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Sikh Personal Law Distorted :
Rectification Needed
Gurdev Singh*
I give credit to the rulers of India for enacting the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956, and the Hindu Minority and Guardianship Act, 1956, which are progressive legislation for the followers of Hindu religion, as these provide for their welfare, and reformed the existing personal law, but these enactments are not just and fair to the Sikhs, Buddhists and Jains, who have been subjected to these laws declaring them ‘deemed’ Hindus. These people have their own socio-cultural modes of life which are regulated by their laws, usage and customs. These are sought to be done away with by imposing the aforesaid Acts on them. The dynamically monotheist Sikhs, stoically agnostic Buddhists and humbly atheist Jains cannot feel comfortable with laws based on expansive Hindu polytheism and out-dated caste considerations. The pragmatic and egalitarian Sikhs are sought to be entangled in esoteric and obsolete concepts of Sapindas, gotras, coparcernary, saptapadi, etc., etc., of Hindu religion by nullifying the laws governing them (viz., the Anand Marriage Act, 1909, customary law) through overriding provisions of the aforesaid Acts. The Sikhs nurture the apprehensive feelings that these Acts of Hindu code endeavour to swallow them up into Hindu religion which its followers are welcome to reform and flourish, but the Sikhs’ freedom of conscience, profession, practice and propagation of their faith should not be impaired.
Section 4 of the Hindu Marriage Act, 1955 reads as under :
Overriding effect of Act — Save as otherwise expressly provided in this Act —
a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any provision contained in this Act.
Section 7. Ceremonies of Hindu marriage — (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
2) Where such rites and ceremonies include Saptapadi (that is the taking of seven steps by bridegroom and bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
Preamble of the Hindu Succession Act, 1956 (Act 30 of 1956) reads :
“An Act to amend and codify law relating to intestate succession among Hindus.”
This Act applies to any person who is (a) Hindu by religion and (b) a Buddhist, Jain or Sikh by religion. Section 2(3) of the Act lays down that the expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not Hindu by religion, is nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.
Identical provisions are made in the Hindu Marriage Act, 1955, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956, as regards the applicability of these personal laws of the Hindus to non-Hindus, viz., the Buddhists, Jains and Sikhs. The preambles of all these Acts enunciate that these Acts are meant to amend and codify the laws relating to marriage, adoptions and maintenance, minority and guardianship among Hindus as is the purpose of the Hindu Succession Act, 1956, with respect to matters relating to intestate succession among Hindus. It is explicitly clear that the aforesaid Acts amend and codify personal law of Hindus by religion keeping in view shortcomings therein, and these Acts endeavour to make improvements in the Hindu personal law for their welfare and reform. So far so good; if the Hindus benefit through these enactments it is nice. But as regards the non-Hindus, these are retrogressive and overbearing in many respects, and attempt at socio-religious aggrandizement of the latter and cause confusion in the observances of their tenets and practices in their social intercourse. One of the conditions to be fulfilled for a marriage between two Hindus under the Hindu Marriage Act, 1956 {Section 5(V)} is that the parties are not Sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. Under Section 3(f) of the Hindu Marriage Act, 1955, Sapinda relationship with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned who is to be counted as the first generation; and the two are said to be Sapindas of each other if one is a lineal ascendant of the other within the limits of Sapinda relationship with reference to each of them. A Hindu marriage may be solemnized in accordance with customary rites and ceremonies of either party thereto, but not in accordance with the Anand Marriage Act, 1909, which is overridden by the Hindu Marriage Act, 1955. The parties to marriage under the Hindu Marriage Act, 1955 may have their marriage registered in the prescribed Hindu Marriage Register which is admissible in evidence regarding the entries of marriage.
Under the Hindu Adoptions and Maintenance Act, 1956, no person is capable of being taken in adoption unless he or she is a Hindu. It is restrictive indeed.
Under the Constitution of India (Article 25) all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion, and the wearing and carrying of kirpans is deemed to be included in the profession of the Sikh religion. Article 25 of the Indian Constitution is pertinently reproduced below :
Article 25. Freedom of conscience and free profession, practice and propagation of religion :
1) Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law —
a) regulating or restricting any economic, financial or other secular activity which may be associated with religious practice;
b) providing for social welfare and reform or the throwing open of Hindu religious institutions of public character to all classes and sections of Hindus.
Explanation I : The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II : In sub-clause (b) of clause (2), the reference to Hindu shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion and the reference to Hindu religious institutions shall be construed accordingly.
This Article ordains permission of wearing/carrying of kirpans by the Sikhs, but it is an undisputed fact that they are not allowed to carry/wear kirpans freely and are subjected to gross humiliation at the airports, public offices and in their day to day movement. Non-admittance of the Akali Members of Parliament with kirpans into the Parliament House is a well-known fact. (It is a different matter though; I would say that in the then prevailing circumstances the M.P.s. should not have missed attending the Parliament insisting on the length of the kirpans).
