There is no denying that the ancient law governing this part of land was Manusmriti. It is believed that this Vedic Dharam Shastra is over 10,000 yers old. The documented version of this law of Manu came into existence later. Manusmriti governed all aspect of human life including marriage and carnal pleasures. At the time of Ramayana and Mahabharata, Manusmriti was the known law as it is referred therein at many places. According to Manusmriti there were following eight forms of marriages:
Spontaneous Marriage: Gift of maiden spontaneously after clothing and referencing her.
Daiva Marriage: Gift of a daughter to a priest as part of fee for performing the vedic rites of sacrifice.
Arsha Marriage: Gift of maiden in exchange of two cattle from bridegroom.
Prajapatya Marriage: Gift of maiden When gift is made while addressing both the pair “Together do your duty”
[Present saptpada (seven steps) marriages including Anand Karaj is a derivative of above four types of marriages]
Asura Marriage: Gift of maiden after receiving the wealth from bridegroom, as much as he can pay.
Gandharva Marriage: Voluntary Connection between man and woman. (Present day love marriage.)
Rakshasa Marriage: Forcible abduction of of maiden crying out and weeping after slaying and wounding her relatives.
Pishacha Marriage: Secretly approaching the girl asleep, intoxicated or confused. It is the most sinful of all marriages and is prohibited.
Child Marriage or marriage of minors, like most of the other countries, was a traditional practice in India; where elders would commit to marry their minor children. Various laws have been enacted from time to time to curb this practice, but it is not completely routed out. However, among Hindus, the child marriage itself has never been declared void by law. In respect to other religions, the problem had not been addressed at all. However there are two High Courts of India whose Full Benches have held that now, in the wake of changes in law, Child Marriage is illegal and ineffectual till the child reaches age of consent, and a two-year time period elapses thereafter during which he/she can seek annulment of child marriage.
The ill-effect of such marriages are well-known. Besides the health and life of child, it has social fallout as well. Some of the ill effects have been summarised by UNICEF here. According to Unicef, world’s 40% child marriages take place in India. Continue reading →
To divorce or not to divorce?
This question is as vexed as proverbial ‘To be or not to be.’
Very often, friends or friends’ friends assume that I have competence to answer this question for them. Generally rather always I manage to steer clear of this question without offending the inquisitor. The weekends are chosen days for such exercise.
Sometime ago a friend’s friend approached me. He was troubled with the most vexed question ‘to divorce or not to divorce?‘
He was married for eight years and had two children aged 7 years and 3 years respectively. Why this question now?
Before reverting to his answer let me add a little background of husband and wife:
This friend was working as research fellow in some institute with competitive environment and belonged to working class. Wife belonged to a business family of traders. This is a class, in which, rarely any dead line is to be met. She had no professional qualification, though she was educated. Parents of spouses
There is an ancient saying that children do follow the habits of parents or one of them. So intrusion into their past revealed that wife had taken after her mother and my friend had taken after his father. It is common knowledge that personality does not exist in isolation. It requires complementary personalities around it. Now my friend unknowingly missed the behaviour of her mother towards his father and wife missed the behaviour of her father. They lived together 8 years fighting and bickering like adolescents, never stopping for introspection.
For last many years this friend had already found out a solution: i.e. To reach home late and avoid facing the wife. It complicated the matter further and now this question:
Divorce or not to divorce?
Now the advice that was given to him is not relevant. But his answer to a question is.
Why you got married? His answer was: Because that is what everybody does after getting a good job. This answer reflects the typical human behaviour. Imitation. Rather mindless imitation. Getting married just because there is nothing else left to do? It betrays lack of observation and experiencing. Marriage
What is marriage? Please do not trouble religious scriptures. I am not fond of any institution including marriage as all institutions stifle.
It appears it is a commitment of sharing resources and responsibility. But that is not all. The third factor is companionship. The first two factors make a marriage go and if third factor is present, the question which started this post, would not arise at all.
One would not walk into a building without knowing what lies inside. How come, millions get married without any clue of what is ahead of them.
Each person has his own selfish way of sharing the resources. A spouse can not be branded as selfish on the touchstone of opinion of other spouse.
But all this does not matter when there is companionship. Companionship
Just because two persons share similar jobs or like similar movies or brand of coffee, does not make them ideal companions. These are cultural similarities which may help to an extent but not very far. Similarity of IQ may help but two persons of high IQ do not always get along as higher intelligence comes with higher ego.
