On Hindu personal Laws

Posted on March 7, 2008

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The original context can be found in the comments section of my post “Atheism, marriage and Law” found in Mutiny Archive for Dec 2007.

Key context Section 19 of Special Marriage Act and how it is worded in manner to discourage inter caste marriages are discouraged. Below are the long comments I made in that post. Archiving them here for people who might not want to read the entire comment thread.

Comment number 007
28 Feb 08, 3:30 am

@Mullah…You read a post comment thereby but you miss the fact that the same point was already raised by another person and I also addressed that herein.For your poor vision here it goes again…I repeat my point, Section 19 is there to discourage people from marrying in any other way than that prescribed by Hindu Marriage Act, which incidentally only allows to Hindus to get married. You say the Section is to simply settle matters related to property.

But no, had that been the case the language could have been different. In India there are hundreds of clauses / sections / enactments in place which nullifies or circumstantially overrides other clauses / sections / enactments.

The language that is generally used by legislature to give over riding effect is a very specific one… phrases like “shall be deemed to have no effect” “nothing herein shall” “notwithstanding”

They could have simply said, “marriages solemnized under this act would not be governed by the Hindu Succession Act.”

There is a reason they used strong words like, “severance from such family.” The reason is to discourage from marrying outside religion.

Comment number 013
01 Mar 08, 6:42 am

Mullah,You have turned a new leaf indeed, which is, you have totally gone off topic, here and on the other thread. I’ll respond both places. Glad to know you are interested in keeping this debate on.You assume I don’t know tax laws and so you laugh at my knowledge. You are right I don’t know tax laws at all, when did I ever get into the topic of tax laws. But since you ONLY know tax laws you had to flaunt your knowledge even if we are not talking about it.

The point I made in this piece is very simple. There is a great legislation in the country under which two people from different religion can get married without any hassle, even though their parents won’t support them in the wedding. The Hindu Father won’t do a Kanyaa daan and the Kazi (or whoever is the person who performs wedding in Islam in whatever process, am not sure) won’t solemnize the marriage, but the state has a mechanism in place to allow such couples to be legally wedded and live happily ever after.

It is a great law, very secular and all and I want more people to be aware of this law, but my problem is with the language of section 19. I am repeating it for the Nth time, that the language of the section is what is problematic not the content.

Why? Because the language gives a wrong message. You are right, I don’t know law, I sleep with my boss to keep my job but I know English. To say, “any member of an undivided family…shall be deemed to effect his severance from such family” is not something anybody would take very lightly. The words “severance from family” will make a chill run through the spine. For a country like India where the family is the epitome of culture and good existence anybody severed from the family is miserable enough to not live at all let alone live happily ever after.

So am thinking why such strong words. Why is the section not even quoted by the common legal jargons like “For the purpose of…” OR “Save as otherwise”. Hindu Succession Act itself has Section 4 which lays down an “over riding effect” and it starts with, “For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of…”

Just how difficult it is to make the “severance from family” bit subtle. If the section would have simply started by the words, “For the purpose of taxation and inheritance of Hindu property…” it would have been much subtle and wouldn’t have given this message, “Fine, go ahead get married without our permission but you’d be severed from the family”. If only they would have clearly stated the purpose of such severance from family.

But why am I telling you all this. I don’t have to argue so much because there are smarter people sitting up there and debating over this section. The National Commission of Woman has already recommended this section be deleted, because the other laws related to HUF and its property already have an over-riding effect. So it need not even be repeated here for any other purpose except to link the “decision to marry” with “severance from family”. The reason given by NCW for its deletion is, “Just only because of the marriage has been solemnized under this Act should not have effect on his severance from such family.”

Above all, this section not just gives a wrong message it is also factually incorrect. As per the Hindu laws, people within Sapinda relationship cannot marry each other. In simple language, it means cousins can’t marry or one can’t marry his / her niece nephew etc. If this section holds true, which is to say, if the person is automatically severed from such family, and the purpose of severance is never declared nor is it restricted to property matters only, the person marrying under this law would fall outside the Sapinda relations altogether due to the severance. And then his / her child can marry another cousin within this family?

But no, that can’t and shouldn’t be the intention of the legislature. So what is the intention behind the section? Same as I already mentioned. Discourage.

Now, I don’t even know why did you even begin to talk about this section. I thought the debate was about secularism, the pseudoness of it in all your might, why are you going into the question of how valid is Section 19 of SMA. Why are you giving me links to Express India and throwing your gyaan on case law at me when I am not debating them.

You said, “the HUD is basically a special case provision for tax, inheritance, income determination purpose. If the government used language to override every provision of HUD it would be the legal equivalent of saying that person has severed his/her ties with HUD.

What? I didn’t get it. Frame your questions properly. What is your point? When did I say anything about over riding every provision of HUF (and what is HUD)? Legal equivalent of what? I honestly didn’t get the question here. Nor the point.

HUF is not a concept invented by taxation laws btw. It ain’t invented by any law for that matter, it was there even before any legislation existed. They call it customary law in case you don’t know. Income Tax Act in 1961 only incorporated the concept and made special provisions relating to it.

You said, “I studied law only in two courses for 6 months for my MBA to cover product liability and I seem to know more.”

No wonder. Like they say, “a little knowledge is a dangerous thing.”

And then this is funny, your cry baby comment, “I have argued using case law and legal terminology that this article of yours is a piece of crap”. This was like a desperate attempt to seek other people’s attention, “hey look Modern Mullha knows case law and legal Jargon, wow!! LOL

Lastly, I don’t complaint to the moderator here, I suggest. I criticize. And there is no moderator, there is an edit team which is pretty democratic. I, in fact suggested you be only given a warning and not delete your comment. A warning, so that other people get the message that mutiny is watching and takes care when a commentator goes against the comment guidelines. Personally I have had enough flame wars in life I give to hoots about personal attackes, what more I myself indulge in it at times.

But 2S decided to delete your comment. Here’s to your happiness, your edited comment copy pasted just so that onlookers can get an idea of your great mind.

Modern Mulla said, @Sanjukta,

Also I feel that your parents are to blame for failing to inculcate good values in you about Hindu culture. They must have been more worried about getting you a good education and life partner. So your pseudo-secular rants out here are more a reflection about your family and upbringing.

Funny, how all this talk of Hinduism, Hindutva and Hindu Rashtra and the speech makers are trying their hard luck earning dollars and green cards in one of the most stupid nation. So much for the love of nation.

Mere laal, is desh mein kuch na rakha hai, videsh jaao dher saara dollar kamaao par wahan baith ke raashtra nirmaan zaroor karo.

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Posted in: Debates, Personal Law