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Sikhs and Personal Law
Literally, the term seems to refer to the law concerning matters of personal nature. Use of the term in this sense, though correct to some extent, is not very proper and accurate, because it does not cover all the personal jural relations of the individuals. For example, personal obligations arising out of the private agreements and transfers are not governed by these laws. Besides, personal law of Hindus and Muslims also deals with public, religious and charitable endowments and public wakfs, which are not matters strictly of personal nature.
After the Roman Empire was overthrown in the 5th century, tribe after tribe settled in the territories where hitherto Roman Law had prevailed. Each tribe retained its own tribal law, and the territorial law applicable to all persons living within that area ceased to apply. The basis of law changed from territorial to personal, as each tribe lived under its own law. Thus, the system of personal law came into being. There were, of course, exceptions to this system of personal or tribal law, as criminal law and canon law were of universal application. This system of personal law lasted there for about four hundred years.1
In India, era of personal laws emerged with the establishment of the Mughal empire in India. Prior to that, the law in India was territorial, though usage and custom too had their place, sometimes supplementing the law and sometimes even overruling it. During the whole of the British period, various Indian religious communities continued to be governed by their personal laws in their personal (family) matters.2
Personal Law, according to Cheshire, would mean law relating to personal status, and the matters which are to a greater or lesser extent governed by the personal law, are essential validity of marriage, mutual rights and obligations of husband and wife, parents and child, guardian and ward, the effect of marriage on property, divorce, annulment of marriage, legitimation and adoption, certain aspects of capacity, and testamentary and intestate succession to moveables.3 Similar description of matters governed by personal law is given by the Supreme Court of India.4 But the personal law applies to succession to immoveables also. Mulla has correctly described personal law as “the laws and customs as to succession and family relations.”5
Personal law implies that wherever a person goes, he carries his law with him. The term personal law is used in contrast to lex-loci which means a law which applies to all in a particular locality, territory or state. But one is governed by his personal law in whatever country he may be, and in matters of marriage, adoption, succession, etc., the law of the place where one is residing will not be applicable. Personal law goes with the person wherever he goes, unless and except in so far as the territorial laws of the land of his domicile override it.
In personal matters, laws in India are not territorial, but personal. There is no national or regional law pertaining to personal (family) matters. Personal law differs from community to community. It is rightly said that India is a country which abounds in personal laws. The applicability of personal law in India depends not on nationality or domicile, but on his membership of the community to which he belongs. This law would continue to govern him until he can effectively dissociate himself from his parent community by change of religion or otherwise. A person converting to another religion changes not only his religion, but also his personal law.6
Personal law is that body of laws which apply to a person or thing on the ground of his belonging to or its being associated with a particular religion.7 It has been correctly mentioned that, as far as personal matters are concerned, one cannot be just an Indian, as there is nothing like an Indian law; in these matters one has to belong to some community, one has to be a Hindu, Muslim, Sikh, Christian, Parsi, etc.8 Although each of these communities is a religious one, yet it is not necessary that their personal law is essentially religious.
As regards the application of different personal laws, the Privy Council had observed as early as 1871 :
“While Brahmin, Buddhist, Christian, Mahomedan, Parsi and Sikh are one nation, enjoying equal political rights and having perfect equality before the tribunals, they co-exist as separate and very distinct communities, having distinct laws affecting every relation of life. The law of husband and wife, parent and child, the descent, devolution and disposition of property are all different, depending in each case, on the body to which the individual is deemed to belong, and the difference of religion pervades and governs all domestic usages and social relations.”9
A Committee under the chairmanship of Warren Hastings prepared a scheme for judicial administration on 15th August, 1772. Article XXIII of this (Warren Hastings’) plan provided that in suits regarding inheritance, marriage, caste and other religious usages and institutions, the Law of shastras to the Hindus and Laws of the Koran to the Mohamedans should be applied. Later on, it was provided that on questions not covered by the provisions of Hindu Law or Muslim Law, principles of justice, equity and good conscience may be applied. The principles of English Law were invoked and applied by the judges in exercising other powers under these guidelines. Reiteration of the plan of 1772 as to the application of different personal laws is available in a piece of legislation passed exactly a hundred years later, i.e., the Punjab Laws Act 1872. Section 5 of this Act provided that rule of decisions in questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partition or any religious usage or institutions shall be Mohammden Law in cases where parties are Mohammedans and the Hindu Law in cases where parties are Hindus.
