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| Panch Parmeshwar | a rticle is based on their report with some minor editing and clarifications. |
| Preparing for the Panchayat | |
| Vasudha Dhagamwar | It seemed to be a normal day in the village |
From 1955 onwards there has been a flurry of reforms in the Hindu family laws. The provision of monogamy was meant to protect Hindu women from polygamy. But how successful has the Hindu Marriage Act been in eradicating polygamy? There is no systematically collected data to assess this. However, it is quite clear that the government does not run campaigns to disseminate legal information the way it does with polio, AIDS or family planning. An eyewitness account of the proceedings of a caste panchayat in Haryana on the issue of bigamy shows what impact, if any, the law against polygamy has on the lives of ordinary Indians.
All names in this article have been changed. The larger location is correct, but the village has not been mentioned.
Vasudha Dhagamwar (vasudhagam2007@ airtelmail.in) was a founder of Multiple Action Research Group, New Delhi and writes extensively on socio-legal issues.
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By 2002 when the incident that is about to be related took place, we in the Multiple Action Research Group had been conducting legal awareness workshops on a regular basis for a decade for rural w omen. The participants were often drawn from a wide range of backgrounds such as members of self-help groups (SHGs), panchayats, and school and college students. In 2001 a series of workshops were being conducted with members of Swa-shakti, which worked with SHG in Bhiwani district in Haryana. The participants came from a variety of nongovernmental organisations (NGOs) serving different v illages.
One such workshop was held on 24 January 2002 in a village in Haryana situated off a highway, and about seven hours drive from Delhi. At that workshop a fi eldworker of one of the NGOs wanted to know the legal solution to a specific problem, a member of one of her SHG whom we shall call Shanti feared that her husband, Vijay was trying to throw her out of the house, as she was the second wife. The field worker asked if Shanti could ask for land or money for herself from Vijay. The legal trainers advised her not to bring in the law; being the s econd woman, legally she was not e ntitled to anything. It would be better to use the caste panchayat’s pressure for this purpose.
On 27 January 2002 a khap (panchayat) of several villages was going to be held in that village to hear this matter. At that point we decided to send two of the t rainers to o bserve the proceedings. We chose two men as they would be inconspicuous in an all-male assembly. This
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when we reached there, but everybody started staring at us as we entered in an Ambassador car. We had initially planned a quick survey to find out what the villagers thought of the matter, but now we were afraid that they might not like their village affairs being discussed by and in front of outsiders. They might also become suspicious about the motive behind our visit. So we abandoned the idea and entered the first house in the village, which was around 50 metres ahead of the village cluster, on the pretext of making a phone call. The owner of the house, Munshi Ram, readily agreed, and offered us tea too. We then broached the subject of the upcoming panchayat. Munshi Ram turned out to be a relative of Vijay. He very kindly e xplained the panchayat system to us. He said it was an age-old tradition of resolving disputes at the village level and within the community itself. In other words, this was a village level caste panchayat. The concept goes with the principle of Panch Parmeshwar meaning five people who comprise the panchayat are parmeshwar (God), and will deliver divine justice without any discrimination. Similarly, n obody lies before the panchayat. If the matter b ecomes serious or if another v illage is i nvolved, then a bigger caste panchayat of several villages is summoned. At times the khap comprises even 52 villages. In this case a khap of 14 villages plus the panchayat of this village had been called, making it a khap of 15 villages.
Munshi explained the matter before the khap to us. He said that Shanti was Vijay’s second wife; she was not of sound mind. She abused the elder sister (first wife) b efore the villagers and altogether behaved badly. Once Shanti was taken to a hospital for tubectomy (which he called nasbandi, or vasectomy), but she fled the place by saying that as Vijay has 35 kilas of land she will give birth to 35 children (a kila is about
2.5 acres). Further, she being of the Puwar clan, she was being instigated by the other clan members. The village was predominantly composed of two clans, Puwar and Dhaiya. The two fought the elections on
COMMENTARY
o pposite sides and were a lways on the lookout to ridicule the other clan. Shanti’s clan members had a pproached the panchayat. Munshi also blamed Sohan, Shanti’s brother, for m aking matters worse. Sohan who had met with a road accident some time ago n eeded e xtensive treatment. Vijay had helped him with Rs 70,000. Now Sohan was refusing to pay it back, although Vijay had helped him to recover much more from the i nsurance company. Shanti’s mama (mother’s brother) had informed Munshi’s village that they were coming with caste panchayats from 14 villages. He had charged Vijay with harassing Shanti and with trying to throw her out of the house. But Munshi was sure that no one would turn up to support mama, as he was a “d efaulter” (local term for a fraud or cheat).
