[ Dr Topi Basar ]
At the outset, the author would like to emphasize that codification of law has become necessary in matters of marriage and succession or inheritance of property in the 21st century wherein the society has grown complex. It is a known fact that personal law subjects like marriage, divorce, inheritance come under the concurrent list, over which both the Centre and the state can legislate. It is apt to mention Article 44 of the constitution, which requires the state to strive to secure for its citizens a uniform civil code throughout India. The Hindu personal laws were codified in 1956. The state of Goa has made uniform civil code, called the Portuguese civil code, 1867, applicable to all, regardless of any religion. The codification of new laws is perhaps the only way to make the customary laws progressive and certain.
The objective of this article is to crisply explain the basic substantive provisions of the bill and to highlight the areas that need more refinement. The bill comprises 11 chapters and 53 sections dealing with, for example, solemnization of marriage, marriage ceremony, appointment of marriage officer, registration of marriage, marriage certificate, restitution of conjugal rights and judicial separation, nullity of marriage and dissolution of marriage, divorce by mutual consent, permanent alimony and maintenance, jurisdiction of the court, division of property on divorce, will, inheritance of father’s (head of the family) property, right of childless widow, distribution of property where there are lineal descendants, distribution of the village ancestral immovable property, inheritance of a woman’s personal property, right of child in womb, right of a predeceased wife to possess house property, right of an APST woman married to a non-APST on inherited immoveable property, right of an APST woman married to a non-APST on immoveable property owned and acquired by her, right of a non-APST woman married to an APST man, penalty on married person marrying again under this act, punishment of bigamy or polygamy or polygyny or polyandry, etc.
The basic features of the bill
- Essential conditions of marriage, registration of marriage: The bill is made applicable to any person who belongs to any indigenous scheduled tribe of Arunachal Pradesh. It provides that a marriage between parties may be solemnized according to local customary rites and rituals of the either party.
Most importantly it lays down the essential conditions of marriage, such as, neither party has a spouse living at the time of the marriage; neither party is an idiot or a lunatic at the time of marriage; the parties have attained the age of majority at the time of marriage; the parties are not within the degrees of prohibited relationship. Section 3 (k) defines ‘major’ as for the purpose of marriage, a person who, if a male, has completed 21 years of age, and if a female, has completed 18 years of age. An interesting feature given in one clause is, in marriage under local customs and rites, customary exchange shall not exceed the price of one mithun (as per the market rate). The government has to appoint a marriage officer for each district. Every marriage before or after the commencement of the act may be registered by the marriage officer, provided conditions under Section 4 are met. Registration of marriage under this act (if passed) shall be mandatory and applicable to all the persons belonging to the indigenous scheduled tribes of Arunachal Pradesh.
- Restitution of conjugal rights, void and voidable marriage: The bill also provides for restitution of conjugal rights stating when either of the party has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district court for restitution of conjugal rights. Either party can file for judicial separation on any of the grounds specified in Sub-section (1) of Section 16. It also defines void marriage – Any marriage solemnized under the act shall be declared null and void on the petition of either party on the grounds having a living spouse, either or both was underage, idiot or lunatic, falling within prohibited degree of marriage. Void marriage is no marriage in the eyes of the law. The parties do not have status of husband and wife. Under the provision on voidable marriage, any marriage solemnized before or after the act may be annulled by the court on the grounds of non-consummation wilfully, contravention of Section 4, wife was pregnant by other man at the time of marriage, consent obtained by fraud and coercion, provided either of the party was at the time of the marriage was ignorant of the pregnancy alleged; or the proceedings have not been instituted within a year from the date of the marriage; and marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.
- Grounds for dissolution of marriage (divorce): Marriage solemnized after the commencement of the act can be dissolved on the grounds – For having voluntary sexual intercourse with any person other than their spouse, cruelty, desertion, irreconcilable incompatibility, unsound mind, mental disorder, venereal disease, renouncement of world, not heard of being alive for two years, no cohabitation for one year, no restitution of conjugal rights, wife can plea rape, sodomy, bestiality, that the marriage was solemnized before she attained the age of 18 years.
