You have studied in the last lesson that the personal law of Hindus and Muslims play an important role in our legal system. In this lesson, we will examine the personal law of Christians, Parsis, and Jews as incorporated in our legal system. As you might know, Christians are spread all over India and they are, in fact, the third largest religious community in India after Hindus and Muslims. If you go to Goa, Kerala, Tamil Nadu, Manipur, Megahalaya, Mizoram, and Nagaland, you would have the opportunity to interact with them without any difficulty as they are settled in these States in large numbers. Parsis are another religious community who mainly reside in Mumbai and nearby areas of Maharashtra. Their number is too small as their population is estimated at 70,000 only, all over India. Feroz Gandhi, the husband of late Prime Minister Indira Gandhi, Ratan Tata (the famous industrialist), and Sam Maneckshaw (the famous officer of Armed Forces) are some of the well known names in the Parsi community. Jews are another religious group in India who follow their culture and traditions. They are mainly settled in Mumbai and nearby areas in Maharashtra and Gujarat. Prominent Jews in India have been David Sasson (there is Sassoon Library near Church Gate in Mumbai), and Ruth Prawer Jhabwala (famous writer)
In this part of the lesson, we will try to understand the importance of Customary Rules in the lives and Legal System of these religious groups.
‘Custom’ plays an important role in the lives and legal system of the Christians in India. In Malabar there is a Christian community commonly known as Malankara Jacobite Syrian Christians. That community traces its origins to 52 A.D. when St. Thomas, one of the disciples of Jesus Christ came to Malabar and established the church there. They are governed by the Hudaya canon and all their customary practices are codified in it. There are other varieties of Syrian Christians in Kerala and elsewhere in India. When the Portuguese established their rule in western parts of India (Goa, Daman, Diu) in the 16th century, they had been successful in establishing Roman Catholic Churches. They found that the Church Order and Customs of the Syrian Christians were not in tune with the Roman Catholic Church and so the customary practices on marriage and divorce, succession and inheritance followed by their churches were codified (The Code of Canon Law) and implemented. However, the Syrian Christians did not altogether stop practicing their own religious Customs and their Customs have been regulated by the Code of Canons of the Eastern (Oriental) Churches. During British rule, these canonic customary laws were practiced by the Christians all over the Churches in India and were modernized by the passing of two specific legislations, namely Indian Divorce Act of 1869 and Indian Christian Marriage Act of 1872. Christians did not recognize divorce in their customary practices and their marriages are regarded as sacramental. The Law of Christian divorce is codified by the name of 'The Divorce Act, 1869. This Act has been amended in 2001 whereby divorce by internal consent is allowed.
These canonic laws and practices were also applied by the Courts in India. Christians are bound to observe the form of marriage prescribed by the canon law in India. Only a person who has received Episcopal ordination can perform the marriage ceremony of Christians according to the customary practices in India. Under Canon 88 of the Roman Catholic Church, a person who has completed 21st years of age is a major. Canon 1607 provides that a man before completing his 16th year and a girl before completing her 14th year cannot contract a valid marriage. Canon 1934 enjoins that a pastor must seriously dissuade minor sons and daughters from contracting marriage without the knowledge of or against the reasonable wishes of their parents. The Courts in India have recognized these canonic practices. Furthermore, the courts have held that the prohibited degrees for the purpose of marriage were those which were prohibited by a customary law of the Church to which the parties belonged. Hence, if a marriage between a man and his cousin (maternal aunt’s daughter) takes place, although it is prohibited, the Church can remove this impediment (Canon 1052). In Lakshmi Sanyal v. Sachit kumar Dhar (1972), the Supreme Court of India has accepted this position of Canonic Law.
In the matters of succession and inheritance also, the Christians have followed their local customary practices for a long time. The rule of lineal primogeniture by which the eldest son of the deceased would succeed to his property is generally applicable. Wives of Christians were not given any share in the property of the deceased husband. On adoption, Christians of Punjab have been practicing adoption of children for a long time. There is also a Custom of Syrian Christians of Kerala for adoption of a son-in-law. Where there are no sons, the husband of the youngest daughter is taken in adoption.Many Christians in India, however, adopt Hindu Customs and practices. For example, the Christians of Coorg and Pondicherry have been practicing Hindu customs. Many convertees also in Jharkhand, Orissa, and in the North East practice Hindu customary rules.
