THE DEVELOPMENT OF HINDU LAW IN INDIA
 NOW IT’S TIME FOR BANGLADESH

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Alif Khan, East West University

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Hindu law, also known as Hinduism law or Dharmasastra, is a complex and ancient legal system that has evolved over thousands of years in the Indian subcontinent. It is based on the religious and moral principles of Hinduism, and encompasses a wide range of legal and social norms that regulate various aspects of life, including family law, property law, inheritance law, and religious and spiritual practices. “Hindu Law has the most ancient pedigree of any known system of Jurisprudence”- Sir Henry Mayne ‘Treaties on Hindu Law and Usages’ There have been numerous codifications of Hindu law over the centuries, including the Manusmriti and the Yajnavalkya Smriti.

However, in modern times, Hindu law in India has been subject to significant reform and reinterpretation, particularly regarding women’s rights, property rights, and other social issues.

In India, Hindu women’s maintenance is governed by various personal laws based on their religion. For Hindu women, the maintenance laws are mainly governed by the Hindu Adoption and Maintenance Act of 1956, which applies to all Hindus, including Sikhs, Jains, and Buddhists. This act provides for the maintenance of wives, children, and dependent parents.

 

Classical Hindu Law in India

Mayne pointed out that even though the scriptures are rather old, the fact that they disagree on practically every topic is a significant obstacle when attempting to determine what the traditional Hindu law was. Mayne observed that there is a lack of consensus among the Western legal scholars residing in India and that the number of texts that disagree with one another on every aspect of the law has increased as a result of the publication of additional literature and its subsequent translation or interpretation. [1]

Hindu Law maintenance and divorce in undivided India

In Undivided India, Hindu Law was known as Anglo-Hindu Law. 1772 marked the beginning of the first phase of Anglo-Hindu law[2] and it lasted till 1864. Between 1828 and 1947, the British British Parliament passed several Acts that added to Anglo-Hindu law. These Acts were political issues rather than religious incidents.[3]

The British somehow tried to change Ancient Hindu Law. They improved some customs and rituals. They announced some laws according to certain circumstances. Historically, in the beginning, the courts looked to the scriptures for guidance on domestic and social norms, and they mainly relied on the pandits’ interpretations of Hindu law.[4]

The Sati Regulation Act, 1829

The British put an end to the ritual of Sati, often known as the burning of widows, which was practiced by some Hindus. That was the first time that the government had intervened in the Hindu religion, and the British considered it to be their first step toward the freedom of Indian women when they passed this act and put it into effect.

But it was not an easy task for the British because it was based on religious text. But they proved it according to orthodox that it was a voluntary act for the widow. Raja Rammohan Rai, on the other hand, said that the Vedas were much more in favor of ascetic widowhood than of sati.[5] This was a great act by The British ruler which put an end to Sati at least on paper.

The Hindu Widows Remarriage Act 1856[6]

According to Shastric Hindu Law, Hindu women do not have the right to remarry. If they lost their husband they became helpless. In ancient times girls used to get married at an early age with aged people so they became a widow at an early age.

Pandit Vidyasagar and others spread the importance of a widow’s remarriage. The law legitimate the Hindu woman’s remarriages.

According to section 2 of the act, it has been stated that after the remarriage of a woman after the second marriage, will be deemed as if she has lost all the property from her previous husband as if she was dead.

But this is totally injustice to Hindu women because they don’t get any property from their deceased husbands. So it is complicated for a Hindu woman because they don’t get any maintenance from the husband’s family so she has no way except marriage.

The Hindu Law of Inheritance (Amendment) Act 1929

This law applies to both Hindu Laws Mitakshara and Dayabhaga school of Hindu law. According to Act Section 2 said that a son’s daughter, a daughter’s daughter, a sister, and a sister’s son have the right to come after a father’s father and before a father’s brother in the order of succession. When a Hindu man dies without sons, his close relatives get more of his property than his distant relatives.[7]

But this law is no longer available; it is known in India as Hindu Succession Act of 1956.

