Published on March 2, 2014
ggg 2013 Ethical Issues and Trends in family Law A progressive journey from its origin to the modern concept SUBMITTED TO- Dr. Ramesh Kumar (Asst. Dean)- [College Of legal Studies-University of Petroleum and Energy Studies.] This paper is a result of the assignment given over the above topic. This paper is concerned with ethical issues inculcated in our Family Law taken from the deep rooted Customs. The ethics being a part of good craftsmanship in case of laws concerning such field is an important tool to study the origin and philosophy behind our Indian family Laws. This paper follows the methodology of trend analysis. It begins with the texts inculcated in our religious books about family, marriage, property, etc. Then it talks how these concepts have been changing over time resulting in the present concepts of love marriages, maintenance, judicial separation and divorce, laying special focus over Live-in Relation and Surrogacy. Thus, showing the change in concept of family law and drift in the ethical point and acceptance by society and studying various landmark judicial decisions regarding the field concerned. The paper basically concerns with the ethical trend analysis and drift relating to Hindu family Law. The paper then also deals with various problems arising due to these changing concepts; it also considers law commission reports and pending surrogacy bill as a solution to some of these problems. Shreya Singh(500022285) University of Petroleum and Energy Studies 11/11/2013
Abbreviations 1. V.- Versus 2. Art.- Article 3. Anr.- Another 4. Rg — Rig-Veda 5. AV— Atharva-Veda 6. Yj. — Yajur-Veda 7. Up. — Upanishad 8. M. — Manu-Smriti 9. BG. — Bhagavad-Gītā 10. Y. or. Yaj. — Yajñavalkya-Smriti 11. R. — Ramayana 12. G. Gr. S. — Gobhila Sutras 13. A. Gr. S. — AshwalayanaGrihya Sutras 14. S. Gr. S. — ShankhayanaGrihya Sutras 15. A p. Gr. S. — ApastambaGrihya Sutras 16. ART-Assisted Reproductive Technology 17. HAMA- Hindu Adoption and Maintenance Act, 1965 18. ICMR- Indian Council of Medical Research 19. CrPC- Criminal Procedure code
Contents 1. Introduction Meaning of ethics and morality Importance of ethics and morality in family law 2. Origin Ethical issues concerned withHindu Family Law Hindu view of marriage Importance of Children Choice of Partner Guardianship in marriage Marriage consideration of age Fitness of male and female in marriage Caste consideration in marriage Divorce Inheritance Concept of Stridhan 3. Trend Analysis Homosexuality Live-in together Landmark Judicial pronouncements Right of maintenance in Live-in relationships Custody of child born out of Live-in relation Surrogacy Landmark Decisions Problems Review of 228th Report of Law Commission of India on Surrogacy 4. Future Prospects Demand for Uniform Civil Court 5. Conclusion
Introduction Morals are the values of conscience. They are those underlying principles that govern the commission of an act. Morals are a set of rules and guidelines which individuals follow and adapt by following the society‘s culture and norms. Morals may vary from time to time and gain flexibility in practice according to the thinking of the people and the society. Morals help us in forming an opinion in the mind, of what is good and what is bad. It can be said to be the nucleus of a civilized society. For instance, abusing a person in public is morally wrong; there cannot be a justification to it. Use of the term ―morality‖ in connection with this galaxy of requirements is misleading. They are ―essentially principles of good craftsmanship‖1 Morals and ethics are not the same thing.2 Morals are concepts of what is ―good‖ and what is ―bad‖ and how one should behave given this; they get formed and become a tradition in a certain society for a certain period of time. The moral rules may be very different in different countries or even in the same country in different epochs. Morals are a subjective phenomenon, since most of their rules do not follow from the objective necessity and advisability. Moral rules are about how to dress, where and how much one can bare the body, what turns of speech are decent and what are not, what one should be ashamed of, what is ―appropriate‖ to do and what is not, etc. the concept of Morality was first introduced by Prof. Lon. L. Fuller. Ethical principles are objective. They follow from real necessity and advisability. They are based on the understanding of the Path to the Perfection, to God. This is what God tries to explain to people3. Ethics is the science about the correct attitude of man. Ethics can be understood as conceptions which people don‘t express but reflect through their deeds. People believe ethics are imbibed into one‘s nature as principles. They are also based on the society, upbringing and 1 Hart, Book Review Vladimir Antonov "The Original Teachings of Jesus Christ" 3 www.swami-center.org, on Oct 3, 2011 2
psychology of a person. There can be no defined standards of ethics, they can only be laid down through a process of observation of a variety of people. Ethics are a driving force towards a good or an evil act. There can be no description of ethics as good or bad, it can be either strong, weak or absent. Ethics on humanitarian grounds; its relation with law shall be discussed later. Ethics have been understood in two ways: · In the form of principles which guide one‘s behavior · Ethical codes prescribed by respective professions Individual ethics can be distinguished from social morality; it is obvious that there is no complete separation between the two.4 The social morality of a community will be determined by the balance of thousands or millions of individual ethical ―pictures of life‖ within it. Importance of ethics and morality in family law It is very important to understand the essence of ethics in law which is quite deep rooted. Social problems are grounded in ethical evaluation.vi For instance, as observed by Professor Emmet, juvenile delinquency is seen to be a problem, not because it prevails, but because it is thought to be bad. Again, the most suitable method of resolving some social problem often depends upon built- in ethical considerations. The Constitution of India, which is the mother law of the land, has been a benchmark of changing traditions and developments in the socio-legal scenario. It has very well adapted with the needs of the society and has imposed strict restrictions at critical times. Ethics are similarly very important in family law in India, as family has always been considered to be a moral institution guided by religious principles. These ethical evaluations lie in our sacred religious books and ethical codes for example the Vedas, Manu Smriti,Upnishads, Gita, Ramanaya, concept of ‗Dharma‘ and ‗Moksha‘ ,etc. for Hindus and ‗Quran‘ , Shariyat and Sunni practices, etc. in Muslims. In India, whenever there is a discrepancy between the law and the practices, it is the customary practice which is given preferential consideration; which in turn are built around ethical issues inculcated, deep rooted in the evolution of various religion and their practices. Thus, for guiding this institution of family, the laws framed in India too are built based on and around these ethical, moral and public policies deep rooted in our societies. Thus, the study of 4 Strawson