- Permanent alimony and maintenance: A wife who is unable to maintain herself can file application to the court for maintenance. The court may order that the husband shall pay to her an appropriate lump sum of permanent alimony. In case of minor child or children, unmarried daughter who are unable to maintain themselves as the case may be, are also entitled to maintenance and support. Guardianship of the child/children shall also be decided by the court as per the existing law in force, keeping in mind the best interests of the child, provided that a child below the age of 10 years shall be in the custody of the mother unless the mother is found unfit by the court for reasons to be recorded in writing as the custodian of the child.
- Division of property on divorce (wife’s share): The bill classifies property into movable and immovable properties, inherited, acquired (self-acquired or jointly acquired), ancestral property and village ancestral property. Father is designated as the head of the family. In case of father’s demise, mother is the head of the family.
The head of the family (father) has ownership over all properties which are not registered in the name of any member of the family living under the same roof. The head of the family may dispose of any of his/her/their properties with the consent of the wife or the other members of the family. However, only woman shall have the right to alienate her personal property. The bill also protects the right of a woman leaving her husband by deserting him – If a woman leaves her husband, she will have one-third share over the jointly acquired property along with her personal property. In a situation if wife was compelled to leave her husband by her husband’s domestic violence or cruelty, or her husband is wantonly sexually unfaithful or insanity of her husband, or depriving her of conjugal right except on health ground, she will have one-half share over the jointly acquired property. The right of a woman leaving her husband due to polygamy – if the husband divorces his wife, except on ground of adultery or deprivation of her husband of his conjugal right, she will have one-half share over the acquired property of any kind. If a man divorces his wife on ground of adultery or deprivation of his conjugal right, except on health ground, she cannot claim over the ancestral and acquired immovable property. However, the wife has a right to claim over the joint property purchased jointly with her husband. Furthermore, the wife’s share in the joint property is equal to the share she contributed. A woman leaving her husband due to polygamy committed by her husband shall be given a share not less than 50 percent of the acquired property (‘acquired property’ does not include inherited property). However, these rights shall apply to only legally wedded first wife. When the first wife is no more or legally divorced, the right of the first wife shall go to the second wife, and so on.
- Inheritance of father’s (head of the family) property: The relevant section begins with the expression, in the absence of a ‘will’, the following provision shall apply – On the death of the head of the family, the wife will automatically become the head of the family. The property left by the deceased husband will be inherited by the intestate’s widow, or if there are more widows than one, half of his property shall belong to all widows, subject to the condition that the priority shall be given to the first wife, and the remaining half shall go to the lineal descendants (intestate means dying without making a will; lineal descendant are referred to issue or the direct descendants of a person). If the intestate has left no lineal descendants but has left persons who are of kindred to him, two-third of his property shall belong to his widow/widows and one-third shall go to those who are kindred to him (kindred or family/relations). It protects the right of childless widow. Nothing in this act contained shall prohibit any widow who at the time of the death of her husband is a childless widow, from inheriting the properties and share of her deceased husband. A husband surviving his wife has the same rights in respect of her property, as a widow in respect of her husband’s property. Regarding distribution of property where there are lineal descendants, it reads that the property of the intestate shall be equally divided among all his surviving children, but where the intestate has not left surviving him any child or children but has left grandchild or grandchildren, the property shall belong to his surviving grandchild if there is one, or shall be equally divided among all the surviving grandchildren (Section 37). In the case of distribution of the village ancestral immovable property, the partition of the village ancestral immovable property of the head of the family shall be done according to custom governing the family concerned. With regard to the date of operation of inheritance, the right to inherit will operate only after the death of the person who owns property.
- APST woman’s personal property inheritance: Section 39 lays down rules with respect to inheritance of an APST woman’s personal property dying intestate (without a ‘will’), manner of its devolution in this order – firstly, upon the children (including the children of any pre-deceased son or daughter) and the husband; secondly, upon the heirs of the husband; thirdly, upon the mother and father; fourthly, upon the heirs of the father; and lastly, upon the heirs of the mother and so on. Any property inherited by a female APST from her father or mother shall devolve, in the absence of any children of the deceased (including the children of any pre-deceased son or daughter or others) not upon the other heirs referred above in the order specified therein, but upon the heirs of the father.
- Right of an APST woman married to non-APST: According to Section 44, an APST woman married to a non-APST man shall enjoy any immovable property inherited from the head of the family in her lifetime, subject to the basic limit that the properties so inherited would devolve, in the event of her death, upon the heirs of her ancestors from whom she inherited. An APST woman married to a non-APST man shall enjoy the right of any immovable property owned and acquired by her in her lifetime. In the event of her death, her husband and her heirs would have full rights of it for disposal and alienation to any indigenous tribal of Arunachal Pradesh (Section 45).
