CHAPTER V MARRIAGE, DIVORCE AND DOWER

Prohibited degrees.- The horror of incest which, almost without exception, is said to be a characteristic of the human race, lies at the root of the prohibitions against intermarriage. But the degrees within which intercourse is forbidden vary to a considerable extent, and nowhere more so than amongst agricultural tribes in this Province. It has been pointed out by Westermarck in his learned book on the History of Marriage, a book which is destined to supersede many of the conclusions of such writers as Morgan, Tyler, Lubbock and others on several important questions concerning the origin and development of human marriage, that the extent to which, among various nations, relatives are not allowed to intermarry, is nearly connected with their close living together.

Hindus. - This is an extremely interesting explanation, and the fact, admitted by Dr. Tyler, that statistical data seem to establish a strong coincidence between the classificatory system of relationship and exogamy, would lend confirmation to the theory. Such a coincidence is certainly to be found existing among the superior castes of orthodox Hindus, whose large family households have rendered the introduction of the paternal and maternal got system of prohibitive degrees a social necessity. So also in regard to Hindu agricultural tribes the same system, with some modifications, generally prevails.

Muhammadans.- Amongst Muhammadans, those who are strict in their religious observances naturally adhere to the prohibitive degrees prescribed by the Shara, which are themselves restricted within limits which the nomadic tent-life of the Arbas obviously engendered for the sake of the purity of the home. On the other hand, those who are converts from Hinduism not unfrequently retain the customs of the families to which they originally belonged, and are found to practise exogamy or endogamy according as the got system had or had not been relaxed by those families, and the prohibitive degrees vary as one or the other practice obtains among them. The tendency, however, is everywhere as civilization advances to narrow the inner limit within which a man or woman must not marry, and to widen the outer limit within which he or she may marry.

The got system in its original comprehensive character as embracing within its fold not only the agnatic descendants of the patriarchal founder, but the descendants of all those who had placed themselves under the protection or leadership of that founder within the one cattlepen or enclosure, and who may be said to have constituted, in the Vedic sense of the expression, a “collection of cows” bears a strong analogy to the Roman gens to which attention has often been called. This gentile character of the Hindu gotra may also explain what might otherwise appear strange and confusing, that a Brahmin, a Kshatriya, a Vaisa or a Sudra may belong, as often happens, to a gotra of the same name, a fact which suggests the inference that each of these persons is a descendant of an ancestor who at some remote period beyond human memory belonged to the same “patriarchal cell” which was founded by the common spiritual teacher or patriarchal chief at a time perhaps when there was no law to prohibit the different classes of the people from living together, or from eating and drinking together. But in modern time gotras sub-divide, and within this sub-division we frequently find, as amongst Punchzati Khatris, that the prohibited degrees are narrowed, following in this respect the tendency to which reference has already been made. Each sub-division becomes as it were an independent group having gotra of its own.

Grewal Jats.- The popular history of the Grewal Jats of Ludhiana affords a remarkable instance of this. The founder of this Jat tribe, having married a Jatni of presumably lower tribe, was outcasted by his brethren, and he thereupon established a got of his own, which he called after his son, and his descendants, having gradually spread over the country and gained influence, the Grewals rose in importance, until at the present day they admittedly stand at the top of the social scale amongst the Jat gots (Tupper’s Customary Law, Vol.V, p.7). Another instance may be mentioned applicable to the Dhai and Char Ghar Khatris. Three of these – Kapurs, Khannas and Malhotras – have the same gotra (Kaushal), but each ghar or sub-division constitutes and independent group, and intermarriages between these sub-divisions are allowable.

Ordinarily, if the circumstances can justify such a course, the presumption should be in favour of validity of marriage (A.I.R.1934 Lah.550).

70. Essentials of valid marriage. - A marriage to be legally binding must fulfil the following conditions :-

1. Prohibited degrees. - The parties must not be related to each other within the prohibited degrees of consanguinity, which include -
   
   1. Amongst orthodox Hindus. – The female descendants within the seventh degree (inclusive) from the father, paternal grandfather, and the rest; and the female descendants as far as the fifth degree (inclusive) from the maternal grandfather, and the rest; also the female descendants within the seventh degree (inclusive) from the father’s cognates (or bandhus), and their six ancestors through whom those females are related; and also the female descendants as far as the fifth degree (inclusive) from the mother’s bandhus, and their four ancestors through whom they are related.

