BACK TO CONTENTS PAGE
Women And Sikh Personal Law
Views presented here on Sikh Personal Law are based on my experience of studying women action groups for my doctorate degree. Women activists belonging to various action groups take up cases of women victims of injustice who approach them for help. During the course of their action, women activists face many problems due to limitations in laws related to women. They, along with the victims, suffer anguish and pain and go through long, complicated and often humiliating legal proceedings. My observations, regarding Women and Sikh Personal Law, are based on this limited experience. The intention is to raise certain questions and give some suggestions which can then be discussed in depth.
One may ask why have a Sikh Personal Law at all (in relation to women) ? The argument is that if Hindus, Muslims, Christians and Parsis have their personal laws, why cannot Sikhs have this privilege ? Why are Sikhs, just because of their numerical weakness, not given a separate identity.
On the other hand, one may further ask, when Women’s Movement all over the world is campaigning against personal laws and demanding Uniform Civil Code, why to raise the question of Sikh Personal Law ?
It is true that Women’s Movement is demanding Uniform Civil Code applicable uniformly to the community of women as a whole, irrespective of their religion. But, according to feminists, most of the religions are not fair to women in this regard. Personal laws of different religious communities are gender-biased, and prescribe discriminatory norms for women in terms of marriage, divorce, inheritance, succession and adoption, etc.
The Sikh religion, however, is a modern religion which advocates equality between man and woman. Hence, the need to have personal laws based on the tenets of Sikhism, which could become the foundation of universal laws to be made in times to come.
We all know that the Indian Constitution’s Article 25(1) gives freedom of religion to all. It is this article which sanctions special personal laws to each religious community. However, the Sikh community has been denied this privilege, so that all Hindu Acts related to the institution of family regulate the life of Sikhs including women. Thus, is it clear that the Sikhs do not have any legal status and are assumed to be Hindus. Therefore, the claim of the Indian Constitution of providing religious freedom to all cannot be sustained.
All matters related to the family are treated as private matters and governed by personal laws. Family laws impinge on the private lives and personal freedom of the individual. These laws specifically affect women, because their lives revolve around the family. Personal laws (or family laws) have profound implications in shaping their position, rights and obligations. Common feature in existing family laws of all the communities is that they promote unequal relationship between men and women.
Religion has played an important role in the development of law in all civilizations, and obviously, Hindu law (under whose jurisdiction come the Sikhs) is based on Hindu philosophy, which, in many ways, clashes with Sikh principles. Hindu laws are age-old laws framed centuries ago, whereas Sikh religion is the most modern religion whose tenets are based on the concept of human rights and rationality.
If law is an instrument of change, then Sikh Personal Law based on the rational and scientific doctrines of Sikhism proposed hereby can make our dream of gender justice come true.
Firstly, there is need to identify the areas which Sikh Personal Law should cover. This exercise can be done by a detailed survey of all personal laws, especially the Hindu Law, to examine how these differ from the principles of Sikhism. All objectionable elements should be eliminated. The next step should be to propose laws derived from the doctrine of the Sikh Scripture and the proud heritage of Sikh culture, history and tradition.
Personal law covers several aspects, which are directly or indirectly related to women. But here the emphasis is on those laws which affect women directly. Here are some suggestions which need serious consideration of scholars and legislators.
Sikh Marriage Act should take care of the following aspects :
- Under Sikh Marriage Act, dowry should be strictly prohibited in any form. In fact, the definition of dowry given in the Dowry Prohibition Act (1961) needs to be revised, so that gifts are included as part of dowry. There should also be a check on the quality and quantity of gifts given in consideration of marriage. According to Dowry Prohibition Act (1961), “Dowry is any property or valuable security given or agreed to be given either directly or indirectly by one party to the other party, or by parents of either party to the other, at or before or after the marriage, as consideration for marriage.” The Act, however, does not include gifts which are given unlimitedly.
- There should be another clause in the Sikh Marriage Act to ban excessive expenditure in connection with marriage and related ceremonies. Any effort towards ostentatious display on such occasions should attract drastic punishment. Sikh Reht Maryada issued by Shiromani Gurdwara Parbandhak Committee (S.G.P.C.), prescribing norms of marriage, should also emphasise the same.
- In the Sikh marriage Act, caste should not be given any importance. Any two people who are Sikhs without consideration of caste should be allowed to marry. According to the Sikh Reht Maryada, caste or status have no place in a Sikh marriage.
- There should be provision for compulsory registration of marriage. Such evidence is specifically needed by women in order to claim inheritance rights and maintenance rights in the event of separation, or to sue for bigamy. Marriage merely by religious ceremony is relatively more difficult to prove in a court of law, especially if years have passed, the witnesses have died and the husband denies the legality of the marriage. This problem is faced by many of our sisters in India and abroad.
