Table Of ContentChapter 7
CUSTOMARY PERSONAL LAWS OF ADIVASIS VIS-À-VIS
HINDU (CODIFIED) LAW
In the matter relating to personal law, Hindus are now governed by the Hindu Marriage
Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act,
1956 and the Hindu Adoptions and Maintenance Act, 1956. Apart from Hindus;
Buddhists, Jainas and Sikhs are also covered within the ambit of these enactments.
Though Hindu law is made applicable to Buddhists, Jainas and Sikhs but Adivasis are
kept away from the ambit of these laws. It is specifically stated that, Hindu laws are not
applicable “to the members of any Schedule Tribe within the meaning of clause (25) of
Article 366 of the Constitution unless the Central Government, by notification in the
1
Official Gazette, otherwise directs.” Therefore, Adivasis, at present, are governed by
their customary laws. Thus, in the matters dealing with the personal law, Hindus and the
Adivasis are governed by two distinct systems of laws. And since, one of the objects of
the present study is to make a comparative study of these two distinct systems of laws,
attempt is being made, in this chapter, to compare these two systems of laws and
synchronize / reconcile the customary personal laws of Adivasis in Nandurbar district.
7.1 LAWS RELATING TO MARRIAGE
7.1.1 Express Conditions of Marriage
Hindus for the matters relating to marriage and divorce are governed by the Hindu
Marriage Act, 1955, (hereinafter referred to as the HMA). Section 5 of the Act deals with
following ‘Conditions for a Hindu Marriage’—
1
Section 2(2) of the Hindu Marriage Act, 1955, Hindu Adoptions and Maintenance Act, 1956; Hindu
Succession Act, 1956 and Section 3(2) of the Hindu Minority and Guardianship Act, 1956.
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7.1.1.1 Monogamy
Among the Hindus, polygamy was allowed before the enactment of the HMA. But the
outstanding feature of the HMA is introduction of monogamous form of marriage. Under
section 5(i), it has specifically provided that, neither party should have a spouse living at
the time of marriage. This means that having contracted a valid marriage, a man, whose
wife is living, cannot marry another woman, and if he does so, the offence of bigamy is
committed. And according to section 17 of the Act he will be punished under the Indian
2
Penal Code. Similarly a woman, whose husband is living and the marriage is valid and
subsisting, cannot marry with another man. According to section 11 of the Act, marriage
in contravention of section 5(i) is void.
Customary personal law of the Adivasis in Nandurbar district (hereinafter referred to as
the Adivasi law) permits a man to marry any number of wives. Though the law of
Adivasis permits polyginy but polyandry is not allowed.
The origin of the Adivasi custom of polygyny can be found in the economic co-operation
between the husband the wife. Life of Adivasis is full of struggle. Man alone cannot
fulfill all his economic needs. He needs help of female member. Among Adivasis, wife’s
function is not limited to house-hold works. She also participates in various economic
activities. Therefore, women’s participation in economic activities is one of the dominant
3
reasons of polygamy among them. Though economic co-operation is dominant factor
behind polygyny but in the modern world of industrialization this cannot be a sound
consideration for allowing polygamy. The appropriate remedy lies in the upliftment of
their economic conditions. Since the monogamy is already prescribed for Adivasi women
the same can also be prescribed for Adivasi men. Thus, the law of Adivasis on the point
of monogamy can be synchronized with the HMA, 1955 without hampering the cultural
aspects of the Adivasis.
2
Section 494 and 495 of Indian Penal Code, 1860, provides punishment for the offence of bigamy.
3
See Sangwe, Dr. Vilas, “Adivasinche Samajik Jeewan’”, (1972), Popular Prakashan, Mumbai, at p 64.
2 13
Further, According to Adivasi customary law “If a married woman elopes with any other
man, her previous marriage ceases. In such as a case formal declaration of divorce is not
necessary. And the previous marriage ceases automatically.” This is custom of Adivasis
4
is unreasonable and against morality and public policy and should done away. If Section
5
5(i) read with Section 17 and 13 of the HMA, 1955, is made applicable to Adivasis, this
unreasonable custom can be effectively controlled.
