Hindu Men, Monogamy and Uniform Civil Code

Author(s): Flavia Agnes

Source: Economic and Political Weekly, Vol. 30, No. 50 (Dec. 16, 1995), pp. 3238-3244
Published by: Economic and Political Weekly
Stable URL: http://www.jstor.org/stable/4403569
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 Hindu Men, Monogamy and Uniform Civil Code
FlaviaAgnes

The Hindu Marriage Act, 1955 transformed a Hindu marriagefrom an ancient and vedic 'sanskara ' or sacranment
to a modern and dissoluble contract. It also introduced for the first time the principle of monogamy. Little
attempt has been m1lade however, to rectify numnerous lacunae in the act which provide anmple scope for a Hindu
mant to escape both from the criminal consequences of a bigamous marriage andfrom the economic responsibility
towards the second wife.

I is as follows: Hindus - 5.06 per cent, Muslims ceremonies of performing pat were described
Debate Circumvents Basic Issue - 4.31 per cent and Tribals - 17.98 per cent. in detail: "A carpet was spread, and the bride
No thought oreffort was directed to rectify and groom sat on two separate pats (low
THE recent Supreme Court directive in the the lacunae of the act, which transformed a wooden stools) besides each other. A copper
Sarla Mudgal case' has strengthened the Hindu marriage from an ancient and vedic ('tambya') pitcher, on which betel leaves
arms of the Hindutva forces, whose main 'sanskar' or sacrament to a modern, and and coconut were kept was brought and
political plank in the forthcoming elections dissoluble contract. The contract was not there was chanting ot'hymns and the couple
will be the uniform civil code. The media required to be registered and all customary exchanged garlands, then they struck each
publicity -following the judgment seems to forms as well as 'shastric' rituals were other's forehead." The father or the maternal
have sidetracked the basic issue, i e, bigamy acknowledged by the act as valid forms of uncle of the bride facilitates the striking of
by Hindu men. Hence the various 'solemnising' it. (see Appendix forthevarious the forehead. This ceremony completes a
presumptions made by the judgment have legal provisions on this issue.) gandharva marriage.
remained unaddressed, some of which are Since the act recognised all customary One witness who had attended two other
listed below:. marriages in the gandharva form testified:
forms of marriage and divorce, the uniformity
(i) Hindu marriages are monogamous in among Hindus was a legal fiction created by Formerly a brahmin priest from the
nature; the act. The ambiguity of the act provided neighbouring Kasara or Dhardana came and
(ii) The judiciary has consistently and ample scope for a Hindu man to escape both chanted the 'mangal ashtak'. The presence
systematically upheld the principle of trom thecriminal consequences of abigamous of a 'thakur', a brahmin and a barber was
monogamy among Hindus by penalising marriage and from theeconomic responsibility required. Butinrecent times, itwasbecoming
the errant husbands; towards the second wife. Prior to the act, difficult and expensive to secure the presence
(iii) The only breach of monogamy among since polygamy was validated by the ancient of a brahmin and a thatkur from the
Hindus is by conversion to Islam. To Hindu law and customs, women in bigamous neighbouring community and the community
quote from the judgment, "....there is marriages had a right of residence and performed the ceremony only with the help
an open inducement to a Hindu husband, maintenance. By introducing monogamy, of the barber.
who waints to enter into a second women in bigamous relationships lost their The first wife pleaded that a person going
mlarriage to become a Muslim..." right to maintenance, legitimacy and through arny form of marriage during the
(iv) A uniform civil code will plug this respectaibility, lifetime of his wife would be guilty of the
loophole and aimel oriate the sulffcrings offence and all the ceremonies of a Hindu
of Hindu women: marriage need not be strictly proved. The trial
(v) All thefourpetitions which thejudgment Apex Court Sets Seal on Monogamy court convicted the husband and the second
dealt with were filed by women whose wife. This was upheld by the sessions court
hushands had converted to Islamn and The loopholes created by the act are only and the high court. At the final appeal, the
remarried: and a prelitniniary concernl of this article. The Supreme Court acquitted the husband and
(vi) Botth the judges who hear-d the matter maijor thrust is to cQunter the presumptions held that the marriage was not performed in
advocated enforcement ol a uniform - the judiciary has strictly upheld the principle according with the requirements of the law
civil code on a priority baisis as the only olinonogamy among Hindus; conversion to and hence it was not solemnised.
remedy to coiversionl and bigamy by [slam is the only avenue left for Hindu men Regarding the gandharva lorm the court
Hindu men. to commit bigamy and a unilorm civil code relied upon Mulla's Hindu Law (12th edn)
Until 1955, Hindu mazrriages were will plug this loophole. An analysis of the which stipulated: "The gandharva marriage
polygamous and hence Hindu men did not caises reported in law journals will establishis the voluntary union of a youth and a
attract the penal provision of S494 IPC. The that bigamny of the Hindu male persists with damsel which springs from desire and sensual
Hindu Marriage Actolf 1955 For the first time the active benevolence of the Supreme Court. inclination. It has been erroneously described
laid down the principle of monogamy. To A decade after the enactment of the code as an euphemism forconcubinage. This view
whatextent has this principle been acccpted whichi was hailed as modlern, progressive and is based on at total misiconception of the
by the Hindu society'? The rhetoric of a pro-womcn, the Supremne Couirt decided the leading texts of the Smritis. The essential
uniform civil code does not concern itself first case undter the new act, which set the marriage ceremonies are as much a requisite
with this issue. An indication of the status seal upon monogamy ot the Hindu male. The part of this form ot marriage as of any other
of Hindu marriages in the post- 1955 period appe,al was against a conviction trom the unless it is shown that some modification of
came to us in 1974 in the report of the Bombay High Court in the case of Bhaurao those ceremoniies has been introduced by
Committee on the Status of Women, Towards Lokhande.2 The first wife pleaded that the custom in any partiCUlarconimunity orcaste.
Eqiualitiv. As per this report, the rate of second marriage was pertormed in the The court lalid downi that the two essential
polygamous marriages among Hindus, gandharva form prevalent in the region. which ceremoniies for a vatlidi Hindu marriage are:
Muslims and tribals for the period 1951-60 is customarily known as a 'pat' marriaoc. The (i) invocaition before the sacred. i e, 'vivaha

