BIGAMY IN GENERAL
The Chapter on Offences relating to Marriage under the Indian Penal Code of 1860 contains two provisions relating to bigamy – the first of these applicable to married persons marrying again without concealing from the second spouse the fact of the first marriage, and the second to those who do so by keeping the second spouse in the dark about the first marriage.
Section 494 of the Code reads as:
“Whoever having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time, provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.”
Coming to the cases of bigamy where a person indulges in it by deceiving the second spouse, Section 495 of the Indian Penal Code says:
“ Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”.
It will be seen that the application of these provisions of the Indian Penal Code would be attracted only if the second marriage is void, for the reason of being bigamous, under the law otherwise applicable to the parties to a particular case; but not so otherwise.
As such the antibigamy provisions of the Indian Penal Code apply to all those whose marriages are governed by any of the following legislative enactments all of which regard a second bigamous marriage, by a man or woman, as void :
- Special Marriage Act 1954
- Foreign Marriage Act 1969
- Christian Marriage Act 1872
- Parsi Marriage and Divorce Act 1936
- Hindu Marriage Act 1955
As regards the Muslims, the IPC provisions relating to bigamy apply to women – since Muslim law treats a second bigamous marriage by a married woman as void – but not to men as under a general reading of the traditional Muslim law men are supposed to be free to contract plural marriages. The veracity of this belief, of course, needs a careful scrutiny.
The antibigamy provisions of the Indian Penal Code would not apply also to the tribal men and women if their customary law and practice does not treat their plural marriages as void. It has been judicially affirmed that Section 494 of the Indian Penal Code will not apply to the members of the Scheduled Tribes unless the tribal law applicable to a case treats a bigamous marriage as void.
See, for instance, Surajmani Stella Kujur (Dr.) v Durga Charan Hansdah AIR 2001 SC 938.
NATURE OF OFFENCE
The offence under Section 494 of the Indian Penal Code is noncognizable, bailable and compoundable by the aggrieved spouse with the permission of the court. That the offence is compoundable by mutual consent of the parties was affirmed in Narotam Singh v State of Punjab AIR 1978 SC 1542.
In the State of Andhra Pradesh, however, by a local amendment of 1992 the offence under Section 494 was made cognizable, nonbailable and noncompoundable. The offence under Section 495 of the Penal Code is noncognizable, bailable and – unlike that under Section 494 non compoundable. Notably, in Andhra Pradesh, this offence too has been made cognizable and nonbailable.
IPC PROVISIONS IN ACTION
Bigamy by women is very exceptional in the society, but bigamy by men is indeed rampant. However, since the antibigamy provisions of the Indian Penal Code are (except in Andhra Pradesh) noncognizable most cases of the offence of bigamy remain unpunished.
The aggrieved first wives of all communities silently suffer the miseries caused by the practice of bigamy. There is also a trend in the society to use devices, supposed to be ‘legal’, to escape application of the IPC provisions. Among these are holding incomplete and defective marriage ceremonies, nonmarital cohabitation and fake change of religion.
BIGAMY UNDER CIVIL MARRIAGES LAW
Special Marriage Act 1954
Monogamy is the rule under the Special Marriage Act 1954. Among the conditions for solemnization of a civil marriage spelt out in the Act the foremost is that “neither party has a spouse living” – Section 4 (a). In respect of bigamy there are two different penal provisions under the Act. If a person already married, under whatever law, fraudulently contracts a civil marriage the provision of Section 43 of the Act reproduced below will apply:
“Save as otherwise provided in Chapter III, every person who, being at the time married, procures a marriage of himself or herself to be solemnized under this Act shall be deemed to have committed an offence under section 494 or section 495 of the Indian Penal Code, as the case may be, and the marriage so solemnized shall be void.”
The other provision contained in Section 44, reproduced below, is meant for a person married under the Special Marriage Act who contracts a second marriage under any other law:
“Every person whose marriage is solemnized under this Act and who, during the lifetime of his or her wife or husband, contracts any other marriage shall be subject to the penalties provided in Section 494 and Section 495 of the Indian Penal Code, for the offence of marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be void.”
Chapter III of the Act, referred to in Section 43 reproduced above, provides the facility of turning a preexisting marriage solemnized as per religious or customary rites into a civil marriage by registering it under this Act. This facility is also available subject to the condition that “neither party has at the time of registration more than one spouse living” – Section 15 (b).
