MARRIAGE, DIVORCE AND DOWER
INTRODUCTION
Prohibited degrees.- The horror of incest which, almost
without exception, is said to be a characteristic of the human race, lies at
the root of the prohibitions against intermarriage. But the degrees within which intercourse is forbidden vary to a
considerable extent, and nowhere more so than amongst agricultural tribes in
this Province. It has been pointed out
by Westermarck in his learned book on the History of Marriage, a book which is
destined to supersede many of the conclusions of such writers as Morgan, Tyler,
Lubbock and others on several important questions concerning the origin and
development of human marriage, that the extent to which, among various nations,
relatives are not allowed to intermarry, is nearly connected with their close
living together.
Hindus. - This is an extremely interesting
explanation, and the fact, admitted by Dr. Tyler, that statistical data seem to
establish a strong coincidence between the classificatory system of relationship and exogamy, would lend
confirmation to the theory. Such a
coincidence is certainly to be found existing among the superior castes of
orthodox Hindus, whose large family households have rendered the introduction
of the paternal and maternal got system of prohibitive degrees a social
necessity. So also in regard to Hindu
agricultural tribes the same system, with some modifications, generally
prevails.
Muhammadans.- Amongst Muhammadans, those who are
strict in their religious observances naturally adhere to the prohibitive
degrees prescribed by the Shara, which are themselves restricted within limits
which the nomadic tent-life of the Arbas obviously engendered for the sake of
the purity of the home. On the other
hand, those who are converts from Hinduism not unfrequently retain the customs
of the families to which they originally belonged, and are found to practise
exogamy or endogamy according as the got system had or had not been relaxed by
those families, and the prohibitive degrees vary as one or the other practice
obtains among them. The tendency,
however, is everywhere as civilization advances to narrow the inner limit
within which a man or woman must not marry, and to widen the outer limit within
which he or she may marry.
The got system in its original comprehensive
character as embracing within its fold not only the agnatic descendants of the
patriarchal founder, but the descendants of all those who had placed themselves
under the protection or leadership of that founder within the one cattlepen or
enclosure, and who may be said to have constituted, in the Vedic sense of the
expression, a “collection of cows”
bears a strong analogy to the Roman gens to which attention has often
been called. This gentile character of
the Hindu gotra may also explain what might otherwise appear strange and
confusing, that a Brahmin, a Kshatriya, a Vaisa or a Sudra may belong, as often
happens, to a gotra of the same name, a fact which suggests the inference that each
of these persons is a descendant of an ancestor who at some remote period
beyond human memory belonged to the same “patriarchal cell” which was founded
by the common spiritual teacher or patriarchal chief at a time perhaps when
there was no law to prohibit the different classes of the people from living
together, or from eating and drinking together. But in modern time gotras sub-divide, and within this
sub-division we frequently find, as amongst Punchzati Khatris, that the
prohibited degrees are narrowed, following in this respect the tendency to
which reference has already been made.
Each sub-division becomes as it were an independent group having gotra
of its own.
Grewal Jats.- The popular history of the Grewal
Jats of Ludhiana affords a remarkable instance of this. The founder of this Jat tribe, having
married a Jatni of presumably lower tribe, was outcasted by his brethren, and
he thereupon established a got of his own, which he called after his son, and
his descendants, having gradually spread over the country and gained influence,
the Grewals rose in importance, until at the present day they admittedly stand
at the top of the social scale amongst the Jat gots (Tupper’s Customary Law,
Vol.V, p.7). Another instance may be mentioned applicable to the
Dhai and Char Ghar Khatris. Three of
these – Kapurs, Khannas and Malhotras – have the same gotra (Kaushal), but each
ghar or sub-division constitutes and independent group, and intermarriages
between these sub-divisions are allowable.
Ordinarily, if the circumstances can
justify such a course, the presumption should be in favour of validity of
marriage (A.I.R.1934 Lah.550).
