Divorce- Conflicts under Hindu law for succession

The nature of Indian law has a combination of religion, custom, arranging multiple community interests in the same subject of law. It smartly adjusted the Manu law concepts with the modern phenomenon of liberty, socialism, development, morality, social justice and legitimacy. But this matrix has a contradictory and complex nature. My paper is on a particular stream of this contradiction - Hindu personal laws and conflicts in the legitimacy of this law with the constitution and ground reality. I start it by defining to Indian law as Indian constitution with brief historical factors because here I must remind that Indian legal system has major signs of British colonial period religious or cultural text interpretations, Acts, bills, institutional structure, administration etc. In the second section, I bring the societal perspective of law. Because "Society" is the basic unit of a nation.I use the word society rather than community, the reason behind this is –I am focusing on the Hindu Customary Law and in the Hindu Ancient text the word “Samaaj (society)" is the centre of law. Community reflects the relationship in humans with any similar "identity" which is historical, linguistic, cultural or any other commonality. But society reflects the relationship in humans with a feeling of “sah-astitva, sah-kalyaan". State establishment is an output of social contract of this society and nation is an improved stage of this, and its objective now is the same "welfare of citizens". That's How We have to remind it how important the role Society plays in the legitimacy of laws and my research papers try to study it. My third part will start with the introduction of Hindu customary law, and after this, I come to the legitimacy importance of state government and laws. The fourth section of my research paper, I try to show conflicts in Hindu family law. In my conclusion, I briefly try to show the reasons for conflicts, how they decrease the legitimacy of Hindu customary laws and government democratic representative nature.

Unconstitutional Extra Judicial Courts

A blow to codified laws community practices in states and certain religious denominations in India has led to the creation of community or religious courts which do not have the legitimate backing of the system of law and have no sanctity in the legal system. It is in the matter of inter-caste or inter-religious marriages or divorces that such self-styled extra-constitutional authorities take upon themselves the power of courts to issue community mandates to the people within the community. Such religious edicts result from summary hearings often in violation of fundamental rights guaranteed by the Constitution of India. 

The caste panchayats (khap) of Haryana and U.P which have a powerful influence in its socially and culturally backward villages. The court has taken many positive steps, but there cannot be a constructive outcome because society accepted their decision itself. The duty of the State to enforce the law of the land is the need of the hour. The courts unhesitatingly should strike down all the mandates of any such extra-judicial bodies which have no legal sanctity in a civilized society.Strengthening hybrid justice system Government policy of decentralization and power distribution to lower administration body or judiciary body is definitely a good policy but make a hybrid with “ society mukhiyas” with the policy of "gram Nyaya panchayat" are a majorly negative judicial step in the legal system. Already this Mukhiya or khap panchayat empowering their caste hierarchy, patriarchy along with the help of this, some particular caste takes a strong back in leading national and state political parties. These are a” political chakravyuh", and they are continuously increasing. The society continuously divided into two classes centralized and marginalized, social injustice increased by political -culture, procedure, competition and parties. The hybrid justice system works here as a ‘sanjeevani” and makes reason to bring legal conflicts with the constitution.  Government biased the Indian Political system due to representative democracy becoming a battleground of political parties. In huge numbers, the new State and national political parties are emerging, the “caste and religious, political culture upsurge” is raising this nature of politics. This forms a compulsion to biased-ness in policies, for example- because of the notion of patriarchy the Women bill still stuck in parliament for ten years.

Due to Globalization, new capitalism, market economy, and the government nature of State is changing. We can see the direct impact of market and ruling capitalist-companies on policy making. Even the election subsidies data shows the donations of big companies to the main political parties. This relation or strategy is a mirror to the elite ruling nation with coadvantage. All these are a sign of a State decreasing legitimacy and laws legitimacy. The State forgets to the reason of their basic establishment contexts in a liberal market economy state.Uniform civil code right from the Constituent Assembly debate on the present Article 44 of the Constitution directing the State to endeavour to secure a uniform civil code (UCC) for all citizens to the Supreme Court Judgment on the Sarla Mudgal case and all that has occurred since it becomes obvious that the major source of confusion is the obsessive and maniacal insistence on uniformity especially by communal groups as against the demand for equal rights and justice for the women.

Judicial Activism

Judicial Activism in Family Laws is a Turning Point too. A series of orders passed by the Supreme Court of India in the area of family law in the recent has gone to show that the Supreme Court is motivating a lot of positive and well-meaning reforms which have become necessary over some period. Three recent decisions of the Supreme Court can be cited in support of this proposition. In the case of in Re: Enforcement and Implementation of Dowry Prohibition Act, 1961, reported as Judgments Today 2005 (5) SC 71, the Supreme Court directed the Indian Central and State Governments to implement all the interim directions issued earlier by the Supreme Court of India and take effective steps for framing rules.