Vous êtes sur la page 1sur 18

FAMILY LAW

PROJECT

TOPIC : Marriage and Divorce

under
Punjab Customary Law

Submitted To: Ms.Imrose Tiwana


Submitted By : Shelly Arora, 213
B.Com LL.B (Hons.)

2014 - 2015

Acknowledgement
I am using this opportunity to express my gratitude to everyone who supported me throughout
the course of this FAMILY LAW project. I am thankful for the aspiring guidance, invaluably
constructive criticism and friend advice during the project work. I am sincerely grateful to them
for sharing their truthful and illuminating views on a number of issues related to the project. I will
strive to use gained skills and knowledge in the best possible way, and I will continue to work on
their improvement.
I express my warm thanks to my subject teacher Ms. Imrose Tiwana for giving me opportunity to
work on this topic and without her support and guidance ,I would have not completed this
project.
Furthermore I would also like to acknowledge with much appreciation the crucial role of the
Library staff of the department, who gave the permission to use all required equipment, books
and necessary material required to complete the task, and thanks to all the people who provided
me with the facilities being required and conductive conditions for my Hindu law project. . I
choose this moment to acknowledge their contribution gratefully.
A special thanks goes to my class mate, who help me to assemble the parts and gave
suggestion about the task .
I also acknowledge with a deep sense of reverence, my gratitude towards my parents and
members of my family, who has always a supported me morally as well as economically.
Any omission in this brief acknowledgement does not mean lack of gratitude.

Shelly Arora

CUSTOMARY LAWS
In India ,customs has been recognized as transcendental law, i.e.
customs over-rides the personal law. Under Hindu Law it has been the
established rule that "clear proof of customs will overweigh the written
text of law".1
In India, customs has been four types : customs of caste (this
expression is relevant in respect of Hindus) or tribes ( this expression is
relevant to Punjab), local customs, family customs and customs of
merchants and traders.
Under Punjab customary law the three fold division of custom into
tribal custom, local custom and family custom exists only in a very
broad sense, otherwise, strictly speaking, customs in Punjab is neither
tribal, nor local nor familial. In a sense it is both local and tribal, but it
may vary from tribe to tribe and from Tehsil to Tehsil.2
In Punjab the custom is not general either -general in the sense that
any particular custom being applicable to all Punjabis. Customs in
Punjab is predominantly tribal. But this general statement of law has to
be accepted with a pinch of salt.
The question whether a custom is local or tribal becomes important
when we consider the question of proof of custom. The difficulties arise
as it cannot be said categorically that members of a tribal wherever
they may be are necessarily governed by the same custom or that the
people living in a locality are governed by the same local custom.
The matter of the fact is that the custom in the Punjab cuts across
each other : in a sense it is both local and tribal and in sense it is
neither local nor tribal.
1 Collector of Madura Motoo Ramalinga (1868) 12 MIA 397.
Paras Diwan, Customary Law (Panjab University, Chandigarh : Shubhash Chander), 22.

2
Mara v. Tikko AIR 1964 SC 1821.1.

It is interesting to note that the term "customary laws" has come into
vogue and whenever we refer to the Punjab customs we call the
"Punjab Customary Law". The term " Punjab Customary law", is used
since it refers to body of rules which governs Punjab tribes. and it is as
much binding and enforceable as rule of law.

MARRIAGE
With the coming into force of the Shari' at Act 1937 a very little of
customary law of marriage has been left which applied to Muslim
tribes. With the coming into force of the Hindu Marriage Act 1955 only
a few areas of customary laws of marriage have been operative.

