Some Disturbing Thoughts on Property of Nair Females

(By Adv. K.G. Balasubramanian, High Court of Kerala)

I was waddling in the diminishing depths of Marumakkathayam Law, trying to explain to an agitated lady why she had lost in the courts below. A thought, repressed in my “CIVIL” mind since the day my senior had exposed the “tip-of-the-iceberg” of socio-legal vagaries unleashed by Kerala Joint Hindu Family System (Abolition) Act to me, suddenly resurfaced. In the course of my relaxed reflections, I had to grudgingly distance myself from a proposition sustained on the strength of illustrious precedents revered till now, unacceptable now because of a “To be or Not to be” situation (For who would bear the whips and scorns of time, The oppressor’s wrong, the proud man’s contumely, The pangs of despised love, the law’s delay …). Article 372 and “Pankajakshi” (2016 (1) KLT 851 (SC) embolden me. I ask myself: which is the more importune date in God’s own country - 17.6.1956 or 1.12.1976, when Hindu Succession Act (HSA) and Kerala Hindu Joint Family (Abolition) Act were respectively enforced? Has not the Kerala Act been superfluous vis-à-vis Section 14 of the former as regards Nair females?

Article 13provides that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of that Part, shall, to the extent of such inconsistency, be void. Article 372provides that all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.

Section 4HSA provides that save as otherwise expressly provided in that Act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of that Act shall cease to have effect with respect to any matter for which provision is made in that Act and also that any other law in force immediately before the commencement of that Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in that Act.

Section 14(1)HSA provides that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Its explanation stipulates that the said “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance, or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. Vide sub-section (2), sub-section (1) shall not apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Section 6as originally enacted and Section 17 at all times recognized right by birth only within the sphere of intestate succession w.e.f. 17.6.1956. Amended Section 6 modifies (i) “right by birth”, (ii) excludes survivorship and (iii) devolution by intestate succession. In the context of right by birth, there is some difference between inheritance and succession. Right by birth in ancestral property is a legal incident stemming from ancient customs like Mitakshara, Dayabagha, Marumakkathayam etc. A coparcener or marumakkathayee cannot be denied that right whereas he/she can be denied the right to succeed to his/her predecessor’s property, by devise or deed. In other words, “right by birth” is an indefeasible mode of acquisition of right to immovable property. It is not by “succession” or “inheritance” as we normally understand.

Section 14 (1) was enacted to absolutely banish claims by anyone to any Hindu female’s any property. It created exclusivity, whether the holder follows Mitakshara or Marumakkathayam. This intention is clear when we look at Sections 6 and 7. “Property obtained by a Nair female towards her share on partition in her tarwad” comes under Section 14(1) and not under 14(2). While Section 6 as originally recognized exclusivity of coparcenary and Section 14 that of woman’s estate, the 2005 amendment roping in females as coparceners causes a very serious conundrum because it directly nullifies Section 14 vis-à-vis Mitakshara coparcenary. Needless to say, Section 14 is not otiose as regards Marumakkathayees.

The custom/usage that “property obtained by a Nair female towards her share on partition in her tarwad ceased to be her separate property on the birth of a child to her so as to destroy her absolute powers of disposal in respect of that property” is contrary to Section 14 read with Section 4. Going by the plain meaning of both Sections, the law that “property obtained by a Nair female towards her share on partition in her tarwad ceased to be her separate property on the birth of a child to her so as to destroy her absolute powers of disposal in respect of that property” ceased to be operative from 17.6.1956.

Precedents which hold to the contrary do not appear to have noticed the impact and effect of Sections 4 and 14 on absolute right of a Nair female.

1963 KLT 859- (overruled in 1967 KLT 430) - noticed that “ ………. it is a matter for serious consideration whether there is any compelling reason to hold that the share obtained on individual partition would not be the absolute property of the sharer” and that “In effect, S.39 of the Travancore Nayar Act of 1100 which corresponds to S.62 of the Cochin Nayar Act of 1113 has declared, that the share of a member, whether male or female allotted on tarwad partition, is alienable and heritable, and this is without any reservation, condition or limitation. In other words, such share constitutes his or her separate property descendible to the heirs on intestacy”. Doubtless, this principle had already found acceptance in Section 14.

