June 9, 2012 | By editor
Author: Dr. Daljit Singh*
Since Baisakhi Day i.e. April 13, 2012, the newspapers headlines have triggered a major debate on the Anand Marriage Act. There had been a rigorous issuance of statements from all around on the subject but most of the utterances are without the proper knowledge of the law relating the crucial subject. It seems that majority of the statements are laced in political colour. As there is a saying `little knowledge is dangerous thing’, similarly without the proper knowledge of the law, big statements have been issued that ‘with implementation of Anand Marriage Act’, `Sikhs has won a major victory’.
There are also headlines that `it is a historic decision’, that `Central Government’s decision is praiseworthy’, that `long pending demand of Sikhs is fulfilled’, that `separate identity of Sikhs has got approval’ etc. etc. Some newspapers even went to the extent of saying that marriages performed by Anand Karaj ceremony under the Anand Marriage Act have got a legal sanction now. But, the fact is that the decision of the Union Cabinet of Indian Government is a small technical amendment in Anad Karaj Act for which Sikhs need not to be very elated.
Actually the truth is that the Union Cabinet’s decision has further complicated the whole issue regarding the Sikh marriages and would lead to more complications to the Sikh community. On the basis of my teaching experience in Law Department of Punjabi University, Patiala and Guru Nanak Dev University, Regional Campus, Jalandhar for the last 27 years, especially on the subject of marriage and divorce etc. relating to Hindus, Muslims, Christians, Parsi, Jews and Special Marriage Act, above said views can not be appreciated, rather the views expressed in other newspapers that amendment of Anand Marriage Act is not less than a cheating with Sikh community are true pictures. It is also true that instead of being elated, the need is to seriously evaluate and analyse the new development by the Sikh intelligentsia.
First of all, the views expressed by majority of the political and religious leaders that the Anand Marriage Act was made redundant or inapplicable after the Indian independence in 1947 is totally wrong and without substance. My observations are based on the facts that after independence, in the year 1949, the Indian Government passed an enactment namely, the Merged States (Laws) Act, 1949, which declared the continuation of all the 256 Acts passed from 1839 to 1949 and most importantly this includes the Anand Marriage Act, 1909, itself. So, the Act continues to be in force from 1909 till date. Second argument, which I would like to stress is that the Anand Marriage Act, 1909 was also amended by the Legislature of India in 1959, vide Act No. 48, which was enforced w.e.f. 1st February, 1960. All these developments are proof of the fact that after passing of the Anand Marriage Act, in 1909, it has never been ‘annulled’ or ‘made ineffective’, as claimed by most of the leaders and writers. Rather it always remained in force in law. Therefore, to say that Anand Marriage Act has been passed or made applicable by the Union Cabinet’s decision is nothing but a laughable statement.
If we see the historical background of Anand Marriage Act and its various sections or provisions, then it will become absolutely clear that the recommendation of amendment of Union Cabinet is a very small technical amendment and not any historic or praiseworthy step to be celebrated by the Sikh community. As we all know that the marriage ceremony in Hindu religion was solemnized by taking steps around the sacred fire and when the marriage ceremony in Sikhism by taking four rounds around Sri Guru Granth Sahib in the end of 19th century was almost established, some of the selfish elements created doubts about the validity of such Sikh marriages. The Maharaja of Nabha Tikka Ripudaman Singh taking guidance from Bhai Kahan Singh Nabha drafted the Anand Marriage Act to declare legalised the Sikh marriages and presented it to the Imperial Legislative Council. Lateron, when Sir Sunder Singh Majithia became the member of the Legislative Council, he took the initiative to get it passed in 1909. In the Preamble of the Act itself, it is stated that “Whereas it is expedient to remove any doubts as to the validity of the marriage ceremony common among the Sikhs called Anand, the Act is enacted”. The same is mentioned in the objects and reasons of this Act also. This Act contains in all 5 sections. The first section mentions the jurisdiction of the applicability of Anand Marriage Act, 1909, according to which it was applicable to whole of India. However, as mentioned above, the Indian Government in 1959, by passing Act No. 48, excluded its applicability to the State of Jammu and Kashmir. Section 2 declares the validity of Anand marriages which says that “All marriages which may be or may have been duly solemnized according to the Sikh marriage ceremony called Anand shall be and shall be deemed to have been with effect from the date of the solemnization of each respectively, good and valid in law.” Section 3 states exception of the applicability of this Act to certain kinds of marriages. It says “Nothing in this Act shall apply to (a) any marriage between persons not professing the Sikh religion, or (b) any marriage which has been judicially declared to be null and void”. Section 4 of the Act makes provision for the saving of marriages solemnised according to other ceremonies which states that, “Nothing in this Act shall affect the validity of any marriage duly solemnised according to any other marriage ceremony customary among the Sikhs”. It is important to mention here that as per law and judicial decisions, the marriage by Chadar-Andazi and Kareva forms of marriages among Sikhs is perfectly valid. Section 5 deals with non-validation of marriages within prohibited degrees of relationships which says ” Nothing in this Act shall be deemed to validate any marriage between persons who are related to each other in any degree of consanguinity or affinity which would, according to the customary law of the Sikhs, render a marriage between them illegal”.
