Don’t take tolerant Hindus for granted, SC tells Centre

via Abraham Thomas | New Delhi - Daily Pioneer published on February 9, 2011

With only Hindu personal laws being codified to date, the Supreme Court on Tuesday doubted the “secular” commitment of the Centre for failing to codify other personal laws as well.

Drawing a possible link to explain, a Bench of Justices Dalveer Bhandari and AK Ganguly went to the extent of suggesting, “The Hindu community has been tolerant to these statutory interventions from time to time. But it has not happened for others.” The Bench added, “It appears to be lack of secular commitment (on part of the Centre) as it (codification) has not happened for others.”

The observations formed part of a PIL filed by National Commission of Women where the dichotomy between various Central legislations on the marriageable age of women is under review.

The damning indictment of the Centre, which failed to undertake the task of drawing a Uniform Civil Code, came in context of arguments advanced by Central Government counsel Additional Solicitor General (ASG) Indira Jaising, who pointed out various loopholes in the Hindu Marriage Act.

“There is a problem with Hindu law. The legislators have tried to chip away the legislation little by little without any overhaul,” ASG argued.

The Bench had sought her assistance to find a way out of the anomalous situation posed by various statutes relating to marriageable age. For instance, Section 5 of the Hindu Marriage Act recognises the age of marriage for girls as 18. But under the provision of rape (IPC Section 375) at 16 years, a girl can give consent to sexual intercourse.

The age prescribed for a girl to be major under the Indian Majority Act 1875 is 18 years and this is also the settled benchmark for a person to enter into a contract under the Indian Contract Act.

Noting the discord between the various laws, ASG Jaising said, “Hindu law is one of the finest laws. It provides for all oppression as also the escape routes.”

While the issue was pending the Government’s consideration, she indicated that the Law Commission of India had examined this aspect and recommended changes.

This would include making all marriages under 16 years of age void and those between 16 and 18 years as voidable at the instance of either boy or girl. However, the Government is yet to take a view on the said suggestions.

Despite the Prohibition of Child Marriages Act in vogue, discrepancy in various laws had given a handle for abuse of child rights. Further, in cases of mass child marriages, the Bench wondered on whom the responsibility needed to be fastened — the child, the parents or others. The answers to these and many more queries remained unresolved as the court decided to hear the matter again after two weeks.

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