The Hindu Community has been the recruiting ground of Sikhs right from the beginning. These followers of the Guru (Sikhs) had continued with all their existing customs and traditions in their social and cultural affairs. So, it was but natural that Hindu Law continued to be applicable to them. Theoretically, Hindu Law is of divine origin and, therefore, fixed and immutable. Gradually, this early notion was modified and the conception of positive law was distinguished from divine law. The custom has also played an important role in modifying the Hindu and other personal laws. It has been an established rule of Hindu Law that custom overrides sacred law.10 The High Courts of Calcutta11 and Bombay12 had approvingly quoted the observation of Rattigan in his Law of Divorce that “Personal Law of the parties to marriage means the customary law of the class to which such persons belong.” Punjab Customary Law is a separate body of law which has developed and become applicable to the people of Punjab of different communities.
In fact, both the major personal laws operative in India, i.e., Hindu Law and Muslim Law, are claimed to be of divine origin. If these were so, these should have been sacrosanct, inviolable and immutable. But both of these have been amended by the Legislature without bothering about its origin and saved from becoming outdated and outmoded. The codification of these personal laws had been bitterly opposed by religious-minded Hindus. Even the (then) President of India, a staunch Hindu, was said to be reluctant to accord approval to the Hindu Code Bill. Due to severe criticism and stiff opposition from different quarters, Nehru government had to split it up and pass as four different Acts.
Sikhism is a modern religion with progressive and scientific outlook. It shows the sagacity and far-sightedness of the founders of Sikhism that they have not subjected them to any civil code which might become outdated after the lapse of some time. Sirdar Kapur Singh, a renowned Sikh scholar and philosopher has also opined, “Sikhism has no corpus of civil law of divine origin.” Thus, there is nothing like Sikh Personal Law of divine origin. For example, holy verses from Guru Granth Sahib which are recited at the time of Anand Karaj (Sikh Marriage) to sanctify the union of the bride and bridegroom, are meant to describe in a figurative way the union of the human soul with the Supreme Being.
Due to the non-existence of any personal law of the Sikhs of divine origin and most of the Sikhs being converts from Hinduism, the courts during British rule had been applying that law.13 The Privy Council confirmed this view in the beginning of this century when it held in Rani Bhagwan Koer v. J.C. Bose that ‘Sikh’ was included in ‘Hindu’ within the meaning of Succession Act 1865 and Probate and Administration Act 1881. Sir Arthur Milson observed14 :
“There were religious bodies in India, which had, at various periods, and under various circumstances, developed out of, or split off from the Hindu system, but whose members have nevertheless continued to live under Hindu Law. Of these, the Jains and the Sikhs are conspicuous examples. It appears to their lordship to be clear that.... term Hindu is used in same wide sense as in earlier enactments and includes Sikhs. If it be not so, then Sikhs were and are, in matters of inheritance, governed by the Succession Act, an Act based upon, and in the main embodying, the English law; it should not be suggested that such was the intention of the legislature.”
We cannot censure the Privy Council for laying down that Hindu Law applies to the Sikhs. In fact, there was a choice before the Privy Council to apply either Hindu Law or English Law of Succession to a Sikh. Third choice in the form of Sikh (personal) Law was not available. The Privy Council, therefore, correctly preferred to apply Hindu Law instead of English Law. So, it can be safely concluded that the Sikhs have been generally governed by customary law in their personal (family) matters, but in the absence of any valid custom, Hindu Law was applicable to them.
Codification of Hindu Law
The fundamentalists considered Hindu Law to be of divine origin and, therefore, not subject to any amendment or modification or repeal by any human agency like legislature. This view was not respected by the Indian Government. It was fully appreciated that law cannot be static and it must change according to the needs of the society. The British Government took the initiative of progressive reformation of Hindu Law as early as the middle of the last century. The Hindu Widow’s Remarriage Act was passed in 1856, which legalised the remarriage of Hindu widows. Other notable enactments concerning Hindu Personal Law were the Hindu Gains of Learning Act, 1930, the Hindu Inheritance Act (s) 1928-29, the Hindu Women’s Right to Property Act, 1937, and the Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946. A notable piece of legislation applicable only to the Sikhs is the Anand Marriage Act, 1909. Till date, it is the solitary enactment in the area of personal law which is applicable only to the Sikhs.
