Text
Influences:
World War 2: Human Rights Violations
Effect: Enshrine Notions of Individual Protection
Partition: Communal Violence/ New Nation
Effect: Assurances of "equality" to minority communities
As a result the Bill acts not really as a political break, but a continuum on values and ethos of earlier regime combined with contemporary socio-political scenario. A balancing act, leading to a "dilution".
Hindu Code Bill takes up the issues of Gender Equality and Women's Rights which were bereft a place in the "smooth governance" concerns of the Constitution. Yet, the Bill can be dissected more in the paradigm of Nation Building - a homogenizing project, aiming to codify a culturally diverse Hindu community into a uniform "legal" community - thus diluting issues of Women's Rights to arrive at a minimum consensus.
Right of Inheritance
Right limited to self-acquired property of father and not ancestral property rights. Moreover, this right could be desisted by throwing the separate property back to the common stack of the coparcenary to avail incentives like tax reliefs to coparcenaries under the Income Tax Act.
Equal rights to sons and daughters.
Property of childless woman devolves to husband's heirs and in only in their absence to her own parents.
Distinction between heir of father and heir of mother, the latter cast in an inferior category.
No safeguards to Women's Property Rights as under Islamic Law.
Modelled on English Law Model of rights of an individual.
Right to Divorce
No provision for economic security.
Right to divorce by mutual consent deemed too "radical" and foregone.
Almost a barter of rights of residence and economic security to that of divorce and subsequent destitution.
Monogamy
Not immediately effectual due to custom-ridden and pluralistic Hindu society. Failure to curb polygamy.
Confusion regarding exact marriage procedures. Rigidity of the Law towards Vivah Homa, Saptapadi and other similar customs as tools to prove validity of marriage. As a result providing the scope to wriggle out of marriages (in spite of cohabitation, children, etc.) and claims of maintenance.
Detrimental even in comparison to earlier law, which would provide maintenance obligations in polygamous marriages.
Formal Equality
Equal rights and obligations of spouses towards each other. Both have equal rights to matrimonial remedies and ancilliary reliefs. Inequality in inheritance, equal in legal obligation to maintain husband. "Customary" enough to prevent right for divorce by mutual consent, yet "progressive" to maintain husbands.
Husband could claim for Restitution of Conjugal Rights against the wife if she works away from the matrimonial home against the husband's wish. This "sacramental" notion of the husband as the "Lord" of conjugality continued in court decrees throught to the 1970's.
Comparison to Local Customs
Murumakkattayam Act, 1933. Applicable in Malabar region. Already equipped with the right to divorce.
Scriptural Laws and Customs. Females as "Stridhana" heirs have rights superior to males, parents superior to in-laws.
No principle enacted which did not already exist somewhere in India, yet several liberal "customs" discarded for the sake of uniformity
Constitutional Challenges
Decree by Andhra Pradesh High Court in July, 1983 announcing the Restitution of Conjugal Rights clause as unconstitutional, a gross violation of the individual's right to privacy guaranteed by Art. 21 of the Constitution. Also violates Art. 14 dealing with "equality of protection" by working to the benefits of the husband, deeming equality projected on unequal relations as "perverse".
Delhi High Court defended both sections later announcing "restitution" as a tool to help the court in coaxing and cajoling parties to resume married life. " In the privacy of Home and Married Life, Art. 14 and Art. 21 have no place."
The Supreme Court overruled the decree of the Andhra Court as well, announcing that the provision of "restitution" always had the objective of ensuring conjugality through coercive measures.
Question of Who is Hindu?
The problematic notion of Hinduism as a centralised, coded religion as opposed to a cultural system. The code defines Hindu as
(a) to any person who is a Hindu by religion in any of its forms or developments,
including a Virashaiva, a Lingayat or a follower of the Brahma, Parthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with here in if this Act had not been passed, which the court elaborates as
"Acceptance of the Vedas with reverence, recognition of the fact that the means of ways to salvation are diverse and realisation of the truth that number of gods to be worshipped is large is the distinguishing features of the Hindu Religion" from Tilak's Gita-Rahasya.
Paramount importance on "National Integration", establishing supremacy of the State over the religious institutions, balancing between "tradition" and "modernity", bound by the Constitution of the "Modern" State, yet professing continuity with ancient, sacred laws to bring in "selective" reforms.
