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Sikh Marriage Law - Problems and remedies
Much is being said and written about the marriage law amongst Sikhs these days. It is necessary to ponder over the existing law applicable for a Sikh marriage and how it has come about. Family laws of which marriage law is an essential part had been customary in character in Punjab.
A person inspite of having converted to Islam or having been baptized as Sikh carried his customary law alongwith him and thus was governed more by the rules of caste to which he belonged rather the rules of religion to which he belonged. It led Rattingon who codified the customary law in Punjab to state that the customary law in Punjab is more tribal in character rather than communal. This implied that a Sikh and a Muslim belonging to the same caste may have the same law in particular aspects. Courts which were established during the British rule also enforced the caste customary law as a preference over the communal personal laws like Hindu Law (Shastric law) and Muslim Law (Law of Shariat). Since much of Muslims throughout India were converts from Hindus, they carried their regional customary laws alongwith them and the colonial courts recognized those customary laws. Muslim organizations persuaded the Government to make application of law of Shariat to all professing Muslim religion. Accordingly, Muslim Shariat Application Act, 1937 was enacted making application of Law of Shariat in different branches of personal law (excepting laws relating to agricultural lands).
Sikhs for obvious reasons continued to be governed by the customary laws and practices of the various shades of Hindu communities from which they came to the Sikh folds. In any case, those customary practices again were of caste/bridari specific. This situation continued till the four laws relating to marriage, adoption and maintenance, succession and minority and guardianship were enacted in 1955 and 1956 providing to a great extent uniform principles of laws in these areas in relation to Hindus, Sikhs, Jains and Buddhist.
2. We are immediately concerned here with the law relating to marriages amongst Sikhs. A uniform law, namely, the Hindu Marriage Act, 1955, relating to marriages amongst Hindus, Sikhs, Jains and Buddhists where both the parties belong to either of these religions was enacted. It contains various aspects relating to a marriage like eligibility, ceremonies, registration, divorce, judicial separation, etc. uniformily in relation to persons of these four religions. It is interesting to note here that there had never been religion specific objections to these aspects of the Hindu Marriage Act. The Act in clause (b) of sub-section (1) of section 2 clearly spells out Buddhist, Jaina and Sikh religions as distinct religions in contradistinction to Hindu religion mentioned in clause (a) of that sub-section. There had been occasions to refer to all these four religions distinctly elsewhere in other Acts also. Sections 19 of the Special Marriage Act, 1954, an Act enacted prior in time to the Hindu Marriage Act, 1955, may be referred to. It clearly spells out Hindu, Buddhist, Sikh or Jain religions as separate and distinct religions.
The Indian Succession Act, 1925 is still an earlier legislation which identifies Hindu, Buddhist, Sikh and Jaina as separate religions. Mischief, whether done intentionally or unintentionally, is engrafted in sub-section (3) of section 2 of the Hindu Marriage Act, 1955 which is more in the nature of a definition provision laying down that the expression “Hindu” in any portion of that 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 provision contained in that section. Thus Sikhs, Jains and Buddhist though recognized and declared as separate religions by the same section at the outset are enveloped into the fold of bigger entity by virtue of a legislative definition at the tale end of the same section. Thus that definitional connotation “Hindu” has elsewhere been used in the provisions of the Act and even in the long title and short title of the Act which are the sign post of an Act. This has caused the whole trouble and misgivings all these 58 years of our republic.
Hence, the objection to the marriage certificate which bears the title of a Hindu marriage. Even section 7 which relates to the ceremonies for a marriage (branded as Hindu marriage ) under that Act in sub-section (1) is candid enough to provide that it can be solemnized in accordance with the customary rites and ceremonies of either party thereto. Thus there cannot be any doubt about the Anand being customary rite which is being practiced by Sikhs over a century. In view of that, this provision can be construed as to have taken over the Anand Marriage Act, 1909. Sub-section (2) of section 7 is explanatory in relation to satpadi as a rite. Certain State Amendments have been provided in relation to this section to include certain State specific rites or customs.
