Why We Don’t Need The Uniform Civil Code- Part II 

Why We Don’t Need The Uniform Civil Code- Part II 

by Madhu Purnima Kishwar - Monday, June 5, 2017 05:27 PM IST
Why We Don’t Need The Uniform Civil Code- Part II Norman Potter/Getty Images)
  • The final product of the Nehru government’s Hindu law reform had very little “Hindu” about it, and was regressive, illogical and anti-women.

    It’s time to junk these laws once and for all.

Most people think that former prime minister Rajiv Gandhi is the author of reversing and thwarting the process of reform of Muslim Personal Law by using his brute majority in Parliament to pass the Muslim Women’s Protection Act of 1986 which arrogantly overrode the Supreme Court judgement in the Shah Bano case.

But Rajiv Gandhi was neither the first nor the last prime minister to have polarised India on communal lines through ill-advised political interventions. The mess started with the doyen of secularism, Jawaharlal Nehru himself. It defies comprehension why in the very first decade after independence, Nehru chose to put the entire weight of his government in pushing through “reforming” only Hindu customary laws on the basis of poorly understood and half-baked knowledge derived from our erstwhile colonial rulers of what constituted Hindu customs while refusing to touch Muslim or Christian personal laws.

The attempt to codify Hindu law was initiated in the late 18th century because the British colonial rulers wanted to bring under their judicial purview all the aspects of social and political life of diverse communities of India as part of Pax Brittanica. None of the earlier foreign rulers, no matter how tyrannical, had ever encroached upon the internal affairs of diverse communities of India. India was called a land of self-governing village republics precisely because each village and each community retained its right to manage its internal affairs – be it social organisation or family structure and rules of inheritance. And customs by their very nature are not static. They keep evolving and changing with time.

The British were befuddled by the vast diversity and complexity of Indian society. Having come from a society where most aspects of family and community affairs came under the jurisdiction of canon law, the British looked for similar sources of authority in India. They assumed that just as the European marriage laws were based on Biblical tenets, so must the personal laws of Hindus draw their legitimacy from some fundamental religious tenets.

However, the social reality in India was totally at variance with the assumptions of the British. There was no single body of canon law, no Biblical-type commandments or the equivalent of a Pope to legitimise a uniform code for all the diverse communities of India, no Shankaracharya whose writ ran all over the country. But that did not prevent the British from searching. Neither the Hindu Dharmashastras nor Smritis suggest that there exists an immutable, universal moral doctrine for all people at all times. Rather, they emphasise that codes of morality must be specific to time, person, and place, and evolve according to changing requirements. That is how pluralism could become a way of life and the foundational principle of Indic civilisation. Even today when communities defend their own customs, they say, Hamaare yahan yeh hi pratha hai (This is our tradition here).” They never insist that it must become the standard norm for all.

Dharmashastras were not strictly religious treatises either. Dharma itself means the aggregate of duties and obligations, religious, moral, social and legal. This code of dharmic conduct was expected from each of the social roles a person performs. But there is no attempt to insist on a universal code for all of humanity. It is meant to be situation- and time-specific as well as person- and place-specific rather than an immutable set of laws. And the authority to change or start new customs too lies with not just the biradari (community) but also with the kula or family.

For example, Narada states, “Custom is powerful and overrides the sacred law.” The famous quote of Brihaspati Deshe desheya acharah paramparayakramjagaleh; Sa shastrarhabalavanaiva langhaniyah kadhachava essentially emphasises that different regions evolve different customs as per the requirements of that locality and community. People did not need to seek legitimacy from this or that text for practices they found appropriate, nor did they need the approval of any priesthood for amending, changing or scrapping a practice which came to be seen as unfair or unnecessary. This gave endless scope for change and adaptation as well as easy acceptance of differences among communities. While each kula and family had the authority to modify its over customs, none arrogated to itself the power to insist that others follow suit.

Manu Smriti, a text that the British promoted as the most authoritative code for Hindus, stresses that the business of the ruler is not to impose laws from above but that,

a king...must inquire into the law of castes (jati), of districts (ganapada), of guilds (shreni), and of families (kula), and settle the peculiar law of each... Thus have the holy sages, well knowing that law is grounded on immemorial custom, embraced as the root of all piety good usages long established.

Even some of those Smritis that deal exhaustively with various topics of law and are generally referred to as codes were not codes in the strict sense. It is noteworthy that, none of the Smritikars pick up cudgels with or deny the authority of other Smritikars in an attempt to prove that theirs is the most authoritative version of a single code of conduct. Instead, they assume that the various codes should coexist, not challenging each other. Most of the leading Smritikars make explicit statements to that effect. For example, Medhatithi and Vijnaneshvara, as also the Mahabharata and the Arthashastra of Kautilya, maintain the view that law as enjoined in the Vedas and the Smritis was of popular origin and the sanction behind that law was not the will of any supreme temporal power.

Mahatma Gandhi is one of the few modern social reformers to have understood this simple principle. Therefore, he could propose a radical agenda of social reform for all communities seeking sanction from no extrinsic authority – textual, religious or temporal – and initiate a far-reaching campaign for social reform, declaring:

Every word of the printed works passing muster as ‘Shastras’ is not, in my opinion, a revelation... The interpretation of accepted texts has undergone evolution and is capable of indefinite evolution, even as the human intellect and heart are... Nothing in the Shastras which is manifestly contrary to universal truths and morals can stand... Nothing in the Shastras which is capable of being reasoned can stand if it is in conflict with reason.

