"Should the Govt amend HMA to ban 'same-gotra' marriage"?

[sanjaymalik]

It would be better to use the current version of HMA. Point (iii) is 21 years for boys and 18 years for girls in the current version. And there is no point (vi). The current version is here:
http://www.netlawman.co.in/acts/hindu-marriage-act-1955.php

The language "same gotras or either of self gotra or either's mother gotra" should be precise as same gotra and self gotra are same things. Use of both is confusing. Might make more sense to use a single word "sagotri" (Or whatever the right word is) to capture mother/father gotras the way Sapinda captures a lot of relationships. May be better to split the gotra and village in 2 different sub points.

In either case, Section 3 of the Act, "Definitions" would also have to be amended to precisely define "gotra" or "sagotri" (whatever is used) and "village". Definition of "village" should be there in any other act. Definition of gotra, as per wiki, is a lineage or clan assigned to a Hindu at birth. Not sure if that is appropriate or it needs to be more precise.

PS: This is a specific opinion on the draft and not on the need or efficacy of the proposed amendment.

PS2: For all those who want the amendment, the key issue should be the political strategy and arguments. Once you get the political will to an amendment in principle, the drafting, etc. are minor issues and there are lots of babus in secretriats who specialise in it.

Yes, after posting it i was also of the view that one word may be use either self gotra or same gotra or sagotra.
Definition of all these worlds " same gotra" "sagotra" "self gotra"whatever want to use or "village" ,"mother's gotra" also need to be clarify and insert in section 3 of Definitions part.

The other way is also thereby inserting sagotra, same gotra, self gotra whatever relation within the definition of Section 3(g) Degree of Prohibited Relationship a clause (v) may be inserted and for village clause( vi). What is village and same gotra/sagotra/selfgotra can be explained in Explanation appended to this definition.

(g) "degrees of prohibited relationship"-two persons are said to be within the "degrees of prohibited relationship"-

(i) if one is a lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other ; or

(iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;
(v) if the two are descendant form same gotra lineage as per gotra system where there is prevelant within the comunity.
(vi) if two are resident or residing within the boundry of same village where there is prevalant within the village.

Explanation.-For the purposes of clauses (f) and (g), relationship includes-

(i) relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood
(iv) can insert explanation of Village
(v) can insert explanation of gotra and sagotra.

and all terms of relationship in those clauses shall be construed accordingly.

Yes as far as mother's gotra it can be inserted and covered by spinda relationship under 3(f) and a clause may be added with in the definition of Spinda Relationship.

But i think amendment in section 5 of the Act which talk about condition of marraige would be better by defining Same gotra/sagotra/village etc terms.

 

[vijay123]

PS2: For all those who want the amendment, the key issue should be the political strategy and arguments. Once you get the political will to an amendment in principle, the drafting, etc. are minor issues and there are lots of babus in secretriats who specialise in it.

Agree with you on this point. There is NO need to draft it as no one is going to look at it whether govt accepts the suggestion of implementing it or not. Drafting a law is is not something that govt leave to others; they have expertise to draft even very complicated laws. If the govt need inputs then it is going to ask citizens to send in their suggestions too. Plus they can hire imminent Jat lawyers and justices to do the job. Also it is not just a jat specific issue. Gujjar, Rajputs, Ahirs, and lot others follow this system.

 

[vijay]

Definition of all these worlds " same gotra" "sagotra" "self gotra"whatever want to use or "village" ,"mother's gotra" also need to be clarify and insert in section 3 of Definitions part.
.
.
.
But i think amendment in section 5 of the Act which talk about condition of marraige would be better by defining Same gotra/sagotra/village etc terms.[/SIZE]

Sanjay,

We do not need to make draft and putting up so much emphasis on the language of the draft. There are professionals to do this job.

The major problem, if amendment is considered, would be the meaning and evaluation of the terms like same gotra/sagotra, family lineage, definition of village boundries etc.

