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Outlawing Oral DivorceReform through Court Decree?

K G Kannabiran

The Allahabad High Court judgment on triple talaq not only

trivialises the justice system but attempts reform of a minority

community's personal lawsa responsibility it cannot arrogate to itselfSuch reform can only come about through consensus within the

community.

THE judge, a non-elected person sometimes

has to play the role of a legislator. His

independence is assured to him so that he

may with a sense of detachment look at

issues arising before him in an objective

manner and in the assessment ensure that the

process of arriving at a decision is equally

fair. Implied in 'fairness' is also a sense of

propriety, an obligation to deal equally with

all minorit y communi ties who live under theConstitution. The independence granted to

the judges and judiciary is not to be used

in a wreckless and irresponsible manner.

The sentinel on the Quivive cannot turn himself

into a bandit on the highway. Nothing the

court or judge says or docs should savour

of prejudice, w him or fitfulness. Whatever

changes are to be brought about in society

by the judiciary have to be done without

violently rending the custom or tradition

asunder. They cannot assume that they have

the authority to grant special leave to start

an Indian revolution! This is more so where

there are minorities who are living underthreat and are likely to cling to what we

consider their outmoded and out of date

customs and rules which govern their personal

laws as an assertion of their identity.

Look at the Tilhari judgment: By outlawing

oral divorce he has left the Muslim male

without any way of-getting a divorce. As a

judgment the effect it is li ke ly to have on

earlier oral divorces has not been taken into

reckoning. The woman in question lost her

one unit of land to which she would be

entitled if the divorce had been upheld. The

husband's share cannot be declared as surplus

under the present dispensation. Above all the

judgment tr ivia lised the justice system by

gross impropriety. The issue of divorce was

not directly before the judge at all. There

have been many Hindus who produced

collusive decrees of divorce for saving

properties from the land reform laws. In none

of these cases has the constitutional validity

of forms of divorce prevai ling in the personal

laws been questioned.

Judge Tilhari like many Hindus feels that

Muslims are backward and they need to be

reformed. While the first may be true it is

not judges from the Hindu community whoare competent to bring about this change. We

must not forget that reforms wi th in the Hindu

community were brought about by the social

reform movements within the Hindu faith.

To have a proper perspective on issues like

these, some history of codi fyin g Hind u law,

the resultant laws and their secular character

and the judicial policy and its breach needs

to be examined.

CODIFICATION OF HINDU LAW

The Hindu Wi dow's Remarriage Act, 1856

removed the disabilit ies imposed on widows

on remarriage; The Hindu Inheritance

(Removal of Disabilities) Act, 1928 was

passed to remove the disabilit ies to inheritance

based on disease, deformity or certain types

of mental or physical defects; The Women's

Right to Property Act, 1937 improved to

some extent the position of the Hindu women

in the matter of succession. All these

legislative interventions were made after

deliberation with and within the Hindu

community. By 1941 several amendments to

women's right to property were pendingconsideration. The government of India by a

resolution dated January 25, 194 1, appointed

a committee consisting of B N Rau as

the chairman and Dwark anath Mit ter ,

J R Gharpure, Rajaratna Vasudeo Vinayak

Joshi as members and their brief was to

examine the various bills to amend the Hind u

Wom en' s Right to Property Act and to suggest

such amendments as would resolve doubts

and remove any injustice that may have been

done by the act to the daughter. They were

also to examine and advise on the amendment

to Hindu Law of Inheritance, a bill promoted

by K Santhanam and Hindu Women's Rightto Separate Residence and Maintenance Bil l

introduced by G V Deshmukh. All amend

ments were introduced by Hindu members

of the central legislature.

The committ ee examined the question and

was of the opinion that the varied schools

and systems of Hindu law need study and

an attempt should be made to codify Hindu

law. The two draft bills on inheritance and

marriage were however introduced and they

were referred to ajoint committee. The report

of the joint committee suggested that H indu

Law Committee chaired by justice B N Raube resuscitated and encouraged to complete

the task of bringing about a comprehensive

Hindu Code as suggested by them.