3. Much is being said about the Anand Marriage Act, 1909. The long title of the Act is very clear to provide that the objective of the Act is to remove doubts as to the validity of the marriage ceremony common among the Sikhs called Anand. Section 2 of the Act provides the validity of law to such marriage so far then solemnized or which may be solemnized in future. Section 3 of the Act, inter alia, provides that nothing in that Act shall apply to any marriage between persons not professing the Sikh religion. Anand form of marriages were common and are still common amongst Hindus, both in India and Pakistan. Further, instances are not lacking where one of the party to the marriage is not a Sikh. Validity of such marriages under the extant Anand Marriage Act which is on the statute book since 1909 gets cast in doubt since it does not provide its protection to those not professing Sikh religion. Prototypes being bandied in India or having been approved in Pakistan (no body has seen the draft so far) appears to have restricted its coverage to persons who declare themselves to be Sikhs. This is an aspect which needs wider discussion which can only be done once the drafts of the proposed legislations are widely circulated and discussed. Does Pakistan legislation intend to deprive many lakhs of Hindu Nanakpanthis the privilege of Anand marriage? Any exclusivity for Sikhs in this regard will be dangerous.
4. With a view to hit at the solution, it is necessary for us to identify the grievance. No body has ever pointed out that the existing four legislatins covering Sikh diaspora have something in them which is conceptually contrary to Sikh ethos and principles. Still the problem is there and it has its genuine reasons. It is more in the nature of fear of subsuming of the identity. The problem is equally, rather more pronounced, in the fundamental law of the country. Constitution in article 25, while providing enabling provisions for making laws of ameliorative nature in relation to Hindus, Sikhs, Jains and Buddhists, in Explanation II appended thereto creates a fiction that references in relation to Hindus shall be construed to have included references relating to Sikhs, Jains and Buddhist. A soft and benign way of looking at it and explaining would be that the draftsman in his anxiety to be miser at the words to avoid repetitive mention of Sikhs, Jains and Buddhist at one or two places has followed the route of giving a definition at one place and not repeating the words. However, the facts are otherwise. In his present style, he has added more words to the article and cause of brevity has nowhere been achieved. Rather it has caused much damage to the unity of the country. Minorities have looked it at as an exercise to subsume their identity. Sooner it is undone shall be better. Certain Sikh individuals and organizations had been advocating for the omission of Explanation II lock, stock and barrel. Operative provisions of clause (2) of article 25 to which this Explanation relates are important provisions and Sikh society badly needs legislative and other measures to remove social maladies which are the hang over of the past.
5. National Commission to Review the Working of the Constitution head by Chief Justice M.N. Venkatachaliah made a recommendation in relation to article 25 on the following lines. The present writer was Secretary of that Commission:-
Explanation II to article 25 should be omitted and sub-clause (b) of clause (2) of that article should be reworded as follow:-
“(b) providing for social welfare and reform or the throwing open of Hindu, Sikh, Jaina or Buddhist religious institutions of a public character to all classes and sections of these religions.”.
Proposed amendment removes the obnoxious Explanation II which puts independent entity of three distinct religions including Sikhs under wrap and simultaneously keep in tact the beneficial enabling power to make laws of social reforms in relation to religious institutions belonging to religious communities. Inspite of the postulates of equality given to us by our Gurus, there is enough of social discrimination at ground level. Levers of State may be needed to remove those social maladies.
6. Drafting of four family law legislations, namely, Hindu Code equally applicable to Sikhs got its reflection from the drafting of article 25 of the Constitution. Even if we do not ascribe malice to the ruling establishment of the day when those were drafted, it can be safely assumed that the then draftsperson were disciples of those who drafted the Constitution. They did their job the same way as their peers did. Sikh leadership should make optimum use of this valuable recommendation of the high powered Commission which consisted 11 eminent persons of the country including Chief Justice Venkatachaliah, Justice R.S. Sarkaria, Justice Jeevan Reddy, Mr Soli Sorabjee, Parasaran, etc.
7. It shall be appropriate to focus our energies towards-
(a) getting article 25 of the Constitution amended as recommended by the National Commission to Review the Working of the Constitution;
(b) getting amended the titles of four family legislations (now named Hindu Acts) as the Hindu, Sikh, Jain and Buddhist…..Act or in some other form to make the same name neutral;
(C) getting amended section 7 of the Hindu Marriage Act, 1955 providing new sub-section (3) for Anand as a customary rite (with no restrictive mention as to Sikhs).
