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Report No. 59

Our approach

1.17. In holding the present inquiry, we have first examined the proposals and, after an elaborate and careful consideration, we came to our conclusions in respect of them. Then we examined all the provisions of the two Acts ourselves and considered the question whether any of them need to be revised. When we reached cone ions in this part of the inquiry, we proceeded to formulate our recommendations serially by reference to the different sections of the two Acts. In other words, Part I of the Report1 will deal2 with the proposals and our recommendations in respect of them. Part II will dealt with our recommendations in regard to the provisions not covered by the proposals; and Part III will enumerate our recommendations serially by reference to the respective provisions of the two Acts.3

In the course of our inquiry, we have examined important and relevant judicial decisions, taken into account the opinions expressed by Members of Parliament in their communications to the Minister of Law and Justice from time to time, and have carefully Lime in mind the trend of public opinion in regard to the expanding horizon of social justice. Every section of both the Acts has been examined by us in the light of the test of the value-system of social equality which is enshrined in the Constitution and has gradually received more and more acceptance from the Indian Community. We have also attempted, wherever we thought it necessary and advisable to do so, to bring about uniformity in matters which are essentially common to the two Acts.

1. Chapter 2.

2. Chapters 3 to 8 (Hindu Marriage Act); Chapter 9 (Special Marriage Act).

3. Chapter 10.

1.18. Before we conclude, we may refer to one more point which is relevant to the Hindu Marriage Act. We have already referred to the spirit underlying the enactment of these four Acts amongst them being the Hindu Marriage Act. While enacting these Acts, Parliament has taken care to preserve what it thought to be consistent with the spirit of modernism and social justice. It has also taken care to preserve what it thought to be the essential features of any fundamental proposition of Hindu Law.

In regard to marriage, for instance, it has preserved the requirement that the marriage should not take place between persons who are within the prohibited degree of Sapindas relationship, vide section 5(iv) and (v). Similarly, it has preserved the requirement as to Saptapadi (that is, taking of seven steps by the bridegroom and the bride jointly before the sacred fire) vide section 7(2) and that again, only when performance of the said rite is in accordance with the customary rites and ceremonies of either party to the marriage. Thus, broadly stated, though the Hindu Marriage Act has introduced radical changes in regard to divorce and judicial separation, it has maintained the basic feature of the marriage which is partly consistent with the provisions of Smriti texts. Under the Act, Hindu Marriage is not a sacrament in the religious sense; but, nevertheless, it is founded on the basic moral postulates, as evidenced, for instance, by the continuance of the pre-existing requirement as to Saptapadi.

1.19. Even in regard to divorce, there are some Hindu texts which permit divorce as, for instance, the text which says that, in five cases of misfortune, women are entitled to marry another husband. These cases are: where the husband is lost and is not heard of for the prescribed period, where he is dead, or has taken Sanyas, or where he is impotent, or has committed a sin as a result of which he is excommunicated.1

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1.20. Bearing in mind this distinctive character of the institution of marriage as envisaged by the Hindu Marriage Act, we have carefully considered the question of making changes in the provisions pertaining to judicial separation or divorce. In any civilised and progressive society, marriage is an institution of great importance. It is the centre of a family which in turn, is a significant unit of the social structure. Children who are born of marriage, also contribute to the stability of the institution of marriage.

These factors are material and have to be taken into account; but in some cases, their validity cannot be over-estimated because, if the marriage which primarily concerns husband and wife is irretrievably broken, then collateral considerations about the significance of the marriage institution or about the importance of children and their interest may have to play a subordinate role. It is in the light of this philosophy that we have attempted the somewhat sensitive and difficult task of recommending certain radical changes in the provisions of the Hindu Marriage Act.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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