Acco rdingly by resolut ion dated January 20,

1994 the Hindu Law Commi ttee was revived.

T R Venkatrama Sastri was included in the

place of R V V Joshi, that being the only

change.

This committee set about its work in right

earnest and prepared a draft code with an

explanatory note and published it on August

5,1944. The explanatory statement said "one

of the objects of the Committee is to evolve

a uniform Civil Code of Hindu Law which

wi l l apply to all Hindus by blending the most

progressive elements in the various schools

of law which prevail in the different parts

of the country. The achievement of uniformity

necessarily involves the adoption of one view

in preference to others on particular matters.

The committee desire that the code should

be regarded as an integral whole, and that no

part should be judged as if it stood by itself."

The Hindu Law Committee travelled all

over the country meeting wi th a cross-section

of the people, recording their views andminuting the discussions and the final draft

was ready by February 1947, The bi ll was

introduced in the constituent assembly

(legislative) which in turn referred it to the

select committee in 1948. B R Ambedkar

the then law minister formed a committee

consisting of himself as chairman,

K Y Bhandarkar, G R Rajagopal of the

min ist ry of law and S V Gupte of the Bombay

bar to examine the draft. The committee

revised the bill without making substantial

changes. Before the bill came up for

consideration before the constituent assembly

(legislative) the publicity it received gaverise to a lot of controversy among the members

of the publ ic There was a cry of rel igion

being in danger. Ambedkar, the democrat he

was, convened a conference in 1950 to which

he invited scholars, well read persons and

pundits from Benares and other places to

canvas support for the steps initiated towards

codifying the Hindu law. He held another

conference at Trivandrum to consider whether

the Marumakathayam and Aliyasanthana

laws could be made part of the proposed

Hindu Code. Despite all these efforts the

draft code met with rough weather when it

came up for consideration in the assemblyon February 5, 1951. The passage was blocked

by amendments galore. The debate which

was inconclusive was taken up in September

1951. The differences could not be ironed

out. After the 1952 elections the provisional

parliament lapsed and regular parliament

came into existence and the Hindu Code

Bi ll lapsed. It was foll owed by the four

piecemeal legislation codifying certain areas

of Hindu law.

As an aside, it would he interesting to

know the reasons for opposing equal rights

to women in property;

(a) She always gets a substantial share in

the family property in the shape of jewe ller y

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and as dowry at the time of her marriage;

(b) if will introduce a stranger into the

family, i e, the son-in-law and this is very

undesirable;

(c) it will lead to friction between the

brother and the sister;

(d) it will lead to further fragmentation of

the estate;

(e) as her affections are transferred to her

husband's family it is not desirable to give

her a share in her father's property.The committee set up in 1941 continued

its work t i l l 1948; the Draft Hindu Code was

pending in the central legislature, the

constituent assembly (legi slative) and fina lly

lapsed in 1952 after the firs t Lok Sabha came

into existence. During the pendency of the

code what is worth noting is the anxiety of

the persons concerned particularly Ambedkar

for securing a consensus on the necessity for

a Hindu Code Bi ll . Even the introduction

of a clause prohibi ting bigamy was opposed.

The reaction as recorded by historythe

prolonged deliberation, the publicising of

the proposals, the convening of conferences

of scholarsall these indicate the respect for

the feelings of the concerned and above all

the understanding they had of the nature and

character of what goes by the name of personal

law and the hold these rules of personal and

domestic relationship have on the people,

that are governed by these rules. These rules

have been seen as part of rel igion. This also

illustrates the difficulties faced in bringing

about even a uniform Hindu Code to govern

a professedly homogeneous community.

The four acts which were piloted with skill

by Pataskar and are governing Hindus todayare they secular at all or are they basically

Hindu? Can they be then pronounced

unconstitutional?

UNCONSTITUTIONAL?