In the mid-fifties, four Acts in the area of Personal Law with the word ‘Hindu’ in their titles have been passed by the Indian Parliament. All these are made applicable to the Sikhs, Buddhists and Jains, besides the Hindus. The Sikhs have not reconciled to the application of these Acts, which are named after a community different from their own. They will like to be governed by a separate personal law coined as Sikh Personal Law. They are rightly of the opinion that application of Hindu Law to them gives an impression that Sikhism is not an independent religion and that it is merely an off-shoot of Hinduism. They take it as an attempt to denigrate and subordinate their religion, as the Sikhs are treated or considered as Hindus by these Acts. Various commentators and text book writers with the exception of a very few have also got confused and treated Sikhism as an appendage of Hinduism.
Do these Acts strike at the independent status of Sikhism ? Has Sikhism has been treated as an off-shoot of Hinduism ? Can the application of these laws be considered as an attempt to amalgamate and mingle Sikhism into Hinduism ? A deep analysis of the relevant provisions of these Acts can help to find answer to these queries.
It may be mentioned at the outset that the term ‘Hindu’ is not defined in section 3 of the Acts where other terms and words used in the Acts are defined. Had ‘Hindu’ been defined as inclusive of Sikhs, answer to all the allegations would have been in the affirmative. All these enactments have included one extra section with the marginal heading, ‘Application of Act’. It is section 2 of Hindu Succession Act 1956, Hindu Adoptions and Maintenance Act, 1956, Hindu Marriage Act, 1955,15 which reads as under :
Application of Act (1). This Act applies :
a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
b) to any person who is a Buddhist, Jaina or Sikh by religion, and
c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
2) ... ... ...
3) The expression ‘Hindu’ in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.
There are three clauses of sub-section (1) of section 3. Clause (a) mentions the application of the Act to Hindus by religion. One may belong to any form or development of Hinduism such as Virashaiva, Lingayat, Brahmo Samaj, Prarthana Samaj or Arya Samaj or any other sect or sub-sect of Hinduism for the application of the Acts. This category includes orthodox Hindus and also those who have modernised themselves by creating or entering some sect or sub-sect. Thus, it includes all the Hindus belonging to various sects, sub-sects, forms, developments, branches or off-shoots of Hinduism. Sikhism is not included in this category. Therefore, Sikhism is not considered as an off-shoot or part or branch of Hinduism by the legislators. Had Sikhism been included in this clause of forms and developments of Hinduism along with Virashaiva, Lingayat, etc., our answer to the queries posed above would have been in the affirmative.
Clauses (b) says this Act applies to any person who is Buddhist, Jain or Sikh by religion. Thus, persons who are Hindus by religion are covered by clause (a) and those who are Buddhists, Jains or Sikhs by religion fall under clause (b). Therefore, it is crystal clear from the bare reading of section 2 (1) (b) of these Acts that Sikhism, Buddhism and Jainism are separate and independent religions distinct from Hinduism. The Punjab and Haryana High Court has fully approved this view while saying :
“A bare perusal of clauses (a) and (b) of sub-section (1) of section 2 makes it clear that the Sikh religion, which permits the Anand Karaj form of marriage is treated by the Act as distinct from Hindu religion which does not recognise as valid any marriage ceremony wherein datta homam and sapatpadi are not performed.”16
Clause (c) contains the third miscellaneous category of persons to whom these Acts apply. This includes those who are neither Hindu (as mentioned in clause (a) nor Buddhist, Jain, Sikh (as mentioned in clause (b), Muslim, Christian, Parsi or Jew (cl. c).
