Zitierweise / cite as:
Payer, Alois <1944 - >: Dharmashastra : Einführung und Überblick. -- 9. Erbrecht. -- 1. Einleitung. -- Fassung vom 2004-03-08. -- URL: http://www.payer.de/dharmashastra/dharmash091.htm -- [Stichwort].
Erstmals publiziert: 2004-02-04
Überarbeitungen: 2004-03-08 [Ergänzungen]
Anlass: Lehrveranstaltung 2003/04
Unterrichtsmaterialien (gemäß § 46 (1) UrhG)
©opyright: Dieser Text steht der Allgemeinheit zur Verfügung. Eine Verwertung in Publikationen, die über übliche Zitate hinausgeht, bedarf der ausdrücklichen Genehmigung der Herausgeberin.
Dieser Teil ist ein Kapitel von:
Payer, Alois <1944 - >: Dharmashastra : Einführung und Übersicht. -- http://www.payer.de/dharmashastra/dharmash00.htm
Dieser Text ist Teil der Abteilung Sanskrit von Tüpfli's Global Village Library
Keine Erbschaft - kein Prozess.
Als Beispiel eines eigentlichen Rechtstitels aus den Dharmashâstras diene das Erbrecht. Dies deswegen, weil es wohl der wichtigste Titel außerhalb des Strafrechts ist Es gilt uneingeschränkt, was H. T. Colebrooke 1810 im Vorwort seiner Übersetzung des Dâyabhâga und der Mitâksharâ geschrieben hat:
"No branch of jurisprudence is more important than the law of successions or inheritance; as it constitutes that part of any national system of laws, which is the most peculiar and distinct., and which is of most frequent use and extensive application.
In the law of contracts, the rules of decision, observed in the jurisprudence of different countries, are in general dictated by reason and good sense; and rise gaturally, though not always obviously, from the plain maxims of equity and right.
As to the criminal law, mankind are in general agreed in regard to the nature of crimes: and, although some diversity necessarily results from the exigencies of different states of society, leading to considerable variation in the catalogue of offences, and in the scale of relative guilt and consequent punishment; yet the fundamental principles are unaltered, and may perhaps be equally traced in every known scheme of exemplary and retributive justice.
But the rules of succession to property, being in their nature arbitrary, are in all systems of law merely conventional. Admitting even that the succession of the offspring to the parent is so obvious as almost to present a natural and universal law ; yet this very first rule is so variously modified by the usages of different nations, that its application at least must be acknowledged tbe founded on consent rather than on reasoning. In the laws of one people the rights of primogeniture are established ; in those of another the equal succession of all the male offspring prevails; while the rest allow the participation of the female with the male issue, some in equal, other in unequal proportions. Succession by right of representation, and the claim of descendants to inherit in the order of proximity, have been respectively established in various nations, according to the degree of favour, with which they have viewed those opposite, pretensions. Proceeding from near to collateral succession, the diversity of laws prevailing among different nations, is yet greater, and still more forcibly argues the arbitrariness of the rules. Nor is it indeed practicable to reduce the rules of succession as actually established in any existing body of law, to a general or leading principle, unless by the assumption of some maxim not necessarily nor naturally connected with the canons of inheritance.
In proportion then, as the law of successions is arbitrary and irreducible to fixed and genera! principles, it is complex and intricate in its provisions ; and requires, on the part of those entrusted with the administration of justice, a previous preparation by study ; for its rules and maxims cannot be rightly understood, when only hastily consulted as occasions arise. Those occasions are of daily and of hourly occurrence : and, on this account, that branch of law should be carefully and diligently studied.
In the Hindu jurisprudence in particular, it is the branch of law, which specially and almost exclusively merits the attention of those who are qualifying themselves for the line of service in which it .will become their duty to administer justice to our Hindu subjects according to their own laws.
A very ample compilation on this subject is included in the Digest of Hindu law, prepared by JAGANNAT'HA under the directions of Sir WILLIAM JONES.
[Jagannatha Tarkapanchanana < - 1806>: A digest of Hindu law on contracts and successions. -- Calcutta : Printed at the honourable company's press, 1798. -- 4 Bde.]
But copious as that work is, it does not supersede the necessity of further aid to the study of the Hindu law of inheritance. In the preface to the translation or the Digest, I hinted an opinion unfavorable to the arrangement of it, as it has been executed by the native compiler. I have been confirmed in that opinion of the compilation, since its publication ; and indeed the author's method of discussing together the discordant opinions maintained by the lawyers of the several schools, without distinguishing in an intelligible manner which of them is the received doctrine of each school, but on the contrary leaving it uncertain whether any of the opinions stated by him do actually prevail, or which doctrine must now be considered to be in force and which obsolete, renders his work of little utility to persons conversant with the law, and of still less service to those who are not versed in Indian jurisprudence ; especially to the English reader, for whose use, through the medium of translation, the work was particularly intended.
Entertaining this opinion of it, I long ago undertook a new compilation of the law of successions with other collections of Hindu law, under the sanction of the government of Bengal, for preparing for publication a supplementary Digest of such parts of the law as I might consider to be most useful. Its final completion and publication have been hitherto delayed by important avocations ; and it has been judged meantime advisable to offer to the public in a detached form, a :ccmplete translation of two works materially connected with that compilation.
They are the standard authorities of the Hindu law of inheritance in the schools of Benares and Bengal respectively; and considerable advantage must be derived to the study of this branch of law, from access to those authentic works, in which the entire doctrine of each school, with the reasons and arguments by which it is supported, may be seen at one view and in a connected shape.
In a general compilation, where the authorities are greatly multiplied, and the doctrines of many different schools, and of numerous authors are contrasted and compared, the reader is at a loss to collect the doctrines of a particular school and to follow the train of reasoning by which they are maintained. He is confounded by the perpetual conflict of discordant opinions and jarring deductions-; and by the frequent transition from the positions of one sect to the principles of another. It may be useful then, that such a compilation should be preceded by the separate publication of the most approved works of each school. By exhibiting in an exact translation the text of the author with notes selected from the glosses of his commentators or from the works of other writers of the same school, a correct knowledge of that part of the Hindu law, which is expressly treated by him, will be made more easily attainable, than by trusting solely to a general compilation. The one is best adapted to preparatory study ; the other may afterwards be profitably consulted, when a general, but accurate knowledge has been thus previously obtained by the separate study of a complete body of doctrine.
These considerations determined the publication of the present volume. It comprehends the celebrated treatise of JÍMÚTAVÁHANA on successions, which is constantly cited by the lawyers of Bengal under the emphatic title of Dáya-Bága or " inheritance ;" and an extract from the still more celebrated Mitácshara, comprising so much of this work as relates to inheritance. The range of its authority and influence, is far more extensive than that of JÍMÚTAVÁHANA'S treatise ; for it is received in all the schools of Hindu law, from Benares to the southern extremity of the peninsula of India, as the chief groundwork of the doctrines which they follow, and as an authority from which they rarely dissent.
The works of other eminent writers have, concurrently with the Mitácshara, considerable weight in the schools of law which have respectively adopted them; as the Smriti-chandricá in the south of India ; the Chintámani, Ratnácara and Viváda chandra in Mithilá; the Vímmitrodaya and CAMALÁCARA at Benares, and the Mayúcha among the Maraháttas.: but all agree in generally deferring to the authority of the Mitácshara, in frequently appealing to its text, and in rarely and at the same time modestly dissenting from its doctrines on particular questions. The Bengal school alone, having taken for its guide JÍMÚTAVÁHANA'S treatise, which is on almost every disputed point opposite in doctrine to the Mitácshara, has no deference for its authority. On this account, independently of any other considerations, it would have been necessary to admit into the present volume either his treatise, or some one of the abridgments of his doctrine which are in use, and of which the best known and most approved is RAGHUNANDANA's Dáyatatwa. But the preference appeared to be decidedly due to the treatise of JÍMÚTAVÁHANA himself; as well because he was the founder of this school, being the author of the doctrine which it has adopted; as because the subjects, which he discusses, are treated by him w<th eminent ability and great precision ; and for this further reason, that quotations from his work, or references to it, which must become necessary in a general compilation of the Hindu law of inheritance, can be but very imperfectly intelligible without the opportunity of consulting the whole text of his close reasoning and ample disquisitions.
Having selected, for reasons which have been here explained, the Dáya-bhága of JÍMÚTAVÁHANA and the Mitácshara on inheritance, for translation and separate publication, I was led in course to draw the chief part of the annotations necessary to the illustration of the text, from the commentaries on those works. Notes have been also taken from original treatises, of which likewise brief notices will be here given, that their authority may be appreciated."
[Two treatises on the Hindu law of inheritance / transl. by H. T. Colebrooke. - Calcutta : Hindustanee Pr., 1810. - XV, 377 S. -- S. I-V]
Dieses Kapitel gibt auch Gelegenheit, die Literaturgattung der nibandhas (digests, Rechtskorpora) sowie die regionalen Unterschiede der Rechtstraditionen näher kennen zu lernen.
