FAMILY LAW AS A PRODUCT OF TRADITIONS AND CULTURES By - Kalyani Bhagwat
FAMILY
LAW AS A PRODUCT OF TRADITIONS AND CULTURES
Authored By -
Kalyani Bhagwat
LLM 2
1.
Abstract:
This Research contains a study of how Family law is a
product of our varied traditions and cultures.
The Research focuses on how varied cultures and varied traditions affect the
law making process especially in
Family Law. The research article has been prepared by LLM II student Kalyani Bhagwat under the guidance of Prof. Mayura Borde.
2.
Introduction:
We often speak of law and culture
in one breath. That may be so because both systems impose
on each person and organization required rules of behavior. Yet, law and
culture are quite different, though
they relate to and affect
each other. Therefore, it is desirable
to examine their
similarities and differences and their relationship. While the
structures of law and culture are more similar
than we might expect, their differences greatly
affect the enforcement of the rules
issued under each.
To be sure, both systems consist of rules and their
enforcement. Most of our thoughts and knowledge,
and many aspects of our lives and livelihood, in whatever form they take, are subject to rules and their enforcement.
Here we speak of rules that are directives of behaviour by humans, backed by enforcement of other humans. Yet, law and culture differ
in fundamental details,
including: (a) the identity of those who initiate the rules; (b) the rules’
underlying purposes and values; (c) how
these rules are (i) initiated, (ii) developed, (iii) expressed, (iv) and enforced; and (d) the extent of their acceptance
by those to whom they apply.
3.
Key Words:
2.1.Tradition means:
a belief, principle
or way of acting which people in a particular society or group
have continued to follow for a
along time.
2.3.
Culture: Culture means the way of life especially the general customs
and beliefs of a particular group of people.
Law as the product
of traditions and culture
2.4.
Tradition and culture are connected
with religions. Religion
is the origin of Law. Law as the
product of Tradition.
4.
Family
Law as Product of Tradition
and Cultures:-
4.1.
Laws are Limited: India is divided into five religious
communities namely Hindus,
Muslims, Christians, Parsis
and Jews but laws are limited to matrimonial relations and remedy thereof, maintenance, succession, will, partitions, religious endowment, adoption
guardianship etc. Regarding making provisions the law of Quran with respect
to Muslim and Law
of Shastras with respect to Hindus shall be
always attach.1
4.2.
Tradition
of Sati system:2 Sati Was an ancient Hindu custom,
according to which a wife scarifies
herself at the pyre of her husband. The origin of Sati is not definitely known but generally it has been saying God
Shiva's wife, Sati. On finding that her husband
was not invited by her
father Daksha for some Yaga to which all other goddess are invited Sati created fire and
scarifies herself in front of the guests for her husband. Ban of Sati System:
All the Ancient scripters disagree with sati and say that one should
not die before ones certain time. A pregnant woman was not allowed to
commit sati. On 4t December 1829 the
practice was formally banned in the Bengal Presidency by the Governor Lord William Bentinck by passing a regulation
burning alive the widow of Hindus
illegal and punishable under criminal court. But the ban was challenged in the privy
council in London finally implemented in 1832.
4.3.
Section 306: Unfortunately abetment of sati could not find place to be a special offence
under IPC but Judiciary has held that abetment of Sati is an offence of
abetment of suicide and punishable under section 306 IPC. (Sati Mata Ki Jai).3
4.4.
Tradition
of Polygamy: No Restriction: Polygamy had existed in India and there was no restriction on the bigamy except the
Mohammend law which prohibited not to marry
more
1 Law as a product of tradition and cultures, research
article at Utkal university available at https://utkaluniversity.ac.in/wp-content/uploads/2022/08/Law-as-the-product-of-tradition-and-
culture.pdf last seen on 13/12/2022
2 Law as a product of tradition and cultures, research article at Utkal university available
at https://utkaluniversity.ac.in/wp-content/uploads/2022/08/Law-as-the-product-of-tradition-and-
culture.pdf last seen on 13/12/2022.