7.1.1.2 Mental capacity
Hindu marriage requires that, at the time of marriage, neither party to the marriage must
6
be “incapable of giving a valid consent to it in consequence of unsoundness of mind.” It
seems that “unsoundness” of mind contemplated in Section 5(ii)(a) has to be such as to
make it impossible for the spouses to live a normal married life together. Therefore,
under Section 5(ii)(a), it is not every kind of insanity which is covered. But the incapacity
of the mind should be such which incapacitates a person from giving a valid consent to
the marriage, that is, ability to understand what marriage is and what are the
responsibilities and obligations arising out of it.
Section 5(ii)(b) states that, ‘at the time of marriage, neither party, though capable of
giving a valid consent, has been suffering from mental disorder of such a kind or to such
an extent as to be unfit for marriage and the procreation of children.’ The word ‘mental
disorder’ has not been defined in this clause. But the term has been defined under Section
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13 of the Act and the courts may interpret it accordingly.
The key to understand the provision is the phrase “unfit for marriage.” And a person is
“unfit for marriage” if he is incapable (due to his mental disorder) to shoulder the
4
For details see, Automatic dissolution of marriage, Para 6.4.2.1, above, at p 175.
5
Section 13 of the Hindu Marriage Act, 1955, provides ground for obtaining divorce.
6
Section 5(ii)(a) of the Hindu Marriage Act, 1955.
7
Under Section 13(1)(iii) of the Act, the expression “mental disorder” has been explained as “mental
illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or
disability of mind and includes schizophrenia.”
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reasonable responsibilities, duties and obligations arising out of marriage. And the word
“procreation” implies within it not only capacity to give birth to the children, but also to
8
look after them as well so as to bring them up.
Clause (c) of Section 5(ii) state that, ‘at the time of marriage neither party has been
subject to recurrent attacks of insanity or epilepsy.’
Marriage is the most important contract in the life any person. It gives both parties a
mutual right to cohabit and to enjoy the society of each other. Marriage involves certain
responsibilities, duties and obligations and therefore, both the parties to the marriage
must consent each other for shouldering such responsibilities, etc. It implies, while
entering into a contract of marriage a man must be ‘mentally capable to appreciate these
responsibilities, etc.’; and without ‘that degree of mental condition’, it cannot be said that
he or she understands the nature of contract. And a consent given without ‘that degree of
mental condition’ is invalid.
Since, on the one hand, nature of Adivasi marriage is contractual, it must not be based on
“invalid consent” and the parties to the marriage must not be “unfit for marriage and
procreation of children”, further they must also be free from the disability of “recurrent
attacks of insanity or epilepsy” as contemplated by Section 5(ii) of the Act. On the other
hand, Adivasi law on the point contemplated under Section 5(ii) is not clear. It is the
discretion of the party to marry with the person of unsound mind. If he marries with such
unsound person Adivasi law treats such marriage valid. But at the same time, divorce is
also allowed on the ground “that the other party is of unsound mind”. Adivasi customary
law, on this point, thus, suffers from inherent contradiction and hence void and therefore,
it requires modification. Most systems of law agree that at the time of marriage both bride
and bridegroom should be of sound mind. Taking into consideration of all these aspects,
9
Section 5(ii) read with Section 12(1)(b) can be made applicable to Adivasis also.
8
Alka Sharma v. Abinesh Chandra Sharma, AIR 1991 MP 205.
9
Section 12(1)(b) declares that, marriage in contravention of Section 5(ii) is voidable.
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7.1.1.3 Age of majority
It is said in Baudhayana Dharasutra: “Let him give his daughter, while she goes still
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naked, to a man who has not broken the vow of chastity and who possesses good
qualities, or even to one destitute of good qualities; let him not keep (the maiden) in (his
11
house) after she has reached the age of puberty.” Some writers of the Grhyasutras
12
recommended the marriage of a girl who was called nagnika, literally naked. It is said
in Manusamhita that a man of thirty may marry a girl of twelve and a man of twenty-four
13
a girl of eight. According to Brahmanic works of early Christian era, “The father or
guardian incurs the sin of destroying an embryo at each appearance of menses as long as
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the girl is unmarried after puberty.” Parasara marks the real beginning towards pre-
15
puberty marriage because it is he who enjoins that a Brahmin who marries a rajasvala
girl should not be spoken to or admitted to a dinner in the same row with other
16
Brahmins.