- Under the Sikh Marriage Act, age of marriage should be increased. The Sikhs being a progressive community should encourage their daughters to be professionally qualified and economically independent before marriage. Therefore, the age of marriage for a girl could be 21 years and that of boy 24 years.
- Law for divorce should not be harsher for women, and it should be framed in such a manner that it does not harass any of the parties concerned.
- Religious conversion for the purpose of bigamous marriage should be banned.
- Along with other grounds for divorce as per Hindu Law, mutual incompatibility should be introduced as another ground for seeking divorce. It is possible for a legal battle to drag on for years through various courts of appeal with one party trying to prove desertion, cruelty, adultery and bigamy (as grounds for divorce) and the other party trying to disprove it. In the absence of this clause, parties tend to falsely accuse the other, whereas the truth could be that they just cannot get along with each other.
It, however, does not mean that divorce should be encouraged. The point is that law should make it easy for man and woman to separate, if there are no chances of reconciliation.
- Bigamy should be considered a serious offence under Sikh Personal Law. Any woman residing with a man for a considerable period without being his blood relative, or vice versa, should be treated as a case of bigamy. This has been suggested in view of it being very difficult to prove bigamy.
- When bigamy has been proved, the court should order arrest of the offender.
- Under Hindu Law, in case of bigamy, it is only the first wife or her family who can prosecute the husband and not the second wife. This should not be the case while chalking out Sikh Personal Law, because it could be possible that the second wife herself has been cheated, and might have got married without knowing that this was her husband’s second marriage.
- Similarly, adultery should be considered a serious matrimonial offence in Sikh Personal Law. It is not so under Hindu Law and cannot be used as a ground for divorce.
Sikhs are governed by the Hindu Succession Act in matters relating to inheritance of property, under which woman does not have equal right to ancestral property.
Many action groups dealing with victims of matrimonial discord have found that lack of inheritance right to woman has been a major cause of dowry. Dowry, in fact, is a way to disinherit women. Parents feel that this is the only time their daughters can get something from them. Thus, they try to be generous to daughters and spend lavishly on their marriages.
- Under Sikh Succession Act, woman from birth itself should be equal partner in the ancestral property as well as self-acquired property. This is not only her just right, but would also obviate the need of dowry.
- Under Hindu Law, woman has equal right in self-acquired property of father. However, there have been cases where a father deprives his daughter of her share in the property (self-acquired) by writing a will. The power to make unrestrained will is used to deprive daughters of their rights. Therefore, any will which disinherits the daughter should be considered invalid under Sikh Succession Act. Because it has been observed that woman generally does not challenge the father’s will due to customary practices. If she does so, she spoils her relationship with her brothers.
- The need for Sikh Women Right to Matrimonial Property Act is but obvious. Sikh woman should be given equal right in matrimonial property. Matrimonial property is that which is acquired by both the parties to marriage during the subsistence of marriage.
- The demand for joint ownership of property (both on the name of husband and wife) is just. It should include joint ownership of a dwelling house or agricultural land or other property.
As per Hindu law, woman does not have equal right in the income, assets and property after divorce unless it is joint. Thus, Hindu law ignores the contribution in cash and kind made by woman during the subsistence of marriage, and deprives her of this right. Woman’s contribution in the house and family, although imperceptible and incapable of being evaluated in terms of money, entitles her to an equal share.
Therefore, all properties, moveable and immoveable, acquired after marriage, must be jointly owned by husband and wife. She should also be joint owner of the assets of the matrimonial home and any savings made. It should be made compulsory that all distribution and allotment of rural and urban land by the government should be done in the joint name of husband and wife. In case of separation, properties should be divided between the two in as just a manner as possible.
- This kind of legislation can remove economic disparity between men and women, because economic dependence on man leads to other kinds of inequalities woman is subjected to, namely, social, political and religious.
- Care should be taken that under Sikh Women Right to Matrimonial Property, woman should not merely acquire property, but should be allowed to control it and use it in any manner she wants.
- Under this Act, provision should also be made for safeguarding the interest of woman against being deprived of her joint ownership, especially in agricultural land where the land exceeds the ceiling. Her share should be protected, because often it is her share which is given over to the state.
Right of Residence
During matrimonial discord, women are often thrown out of the house, and denied partition of the dwelling house of the husband’s family. This points to the need to introduce Sikh Woman Right to Residence Act.
- Under this Act, in the cases where the husband and wife share the residence owned by the husband, the wife should have the right of residence. Where husband is not an owner of any property, and both are sharing a rented accommodation or the rent is paid by the employer or if he has a private job, he should provide alternate accommodation to his wife.
