The well-known adage “ignorance of law is no excuse” was once suffixed by the late justice VR Krishna Iyer with the words “except for the lower courts”. He was lamenting the cases of miscarriage of justice resulting from misreading of laws often reported from the lower ladders of the judicial hierarchy. An astounding instance of this has been recently reported from Madhya Pradesh where a family court refused to apply the divorce law under the Hindu Marriage Act of 1955 to several Jain couples on the ground that their community had been recognised by the Union government as a minority under the National Commission for Minorities Act, 1992. The court’s preposterous idea reflects its shocking misconceptions about the nature and scope of the two Acts.
Since the British rule in India, the religious and customary traditions of four Indian communities — Hindus, Buddhists, Jains, and Sikhs — in respect of family rights and relations have been known by the compendious expression Hindu law. A number of laws using the word Hindu in their titles were enacted before the advent of Independence. The process began with the Hindu Widows Remarriage Act of 1856 and ended with the Hindu Women’s Right to Property Act, 1937. Rulers of some princely states also enacted similar laws among which were the Mysore Hindu Law Women’s Rights Act of 1933 and the Baroda Hindu Nibandh of 1937. The well-known Hindu Code Bill, prepared in 1940s by a committee of eminent jurists and social reformers of the time, had been under the consideration of the central legislature since the mid-1940s. Its provisions were enacted after the advent of Independence in the form of four separate Acts. The first among these which was the Hindu Marriage Act of 1955, followed next year by another three Acts — the Hindu Succession Act 1956, Hindu Minority and Guardianship Act and Hindu Adoption and Maintenance Act 1956.
The four Acts together contain the common personal law, reformed and modernised, of four communities — Hindus, Buddhists, Jains, and Sikhs. Each of these declares, in two different clauses, that their provisions apply to (a) any person who is a Hindu by religion in any of its forms or developments, and (b) any person who is a Buddhist, Jain or Sikh by religion. It is further clarified that the expression Hindu in any portion of these Acts shall be construed as if it includes a person who “though not a Hindu by religion” is nevertheless a person to whom this Act applies. The Hindu Marriage Act leaves room for all these communities to follow their respective marriage ceremonies for creating husband-wife relationships between two consenting parties. Among the basic principles of the Act, which are unexceptionally applicable to all of them, is the availability of the relief of divorce on several specified grounds, and, also, by the spouses’ mutual consent.
{{/usCountry}}The four Acts together contain the common personal law, reformed and modernised, of four communities — Hindus, Buddhists, Jains, and Sikhs. Each of these declares, in two different clauses, that their provisions apply to (a) any person who is a Hindu by religion in any of its forms or developments, and (b) any person who is a Buddhist, Jain or Sikh by religion. It is further clarified that the expression Hindu in any portion of these Acts shall be construed as if it includes a person who “though not a Hindu by religion” is nevertheless a person to whom this Act applies. The Hindu Marriage Act leaves room for all these communities to follow their respective marriage ceremonies for creating husband-wife relationships between two consenting parties. Among the basic principles of the Act, which are unexceptionally applicable to all of them, is the availability of the relief of divorce on several specified grounds, and, also, by the spouses’ mutual consent.
{{/usCountry}}The National Commission for Minorities Act of 1992 was enacted to regulate the powers and functions of the central Minorities Commission which had been established 14 years earlier by the government led by Morarji Desai. Section 2 (c) of the Act said that the word minority for the purposes of this Act would mean a community notified as such by the Union government. A year later, a notification issued under this provision of the Act declared Muslims, Christians, Parsis, Buddhists and Sikhs to be minorities for the purposes of the 1992 Act. Their recognition as a minority was meant only to bring them within the authority of the Commission. Even by a far-fetched interpretation, it was not to affect or meddle with the scope of any other law of the country.
Ever since 1993, some Jain groups had been seeking inclusion of their community as well in the list of minorities recognised under the Commission’s governing statute. Not getting a positive response from the government, a front-ranking leader among them approached the Bombay High Court (HC) seeking directions to the Union government for the said purpose. Unable to get the desired relief, he appealed to the Supreme Court (SC) that also held that the issue was a policy matter to be decided by the government. “It is not for this court to issue any direction or mandate on the basis of the claim of some members of the Jain community which is opposed to by another section of the same community,” held a three-judge bench of the court (Bal Patil vs Union of India, 2005).
In May 2014, the government modified the above-mentioned notification of 1993, issued under the National Minorities Commission’s governing statute. By this modification, right or wrong, the Jains were added as the sixth community to be within the purview of the Commission. Like the original notification, this modification also could not mean or imply anything else, much less change the course of personal law applicable to the community at least for the last seven decades.
If the addition of Jains to the list of minorities covered by the statutory functions of the Minorities Commission was wrong, only the Union government or the SC can take a call on it. Such an assumption, express or implied, on the part of a family court and refusing the desired matrimonial relief to Jain litigants seeking it under the Hindu Marriage Act was indeed a bizarre instance of ignorance of the law. Such a conclusion is not warranted even by the remotest implications of either the Hindu Marriage Act of 1955 or the National Commission for Minorities Act of 1992. The Indore Bench of the Madhya Pradesh HC rightly held in the appeal that “the family court judge has committed grave illegality and manifested impropriety in concluding that the provisions of the Hindu Marriage Act 1955 are not applicable to the members of Jain community.”
Tahir Mahmood is professor of law and former member of the Law Commission of India.The views expressed are personal