these ethical and moral principles are very important in order to get a better understanding of the Indian family law, its jurisprudence and concept as a whole. Ethical issues concerned with Hindu Family Law This is the sum of duty: Do naught unto others which would cause you pain if done to you. 5 Religion clearly plays an important part in many Hindu‘s ethical decisions, and for those with a religious faith ethical behavior is often seen as being necessary, both as an act of obedience to God‘s wishes and as a requirement for spiritual development Ethics, which concerns itself with the study of conduct, is derived, in Hinduism, from certain spiritual concepts; it forms the steel-frame foundation of the spiritual life. Though right conduct is generally considered to belong to legalistic ethics, it has a spiritual value as well. . Hindu ethics prescribes the disciplines for a spiritual life, which are to be observed consciously or unconsciously as long as man lives. Hindu ethics are taught by guidance from leaders and teachers ( guru), wandering holy men (sadhus), and sages (rishis). Some gurus are venerated, and may work miracles. Sacred scriptures also give guidance. Morality is taught through Hindu scriptures, for example the Ramayana. The scriptures prohibit murder, theft, adultery, and consuming alcohol, and promote kindness to others, respect for all life (ahimsa), vegetarianism, and respect for elders. There is no centralized religious authority, and the religion is held together by the duties of family and caste It is based upon the Hindu conception of Dharma, or duty, related to a man‘s position in society and his stage in life. Hindu view of marriage The Hindu looks upon marriage as not only a very important social institution, but an equally important religious institution also. It is held to be the pivotal fact of a one‘s life, transforming him from a self-centered into a social being, from an isolated unit into a unit essentially connected with the past as well as the future of the race. 5 (Mahabharata 5:1517)
Marriage is not a contract in the eyes of a Hindu, temporarily entered into under the influence of his wandering fancy or dissolved at his pleasure. It was essentially a sacrament, necessary for every individual to realize the potential of one‘s social nature fully and to fulfill the responsibilities which one‘s owes to one‘s self, one‘s ancestors and to the society at large. It is a fundamental social fact in one‘s life, constituting an important stage in the development of individuality, a stage in which one puts the needs of society first. Marriage, therefore, is to every Hindu not an act of mere pleasure, not primarily a source of gratification of sentimental longings or romantic loves, but an act of duty, a matter of moral and religious obligation, absolutely incumbent on everyone in all normal circumstances. The following verses show that marriage is considered an act of positive merit. “One, who out of stupefaction, puts impediments in an impending marriage, sacrifice, or act of charity, O Vasava, is born as a vermin after death.” (Brihaspati. 70). “For one dying without purificatory rites being performed unto one, the nuptials for a bachelor should be performed.” (Shatatapa. 6:36). Of all gifts, the gift of a maiden is the best. (Rg 4:24. 38), (Samvarta.61-62. 64. 75). Marriage a duty Marriage was, therefore, regarded as an indispensable duty for men and women alike, but especially for the latter. The phenomenon of old spinsters was not altogether unknown. (Rg. 2:17. 7). They lived in their parents‘ home ‗ till the hair was white with age.‘ (AV:I. 14. 3) ―An old maid restlessly tried for a husband and at last secured him.‖ (Rg. I. 117. 7.) Manu also entitles a girl to remain unmarried if a suitable husband is not found. (M. 9:89). But this state of things was quite exceptional. ―May she long sit with her relatives until her hair drops from her head.‖ (AV:I. 14.3). Such was the curse given to a lady. Manu says that marriage is the only sacrament forwomen; it is to them what the ceremony of putting on sacred thread is to the males. (M. II. 67).
Importance of children Here we will bring out only one aspect of the problem, viz. the importance ofmarriage as a guarantee of race continuance. The command ‗Increase and multiply‘ was very sacred to a Hindu whose present bliss and prosperity depended, indeed, upon sons; but above all, his future and the future of his ancestors hinged upon the male descendants. The Rig-Veda is full of cries for children; sons were a source of strength and power to people in those days. They were called ―cancellers of the father‘s debt‖ (Rg. VI, 61, 1.) To have children was to become immortal. (Rg. V, 4,10.) ―O bounteous Indra, make this bride blest in her sons and fortunate. Vouchsafe to her ten sons and make her husband the eleventh one.‖ (Rg. X, 45.) ―Grant riches with a multitude of hero sons.‖ (Rg. X, 15, 11.) Barrenness was deprecated. ―The lot of childlessness removes from us.‖ (Rg. 3:54,18.) Daughters were not at first out of favor. ―With sons and daughters by their side they reach the full extent of life.‖ (Rg. VIII, 8.) The Hindu view in that the son is the reproduction of one‘s self, and hence he is entitled to take up one‘s burden of responsibilities. It is not only necessary to have sons but grandsons and greatgrandsons. In fact, the mandate is — Don‘t sever the thread of the human species! ―By a son one conquers the three worlds. By a son‘s son, one enjoys eternity, and by a grandson‘s son, great-grandfathers enjoy everlasting happiness.‖ (Adi. 98, 18-21.) If the line threatens to fail, sons could be adopted; but in the Rig-Veda we find that adoption was not popular — ―Agni, no son is he who springs from others.... Unwelcome for adoption is the stranger, one to be thought of as another‘s offspring. Though grown familiar by continual presence.‖(Rg. 7:4, 7, 8.) Sexual selection: the choice of partners The choice of the partner often lay in the hands of the bride or the bridegroom in the Vedic period. ―Embrace, another, Yama; let another, even as the wood-bine rings the tree enfold you. Win you his heart and let him win your fancy and he shall form with you the best alliance.‖ (Rg. 10:10.14.) Guardianship in marriage
The question of guardianship as regards marriage arises only in connection with girls. Men are generally free to contract marriages for themselves; but if they are minors,the consent of parents or guardians is necessary. Even if one is not a minor, it is a matter of duty for him, though not one of legal obligation, to marry with the permission of the parents or elders. ―With their permission (of parents) he should take a wife...‖ (Gr. H. I. 6. 19. 1.) In the case of females, persons who are fit to be guardians are mentioned. ―The father, parental grandfather, brother, kinsmen, and mother, being of sound mind, are the persons to give away a damsel the latter respectively on failure of the preceding.‖ (Yaj.I. 63.) Marriage considerations: Age Manu recommends early marriages, but has no serious objection to marriage after puberty. ―A girl, even before having attained the proper age of marriage, should be duly married to a handsome, qualified husband of her own caste, (if such an opportunity occurs.)‖ (M. 9:88) ―A girl, who has attained puberty, shall wait (unmarried in her father‘s house) for three years (after the appearance of her first flow); after that, she shall take a husband of her own caste and status‖ (M. 9:90) The texts of some of the later Smritis show that the standards of age in the case of girls had quite fallen. Mutual love It is true that ancient Hindu thought at certain epochs deliberately considered love as a very subordinate element in the formation of marriage unions. But in very early period, as well as in the classical period, mutual love was regarded as the most essential condition of all healthy marriages. ―Let that (man) love me; being dear let him love me; ye gods send forth love; let yon (man) burn for me.‖ (AV:6:130. 2) Status in marriage The selection of husband or wife being a solemn duty, we find various considerations urged which ought to enter into all reasonable choice. Equality of rank and status is always desirable. ―Social games, marriages, and intercourse generally, should be with a one‘s equals, not with those either above him or below him. ―Where the love between husband and wife adds luster to both, and is a source of joy to both, families, that is the only marriage which is approved.‖ (Verses quoted in Vatsayana.)
