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Modern Indian Family Law.

By WERNER F. MENSKI. Richmond, Surrey: CURZON PRESS. Pp. xiv + 432. 50 [pounds sterling].

Many readers of our Journal may be less familiar with the name of Dr. Werner F. Menski than they are with that of his predecessor at the School of Oriental and African Studies--and a frequent contributor to these pages--Professor J. Duncan M. Derrett. Menski, trained as a classical indologist in Germany, earned a Ph.D. degree in London with a thesis on "Role and Ritual in the Hindu Marriage" (1984). He succeeded Derrett on his retirement in 1981, and is now a Senior Lecturer in South Asian laws at SOAS. In addition to a volume on Indian Legal Systems Past and Present (1997), a volume on Muslim Family Law (with David Pearl, 3rd ed. 1998), and an edited volume on a subject he got deeply involved in, South Asians and the Dowry Problem (1998), for several years now Menski--as legal academics are wont to do, and as Derrott did relentlessly--has used the venue of Indian law journals closely to comment on and critique recent legal decisions and developments in Indian courts of law. Of all legal journals Menski became most closely associated with the Kerala Law Times (the present volume is dedicated to its founder-editor, the late M. C. Mathew). Many of the articles collected in this volume originally appeared in the "Journal" section of the Kerala Law Times.

This is a book about Hindu family law in the 1980s and the 1990, i.e., several years after the four Codes of 1955-56 abolished most of Hindu family law based, at least nominally, on the dharmasastras and their Sanskrit commentaries. Yet, a book on post-1956 Hindu law should be of interest to students of classical Indian society as well. Indeed, one of Menski's basic contentions is that "[n]o matter how modern and secular India may now have become, one cannot merely deny the persistence of ancient traditions in our days and refuse to see their implications on questions of Law" (p. 21). Incidentally, this comment was provoked by one of the many court cases--Menski describes another one of these as "a blatantly wrong decision by two judges of the Indian Supreme Court" (p. 12)--dealing with the validity of Hindu marriages, about which even the "modern" Hindu Marriage Act, 1955 says that they "may be solemnized in accordance with the customary rites and ceremonies of either party thereto" (Sect. 7[1]; registration of marriages is merely recommended in Sect. 8). In other words, modern legislation notwithstanding, even today "marriage for a Hindu is a samskara, a sacrament rather than purely a contract" (p. 12). The terms samskara and saptapadi are omnipresent throughout the volume (see index, p. 431).

Another example illustrating how and to what extent ancient Hindu practices have survived the prohibitions contained in the new legislation is polygamy. Even though Menski's chapter on polygamy (pp. 139-230) mostly deals with Muslim law, I am referring here to the section about Hindu case law on polygamous marriages (pp. 204-12). The prohibition of polygamy--allowed by the sastras (see, e.g., the latest pre-1955 edition of Mayne's Treatise on Hindu Law and Custom, pp. 172-73)--in the Hindu Marriage Act has obviously not been effective. A bigamous husband may no longer claim before the judge that a second marriage was necessary because his first wife failed to bear him a son, but he may try to circumvent the law by claiming that his second marriage--occasionally the first marriage--was not a true Hindu wedding as defined in the Hindu Marriage Act. In the leading case (1965) the Supreme Court set the convictions by the three lower courts aside and ruled in favor of the bigamist husband (p. 206).

Notwithstanding his often severe criticism of legal decisions in the courts of India, Menski ends on an optimistic note: "modern Indian family laws have in the past two decades found their own path. Many Indian judges ... have long ago begun to question those colonial shackles of the mind which told Indians that their own traditions and values were not usable for a bright future" (p. 404).
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Author:Rocher, Ludo
Publication:The Journal of the American Oriental Society
Article Type:Book Review
Date:Jan 1, 2003
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