Further clarification that Sikhs are not deemed to be included in Hindus as per provisions of the different Hindu enactments and that Sikhism has been treated as a distinct and independent religion is available in sub-clause (3) of section (2). It provides that expression ‘Hindu’ as used in this Act should be understood as inclusive of persons who are not Hindus by religion, but to whom this Act applies. Thus, it is reiterated in this sub-section that these enactments apply to some religious communities who are not Hindus. All the eight religions mentioned in sub-section are independent religions. If Hindus, Sikhs, Jains and Buddhists are governed by a common personal law, it does not mean that all of them are or have become followers of one religion, i.e., Hinduism. Comments of the Supreme Court of India are relevant in this regard :
“Even if the religions are different, what is common is that all those who are to be governed by the provisions of these enactments are included in the term Hindu. They are to be governed by the same rules relating to marriage, succession, minority, guardianship, adoption and maintenance as Hindus. The statutes thus accord legislative recognition to the fact that even though Jains may not be Hindus by religion they are to be governed by the same laws as Hindus.”17
The observation of the Supreme Court is directly applicable to the Sikhs and Buddhists also meaning thereby that they are not Hindus.
It is, therefore, submitted that minute reading of section 2 of these Acts does not leave any scope for the impression that legislators have attempted to erode the distinct identity of Sikh religion. Rather specific mention of Sikhism as a religion in clause (b) highlights its independent character.
It may be relevant to mention that the higher judiciary in India, just like the legislature, is fully aware about the independent identity of Sikhism. Zafar Ali J. of Lahore High Court observed : “Guru Gobind Singh in fact, renounced Hinduism and rejected everything that smacked of it.”18 Similarly, Khundkar J. of Calcutta High Court remarked, “Guru Gobind Singh sought to establish military and political community, which in religious matter, would be self-contained and independent of Hinduism.”19
The Supreme Court20 has also expressed its view : “There are differences between Hindus and Sikhs on some of the essential details of the faiths which they profess and the religious practices they observe. There are also organisational differences in the matter of religious trusts between Hindus and the Sikhs.”
Sikhism is neither an off-shoot nor a form or development of Hinduism. It is an independent religion having all the attributes such as its own church, scripture, signs and symbols. The Hindu enactments of 1955-56 have correctly appreciated its independent nature and accepted it as such.
It may be of interest to analyse the various family law enactments having the prefix ‘Hindu’ in their title and having application to about 85% of the Indian population, many of whom are not Hindus by religion.
Hindu Marriage Act, 1955
HMA has been described as momentous experiment which, for width of scope and boldness of innovation, can be compared only with Code Napoleon.21 No doubt, the Act is a milestone in the history of law of marriage, but the question is whether it is really Hindu, as apparent from its title, or not. The traditional Hindu Law considered marriage as a sacrament, provided dominant position to the husband; allowed polygamy and child marriage; prohibited inter-religious, inter-caste, sagotra and saparvara marriages and widow remarriage.22 Divorce was unknown to old Hindu law.
The Hindu Marriage Act has brought about significant changes in the traditional law to meet the requirements of the society at its present stage of development. Hindu marriage has become a contractual union just like any Western marriage. The Act requires parties to the marriage to be of sound mind and having freely given consent to it. Divorce is allowed even by mutual consent of the parties. It is desirable that parties are major, i.e., bride is 18 and bridegroom 21 years old. If the bride had not attained the age of 15 at the time of marriage, she is free to repudiate it. Bigamy is absolutely prohibited. The Law no longer favours the males, rather it is the other way round. The Act has completely transformed the Hindu Law of marriage by introducing concepts like nullity of marriage, divorce, judicial separation, curtailing the limits of sapinda relationship and legitimising some categories of children hitherto being considered as illegitimate, etc. The Act has totally drifted away from tenets of Hindu Law. The traditional Hindu Law has died. It is rightly said that if Manu, Yagnavalkya, Brithaspati and Narad now take birth in this country under the process of avagaman, they are bound to mistake their homeland for a foreign country practising strange law of marriage.23
A comparison of Hindu Marriage Act with English Matrimonial Law shows that the former has freely drawn from the latter. The source of almost all the substantial provisions of the Hindu Marriage Act is available in one or the other English Matrimonial Causes Act.24 The HMA 1955 borrowed copiously not only at the time of its enactment, but for its later development and reforms also it has been banking upon the English law. Thus, HMA is a copy of English law and there is not much, which can be termed as purely Hindu.