From the above, it is crystal clear that the main objective of Anand Marriage Act was only to declare the validity of marriage ceremonies among the Sikhs called Anand. In India, the laws regarding ‘personal laws’ were enacted before and after independence. The personal laws are those laws which are applicable to the people as per their religious notions or faith. For the first time in India, the law relating to marriage and divorce was enacted for Christians namely the Indian Christian Marriage Act, 1872 and the Indian Divorce Act, 1869. Similarly, the law relating to marriage and divorce of Parsi in India was passed in the year 1936, namely the Parsi Marriage and Divorce Act. For Muslim women, an Act was passed in the year 1939 titled the Dissolution of Muslim Marriage Act. For inter-caste marriages or inter-religion marriages, the law was enacted in the year 1872, which was later on amended and was titled as the Special Marriage Act, 1954. After independence in the year, 1947, the law relating to personal matters of Hindus were drafted commonly known as ‘Hindu Codes Bill’ and which came into the form of four different enactments i.e. the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956. These Acts are applicable to Hindus by religion besides people belonging to Budh, Jain and Sikh by religion.
Whenever, we talk about the law relating to marriage and divorce applicable to particular religious community, generally the Act is divided into 4 parts. First part normally deals with the conditions of marriage like rule of monogamy, age of bride and bridegroom, mental state of parties to marriages and prohibited degree of relationships. Besides this, the provisions regarding ceremonies and registration of marriages are also stated therein. The second part of the Act mainly deals with the substantive reliefs like restitution of conjugal rights, judicial separation, void or voidable marriages and divorce. The third part deals with the jurisdiction and procedures. The fourth part deals with the provisions regarding custody of children, maintenance, property etc. All the present Acts applicable to Christians, Parsi and Hindus contains the provisions as aforesaid.
Now, if we look into the above mentioned provisions of the Anand Marriage Act, it did not contain any of the required parts stated in above paragraph. The amendment which has been recommended by the Union Cabinet is confined only to the ‘registration of marriage’. If we see the reality from the legal perspective, the question of registration of marriages under Anand Marriage Act will not lead to any significant development regarding the demand for independent law of marriage and divorce for the Sikh community. Rather, the truth is that if the amendment regarding registration of marriage under the Anand Marriage Act is carried out, it will lead to complications for the Sikh brides and bridegrooms. It is strange that in the newspapers the general view is that registration under the Anand Marriage Act will benefit the Sikhs particularly NRIs, but the reality is contrary to this. It would be too difficult to make the people of other countries understand what Anand Karaj is? When it will be legal and binding? It is now a true fact that till date the Sikhs are not able to establish their identity in different countries of the world, then how it will be possible for them to establish the identity of ‘Anand Karaj’ ceremony. It is very pertinent that even after the amendment regarding registration of marriage under Anand Marriage Act is passed, still the marriages among Sikhs will be performed as per the conditions and other provisions regarding substantive reliefs or nullity, divorce, maintenance, property etc under the Hindu Marriage Act itself. Then, how can we say that new law regarding marriage and divorce is passed for the Sikh community.
The recommendation about the registration of marriage which has been made by the Union Cabinet has not been made for the fulfillment of Sikh’s demand. The reality is that it has been made in compliance with the directions of the Supreme Court to the Government of India given in “Seema Vs. Ashawani Kumar” case in the year 2006. Moreover, the fact which is not known to majority of people is that even the Law Commission of India has recommended for the compulsory registration of marriages in its 211th Report submitted in October, 2008 to the Government of India. Not only this, the Law Commission has also recommended in this Report for the enactment of Marriage and Registration Act. It is also a fact that registration of marriage under the Indian Christian Marriage Act, 1872 and the Parsi Marriage and Divorce Act, 1936 and the Special Marriages Act, 1954 is already mandatory. It is only the Hindu Marriage Act, that under section 8, it is left to the parties to get their marriages registered or not. But, now the recommendation to make it mandatory for the registration of marriage is taken because of the decision of the Supreme Court in ‘Seema Case’ and on the recommendation of the Law Commission of India.