He then goes on to add:

My belief in the Hindu scriptures does not require me to accept every word and every verse as divinely inspired... I decline to be bound by any interpretation, however learned it may be, if it is repugnant to reason or moral sense.

Foundation Of Anglo-Hindu Law

Despite their zeal in bestowing on Hindus the “most authentic” code of family law, the British took no steps to collect evidence of diverse local or caste customs that actually operated on the ground.

Had they done so, they would have realised that customary practices were region and caste specific. They were not based on religious divides. In regions that followed Marumlakatyam or Alisanthanam systems, even Muslims and Christians shared those practices with various Hindu sects of the region. So also with Sikhs, Buddhists and Jains. While these Indic faith groups may have followed different forms of worship and spiritual practices, their customary practices with regard to family structure and inheritance pattern were not different from other groups in the region. However, different caste groups within the same region had different practices. For example, among the Kappus of Andhra, gifting a daughter a piece of land at the time of marriage as her streedhan was common, but among Reddys streedhan took other forms, and did not include land gifts.

Since even Islamic rulers did not interfere with local customs – whether of Hindus or Muslims, even though they introduced Islamic courts for criminal matters, Hindus and Muslims of the same region shared common customs and inheritance patterns.

But the British had their own agenda. Therefore, in 1772, Warren Hastings hired a group of 11 pundits for the purpose of creating a digest of Hindu law. This was a made-to-order text in which the pundits followed the authority of their paymasters. The use of these Sanskrit pundits to interpret the customary laws for the benefit of courts inevitably brought in a heavy Anglo-Brahmanical bias.

In 1776, it was printed in London under the title A Code of Gentoo Laws, or, Ordinations of the Pundits. This could be called the first serious, though far from accurate attempt at codification of Hindu law for the use of British judges.

This codification could not put an end to conflicting opinions. Therefore, the British began to increasingly mistrust the pundits, feeling that the latter were misleading the court by providing conflicting versions, not realising that there are countless Smritis and Shastras in India, some even written by women. Most of them were far more liberal than the laws then prevailing in England. That is why the British found them unacceptable and even dubbed them immoral. The British were also getting increasingly impatient with having to deal with a vast range of customs that had no shastric authority to back them. They didn’t approve of the fact that local customs had greater sanctity than shastric injunctions.

The resulting confusions and corruption led William Jones to work on a more “definitive” code of Hindu law comparable with Justinian’s Corpus Juris for the use of British judges in India. He was determined that “the British should administer to (the Indian people) the best shastric law that could be discovered” and was determined to “free the British from their dependence on the pundits”.

After Jones, Colebrook tried his hand at a similar compilation. In a few years time, Colebrook’s translations of the Mitakshara and the Dayabhaga became the two most frequently quoted and relied upon sources in court judgments. The work of these European authors on shastric law came to be trusted and used in preference even to the genuine works by Sanskrit scholars.

Thus grew the myth that Hindus were governed by shastric injunctions. These new law codes, backed by the authority of British courts, declared war on local customs. However, the British administrators piously claimed to provide protection to the latter. Since then the operative customs have been forced to struggle against Anglo-Shastric law, which was compiled through selective picking of conservative Shastras. The British forced this mish-mash upon Hindus, and gave it the status of the most definitive personal law of Hindus.

The modern educated elite in India, whose knowledge of India comes mainly from English language sources, were thenceforth systematically brainwashed into believing the colonial myth that Hindus were governed by their codified versions of shastric injunctions. This was part of a larger myth-building exercise, whereby the people of the subcontinent were taught that theirs was a stagnant civilisation and women’s rights could only be protected through aping the British. They were also led to believe that the British were actually administering Hindu personal laws through the medium of the English courts.

Over time, the judgments delivered by British judges became more authoritative than the Shastras from whom they supposedly derived their authority. For instance, the Maharashtra school was in many respects far more liberal in giving recognition to the rights of women than the schools of Hindu law that the British chose to rely on. The founder of this school, Nilakantha Bhalta, does not merely present traditional solutions but suggests that he evaluates them keeping in view the current needs of society. Even though in the early years the law courts took this school seriously, it slowly was eclipsed in favour of more conservative schools.

The same happened with other more liberal schools. For instance, in 1908, the Bombay High Court rejected the Balamabhatti of the Maharashtra school which was favourable to women. This work was written by a woman named Lakshmidevi, who expressed very liberal views and gave well-reasoned interpretations in furtherance of the rights of women. At one time, the Bombay High Court attached considerable importance to the opinions of this author but in later decisions the same court ruled that this text “cannot be accepted without due caution and examination”.

Even though in the beginning, these judgments affected only the disputing parties, they slowly became seen as binding on the entire community because British jurisprudence gave the weight of law to judicial precedents. This too added an unprecedented rigidity to Hindu law. The numerous High Court, Supreme Court and Privy Council decisions gave rise to a mass of case law, which came to supersede not only customary usages but the shastric texts on which they claimed to base their pronouncements.