Under the Hindu. Marriage Act, 1956

conversion from Hindu religion immediately

provides a ground for divorce for the other

spouse. The question of reconcil iation dur ing

the pendency of proceeding as a step to avert

divorce is of no avail and jud ic ia l separation

as an interim measure to enable the separated

couples to rethink their stand and cometogether is not available either. Difference

in religion creates incompatibility and the

statutory provision encouraging divorce is

both anti secular and is in derogation of

Article 25.

Under the Hindu Adoption and

Maintenance Act one must be a Hindu to be

able to adopt and the person capable of being

adopted should also be a Hindu. Thus the

principle that persons belonging to two

religions can live together is not even

tolerated.

Under the Hindu Minority and

Guardianship Act ceasing to be a Hindu

deprives either spouse to claim guardianship

over the children. The law of succession

though it does not deprive right to succession

to a convert. the children and the descendants

of the convert are denied the right to succeed

to the property of the Hindu relative unless

such children or descendants are Hindu when

succession opens.

These are certainly not secular nor do they

permit all the freedom of religion which

Article 25 visualises. It is well to recognise

that whatever improvements we haveconsented to is with in the Hind u framework.

In fact the community has progressed so

much that it is possible now for both the

spouses to secure a divorce on the ground

that the marriage has irretrievably broken

down. Al l these measures were brought about

because of the compulsions of modern life.

These were brought about by the Hindu

majority and not at the suggestions of any

outside community. No other community

from outside tried to influence the course of

reform within the Hindu community.

Courts have not t i l l now struck down any

provi sion or rule either enacted or otherwise

in any personal law. In the first few years

of the Constitution the state enactments

prohib iti ng bigamy came in for challenge in

some state high courts. One such case came

up in the Bombay High Court when Chagla

was the chief justice, The Bombay Prevention

of Bigamous Marriages Act was under

challenge. The argument was that a son is

an absolute necessity if a Hindu is to attain

salvation and that therefore polygamy was

an integral part of the Hindu religion; one

becomes polygamous in pursuit of a son and

not for any other reason. Secondly, only theHindu community has been picked up for

this discriminatory treatment and the Muslims

are left free to practise polygamy. "It is only

with considerable amount of hesitation that

I would like to speak about Hindu religion",

that is how he began the discussion on the

questions raised.

On the issue of discrimination Chagla held,

'The institution of marriage is differently

looked upon by the Hindus and the Muslims.

Whereas to the former it is a sacrament, to

the latter it is a matter of contract. That is

also the reason why the question of dissolution

of marriage is differently tackled.' WhileMus lim law admits of easy divorce, Hindu

marriage is considered indissoluble and it is

only recently that the state passed legislation

permitting divorce among Hindus. The state

was also entitled to consider the educational

development of two communities. One

community might be prepared to accept and

work for social reform, anothennay not be

yet prepared for it; and Article 14 docs not

lay down that any legislation that the state

may embark upon must be of an allembracing

character. The state may bring about

legislation by stages and the stages may be

territorial or they may be community wi se."

Gajendragadkar who was later to be the chief

just ice of Indi a articulated more or less the

opin ion of Chagla and both of them held that

personal laws do not come within the meaning

of Maws inforce' under Article 13(1) of the

Const ituti on. The view that personal laws of

communities are beyond the pale of the

Constitution has been holding the field at

the apex level from the beginning of the

Constitution.

The Supreme Court towards the end of

1979 had before it the question whether thehigh court was right in holding "that the strict

rule enjoined by the Smriti writers as a result

of which sudras were considered to be

incapable of entering the order of 'yati' or

'sanyasi' has ceased to be valid because

of the fundamental rights guaranteed under

part III of the Constitution.

The learned judges of the Supreme Court

overruled the principle referred to above. In

their opinion the learned judge of the high

court failed to appreciate that part II I of the

Const itution does not touch upon the personal

laws of the parties. In apply ing the personal

laws of the parties, he could not introduce

his own concepts of modern times but should

have enforced the law as derived from

recognised and authoritative sources of Hindu

Law, i e, Smritis and commentaries referred

to, as interpreted by various high courts,

except where such law is altered by any

usage or custom or is modif ied or abrogated

by statute. Abrogating personal laws was

ne ve r considered as falli ng wi thi n the

ju ri sd ic tion of the court. It was always felt

that scriptures and religious texts are not

subject to judicial review.