With the religious and social sanctions accorded to pre-puberty marriage by Parasara,
child-marriage spread much faster and took deeper root among the higher castes. And
once it becomes a pattern with the Brahmins, it soon tended to become the norm for the
Hindu community as a whole. And it is natural for the lower social groups to imitate the
pattern of the higher in social order. And Adivasi society being no exception to this,
adopted the practice of child-marriage from their Hindu neighbours.
10
Pre-marital chastity was not insisted upon from the girls. For example, Karna was a son of unmarried
Kunti, King Shantanu performed sexual intercourse with Ganga who was unmarried and Parasara
performed sexual intercourse with Matsyagandha while she was unmarried. In the Panini age, a girl who
marries when she remained chaste is known as Kaumara-Bharya (maiden-wife) and her husband was
known as Kaumara-Pati (maiden’s husband). See Rajvade, V.K., “Bharatiya Vivahsansthecha Itihas”,
(2008), Lokwangmaya Gruha, Mumbai, pp 43 – 44. Even after marriage adultery was considered as less
serious offence. See, Kapadia, K.M., “Marriage and Family in India”, (1972), Oxford University Press,
Calcutta, pp 97 – 113.
11
Cited in, Kapadia, ibid, at p 138.
12
Kapadia, ibid, at p 138.
13
Kapadia, ibid, at p 139.
14
Kapadia, ibid, at p 139.
15
A girl who remains unmarried even after attaining 10 years of age.
16
Kapadia, Supra note 10 at p 142.
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The practice of child-marriage became more popular, and with the passage of time the
practice became so compelling that departure from it was a matter of social disapproval
and even social disgrace.
The first potential protest against the practice of child-marriage was voiced by Behramji
17
Malbari, a famous social reformer of Bombay. He saw that infant marriages in Hindu
society were not only bad in themselves but led to the wretchedness of widowhood. He
regarded child-marriage as an evil. The astonishing campaign for social reform initiated
by Raja Ram Mohan Roy and Ishvarchandra Vidyasagar agitated, amongst other things,
for marriage at a rational age. In response to this, the Child Marriage Restraint Act was
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passed in the year 1929. The reform movement reached its culmination when Section
5(iii) of the Hindu Marriage Act, 1955, prescribed a rational age for marriage.
Section 5(iii) of the HMA, 1955, states that the bridegroom should complete the age of
21 years and the bride 18 years at time of marriage. This is the third condition of Hindu
marriage. The Act does not stop by prescribing a rational age of marriage but it went
further. Section 18(a) of the Act provides punishment for contravening the provision of
section 5(iii). Thus, the practice of child-marriage among the Hindus is effectively
curbed.
So far Adivasis are concerned; the practice of child-marriage is still prevalent. It is to be
noted that, the practice of child-marriage is alien to their culture. And the practice of
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child-marriage is due to the influence of their Hindu neighbours. It is not only that the
practice of child-marriage is alien to their culture but it is also illegal since it violates the
provisions of the Prohibition of Child Marriage Act, 2006. The main aim of any girl or
boy irrespective of their caste, creed or ethnicity is not simply to have sexual intercourse
and procreation but building a better tomorrow. Therefore, it is necessary that the spouses
17
Saha, A.N., “Marriage and Divorce”, (1996), Eastern Law House, Calcutta, at p 45.
18
Child Marriage Restraint Act, 1929, has been repealed and re-enacted by the Prohibition of Child
Marriage Act, 2006.
19
See, Institution of Marriage, Para 2.4, above, at p 45.
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should enter into marriage when they are fully matured and are able to shoulder the
responsibilities of married life. It is in this background Section 5(iii) of the HMA, 1955,
can be made applicable to the Adivasis. Such application will help in strengthening their
original culture of adult-marriage. And such application will also fulfill the Government
of India’s commitment to “take serious measures to ensure that the practice of child
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marriage is speedily abolished.”
Taking into consideration of their social and educational position, even if any child-
marriage is performed the same will not be declared invalid since contravention of
Section 5(iii) renders marriage neither void nor voidable. In view of section 13(2)(iv) of
the Act of 1955, a bride of such marriage can repudiate the marriage after attaining the
age of 15 but before 18 years of age.