If a person having more than one spouse living fraudulently registers either of his marriages under this Act he will be guilty of the offence of knowingly making a false statement punishable under Section 45 of the Act. The antibigamy provisions of the Special Marriage Act apply to every marriage contracted under its provisions irrespective of the religion of the parties.
A court has specifically held that if a Muslim contracts a civil marriage under the Special Marriage Act instead of his personal law the antibigamy provisions of the Act will apply to him. See S. Radhika Sameena v. S.H.O., Habeeb Nagar Police Station, Hyderabad 1997 CriLJ 1655 (AP).
However, if a person who has registered his preexisting marriage under the Special Marriage Act in terms of Section 15 contracts a second bigamous marriage, it is not clear from the language of the Act if the provision of Section 44 reproduced above will apply to the case. The words “Save as otherwise provided in Chapter III” in Section 43 are not clear in their meaning. In the fitness of things, since ex post facto registration of a religious or customary marriage turns it into a civil marriage for all purposes, the antibigamy provisions of the Act should also apply to such a case.
Foreign Marriage Act 1969
This Act facilitates solemnization of civil marriages in foreign countries between two Indians or an Indian and a foreigner. Monogamy is the rule under this Act as well, the first condition for the solemnization of marriage under its provisions being that “neither party has a spouse living” – Section 4 (a). If the condition of monogamy and the other conditions mentioned in Section 4 of the Act are met, a preexisting marriage between two Indians or an Indian and a foreigner solemnized in a foreign country under a local law can be registered under the Foreign Marriage Act, upon which it shall be deemed to have been solemnized under the said Act – Section 17.
The antibigamy penal provision of Section 19 of the Foreign Marriage Act, reproduced below, applies to both marriages originally solemnized under its provisions and those solemnized as per a foreign law but later registered under the Foreign Marriage Act:
“(1) Any person whose marriage is solemnized or deemed to have been solemnized under this Act and who, during the subsistence of his marriage, contracts any other marriage in India shall be subject to the penalties provided in sections 494 and 495 of the Indian Penal Code, and the marriage so contracted shall be void.
(2) the provisions of subsection (1) apply also to any such offence committed by any citizen of India without and beyond India.”
The antibigamy provisions of the Foreign Marriage Act, like those of the Special Marriage Act 1954, are applicable to all cases governed by it, irrespective of the religion of the parties.
Effect of change of religion
Postmarriage conversion by either party to a civil marriages has no legal consequences – the convert remains subject to the provisions of the Special Marriage Act 1954 or the Foreign Marriage Act 1969, as the case may, and neither the converting spouse can contract another marriage nor the other spouse can seek divorce on the ground of change of religion. If either party in such a situation marries again after changing religion, but without obtaining divorce or a decree of nullity, his or her conduct will still attract antibigamy provisions of the Indian Penal Code.
BIGAMY UNDER COMMUNITY – SPECIFIC LEGISLATION:
Christian Marriage Act 1872
As is well known, the Christian religion prohibits bigamy. In India Christian marriages are governed by an old Act of the British period – the Christian Marriage Act 1872. It applies to all sorts of marriages among the Christians of India and requires them to be solemnized under its provisions not only when both parties are Christian but also when one of them is a Christian and the other a nonChristian (see Section 4 of the Act).
Marriages can, under this Act, be either solemnized by a ‘Minister of Religion’ of a Church, or by or in the presence of a Marriage Registrar. In the first case, the notice to be given for marriage by either party is to be accompanied by a declaration of the parties’ marital status at the time of marriage, and the prescribed form for this purpose mentions only two possibilities – the person giving a notice may be either a bachelor/spinster or widower/widow.
A certificate of compliance with the notice requirement is to be issued upon the applicant filing a declaration affirming that “he or she believes that there is not any impediment of kindred or affinity or other lawful hindrance, to the said marriage;” and the marriage shall be solemnized only after such a certificate has been issued (Sections 12, 18, 25 & Schedule I).
For obtaining a certificate in the case of a marriage solemnized by or in the presence of a Marriage Registrar, instead of filing a written declaration the person giving the notice has to take an oath to the same effect – that “he or she believes that there is not any impediment of kindred or affinity or other lawful hindrance, to the said marriage” (Sections 41, 42).
