HVK Archives: Obsolete & discriminatory
Obsolete & discriminatory - The Hindu
Romy Chacko
()
December 1, 1998
Title: Obsolete & discriminatory
Author: Romy Chacko
Publication: The Hindu
Date: December 1, 1998
Recently some members of the Christian community approached the
High Court of Kerala challenging the Constitutional validity of
Section 118 of the Indian Succession Act, 1925. The Division
Bench of the High Court struck down the impugned provision on
the ground that it is violative of Articles 14, 15, 25 and 26 of
the Constitution. The judgment is an eye-opener to the
discriminatory treatment meted out to Christians under different
parliamentary enactments.
According to Section 118 of the Act, a person having a nephew or
niece or nearer relative cannot bequeath any property for
religious or charitable use unless:
(i) The will is executed not less than 12 months before the
death of the testator.
(ii) It is deposited within six months from the date of
execution in some place provided by law.
(iii) It remains in deposit till the death of the testator.
The harsh and rigorous procedure envisaged under the impugned
provision does not apply to the Hindu, Islamic, Buddhist, Sikh
or the Jam communities by virtue of Section 58 of the Act. Also
members of the Parsi community were exempted from the operation
of the impugned provision by virtue of an amendment in 1991.
Section 118 of the Indian Succession Act owes its origin to the
Statute of Mortmain in England. It was introduced by the English
Legislature in the 19th Century to prevent deathbed bequests
under the influence of religious leaders. The provision was
inserted in the Indian Succession Act when it was passed in
1925. Thereafter it continued in the statute book without any
change. Interestingly, on realising the harshness and the
unreasonableness of the Mortmain statute, the English
Legislature replaced it by the Charities Act 1960. But Section
118 continued to remain in the Indian Succession Act.
Article 13 of the Constitution provides that all laws in force
in the territory of India immediately before the commencement of
the Constitution. insofar as they are inconsistent with the
Fundamental Rights shall to the extent of such inconsistency be
void. The High Court struck down Section 118 of the Indian
Succession Act on the ground that it violates the principle of
equality enshrined in Article 14 of the Constitution on the
following grounds:
(a) discriminates against Christian vis-a-vis non-Christian;
(b) discriminates against testamentary disposition by a
Christian vis-a-vis nun-testamentary disposition;
(c) discriminates against religious and charitable use of
property vis-a-vis all other uses including not so desirable
purposes;
(d) discriminates against a Christian who has a nephew, niece or
nearest relative vis-a-vis a Christian who has no relative at
all; and
(c) discriminates against a Christian who dies within 12 months
of execution of the will of which he has no control.
The High Court relied on the Holy Bible and the Canon Law to
conclude that giving property for religious and charitable
purpose is an essential and integral part of Christian religious
faith and consequently, the impugned provision is violative of
Articles 25 and 26 of the Constitution.
About three years ago, some of the aggrieved Christian wives
challenged the Constitutional validity of Section 10 of the
Indian Divorce Act before the High Court of Kerala on the ground
that it was discriminatory since the Christian husband could
obtain divorce on proving adultery simply, whereas the wife, in
order to obtain divorce, had to prove incestuous adultery or
adultery coupled with cruelty or desertion. justice K. T.
Thomas (as he then was) while passing an interim order observed:
"....... After independence. the Indian Parliament brought about
radical changes in the marriage law applicable to Hindus, Parsis
and even to the foreigners living in India by incorporating
progressive and realistic grounds for divorce in such
enactments. But either for no reason or for reasons which are
not easy to comprehend, the law of marriage applicable to
Christians remains unrealistic and antiquated."
The judge directed the Union of India to take a final decision
regarding the recommendations contained in the 90th report of
the Law Commission within six months. But no move was made to
amend the law. Ultimately, the high Court of Kerala struck down
Section 10 of the Indian Divorce Act which regulated divorce
among Christians in India for a century and a quarter. A Full-
Bench of the High Court in the judgment in the Mary Sonia vs.
Union of India, 1995(1) KLT 644 case held:
"We are of the view that the life of a Christian wife, who is
compelled to live against her will though in name only as the
wife of a man who hates her, has cruelly treated her and
deserted her putting an end to the marital relationship
irreversibly, will be a subhuman life without dignity and
personal liberty... On the whole such a life can be legitimately
treated only as a life imposed by a tyrannical or authoritarian
law on a helpless, deserted or cruelly treated Christian wife
quite against her will, which she is bound to lead till her
dearth, tormented always by the feeling that she is remaining as
a wife of a man who has treated her cruelly, hated her and
deserted her for no fault of hers. Such a life can never be
treated as a life with dignity and liberty."
Section 213 of the Indian Succession Act is yet another
provision which is yet to receive the attention of Parliament.
According to this provision, Christians are compelled to obtain
probate in order to establish their right as an executor or a
legatee in a court of law. The judicial pronouncements referred
to are ii clear indication that if the legislature does not take
the initiative to repeal or alter the century-old provisions
which have become harsh and unreasonable by the passage of time,
the courts will not shirk their responsibility to strike them
down.
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