The erstwhile French Settlements of Pondicherry, Karaikal, Mahe and Yanam have been annexed to the Indian Territory by the De Jure transfer on 16th August, 1962, consequent to the Defacto Agreement between the Government of India and the Government of France dated 21-10-1954. While effecting the De Jure transfer of the erstwhile French Settlements with the Indian Territory, both the French and Indian Governments entered into a Treaty of Cession in and by which they agreed to preserve the uniqueness of the erstwhile French Establishments wherever possible and the Indian Administration also guaranteed under the Articles of the Treaty of Cession, Agreed Process Verbal and the Defacto Agreement dated 21st October, 1964 to preserve such uniqueness. After the merger of the then French settlements of Pondicherry, Karaikal, Mahe and Yanam with the Indian Union, such merged territories became the Union Territory of Pondicherry (now Puducherry) and suitable amendments were made in the Indian Constitution to add the Union Territory of Pondicherry (now Puducherry) in Part VIII and Schedule I of the Constitution of India.
A brief note on the Hindu Law that prevailed in the then French establishments of Pondicherry, Karaikal, Mahe and Yanam:
A study of J.Sanner’s Civil Law applicable to Hindus (Le Droit Civil Applicable auz Hindus) will enlighten to understand as to how the people of the then French establishments of Pondicherry, Karaikal, Mahe and Yanam were governed. J.Sanner in his book referred to above, at page 7 has observed:
“In the French Coloniel Empire, France, with a wise and tolerant mind, had, sometimes, made applicable laws for the French Natives….”
After discussing about the application of Laws, J.Sanner in the same book at Page 11 has observed:
“….But whether it is a question of the special mixed status of the Natives or of the system applicable for French citizens, in the colony, the enjoyment of Civil rights granted by the legislator only to Indians who justify their capacity of Frenchmen….”
Thus, from the above remarks of the eminent author, it becomes clear that the Native of the French Colony in this territory were given a special status. The French did not introduce any sudden change in the legal fabric of the territories in which they settled. Even prior to the application of the French Civil Code to the then French establishments in India, the Arrêté of the Governor dt. 6-4-1818 made it mandatory for the courts to recognize established customs of the local people. As far as the French settlements of Pondicherry, karaikal, Mahe and Yanam are concerned, by a resolution dated 06-01-1819, amongst other things, the French Code Civil was made applicable to the inhabitants of that settlements, with a saving clause to the effect that the inhabitants of those settlements (Indians), whether Hindus, Muslims or Christians, would continue to be governed by the usages and customs of their respective castes. [Justice Dr.David Annoussamy, The French Legal System, 1995, p.143]. Thus, even while promulgating the law to this territory, the customs and usages of the Hindus that were in vogue at that time were given special importance and were recognized as established laws while dispensing Justice to the Hindus of this territory.
Customs –How recognized
Since the resolution dated 06-01-1819 made it mandatory for the courts to recognize established customs of the local people, by a local ordinance dated 30th October 1827, a committee called “Comite Consultatif de la Jurisprudence Indianne” (Consultative Committee on Indian Jurisprudence) with notable local people have been set up to study the local customs prevailing in this territory. Accordingly, this committee was appointed by the French Government to enlighten the court on the position of the Hindu law in customary matters. Nine elderly Hindus drawn from various castes that were prevailing then, were nominated as the members of the committee. Under Article 4 of the said Arrêté, care was so taken to choose only such of those persons known for their uprightness knowledge in local laws and customs and accordingly two Brahmins, two Vellalas, one Kavarai, one Desaye, one Berger, one Komutti and one Chetty were chosen to form that committee. The various opinions of that committee given in the course of time in response to the queries made to them by the Courts were treated as customs prevailing among the Hindus of the settlements and recognized to have the force of law while solving the lis. Such opinions from the year 1828 to 1895 were collected and complied and had been reproduced by the eminent author and jurist Sorg in his Book “Avis du Comite Consultatif de la Jurisprudence Indianne (Forward to the Opinions of the Consultative Committee of Indian Jurisprudence). The opinions from the year opinions from the year 1828 to 1895 were declared not traceable. [Justice Dr.David Annoussamy, The French Legal System, 1995, p.150]. In this book, Mr. Sorg has discussed the origin and formation of the Consultative Committee and also arrayed the various opinions given by the Committee on specifically referred questions.
Based on this arrangements only, depending on the causes of action, various judgments were passed by the Courts on the rights of the Hindus of this territory based on customs that were prevailing which were recognized under French jurisprudence.
Status of the Local Population
As regards the status of the local population of the French settlements, as available during the pre-merger French regime, It would be appropriate to refer to a passage in the Judgment of the Hon’ble High Court in T.S.Sadagopan and others vs T.N.K.Ramanaujam and others - [(1993) 2 MLJ 481] to understand as to how customary Hindu law that prevailed in the then French establishments of Pondicherry was differentiated with regard to the migrated people settled in French settlements.