70. Essentials
of valid marriage. - A
marriage to be legally binding must fulfil the following conditions :-
(a)
Prohibited
degrees. - The
parties must not be related to each other within the prohibited degrees of
consanguinity, which include -
(I)
Amongst
orthodox Hindus. –
The female descendants within the seventh degree (inclusive) from the father,
paternal grandfather, and the rest; and the female descendants as far as the
fifth degree (inclusive) from the maternal grandfather, and the rest; also the
female descendants within the seventh degree (inclusive) from the father’s
cognates (or bandhus), and their six ancestors through whom those females are
related; and also the female descendants as far as the fifth degree (inclusive)
from the mother’s bandhus, and their four ancestors through whom they are
related.
Authorities.
Vyavastha Chandrika, Vol.II, page
457; Vyavashta Darpana, page 659. See
on this subject Mayne’s Hindu Law (6th ed.), section 86, 87, 88;
Ghose’s Hindu Law, page 678, etc. Seq.
ILLUSTRATION.
A
mother, sister, father’s sister, mother’s sister, brother’s daughter, mother’s
sister’s daughter, father’s brother’s daughter are within the prohibited
degrees.
Marriage with a mother’s brother’s daughter,
father’s sister’s daughter, or sister’s daughter is allowable according to the
modern practice of certain schools.
(See Cunningham’s Digest, pages 33-34).
But the validity of the marriage with a half-sister’s daughter has been
doubted by the Privy Council (L.R.VII Ind.App.177). A marriage between a Hindu and the daughter of his wife’s sister
has been held valid in Madras (Ragavendra Rau V. Jayaram Rau, I.L.R.XX
Mad.283). It is, however, questionable
if Hindu custom in this Province would sanction such marriages.
In A.I.R. 1946 Bom.377, 48 Bom. L.R.
196, it has been held by the Bombay High Court that a marriage between sagotras
is invalid under the Hindu Law as it is prohibited according to the smriti
writers and recognised commentators.
But custom is a recognised source of Hindu Law, and if there is a custom
proved recognizing the validity of such a marriage it would to that extent
modify the ordinary Hindu Law. Long
established usages existing in particular districts and families have to be
given effect; but it is of the essence of special usages that they should be
ancient and invariable and should be established to be so by clear and unambiguous
evidence. When general opinion is
conflicting it has little value, but when that evidence is all one-sided, the
Courts would accept that evidence and act upon the same. The necessary proof in each case will depend on the nature of
the custom alleged, and the want of instances or paucity thereof does not
prevent the Court from upholding the custom, if there is a general consensus of
opinion of persons who are likely to know of its existence, particularly when the evidence is all in one
direction. What is necessary to be proved is that the usage has been acted
upon in practice for such a long period and with such invariability as to show
that has, by common consent, been submitted to as the established governing
rule of the particular district.
(2)
Amongst
Hindu Agriculturists.- All females of the same got as the bridegroom, and, amongst may tribes,
also, females of his mother’s, father’s mother’s and mother’s mother’s got.
Authorities.
Tupper’s Customary Law, Vol.II, page
120; Vol. IV, page 95; Vol. V, page 46.
See Rose’s Compendium of Punjab Customary Law, page 10. But see among Sudras, No. 80 P.R. 1917.
Remark.
Jats : Custom applied.- An
adoption with religious ceremonies establishes consanguinity between the
adopted son and the females of both the natural and adopted families (1 Strange
H.L.41). But a customary appointment as
heir produces no such artificial effects.
“It is urged that a marriage between a man and his nephew’s widow is not
allowed by Hindu Law. This may be so,
but the parties are Jat agriculturists, and it is custom and not Hindu Law
which must be held to govern the case,” 1920, 2 Lah. L.J.370.
3.
Amongst
Muhammadans. – A
mother, step-mother, paternal or maternal grandmother how high so-ever,
daughter, grand-daughter, how low soever, sister of the whole or half-blood,
paternal or maternal aunts, brother’s or sister’s daughter of the whole or
half-blood, mother-in-law, daughter or grand-daughter of enjoyed wife, son’s or
son’s son’s wife, daughter’s son’s wife, foster-mother, or any other female
related by fosterage.
Authorities.
Tagore
Law Lectures for 1873, page 307; Wilson’s Digest of Anglo Muhammadan Law, 2nd
edition, paras 34-38. The rule applies
even when there has been no consummation (No. 16 P.R.1917).