We asked Munshi Ram whether such panchayat decisions had any legal standing. The answer was that they did not. He said in one instance a man got divorced through the panchayat, but later on the wife’s appeal the panchayat’s decision was quashed by the court. But he said that the Jind Mahasabha or Saini Panchayat of Jind had registered itself with the district magistrate’s office and now its judgments were valid in a court of law. (This is not legally correct since registration does not confer jurisdiction. However it seems to have made them feel their actions were l egitimate. In any case we were not in a position to probe too deeply.)
On reaching the village school playground where the panchayat was going to be held, we met Raghunath Lal, the sarpanch of the local gram panchayat (a gram panchayat may be made up of several villages depending on their population but a caste panchayat serves only one v illage). Raghunath agreed to be photographed, we told him that we were associated with the panchayati training of S wa-shakti, and had come to see the a ctual panchayat proceedings. Raghunath seemed open to our suggestion that the v illage people be trained in panchayat and other income generation methods.
At the khap, the village elders started questioning the sarpanch as to why the matter was not resolved within the village and had been blown up instead. There were even suggestions that the case should be resolved there and then but Raghunath felt that as people from other villages were already on their way, it was best to wait for them.
It must be pointed out that panchayats whether of one village or many are an allmale affair. Women do not attend them, not even when they have an interest in the dispute. Gradually, the first lot of men from the 14 villages started trickling in and by noon the khap had assembled. Two of the concerned parties were women, namely, the two “wives” but they could not come anywhere close to the venue of the khap. A few Swa-shakti women members stood discreetly on the edge of the meeting; there were no other women in that place. After the initial welcome a ddress by Raghunath, a panchayat of five men was constituted. So far as we could tell, the five men were chosen at random from five different villages. The process was simple. A name was proposed by someone and was then seconded by someone else and if no objection was made, the person was declared a panch. Raghunath was chosen to preside over the meeting. Raghunath was presiding over this small group as a co-caste member, not as the sarpanch of the village panchayat though his latter title would probably count.
Marriage of C onvenience
Mamaji was asked to state his complaint. He said Shanti and Sohan’s mother was his sister. He became the children’s g uardian after their father’s death and that he had been approached by Vijay’s f ather to arrange Shanti’s marriage with Vijay Kumar. He had refused because V ijay was already married to Kamla. But Vijay and Kamla had no children even after 12 years of marriage, and medical tests had shown that Kamla would never bear children. Vijay was the only son of the family, which had 35 kilas of land. Mamaji was not well off. Shanti’s f ather had left them with little or n othing. So he could not arrange for a dowry. Vijay’s father did not want a d owry. Keeping all factors in mind S hanti’s mama had married her off to V ijay. Shanti and Vijay had been married for the last 12 years. They had four children, three sons and a daughter. Mamaji’s complaint was that Vijay had started h arassing Shanti from the day she gave birth to the first child, a boy. Since then he was trying to throw her out of the house. He further complained that he had r eceived legal summons for a betting V ijay’s second marriage.
Vijay was asked to comment on Mamaji’s statements. He said that he had n othing against Shanti in particular and the fact that she had lived happily for the last 12 years proved that he had always treated her well. The problems started with Sohan’s accident. He had spent around Rs 70,000 on his treatment and also
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august 1, 2009 vol xliv no 31
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COMMENTARY
helped him to get Rs 1.8 lakh in compensation (these facts were accepted by the gathering and not d ebated). However, S ohan refused to pay him back on some excuse or the other. Shanti had also started taking Sohan’s side and both of them demanded that five kilas of land should be registered in Shanti’s name. Moreover, Shanti had also started behaving badly with his first wife Kamla. He said as far as the case of bigamy went, it was Kamla who had filed the complaint and in fact she had also made him a co-accused. No one mentioned whether the case was filed under the Indian Penal Code or under the Hindu Marriage Act.