Hindu Law Reform Under Brown Sahib Nehru

This ossified Anglo-Hindu law with a heavy Victorian patriarchal bias is what the Indian Parliament set out to reform in the first decade of Indian Independence. The Congress was at the time dominated by lawyers trained in British law. Many of them like Nehru had studied law in England. Consequently, they had imbibed all the colonial biases regarding the functioning of Indian society as well as the agenda of reform needed to “modernise” it. Thus the codified Hindu law of the 1950s carries forward the tradition of statist “reforms” initiated during British rule as part of the imperial mission to civilise and modernise Indian society.

Though the codification of Anglo Hindu Law carried out during the 1950s was lauded as a revolutionary step, in reality the reforms introduced were a mixed bag and in many ways constricted the rights of Hindu women instead of expanding and strengthening them. This is because what was taken as the baseline of reform was the Anglo-Saxon Victorian-minded codification with a heavy patriarchal bias.

Just as the British had constructed a negative stereotype of oppressed Indian woman on the basis of the disabilities suffered by certain groups of upper caste women in North western India – the ghoonghat, purdah, chardivari belt, so also the zealous reformers of Nehruvian persuasion took the restrictive/oppressive practices of the same caste groups as the all-India norm. They were not only ill-informed about the family organisation and social norms of regions where women had far stronger rights than those prevailing in supposedly progressive England, but were arrogant enough to ride roughshod over those who tried to bring the ground reality to their notice. In the following account, I provide a few illustrative examples of how the reformers were neither well informed about diverse Hindu practices and schools of thought, nor were they committed to making the reformed law more rational and pro-women.

The Hindu Marriage Act, 1955 (HMA) was originally supposed to have provision for civil marriage but by the time it was enacted, the civil marriage provision was removed and separately passed under the Special Marriage Act of 1954. The main gains of this Act were the enforcement of monogamy, providing legal legitimacy to inter-caste marriages and uniform provision for dissolution of marriages within all castes.

Even though widely different marriage ceremonies prevailed in different parts of India, the Hindu Marriage Act arbitrarily chose to make saptapadi (seven rounds of the sacred fire) as the ultimate defining feature of a valid Hindu marriage. Coupled with non-registration of Hindu marriages, this made it very difficult for women to prove the validity of their marriage in case the husband chose to disown it.

Sushama Sen, a supporter of the Bill, replying to a query from a Kerala member, V P Nayar, as to why saptapadi should be considered necessary for a valid marriage when many other forms of marriage were perhaps more widely prevalent (for example, in Marumakkattayam marriage which were contracts not sacraments, the ceremony consisted of a simple exchange of clothes), declared: “I am glad to find that only saptapadi can form a complete marriage. This will be in conformity with the modern progressive society.”

How and why saptapadi is more “modern” and “progressive” than an exchange of clothing remains unexplained, but the statement is typical of the mindless arrogance of the “secular reformers” (today rightly labeled as “sickularists”) who arbitrarily labeled their own narrow minded notions as “progressive”, and labeling as retrogressive any practice different from the ones with which they were familiar.

However, the major part of the debate came to revolve around the provisions for dissolution of marriage. The legislators had borrowed lock, stock and barrel the British notions of dissolution, which had developed very slowly and hesitatingly through the 19th century in England. In a desire to adhere to the Biblical dictum “What God hath joined together, let not man put asunder”, English law had, as it were, constructed a series of steps on the way to complete dissolution, and had also provided for backtracking – hence the provisions for void and voidable marriage, restitution of conjugal rights, judicial separation. Legal language used by British jurisprudence refers to divorce or separation granted by a court as “relief”, which is to be granted only to an “aggrieved” spouse.

In contrast, the customary Indian practice of dissolution of marriage went through no such stages. De facto separation – living separately without formal dissolution – was practiced routinely. Some texts also provided for dissolution if a spouse disappeared or was categorised as a “degenerate”.

The HMA was also projected as a great boon on the mistaken assumption that all Hindu women were denied the right to divorce or remarriage and all had to suffer oppressive widowhood on account of shahstric injunctions against widow remarriage. In reality, it was only among a few upper caste communities that marriage was considered a lifelong sacrament and widow remarriage treated as a taboo.

For the vast majority of caste groups, divorce was easily accessible for both men and women and widow remarriage was common. All it needed was a biradari panchayat of respected elders with representatives from both sides to oversee the terms of separation. This process did not require any financial burden or the torture of lengthy court proceedings. But the Hindu Marriage Act under the guise of liberal reform made the whole process of securing divorce extremely difficult and cumbersome – because the norms set by the reformed law were derived from the British law and Victorian notions of the essential indissolubility of marriage.

Several members offered concrete examples of more liberal schools of thought and customary practices prevalent in different regions of India but they were brushed off disdainfully. K Kuttikrishna Menon, government pleader from Madras pointed out:

The local legislature has passed the Madras Marumakkathayam Act (XXII of 1933) containing provisions regarding marriage and divorce which are far more liberal than those met within any other part of the civilised world... Divorce may be effected by a registered instrument of dissolution executed by the parties... or by an order of a civil court on a petition presented by a husband or a wife... the petition need not allege any grounds... the mere desire of either party... is considered sufficient... The complete freedom... has not disturbed the domestic tranquility of the people in any way.

