Legal System in India-Discuss the role of social legislation in the solution of social problems.
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Define the social problems. Discuss the role of social legislation in the solution of social problems.(Legal system in India)
Ans. Social problems are the direct outcome of social disorganization. When human affairs deviate either from the existent order or from the desired order, the inference is that there is disorder It consists of the relative decline and breakdown of those factors that have made and do make for the effective functioning of collective living.
Consequently, different problems of different nature are developed. In our own times, the process of disorganization has assumed a universal dimension. The developed as well as under-developed societies, both are almost equal sufferers. The society of the old world is comparatively peaceful partly due to the predominant agricultural mode of living and partly due to the stronghold of customs and traditions over the social Conduct of man. Even then traditional societies are not free from problems. There is a breakdown of the social relationships first at the economic level and later on at the cultural level. The result of such breakdown is that the problems of our modern society are basically economic and cultural.
Definition of Social Problems. Social problems are the direct product of undesirable social conditions. The following definitions clear its concept:
(1) L.K. Frank According to Frank, “A social problem is viewed as any difficulty or misbehavior of a large number of persons which we wish to remove or correct.”
(2) R. C. Fuller. According to Fuller, “Social problems represent a social condition which is regarded by a considerable number of individuals as undesirable and hence these persons believe that Something ‘ought to be done about the situation.”
Meaning of Social Legislation-There is various social problems that are obstacles to social and economic development. Therefore those legislations which deal with these problems are called social legislations. According to Shri V.V Shastri, Social legislation is that which serves the present social and economic objectives of the nation and deals with current social problems.”
Social legislation is mainly made keeping in view the circumstances, the requirements, and social aims of the time. Circumstances of the Country, requirements, and political ideals are the main basis of social legislation. The communist countries where much attention is given economic system and social equality will have different social legislation than those States, which are based on religious aims. In a Muslim country, it is very difficult to enact social legislation against polygamy, because this custom is considered valid according to religion But such legislation can also be passed in a Muslım State by liberalizing the political views and it will not be incorrect to contend that social legislation depends much on the political factors behind which is the social strength. For example, in a Muslim country like Turkey, polygamy has been abolished.
Aims of Social Legislation(Legal system in India)
Social legislation is enacted for the achievement of certain aims chief among them are as mentioned below:
(1) To ensure social security. The main object of social legislation is to ensure the security of the society and to improve its social and economic condition. Each individual of the society, no matter whether he be a man or a woman, a child or an old man, or may belong to any religion, ought to be given equal rights and equal opportunities in the society.
(2) To change and reorganize the society- The social legislation brings about social reforms, social changes, solves social problems and propounds ideal social rules or principles. Social legislation is that legislation the aim of which is to change and reorganize society.
(3) To establish norms based on the social reality- Social legislation emphasizes the establishment of the ideal norm, but these norms are not beyond reality, if the social norm gives its attention to the sheer idealism, then it is possible that the social legislation will become ineffective. During the British Rule, child marriage was prohibited but during that period, according to Hindu Society, this was a sheer ideal that appeared to be beyond the real aspects of the society and that is why it could not make such an impact upon the society. But in the changing times of today, ideas against child marriage are current in society and people are adopting such types of legislation. Hence, instead of emphasizing sheer idealism, more attention is given to realism. In short, the aim of social legislation is to establish social norms based on social reality.
(4) To maintain basic values- India is a sovereign welfare State, where many changes are taking place due to economic and industrial advancement. We cannot go against or beyond these social waves or social changes. Hence the aim of social legislation is to give a desired direction to the changes and to maintain the basic values of Indian society.
Social Legislation During The British Period
During the British period, some Acts were passed for the prohibition of child marriages, in regard to the rights of women and relating to the removal of conventional customs of marriage. An Act relating to child marriage was passed in the year 1919, according to which at the time of marriage the boy and girl must have attained the age of 18 and 15 years respectively.
Another Act relating to marriage was passed in the year 1933. This Act conferred validity on such marriages, which were performed by the persons of different castes, religions, or communities alter adopting Arya Samaj’s religion.
According to the Act of 1946, women were entitled to maintenance and live separate from their husbands under certain circumstances.
Under the following circumstances, a Hindu woman can demand maintenance from her husband by living separately from him :
(1) If the husband is suffering from some venereal disease and the disease has not been passed on by his wife.