In 1967 KLT 430, we find a clear statement (minority judgement) that “I have not considered the inroads made into the Hindu Mithakshara Law by the Hindu Women’s Property Act or the Hindu Succession Act as it is not necessary for the purpose of this case”. In 1993 (1) KLT 174, their Lordships were concerned“with Hindu Succession Actalone and so it is necessary to consider the provisions therein with special reference to marumakkathayees and to the extent it is necessary for this case”. Going by that decision, the Kerala Act vaporized Mitakshara and Marumakkathayam systems. True, going by its title, the Abolition Act purported to put an end to Joint Hindu Family System. That intention – not seen reflected in its body - was readily accepted. According to me, with due respect, the Abolition Act deserved a different, if not opposite, look.

My point is, the precedents on the point are per incuriam. It is not clear that Section 14 and its implications were noticed therein. Inept legislation has created an impasse.

1976 103 ITR 661 PHdeclares in no uncertain terms that “The Hindu Succession Act --------repealed all previous law relating to intestate succession whether textual, customary or statutory ----------------”. AIR 1991 SC 1654 dealt with overriding effect of the Act and declared that “in respect of the matters dealt with by the Act it repeals all existing laws, whether in the form of enactments or otherwise, which are inconsistent with this Act. The result is that immediately on coming into operation of the Act the law of succession hitherto applicable to the parties, by virtue of any text, rule or interpretation of Hindu Law or any custom or usage having the force of law ceased to have effect in respect of the matters expressly dealt with by the Act ”.

While AIR 1957 SC 434 says that “There is no doubt that by reason of the use of the expression ‘whether acquired before or after the commencement of this Act’ the section is retrospective in effect”, AIR 2000 SC 434 says that “The Act of 1956, incidentally is prospective in its operation and no element of retrospectivity can be attributed therein” and that “Incidentally, be it noted that the Succession Act of 1956 obviously is prospective in operation”. If Section 14 is prospective, it will create two classes of Nair heirs - those born before and after 17.6.1956. The former can claim benefit of right by birth under Cochin Nair Act etc., whereas the latter will be denied that benefit because of Section 4 read with Section 14.

On Section 14, AIR 1985 SC 1695 held that “The above provision is further protected by the express provision contained in clause (3) of Art.15, since it is a special provision enacted for the benefit of Hindu women”. Please read that along with ((2000) 2 SCC 139) that “……… legislations having socio economic perspective ought to be interpreted with widest possible connotation ……… Gender equality is one of the basic principles of our Constitution. ……………… as such it is a bounden duty and an obligation to honour the mandate of the Constitution in every sphere and interpretation which would go in consonance therewith ought to be had without any departure therefrom”.

1967 KLT 430held that“to reaffirm the old well established right rule might have the result of upsetting titles acquired on the faith of the new wrong rule, whereas to follow the new wrong rule might not have the result of upsetting titles, is not, I think, a valid consideration. To follow the new wrong rule would be to deprive children born after partition of their due”. I am forced to submit that the converse is truer, that a female ought not to be deprived of her due.

Dear Indian, H.S.A. (as originally crafted and now distorted), discriminates more between Mitakshara and Marumakkathayam schools generally and genders inter se particularly than that is sought to be abolished. It cannot be due to unavoidable reasons. It could be casus omissus. In view of the all India reach and overriding effect of HSA, the 2005 amendment adds flavor to the bone of contention that what was supposedly taken away by Kerala Hindu Joint Family (Abolition) Act from Mitakshara and Marumakkathayee families stands restored to Mitakshara families. My research did not reveal that the vacuum is saved either by any subsequent legislation. Please enlighten me.

In this era of laws intended to confer liberty, equality and fraternity, there is no reason to be tied down by “divine” laws divined by few and defined by fewer. We are venturing to consider temple/mosque entry and divorce on the touchstone of gender equality; the fascinating vista of Article 14 commands that personal law of all communities be recast, however inconvenient that may appear and whatever consequence may ensue.