Measures providing for social welfare and reform of the Hindus are made applicable to the Sikhs invoking Explanation No. II of Article 25 of the Constitution of India, though these may not be conducive to the welfare and reform of the Sikhs, rather such measures could be retrogressive in their impact on Sikh tenets and practices. What piques the Sikhs acutely is that any measure of welfare and reform which is likely to benefit the Sikhs, is construed as not applicable to Sikhs, but if such a measure contrives impaling the Sikhs in Hindus, Sikhs are reckoned as included among Hindus through the legal /constitutional fiction referred to above. In acquiescence to earlier mentioned enactments, Sikhs are obliged to present / project / assume themselves as Hindus in the matters relating to laws of marriage, succession, adoptions, etc., etc., and their very identity — social, religious, political, civic, cultural — is subsumed in deemed Hinduship. But when the Sikhs claim welfare entitlements for the economically backward among them, that is the Sikh Scheduled Castes, members of the Sikh community are denied these claims holding that the welfare concession are available to Hindu Scheduled Castes only. After persistent pleading / agitation by the Sikhs, some of these concessions were partly allowed, that is, only four castes of the Sikh depressed castes have been classified as eligible for the welfare entitlements and these, too, only in the State of Punjab. The infinitely mysterious concept of Hindu undivided family — H.U.F. — in various fiscal Acts, namely, The Income Tax Act, 1961, The Gift Tax Act, The Partnership Act, 1932, The Wealth Tax Act, is a strange formulation to yoke in and confuse Sikhs in their economic activities.
The Muslim Personal laws based on the Holy Quran, Hdith or tradition and the statutory enactments such as the Muslim Personal Law (Shariat) Application Act, 1937, the Dissolution of Muslim Marriage Act, 1939, and the Muslim Women’s (Protection of Right of Divorce) Act, 1986 govern the family relationships of Muslims. The Christians are administered by the Indian Christian Marriages Act, 1872 and the Indian Divorce Act, 1869 with respect to matters like marriage, divorce. The Parsis, numbering hardly one lakh in India, have separate law relating to family equations, viz., the Parsi Marriage and Divorce Act, 1936. The vibrantly egalitarian Sikhs are subjected to various Hindu Laws governing succession, marriage, etc., etc., and are described Hindus through legislative ingenuity. All this cannot be savoury to the Sikhs whose personal laws derived from and based on catholic precepts of Sri Guru Granth Sahib, Gurmatta, Rahit Maryada (code of conduct), customs, usage, etc., have been obliterated by the Hindu Code Laws based on outdated, abstruse and irrelevant (to Sikhs) concepts derived from srutis and smritis.
Thus, the cleverly planned invidious treatment meted out to the Sikhs is bound to lead to unhappy reactions in the Sikh mind which in no way is conducive to the welfare of the people of India, including those Hindus who intend swallowing up the Sikhs through the legislative juggernaut. Emotions that permeate the Sikhs are much stronger than survey research can assess, and these go far beyond (questions of) simple law and order dispensation. The emotional uneasiness that lurks the Sikh mind is bound to have serious fall-out, and it requires bold action. Insensitivity to Sikh sensibilities carries a heavy price. Not only are the Sikhs (they feel) not paid off the political debt due to them by the nation, in spite of various assurances by the Congress leaders, they are slighted. India is Sikhs’ home and haven. They should not be characterised as strangers / aliens. They are natives entitled to assert their pain and anger, and should be free to speak their claims and aspirations at par with other citizens of India.
Solution to the problem of removal of distortion of Sikh Personal Law can be found through sagacious persuasion and not through bludgeoning of any party. All concerned know that they have more to gain from compromise and co-operation than from confrontation and conflagration, and cure of social degradation and national stagnation can come from concert and not conflict. I pray to God to bestow the best of blessings on ladies and gentlemen of great intelligence, talent, vision and general caring to impel them to embark upon a successful campaign to create a healthy ambience in which the Sikhs will play the role that can really express the fullness of what they are.
In concluding, I suggest :
a) Personal Laws of different communities in India should comprise of one Code with different parts specific to each community. It will be a step towards a Uniform Civil Code envisaged in Article 44 of the Constitution of India; or
b) Personal Law of each community in India concerning marriage, succession, etc., etc., should be codified separately for each community.
I am of the opinion that neither of the two solutions suggested here is difficult to achieve as the codes in either of the two suggestions will not be bulky, and these will go a long way in creating a harmonious environment providing for the aspirations, interests and norms of social intercourse of various segments of the people of India.
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We hold these truths to be self-evident, — that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are Life, Liberty, and pursuit of happiness.
— Declaration of Independence