Special Marriage Act, 1954, is a permissive legislation, and is available to all Indians irrespective of religion. HMA 1955 has identical provisions with SMA 1954. Substance and language of various provisions of both the Acts relating to capacity to marry, nullity of marriage, restitution of conjugal rights, judicial separation, divorce, legitimacy of children, reconciliation, matrimonial bars, maintenance and jurisdiction and procedure are almost the same. As the Hindus can marry under SMA, the Hindu Marriage Act could be easily merged into it, and no justification for having a separate Act seems to be there.
There is hardly anything in the HMA which is basically and essentially shastric or Hindu. It is a secular law having hardly any religious or spiritual overtones. It is stuffed with concepts and models of English jurisprudence. Thus, the HMA is Hindu in name only and not in substance. It contains law which suits every modern and progressive Indian.
Sikhism, being a modern religion, should not have any inhibition in adopting and following a modern law, if there is nothing which is contrary to the Sikh principles. There is hardly anything in the Act which can be termed as anti-Sikh. Its application cannot be called as application of a law of another religious community. The only irritant is the title of the Act which gives the impression that all those governed by it are Hindus though the provisions in the Act are sufficiently clear to allay such suspicions and apprehensions. The contents of the Act show that it has not been correctly named. It requires a serious effort on the part of the legislature to mingle it with SMA and apply it to all the Indians taking a concrete step towards the Uniform Civil Code.
Hindu Succession Act
This Act has replaced the traditional Hindu Law of inheritance. Major change introduced by this Act is to make mother, widow and daughter (unmarried, married or widowed) as equal heirs with the sons in the property of a Hindu or other person to whom this Act applies, if he / she dies intestate.
Guru Nanak has been the first reformer in the world to advocate equality between males and females. Equality in status and respect for women are cardinal principles of Sikhism. Therefore, to equate males and females in matters of succession, as is prescribed by the Act, is in accordance with Sikh traditions and principle. On the other hand, it may not tally with Hindu principles where females are always given an inferior position. It is suggested that the remaining provision of male superiority granting him a bigger share out of the coparcenacy property of the deceased should also be amended to ensure complete gender equality.
Equal share to brothers and sisters in the father’s property as provided by the Act has caused some practical difficulties for the farming community. It has led to fragmentation of landholdings. The legislative assemblies of Punjab and Haryana, had adopted unanimous resolutions urging the Union Parliament to amend the Act depriving married daughters from inheriting the property of their parents. It cannot be surmised that all the legislators from both the states were pleading the Sikh cause. In fact, it is a common cause of agricultural community irrespective of religion. Another argument against this provision is that it has resulted in disruption of homogeneous rural life. This again is the complaint of all the ruralites and not only of Sikhs amongst them. Such an amendment may be made in deference to the wishes of the farmers and rural people. But this amendment will not render it a peculiar Sikh law of succession, as it equally suits the non-Sikh farmers and ruralites. Thus, the main plank of protagonists of a separate Sikh Personal Law does not plead the cause of Sikhs alone; rather it may smack of anti-Sikhism for being discriminatory to the weaker sex.
The problem with this Act is again the same as with the HMA, i.e., of title. There is nothing in the Act which is peculiarly Hindu, the contents of the Act being secular in nature. The title should also give a secular look.
The Indian Majority Act 1875 and Guardians and Wards Act 1890 are applicable to all the Indians irrespective of their religion or personal law. These Acts continue to be applicable to Hindus and others along with the Hindu Minority and Guardianship Act 1956. Section C of the Act says that it shall be in addition to and not in derogation of the Guardians and Wards Act, 1890. The Act of 1956 is essentially a supplement to the Act of 1890, and it also codifies the customary law as to Guardianship.
The Hindu Dharamshastras did not deal with the law of guardianship in any detail.25 There is a mention of broad principles such as that king is the guardian of all which was similar to that of English law. Besides, Karta was held to be the guardian of all minor children in the joint Hindu family.