Jaisoorya of Medak pointed out that while the Act, following British law, lays down that a marriage can be dissolved only if a spouse is not heard of for seven years, Narada and Kautilya had allowed dissolution after three years of disappearance, and Kautilya had allowed for divorce by mutual consent “whenever there is mutual hatred between husband and wife”. He advocated rational divorce provisions, which should form the nucleus of a uniform Civil Marriage Act:

Our laws are always lagging behind... All these ancient and archaic ideas of judicial separation, nullity, restitution of conjugal rights... take years.

However, many of the progressive and pro-women social customs and practices were road-rollered out of existence in the name of reform. In their place, the HMA imposed the notion of adversarial divorce and the notion that it should be made as difficult as possible, which were imported from 19th century Britain. The lawmakers failed to draw on indigenous systems of divorce in framing the law because of their ignorance or contempt for traditional systems, especially those of the South, which was shared by both the supporters and the opponents of the Bill. For example, S P Mookerjee of West Bengal, speaking against the Bill, expressed typically cavalier disregard of the alternative systems available in the South.

Somebody said... that south India was specially progressive and many of the laws which we are considering are already in existence there today. I say good luck to south India. Let south India proceed from progress to progress, from divorce to divorce... why force it on others who do not want it.

Several members of Parliament pointed out that the framers of the HMA were mistaken in thinking that British notions and practice were more advanced than Indian ones. To quote Pandit S C Misra:

...there are certain people… who think that they have brought forward a very progressive measure... it is certainly not more progressive than what you... see around you... It is just like the foreigners who came to India and said: ‘You Hindus are in darkness. We are bringing you out into enlightenment.’

However, the aura of Nehruvian liberalism carried the day and even newspapers celebrated it as a historic step of liberating women from the clutches of Hindu orthodoxy.

The Hindu Minority and Guardianship Act, 1956 is another example of how a divisive communal agenda was adopted by the Nehru government in the name of reform. The Guardians and Wards Act enacted by the British in 1890, was already in operation and applied to guardians and wards of all communities.

However, it was not explained why, instead of amending the Guardians and Wards Act, wherever necessary, a separate law had now to be passed for Hindus. There was nothing particularly “Hindu” about the provisions of the Hindu Minority and Guardianship Act. In fact, the provisions were conceived from an authoritarian statist point of view, giving government powers to interfere with parents in a way unknown to the Hindu or any other Indian community. If any law was to pave the way for a uniform civil code, it would be something like the Guardians and Wards Act, and certainly not a separate Act applied to Hindus and arbitrarily labeled “Hindu” as if it was based on religious principles. As Pandit Thakur Das Bhargava argued:

...this is an absolutely unnecessary Bill and it also goes against the principle of having a common civil code... this is a mischievous Bill insofar as the provisions of the Guardians and Wards Act will not apply uniformly to all the nationals... Now a Hindu minor will be quite different from a Muslim minor and a Christian minor... it creates more distinctions than are there in the present law.

The Hindu Adoption and Maintenance Act, 1956, is also the product of the same kind of hybridising effort – a weird mixture of British adoption law with select aspects of one particular school of Hindu adoption, namely Dattaka, preferred over others with the result that the Act retains such irrational anomalies as not allowing a person to adopt a son if he already has a natural or adopted son, not allowing adoption of a daughter if there is already a natural or adopted daughter, and thus restricting the number of adoptions possible by any one person to a maximum of two – one boy, one girl.

The main innovation the government claimed to be making was permitting a daughter to be adopted. However, by the law minister’s own account, it was an English judge, relying on a doubtful translation by an Englishman (Colebrooke) of Dattaka Chandrika, who had ruled that adoption of girls was invalid. Prior to this, several courts had recognised the customary adoption of girls. In Bombay and Calcutta, judges had ruled that adoption of a daughter by a dancing girl was invalid, because the judges regarded the custom of professional dancing as immoral.

However, two earlier decisions of the Madras Court had upheld such adoption, even simultaneous adoption of two girls, provided the adoption was not made for the purpose of prostituting the girls. Some of the leading schools of Hindu law laid no restrictions on adoption of daughters. Nanda Pandit in his Dattaka Mimansa has favoured adoption of a daughter and regards it as conducive to spiritual benefit to the adopter and his ancestors.

In actual fact, among most communities, girls were routinely adopted under customary law. Often it was only a legal fiction. For instance, if the forbidden sagotra marriage were to be made legal, a relative or friend of another gotra would adopt the girl thereby technically changing her gotra. Likewise in many parts of India, custom allowed women to adopt on their own. However, the reformed adoption law disallowed a married woman to adopt in her own right, or even jointly with her husband. Only the man was given the right to adopt, albeit with his wife’s consent. When it was pointed out that this falls short of equality, the Law Minister Pataskar claimed that such equality would be going too far:

I do not think there can be one adoption by the husband and another adoption by the wife. ...That is simply trying to subject this legislation to ridicule. The wife is not given the right. It is true... I do not want to go, nor will it be desirable in the interest of the society to go so far. I want that it is primarily the husband’s business to adopt.

In making this statement, Pataskar overlooked the fact that under Krithrima form of adoption, prevalent in and around Mithila, a wife or widow could adopt a son to herself, without the consent of her husband or anyone else. Krithrima adoption was recognised as legally valid though no ceremonies or documents were required for it. Shri Tek Chand pointed out:

Krithrima adoption of the strict Hindu law is a secular type of adoption whereas the Datta Homam adoption of Hindu law is a sacerdotal form of adoption.