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lioma' and (ii) seven steps round the fire by The trial court convicted the husband and III
ihe groom and the bride, i e, 'saptapadi' . The second wife to one year of rigorous Unsurmountable Obstacles
court furtherexplained: It was contended that imprisonment and a fine of Rs 500 half of
in the gandharva form of marriage prevalent which was to be paid to the first wife. In A discernible pattern emerging is conviction
in the community, the custom performance appeal, the sessions court upheld the by the lower judiciary and leniency by the
of certain ceremonies with the help of a conviction. The conviction was set aside by apex court, which rescued the errant husbands
brahmin has been abdicated. This does not the Calcutta High Court. by prescribing rigid standards tor proving
mean that the ceremonies of 'homa' and The Supreme Court confirmed the acquittal bigamy, which rendered it impossible for
saptapadi have been abrogated and that the and held: There is no dispute about the even the high courts to convict the husbands
ceremonies performed between the husband second marriage having been performed as the following rules laid down by the
and second wife are sufficient to hold the during the subsistence of the first marriage. Supreme Court became binding upon them:
marriage valid. The bare fact of a man and But relying upon Kanwal Ram the court held (i) Proof of' performance of homa and
a woman living as huisband and wife does that admission by the husband in proceedings saptapadi is essential for conviction of
not give them the status of husband and wifefor maintenance is not sufficient; further, a Hindu man for bigamy;
even though they hold themselves out before reaffirming the decision in Bhaurao held that (ii) Performance of valid ceremonies cannot
society as husband and wife and the society proof of solemnisation of second marriage be inferred by leading the evidence of
accepts them as such. in accordance with essential religious rites is a purohit or an officiating priest;
In the following year the apex court a must tor conviction. The court further ruled (iii) If acustom to the contrary is tobe relied
decided another case that of Kanwal Rami. that the sole responsibility ot proving the upon, it must be validated by a law text;
The parties belonged toa village in Himachal offence with the clinching proof is upon the (iv) Admission by the husband in
Pradesh among whom a customary form of complainaint, i e, the first wife. matrimonial proceedings, i e, divorce,
marriage called 'praina' is recognised. The Two more cases were decided by the maintenance, restitution ofconjugal rites,
custom does not include saptapadi. The Supreme Court in 1979. In Lingari etc, is not sufficient to prove bigamy;
Obulamnna5, the parties belonged to(v)
essential ceremnonies include offering 'suhag' theAdmission
reddy by the second wife is not
to the bride at her residence by a relative community
of of Rai Iseelma. The prosecution sufficient;
contended that the essential ceremony was
the bridegroom, relative of the bride bringing (vi) 1lusband and second wife living together
the bride to the groom's house (praina), coins putting a yarn thread and not performance as a domestic unit and the community
put in a pot, pooja and 'katha' (reading of of saptapadi and homa. One of the witnesses accepting them as such is not sufficient.
holy scriptures), bride picking up the pot and stated: Among kapus, each community The Supreme Court ground down the
taking it to the family hearth, obeisance to customs and rituals of a pluralistic society
performs the marriage according to theirown
theelders and feasting. The first wife admittedcustom. The kapus have only yarn thread into an absurd notion of uniformity by
that pooja at the entrance and bowing at the instead of mangal sutramn. I do not know what
enforcing upon them rituals which were
hearth areessential ceremonies. The witnesses is the custom ('acharam') of the parties. traditionally confined only to higher castes
who were examined stated that suhag and There was no custom of agni gundam (going of specific regions. If a community observed
praina was performed. But did not mention a custom which is contrary to the shastric
round the sacred 'ire). I do not know whether
the otherceremonies. Prior to the prosecution this is true of' a secret marriage. ritual, thecustom had tobe privileged enough
for bigamy, the wife had filed a petition for In appeal the Supreme Court upheld the to attract the attention of a legal scholar, who
restitution of conjugal rights. In reply, the acquittal on the ground that there was no would then have the good sense to mention
seconid wite had stated that Kanwal Ram had evidence of' any custom amongst reddys it in a law text and further, it should have
miarried her al'ter his first; marriage was which outweighed the written textot law. The remained static down the ages. In a vast
dissolved. prosecution relied upon a decision of Andhracountry and within a dynamic society, this
The husband was convicted by thejudicial Pradesh High Court in IJolgonti Raglhava would amount to the proverbial needle in
commissioner of Hi machal Pradesh. But in Recdde "which had held that among the reddy a hay stack and confine societies which are
aippeal. the Supreme Court acquitted him on community of Telanganasaptapadi and homa rapidly changing under the pressures of'
the ground thait conviction based on a statemcnt were not essential for a valid marriage. But modernisation to fossilised forms, totally
ol the aiccused that he had sexual relationship the court ruled that since this case concerned removed from their contemporary lifestyles.
with the al leged bride aind admission that the reddys not otfTelangana but Railseelma, theThe Bhaurao judgment is a case in point.
remarriage wats perlormed after the lirst same rule could not apply.
imarriage wasdissolved hald not been testified. In the same year, the Supreme Court also IV
The c:ourt alsio ruled that an admission from decided the case of Gopall Ll.a The parties The High Courts Follow the Trail
the seicond wife cannot bc relied upon as belonged to telli caste of Rajasthan. The
evidence agaiin.st Ka.nwal Rain and further ithusband remarried according to the local The high courts not only followed the
ciannoteven be relied upon against the secondcustom of 'nata' marriage. Two essential trail, but in their zeal advanced the logic to
wi'e. Relying upon BRhiatiuIrao the court heldceremonies of a nata marriage: Husband absurd ends, erasing all hopes ofjustice and
that. to prove a seconid marriage, essentialtakes a pitcher ot water which is placed onfairness in criminal prosecutions.
ceremonies conistituting it must be proved. the bride's head and the bride wears the Ceremonies performed in a temple,
The third leading case was in 197 L.'The 'chura' (bangles) presented by the husband. registration with the caste or temple
wife relied upon husband's admission in The lowercourts held that the second marriage authorities oreven with acivil registrar fell
maintenance proceedings where he had stated was performed according to the custom of short of the degree of clinching proof which
thatdue tothe wife'sconiducthe wa.scompelled natamarriage prevalent in the telli community the wife was expected to produce. The
to remarry. The priesit who performed the and convicted the husband to two years rigor- paternity of the child of a second marriage
second marriage did not claborate on the ous imprisonment and a fine of Rs 2,000. if proved could only amount to its
ceremonies, but merely stated thaitthemarriage The Supreme Court, at long last, recognised bastardisation and not proof of bigamy by
had been solemnisecd acc:ording to Hindu the validity of a local custom and the proof its father. The complainant wif'e could als^o
rites. The wifec pleaded that the perf'ormance of the same having been performed. But the lay herself open to the risk of invalidating
of essentiall ceremonlies must be presumed.
court reduced the sentence to one year. her existing marriage.

