Uniform Civil Law: How Christian Personal Laws Fought Against Equality | India News
Personal law was like a straitjacket that, in the name of religious tolerance, actually required members of a religion to abide by laws they may never have observed. State recognition of personal laws has also legitimized discriminatory treatment of women in the name of religion. How is it that a policy designed to recognize difference can also be an instrument of coercion, whether it is an unwanted intrusion into family practices or a buffer for practices that hurt or disempower? the women ?
Against this dual heritage, Christian personal laws carry a unique history, in part because religion presents no clear textual basis for personal law. Under British rule, Christian communities in India tended to adopt the laws of their nationalities, with Armenians, Syrians, Portuguese, Anglo-Indians, French and English observing their own laws. Indians who became Christians, however, posed a unique dilemma: What law would they follow? What nationality did they belong to?
For a time, colonial courts were successful in dealing with the varied and ambiguous practices of Christian converts. In the famous succession case, Abraham v. Abraham (1863), a wealthy Dalit Tamil alcohol seller died without a will and the courts had to decide whether his Anglo-Indian brother or wife should succeed him and inherit his fortune. He ruled that because the Christian religion does not teach any personal law, the court should examine the cultural habits of the family. If these habits were predominantly “Hindu”, then the laws of undivided families should be enforced and the brother and sons of the deceased husband (Matthew Abraham) should inherit the family estate, even if they were Christians. But if the customs of the family were predominantly English, then the wife had to succeed the husband as head of the family. After several appeals, the woman won.
However, such a close scrutiny of customs by the courts will not last long. With the passage of the Indian Succession Act (1865, revised in 1925) or the Divorce Act (1869), a more uniform English law was applied to Christian families. Catholics, however, continued to defend their rights to observe canon law and Syrian Christians their own laws.
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Since Independence, court cases involving Christian personal law have tended to concern the rights of women to inherit property. The famous case of Mary Roy (1986) confirmed the rights of Syrian Christian women to inherit ancestral property on an equal basis with their male siblings. The battle against traditional patriarchal norms within the Church has once again forced society to weigh “religious rights” against more egalitarian human rights. This ongoing debate is not necessarily a struggle between religion and secularism. It concerns the interpretation of sacred texts and traditions in light of the demands of justice and rapidly changing societal norms. Religious controversies also involve questions of power. “Religions” and “religious freedoms” can all too easily give rise to areas of island autonomy. Here, the voices of religious authority are exempt from scrutiny and can suppress any dissent.
Achieving general principles to which all religions are subject is not a simple task. The idea of a uniform civil code may raise the same dilemmas as multiple personal laws for different religions: does such uniformity ensure neutrality and fairness, or does it simply present a bigger straitjacket? by force, this time by tightening up all religious communities? In these days of Hindu nationalism, minorities fear that a uniform civil code will impose majority civil standards (if they in fact exist).
Another avenue, however, is to examine how members of various religious communities might share certain interests in a uniform civil code and offer resources to examine its content and parameters. Can the virtues advocated by all religions constitute a common framework for the formulation of laws on marriage, inheritance, divorce, etc. ? For this possibility to materialize, the state would have to decolonize its approach to “religions”. The colonial approach was to treat religions as sectarian entities focused solely on their private interests and in need of “management”. Rather, could religions be appreciated as providing a vocabulary that speaks to the universal and facilitates the necessary transformations in the field of personal law?
(The author is chairman of the Fletcher Jones Social Science Foundation at Westmont College, Calif. His books include Race, Religion and Law in Colonial India)