3 Law as a product of tradition and cultures, research article at Utkal university available
at https://utkaluniversity.ac.in/wp-content/uploads/2022/08/Law-as-the-product-of-tradition-and-
culture.pdf last seen on 13/12/2022
than four wives. In 1860 Under IPC
bigamy was made a specific offence under
section 494 and it was allowed by the customs. Section 60 of Indian Christian Marriage
Act 1872 Prohibited of polygamy.4
4.5.
‘Tradition of Child Marriage:
1.
Meaning of Marriage: During colonial time in India
Child marriages were official marriage
in childhood. At the time marriage spouse were not aware about the meaning of marriage.2.In the year 1929 an Act was passed i.e. Child marriage Restraint Act 1929 it restricted the child marriage but did
not abolish it. Under this Act child means a
person who if a male has not completed 21 years of age and if a female
has not completed eighteen
years of age. This law was introduced after all the religions prohibit
the child marriage but still it has not abolished completely as per UNICEF
70% marriage take place below the
statutory age for marriage.
4.6.
Husband and
wife are different Persons in India: During colonial time married woman suffered serious irregularities a
married woman could not sue for any tort committed
by a third person unless her husband joined with her as plaintiff. She also could not be sued for a tort committed by her unless her husband was made a defendant. But Britisher did not recognize
as single person.
Husband and wife were always treated as different persons.
4.7.
Traditional
System of settlement of Disputes: When any person was alleged to have committed any crime or immoral
act, that person was brought the matter
to the panchayat, where all persons of the village were sitting and
decide the case. So these were called
Gram nyalaya system abolished
and regular court were
constituted.’5
4.8.
SECTION 377
:- Section 377 of the Indian Penal Code,1860 that use to
criminalize unnatural offences that
is if intercourse takes place between two men or between two women, the same will be declared as an
offence under this provision was scraped off
by the Supreme Court of India on the grounds that homosexuality is no more an offence
in the eyes of law. Supreme Court in the landmark judgment of Navtej Singh Johar
v. Union of India decriminalized all kinds of
consensual sex among adults which were inclusive of homosexual sex also. This decision by the apex court brought in a revolutionary change in the Indian
society,
4 Law as a product of tradition and cultures, research article at Utkal university available
at https://utkaluniversity.ac.in/wp-content/uploads/2022/08/Law-as-the-product-of-tradition-and-
culture.pdf last seen on 13/12/2022
5 Law as a product of tradition and cultures, research article at Utkal university available at
https://utkaluniversity.ac.in/wp-content/uploads/2022/08/Law-as-the-product-of-tradition-
and-culture.pdf last
seen on 13/12/2022
traditions
and beliefs. It was a welcoming judgment for the majority
of the people especially the queer community. The Supreme Court in a way established Article 21
once again placing that every individual has a
right to life and personal liberty
which should not be curbed
due to societal norms.
4.9.
LIVE-IN- RELATIONSHIPS:- A living relationship couple are the ones who cohabit, with no
expectations being the bottom
line. However, there is no legal definition to describe the concept in Indian law. It is
more of a westernized theory with very less relevance with the Indian tradition. So the Supreme
Court, at various
instances taken the liberty
to elaborate on the concept through their judgements. It is different from a marriage.
(Marriage or wedlock
or matrimony, is a socially/ritually acknowledgeable union of a couple). Live in relationship
partners don’t force on obligations.
In a typical marriage, the partners are given
certain rights and duties to be performed by either
of them. There are several personal
laws such as the Hindu laws, Muslim laws, Christian Laws, etc. that govern and
protect the marital bond of a recognized couple. Live-in relationships, being an alien concept to the Indian
legislature does not have any legal
implications for the couples who live together without marriage involved in the relationship. Since living relationships
also support pre-marital sex, there are high
chances of a child being born.
These children, unlike the successors born out of wedlock, do not have any rights over the inheritance. Besides
this, society treats them as
illegitimate children, which is unacceptable. However, the Hon’ble Supreme
Court cleared them of this ill-fated.
And granted them the status of a legitimate child along with the right to property.
Live-in relationships were legally considered
void-ab-initio. But in a judgement in 1978,
such relationships are valid for the first time because of the Supreme Court.
