Of Marriage Act and Amendment

Amit Kushari
The Government of India has recently made some significant amendments in the Hindu marriage Act and Special Marriage Act to confer some more rights to Hindu and Sikh women. Women in India have traditionally remained a deprived and oppressed community and after independence the Government has taken several steps to give them more rights in society. Earlier women were deprived vis-a-vis their brothers in the matter of inheritance from their fathers. This discrimination has now been completely removed and now women get equal share in their paternal property and their brothers cannot overlook them anymore. After 2005, Hindu women are inheriting their ancestral landed property also — which was earlier a big no-no under the Hindu Mitakshara law. Divorce was an unknown concept among Hindus. There is no Sanskrit word for divorce. After independence a new word has been coined in Hindi and other Indian languages — ‘Vivah vichhed’ which literally means “cessation of marriage”. Now the urdu word ‘Talaq’ is also freely used for divorce. The concept of divorce existed in Arabia and in Islam and the word ‘Talaq’ is derived from the Arabic verb ‘talq’ which means releasing the rope by which an animal is tied!! For Hindus marriage was a sacrament and a life long affair and it even extended to all previous births too. It was believed that once in the heaven God decides as to who marries whom, this sacred bond cannot be nullified on earth. If a woman didn’t like her husband she could do precious little to rectify a wrong marriage. Like the Roman Catholics, the Hindus also believed that only death can separate a couple. While taking marriage vows the Catholics also said” Till death do us apart”.For Hindus the “saat pheron ka bandhan” is like umer quaid (life imprisonment) for a woman. ‘Jis ghar mein doli jaati hai, wahin se arthi nikalti hai.’ Readers who have seen the famous movie “Divorce Italian style” will remember how an Italian man could never get divorce in any Italian court and had to murder the wife ultimately. Divorce was also unknown in Italy. In India similar was the position till 1956 when Pandit Nehru allowed Hindu women to seek divorce in a court and put a complete ban on polygamy by men.
A lot of water has flowed down the Ganges since 1956. The Western countries and their progressive ideas have left indelible impressions on Indian society– which does not look the same anymore. Frequent breakdown in marriages is a stark reality in today’s India. In 1961 only 1% of Hindu marriages ended in divorce. Now 6% of Hindu marriages end in divorce. Men and women exposed to western education now have very little patience in marital matters and they rush to courts for divorce for matters which would have appeared trivial a few decades ago. The divorce rate is still far, far lower than in Western countries which is usually around 60%. New situations are developing in Indian society because of western influence. Men and women have started living together without the bonds of marriage to avoid the hassles of marriage and divorce and the trauma in courts regarding compensation, divisions in property and family business. Although the society frowns on it and parents do not approve of it, many young boys and girls secretly live together. Under Indian law, living together is not an offence because consensual sex between an adult man and an adult woman is not a crime if both are unmarried.
In India Hindus and Sikhs and Jains form 85% of the population and all the new laws are applicable to them only. These are not applicable to Muslims and Christians who have their own codes of conduct in marriage and divorce matters.
The new law made by the Government of India recently has given the divorced woman rights on her husbands property and bank accounts. Divorce has also been made much easier and now if a woman seeks divorce it should be possible to get it in 3 months time provided, ofcourse, if the husband consents to it. Earlier it used to take years.
The Muslims had a relatively quicker system of divorce as an amount was fixed before marriage as compensation if divorce occurs. However, even in Muslim society, divorce is taken as a highly undesirable incident. It is believed that among all the legal things in the world, “Talaq” was the most disliked happening by God.
The Government of India is now giving some legal recognition to the concept of living together. A woman who has lived together for quite a few years has been given partial rights of a wife. She may even claim a part of the property if she can prove through witnesses and circumstantial evidences the number of years they have lived together. This is a revolutionary change in Hindu society. Such changes would be considered appalling by the Muslims who form 13% of the population. For them living together is nothing better than “Zina”. In the Quran God forbids men to have sex with a woman with whom a legal nikah has not been done.
With these new revolutioary laws coming into existence, Hindu men may feel increasingly diffident while entering into a matrimonial alliance. The fear of giving property to a divorced wife may discourage him from marriage. His parents will also be wary of arranging their son’s marriage. Even the irreligious act of living together may not give the boy any relief because after a few years the same problem may arise. Many families have started considering having a legal document ready before marriage spelling out how property could be divided in case of divorce.
(The author is former Financial Commissioner, J&K and the feedback to the writer can be given at 09748635185 or amitkus@hotmail.com or twitter.com/amitkushari)


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