Chapter 7 CUSTOMARY PERSONAL LAWS OF ADIVASIS VIS-À-VIS HINDU (CODIFIED) LAW In the matter relating to personal law, Hindus are now governed by the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956. Apart from Hindus; Buddhists, Jainas and Sikhs are also covered within the ambit of these enactments. Though Hindu law is made applicable to Buddhists, Jainas and Sikhs but Adivasis are kept away from the ambit of these laws. It is specifically stated that, Hindu laws are not applicable “to the members of any Schedule Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the 1 Official Gazette, otherwise directs.” Therefore, Adivasis, at present, are governed by their customary laws. Thus, in the matters dealing with the personal law, Hindus and the Adivasis are governed by two distinct systems of laws. And since, one of the objects of the present study is to make a comparative study of these two distinct systems of laws, attempt is being made, in this chapter, to compare these two systems of laws and synchronize / reconcile the customary personal laws of Adivasis in Nandurbar district. 7.1 LAWS RELATING TO MARRIAGE 7.1.1 Express Conditions of Marriage Hindus for the matters relating to marriage and divorce are governed by the Hindu Marriage Act, 1955, (hereinafter referred to as the HMA). Section 5 of the Act deals with following ‘Conditions for a Hindu Marriage’— 1 Section 2(2) of the Hindu Marriage Act, 1955, Hindu Adoptions and Maintenance Act, 1956; Hindu Succession Act, 1956 and Section 3(2) of the Hindu Minority and Guardianship Act, 1956. 2 12 7.1.1.1 Monogamy Among the Hindus, polygamy was allowed before the enactment of the HMA. But the outstanding feature of the HMA is introduction of monogamous form of marriage. Under section 5(i), it has specifically provided that, neither party should have a spouse living at the time of marriage. This means that having contracted a valid marriage, a man, whose wife is living, cannot marry another woman, and if he does so, the offence of bigamy is committed. And according to section 17 of the Act he will be punished under the Indian 2 Penal Code. Similarly a woman, whose husband is living and the marriage is valid and subsisting, cannot marry with another man. According to section 11 of the Act, marriage in contravention of section 5(i) is void. Customary personal law of the Adivasis in Nandurbar district (hereinafter referred to as the Adivasi law) permits a man to marry any number of wives. Though the law of Adivasis permits polyginy but polyandry is not allowed. The origin of the Adivasi custom of polygyny can be found in the economic co-operation between the husband the wife. Life of Adivasis is full of struggle. Man alone cannot fulfill all his economic needs. He needs help of female member. Among Adivasis, wife’s function is not limited to house-hold works. She also participates in various economic activities. Therefore, women’s participation in economic activities is one of the dominant 3 reasons of polygamy among them. Though economic co-operation is dominant factor behind polygyny but in the modern world of industrialization this cannot be a sound consideration for allowing polygamy. The appropriate remedy lies in the upliftment of their economic conditions. Since the monogamy is already prescribed for Adivasi women the same can also be prescribed for Adivasi men. Thus, the law of Adivasis on the point of monogamy can be synchronized with the HMA, 1955 without hampering the cultural aspects of the Adivasis. 2 Section 494 and 495 of Indian Penal Code, 1860, provides punishment for the offence of bigamy. 3 See Sangwe, Dr. Vilas, “Adivasinche Samajik Jeewan’”, (1972), Popular Prakashan, Mumbai, at p 64. 2 13 Further, According to Adivasi customary law “If a married woman elopes with any other man, her previous marriage ceases. In such as a case formal declaration of divorce is not necessary. And the previous marriage ceases automatically.” This is custom of Adivasis 4 is unreasonable and against morality and public policy and should done away. If Section 5 5(i) read with Section 17 and 13 of the HMA, 1955, is made applicable to Adivasis, this unreasonable custom can be effectively controlled. 