Paradoxically, the Hindu Adoption and Maintenance Act recognised only Datta Homam or Dattaka type of adoption. Without stating any reason, other customary forms of adoption such as Krithrima and Illatom (adoption of son in law, prevalent in some parts of south India), Dwayayamushayan (simultaneous adoption of one or more sons) were rendered invalid. These were not extinct textbook rules but were living practices when the Nehru government codified this law. For instance, my former colleague Giri Deshingkar told me that his wife’s uncle who came from a village in North Karnataka, was adopted by his own widowed mother-in-law.

The Dattaka form of adoption required a ceremony of “giving” by the natural parents or guardians of the child and “taking” by the adoptive parents. This meant that an orphan or foundling could not be adopted unless he or she had a legal guardian (as defined under the Hindu Minority and Guardianship Act) to perform the “giving” ceremony. It also meant that de facto adoption was not recognised. Even if a child was known to have been brought up from infancy by adoptive parents, the adoption could be challenged in court and held invalid if it was proved that a giving and taking ceremony had not taken place or that the person who gave the child was not a guardian legally entitled to do so.

Dattaka adoptions led to endless litigation, as was pointed out by many MPs, and not refuted by government. However, because of its anxiety to label the Act “Hindu”, the Nehru government preferred to retain the give and take ceremony as a sign of “Hinduness” rather than to follow other forms of customary adoption practiced by Hindus which did not involve a religious ceremony.

Pandit Thakur Das Bhargava emphatically pointed out that all communities in India had been influenced by one another’s laws and evolved similar customs in regions where they lived in proximity to each other and that the Hindu Adoptions and Maintenance Act, like the Hindu Minority and Guardianship Act, was an unnecessary step in the opposite direction:

Today, in Punjab, Hindus, Muslims and Christians, all follow the law of appointment of heir... We are again making the mistake of making an exclusive law for Hindus... You should have waited a while longer and then made one law for all... You have taken some things from the Hindu religion and left out the rest. It would have been better if you had just said anyone can adopt anyone they like.

Thus the ultra-secular Nehru government imposed a confused, ill-conceived and ill-informed package of coded laws on Hindus, which took away more rights from women than it actually gave while at the same time refusing to touch Muslim personal laws.

The Hindu Succession Act, 1956 was by far the most controversial part of the four Acts. It was also perceived as the key part of the Code, as no other rights could be effectively claimed by women unless they had economic rights. Raghuramaiah pointed this out forcefully:

...divorce will not be really effective unless there is... an equal right of property... a woman who has no independent source of living would naturally be very chary about taking recourse to these divorce provisions... this Bill will be of no consequence, and of no benefit to the women of India unless they are given an equal right to property.

But did the Hindu Succession Act actually give women “an equal right to property” or did it only profess to do so? The original provisions on succession in the Hindu Code, framed by the B N Rau Committee and piloted by Dr B R Ambedkar, abolished the Mitakshara coparcenary with its concept of survivorship and the son’s right by birth in joint family property, instead substituting the principle of inheritance by succession. These proposals met with a storm of opposition.

The extent of opposition within the Congress itself can be gauged from the fact that in 1954, then law minister Charu Chandra Biswas, on the floor of the house, expressed himself as not in favour of daughters inheriting property from their natal families. As supporters of the Bill pointed out on several occasions, the reason for the virulence of the opposition to this provision was that it affected each individual male personally as he would have to share property with his sisters. Sita Ram Jajjoo from Madhya Bharat identified the reason for resistance accurately:

Here we feel the pinch because it touches our pockets. We male members of this House are in a huge majority. I do not wish that the tyranny of the majority may be imposed on the minority, the female members of this House.

However, the tyranny of the majority was in fact imposed, and by the time the Bill was finally passed in 1956, it was unrecognisable. The major changes were:

  • Retention of the Mitakshara coparcenary with only males as coparceners;
  • Coparcener’s right to will away his interest in the joint family property. This provision was unexpectedly introduced by an amendment by law minister Pataskar in the final stages of the clause-by-clause debate when the Bill was to be passed, in 1956.
  • Removal of exemption of Marumakkattayam and Aliyasanthanam communities; that is, virtual destruction of the only systems in which women were the equivalent of full coparceners.
  • Alteration of the original provision that a daughter would get a share equivalent to half the share of a son in self acquired property of the father who died intestate.

Since the HSA made the pretense of conferring equal property rights to women, they should have been made coparceners. This was suggested as early as 1945. In the written statements submitted to the Hindu Law Committee, a number of individuals and groups had advocated a full share and a right to partition for daughters. In 1956, when the Bill was being finally debated prior to enactment, Pandit K C Sharma moved an amendment that the daughter and her children should be deemed to be members of the Hindu coparcenary in the same way as a son or his children.

This would have been the logical step to take since the framers of the Bill claimed to be trying to incorporate all the most progressive elements of the different schools of Hindu law, and such a system was actually in existence in Kerala. However, law minister Pataskar’s reply, instead of attempting logic, merely amounted to an emotional rejection:

I really find that my friend Pandit K C Sharma is very progressive in his outlook... I cannot imagine of a family which can go on smoothly by the addition of daughters, their heirs and so on. ...It is admitted that a daughter does go out of the family by marriage.