The marriage of a native Christian can be certified without the preliminary notice mentioned above subject to the condition, inter alia, that “neither of the persons intending to be married shall have a wife or husband still living”(Section 60). The Act provides that a person making a false oath or declaration or signing a false notice, intentionally and for the purpose of procuring a marriage, shall be guilty of the offence punishable under Section 193 of the Indian Penal Code – Section 66.
There is no specific reference in this Act to the antibigamy provisions contained in Sections 494495 of the Indian Penal Code. Since bigamy is strictly prohibited by the Christian religious law and the Act also impliedly prohibits it, applicability of the said IPC provisions to married Christians may be seen as a foregone conclusion. Yet, there is a case for making the Act specific on this point.
A postmarriage change of religion by either spouse may have no effect on prohibition of bigamy under the Christian law since both the Christian Marriage Act 1872 and its divorce supplement, the Indian Divorce Act 1869, apply also to cases where only one spouse is a Christian.
Parsi Marriage and Divorce Act 1936
Unlike the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act 1936 specifically prohibits bigamy and says that Sections 494, 495 of the Indian Penal Code will be attracted by every case of bigamy in any marriage governed by that Act. Sections 4 and 5 of the Act read as follows:
“(1) No Parsi (weather such Parsi has changed his or her religion or domicile or not) shall contract any marriage under this Act or any other law in the life time of his or her wife or husband, whether a Parsi or not, except after his or her lawful divorce from such wife or husband or after his or her marriage with such wife or husband has lawfully been declared null and void or dissolved; and, if the marriage was contracted with such wife or husband under the Parsi Marriage and Divorce Act, 1865, or under this Act, except after a divorce, declaration or dissolution as aforesaid under either of the said Acts.
(2) Every marriage contracted contrary to the provisions of subsection (1) shall be void.”
“Every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not, contracts a marriage without having been lawfully divorced from such wife or husband, or without his or her marriage with such wife or husband having legally been declared null and void or dissolved, shall be subject to the penalties provided in sections 494 and 495 of the Indian Penal Code (45 of 1860) for the offence of marrying again during the lifetime of a husband or wife”.
The reference to bigamy after change of religion and its prohibition constitute a unique feature of the Parsi Marriage and Divorce Act 1936 which has no parallel under any other familylaw enactment for the time being in force.
Hindu Marriage Act 1955
Since times immemorial it was believed – rightly or wrongly – that Hindu religious law allowed an unrestricted polygamy and imposed no specific conditions on the polygamisthusband. The Muslim rulers of India had left the Hindu law on polygamy – whatever it was – untouched and did not impose on any nonMuslim the rules of Islamic law tolerating limited polygamy in a welldefined discipline of equal justice to cowives.
The British rulers, who did reform many other aspects of Hindu law, also did not abolish the rules on polygamy under the traditional Hindu law and custom. Only the Brahmosamajis had managed to legally adopt monogamy under a special law enacted for them in the erstwhile Bengal province in 1872. After the advent of independence antibigamy laws were enacted for the Hindus by provincial legislatures in Bombay, Madras, Saurashtra and Central Provinces. Finally, in 1955 Parliament enacted the Hindu Marriage Act putting a blanket ban on bigamy for the Hindus. Buddhists, Jains and Sikhs, declaring bigamous marriages on their part in future to be void and penal (see Sections 5, 11 & 17).
One of the conditions for a valid marriage under the Hindu Marriage Act is that “neither party has a spouse living at the time of the marriage” [Section 5 (i)]. Violation of this condition shall make the marriage null and void and liable to be so declared by a decree of nullity on a petition filed by either party against the other party ( Section 11).
Section 17 of the Hindu Marriage Act once again declares every bigamous marriage among persons governed by the Act to be void and makes it punishable under the antibigamy provisions of the Indian Penal Code 1860. It reads as follows:
“Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code shall apply accordingly.”
Though Section 7 (2) says that if a marriage is solemnized through the saptpadi ceremony the marriage will be complete and binding on taking the sevenths step, some High Courts took the view that this is not a special rule of evidence requiring in a case of bigamy proof of the seventh step having been duly taken. – Padullapath Mutyala v Subbalakshmi AIR 1962 AP 311, Trailokya Mohan v State AIR 1968 Ass 22.
