Applicability of Henry Maine's Theory With Respect to the Issue of Triple Talaq
Sir Henry James Sumner Maine (August 15, 1822 February 3, 1888) was a
distinguished British jurist and legal historian renowned for pioneering the
study of comparative law, primitive law, and anthropological jurisprudence. He
is most notably associated with the British Historical School of Jurisprudence.
Maine held the position of Professor of Civil Law at the University of Cambridge
and also served on the Council of the Governor General of India from 1863 to
1869, significantly contributing to the codification of Indian law.
His seminal work, "Ancient Law: Its Connection with the Early History of
Society, and Its Relation to Modern Ideas" (1861), is highly acclaimed. In this
work, Maine drew insights from Roman law, various European legal systems, Indian
law, and primitive law to explore and define legal concepts.
Maine's contributions are exemplified by works such as "Ancient Law" (1861),
"Village Communities in the East and West" (1871), "Lectures on the Early
History of Institutions" (1874), and "Dissertation on Early Law and Custom"
(1883). His approach involved comparing legal institutions across different
communities, leading to the formulation of a theory on the evolution of law. His
methodology represented a significant advancement over the historical school and
yielded valuable insights through a historic comparative approach.
Beginning his career as Professor of Civil Law at the University of Cambridge at
the age of twenty-five, Maine's career path included serving as a law member in
the Council of the Governor General of India from 1861 to 1869. This engagement
offered him a unique opportunity to study the Indian legal system. Subsequently,
he occupied the chair of historical and comparative jurisprudence at Corpus
Christi College, Oxford, from 1869 to 1877. He later held the prestigious
position of Master of Trinity Hall, Cambridge.
Sir Henry Maine, a strong advocate of the Patriarchal theory, posited that the
fundamental unit was the family, with the highest male ascendant exerting
authority. He elaborated that families formed houses, houses formed tribes, and
tribes constituted the commonwealth. He supported this theory with references
from the Old Testament, Brotherhoods of Athens, Patria Potestas of Rome, and the
Indian joint family system. Maine emphasized the absolute supremacy of the
eldest male parent within the household, extending to matters of life, death,
and control over children, wives, and property.
Maine's Patriarchal theory hinged on three primary features: male kinship,
permanent marriage, and paternal authority. He maintained that primitive society
consisted of aggregations of families, not isolated individuals. This theory
underscored the perpetuity of family groups and the dominant position of the
Maine's theory also outlined the transformation of the family-based society into
civil communities with a central authority figure. However, this theory has been
subject to various criticisms:
Criticism of Henry Maine's Patriarchal Theory
Critics contend that the origin of the state cannot be solely attributed to the
family, as multiple factors like religion, force, and political necessity played
pivotal roles. Moreover, some scholars argue that matriarchal family structures,
rather than patriarchal ones, were foundational to the state's development.
Edward Jenks, for instance, proposed that tribes, not families, marked the
state's inception, drawing on his studies in Australia and the Malaya
Furthermore, Maine's theory oversimplifies the origin of the state by
exclusively attributing it to the family structure. Critics highlight that while
a father's authority over children is temporary, the state's authority over its
population is enduring.
Triple Talaq, or Talaq-e-Biddat, is a form of divorce practiced in Islam where a
husband could unilaterally divorce his wife by pronouncing talaq three times.
This practice is not endorsed in the Quran. Traditionally, Islamic jurisprudence
considered triple talaq a disapproved yet legally valid form of divorce.
Changing global social dynamics prompted reforms in Islamic divorce laws from
the early 20th century onward.
In India, Muslim couples are not mandated to register their marriage with civil
authorities. However, the introduction of the Muslim Women (Protection of Rights
on Marriage) Act, 2019, criminalized instant Triple Talaq and provided women
with legal protections against whimsical divorce pronouncements.
The practice of Triple Talaq, while rooted in tradition, has been deemed illegal
and unconstitutional due to its gender discriminatory nature. Maine's theory of
patriarchy, though historically relevant, faces limitations in the context of
today's progressive world. Reforms like the Muslim Women (Protection of Rights
on Marriage) Act reflect society's evolving norms and the pursuit of gender
equality. The intersection of legal philosophy and social change underscores the
need for adaptive legal systems.
Law Article in India
You May Like
Legal Question & Answers