The gotra system is not recognized by the Law. Only surnames and/or caste are considered. Either you are Sanjay Malik ( caste : Jat ) or Sanjay Kumar/Singh ( caste : Jat) but officially you are not recognised as Sanjay ( caste : Jat, Gotra : Malik ). There is no database of gotras. for eg. Law WILL NOT consider Fogat and Phougat as same gotra/surname. Moreover, there are so many people who don't use their gotras as their surname officially.

Law needs proof for everything but there are so many things which are quite simple and evident to us but hard to prove offcially. The real problem starts from right there. For example, two gotra having brotherhood ( we all know about them ) do not marry among themseves but nobody can prove the existance of brotherhood.

Now, please excuse me if someone want to aruge that it can be checked at Jatland Wiki. Jatland Wiki is written, updated and editted by us. Within a minute anybody from us can change anything there.

 

[kapdal]

The gotra system is not recognized by the Law. Only surnames and/or caste are considered. Either you are Sanjay Malik ( caste : Jat ) or Sanjay Kumar/Singh ( caste : Jat) but officially you are not recognised as Sanjay ( caste : Jat, Gotra : Malik ). There is no database of gotras. for eg. Law WILL NOT consider Fogat and Phougat as same gotra/surname. Moreover, there are so many people who don't use their gotras as their surname officially.

Law needs proof for everything but there are so many things which are quite simple and evident to us but hard to prove offcially. The real problem starts from right there. For example, two gotra having brotherhood ( we all know about them ) do not marry among themseves but nobody can prove the existance of brotherhood.

Vijay,

I think the law just needs to define a general definition of gotra. As is commonly understood by everyone. It has to be reasonably precise and that's why I am not sure if the wiki definition I gave is good enough. But it should not be impossible for those who draft the laws. The definition itself should encompass the possibility of different spellings being same gotra (phougat, phogat; suhag, sihag); without getting into these specific cases. The specific cases would become important when there is a case pertaining to them. The law would then require evidence to prove that suhag and sihag are the same; the evidence being given by people belonging to that gotra. Now, I am not a legal expert; but per se, I don't see this as impossible. For example, even in the case of exception in HMA that allows marriages in prohibited relationship if the custom exists in the community, the law doesn't specify that which all communities are eligible for it. If there is ever a case relating to that, the law would need evidence to prove whether the custom exists or not in the community, such evidence coming from the people of that community.

The other point about inter-gotra brotherhood (as well as dadi's gotra) is not being covered by this proposed amendment. So a Dalal and Maan, marrying against the custom, can still have a legal marriage as per HMA. But then, even sagotris can have a legal marriage after the amendment of HMA either under SMA or by just converting before the marriage. It is rather obvious that the law is going to be ineffective as far as its aim is to curb the breaking of customs. But you know, if it helps to soothe our collective ego to have a law amended, then why not. It may actually be a good thing if it defangs the extremists in the community and let the focus be on more important issues.

 

[vijay]

It is rather obvious that the law is going to be ineffective as far as its aim is to curb the breaking of customs. But you know, if it helps to soothe our collective ego to have a law amended, then why not. It may actually be a good thing if it defangs the extremists in the community and let the focus be on more important issues.

Totally Agree, without any single trace of doubt !

 

[virj]

The Draft was just for us to present our case or take it to the khaps. This draft is supposed to be what we think should be amended and how, what are our views on it. Many khaps members include retired high court judges and lawyers so we dont need to prepare a final bullet proof draft to present it to the govt. What we can do is extend our support, show our support though all channels available. As previously said, by Jakhar ji, show our vote percentages, our views, or our agreement. As Raviji said, this is also a Khap so I mean extend this Jatland Khap support to other Khaps.


All these things whether gotra is considered by law or not are already discussed. There is no need for them to be defined at present hence not clearly mentioned but once a law is amended based on that, they would be clearly defined and the law would grow with time.

 

[kapdal]

Yes, after posting it i was also of the view that one word may be use either self gotra or same gotra or sagotra.
Definition of all these worlds " same gotra" "sagotra" "self gotra"whatever want to use or "village" ,"mother's gotra" also need to be clarify and insert in section 3 of Definitions part.