Das Erbrecht bildet den dritten Teil des Zivilgesetzbuchs (ZGB) (Art 457 - Art 640). Die Hauptbestimmungen für den Erbgang, wenn kein Testament vorhanden ist, sind:
A. Verwandte Erben
1 Die nächsten Erben eines Erblassers sind seine Nachkommen.Art. 458
2 Die Kinder erben zu gleichen Teilen.
3 An die Stelle vorverstorbener Kinder treten ihre Nachkommen, und zwar in allen Graden nach Stämmen.
II. Elterlicher Stamm
1 Hinterlässt der Erblasser keine Nachkommen, so gelangt die Erbschaft an den Stamm der Eltern.Art. 459
2 Vater und Mutter erben nach Hälften.
3 An die Stelle von Vater oder Mutter, die vorverstorben sind, treten ihre Nachkommen, und zwar in allen Graden nach Stämmen.
4 Fehlt es an Nachkommen auf einer Seite, so fällt die ganze Erbschaft an die Erben der andern Seite.
III. Grosselterlicher Stamm
1 Hinterlässt der Erblasser weder Nachkommen noch Erben des elterlichen Stammes, so gelangt die Erbschaft an den Stamm der Grosseltern.Art. 460
2 Überleben die Grosseltern der väterlichen und die der mütterlichen Seite den Erblasser, so erben sie auf jeder Seite zu gleichen Teilen.
3 An die Stelle eines vorverstorbenen Grossvaters oder einer vorverstorbenen Grossmutter treten ihre Nachkommen, und zwar in allen Graden nach Stämmen.
4 Ist der Grossvater oder die Grossmutter auf der väterlichen oder der mütterlichen Seite vorverstorben, und fehlt es auch an Nachkommen des Vorverstorbenen, so fällt die ganze Hälfte an die vorhandenen Erben der gleichen Seite.
5 Fehlt es an Erben der väterlichen oder der mütterlichen Seite, so fällt die ganze Erbschaft an die Erben der andern Seite.
IV. Umfang der Erbberechtigung
Mit dem Stamm der Grosseltern hört die Erbberechtigung der Verwandten auf.Art. 462
B. Überlebender Ehegatte
Der überlebende Ehegatte erhält:
- wenn er mit Nachkommen zu teilen hat, die Hälfte der Erbschaft;2.
- wenn er mit Erben des elterlichen Stammes zu teilen hat, drei Viertel der Erbschaft;3.
- wenn auch keine Erben des elterlichen Stammes vorhanden sind, die ganze Erbschaft.
Hinterlässt der Erblasser keine Erben, so fällt die Erbschaft an den Kanton, in dem der Erblasser den letzten Wohnsitz gehabt hat, oder an die Gemeinde, die von der Gesetzgebung dieses Kantons als berechtigt bezeichnet wird.
Abb.: Erbfolge nach der Stammesordnung
[Bildquelle: Studer, Benno:Testament, Erbschaft : ein Ratgeber aus der Beobachter-Praxis / Benno Studer ; [Hrsg.: Der Schweizerische Beobachter, Zürich]. -- 11., völlig neu überarb. Aufl. -- Zürich : Beobachter-Buchverlag, 1998. -- 360 S. : Ill. -- (Beobachter-Schwerpunkt). ISBN 3-85596-170-3. -- S. 13]
Bis zum Hindu Succession Act, 1956 wurde das Erbrecht im hinduistischen Indien im Wesentlichen von folgenden Rechtsschulen bestimmt:
|Dâyabhâga-Schule||Bengalen, Assam||Jîmûtavâhana <11./12.. Jhdt n. Chr.>: Dâyabhâga
Raghunandana <16. Jhdt. n. Chr.>: Dâyatattva
Shrîkrsna Tarkâlankâra: Dâyakramasangraha
|Mitâksharâ-Schule||Vijnâneshvara <12. Jhdt. n. Chr.>: Mitâksharâ (Kommentar zur Yâjnavalkya-smrti)|
|Benares-Schule||ganzes Nordindien ohne Bengalen und Assam (Dâyabhâga), Teilen von Bihar, Punjab (regionales Gewohnheitsrecht)||Mitramishra <17. Jahdt. n. Chr.>: Vîramitrodaya|
|Mithilâ- Schule||Bihar nördlich des Ganges zwischen den Flüssen Koshi und Gandak||Candreshvara <14. Jhdt. n. Chr.>: Vivâdaratnâkara
Vâcaspatimishra <15. Jhdt. n. Chr.>: Vivâdacintâmani
|Maharashtra- (bzw. Bombay-) Schule||Gujarat, Bombay, nördliches Konkan, marathi-sprechende Gegenden||Nîlakanthabhatta <17. Jhdt. n. Chr.>: Vyavahâramayûkha (teils
mit höherer Autorität als die Mitâksharâ)
für einige Rechtsgegenstände auch:
Mitramishra <17. Jahdt. n. Chr.>: Vîramitrodaya
Kamalâkarabhatta: Nirnayasindhu, 1612
|Dravida- (bzw. Madras-) Schule||Südindien||Devannabhatta <12. Jhdt. n. Chr.>: Smrticandrikâ
Varadarâja <15. Jhdt. n. Chr.>: Vyavahâranirnaya
Madhavâcarya <14. Jhdt. n. Chr.>: Parâshara-mâdhavîya (Dâyavibhâga)
Pratâparudradeva <16. Jhdt. n. Chr.>: Sarasvatîvilâsa
|Nambudiri||Nambudiri-Brahmanen in Kerala||im allgemeinen Vijnâneshvara <12. Jhdt. n. Chr.>: Mitâksharâ, aber einige Sondergewohnheiten|
|Marumakkattayam (matrilineales System)||Nair's (Nayar's) [Vgl.: http://www.nairs.org/. -- Zugriff am 2004-01-03] in Kerala|
|Tulu's, Bunts [Vgl.: http://www.buntaravani.com/. -- Zugriff am 2004-01-03] , Billawas [Vgl.: http://www.billawaru.org/aboutus.asp. -- Zugriff am 2004-01-03] und Jainas in Süd-Karnataka ("Tulunadu")|
|Daneben zahlreiche andere Gewohnheitsrechte, für den Punjab ist nach einer Entscheidung des Supreme Court von 1974 autoritativ: Rattigan, William Henry <1842-1904>: A digest of civil law for the Punjab : chiefly based on the customary law as at present ascertained / W. H. Rattigan. Ed. by Om Prakash Aggarawala. -- Reprint of the 15th ed. rev.. -- Allahabad : University Book Agency, 1989. -- 1071 S.|
Abb.: Ungefähre regionale Verteilung der Hindu-Rechtstraditionen
Die klare regionale Teilung gilt zumindest seit Henry Thomas Colebrooke 1810 erstmals von "schools of Hindu law" gesprochen hat. Auf alle Fälle hat Colebrooke für die Folgezeit die regionale Grenzziehung zwischen den beiden großen Erbrechtssystemen Dâyabhâga und Mitâksharâ verschärft.
Übersetzungen der Mitâksharâ und des Dâyabhâga:
Two treatises on the Hindu law of inheritance / transl. by H. T. Colebrooke. - Calcutta : Hindustanee Pr., 1810. - XV, 377 S. --
Enthält: A treatise on inheritance / by Jimutavahana [Originaltitel:. Dâyabhâga]. The law of inheritance from the Mitácshará / Vijñanesvara Bhattaraka [Originaltitel: Mitâksarâ ]
Abb.: H. T. Colebrooke, 1765 - 1837
Zu Henry Thomas Colebrooke siehe: Kapitel 3
Vijñânesvara: Traité original des successions d'aprés le droit hindou : extrait du Mitacshara de Vijnyaéswara suivi d'un autre traité de l'adoption, le Dattaca-Chandrica de Devandha-Bhatta / augmentées de notes explicatives tirées des meieleurs commentaires hindoux ... / par G. Orianne. -- Paris : . Duprat, 1844. -- 343 S. -- [Dattaca chandrica erroneously attributed to Devanabhatta]
Jîmûtavâhana: Jîmûtavâhana's Dâyabhâga : the Hindu law of inheritance in Bengal / edited and translated with an introduction and notes by Ludo Rocher. -- Oxford [u.a] : Oxford University Press, ©2002. -- XII, 426 S. -- (South Asia research) -- ISBN 0195138171
Abb.: Ludo Rocher [Bildquelle: http://www.southasia.upenn.edu/html/ludo_rocher.html. -- Zugriff am 2003-12-29]
Wenn eine Familie von einem Teil Indiens (z.B. Maharashtra) in einen anderen (z.B.) Bengalen auswandert, gilt weiterhin das Recht des Ursprungsortes (in unserem Fall: die Mitâksharâ und nicht der Dâyabhâga Bengalens).
"He still lives in his work
He wrote a law treatise in the 11th century, which is still in circulation. Serious efforts are now on to resurrect the greatness of Vijnaneshwara, the author of Mitakshara, gathers Anand V Yamnur
Abb.: Lage von Martur [©MS Encarta]
An emperor in the 11th century touched the feet of this man to salute him. The inscriptions on a stone plaque, dated 1124 AD, found at the Kalingeshwara Temple in Martur village, 18 kilometres from Gulbarga, reveal: “Ariraya Mukuta Tadhita Charanan-enalu Negabdi Vikramankana Ratnokara Nichita Mukuta Tadhita,” meaning “When Emperor Vikramaditya bent down to salute Vijnaneshwara, the Emperor's jewelled crown touched the feet of Vijnaneshwara”.
Such was the respect Vijnaneshwara commanded during his time. The inscriptions state that Vijnaneshwara lived in the court of Emperor Vikramaditya (1076-1126 AD). He wrote Mitakshara, a law treatise explaining the Yagnvalkya Smruthi, propounded by philosopher Yagnvalkya.