This assumption that daughters must go out of the family on marriage and, thereby, cease to be full members of their natal family was at the root of all the inequities built into the Hindu Succession Act. (This discrimination was finally removed in 2005 by an amendment to HSA)

The second disparity was the list of heirs being different for a male and a female, with a woman’s in-laws taking precedence over her parents, while a man’s in-laws figure nowhere at all in his list of heirs. The idea of a woman’s property and the heirs to it being somehow intrinsically different from a man’s derives from the streedhan system, but in-laws did not precede parents as streedhan heirs. The bias in favour of in-laws was thus introduced purely on the basis of the contemporary north Indian practice, asserted ad nauseam by certain members, that a woman’s parents would not even drink water in her village, let alone agree to inherit her property.

Despite being repeatedly told that there were no such taboos in south or east India, the north Indian members persisted in identifying the northern custom with “Hindu” and “Indian” tradition and ideals. They dismissed the southern practice of normal interaction with daughters as an “aberrant” custom or usage. The exchanges were often almost comical, except that the results of such wilful arrogance were tragic.

When, for example, Pandit Mukut Behari Lal Bhargava was arguing that no Hindu parent would want to inherit a daughter’s property, L Krishnaswami Bharathi asked:

Bharathi: Why not? Why not? What is the harm?

Bhargava: Perhaps my honourable friend comes not from India but from an outside country.

Bharathi: I come from south of India.

Bhargava: In India no father nor mother will ever think of receiving anything from the daughter.

Bharathi: That may be so in Punjab.

Bhargava: It is so in the whole of northern India. I cannot speak with authority about south India... in our part of the country the father or mother will not even take water in the house of the daughter.

Bharathi: It is not so bad in our part of the country.

Bhargava: That may be a custom or usage prevalent in your part of the country, but in my part of the country, an overwhelming majority... Therefore the entire fabric of the rules of devolution is based on anti Hindu ideals.”

Interestingly, while a north Indian custom here is passed off as a Hindu ideal, no one quoted the numerous Shastras which give precedence to parents of a woman as heirs to streedhan, as a much more well founded Hindu ideal! Instead, as a concession, the order of heirs was altered only for members of formerly Marumakkattayam and Aliyasanthanam communities, but the rest of the south was brought under the new inheritance system where a woman’s in-laws take precedence over her parents. This was the logical outcome of the provisions in the Hindu Succession Act, which facilitated disinheritance of daughters. The property of daughters could not be passed on to surviving parents when the new law accepted the assumption that a daughter should not get inheritance rights in her parent’s property.

Yet another inequity was the provisions denying a married daughter the right to residence in her parental home unless widowed or deserted and denying any daughter the right to demand her share in the house if occupied by male family members.

In many parts of India, south of Vindhyachal, it was customary to give a piece of land to the daughter at the time of her marriage so that she did not go to her marital home as a “dependent”. The land provided her an independent income for her personal expenditure and gave her lifelong security. This constituted her streedhan, which passed from mother to daughter. In some regions this land was named Manjalkani. In coastal Andhra it was termed Katnam. In large regions of Maharashtra, such portion was termed Choli Bangdi Bhaag. In the Dharwar region, women enjoyed full land rights. In the North East too, Khasis, Garos and several other ethnic groups followed matrilineal inheritance. Under the Dayabagha system prevalent in Bengal, Assam etc. widows had full right over the husband’s share of the property.

In North India, even if land was not given, the concept of streedhan remained strong and took the form of gifting gold, silver and farm animals among other valuable commodities. All Smritikars including Manu acknowledge the sanctity of streedhan which was considered a woman’s exclusive property. It devolved in the female line. While Manu laid down six forms of streedhan, Katyayana added five more and Yagnavalkya expanded its scope by using the term adi meaning ‘etcetra’. Streedhan also included a woman’s self-earned wealth, indicating that women were not kept away from income generating forms of activities.

While different Smritikars gave different definitions of streedhan, there was unanimity about its sanctity and exclusivity to the extent that if the husband or in-laws were ever compelled to borrow from a woman’s streedhan, they had to return the amount with interest. Equally important, the gifts and ornaments received by a woman from her husband or in-laws also came under the category of streedhan, meaning her exclusive property. But by denying women a share in parental property, the HSA effectively undermined the concept. While streedhan constituted women’s exclusive property, dowry (a term derived from European practice) takes the form of gifts to the groom and in-laws and household goods – none of which provide economic security to daughters.

“Right to will” is totally alien to Hindu practices: From the very start of the codification process, many of those engaged in the debate had pointed out that the newly introduced provision of the will could be used as an instrument to deny daughters their rights. Some welcomed this and proposed that it be made easier; others warned of its dangers. For example, in the written statements submitted to the B N Rau Committee, we have one high court judge of Madras complacently (and as it happened, accurately) foretelling how the law would remain a dead letter:

...it is possible for the Hindu citizen who does not agree with the proposals to get over them. He could make a will and avoid those rules of inheritance by women which may not be to his liking... I, therefore, do not think they are likely to have any serious consequences in general.

Several persons had suggested some check on the testamentary power in order to protect the maintenance right of women, and their inheritance rights. A written statement to the Hindu Law Committee pointed out:

The right of alienating property by ‘will’ ... is one not conferred, or recognised by ancient law, or by the existing Hindu Law. The idea of ‘will’ itself is foreign and a later importation... There must be a preliminary part dealing fully with testamentary succession and limiting the rights of a testator.