Fitness of males Now we will refer to certain special considerations which determine the choice of husbands and wives. ―Marry a daughter to an intelligent person.‖ (A. Gr. S. 1-3.) ―A bridegroom should be endued with all the accomplishments, be of the same caste and social standing, well read in the Vedas, carefully examined about his manly power, youthful, intelligent, and agreeable to all the people.‖ (Yj, I. 55.) Nārada mentions the following defects disqualifying a person for being a suitable husband: ―Madness, loss of caste, impotence, misery, being forsaken by his relatives and the two first faults of a maiden (in the above text, i.e. affliction with a chronic or hateful disease and deformities.)‖ (Nārada 12. ch. 2-4.) Fitness of girls Equal attention is to be paid to the selection of a girl. (M. 3:6-10.) ―Therefore, let one select a girl who is such an one as follows. She should be of good family. Her father and mother should both be alive. She should be younger, and younger by at least three years than himself. She should be the daughter of a house that reverences the sacred ordinances, that is rich, the members of which are kindly disposed one to the other and that is rich in adherents. Her connections both on the mother‘s and the father‘s side should be influential. She should have beauty, virtue, and auspicious marks. Her teeth, nails, ears, hair, eyes, and breasts must be neither too large nor too small, and she must not have lost any of these parts. She must be of sound constitution. (Mutatis Mutandis) The young man should be of the same kind; but in addition he must have completed the prescribed course of study.‖ (Vatsayana.) The girl must be decidedly younger in age than her husband. (Yaj,1:52) Seniority in age on her part conflicts with the Hindu ideas of obedience to a husband. While manliness and learning are emphasized as the best qualities of a husband, beauty and grace are deemed the best qualities of a girl. The Hindus hold that there is some subtle but real connection between outward form and inward spirit, that the two generally correspond with each other. ―Face is the index of the qualities.‖ ( tirguṇ ānkathayati). A female having the upper lip very high, and the hair coarse at the ends, is fond of quarreling. Generally speaking, vices will be found with the ugly, whereas the virtues reside where beauty dwells.‖ (VarahaMihira. BrihatSanhita. Quoted by Dr. Peterson) Above all, the girl must be a virgin. It was, therefore,
emphasized that a girl who has no brothers should not be married, because her character could not be relied upon. (M. Gr. S, I. 7-8) ―The nuptial texts are applied solely to virgins, (and) nowhere among men, to females who ‗have lost their virginity, for such‘ (females) are excluded from religious ceremonies.‖ (M. .‘151). All persons fit to marry All the above texts are directory and not imperative. Marriages contracted on the above basis were approved of; but those which violated the conditions were not invalid. We shall now mention the actual limitations on marriage. There is no age disqualification in the case of Hindus; all minors are eligible for marriage. It is, indeed, considered advisable that a twice-born man should marry after his period of studentship. (Manu. 3:4) But as this ideal has disappeared the age limit, too, has changed accordingly. Even insane persons and homosexuals were considered fit to contract marriages. ―A homosexual, a degraded person, a person born blind or deaf, an idiot, or those devoid of any organ, shall not take any share in the paternal property... But if these homosexuals, etc. should be inclined to marry, and if the wife of the homosexual should raise up a son to him by one legally appointed, that son and the issue of such as have children shall be capable of inheriting.‖ (M. 9:201. 203) Caste considerations in marriage Almost all persons are held competent to contract marriage, but not with any and every person. Absolute disqualification there is little or none; relative disqualification there is. Here then are two main questions; how far it is permissible to marry outside one‘s caste; and with what limits one cannot marry within one‘s family, It is not necessary to confine oneself to one‘s own caste for marriage; a man may marry any woman of the lower caste but it was not good for him to marry a woman of the higher caste. ―A Śūdra woman is the wife of a Śūdra, a Vaishya can marry a Śūdra or Vaishyawife; a Kṣ atriya can take a Śūdra, Vaishya, or a Kṣ atriya wife, and a Brahmin can marry a Śūdra, Vaishya, Kṣ atriya or a Brahmin wife.‖ (M, 3:13) Marriage with a Śūdra wife gradually fell into utter contempt. (M. 3:14-16) Marriage with persons of the same caste, however, was the ideal. Marriage among near relations forbidden
The limits of the circle of relationship within which marriage was forbidden became gradually more and more marked. The dialogue of Yama and Yami in the Rig-Veda is very interesting; it is a very early expression of the growing consciousness to avoid near blood-relations. Yama says to Yami: ―I will not fold mine arms about your body; they call it sin when one comes near his sister.‖ (Rg. 10:10.) Polygamy The question of competence to marry, raises the problem whether a husband, who has one living wife, is capable of entering on a new marriage and whether a wife, who has one husband, is capable of having two or more? In other wards, are polygamy and polyandry allowed to the Hindus and if so under what limitations? The Hindus are monogamous rather than polygamous people; but they are not rigid adherents to the institution of monogamy. In the Vedic period, many wives were allowed; Manu had ten wives. (M. Sam. I. 5, 8.) A reference to rival wives brings out the same fact. ―Like rival wives on every side enclosing ribs oppress me more.