In this blog post, Anubhav Pandey talks about the Jewish law of Marriage & Divorce in India.
Jewish Community in India
There are three prominent Jewish communities across India.
- Jews from coastal Kerala known as Cochin Jews and Paradesi Jew.
- Jews from Bombay region are known as Bene Israel and Baghdadi.
- The Jewish community in the North East.
The jews first entered India through Kerala as traders trading in ivory, spices and pepper. It was during the time of King Solomon the migration began. The major migration can be dated around 70 A.D during the Roman takeover of Judea.
The jews in Indian subcontinent went through a series of hardships and persecutions from time to time.
- In the 17th century, the Portuguese occupied Cochin and the Jews were persecuted in large number. In 1660, the Dutch defeated the Portuguese and this revived the Jewish community in Indian subcontinent once again.
- Similarly, in the Bombay region, the Bene Israel Jewish community lived since long ago and even spoke Marathi. The Baghdadi Jews arrived in Bombay during the 18th century.
After India gained Independence, the Jewish population began migrating to Israel, England and USA.
Jewish Law in India – Origin and Development
The modern Jewish law is an adaptation of the Mosaic and Talmudic law
Jewish legal system traces its history of origin in the divine belief in God. According to the Jews, the law and morals dictates were revealed by God in the wilderness of Sinai, to Moses who transmitted it to his people.
The said law is written down in first five books of the Old Testament often together called Torah (Genesis, Exodus, Leviticus, Numbers and Deuteronomy). The modern Jewish law is an adaptation of the Mosaic and Talmudic law. That is a collaboration of divine and evolved law.
Jewish Law of Marriage and Divorce in India
- The uncertainty which prevailed within the Jewish community long ago still exists because of lack of codified laws. The rules of marriage and divorce are set according to their customary ritual which in itself differs from one Jewish community to the other.
The Jewish law is derived mostly from Mosaic law through analogy and deduction.
It includes norms and usages which have become part of the law. The law also includes new regulations which were enacted by religious and civil authorities to meet the existing changes.
Another source of law is Talmud –
The Talmud defines and regulates the forms of contracting and dissolving of marriage, marital rights and duties and other innumerable issues regarding marital bond and tie-ups.
- Though the institution of marriage in the Jewish community is founded on the Biblical injunction and has a religious basis, the modern Jewish interpretation of law is based on monogamous marriage and a dissoluble contract.
- The 3 important requirements of Jewish marriage are-
- Free consent
- Mental capacity
- Legal age
No marriage can take place without the consent of both parties and a marriage without consent is void. Since, consent is one of the key ingredients of marriage, the idiot, lunatic, who are incapable of giving their free consent, are barred from entering into the bond of marriage.
Free consent, mental capacity and legal age are not the only three decisive factors. The three is a must but along with these three factors, there are other factors also which compliments the three essential conditions required to enter into the bond of marriage.
Importance of Custom and Rituals in Marriage Among Jews
It is mandatory to perform the ceremony of betrothal and nuptial for the marriage contract to have legal validity. The groom is required to give the bride money, called as “Kaseph“, another object of equal validity that too in present of two witnesses. This ceremony is called “Kaseph Kiddushin”.
- The ceremony of betrothal includes the certain pronouncement of words by the husband. This requires that a benediction is pronounced at the betrothal invoking the Lord’s praises and alludes to the law that the betrothed parties are not permitted to enter into a conjugal relationship before nuptials.
- The nuptial are called Chuppa or Nissuin and comprises the ritual of the groom taking the bride from her natal home to the bridal chamber. The ritual indicates that now she is under matrimonial authority. After the ceremony of nuptial, the marriage is considered to be valid irrespective of whether the marriage was consummated or not.
Before the nuptial, the groom is required to make a commitment in writing which would entitle the wife to receive a certain sum from his estate in the case of his death or a divorce and is called Ketubah. This is an economic safeguard just as mehr in the case of Muslims. If the husband divorces his wife arbitrarily this will serve as a token for the wife for her protection.
Mutual Duty of Husband and Wife toward Each Other
In Jews, like all religion, there exists a mutual duty of husband and wife towards each other. The ceremonies spell out in detail the mutual rights, duties and obligation between the husband and wife towards each other.
The husband’s duty towards his wife is primarily to maintain her according to his status in life.
- To provide her with food, clothing, and dwelling to establish conjugal cohabitations with her.
- To provide her suitable medical care and nursing when she is sick.
- To protect her and to ransom her in the eventuality of her abduction and captivity and to provide for her burial in case of her death.
Similarly, the husband is entitled to the wife’s earning, to share her inheritance in property, donation, gifts except where it was given to her on the sole condition that it will be used by her only.
When the wife renounces her claim to be supported by her husband, she acquires control over her own earnings and it could be retained by her exclusively, free from husband’s claim.
In Jewish marriage, it is the duty of the wife to go where the husband is domiciled.
- The duty of a wife is to take care of the household.
- The wife will follow her husband to every place except she will not be obliged to follow him to a country where a different language is spoken.
Divorce Under the Jewish Personal Law
The marriage could be dissolved by the death of either party to the marriage or by a divorce. Legal forms of divorce are a decree of divorce to the wife upon a petition filed by her, a decree of divorce enforced by a competent court in the interest of public morality and also divorce by mutual consent.
Under the Jewish law, a husband can divorce his wife on the following grounds –
- When the wife is adulterous –
The Jewish personal law even provides for this provision when the husband develops a suspicion that wife is committing the crime of adultery. Just like all personal law, adultery is considered as a solid ground for divorce under the Jews personal laws.
- When wife violates public morality –
That means when the wife does an act which is considered as immoral in the eyes of the public. This is a ground for divorce under the Jewish personal law.
- Change in religion –
When wife changes her religion i.e. converts herself from Jew to any other religion, this becomes a ground for divorce. Also where wife disregards the ritual law in the management of the household.
- On the refusal of conjugal rights during a whole year.
Where a wife does not allow her husband to fulfill his conjugal rights.
- Unjustified refusal to follow him to another domicile.
- Insulting her father in law in front of her husband or insulting the husband in front of others.
- When wife contracts some incurable disease which might be dangerous for the husband, such as leprosy.
The wife could also obtain divorce from her husband on the following grounds –
- A loathsome chronic disease which the husband contracted after marriage.
This is a valid ground for divorce in almost all personal laws. Catching a disease such as leprosy is a valid ground for divorce in the Jewish personal law as well as other personal law including Hindu or Muslim.
- Cruelty towards wife is one of the major ground on which wife can seek a divorce from her husband.
- Another ground for divorce is when the husband changes his religion.
- Immoral behavior of the husband is also a valid ground for divorce under the Jews personal laws.
- When husband forfeits to support his wife and dissolves himself from worldly affairs.
- Having committed a crime which compelled him to leave the country.
- Habitual drunkenness.
Important Judicial Decisions on Jewish Law of Marriage and Divorce in India
Due to lack of any codification and several intricacies, the British court found it difficult to interpret the Jewish marriage and divorce law in both substantive and procedure wise.
In Mozelle Robin Solomon V Lt. Col. R.J. Solomon reviewed the entire law on the subject of marriage and divorce among Jews. The old Mosaic law with its Rabbinical interpretation and provision and the modern legislation. It was held that a ground which would entitle a Jewish wife to obtain divorce also entitled her to reside separately from her husband and claim her right to be maintained by him.
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 Agnes, Flavia, “Family Laws and Constitutional Claims”, Volume I, Oxford University Press, New Delhi, 2011