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Male Bias and the Validity of Hindu Marriage in Bangladesh

By Tahmina Rahman
THE legal system of Bangladesh, is charact-' erlscd by the coexistence of a genera) national law. applicable to all citizens, and a system of concurrent personal laws of the Muslims, Hindus, Christians and Buddhists. The Hindu law of Bangladesh is thus applied as the personal law of the Hindus, who constitute approximately 13 per cent of the total population of 110 million.
The Hindu law of Bangladesh today is a peculiar mixture of Anglo-Hindu law and local customary laws, with the latter given very limited official recognition. Any of the old Hindu law enactments have not been repealed or amended since 1972. Thus it is quite apparent that the Hindu law of Bangladesh has been left almost untouched by the legislature.
Incidentally, this seems to be a common fate of minority laws in the subcontinent. In Pakistan, too. the Hindu, Christian and Parsi laws art-very outmoded and have remained almost untouched by the Muslim majority. In India, the Muslim personal law has been left largely uncodifled, as much for reasons of political expediency as because of traditional resistance to reforms.
The Indian Christian and Parci laws are similarly outdated and in need of reform.
The sources of the Hindu law of Bangladesh is a complex subject about which much has been written, and still too little is known. Textbooks on the personal laws of the Hindus In Bangladesh follow the traditional pattern of descriptive analysis. Some contains repetitions and contradictions. In the traditional view, the ultimate basis of Hindu law are the Vedic scriptures, which rest on divine authority, i.e. Sruti 'what was heard', and the Smrity, "what was remembered." and precedents.
It is still Anglo-Hindu law. as far as Its official operation is concerned, tn real life it appears to be a largely localised customary law. Hindu law tn India on the other hand are mostly statutes as codified In the Hindu MfllTlMg Act 1955. Hindu Succession Act 1956. and Hindu—MinpritY a ad Guardianship Act 1956.
Marriage according Hindu law in Bangladesh is a sacra ment I.e. a "Sanskara", not a
contract, and an indissoluble union. Following the traditional Anglo-Hindu pattern, polygamy is allowed without limitation to Hindu males, intermarriage between members of different castes (varna) will be more or less forbidden, divorce will only be available at custom, sihec sastric law does not allow it.
Numerous ceremonies are observed in a Hindu marriage, but the two essential as declared by the Supreme Court tn the case of Amulya Chandra Modak Vs the State (1983) arc (!) the invocation before the sacred fire I.e. the performance of the nuptial homa and (ii) Saptapadi (the “seven steps).
The case is a good example of the difficulties faced by modern courts in developing countries to bring local and national legal systems into a satisfactory pattern of legal regulation.
The case was brought a: a criminal prosecution under section 493 of the Penal Code. 1860, the accusation being that Gita Rani a young woman had been made to agree to illicit sexual intercourse as a result of the deceitfully induced belief that she was lawfully married to her lover. She claimed that he proposed to marry her by exchanging garlands, and that he would marry her later with full ceremonials.
Thus, a secret exchange of garlands took place between the accused and the girl. The girl cohabited with the accused, allegedly in the belief that she was married to him. In an informal gathering (salish) the villagers put pressure on the man to honour his responsibilities. but he refused to marry the girl. The girl's lather then took the matter to the official legal system.
The court look a very formalistic approach to the girl's case, refused lo listen sympathetically lo her and was convinced that “the story of exchange of garlands... has ben introduced subsequently by way of embellishment. Gila Rani was for "her folly” of agreeing lo illicit sex without realising the potential consequences.
The court stated that two sastric ceremonies are essential for the validity of a Hindu marriage. In conclusion. It was held thai even if there
had been a garlanding ceremony. the girl should have known that mere exchange of garlands secretly in the night could not lead to a legally valid marriage. Thus, the accused was acquitted, since,
"In the social and religious background of the prosecutrix the exchange of
garlands can not be said to be an act by the accused to adduce a belief in the mind... that she was lawfully married to Ihe accused."
Several aspects of this case require brief comment. First of all, the court assumed that the girl voluntarily agreed to the sexual act and clearly blames the girl fully for what has happened.
The girl's lawyers seem remarkably uninterested in her case, raising a suspicion of male collusion. They could have raised Ihe issue of presumption of marriage. They could also have brought in the Hindu law on gandharva marriages the equivalent of a modern love marriage) to show that a self-arranged union may be subsequently sanctioned by the performance of appropriate customary rituals. No attempt was made by anyone to ascertain whether it 1s perhaps customary among some low castes of Bangladesh to have arrangements of this kind.
"Love-marriage" is not unknown to Hindus elsewhere; subsequent parental approval, however reluctant, is mostly forthcoming. The locally perceived obligation system could have been considered. But the entirely male-biased approach must have prevented this.
The judgement was raises some questions. Amulya Chandra Modak Is likely lo be relied on as a precedent in the development of Hindu law in Bangladesh. Thal invocation before the sacred fire and sap-tapadi as being two essentials for a valid marriage under Hindu law Is liable to be misunderstood. Local and caste custom is undervalued, since there may be very little formal ritual, or even no ritual at all, depending on the circumstances. The court's comments on the requirements of Bangladeshi Hindu customary law presume an extent of formality which may not in all cases be followed. Only de tailed fieldwork could answer such questions. It Is quite ap-
parent. though, that the informal local process of mediation would have yielded a very different result, preferable to what the official legal system had to offer in the end.
As it sands, Amulya Chandra Modak contributes ltttl_c to the development of a satisiactory Hindu law of marriage, tn fact it could be a formidable obstacle for Hindus seeking to prove less formal entries into Hindu marriage 1n Bangladesh.
The writer Is a lawyer. Iler article on Hindus and the Law In Bangladesh has been published from the University of london.