Notable Excerpts By Hon’ble Chief Justice of India, Mr. Justice T.S. Thakur inState of Punjab v. Brijeshwar Singh Chahal

“Seen as important dimensions of the Rule of Law by which we swear, the law as it stands today has banished from our system unguided and uncanalised or arbitrary discretion even in matters that were till recently considered to be within the legitimate sphere of a public functionary as a repository of executive power. Those exercising power for public good are now accountable for their action, which must survive scrutiny or be annulled on the first principle that the exercise was not for public good in that the same was either mala fide, unfair, unreasonable or discriminatory. The expanding horizons of the jurisprudence on the subject both in terms of interpretation of Article 14 of the Constitution as also the Court’s willingness to entertain pleas for judicial review is a heartening development on the judicial landscape that will disentitle exercise of power by those vested with it as also empower those affected by such power to have it reversed if such reversal is otherwise merited.”

“The State Counsel appears for the State Government or for public bodies who together constitute the single largest litigant in our court system. Statistics show that nearly 80% of litigation pending in the courts today has State or one of its instrumentalities as a party to it. The State Counsel/counsel appointed by public bodies thus represent the largest single litigant or group engaged in litigation. Apart from adversely affecting the public interest which State Counsel are supposed to protect, poor quality of assistance rendered to the courts by State Counsel can affect the higher value of justice itself. A fair, reasonable or non-discriminatory process of appointment of State Counsel is not thus demanded only by the rule of law and its intolerance towards arbitrariness but also by reason of the compelling need for doing complete justice which the courts are obliged to do in each and every cause.”

“The States cannot in the discharge of their public duty and power to select and appoint State Counsel disregard either the guarantee contained in Article 14 against non-arbitrariness or the duty to protect public interest by picking up the best among those available and willing to work nor can the States by their action frustrate, delay or negate the judicial process of administration of justice which so heavily banks upon the assistance rendered by the members of the Bar.”

The Sound of Music

(T.G. John, Advocate, Trichur)

Kumar Hemendra Choudhary was the eldest son and heirapparent to the big estate of Maharaja Acharya Choudhary of DIGAGHAT of the former East Bengal which later became Eastern Pakistan after the Partition in 1947 and has now become Bangladesh. Hemendra was a tall handsome young man of 25 studying in the Second Year B.A. Pass class of Presidency College, Calcutta. From his age it could be well deduced that he was not quite serious at his studies. Every year he avoided appearing at the examination. An ordinary student would have been turned out of the college for such omissions, but the British Principal of the college allowed him to continue in the same class year after year as he was the son of a Maharaja, He was also the captain of the Cricket Team of the college. He lived in Calcutta in fine style quite befitting a prince. He resided in a fine two-storeyed -bungalow with lawn, flower, fruit and kitchen gardens and a bachelor as he was, he was living alone in the house with a full retinue of servants, cook, chowkidar, gate keeper and a driver for his Minerva saloon car.

It is sometimes said that there is scarcely any human being of culture and refinement who is not profoundly influenced by a sweet female voice or enchanted by the melody emanating from a soprano or contralto. Hemendra was no exception.

Hemendra had a telephone at his residence. It was in the early days of the telephone system, when the 'Exchange' had to be called by the subscriber for getting connection. One fine morning, Hemendra lifted the receiver and asked for Presidency College-Number 423. From the other end came the reply in a sweet voice, "Yes, Sir, sorry, the number you call for is engaged, will you please call after three minutes?" Hemendra hung the receiver on the hook. He was so pleasantly surprised by the enchanting melody of the telephone girl that he wanted to call her again immediately. He called again after three minutes, this time his heart was pounding heavily. "Are you the Miss who asked me to wait for three minutes for getting 'College 423"? Outcome the reply from the same soprano, "Yes, Sir, but unfortunately, the number is still engaged. I am afraid you will have to wait for some more time".

"That does not matter. But may I know your name". 'Why should you know it', cooed the soprano. 'But if you are very particular, my name is Molina Sarkar'.

Next morning and thereafter for several mornings in succession Hemendra was at the telephone talking to Molina. He came to know all about her that her native place was Dacca, she came to Calcutta to find a job, that she was twenty-one years old and she got the present job of a telephone operator some two years ago. And later he was informed that she was a good singer and was supplementing her income by working as a background singer in a local theatre and her great ambition was to become a Radio Artiste. A young man and woman having thus become friendly over the telephone, things began to progress rapidly. Hemendra's car would often be seen in the evening before the Working girls Hostel, where Molina was living, waiting for Molina to be taken out. And always it ended in dining out in First class restaurants and seeing films.

