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Caste Disability Removal Act, 1850

From the beginning of civilization, religion has been considered as one of the important components of social structure. It has been treated as norm provider to regulate the society and life. When the legal machineries to regulate society were not been developed strongly, by religious norms the life and social intercourse was governed. The concept of paap, punya, salvation, jannat become gradually diluted and wants to secure maximum materialist pleasure without having lesser fear of religion and God.

This nature of human behavior is gradually precipitated in social intercourse. Now, man uses religion as a tool to secure materialist pleasure. If a religion restricts human behavior strictly and does not allow him to avail maximum pleasure, he relinquishes it and adopts another religion which may have such facility. The conversion has an impact on society as whole. The set legal norms are also been shaken by the process of conversion because legal norms were being set when the cases of conversion had a limited effect on society.

Legal Implications Of Conversion In British India

Conversion has been considered as undesirable by Indian society from ancient period till date. If a person converts himself to another religion, the society has no sympathy towards him and barrier has always been created by the society so that it cannot be adopted by majority of persons. The issue relating to conversion becomes complicated because majority of the personal laws do not provide any space for the converts and their descendants.

Under the religious laws of all communities, conversion by a person to a different religion would result in loss of family and succession rights. In the early years of the 19th century, the British rulers decided to deactivate such provisions of personal laws, for which they had the support of the Brahmo Samaj. In 1832, a Bengal Presidency Regulation proclaimed that:
“the laws of Hindu and Muslim religion shall not be permitted to operate to deprive such party or parties of any property to which, but for the operation of such laws, they would have been entitled.”1

After the establishment of Central Legislature in 1833, the government decided to extend the proclamation referred to above, in general terms, to the whole of British India. As among various castes and sub-castes of the Hindu community, excommunication – expulsion of a person from his or her caste by birth under orders of caste organizations – also resulted in the loss of family and succession rights, the Brahmo Samaj leaders prompted the government to also address this social evil under the newly proposed Central law. Eventually, a law for both these purposes was enacted in 1850. It had, like several other laws of the time, no short title. The Indian Short Titles Act of 1897 later titled it as the Caste Disabilities Removal Act.2

Provisions Of Caste Disabilities Removal Act, 1850

The Preamble of the Caste Disabilities Removal Act, 1850 reads,:
“Whereas it is enacted by section 9, Regulation VII, 1832, of the Bengal Code, 3 that whenever in any civil suit the parties to such suit may be of different persuasions, when one party shall be of the Hindu and the other of the Muhammadan persuasion, or where one or more of the parties to the suit shall not be either of the Muhammadan or Hindu persuasions the laws of those religions shall not be permitted to operate to deprive such party or parties of any property to which, but for the operation of such laws, they would have been entitled.”3

The preamble to this Act says that it was being enacted to extend the principle of Section 9 of Regulation VII of 1832 to the rest of the Company's Indian possessions. The purpose of this law was to preserve the inheritance rights of the converts in their ancestral property. The new Act allowed Indians who converted from one religion to another religion, equal rights under new law, especially on the case of inheritance.

Section 1 of the Act says:
“Law or usage which inflicts forfeiture of, or affects, rights on change of religion or loss of caste to cease to be enforced -- So much of any law or usage now in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in any Court.”

4  Caste Disabilities Removal Act, 1850 (Act XXI of 1850) No change of or exclusion from any religion, and no deprivation of caste, can in any way effect or impair any right of inheritance. The provision had the effect of superseding the contrary provisions of all religious, personal and customary laws under which persons who converted to a religion other than their religion by birth were to be deprived of their family and succession rights. It also superseded the rules of the traditional Hindu law under which the customary excommunication from a caste or sub-caste would have a similar effect.5

Relevant Cases:
  1. Gulab v. Mst. Ishar Kaur In this case, the High Court of the N.W.P. has held in a judgment published as I.L.R. XI All. 100, that Act XXI of 1850 does not apply only to a person who has himself or herself renounced his or her religion or been excluded from caste.
     