Economivc aind Politicall Weckly December 16, 1995 3239

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 Following is a random sampling of some plunged, each finds the other's ring and wears ceremonies were performed at the
-reported judgments during the intervening it. The exchange of knives and rings is the Guruvayoor temple will not make itavalid
period of 30 years from Bhaurao in 1965 binding part of the ceremony. The couple then marriage recognised by the community.
to Sarla Mudgal in 1995. The vivid pays homage to the bride's parents. Unless it can be proved that cloth was
description of the marriage ceremonies of Since the prosecution had not proved the openly presented by the male to the female
various communities, at the risk of being performance of these rituals, thecourtacquittedit cannot be said that a valid conjugal union
repetitive, is deliberate. The case law is relied the husband and held: Mere admission of has taken place.
upon not only to expose the hollowness of second marriageby the husbandis notadequate. 1973, Bombay - Firstmrriage performed
the provision of monogamy but as a study 1970, Mysore - Invalidation of first as per Neo-Buddhist rites is ivalid: 2 The
of a society rich in its diverse culture, a marriage: "'The first marriage was solemnised
first wife pleaded that the community had
diversity which could be comprehended at the renowned Tirupathi temple according to embraced Buddhism under the leadership
neither by our legislators nor by ourjudiciary Hindu rites. The second marriage was of Ambedkar and she had been married as
and also to highlight the adverse implications performed at Jolarpet. During the proceedings per the Buddhist rites of the community.
to women, of sweeping it with a brush of the first wife could not prove the performance She stated that she had embraced Buddhism
uniformity. of homa and saptapadi. So she relied upon after marriage but she could not prove that
1965, Jammnu and Kashinir - Hindu law proceedings for maintenance filed by her after
her husband had also converted to
does notlpenalise concubinage:8The second her desertion. In his reply to her application, Buddhism. She described the marriage
marriage was performed in the village Dundal. the husband admitted both the first and the ceremonies as follows: In the mandap the
The on ly evidence avai lable was that people second marriage. bride and groom sat facing each other on
had assembled at the village, and a priest The trial court convicted the husband with two sides of a table and recited an oath in
officiated at the marriage. The priest had notrigorous imprisonment of six months which the name ofBuddhaand exchanged garlands
stated that he had performed the requisite was confirmed by the sessions court. But the and clothes. It was a simple ceremony
ceremonies. The first wife pleaded that the high court held that the proceedings for where two consenting parties took an oath
performance of valid ceremonies ought to be maintenance are summary in nature, meant to to be husband and wife. This was followed
presumed since the presence of the priest was prevent vagrancy and hence the degree of by afeast. There was no invocation by the
proved. proof is not as high as in a prosecution for fire or saptapadi.
The sessions court convicted the husband bigamy. When a woman initiates proceedings On her behalf it was argued that since
with sinmple imprisonment of five months and
forbigamy against herhusband she cannot rely under the Hindu Marriage Act the term
a fine of Rs 25 whichi was confirmed by the
upon the presumption of a valid marriage Hindu includes Buddhist, the Buddhistrites
sessions court. The high court acquitted the which is laid down under S 50 of the Evidence should be recognised as valid. Since
husband on the ground that all the ceremonies Act and has to prove the validity of hermarriage thousands of marriages were being
of a valid marriage were not proved. The by proving the performance of essential performed in this form, the courts should
court clarit-ied: If the conviction is based on ceremonies. lean in favourof recognising these marriages
insufficient evidence there would be no During cross examination, the purohit who as valid to avoid social mischief (harm).
had performed the ceremonies admitted that he
difference between concubinaggeandalawful The comments of Justice Masadkar of
marriage. The legislature has made no was a teacher by profession for the last 18 Bombay High Court while acquitting the
provision to punish a person who keeps a years. He had not studied the sanskrit texts and
husband need to be quoted in detail: The
concubine durinn the subsistence of the valid he did not know the existence of various formsconcept of marriage under the Hindu law
marriaige. Since ther e was no evidence that of marriage under the Hindu law. The court has not undergone any radical change by
the parties were governed by any custom held that because of his ignorance, saptapadi the enactment of the Hindu Marriage Act.
which dlispenise(d with saptaipadi and homa, was not performed. The other witnesses who In fact the basic stricture of that concept
these two ceremonies need to be proved. were examined did not know the meaning of has not been touched and it remains a
1 969, Assam and Nagaland - Marriage saptapadi. The court held that since the validitysanskar or a sacrament. To a Hindu
among Alhoms:` The hushand married the of the first marriage was not proved, the secondmarriage is not a matter of agreement or
first wife as per Hindu rites and subsequentlymarriage does not amount to bigamy. contract but a spiritual union of two souls.
remarried in the 'saklong' forrm as per the 1972, Kerala - Ceremonies ofNairs: " The Holy invocation before the fire and saptapadi
custonm of the athoms. Since the husband had witness merely stated that the marriage was are its minimum requiremenit.
admitted tlhe second matrriage, the prosecutionperformed according to the custom and practices The argument that exodus from Hinduism
did not lead elaborate evidence regarding theof the community. The trial court convicted the to Buddhism should be taken note of and
essential ceremonlies. husband with eight months rigorous Buddhist rites should be held as part of
The court ref'erre(d to Gait's History of imprisonment and a fine of Rs 100 which wasrites for the purpose of marriage
Hindu
Assam where asaklOng marriage is described confirmed by the sessions court. While cannot be accepted. Only because such
as follows: The bride is brought into the acquitting the husband, the high court relied marriages are taking place due to some
courtyard and aJfter walking seven times roundupon the acts passed by independent statessocial
of or religious conivulsions the courts
the groom, is made to sit by his side. One Cochin and Travancore in the last century. S cannot be asked to hold that this custom
end of' the cloth is tied around the neck of 3oftheTravancoreNayarActof 1888 stipulates should be treated as a rule having the force
the bride, the other fastened to the that a conjugal union as per social custom and of custom or usage. A custom should be
bridegroom's waist. They walk to a corner, usage, solemnised by the presentation of cloth continuously and uniformly observed for
where nine vessels full of water are placed to the female by the male is a valid marriage a long time and should obtain the force of
on plantain leaves. 'The master of the forall legal purposes. S4of the Cochin Nayar law among Hindus in any local area, tribe
ceremonies reads from the saklong 'puthi'. Act stipulated that a valid marriage may be
community or group. The rule must be
Three cups containing milk, honey and rice solemnised "..by the presentation of cloth to hardened into law by continuous and
f'rumenty are produced, which the bride and the female by the maleor in any othercustomary uniform observation. Since the wife herself
groom have to smell. Some uncooked rice form". has stated that the cuKstom is in practice only
is brought in a basket, into which, after the Since the second wif'e was f'rom Cochin, thefor the last 10-1 5 years, the cu.stom cannot
couple has exchanged knivess, rings are court held that the mere fact that some meet the requirement of law.