Molina Sarkar was a dark statuesque girl with billowing heir, chiselled nose and lips and a chubby face. She was in fact a rare specimen of dusky beauty and known in her circle of friends as, 'Kasti Devi' (granite goddess) and 'Abu Rani' (ebony beauty) and 'Krishna Bhamini' (black enchantress). Inspite of her dusky complexion, she had an extra-ordinary personality and her silvery voice even in her ordinary talk or rhythmic laughter would seem to the hearers like a sweet melody flowing from afar.

For six months Hemendra and Molina flitted like love-doves with a song in their hearts and star-dust in their eyes. Within that period Hemendra through his influence with All India Radio Officials procured for her the job of a full-fledged Radio Artiste. She was acclaimed as highly talented in Carnatic music. The greatest day came when Hemendra presented her a jewelled set, all set with diamonds and rubies and promised to marry her within three more months' time when his examinations would be over. Molina was eagerly counting the days, when things began to happen.

At the Radio Station, Molina acquired a girl friend. Her name was Mridula Mukherjee and she was a tall, fair and vivacious girl of about 24 with as fine figure whose work at the station was that of an announcer. Her large eyes with delicately poised eyebrows and lashed over with long curved eye-lashes were capable of stunning any young man. And gradually Hemendra began to switch over his time and attention from Molina to Mridula. This was resented vehemently by Molina who began to treat Hemendra contemptuously and the volcano burst into violent eruption when Molina declined with disdain all attempts of Hemendra to pacify her and meet her again. Considering his status, wealth and appearance, this scornful treatment by a woman was a new experience to him.

One January evening when it was bitterly cold outside, and a dense fog had enveloped the atmosphere, Hemendra Choudhary's car appeared at the Emergency Ward of the Medical College Hospital. Inside the car Hemendra was found in an unconscious condition, occasionally showing symptoms of severe pain in his left upper arm and great breathing difficulty. Strychnine was injected to improve his respiration but it proved to be of no avail. Complete respiratory paralysis occurred at 2.A.M. and in another ten minutes Hemendra was dead. The mysterious circumstances under which Hemendra died necessitated a post-mortem examination which revealed that his death was due to respiratory paralysis on account of poisoning of the circulatory system by some virulent poison injected into the blood stream. On his left upper arm, there was a puncture like that of a needle with a tiny laceration on one side.

The investigation was taken up by the CID of Police. Molina was interrogated and a search of her room resulted in the finding of an unfinished woollen cardigan and a nickel plated steel needle about seven inches long.

Molina Sarkar gave a statement before the police about her relation with Hemendra and their marriage settlement and Mridula's entering his life which was resented by her. And how later one day Hemendra came to her room in the hostel breaking all hostel rules, she was so disgusted with him that she even threatened to call the police. Molina was sitting in her bedroom and knitting a cardigan when Hemendra quietly opened the door and closed it again behind him. Hemendra then rushed towards her and taking her in his arms threw her down in the bed in an attempt to violate her. Not able to resist him, she gave a thrust with the knitting needle that she had in her hand on his left upper arm. He jumped up in agony and ran out of the room and that she knew nothing more.

The knitting needle was subjected to examination by chemical microscopy when some black sticky substance was found on the needle point. It was found that it was poison akin to 'Curare' (arrow poison) obtained from the Andaman Island and that it was partly soluble in dilute hydrochloric acid and completely soluble in alcohol.

Molina Sarkar was arrested by the police on suspicion. It was pointed out that the needle was very old and rusty with which she could never have knitted the cardigan and that the needle had poison on it which she would have procured from Calcutta with a murderous intention. But Molina did not detract an inch from her previous statement. She was sent up for trial for murdering Hemendra Chowdhary with a poisoned crochet needle and was committed to the Sessions which gave her the benefit of the doubt and acquitted her.