Harbans Singh Aujla
pakhar@hotmail.com
Much is being said and written about the marriage law amongst Sikhs these days. It is necessary to ponder over the existing law applicable for a Sikh marriage and how it has come about. Family laws of which marriage law is an essential part had been customary in character in Punjab.
A person inspite of having converted to Islam or having been baptized as Sikh carried his customary law alongwith him and thus was governed more by the rules of caste to which he belonged rather the rules of religion to which he belonged. It led Rattingon who codified the customary law in Punjab to state that the customary law in Punjab is more tribal in character rather than communal. This implied that a Sikh and a Muslim belonging to the same caste may have the same law in particular aspects. Courts which were established during the British rule also enforced the caste customary law as a preference over the communal personal laws like Hindu Law (Shastric law) and Muslim Law (Law of Shariat). Since much of Muslims throughout India were converts from Hindus, they carried their regional customary laws alongwith them and the colonial courts recognized those customary laws. Muslim organizations persuaded the Government to make application of law of Shariat to all professing Muslim religion. Accordingly, Muslim Shariat Application Act, 1937 was enacted making application of Law of Shariat in different branches of personal law (excepting laws relating to agricultural lands).
Sikhs for obvious reasons continued to be governed by the customary laws and practices of the various shades of Hindu communities from which they came to the Sikh folds. In any case, those customary practices again were of caste/bridari specific. This situation continued till the four laws relating to marriage, adoption and maintenance, succession and minority and guardianship were enacted in 1955 and 1956 providing to a great extent uniform principles of laws in these areas in relation to Hindus, Sikhs, Jains and Buddhist.
2. We are immediately concerned here with the law relating to marriages amongst Sikhs. A uniform law, namely, the Hindu Marriage Act, 1955, relating to marriages amongst Hindus, Sikhs, Jains and Buddhists where both the parties belong to either of these religions was enacted. It contains various aspects relating to a marriage like eligibility, ceremonies, registration, divorce, judicial separation, etc. uniformily in relation to persons of these four religions. It is interesting to note here that there had never been religion specific objections to these aspects of the Hindu Marriage Act. The Act in clause (b) of sub-section (1) of section 2 clearly spells out Buddhist, Jaina and Sikh religions as distinct religions in contradistinction to Hindu religion mentioned in clause (a) of that sub-section. There had been occasions to refer to all these four religions distinctly elsewhere in other Acts also. Sections 19 of the Special Marriage Act, 1954, an Act enacted prior in time to the Hindu Marriage Act, 1955, may be referred to. It clearly spells out Hindu, Buddhist, Sikh or Jain religions as separate and distinct religions.
The Indian Succession Act, 1925 is still an earlier legislation which identifies Hindu, Buddhist, Sikh and Jaina as separate religions. Mischief, whether done intentionally or unintentionally, is engrafted in sub-section (3) of section 2 of the Hindu Marriage Act, 1955 which is more in the nature of a definition provision laying down that the expression “Hindu” in any portion of that 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 provision contained in that section. Thus Sikhs, Jains and Buddhist though recognized and declared as separate religions by the same section at the outset are enveloped into the fold of bigger entity by virtue of a legislative definition at the tale end of the same section. Thus that definitional connotation “Hindu” has elsewhere been used in the provisions of the Act and even in the long title and short title of the Act which are the sign post of an Act. This has caused the whole trouble and misgivings all these 58 years of our republic.
Hence, the objection to the marriage certificate which bears the title of a Hindu marriage. Even section 7 which relates to the ceremonies for a marriage (branded as Hindu marriage ) under that Act in sub-section (1) is candid enough to provide that it can be solemnized in accordance with the customary rites and ceremonies of either party thereto. Thus there cannot be any doubt about the Anand being customary rite which is being practiced by Sikhs over a century. In view of that, this provision can be construed as to have taken over the Anand Marriage Act, 1909. Sub-section (2) of section 7 is explanatory in relation to satpadi as a rite. Certain State Amendments have been provided in relation to this section to include certain State specific rites or customs.