3240 Econoinic and Political Weekly December 16. 1995

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 If thousands of marriages are taking place bigamy, the husband admitted that the second
same degree of proof as the second marriage.
in this or in any other form, an appeal lies' marriage was performed during the Apart from the presumption under S 50,
to the legislature and not to the court of law. subsistence of the first marriage, according Evidence Act, the admissions and other
It is not the function of the courts to make to the ceremonies and the customary rites. surrounding circumstantial evidence that has
the law or lay down social policies, but apply The trial court convicted the husband and the been brought in to prove that they are husband
the law as legislated. The form of marriage second wife to three months rigorous and wife is sufficient. It is very difficult to
that was followed is not according to any imprisonmentand afineof Rs 300. In appeal, prove all the ceremonies or rememberall the
known custom or rituals sanctioned by the the sessions court acquitted them on the events of a marriage which was solemnised
Hindu' law. Since there was no proof of ground that the first marriage cannot be held
20 or 30 years ago as against the proof of
conversion and since homa and saptapadi to be proved merely by the admission ol the a recent marriage which took place one or
had not been performed, the marriage between husband. To establish a valid first-marriage, two years prior to the date of giving evidence.
the first wife and her husband is not valid. the prosecution should prove its The court suggested that the standard of
However, since it is mentioned in Customs solemnisation. Since the validity ofproof
the regarding
first the validity of first marriage
and Custonmary Law in British India by marriage was not proved, there can be no should be lowered.
S Roy thatconsent is an essential elementof conviction for bigamy. (ii) Second marriage as per Muslim law
the marriage tie between two Buddhists and Relying upon Kanwal Ram, the high court is not valid: Under Muslim law, there should
no ceremony is requisite, if it was proved thatconfirmed the sessions court order that thebe a proposal made by or on behalf of one
either party was Buddhist, it might have been first marriage cannot be proved by an party to the marriage and acceptance by the
possible to hold the marriage was valid. admission. The prosecution pointed out that
other, in the absence of which the marriage
1974, Gujarat - Proofofregistration under in Kanwal Rani, the Supreme Court ruling will be void.The marriage under Muslim law
the caste panchayat of Luhana community regarding strict proof was confined to the is also not valid as the conversion was not
insufficient: '3 The first wife proved bigamy second marriage. But the high court held that real and bona fide and was only for
of the husband by producing a registration since a strict proof of the validity of the convenience. Hence even if the formalities
certificate (Nondh) which contained the second marriage is required, it is not have been complied with during the
signature of the husband, the second wife and understandable as to why such a strict proof performance of the marriage under Muslim
an office bearer of Luhana Mahajan Vandi. is not required for the first marriage also. Ifcannot be treated as a valid marriage.
law, it
Based on this, the trial court convicted the it is necessary for the complainant to prove Since the parties continued to remain Hindus,
husband. In appeal, the sessions court all theessential requirementsofavalid second the marriage would have to be proved under
acquitted the husband on the ground that marriage, then by the same standard and Hindu law and not Muslim law.
mere registration of the marriage with acaste reasoning it is also necessary to prove all the (iii) Saptapadi and homa not proved in
panchayat or admission by second wife is not essential requirementsof avalid firstmarriage.
second marriageand hence no convictionfor
sufficient. The high court affirmed the order 1989, Andhra Pradesh - Ceremonies of bigamyunderHindulaw: Inkamacommunity,
olf acquittal on the ground that no-one had marriage among the Kamas:'6 The first homa is not necessary, -but saptapadi is
