(..2 A..)
CUSTOMARY PRACTICES AND STATE REGULATION[1]
INTRODUCTION:-
Custom plays a very significant role in all societies. English law is also primarily based on custom. Customs may differ from time to time and from place to place. It moulds the behaviour of individuals. Customs are nothing but articulated[2] practices[3] for ages[4]. Many spheres of an individual’s[5] Life is controlled by customs, such as the way of speaking, marriage, and from birth to death. No doubt, custom plays a vital role in moulding the behaviour of individuals and society, but custom is not necessarily good. Many inhuman, barbaric and brutal[6] customs have existed and are prevalent for ages in different societies and countries. Many customs like the sacrifice of human beings to deity, devdasi, sati, dowry, child marriage, concubinage, untouchability[7], and neglect of education to masses[8] etc., were in existence until recently. The customs like dowry and child marriage[9] are still in existence despite several legislations to curb[10] the evil[11]. Indian society for ages has been affected adversely by these customs. Instead these are some reasons why India is lagging behind other countries in all spheres[12]. India has an ancient culture with Greece and Rome, but the customary practices stated above hindered the growth[13] of India in the true sense[14].
The legislation has undoubtedly tried well to curb these evils, but these provisions are very scanty and need more cooperation from society for their success. In this topic, we will discuss some of the customary practices that existed in India, and some are still practised with prestige.
[A] CONCUBINAGE[15]
SHORT NOTES
- Concubinage
SYNOPSIS
I] Meaning
II] Definition
III] Status under Hindu Law
I] MEANING:-
The word concubinage connotes a state of living together as man and wife without their being married. The word concubine is derived from two words, ‘Com’ meaning ‘with’ and ‘Cubere’ meaning to ‘live’. It connotes a single woman consenting to unlawfully cohabit[16] with a man generally, as the marriage relation existed between them without any limit as to the duration of such illicit intercourse[17], and actually commencing cohabiting[18] with him in pursuance of that understanding and becoming his concubine or as it is usually expressed in modern terms as his ‘kept mistress’[19].
II] DEFINITION
- i) According to the New English Dictionary, “a woman who cohabits with a man without being his wife; a kept mistress”.
- ii) In Ballantine’s Law Dictionary, “concubinage is regular illicit intercourse with a man to whom she is not a wife”.
A concubine is a wife without a title. Concubinage is the act or practice of cohabitation in sexual intercourse without the authority of law or legal marriage. Such relations need not exist for any considerable period to constitute concubinage.
The distinction between ‘wife’, ‘concubine’ and ‘harlot’[20] is that the concubine is below a ‘wife’, and in that status, the ‘concubine’ lacks the permanent guarantee of married life. The Harlot solicits immorality, whereas the concubine is reserved by one man.
The difference between the ‘Elopement’[21] and Concubinage’. Elopement is the running away of a woman from her husband or home with a paramour[22] or lover. A woman making elopement is not his concubine, as her connection with him is adulterous[23].
III] STATUS UNDER HINDU LAW
Concubine has a recognised status under Hindu Law and entitles her to certain maintenance[24] rights provided she fulfils certain conditions.
- i) She must be exclusively and continuously be of her paramour. And,
- ii) the connection should not be adulterous, and
iii) she should maintain sexual fidelity towards her paramour.
Such a woman is called ‘avaruddhastri’. Her right to maintenance from her paramour’s estate after his death is recognised by two texts, Kartayayana and Narada. There is a considerable amount of case law on this point.
In other words, the obligation of a Hindu to maintain a concubine rests on the consideration that she lives practically as a dependant member of the family accompanying all the limitations of the married life “openly and avowedly’[25] and not because she gives birth to children.
In Ningareddy V/s Lakshmawa[26]
Facts:– One Govindareddi took one Lakshmawa to his house during the absence of his wife, Venkawa, who went to reside with her parents because of her illness, and Lakshmawa lived with him as his mistress. Sometime later, Venkawa, having regained her health, re-joined her husband. All the same, Govindareddi continued to visit his mistress, Lakshmawa, till his death in 1897.
Bombay High Court recognised her claim of maintenance out of Govindareddi’s estate and further observed that concubines are entitled to maintenance.
The protection of the concubine is also necessary for another connotation, i.e. the Hindu person cannot by law marry another woman a second time when his previous wife is living (offence of adultery). Hence, he performs another marriage and does not allow her name to come on record. In such circumstances, she is treated as a concubine rather than a wife. However, she lives an honest life with him. Hence, she needs the protection of the law, at least for maintenance. However, she cannot claim maintenance under S. 125 or the Cr. P.C. is a coercive provision for maintenance to the wife only and not to a concubine.
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[1] प्रथा व त्यावरील सरकारी नियंत्रण [प्रथागत व्यवहार और राज्य विनियमन]
[2] स्पस्ट [जोड़ा हुआ]
[3] प्रथा [आचरण]
[4] अनादी काल [जमाने से]
[5] व्यक्तीगत जीवनाची अंगे [व्यक्ति का]
[6] अमानवी, रानटी, क्रूर [बर्बर और क्रूर]
[7] रखेल, अस्पृष्यता [अस्पृश्यता]
[8] समाज [जनता]
[9] बालविवाह
[10] आळा [नियंत्रण]
[11] अनिश्ट गोश्ट [बुराई]
[12] सर्व क्षेत्रात [क्षेत्रों]
[13] वाढ खुंटवली [विकास में बाधा]
[14] खÚया अर्थाने [सच्ची भावना]
[15] रखेल/ठेवलेली बाई [रखेल-प्रथा]
[16] सहवास [साथ रहना]
[17] गैर शरिरसंबंध [अवैध संभोग]
[18] एकत्र राहणे [साथ रहना]
[19] ठेवलेली बाई [राखेल]
[20] वेश्या
[21] प्रियकराबरोबर पळून जाणे [भाग जाना]
[22] प्रियकर [यार]
[23] व्यभिचारी चारित्र्य [व्यभिचारी]
[24] पोटगी [भरण पोषण]
[25] उघडपणे [खुले तौर पर और स्पष्ट रूप से]
[26] ILR (1901) 26 Bom 163.