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Nullity of Marriage in Modern Hindu Law"

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Nullity of Marriage in Modern Hindu Law "NULLITY OF MARRIAGE IN MODERN HINDU LAW" ^7 Sushil Kumar Tewari A thesis submitted for the Degree of Doctor of Philosophy in the University of London, Faculty of La^, October, 19&5* School of Oriental & African Studies. ProQuest Number: 11015651 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11015651 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 2 ABSTRACT The first Chapter investigates the question: whether nullity existed in the dharmasastra♦ Chapter Two is concerned with bigamy as ground for nullity. The essential requirements to obtain relief where either party has a spouse living at the time of the marriage have been discussed. * In Chapter Three degrees of prohibited relationship, degrees of Sapip.<jLa relationship, and essential requirements of a custom permitting such a marriage have been dealt with. Chapter Pour defines impotence, considers instances amounting and not amounting to impotence. The media and standard of proof of impotence; factors limiting the Court1s jurisdiction has also been considered. Chapter Five considers mental incapacity sufficient to annul a marriage and the test to be applied in such a case. Chapter Six defines force, that will suffice to entitle the petitioner to petition for a decree of nullity. Similarly, it defines the fraud and investigates the sort of concealment or misrepresentation that will suffice to entitle deceived party to petition for a decree of nullity. Chapter Seven deals with concealed pregnancy as a ground for nullity* An attempt has heen made to define such terms as "ignorant", "discovered" and "intercourse with the consent of the petitioner". Similarly the nature and standard of proof has also heen considered. Chapter Eight deals with venereal disease as a ground for nullity under the Kenya Ordinance and considers to what extent this ground may he adopted under the HKA or Uganda Ordinance. 4 CONTENTS Page ABSTRACT....................................... 2 ABBREVIATIONS.................................. 16 LIST OB CASES.................................. 20 PREFACE..........., .,.......................... 48 CHAPTER I : CONCEPT OB NULLITY............... 52 (A) "Nullity" and Allied Reliefs according to the Lharmasastra ........... ...... 52 I Introduction..................... 52 II "Nullity"and Vedic Aryans 53 III "Nullity" in Sutra Literature..,.. 54 IV "Nullity" in the Arthasastra 57 V "Nullity" in the Smiritis . 59 (1) "Nullity" from "betrothal to consummation................ 61 (A) "Nullity" of betrothal. 61 (i) The effect of re­ traction of a promise. 62 (a) By the father.. 62 (b) By the suitor.. 63 (ii) The effect; of a girl being promised to several suitors.... 63 (iii) The suitor goes abroad... 63 (iv) The effect of suitor!s death..... 66 (B) Nullity of unconsummated marriage ..... 67 5 ^ g e (2) "Nullity" arising from infrac­ tion of a secular and spiritual grounds for prohibition...... 69 (3) Traces of "Nullity" arising from dissatisfaction between the spouses................ 70 (i) Supersession. .... 71 (ii) "Abandon" • • • 73 (iii) "Give Up"............. 75 (iv) Deserting* ........ 76 (v) "Expelling" and "Banishing from the town"......... 76 (4) Provisional conclusion...... 77 VI "Nullity" in Buddhist Texts....... 76 VII "Nullity" in Jaina Law .... 79 VIII "Nullity" in the Brahminical Legal Commentaries .............. 81 (1) Concept of Nullity........ 81 (2) Test of Nullity...... 81 (3) Nullity of betrothal.. 82 (4) Distinction between nullity of consummated and unconsummated marriage....... 82 (5) Traces of "nullity" arising from dissatisfaction between spouses. 83 (i) "Give Up"............. 84 (ii) "Abandoned"..... 85 (6) Effect of non-disclosure of defects..................... 86 (7) Faults of a Kanya for which nullity is possible ...... 87 6 Page (8) Meaning of anusaya......... .. 88 (9) Meaning of "abandon".. 89 IX Conclusion.... 0................... 92 (B) Legislative history of nullity of marriage in Hindu law*................... ..... 97 (1) "Nullity” c^l marriage before 1955• 97 (2) Nullity of marriage under HMA, 1955• 101 CHAPTER II: BIGAMY......... ................ 105 I Introduction.... .............. 105 II Essential Requirements ..... 107 (1) There must be a spouse living... 107 (i) Marriage in contravention of S«15 HMA.................... 108 (ii) When the marriage may not be void.............. 113 (iii) "Presumption of death" 114- (2) ... form of marriagerecognised by Hindu Law. ....... 