Except for minor changes, the laws in India relating to Hindu Joint Family, distribution of property, property rights, stree dhana (women property), and succession are still governed by Mitakshara. Though written 10 centuries ago, the relevance of Mitakshara is greatly felt, especially in the courts all over the country.
Till 1932, little was known about when and where Vijnaneshwara lived, and where he wrote his Mitakshara. The credit of discovering the time and place of Vijnaneshwara goes to Prof P B Desai of Dharwad. In the journal Prachina Karnataka: Hosa Belaku (Historical Karnataka: New Light), dated February 1, 1932, he wrote about a stone inscription at Kalingeshwara Temple at Martur, which discloses that Vijnaneshwara was a Kannadiga, and was born at Masemadu village in the present Bidar district.
It was only recently that the famous epigraphist Sitaram Jagirdar took out a paper impression of the Martur inscriptions, and published its contents. Dr Jagirdar points out that the stone inscriptions date back to 1124 AD. The inscriptions also disclose that Martur was the place of work of Vijnaneshwara, and in recognition of his merit and contribution, he was gifted lands and honoured by Emperor Vikramaditya the VI of the Chalukya Dynasty.
Vijnaneshwara’s original name was Kancha, and he was the son of Somaraj and Bhagyavanithe. His wife's name was Kethikabbe. Of his four sons, Beethiraja got the temples of Shiva and Mahadeva constructed at Martur, and for this, the land was donated to him on January 6, 1123.
Through the inscriptions it is clear that Vijnaneshwara lived in Martur, where he also wrote his commentary Mitakshara.
Until the inscriptions were deciphered, it was believed that Vijnaneshwara was born in the Kalyan region of Maharashtra. But, the Martur inscriptions prove that the legal luminary of the forgotten era was a Kannadiga born in the Kalyan region, which is now Basavakalyan in Bidar district.
In 1970 the present Bihar Governor M Rama Jois who served as the Chief Justice in Punjab began writing a book Legal and Constitutional History of India. At that time, he came across the earliest translations of Mitakshara by H T Cole Broke of the UK (1867), and by Prof J R Gharapure of Pune (1912). Greatly impressed by the work, Justice Jois erected a befitting memorial for this medieval India’s greatest jurist. The fact that Vijnaneshwara was a Kannadiga and hailed from the Gulbarga region was little known to the world. The need to create awareness about this great personality among the common people, and promote research on his works led to the establishment of Vijnaneshwara Souhardhaka Co-operative Society.
The Society came into existence last year in Gulbarga with Justice Jois as its chief patron. The main aim of this Society is to construct a befitting memorial for Vijnaneshwara at Martur at a cost of Rs one crore, and start a full-fledged research centre to study the life and works of the man. "[Quelle: Deccan Herald. -- 2003-10-03. -- Online: http://www.deccanherald.com/deccanherald/oct03/spt3.asp. -- Zugriff am 2004-01-069
Abb.: District Officer schlichtet Rechtsstreitigkeiten [Bildquelle: The Cambridge illustrated history of the British Empire / edited by P. J. Marshall. -- Cambridge : Cambridge Univ. Press, ©1996. - 400 S. : Ill. -- (Cambridge illustrated histories). -- ISBN 0-521-43211-1. -- S. 357]
Unter britischer Kolonialregierung waren die Gerichte angehalten, Zivilfälle strikt nach einheimischem lokalem Recht zu entscheiden. Da das niedergeschriebene Recht brahmanischer Autoren am leichtesten fassbar war und dazu auch ausgezeichnete einheimische Gelehrte (Pandit's) zur Verfügung standen, bekam in der Rechtssprechung dieses brahmanische Recht ein Übergewicht gegenüber ungeschriebenem Recht. Dies obwohl das Privy Coucil in der grundlegenden Entscheidung zu Collector of Madura v Mootoo Ramalinga (1868) entschieden hatte:
"Under the Hindu system of law, clear proof of usage will outweigh the written text of law." (12 MIA 397, 436)
Zunächst wurden unter Mithilfe einheimischer Gelehrter die wichtigsten Rechtstexte aus dem Sanskrit ins Englische übersetzt.
Die Schwierigkeiten der Britten mit der Verwaltung indischen Rechts drückte das Privy Council in einer sehr frühen Entscheidung so aus:
"At the same time it is quite impossible for us to feel any confidence in our opinion, upon a subject like this, when that opinion is founded
upon authorities to which we have access only through translations, and when the doctrines themselves, and the reasons by which they are supported, or impugned, are drawn from the religious traditions, ancient usages, and more modern habits of the Hindoos, with which we cannot be familiar."
[4 MIA 1, 97f.]
Um die Rechtssprechung zu vereinheitlichen und die Rechtssicherheit zu vergrößern wurden 1862 die High Courts von Calcutta, Bombay und Madras als Appelationsgerichtshöfe geschaffen. Ihre Entscheide sind für die ihnen jeweils untergeordneten Gerichte bindend. 1866 folgte der High Court von Allahabad, 1884 der von Mysore. Oberste Berufungsinstanz war das Judicial Committe des königlichen Privy Council in London [Webpräsenz: http://www.privy-council.org.uk. -- Zugriff am 2004-01-02]. Seine Entscheidungen sind für alle High Courts und die untergeordneten Gerichtshöfe bindend.
Das indische Zivilrecht wurde so unter britischer Kolonialherrschaft zu Case law (Präjudizienrecht) nach englischem Vorbild. Der Grundsatz ist dabei stare decisis (lateinisch) = "bei den entscheidungen stehen bleiben". Der folgende Text schildert die Struktur dieser Rechtsform:
Jedes Präjudiziensystem baut auf einer Grundnorm auf, die die Verbindlichkeit der Vorentscheidung gebietet. Die Grundnorm darzustellen, auf der die Verbindlichkeit des „precedent" im Rahmen des Case Law beruht, bereitet theoretisch große Schwierigkeiten, da sie nicht auf festumrissenen Bestimmungen (wie z.B. §§ 136, 137, 138 GVG) oder auf Verfassungsrecht (etwa Gleichheitsgrundsatz oder Vertrauensschutz) gegründet ist. Auch werden die Richter in der Regel nicht durch Amtseid verpflichtet, die „doctrine of precedent" einzuhalten.
Als Grund der Befolgung maßgeblicher Vorentscheidungen wird in England vornehmlich das außerordentliche Ansehen der Richter an den Oberen Gerichten genannt, die als „Her Majesty's Judges" mit der Quelle allen Rechts unmittelbar in Verbindung stehen; in den Vereinigten Staaten tritt neben dem Ansehen der Richter der Gedanke der Gleichheit, der Vorhersehbarkeit und der Wirtschaftlichkeit in den Vordergrund; übereinstimmend geht man in England und den USA davon aus, dass ein Case-Law-System nur funktionieren kann, wenn in einem gewissen Umfang Bindung an die Vorentscheidungen besteht.
Die anglo-amerikanische Theorie vom „stare decisis" (von lat.: „stare decisis et non quieta movere" - d.h. „bei den Entscheidungen stehen bleiben") hat sich - wie der gesamte Komplex des Case Law - allmählich entwickelt. Die Anfänge lassen sich bis zur Regierungszeit von Heinrich II. (1154-1189) zurückverfolgen; jedoch konnte sich die Lehre in ihrer vollen Strenge erst nach Etablierung eines festgefügten Gerichtssystems und ordentlicher Publikation der Gerichtsentscheidungen Ende des 18./Anfang des 19. Jh. entfalten, wobei dann auch der Normenkomplex der Equity erfasst wurde, obgleich es sich hier zunächst um eine auf den konkreten Einzelfall abgestimmte Billigkeitsentscheidung handelte.
Die Stare-Decisis-Doktrin baut auf dem Grundsatz auf, dass im Rahmen eines souveränen Jurisdiktionsbereichs alle Gerichte durch die Entscheidungen höherer Gerichte gebunden werden; diese Entscheidungen sind „bindend" („are binding on the courts"), d. h. sie müssen befolgt werden - und zwar grundsätzlich ohne Rücksicht darauf, ob die Entscheidung dem Untergericht richtig oder falsch erscheint. Die Entscheidung, d. h. die in ihr enthaltene Rechtsregel, ist solange bindend, als sie nicht außer Kraft gesetzt wird; außer Kraft gesetzt werden („overruled") kann eine Entscheidung durch eine spätere Entscheidung des erkennenden Gerichts, soweit dieses nicht an seine eigenen Entscheidungen gebunden ist, durch die Entscheidung eines noch höheren Gerichts oder durch die Gesetzgebung (Statute Law). Entscheidungen rangniederer Gerichte sind für die ranghöheren Gerichte lediglich von „persuasive authority", etwa die des Court of Appeal für das House of Lords. Voraussetzung für das Arbeiten mit anglo-amerikanischem Case Law ist demnach zunächst die Kenntnis der jeweiligen Gerichts- und Entscheidungshierarchie."
[Quelle. Blumenwitz, Dieter <1939 - >: Einführung in das anglo-amerikanische Recht : Rechtsquellenlehre, Methode der Rechtsfindung, Arbeiten mit praktischen Rechtsfällen. -- 3., durchges. Aufl. -- München : Beck, 1987. -- 133 S. -- (Schriftenreihe der Juristischen Schulung ; H. 2). -- ISBN 3-406-31744-8. -- S. 28f.]
