Hindu Marriages- The Legal Perspective

The term ‘Hindu’ can be associated with the indigenous dwellers of the Indian sub-continent. Hindu scriptures can be vastly divided into ‘Srutis’ (revealed) and ‘Smritis’ (remembered), which lay down the foundation of ‘Hinduism’, the religion of the Hindus. Hinduism is world’s third largest religion, majority of which lives in India. Hinduism, in the course of time, has sub divided into Jainism, Buddhism and Sikhism.
According to the norms Hinduism, wedding is a process of bringing together two people who are said to be compatible. Unlike Muslim marriage, Hindu marriages are not contracts but holy sacraments. The Hindu ceremony of marriage is prescribed in 'Puranas' and is usually done by worshiping of Hindu deities in different manners. Although, almost all Hindus follow the same marriage procedure across the country, but the methods of performing certain rituals may vary. Customs play a very important role in determining the modus operandi of rituals in different societies. All Hindu marriages are solemnized in front of holy fire which witnesses the marriage.
The Hindu Marriage Act has given the Hindu Marriages in India a legal status. This legislation was passed in the year 1955, and it extends to the whole of India except the state of Jammu and Kashmir. It applies to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat, or a follower of Brahmo, Prarthana or Arya Samaj. The Hindu Marriage Act, 1955 under Section 5, lays down conditions for Hindu Marriage, viz.
1.    No party should have a spouse living at the time of marriage;
2.    None of the parties should be, incapable of giving free consent for the marriage due to insanity or childhood;
3.    The bridegroom must have completed the age of twenty-one years and the bride, an age of eighteen years, at the time of marriage.
4.    None of the parties should be related to each other within the degrees of prohibited degrees of relationship, unless customs permit. Degrees of prohibited relationship is defined under section 3(g)of the act as:-
“Two persons are said to be within the "degrees of prohibited relationship"-
        (i) if one is a 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 of two sisters;
5.    None of the parties should be sapindas of each other, unless permitted by customs. The term sapindas has been defined u/s 3(f) as 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, where, "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.

Section 7 of the Act, states about the ceremonies of the Hindu marriages. According to it, a Hindu Marriage may be solemnized, according to the customary rites of either party. As the marriage mostly takes place in the house of the bride, so the customs generally followed are those prevalent in brides’ family. The section further contemplates that Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. Saptapadi as a ritual differs from place to place or even family to family. It somewhere includes taking of seven steps and somewhere revolving around the holy fire for seven times by the bride and the bridegroom jointly by tying together the sashes worn by them. The holy fire, agni, is considered to be the witness to the vows taken during each step or revolution. The vows taken, include:-
a.    The bride and the groom take the first step of the seven vows to pledge that they would provide a prospered living for the household or the family that they would look after and avoid those that might hinder their healthy living.
b.    During the second step, the bride and the groom promise that they would develop their physical, mental and spiritual powers in order to lead a lifestyle that would be healthy.
c.    During the third vow, the couple promises to earn a living and increase by righteous and proper means, so that their materialistic wealth increases manifold.
d.    While taking the fourth vow, the married couple pledges to acquire knowledge, happiness and harmony by mutual love, respect, understanding and faith.
e.    The fifth vow is taken to have expansion of their heredity by having children, for whom, they will be responsible. They also pray to be blessed with healthy, honest and brave children.
f.    While taking the sixth step around the sacred fire, the bride and the groom pray for self-control of the mind, body and soul and longevity of their marital relationship.
g.    In the seventh and the last vow, they promise that they would be true and loyal to each other and would remain companions and best of friends for the lifetime.
Once a marriage is solemnized, the bride and the bridegroom are under social, moral and legal binding to live as couples. When either the husband or the wife, without any reasonable excuse, withdraws from the society of the other, the aggrieved party, by law, can apply for restitution of conjugal rights.

