@ Hardeep,
Now you are self confusing yourself. I stand by my earlier point of view and Law is there to prove myself.
Illustrations (not exhaustive but will suffice for student like you);
Under S. 14 HMA, a couple cannot get a divorce within one year of the marriage, even if one of the parties is found to be insane or a warranted criminal. Even in case of divorce by mutual consent, S. 13 B HMA allows a lock-in period of one year before the grant of a divorce.
S. 14 of the Hindu Marriage Act provides:
” No petition for divorce to be presented within one year of marriage -
(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce [unless at the date of the presentation of the petition one year has elapsed]
Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the [expiration of one year] from the date of the marriage, the court shall have regard to the interest of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the [said one year].
S. 377 IPC says whoever voluntarily has carnal intercourse “against the order of nature” can be imprisoned for life and fined. Which means homos*xuals and lesbians are outlawed. And oral s*x is illegal. All this, by laying down a behaviour code, violates the privacy of citizens.
S. 377 of the Indian Penal Code provides (already corrected by Hon'ble D HC now):
”Unnatural offences –
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life] or with imprisonment of either descripttion for a term which may extend to ten years, and shall also be liable to fine.”
Under S. 437 IPC, a guilty woman can be released on a bail merely because she is a woman.
S. 437 of the Indian Penal Code provides:-
When bail may be taken in case of non-bailable offence.-
When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or demand without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but- such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions on a non-bailable and cognizable offence.
Provided that the Court may direct that a person referred to in clause(I) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm.
Now see specifics such as a Marriage Case law ref. Binda Vs. Kaunsilia (1890) I.L.R. 13 All. – the right of conjugal cohabitation
Herein the then Jstc. Syed Mahmood delivered the following judgment:
It was the duty of a wife to live with her husband in conjugal cohabitation and it was the duty of the husband to maintain and support her and protect her. These rights are not based on moral precepts but on texts which impose upon the husband the duty of maintaining his wife and dismiss other obligations. Enforcement of conjugal right by Judicial authority did not fall beyond the scope of the king's functions, and therefore not beyond the jurisdiction of the Civil courts. The jural relation created by marriage involves the continuing obligation of conjugal cohabitation upon the husband and wife. An unlawful infringement of the obligation amounted to a continuing wrong in breach of the obligation.
Can you use this case law as precedence in today’s time under HMA?? I will laugh if not the opponent ld. brother.
Now see a Inheritance Case law ref. Tarachand Vs. Reeb Ram 3 M.H.C.R. 50
Herein the then Madras High Court discussed the origin and binding force of customary law as Manu declared law established by custom of more weight in the Hindu Law than in other systems. Extends law to particular families. King upheld the rules of families so far as they are not repugnant to the law of God. Particular customs not repugnant to the law should be upheld
The then Justc. Thibaut laid down the principles of jurists as to customary law. Acts of individuals are not the foundation of the law but the signs of the existence of a common idea of law. Acts of parties capable of making law. Proof of conduct can amount to a mutual agreement to adopt particular customs. No evidence of the acts or opinions in this case could establish what would not be law, but the Privy Council observed, incidentally that, there does not exist in any persons the power of making laws of inheritance for themselves. In this case whereby the persons involved were subject to the Hindu law of inheritance, it is not open to them to reject any aspect of it, and thus it was ruled that the Hindu law of partition did apply to this family.
Can you use this case law as precedence in today’s time under HSA??
See another redundant precedence case law ref. Ramnath Tolapottro v. Durga Sundari Devi from the then Bengal presidency prior to 1947 where it was held; chastity was a condition precedent to the taking not only of her husband's property but it was a condition precedent to the taking of the heritage by all female heirs. It was also held that the unchastity of the mother before the death of a her son precluded the mother from taking the inheritance. case decided three special rules relative to the succession of the widow deduced from the Dayabhaga:
- an unchaste widow does not inherit her husband's property
- when the widow inherits, she can enjoy the estate only with moderation
- she cannot exercise the ordinary rights of alienation of that of a male owner after her death, her heirs do not succeed the property the heirs of the last owner do
Can you use this case law as precedence in today’s time in a HSA case?? Chastity today is seen sea change my dear queriest. She will laugh at you if you use this as precedence against her.
Now see a redundant Adoption Case law ref. Collector of Madura v. Muthu Ramalinga Sethupathy (1838) 12 M.I.A. 397
Where there Lordship in Privy Council held that where the husband's family is undivided, the father of the widow's deceased husband (if living), or at least the surviving brothers, would be the persons whose consent was necessary. But, where the deceased husband was separate in estate, the consent of every kinsman was not essential. There should be evidence of the assent of kinsman as the act is done in the proper performance of a religious duty. The reason for the assent of kinsman is the incapacity of women for independence.
Can you use this case law as precedence in today’s time, the feminist lobby will shut you down if you say a women of today is having no capacity for independence life !
Now do you get what redundancy meant when I used redundant to laws touching society as pointed above are concerned?. All above illustration greatly touches society at large and are not confined only to HMA which is just a drop in today's changed social scenarios?
Now pick up pre-1955 cases of say S. 14 HMA as it was known then as Anglo Hindu Law (1772–1864) and that periods Case Law would say opposite of today (1955) because second phase of development in codified Hindu law came up in 1864–1947 one in which the Court Pandits were dismissed and then came the legislative enactment phase post 1947 till 1961 mostly influenced by case laws which were administered by Britisher’s and first generation Barristers before leaving their then 3 presidencies (Bombay, Madras and Calcutta) when Indian High Courts Act 1961 came about and all 3 presidencies then had that time their own Supreme Courts unlike post 1961 when we since then have 1 Hon'ble SC, having said so can you apply in today's changed times such redundant case laws! That shows such case laws has no precedence value and for the same how can our 1 Hon'ble SC come up with huge list of all such redundant case Laws of whose mini glimpse I gave above which is just a futile moot academic point written in floral time wasting way before me by you and then you want more ld. advocates to pour their time and energy describing just 1 Case Law which says pre-1955 HMA case laws are redundant!!!!
I mean asking us such academic question should pass through an epic art test here and not disentomb for god's sake and good lord that experts in Experts section (forum) here in LCI plainly reject such academic question, I think I should also give such passovers occasionally;-).
Now, how can you say my earlier reply was just a commentators personal opinion; did I not show you few redundant case laws herein?
Rekindling already replied topic was not my intent but I felt I should correct books of teaching for you students – trainers here with briefest brief before I take my micro-quarter of a pause with above small explanatory paragraphs before Myne’s* start twisting and turning in his grave.………….
* Mayne, John Dawson. A Treatise on Hindu Law and Usage – read it thoroughly Sir
HSA = Hindu Succession Act
[RIP]