Zur Struktur des indischen Gerichtswesens siehe:
Kapitel 9, Anhang A: Das indische Gerichtssystem. -- URL: http://www.payer.de/dharmashastra/dharmash09a.htm
Durch die zahlreichen Entscheide der High Courts und des Privy Councils entstand für das gesamte Gebiet des Hindu Law ein lückenloses Case law. Dieses ist faktisch an die Stelle der Kommentare und Nibandhas (Digests) getreten und hatte bis zu den Gesetzgebung unbeschränkt Gültigkeit, seit den Gesetzgebungen für die Lücken in den Gesetzen sowie teilweise zur Auslegung der Gesetze.
Die Entwicklung der als autoritativ angesehenen (brahmanischen) Rechtstexte verlief also so:
- Dharmasûtras und Smrtis
- Kommentare und Nibandhas (Digests)
- Case law
Hindu Inheritance (Removal of Disabilities) Act
Section 2. Persons not to be excluded from inheritance or rights in joint family property.
Notwithstanding any rule of Hindu Law or custom to the contrary, no person governed by the Hindu Law, other than a person who is and has been from birth a lunatic or idiot, shall be excluded from any right or share in joint family property by reason only of any disease, deformity, or physical or mental defect.
[Quelle: http://126.96.36.199/cgi/nph-bwcgi/BASIS/indweb/all/secretr/SDW?M=1&W=actid='192812'. -- Zugriff am 2004-01-07]
Hindu Law of Inheritance (Amendment) Act ändert die Reihenfolge bei der Erbfolge gegebnüber der Mitâksharâ: wenn der Erblasser ohne Sohn stirbt, dann ist die Reihenfolge der entfernten Erben: Großvater väterlicherseits, Tochter, Tochtertochter, Schwester, Schwestersohn, Vaterbruder (nach der Mitâksharâ käme der Vaterbruder an 2. Stelle nach dem Großvater väterlicherseits. Dieses Gesetz gilt nur für Gebiete unter Mitâksharâ-Recht
Hindu Women's Right to Property Act (XVIII of ) 1937. Gilt für alle Rechtsschulen. Die Witwe erhält volles Erbrecht, auch wenn als Miterben Söhne vorhanden sind.
Bildung des Hindu Law Committee unter dem Vositz von Sir Benegal Narsing Rao (deshalb auch Rau Committee), das ein einheitliches kodifiziertes Hindu Law vorschlagen soll. Das Committe erarbeitete einen Entwurf. Das indische Parlament zog es aber vor, statt eines einheitlichen Hindu Law verschiedene einzelne Acts zu verabschieden.
Hindu Succession Act, 1956 verabschiedet als "An Act to amend and codify the law relating to intestate succession among Hindus".
Er hebt alle ihm widersprechenden Bestimmungen älteren Rechts auf:
4. Overriding effect of Act
- Save as otherwise expressly provided in this Act,-
- any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
- any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act.
- For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.
Der Hindu Succession Act findet Anwendung auf:
2. Application of Act
- This Act applies-
Explanation : The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-
- 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 Brahmo, Prarthana or Arya Samaj;
- to any person who is Buddhist, Jaina or Sikh by religion; and
- to any other person 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 herein if this Act had not been passed.
any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
- any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
- any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
- Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
- The expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.
Der Hindu Succession Act, 1956 enthält folgende Rechtstitel:
CHAPTER I: PRELIMINARY
- 1. Short title and extent
- 2. Application of Act
- 3. Definitions and interpretations
- 4. Overriding effect of Act
CHAPTER II: INTESTATE SUCCESSION
Chapter III: TESTAMENTARY SUCCESSION
- 5. Act not to apply to certain properties
- 6. Devolution of interest of coparcenary property
- 7. Devolution of interest in the property of a tarwad, tavazhi, kutumba, kavaru or illom
- 8.General rules of succession in the case of males
- 9. Order of succession among heirs in the Schedule
- 10 Distribution of property among heirs in class I of the Schedule
- 11. Distribution of property among heirs in class II of the Schedule
- 12. Order of succession among agnates and cognates
- 13. Computation of degrees
- 14. Property of a female Hindu to be her absolute property
- 15. General rules of succession in the case of female Hindus
- 16. Order of succession and manner of distribution among heirs of a female Hindu
- 17. Special provisions respecting persons governed by Marumakkattayam and Aliyasantana laws
- 18. Full blood preferred to half blood
- 19. Mode of succession of two or more heirs
- 20. Right of child in womb
- 21. Presumption in cases of simultaneous deaths
- 22. Preferential right to acquire property in certain cases
- 23. Special provision respecting dwelling houses
- 24. Certain widows remarrying may not inherit as widows
- 25. Murderer disqualified
- 26. Convert’s descendants disqualified
- 27. Succession when heir disqualified
- 28. Disease, defect, etc. not to disqualify
- 29. Failure of heirs
CHAPTER IV: REPEAL
- 30. Testamentary succession
- 31. Repeal
Text des Hindu Succession Act: http://www.indialawinfo.com/bareacts/hsa.html. -- Zugriff am 2003-12-26]
In Kerala hebt der The Kerala Joint Hindu Family System (Abolition) Act, 1975 (Kerala Act no. 30 of 1976) alle Formen von joint family (nach Marumakkattaya, Aliyasantana, Nambudiri bzw. Mitakshara Recht) auf
Hindu Succession Act 1985 (Andhra Pradesh Amendment) gewährt Töchtern beim Erbe gleiche Rechte wie Söhnen
Hindu Succession (Maharashtra Amendment) Act, 1994 gewährt Töchtern beim Erbe gleiche Rechte wie Söhnen
Written 3:02 AM May 26, 1997 by email@example.com in igc:pna.news
Inheritance Reform in Maharashtra
A PNA dispatch
archives: November 1994
Gender and Inheritance Law Reform in Maharashtra
By Annabelle Perkins
The government of Maharashtra State in India has recently passed a law designed to promote gender equity in property inheritance and discourage the practice of dowry-giving. The law provides for the right of a daughter to inherit parents' wealth on an equal basis with sons. Until this law was implemented in Maharashtra, daughters did not have the legal right to claim an equal share of an inheritance because of a loophole in national law. In most cases they had to be content with a dowry.
Dowry is officially supposed to represent a daughter's share of her family's wealth, in the form of a pre-mortem inheritance from her parents at the time of her marriage. Dowry is also given by the parents of a daughter to compensate the groom's family for supporting her after her marriage, since she is often prohibited by social customs from earning a cash income that would contribute economically to the family into which she is married. Women may also become an economic burden in the event of widowhood, which is likely since brides are typically much younger than grooms.
However, dowry has deteriorated into a method of extortion of wealth from bride's to groom's parents, leaving many parents of daughters in debt and encouraging the practice of female feticide - an increasing social evil in the state of Maharashtra, as elsewhere in India. This practice occurs as a result of great social pressure on parents to arrange socially acceptable marriages for their daughters without having the economic means to do so.
Simply passing a law equalising sons' and daughters' claims to land and other immovable property will not solve the problem of dowry-giving. In many regions of rural India there is a strict social taboo on a daughter inheriting land, since if she does so the land is lost by her father's lineage and passes instead to her children, who belong to the lineage of her husband. Furthermore, women in many rural areas are economically reliant on male kin. If the woman is widowed without adult sons or brothers-in-law, and her dowry was small, or was seized by her husband's family, she may be unable to earn a self-supporting income and be forced to sell her land inheritance share to a complete stranger.
Therefore, if a woman attempts to exercise her legal claim to her share of her parents' immovable property, she is likely to lose the affection of her brothers, together with their sense of obligation to support her in a family emergency or in the event that she is widowed without sons or responsible brothers-in-law.
To quote from Minturn (Sita's Daughters: Coming Out of Purdah: The Rajput Women of Khalapur Revisited):
"Modern agriculture, essential to India's food supply, requires relatively large land plots. Despite the destruction of most of the wide irrigation dikes, many Khalapur landholdings are already too small to utilise modern farming equipment. Landholdings in poorer states are even smaller. Land inheritance by daughters and by daughters' daughters would quickly divide landholdings among people living in diverse locations. Furthermore, it is the labour of sons that harvests the land and earns the money for investments such as tube wells and tractors. Sons may put in many years of labour between the time that their sisters marry and their parents die. Equal inheritance by daughters means that they benefit from this labour without having contributed to it. Daughters must hire people to work parental land, becoming absentee landowners, or sell their shares. Unless they sell to their brothers, the patrilineage is deprived of ancestral property. The opposition to female land claims is understandable, and it seems unlikely that it will diminish."
Sarkar's ideal law of inheritance
In this cultural context, it is very clear why Prout philosopher Prabhat Ranjan Sarkar sets out the Ideal Law of Inheritance as follows:
"The son and the daughter shall inherit in equal shares the properties (movable or immovable) of their parents. The daughter shall enjoy the immovable property while she lives, but shall not transfer it to others. The property shall revert to her father's family after her death."
This system, if implemented, would contribute to overcoming the practice of dowry-giving, while at the same time appease those women who claim that if dowry-giving (which is already illegal) were suppressed, they would get nothing at all from their parents, either before or after their death. It allows for equity while at the same time docs not conflict with the psychology and customs of the people.