CONCEPT OF MARRIAGE
Despite the spread of Hinduism, the tribal Punjab retained its
customary law of marriage almost intact, with the result that the
customary law remained a secular law, and the notions of marriage as
a sacramental union and holy bond did not invade customary law,.
Some Hindu tribes converted to Islam, but in their secular matters
relating to marriage , are governed by customs.
Marriage under customary law has been a very simple affair. It is based
in the mutual consent of the parties to marriage or their guardians
when parties are minors. Thus, marriage under Punjab customary law
has been essentially a contractual union.
It has been the considered view of the Punjab Chief Court that among
certain tribes "even if no ceremonies are performed, and the
connection has been long established and the woman treated as a wife
by the man and recognized by the bradari then it was treated as a
valid marriage."3
However, this does not mean that all customary marriages are without
any rituals and ceremonies. Some particularly the high caste Hindus,
perform most of the Hindu rituals and ceremonies. What is emphasized
here is that under the Punjab customary law a marriage by mutual
consent followed by cohabitation even without the performance of any
rituals and ceremonies is also valid.4
3
Sahib Ditta v. Bella 50 PR 1900.
4
Harnam Singh v. Bhagi AIR 1936 Lah 261 2.

FORMS OF MARRIAGE
Strictly speaking, there are no forms of marriage under customary law
as we talk of them under Hindu law. Different tribes follow different
formalities and if we classify them in accordance to formalities their
number will run into several scores.
However, there are two forms of marriage.

KAREWA MARRIAGE
In the letter and spirit of law , the karewa marriage is essentially a marriage
by mutual consent without the performance of any ceremonies whatsoever.
When a man and woman agree to live as husband and wife and cohabit as
such, a valid marriage results between the two. Mostly such marriages are
performed in low caste Hindus. But sometimes high caste Hindus also
perform karewa marriage. In such marriages women is usually a widow, divorcee or
abandoned woman. Among Jat tribes marriage with a widow ( usually with a brother's widow) in
this form is very common. here under the woman bears him children, such children are
accepted as legitimate children in all respects , and the brothers widow gets the status of wife.5
In some cases it has been stated that the pure Brahamans and Rajputs do not enter into such
marriage.
It is submitted that a kawera marriage can take place with any woman, relative or stranger,
though usually the woman is a widow, divorcee or a abandoned wife. What distinguish the
5
As Kaur v. Sawan Singh 79 PR 1910
3.

kawera marriage from others is that no ceremonies ( even a semblance of ceremony)


whatsoever are required to be performed and mere cohabitation gives rise to marriage
conferring on the parties the status of wife and husband and legitimacy on the children of such
marriage. In short , in the eyes of law it is perfectly valid marriage.

CHADAR- ANDAZI MARRIAGE


Remarriage of widows has all along existed commonly, and the chadarandazi, in which the the ceremonial has been reduced to the very minimum,
is one of the recognized form of the marriage. In the Rattigan's Digest the
statement of law is thus made :
" A Kawera marriage among the jats usually takes place in the chadarandazi form which means throwing the chadar over the couple about to be
married ".6
the marriage under this forms takes place in several modes. The two
common modes are :
(1) the four corners of chadar are tied and some saintly person or relatives
spread over
bride and bridegroom at place where they are seated to be
married.
(2)
in another mode the bridegroom places the chadar over the bride who
comes under it. The placing the chadar over the woman and its acceptance
by her or the coming of the bride and bridegroom under the chadar, is a
mode of expression of intention by parties
to live together as husband
and wife.
it is a type of contractual union :
Placing the chadar on woman by man - making a PROPOSAL
Acceptance of the chadar by woman - ACCEPTANCE
But in chadar - andazi as well in kawera marriage it is the COHABITATION
which results into the marriage. Once this form of marriage is established it
confers the status of husband and wife on the parties, and the legitimacy on
the children of the marriage.
It can be performed with a total stranger.
In Dalip Kaur v. Fatti7 it was performed by a Sikh jat with a Muslim woman
convert to Sikhism.
6
Digest ( 16th ed.), 476.

7
Dalip Kaur v. Fatti 99 PR 1913.

4.