That the real pressure groups behind the change in property laws were not women’s rights advocates but industrialists who saw economic advantage in rendering property more mobile in the hands of individual male owners is suggested by some very revealing articles in the contemporary issues of The Eastern Economist, over the years 1949 to 1955. This was the journal of the Federation of Indian Chambers of Commerce and Industry (FICCI), and thus may be said to represent the view of an important section of big business interests.

The position taken by the journal in its editorials was that the most important benefit of the Bill, although it was perhaps the least noticed aspect, was not women’s rights at all, but rendering property more liquid by allowing men to alienate it. The journal was not in favour of women’s inheritance rights. More than once it pointed out that the testamentary right could be used to set at naught women’s rights. In the issue of March 18, 1949, the lead article “The Economics of the Hindu Code” remarked:

It is curious how little of the discussion centred around basic economic factors. There is indeed a feeling among a few that economics played no little part behind the scenes... the Hindu Code minimizes those factors which attach to an individual by virtue of his birth and enables him to shape his destinies by free contractual relations... the daughter will get a share equal to that of the son... the principle of equal shares to daughters... it is said, not unreasonably, would aggravate the evil of fragmentation of agricultural holdings... But this... can for the most part be avoided by wise use of the testamentary power and neither an urban family business nor a family agricultural holding need be prejudiced... In the ultimate analysis, the true hallmark of a sound property system would lie in its mobility, in the reduction of the hindrances to freedom of transfer... While rationalist social reformers pride themselves on their conquest of the conservative opposition and women are elated by their hard-won rights, the economist may perhaps, find some merit in the system of ownership of, and succession to, property which the Code contains. What has least been noticed may possibly prove to be of the largest economic worth.
(Emphasis mine)

In the final debate in 1956, this became a central issue. It was pointed out that a man could disinherit not only daughters but even traditional female heirs such as a widowed daughter -in-law. Earlier, these female heirs had a limited estate but this was ensured to them; now the so called absolute estate would depend on the man’s will. It was argued by many members that the clause meant undercutting the whole Bill whose ostensible purpose was to provide equal inheritance rights to women. The provision that allowed daughters to sign away their rights in favour of their brother or others, even in the insignificantly small share that would come to them in coparcenary property made a mockery of the whole exercise. S S More expressed his disappointment:

Are you giving anything substantial to the daughters?.. I will say: ‘No.’...Those who are opposed to this Bill, those who want to see that their daughters should not get their dues should do nothing else but ...prepare standard will forms and give them for signature by everybody who has some property... this particular clause is very sinister. It takes away by the right hand what we are trying to give to the daughters by our left. ...this sort of keeping a loophole in the whole measure is not a good practice. Let us be honest. If we do not want to give to the daughters anything, then surely, let us say that... in view of the fact that the elections are in the offing, we are not prepared to go whole length.

Thakur Das Bhargava proposed an amendment along the lines of English law, that if a man disinherited by will his widow, minor sons or unmarried daughters, they could have a claim to maintenance on his property. Several ardent supporters of the Bill backed this amendment but Pataskar rejected it disdainfully.

The introduction of the right to will away one’s interest in coparcenary property in effect meant giving men much more power over property than they had under traditional Mitakshara law, not to talk of other schools which were more favourably inclined to women. Even under the Mitakshara law, the coparcenary system restricted the rights of individual men to alienate property, thereby safeguarding the rights of all members of the family including even infants and children in the womb, and also the rights (though unequal) of women and illegitimate children to maintenance from the joint family property.

Although many powers were vested in the karta or male head of the family, who was supposed to administer the property in the interests of all members, decisions regarding disposal of family property were to be taken collectively. Although notionally each male had an equal share in the property, expenditure was not to be apportioned only to males but also to females. Expenditure on women members’ needs, gifts and endowments for pious and charitable purposes, or expenditure on the special needs of some members, were to be undertaken from the common funds, and no coparcener was entitled to complain that more had been spent on another member than on himself. Some Mitakshara schools even allowed a wife to act as a karta in her husband’s absence.

The right to “will” is completely alien to Hindu law. Its introduction into a law labeled “Hindu” was highly inappropriate. Ironically, the law minister himself declared on the floor of the house that anyone who wants to disinherit his daughters,

...can under the new provision contained in clause 32 of this Bill make a will in respect of his interest in the joint family property, and provide that she (the daughter) shall have no share in his interest. ...It is thus clear that those who want to be governed only by the existing rules of the Mitakshara system even after the passing of this Act have been given the choice to do so.

One would have to look far to find another law minister who was willing to point out so brazenly in a Parliamentary debate how a government sponsored Bill contains within itself the means for its own circumvention! The provision of the will has indeed become a standard method for disinheriting daughters. Apart from the father’s will, it is a fairly common practice that fathers and brothers make the woman sign a will on the eve of her marriage that she forfeits her share of property in favour of her brothers. (Unfortunately, even in the 2005 amendment to HSA giving women coparcenary rights, the right to “will” has been retained thus leaving the door open for disinheriting daughters)

However, the communities following the Marumakkattayam, Aliyasanthana and Nambudari systems were denied the right to use the will as per their customary practices. These systems had strong provisions in favour of women’s inheritance rights since property was inherited through the female line. But the reformers gave women very limited rights in family property in the Hindu Succession Act on the ill-informed assumption that Hindu customs do not favour equal inheritance rights for women. This was a major setback for all those communities of Southern, Eastern and Western regions of India where women’s inheritance rights had strong sanction.

