Hindu Marriage: A Comparative Legal Analysis between Bangladesh and India.

 

 S. M. Wasti Fahim 

Marriage is a sacred and inviolable union through which husband and wife acquire the right to form a family. It is an important part of human life. The idea of traditional Hindu marriage is thousand years old. According to Hindu law, marriage is a sacrament and eternal bond between husband and wife. A marriage is accomplished through the recitation of Mantras and the performance of accompanying rituals. However, to meet the needs of the era, the marriage system changed over time. This comparative analysis examines the legal frameworks governing Hindu marriages in Bangladesh and India, highlighting significant differences in codification, marriage registration, divorce provisions, and women's rights.

Almost all of the laws regulating the marriage of Hindus in Bangladesh were enacted during the colonial era except Hindu Marriage registration act, 2012. Firstly, The Hindu Widow’s Remarriage Act 1856 allows remarriage of hindu women whose husband is death notwithstanding anything prevailing is custom. But section 2 of the same act provides, if the woman remarries, her right to property ceases to exist in whatsoever manner. Again, she will not entitled to the guardianship of the children because of remarriage. Secondly, to ensure the rights of the hindu women in property The Hindu Women’s Right to Property Act, 1937 was enacted. Section 3 of the said act enunciates that, if any hindu man dies intestate leaving a widow, she shall be entitled to the property like a son. In Jyotindranath Mondal v. Gouri Dasi, it was opined by the High Court that

‘The term ‘property’ in Hindu Women’s Right to Property Act, 1937 shall deemed always to have been included, agricultural land.’

Hence, a Hindu woman has the right to property irrespective of its nature. Thirdly, as being an eternal bond there is no provision of divorce under the Hindu law. This means a hindu man and women whoever he or she is cannot cause a divorce. However, a Hindu women can live separately pursuant to some grounds enunciated in The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946.

Fourthly, inter-caste marriage is still prohibited under the laws of Bangladesh. However, a marriage cannot be declared illegal just because it was solemnized between same gotra or pravara or subdivision of the same caste notwithstanding customs, usage, text or rules. Again, The Hindu Marriage Registration Act, 2012 is deemed problematic as it does not contain any provision of mandatory registration of marriage. According to Section 3 of the said act, ‘Notwithstanding anything contained in any other law, custom and usage-rituals, for the purpose of protecting the documentary proof of Hindu marriage, Hindu marriage may be registered, in the manner prescribed by rules.’ The legislation carefully uses the word ‘may be’ just to avoid the mandatory registration procedure of Hindu marriage. Moreover, a valid marriage shall not in any way affected just because it was not registered.

Hindu Marriage is full of sacred rituals. This creates some ambiguities as to when the marriage is validly solemnized. In the case of Utpal Kanti Das v. Monju Rani Das, 50 DLR (AD) 47, the legality of the marriage was questioned. In this regard, the Court opined that,

‘The nuptial rites in Hindu shastra are extremely complicated and an exact observance of the details of the rituals is beyond the comprehension of the common man. Once the celebration of a marriage, in fact, is established there shall be presumption of a valid marriage with attending observance of essential ceremonies.’

Hence, the Court that presumes a marriage as a valid marriage if by fact The judgment of the Court was further referred to in the case of Ramesh Chandra v Bulbuli. In this case the Appellate Division found the necessity to amend the Hindu law to meet the current needs of the society. The court opined,

‘We are of the view that enactment of codified Hindu Law is not only a pious desire of a section of the Hindu rights activists or some of the NGOs of this country but also the majority people of the country. If there had been proper codification of Hindu Law of marriage and succession with a provision for registration of marriage definitely the male partner could not have denied the solemnization of marriage ceremony between the parties.’

The Court further suggested the legislation to enact the law. In the language of the Court,

‘…However, time has come for the legislature to think about this burning issue to find out correct solution to the problem by proper enactment or codification of Hindu Law of marriage and succession.’

In regard to personal law of hindu religion, India has updated its laws to meet the demand of the society. The legislative body of India upon considering the original text of the Hindu Shastra, enacted four laws, namely, The Hindu Code Bills. The Hindu Marriage Act 1955 is one of them. The act shall be applicable to any person who is a Buddhist, Jaina or Sikh by religion. Section 4 of the said act provided its overriding effect against any text rule or interpretation of Hindu law or any custom or usage as part of that law in force. This act prevents polgamy and polyandry. Section 5 of the said act enunciates, neither of the spouses shall have a spouse living at the time of the marriage. Thus, if any man or woman remarries during the lifetime of his or her spouse, such marriage shall be considered as void ab initio. The registration of Hindu marriages involves a structured process with clear documentation requirements. To register a marriage under the Hindu Marriage Act, parties must provide proof of identity such as Aadhaar Card or Voter ID or Passport, proof of age by the birth certificate or matriculation certificate or passport, address proof by utility bills or rent agreements, passport-size photographs, and potentially a marriage invitation card or affidavit. Thus, there is clear provision of marriage registration. A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party. The Act specifically recognizes the saptapadi or taking of seven steps by the bride and groom before the sacred fire as a definitive ceremony, stating that "where such rites and ceremonies include the saptapadi... the marriage becomes complete and binding when the seventh step is taken thereto to reduce the ambiguities whether marriage has lawful consummated or not.  Pursuant to Section 13 of the said act, there are seven grounds based on which a husband or wife can file a divorce petition. On the same provision, a women can seek divorce if husband was married again, or guilty of rape, sodomy or bestiality, failed to complay with the courts order to pay maintenance, or marriage (whether consummated or not) was solemnized before she attained the age of majority and she has repudiated the marriage before attaining majority.

The question always remains whether Hindu law permits the divorce or not. In Bangladesh there is no provision or divorce under Hindu law even if the husband is cruel in nature. The wife can only apply for separate residence and maintenance from the husband based on some grounds. In regard to divorce Indian Law Commission commented,

‘Hindu Law was never static; it was dynamic and was changing from time-to-time.’ (Para 1.11). ‘Even in regard to divorce, there are some Hindu texts which permit divorce as, for instance, the text which says that, in five cases of misfortune, women are entitled to marry another husband. These cases are: where the husband is lost and is not heard of for the prescribed period, where he is dead, or has taken Sanyas, or where he is impotent, or has committed a sin as a result of which he is excommunicated. (Para 1.19).’

Henceforth, it is high time the legislature or current interim government of Bangladesh should enact or amend the law in relation to Hindu marriage to accommodate the provision of divorce, mandatory marriage registration. It shall also remove ambiguities regarding the ceremonies of the Hindu Marriage.