If the Central or State Governments are really concerned to accept the demand of the Sikhs for their separate ‘personal law’ like Christians, Parsi and Muslims already have, then it would have to be serious to enact law for the Sikh community relating to marriages and divorce, adoption, maintenance, minority, guardianship and succession. It is only when these Acts are enacted, the Sikh community can feel elated to have its own Sikh personal law.
Here, I would like to emphasize that to make the law regarding, in the above mentioned area for Sikh community, it is not compulsory to make amendment in Article 25 of the Constitution of India because it deals totally to a separate legal regime. It deals with Right to Freedom of Religion and not with ‘personal laws’ of religious community. The most talked about provisions of Constitution is Article 25 (2) (b) Explanation II. All we know that it is a long standing demand of Sikh community to amend this Explanation so that the Sikh community should be having its own independent identity. To make this amendment Morchas took place, arrests had been made and even those demanding this amendment were accused of being antinational. The most unfortunate aspect is that leaders of the Sikh community have not taken notice of the most significant development in this area. The Central Government itself in the year 2000 had constituted a ‘National Commission to Review the Working of the Constitution’ on 2nd February, 2000 under the Chairmanship of Hon’ble Former Chief Justice of India Shri M.N.Venkatachaliah consisting of ten other members including Justice Shri B.P. Jeevan Reddy, Chairman, Law Commission of India, Justice Shri R.S. Sarkaria, former Judge, Supreme Court of India, Justice Shri Kottapalli Punnayya, former Judge Andhra Pradesh High Court, Shri P.A. Sangma, former Speaker, Lok Sabha and Member of Parliament, Shri Soli J. Sorabjee, Attorney General of India, Shri K. Parsaran, Senior Advocate and former Attorney General of India, Dr. Subhash C. Kashyap, former Secretary General, Lok Sabha, Shri C.R. Irani, Chief Editor and Managing Director, The Statesman, Dr. Abid Hussain, former Ambassador of India in the USA and Smt. Sumitra G. Kulkarni, former Member of Parliament (Rajya Sabha).
The Commission thoroughly analysed the different provisions of the Constitution on the demands made from different quarters and presented its Report in huge two volumes on 31.03.2002 to the Government of India. On Article 25 of the Constitution of India, with regards to the demand of the Sikh community, in Para 3.23.1, the Commission agreed with the demand of the Sikhs to make amendment in the Article 25 of the Constitution and made recommendations as follows:
3.23.1 A number of institutions of Sikhs and Budhists suggested certain changes in article 25 (2). Explanation II to article 25 provides that reference to Hindus in sub-clause (b) of clause (2) should be construed as including a reference to Sikhs etc.
3.23.2 The Commission, without going into the larger issue on which the contention is based, is of the opinion that the purpose of the representations would be served if Explanation II to article 25 is omitted and sub clause (b) of clause (2) of that article is reworded as follows:
”(b) providing for social welfare and reform or the throwing open of Hindu, Sikh, Jaina or Budhist religious institutions of a public character to all classes and sections of these religions.”
Now, it is a matter of surprise, when the Commission headed by Former Chief Justice of India Hon’ble Justice N.N. Venkatachaliah and other 10 legal luminaries had recommended the amendment in Article 25 of the Constitution of India, particularly to delete Explanation II of Article 25 (2) (b) II, which is considered to be the most objectionable provision by the Sikh community, how the people demanding amendment to this provision can be considered anti-national. It is most strange that even after the lapse of 10 years of such an important recommendation of the high powered Commission, no Sikh leader, whether political or religious or members of Parliament from Punjab or Sikh community and other different Sikh organizations, have seriously made efforts to get this amendment implemented to establish independent Sikh identity. The Sikh community should not feel happy just on the misconceived recommendations of amendment regarding registration of marriages under the Anand Marriage Act, rather should plead forcefully with all strength to implement the recommended amendment by the Justice Venkatachaliah Commission in Article 25 of the Constitution of India, so that Sikhs can enjoy their independent status like Christians, Parsis, and Muslims in India with regards to their ‘personal law’ If Sikh succeed in getting this amendment implemented, it is only then that Sikhs can proclaim their ‘true victory’, it will be ‘historic decisions’, it will be a ‘praiseworthy step of Union Government’ and the ‘Sikhs independent identity will be established’.
*- Dr. Daljit Singh,
Professor of Law and Principal of
Khalsa College, Amritsar