Saturday 14 February 2015

CHRISTIAN PERSONAL LAWS - REVISITED


Dr John Dayal is to be commended for a comprehensive article on Christian personal laws “In the True Christian Spirit” (IC 22nd September). However, some factual errors seem to have crept in, perhaps because he was not involved with the issues/ organizations in the early 1990’s. But I was.

When I stood for National President of the All India Catholic Union (AICU) in 1990 I had made an election manifesto, in which updating of Christian personal laws pertaining to Marriage, Divorce, Succession and Adoption was a priority.

On assuming office I conducted an all India survey, through our Catholic Associations, to ascertain the views of our people. I also came in contact with the redoubtable Dr Jyotsana Chatterji of the Joint Women’s Programme, referred to by John. We worked out a consensus, and submitted our proposal to the Govt through Sri M.M. Jacob, the then Union Minister of State for Home. He assured us that he would pursue the matter with the Govt. However, when we next met him, he said he could do nothing; as the very next day of our meeting him, the CBCI delegation met him, opposing our proposals. The bishops were led by Abp Alan deLastic of Delhi, whom John describes as “putting the weight of his mighty personality behind the movement of Christian women”. Yes, he used his weight, not to support, but to oppose the proposals that sought gender equity in law.

The Catholic media then published several articles vilifying me for supporting the women and opposing the bishops. A priest of the Delhi archdiocese authored them. One does not require much effort to put two and two together! 

We in AICU had done our homework. My National Secretary for Legal Affairs, Adv Jose Chiramel, prepared a comprehensive list of lacunae/ anomalies in the existing Indian Divorce Act –1869 (IDA) and the Indian Christian Marriage Act –1872 (ICMA). For example Sec 1 states that it does not apply to Travancore-Cochin, Manipur and J&K. Sec 3 refers to the Church of England and the Church of Scotland, both of which are extant in India.

It was Bp Bosco Penha of Mumbai, the Chairperson of the Family Commission (if my memory serves me right) who took the initiative to call a joint meeting of all the stakeholders at the CBCI Centre. I vividly remember Abp deLastic coming late, and strategically plunking himself next to me! Adv Chiramel’s presentation and the AICU survey made sense to those present. We also affirmed that we were not supporting divorce per se, but only its civil effects. These proposals were unanimously accepted. This must have been sometime in 1993.

A few months later I demitted office. Others in the AICU did not pursue these matters vigorously, and the Congress led Govt put them in cold storage (not the NDA Govt as stated by John). 

These issues were resurrected in 2000 during the NDA regime, when Ram Jethmalani was the Law Minister, and Arun Jaitley his junior. The Govt convened a meeting, and the then AICU President, Dr Maria Menezes, deputed me to represent the organization because of my familiarity with the subject. I was seated with Jyotsana and some other ladies. John attended that meeting together with Abp deLastic. While the AICU and the women’s organizations supported the Govt’s proposed amendments, Abp deLastic was red-faced in his opposition. Perhaps he saw a saffron tinge in the entire exercise. In retrospect, his was a jaundiced view.

Sensing the disagreement among Christians, the Govt steered clear of any amendments to the ICMA. However, it did make major changes in the IDA in 2001, w.e.f. 3/10/2001. It even changed the name of the Act itself. It is now known as the Divorce Act 1869. Some of the far-reaching amendments made were the repeal of Sec 20 that had made it mandatory for every Christian divorce granted by the District Judge to be confirmed by the High Court. This applied only to Christians, and was a cumbersome and expensive exercise. Hence its repeal gave much relief to Christians. It also amended Sec 10, the grounds for divorce, that were earlier loaded in favour of the male. It also introduced a new Sec 10A, that provides for divorce by mutual consent, which did not exist earlier. The Act was infact being made more in conformity with the Special Marriage Act.

As for the Indian Succession Act 1925, that covers Christians, it had a lacuna in Sec 213, because of which the successors in interest of a Christian testator had to pay Court Fees as prescribed in the Transfer of Property Act (about 7–10% of the value of the estate) for probating a Will, before the estate could devolve on them. This was over and above paying Estate Duty that was thankfully abolished when V.P. Singh was Rajiv Gandhi’s Finance Minister in the 1980’s. This effectively meant that Christians actually had to sell off a part of their property to pay stamp duty and estate duty before it could devolve on them.

This unjust provision was unsuccessfully contested by Adv Clarence Pais of Mangalore, in the Supreme Court. Hence it was amended by Act 26 of 2002 in Parliament, through the good offices of Union Minister George Fernandes, Pais’ fellow Mangalorean. Ironically the Parsi Succession Act was passed in December 1991, despite the Parsis having no voting strength whatsoever. But they did have intellectual strength in top lawyers/ solicitors who must surely have espoused their cause. Surprisingly, we Christians don’t seem to have any “godfathers” to espouse our causes before successive Central Govts. A pity.

Many may also not know that though Christian service organizations probably care for the maximum number of orphans in India, we did not have the right to adopt. We could only have Wards, under the Wards & Guardianship Act. Here too it meant that if a Guardian died intestate its ward would not be its legal heir. This anomaly was removed by a simple amendment to the Juvenile Justice Act by the UPA Govt stating that all Indians had the right to adopt. This issue was strongly pursued by Dr Aloma Lobo of Bangalore, who was on the Govt’s committee for adoption. 

I now come to the last point raised by John, about an attempt to get the Code of Canon Law 1983 (which applies only to Latin Rite Catholics) to be made the personal law of Christians in India. A Public Interest Litigation (PIL) was filed in the Supreme Court in 2012 by none other than Adv Clarence Pais again. He made the AICU one of the respondents. Hence the current AICU President, Sri Eugene Gonsalves, referred the matter to me; and I gave my point-by-point rebuttal; stating that Pais’ PIL was seriously flawed, ill conceived and non-maintainable. The cause of action for Pais’ PIL arose from a situation where a Catholic had obtained a Church annulment of his marriage (which is not accepted in civil law), and then entered into a second marriage, without the legal dissolution of his first marriage. This was tantamount to bigamy, which is a criminal offence under Sec 494 of the Indian Penal Code. This attracts a sentence of seven years, with fine. It was with the intention of obtaining relief for his client that Pais went to the Supreme Court, pleading for Canon Law (and in the instant case, that of a Church annulment) to prevail over civil and criminal law, by making it the personal law of Christians in India. Such an approach has dangerous portents, too many to be enumerated here. Hopefully, AICU has opposed the PIL, and the Supreme Court will dismiss it, if not done so already.

As for the Law Commission, we should welcome any move to bring about gender equality in law. However, uniformity may not be easy, and should not be mistaken for unity. For example, the Khasis of Meghalaya are matrilineal, where the youngest daughter inherits all the property! Let us hope that “weighty bishops” will also tilt the scales in the right direction this time. We need to look before we leap, think before we speak, study what we seek, and be ever vigilant before we sleep!


October 2014

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