationships: Court, THE HINDU, (Sept.3, 2016, 5:27 PM), http://www.thehindu.com/news/national/amend-law-to-protect-women-and-children- in-live in-relationships-court/article5402879.ece

 

AUTHOR

Rashmi Pandey