In 1988 a learned judge of the Andhra Pradesh High Court, Radha Krishna Rao, J. had issued an important note of caution:
“During the subsistence of the first marriage the second marriage will generally be done in secrecy. It is too idle to expect direct testimony. In some cases the purohit also who performed the marriage will be treated as abettor. The courts are giving acquittals on the ground that the required ceremonies for the second marriage have not been proved beyond reasonable doubt. Suitable legislation has to be made with regard to the mode of proof of the second marriage. If the marriage was done publicly and openly to the knowledge of one and all, the court can expect direct evidence. When second marriage is being performed in secrecy, knowing fully well that it is an offence, if the courts insist on strict proof, it amounts to encouraging perjury. The motto of the court is not to encourage perjury, but to find out the real truth and convict the accused if there is a second marriage. Unfortunately, none of the social organizations which’ claim about the protection of the rights of women, have taken any steps to see that suitable legislation be made with regard to the mode of proof for performance of the second marriage.”– [1988 CriLJ 1848].
However, linking the antibigamy provisions of the Act with the requirement of a ceremonial solemnization of marriages under Section 7 (2) of the Act, the Supreme Court later held that if a customary ceremony is incompletely or defectively performed (to get married again), the resulting second marriage will be nonexistent in eyes of law and hence will not attract the antibigamy provisions of the Act, or of the IPC. See Bhaurao v State of Maharashtra AIR 1965 SC 1564. [See: Report No.227 of the Law Commission of India]
In view of the above and in the absence of any uniform Civil Code, I find merit in the submissions of the learned amicus that the expression “marries in any case in which, such marriage is void by reason of its taking place during the life of such husband or wife” merely means that the person who marries a second time during the life of his or her first spouse would be punished under Section 494 of the IPC, only if such second marriage is not recognized by the Personal Law, by which he or she is governed. The section does not require that the second marriage with the person concerned must, otherwise, be valid according to law (See: AIR 1961 Punjab 167)
In interpreting Section 494 of the IPC, one should look into the purpose of enactment and also to the mischief to be prevented. The object of enacting Section 494 of the Indian Penal Code, to my mind, clearly was to punish persons, who in defiance of the law applicable to them in matters of marriage and divorce, etc., take a second wife during the existence of the first, but for the Personal Law of the Muslim, as discussed above, the applicant would be guilty of the offence of bigamy, if ultimately proved, on the basis of the evidence recorded in the course of the trial.
He is able to get away with which by misinterpreting and misusing to his advantage, the message of the holy prophet Mohmmad, which is reflected in the holy ‘Quran’. The ‘Quran’ does not say that a Muslim can treat his wife cruelly, drive her out and without dissolution the first marriage in accordance with law, he can marry for the second time and upto four times. The message of the holy prophet is loud and clear. Everyone knows about it, but still do not want to follow it.
When the Quran allowed polygamy, it was for a fair reason. When men use that provision today, they do it for a selfish reason. Polygyny finds mention in the Quran only once, and it is about conditional polygyny. There is a historical reason why Quran allows polygamy. There was a time in history when a large number of women were widowed and children were orphaned in primitive tribal tussles in Arab. The Muslims suffered heavy casualties in defending the nascent Islamic community in Medina. It was under such circumstances that the Quran allowed conditional polygyny to protect orphans and their mothers from an exploitative society.
Even in this historical context, the Quran asks men to first consider taking care of the orphans, and only when they think they may not be able to do justice to the orphans’ interests while staying in isolation, should they consider marrying their widowed mothers, on the condition that the new family would be dealt justly on a par with the existing one. The verse goes like this: And if you fear that you cannot act equitably towards orphans, then marry such women as seem good to you, two and three and four (amongst the orphans, obviously); but if you fear that you will not do justice (between them), then (marry) only one or what your right hands possess; this is more proper, that you may not deviate from the right course.
The Article 44 in Part IV (Directive Principles of State Policy) of the Indian Constitution directs the “State to endeavour to secure for the citizens a uniform civil code throughout the territory”. Islamic sanction of a man having up to four wives was justified in the historical times mentioned above. Today there are no tribes killing each other and making women widows and children orphans. On the basis of modern, progressive thinking, India must shun the practice and establish a uniform civil code.
Polygamy and the unilateral talaq without the wife’s consent offends Article 14 (“Equality before law for all”) and Article 15 (the State’s nondiscrimination on grounds of caste, religion, sex, etc.). If the State tolerates this law, it becomes an accomplice in the discrimination of the female, which is illegal under its own laws.