deposed that registration of marriage was the marriage was solemnised according to Hindu essential and it has to be proved by cogent
only requirement of marriagye of the Luhana rites atTirupathi. Subsequently the husband evidence. One witness stated that touching of
community. remarried. Evidence of persons who had feet by each other is a saptapadi'and it is a
/975, Calcutta Highl Court - Registration attended the second marriage was relied upon custom in the kama community. The court
of tmzarriage under the Sp(ecial MarriageAct who stated that the second marriage was refuted this statement and commented that the
in1suficient:'4 (Section 16 of the Special performed by putting 'jeelakarra and bellam'
meaning of saptapadi is totally different.
Marriage Act, 1954. an optional, secular on the couple's heads, chanting of mantras Since there was no proof of saptapadi during
marriage act, provides for a subsequent and tying a 'mangal sutra'. Thereafter, the
the first and the seccind marriage, the court
registration of a marriage solemnised underhusband went through another marriage held that there cannot be conviction. The
any religious rites. Once the marriage is ceremony with the second wife according court
to also recommended that suitable
Muslinm rites. The husband and second wife
registered under this act, the parties are bound amendment to the mode of proof of the
by the provisions of the secular law regarding lived with the husband's parents, worshipped
second marriage. If second marriages are
marriage and divorce and the provisions of Hindu deities, celebrated Hindu festivals and
being performed in secrecy knowing fully
the Hindu Marriage Actdo not apply to them. were known by Hindu names. The second well that it is an offence and if the courts insist
Registration under the act is sufficient proof wife wore mnangalsutramn, 'metlu' and
on strict proof, it amounts to encouraging
of the vilidJily ot'marriage.) After performing
'tilakam'. symbols of marriage among kamaperjury, the court commented.
a bigiamous marriage under Hindu rites, the women. 1990, Karanataka - Cereinonies of
husband registered the marriage under S 16 The trial court convicted the husband and lingayats, invalidation of first marriage: 7
ot'the Special Marriage Act. During the trial, the second wife. In appeal, the sessions court The first wife was employed as
the first wife relied upon the certificate issuedheld that since the first marriage was not telecommunication office assistant with
by the registrar under this act to prove bigamy. proved the second marriagedoes notconstitute divisional engineer, Telegraphs at Hubli. Her
Relying upon it, the trial court framed charges. bigamy. The marriage under Muslim rites father was a retired principal of a training
The second wi fe appealed to the high court was in fact the first valid marriage. In appeal,college. The first marriage was through a
which quashed the charges an the ground that the high court affirmed the acquittal but on proposal where cash and gold articles were
thecertificate cannotbe aproof of the marriage totally different grounds: given to the groom as per his demands. The
performed in other form prior to the (i) The first marriage is valid: Relying marriage was performed in Hubli, as per the
registration. It only records adeclaration by
upon the husband's admission to the marriage
lingayatjangam custom on July 3, 1983. The
prior to the filing of the complaint the courtwife described the ceremonies as follows:
the parties that they have gone through another
form of marriage before the registration. ruled that the first marriage was valid. The After applying turmeric paste to the bride,
Such declaration cannot be a proof of court held: There is a clear distinction with 'surgi' was perf'ormed, the couple bowed
performance of saptapadi and homa. regard to the mode of proof for the first andbefore the gods and the bridegroom was tied;
1985, Bombay High Court - Invalidation second marriages. It is well-settled that the with 'basinga' . The bride was made to sit on
offirst marriage:'!5 During proceedings for
first marriage need not be proved with the a black woollen carpet and was gifted to the