7.1.1.2 Mental capacity Hindu marriage requires that, at the time of marriage, neither party to the marriage must 6 be “incapable of giving a valid consent to it in consequence of unsoundness of mind.” It seems that “unsoundness” of mind contemplated in Section 5(ii)(a) has to be such as to make it impossible for the spouses to live a normal married life together. Therefore, under Section 5(ii)(a), it is not every kind of insanity which is covered. But the incapacity of the mind should be such which incapacitates a person from giving a valid consent to the marriage, that is, ability to understand what marriage is and what are the responsibilities and obligations arising out of it. Section 5(ii)(b) states that, ‘at the time of marriage, neither party, though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children.’ The word ‘mental disorder’ has not been defined in this clause. But the term has been defined under Section 7 13 of the Act and the courts may interpret it accordingly. The key to understand the provision is the phrase “unfit for marriage.” And a person is “unfit for marriage” if he is incapable (due to his mental disorder) to shoulder the 4 For details see, Automatic dissolution of marriage, Para 6.4.2.1, above, at p 175. 5 Section 13 of the Hindu Marriage Act, 1955, provides ground for obtaining divorce. 6 Section 5(ii)(a) of the Hindu Marriage Act, 1955. 7 Under Section 13(1)(iii) of the Act, the expression “mental disorder” has been explained as “mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.” 2 14 reasonable responsibilities, duties and obligations arising out of marriage. And the word “procreation” implies within it not only capacity to give birth to the children, but also to 8 look after them as well so as to bring them up. Clause (c) of Section 5(ii) state that, ‘at the time of marriage neither party has been subject to recurrent attacks of insanity or epilepsy.’ Marriage is the most important contract in the life any person. It gives both parties a mutual right to cohabit and to enjoy the society of each other. Marriage involves certain responsibilities, duties and obligations and therefore, both the parties to the marriage must consent each other for shouldering such responsibilities, etc. It implies, while entering into a contract of marriage a man must be ‘mentally capable to appreciate these responsibilities, etc.’; and without ‘that degree of mental condition’, it cannot be said that he or she understands the nature of contract. And a consent given without ‘that degree of mental condition’ is invalid. Since, on the one hand, nature of Adivasi marriage is contractual, it must not be based on “invalid consent” and the parties to the marriage must not be “unfit for marriage and procreation of children”, further they must also be free from the disability of “recurrent attacks of insanity or epilepsy” as contemplated by Section 5(ii) of the Act. On the other hand, Adivasi law on the point contemplated under Section 5(ii) is not clear. It is the discretion of the party to marry with the person of unsound mind. If he marries with such unsound person Adivasi law treats such marriage valid. But at the same time, divorce is also allowed on the ground “that the other party is of unsound mind”. Adivasi customary law, on this point, thus, suffers from inherent contradiction and hence void and therefore, it requires modification. Most systems of law agree that at the time of marriage both bride and bridegroom should be of sound mind. Taking into consideration of all these aspects, 9 Section 5(ii) read with Section 12(1)(b) can be made applicable to Adivasis also. 8 Alka Sharma v. Abinesh Chandra Sharma, AIR 1991 MP 205. 9 Section 12(1)(b) declares that, marriage in contravention of Section 5(ii) is voidable. 2 15 7.1.1.3 Age of majority It is said in Baudhayana Dharasutra: “Let him give his daughter, while she goes still 10 naked, to a man who has not broken the vow of chastity and who possesses good qualities, or even to one destitute of good qualities; let him not keep (the maiden) in (his 11 house) after she has reached the age of puberty.” Some writers of the Grhyasutras 12 recommended the marriage of a girl who was called nagnika, literally naked. It is said in Manusamhita that a man of thirty may marry a girl of twelve and a man of twenty-four 13 a girl of eight. According to Brahmanic works of early Christian era, “The father or guardian incurs the sin of destroying an embryo at each appearance of menses as long as 14 the girl is unmarried after puberty.” Parasara marks the real beginning towards pre- 15 puberty marriage because it is he who enjoins that a Brahmin who marries a rajasvala girl should not be spoken to or admitted to a dinner in the same row with other 16 Brahmins. With the religious and social sanctions accorded to pre-puberty marriage by Parasara, child-marriage spread much faster and took deeper root among the higher castes. And once it becomes a pattern with the Brahmins, it soon tended to become the norm for the Hindu community as a whole. And it is natural for the lower social groups to imitate the pattern of the higher in social order. And Adivasi society being no exception to this, adopted the practice of child-marriage from their Hindu neighbours. 