Shah Banu interpreted Quran and thatbecame objectionable. Shah Banu came up

for hearing at a time the major minority

community was already under threat. At the

time of arguments the stand of the government

on the question of Muslim personal law as

expressed in the parliament by Ram Niwas

Mirdha, the then minister of state for home

affairs, was brought to the notice of the

judges. The debate was on the provisions of

Cr PC 1973. He said "We would not like

to interfere with the customary law of Muslims

through the Criminal Procedure Code. If there

is a demand for change in the Muslim personal

law, it should actually comb from the M us limcommunity itself and we should wait for the

Muslim public opinion on these matters to

crystallise before we try to change this

customary right or make changes in their

personal law."

When this part of the debate was broughtto the notice of the court the response was:

We understand the difficulties involved inbringing persons of different faiths andpersuasions, on a common platform. But, abeginning has to be made if the Constitut ionis to have any meaning. Inevitably the roleof the reformer has to be assumed by thecourts because it is beyond endurance ofsensitive minds to allow injustice to besuffered when it is so palpable.

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No person who has some acquaintance

with the principles and practice of democracy

would assign the role of a reformer to a judge.

One may not have serious differences with

the end result but that cannot be permitted

to be secured by perverse means.

More than interpreting Quran the judges

should have indicated their understanding of

what they mean by a uniform civil code.

When we are talking of a uniform civil code

it is necessary to define our terms. By uni formciv il code do we mean similar but different

statutes covering the field now covered by

the personal laws of the respective minorit ies7

Or is it a common civil code where all the

communities will forgo/ their religious and

ethnic identities and will be governed by one

statute covering all the personal laws? Are

all these going to be achieved by a democratic

process of working out a consensus? Orisit

going to be statutorily imposed? Or is it

going to be judicially declared?

When we talk about reform we ordinaril y

understand it as an act of transformation for

the better. The old, the outdated is replaced

by a new one. The reformer has to delineate

the alternative, etc, for people to understand

what the alternative is like. This effort should

lead to a public debate. The court has neither

the equipment nor is it suited to don the

reformist role . Thus when the Supreme Court

donned the reformist role it ended up by

pitt ing the Code of Crimina l Procedure against

the Quran and interpreted Quran in terms of

the Criminal Procedure Code. This was

objectionable. Judge TiIhari 's approach is no

better. Like the Queen in Alice in Wonderland

wi th one stroke he seems to have struck downSha' riat Act, 1937 and the oral ta laq.

All of us agree that we should abolish the

caste system which has given rise to almost

all the problems we are facing today. There

was an excellent occasion to deal with this

question squarely in the Reservations case

(Indira Sawhney vs Union of India). In fact

there is an elaborate discussion on the evils

of caste system and the periodical revolts

against it throughout history. The Supreme

Court could have declared the caste system

as wholly invalid. After all sensitive minds

should be equally uneasy of the iniquities

and the injustices perpetsated by the castesystem. There could not have been a better

occasion for the court to don the reformer's

role. But till now the caste question was

never addressed in terms of the Constitut ion

by the courts.

The debates in the Constituent Assembly

inform us of the apprehension of the minority

communities and dalits at the time when the

Constitution was on the anvil and the

assurance extended by the leaders of the

majority community. Secularism and politics

of a secular nature were assured to the

members. We were all for a secular polity.

Imp lied in the term secularism is not just a

legal commitment to formal equalit y, it also

recoghises the cla im of religious and other

minorit ies to a right to equality. It is a right to

he treated as an equal in all respects with the

majority community including with regard

to share in the power structure. This equal ity

in content who lly receded to the background.

The majori ty community has assumed the role

of a dominant community, a conqueror's role.