(2) If the husband is very cruel.
(3) If the husband is accused of having abandoned his wife.
(4) If the husband marries a second wife.
(5) If the ceases to be a Hindu after conversion of religion.
(6) If the husband has kept within the house or outside the house, a concubine
According to the Hindu Marriage Disability Removal Act of 1946, marriage between the same Gotras and Sapindas received legal validity. In this, an endeavor was also made to check polygamy.
Madras Namboodri Brahmans Act of 1923 abolished convention according to which only the eldest son was entitled to marry within his caste. The women were also given equal rights.
In 1939, Hindu Widow Re-marriage Act was passed and it validated widow remarriage.
After the above-mentioned Acts, some Provinces and States also passed Widow Re-marriage Acts. For example, Widow Remarriage Acts were passed in Mysore, Hyderabad, Travancore, Bombay in the years 1838, 1935, 1938, and 1886 respectively.
Some Acts were also passed to check the Sati Custom. In this connection, different Provinces passed their own Acts. For the first time, the Province of Bengal enacted legislation to check the custom of Sati. Therefore, the Province of Madras also passed a similar Act in 1830. Acts relating to succession (Dayabhaga) were also passed, although the institution of the joint family received a setback, as a result of these Acts. But these Acts can be justified from the point of view of human rights.
In 1928, Hindu Succession Disability Removal Act was passed wherein it was provided that no Hindu be deprived of succession or from the rights of the property of joint family on the ground of disease, disability, etc. unless and until he is insane or idiot by birth. In 1933, the Hindu Women Right of Property Act was passed which brought about desirable reforms relating to the rights of Hindu women.
Social Legislation after Independence
In independent India, the sources of inspiration of all social legislation are inherent in the Constitution. Now the feelings of social welfare are inspired by the Constitution. It is only on the ideals of the Constitution that India has adopted a social welfare program. Schemes are being implemented for the welfare of women, children, youth, and old persons and to provide proper medical facilities to the people, to provide security to disabled persons, etc. The Constitution of India, through Fundamental Rights and Directive Principles incorporated into it, has proclaimed its right and duty to legislate for social needs.
In independent India, many Acts relating to marriage and family have been passed. In this connection, a revolutionary bill entitled, “Hindu Code Bill” was presented in the Parliament but it could not be passed.
The Parliament passed three acts, which are as follows:
(1) Hindu Marriage Act, 1955
(2) Special Marriage Act, 1954
(3) Hindu Inheritance Act, 1956.
Besides these, States and Provinces have also passed several Acts. By the Act of 1949 inter-caste and intercommunity marriages received validity.
In 1948, Mysore Hindu Inter Caste Validating Act conferred the validity upon those marriages wherein the bride and the bride-groom belonged to different castes.
Marriages between the same Gotras and Sapindas received legal validity according to the Act of 1948. Saurashtra Bigamy Removal Act of 1940 declared bigamy legally invalid.
Hindu Divorce Act of 1952 conferred the right of divorce upon all Hindus.
Madras Hindu Bigamy Removal and Divorce Act of 1949 abolished the custom of bigamy in Madras and conferred validity upon the system of divorce.
The Dowry Removal Act of 1961 declared the custom of dowry as illegal.
The Hindu Marriage Act, 1955
This Act applies to Hindus, Buddhists, and Sikhs, etc. The Chief aim of this Act was to amend Hindu marriage and to codify it. After the passing of this Act, all the Acts passed previously whether by the Centre or the States were repealed. Now the rules relating to marriage can receive legal validity through this Act.
Main Provisions-The main provisions of this Act are as follows:
(1) The parties to a marriage must not have a spouse living at the time of marriage.
(2) None of the parties (bride or bride-groom) must be insane, idiots at the time of marriage.
(3) The boy and the girl to be married must have attained the age of 18 years and 15 years respectively.
(4) Both the parties must not belong to the prohibited degree of blood relationship.
(5) Those castes wherein marriage between Sapindas can take place according to custom can marry the person belonging to the same Sapinda.
(6) If the age of the bride is less than 18 years at the time of marriage then the consent of the guardian is necessary.
This Act also describes the rights of the husband and wife.