If the requisites of a marriage such as mental soundness, the fulfilment
of the legal age of marriage,
consent, etc. are all satisfied, the couple is considered to be in a legal live-in relationship. The couple is also regarded
as married if they live together for a considerably long period until proven otherwise.
The apex court has
given five different types of living together in the excellent judgement of Indra Sarma Vs V.K.V.Sarma in 2013. It also stated that such relationships
fall within the ambit of Section 2(f) of the Protection of Women Against Domestic Violence Act,2005 that provides
an insight into the said concept. In living relationships,
the facets of the relationship might come to a conclusion, irrespective of any decision made by the couple.
Legal
provisions for the protection of children born in a live-in relationship: Mental trauma affects children who
are born out of in such a relationship. There could be custody problems
or maintenance problems
as the child grows. The courts have declared such children to be
legitimate. Additionally, they have the right to property, not just ancestral but also self-bought
property. Since there is no special law for the maintenance of children born out of such relationships, the law
decides to provide children with
protection. Thus, evolved the section 125 of the CrPC. The section includes
provision for all children who cannot claim
remedies in their laws. The Indian law also does not allow the couples
living together to adopt a child as per the terms laid down by CARA.
Therefore, though live-in relationships have become legally
valid, it is still not legally binding
on the partners. It could be a benefit as well as a disadvantage depending on the expectations of the couple. In a
society that shamed premarital sex, accepting a practice like live-in is a big step forward. There is no
specific personal laws are governing these relationships.6
4.10.
ADULTERY:- India's top court has ruled adultery is no longer a crime, striking down a 158-year-old colonial-era law which it said treated women as male property. Previously any man who had sex with a married woman, without
the permission of her husband, had committed
a crime.
A petitioner had challenged the law saying it was
arbitrary and discriminated against men
and women. It is not clear how many men have been prosecuted under the law - there is no data available. This is the
second colonial-era law struck down by India's
Supreme Court this month - it also overturned a 157-year-old law which
effectively criminalised gay sex in India.
While reading out the judgement on adultery, Chief Justice Dipak Misra said that while it could be grounds for
civil issues like divorce, "it cannot be a criminal
offence".
Who challenged the law? Last
August, Joseph Shine, a 41-year-old Indian businessman
living in Italy, petitioned the Supreme Court to strike down the law. He argued that it discriminated against men
by only holding them liable for extra-marital
relationships, while treating women like objects.
"Married women are not a special case for the purpose of prosecution for adultery. They are not in any way situated
differently than men,"
his petition said. The law, Mr Shine said, also "indirectly discriminates against women by holding an erroneous
presumption that women are the property of men".
6 Live-In Relationship – What Does The Indian Law
Say? By staff available at https://vakilsearch.com/advice/live-relationship-indian-law-say/ last seen on 30 November 2022.
In his 45-page petition, Mr Shine liberally
quotes from American
poet Ralph Waldo Emerson,
women rights activist Mary Wollstonecraft and former UN Secretary General
Kofi Annan on gender equality and the rights
of women. Previous
pleas were dismissed
by the court in the interests of "stability of marriages "However, India's ruling BJP government had opposed the petition, insisting
that adultery should remain a criminal offence. "Diluting adultery laws will impact
the sanctity of marriages. Making
adultery legal will hurt marriage
bonds," a government counsel told the court, adding that "Indian
ethos gives paramount importance to the institution and sanctity of
marriage". What did the adultery law say? The
law dictated that the woman
could not be punished as an
abettor. Instead, the man was considered to be a seducer. It also did not allow
women to file a complaint
against an adulterous husband. A man accused of adultery could be sent to a prison for a maximum of
five years, made to pay a fine, or both.
And although there is no information on actual
convictions under the law, Kaleeswaram Raj, a lawyer for the petitioner, said the adultery
law was "often misused" by husbands during matrimonial disputes
such as divorce,
or civil cases relating to wives receiving maintenance.
"Men would often file criminal complaints against suspected or imagined men who they would allege
were having affairs with their wives. These charges could never be proved,
but ended up smearing the reputations of their estranged or divorced
partners," he told the BBC.