10 Pre-marital chastity was not insisted upon from the girls. For example, Karna was a son of unmarried Kunti, King Shantanu performed sexual intercourse with Ganga who was unmarried and Parasara performed sexual intercourse with Matsyagandha while she was unmarried. In the Panini age, a girl who marries when she remained chaste is known as Kaumara-Bharya (maiden-wife) and her husband was known as Kaumara-Pati (maiden’s husband). See Rajvade, V.K., “Bharatiya Vivahsansthecha Itihas”, (2008), Lokwangmaya Gruha, Mumbai, pp 43 – 44. Even after marriage adultery was considered as less serious offence. See, Kapadia, K.M., “Marriage and Family in India”, (1972), Oxford University Press, Calcutta, pp 97 – 113. 11 Cited in, Kapadia, ibid, at p 138. 12 Kapadia, ibid, at p 138. 13 Kapadia, ibid, at p 139. 14 Kapadia, ibid, at p 139. 15 A girl who remains unmarried even after attaining 10 years of age. 16 Kapadia, Supra note 10 at p 142. 2 16 The practice of child-marriage became more popular, and with the passage of time the practice became so compelling that departure from it was a matter of social disapproval and even social disgrace. The first potential protest against the practice of child-marriage was voiced by Behramji 17 Malbari, a famous social reformer of Bombay. He saw that infant marriages in Hindu society were not only bad in themselves but led to the wretchedness of widowhood. He regarded child-marriage as an evil. The astonishing campaign for social reform initiated by Raja Ram Mohan Roy and Ishvarchandra Vidyasagar agitated, amongst other things, for marriage at a rational age. In response to this, the Child Marriage Restraint Act was 18 passed in the year 1929. The reform movement reached its culmination when Section 5(iii) of the Hindu Marriage Act, 1955, prescribed a rational age for marriage. Section 5(iii) of the HMA, 1955, states that the bridegroom should complete the age of 21 years and the bride 18 years at time of marriage. This is the third condition of Hindu marriage. The Act does not stop by prescribing a rational age of marriage but it went further. Section 18(a) of the Act provides punishment for contravening the provision of section 5(iii). Thus, the practice of child-marriage among the Hindus is effectively curbed. So far Adivasis are concerned; the practice of child-marriage is still prevalent. It is to be noted that, the practice of child-marriage is alien to their culture. And the practice of 19 child-marriage is due to the influence of their Hindu neighbours. It is not only that the practice of child-marriage is alien to their culture but it is also illegal since it violates the provisions of the Prohibition of Child Marriage Act, 2006. The main aim of any girl or boy irrespective of their caste, creed or ethnicity is not simply to have sexual intercourse and procreation but building a better tomorrow. Therefore, it is necessary that the spouses 17 Saha, A.N., “Marriage and Divorce”, (1996), Eastern Law House, Calcutta, at p 45. 18 Child Marriage Restraint Act, 1929, has been repealed and re-enacted by the Prohibition of Child Marriage Act, 2006. 19 See, Institution of Marriage, Para 2.4, above, at p 45. 2 17 should enter into marriage when they are fully matured and are able to shoulder the responsibilities of married life. It is in this background Section 5(iii) of the HMA, 1955, can be made applicable to the Adivasis. Such application will help in strengthening their original culture of adult-marriage. And such application will also fulfill the Government of India’s commitment to “take serious measures to ensure that the practice of child 20 marriage is speedily abolished.” Taking into consideration of their social and educational position, even if any child- marriage is performed the same will not be declared invalid since contravention of Section 5(iii) renders marriage neither void nor voidable. In view of section 13(2)(iv) of the Act of 1955, a bride of such marriage can repudiate the marriage after attaining the age of 15 but before 18 years of age. 7.1.1.4 Conditions regarding prohibited and sapinda relations The fourth and the fifth conditions to the Hindu marriage say that, ‘the parties to the 21 marriage should not be within the degrees of prohibited relationship and should not be 22 23 the sapindas of each other.’ A marriage in contravention of any of these conditions is void under Section 11 and also liable for punishment under Section 18(b) of the Act. But if custom or usage permits marriage between persons in ‘prohibited degree of 20 Article 11(a) and (b) of the National Charter for Children, 2003. 21 Section 3(g) defines ‘Prohibited Relationship’, according to it, “Two persons are said to be within the “degrees of prohibited relationship”—(i) if one is lineal ascendant of the other; or (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or (iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or two sisters.” 22 Section 3(f) defines ‘Sapinda Relationship’, according to it, “(i) “sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation; (ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them.” Section 3(g) explains: “For the purpose of clause (f) and (g) relationship includes—(1) relationship by half or uterine blood as well as by full blood; (ii) illegitimate blood relationship as well as legitimate; (iii) relationship by adoption as well as by blood.” 23 Clause (iv) & (v) of Section 5 of the Hindu Marriage Act, 1955. 2 18 relationship’ or ‘sapinda relationship’, such custom is saved and the marriage would be valid. And whenever a custom is relied upon, it must be a valid custom as defined under Section 3(a) of the Act. Imposition of these conditions for the validity of marriage is an attempt on the part of the Government to establish morality in the society, at least in the field of marriage, and to prohibit incest. And the importance of the definitions of the terms ‘prohibited relationship’ and ‘sapinda relationship’ and the persons between whom the marriage is now prohibited can be realized if it is seen the kind of incest and immorality that was prevalent in the ancient India. In ancient India, as in most of the parts of the world, sexual intercourse was completely unregulated. Incest was prevalent on a large scale. Sexual intercourse between grand- father and grand-daughter, father and daughter, brother and sister, uncle and niece, aunt and nephew and between cross as well as parallel cousins, etc. was common. For example, Daksha, a son of Brahma married with his sister. Dharma, another son of 24 Brahma married 10 daughters of his brother Daksha. Marriage of Yama with his sister Yami is well-known. Vasistha Prajapati married with his daughter Shatarupa. Manu married with his daughter Ila. There are examples in the Vedic (Sanskrit) literature that many sapinda males married with a single sapinda female. For example, Marisha married with her father Soma and her 10 grand-fathers. Brahma married with his grand-daugher and delivered a famous Narada. And when king Janamejaya asked about these strange practices to Vaishampayana Rishi, he replied, ‘this is conformity with our customs and 25 usages and that is the Dharma.’ Gradually, the concept of morality changed with the march of time. When society realized the evils of free sex relationship, certain restrictions were imposed prohibiting marriage with certain relatives or between certain groups as they are considered 24 Manusmirti, IX 128 - 29, Doniger, Wendy and Brian K. Smith (translated), “The Laws of Manu”, (1991), Penguin Books India Pvt. Ltd., New Delhi, at p 213. 25 See Rajvade, Supra note 10 pp 31 – 34. 2 19 26 incestuous or undesirable. The rules of endogamy and exogamy came into existence. The exogamy among the Hindus has two aspects. The first, sapinda exogamy, prohibits marriage between persons related to each other within certain generations on the father’s and the mother’s side. The other, gotra exogamy, prohibits marriage between members of the same gotra. Baudhayana states that, ‘he who follows the practice of marriage between 27 cross-cousins, other than the country where it is allowed, commits sin.’ Gautama did 28 not allow it even as a local usage when it is opposed to the tradition of sistas. Manu writes: “If he has sex with his ‘sister’ who is the daughter of his father’s sister, or with the daughter of his mother’s sister or of his mother’s full brother, he should carry out the 29 ‘Moon-course’ vow.” He further stated, “An intelligent man should not take any of these three for his wife; he should not have sex with them because they are relatives, and 30 if he had sex with them he would fall low.” In spite of all this, none of the Sutra writers except Gautama prescribed any penance for non-observance of sapinda exogamy. Gautama alone declared that one marrying a sapinda relation of the father and the mother 31 becomes an outcaste. It is in this background, the importance of the fourth and the fifth condition of valid marriage, prescribed by the HMA, 1955, can be realized. It not only prescribed these conditions as essential for the validity of marriage but violation of them is met with punishment under Section 18(b). In every society there is an outer circle, out of which marriage is definitely banned and an inner circle within which no marriage is permitted. And Adivasi society is no exception to this. Adivasis of Nandurbar district are tribal endogamous groups therefore, both the parties to the marriage must be of the same tribe/sub-tribe. Modern civilization tends to pull down the outer limits, which separates races, nations, the followers of different religions and various classes of society. Amongst Adivasis also instances can be found of marriage between different tribes and sub-tribes and even with non-Adivasis, and the 26 Manu stated: “If a man shed his semen in women born of the same womb as himself, with the wife of his friend or his son, with a virgin or women of the lowest castes, he should carry out the vow for (violating) the guru’s marriage-bed.” Manusmirti, XI 171, Doniger, Supra note 24 at p 267. 27 See, Kapadia, Supra note 10 at p 125. 28 See, Kapadia, Supra note 10 at p 125. 29 Manusmirti, XI 172, Doniger, Supra note 24 at p 267. 30 Manusmirti, XI 173, Doniger, Supra note 24 at p 267. 31 See, Kapadia, Supra note 10 at p 126. 2 20 same are being accepted as valid by the Adivasi society. This is definitely in line with section 5 of the HMA, which intentionally omitted caste-restriction from the essentials of a valid marriage. For the HMA it enough if the both the parties are Hindus. Now the question remains that the Adivasis are not Hindus. But this can be remedied by inserting after the words “any two Hindus” in section 5, the words “or as the case may be, any two Adivasis”. Among Adivasis marriage between cross-cousins though allowed but the same is prohibited between parallel-cousins. Among the Pawras and the Tadvi Bhills marriage with any relative is prohibited. In this connection it is to be noted that, the Adivasi law of prohibited relations is already covered under section 5(iv) and (v) r/w. Section 3(f) and (g) and the HMA. So far as question regarding the practice allowing marriage between cross-cousins is concerned, it can be saved by Section 5(iv) and (v) of the Act. Similarly, 32 the Adivasi custom of levirate or sororate marriage can also be saved. Now the Adivasi custom regarding clan and surname exogamy is concerned, it can be equated with the gotra system of Hindus and this disability is removed by the HMA, by omitting it from the essential conditions of a valid marriage and by saving clause under section 29(1) of the HMA. According section 29(1), “A marriage solemnized by between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have be invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, and castes or sub-divisions of the same caste.” Section 29(1) is a reproduction of the 33 provisions of the Hindu Marriage Disabilities Removal Act, 1946, and of the Hindu 32 The origin of the custom levirate marriage can be traced from Rigveda and Atharvaveda and other Sanskrit literature. For example, in Ramayana, after the death of Vali, Sugriva, his brother, married his widow, Tara. Bibhishana likewise married the widow of his elder brother Ravana. When Lakshamana was hesitant to leave Sita alone in the forest and go to the help of his elder brother at her bidding. She taunted him saying ‘You wish to see Rama dead that you may get me for your wife.’ When Brhaspati approached Mamata, the wife of his elder brother Utathya, for embrace, she entreated him not to do it as she was pregnant. But when he insisted he was allowed his privilege. See, Kapadia, Supra note 10 at p 58. The word Devar (husband’s brother) means second husband. See, Saha, Supra note 17 at p 71; See also, Kapadia, Supra note 10 pp 56 – 60. 33 Section 2 of the Hindu Marriage Disabilities Removal Act, 1946, provides: “Notwithstanding any text, rule or interpretation of the Hindu Law or any custom or usage, a marriage between Hindus which is 2 21