CAPACITY TO MARRY
The capacity to Hindus to marry is now governed by the Hindu Marriage Act
1955. However, clauses (iv) and (v) of section 5, Hindu Marriage Act lay
down that in the matter of Sapinda relationship and degrees of prohibited
relationship parties may still be governed by custom provided they are
governed before the coming into force of the Hindu Marriage Act.
INTER CASTE AND SAGOTRA MARRIAGES :
Under customary law inter - caste marriages were not permitted as a rule.
Marriages within same got were considered invalid. The general rule was
that the person cannot marry a woman belonged to his got. Some tribes
held that one cannot marry a women who belonged to one's mother's,
father's mother's, and mother's mother's got. Among some tribes and castes
there has been a well recognized custom under which sagotra marriages
were valid. After coming of Hindu marriage act 1955 , the prohibitions of
inter - caste, inter sub caste, and inter tribe have been done away, now "
ANY TWO HINDUS CAN MARRY". However , Hindu cannot marry a non- Hindu.
Among the Muslims tribes inter- sect and inter- school marriages have been
valid and are still valid. A Sunni male can validly contract a marriage with a
kitabia but NOT with an idol- worshipper or fire- worshipper. This type of
marriage is not void but merely irregular. The shi'as are more rigid, and
neither a shi'a male nor a shi'a female can marry a non- Muslim.

AGE :
Under Hindu Law, Muslim Law, and under Customary Law, marriage of
minors have been valid.
Hindu law - the Hindu marriage act 1955 lays down that a male below age
of 18 and a female below age of 15 cannot marry , and if the girl is below the
age of 18 the consent of guardian is necessary. Now the matter is subject to
the provisions laid under Child Marriage Restraint Act 1978 which says that
male below the age of 21 and a female below the age of 18 cannot marry.
Muslim law - A male or a female below the age of puberty can marry only
with the consent of the guardian.
Customary law - rule has been that for the marriage of minor, the consent

of guardian is necessary. If the bride or bridegroom is major, his or her


consent, as the case may be, is necessary.
5.
BIGAMY :
Under customary law, a Hindu male has permitted to take more than one
wife and a Muslim male was permitted to have four wives at a time. After
coming into force of the Hindu Marriage Act 1955, no Hindu can take a
second spouse, and bigamy ( both polyandry and polygamy) have been
made penal offences, and a party guilty of bigamy can be prosecutes under
Sections 494 and 495, Indian Penal Code. Muslim can still have four wives.
Rattigan's Digest says that "until the former marriage is validly set aside, a
woman cannot marry a second time".8

MARRIAGE WITH A WIDOW :


In Rattigan's Digest it is stated, "The woman amongst the three superior
classes of Hindus must not be dharel of the widow of another man.9
It has been an established preposition that among the lower castes, widow
marriages have been very common and valid. Although there is no direct
prohibition of marriage between the father - in - law and widowed daughterin - law among the lower castes, but it is considered to be repugnant to good
morals and therefore, is not valid. But in Jaginder Singh v.Kartara10, such
marriage was held liable.

MENTAL CAPACITY :
8
Digest (16 ed.), Para 74, p. 473.
9
Digest , Para 70 (d), p.466.
10
AIR 1936 Lah 551

6.

There is not much discussion whether mental capacity is necessary. But in a


series of case it has been laid down that if parties are adylt their consent is
necessary. In this respect , now the Hindus are governed by the Hindu
Marriage Act 1955 section 5 (ii) lays down the terms.

PROHIBITED RELATIONSHIP :
The modern Hindu law puts the prohibition for marriage on the basis of
relation inder two categories :
(a) Sapinda relationship,
(b)Degrees of prohibited relationship.
The sapinda relationship with reference to a person extends as far
as the fifth
( inclusive) in line ascent through the father, and the third
generation (inclusive) in the line of ascent, the line being traced
upward in each case from the person concerned who is counted as
the first generation.
Two person are said to be within the degrees of prohibited
relationship.
(i)
If one was wife or husband of lineal ascendant or descendant
of the other.
(ii)
If one was the wife of the brother or of the fathers or
mothers brother or of the grandfathers or grandmothers
brother of the other, or
(iii) If the two are brother and sister, uncle and niece, aunt and
nephew, or children of brother and sister or of the two
brothers or of the two sisters.11