The mystery of the case, however, cleared itself when after the acquittal Molina Sarkar, the Silvery Soprano, committed suicide leaving the following note:

"I cannot stand this life any more without my Hemendra, whom I have cruelly killed. I deserve no compassion".

Eve and the Serpent

(T.G. John, Advocate, Trichur)

Dr. Naema Sultana Begum, M.B.B.S. was a very brilliant student of the King George Medical College, Lucknow. She had secured the coveted Express Victoria Readership (Research Scholarship) of the College for three years and was doing research work in forensic medicines and toxicology under the guidance of Dr. Gautam, Professor of the same College. She was extremely beautiful and vivacious and had even figured as a Beauty Queen in many of the beauty contests in the hill stations of Northern India, like Mussorie, Nainital and Simla, combining in herself western beauty and oriental charm. She hailed from a highly cultured and aristocratic Muslim family of Lucknow. Her father Mirza Afzal Beg was an I.C.S. Official who met with a motor accident and was killed on the spot. Since then Naema, who was about 23, her widowed mother Salima, who was about 40 years old and her brother Mirzafar who was studying for B.A. in the local college had been living in their ancestral house, Mir Manzil, in Lucknow.

Dr. Mohanlal Gautam, M.D., F.R.C.S. (Edinburgh), Naema's guide in research, was one of the brilliant men on the staff of King George's Medical College, Lucknow. Though his special subject was Pathology, he was supreme in other fields also. His reputation as a general practitioner was great and he had a large number of rich patients who paid him enormous fees. He used to attend to his students and their family members and also genuinely poor people at their homes without any fees at all. He was a tall and extremely handsome man with glistering eyes and a sharp aquiline nose and was about 38 years old. All his students liked him. His family consisted of his wife and two small children. A loving husband, he lived with his family in a fine bungalow attached to the college.

And then things began to happen! It is strange that young attractive and talented girls are drawn towards elderly men despite the handicap of their being already married and having children. Gradually Naema got enamoured of the tall and handsome Dr. Gautam nearly twice her age and father of two children with a pretty and devoted wife. She was being irrevocably drawn towards the cold lustre and invisible magnetism of his brilliant and superb manhood. She also wondered why she who could stun an young man with a mere twinkle of her eye, could not move this stolid Adonis of a man who was utterly insensate to her charms.

She was determined for her catch. She took every opportunity to talk to him about her studies, the social conditions of the city and finally a probe into his family life. But Dr. Gautam never exceeded his limits as a guide and Professor in his talks to her. And then one day on her request he took Naema to his residence and introduced her to his wife and children. Naema begged Dr. Gautam to make a return visit to her residence which Dr. Gautam did out of sheer courtesy. He was introduced to Naema's mother and thereafter Dr. Gautam made frequent visits to Naema's residence. Meanwhile, Naema's nerves were getting frittered and she was almost on the brink of insanity consumed by unrequited love. And one day casting aside all decency and decorum, Naema asked her mother whether she would mind if Naema married Dr. Gautam. Her mother replied that she would have her blessings but added that it was impossible and unthinkable as he was a family man and a Brahmin and treated her only as a grown up daughter. "That is my business mother, you may leave it to me", she replied.

And then on the next visit of Dr. Gautam, when Naema's mother was absent in the house, things got hot. Dr. Gautam was on the point of going away when he found her mother was not present. And then Naema went into a sudden outburst of passion.' Don't you think that I am far more beautiful than your wife - would you marry me? Naema burst into tears and was sobbing heavily.

Dr. Gautam was so stunned by this sudden and unexpected outburst of passion. However, he slowly gathered his wits and mumbled that it was utterly unthinkable, he being a married man with a devoted wife and a Brahmin too and his feelings towards her could be no more than that of a father or brother.

Naema was frantic and persistent and then put her second alternative. 'You are a rich man, Dr. Gautam, you can hire out another bungalow and keep me there; hundreds of big people are doing it nowadays'. Upon this Dr. Gautam flared up like gunpowder and retorted, 'I thought that with all your faults you were a good girl. But now I find that you area strumpet'!

Strumpet! The words had an electrifying effect on Naema. She flushed crimson and with a snarling and disdainful gesture she got up and disappeared. Dr. Gautam stepped out of Mir Manzil into broad daylight and thereon into his car.