The other way is also thereby inserting sagotra, same gotra, self gotra whatever relation within the definition of Section 3(g) Degree of Prohibited Relationship a clause (v) may be inserted and for village clause( vi). What is village and same gotra/sagotra/selfgotra can be explained in Explanation appended to this definition.

(g) "degrees of prohibited relationship"-two persons are said to be within the "degrees of prohibited relationship"-

(i) if one is a lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other ; or

(iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;
(v) if the two are descendant form same gotra lineage as per gotra system where there is prevelant within the comunity.
(vi) if two are resident or residing within the boundry of same village where there is prevalant within the village.

Explanation.-For the purposes of clauses (f) and (g), relationship includes-

(i) relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood
(iv) can insert explanation of Village
(v) can insert explanation of gotra and sagotra.

and all terms of relationship in those clauses shall be construed accordingly.

Yes as far as mother's gotra it can be inserted and covered by spinda relationship under 3(f) and a clause may be added with in the definition of Spinda Relationship.

But i think amendment in section 5 of the Act which talk about condition of marraige would be better by defining Same gotra/sagotra/village etc terms.

Sanjay,

I agree the first way of including it in Section 5, "Condition of Hindu Marriage" is more appropriate. For whatever reason, the law has Sapindas and degree of prohibited relationship as separate clauses. So, keeping it separate would be more acceptable.

On second thoughts, I think that the earlier proposed language assumes existence of gotra custom in all Hindus, and may find objection from communities that either don't recognize the concept of gotra, or if they recognize it, then don't follow any bhaichara in the gotra. There is a difference with "Sapindas" and "degrees of prohibited relationships", which have been defined very precisely such that definition is universal. The law then makes exception for those who have customs of marrying within Sapindas or degrees of prohibited relationship. But I am not sure if one can define gotra for someone who doesn't have the concept of gotra. I realized this while trying to define gotra. And the language is also confusing for those who have the custom of gotra, but don't follow gotra bhaichara in marriages.

I have tried to draft based on my above observations and also trying to be more comprehensive:

Section 5: Conditions for a Hindu Marriage

vi) The parties are not related by gotra kinship, applicable only if the gotra kinship custom governs each of them.
vii) The parties are not related by village kinship, applicable only if the village kinship custom governs each of them.

Section 3: Definitions

"related by gotra kinship": Gotra means the lineage or clan a person is born into, and is obtained from the father. For the purpose of this act, a person has kinship in two gotras- own gotra and mother's gotra. Two persons are said to be related by gotra kinship if either of the two gotras of one person match either of the two gotras of the other person.

"related by village kinship": Two persons are said to be related by village kinship if they belong to the same village. For the purpose of this act, a person's village is:
a) the village where the person is ordinarily resident, or
b) the village where the person holds ancestral property or ancestral agricultural land

I am quite dissatisfied with my own effort. The definition of gotra is inelegant. I have assumed that village need not be defined. And the village kinship is a can of worms- I have put the 2 common features in, but there are cases that are not captured by this definition. After spending more than enough time on this, I am convinced that the drafting of this is best left to those who usually draft laws. And they will come into picture only when they are told to do so by their political masters. Politicians are not going to look at even the most elegant of drafts, unless they buy into the whole idea first.

 

[sjakhars]

What a contradiction!!!!
You asked for blue print and now when it is here, you do not need it. I am sorry, we could not type it in blue fonts, though, if you want, we can change font color.

Moreover, now we have something in hand which will help us to evaluate what needs to be fixed to implement the amendment. Definitions, references, explainations will follow. Keep pointing out.

Sanjay,

We do not need to make draft and putting up so much emphasis on the language of the draft. There are professionals to do this job.

The major problem, if amendment is considered, would be the meaning and evaluation of the terms like same gotra/sagotra, family lineage, definition of village boundries etc.

The gotra system is not recognized by the Law. Only surnames and/or caste are considered. Either you are Sanjay Malik ( caste : Jat ) or Sanjay Kumar/Singh ( caste : Jat) but officially you are not recognised as Sanjay ( caste : Jat, Gotra : Malik ). There is no database of gotras. for eg. Law WILL NOT consider Fogat and Phougat as same gotra/surname. Moreover, there are so many people who don't use their gotras as their surname officially.