11
Section 3 (g), Hindu Marriage Act 1955.
7.

Under Punjab customs, among several tribes, marriage


between two person which are either sapindas to each other
or are within the degrees of prohibited relationship is
recognized.
For instance, marriage with the mothers sisters daughter or
fathers sisters daughter or sisters daughter is permitted in
some tribes.
Under Muslim law , there is also prohibition with certain
relations which fall under five categories:
(i)
(ii)
(iii)
(iv)
(v)

Consanguinity
Affinity
Fosterage
Unlawful conjugation
Woman undergoing idda

CEREMONIES OF MARRIAGE :
In respect of requirement of formalities of the marriage one often finds the
following statement, As a general rule, no particular form of ceremony is
necessary, even among higher castes, to constitute a marriage. In fact, it is
not the ceremonies but the consent of the parties which constitute
marriage.12
Marriage under customary law may be solemnized in three modes :
(i)

(ii)

(iii)

Firstly, the religious or sacramental ceremonies are required to be


performed in the higher classes of Hindus when they perform a
regular or normal marriage.
Secondly, some formal and secular ceremonies are to be performed
tribes for the performance of normal and regular marriage (included
the Muslim tribes).
Thirdly, no ceremonies whatsoever are required to be performed in
some tribes; mere intention to live together as husband and wife

12
Rustomji, A Treatise on Customary Law (1949), 267.
8.

followed by cohabitation is enough (usually in lower tribes ; karewa


and chadar -andazi marriage) .

DIVORCE
At a time, when divorce was not recognized under Hindu Law,
Hindus cannot obtain divorce only if a custom governing them
allowed divorce. That marriage is a contractual union finds its full
manifestation under customary law in the very simple modes of
divorce, including divorce by mutual consent.
Other matrimonial reliefs, such as nullity of marriage, judicial
separation and restitution of conjugal rights, were unknown to
customary law.
DIVORCE :
As to the customary divorce the law has been stated by Rattigan in
paras. 72 and 73.
Para 72 runs :
Amongst Muhammaden of all classes a man may divorce a wife
without assigning any reason; but this power, in the absence of
special custom, is not allowed to Hindus, nor to females of any
class.
Para 73 runs :
Until the former marriage is validly set aside a woman cannot marry
a second husband in the lifetime of her first husband.
Under customary law no formal forum of divorce is provided. It may
be obtained through a panchayat or from family tribunal, or by
private act of parties such as by agreement, oral or written , or by
bill of divorcement such as tyag patra or farkat nama.
No specific grounds of divorce are recognized. Divorce may be
obtained by mutual consent. It appears, most jat tribes recognize
easy mode of divorce. In some divorce is in writing, in some it is
oral.
WRITTEN DIVORCE :

Some tribes, such as Ghuman jats, insist that the divorce must be in
writing. In such cases it is not necessary to state the grounds of
divorce. Mostly, in such a case divorce is unilateral; whenever the
husband wants to divorce his wife , he writes a tyag patra ( in case
of Hindu tribes) or farkat nama (in case of Muslim tribe). However,
there is no rigidity. It must be clearly understood that customary law
does not prescribe ant form; written deed must clearly express the
intention to divorce. When divorce is recognized it is valid, and the
woman is free to remarry.
RENUNCIATION, ABANDONMENT OR REPUDIATION :
Among several tribes and communities , particularly the Jat tribes, a
husband has the power to repudiate the marriage. In LACHHU v.
DAL SINGH where parties were Ghuman jats of Gurdaspur tehsil,
Roe, CJ observed: It is in no way repugnant to the spirit of this law
that a man who takes a wife should have the power of repudiating
her and that, when so repudiated, she should be free to marry
another man. In some cases view has been expressed that mere
abandonment of the wife by the husband does not lead to
automatic divorce, and if the abandonment wife lives with another
man as his wife, the second marriage will not be recognized. Among
some castes, just as zargars of Gurdaspur District abandonment or
desertion of the wife by the husband does not lead to divorce.
EXPULSION FROM CASTES :
Expulsion of the husband from the caste does not lead to divorce,
and the wife cannot refuse to live with the husband.
9.
IMMORALITY , UNCHASTITY , ADULTERY OR CONVERSION :
Among some tribes the husband can divorce his wife on the ground
of unchastity, immorality or adultery. In Bhan Kaur v. Isher Singh13
the court recognized that among Malerkotla Jats the husband has
the power to divorce a wife who is immoral or who committed
adultery or who converted to another religion.
APOSTASY :
13
1958 PLR 136