‖ (Rg. I.105, 8, 10:33, 2.) Chyavana was made ―Lord of youthful maidens.‖ (Rg. I. 116, 10.) ―I have subdued as conqueror these rivals, these my fellow-wives, that I may hold imperial sway over this Hero and the folk.‖ (Rg. 10:159, 4-6.) The king had four wives attributed to him, the Mahishi(S. Br. 5:3, T, 4,) the Parivikriti(S. Br. 5:3, 1, 13,) the Vavata(S. Br. X3:2, 6, 5,) and the Palaguli. (S. Br, X3:4, 1, 8.) The first is the chief wife, the second means one having no son, the third is the favorite, and the fourth is the daughter of the last of the court officials. ―Three wives are allowed to a Brahmin in accordance with the order of castes.Two to a Kṣ atriya and one to a Vaishya.One Śūdra wife besides, to all, according to some teachers without using the Mantras.‖(M. Gr. S. I. 5-10, I.5) (Vishnu. 24, 4.) Clearly the sanction for polygamy exists; but is it the ideal? The ideal is of one man and wife, known in the Hindu books as eka-patni-vrata. Manu says that marriage with the first wife is for Dharma; only pure inclination is responsible for other wives. (M. 3:12.) Polyandry Polyandry is entirely opposed to all the Hindu scriptures and traditions. It is unvedic. There is no mention of it in the Vedas; it is clearly repudiated therein.
―As in one piece of wood there may be two strings, therefore, a man may have two wives. As there cannot be one string for pieces of wood for Yajña, so a woman cannot have two husbands.‖ (Ta. S. 6. 6. 4. 3) ―A man may have several wives but a woman cannot have many husbands‖. (Ai.Br. 3. 2. 12) ―Polygamy in men is an act of great merit. In women it is very sinful to betake to a second husband after the first‖ (Adi. 172. 46) Divorce Under certain circumstances, divorce is possible in the Hindu system. Generally speaking, in life and in death, the husband and wife are one; separation in their case is inconceivable. The wife is declared to be one with the husband. ―Neither by sale nor by repudiation is a wife released from her husband. Only once can a partition of an estate be made, only once a girl can be given away in marriage, and only once can a thing be gifted. Each of these three things can be made only once.‖ (M. 9:45-47) ―Let mutual fidelity continue till death, this in a few words may be considered as the supreme law between husband and wife.‖ (M. 9:101) But this rigidity of extreme theory is modified in various ways. The Hindu theory allows Tyāgaor separation, which, however, does not amount to dissolution of marriage. ―In the event of one‘s wife becoming a drunkard or faithless, hostile, invalid, extremely hot tempered, or spend-thrift, one shall marry a second wife. The husband of a sterile woman shall remarry on the eighth, the husband of a wife whose children die in infancy on the tenth, and the husband of a wife who has given birth to, daughters only on the eleventh year of their respective marriages, while the husband of a harsh-tongued wife may remarry without the least delay. If a wife of good conduct, who is attached to the good of her lord, happens to be afflicted with (an incurable) disease, let her husband marry again with her consent; but he must not insult her under any circumstances whatever.‖ (M. 9:80-82) ―But a wife failing to nurse an insane, degraded, sexless or seedless husband, or one afflicted with a sinful disease, is not fit to be abandoned by that husband for that hostile conduct, nor the things which he might have presented to her can be taken from her. (M. 9:77-79) All the authorities are agreed that a dutiful and son-bearing wife should never be abandoned. ―(He who) abandons an obedient, attentive, son-bearing and sweet-speaking wife, should be
compelled (by the king) to give her a third of his property. If poor, he should (be ordered to) maintain her.‖ (Yaj. I. 76. Nārada. 12. 95) One person, not two The Hindu view regards husband and wife as one person not two and hence requires on their part complete identity of feelings, interests, and duties. Even the Vedas recognize that the essence of wedded life lies in the profound reciprocal love between the parties to marriage. ―So may the universal gods, so may the waters join our hearts; may the Matarishwan, Dhatar, and Deshtri together bind us close.‖ (Rg. 10:47). Shraddha Ancestor worship prevalent among the Hindus indicates their great regard for their parents even after their death. It insures reverence for the past, and consequent organic continuity of future development. The ceremony was called Shraddha. ―Come hither Fathers, who deserve the Soma, by the deep path-ways which the Fathers travel. Bestow upon us life and store of children, and favor us with increase of riches.‖ (AV:18:4. 62). Rights of Property Family the basis of Society It must not be forgotten that the social unit is the family, not the individual. The rights of the head therefore remain severely limited. Certain forms of property such as deposits, borrowed things, joint property are inalienable even, in the worst plight. Ancestral property can be enjoyed only; there can be no gift or sale of the same. (VriddhaYaj.) Inheritance Primogeniture seems to be at first the prevailing custom. Unity and indivisibility of executive in a family required such concentration of power. (M. 9:105-108.) First father, then mother, then the eldest son was the head of the family, in early times. (Nārada I.) The eldest member was bound to support the dependants, who in turn were bound to give him honor. Minors must be carefully protected. Economic position of females An interesting light is thrown on the position of females in a society by theexamination of their economic position. A girl in a family had three possibilities. She gets married; and if she has brothers it seems that she had no property rights. ―Some hold that daughters do not inherit.
