Sunday, August 5, 2012

Legal Validity of Gram Panchayat Divorce&other issues

Legal Validity of Gram Panchayat  Divorce &other issues

We are familiar with terms tyag-patra,farkat-nama,Talaknama and Viddakullu patrammu [Telugu term],whether customary divorce through gram panchayat or community  elders or [kulla] caste panchayat are legally recognized?

What is  Concept of Panchayat Raj?

According to Prof.Harold Laski "Local self government helps to cultivate civic sense and responsiblity among citizens and coordinates harmonious collaborations in common interest" 

J.G Clarks "Local Government is that part of the government of a nation or state deals with mainly with such matters as concern the inhabitants of the particular districts or palce together with those which parliament has deemed it desirable should be administered by local authorities subordinate to the central government"

J.S Mill  one of the vocal supporter of democracy based on individual liberty said "It is obvious to begin with that all business purely ,all which concerns a single locality ,should develop upon the local authorities. it is true that structural aspect of the local government differ in different political system ,such differences area matter of nominal interest and weight ,since they do not have any predominant impact on the object of local government "

De Tocqueville said " the local assemblies of citizen constitute the strength of free meetings are at liberty what primarily schools are to science ,they teach  men how to use and how to enjoy it.A nation may establish system of full government ,but without the spirit of municipal institution it can not have the spirit of liberty."

Panchayat Raj in Ancient India : 

Kautilya's Arthashastra ,references were made on the village administration ,there will be one gramin in charge of a village .he takes overall  responsible maintenance of law and order in that village,all persons residing in that village should cooperate with him.

Pt. Jawarlal Nehru  makes reference about "Nitisara of Adi Shankaracharya ",which elaborately dealt on position of villages and village councils.  

Importance of Panchayat Raj :

Panchayat Raj is an important institution in Indian  democratic set up ,it is one of the pillar in three tier structure of the provincial [state]government.

One of the main dream of Mahatma Gandhi was 'Gram swarajya ',the self -sufficient village rule or local self government.

There is legislation pending[Gram Nylaya bill] before parliament,for setting up panchayat level or taluk level courts for effective resolution of disputes,which are basically petty in nature,litigants need not approach traditional court for relief ,as courts are already overburdened with heavy work load.

Apart normal functions,we often hear that panchayats and community elders are already resolving various issues pertaining to marital discords,partition of ancestral  property and other social issues like banning cell or love marriages ,which is often criticized by  civil society that it is against law and constitution. 

One of the most confusing aspect of customary divorce or dikats of panchayat or caste elders or Khap Panchayat is its legal validity.

Frequently Asked questions [FAQ]
  • Whether divorce granted in the presence of  Panchas under the Gram Panchayat  or Kula pedallu /caste elders or community divorce is legally valid or not?

  • Whether Panchayat can declare love marriage[Inter -caste or Inter -religious ]has null& Void.

  • Whether Panchayat can declare Sagotra marriages[same gotra ] null &void.

Panchayat Divorce :No custom exists &Court has jurisdiction :

It is valid only ,if it is proved that there is custom in the that particular caste/community,where customary divorce is duly recognised for the dissolution of subsisting marriage,such custom should exists time immemorial or long period of time,burden of proof regarding existence of custom rest upon a person who pleads existence of such custom

Section 29(2) Hindu Marriage  Act: "Nothing contained in this act shall be deemed to effect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a hindu marriage ,wether solemnized before or after the commencement of this act" 

Secular Hindu Law recognises customary divorce but section 14,15,23,24,25&26  does not apply to customary divorces.

In Pakhali Jina Magan case, it was "a custom of Pakhali caste of Ahmedabad ,which recognizes mutual consent divorce was not repugnant to Hindu Law"

There are several tribes [santals& other tribes] or caste,which recognizes customary divorce.There are plethora of cases ,which says if existence of custom is conclusively  proved,customary divorce is recognised for such tribe or caste.
Among several caste and tribes ,husband has power to divorce his wife on several grounds like immorality,-chastity[prostitution],adultery  and conversion to another religion.
If there is no provision of customary divorce in the caste/community,then only competent district court or family court is authorised to grant degree of divorce for the permanent dissolution of the marriage under relevant provisions of Hindu Marriage Act,duly following procedure established by law.  

Whether Panchayat can declare love marriage[Inter -caste or Inter -religious ]has null& Void 

Panchayat  or community elders can not declare any legal marriage[inter caste or religious] has null and void.It is against law and Constitution.The supreme court of India has taken serious view of such panchayat orders ,also stated  that  criminal cases should be booked on khap panchayat members for inciting innocent people to kill lovers. 

Whether Panchayat can declare Sagotra marriages[same gotra ] null &void.

The division bench[lead by Gajendragadkar.J ] upheld constitutional validity of sagotra marriages among Hindu.The secular Hindu Law recognizes sagotra marriages.

The opposing the sagotra marriages amounts to violation of the law and Constitution,The Apex court said those who are opposing sagotra marriages and inciting violence against couples should be booked under law.

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