This article has been authored by Shivani Shrivas, student at Hidayutullah National Law University, Raipur.
Modern Hindu Law is one of the well-known personal laws in the world. Hindu law is a derivative of Anglo-Hindu Law, which was established in India during the British colonial era and is similar to the practice of Classical Hindu Law. Hindus were governed[i] by these personal laws and customs that were found in ‘Shruti’ consisting of the four Vedas and ‘Smritis’ consisting of lessons and teachings passed down through generations. The personal laws dealt with a variety of cases, including succession, marriage and divorce, co-parenting, family property division, sons' responsibilities to pay their father's loans, custody, upkeep, and socio - religious contributions. Hence, the personal laws indulged with the code of conduct, responsibilities and violations related to personal matters in the Hindu community.
As the laws of Classical Hindu Law were very old and customary, there have been quite a few changes in these laws as legislations came up to correspond to the change in moralities and modern requirements. The laws related to Hindu marriages in Modern Hindu Law have gone a drastic change through the years in relation with the new standards of life. Though the Hindu Law still has a record of all the provisions, marriage laws have been explicitly formalized in various acts applicable to individuals in different religions.
The following analysis discusses how Indian legislation provided for the liberalization of Hindu marriages, particularly in respect to child marriages, inter-caste marriages and inter-religion marriages. Further another important aspect of Indian marriages is looked upon in this article, much needed in these modern times for a step towards gender equality and female welfare, that is the criminalization of marital rape.
Inter Caste and Inter Religion Marriages
By Hindu law, marriages are considered to be a sacrament and not a contract. To manage and govern the terms of Hindu marriages, the Hindu Marriage Act was sanctioned in 1955. The act's key goal was to reform and codify the regulations governing marriage between Hindus, instilling law uniformity among all section of Hindus. According to it, every Hindu is eligible for marriage, with only few prohibitions based on Caste, Gotra, religion and blood relationships. The prohibitions took the rules of endogamy and exogamy in account.
Caste is a major part of Hindu community, dividing Hindus in four categories based on role in the society: Brahmin, Kshatriya, Vaishya and Shudra. Those who did not belong to these four castes were considered outcasts and ‘untouchables’. The caste system was further diversified by adding ‘Jatis’ as sub-divisions, loosely based on the occupation of its clan. Though inter-caste and inter-sub-caste marriages are not prohibited by the Hindu Marriage Act, these marriages were frowned upon considering the aversion to endogamy i.e., marriage of two individuals from different kinds. As a result of the rigid caste system and communalism of India, it was customary to condemn inter-caste marriage and it further became the norm to terrorize and even kill couples who attempted such marriages in the name of ‘honor’ killing. However, it is worth noting that inter caste marriages are also valid through other acts such as the Arya Marriages Validating Act, 1937 and Hindu Marriage Validity Act, 1949.
While discussing inter religion marriages, one should know that the Hindu Law considers people from Hinduism, Buddhism, Jainism and Sikhism to be Hindus. Hence, marriages between these religions are considered valid as being between two Hindus as illustrated by the case of a marriage between a Hindu and a Sikh Lata Singh v. State of Uttar Pradesh[ii]. However, The Hindu Marriage Act deems marriages between a Hindu and a non-Hindu to be not possible, and are considered void if completed in India. It is to be noted that if the marriage is performed in a foreign country, it would be valid if the lex loci allows it. The Hindu Law does not provide clear guidelines so as to forbid the marriage between a Hindu and a Non-Hindu[iii]. This not only induces confusion but also opens windows for several anomalies.
The prohibition on inter-religion marriages interferes with the right of personal liberty and choice as granted by Article 21 of the Indian Constitution, depriving individuals with their right to marry and choose their own spouse and life partner. Thus, to provide remedies against such restrictions and cut short the need of finding loopholes in the Hindu Marriage Act, the Special Marriage Act was passed in 1954 that allows Indian citizens and Indian nationals in other countries to register their marriage, regardless of religion or faith practiced by either of the people marrying; thus, inter-religion marriages of Hindus are given perfect validity.
Thus, in order for individuals to maintain their liberty, the initial laws of Modern Hindu Law were overruled by various acts to allow, legalize, and validate inter-caste and inter-religion marriages by preference. The Special Marriage act was crafted carefully for such marriages, applying on all Indian citizens unlike the Hindu Marriage Act that solely applies on Hindu.
Child Marriages and Marital Rape
Child marriages are a social evil that still pertains in India. Many argue that child marriages constitute a violation of the human rights of children being a form of cruelty that deprives children of childhood. Child marriages tend to interfere with education and makes children vulnerable to crime, harassment and discrimination.
According to the Hindu Law, there is no prohibition of child marriages as such. In the British Raj India, child marriages were very common, and steps were being taken to make it child marriage a punishable offence. After a particular brutal case where an 11-year-old girl died as a result of injuries sustained after a sexual encounter with her 35-year-old husband[iv], the need of making child marriages illegal was realized. To start off the condemnation of child marriages, the sexual intercourse between husband and wife of less than 10 years of age was made a criminal offense in 1846. The minimum age of consent gradually kept on increasing till 13 years of age in 1929.