Therefore the Vedas say that a male is the taker of wealth, and that a female is not a taker of wealth.‖ (Nirukta) ―The legitimate son of the body does not give the inheritance to the sister.‖ (Rg.3:31. 1. 2.). Daughters have a right to the ornaments of their mother, which custom assigns to her. (Baudhayana 220.127.116.11). Property sufficient for their marriage should be given to them. (Devala quoted in the Rathakar). The rights of unearned girls are fully recognized even when these have brothers. ―(O Indra) as the daughter being with her parents asks for share of wealth from the father‘s family.‖ (Rg. 2:17. 7.) Vishnu allots to daughters shares equal to those of their brothers. (-XVTIL 35.)Nārada also takes this view. ―To the eldest son a larger share shall be allotted and a less share is assigned to the youngest son, the rest shall take equal shares and so shall an unmarried sister.‖ (13:2.13.) Manu assigns a share equal to that of her brother to a daughter, who is first appointed Putrikabut afterwards a son being born to her father who becomes an ordinary girl. The ancient law first assigned no separate property to females. The growth, therefore, of Stridhanawoman‘s property was a slow growth. The Hindus were the first to give females rights which they had not elsewhere. ―What (was given) before the (nuptial) fire, what (was given) on the bridal procession, what was given as a token of love, and what was received from her brother, mother, or father, that is called the six-fold property of a woman. (Such property) as well as a gift subsequent and what was given (to her) by her affectionate husband, shall go to her offspring, (even) if she dies in the lifetime of her husband.‖ (M. 9:194-195.) Her power over the property called Saudāyikai.e. what is received from her brothers, parents, or her husband‘s father‘s family, is complete, both in respect to sale and gift. She can even dispose of the immovables according to her pleasure. She is to preserve what she has received from her husband with care while he is alive; afterwards her right is supreme. Neither the husband, not the son, nor the father, nor the brothers can assume power over a woman‘s property to take or bestow it. (Katyayana quoted by the Commentators).
Trend Analysis The civilized society came up after a rigorous evolutions and developments. From the earlyman, in the primitive society to the present day cultured society, there have been a contrastingchange in the lifestyle, views, communication, habitation, and the survival altogether.Hunting of animals for food was the only means of nutrition. There were no restrictions onhunting. As society grew, hunting became an activity of pleasure. At present, we are wellaware that hunting of animals will cost really high and the offender can be prosecuted forpoaching. Following are some issues discussed in detail which did not get a nod in the society in one go. They were a turning point, but legislations have been provided in the best interest of the people. Perhaps, the mental stigma is still the same. These issues did boggle our minds and were very contradictory with the contemporary society. Nevertheless we are dealing with them and shall do so but in an orderly manner. Homosexuality Homosexuality is known to be a practice against the law of nature. It was strongly condemned on moral grounds in the past. As the society moved towards modernization it was argued that people have rights of privacy and right to life in the society and re-instated that homosexuals are humans just with a different sexual orientation. In the 18th century Jeremy Bentham was one of the first people to argue for the decriminalization of sodomy in England. In 1791, France adopted a new penal code which decriminalized homosexual acts between consenting adults. Further almost all the nations started joining hands including Netherlands, Brazil, Russia, Portugal, Italy, USA, Chide, Bosnia, Canada etc. as the time progressed. At present, it is liberalized worldwide which has uplifted the LGBTxxxisociety to a great extent, thereby giving them equal space in the society. It was decriminalized in pursuit of the basic human rights to the people with different desires and emotional bentxxxii. In India it is a recentdevelopment though the Supreme Court‘s verdict is still pending on the issuexxxiii.There were a lot of protests made by the people since the 19th century in order to get their rightsrecognised. This is a classic example when laws make way though they clash with morality.
Nepal Court allowed Lesbian live-in relation6: KATHMANDU: Continuing its tradition of passing liberal judgments regarding the rights of sexual minorities, Nepal's Supreme Court has recognised a livein relationship between two lesbians in a landmark judgement on Monday, the Court allowed RajaniShahi to live with her lover as she wished, rather than with her husband, Live-in together The young generation has been more interested in love-marriages, which is a very calculated step in their life. They indulge in love relationships at an early age but, do not want to switch to marriage in haste. Instead, they start living together, in that ways they share a common accommodation, living and even the regular household chores and expenses. When they stay with each other, they observe if they are compatible with each other, with various things surrounding them, like their respective professional lives, professional attitude, social circle, emotional demands etc. This helps them to make space for each other and without any commitment of marriage. If at any time, they feel that things are not working out between them, or they face clashes of interest, they can get back to their normal lives, without any burden of social pressure of divorce, which becomes a dead end, especially for a woman. It is observed that since people are so much busy in their lifestyles, live-in relationships prove a better option to spend some time together. It gives women a better position in the society, who can come out of her relationship easily and does not have to regret a failed marriage or bear the hard consequences of being a divorcee. These relationships have also been recognized by law in India. Sec. 125 of CrPC says that, even if marriage has not taken place, the woman is entitled to demand compensation from the man, like a wife does after a divorce has taken place. The Protection of Women from Domestic Violence Act 2005 (PWDVA), for the purpose of providing protection and maintenance to women says that an aggrieved live-in partner may be granted alimony under the Act. So, the female partner has been given equal status of a wife, this is to prevent exploitation of the women. This is a very prevalent practice among the youngsters, which was not at all accepted in the society with open arms in India but has gained momentum gradually. In the U.K, Living-in is a lucrative alternative to those who do not want the legal shackles of marriage to tie them down. On the flip-side however, it does not grant any legal benefits to those in such a relationship. In the past, such a practice was considered to be against the ethics of the girls. Any girl who was found co-habiting with a guy without a marital relationship was eyed negatively and of bad character. 6 November 6, 2012 | ManeshShrestha , TNN
