Outlawing Oral Divorce

Reform 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 itself Such 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 minority communities who live under the Constitution. 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, whim 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where there are minorities who are living under threat and are likely to cling to what we consider their outmoded and out of date customs and rules which govern their personal laws as an assertion of their identity.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 likely 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 trivialised 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 prevailing 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 who are competent to bring about this change. We must not forget that reforms within 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 codifying Hindu 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 Widow's Remarriage Act, 1856 removed the disabilities imposed on widows on remarriage; The Hindu Inheritance (Removal of Disabilities) Act, 1928 was passed to remove the disabilities 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. A l l these legislative interventions were made after deliberation with and within the Hindu community. By 1941 several amendments to women's right to property were pending consideration. The government of India by a resolution dated January 25,1941, appointed a committee consisting of B N Rau as the chairman and Dwarkanath M i t t e r , J R Gharpure, Rajaratna Vasudeo Vinayak Joshi as members and their brief was to examine the various bills to amend the Hindu Women'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 Right to Separate Residence and Maintenance Bill introduced by G V Deshmukh. A l l amendments were introduced by Hindu members of the central legislature. The committee 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 Hindu Law Committee chaired by justice B N Rau be resuscitated and encouraged to complete the task of bringing about a comprehensive

H i n d u Code as suggested by them. Accordingly by resolution dated January 20, 1994 the Hindu Law Committee 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 w i 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 with a cross-section of the people, recording their views and minuting the discussions and the final draft was ready by February 1947, The bill 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 h i m s e l f as chairman, K Y Bhandarkar, G R Rajagopal of the ministry 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 b i l l came up for consideration before the constituent assembly (legislative) the publicity it received gave rise to a lot of controversy among the members of the public There was a cry of religion 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 assembly on 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 B i l l lapsed. It was followed 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 jewellery

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and as dowry at the time of her marriage; (b) if w i l l 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 w i l l 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 till 1948; the Draft Hindu Code was pending in the central legislature, the constituent assembly (legislative) and finally lapsed in 1952 after the first 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 B i l l . Even the introduction of a clause prohibiting 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 religion. 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 today are 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 reconciliation during the pendency of proceeding as a step to avert divorce is of no avail and judicial separation as an interim measure to enable the separated couples to rethink their stand and come together 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 H i n d u A d o p t i o n 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 H i n d u M i n o r i t y 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 have consented to is within the Hindu 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. A l 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 till now struck down any provision or rule either enacted or otherwise in any personal law. In the first few years of the Constitution the state enactments prohibiting 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 the Hindu 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.' While Muslim 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 wise." Gajendragadkar who was later to be the chief

justice of India articulated more or less the opinion 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 Constitution. 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 the high 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 I I I 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 I I I of the Constitution does not touch upon the personal laws of the parties. In applying 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 modified or abrogated by statute. Abrogating personal laws was never considered as falling within the jurisdiction of the court. It was always felt that scriptures and religious texts are not subject to judicial review. Shah Banu interpreted Quran and that became 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 Muslim community 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 brought to the notice of the court the response was: We understand the difficulties involved in bringing persons of different faiths and persuasions, on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably the role of the reformer has to be assumed by the courts because it is beyond endurance of sensitive minds to allow injustice to be suffered 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 uniform civil code do we mean similar but different statutes covering the field now covered by the personal laws of the respective minorities 7 Or is it a common civil code where all the communities w i l l forgo/ their religious and ethnic identities and w i l l 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 ordinarily 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 pitting the Code of Criminal 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 with one stroke he seems to have struck down Sha' riat Act, 1937 and the oral talaq. A l l 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 caste system. 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 Constitution 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. Implied in the term secularism is not just a legal commitment to formal equality, it also

recoghises the claim of religious and other minorities 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 equality in content wholly receded to the background. The majority 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 the dominant culture. The increasing number of Muslim 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 well be the means by which the community has decided to fight the dominant culture's design to override the minority 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 well become irretrievable. Some may welcome such decisions on the ground that 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."

Karnataka Cabinet Reshuffle: Unviable

Ambrose Pinto The cabinet reshuffle by Veerappa Moily was a political rather than an administrative exercise.
DISSIDENT activities that have characterised Congress to join the Janata Dal. To win them the Congress Party in Karnataka did subside over to the Congress, six SC and three ST somewhat after the implementation of the members have been inducted into the Jagannath Mishra plan of january 1994. ministry. Bangarappa, ex-chief minister of Mishra met the various dissident factions Karnataka and president of Karnataka and promised them a share of the cake of Congress Party, through his massive public power. As a first step to curb the dissident rallies, has made inroads into the traditional activity, Rajshekar Murthy, the leader of the Congress votes of the BCs Twelve members powerful Lingayat faction and a contender of the BCs have been accommodated in the for the post of chief minister, was promoted ministry by Moily to counteract the influence to become an MP through the Rajya Sabha. of Bangarappa. There are two Reddys, one S M Krishna, the leader of the Vokkaliga Bunt, three Muslims, one Kodava and one faction, was continued as deputy chief Chnstian in the ministry. The speaker belongs minister in spite of the wranglings between to the Lingayat community while the deputy him and the chief minister. The leaders of speaker comes from a scheduled caste. both the dominant castes were assured that The chief minister has observed that all their followers would be provided sufficient districts have been given representation His amount of places in the ministerial reshuffle. own district el South Kanara has been Hence when Veerappa Moily announced his favoured with five ministers. There are four 46-member ministry on April 14, the largest miqislers each from Gulbarga, Bangalore the state has ever had, it was perceived as (city) and Bangalore (rural). While there are a political rather than an administrative three ministers each from Chitradurga. exercise. Tumkur, Mandya and Dharwad, Bijapur, One out of every five Congress(I) members Kolar, Hassan. Kodagu and Chikmagalur in both the houses have found a berth in the have two representatives each. Districts of cabinet. Out of 210 members in the legislature Mysore, Uttara Kannada, Shimoga. Bidar. (180 in the assembly and 30 in the council), Raichur, Bellary and Belgaum arc represented 46 have become ministers. The represen- by one person each. Moily is expected to tatives of Rajshekar Murthy, S M Krishna accommodate the other legislators to various and the KPCC president Krishna Rao factions boards and corporations as chairpersons The cabinet has twocontroversial ministers have been accommodated with a view to satisfy the dissidents. The chief minister has "Anyone under cloud should not continue claimed that the ministry is representative of in the cabinet", Moily had observed when S Ramesh, the minister for culture, was forced all castes and regions of the state. Caste groups are well-represented. The to resign from the Bangarappa cabinet for two dominant groups of Lingayats and his involvement in the firing at Kunigal Vokkaligas have received more than what during the by-election of Karnataka assembly they had bargained for. There are six in which one person was killed and three Lingayats and eight Vokkaligas in the were injured. Moily had also ordered an m i n i s t r y . The brahmins have t w o inquiry against Ramesh for his alleged representatives. In the panchayat elections a involvement in land-grabbing under the sizeable number of SCs had abandoned the Ashraya programme. Surprisingly, Ramesh

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