The Hindu Women’s Right to Separate Residence and Maintenance, 1946

In Shastric Hindu, Law marriage is considered a sacrament. So there is no dissolution of Hindu marriage. The Hindu woman was bound to live under the same roof. Again Hindu the law permits polygamy which makes women’s life miserable. For that reason, the British introduced the separate residence Act. Its main reason was to remove Hindu women’s hardship to live with the husband who is not suitable for him.

Section 2 of the Act says, “A Hindu woman who is married has the right to a separate residence and support from her husband for many of the reason”:

  1. If he is suffering from any dreadful disease that he did not contract from her;
  2. If he has been cruel to her in such a way that it is unsafe or undesirable for her to live with him.
  3. If he is guilty of desertion, that is, abandoning her without her consent or against her will;
  4. If he marries again;
  5. If he forces her conversion to another religion;
  6. If he keeps or habitually resides with a concubine;
  7. For any other justifiable reason.[8]

1. Hindu women’s maintenance in India

After getting independence from the British they developed their law so much. They enriched their law so perfectly. Now they have a strong law upon Hindu womens maintenance. They made their law strong with various amendments according to need.

The Hindu Marriage Disabilities Removal Act, 1946[9]

There was a huge problem among Hindus that they could not marry among the same gotta or pravara. This act helps the Hindus to make their marriage valid and legitimate for their children. This act’s vision was to validate a marriage whatever the cast or custom is.

Anglo-Mohammedan and Anglo-Hindu Law- Revisiting Colonial Codification

Shahnaz Huda (Desai)

2. Maintenance Related case Law in India

Within a short period Hindu Law developed in India rapidly. They announced some law and they got various judicial precedents from their case law. Now I am trying to discuss some case law regarding maintenance.

6.1 Badshah V Urmila Godse [10]

Fact:

    • The petitioner and respondent were married at Devgad Temple in Hivargav-Pavsa on February 10, 2005, according to Hindu Marriage traditional rituals.
    • She got pregnant and then a woman came and claimed she was the petitioner’s wife.
    • The Trial Court granted maintenance to respondent No. 1 at the rate of Rs. 1000/- per month and to respondent No. 2 at the rate of Rs. 500/- per month, respectively.
    • The petitioner filed an appeal with the Bombay High Court of Judicature, which affirmed the lower court’s decision and issued an order dated 28 February 2013. The petitioner filed a petition for special leave to appeal against the judgment and order of the Bombay High Court with the Supreme Court of India.

Issue:

    • Whether the respondent and petitioner’s marriage was legally valid and if she was the petitioner’s wife?
    • Is the respondent eligible for maintenance under Section 125 of the Criminal Procedure Code?

Judgment:

The Supreme Court said that the marriage between the two people had been proven, but the petitioner was already married, but he lied to the respondent by not telling him about the alleged first marriage.

The court said that for the purposes of Section 125 of the Criminal Procedure Code, the respondent would be treated as the petitioner’s wife, and that the petitioner couldn’t use his own mistake to keep the respondent from getting maintenance.

Conclusion:

The court has passed a significant judgment in this case. The wife is fully entitled to maintenance.

Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636[11]

Fact:

    • The appellant married respondent 2 in 1994.
    • Respondent no. 2 then tortured and ill-treated her.
    • The appellant gave birth to a child
    • The person who filed the appeal found out that he was having an affair with someone named Veenaben.
    • The appellant was living apart from the respondent no. 2 and filed an application for maintenance under section 125 of the Criminal Procedure Code.
    • The child’s support went up from 350/- to 500/- per month. So, the appeal was filed by the appellant.

Issue:

Whether the appellant is allowed to ask for maintenance?

Whether the amount of maintenance can be increased?

Judgment:

According to section 125 of the Criminal Procedure Code, the word “wife” should refer to a woman who is legally married. According to the Hindu Marriage Act of 1955, a marriage between a woman and a man that doesn’t follows Hindu rites is a complete invalid in the eyes of the law. It is unclear how this affects section 125 of the Criminal Procedure Code, and giving maintenance to such a woman would go against the law.

The amount of maintenance will go up from 500 rupees to 850 rupees. Since the Civil Procedure Code was changed in 2001, there are no limits on the amount of maintenance. This means that the appeal is over.

Conclusion:

In conclusion, we can say that a valid marriage is entitled to maintenance and its issues also.

