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!
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