What did the judges
say? All five Supreme Court judges hearing
the case said the law was archaic,
arbitrary and unconstitutional.
"Husband is not the master
of wife. Women should be treated with equality along with men," Chief Justice Misra said.Judge Rohinton Nariman said that "ancient notions of man being perpetrator and woman being victim no longer hold good".Justice DY Chandrachud said the law "perpetuates subordinate status of women, denies
dignity, sexual autonomy, is based on gender
stereotypes". He said the law sought to "control sexuality of
woman (and) hits the autonomy and dignity
of woman".Critics have called the law "staggeringly
sexist", "'crudely anti-woman'", and "'violative of the right
to equality'"."The legal system should not regulate whom one sleeps
with," wrote Rashmi
Kalia, who teaches
law. The
main concern, according to the respected journal Economic and Political Weekly, is "not whether the
expectations of fidelity in a marriage are right or wrong, or whether adultery
denotes sexual freedom."
"It is whether
the state can and should monitor a relationship between
adults that is too complex, sensitive and individual for it
to be capable of doing in a just manner," the journal wrote in a recent editorial.
4.11.
TRIPPLE TALAQ:- Instant Talaq or "Triple Talaq" or "Talaq-e-Biddat"
is an Islamic practice that allows
men to divorce their wives immediately by uttering the word "talaq" (divorce) three times. The pronouncement can be oral or written, or as in recent times,
delivered by electronic means - telephone, SMS, email or social media.
What is the
landmark Judgment passed by The Hon'ble Supreme Court in Sayara Bano Vs UOI.:- The Hon'ble Supreme
Court heard the Petition for ban of practice of Triple Talaq through a Constitution bench comprising of 5 Judges from
different religions - Justice Kurian
Joseph, a catholic,
Justice UU Lalit, a Hindu and Justice
RF Nariman, a Parsi, Chief Justice
Khehar, a Sikh and Justice Abdul Nazeer,
a Muslim. On August 22, 2017, this bench declared Triple Talaq
or Talaq-e Biddat as unconstitutional by a 3:2 majority.
Justices Kurian, Lalit and Nariman delivered the majority judgement while Chief Justice
Khehar and Justice Nazeer dissented with the majority.
Chief
Justice Khehar And Justice Abdul Nazeer [Minority Judgment- written By Chief Justice Khehar The
minority bench observed that:"we are
satisfied, that this is a case which presents
a situation where this Court should exercise
its discretion to issue appropriate directions under Article 142
of the Constitution. We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference
to 'Talaq-e-Biddat'. We hope and
expect that the contemplated legislation will also take into consideration advances
in Muslim 'personal
law' – 'Shariat', as have been corrected by legislation the world
over, even by theocratic Islamic States. When
the British rulers in
India provided succor to
Muslims by legislation, and when remedial
measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind".
While
dissenting the majority view the Minority bench observed as following"Till such
time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing 'talaq-e-biddat' as a means for severing
their matrimonial relationship.
The instant injunction, shall in the first instance,
be operative for a period of six months. If the legislative process commences
before the expiry of the period of six months, and a positive decision
emerges towards redefining 'talaq-e-biddat' (three
pronouncements of 'talaq',
at one and the same time) – as one, or alternatively, if it is decided that the
practice of 'talaq-e-biddat' be done away with altogether, the injunction would continue,
till legislation is finally enacted. Failing which, the injunction shall cease
to operate".
Justice Kurian Jospeh [Part of Majority ]Justice Kurian Jospeh
has boldly shown his disagreement on the Minority
view of CJI by stating
that:"I find it extremely
difficult to agree with the learned Chief Justice that the practice
of triple talaq
has to be considered integral to the religious denomination
in question and that the same is part of their
personal law."