Minturn also points out that:
"Dowry is a consequence of cloistering or other customs that keep women from productive work. Wives who contribute to their husband's incomes do not need dowries, since their labour over their lifespan is more valuable than dowry goods. But when wives cannot work, or when the value of their domestic work is not recognised, dowry provides a way of shifting part of the expense for their support to their parental families."
Therefore it appears that the best solution at this time would be actively to uphold in the Maharashtran courts the right of women to the use of property according to Sarkar's ideal inheritance system, while at the same time vigorously encouraging the economic self-reliance of women.
Effective policies towards this end must include the promotion of literacy and primary education at the most basic level for women: the right of equal access to education is neglected and remains unrealised for the majority of Maharashtra's women, let alone the equal right to inherit property. Women also need access to employment. Promoting policies to support women s co-operatives in food processing industries would be an equitable way to provide them with paid jobs, whilst at the same time reducing the backbreaking workload they typically face at home in food preparation and processing. The realisation of economic self-reliance for women is a key step in the process of the social and economic development that Maharashtra will have to undergo before its equal inheritance laws can become anything more than a hollow lip service to the rights of women.
***© 1997 People's News Agency. All rights reserved. Material provided by PNA may be reprinted if the author is mentioned and if the following information is included: "Reprinted with permission of People's News Agency, Platanvej 30, 1810 Frederiksberg C, Denmark, firstname.lastname@example.org". Please send clippings to this address. PNA is a news, views, analysis and literature service for the progressive-minded. The agency is sponsored by Proutist Universal from its global headquarters in Denmark, and serves progressive publications around the world.***
[Quelle: http://www.prout.org/pna/inheritance-india.html. -- Zugriff am 2003-12-29]
Die Law Commission macht Vorschläge für Hindu Succession (Amended) Bill 2000 (noch nicht verabschiedet): darin werden Töchter den Söhnen völlig gkleichgestellt.
Law Commission of India: Property Rights of Women: Proposed Reforms under the Hindu Law:
1.3 The Background
Since time immemorial the framing of all property laws have been exclusively for the benefit of man, and woman hasbeen treated as subservient, and dependent on male support. The right to property is important for the freedom and development of a human being. Prior to the Act of 1956, Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to a diversity in the law.Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex.
1.3.1. A woman in a joint Hindu family, consisting both of man and woman, had a right to sustenance, but the control and ownership of property did not vest in her. In a patrilineal system, like the Mitakshara school of Hindu law, a woman, was not given a birth right in the family property like a son.1.3.2 Under the Mitakshara law, on birth, the son acquires a right and interest in the family property.According to this school, a son, grandson and a great grandson constitute a class of coparcenars, based on birth in the family. No female is a member of thecoparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth.
1.3.3 The Mitakshara law also recognises inheritance by succession but only to the property separately owned by an individual, male or female. Females are included as heirs to this kind of property by Mitakshara law.
Before the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal, Benares and Mithila sub schools of Mitakshara recognised only five female relations as being entitled to inherit namely - widow, daughter, mother paternal grandmother, and paternal great-grand mother.1
The Madras sub-school recognised the heritable capacity of a larger number of females heirs that is of the son's daughter, daughter's daughter and the sister, as heirs who are expressly named as heirs in Hindu Law of Inheritance (Amendment) Act,1929.2 The son's daughter and the daughter's daughter ranked as bandhus in Bombay and Madras.
The Bombay school which is most liberal to women, recognised a nunmber of other female heirs, including a half sister, father's sister and women married into the family such as stepmother, son's widow, brother's widow and also many other females classified as bandhus.1.3.4 The Dayabhaga school neither accords a right by birth nor by survivorship though a joint family and joint property is recognised. It lays down only one mode of succession and the same rules of inheritance apply whether the family is divided or undivided and whether the property is ancestral or self-acquired. Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father's life time. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares alongwith their brothers. Since this ownership arises only on the extinction of the father's ownership none of them can compel the father to partition the property in his lifetime and the latter is free to give or sell the property without their consent. Therefore, under the Dayabhaga law, succession rather than survivorship is the rule. If one of the male heirs dies, his heirs, including females such as his wife and daughter would become members of the joint property, not in their own right, but representing him. Since females could be coparceners, they could also act as kartas, and manage the property on behalf of the other members in the Dayabhaga School.
1.3.5 In the Marumakkattayam law, which prevailed in Kerala wherein the family was joint, a household consisted of the mother and her children with joint rights in property. The lineage was traced through the female line. Daughters and their children were thus an integral part of the household and of the property ownership as the family was matrilineal.1.4 However, during the British regime, the country became politically and socially integrated, but the British Government did not venture to interfere with the personal laws of Hindus or of other communities. During this period, however, social reform movements raised the issue of amelioration of the woman's position in society.
The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs i.e. son's daughter, daughter's daughter and sister (thereby creating a limited restriction on the rule of survivorship).
Another landmark legislation conferring ownership rights on woman was the Hindu Women's Right to Property Act (XVIII of ) 1937. This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law of partition, alienation of property, inheritance and adoption.31.4.1 The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. But, the widow did not become a coparcener even though she possessed a right akin to a coparcenary interest in the property and was a member of the joint family. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition.4 A daughter had virtually no inheritance rights. Despite these enactments having brought important changes in the law of succession by conferring new rights of succession on certain females, these were still found to be incoherent and defective in many respects and gave rise to a number of anomalies and left untouched the basic features of discrimination against women. These enactments now stand repealed.
1.5 The framers of the Indian Constitution took note of the adverse and discrimnatory position of women in society and took special care to ensure that the State took positive steps to give her equal status.
Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favour of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution.
Part IV of the Constitution contains the Directive Principles which are no less fundamental in the governance of the State and inter-alia also provide that the State shall endeavour to ensure equality between man and woman.
Notwithstanding these constitutional mandates/ directives given more than fifty years ago, a woman is still neglected in her own natal family as well as in the family she marries into because of blatant disregard and unjustified violation of these provisions by some of the personal laws.
1.5.1 Pandit Jawaharlal Nehru, the then Prime Minister of India expressed his unequivocal commitment to carry out reforms to remove the disparities and disabilities suffered by Hindu women. As a consequence, despite the resistance of the orthodox section of the Hindus, the Hindu Succession Act, 1956 was enacted and came into force on 17th June, 1956. It applies to all the Hindus including Buddhists, Jains and Sikhs. It lays down a uniform and comprehensive system of inheritance and applies to those governed both by the Mitakshara and the Dayabahaga Schools and also to those in South India governed by the the Murumakkattayam, Aliyasantana, Nambudri and other systems of Hindu Law. Many changes were brought about giving women greater rights, yet in section 6 the Mitakshara Coparcenary was retained.
1.6 The Law Commission is concerned with the discrimination inherent in the Mitakshara coparcenary under Section 6 of the Hindu Succession Act, as it only consists of male members. The Commission in this regard ascertained the opinion of a cross section of society in order to find out, whether the Mitakshara coparcenary should be retained as provided in section 6 of the Hindu Succession Act, 1956, or in an altered form, or it should be totally abolished. The Commission's main aim is to end gender discrimination which is apparent in section 6 of the Hindu Succession Act,1956, by suggesting appropriate amendments to the Act. Accordingly, in the next two chapters of this report the Commission has made a broad study of section 6 of the Hindu Succession Act, 1956, and the Hindu Succession State(Amendment) Acts of Andhra Pradesh (1986), Tamil Nadu(1989), Maharashtra(1994) and Karnataka(1994) and the Kerala Joint Family System (Abolition) Act, 1975.
The Acts are annexed collectively as Annexure IV.
[Quelle: LAW COMMISSION OF INDIA: 174TH REPORT ON “Property Rights of Women: Proposed Reforms under the Hindu Law”. -- MAY, 2000. -- (D.O. No.6(3)(59)/99-LC(LS)). -- Online: http://www.lawcommissionofindia.nic.in/kerala.htm. -- Zugriff am 2003-12-269
Da das indische Privatrecht (Zivilrecht) zerfällt in
|2. Application of Personal Law of Muslims.- Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardiaship, gifts, trusts and trust properties, and wakfs (other than chartities and charitable institutions and charitable and religious endowments) the rule of decision in case where the parties are Muslims shall be the Muslim Personal Law (Shariat).|
Mulla, Dinshah Fardunji <1868-1934>: Principles of Mahomedan law / Mulla. -- 19th ed. / by M. Hidayatullah [<1905 - >] and Arshad Hidayatullah. -- Bombay : Tripathi, ©1990. -- LII, 346 S. -- ISBN 8171180272
muss das (für alle Arten Zivilrechts zuständige) Zivilgericht - ähnlich wie im Internationalen Privatrecht - jeweils entscheiden, welches Recht anzuwenden ist.
[Vgl. die FAQ zu den indischen Familienrechten: http://invest.economictimes.indiatimes.com/question/faqs/FamilyLaw.htm. -- Zugriff am 2004-01-11]
Zur schwierigen Frage, auf wen Hindu Law anzuwenden ist, seien die klaren Ausführungen in
Mayne's treatise on Hindu law & usage : also containing commentaries on the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956, the Hindu Minority & Guardianship Act, 1956, the Hindu Women's Rights to Property Act, 1937 / John Dawson Mayne [1828-1917]. -- 15th ed. / revised by Ranganath Misra [1926 - ]. -- New Delhi : Bharat Law House, ©2003. -- 139, 1507 S. -- ISBN 8177370677. -- S. 67-74
wiedergegeben (für die Quellenangaben, vor allem cases, konsultiere man dieses Werk).
