The Road to HMA 1955: Laws 'Enacted' in/for India during the Victorian Era (Part 2)

A few months earlier, the Indian Succession Act of 1865 had set into law the inheritability of husband's property or wife's property by the survivor in the event of the death of one of them. The earlier distinction between movable and immovable property –or 'personalty' and realty– was eliminated for the purpose of the creation of an interest of spouses in each other's property upon death. The wife's personal property brought into the marriage at the time of solemnisation of the marriage was now recognised as being exclusively usable as per her wishes, and the husband was required to take her permission to use the same. This was later elevated to the status of Stridhan in the Hindu Marriage Act of 1955. The husband was given the same protection vis-à-vis his property. (The protection given to the husband was eroded and chipped away by a number of laws after independence which contained portions related to property. No single omnibus law was enacted in free India which told the husband in clear terms that his right to his lawfully earned or inherited property was to be severely abridged. This is an unfortunate historical series of steps, although it would be incorrect to see any master plan behind this continuing trend.)

To understand more clearly the law in terms of the apparent contradiction between creation of an interest in the spouse's property and proscription of an interest in the spouse's property, please note that the creation of an interest in the spouse's property was to happen only in the event of the death of that spouse. The concept of a pre-nuptial agreement was also introduced in this Act for the first time in Indian history.

The rights of children born out of any marriage were also delineated in this Act, including but not limited to inheritance of property and domicile. The law also attempted to provide a durable legal definition of intestacy and consanguinity. The devolution of a dead man's property was to be more just under this law than under contemporary English law, by firstly prohibiting the state from getting any share in it unless he died with no inheritors at all. Secondly, by rejecting the English notion that gifts given by a father to his children during his lifetime should be deducted from their share in his property at the time of his death. The force of lex locae rei sitae was blunted by giving no share to anyone in their spouse's property by virtue of marriage regardless of local law.

A system for creating Wills, and the distinction between valid Wills and invalid Wills was adumbrated in the law. Section XII of the Act declared that nobody could dictate to his inheritors to whom they would like to bequeath the inherited property after their death. This provision was considered just by many and unjust by many others. Further Section XVI of the Indian Succession Act 1865 prohibited the imposition of illegal, impossible or ­immoral conditions for attaining eligibility to receive bequests. The third point out of these appears to be an arbitrary inclusion, which cannot be defined in a manner which is durable. It may be said that this is rightly so, but then one man's medicine may be another man's poison, and how can a judge judge this without impinging upon the right to live life freely. It may however be mentioned that there was no genuine right to life for Indian subjects of the British empire in the days when this Act was being put through the motions by the Commissioners of the Crown.

In 1869 the Indian Divorce Act was promulgated in order to provide the sorely felt need for the dissolution of Christian marriages. This Act was a slightly modified/pick-and-choose version of a series of similar laws which were enacted in the United Kingdom in 1857, 1858, 1859, 1860, 1864, and 1866. All these laws were called Matrimonial Causes Acts (suffixed with their respective years). The Indian Act provided the granting of original jurisdiction in divorce matters to all the High Courts which were set up by the British government. The draft for the Indian Divorce Act was placed before the governor general in council in 1862, and it took them seven years to go through the law and to make changes in it before finally passing it in 1869.

The law introduced many categories of matrimonial offences which could render a party liable to being sued for divorce, and recognised a few situations where a divorce could be permitted. The various categories under which divorce was made obtainable were as follows – adultery, cruelty, desertion for more than seven years, insanity for more than two years, incurable leprosy for more than two years, conversion to another religion, willful refusal to consummate the marriage, not being heard of for 7 years, venereal disease in communicable form for two years, and a failure to obey the order for restitution of conjugal rights. In addition to these grounds, the wife could sue the husband on grounds of a conviction related to rape, sodomy or bestiality committed by him.

As can be seen from foregoing, divorce was not exactly turned into a cakewalk for Christians in India. Almost all of the conditions that were provided by the law were such, that it was not possible to even start suing for divorce until a number of years had passed from the start of the matrimonial offence. The situation today is not much different, and Christians have it even tougher than Hindus in divorce matters.

The Indian Christian Marriage Act of 1872 was brought in soon after the Indian Divorce Act. This law was made to govern marriages between two Indians practicing the Christian religion, or between foreigners practicing the Christian religion, and marriages where one of the parties is an Indian Christian. The funny thing is that the Christian Marriage Act came after the Act governing Christian divorces, quite ironically.

This law prescribed the degrees of consanguinity within which marriage was prohibited. It also prescribed the method for registration of Christian marriages in India, in case the parties wish to get the marriage recorded or solemnised by a marriage registrar. It had interesting rules like the permitted time of the day when a marriage might be solemnised by different categories of people. It also adumbrated these categories of people. It also prescribed the procedure for submitting a notice of an intention to marry, and it explained how the marriage registrar was to issue that notice to the general public.

Mangalwadi claims that the Hindu Marriage Act of 1955 is nothing but a thinly disguised copy of the Christian Marriage Act of 1872. His views may be considered controversial by many since he quite bluntly accuses Mahatma Gandhi here of sleeping with women other than Kasturba Gandhi in his Ashram without providing any source for this allegation, and connects this with the provision for restitution of conjugal rights. Those who feel that his aforementioned postulate about Gandhi's life is more than just that will of course deem it his observations worthy of note. (Mangalwadi, V.; From Ram to Abram: A History of Hindu Marriage; www .revelation /instructors /blog_post /40; posted on 17th July 2012; viewed on 10th August 2013 in Delhi)

You may also wish to read The Road to the Hindu Marriage Act: William Bentinck and/or The Road to the Hindu Marriage Act: Legislatures under the British Raj and/or The Road to the Hindu Marriage Act: Laws 'Enacted' in/for India during the Victorian Era (Part 1) and/or The Road to the Hindu Marriage Act: Laws 'Enacted' in/for India during the Victorian Era (Part 3) and/or The Road to the Hindu Marriage Act: The Anand Marriage Act 1909 and/or The Road to the Hindu Marriage Act: The Indian Succession Act 1925

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Published by Manish Udar

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Last updated on 11th April 2014
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