 

Hindu women’s divorced right in India

In India, the laws about divorce for Hindu women have changed a lot in the last few years. The Hindu Marriage Act, which was passed in 1955, says how Hindus in India, both men and women, can get a divorce.

Under the act, a Hindu woman can ask for a divorce for reasons like cruelty, adultery, being left alone, converting to another religion, or having a mental illness that can’t be cured. The law also lets people get divorced if they both want to.[12]

Hindu woman seeking divorce

A Hindu woman who wants to get a divorce must file a petition with the family court in the district where she lives or where she and her husband last lived together. The court will then send a notice to the husband, and both sides will have a chance to tell the court what they think should happen. If the court is sure that the reasons for divorce are true, it can issue a divorce decree.

Types of Divorce in India

In Hinduism, a woman has the right to seek a divorce through several legal channels, including:

Mutual Consent Divorce: A Hindu woman can ask for a divorce if both she and her husband agree that the marriage should end. Most of the time, this process is quick and easy.

Divorce by Desertion: A wife can file for a divorce on the grounds of desertion if her husband has left her for at least two years.

Divorce for Cruelty: If the husband has been cruel or annoying to his wife, she can ask for a divorce for cruelty.

Divorce for Adultery: If the husband has been unfaithful, the wife can ask for a divorce for adultery.

Divorce by Conversion: If the husband has changed religions, the wife can ask for a divorce on the grounds that the husband has changed religions.

In some parts of Hindu society, especially for women, divorce is still seen as a bad thing. But the law says that women have the right to get a divorce and move on from a bad marriage.

 

Divorce related cases in India

India has developed their religious related law according to their need. As we know according to Hindu law marriage is a sacrament and indissoluble among the couple. But later they come to know that religious development and divorce is necessary. So they introduced divorce in their legal system which was based on modern law.

Sarla Mudgal, President, Kalyani and Ors. Vs. Union of India (UOI) and Ors.[13]

Fact:

    • The case has two petitioners. Petitioner 1 is the president of “KALYANI,” a registered society that helps poor families and women.
    • Jitender Mathur married Meena Mathur on February 27, 1978. They had three children.
    • In early 1988, the petitioner discovered that her spouse had married Sunita Narula. They married after becoming Muslims.
    • The petitioner claimed her spouse converted to Islam to marry Sunita and evade Section 494, IPC. Jitender Mathur claims he can have four wives after converting to Islam, even if his first wife is Hindu.
    • Sunita alias Fathima filed the 1990 Writ Petition 347. She claims that she and former Meena Mathur husband Jitender Mathur converted to Islam and married.
    • She had a son. After marrying her, Jitender Mathur had returned to Hinduism and would support his first wife and three children.
    • She’s upset that she’s Muslim, unsupported by her husband, and unprotected by personal laws.
    • On November 13, 1988, Geeta Rani married Pradeep Kumar in Hindu ceremonies. The petition claims her spouse abused her.
    • The petitioner in December 1991 that Pradeep Kumar ran away with Deepa and married her after converting to Islam.
    • The conversion to Islam was for the second marriage.
    • Another unfortunate petitioner is Sushmita Ghosh. She married G.C. Ghosh in Hindu ceremonies on May 10,1984. On April 20, 1992, the husband told her he no longer wanted to live with her and suggested a consensual divorce.
    • The petitioner was astonished and prayed that she was her lawfully wedded wife and wished to live with him, thus avoiding divorce.
    • The husband said he had converted to Islam and would marry Vinita Gupta. He received a Qazi certificate on June 17,1992.
    • The petitioner further requested that her husband not marry Vinita Gupta again in the writ petition.

Issues:

    • Can a Hindu husband who got married under Hindu law and then became Muslim get married again?
    • How would the first wife, who is still Hindu, feel about this marriage if the first marriage hadn’t been legally dissolved?
    • If the husband left his wife, would he be breaking Section 494 of the Indian Penal Code (IPC)?

Judgment:

In order to answer the question of whether a second marriage is legal, the court said that

A marriage can only be ended by a decree of divorce for any of the reasons listed in Section 13 of the Hindu Marriage Act, and a marriage that breaks any of the rules in clauses (I), (iv), and (v) of Section 5 is invalid.

