Hindu laws cover Sikhs, Jains and Buddhists

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Sikh Scholar Birendra Kaur has dragged the judiciary and Government of India into a Constitutional and legal dispute over the scope of the word ‘Hindu’. She objects to the use of the word in the Constitution of India and jurisprudence as covering Hindus, Sikhs, Buddhists and Jains. She feels it is a denial of identity to the last three minor religious groups.

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The religious practices of the Sikhs, Jains and Buddhists may vary from those of the Hindus. But what is the position as far as jurisprudence is concerned? Traditionally, they had no codified jurisprudence except what was derived from Brahmanical sources like Dharmasutras, Smritis and Nibandhs. And they shared customary laws as applicable to their Hindu neighbours. This put them on an entirely different footing than Muslims, Christians, Jews and Parsis who came to India with their own laws. The founders of Sikhism, Jainism and Buddhism were spiritual leaders who guided people on how to live an ethical life and attain salvation. They never tried to amend the laws of marriage, adoption, inheritance and succession and left them to the usages of the period and region.

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Guru Nanak prohibited asceticism and enjoined the householder’s life upon his followers. But he did not devise a different set of laws. He appeared at a time when Punjab had passed under Muslim rule and Sharia was the official law, at least in principle. Public space for Hinduism had actually shrunk.

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It is no coincidence that Guru Nanak did not fashion a ‘Sikh identity’. His whole discourse was anti-identity. It was against breaking up humanity into religions, castes, nationalities etc. The Khalsa was created by the 10th guru Guru Govind Singh. But his innovations also had no bearing on matrimonial, adoption, and succession laws of the Hindus prevalent in those days.

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Sikhism discarded ritualism and priestcraft. No wonder Sikh gurus simplified marriage procedure. The Anand Karaj as Sikh wedding is called, might appear revolutionary. But it did not challenge the law of Hindu marriage. Marriage continued to be a sacrament (not a contract unlike in Islam), polygamy was tolerated and there was no provision for divorce. A Sikh cannot marry a Muslim (Sikh gurus did not know about other non-Hindus like Christians and Jews). An Anand Karaj Act, 1909 was passed during British time. An amendment to the Act was carried out earlier in 2012 to facilitate registration of such marriages (like under Hindu Marriage Act, 1955). But there is still no provision for divorce (a handicap removed for the Hindus through Hindu Marriage Act, 1955).

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Traditionally in Punjab marriages were on caste lines, where Hindu or Sikh identities were redundant. It entailed no religious ‘conversion’ for the married woman. It has been a tradition amongst Punjabi Hindu families to groom their eldest son as Kesardhari Sikh. It never affected the succession/inheritance question in the family. The eldest son could solemnize the last rites of his parents, claim share in the property and succeed the father as the family head. But it was entirely different story if a Hindu had converted to Christianity or Islam. He would be forsaken by the family and wife; and his legal relationship would come to an end.