The minority's resistance to reform and a

reluctance to change its outmoded ways has

to be seen as a symbol of resistance to thedominant culture. The increasing number of

Musl im youth rushing with skull caps on into

the mosque morning, noon and evening

appears is more like a political statement of

a community under threat than a mere growth

of fundamentalism. The latter may very we ll

be the means by which the community has

decided to fight the dominant culture's design

to override the minorit y and its identity. It

is the vindication of their right to be different

and a visible expression of their otherness.

In the present climate a few more judgments

like judge Tilhari's may lead to situations

which may wel l become irretrievable. Some

may welcome such decisions on the groundthat it is, after all, just. As Cordozo puts it

so well 'That might result in benevolent

despotism if the judges were benevolent

men. It would put an end to the reign of law."

The cabinet reshuffle by Veerappa Moily was a political rather than an

administrative exercise.

DISSIDENT activities that have characterised

the Congress Party in Karnataka did subside

somewhat after the implementation of the

Jagannath Mishra plan of january 1994.

Mishra met the various dissident factions

and promised them a share of the cake of

power. As a first step to curb the dissident

act ivi ty, Rajshekar Murthy, the leader of the

powerful Lingayat faction and a contender

for the post of chief minister, was promoted

to become an MP through the Rajya Sabha.

S M Krishna, the leader of the Vokkaliga

faction, was continued as deputy chiefminister in spite of the wranglings between

him and the chief minister. The leaders of

both the dominant castes were assured that

their followers would be provided sufficient

amount of places in the ministerial reshuffle.

Hence when Veerappa Mo il y announced his

46-member minis try on Apr il 14, the largest

the state has ever had, it was perceived as

a political rather than an administrative

exercise.

One out of every five Congress(I) members

in both the houses have found a berth in the

cabinet. Out of 210 members in the legislature

(180 in the assembly and 30 in the council),46 have become ministers. The represen

tatives of Rajshekar Murthy, S M Krishna

and the KPCC president Krishna Rao factions

have been accommodated with a view to

satisfy the dissidents. The chief minister has

claimed that the mini stry is representative of

all castes and regions of the state.

Caste groups are well-represented. The

two dominant groups of Lingayats and

Vokkaligas have received more than what

they had bargained for. There are six

Lingayats and eight Vokkaligas in the

ministry. The brahmins have two

representatives. In the panchayat elections a

sizeable number of SCs had abandoned the

Congress to jo in the Janata Dal . To win them

over to the Congress, six SC and three ST

members have been inducted into the

ministry. Bangarappa, ex-chief minister of

Karnataka and president of Karnataka

Congress Party, through his massive public

rallies, has made inroads into the tradit ional

Congress votes of the BCs Twelve members

of the BCs have been accommodated in the

ministry by Moily to counteract the influence

of Bangarappa. There are two Reddys, one

Bunt, three Mus lim s, one Kodava and one

Chnst ian in the minist ry. The speaker belongsto the Lingayat community wh ile the deputy

speaker comes from a scheduled caste.

The chief minister has observed that all

distr icts have been given representation His

own district el South Kanara has been

favoured with five ministers. There are four

miqislers each from Gulbarga, Bangalore

(city) and Bangalore (rural). While there are

three ministers each from Chitradurga.

Tumkur, Mandya and Dharwad, Bijapur,

Kolar, Hassan. Kodagu and Chikmagalur

have tw o representatives each. Distr icts of

Mysore, Uttara Kannada, Shimoga. Bidar.

Raichur, Bella ry and Belgaum arc representedby one person each. Moily is expected to

accommodate the other legislators to various

boards and corporations as chairpersons

The cabinet has twocontrovers ial ministers

"Anyone under cloud should not continue

in the cabinet", Moily had observed when

S Ramesh, the minister for culture, was forced

to resign from the Bangarappa cabinet for

his involvement in the firing at Kunigal

duri ng the by-elec tion of Karnataka assembly

in which one person was killed and three

were injured. Moily had also ordered an

inquiry against Ramesh for his alleged

involvement in land-grabbing under the

Ashraya programme. Surprisingly, Ramesh

Economic and Poli tica l Weekly June 18, 1994 1511

Karnataka Cabinet Reshuffle: UnviableAmbrose Pinto