That is, a marriage done while the spouse is still alive is not valid.

When a divorce decree ends a marriage, the person can marry again, and they have no right to appeal the decree once the time to appeal has passed.

Taking all of these legal points into account, the court came to the conclusion that the Hindu Marriage Act enforces strict monogamy. Under Hindu law, a marriage can’t be broken up for any reason other than those listed in sec. 13. So, the husband and the first wife are still married, and the Act says that the second marriage is against the law. The apostate’s second marriage would be against the law because of this.

The Hon’ble Supreme Court said that the word “void” as it is used in Section 11 of the Act doesn’t mean as much as it does in Section 494 of the Indian Penal Code. Changing to another religion wouldn’t be enough to end a Hindu marriage on its own. Before the first marriage is over, neither partner can get married again. If the second marriage is allowed, it would go against the spirit of the Act. The Hindu husband’s second marriage would go against the principles of justice, fairness, and good conscience. This would also be against S. 494 IPC.

Conclusion:

It gave a positive way to look at the ideas of apostasy and bigamy and gave a new meaning to the word “void” in Section 494 of the IPC. The way Section 494 of the Indian Penal Code was interpreted was meant to help the cause of justice. Just like there needs to be harmony between the two groups of people.
(“Case Analysis: Sarla Mudgal v/s Union Of India”)

We have analyzed that in India they have improved their law a lot but in Bangladesh, we are far away but it’s a hope that we are not relaxed. We are trying to improve it and researching it on a daily basis.


[1] John Dawson Mayne (1910), A Treatise on Hindu Law and Usage at Google Books, Stevens and Hynes, Harvard Law Library Series
[2] Rosane Rocher, “The creation of Anglo-Hindu law” in Lubin, Davis & Krishnan, Hinduism and Law (2010), p. 78, doi:10.1017/CBO9780511781674.008
[3] Cohn, Colonialism and Its Forms of Knowledge (1996), Ch. 3
[4] Bengal Regulation XVII of 1829.
[5] Mani, Hindu law
[6] “Contentious Traditions: The Debate on SATI in Colonial India” in Culture and Critique
Act No. XV of 1856, BC, at p. 17-18.
[7] Mayne’s Treatise on Hindu Law & Usage, Bharat law House: New Delhi, 1995, at p. 59
[8] http://bdlaws.minlaw.gov.bd/act-214/section-2714.html
[9] Act No. XXVII of 1946, PC, Vol. 10, at pp.309-310.
[10] (2014) 1 SCC 188
[11] (2005) 3 SCC 636
[12]Based on The Hindu marriage Act, 1955
[13] AIR 1995 SC 1531


Reference


“Badshah vs. Urmila Badshah Godse Case Summary 2014.” Law Planet, 15 April 2022, https://lawplanet.in/badshah-vs-urmila-badshah-godse/. Accessed 19 March 2023.

“Case Analysis: Sarla Mudgal v/s Union Of India.” Legal Service India, https://legalserviceindia.com/legal/article-9651-case-analysis-sarla-mudgal-v-s-union-of-india.html. Accessed 20 March 2023.

Desai, Sunderlal T. “Anglo-Mohammedan law and Anglo-Hindu Law– Revisiting Colonial Codification.” Bangladesh Institute of Law and International Affairs (BILIA), https://www.biliabd.org/wp-content/uploads/2021/08/Shahnaz-Huda.pdf. Accessed 25 March 2023.

“The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946 | 2.Grounds for claiming separate residence and maintenance.” Laws of Bangladesh, http://bdlaws.minlaw.gov.bd/act-214/section-2714.html. Accessed 25 March 2023.

Pennington, Brian K., and Department of Humanities Maryville College Brian K. Pennington Associate Professor of Religion. Was Hinduism Invented? Britons, Indians, and the Colonial Construction of Religion. Oxford University Press, 2005. Accessed 25 March 2023.

Shetty, K. “Smt. Sureshta Devi vs Om Prakash on 7 February, 1991.” Indian Kanoon, https://indiankanoon.org/doc/965482/. Accessed 20 March 2023.

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