A Karunakara Menon was one of those who argued strongly for incorporation of Marumakkattayam principles into the uniform Hindu law or, failing that, for exemption of Marumakkattayam communities:

We should not be dragged down from the position that we are in at present...The provisions have been conceived from a patriarchal point of view... Why should grandson or great grandson be an heir preferred to sister or her children? People in Malabar will never agree.

It was symptomatic of the cavalier attitude of the legislature towards the south in general, and the overwhelming north Indian bias in their approach to the law, that there was no member on the Select Committee of 1948 who understood Marumakkattayam law. This was highlighted and protested against by V P Nayar. Some members from the south like Vallatharas of Pudukkotai put on record their resentment:

...the northern members have not yet got sufficient appreciation of the south just like the Americans are not able to have sufficient appreciation of India.

Other communities, which did not have vocal representatives in Parliament, got even shorter shrift. For example, the Khasi community, amongst whom the youngest daughter inherits the parental home, was mentioned in passing by a member from Assam, Rohini Kumar Chaudhuri, but no one seriously considered studying their system or incorporating it into the uniform law.

To Sum Up: Time to Junk Hindu Codified Law

The final product of Hindu law reform had very little “Hindu” about it. For reasons of space, the above account provides only a few salient examples of how the codification of Hindu law in the 1950s used the term “Hindu” only as a convenient mask for destroying the quintessential features of Hindu social organisation. Further amendments to Hindu marriage and divorce laws, Hindu adoption law and Hindu Succession Act to remove provisions that discriminated against women have made the term “Hindu” altogether redundant because when these laws were amended by Parliament, the governments of the day did not even make a pretense to justify the amendments as having greater legitimacy as per Hindu Shastras or customs.

Thus Hindu codified law is an empty shell within which the British as well as the Brown Sahibs of post-Independence India arbitrarily shoved in whatever caught their fancy.

The quintessential feature of Hindu customs is that they do not follow any textual or religious authority. Hindu customary practices were not an ossified set-in-stone system of do’s and don’ts. They constantly evolved with the changing expectations of people with changing requirements of times. Acceptance of diversity and the rights of each community to manage its internal affairs is the core value of Hindu/Indic civilisation and culture. By trying to create a uniform law for all Hindus without even living up to the promise of equality, the Nehru government robbed it of its many pro-women values and practices.

It also drove a permanent wedge between Hindus and people who follow Abrahamic faiths – namely Muslims and Christians. Till the outset of British rule, Muslims and Christians shared local customs and principles of family organisation with Hindus of their respective regions even though the three faith groups followed different theologies and modes of worship. The influence was mutual, not one-sided.

But codification of Hindu law and enactment of separate laws for Christians and Muslims drove a permanent wedge between these communities. India is still reaping the bitter harvest of that divisive game initiated by the British but given further legitimacy by Nehruvian secularists.

Fortunately for us, in the last three decades, some of the laws enacted in the name of strengthening women’s rights or protecting them from exploitation and violence (example, the anti dowry law, child marriage restraint act, laws to combat domestic violence and anti-rape legislation) do not carry any religious tag. Therefore, despite their many flaws, they have acted as bridge builders between women of different religions and faith groups. Muslim, Parsi and Christian families are using these laws without any diffidence or hindrance.

Therefore, the onus of ensuring a uniform civil code falls mainly on the Hindu community.

Hindus should demand junking of all laws with a “Hindu” tag and have it replaced by an egalitarian civil code available to all citizens on demand overriding ethnic identities based on religion, caste, region, tribe or sect. Such civil laws already exist in the form of Indian Marriage Act, Indian Divorce Act, Indian Succession Act, Wards and Guardianship Act and laws against domestic violence.

They can be suitably amended to make them perfectly egalitarian and fair-minded. By junking all the laws carrying the Hindu label, the message will be clear that those who wish to be governed by their religious laws or caste-community customs can do so without seeking endorsement or protection from secular courts. Let their religious or caste leaders make arrangements for adjudication of laws and customs they hold sacred.

State-enacted laws come to the aid of citizens only when they approach the police or courts. Despite codification, most Hindu groups continue with their customary practices so long as its adherents have no problem with them.

Nor does the government interfere with them unless and until some members approach the courts to challenge them. Similarly, even after the enactment of an optional and egalitarian civil code, Muslims and Christians may continue with their personal laws so long as members of those religious or caste groups accept their sanctity. But if any person or family feels aggrieved by or dissatisfied with their religious laws or community sanctified practices, they should be able to seek the protection of the civil courts which should only deliver justice on the basis of uniformly applicable egalitarian civil code. To expect secular courts of India and its judges to do the work of maulvis, Christian priests or caste panchayats is to make a mockery of secularism.

However, Optional Civil Code will wean away women from the tyranny of those communities that refuse to give women their rightful due without forcing any person or community to follow it against its will. In the process, it is likely to trigger off the process of internal reform within each community.

But the egalitarian optional code will have to purge the heavily lop-sided and draconian provisions added at the behest of virulent feminists to some of the secular laws enacted for the protection of women.

Madhu Purnima Kishwar is Maulana Azad National Professor, ICSSR, and the founder of human rights organisation, MANUSHI.

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