Two English authors,26 in their treatises on Hindu Law, had given a list of relatives who could be natural guardians of Hindu minors. The courts during British regime relied on these formulations. But later courts adopted the view that only father and mother could be the natural guardians. Thereafter, testamentary guardians, concept unknown to Hindus, was also introduced on the analogy of English law. Thus, it is clear that law in this field is not based on any Hindu religious texts; rather it is borrowed from English law. The title of Hindu Minority and Guardianship Act also requires the pruning of word ‘Hindu’ from it, so that it may give a secular look.
Adoption is essentially a Hindu institution. Old Hindu Law regarded it as a sacramental act, prescribed essential ceremony of datta homam, allowed adoption only of son by son-less male Hindu who need not consult his wife, did not allow adoption of a child who was orphan, female, illegitimate or of a different caste, and required that adopter and adoptee’s mother were not within prohibited degree relationship.
The Hindu Adoption and Maintenance Act, 1956, has brought about fundamental changes in classical law of adoption. Adoption now is purely a secular act allowing married and single males and females, who are major and of sound mind, to adopt a minor son and / or a daughter. The widow can give her child in adoption even after her remarriage. Child to be adopted may be orphan, illegitimate, female or of a different caste. A study of the Act shows that it has entirely transformed the traditional Hindu Law which does not find any place in the Act.
Adoption has been recognised as a secular institution the world over, and is being used for the welfare of orphans and destitutes. It has now become a part of the legal system of England and some other countries. Sikhs have been using adoption as a secular act since long. It is not required in Sikhism that a (adoptive) son should offer obsequies of the adoptive father and other ancestors to book a seat for them in the heavens. Sikhism is opposed to all such rituals including the sharadha. It also does not emphasise on the necessity of having a son to attain salvation. Thus, the object of adoption in Sikhism is in accordance with that of the Act. Adoption of a female child and allowing adoption to women is also in accordance with the principles of Sikhism which call for equality of males and females. Thus, there is nothing in the Act which is inherently opposed to the Principles of Sikhism.
Since Sikhism is an independent and distinct religion, why should its followers not be governed by an independent personal law like that of Hindus, Muslims, Christians, Parsis, etc. ? But there is no Sikh Personal Law of divine origin. Founders of Sikhism had been pragmatic enough not to dabble in the personal law which requires periodical up-dating. Revered Sikh scholar, Sirdar Kapur Singh, has correctly remarked that Sikhism has no corpus of Civil law of divine origin.
Unlike other religions of Indian origin, i.e., Hinduism, Buddhism and Jainism, Sikhism does not view renunciation as the highest virtue and worldly power and prosperity as contemptible. Rather, it approves of all the worldly pursuits subject to the basic ideals of Sikhism, i.e., truth, righteousness, freedom, equality, justice and human dignity. All the actions, institutions and laws of the Sikhs should not be violative of any of these ideals of Sikhism.
While pleading the enforcement of Article 44 of the Constitution by enactment of a Uniform Civil Code for all the Indians, Justice Kuldip Singh has remarked :
“There is no necessary relation between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seems to divest religion from social relations and personal law.”27
Originally, Hindu Law and Mohammedan Law were comprehensive systems and dealt with all branches of law like criminal law, procedural law, evidence law. The British superseded these by enacting Indian Penal Code, the Civil Procedure Code, the Criminal Procedure Code, and Indian Evidence Act, but they allowed the religion based family laws to continue as per Warren Hastings’ Plan of 1772. Thus, continuation of indigenous family laws is due to sanction by and under the authority of the state and not due to any inherent religious force. Had the British regime liked, they could have easily replaced it just like criminal law, procedural law and other civil laws. So, the observation of the learned judge that there is no necessary relation between religion and personal law seems to be quite appropriate. Most of the Indian law is based on corresponding British enactments. Hindu Law enactments of 1955-56 are similarly verbatim copies of British laws and ideas. These are ‘Hindu’ in name, but not in content. There is hardly anything which can be termed as violative of Sikh principles. Sikhs object to the application of Hindu Law to them because they do not like to be misunderstood as part of Hinduism, while Hindus feel delighted in considering them as such. The contents of these Acts being not objectionable, Sikhs should emphasise in getting its title changed. While we can share all other laws with Hindus, there need not be any hitch in sharing the personal law also if it is given a secular title.