Application of Hindu law.—Acceptance of the Vedas with reverence: recognition of the fact that the means or ways to salvation are diverse and realisation of the truth and that the number of Gods to be worshipped is large, is the distinguishing feature of Hindu religion. The question, who are governed by Hindu law is not easily answered by saying that all Hindus are governed by it.
For, there are classes of Hindus who are governed by their customary laws and not by the Hindu law; for instance, those that follow the Marumakathayam law in Malabar and the Aliyasantana law in Kanara and those Hindu communities in the Punjab who are governed by their customary law.
On the other hand, some Muhammedan communities, descended from an original Hindu ancestry, like the Khojahs, the Cutchi Memons, the Borahs, and the Halai Memons, are, subject to the Shariat Application Act, 1937 [Online: http://www.vakilno1.com/bareacts/muslimperact/muslimpersonalact.htm. -- Zugriff am 2004-01-11] , governed by Hindu law in matters of succession and inheritance.
Subject to the above exceptions, Hindu law applies to Hindus by birth as well as to Hindus by religion.
It is now well settled that a Hindu does not cease to be governed by Hindu law by lapses from orthodox Hindu practice or by deviation or dissent from its central doctrines. Several religious sects or bodies had at various periods and under various circumstances split off from the Hindu system but their members nevertheless continue to live under Hindu law.
Of these, the Jains and the Sikhs are conspicuous examples. In Rani Bhagwan Koer v J C Bose [(1903) 30 English Law Reports, Indian Appeals 249] the Sikhs and Jains were held to be governed by Hindu law except to the extent to which it is varied by custom.
The Jains, though generally adhering to the ordinary Hindu law, recognise no divine authority in the Vedas, and do not practise the SRADDHAS or ceremonies for the dead. Nor do they recognise the spiritual superiority of the Brahmins. The Jains in the Madras province who were previously governed by the Aliyasantana law of inheritance have now been brought under the Mitakshara law by the Jaina Succession Act (III of 1929), Jain undivided family is included in the expression Hindu undivided family. But it has been held that Jains who do not believe in Vedas are not Hindus. There are differences between Hindus, Sikhs and Jains in some of the essential details of the faith and the religious practices they observe. There are also organisational differences in the matter of religious trusts between Hindus, Sikhs and Jains.
There is not personal law except Hindu law applicable to Buddhists in India. They cannot be governed by Burmese or Chinese Buddhists law. They must therefore be governed by Hindu law except where there is a change to a Buddhists domicile and an adoption of that law.
Similarly the Lingayats, a body of dissenters from Hinduism, who deny the supremacy of the Brahmins and the validity of caste-distinctions have been held to be a sect of Hindus governed by ordinary Hindu law except in so far as it is varied by any custom amongst them.
A Hindu does not by becoming a Brahmo, or an Arya Samjist or a Dayanandi, cease to be governed by Hindu law; both the Brahmo Samaj and the Arya Samaj are only sects of Hindus for the purpose of the application of Hindu law.
In Ma Yait v Maung Chit Maung [(1921) 48 English Law Reports, Indian Appeals 553] the question was whether the Kalais descended from Hindus who married Burmese women were a Hindu community governed by Hindu law. It was held that they were not, but that they were governed by the Indian Succession Act on the ground that there was no continuity of Hindu character in their case as they were away from Hindu centres in an alien country in a Buddhist environment and their mode of life was different from that of the Hindu communities in India.
Lord Haldane pointed out that if a man is born a Hindu, deviation from orthodoxy not amounting to a clear renunciation of his religion does not deprive him of his status as a Hindu but that, though contact with other religions may well evolve sects which discard many characteristics of orthodox Hinduism and adopt ideas and rites popularly supposed to belong to other systems, continuity with a religion which is so elastic in its scope as in Hinduism may not be destroyed. The Judicial Committee referred in Bhagwan Kaur's case to the separation from the Hindu communion, and in Ma Yait's case to a clear renunciation of the Hindu religion.
As the authorities show, neither can be established except by a Hindu becoming a Muhammedan or a Christian or by the combined operation of migration, inter-marriage and new occupations.
When one is born a Hindu, the fact that he goes to a Buddhist temple, or a church, or durgah, cannot be said to show that he is no more a Hindu unless it is clearly proved that he has changed his religion from Hinduism to some other religion. In considering the question of conversion the court must consider the question in the context of Indian society and the place of religious observance in so far as they show what religion the alleged person professes.
A solemn declaration under the Special Marriage Act by a person that he does not profess the Hindu religion has been held to be insufficient to deprive him of his status as a Hindu.
But in Punjab Rao v Mesha Ram [1965 All India Reporter, Supreme Cozrt 1179], the Supreme Court held that a declaration made in public that he is converted to Buddhism is sufficient to make him a Buddhist. The Supreme Court observed that in the face of such an open declaration that he has ceased to belong to the old religion and has accepted another religion it should be idle to enquire further as to whether conversion to another religion was efficacious.
A man cannot alter the law of succession applicable to himself by a mere declaration that he is not a Hindu. He can only alter his existing status by becoming a member of such a religion as would destroy that status and give him a new one.
The question is whether a Hindu by proclaiming himself not to belong to the Hindu religion or to belong to no religion can effectively renounce his religion. Hinduism not only comprises religious beliefs and modes of life but also social, moral and philosophical outlooks as well. Therefore a mere investigation into a man's modes of life and religious belief without taking his racial and historical background into account will not be conclusive. As Lord Haldane pointed out, a method which takes account of historical as well as other considerations must be applied and the opinion of the community in which he lives may well be a factor.
The reasonable conclusion appears to be that the term 'Hindu' in the Civil Courts Acts of the various provinces must be applied to persons who are Hindus either by birth or by religion provided that those who are born Hindus have not become converts to Christianity or Muhammadanism. In other words, if a Hindu, on his conversion to Christianity or Muhammadanism, ceases to be governed by his prior personal law, it is because of a conflict of laws. In the absence of any such conflict, the personal law must continue to apply to him even though he is not a Hindu in the stritct theological sense.
Conversion does not necessarily result in extinguishment of caste and notwithstanding conversion the convert may enjoy the privileges social and political by virtue of his being a member of the community with its acceptance. Even if conversion resulted in expulsion at the hands of the caste people a convert may still be ushered in that caste by the caste people on his conversion to Hinduism. Where a Hindu male by caste, converted as Christian for educational purpose and was being regarded by the male community all along as such, it was held that he never ceased to be a male at any stage and as he is a member of the scheduled caste within the scope of Constitution (SC) Order 1950 his election is valid.
Conversely, conversion to Hindu religion of persons of non-Hindu origin attracts with it the application of Hindu law. Where a European lady or an Indian Christian, after formal conversion to Hinduism married a Hindu by race and religion, the Madras High Court has held that she was a Hindu within the meaning of the Succession Act or Hindu law, and that membership of a caste was not a necessary prerequisite for being a Hindu.
Hindus who, having renounced Hinduism, revert to it by reconversion, with or without the performance of rites of expiation and reconversion, would be governed by Hindu law.
A person may be a Hindu by birth or by conversion. A mere theological allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu nor a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona fide intention to be converted to the Hindu faith accompanied by conduct unequivocally expressing that intention, may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion. The convert must embrace Hinduism and follow the cultural and spiritual traditions of that religion and take to Hindu mode of life. In Guruswamy v Irulappa [1934 All India Reporter. Madras High Court 630] an earlier decision in Administrator-General v Anandachari [19 All India Reporter. Madras High Court 466] where it was held that conversion must be attended by expiatory ceremonies was distinguished on the ground that the conversion was to Brahmin community and the need for expiatory ceremonies was based on the practice of such communities.
The son of a Hindu father and a Christian mother married under the Special Marriage Act, 1954 is a Hindu. A child in India must be presumed to have his father's religion, and the corresponding civil and social status.
In Michels v Venkateshwaran [1952 All India Reporter. Madras High Court 474] it was held that the institution of caste is peculiarly Indian. A member of one of the castes or sub-castes when he is converted to Islam or Christianity ceases to be a member of any caste. Instances can be found in which in spite of conversion the caste restriction might continue. But these are all cases of exception and the general rule is conversion operates as an expulsion from the caste. In other words a convert ceases to have any caste.
In Suri Dora v Giri (VV) [1958 ll India Reporter. Andhra Pradesh High Court 724] was affirmed on appeal in Giri (VV) v Suri Dora [1959 All India Reporter. Supreme Court 318] it was reiterated that caste is the result of birth and not of choice or volition. Though a person who belonged to scheduled tribe was acting as a Kshatriya he could not attain the status of a Kshatriya, when there was no evidence of the reactions of the old tribe or of the new fold.
As Christianity does not recognise caste a convert to Christianity ceases to belong to Adidravida caste. A government order stating that children born out of inter-caste marriages will be allowed to all educational concessions given to schedule castes provided the father or the mother belongs to schedule caste, is not sufficient to enable the children born in wedlock of such marriages to become schedule caste, so as to avail one-self of the reservations for admission in colleges or employments. They must be members of the schedule caste as defined in Article 241 of the Constitution and included in the list of scheduled castes appended to the notification issued by the President of India and should profess Hinduism, Sikhism, Jainism or Budhist religion.