“The law which prevailed in Pondicherry was set out clearly in the judgment of the trial court on the first occasion and it was pointed out that a two tier system of civil status was applicable to French nationals even prior to the promulgation of code civil was confirmed by Arrete dated 6.4.1819 namely one, the statute as defined in Code Civil, i.e., the French personal Law which was the ordinary law and two, the local status which could be Hindu and Mahommedan customs as they prevailed in Pondicherry at that time, which was the exceptional law. The trial court also pointed out that the first status was applicable to all French nationals of French origin, their descendants, foreigners who acquired French nationality and French indigenous people who renounced their personal status and prayed for being covered for the future by the French Code Civil and the second status was applicable only to the remaining indigenous people. It was clearly stated that the exceptional law which was neither the French Law nor the Hindu Law Applied in the other parts of the country, but a local custom should be restricted to those who were recognised as following that custom from generation to generation and not extended to others as a law of general appliance. It was further stated that the assurance given by the French Government the time of the French settlement and reiterated in Article 3 of Arrete dated 6.4.1819 could apply only to the indigenous stock of population, which was brought under French power by force or treaty with local Indian princes and not to British people who acquired French nationality individually and out of their will. The Division Bench accepted the statement of law found in the judgment of the trial court that there was a two tier system of civil status applicable to French nationals even prior to the promulgation of Code Civil. …………..Once the two tier system in civil status is recognised, it cannot be held that all Hindu nationals would be governed by the customary Hindu law of Pondicherry. As rightly held by the trial court, the customary law is applicable only to those Hindus who were adopting the customary law prevailing in Pondicherry and it would not apply to Hindus who did not choose to change their personal law which was applicable to them in the place of their origin”.
With the above history and background of the legal system that was prevailing in the then French establishments of Pondicherry, Karaikal, Mahe and Yanam, the effect of its De’jure merger with the Indian Union and the applications of laws shall have to be considered.
Who are Renoncants?
After the merger of the then French settlements with the Indian Union, several laws prevailing in the Indian Union were extended to the merged territories of Pondicherry, to have both administrative and legal control. However, care was taken to save and protect the accrued interest in the then existed legal system and special protection was given to those category of people called Renoncants, who renounced their personal laws and opted to be governed by the French laws. In view of the special protection given to the category of people called Renoncants, it is necessary to understand as to who are renoncants. For this purpose, a study of the evolution of French law in the French settlements of India is also becomes necessary.
When the French settled in some territories of India, they did not introduce any sudden change in the legal fabric of the territories in which they settled. As far as the French settlements of Pondicherry, Karaikal, Mahe and Yanam are concerned, by a resolution dated 06-01-1819, amongst other things, the French Code Civil was made applicable to the inhabitants of that settlements, with a saving clause to the effect that the inhabitants of those settlements (Indians), whether Hindus, Muslims or Christians, would continue to be governed by the usages and customs of their respective castes. Subsequently, by a resolution dated 24-04-1880, for the provisions regarding registration of birth and death and the those relating to the performance of marriages in the Code Civil applicable to the inhabitants of the French settlements in India, a saving clause was added making it optional to the indigenous stock of the French settlements in India to marry as per their own customs. However, this saving clause did not apply to the Christians in respect of marriage and divorce and they were governed only by the provisions of the Code Civil as applicable in the then French settlements in India, with the modifications made thereon. To give a further option to the indigenous stock of the French settlements in India to switch over to the French way of life, by a resolution dated 21-09-1881, a further option was given to them to renounce easily their personal law (customs) and espouse the French law as applicable by then to the French nationals. Of course, for such renunciation of personal status, certain modalities were prescribed. Incentives like more political rights and employment opportunities in the government were also offered to induce people to renounce their personal customs and opt to subject themselves to French Law. Mostly, such opportunity was availed by a large section of Christian community and people in the lower hierarchy in the Hindu caste system. Such of those people who thus renounced their personal status and customs and opted to be governed by the French law that was in vogue, were called Renoncants. The descendants of the Renoncants continued to be governed by the French Code Civil even after the Treaty of Cession. The Renoncants could be Hindus, Christians or Muslims. Though the local population was not prepared to renounce entirely its personal status based on their customs, they ventured to claim before the Courts the benefits of limited provisions of French laws. The Cour de Cessation by a judgment dated 16-06-1852, declared valid and legal the adoption by the local population of the provisions of Code Civil in a particular sphere. [ Justice Dr. Annoussamy David, The French Legal System and its Indian Connections, 1995, p.146 ]. By a judgment dated 12-11-1870, the then Cour d’ Appel at Pondicherry held valid the recourse by Muslims to the system of guardianship as organized by Code Civil with a family council presided over by the Justice of Peace and with a surrogate guardian to watch the action of the guardian. A Hindu widow domiciled in the French establishments in India was allowed to adopt a son to herself and such adoption was held to be valid by the Priviy Council in C.S.Nataraja Pillai Vs C.S.Subbaraya Chettiar. [AIR 1949 PC 34] Similarly, where there is specific custom available, French Courts applied French Code Civil to the indigenous population.