Judicial Separation- Another salient feature of this Act is the provision of judicial separation. Following conditions are necessary for claiming judicial separation:
(1) If the opponent of the petitioner has deserted her or him for two years or more.
(2) If the petitioner has been treated with cruelty by the respondent.
(3 If the respondent has been suffering from leprosy or other diseases for one year before the submission of the petition.
(4) If the respondent has been insane for two years before the date of the petition.
Thus, an endeavor had been made to check the number of divorces, and therefore, in the meantime, the time has been given for the establishment of harmonious relations.
Divorce- This Act also provides for divorce under the following conditions:
(1) A life of debauchery by the husband or wife.
(2) Conversion of religion by wife or husband.
(3) If the husband or wife has been insane for three years.
(4) If the husband or wife has been suffering from leprosy for three years.
(5) If the wife or husband has been suffering from some venereal disease.
(6) If the wife or husband has renounced the world.
(7) If the wife or husband has been absent for 7 years.
(8) If they have been living separately for two years after judicial separation.
Besides the above-mentioned conditions, women have been given the following two additional grounds to demand a divorce.
(i ) If the first wife of the husband is alive.
(ii) If after the marriage, the husband is accused of rape, sodomy bestiality.
Special Marriage Act, 1954
The aim of the Special Marriage Act is to provide for special marriage and divorce. This type of Act was passed for the first time in 1872. But the Act of 1954 is wider than that. This Act confers validity on inter-community marriages. This Act applies to Indian citizens whether they are living in the country or outside the country.
This Act also includes all the conditions of the marriage mentioned in the Hindu Marriage Act:
According to this Act, the boy and the girl to be married must have attained the age of 21 years and 18 years respectively.
Hindu Inheritance Act, 1956
This Act applies to Hindus, Jains, Buddhists, Sikhs, etc. According to this Act, all persons are considered to have equal rights in the property irrespective of their sex, age, or status. Hitherto, widows were not given the rights in property but this Act confers those rights upon widows which their husbands possessed. Sons and daughters have been accorded equal rights.
Impact of Social Legislation on Indian Society
In independent India, social legislation has been given much significance. The main cause of this was the viewpoint of the people. Conventional ideas were much prevalent in the country, and people were not advanced. Social legislations have been mainly passed relating to marriage, upliftment of women, child welfare and rights, and their reforms. Thus social legislation has made a great impact mainly on
Indian institutions. We can study these effects under the following headings:
(1) Upliftment of women- Through these Acts, the upliftment of women has been ensured. They have been given rights equal to those of men. They have been given various rights from that of divorce to the division in the property.
(2) Reform in marriage Relations- Hitherto man used to keep several wives on account of which there used to be quarrels. This state of affairs has been remedied.
(3) Child Welfare- Because of the abolition of child marriages, many evils have been checked. Now the children get sufficient time for their upliftment.
(4) Removal of the miserable condition of women- Because of the removal of Sati custom and problems of widows women can now lead a better life and claim rights equal to those of men.
(5) Validity of human rights- The passing of these Acts has given validity to human rights under the Indian Constitution. All people are equal and are free in their private matters. All men and women are treated equally. Castes and religion are now considered to be things next to humanity.
(1) Decline of joint family- Because of the provision of equal Tights in the property, the institution of joint family has received a great setback.
(2) Disintegration of the family- Because of the provision of divorce, many families are disintegrating these days. Since, previously, there Was no such provision, mutual endeavors were made to maintain harmony but the now dissatisfied party (wife and husband) wishes to live independently after taking divorce.
(3) Insecurity of old persons- Due to the lack of social security, the sons often marry on their own after being educated and break their relations from home. As a result of this, the old persons are very much worried due to the feeling of insecurity.
(4) Conflict between old and new values- Because of the conflict between old and new values, a type of reactionary feelings are found in the society which can prove to be detrimental the progress.
Thus, we see that revolutionary changes have come in Indian society through this social legislation. Women are no more the slaves of men. Marriage has ceased to be the sacrament that was considered to be unbreakable and on the basis of which men used to heap the injustice and atrocities upon women. Marriage is now only contractual relation. These Acts have also gone a long way to ensure the security of the children. The miserable condition of the windows has also been remedied through this social legislation. The ideas of religion, caste, and convention now fail to make human behavior narrow and confined. An endeavor has been made to bring about equality in society.
(Legal system in India)
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