Interestingly, the bill also mentions about property right of a non-APST woman married to an APST man. As long as a non-APST woman remains a widow of her deceased APST husband, she shall enjoy all the rights and property of her deceased husband. However, if she remarries, then all the immovable property inherited and acquired from the deceased APST husband during the lifetime shall devolve to the lineal descendant of her deceased husband.
- Bill’s status on polygamy: According to Section 50, every person who, being at the time married, procures a marriage of himself or herself to be solemnized under this act shall be deemed to have committed an offence under Section 494 or Section 495 of the Indian Penal Code (45 of 1860), as the case may be, and the marriage so solemnized shall be void. And Section 51 also deals with offence of bigamy or polygamy or polygyny or polyandry by categorically stating that any person whose marriage is solemnized under the act after commencement of this act is void if at the date of such marriage either party has a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code, 1860 (45 of 1860) shall apply accordingly. But explanation to the section expressly states that provision does not apply to the marriages already solemnized before the commencement of this act. It is submitted that Sections 50 and 51 are essentially dealing with the same matter, therefore one section will suffice.
- Key takeaway points: The main thrust of the bill is on legal status of marriage, procedure of marriage registration, property right of wife, widow’s rights, treating polygamy as an offence. Two significant contribution of the bill is with respect to criminalization of polygamy (prospectively means second marriage held before the law comes into force will not be affected) and property right of the legally wedded wife and widow. The bill is satisfactory in these aspects. However, inheritance rights of children, assuming the term ‘children’ includes both son and daughter, or by implication that children includes both son and daughter, has not been elaborately dealt with. The bill deals with intestate succession of father’s property, ie, after the death of head of family and father dies without making a ‘will’. In such event, Section 37 provides for distribution of property where there are lineal descendants, the property of the intestate shall be equally divided among all his surviving children, but where the intestate has not left surviving him any child or children but has left grandchild or grandchildren, the property shall belong to his surviving grandchild if there is one, or shall be equally divided among all the surviving grandchildren (Section 37).
It may be noted that lineal descendants have not been defined in the definitional clause in the bill. The general meaning of this is direct offspring, children or grandchildren. Section 37 specifically states that the property of the intestate shall be equally divided among all his surviving children. This legal responsibility will transfer to the wife (widow) who takes over as the head of the family after the death of husband and this is implied from the bill. But an important question is what if the father distributes the property amongst his children while alive? What if equal share is not given to all children? What if no share is given to daughter? The bill has no express provision regarding such circumstance, assuming such things occur. Another key provision is Section 45 on the inheritance to immovable property owned and acquired by an APST woman married to a non-APST. In case the woman dies, her husband and her heirs would have full rights of it for disposal and alienation to any indigenous tribal of Arunachal Pradesh. What about the immovable property inherited by an APST woman from the head of family married to a non-APST man? Section 44 gives her limited right such as “shall enjoy any immovable property inherited from the head of the family in her lifetime,” in the event of her death, the property shall devolve upon the heirs of her ancestors from whom she inherited. The bill has also tried to give some property right to non-APST woman married to an APST man but it is subject to condition that, “as long as a non-APST woman remains a widow of her deceased APST husband, she shall enjoy all the rights and property of her deceased husband.”
As stated earlier, the bill has dealt with polygamy and right of wife in the occurrence of polygamy very succinctly and criminalizing polygamy, a longstanding demand of the womenfolk in the state, is well-fulfilled. And the bill has good provisions to protect the right of the wife as a consequence of polygamy. However, the same conclusion cannot be reached in contexts of daughter’s property right as there is no express provision specifying it, which is only to be implied from Section 37, emphasizing equal division of property amongst children. Prescribing majority age as 21 for boys and 18 for women for purpose of marriage is a good move.
It is due to the yeoman service of the Arunachal Pradesh State Commission for Women and its team that gave birth to this historical bill. The bill is progressive and gender neutral in essence. If the bill becomes law with necessary refinement, it will be a watershed moment for Arunachal Pradesh. This legal development will have far-reaching social ramifications. This bill is a reflection of what our society needs and aspires for. (The contributor is HoD, Law, Rajiv Gandhi University, Rono Hills. The contributor may be contacted at email@example.com)