Next day and for many other days Naema was absent in the college for her research work. One evening Dr. Gautam had a special messenger from Naema, to make a visit to her and diagnose her illness and treat her. Dr. Gautam went to Naema's house after finishing his work in the college and that night Dr. Gautam did not return to his residence.

Next morning there was a banner headlines in Lucknow newspapers "Dr. Gautam shot dead by a girl student! Assailant arrested!' The student was none other than Naema, his research student. The post-mortem examination of the dead body revealed that Dr. Gautam had been killed by a shot fired at point blank range from a 12 bore shot-gun using buckshot (LG) ammunition. Five of the six LG catridges were recovered from inside the dead body. The sixth was recovered from near the place where the dead body was lying. Death must have been practically instantaneous.

In the police station Naema made a confession — that she loved Dr. Gautam with all her heart; but atleast on one occasion he scorned her as a strumpet which overwhelmed her feelings so that she wanted to end her life. But before that she wanted to finish Dr. Gautam who rejected her in such a contemptuous way. Later on when she was produced before the Magistrate, she resiled 'on advice'. She made a statement that she was innocent and that she did not know to use a fire-arm and the gun in her house was used by her father before his death. And also that the dead body was planted in her house by some of the enemies of Dr. Gautam who had done the crime. That Dr. Gautam wanted to marry her and she was not willing for such an alliance!

In the Sessions Court the prosecution proved that contrary to the allegations of Naema, She was an expert in handling firearms. In fact, the licence for the Westley Richards Shot gun had been transferred to her by her father before his death and that prior to the incident she had bought 20 Eley-Kynoch Buck-Shot catridges for the gun from the local ammunition shop. But why did she kill him? The defence made a suggestion that perhaps Naema was showing her gun to Dr. Gautam when an accidental discharge might have killed him. This hypothesis was negatived by the fact that the gun had barrels 33 inches long and it was quite impossible for Dr. Gautam to receive the discharge from the barrel on his chest due to an accidental tripping of the trigger. Two of the neighbours of Naema testified that at about 11 p.m. on that fateful night they had heard the report of a gun shot from her house and the piercing cry of a man in agony. One of them had informed the police by telephone.

Naema was convicted by the Sessions Judge for the murder of Dr. Gautam but instead of awarding the capital sentence, sentenced her to life imprisonment. The High Court on Appeal confirmed the convictions but reduced it to 10 years as in its opinion, the motive for the murder could not be clearly proved by the prosecution.

Christian Marriage Laws — Response to the Proposed Amendments

(By Sebastian Champappilly, M.A., LL.M., Advocate, High Court of Kerala)

There have been various proposals from different quarters for amendment of the laws relating to marriage and divorce among Christians in India. It appears that the Catholic Bishops Conference of India and the Standing Committee appointed by it to deal with the subject approved a set of proposals suggesting amendments of the Indian Christian Marriage Act, 1872 by incorporating Chapters V, VI and VII of the Special Marriage Act, 1954 and at the same time repealing the Indian Divorce Act, 1969. These proposals might with profit, be reviewed for the following reasons:—

1. The proposal for incorporation of Chapters V, VI and VII of the Special Marriage Act, 1954 into the Indian Christian Marriage Act, though attractive, may add to the woes of the Christians rather than solving them. This could be explained by an example. Incorporation of Chapter VI of the Special Marriage Act means incorporation of S.28 of that Act also. And S.28 provides for divorce by mutual consent. In other words there would be divorce by mutual consent among Christians after this amendment. But the concept of divorce is alien to Catholic faith. And divorce by mutual consent is again unheard of among Catholics. It is therefore such a matter of great concern for the community that one cannot simply accept this concept without proper consultation and deliberation. [1]

2. It may also not be a sound proposition to allow divorce by mutual consent among Christians for other reasons. Even to appease the progressive point of view, I do not think that such a provision should be explicitly incorporated. For, even at this juncture Christian spouses who mutually agree to seek divorce can get their marriage registered under Ss.15 and 16 of the Special Marriage Act and thus get the benefit of S.18 which provides that from the date of registration, the marriage shall be deemed to be a marriage solemnised under that Act. And such spouses can invoke this ground of divorce provided for in the Special Marriage Act. Thus Christian spouses who mutually agree to seek divorce can still adopt that path if they need divorce. [2] Yet in my opinion, a direct provision for divorce by mutual consent may give the impression that the Church approves of divorce. Incorporation of such a ground in. a law on Christian Marriage could perhaps be avoided. For this may send out the message that the Church still does not approve of divorce, not to speak of divorce by mutual consent. And hopefully the followers may not develop a tendency to fall back upon this provision.