Law needs proof for everything but there are so many things which are quite simple and evident to us but hard to prove offcially. The real problem starts from right there. For example, two gotra having brotherhood ( we all know about them ) do not marry among themseves but nobody can prove the existance of brotherhood.

Now, please excuse me if someone want to aruge that it can be checked at Jatland Wiki. Jatland Wiki is written, updated and editted by us. Within a minute anybody from us can change anything there.

Vijay asked for a blueprint long ago in his below post.

You are right that Jatland polls trends seems supporting amendments but what sort of the amendemnt ? Nobody knows as it is like "we want amendment" but nothing else. No blueprint, no resoning, no logic and no specific point except that same things shouting again and again like, gotra, village bhaichara, kheda etc etc.

 

[sjakhars]

Amendment seekar as extremists!

So you mean to say that the amendment seekars are extremists? Well, if you think so, we can't help in that but the word extremist coming from people who oppose to the use of word "bashing" doesn't really look appropriate. Also, you remember word "Neo-liberal" was opposed a lot by non-extremists.
I can see next coming words like "Terrorists" and "Fundamentalists", never mind though.

I can see the desperation and frustration coming out.

Vijay,
It is rather obvious that the law is going to be ineffective as far as its aim is to curb the breaking of customs. But you know, if it helps to soothe our collective ego to have a law amended, then why not. It may actually be a good thing if it defangs the extremists in the community and let the focus be on more important issues.

Totally Agree, without any single trace of doubt !

 

[kapdal]

So you mean to say that the amendment seekars are extremists? Well, if you think so, we can't help in that but the word extremist coming from people who oppose to the use of word "bashing" doesn't really look appropriate. Also, you remember word "Neo-liberal" was opposed a lot by non-extremists.
I can see next coming words like "Terrorists" and "Fundamentalists", never mind though.

Jakharji- Relax..
When did I say that amendment seekers are extremists? I said that the amendment can silence the extremists! How are these two same things!!??

It is like me asking you, do you want the amendment. You'd say yes. Then I'd say, oh you must be a supporter of honor killings if you want an amendment to the HMA. Does it make any sense?

I know some perfectly balanced people, some even non-Jats (ever heard of Madhu Kishwar?) who are in favor of the amendment. Why'd I call them extremists? Right now, I can argue both for and against the amendment with logical points. As a Jat, debating with Jats, I'd always point out the fallacies in seeking an amendment as I have done here (Law would be ineffective; the real cause of same-gotra marriages is decrease in feeling of gotra bhaichara, etc.) But if I am debating with the govt., I'd argue for an amendment (Personal law exists for other communities; the amendment doesn't contravene anyone's rights; political solution to calm down masses that are feeling aggrieved and to defang the extremists (those who misguide and provoke the masses by saying how the whole world is against us) in the community from taking over.)

 

[malikpriya]

Ghani ladai mach li is thread pe kyu rolla kar rakha hai ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,jaat comunnity ka majak bana re ho aape ,,,,,,,,,,,,ek seedhi si baat s jo jo same gotra marriage ne support kare hai unka byah unki bebe te kara do fer ye batawenge ,,,,,,,,,,,,,,ye apne baalkan k mama hai ya baap...........????

 

[kapdal]

So you mean to say that the amendment seekars are extremists? Well, if you think so, we can't help in that but the word extremist coming from people who oppose to the use of word "bashing" doesn't really look appropriate. Also, you remember word "Neo-liberal" was opposed a lot by non-extremists.
I can see next coming words like "Terrorists" and "Fundamentalists", never mind though.

I can see the desperation and frustration coming out.

This is funny in a tragic way. Seriously...

I tried to critically evaluate the one single draft put forth by Sanjay, pointing out certain issues. Then I suggested an alternative (only one so far), trying to be comprehensive with definitions and all. You may not agree with my analysis, but at least I tried. Even the above post you picked on, I was arguing with Vijay why the different surnames won't be such a legal issue!! I also think I gave a very well-intentioned suggestion that those who want the amendment need not worry about the draft, but about the strategy to go about it. Despite all this, all you see is desperation and frustration coming out... I am still wondering what am I so frustrated about that I did all of above. Hmmm............