The first Parsi settlement in India was in a village called “Sanjan” in Gujarat around the year 716 A.D. This place was then ruled by the Hindu chieftain, Jadi Rana. Rana gave permission to Parsis to settle down in his principality on four conditions: (a) that the Parsis would adopt the language of the country, (b) they would not bear arms, (c) their women would dress in Hindu fashion, (d) they would perform their marriage ceremonies after sunset in accordance with Hindu customs. They agreed to these conditions and settled there. However, they did not relinquish their own religion, i.e., Zoroastrianism and traditions, such as rites of passage.
Parsi immigrants came to India to escape religious persecution by the Arab conquerors of Persia. Immigrant Parsis adopted the customs of the place where they had first been given shelter. Parsis follow distinct rites of passage that start at birth and then the ceremony of ‘navjote’ is performed to initiate the child into the Zoroastrian religion. Their marriage ceremony takes place after sunset, and they follow their own customary rites of marriage according to their religious text ‘Avesta’. Priests perform religious rites during marriage and ‘Hathevaro’ (right hand-fastening) of bride and bridegroom is done. Amidst chanting of prayers from their religious texts, the marriage is completed. Only when the priests (‘dastoorji’) certify the marriage, is the marriage completed. Parsi priests cannot perform religious rites if a Parsi boy marries a non-Parsi girl or vice –versa.
Parsis believe in the Custom that a person can become a Parsi only by birth. Hence, if a person who is a Hindu, converts himself to Parsi, he would not be allowed to get any Parsi social and religious benefit. If a Parsi girl marries a non-Parsi boy, she will lose any rights in Parsi property and society. For example, J.R.D. Tata married a French Christian and she changed religion and was initiated into Zoroastianism, but she was not allowed to claim any benefit of the Parsi society. However, the children born out of their marriage are allowed entry into the Parsi fold. The converted Parsis are not allowed entry into their religious precincts or participation in any religious ceremonies.
Amongst Parsis, there is a well recognized ‘Custom’ of nominating a son or ‘Palak’ for adoption. There is no direct reference to this religious command in the existing Holy Avesta Scriptures, yet the Parsis practice it since ages. The ‘Palak’ adoption is not in the sense of a child being taken in a family with all the rights, social, religious or civil, of the adoptive father. It is not by way of conferring any right on the ‘adopted’ son, but it is the imposition of a duty on him – the duty of get performing the after-death ceremonies of the ‘adoptive’ father for the progress and onward journey of his Ruvan (soul) in the next world. Thus, we can see that Parsi adoption is altogether a different custom than others where the adoption confers all civil rights on the adopted son or daughter.
In matters of succession, Parsis have followed different ‘Customs’ till the codification of law during British times in 1865. Parsi Panchayats (or, Parsi Anjuman) were given the jurisdiction to adjudicate on issues relating to marital discord, succession, domestic strife, and land issues etc. When there is no successor of the deceased, the property passes on to the Panchayat, which gives monetary benefit to the Parsis in times of need, such as extreme poverty whereby a person could be forced to beg or go for prostitution. These Panchayats are composed of leading and influential members of the Parsi community. These bodies are also responsible for taking care of ‘Towers of Silence’, which are the last resting place of the Parsis.
Parsis residing in mofussil areas, during British rule, were governed by their ‘Customary Law’ whereas those living in Presidency areas were governed by English law. For example, Parsi woman, in a mofussil area, had only a right to maintenance when her husband died. In Presidency town, however, a widow had an absolute right to a one-third share of her husband’s property. The daughter of the deceased, in Presidency areas, was treated at par with the son.