Before the coming into force of the Dissolution of Muslim Marriage


Act 1939, the position was that apostasy ( conversion to another
religion ) of either husband or wife operated as an instant
dissolution of marriage.14 This was also the position among the
Muslim tribes of Punjab. Now, under the Hindu Marriage Act 1955,
the conversion of wife or husband entitles the other party to sue for
divorce.15
DIVORCE BY MUTUAL CONSENT :
The customary law recognizes divorce by mutual consent.
Sometimes such divorces are in writing and sometimes these are
oral. Sometimes the consent of the husband is obtained by making
payment to the husband of the actual expenses of the marriage.
Such a divorce is valid. But the marriage with woman whose
husband is alive even with the knowledge of the latter is not valid.
RESTITUTION OF CONJUGAL RIGHTS :
The matrimonial relief of restitution of conjugal rights was made
available to all communities at an early period of British rule in
India. Apart from the statuses , the remedy of restitution of conjugal
rights is available under the general law by a suit for restitution of
conjugal rights in the lowest civil courts. There is no period of
limitation within which a suite of restitution of conjugal rights may
be filled. In a view of this, Para 79 of Rattigans Digest which lays
down that a suite for restitution of conjugal rights must be filled
within two years from the time when restitution is demanded and
refused, has become obsolete and states the law.
The remedy of restitution of conjugal rights is nor recognized under
customary law. Since they are no customs in any tribes which
recognized anything like this.
(i)
Sometimes panchayat or bradari persuades unwilling wife to
go to husband.
(ii)
Made available to all communities at an early period of British
rule in India.
14
Ameer Ali. Mohammaden Law (5 th ed.) II, 388.
15
Section 13 (1) (ii), Hindu Marriage Act 1955.
1O.

(iii)
(iv)
(v)

Now available under all statutes of Hindu marriage act 1955.


Muslim can obtain this relief by filling a suite in the civil court
of lowest jurisdiction.
Among the Hindu jats and Muslim Gujagrs a minor husband is
not in tilted to restitution of conjugal rights.

CASE : UTTI V. HEERA SINGH

16

The court said that a husband who has abandoned his wife is not in tilted to
restitution of conjugal rights. The court observed that since the husband, by
a written deed, had stated that he gave her up, have no further claim upon
her and that another man might marry her, he could not have his wife back.
OPTION OF PUBERTY
In Rattigans digest, Para 71 it is stated : a marriage once legally performed
between two adults cannot be repudiated except by the exercise of divorce
where such exists.
Under customary law consummation of marriage is nor necessary for
validating a marriage. When a Muslim minor is given in marriage by a
guardian other than a father of grandfather, it has the right to repudiate the
marriage on attaining majority assigning any reason. This is known as option
of puberty for the exercise of option of puberty, the following two conditions
must be fulfilled:
(i)
(ii)

The option must be exercised on attaining on puberty, and


The marriage should not have been consummated.

Now , Child Marriage (Amendment) Act 1978 will now act on the law
of age of marriage under various personal laws.

16
78 PR 1893.

11.

Bibliography
BOOKS :
(i)

Diwan Paras ,Customary Law of Punjab and Haryana.


Panjab University Chandigarh : Jain Law Agency, (2006).

WEBSITES :
www.indiankanoon.com

Vous aimerez peut-être aussi