To be a good companion, one has to learn to live with oneself. We have such a chaos inside that we are always in pain. We are so occupied in our thoughts that we do not notice the companion next door. First step is to learn to live with oneself. If pain of disappointments, anxiety of chase for position or money does not spill over the other person, discovery is not far.
Just another lazy thought for lazy Sunday.
(c) Sandeep Bhalla
There was a fiery rebellion leader. He had the leanings towards downtrodden and compassion for poor and a socialist belief untainted by political machinery. He stood for what was right without bothered by fate. He survived martial law and dictatorship and ascended to throne but never closed his doors except may be for his wife after a decade of marriage. Come old age and Parkinson disease was first to show the fragility of human body. As if it was not enough, Alzheimer followed. The dementia wiped out the writing on the sand called life. He transcended beyond all battles except the clinging breath. Soon the ordeal would be over.
Family laws are complex matters. It is more so when a suit is involves an issue not hitherto before raised. The situation is further complicated by the fact that parties do not dare to speak the whole truth. A little before our leader suffered from Alzheimer, it was discovered that some of his hitherto obscured ancestral property had become valuable.
Pic courtesy Wikipedia
As narrated in the above story, the estranged wife came back, after several decades along-with a mature son, to lay a claim upon her husband who forgot to divorce her and was ever since in a live in relationship which the whole world knew. Custody battle goes on but I have a question. Live in relationship has been recognized by Indian Courts and relief of shelter and maintenance has been granted. Presently custody has been granted to the wife.
Now the case in question would have been a test case to balance the law and equity but there is no pleading about the live in relationship of several decades. The question is: Was it an omission or was it deliberate it to protect the reputation of a person who never cared for reputation or some such similar reason.
As mentioned earlier it is all writing on the sand now for him, whose interest everyone is protecting.
Compulsory production of evidence vs. Adverse inference:
A civil dispute is an adversary litigation. It differs from criminal prosecution. In a criminal prosecution, there is a law which authorizes prosecution agency to collect blood sample from accused and it is not treated as self-incrimination. In civil litigation the law is up-side down. If a party refuses to produce evidence, the court at best can do two things: 1) Draw adverse inference and/or 2) Strike off his defence. The reason given is that court will not act at a behest of a party to collect evidence on its behalf and also that a plaintiff must stand on its own legs. But that was yesterday. There is new law in a paternity suit. A person (Plaintiff) filed a suit claiming declaration that one Mr. N.D.Tiwari is his father and that Mr. Tiwari had an a fling with the mother of Plaintiff, 32 years back. High Court directed the Tiwari to give his blood sample for DNA profiling with plaintiff. Devision Bench affirmed the decision and justified its direction for compulsory blood test with this reasoning:
Supreme Court also in Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271 held that it is the rule of law in evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue and the Court ought to take an active role in the proceedings in finding the truth and administering justice. Recently in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (Dead) 2012 (3) SCALE 550 it was reiterated that the truth is the guiding star and the quest in the judicial process and the voyage of trial. The trend world over of full disclosure by the parties and deployment of powers to ensure that the scope of factual controversy is minimized was noticed. We are therefore of the opinion that adverse inference from non-compliance cannot be a substitute to the enforceability of a direction for DNA testing. The valuable right of the appellant under the said direction, to prove his paternity through such DNA testing cannot be taken away by asking the appellant to be satisfied with the comparatively weak adverse inference. (Full judgement is here.)
Delhi High Court (Photo credit: ramesh_lalwani)
This is certainly one of those judgements which, if upheld by superior court, would certainly change the trial of suits, especially the manner in which evidence is produced or rather concealed by parties.
Post Script: (added on 24th May 2012)
The Supreme Court of India has affirmed this decision by refusing to interfere but with the direction that full confidentiality of blood test may be maintained.
Tiwari’s last hope in getting any relief in not giving blood sample was dashed as the apex court dismissed Tiwari’s appeal against the Delhi High Court order which had ordered him to undergo the DNA test saying that police force can be used to compel the 86-year-old leader to give the sample. …… A bench of justices Deepak Verma and S J Mukhopadhaya asked him to make himself available at his home before a group of people comprising district judge, civil surgeon of Dehradun, joint registrar of the Delhi High Court and a pathologist. (Source: http://www.firstpost.com/ideas/no-relief-for-nd-tiwari-sc-tells-him-to-give-blood-sample-320331.html)
So now, the law has finally flipped in favour of collecting the evidence, from defendant by force and not to remain satisfied with adverse inference alone.