The law of India
is a complex system of rules and regulations in modern India that have been
derived directly from the Hindu religion as well as being developed from the
English common law. The Indian constitution is the longest constitution ever
written in any country, containing more than 444 articles. The United States
common law also emerged from the English common law but through coming years
has made many adjustments (Glenn, 2010). Like English family law, India’s
family law in India is based on religious scriptures, but English law was based
on Christianity while India is based directly on Hinduism. Hindu family law is
personal law applied to certain populations in India as well as codified in
civil law procedures, while the United States family common law is also
codified through civil hearings but is more generally applied to all citizens
and visitants of the country.
In India there exists dharma, a principle which is the legally binding term for
obligations and duties to be fulfilled by Hindus according to sacred
scriptures. The Bhagavad Gita is the sacred text for the Hindu religion that
has all the dharmatic principles of life for the Hindu community as well as the
legally binding material that a committed follower must abide by (Menski,
2001). Indian law in modern day India applies to Jainists, Buddhists, and Sikhs—as
a result of their religious law not being fully developed for application. Indian
family law is not applicable to Muslim families living in India. Much of the
influence behind modern day Indian family law stems from the British, when they
arrived in the seventeenth century with the intention to integrate both Muslim
and Hindu law as territorial law. However, Hindu law was a lot more resilient
than the British expected and it soon became the law for all Hindus, with time
it became part of other religions in India as well (Glenn, 2010).
In modern India, there exist complex family
structures. The most popular is the Hindu Joint family, which involve the
unification of extended family formed by an arranged marriage. In these types
of family the leader is the Karta,
the head of the family that takes all the decisions regarding financial and
basic aspects of the family, most of the time is the eldest of the household. The
other type of family structure present in India is the nuclear family, which
typically is a married couple with one or more children (Subramian, 2008). Like
in India, in the United States nuclear families are popular, consisting of two
cohabitating or married persons who take care of their offspring, making a
family support system. In the U.S., both partners may be working and supporting
each other financially or there may be one parent staying home, while in India the
majority of the cases are where the male supports the household in nuclear
families and the wife stays home. In the U.S., cohabitation is seen as a norm,
it is very common, however in India, and cohabitation between two unmarried
persons is deemed as a deviant way of life and frowned upon by other people (Stone,
2002).
In Indian law, child marriages have been
common and legitimatized in rural areas of India, they involve an arranged
agreement between the parents of the children in order to benefit each other
financially. However, these children will not officially live a married life
until they reach their adolescence. They were legalized as part of the Hindu
legal tradition, but have been decreased in many parts of India. It’s a
traditional law, different from modern state laws and there is conflict because
of the morality of it. However they have been legitimatized through the state’s
recognition in the Hindu family laws (Francavilla, 2011). Child marriages in
the United States are illegal and practically non-existent.
In the United States family law, there is
what is termed as sui juris marriage or simply common-law marriage,
where there is a unification of two people that is legally recognized as a
marriage even though there has not been a contract entered into a marriage
registry. In India, there are similar wedding traditions, however weddings are
celebrated grandiosely and may last many days. Wedding ceremonies may involve saptapadi, where there are seven steps
by the bride and groom taken to join together before the sacred fire, wedding
is completed by the end of the 7th step. In the U.S., common law
marriages may not have a ceremony at all, making the marriage legitimate by
cohabitation and interaction (Menski, 2001). In India, same-sex marriage is not
common at all, many Hindu followers have strong oppositions against it while
some support it, there is no religious Hindu text condemning homosexuality
directly, it is still an ambiguous subject in Indian law, not yet codified. In 2009,
the Delhi High Court legitimized homosexual interactions between adults,
throughout India. India has allowed there to be interaction between the same
sexes but not marriage, but it is still very uncommon, and yet unsurprisingly,
these practices are more acceptable for men than for women. In the United
States, same-sex marriage has not been recognized at the federal level,
however, it has been recognized by a couple of states, Massachusetts being the
first to legalize gay/lesbian marriage
(Redding, 2010).
The dowry is a form of property or monetary
value that is brought by a bride to her husband on their marriage day. The
position of the dowry has caused many problems in modern India, causing the
number of murders due to dowry incidences have multiplied in India in the past
years. Married women are subject to being burned to death, murdered by husbands
or in-laws who feel their demands for their dowry have not been fulfilled (Stone,
2002). These crimes are reflective of the women’s lack of economic power in
modern India but at the same time are contrasted with the diminishing power of
Indian women traditionally exercised through their use of fertility of their
child bearing powers. Also, Indian feminist have criticized the uniform civil
code for India, which would allow the governmental sovereignty over all
marriages, divorces, and other family matters. Communalism is the term used to
women’s equality concerns and religious advocacy which keep challenging India’s
personal law system (Redding, 2008). The United States seems to pride itself in
being more liberal and having marriages appear to be made from simple “love”
rather than for monetary interest.
Abortion is a
subject that is of really high debate in the United States, it is also the
conflict in many outside countries, like India.
