PRINCIPAL JUDGE Vs. STATE

JUDGEMENT

(1.) THE Reference The Principal Judge, Family Court, Nagpur confronted with the divergent views expressed by the learned Single Judge of this court in writ petition No.431 of 2006 (Smt. Savitri w/o. Sudesh Subba and another v. The Principal Judge, Family Court, Nagpur) and (Sau. Sonali w/o. Manishkumar Chandak and another v. Nil, in writ petition No.6086 of 2007, [(2007(5) Mh.L.J. 615], in exercise of the limited jurisdiction vested in the court under section 113 of the Civil Procedure Code, referred the matter for opinion and guidance of this court vide his order dated 13th September, 2007 on the following questions:

(2.) BEFORE discussing the merits of the arguments raised by the learned counsel for the parties, reference to basic facts would be necessary. Facts giving rise to the reference

(3.) IN fact, the legal impediment faced by the court making reference emerged from the divergent views taken by the different Benches of this court as well as by other courts. In order to understand and appropriately answer the question framed by the learned reference court, it may be useful to refer to the legal history of the institution of marriage in India and particularly, between the Hindus. The origin of marriage amongst Aryans in India as amongst other ancient people is a matter for the science of anthropology. From the very commencement of the Rigvedic age, marriage was a well -established institution, and the Aryan ideal of marriage was very high. Monogamy was the approved rule, though polygamy existed to some extent. It is said that there is no real evidence of existence of polyandry and matriarchy in Vedic times. Marriage life was a strict bond and certain matrimonial offences like adultery etc. were viewed seriously and for such an offence, either of the concerned spouse could be held guilty and punished. Dissolution of marriage was normally not an accepted concept. Men were expected to honour women. She was associated in all religious offerings and rituals with her husband. As the old writers said "a woman is a half of her husband and completes him". Manu, in impressive verses, exhorted men to honour and respect women. "Women must be honoured and adorned by their fathers, brothers, husbands, and brothers -in -law who desire their own welfare. Where women are honoured, there the gods are pleased; but where they are not honoured, no sacred rite yields rewards". "The husband receives his wife from the gods, he must always support her while she is faithful". In Hindus, marriage is one of the necessary sanskaras or religious rites for all Hindus to whichever caste they belong unless the individual concerned ought to be a perpetual Bramhachari or Sanyasi. While marriage, according to Hindu Law, is a sacrament, it is also a civil contract, which takes the form of a gift in the Brahma, a sale in the Asura, and an agreement in the Gandharva. (Muttuswami Nydakuar v, Nasukanabu (1910) 33 Madras, 342.) It is also said that marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. In the earlier times, in Hindu Law, there were no less than 8 different forms of marriage and each being different from the other and at the same time, each form of marriage depicts a different stage of social progress. In consequence of the varying rates at which society had advanced in different parts of India, the forms of marriage prevailing among the Hindus and the mixed Hindu races, mostly of non -Aryan origin, were of the most varied description. Brahma was one of the most recognized form of marriages and was distinguished from the other that it was a gift of a girl pure and simple. The essential ceremonies of different marriages were more or less the same. The marriage was treated primarily as a sacrament clubbed with the binding civil contract. This court while considering the sacramental and contractual aspect of a Hindu marriage, observed in the case of Miten (supra) thus