Authorities.

Vyavastha Chandrika, Vol.II, page 457; Vyavashta Darpana, page 659. See on this subject Mayne’s Hindu Law (6^th ed.), section 86, 87, 88; Ghose’s Hindu Law, page 678, etc. Seq.

ILLUSTRATION.

A mother, sister, father’s sister, mother’s sister, brother’s daughter, mother’s sister’s daughter, father’s brother’s daughter are within the prohibited degrees.

Exceptions.

Marriage with a mother’s brother’s daughter, father’s sister’s daughter, or sister’s daughter is allowable according to the modern practice of certain schools. (See Cunningham’s Digest, pages 33-34). But the validity of the marriage with a half-sister’s daughter has been doubted by the Privy Council (L.R.VII Ind.App.177). A marriage between a Hindu and the daughter of his wife’s sister has been held valid in Madras (Ragavendra Rau V. Jayaram Rau, I.L.R.XX Mad.283). It is, however, questionable if Hindu custom in this Province would sanction such marriages.

In A.I.R. 1946 Bom.377, 48 Bom. L.R. 196, it has been held by the Bombay High Court that a marriage between sagotras is invalid under the Hindu Law as it is prohibited according to the smriti writers and recognised commentators. But custom is a recognised source of Hindu Law, and if there is a custom proved recognizing the validity of such a marriage it would to that extent modify the ordinary Hindu Law. Long established usages existing in particular districts and families have to be given effect; but it is of the essence of special usages that they should be ancient and invariable and should be established to be so by clear and unambiguous evidence. When general opinion is conflicting it has little value, but when that evidence is all one-sided, the Courts would accept that evidence and act upon the same. The necessary proof in each case will depend on the nature of the custom alleged, and the want of instances or paucity thereof does not prevent the Court from upholding the custom, if there is a general consensus of opinion of persons who are likely to know of its existence, particularly when the evidence is all in one direction. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that has, by common consent, been submitted to as the established governing rule of the particular district.

1. Amongst Hindu Agriculturists.- All females of the same got as the bridegroom, and, amongst may tribes, also, females of his mother’s, father’s mother’s and mother’s mother’s got.

Authorities.

Tupper’s Customary Law, Vol.II, page 120; Vol. IV, page 95; Vol. V, page 46. See Rose’s Compendium of Punjab Customary Law, page 10. But see among Sudras, No. 80 P.R. 1917.

Remark.

Jats : Custom applied.- An adoption with religious ceremonies establishes consanguinity between the adopted son and the females of both the natural and adopted families (1 Strange H.L.41). But a customary appointment as heir produces no such artificial effects. “It is urged that a marriage between a man and his nephew’s widow is not allowed by Hindu Law. This may be so, but the parties are Jat agriculturists, and it is custom and not Hindu Law which must be held to govern the case,” 1920, 2 Lah. L.J.370.

Karewa between a Jat and nis widowed daugher-in-law.- A Karewa marriage between a Jat and his widowed daughter-in-law, is not valid by custom, (being repugnant to the ideas of Jats), and, therefore, the issue of such union is illegitimate, A.I.R. 1934 Lah. 283(2); 1934 15 Lah. 688, (Dalip Singh and Abdul Qadir, JJ.). This case was on appeal from Ambala District and does not apparently lay down a general rule of custom applicable to the whole Province. In a recent appeal from Hoshiarpur District, Bhide, J., held, on the evidence, that such marriage was valid by custom; A.I.R. 1936 Lah. 551 : 166 Ind. Cas. 719.

1. Amongst Muhammadans. – A mother, step-mother, paternal or maternal grandmother how high so-ever, daughter, grand-daughter, how low soever, sister of the whole or half-blood, paternal or maternal aunts, brother’s or sister’s daughter of the whole or half-blood, mother-in-law, daughter or grand-daughter of enjoyed wife, son’s or son’s son’s wife, daughter’s son’s wife, foster-mother, or any other female related by fosterage.

Authorities.

Tagore Law Lectures for 1873, page 307; Wilson’s Digest of Anglo Muhammadan Law, 2^nd edition, paras 34-38. The rule applies even when there has been no consummation (No. 16 P.R.1917).