3. The Indian Christian Marriage Act contains various provisions that are irrelevant and inconsistent with the present day realities. Some provisions are indeed out of tune. For example S.81 of the Act might be noted. It provides that certain Certificates of Marriages of Indian Christians solemnised in India be transmitted to England. Again the punishment prescribed under Ss.70 and 73 needs a fresh look. Ss.28, 30, 32, 37 and 64 deals with maintenance of Registers and registration. They need updating in the changed context. There are inconsistencies and irrelevancies in Sections like 64 and 37, 22, 70 and 73; 32 and 5; 54 and 5; 13 and 12; 13 and 17. The definition of "minor" under the Act and the Child Marriage Restraint Act, do not signify uniformity. Ss.68 and 74; Ss.39 and 71 of the Act are all in need of revision in one way or other.

The Christian Marriage and Matrimonial Causes Bill, 1990 forwarded by certain Christian Organisations, to the Hon'ble Prime Minister of India in 1992 is an attempt in the right direction. But it needs review and revision. To begin with, the definition of "Christian" in the Bill may not have adequate acceptance inasmuch as that proposal was already considered and rejected with reasons by the Law Commission of India in its 15th and 22nd Reports. I think the reasons are still valid according to many in the community. Again Clause 31 of the proposed Bill dealing with divorce by mutual consent may have to be deleted in view of what has been explained in paragraphs 1 and 2 above.

Clause 3 of the Bill needs re-drafting and Clause 4(iv) should be enlarged to include the words "personal law" so as to bring in the provisions of Canon Law on questions of prohibited degrees of consanguinity. This is not impossible in view of the decisions of the Supreme Court in Lakshmi Sanyal v. Sachit Kumar Dhar (AIR 1972 SC 2667) and of the High Court of Kerala in Leelamma v. Dilip Kumar (AIR 1993 Ker. 57 = 1992 (1) KLT 651).

Moreover, the provision for recognition of the declaration of nullity of marriage given by the Church as given under Clauses 26 and 27 may have the tendency, I am afraid, to bring the Eparchial Tribunals under the control of the Civil Courts. I think it is our right to assert that our personal law should be got recognised by the proposed legislation. The importance of this aspect could be gauged from the observations of the House of Lords in Regina v. George Millis (10 C & F 534) which runs: "a husband demanding a right due to him as a husband by the ecclesiastical law, must prove himself a husband according to that law". Conversely, a wife demanding a right due to her as a wife by the ecclesiastical law, must prove herself a wife according to that law. [3] This is very important in the current Indian context where the Muslim Law and Hindu Law have come to be recognised as the respective personal law of Muslims and Hindus.

In short, the proposed Bill requires changes on various aspects like recognition of personal law, declaration of nullity of marriage granted by the Eparchial Tribunal and other authorities under the personal law as valid, definitions, jurisdiction, punishments and registers from the point of view of the Christian Communities. Therefore, it is desirable to have a more detailed discussion or even a workshop arranged on this subject before finally giving the green signal to the proposed new legislation on Christian Marriage and Matrimonial Causes Bill.

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Foot Note

1.  It is pertinent to point out that the Law Commission of India had already rejected the proposal for inclusion of "divorce by mutual consent" after detailed deliberations. The situation has not undergone any change for a review. See the 15th and 22nd Report of the Law Commission of India.

2.  In this context it may not be out of place for me to mention that in a survey undertaken by me, as part of my Ph.D. Programme in the Cochin University of Science and Technology, recently 77% of the respondents favour divorce by mutual consent.

3.  This view finds support in the decision of the Supreme Court of India in Anantrac's case (1988) 1 SCC 530 which held that the validity of a marriage has to be determined by the personal law applicable to the parties.