7.1.1.4 Conditions regarding prohibited and sapinda relations
The fourth and the fifth conditions to the Hindu marriage say that, ‘the parties to the
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marriage should not be within the degrees of prohibited relationship and should not be
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the sapindas of each other.’ A marriage in contravention of any of these conditions is
void under Section 11 and also liable for punishment under Section 18(b) of the Act. But
if custom or usage permits marriage between persons in ‘prohibited degree of
20
Article 11(a) and (b) of the National Charter for Children, 2003.
21
Section 3(g) defines ‘Prohibited Relationship’, according to it, “Two persons are said to be within the
“degrees of prohibited relationship”—(i) if one is lineal ascendant of the other; or (ii) if one was the wife or
husband of a lineal ascendant or descendant of the other; or (iii) if one was the wife of the brother or of the
father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or (iv) if the two
are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers
or two sisters.”
22
Section 3(f) defines ‘Sapinda Relationship’, according to it, “(i) “sapinda relationship” with reference to
any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and
the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from
the person concerned, who is to be counted as the first generation; (ii) two persons are said to be “sapindas”
of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they
have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of
them.”
Section 3(g) explains: “For the purpose of clause (f) and (g) relationship includes—(1) relationship by
half or uterine blood as well as by full blood; (ii) illegitimate blood relationship as well as legitimate; (iii)
relationship by adoption as well as by blood.”
23
Clause (iv) & (v) of Section 5 of the Hindu Marriage Act, 1955.
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relationship’ or ‘sapinda relationship’, such custom is saved and the marriage would be
valid. And whenever a custom is relied upon, it must be a valid custom as defined under
Section 3(a) of the Act.
Imposition of these conditions for the validity of marriage is an attempt on the part of the
Government to establish morality in the society, at least in the field of marriage, and to
prohibit incest. And the importance of the definitions of the terms ‘prohibited
relationship’ and ‘sapinda relationship’ and the persons between whom the marriage is
now prohibited can be realized if it is seen the kind of incest and immorality that was
prevalent in the ancient India.
In ancient India, as in most of the parts of the world, sexual intercourse was completely
unregulated. Incest was prevalent on a large scale. Sexual intercourse between grand-
father and grand-daughter, father and daughter, brother and sister, uncle and niece, aunt
and nephew and between cross as well as parallel cousins, etc. was common. For
example, Daksha, a son of Brahma married with his sister. Dharma, another son of
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Brahma married 10 daughters of his brother Daksha. Marriage of Yama with his sister
Yami is well-known. Vasistha Prajapati married with his daughter Shatarupa. Manu
married with his daughter Ila. There are examples in the Vedic (Sanskrit) literature that
many sapinda males married with a single sapinda female. For example, Marisha married
with her father Soma and her 10 grand-fathers. Brahma married with his grand-daugher
and delivered a famous Narada. And when king Janamejaya asked about these strange
practices to Vaishampayana Rishi, he replied, ‘this is conformity with our customs and
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usages and that is the Dharma.’
Gradually, the concept of morality changed with the march of time. When society
realized the evils of free sex relationship, certain restrictions were imposed prohibiting
marriage with certain relatives or between certain groups as they are considered
24
Manusmirti, IX 128 - 29, Doniger, Wendy and Brian K. Smith (translated), “The Laws of Manu”, (1991),
Penguin Books India Pvt. Ltd., New Delhi, at p 213.
25
See Rajvade, Supra note 10 pp 31 – 34.
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26
incestuous or undesirable. The rules of endogamy and exogamy came into existence.
The exogamy among the Hindus has two aspects. The first, sapinda exogamy, prohibits
marriage between persons related to each other within certain generations on the father’s
and the mother’s side. The other, gotra exogamy, prohibits marriage between members of
the same gotra. Baudhayana states that, ‘he who follows the practice of marriage between
27
cross-cousins, other than the country where it is allowed, commits sin.’ Gautama did
28
not allow it even as a local usage when it is opposed to the tradition of sistas. Manu
writes: “If he has sex with his ‘sister’ who is the daughter of his father’s sister, or with
the daughter of his mother’s sister or of his mother’s full brother, he should carry out the
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‘Moon-course’ vow.” He further stated, “An intelligent man should not take any of
these three for his wife; he should not have sex with them because they are relatives, and
30
if he had sex with them he would fall low.” In spite of all this, none of the Sutra writers
except Gautama prescribed any penance for non-observance of sapinda exogamy.
