Sunanda K Datta-Ray: Marital law conundrums

WHERE MONEY TALKS

No matter what religious rites solemnise a marriage, it must be recorded by the state.

There's no reason why registration of matches, as of hatches and despatches, should not embrace the entire population without offending religious susceptibilities. As I write this, it occurs to me that I wouldn't be here if our lawmakers had not adjusted ancient usage to modern thought and jurisprudence. But for that feat my parents wouldn't have been able to marry at all. In the event, they had not one but three marriages.

Now, those lawmakers need to introduce a simple law saying that no matter what religious rites solemnise a marriage, it must be recorded by the government. That's not the same as a civil marriage, which orthodox Indians may dislike. It is simply that custom "" like guests who eat at a wedding feast being witnesses to the event "" should be buttressed by the state.

My parents first had a Brahmo religious ceremony because my mother's family belonged to the Brahmo Samaj. Then there was a Hindu religious ceremony because my father's family was Hindu. Neither being valid in those days for a union between Hindu and Brahmo, a civil marriage followed.

Controversy did not end there. My mother's parents had been married under Act III of 1873, which obliged both parties to deny they were Hindu, Muslim or Christian. My maternal grandparents had abjured Hinduism in the late 19th century and joined the reformist Brahmo Samaj. But Act III wouldn't do for my Hindu father. Luckily for him "" and me!"" there was another law at hand. A wise old legal owl by name of Sir Hari Singh Gour had amended the 1873 legislation in 1923 allowing two Hindus to register their union.

I think there was a little tussle even then about which law should be invoked. But since my father was adamant and my mother quite happy to describe herself as "Hindu (Brahmo Samaj)" "" the only term she could use, Brahmoism not being recognised as a separate religion "" the Gour Act prevailed.

Complexities still persisted. My grandmother's brother gave away my mother in the Brahmo ceremony. But he couldn't "" or wouldn't "" perform the same role in the Hindu marriage. So, a cousin of my mother's on her father's side whose branch hadn't converted to Brahmoism officiated as the Hindu kanya karta. Both men also witnessed the civil marriage.

Such conundrums persist. I remember two among close relatives in recent years.

Another Hindu-Brahmo wedding nearly came unstuck over the law under which it should be registered. The bride's father (Hindu) outwitted the boy's father (Brahmo) by filing for registration under the 1955 Hindu Marriage Act (Hindus only) and pleading it was too late to invoke the all-faiths Special Marriage Act of 1954. All that the fretting and fuming Brahmo parent could do was have a Brahmo blessing in his own home.

In the second instance, one spouse was Christian, the other Hindu. Failing to prevent the marriage, the Hindu spouse's father hit on a devious ploy. The wedding was preceded by a brief ceremony for the Christian spouse to be adopted by a Hindu, thereby acquiring the adoptive father's name, religion and gotra. An ordinary Hindu ceremony sufficed after that.

The precedent came from adoption as a way out of consanguinity. Sometimes the two sides are unaware till the wedding preliminaries that they share a gotra, meaning they had a common ancestor in some misty past. The solution is for one spouse to acquire a new gotra through adoption by, say, a maternal relative.

There's never a law in India that doesn't offer its own loopholes.

The most celebrated matrimonial controversy was over Aroon Sinha's claim to succeed Satyaprasanna Sinha as the second Baron Sinha of Raipur. The first Lord and Lady Sinha were Hindus to start with but converted to Brahmoism long after their marriage and the birth of their children. The House of Lords asked several questions since there were no marriage or birth certificates and, especially, since Satyaprasanna Sinha could legally have had many wives while a Hindu.

After prolonged hearings in London and Calcutta, the Lords decided on the basis of expert advice that Hindu converts to Brahmoism did not have to register marriages that had already been sanctified and consummated. Aroon Sinha's recognition as the rightful second baron saved from extinction the only hereditary peerage bestowed on a non-white.

There won't be another peerage to be determined but documentary evidence of marriage, birth and death saves problems all round. The example of Sri Lanka and Indian states that have introduced registration also demonstrate benefits for female empowerment. Registration checks bigamy, forced marriages and child marriage. It saves women from sexual exploitation, unfair divorce and property deprivation.

It is unfair to deny Muslim women these advantages. It's also ridiculous to argue that registration is incompatible with Islamic polygamy. There is no bearing either on the case for a common civil code. If the law allows a man four "" or more "" wives, let them all be officially recognised. Four registrations are better than none, unless the man regards some spouses as wives and others as concubines.

sunanda.dattaray@gmail.com