Surprising USP of ancient Hindu personal law: Diversity

There were two quick developments in early Feb indicating that politicians and courts believe the institution of marriage holds Indian society together. Specifically, that heterosexual marriage is at the core of traditional Indian values and giving sanction to any other form of building a family would threaten all that Indians hold dear.First, an SC judgment prevented a single, unmarried woman from becoming a mother via surrogacy. Then, Uttarakhand govt passed a uniform civil code forcing couples to register live-in relationships. The underlying argument was that marriage is a sacred glue that no one should dilute.What neither development explains is why this sacred glue is responsible for so many women killing themselves in the past few years. National Crime Records Bureau says that in 2021, more than 51% of women who died by suicide were housewives. So, the institution that is holding up society is also pushing many individuals in society to the edge. Don’t these numbers indicate that Indian society is evolving, thanks to technology, travel and the economic needs of people, and that this may be testing established norms of family and childbearing? Like all other laws, aren’t laws governing marriage and family also expected to adapt to a changing world?Given that we are so keen on preserving traditional values, let’s find out how the ‘smritikars’, legal luminaries of Vedic Age, would have responded to shaping laws to suit the needs of society.In Nov 2010, Justice Markandey Katju, then an SC judge, spoke at Banaras Hindu University on ancient Indian jurisprudence. While referring to the evolving nature of ancient Hindu law, he spoke about the custom of not allowing a woman to adopt a son without the husband’s consent and the different ways in which commentators interpreted it, with one school of thought finally allowing even a widow to adopt a son.Justice Katju pointed out that both the Dattak Mimansa of Nanda Pandit and Vachaspati Mishra, founder of Mitakshara’s Mithila school, barred widows from adopting. Dayabhaga school’s view was that a widow could adopt if her husband had given his consent during his lifetime. But Mitakshara’s Dravida school said ‘husband’ in the expression ‘except with the assent of the husband’ was only illustrative and not exhaustive, “and hence if the husband is dead the assent of his father or other senior male member of the family is sufficient.”This must have been revolutionary for Hindu society in Vedic Age given that widows in many communities were stigmatised and marginalised. If a widow could be allowed to adopt a son hundreds of years ago, why can’t a 44-year-old single woman employ a surrogate to become a mother in the 21st century?Former Allahabad HC judge, Justice S S Dhavan, in his essay on ancient India’s judicial system describes how ancient Indian law was based on custom (achara, sadachara, charitra). The state maintained an authenticated record of customs observed in the country. “But even an established custom could be formally ‘disestablished’ if in course of time it became inequitable,” he says.He quotes Manu and Parashara for stating that the laws of Krita Yug and Kali Yug “are different from those of all the previous ages – the laws of each age being according to the distinctive character of each age.”The Smritis also recognised eight different types of marriages, one of which is Gandharv Vivah, where two people in love ‘marry’ without rituals, family, and witnesses. This was, perhaps, the closest one could get to a live-in.Even divorce was not such a big deal in many communities until the British arrived with their religious ethic, which insisted that a sacred bond like marriage could not be ended quickly just because two people could not stand being in the same room.When the Hindu Marriage Act was being discussed in Parliament in the 1950s, some MPs pointed out that it allowed for a marriage to be annulled after seven years of a spouse’s disappearance. But smritikars like Kautilya and Narad allowed for the same after three years. Kautilya, in fact, allowed for divorce by mutual consent.Scholars have pointed out that many schools of jurisprudence co-existed in Hindu society of the time, and one did not try to upstage or undermine the other. This allowed for multiple voices to be heard simultaneously and people navigated them by carving their own paths.It was the British who came to the subcontinent with their Victorian values and tried to codify ancient Hindu law. If European marriage laws were rooted in the Bible, marriage laws of various communities too would be framed by their religious books, they assumed, leading to much of the mess.Govts must realise that tying down society to some artificial restriction won’t work in the 21st century. It would make more sense to allow our laws to adjust to a fast-changing world. If they don’t adjust now, they will have to play catch-up later.