In case the demand for a separate Sikh Personal Law is conceded, it will amount to opening a Pandora’s box. Every Sikh political party and youth organisation, who claim finality in each of their assertions, will unnecessarily be bothered to make suggestions in this regard leading to useless controversies. The community already does not have the unanimous view on certain important points like Ragmala, Nitnem, Mulmantra; so we should avoid adding any new controversy, and rather try to unify the community as far as possible. Besides, we do not have any concrete point which we like to be added or deleted from the existing law.
Besides, Sikhism is now a universal religion having its followers in every nook and corner of the world. Any new body of law, like Sikh Personal Law, may not be adopted by them or may not be recognised by the law of the country of their residence. In case separate Sikh Code is enacted and sought to be applied to all Sikhs, it might hinder the growth and propagation of Sikhism. There may be some people who may be attracted towards Sikhism due to its inherent qualities, but may not like the new code.
The argument that Sikhs being a predominantly rural and agricultural community requiring a separate personal law to suit their needs is also not a weighty one. It can be easily foreseen that after total mechanisation of agriculture and industrialization of Punjab within the next two to three decades, Sikhs are not likely to continue as agriculturalists and ruralites in greater numbers.
Some enlightened Muslims complain that there is a deep mischief on the part of the Indian rulers to keep them backward and retrogressive by not amending and codifying their personal laws like that of the Hindus under the bogey of opposition of ulemas. Such allegations from members of other communities should be a caution for us, so that we do not take any retrogressive step.
The Sikhs are having a genuine grievance that Hindu law is applied to them when they are not Hindus. Such a wrong labelling certainly hurts the Sikh psyche. It is unjust on the part of a state, claiming itself to be secular, to compel a minority community to accept a label which affects its independent and distinct nature. It is also violative of freedom of religion. The Indian Government should get the titles of these four Acts changed, so that the Sikhs are not compelled to reject these in toto.
1. Cheshire & North’s private International Law (10th ed.), 17.
2. Paras Diwan, Private International Law (1988), 60.
3. Cheshire, Private International Law (4th ed.), 150.
4. Pradeep Jain v. Union of India AIR 1984 SC 1420, 1426.
5. Principles of Hindu Law (15th ed.), 88.
6. Controller of Estate Duty v. Haji Abdul Satar AIR 1972, SC 2229, 2232.
7. Bhattacharjee, Muslim Law & the Const. (1985), 11.
8. Paras Diwan, Hindu Law (1995), 3.
9. Skinner v. Orde 14 MIA 309.
10. Collector of Madura v. Mootso Ramalinga (1868)12 MIA 397.
11. Lucas v. Lucas ILR 32 Cal. 187.
12. Saldanha v. Saldanha AIR 1930 Bom. 105.
13. Doe dem Kishan Chander Shaw v. Baidam Beebee (1815), 2 Morley’s Digest, 22.
14. (1904) ILR 31 Cal. 11 PC.
15. Hindu Minority and Guardianship Act, 1956, has section 3 for this purpose.
16. Ravindra Kumar v. Kamal Kantha (1976) 78 PLR 580.
17. Wealth Tax Commissioner, West Bengal v. Champa Kumari AIR 1972 SC 2119, 2124.
18. Basant Singh v. Hem Singh AIR 1926 Lah. 100.
19. Inder Singh v. Sadhu Singh AIR 1943 Cal. 479.
20. Mahant Moti Dass v. Special Officer Incharge, Hindu Religious Trust AIR 1959 SC 942.
21. Derrett, Religion Law and State in India, (1968), 326.
22. Yagnavallya Smriti prescribed these conditions.
23. See Kashmir Singh, Is the Hindu Marriage Act Really Hindu ?, Amritsar Law Journal (1992), 18-37.
24. Matrimonial Causes Act 1937, 1950, 1963 and 1973.
25. Paras Diwan, Modern Hindu Law, (1976) 222.
26. Strange, Hindu Law, 72, McNaughten, Principles and Precedents of Hindu Law (4th ed.), p. 172.
27. Sarla Mudgil v. Union of India (1995) 3 SCC 635, 649.