Post merger developments:
Even after the treaty of Cession and merger of the French settlements of Pondicherry, Karaikal, Mahe and Yanam with the Indian Union, while introducing the various Indian laws to these territories, a saving clause has been added not to affect the rights of Renoncants. That is to say, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act, 1956, the Hindu Adoption and Maintenance Act,1956, the Hindu Marriages Act,1955, the Hindu Disposition of Property Act, 1916, the Hindu Inheritance (Removal of Disabilities) Act, 1928, etc., in their application to the people of Pondicherry, do not apply to the Renoncants. Similar was the case in respect of Muslim Renoncants and they were exempted from the application of the Muslim Personal Law (Shariat) Application Act, 1937 and the Dissolution of Muslim Marriages Act, 1939, both of which were extended to the Pondicherry under the Pondicherry (Extension of Laws) Act, 1968. Similarly, the provisions of the Parsi Marriage and Divorce Act, 1936, the Converts, Marriage Dissolution Act, 1866, the Indian Christian Marriages Act, 1872, the Indian Majority Act, 1875, the Child Marriage Restraint Act, 1929 and the Guardian and Wards Act, 1890 as extended to the territory of Pondicherry through the Pondicherry (Extension of Laws) Act, 1968 contained a special provision that those Acts do not apply to the Renoncants. Such saving provision was included based on the Agreed Process-Verbal.
The Agreed Process-Verbal to the treaty concluded on 28-05-1956 and signed on 16-03-1963 provided for judicial protections of the French nationals in Pondicherry territory and that of the Renoncants. In the Agreed Process-Verbal, under Part I, Clause 2, the following declaration as to the situation of Renoncants was made:
“It was agreed that the “Renoncanats” will continue to be governed in respect of personal laws like those relating marriage, divorce, adoption, succession etc., by the relevant articles of the French Civil Code dealing with these matters”
After the dejure transfer of the then French establishment of Pondicherry, Karaikal, Mahe and yanam with the Indian Union with effect from 16-08-1962, the Pondicherry (Administration) Act, 1962 was enacted by the Indian Parliament “to provide for the administration of Pondicherry and for matters connected therewith”. Section 4 of the Pondicherry (Administration) Act, 1962 provided for the continuance of the existing laws in force their adaptation immediately before 16-08-1962 until amended or repealed by a competent legislature or other competent authority. Section 18 of the said Act also made it clear that the provisions of that Act, i.e. the Pondicherry (Administration) Act, 1962 shall have effect notwithstanding anything inconsistent therewith contained in any other law in force in Pondicherry.
Section 6 of the Pondicherry (Laws) Regulation, 1963 and Section 6 of the Pondicherry (Extension of Laws) Act, 1968 are in pari materia and deal with the rules of construction in and by which it was also made clear that any reference to any provision of law not in force, or any functionary not in existence in Pondicherry shall be construed as a reference to the corresponding law in force or to the corresponding functionary in existence in that Union Territory and for the purpose of facilitating the application of any Act, inclusive of any rule, notification, order, regulation or bye-law made or issued thereunder, in relation to Pondicherry any court or other authority may construe it in such manner, not affecting the substance, as may be necessary or proper to adapt it to the matter before the court or other authority.
By the Pondicherry (Laws) Regulation, 1963, which came into force with effect from 01-10-1963, amongst other laws, the Hindu Succession Act, 1956 was extended to the Union Territory of Pondicherry, with a newly added section in Section 2A. By the operation of Section 4 of the said Regulation, all laws including custom that had the effect of law, corresponding to the extended laws were repealed saving only the accrued rights and the pending lis, investigation etc. Section 4 of the said Regulation reads as under:
Section 4. Repeal and Saving: (1) Any law in force Pondicherry or any area thereof corresponding to any Law referred to in Section 3 shall stand repealed as from coming into force of such Act in Pondicherry and all the laws specified in the Second Schedule are hereby repealed..
(2) Nothing in Sub Section (1) shall affect-
(a) The previous operation of any law so repealed or anything duly done or suffered thereunder; or
(b) Any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed; or
(c) Any penalty, forfeiture of punishment incurred in respect of any offence committed against any law so repealed; or
(d) Any investigation or legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
And any such investigation, legal proceeding or remedy may be instituted, continues or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed. ……..