Gautama alone declared that one marrying a sapinda relation of the father and the mother
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becomes an outcaste. It is in this background, the importance of the fourth and the fifth
condition of valid marriage, prescribed by the HMA, 1955, can be realized. It not only
prescribed these conditions as essential for the validity of marriage but violation of them
is met with punishment under Section 18(b).
In every society there is an outer circle, out of which marriage is definitely banned and an
inner circle within which no marriage is permitted. And Adivasi society is no exception
to this. Adivasis of Nandurbar district are tribal endogamous groups therefore, both the
parties to the marriage must be of the same tribe/sub-tribe. Modern civilization tends to
pull down the outer limits, which separates races, nations, the followers of different
religions and various classes of society. Amongst Adivasis also instances can be found of
marriage between different tribes and sub-tribes and even with non-Adivasis, and the
26
Manu stated: “If a man shed his semen in women born of the same womb as himself, with the wife of his
friend or his son, with a virgin or women of the lowest castes, he should carry out the vow for (violating)
the guru’s marriage-bed.” Manusmirti, XI 171, Doniger, Supra note 24 at p 267.
27
See, Kapadia, Supra note 10 at p 125.
28
See, Kapadia, Supra note 10 at p 125.
29
Manusmirti, XI 172, Doniger, Supra note 24 at p 267.
30
Manusmirti, XI 173, Doniger, Supra note 24 at p 267.
31
See, Kapadia, Supra note 10 at p 126.
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same are being accepted as valid by the Adivasi society. This is definitely in line with
section 5 of the HMA, which intentionally omitted caste-restriction from the essentials of
a valid marriage. For the HMA it enough if the both the parties are Hindus. Now the
question remains that the Adivasis are not Hindus. But this can be remedied by inserting
after the words “any two Hindus” in section 5, the words “or as the case may be, any two
Adivasis”.
Among Adivasis marriage between cross-cousins though allowed but the same is
prohibited between parallel-cousins. Among the Pawras and the Tadvi Bhills marriage
with any relative is prohibited. In this connection it is to be noted that, the Adivasi law of
prohibited relations is already covered under section 5(iv) and (v) r/w. Section 3(f) and
(g) and the HMA. So far as question regarding the practice allowing marriage between
cross-cousins is concerned, it can be saved by Section 5(iv) and (v) of the Act. Similarly,
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the Adivasi custom of levirate or sororate marriage can also be saved.
Now the Adivasi custom regarding clan and surname exogamy is concerned, it can be
equated with the gotra system of Hindus and this disability is removed by the HMA, by
omitting it from the essential conditions of a valid marriage and by saving clause under
section 29(1) of the HMA. According section 29(1), “A marriage solemnized by between
Hindus before the commencement of this Act, which is otherwise valid, shall not be
deemed to be invalid or ever to have be invalid by reason only of the fact that the parties
thereto belonged to the same gotra or pravara or belonged to different religions, and
castes or sub-divisions of the same caste.” Section 29(1) is a reproduction of the
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provisions of the Hindu Marriage Disabilities Removal Act, 1946, and of the Hindu
32
The origin of the custom levirate marriage can be traced from Rigveda and Atharvaveda and other
Sanskrit literature. For example, in Ramayana, after the death of Vali, Sugriva, his brother, married his
widow, Tara. Bibhishana likewise married the widow of his elder brother Ravana. When Lakshamana was
hesitant to leave Sita alone in the forest and go to the help of his elder brother at her bidding. She taunted
him saying ‘You wish to see Rama dead that you may get me for your wife.’ When Brhaspati approached
Mamata, the wife of his elder brother Utathya, for embrace, she entreated him not to do it as she was
pregnant. But when he insisted he was allowed his privilege. See, Kapadia, Supra note 10 at p 58. The
word Devar (husband’s brother) means second husband. See, Saha, Supra note 17 at p 71; See also,
Kapadia, Supra note 10 pp 56 – 60.
33
Section 2 of the Hindu Marriage Disabilities Removal Act, 1946, provides: “Notwithstanding any text,
rule or interpretation of the Hindu Law or any custom or usage, a marriage between Hindus which is
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