According to the Baghavad Gita, the most sacred Hindu religious text,
voluntary abortion is seen as a violation of natural law and it is believed
that bad karma may be imposed on the individual later in life. Under the Hindu belief system, all
life is sacred because all creatures are manifestations of the Supreme Being-
atman and Paramatman. There is a belief
in the cycle of birth and rebirth in Hinduism as well as a belief in internal
law of Karma. They believe the soul enters the womb at the time of conception
and this makes fetus a living, individual person. Abortion is seen as
interfering with natures arrangements. Abortion may be the subject of
discussion and perhaps appeal when the life of the mother is threatened by the
baby inside her (Prabhupada,
1972). In the United
States, abortion has not been federally recognized or legalized, however some
clinics in certain states provide this practice without judicial penalty to the
patient (Radas, 2009).
In modern day India, divorce has also been
constantly going through many legislative changes. The most impacting
legislative change occurred in the 1970s, when Hindu law was transcended, and
given the right for Christians, Parsis, and Hindus the right to divorce for
more fault-based reasons, making it easier to obtain a divorce than in previous
years. However, divorce rates remain stable, perhaps due to the strict religious
guidelines in Hinduism, where divorce may be imposed as the fault of the woman
for failing to please her husband (Redding, 2008). In the United States,
divorce is seen as practically the norm. Dissolving a common law marriage
however still must be legally processed through the pertinent court and then
decided by the jurisdictive officials. It
is legal everywhere in the United States and does require some paperwork to be
filed, but is not as a complicated or tedious procedure as it is in India. In
India, there is also a continuing frowned upon gesture for divorced women and
men in India. When filing for divorce there is a purposeful delay period to
review the documents as to have time for the couples contemplate getting back
together (Subramian, 2008).
In India, there exists
a lot of coexistence between religions, just like in the Unites States. In
Sha’ria law, there is a practice of polygamy that is acceptable within the
Islamic religion, however in India, polygamy has been frowned upon. Despite the
inconveniences, the supreme court of India has refused to strike down the
Muslim practice of polygamy, but has prohibited the right to polygamy for Hindu
men who have converted to Islam. Most Muslim practices in India are strictly
designed to be accessed only by Muslim practitioners, like they are trying to
make polygamy exclusive to their own community. Most Hindu law in itself
applies directly to the people born under Hinduism and those who have converted
but still reside in India (Wardle, 2006). In contrast to the United States,
polygamy is not legally recognized. However, there have been cases were people
of certain religions will cohabitate with more than one partner and it is not
seen as illegal in the United States.
In the United
States, common-law marriage is not as common as it was decades ago, but it is
still legitimate in many states. There is a total of ten states and the
District of Columbia who still allow this practice, however it can no longer be
contracted in twenty-seven other states, and the other thirteen never allowed
it either way. In the United States Supreme Court ruling of Meister v. Moore, the principle of
common-law marriage was validated in Michigan, by ruling that this state had
not yet abolished common law marriage and allowed the state to set establishing
laws for the solemnization of marriage (Raday, 2009). The requirement for
common-law marriage in the United States is different across states, some
states require the couple to have been cohabitating for a couple of years,
while other states need couples to have been cohabitating and set themselves
out to the world as a married couple by having accounts or other joint
documentations together. Mutual consent is always required in all common law
marriages in the United States, differing from India, where mutual consent is
not the case, since most marriages are arranged by the family elders. In Indian
family law, common law marriage is the norm and marriage contracts are optional
and most couples decide to not have any documentation and just follow the seven
steps of the saptapadi if they follow
Hinduism.
Family law in
the United States if the single largest area of law practice in the country, having
thirty-three percent of all civil cased being domestic relation cases.
Unfortunately, Indian law will not be allowing any type of monetary right for
the entitlement to a married status, meaning that if a couple is divorced there
is no spousal or child support as there is here in the United States (Menski,
2001). An important distinction between the United States’ common law and
Indian family law is the procedures that occur when a woman is left a widower
by her husband. In the United States a woman who has had her husband deceased
may be subject to compensation if the couple had any documentation together
and/or if she was in his testament. To contrast, in India, when a woman is left
a widower and has nothing to fend for herself, she may end up homeless and
begging on the streets as is the case most of the times due to extreme poverty.
The family of the deceased husband may choose whether to help the widower or
not, sadly, many women are left without a penny and asked to abandon their
in-laws house if they live there. The in-laws of the widower may choose to
divest her of any financial compensation or choose to help her out for a short
time (Stone, 2002). Fortunately, remarrying is available, but since there is a
low divorce in India, it may be hard to remarry again.
Indian law is
not only applicable to all Hindus but to other cultures and ethnicities that
live in India as well, it may no longer be referred to Hindu law in the future, but the standard has not yet been set.
Common-law marriage in the United States and in India is very tentatively
similar despite the celebrations held, if any, because of the unification of
two persons without the need to document anything into a registry. Anti-abortionists
in India and in the United States may have similar arguments, stating that at
the start of conception there is already a person, while dismissing the term fetus from use. Divorce showed to be the
most differencing in India and in the United States, mainly due to the rates of
it, divorce may be seen as the new norm in the United States and easier to
obtain than in India. In India, there is still debate of divorce, many believe
marriage is sacred and very much flexible but to dissolve it, it would take a
very drastic reason for it. Many topics in family law across India and in the
U.S. seem to be very similar, like abortion and same-sex marriage debates. India
is a highly educated country that keeps modernizing with the coming time, with
time the hope is that India will progressively change laws to become more
adaptable to the fair treatment of everyone living in India; for women, children,
and even Muslims who are the minority in India.