Girls were not much educated in the past. Before marriage they depended on their fathers for each and every need, once they got married, they became the responsibility of the husband. This was the typical example of the patriarchal society. They were considered inferior to men. Gradually, societal tendencies underwent a change and love marriages came into being. In olden times, Love marriages were considered to be those when a girl used to elope with her beau and tie the marital knot. Such couples were boycotted from the society, as they broke society‘s norms. In other cases, the lovers used to succumb to the social parameters and sacrifice their love for the sake of morals. Unlike the present scenario, it required much courage for a girl to confess her feelings in front of her parents, immaterial whether they get accepted or not. The society had strict set of morals at that time, which seems to be unfair now. Even if the parents agree, they used to fear the damage to their reputation in the society. So, they had to follow them. .......―Merely spending weekends together or a one-night stand would not make it a domestic relationship,‖ said a bench of Justices MarkandeyKatju and TS Thakur, cautioning that in future, claims for financial relief arising out of live-in link-ups would increase in India. The Supreme Court of India has noted that just any ‗live-in relationship‘ does not entitle a woman to alimony. To make a ‗live-in‘ legal the Supreme Court says that the couple must hold themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; and they must have voluntarily cohabited for a significant period of time. Making an attempt to iron out certain ambiguous situations, the judges also said that if a man has a ‗mistress‘ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship ―in the nature of marriage.‖..... Marriage is a sacred or contractual relationship in India. Marriage, as its legal consequences, entitles both the persons to cohabit; the children born out of a legal wedlock have legitimacy as legal heir; the wife is entitled to maintenance during and after the dissolution of marriage. To avoid these obligations and to enjoy the benefit of living together, the concept of live-in relations has come into picture. Live in relationship provides for a life free from responsibility and commitment unlike as in a marriage. Live-in relationship defined-It is a living arrangement. It is ―an arrangement of living under which the couples which are unmarried live together to conduct a long-going relationship similarly as in marriage". In this relationship an unmarried couple lives together under the same roof in a way it resembles a marriage, but without getting married legally. This form of
relationship does not thrust the typical responsibilities of a married life on the individuals living together. The foundation of live in relationship is individual freedom. No specific law recognizes a live in relationships in India. No legislation is there to define the rights and obligations of the parties and the status of children born to such couples. A live–in relationship is not recognized by Hindu Marriage Act, 1955 or any other statute. In the absence of any law to define the status of live in relationships the Courts have taken the view that where a man and a woman live together as husband and wife for a long term, the law will presume that they were legally married unless proved contrary. The Protection of Women from Domestic Violence Act 2005 provides for the protection,maintenance and right of palimony to a live-in partner, if she complains. Judicial Pronouncements-The earliest case in which the Supreme Court of India recognized the live in relationship as a valid marriage was that of Badri Prasad vs. Deputy Director of Consolidation, in which the Court gave legal validity to the a 50 year live in relationship of a couple. In PayalKatara v. Superintendent NariNiketanKandriVihar Agra and Others the Allahabad High Court ruled out that ―a lady of about 21 years of age being a major, has right to go anywhere and that anyone –man and woman even without getting married can live together if they wish‖. Again in the case of Patel and Others, the Supreme Court has held that live in relationship between two adults without marriage cannot be construed as an offence.InLata Singh v State of UP &Anr. the Apex Court held that live-in relationship was permissible only between unmarried major persons of heterogeneous sex. If a spouse is married, the man could be guilty of adultery punishable under section 497 of the IPC. Since the husband survives, Rangammal cannot invoke presumption of live-in. If so the children became illegitimate and disqualified to inherit u/s 16 of the Hindu Marriage Act, 1955. Therefore, live-in relationship could be ‗a dangerous thing‘ between a wife and a non-husband as it could lead to an offense of adultery, but not to ‗marriage‘.
In the case of S. Khushboo vs. Kanniammal&Anr., the Supreme Court has held that living together is a right to life. The Court held that how can it be illegal if two adults live together cannot be illegal. But in Alok Kumar vs. State of Delhi, the Delhi High Court has held that live in relation is walk in and walk out relationship and no strings are attached to it. This kind of relationship does not create any legal bond between the partners. It further held that in case of live in relationships, the partners cannot complain of infidelity or immorality. The Supreme Court in the case of D. Velusamy v. D. Patchaiammal has held that, a relationship in the nature of marriage under the 2005 Act must also fulfill some basic criteria. Merely spending weekends together or a one night stand would not make it a domestic relationship. It also held that if a man has a ˜keep‖ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in their opinion, be a relationship in the nature of marriage. Supreme Court's Conditions The Supreme court in the D. Velusamy v. D. Patchaiammal case made it clear that if the man has a live-in arrangement with a woman only for sexual reasons, neither partner can claim benefits of a legal marriage. In order to be eligible for palimony, a relationship must comply with certain conditions. The conditions laid down are that the couple must hold themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; they must have voluntarily cohabited for a significant period of time. Considering that the judgment would exclude many women in live-in relationships from the benefit of the Domestic Violence Act, 2005, the apex court said it is not for this court to legislate or amend the law. The parliament has used the expression relationship in the nature of marriage and not ˜live-in relationship‖. The court cannot change the language of the statute.