Marriage with wife’s sister.- Under the Muhammadan Law governing the Hanafi
sect, marriage with wife’s sister during the subsistence of the previous marriage
with her sister, is only invalid (fasid) and not void (batil), and the issue of
such marriage is legitimate and inherits the father’s property; A.I.R. 1930
Lah. 907; 1930, 12 Lah. 52, (and the
cases there cited).
Marriage merely invalid and not void
ab initio- Under
the Muhammadan Law a Muhammadan male may contract a valid marriage with a
Muhammadan woman or with the Kitabia, i.e. Christian or a Jewess, but not with
an idolatress or a fire worshipper but if he does marry an idolatress or a fire
worshipper the marriage is not void ab initio (batil) but merely invalid
(fasid) for she might at any time become a Muslim, Christian or Jew, which
would have the effect of validating the marriage. The issue of such union are
legitimate, Amir Ali’s Handbook of Muhammadan Law, pp. 74, 100, 101; A.I.R.
1928 Pat. 19: 103 Ind. Cas. 430 (Pat) About Zoroastrianism there is a
difference of opinion; some of the jurists hold it to be one of the “revealed”
faiths; others hold it to be the same as Magianism or fire worship).
A
Muhammadan husband can divorce a Kitabia by talak under the Muhammadan Law;
A.I.R. 1935 Bom. 5 : 59 Bom. 278 (Held that when a Christian woman marries a
Muhammadan in Scotland and she subsequently becomes a Muhammadan, and the
parties are domiciled in India, and the husband divorces her by pronouncing
talak, the marriage is legally dissolved.
(b) They must belong to castes between which
inter-castes marriages are permitted.
Authorities.
Hindu : customary forms of marriage.- No. 1233 of 1869. Compare No. 9 W.R. 552 and No. 64 P.L.R.
1908, where the subject is elaborately discussed. The Hindu Law recognizes custom as a matter of paramount importance,
and custom, if it is established, can override the written law. There may, therefore, be customary forms of
marriage which are perfectly valid and which do not strictly come within the
definition of any of the approved forms of marriage mentioned in the
Mitakshara; A.I.R.1926 All.1; 90 Ind. Cas. 358, (Allahabad).
Marriage by chadar-dnazi.- A marriage by chadar-andazi is
not a marriage in one of the approved
forms; A.I.R.1927 Lah. 441: 8 Lah. 366 at p.371.
ILLUSTRATIONS :-
1.
Inter-marriages:
instances. - A Jat
Jagirdar cannot ordinarily marry a Brahmin woman. But see No. 50 P.R. 1900, where it was fond that a Karewa
marriage between a Hindu Jat and a
Brahmin woman was valid; No.73 P.R. 1897, where it was held that issue of a
permanent union between a Jat and a woman of the Nai Jhiwar or Kalal class
where legitimate; and No. 79 P.R. 1910, where it was held that a marriage
between a Jat and a Koli woman was valid.
A marriage between a Khatri and a Brahmin woman is not valid under Hindu
Law; A.I.R. 1924 Lah. 243: 73 I.C. 239 (distinguishing 50 P.R. 1900 ante.)
2.
A
sunni Muhammadan may marry a Shiah woman.
3.
A
Sodi can marry a Khatri woman.
4.
A
Bujju Rajput cannot marry a Brahmin woman (No. 29 P.R. 1883), nor can a Diawani
Rajput marry such a woman (No. 57 P.R. 1893).
5.
But
a Brahmin may marry a Rajputani (No.48 P.R. 1890).
6.
A
Sayad woman may marry a Panja Shahi fakir (No. 101 P.R. 1886).
7.
A
Varaich Jat cannot marry a Muhammadan woman (No. 87 P.R. 1898). But as to this see page 370 (2nd
para) of P.R. 1913.
8.
A
Khatri cannot marry a Khatrani widow (No. 52 P.R.1899). But cf. No. 49 P.R. 1903 as to the effect of
Act XV of 1856 in such cases. See also
as to this No. 4 P.R. 1905 and No. 61 P.R. 1905. In No. 72 P.R. 1908 a marriage between a Rajput and a Khatrani
was held t be valid, and in No. 57 P.R. 1909 a chadar-andazi marriage between a
Mihnas Rajput and a Mahajan woman of the Gujrat District