In Shyam Sundar v Shanker Dev [ [1960 All India Reporter. Mysore High Court 27] it was however held that a person did not cease to be a member of the caste to which he belonged by becoming an Arya Samajist, obviously because Arya Samaj is part of Hindu religion and he could not be considered to be a convert to a different religion. For the same reason the Supreme Court [Jasani v Moreswar 1954 All India Reporter. Supreme Court 236] held that when a Mahar (scheduled caste) joined the Mahanubhava Pant, the conversion to that sect did not alter the caste status of the person. Though the founder of the sect did not believe in caste there had been no rigid adherence to this principle among his followers in later years. The convert married two Mahar girls and always looked upon himself as a Mahar and identified himself with that caste.
The Supreme Court said that three factors are to be considered
- reaction of the old body;
- the intentions of the individual himself and
- the rules of the new order.
If the old order is tolerant of the new fold and sees no reason to outcaste or excommunicate the convert and the individual himself desires to retain the old ties, the conversion is only nominal for all practical purposes.
In Khazan Singh v Union of India [1980 All India Reporter. Delhi High Court 60], it was held that the theory of acceptance by the community is not applicable to the case of conversion by adoption. Where a Jat was adopted by a member of the Scheduled Caste, it was held that the adoptee has to be treated from the date of adoption as if he was born in the adoptive family for all practical purposes. The adoptee acquires on adoption as in the case of birth the caste of the adoptive parents without anything more to be done by him or others. Just as it is not open to a caste to refuse to recognise a new born in the family of one of its members as belonging to the caste, it is not open to the caste to sit in Judgment over the statutory status enjoyed by the adoptee.
A further question arises as to whether a convert from Hinduism will on reconversion to Hinduism regain his original caste. In Arumugam v Rajagopal [1976 All India Reporter. Supreme Court 939] it was held that on reconversion to Hinduism a person becomes a member of the caste to which he originally belonged. In a recent decision of the Supreme Court in Kailash v Maya Devi [1984 All India Reporter. Supreme Court 600] the Supreme Court had to decide the question whether the old caste of a person or his progeny who belonged to the scheduled caste or tribe but embraced Christianity or Islam or any other religion would revive on his or his progeny's reconversion to Hinduism. The Supreme Court held that the main test would be whether the reconvert had a genuine intention to abjure his new religion and to go back to his old fold and adopt the practices and customs of the said fold without any protest from the members of his erstwhile caste. It is not necessary that there should be direct proof of the expression of the views of the community, and it would be sufficient if no exception or protest is lodged by the community members. If a child is born he is incapable of choosing his religion until the age of discretion. After he has grown up and is able to decide his future, he ought not to be bound by what his parents have done. If by his clear and conclusive conduct he reconverts to his old faith his caste automatically revives.
In Anbalagan v Devarajan [1984 All India Reporter. Supreme Court 411. Voller Wortlaut des Urteils siehe: Anhang B], the Supreme Court held that a person regains his caste unless the community does not accept him. The Supreme Court went to the extent of holding that it would be more accurate to say that he never lost his caste when he embraced another religion. This observation runs counter to the views expressed by the courts including the Supreme Court in the cases referred to earlier. The Supreme Court went on to observe that the practice of caste is so deep rooted that"its mark does not seem to disappear on conversion to different religion. If it disappears, it disappears only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion. In Andhra Pradesh and Tamil Nadu there are several thousands of Christian families whose forefathers became Christians and who, though they profess the Christian religion, nonetheless observe the practice of caste. There are Christian Reddies, Christian Kammas, Christian Nadars, Christian Adi-Andhras, Christian Adi Dravidas and so on. The practice of their caste is so rigorous that there are inter-marriages with Hindus of the same caste but not with Christians of another caste. Now if such a Christian becomes a Hindu, surely he will revert to his original caste, if he had lost it at all. In fact this process goes on continuously in India and generation by generation lost sheep appear to return to the caste-fold and are once again assimilated in that fold. This appears to be particularly so in the case of members of the scheduled castes, who embrace other religions in their quest for liberation, but their disabilities have clung to them with great tenacity. We do not think that any different principle will apply to the case of conversion to Hinduism of a person whose forefathers had abandoned Hinduism and embraced another religion from the principle applicable to the case of reconversion to Hinduism of a person who himself had abandoned Hinduism and embraced another religion".
Apart from conversion, the courts had occasion to consider the effect of marriage on a person's religion and caste. Here again the Supreme Court adopted the test of acceptance by the community. In Horo v Jahnara [1972 All India Reporter. Supreme Court 1840] a non-Munda woman married a Munda (a tribal). As she was accepted by the elders of the tribe, she was held to be a member of the tribe. However in Urmila Ginda v Union of India [1975 All India Reporter. Delhi High Court 115], it was held that a high caste woman marrying a scheduled caste man cannot apply for posts reserved for scheduled caste though she did not marry merely with this motive, as the court was of the view that to allow her to do so would defeat the very purpose of the Constitution. It is submitted that this decision is not correct. If a person marries a scheduled caste and is accepted by the community as a member of the caste, there is no reason why he or she should not be regarded as a member of the scheduled caste for all purposes.
In Neelima (D) v Dean, P.G. Studies Agricultural University [1993 All India Reporter. Andhra Pradesh High Court 229] the Andhra Pradesh High Court had to consider whether a Brahmin girl who married a boy belonging to the schedule tribe and a Vaysya girl who married a boy belonging to backward classes could be considered as belonging to the schedule tribe and to the backward class respectively. Relying on a number of decisions the court held that the woman became a member of the family of the husband on marriage. The court further went on to hold that the woman acquired the caste of the husband. The court distinguished the cases which held that it was necessary that the community should accept the persons concerned as a member of the caste and it is not open to a person to acquire a caste by unilateral action as they dealt with cases of reconversion of Hinduism, or a change over simpliciter whereas the cases under consideration were cases of marriage, and the question whether there was acceptance for the acquisition of caste or tribe by the caste or tribe concerned is irrelevant. It is submitted that while the conclusion that a woman becomes the member of the family of the husband is correct in view of the long catena of decisions relied on, it does not follow that she acquires the caste of the husband. It is well settled that a person may change his or her caste by volition provided that caste accepts him or her into its fold. There is no reason why this principle should be restricted to cases of reconversion or to change of caste simpliciter and should not be applied to a case of marriage. No authority was relied on to reach the conclusion that the wife acquired the caste of the husband automatically. From the circumstance that she is treated as the sapinda of the husband it does not follow that she acquires the caste of the husband as sapinda relationship has nothing to do with caste but based on the circumstance that the husband and wife "together beget one body". Reference was made to Khazan Singh's case, where it was held that an adopted son acquired the caste of his father and no sanction of the community is required to treat him as a member thereof. The case of a marriage is not equivalent to that of adoption, as the adopted son is deemed for all purposes to be the son born of the adoptive parents and so he acquires the caste by reason of his birth. Where a person of one religion marries a person of another religion he or she does not cease to belong to his or her religion. There is no reason why a different principle should be applied to castes or tribes in the case of marriage.
In any case there is no justification for the decision in regard to a brahmin woman marrying a person belonging to schedule tribe. Sri J.V. Suryanarayana amicus curiae pointed out that under Hindu Law there are only castes and tribes and no schedule castes or schedule tribes which are the results of the Constitution, schedule castes order and schedule tribes order under Article 341(1) and submitted that if a person is permitted to enter into the caste or tribe covered by those orders by virtue of marriage, it amounts to an alteration of the presidential orders which is not permissible. This argument was not met in the judgment.
In Rakheya Bibi v Anil Kumar Mukherji [1948 All India Reporter.Calcutta High Court 119] it was held that it is open to the court to go into the question whether the conversion was a bonafide one or a mere devise adopted for ulterior purposes. Dessenting from the decision in Ayesha Bibi v Subodh Chandra Chakrabarthy [1945 All India Reporter. Calcutta High Court 405] the court observed"It may be that a court cannot test or gauge the sincerity of religious belief; or where there is no question of the genuineness of a person's belief in a certain religion, the court cannot measure its depth or determine whether it is an intelligent conviction or ignorant and superficial fancy. But a court can and does find the true intention of men lying behind their acts and can certainly find from the circumstances of a case whether a pretended conversion was really a means to some further end. We can see no reason to hold that it is in the nature of things impossible for a court of law to determine whether the conversion was bona fide".
They referred to the decision of the Privy Council in Skinner v Skinner  where the Judicial Committee observed that the change of religion must be made honestly and without any intent to commit any fraud upon the law. It was held by the Calcutta High Court that if conversion is resorted to merely with the object of creating a ground for some claim of right, the court must hold that no lawful foundation of the claim has been proved. To go through a mock conversion and set it up as a basis of the right is to commit fraud upon the law. In this connection it may be noticed that in Perumal Nadar v Ponnuswamy Nadar [Calcutta High Court] it was observed that for conversion there must be a bona fide intention complied with conduct. Similarly, in Kailash v Maya Devi [1984 All India Reporter. Supreme Court 600] it was said that there must be a genuine intention to abjure the religion and completely disassociate himself from it. In Khazan Singh v Union of India [1980 All India Reporter. Delhi High Court 60], where a Jat was given in adoption to the member of a scheduled tribe it was held that he was entitled to apply for the post of a sub-inspector under the quota reserved for scheduled caste. The court held that Khazan Singh acquired the scheduled caste status by adoption and the question of motive for conversion was of no consequence. If the adoption was lawful it was not permissible to refuse to give legal effect because the course was adopted in order to obtain a post in Government service. It is submitted that as pointed out by the Calcutta High Court in Rakheya Bibi v Anil Kumar Mukherji [1948 All India Reporter.Calcutta High Court 119] where the adoption gives a special legal status, to go through a mock adoption and set it up as a basis for claiming that status is to commit fraud upon the law. In appropriate cases the court has the right to go into the question whether the adoption and the consequent conversion is bona fide or not.