  2. Mahna v. Chand In this case, it has been held that the latter part of Section 1 protects any person from having any right of inheritance affected by reason of any person having renounced his religion or having been excluded from caste. This applies to a case where a person born a Mohammedan, his father having renounced the Hindu religion, claims by right of inheritance under the Hindu Law a share in his- father's family. The Act XXI of 1850 was not intended to be restricted only to the convert himself and that there is nothing in the language of Section 1 to debar the extension of its beneficial provisions to the heir of the convert, no less to the convert himself.
     
  3. Budhu Ram v. Mohammad Din A case relating to Aroras of Dera Ghazi Khan District, it was held that the fact that some of the sons had adopted Islam did not affect their right of succession. In a case decided in 1888, the Allahabad High Court decided that the Act also covered the descendants of persons changing their religion. The Madras High Court gave a contrary decision in 1917, holding that only actual converts were protected by the Act. In an appeal against a decision of the Chief Court of Oudh, which had followed the Madras viewpoint, the 5
Privy Council upheld the Chief Court's decision. Since then, the law was that the Act of 1850 under reference was applicable only to persons changing religion and not to their children or future generations.6

The object of Act XXI of 1850 is not to confer On any party the benefit of the provisions of Hindu or Mohammedan Law, but to repeal and abrogate so much of the provisions of these laws as by reason of change of religion deprives any party from continuing to hold property held before conversion or from succeeding to property as an heir after conversion.

Other Principles Laid Down By The Courts
  • Where a Hindu by birth became a convert to Christianity and it was found that the family had severed all connection with Hindu society and in matters relating to social intercourse, marriage and the similar usages abandoned all caste distinction and had thoroughly identified themselves with the members of the religion of their adoption, held, that no custom or usage in conformity with Hindu Law was applicable and that the Indian Succession Act afforded the rule of succession applicable to the case.
     
  • The caste Disabilities Removal Act of 1850 secures to individuals the same right in property after apostasy as they enjoyed before apostasy. Therefore, the right of a minor son to sue for a declaration that a certain mortgage deed executed by his father should not affect his rights as member of the joint Hindu family after the death of his father is not taken away by the fact of the son having embraced Islam.
     
  • The conversion of a Khatri to Islam separates him from the joint, family, but he is nevertheless entitled to his share in the co-parcenary ancestral property, if claimed in time.
     
  • The Act XXI of 1850 has the effect of abrogating the rule of Mohammedan Law by which a non-Muslim is debarred from inheriting the property of a Muslim.
     
  • The conversion of a Hindu co-parcener to an alien faith such as Mohammedanism has the effect of separating the convert ipso facto from the coparcenary.
     
  • Conversion of a Christian to Islam does not deprive his Christian heirs of a right of succession. • Conversion to Islam does not deprive a man of the right to collateral succession.

Conclusion
The CDRA, 1850 provided that the convert to any religion would inherit as though he had not converted, while the heirs to his property would be determined by the succession laws of his new religion. It is not difficult to work out the consequences on inheritance of such a law. The CDRA, 1850 has nothing whatever to do with the caste. It is indeed an early example of double-speak. This act was clearly meant to facilitate conversion by protecting one's temporal rights in this world while insuring one's place in the next.7 However, this Act has now been repealed in 2018.

References
  1. https://revenue.punjab.gov.in/?q=right-village-proprietary-body-contest-alienation-oneproprietors
  2. https://lawyerslaw.org/the-caste-disabilities-removal-act-1850/
  3. https://indiankanoon.org/doc/1508011/ 7 Vasudha Dhagamwar, Freedom of Religion, Vol. 38, No. 20, https://www.jstor.org/stable/4413578
End-Notes:
  1. Tahir Mahmood, Repeal of Archaic Law doesn't affect Reforms, The Tribune https://www.tribuneindia.com/news/comment/repeal-of-archaic-laws-doesnt-affect-reform-148141
  2. Ibid
  3. Ibid
  4. Ibid
  5. Supra, Note 1
  6. Supra, Note 1
   

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