Right to Maintenance in Live-in Relationship The need to include live in female partners for the right of maintenance under Section 125 of Criminal Procedure Code, 1973 wa supported by the judgment in AbhijitBhikaseth Auti v. State Of Maharashtra and Others. The Malimath Committee and the Law Commission of India also suggested that if a woman has been in a live-in relationship for considerably long time, she ought to enjoy the legal status as given to wife. However, recently it was observed that a divorced wife is treated as a wife in the context of Section 125 of CrPC but the live in partners cannot get divorced, and hence cannot claim maintenance under Section 125 of CrPC. The Protection of Women from Domestic Violence Act, 2005 considers females who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife. Section 2(f) of the Act defines domestic relationship which means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Thus, the definition of domestic relationship includes not only the relationship of marriage but also a relationship `in the nature of marriage. In the case of KoppisettiSubbharaoSubramaniam vs. State of Andhra Pradesh, the Supreme Court held that the nomenclature ―dowry‖ has no magical charm. It refers to a demand of money in relation to a marital relationship. The Court rejected the contention of the defendant that since he was not married to the complainant, Section 498A did not apply to him in a step ahead in protecting the woman from harassment for dowry in a live in relationship. STATUS OF CHILDREN OF COUPLES IN LIVE IN RELATIONSHIP Since there is no specific law that recognizes the status of the couples in live in relationship, hence the law as to the status of children born to couples in live in relationship is also not very clear. The Hindu marriage Act, 1955 gives grants the status of legitimacy to every child irrespective of his birth out of a void, voidable or a legal marriage. But there is no specific law that raises any presumption of legitimacy in favor of children of live in partners. The future of children of live
in partners becomes very insecure in case the partners step out of their relationship. There comes the requirement of a strong provision to safeguard the rights of such children. The must be provision to secure the future of the child and also entitling the children to a share in the property of both the parents. Again in the absence of a specific legislation, the Supreme Court of India took the initiative to safeguard the interest of children of live in couples. In the case of BharataMatha&Ors.vs. R. VijayaRenganathan&Ors., the Supreme Court of India has held that child born out of a live-in relationship may be allowed to succeed inheritance in the property of the parents, if any, but doesn't have any claim as against Hindu ancestral coparcenary property. Conclusion The live in relationship may be immoral, but not illegal. The judiciary has accorded legality to the concept of live in relationship and has protected the rights of the parties and the children of live in couples which makes it unnecessary to formulate a law to clarify the concept so urgently. There is no law which makes a live in relationship illegal. Surrogacy The problem however arises when theparents are unable to construct the child through the conventional biological means. Infertility is seen as a major problem as kinship and family ties are dependent on progeny. Herein surrogacy comes as a supreme savior. This is done through Assisted Reproductive Technology (ART) which is recognized by the Medical Council. There are a lot of legal and social impediments to this issue. It is not easy for a mother to nurture a child in her womb, and then in the end of it hand it over to someone strange. The most derogatory part is the consideration for it. Can anyone ever estimate a price for this sacrifice? It seems to be a mockery of emotions. But, turning our mind to the ugly side of it we come to know that India is known to be a reproductive tourism destination. Since, it is happening it has to be regulated under the shield of law. The legal issues mainly pertain to the rights of the genetic parents and the surrogate mother, the identity of the child. Jurisdictions in various countries have held different views regarding the legalization of surrogacy.
In UK, the surrogate mother is the legal mother; vide section 27(1) of the Human Fertilization and Embryology Act 1990. Section 30 of the said Act at the same time provides that if the surrogate mother consents to the child to be treated as the child of the commissioning parents the court may make a parental order to that effect. This section also prohibits giving or taking of money or other benefit (other than expenses reasonably incurred) in consideration of the making of the order or handing over of the child. In India, according to the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics, evolved in 2005 by the Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS), the surrogate mother is not considered to be the legal mother. The birth certificate is made in the name of the genetic parents. The US position as per the GestationalSurrogacy Act 2004 is pretty similar to that of India. It was in Manji‘s case in 2002 that Supreme Court of India held that commercial surrogacy was legal in India. In Jan Balaz v Union of India, the Gujarat High Court conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district in Gujarat. Problems At a glance, surrogacy seems like an attractive alternative as a poor surrogate mother gets very much needed money, an infertile couple gets their long-desired biologically related baby and the country earns foreign currency, but the real picture reveals the bitter truth. Due to lack of proper legislation, both surrogate mothers and intended parents are somehow exploited and the profit is earned by middlemen and commercial agencies. There is no transparency in the whole system, and the chance of getting involved in legal problems is there due to unpredictable regulations governing surrogacy in India. Although in 2005, ICMR issued guidelines for accreditation, supervision, and regulation of ART clinics in India, these guidelines are repeatedly violated. Frustration of cross border childless couples is easily understandable who not only have to cope up with language barrier, but sometimes have to fight a long legal battle to get their child. Even if everything goes well, they have to stay in India for 2-3 months for completion of formalities after the birth of baby. The cross border surrogacy leads to problems in citizenship, nationality, motherhood, parentage, and
rights of a child. There are occasions where children are denied nationality of the country of intended parents and this results in either a long legal battle like in case of the German couple with twin surrogate children or the Israeli gay couple who had to undergo DNA testing to establish parentage or have a bleak future in orphanage for the child. There are incidences where the child given to couple after surrogacy is not genetically related to them and in turn, is disowned by the intended parent and has to spend his life in an orphanage. The surrogacy arrangement should also provide for financial support for the surrogate child in case the commissioning couple dies before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child so as to avoid injustice to the child. A surrogate mother should not have any parental rights over the child, and the birth certificate of the baby should bear the names of intended parents as parents in order to avoid any legal complications. Guidelines dealing with legitimacy of the child born through ART state that the child shall be presumed to be the legitimate child of the married/unmarried couple/single parent with all the attendant rights of parentage, support, and inheritance Conclusion: If we look upon the problem of surrogate mothers, things are even worse and unethical. The poor, illiterate women of rural background are often persuaded in such deals by their spouse or middlemen for earning easy money. These women have no right on decision regarding their own body and life. In India, there is no provision of psychological screening or legal counseling, which is mandatory in USA. After recruitment by commercial agencies, these women are shifted into hostels for the whole duration of pregnancy on the pretext of taking antenatal care. The real motive is to guard them and to avoid any social stigma of being outcast by their community. These women spend the whole tenure of pregnancy worrying about their household and children. They are allowed to go out only for antenatal visits and are allowed to meet their family only on Sundays. The worst part is that in case of unfavorable outcome of pregnancy, they are unlikely to be paid, and there is no provision of insurance or post-pregnancy medical and psychiatric support for them. Rich career women who do not want to take the trouble of carrying their own pregnancy are resorting to hiring surrogate mothers. There are a number of moral and ethical issues regarding surrogacy, which has become more of a commercial racket, and there is an urgent need for framing and implementation of laws for the parents and the surrogate mother.