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groom. Then the groom tied the mangalsutra was argued that the second marriage was witnesses have used terms and idioms which
round her neck. Rice was showered on their performed according to Arya Samaj rites for can only be interpreted within a specific
heads. Then mantras were chanted and which three and a half round of sacred tire cultural context. Perhaps a magistrate who is
garlands were exchanged' The priest testified were sufficient to complete a valid marriage. familiar with customs and traditions of the
that Gouri pooja was performed, and the But the high court held that according to local area, is able to relate these idioms to
couple worshipped 'panchagurugalu', which sanskar vidhi, after the parikrama round the people's lives. Hence one can observe
was followed by Ganapati pooja. Thereafter,sacred fire, the bride and the bridegroom convictions at the level of trial courts. But
the wife returned to her natal home and on have to take seven steps and each step should for the higher judiciary, presiding over the
an auspicious day, the husband had to come be taken after pronouncement of a specific citadels ofjustice in their ivory towers, these
and f-etch her. On July 8, 1983, he married mantra by the groom. The court held that the terms can only mean 'technicalities' which
another woman from the same community in ceremonies of Arya Samaj wedding remain do not in any way relate to the cultural
Birur, Chickmagalur district. The second the same as any other Hindu wedding. Since realities of the people whose lives and
wife was a lecturer at the junior college at there were no pleadings regarding customary legitimacy they determine. If the ceremonies
Taikare. Thereaft'er. he wrote letters to the rites and saiptapadi was not proved the second of a marriage performed at the renowned
l'irst wi l'e admitting the second marriage and marriage was not valid and hence there can temple of Tirupati could not stand the scrutiny
asking her forgiveness for the mistake he had he no conviction for bigamy. of the courts, what will be validity of marriages
cnommitted. The wife relied upon these letters 1995 Madras - Proof of paternity oJ theperformed at informal spaces, i e, courtyard
and the photographs takeni during both the child of subsequent marriage irrelevant:2) of a Hindu home in the rural area or a
marriage ceremonlies. During prosecution, the husband and second marriage hall in the urban area.
The trial court conivicted the husband to wife specifically pleaded that there was no The courts have upheld the ancient
six months rigorous imprisonment and Rs marriage at all between them and that the brahminical rituals of homa, saptapadi and
500 tor each offence, i e, going through a second wife was a virgin. The first wife kanyadan which are derogative to women,
1'raudulent marriaige ceremony and cheating. produced a birth certificate to prove that a against more egalitarian and secular forms.
The sessions court reduced the sentence to son was born to second wife and her husband.The imposition of a uniform norm where
one day and increased the l'ine to Rs 10,000 She pleaded that parentage of the child is none existed has caused further confusion.
f'or eatch offtence. In appeal. the husband's material to decide the factum of the second It needs to be mentioned that to many of the
a(lvocate did not clispute the celebration of marriage and applied for a paternity test. communities, whose ceremonies are
the two marriages but only contended that While dismissing the application the high discussed above, the Hindu code did not
they were not performed as per the valid court held that the wife had to prove that the bring any progress as the communities already
ccremonies of'lingayatjangum community, essential ceremonies were performed in both recognised divorce and remarriage of women
according to which, al'ter c:ompletion of all the marriages and asked how a paternity test prior to the code. The marriages were neither
items the saptapadi must be perf'ormed. While of the child would prove the same. The court sacramental, a union of souls or a bond
setting aside the conviction, the high court further held that this was only an attempt to between a man and woman to the exclusion
held: Since saiptapaidi was not performed input a slur on the chastity of the second wife of everyone else. These concepts imposed
both the marriage an-ad sinice in the complaint.and undermine her dignity. either by a foreign Christian doctrine or by
it was not specifically stated that in Hubli an upper class brahminical tradition do not
saptapadi was n(t in vogue, neither marriage V have much relevance to these cultures.
was valid. The court also ruled that the first Illusory Nature of a Hindu Marriage The artificial imposition of monogamy has
wife was not the aggrieved party. It was the not been able to regu late customary practices
second wife who ought to have lodged the A reading of the judgments brings home of polygamy and simultaneous marriages. As
complaint. Since the second wifeorherfather the point that a Hindu marriage is an illusive can be observed the marriages discussed in
have not filed any coomplai nt, there cannot be legal occurrence, the validity of which is the case law have been performed in full
any conviction. constantly suspect. In their evidence, the public view with the participation of the
1992. A Ilaliabad - Ceremiionies ofRaidais
(comt?inunil: IXThe harijansbelongingtoRaid-as
CONFERENCE ANNOUNCEMENT
community recognised polygamous
marriages which arc known as 'Ghar Bethau'. Conference on Science and Technology in Reconstruction
The twoessential ceremoniesofthe marriage
and Development (STRAD)
aire placing of bangles on the bride's hand
by the husband and a wedding feast. The 23-26 September 1996, Petermatizburg, South Africa
second wif'e also had an earlier marriage Call for Papers
subsisting. Although the wedding feastcould
The third international conference of the Third World Science, Technology
not be proved, the trial court convicted the
and Development Forum. The conference will explore all issues, including
accused. The sessions court upheld the
gender, environment, legal, technological, in relation to the role of science
conviction but reduced the sentence. In appeal,
and technology in economic development.
the high court acquitted the husband and
held: The second marriage was void since Proposals forpapers, by June 1 996 with 250 words abstract to, and further
both the parties had an earlier spouse. In information from
addition, the ceremony of holding a feast was Professor -Ahmed C Bawa, University of Natal, Private Bag X01,
not completed. Even if the earlier spouses Scottsville 3209, Pietermartizburg, South Africa. Tel +27 331 260 5975,
were excluded, the sccond marriage would Fx. +27331 2605788,e-mail:bawa@exec.unp.ac.za
still not be valid as an essenitial requirement
of'the said marriage had not been performed.
Dr Dipak Ghosh, Department of Economics, University of Stirling, Stirling
1994. Allahac badu - Aria Sama12Cj rites: '9The
FK94LA, Scotland, UK. Tel +44 178.6 467449, Fx +44 1786 467469,
hu.sband was conlvicted by the trial co)urt but
e-mail: DipakGhosh@stir.ac.uk
acquitted by the siessiions court. In appeal, it