As social conditions in this nation and throughout the world continues to change, the reality of life is, that even without a code on personal law of Muslims in so far as the marriage is concerned, polygamy is going into oblivion. Education, changing patterns of the family structure, the structure of a family in the context of reality of the world, and economic necessities are on their own precipitating a situation where monogamy is becoming the reality though the religion permits a Muslim, with such sanction of conscience to venture into polygamy. But, the code upon which polygamy rests in Islam is strict and difficult to keep.
Moreover, Quran forbids polygamy if the purpose to marry more than once is selfinterestor sexual desire. It is for the maulvis and Muslim men to ensure that they do not abuse the Quran to justify the heinously patriarchal act of polygamy in selfinterest.
The observations of late Justice Chagla in the case of State of Bombay v. Naraya [AIR 1952 Bombay page 84] as under:
“5. Now a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole. A very interesting and instructive case is to be found in the American Reports, viz. Davis v. Beason, (1889) 133 US 637.
In that case it was contended that polygamy was part of the creed of the Mormon Church and any legislation which penalises polygamy to the extent that it affected Mormons was contrary to the First Amendment of the Constitution which provided that Congress shall not make any law respecting the establishment of religion or forbidding the free exercise thereof. This argument was rejected, and Mr. Justice Field delivering the opinion of the Court pointed out that (p. 640) :
“The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter.”
He further pointed out that the First Amendment could not be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. He further pointed out that (p. 640) :
“Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.”
Further on he states (p. 640) : “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”
It is only with very considerable hesitation that I would like to speak about Hindu religion but it is rather difficult to accept the proposition that polygamy is an integral part of Hindu religion.It is perfectly true that Hindu religion recognizes the necessity of a son for religious efficacy and spiritual salvation. That same religion also recognizes the institution of adoption. Therefore, the Hindu religion provides for the continuation of the line of a Hindu male within the framework of monogamy.
“9. There can be no doubt that the Muslims have been excluded from the operation of the Act in question. Even S. 494, Penal Code, which makes bigamy an offence applies to Parsis, Christians and others, but not to Muslims because polygamy is recognised as a valid institution when a Muslim male marries more than one wife. The question that we have to consider is whether there is any reasonable basis for creating the Muslims as a separate class to which the laws prohibiting polygamy should not apply. Now, it is an historic fact that both the Muslims and the Hindus in this country have their own personal laws which are based upon their respective religious texts and which embody their own distinctive evolution and which are coloured by their own distinctive backgrounds. Article 44 itself recognises separate and distinctive personal laws because it lays down as a directive to be achieved that within a measurable time India should enjoy the privilege of a common uniform Civil Code applicable to all its citizens irrespective of race or religion. Therefore, what the Legislature has attempted to do by the Hindu Bigamous Marriages Act is to introduce social reform in respect of a particular community having its own personal law. The institution of marriage is differently looked upon by the Hindus and the Muslims. Whereas to the former it is a sacrament, to the latter it is a matter of contract. That is also the reason why the question of the dissolution of marriage is differently tackled by the two religions. While the Muslim law admits of easy divorce, Hindu marriage is considered indissoluble and it is only recently that the State passed legislation permitting divorce among Hindus. The State was also entitled to consider the educational development of the two communities. One community might be prepared to accept and work social reform; another may not yet be prepared for it; and Art. 14 does not lay down that any legislation that the State may embark upon must necessarily be of an allembracing character. The State may rightly decide to bring about social reform by stages and the stages may be territorial or they may be community wise. From these considerations it follows that if there is a discrimination against the Hindus in the applicability of the Hindus Bigamous Marriages Act, that discrimination is not based only upon ground of religion. Equally so, if the law with regard to bigamous marriages is not uniform, the difference and distinction is not arbitrary or capricious, but is based upon reasonable grounds.”
The above noted decision very well explains why the legislature thought fit for treating the Muslim as a separate class to which the laws prohibiting polygamy should not apply, but has not taken care till this date to prevent the misuse of the theory.
The Indian Constitution does not use the word “Secularism” in any of its provisions; but is material provisions are inspired by the concept of Secularism. When it promised all the citizens of India that the aim of the Constitution is to establish socioeconomic justice, it placed before the country as a whole the ideal of a Welfare State; and the concept of welfare is purely secular and not based on any considerations of religion.