It seems ironical that people are engaging in the practice of surrogacy when nearly 12 million Indian children are orphans. Adoption of a child in India is a complicated and a lengthy procedure for those childless couples who want to give a home to these children. Even 60 years of Independence have not given a comprehensive adoption law applicable to all its citizens, irrespective of the religion or the country they live in as Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs) or Overseas Citizens of India (OCIs). As a result, they resort to the options of IVF or surrogacy. The Guardian and Wards Act, 1890 permits Guardianship and not adoption. The Hindu Adoption and Maintenance Act, 1956 does not permit non-Hindus to adopt a Hindu child, and requirements of immigration after adoption have further hurdles. There is a strong need to modify and make the adoption procedure simple for all. This will bring down the rates of surrogacy. Altruistic and not commercial surrogacy should be promoted. Laws should be framed and implemented to cover the grey areas and to protect the rights of women and children. Review of 228th Report of Law Commission of India on Surrogacy Updated: Thu, Aug 08 2013. 01 02 AM IST7 New Delhi: India‘s long-awaited surrogacy Bill will disqualify homosexual couples, foreign single individuals and couples in live-in relationships from having children through surrogate mothers in India. The law also imposes age restrictions on surrogate mothers. The proposed draft Assisted Reproductive Technologies (ART) Bill—the first attempt by India to regulate commercial surrogacy—is likely to be presented to the cabinet on Thursday before being introduced in Parliament. Critics said the strict norms of the proposed ART Bill will see the activity moving to more conducive destinations such as Thailand. Surrogacy is a method of reproduction where a woman—the surrogate—agrees to carry a pregnancy to term for a fee. In January, the home ministry had barred homosexuals and foreign single individuals. 7 ―Live mint and the wall street journal‖- http://www.livemint.com/Politics/ZsS2zs7KvqHlk4FCguW0EN/Draftsurrogacy-Bill-bars-homosexuals-livein-couples.html
―I do not understand why the law has to be discriminatory towards unmarried foreigners when unmarried Indians are allowed this facility,‖ said RituBakshi, chairperson of the International Fertility Centre in Delhi. ―It is fair to expect that surrogacy should be allowed in the country of the commissioning couple because citizenship of the child becomes an issue otherwise. Other than this, many restrictions imposed are not encouraging for business. A majority of our clients are from foreign countries. To expect this sector to not have commercial interest is naïve. Surrogacy is very expensive across the world,‖ she added. The current version of the draft law has undergone several modifications after inputs from the law ministry and the ministry of external affairs after recent diplomatic incidents. ―The sector is fraught with ethical and legal issues which the Bill seeks to address,‖ said R.S. Sharma, deputy director general and member secretary of the drafting committee of the proposed legislation, Indian Council of Medical Research( ICMR). ―In its current form, the Bill addresses all issues pertaining to ethics in commercial surrogacy. The health ministry‘s mandate was very clear—this Bill is only to help infertile couples and should act as a deterrent to commercial surrogacy,‖ he said. According to a 2012 study by the Confederation of Indian Industry (CII), the sector is worth $2 billion, despite being completely unregulated. The CII study estimated that nearly 10,000 foreign couples visit India for reproductive services and nearly 30% are either single or homosexual. In earlier versions—in 2008 and 2010—the ART Bill relied on contract law to establish a relationship between the commissioning parents and the clinic. In the current version, the Bill states that a professional surrogate will be hired by a government-recognized ART Bank and not private fertility clinics, the current practice. The compensation, as per the 2013 draft, will be a private negotiation between the surrogate mother and commissioning parents. ―The IVF (in-vitro fertilization) clinics or ART banks will have no role to play in this contract. Currently, IVF clinics decide the amount and pay the surrogate mother a portion. This could be exploitative and so we have changed this provision,‖ Sharma said.
Future Prospects-Demand for Uniform Civil Court8 We have observed that there are many discrepancies arising due to various different laws with religious origin. The courts observe it very difficult to deal with these cases where the customs have an overriding effect. In order to deal with these cases the lawyers come up with various arguments based on historical back ground that. This creates many problems in solving the case and coming to judgment. Keeping justice, equity and good conscience when Judges try to come up with different rulings there is various challenges being faced by them. Different religion in India having different Laws based in religious and their ethical basis out of which many being unjustified and inequitable need to be discarded. Every day Courts come up with new judgments keeping in mind the need of the society today. Thus in order to solve all these discrepancies, there is a need of SECULAR LAWS in Family matter too. As it is high time we need to solve these to hasten the court proceedings and meet the need of the present society; thus need for the uniform civil Court as mentioned in Art. 44 of our Constitution. Conclusion Now that the paper has ended, I come to the conclusion as to how important these ethical issues discussed above are in understanding the concept of our family law concept in India. It gives a better understanding of the legal principles and their basis. Where some legal concepts based on these ethical issues are beneficial for society there are other concepts that need to be amended for the benefit of the people and need of the society in the present scenario. In the end I would just like to conclude, that so far we have reflected our morals and ethics on the legal front. It is imperative to note that we are discussing about these issues in the 21st century. The world has already seen several major changes, in these laws based on religious and thethical concepts; it frther continues to change Peaceful existence and smooth functioning of this basic unit of society i.e. the FAMILYshould remain to be our mantra.We should adopt the changes in the society, because all the changes are not bad. The idea should be to progress. 8 The Constitution of India, Art.44 directs state to have for its citizen Uniform civil court.
Bibliography 1. Paper on ―Changing trends of Ethics and Morality in Law‖ – by NanditaBajpai 2. Paper on ―The principles of Hindu Ethics‖ – by Maganlal A Buch M. A. 3. Women and Criminal law- Dr. S.C. Tripathi, Central Law publication, 1sted. 4. Modern Indian Family Law-Werner Menski ,Curzon publication, 2001 5. ―Live-in Relationship in India:Legal Status‖; available at <http://www.gangothri.org/?q=node/33> 6. The Times of India, available at <http://articles.timesofindia.indiatimes.com/keyword/live-inrelationship> 7.―The Regulation of Surrogacy in India: Questions and Complexities , available at <http://samawomenshealth.wordpress.com/2011/04/23/the-regulation-of-surrogacy-in-indiaquestions-and-complexities/> 8. ―Surrogacy: Ethical and legal Issues‖, Indian journal of community Medicine, <http://samawomenshealth.wordpress.com/2011/04/23/the-regulation-of-surrogacy-in-indiaquestions-and-complexities/> 9. ―Surrogate Motherhood- Ethical or Commercial‖, Report by Centre for Social Research (CSR) 10. ―Surrogacy in India‖, Legal Service <http://www.legalservicesindia.com/article/article/surrogacy-in-india-222-1.html> India,
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