3242 Economic aniid Poliltical Weekly December 16. I1995

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community. The pat and nata were accepted marriage subsisting, then in any case the ambiguous comment: The marriage
forms of remarriageof divorcees and widows second marriage will be void and will not solemnised by a Hindu husband after
in the western region. The point in question attract the provisions of S 494 IPC. embracing Islam may not strictly be void
is not whether there have been convictions While the Hindu male is granted a clear under the Hindu Marriage Act because he is
for bigamy but whether a norn of monogamy advantage, the disadvantage is suffered by no longer a Hindu... The review petition
which is far removed from the customs of two sets of women. The first wife stands the which is admitted, seeks to clarify this legal
the community can be effectively imposed. risk of invalidating her own marriage in a position of this child and its mother.
The Bombay High Court judgment prosecution for bigamy. If she cannot prove The second judge on the bench in the
regarding neo-Buddhist rites indicates the the valid ceremonies of her marriage, the controversial case, Justice Sahai, has made
ostrich like attitude of courts. which reflect court will validate.the second marriage and a valuable suggestion:-' "... No religion
not only gender bias but also class and caste
thus she will not only lose out in the bigamy permits deliberate distortions... The
biases. Refusal to validate the forms of proceedings but will lose hereconomic rights government should consider the feasibility of
ceremonies olfdalits and imposing upon them
in matrimonial proceedings. appointing acommittee to enact aConversion
the shastric ceremonies of homa and A notion still prevails amongst Hindus that of Religion Act, immediately, to check the
saptapadi is adding insult to an age old ainjury.
bigamous marriage can be contracted if the abuse of religion by any person. The law may
Ironically, Ambedkar, the arch supporter of first wifeconsents to it. Since only a first wife provide that every citizen who changes his
Hindu law reform, seems to have made no can initiate the complaint the belief is not religion cannot marry another wife unless he
provision for the validation of the marriages without any legal base. With the consent of divorces his first wife. The provision shiould
of the community whom he led out of the the first wife the husband need not fear be made applicable to every person whether
Hindu fold in 1956. How can the rituals conviction for bigamy. But since the consent Hindu, Muslim, Christian, Sikh, Jain or
practised by them meet the standard ot an of the wife will not validate the second Buddhist. Such an act could effectively deal
ancient, immemorial custom havinig the force marriage, the husband will be redeemed of with the problem of conversion and bigamy
of law'? alleconomic liabilitiesoftthe second marriage. which the judgments seek to arrest.
The ceremonies ol Arya Samaj marriages The disadvantages suffered by the second It also needs to be pointed out that while
are another controversial issue. One of the wife have not received any attention by the Justice Sahai concurred that entorcement of
judgment cited above has held that the Arya advocates of monogamy. When a woman a uniform civil code is an ideal to be pursued,
Samajis are Hindus and hence the marriage approaches thecourtformaintenance, aroutine he cautioned that it would be possible only
can only be solemnisedby homanandsaptapadi. ploy adopted by husbands is to question the when sentiments and emotions have to be
But in 'vivah,i karyala', (roughly translated validly of her marriage, by stating that he cooled and tempered by sincere eftort, and
- 'marriage shops') which have mushroomed either has an earlier marriage subsisting or advocated several inter-mediary meeasures as
in all metropolitan cities, such marriages are that the woman is a concubine or in popular stepping stones towards the uniform code.
routinely pertormed by unscrupulous lawyers parlance a mistress or keep. Then it is left to "... But ours is a seculardemocratic republic.
and are referred to as affidavit marriages. The hertoprove the validity of hermarriage both Freedom of religion is thecoreof ourculture.
formalities can be completed withiin an hour in terms of ceremonies as well as its mono- Even the slightest deviation shakes the social
at a premium. Neither a notice, nor any gamous character. If the husband can prove fibre... Whi le a unified code is imperative ...
documentary proof of age, marital status orthat he has an earlier marriage subsisting the the first step should be to rationalise the
domicile is required. The marriages have a second wife will have no legal recourse left. personal law of the minorities to develop
pretension of being performed according to I am constrained by the scope of this article religious and cultural amity."
Arva Samqj rites which dispenses with homafrom venturing into an elaborate discussion This note of caution seems to have been
and saptapadi. Only a Hindu can avail of this about the attitude of judges in maintenance totally drowned in the media campaign for
'quickie' marriage. But infidels need not be proceedings. But the fact that out of the 40 the enforcement of a uniform code on a
daunted. A priest is available at hand to issue cases of maintenances reported in Volume I priority basis. It is wishful thinking (or a
a certificate of conversion. of Divorce and Matrimonial Cases (DMC), political ploy) to advocate a uni form code as
These marriages of convenience will not 1994, in 36 per cent of the cases husbands a means of curbing polygamous tendencies
stand the test of legal scrutiny in proceedingsraised the plea of validity of their marriages of men. If codified Hindu law worsened the
of bigamy. Through a stroke of luck, civil is suffice to establish the point that the situation of Hindu women, what is the basis
courts still apply the presumption of validitydefence is used widely by Hindu husbands upon which auniformity is being advocated
under S 50 of the Indi an Evidence Act which to deny the maintenance to wives. In 16 per for lesser mortals?
rays down that a valid ceremony will be cent of the reported cases, the courts upheld [I would like to acknowledge the conitribution of
presumed if acouple lives together as husband the plea and denied women the maintenance.
Saumya in researching this article.]
and wife and the community accepts them as Contrary to popular belief that the four
such. But as the reported judgments are petitions were filed by women whose Appendix
binding on the lower judiciary, there can husbands were converted, one of the petitions
THF HINDU MARRIAGE ACT, 1955
never be conviction based on proof of such was filed by the second wife, whose husband
marrages. induced her to convert and marry him and S 2 Applicability of lhe Act:
The legal position can be summarised as subsequently due to pressure from the first (I) This act applies
follows: A Hindu husband can live in a wifereconverted to Hinduism and lived with (a) To any person who is a Hindu by religion
polygamous marriage with impunity so long the first wife. The woman has a two-yearinold any of its forms ordevelopments, including
as he does not perform either one of the son out of this marriage. a Virashaiva, a Lingayat or a follower of
ceremonies of homaor saptapadi. Since most While the Supreme Court eulogised a Brahmo, Prarthana or Arya Samaj;
communities do not even consider these uniform code as a remedy for all ills, it has(b) To any person who is Buddhist, Jaina
formalities as essential, non performance notofcommented upon the status of this child.or Sikh by religion, and
these ceremonies does not pose any obstacle Does acourthave the power tode-clare a valid (c) to any other person domiciled in the
on the path of a Hindu husband desirous of marriage contracted under Muslim law territories to which this act extends who is
committing bigamy. If in thecaseofa secondbetween Muslims as invalid? At para 18 not a Muslim, Christian, Pairsi or Jew by
marriage, both spouses have an earlier validJJustice Kuldip Singh makes a curiously religion...