Thus, when the Hindu Succession Act, 1956 was extended to the territory of Pondicherry, all the then existed laws and customs relating to the Hindus of this territory, except Renoncants, were repealed. The application of the then existed French law and the then existed customs recognized to be law by virtue of Arrêté dated 6.1.1819, were saved only to the Renoncants as per Section 2A, inserted to Hindu Succession Act, 1956 in its application to the Territories of Pondicherry, which reads as under:
“Section 2A: Not withstanding anything contained in sub - section (1), nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry.”
Thus, it is clear that except the special category of people residing in the UT of Pondicherry, called Renoncants, all other Hindus of Pondicherry territory are governed only by the provisions of the Hindu Succession Act, 1956, Hindu Marriages Act, 1955, the Hindu Adoption and Maintenance Act,1956 etc.
Thus, even as on date, only to the French Nationals residing in the UT of Pondicherry and to the Renoncants, who can be found in all religions and castes are governed by the French Code Civil and established customs followed in their community, as the case may be, in matters relating to marriage, divorce, adoption, guardianship etc.
Citizenship of people in the Territory of Pondicherry after merger
After the coming into force of the Treaty of Cession with effect from 16-08-1962, France has ceded to India in full sovereignty the Territory of the Establishments of Pondicherry, Karaikal, Mahe and Yanam. Therefore, it became necessary for the Indian Union to specify the persons who shall be citizens of India by reason of their connection with the merged territories of Pondicherry, Karaikal, Mahe and Yanam. Accordingly, in exercise of the powers conferred by Section 7 of the Citizenship Act, 1955 (LVII of 1955), the Central Government of the Indian Union made the Citizenship (Pondicherry) Order, 1962.
As per Paragraph 3(1) of the Citizenship (Pondicherry) Order, 1962, subject to the provisions of sub paragraph (2) of that section, every French national born in Pondicherry and domiciled therein or elsewhere in India on the appointed day (16-08-1962) shall, as from that day, be citizen of India. Sub paragraph (2) referred therein provides that any such person may, by written declaration made within six months of the appointed day (16-08-1962) by himself, or if he be a minor, by his parent or guardian on his behalf choose to retain his French nationality; and if the choice is so made, that person shall be deemed never to have acquired Indian Citizenship under sub paragraph (1) of Paragraph 3. The proviso therein also enabled the minor on his attaining the age of eighteen years, option to retain French nationality or to change to Indian nationality. Similarly, Paragraphs 4, 5A and 6 of the Citizenship (Pondicherry) Order, 1962 provide the modalities of acquiring citizenship. As per Paragraph 5 of the Citizenship (Pondicherry) Order, 1962, every French national not covered under Paragraphs 3 and 4 of that Order, by virtue of the cession of Pondicherry with the Indian Union, lost French nationality on and from the appointed day (16-08-1962) and shall become citizens of India.
Needless to say that all the Indian citizens are governed by the laws of the land, which are in force for the time being.
Repeal of the opinions of the Consultative Committee on Indian jurisprudence:
After the dujre transfer and merger of the then French establishments of Pondicherry, Karaikal, Mahe and Yanam with the Indian Union and amendment of the Indian Constitution to include such merged territories as Union Territory of Pondicherry (now called as UT of Puducherry), the “Comite Consultatif de la Jurisprudence Indianne” (Consultative Committee on Indian Jurisprudence), should be deemed to have been abolished by operation of law. It may be noted here that such opinions of the “Comite Consultatif de la Jurisprudence Indianne” (Consultative Committee on Indian Jurisprudence) are also available only for the period from 1828 to 1895 and even in that period, the opinions expressed during 1862 to 1871 are declared as not traceable. Beyond this period, no authentic record is available to prove the continuation of such committee. [Justice Dr.David Annoussamy, The French Legal System, 1995, p.150]. Therefore, the opinions expressed by the said committee, which were complied to have a guideline to dispose the litigations before the then French Courts by treating such opinions as the Customary Hindu Law, is no longer in vogue, due to change in the legal fabric in the territory after merger.
Thus in effect, as on date, except Renoncants of UT of Pondicherry, all Hindus are only governed by the provisions of the Hindu Succession Act, 1956 with all its amendments. The system known to be “customary Hindu Law or Coramandal Hindu law” as was prevailing during the French regime got repealed by the introduction of various Indian laws to this territory except to the specific extent saved, as discussed supra. The saving effect is applicable only to the Renoncants of this territory and not to all the inhabitants in the application of the respective personal laws to them. However, it would be an interesting research to explore in spite of such totality of change in the legal fabric in Pondicherry, still there remains any area in the field of customs accrued to the Hindus within the ambit of the saving clauses in the various enactments extended to this territory, which can be legally enforced..
8th March 2013 From India, Pondicherry