At this point Kamla’s brother was asked his opinion. He declared that his family (presumably including Kamla) had no quarrel with Shanti. He referred to Shanti as the younger one or “chhoti”. He said, Chhoti ne meri behen ka ghar basaya hai (Chhoti has filled my sister’s home with children). His words could also be taken to mean that the younger wife had saved the older one from being abandoned. Since he had no complaint against Shanti, he was asked to sit aside and speak no more.
Next, Sohan was asked to give his story. He said that he had signed a few blank j udicial papers, which were with his l awyer. Vijay got hold of one of the papers, on which he got an agreement written through his (Vijay’s) lawyer. The agreement said that Sohan would sell a piece of land to Vijay on some date for which half payment had already been made. (This would be the sum paid by Vijay for Sohan’s treatment.) As there was no such land in S ohan’s name, a case of fraud was easily made out. A legal notice was sent asking for return of money and a criminal complaint was also filed leading to his arrest. Sohan said that he was now out on bail.
In Shanti’s Favour
After listening to all these narrations, a rguments and counter arguments, the khap members began to express their views. Raghunath Lal did not utter a word, though he was presiding over the khap. Several times he was regularly asked to speak but he still kept quiet. Prior to sorting out the problems before them Vijay’s fraternity had another grievance
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| to express. The majority were aggrieved | w hispered “who is this bearded person |
| because Vijay Kumar had shamed their | and why is he speaking?” Whereupon |
| village. He had made public a purely | V ijay’s supporters got an excuse to create |
| f amily matter. Never before had a khap | a scene. They started questioning the |
| been held at their doorstep. They had | credibility of the panchayat members but |
| a lways gone to other villages to solve | the group could not gather support and |
| their disputes. | their ploy failed. At this turn of events, |
| As to the charges against Vijay they – as | V ijay’s supporters (after a quick chat with |
| well as outside members of the khap – | him) said that he would take back the |
| gave him a severe tongue-lashing. They | case if his money was returned. Another |
| accused him of being ungrateful. They | person stood up and said that he would |
| said he had an obligation to Shanti’s family; | stand surety that Vijay would never ask |
| they had made his house into a home, and | money from Sohan. Vijay was visibly |
| it was because of them that he had four | u pset at this, as he had never agreed to |
| children. He knew very well that Shanti’s | such a proposition. Another suggested |
| family had only got Shanti married to him | that the two women in question should be |
| because she and Sohan had no father and | called and asked to state their views. |
| they were poor. So if he helped Sohan | However, this demand was shot down |
| there was no great merit in it. Certainly, | summarily. During this time many women |
| Sohan should return the money. But that | had joined the Swa-shakti members who |
| could be arranged. He should not have | were standing at the edge of the assembly |
| kicked up such a fuss over it. | but they watched in total silence, whatever |
| It became clear almost immediately | their views. |
| that the khap did not believe for one | At this point Vijay’s lawyer made his |
| m oment that Kamala had filed the bigamy | first and only intervention. He was from |
| complaint. Kamla could not have filed a | the same caste and he might have been |
| case on her own, that was all manipulated | present in a dual capacity. He said the law |
| by Vijay, as he knew now, if not before, | was very well in its place but in the village |
| that under the Hindu Marriage Act, | the writ of the panchayat was paramount. |
| S hanti’s marriage with him was not valid | The Hindu Marriage Act may forbid |
| and binding. The khap said that all cases | p olygamy but here both the women would |
| filed by him directly or through his wife | be recognised as Vijay’s wives and they |
| Kamla showed his bad intentions. He had | would continue to live together under one |
| used a lawyer who had guided him. This | roof. Thus he tacitly indicated that Vijay |
| showed that he now wanted to get rid of | would back down. |
| Shanti. The villagers said that lawyers | Raghunath Lal was then asked to an |
| were meant just to break up the family, | nounce the khap’s decision. This was odd, |
| and Vijay being foolish went to them to get | as the five panches had not deliberated as |
| his family destroyed. | yet. Naturally he did not oblige. Instead, |
| A small group supported Vijay. They | he suggested that a second five-member |
| said that it all started because Sohan did | group decide as this was a grave family |
| not return the money. They also blamed | matter. So the first set of panches was set |
| Shanti for her bad behaviour with Kamla | aside without any formality. This new |
| and her demand for five kilas of land. They | group included persons who had come out |
| called on Raghunath Lal as witness; he | with differing views. They went into a |
| had been once called to talk with Shanti | closed door meeting, which lasted for two |
| about her rude behaviour with Kamla. The | hours. The group came out with a written |
| Sarpanch attested to the fact. | decision on which Vijay, Sohan and his |
| Apart from this when it started becom | |
| ing clear that Vijay would lose, his | |
| s upporters tried to close the matter. They | Subscription Numbers |
| said that the case was simple, Sohan | Subscribers are requested to note their S ubscription |
| should pay the money immediately and | Numbers mentioned on the wrappers and quote |
| the matter would end there and then. The | these numbers when corresponding with the |
| supporters included Vijay’s sister’s | circulation d epartment. |
| h usband, who was a Sikh. Someone | |
| vol xliv no 31 | 15 |
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u ncle were made to sign, without even reading the contents.