Maybe I'd have given the right vibes by cheering Sanjay for an excellent draft and talking about the importance of a draft; keeping my analysis to myself. I guess the most important thing is to make sure you are seen as supporting the move. Don't try to actually help by doing a genuine and honest critical analysis.

 

[virj]

Would amendment also shut up neo-liberals like Jagmati Sangwan and Dr Chaudhary?

May be yes. One more point in support is it ?

 

[virj]

Jakhar Bhai,

Now, Looks like no-one oppose (or almost all support) Amendment. Lets keep working on draft and discuss how we can channel this support in right direction.

For journalist, Ravi ji mentioned earlier, we can prepare a responce team. And for Sarv khap meeting as I said lets discuss how we can extend our support to them(khaps).

Any views on this?

 

[kapdal]

Would amendment also shut up neo-liberals like Jagmati Sangwan and Dr Chaudhary?

May be yes. One more point in support is it ?

And I fully agree that we should all continue working on the draft like all of us have been doing so far. I really appreciate your excellent contribution on the draft and the clear way forward shown by you.

 

[vijay]

What a contradiction!!!!
You asked for blue print and now when it is here, you do not need it. I am sorry, we could not type it in blue fonts, though, if you want, we can change font color.

Moreover, now we have something in hand which will help us to evaluate what needs to be fixed to implement the amendment. Definitions, references, explainations will follow. Keep pointing out.

Vijay asked for a blueprint long ago in his below post.

I am posting on this thread/issue since the day one but you came to know about my STAND yesterday only. Well, i don't know when you will be having time to read my above quoted post to evaluate what i have written there. Because it seems that you just read the first line and commenting.

Any fool can write that we need an amendment to prohibit marriage within same gotra and same village. But it takes hell of a time to observe, research, analyze and to conclude the definitions of these terms.

Why don't you drop here few lines about the point i raised in my post ( as Kapil did so brilliantly ).

Definitions, references, explanations are supposed to figure out before the implementation.

Be happy if you want to do it otherwise.

Now, even critical analysis of the terms used in the draft is taken as frustration.

Wow, What a brilliant Draft. Its an excellent draft without any trace of confusion, doubts, complexity.

Lets get it done.

Cheers !

 

[ravichaudhary]

no sarcasm please

This is a serious topic.

All members are requested to stay away from sarcasm. it derails the thread.


Go to ' mauj masti' section for that.


Please moderate yourselves, no point forcing some moderator to spend his/her energy on this.


Best regards

Ravi Chaudhary

 

[virj]

And I fully agree that we should all continue working on the draft like all of us have been doing so far. I really appreciate your excellent contribution on the draft and the clear way forward shown by you. Let's do it! Bravo! Kudos! Woo-hooo!

Thank you thank you. I am also so happy for you that at last you realised the importance of this important topic and I can see you are contributing toward it fully.

Bravo ! Keep it up. Other should follow suit (including myself). You have set an example. I promise more contribution in future.

 

[ravichaudhary]

I am posting on this thread/issue since the day one but you came to know about my STAND yesterday only. Well, i don't know when you will be having time to read my above quoted post to evaluate what i have written there. Because it seems that you just read the first line and commenting.

Any fool can write that we need an amendment to prohibit marriage within same gotra and same village. But it takes hell of a time to observe, research, analyze and to conclude the definitions of these terms.

Why don't you drop here few lines about the point i raised in my post ( as Kapil did so brilliantly ).

Definitions, references, explanations are supposed to figure out before the implementation.

Be happy if you want to do it otherwise.

Now, even critical analysis of the terms used in the draft is taken as frustration.

Wow, What a brilliant Draft. Its an excellent draft without any trace of confusion, doubts, complexity.

Lets get it done.

Cheers !

How is your sarcasm helpful?



Ravi Chaudhary

 

[vijay]

How is your sarcasm helpful?



Ravi Chaudhary

Ravi Ji,

I expected some constructive thoughts from the Respected Moderator whose post i quoted.
Sarcasm invites sarcasm.

Regards