Marriage with wife’s sister.- Under the Muhammadan Law governing the Hanafi sect, marriage with wife’s sister during the subsistence of the previous marriage with her sister, is only invalid (fasid) and not void (batil), and the issue of such marriage is legitimate and inherits the father’s property; A.I.R. 1930 Lah. 907; 1930, 12 Lah. 52, (and the cases there cited).

Muhammadans : Marriage with idolatress

Marriage merely invalid and not void ab initio- Under the Muhammadan Law a Muhammadan male may contract a valid marriage with a Muhammadan woman or with the Kitabia, i.e. Christian or a Jewess, but not with an idolatress or a fire worshipper but if he does marry an idolatress or a fire worshipper the marriage is not void ab initio (batil) but merely invalid (fasid) for she might at any time become a Muslim, Christian or Jew, which would have the effect of validating the marriage. The issue of such union are legitimate, Amir Ali’s Handbook of Muhammadan Law, pp. 74, 100, 101; A.I.R. 1928 Pat. 19: 103 Ind. Cas. 430 (Pat) About Zoroastrianism there is a difference of opinion; some of the jurists hold it to be one of the “revealed” faiths; others hold it to be the same as Magianism or fire worship).

A Muhammadan husband can divorce a Kitabia by talak under the Muhammadan Law; A.I.R. 1935 Bom. 5 : 59 Bom. 278 (Held that when a Christian woman marries a Muhammadan in Scotland and she subsequently becomes a Muhammadan, and the parties are domiciled in India, and the husband divorces her by pronouncing talak, the marriage is legally dissolved.

(b) They must belong to castes between which inter-castes marriages are permitted.

Authorities.

Hindu : customary forms of marriage.- No. 1233 of 1869. Compare No. 9 W.R. 552 and No. 64 P.L.R. 1908, where the subject is elaborately discussed. The Hindu Law recognizes custom as a matter of paramount importance, and custom, if it is established, can override the written law. There may, therefore, be customary forms of marriage which are perfectly valid and which do not strictly come within the definition of any of the approved forms of marriage mentioned in the Mitakshara; A.I.R.1926 All.1; 90 Ind. Cas. 358, (Allahabad).

Marriage by chadar-dnazi.- A marriage by chadar-andazi is not a marriage in one of the approved forms; A.I.R.1927 Lah. 441: 8 Lah. 366 at p.371.

ILLUSTRATIONS :-

1. Inter-marriages: instances. - A Jat Jagirdar cannot ordinarily marry a Brahmin woman. But see No. 50 P.R. 1900, where it was fond that a Karewa marriage between a Hindu Jat and a Brahmin woman was valid; No.73 P.R. 1897, where it was held that issue of a permanent union between a Jat and a woman of the Nai Jhiwar or Kalal class where legitimate; and No. 79 P.R. 1910, where it was held that a marriage between a Jat and a Koli woman was valid. A marriage between a Khatri and a Brahmin woman is not valid under Hindu Law; A.I.R. 1924 Lah. 243: 73 I.C. 239 (distinguishing 50 P.R. 1900 ante.)
2. A sunni Muhammadan may marry a Shiah woman.
3. A Sodi can marry a Khatri woman.
4. A Bujju Rajput cannot marry a Brahmin woman (No. 29 P.R. 1883), nor can a Diawani Rajput marry such a woman (No. 57 P.R. 1893).
5. But a Brahmin may marry a Rajputani (No.48 P.R. 1890).
6. A Sayad woman may marry a Panja Shahi fakir (No. 101 P.R. 1886).
7. A Varaich Jat cannot marry a Muhammadan woman (No. 87 P.R. 1898). But as to this see page 370 (2^nd para) of P.R. 1913.
8. A Khatri cannot marry a Khatrani widow (No. 52 P.R.1899). But cf. No. 49 P.R. 1903 as to the effect of Act XV of 1856 in such cases. See also as to this No. 4 P.R. 1905 and No. 61 P.R. 1905. In No. 72 P.R. 1908 a marriage between a Rajput and a Khatrani was held t be valid, and in No. 57 P.R. 1909 a chadar-andazi marriage between a Mihnas Rajput and a Mahajan woman of the Gujrat District