The essential basis of the Indian Constitution is that all citizens are equal, and this logic equality which is guaranteed by Article 14 obviously proclaims that the religion of a citizen is entirely irrelevant in the matter of his fundamental rights. The State does not owe loyalty to any particular religion as such; it is not irreligious or antireligious; it gives equal freedom for all religions and holds that the religion of the citizen has nothing to do in the matter of socioeconomic problems. That is the essential characteristic of Secularism which is writ large in all the provisions of the Indian Constitution.
Though the Constitution guarantees freedom to all religions, it recognises that in certain aspects, and under certain conditions, religious practices may impinge upon socioeconomic problems and the Constitution has made it clear that whatever socioeconomic problems or relations are involved, the State will have a right to interfere in the interests of public good. Let me illustrate my point by taking two provisions of the Constitutions.
Under Article 15, the Constitution has prohibited discrimination on grounds of religion, race, caste, sex or place of birth; but the Constitution was conscious that the problem of sociality and economically backward communities needed special attention. Article 17 categorically abolished untouchability and provided that the enforcement of any disability arising out of untouchability shall be an offence. Now, untouchability, from a conservative, traditional point of view, was a part of the religious practice prevailing amongst the Hindus; but the Constitution realised that the observance of untouchability impinged upon secular, social rights of all citizens and contravened the basic concept of social equality; and so, Article 17 made a specific provision in that behalf.
Similarly, when attempts were made by the Indian Legislatures to provide special safeguards classes, it was discovered that these provisions conflicted with the prohibition prescribed by Article 15(1). The Constitution was then amended and clause (4) was added to Article 15 expressly authorising the States to make suitable provisions for the advancement of the said castes and tribes. Now, this provision again emphasis the fact that though the Constitution gives full liberty to the practice of all religions prevailing in India, it will not allow the socalled observance of religion to affect the social and secular rights of its citizens.
There is yet another instance which is relevant on this point. Articles 25 and 26 of the Constitution provide for the right to freedom of religion. Article 25 gives freedom of conscience and free profession, practice and propagation of religion, whereas Article 26 guarantees freedom to manage religious affairs.
Now, it is wellsettled that the freedom to manage religious affairs does not include absolute freedom to manage properties belonging to religious institutions. Questions in regard to management of properties which have no direct relation with religion or its practice, fall within the regulatory power of the State. It will thus be seen that though the Indian Constitution is secular and does not interfere with religious freedom, it does not allow religion to impinge adversely on the secular rights of citizens or the power of the State to regulate socioeconomic relations.
One characteristic feature of Indian Secularism is its determination to adopt a rational and scientific approach in the discussion and solution of socioeconomic problems. Blind adherence to, or reliance on, any sacred text is completely foreign to Indian Secularism, whether the text is that of Hindus, Muslims, Parsis, Sikhs, Buddhist, Christians makes no difference. The tendency of the human mind to lean on textual authority in support of or against a proposition is so powerful that it needs consistent and deliberate effort on the part of intellectuals to promote independent and basic thinking in dealing with problems unhampered by the weight of authority or the printed word.
Lawyers know that in Courts of Law, precedents in the form of decided cases sometimes have such an overwhelming influence on judicial approach that Judges show a disinclination to analyse and consider the basic points involved in any controversy. The value of precedents cannot be denied; but the precedents sometimes tend to hold the judicial mind in bondage and that shows an approach which is not strictly rational and as such, is inconsistent with the philosophy of Secularism.
When the Hindu Code Bill was being debated in Parliament, the conservative Hindus raised a plausible plea that if a Civil Code was intended to be evolved, it should be made applicable to all the communities in India. The main object in raising this plea was not so much to make the Code applicable to the Muslim community as to retard, and if possible, to defeat the Hindu Code itself. The advocates of the Hindu Code wanted to take the first step in the right direction.
They realised that to bring the Muslim community within the purview of the Civil Code was impractical at that time having regard to the fact that the public opinion in the Muslim community had not been adequately educated in that behalf. The approach adopted by the reformers in confining the Code to the Hindu community as a first step brings out another feature of Secularism, and that is that Secularism in establishing its philosophy in the social life of the country, adopts a pragmatic approach.