Modern Indian Family Law by Werner Menski

Author:Werner Menski [Menski, Werner]
Language: eng
Format: epub
Tags: Social Science, Ethnic Studies, General, Regional Studies
ISBN: 9781136839856
Google: fOFcAgAAQBAJ
Publisher: Routledge
Published: 2013-12-16T04:56:19+00:00

Singh also found that in most cases, the first wife did not know of the existence of the second marriage, and often vice versa. Her research contains a clear call for “some legislation putting a ban on this practice” (Singh 1992: 84). She also cites, at p. 85, a Muslim author from the 1970s to the effect that “[t]he state can validly enact measures of social welfare and reforms in respect of the matter governed by the Muslim Law”.155 Such comments display considerable confusion – certainly a notable lack of clarity – about the potential role of the law makers. Do the various authors ask for legislation, or do they recognise that judges can also make law? Judges certainly can and do make law in the Indian legal system, despite pious lipservice to some colonial concepts of judicial restraint. Such lack of clarity is also evident in the comments by Agrawala and Ramanamma on bigamy (1994: 257):

The law of bigamy, and the judicial interpretation under the Hindu Marriage Act, 1955, are no deterrent to the Hindu husband. This attitude of law evidently discourages the Indian woman from expecting relief under the formal amended law. Underlying this is probably a compromise of the Indian legislator and the judge to help the woman while yet not being too hard on the man. This ambivalence of the legislator and the judge is, however, at the cost of the woman’s interests. Be that as it may, it amply establishes lack of conviction of the lawgivers in the offence of bigamy.

Is it really justifiable to group legislators and judges together in this way? Other commentators have brought law enforcement agencies into the picture. Thus, Sharma (1994: 111–112) criticises that the legal provisions against Hindu polygamy suffer from being non-cognizable, to the effect that courts can only act if an aggrieved person makes a complaint. She writes at p. 112:

Therefore, the police and the law enforcing authority should be empowered to act on their own since the status of marriage is one in which the whole of society has an interest and not just parties to the marriage. Thus, the evil practice of bigamy can be effectively put down if the offence is made cognizable.

With respect, this does not appear to be a satisfactory solution because of the way in which law enforcement agencies like the police work in India. Instead of arresting a bigamous husband, officers would probably try to extract money from him. The track record of such authorities in promoting justice is not at all impressive and gives rise to many concerns about a police state.156

In her recommendations, Vijay Singh (1994: 357–361) identifies the lack of official documentation of marriages as a problem. She writes, at p. 358:

There exists, therefore, a need for an independent and infallible proof of marriage. Compulsory registration of marriage provides a proof of marriage and it would help those women whose husbands disown them for lack of proof of marriage.

However, is it realistic to expect the Indian state

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