Ultimately, the Child Marriage (Restraint) Act was passed in 1929 to specify the minimum age of marriage (15 for girls and 18 years for boys), making child marriage and its solemnization a punishable offence. Through the case of Sushila Gothala vs State of Rajasthan And Ors.[v] the minimum age of marriage was amended to be 18 years for girls and 21 years for boys.
It is to be noted that child marriages were deemed neither void nor voidable, but completely valid once performed. The Child Marriage Restraint Act, 1929 did not alter this issue, neither did the following Hindu Marriages Act, 1955. This rendered even the marriages in the violation of this act, perfectly valid.
Major reforms in this regard were brought about by the Prohibition of Child Marriages Act, 2006. Firstly, the act is secular, hence applying to not only Hindus but also to other individuals regardless of their religion. This act specifies the definition of ‘child’ to be female under 18 years and males under 21 years. This act also rendered child marriages to be voidable and, in some cases, void. The act renders the marriage voidable at the option of the party which was a ‘child’ when it was performed. Additionally, the act includes provisions of maintenance of female spouse of such marriages. In the case of Bhagwati alias Reena v. Anil Choubey[vi], it was held by the court that only the minor can apply for annulment of a child marriage, even if the husband (major at the time) was made to enter the marriage under coercion.
While this act attempts to prevent child marriages, it does not prohibit them completely. Children, especially girls, face numerous obstacles in obtaining an annulment. Many children who are coerced into marriage are unaware of their rights and the possibility of having the marriage declared null and void. And if a child is conscious, there are significant cultural, familial, and financial barriers to contacting authorities. In addition, children lack the financial means to enter the justice system. Furthermore, a child may lack the necessary paperwork to show their age or marriage. As a result, only a small percentage of children are able to get their marriages annulled. Hence, while the Prohibition of Child Marriages Act is a step towards reducing child marriages, it is in no way adequate nor the complete solution.
The physical relationship between the husband and the girl, as well as childbearing, are the primary effects of child marriage. These effects should be seen in light of Section 375 of the Indian Penal Code, 1860, (‘IPC’) which makes sexual intercourse with a woman, with or without consent, a rape offence in certain circumstances. It is to be considered that sexual intercourse with a girl below 18 years, with or without consent, is considered to be statutory rape, however, if the said girl is to be married with the offender and above the age of 15 years, that is not considered rape at all under Exception 2. This anomaly in the IPC allows sexual offenders under the veil of marriage, go unscathed. Since child marriages are very well valid unless challenged by the minor, this also takes away the right of accusing and punishing the violator.
However, the Supreme Court gave a landmark judgement in this regard. In the case of Independent Thought Vs. Union of India (UOI) and Ors.[vii] where the accused was convicted under the offence of rape of his wife aged between 15 and 18 years of age. The Court emphasized that a child is a child irrespective of being married or not, and hence, shall be protected against such injustice. This sparked another discussion about the prohibition of child marriages.
Marital rape itself is a very debated topic in contemporary India, not being a punishable offence. Section 9 of the Hindu Marriage Act, 1955, which has been extensively discussed for years and allows a spouse to lawfully claim sexual access to his or her partner, is almost often used against married women in cases of marital rape to restore cohabitation. This ‘anomaly’ in the section 376 of the IPC works as a violation of female human rights, and encourages the mentality that women are ‘possessions’ of their husbands, to be at their disposal. While this is much of a human rights agenda, marital rape finds its roots back in the customs and traditions on Hindu culture, wherein women were not even allowed to live after their husband’s death, until after the practice of Sati was legally banned in 1829. This points out that how there are many struggles to achieve gender equality, in the society and in the law. Both the Modern Hindu law and the general law of the country need improvement to uplift women and instill equality.
The Modern Hindu Law is based on Hindu customs, practices and traditions. It follows what have been preached as its ideals and teaching. However, like every other law, Hindu personal law has been increasingly maturing and changing since it was codified in the post-independence era. In the laws regarding marriages, there have been several improvements that has corresponded to the need of the hour.
To facilitate inter caste and inter religion marriages, the Special Marriage Act was sanctioned in 1954, to be applicable on all Indians irrespective of their religions, class or caste. While it clashes with the principles of endogamy and exogamy based on which these marriages were prohibited in the Hindu Personal Law, this act makes the freedom of choice and liberty of the citizens more accessible to them.
In the concern of Child Marriages, though the marriages are not completely prevented or rendered void, steps have been taken in that direction through the Prohibition of Child Marriages Act, 2006. However, the laws and system are still much lacking to protect females from the adversities and injustices faced as a consequence of child marriages, remedies against marital rape being one of the issues that need immediate attention.
Though at a slow pace, Hindu laws have been liberalized through enactment of other acts and statutes. Gender equality, even in the sacred institution of marriage, is far from being accomplished, as Hinduism follows deeply patriarchal customs. Hence, there is still a long way to the road of liberalization of Hindu laws, to ensure complete eradication of discrimination, injustices and anomalies within its code.
[i] Diwan, Paras. 2020. Modern Hindu Law: Codified and Uncodified. Twenty-Fourth Faridabad: Allahabad Law Agency. [ii] 1950 ME 1 [iii] Dubey v. Dubey, 1951 All 529 at 540 [iv] Queen v. Haree Mohan Mythee, ILR 1891 Cal 49 [v] AIR 1995 Raj 90 [vi] 2017 SC 1957 [vii] AIR2017SC4904