The act further also defines the void and voidable marriages. The marriages which are performed in contravention of section 5 are Void Marriages, burring Sub-clause (ii) to section 5. There are certain grounds on which either party to marriage can declare the marriage voidable. Section 5(ii) may be considered as such a ground. A case where the marriage fails to consummate due to the impotence of the opposite party, can also be example of a voidable marriage. Other such instances are mentioned under Section 12 of the Act.
Section 8 of the Act, actually gives any marriage under the Hindu Marriage Act a legal status by registering the same. The Section states that “For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.”
Let me now elaborate something on the concept of Divorce under the Hindu religion. Although the concept of Divorce is a foreign concept for Hinduism, it had to be imbibed into the culture especially for determining freedom of Hindu women. In the medieval period, status of women worsened to such an extent that the concept of Divorce had to be given a kick start. However, even today, in Hindu society, the concept of divorce is not well accepted and is not as frequent as in Christian countries. The bond created by a Hindu Marriage is considered to be a bond for 7 births and is regarded as a pious relationship. But still, Section 13 of the Act provides for grounds of divorce. Adultery, Desertion, Conversion to other religions and cruelty are some important grounds under the Section. Section 14, says that “No petition for divorce to be presented within one year of marriage” i.e. it creates a legal bar on the parties to a marriage to stay within the relationship created by marriage for at least one year. Further Section 15 states about when divorced individuals can re-marry. It reads that “When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”
It was a common system among Hindus some decades ago to have more than one wives, but such system has been declared illegal now a days. Hindu Marriage Act, itself punishes, ‘Bigamy’ through application of the Indian Penal Code. Section 17 of the Act states that if after commencement of this Act, any Hindu marries within the lifetime of his/her spouse, he/she shall be guilty of Bigamy and Sections 494 and 495 of the IPC shall apply in such case accordingly.

Conclusively, it can be stated that although the Hindu Marriage system is a system of marriage highly based by religious foundations like ‘Puranas’, the Hindu Marriage Act, gives it a legal status.

-Krishanu Ray

Right to Information.

                                

It is well known to all of us that our country's goverment runs on the taxes paid by us. We citizens contribute for functioning of the government every now and then. Whether it is income tax, sales tax, value added tax , electricity tax, water tax or any other such tax levied on the citizens the need behind all is functioning of the government and its organs. Without funds the government cannot function. 

Now just think,  if we pay for the functioning of the government, shouldn’t we have a right to question the government as to how and what the government is doing for us?

Yes, we have. Although this right has been recognized very late but the fact is that it has now been recognized legally. 

The Right to Information Act was passed in 2005, facilitating access to information about functioning of any public body.

The act in its object clause states that:

“Whereas the Constitution of India has established democratic Republic; 

And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed; 

And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information; 

And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal; 

Now, therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it.”

Moreover, it is a well accepted fact that information is power and thus to empower the citizens they must be given this essential right to Information. Robin Morgan, an American activist once said  "Knowledge is power. Information is power. The secreting or hoarding of knowledge or information may be an act of tyranny camouflaged as humility."

Section 2(f) of the Act defines the term ‘Information’ as, “Information means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.” And under section 2(h), it defines the term ‘Public Authority’ as “Public authority means any authority or body or institution of self- government established or constituted—     

(a) By or under the Constitution;

(b) By any other law made by Parliament;    

(c) By any other law made by State Legislature;   

(d) By notification issued or order made by the    appropriate Government, and includes any:—

      (i) Body owned, controlled or substantially financed;       

     (ii) Non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government. ”

The right to information act only applies to the Public offices and public authorities. Any private individual cannot be compelled to give any information under this act. As per the scheme of the Act, it specifies that citizens have a right to:

• request any information (as defined above).

• take copies of documents.

• inspect documents, works and records.

• take certified samples of materials of work.

• obtain information in form of printouts, diskettes, floppies, tapes, video cassettes 'or in any other electronic mode' or through printouts.