Jews are a small community in India who follow the religion of ‘Judaism’. The main sources of Jewish law are the provisions of the ‘Mosaic Code’, set forth in the ‘Pentateuch’, which existed in the earliest times of Judaism and which is repeated with some modifications in “Deuteronomy”. The Mosaic Code has a well-founded historical importance, and with subsequent adaptations to changed conditions of life, has affected the domestic life of the Jewish people all over the world. The later provisions of Jewish law are laid down in the “Talmud”, a work which contains the traditional laws of the Hebrews. The marital law laid down in the ‘Talmud’ is an interpretation and enlargement of the Mosaic Code. It is divided into the “Mishna” and the “Gemara”, the former of which contains the laws governing almost every action of the Hebrews, and the latter contains commentaries or expositions and discussions upon those laws. In the Middle Ages, statements of Jewish law were derived from the institutions of the ‘Rabbis’, but the principles of the old Rabbanical Code have been considerably modified in order that they may conform to the requirement of the laws of different countries in the world. The Rabbi himself is no longer a civil judge, but only a spiritual guide and preceptor of his congregation. In the Middle Ages, codes were compiled from the ‘Talmud’ for practical use, and the law was codified in the sixteenth century in a work styled “Schulchan Aruch” of which the third part, the ‘Eben Ha-Ezer’, contains the matrimonial laws of the Jewish people and has obtained a general authority on all questions of marriage and divorce.
The origins of Indian Jews remain uncertain, but according to some accounts they may have come as emissaries from the Court of King Solomon. When the kingdom of Judaea was annihilated by the Roman Emperor Vespasian in the year 70 A.D., the Jews started migrating to almost all parts of the world. Jews in India can be broadly classified into three categories: (a) the Cochin Jews, who arrived in India around 2500 years ago and settled down in Kerala as traders, (b) Bene Israel Jews, who arrived in India around 2100 years ago and settled in the states of Maharashtra and Gujarat, (c) Baghdadi Jews, who arrived in the late 18th century from Iraq, Iran, and Afghanistan and settled in Mumbai and Kolkata. They established their own small communities and built places of meeting and prayers called ‘synagogues’, read the holy Bible, and observed Sabbath and circumcision. It is interesting to know that the Bene Israel community, which is the largest Jewish community in India, believes that their forefathers were shipwrecked on India’s shore while fleeing persecution during the second century B.C.
The Jewish customary practice on marriage is different from the Christians and English people. The Roman Catholic Church considers marriage as a sacrament and as such indissoluble. Under English law, marriage is looked upon as a contract. Jewish law regards marriage not only as a civil contract, but as a relation between two persons involving very sacred duties. In the Mosaic laws, no fixed forms of concluding marriage are mentioned, but there is a distinction between the betrothed woman and the married woman. The betrothed woman was called ‘Arusha’, and the married woman ‘Nissua’. This practice was further evolved into certain legal formalities, and the act of marriage came to consist of two different parts, namely, the betrothment and the nuptials. A girl under the Jewish custom does not become betrothed unless the betrothal takes place with her consent. A girl who is a minor under the Hebrew law, that is to say, if she is below the age of thirteen years and a day, cannot betroth herself. The consent of the man is also necessary. The mere consent, however, of parties to marry each other is not sufficient to constitute a betrothal, because a certain act or formality is required by which the mutual consent is legally manifested. For this purpose, there are two special formalities. One of them is called ‘Kaseph’ (money), the other Sh’tar (written instrument). The betrothal by ‘Kaseph’ called ‘Kaseph Kiddushim’ consists in the man giving in the presence of two witnesses to the girl an amount of money or any other object of equal value, and at the same time saying in Hebrew, “Be thou consecrated to me”, or “Be my wife”, or “Be Mine” according to the laws of Moses and Israel. The witnesses must also be Jews.
The betrothment can only be dissolved through death or a formal bill of divorcement. Jewish customary law recognizes divorce. Four kinds of divorce were recognized by the old Rabbanical law:
A woman can ask for the bill of divorcement either after betrothal or marriage. The bill of divorcement has to be executed by the person who gives divorce to the person who has asked for it.
Similarly, the customary practices of the Jews in matters of succession and inheritance are regulated by the ‘Pentateuch’ (religious text mentioned before) and by the Conciliation Committees formed by the Jews in their settlements. When the law related to succession was codified during the British regime, and was named as Indian Succession Act, 1925, the Jews did not say anything upon its application upon them. When some of the Jews discovered that the new law was not in consonance with their customary practices based on “Pentateuch”, they petitioned to the State Government which has the power to exempt any race, sect or tribe from the operation of the Act. The British Government conceded this demand, and the Jews were remitted to the ‘Pentateuch’.