- The Act should direct women to approach the court for a right to restrain the husband and his relatives from entering the premise where she is living, or direct the husband to provide a suitable accommodation.
- As per Hindu law, there is denial of right of residence to married daughter in her father’s house, when she is deserted by her husband. There should be provision for legal claim. Women’s right to both ancestral and self-acquired property of father will take care of this aspect to some extent.
Sikh Adoption and Maintenance Act
- This Act should remove the ceiling of Rs. 500/- as maintenance given to the wife in case of separation as per Hindu Law. Limit of Rs. 500/- as maximum amount of maintenance was fixed about fifty years ago which is totally inadequate to meet the present basic financial requirements.
- While fixing the amount of maintenance, his future capacity to earn should also be taken into consideration, e.g., his increments, Government Provident Fund, etc.
- Other things to be taken care of while having the amount of maintenance fixed should be the standard of living of the couple during marital life and also his moveable and immoveable property, and not just his monthly income, because the party can have undisclosed and illegitimate sources of income as well.
- In case of salaried husband, to ensure that he pays maintenance, legislation should empower court to deduct the amount from husband’s salary. In case of private job of the husband or work on daily wages, and also in case of the educated / employed women, different criteria to determine maintenance need to be worked out.
- Maintenance should include not only food, shelter and clothing, but also other essential needs like medical treatment of wife and children, recreational needs of the child according to father’s living standard.
- Present provision of maintenance to child is up to the age of 18 years only, which deters his education, specially professional studies. Therefore, Sikh Adoption and Maintenance Act should raise this age limit suitably.
- Since husband’s defence to a maintenance petition in most of the cases is that he does not earn and, therefore, cannot support his family, a case study of the party should be done.
- The burden of proof of establishing what is the husband’s income, should be on the husband himself, since the wife is generally ignorant of her husband’s income. Indian woman, who is, by and large, deprived of economic opportunities, has no access to husband’s receipts, certificates or documents, etc.
- Maintenance should be made retrospective. It should be payable from the time husband had refused to pay the wife any maintenance. It should either be from the time of filing of the petition or from the date of the issue of the notice for maintenance, because an Indian woman tries her best to keep her marriage, and comes out for help only when the situation becomes highly intolerable. It could be possible that she approaches the court long after she is being ill-treated.
- The procedure involved in determining and procuring maintenance should be completed within six months, because the legal procedure involves mental, physical and financial agony for both the parties, especially woman who is more often uneducated and unemployed. Women activists have experienced that many a time it is very difficult to get the order of maintenance executed. The husband, most of the times, stops paying after the initial first or two payments and she has to go to the courts again. The procedure is not only lengthy, but also so baffling that many a time woman continues to live in the same house which is a hell for her both physically and mentally, just because of the fear that she will not get it.
Under Hindu Minority and Guardianship Act 1956, father is the natural guardian of the minor. Natural guardianship is father’s right. The child can be in mother’s custody up to five years after which father can claim the custody of the child. Law is based on the patriarchal values of descent / inheritance through the male. Thus, the law does not recognise the woman as an equal partner to the marriage. It is inhuman and cruel to deprive woman of her motherhood.
- Sikh Minority and Guardianship Act should make her a joint guardian of her children. Even the United Nations Declaration of Human Rights of the child stresses that a child of tender years shall not be separated from his mother. It is suggested that a child should be allowed to stay with the mother till the age of 14 or more. After that, it should be left to the wishes of the minor as to whom to choose as guardian, if he / she is mature enough to exercise his / her discretion.
- Other criteria of appointing a guardian may include the past conduct of the person towards the child and capacity of the person to look after the child. Moreover, paramount consideration should be given to the welfare of the child while drafting this Act.
It is comparatively easier to enact laws than to ensure their effective application. The most important thing, therefore, is to internalise the Sikh ethics and practise them in our day-to-day life.
Besides that, the laws should be simple and clear. They should not be complicated and frightening. In order to make Sikh Personal Law effective, all cases violating the law should be sorted out in a speedy manner, because it has been observed that due to lengthy and expensive proceedings, a woman fighting for her right, gives up mid-way and the whole exercise goes futile.
Thus, Sikh Personal Law should be designed in the interest of women, and should work as a positive force to bring egalitarian order. Absence of gender bias in Sikh Personal Law should be an example in itself for other communities.
The idea is to bring gender equality through significant pieces of legislation. Hence, women organizations in Punjab, sensitive lawyers and judges, human rights activists, intellectuals and scholars, political parties (Shromani Akali Dal and S.G.P.C.) and other Sikh bodies ought to work together to formulate a model Sikh Personal Law in such a manner that the scales of justice are not weighed against women.