Now comes the question of the procedure by which such information can be obtained. Under the Act, all authorities covered must appoint their Public Information Officer (PIO). Any person may submit a request to the PIO for information in writing. It is the PIO's obligation to provide information to citizens of India who request information under the Act. However there is no express bar as per the act on citizens of any other country or NRIs to get the information. If the request pertains to another public authority (in whole or part) it is the PIO's responsibility to transfer/forward the concerned portions of the request to a PIO of the other within 5 days. In addition, every public authority is required to designate Assistant Public Information Officers (APIOs) to receive RTI requests and appeals for forwarding to the PIOs of their public authority. The citizen making the request is not obliged to disclose any information except his name and contact particulars.

The Act specifies time limits for replying to the request.

• If the request has been made to the PIO, the reply is to be given within 30 days of receipt.

• If the request has been made to an APIO, the reply is to be given within 35 days of receipt.

• If the PIO transfers the request to another public authority (better concerned with the information requested), the time allowed to reply is 30 days but computed from the day after it is received by the PIO of the transferee authority.

• Information concerning corruption and Human Rights violations by scheduled Security agencies (those listed in the Second Schedule to the Act) is to be provided within 45 days but with the prior approval of the Central Information Commission.

• However, if life or liberty of any person is involved, the PIO is expected to reply within 48 hours.

Since the information is to be paid for, the reply of the PIO is necessarily limited to either denying the request (in whole or part) and/or providing a computation of "further fees". The time between the reply of the PIO and the time taken to deposit the further fees for information is excluded from the time allowed.

If information is not provided within this period, it is treated as deemed refusal. Refusal with or without reasons may be ground for appeal or complaint. Further, information not provided in the times prescribed is to be provided free of charge.

For Central Departments as of 2006, there is a fee of Rs. 10 for filing the request, Rs. 2 per page of information and Rs. 5 for each hour of inspection after the first hour. If the applicant is a Below Poverty Card holder, then no fee shall apply. Such BPL Card holders have to provide a copy of their BPL card along with their application to the Public Authority. States Government and High Courts fix their own rules.

Chief Information Commissioner (CIC) is the head of all the information officers. The State Information Commission will be selected by the State Government through a Gazette notification. It will have one State Chief Information Commissioner (SCIC) and not more than 10 State Information Commissioners (SIC) to be appointed by the Governor.

At the end of year CIC is required to present a report which contains: 

(a) the number of requests made to each public authority;

(b) the number of decisions where applicants were not given permission to access to the documents which they request, the provisions of the Act under which these decisions were made and the number of times such provisions were filed; 

(c) details of disciplinary action taken against any officer in respect of the administration of the Act; 

(d) the amount of charges collected by each public authority under the Act.

But right to information does not give absolute freedom to the citizens to obtain any and all information. Section 8 expressly bars certain information which cannot be sought for even under the act. Section 8 reads as:

“Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—

    (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;     

      (b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

    (c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

     (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;       

     (e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; 

   (f)  information received in confidence from foreign Government;

   

    (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;  
   (h) information which would impede the process of investigation or apprehension or prosecution of offenders;     

    (i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:       

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: 

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; 

   (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:       Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.   

(2)   Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

(3)   Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section:       

Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act. ”

Section 11 of the Act deals with third party information which reads as follows:

"Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information" but a proviso fore runs the provision stating that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.

On enactment of the legislation, it was observed that more than 40,000 applications under the act were filed in the first year of its implementation alone. This shows that citizens were concerned about the working of the public machinery, but because of absence appropriate right could not raise their voice. For a democratic country like India, a legislation of this kind is very important.

Thus, it is necessary that we spread education regarding right to information so that every person can now exercise it. This would help us to withdraw ourselves from witnessing any wrong and injustice against us. But at the same time we should not try to make any misuse of the act for harassing the government authorities by asking them for irrelevant information every now and then.

-Krishanu Ray