3. Much is being said about the Anand Marriage Act, 1909. The long title of the Act is very clear to provide that the objective of the Act is to remove doubts as to the validity of the marriage ceremony common among the Sikhs called Anand. Section 2 of the Act provides the validity of law to such marriage so far then solemnized or which may be solemnized in future. Section 3 of the Act, inter alia, provides that nothing in that Act shall apply to any marriage between persons not professing the Sikh religion. Anand form of marriages were common and are still common amongst Hindus, both in India and Pakistan. Further, instances are not lacking where one of the party to the marriage is not a Sikh. Validity of such marriages under the extant Anand Marriage Act which is on the statute book since 1909 gets cast in doubt since it does not provide its protection to those not professing Sikh religion. Prototypes being bandied in India or having been approved in Pakistan (no body has seen the draft so far) appears to have restricted its coverage to persons who declare themselves to be Sikhs. This is an aspect which needs wider discussion which can only be done once the drafts of the proposed legislations are widely circulated and discussed. Does Pakistan legislation intend to deprive many lakhs of Hindu Nanakpanthis the privilege of Anand marriage? Any exclusivity for Sikhs in this regard will be dangerous.
4. With a view to hit at the solution, it is necessary for us to identify the grievance. No body has ever pointed out that the existing four legislatins covering Sikh diaspora have something in them which is conceptually contrary to Sikh ethos and principles. Still the problem is there and it has its genuine reasons. It is more in the nature of fear of subsuming of the identity. The problem is equally, rather more pronounced, in the fundamental law of the country. Constitution in article 25, while providing enabling provisions for making laws of ameliorative nature in relation to Hindus, Sikhs, Jains and Buddhists, in Explanation II appended thereto creates a fiction that references in relation to Hindus shall be construed to have included references relating to Sikhs, Jains and Buddhist. A soft and benign way of looking at it and explaining would be that the draftsman in his anxiety to be miser at the words to avoid repetitive mention of Sikhs, Jains and Buddhist at one or two places has followed the route of giving a definition at one place and not repeating the words. However, the facts are otherwise. In his present style, he has added more words to the article and cause of brevity has nowhere been achieved. Rather it has caused much damage to the unity of the country. Minorities have looked it at as an exercise to subsume their identity. Sooner it is undone shall be better. Certain Sikh individuals and organizations had been advocating for the omission of Explanation II lock, stock and barrel. Operative provisions of clause (2) of article 25 to which this Explanation relates are important provisions and Sikh society badly needs legislative and other measures to remove social maladies which are the hang over of the past.
5. National Commission to Review the Working of the Constitution head by Chief Justice M.N. Venkatachaliah made a recommendation in relation to article 25 on the following lines. The present writer was Secretary of that Commission:-
Explanation II to article 25 should be omitted and sub-clause (b) of clause (2) of that article should be reworded as follow:-
“(b) providing for social welfare and reform or the throwing open of Hindu, Sikh, Jaina or Buddhist religious institutions of a public character to all classes and sections of these religions.”.
Proposed amendment removes the obnoxious Explanation II which puts independent entity of three distinct religions including Sikhs under wrap and simultaneously keep in tact the beneficial enabling power to make laws of social reforms in relation to religious institutions belonging to religious communities. Inspite of the postulates of equality given to us by our Gurus, there is enough of social discrimination at ground level. Levers of State may be needed to remove those social maladies.
6. Drafting of four family law legislations, namely, Hindu Code equally applicable to Sikhs got its reflection from the drafting of article 25 of the Constitution. Even if we do not ascribe malice to the ruling establishment of the day when those were drafted, it can be safely assumed that the then draftsperson were disciples of those who drafted the Constitution. They did their job the same way as their peers did. Sikh leadership should make optimum use of this valuable recommendation of the high powered Commission which consisted 11 eminent persons of the country including Chief Justice Venkatachaliah, Justice R.S. Sarkaria, Justice Jeevan Reddy, Mr Soli Sorabjee, Parasaran, etc.
7. It shall be appropriate to focus our energies towards-
(a) getting article 25 of the Constitution amended as recommended by the National Commission to Review the Working of the Constitution;
(b) getting amended the titles of four family legislations (now named Hindu Acts) as the Hindu, Sikh, Jain and Buddhist…..Act or in some other form to make the same name neutral;
(C) getting amended section 7 of the Hindu Marriage Act, 1955 providing new sub-section (3) for Anand as a customary rite (with no restrictive mention as to Sikhs).
Harbans Singh Aujla
pakhar@hotmail.com