117 III Approbation of a bigamous marriage... 122 IV Bigamy in Kenya and Uganda.......... 126 CHAPTER III : DEGREES OP PROHIBITED RELATIONSHIP AND §APINDASHIP................... 127 I Introduction. ..................... 127 II Degrees of prohibited relationship... 130 7 Page (1) Meaning....................... • 130 (i) Lineal ascendant....... 131 (ii) If one was the wife or husband of a lineal ascen­ dant or descendant of the other* ................ 132 (iii) If one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grand­ mother's brother of the other.......... 133 (iv) If the two are brother and sister, uncle and niece, aunt and nephew or children of brother and sister or of two brothers and two sisters. 134- III Sapinda ............ 134- (1) Meaning of Sapinda and how it can be determined....... 134- (a) Meaning of Sapinda......... 134- (b) Determination of "sapinda" according to Mitakshara*... 137 (c) Determination cf "sapinda11 according to Dayabhaga..... 14-0 (2) Sapinda relationship under HMA.. y (i) Lineal ascendant within the limits of sapindaship...*.. (ii) Persons having common lineal ascendant within the sapinda relationship............. 14-5 IV Custom. ...... 14-6 (1) ..."for a long time" ... "obtained force of law" ............. 14-8 (a) "for a long time"........... 14-8 (b) "obtained theforce of law". 151 8 Page (2) must be "certain"* not "unreason­ able" , "not opposed to public policy"...... 154* (a) must be "certain1.1......... 15^ (b) "not unreasonable" 155 (c) "opposed to public policy".. 155 (i) immoral custom 156 (ii) Custom opposed to a statute. 157 (iii)Abhorant to decency or morality............ 158 (5) "Discontinued"................. 160 (4) Proof of Custom...... 160 V Degrees of prohibited relationship and Sapindaship in Kenya and Uganda.. 161 CHAPTER IV : IMPOTENCE......................... 165 I Introduction......... 163 II Meaning of "impotence".............. 165 (1) Meaning of intercourse.,*...... 171 (2) Use of contraceptives. .... 172 (3) Coitus interruptus ......... 175 (4) Conception or birth of a child*. 179 (a) Pecundatio ab extra....... 179 (b) Artificial insemination.... 180 III What constitutes impotence.......... 181 (1) Structural malformation........ 182 Curability..................... 183 U 9 Page (2) Venereal disease.............. 187 (3) Sterility ,....... ....... 190 (4-) Nervous and/or psychic disorder. 194- (a) Universal....... 195 (b) Impotence quoad hanc or hunc, 198 (i) The origin of the doctrine 197 (ii) Illustration of impotence quoad hanc or hunc in Indian Cases ..... 201 (5) Failure to consummate the marriage. 204- (6) Refusal to undergo medical examina­ tion and/or treatment... 207 IV Proof of i m p o t e n c e 208 (1) Media of proof................ 209 (i) Medical examination........ 209 (ii) Examination of the parties as witnesses................. 209 (a) Effect of admissions.... 210 (b) Corroboration 210 (2) Standard of proof.............. 212 V Factors limiting jurisdiction....... 213 (1) Sincerity or approbation........ 213 (a) Sincerity. ....... • 213 (b) Approbation. ........... 215 (c) Test...................... 216 (i) By conduct............ 216 (a) R V. R (unreported case). 216 s 10 Page (b) Acceptance of material benefits.. 217 (ii) By overt acts......... ., 218 (a) Artificial insemina­ tion ........ ...... 219 (b) Adoption of children* 221 (2) Delay................. 224 (3) Collusion......... 225 (4) Taking advantage of his or her condition* * 226 VI Impotence in Kenya and Uganda* . 228 CHAPTER V : MENTAL INCAPACITY..... 230 I Introduction. ........... *....... 230 II Meaning of "idiot", "lunatic", "of unsound Mind" etc . *........... 233 (1) "Idiot".................. 233 (2) "Lunatic" ............ 236 (3) "Of unsound mind or subject to re­ current fits of insanity or epilepsy" 239 III Test of mental incapacity..... .. 241 (1) Weakness of intellect..... 241 (a) Where mental capacity found... 242 (b) Where want of mental capacity found............... ....... (2) Capacity to enter into a financial agreement..................... 247 (3) Test of mental incapacity..... .. 250 11 Page IV Presumption of sanity and burden of proof. 253 (a) Adjudication......... .......... * 254 (b) Can a guardian form an intention to marry. ........ 255 V Mental Incapacity in Kenya and Uganda.. 256 CHAPTER VI : EORCE AND FRAUD................ 257 I Introduction.................... 257 (1) Necessity of Consent........ 25B (a) Mistake as the identity of the person............... ....... 260 (b) Mistake as to the nature and purpose
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