Wednesday 7 July 2021

Sir Sankaran Nair & Budasna v Fatima (1914)

In 'The Case That Shook the Empire: One Man's Fight for the Truth about the Jallianwala Bagh Massacre' by Raghu Palat & ‎Pushpa Palat · 2019'  the claim is made that Sir Sankaran Nair was the deciding judge in Budasna v Fatima (1914) 



 I notice that newspapers, like the Indian Express as well as IAS prep sites are repeating this nonsense.

The facts are quite different. A British judge- J. Spenser- seconded by an Indian Judge, Sadasiva Aiyar- decided that a Hindu woman who marries a Muslim while her Hindu husband is alive is not legally married to the Muslim whether or not she has converted. Her children by the Muslim are illegitimate and can't inherit from him.  On this both Hindu and Muslim as well as British law were agreed. If you are married to one guy, you can't be married to another guy. You may live with him and have his children but, in the eyes of the law, you are not married to him and your children by him are illegitimate.    

Mention of caste is made in the judgment but only to show that caste is irrelevant. The judge says 'assuming that there is a custom among Pallis or Vanniyans of allowing a woman to marry again during the life time of her first husband, such a custom is contrary to public policy and to morality and appears to be condemned by the community (seep. 103, Gazetteer of the South Arcot District), and, therefore, the courts will refuse to recognise it; and thirdly that a mere recognition of paternity is not equivalent to a recognition of legitimacy'

This case has nothing to do with 'converts to Hinduism' or their caste status. It was not decided by Sir Sankaran Nair. 

There have been cases about the caste status of 're-converts' to Hinduism- but this has to do with whether they can gain the benefits of affirmative action. Since the whole purpose of giving reservations only to Hindus was to stem or reverse the tide of conversion, the Courts look for ways to permit a Dalit born to Christian converts to gain affirmative action by converting.                                                                          

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