Economic and Political Weekly December 16, 1995 3243

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S 5 Condiiions of aHindu Marriaige: if at the date of such marriage either party Notes
A marriauegc maly be solemnised between any had a husband or wife living and the
two Hindus if the lollowing conditions are provisions of S 494 and 495 of the Indian I Sarla Mudgal v Union of India and Ors
(1995) 3 SCC 635.
fulfilled, namely- Penal Code shall apply accordingly.
2 Bhaurao Shankar Lokhande v St of
(i) neither party hals a spouie living at the
INDIAN PENAL COIDE Maharashtra AIR 1965 SC 1566.
time of the marriage: 3 Kanwal Ram and Ors v The H P
S 7 cere/}7(Jlle for -a Hindul Marritage: Chapter XX - Qf Offjnces Relating to Administration AIR 1966 SC 614.
(1) A Hindu mnarriaige maiy he solemnised in Mar-riage 4 Priya Bala Ghosh v Suresh Chandra Ghosh
accordanice with customiairy rites and S 494: Marrying again during lifetime of AIR 1971 SC 1153.
5 Gopal Lal v State of Rajasthan AIR 1979
ceremonics of either party thereto, husband or wife: Whoever, having a
SC 713.
(2) Where sutc riitesi nd ceremilonies include
husband or wife living, marries in any case 6 Lingari Obuilamma v L Venkata Reddy and
the saiptapaidi (tlhat is, the taking of seven
in which such marriage is void by reason Ors AIR 1979 SC 848.
steps by the bridegroomil aind the bridejointly
of its taking place during the life of such 7 In Re Dolgonti Raghava Reddy AIR 1968
before the sacred fire) the marriage becomes
husband or wife, shall all be punished with Andh Pra 117.
8 Phankari v State AIR 1965 J and K 105.
complete anicd hinding when the seventh step
imprisonment of either description for a
9 Boloramn v Mt Surjya AIR 1969 A and N 90.
is talken:, term which may extend to seven years anid
10 Vanajakshamma v P Gopala Krishna AIR
S 8 R'egisInwion of'Hindu Marrliages: shall also he liable to iine. 1970 Mys 305.
For the purpose of iacilitating the prooi of 11 Govindan Nair v State of Kerala 1972 Cri
Hi nd u nduiari ialt es. the state governmenit may TFiW- INDIAN EVIDENCE ACT, 1 872 L 122 (Ker).
12 Shakuntala v Nilkanth 1973 .Mah U 310.
maike rU les plrov t itI ng the parties to any such
13 Mukta Jesing v Vallabhadas 1974 Cri LJ 121
marriage miay have plarticulars relating to S 50 Opinion on relationshiip when relevant:
(Guj).
tlheir mlarriicge enitered in suchi manner and When the Court has to form an opinion as 14 Baby Kar v Raim Rati 1975 Cri LJ 836 (Cal).
subhjct to 0SuLIcIh coniditionis as may be to the relationship of one person to another, 15 Godawari v State of Maharashtra 1985 Cri
prescribe (in a IHindi Mairriaige Register kept the opinion expressed by conduct, a's to the LJ 1472 (Born).
16 Chandra Manikyanimna v Sudarsana Rao I
or tihe purpose; existence of such relationshi p of any person
(1989) DMC 109 (AP).
S 11 Voi(d Mrriaiiges: who as a niember ol'the family or otherwi se 17 Ravanasiddaswariy v Public Prosecutor 1990
Any miarriare soleinnised aifter the has special means of knowledge on the Cri U I(X)I (.Kant).
comimeniceiment of this act shall be null and is a relevant fact.
subject 18 Rajktlima-i v Kalawati 1992 Cri LJ 1373
voidand ... if it contravenes clauLses ( Provided (Ail).
I)... of that such opinion shall be sufficient
19 Urmila v The State ot UP 1994 Cri LI 29'1(0
S 5 to prove mlarriage proceedings under the
(All).
S 17 Puni.sv1nenui(kw- Bigam,'yi: Indian Divorce Act, 1 869, or in prosecutions 20 Gomnathi v Vijayaraghavan 1995 Cri LJ 81
under section 494. 495, 497 or 498 of the
Any malrrialge lbetween two Hiiduis solemnised (Mad).
aLiter the commnenceitent of this act st votd Penal Code. 1860.
Indian 21 Siupa (I) at para 45.

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3244 Economic anid Political Wecely December 16. 1995

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