The Verdict
The solution was as follows.
All the members of the khap agreed to the decision of the panches. Thereafter, the khap was dissolved.
Some Points of Interest: The two women did not appear at all. One does not know what they thought about the dispute and the resolution: The real players were all men; the panches knew straightaway that Vijay had masterminded Kamla’s petition on bigamy; they were well aware of the circumstances of the second “marriage” and the obligation under which Vijay was to S hanti’s family; they took indirect n otice of Shanti’s misbehaviour with K amla; they ignored Shanti’s demand for land; they ignored the uncle’s allegation that Vijay was harassing Shanti very early on in the marriage; both the demand and the allegation were probably seen as opening gambits in a long battle; Shanti’s d emand for land indicates that, if not earlier then at least by the time her troubles with Vijay started, her uncle had an i nkling that she was not Vijay’s legally wedded wife; no one had felt the need to approach the courts of law.
The lawyer’s role was extremely interesting. He wore all his hats – lawyer, caste, member, khap member with equal aplomb. He openly flouted the law a lthough he a dmitted he knew it. He e pitomised the attitude of the villagers towards bigamy: it is illegal but we do not care. It is acceptable in the society and confers status.
The option of adoption had not been considered at all. Under the Hindu Adoption and Maintenance Act 1956 V ijay could have adopted one boy and one girl. But had he done that his m anhood would still have been doubted. It is not always the man who does not want to adopt. Frequently, it is the wife who recommends a second marriage. Her prestige in the family, the clan and the village shoots up sky-high because of her “sacrifice”.
What Is To Be Done?
What advice could we, an NGO dedicated to promoting empowerment through awareness of the law, give to the three parties? Certainly it could not be to approach the courts. Once Shanti had started cohabiting with Vijay as his second wife, the time for approaching the court had passed. The court would have ignored all the complicated social factors – and quite rightly so. They are totally extraneous to the strict letter of the law. Shanti would have been told she was not a respectable married woman, and that her children were illegitimate, although they would have full property rights to their father’s personal property. But property rights are not all. Social acceptance is just as important. On that score Shanti would lose badly. Vijay could try to force Kamala’s family to make Kamala divorce him so that he could marry Shanti. That way Kamala would become dependent on her natal family. Worse, she would lose all s ocial status. None of the outcomes are particularly pleasing.
This is the tricky bit. It is easy to p inpoint the problem but it is difficult to set it right. But it has to be corrected and the sooner the better. This is by no means an isolated example. The decision in this matter was acceptable to 14 villages! With variations, Kamala, Shanti and V ijay exist in many places throughout I ndia. Bigamy continues to exist. Women are at permanent risk. Should the husband die first the first wife’s relatives have been known to object to the second w oman’s presence in the house. Until the law is vigorously publicised, these tangles are going to remain. Going back to p olygamy, justice by caste panchayats is not an option. We need to consolidate the law by impressing it on the popular mind. Activists and the government must learn a lesson from such p iquant situations and lead a campaign for a law b efore enacting it. Family law is most t enacious of all; its roots go deep. Reform it we must but the reform must not be on paper. It must touch the lives of the men and women it governs. The tardy, e xpensive and procedure-bound formal justice system is another problem that we must examine.
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