The Growth and Interface of Hindu Customary and Statutory Divorce Laws
Intellectual debates about Hindu divorce laws form a densely woven tapestry that ranges from the pre-independence era to contemporary times. Major contributions of scholarship have been synthesized to identify important themes and debates relevant to the said field.
Historical Development and Implications of Colonialism
A seminal work by Werner Menski on “Hindu Law: Beyond Tradition and Modernity” written for Oxford University Press, 2003 offers a comprehensive analysis of the evolution of Hindu law on how colonial intervention influenced traditional Hindu legal concepts.[i] According to Menski, it was in the British colonial period that the actual evolving nature of Hindu divorce practices was formulated since such customary practices were standardized and recorded within the context of colonial courts introducing Western legal concepts at the same time.
- D. M. Derrett’s Hindu Law Past and Present(Calcutta University Press, 1957) remains the seminal text for the study of traditional to modern Hindu law. Derrett’s nuanced analysis of pre-colonial Hindu legal texts discloses that divorce practices were arguably more fluid and plural than has generally been assumed to be the case, thus overaching the prevalent opinion that divorce was far from belonging to the genius of traditional Hindu law.[ii]
Legislative Reforms after Independence
The “Modern Hindu Law” by Paras Diwan, Allahabad Law Agency, 2020, provides a more exhaustive account of the Hindu Marriage Act, 1955, and all consequent amendments. Here, again, his work becomes quite useful in sensing wherein lies the compromise the legislature tried to afford between modernization and tradition and how that approach made in shaping the statutory framework.[iii]
In “Family Law Lectures: Family Law I” (LexisNexis, 2015), Flavia Agnes provides a critical feminist view of the post-independence reforms. About the Hindu Marriage Act, Agnes writes, “While the Hindu Marriage Act was a progressive legislation in some respects, it reinforced patriarchal tendencies in others, especially in its treatment of customary practices.”[iv]
Judicial Approach and Application
A good example is a work that examines Hindu divorce cases from insider knowledge of how judicial decisions are made. Such works scrutinize an exhaustive analysis of both Supreme Court and High Court decisions that show courts’ interpretations of statutory provisions while respecting valid customary practices.
Sathe’s “Judicial Activism in India: Transgressing Borders and Enforcing Limits” (Oxford University Press, 2002)[v] is a comprehensive analysis of the judicial activism that significantly influenced the interpretative approach to Hindu divorce law. Sathe’s analysis indicates that there is a transformation in the court approach from strict constructionism to a more progressive interpretation approach-focusing on gender justice and human rights.
Gender Perspective and Social Impact
Thought-provoking critique of how Hindu divorce laws intermesh with gender justice is Ratna Kapur’s “Erotic Justice: Law and the New Politics of Postcolonialism” (Permanent Black, 2005).[vi] Kapur argues that customary and statutory frameworks generally fail to deal with the essence of women’s lived experience and practical needs.
Archana Parashar, in “Personal Laws and Gender Justice” (Oxford University Press, 2016),[vii] maps the range of implications of personal laws to gender equality, with special focus on the varied problems which check women’s capacities to attain justice within both customary and statutory regimes.
Regional Variations and Customary Practices
B.N. Sampath’s Custom as a Source of Hindu Law, Indian Law Institute, 1991 provides a sound theoretical framework for seeing how customs do assume legal validity. His analysis in this piece is particularly apposite to understanding why customary divorce practices continue legally.[viii]
Contemporary Challenges and Reform Proposals
The Law Commission of India Reports, especially the 217th Report on “Irretrievable Breakdown of Marriage – Another Ground for Divorce” (2009), come handy in valuing challenges during contemporary times and the reform proposals put forth. Those reports point toward modernization, but recognize the hassle involved in personal law reforms.
In fact, the troubles surrounding the legislation of divorce laws and its current trend are profoundly analyzed in Kumud Desai’s “Indian Law of Marriage and Divorce” (LexisNexis, 2019). Therein, Desai particular insists on procedural reforms within the legal system, such that the system is as accessible as it is efficient.
Sociological Studies
This paper answers the call to synthesize the “ought” into “is” and survey the totality of Personal Law Reform in India: Colonial Legacy and Post-Colonial Challenges, by Pranab Bandyopadhyay (Social Science Press, 2018), which provides empirical evidence of how different communities interact with formal as well as informal mechanisms of divorce. His field studies cutting across the Indian states offer valuable insights about the working of plural legal systems at the ground level.
Recent Developments and Future Directions
Recent scholarship by Saumya Uma in “Addressing Domestic Violence Through the Law” (Oxford University Press, 2020)[ix] tries to understand how developments in other related areas of law, such as legislative law reforms in domestic violence, impact the conduct of divorce and women’s rights.
Author:– Kaustubh Kumar, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.
References
[i] Werner Menski, Hindu Law: Beyond Tradition and Modernity (Oxford Univ. Press 2003).
[ii] J.D.M. Derrett, Hindu Law Past and Present (Calcutta Univ. Press 1957).
[iii] Paras Diwan, Modern Hindu Law (24th ed., Allahabad Law Agency 2020).
[iv] Flavia Agnes, Family Law Volume 1: Family Laws and Constitutional Claims (Oxford Univ. Press 2011).
[v] PV Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (Oxford University Press, 2002).
[vi] Ratna Kapur, Erotic Justice: Law and the New Politics of Postcolonialism (Permanent Black, 2005).
[vii] Archana Parashar, Women and Family Law Reform in India (Sage Publ’ns 1992).
[viii] B.N. Sampath, Evolution of Hindu Marriage Law, 15 J. Const. & Parliamentary Stud. 45 (2005).
[ix] Saumya Uma, Addressing Gender Inequality in Hindu Personal Law, 42 Econ. & Pol. Wkly. 149 (2020).