In Ameena Shapir v State of Tamil Nadu, [1984, Madras High Court] a Hindu woman embraced Islam and married a Muslim belonging to the Labbai community which was included in the list of backward classes, she was accepted by the members of that community, it was held that she was entitled to a post reserved for backward classes even though as a Hindu, she belonged to a forward community; the wife must be held to belong not only to the religion her husband belongs but to the community as well. The court differed from the judgment of the Delhi High Court in Khazan Singh v Union of India. The learned judge observed:"I should go to the extent of saying that even if a high caste woman marries a person belonging to scheduled caste just for the sake of obtaining a reserved post what is wrong in it"?
It is submitted that this observation may not be correct if she went through a mock marriage as held in Rakheya Bibi v Anil Kumar Mukherji [1948 All India Reporter.Calcutta High Court 119]. But if the marriage is genuine the mere fact that she got an advantage by such marriage may be immaterial. It is also submitted that the observation that the wife by marriage belongs to the religion or community of the husband is contrary to several decisions. It is settled that a person does not lose her religion by marriage. The actual decision may however be supported on the ground that the wife was accepted by the community to which her husband belonged as a member of that community."
[Mayne's treatise on Hindu law & usage : also containing commentaries on the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956, the Hindu Minority & Guardianship Act, 1956, the Hindu Women's Rights to Property Act, 1937 / John Dawson Mayne [1828-1917]. -- 15th ed. / revised by Ranganath Misra [1926 - ]. -- New Delhi : Bharat Law House, ©2003. -- 139, 1507 S. -- ISBN 8177370677. -- S. 67-74. -- Dort Quellennachweise]
Die indische Verfassung bestimmt in Artikel 44:
44. Uniform civil code for the citizens.- The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India
Vgl. dazu folgenden Zeitungsartikel:
"Unifying personal laws
By V.R. Krishna IyerPersonal laws may be reformed from within, without a quantum leap into a common code.
NATIONAL POLEMICS has suddenly spurted to direct people's attention, with covert communal dimension, on Article 44 of the Constitution, which, in mild diction, persuades the state to consider the evolution of a uniform civil code. This is now a hot issue on which cold neutrality is not virtuous taciturnity.
One of the major problems that has provoked exciting polemics and aggravated majority pressures is the enactment of a uniform civil code for the citizens throughout the territory of India, as desiderated in Article 44. The provision is cautiously worded and calls upon the State to `endeavour' to secure such a code. It is neither time-bound nor carries a compulsive urgency. But the Hindu fundamentalists make it a militant demand as if Hindu law should be made the national family law. There is apprehension in the mind of the Muslim minority that the Quran is in danger, that its sacred family law will be jettisoned. In the Shah Bano case in 1986, the Supreme Court expressed displeasure at the delay in framing a uniform civil code, which was regarded as a secular imperative. Raging controversy demanding the uniform code followed and was resisted in full fury by the Muslim minority, with distinguished exceptions.
It is true that a common family code for all citizens alike may be a solidarity factor strengthening a sense of fraternity. But national unity is not in peril by the absence of such a code. Nor does the enactment of such a code eliminate religious fumes and divisive feelings. In Goa, from the Portuguese days, there has been a common civil code. Nevertheless, communal differences and religious schisms do mar the politics of the State. Even among the Hindus, there were different schools of law until some measure of statutory uniformity, not all progressive, was brought about. Did nationalism diminish because of divergences? Among Christians, there have been different laws in different areas (a la Travancore and Cochin) and disparities among men and women in the matter of inheritance. True, among Muslims, matriarchal system prevailed in Malabar without weakening their national commitment. The status of women under the Shariat vis-à-vis marriage, divorce and inheritance may justify some changes in Islamic jurisprudence. The uniform code as a militant demand with a chauvinist sharpness had died down. The entire issue has been recently revived by a Supreme Court judgment advocating a uniform civil code alongside its expression of regret at the non-implementation of Article 44 of the Constitution. The Chief Justice of India, V.N. Khare, claimed that such a code would help the cause of national integration and removing the contradiction based on (religious) ideology. The Sangh Parivar pugnaciously advocated this proposition. To coerce the Muslim minority to give up its family law may do more harm than good to national unity in the current crisis of corrosive communalism. In the Pannalal Bansilal case (1996-2SCC 498), the Supreme Court made certain observations pregnant with progressive pragmatism:
"In a pluralist society like India, in which people have faith in their respective religious beliefs or tenets propounded by different religions or their offshoots, the founding fathers, while making the Constitution, were confronted with problems to unify and integrate people of India professing different religious faiths, born in different castes, creeds or sub-sections in the society, speaking different languages and dialects in different regions and provided a secular Constitution to integrate all sections of the society as a united Bharat. The directive principles of the Constitution themselves visualise diversity and attempt to foster uniformity among people of different faiths. A uniform law, though it is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by the rule of law, gradual progressive change and order should be brought about. Making [a] law or [an] amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief of defect, which is most acute, can be remedied by process of law at stages."
In many countries, including the United States, people are governed by different laws in different States, based on region or religion. In Las Vegas, a divorce can be purchased at a price almost instantly in chapels. Is that progressive? There are countries where living together without marriage is legally recognised, with rights ensuing to partners. Does that comport with Indian morality? The belief that uniformity of family laws, even if primitive or promiscuous, is necessarily productive of national integrity is a lie. A great code guaranteeing equal human rights is desirable. Nationalism is a paramount value and that is higher than personal laws with plural variations. However, when we regard the rights of the child and empowerment of women, when we consider the importance of secular justice in family relations, there is a good case for changes in the personal laws. And this applies to the Hindu Code, the Christian law and the Muslim Shariat. The first step that has to be taken is to introduce progressive changes in the Muslim law, the Christian law, the Parsi law and the Hindu law, keeping their identity intact. This is perfectly possible. Islamic scholars, based on the texts of the Quran and the sayings of the Prophet, have argued for several progressive changes in Muslim personal law. Tahir Mohamed, in one of his books, had dealt with permissible progressive reforms in Muslim law consistent with the values of that religion, although in a later edition of his work he deleted the chapter. My powerful plea is that the personal laws may be reformed from within, without a quantum leap into a common code. Remarkable changes in Islamic laws are possible without violating the Quran but adopting progressive hermeneutics. Indeed, the Christian law also needs change if gender justice is to be a reality. Likewise, there are provisions in the Hindu law, which require reform. When monogamy was statutorily enacted for the Hindus, some fundamentalists challenged it on the ground of religion although they were rebuffed by the court. The best course will be to set up Commissions for drafting progressive changes in the family laws without doing violence to the fundamentals of faith. I wholly agree with Rafiq Zacharia in his valuable observations made in the third Hakeem Abdul Hameed Memorial Lecture: "The Allama has categorically declared: `The claim of the present generation of Muslim liberals to re-interpret the foundational legal principles, in the light of their own experience and the altered conditions of modern life is, in my opinion, perfectly justified. The teaching of the Quran that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems.' Some of the urgent issues to be so tackled are: Whether we should not agree to monogamy, which was recommended by Justice Amir Ali and Justice Mehmood; even the Muslim brotherhood of Egypt has said that it is a preferred Quranic alternative; whether the laws, relating to marriage, divorce and maintenance, should not be reformed. Most Muslim countries have taken several substantial steps in this direction; should we not persuade our co-religionists to take to family planning more earnestly because without it, India cannot succeed in removing poverty, disease and unemployment; then there is the question of Babri Masjid — should we allow it to linger on with the enormous damage it has already done to Hindu-Muslim relations; also the question of singing Vande Mataram. It is wrongly propagated that it calls upon the people to prostrate before the mother, the Sanskrit word means bow. In any case standing and showing respect to a national song, so declared by the Constitution, does not compromise our religion; those who have reservation may not sing it."
First things first. While a uniform civil code is not particularly high on the national agenda, value-based progressive changes, preserving the separate identity of each religious group, is a feasible project avoiding insult and injury to any minority. This may be a preliminary step to pave the way for a common code. Mobilisation of Muslim, Christian and Parsi opinion in this direction is sure to yield salutary results and reduce fundamentalist resistance. Maybe, to facilitate a national debate, a facultative common code may be drawn up at a non-governmental level. It will be purely optional for minorities to accept or reject those provisions.
Our founding fathers have been cautious in their phraseology while drafting Article 44 and therefore in a situation where the nation is in the grip of communal tension hurry must make way to moderation."
[Quelle: The Hindu. -- 2003-09-06. -- Online: http://www.hindu.com/2003/09/06/stories/2003090600831000.htm. -- Zugriff am 2004-01-11]
Zu Kapitel 9, Teil 2: Mitakshsara zuYajnavalkya II, 114 - 134