The Hindu Code Bills

Class I heirs. The widow, the son, the daughter and the mother, and the specified descendants of a predeceased child, all take simultaneously and to the exclusion of others.

And what it did not do until 2005. The Mitakshara coparcenary survived, and a daughter was not a coparcener. That was corrected by the amendment of 2005, dealt with in [Women's Property Rights].

The Hindu Adoptions and Maintenance Act 1956

A woman may adopt, and may give in adoption. Before the Act, a Hindu woman could not adopt in her own right.

A daughter may be adopted. The Act permits the adoption of a daughter, which the earlier law generally did not, since adoption existed for religious purposes tied to a son.

Maintenance is placed on a statutory footing, including the maintenance of a wife, of children, of aged parents and, under section 19, of a widowed daughter-in-law.

The Hindu Minority and Guardianship Act 1956

Section 6. The natural guardian of a Hindu minor boy or unmarried girl is the father, and after him the mother, with the proviso that custody of a minor under five shall ordinarily be with the mother.

The word "after" was the problem, and its reading is the subject of the case worked in [Empowerment of Women].

The opposition, and why it matters to this paper

The objection was constitutional as well as religious. It was said that a legislature elected on a limited franchise, and containing members of every religion, had no business rewriting the law of one community; that the reforms were foreign to Hindu tradition; and that the code should await a wider social consensus.

The Bill was dropped in 1951 and Ambedkar resigned. The single comprehensive Bill was abandoned; the four Acts followed after the first general election, when a differently composed Parliament passed them separately.

Three lessons this paper draws from that history.

One: the reform was carried by the affected community's own representatives. The legislature that enacted the Hindu Acts was overwhelmingly composed of members of the community whose law was being changed. No minority community is or can be in that position, which is the central practical objection to a uniform civil code imposed by the same legislature.

Two: splitting the reform made it possible. A single code was defeated; four Acts on marriage, succession, adoption and guardianship passed. That is a lesson about legislative technique which the uniform civil code debate has never absorbed.

Three: the change was real but partial. Monogamy became law and bigamous marriages continued to be contracted; the daughter became an heir and continued not to claim; the coparcenary survived for another half century. That is the argument of [What Law Cannot Do: The Limits of Legislating Change] in its clearest instance.

A worked example

Compare the position of a Hindu widow in 1950 and in 1957.

In 1950. Her husband could have taken a second wife lawfully. If he died, she took a limited estate in the property she inherited, which reverted on her death to his heirs rather than passing to hers. She could not adopt in her own right. She had no ground on which to seek a divorce.

In 1957. A second marriage by her husband would have been void and an offence. Any property she possessed she held as full owner under section 14. She could adopt a son or a daughter under the Adoptions Act. She could seek divorce on the statutory grounds in section 13, or judicial separation under section 10, and maintenance under sections 24 and 25.

And the fourth question, which the example exists for. How many widows in 1957 knew any of this, and how many had a court within reach? The statutes changed the rules completely and changed the practice slowly, which is the shape of every reform in this book.

What this does NOT mean

It does not mean Hindu law was made uniform. Custom is expressly preserved by sections 3(a), 5(iv), 5(v), 7 and 29(2) of the Marriage Act, so a great deal of variation survives inside the codified law.

It does not mean the reforms were complete. The coparcenary survived until 2005, and the guardianship provision was corrected by construction rather than by amendment.

And it does not mean the Acts apply only to Hindus in the religious sense. Section 2 of each applies them to Hindus, Buddhists, Jains and Sikhs, and to any person domiciled in India who is not a Muslim, Christian, Parsi or Jew, which is a definition by exclusion.

Quick revision

Four Acts: Hindu Marriage Act 1955, Hindu Succession Act 1956, Hindu Adoptions and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956. Preceded by the Rau Committee; introduced as one Bill by Ambedkar; dropped 1951, Ambedkar resigned; enacted in four pieces after the 1951-52 election. Marriage Act: section 5 conditions including monogamy and age, section 7 ceremonies, section 11 void marriages, section 13 divorce, section 13B mutual consent from 1976, sections 24 and 25 maintenance. Succession Act: section 14 full ownership for a female Hindu, Class I heirs, coparcenary untouched until 2005. Adoptions Act: a woman may adopt, a daughter may be adopted, statutory maintenance including section 19. Guardianship Act: section 6, father and "after him" the mother.

Test yourself

1. Name the four Acts and the year of each. The Hindu Marriage Act 1955; the Hindu Succession Act 1956; the Hindu Adoptions and Maintenance Act 1956; and the Hindu Minority and Guardianship Act 1956.

2. What did section 14 of the Hindu Succession Act do? It provided that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner and not as a limited owner, abolishing the Hindu woman's limited estate which had reverted on her death to the last full owner's heirs.

3. Give three changes the Hindu Marriage Act made to the position before 1955. It made monogamy a condition of a valid marriage and a bigamous marriage void and an offence; it introduced judicially granted divorce on statutory grounds, which most Hindus had not had; and it fixed statutory conditions of a valid marriage including minimum ages.

4. What happened to the original single Bill, and why does it matter? It was opposed on the ground that a secular legislature should not rewrite a religious community's law, was dropped in 1951 and Ambedkar resigned; the reforms were then enacted as four separate Acts after the first general election. It matters because it shows that splitting a contested reform made it passable, a lesson the uniform civil code debate has not absorbed.

5. Why is this the paper's best example of law as an instrument of change, and also of its limits? Because a legislature altered the family law of the largest community in India against organised opposition and made it stick, which is the instrument working; and because bigamous marriages continued, daughters did not claim, and the coparcenary survived to 2005, which is the limit.