Majority view of Justices R.F Nariman
and U.U Lalit [Majority-
Judgment written by RF Nariman] The
bench held that the practice of Triple talaq is arbitrary in nature by observing the following: "It
is clear that this form of Talaq is
manifestly arbitrary in the
sense that the marital tie can be broken capriciously and whimsically by a
Muslim man without any attempt at
reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the
393 fundamental right contained under Article
14 of the Constitution of India. In our opinion, therefore, the 1937 Act
(Muslim Personal Law Shariat
Application Act), insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the
expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it
recognizes and enforces Triple Talaq
Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground
of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination
in these cases, as was argued by the learned Attorney
General and those supporting him."
Taking into consideration the arguments of various
religious groups and aggrieved petitioners,
the Hon'ble Supreme Court with the majority ration of 3:2 set aside the practice of Triple Talaq or Talaq-e-
Biddat by holding it unconstitutional and arbitrary in nature; the Hon'ble Court further directed the Government
of Union of India to consider
the views taken by the court in the Judgment
and lay down a proper
legislature to regulate
the practice of divorce
in Muslim community.
The Muslim
Women (Protection of Rights on Marriage ) Bill, 2017 (Triple Talaq Bill):-Taking into consideration the views of the Hon'ble
Supreme Court in the Judgment of Shayara bano Vs. Union of
India, the Hon'ble Law Minister Shri Ravi Shankar
Prasad took an initiative to present the Triple Talaq Bill before the Lower House, Lok Sabha, which was passed by
majority by the Lower house on December 28, 2017. The Statement
of Objects and Reasons of the Bill notes that the judgment
has not worked as a deterrent in bringing down the number of
instances of triple talaq. It explains,
"It is, therefore, felt that there is a need for State action to give
effect to the order of the Supreme
Court and to redress the grievances of victims of illegal divorce. In order to prevent the continued
harassment being meted out to the hapless married Muslim women due to talaq-ebiddat, urgent suitable legislation
is necessary to give some relief to them.
The Union Government claims
that the legislation would help in ensuring the larger Constitutional goals of gender justice and gender equality
of married Muslim women and help sub-serve their fundamental
rights of non-discrimination and empowerment.
Highlights of Bill:-The preamble
of the Bill reads as "To protect
the rights of the Married
Muslim Women and prohibit divorce
by pronouncing Talaq by their
Husbands and provide
for matters connected
therewith or incidental thereto" The main highlights of the said bill
are Sections 3 and 4 which criminalize the practice of Triple
Talaq. Section 3 of the Bill states that "talaq-e-biddat" shall be 'void'
and 'illegal'. This is followed
by consequence of such void action in terms of Section 4 thereof, stating, whoever pronounces talaq-e-biddat shall be punished with imprisonment which
may extend to three years and fine.
Further Section 7 of the Act makes
the offence cognizable and non-bailable offence.
The said Bill has gained appreciations at the same time
the Bill has been heavily criticized
by many.The Bill will now be placed before the Upper House i.e. before Hon'ble Rajya Sabha on January 2, 2018,
and if the said Bill is passed with Majority
the same will be sent for approval to the Hon'ble President of India and
if the Hon'ble President assents to
the said Bill then the new act will come in force as The Muslim Women (Protection of Rights on Marriage)
Act.
CONCLUSION:-
Most important factor in coming near future is that law
has developed in varied factors especially
in family as Family law is the keen most important law that is largely affected
by cultures and traditions. With the change in
cultural perspectives and adoption of
varied different cultures and traditions,
laws must be and will be developed with the change in time and era. Section
377, Tripple Talaq,
Adultery, Same Sex Marriages are the best example of the change
in cultural perspective with time where our
law lacks.
BIBLOGRAPHY /REFRENCES:-
3.
https://timesofindia.indiatimes.com/blogs/toi-edit-page/law-banning-triple-talaq-a-year- ago-today-we-reached-a-defining-moment-in-empowerment-of-women/
5.
https://utkaluniversity.ac.in/wp-content/uploads/2022/08/Law-as-the-product-of- tradition-and-culture.pdf
6.
https://www.studocu.com/in/document/banaras-hindu-university/ba-hons-social- sciences/law-as-the-product-of-traditions-and-culture/26578580
11.
https://uk.practicallaw.thomsonreuters.com/6-581- 5985?transitionType=Default&contextData=(sc.Default)