Over the years, there have been several personal laws which are discriminatory towards women, in terms of monogamy, restitution of conjugal rights, marriage, divorce and maintenance, yet they are not held void for violating principles of equality which is a part of basic structure of the Constitution. Article 13 of the Indian Constitution clearly states that any law which is inconsistent or derogatory to fundamental rights is void. This article analyses the reasons for personal laws not being held void though they are derogatory to fundamental rights. Further,the article aims at highlighting the current situation of personal laws through case laws decided by the Indian judiciary.
Key words: Personal laws, fundamental rights, inconsistent, void.
Personal Law in the most generic sense can be defined as ‘the portion of the law which constitutes all matters related to any individual or their families’. In a country like India whose population is a heterogeneous mix of several religions like Hindu, Muslim, Christian, Parsi and so on; there is a need to preserve and protect the interests of each religion. Articles 25(2) and 26(3) of the Indian Constitution guarantee the right to religion. However, disparity between personal laws fundamental rights can result in a conflict of interest between a specific community and society as a whole.
What are personal laws?
Personal laws are characterized as a set of laws that apply to a specific class or group of persons, or to a single individual, based on their religions, faiths, and cultures. Everyone in India belongs to a different caste, follows a different religion, and has different faiths and beliefs. Their beliefs are governed by a set of rules. And these laws are created by taking into account various religious customs. Personal laws govern Indian citizens’ marriages, divorces, child support, inheritance, and succession. Religious customs of various cultures have a big impact on these rules. They are, however, chastised for maintaining gender disparity and racist attitudes.
Examples of personal laws which are discriminatory
- Even though the Hindu Succession Act, 1956 was amended in 2005 to give an equal share to daughters in inheritance, parts of the act still remain discriminatory. If a Hindu woman dies without a will, her property goes to her husband’s heirs if there is no spouse or children. The law assumes that the women become part of the husband’s family after marriage.
- Children born to a Parsi woman and a non-Parsi man are not considered Parsi in the eyes of the law. A non-Parsi wife of a Parsi man can inherit only a part of his property, but his children can inherit it completely as they are considered Parsis.
- Hindu daughters were deprived of joint heirship in parental property as per the codes of Mitakshara, a school of Hindu law governing succession. It was only after Lata Mittal (case filed in 1985) won a 20-year legal battle in the Supreme Court that Hindu daughters were given equal rights in the ancestral property.
- Section 498 of the Indian Penal Code, 1860 prescribes a punishment of up to two years for a man who has sexual intercourse with the wife of another man. There is no punishment for the woman. While the law may seem discriminatory towards men on the surface, it is highly derogatory to women. It assumes that women are not capable of making decisions on their own and the man must have seduced or enticed them.
- Section 6 of the Hindu Minority and Guardianship Act, 1956 considers the father to be the ‘natural guardian’ of a Hindu child. The mother is considered a guardian only in the absence of the father or if the child is under five years of age.
- A Christian woman cannot divorce her husband on the grounds of adultery, but her husband can use adultery as a ground for divorce. Moreover, any divorced woman is not entitled to property in the husband’s name accumulated during the marriage even if she contributed in acquiring it. She can only claim maintenance under Section 125 of the Code of Criminal Procedure.
Fundamental Rights under the Indian Constitution
Fundamental rights are basic human rights given to all persons. These rights are enshrined in Part III of the Indian Constitution. As per the Constitution, these rights are an inseparable part of the Constitution. The legislature does not have the power to formulate any law or statute that harms the fundamental rights of person. In case, any law or statute violates fundamental rights they are declared as void.
Personal laws and Fundamental rights
Since constitution came into existence it has been challenging to judiciary in context of personal laws and part III of constitution. Article 25 of the Indian Constitution guarantees the universal right to “freedom of faith, free profession, practice, and propagation of religion,” while also limiting the right to public order, morality, and health for the good of society. Similarly, Article 26 clause (b) states that any religious denomination or section has the right to administer its religious affairs as long as public order, morality, and health are not jeopardized. To a large degree, India is a country awash in personal laws, with each society having its own set of rules. Articles 25(1) and 26(b) of the Indian Constitution protect religious beliefs and traditions such as rituals, rites, ceremonies, observances, and modes of worship. These papers exemplify India’s secularism and religious freedom principles.
The real question before judiciary was whether personal laws are considered as laws under Article 13 of the Constitution. In context of Monogamy, Restitution of Conjugal rights, marriage, divorce or even maintenance, these laws seem to be discriminatory towards women. If personal Laws are considered as laws within the ambit of Article 13, then they would be inconsistent to Part III of the Constitution and declared void.
Over the years, through several cases, the courts have refused to interfere with personal laws. In a number of cases, it has been held that personal laws of parties are not susceptible to Part III of the Constitution, dealing with fundamental rights. Therefore, they cannot be challenged for the violation of fundamental rights, especially those guaranteed under Articles 14, 15 and 21 of the Constitution of India.
- Krishna Singh v. Mathura Ahir
- Maharshi Avdhesh v. Union of India
- Ahmedabad Women Action Group & Ors. v. Union of India
All of these cases are examples of circumstances where the Courts held that personal statutes, whether codified or uncodified, whether in force at the time of the commencement of the Constitution or passed later, are not subject to the Chapter on Fundamental Rights and cannot be overturned on the basis of Part III of the Constitution’s touchstone.
Whether personal laws are law within the ambit of Article 13?
This has been easily one of the most debatable concepts in Indian history. Whether personal laws are law within the ambit of Article 13 or not.
Article 13(1) talks about the laws which were present before the constitution came into force. It says that if they are inconsistent with the provisions of the part of this article will be void to the extent of the inconsistency.
Article 13(2) talks about the laws which are passed after the constitution came into force. It renders all the laws void which violates the provisions of this part.
Article 13(3) talks about the meaning of law i.e the laws whether by laws, notifications, rules, regulations, customs, usage, etc if do effect the legal rights of the citizens do come under the definition of law, thus would be considered as laws under article 13 but there are two exceptions to the same, firstly the administrative and the executive orders are being covered under article 13 but if their nature is just to give instructions or guidelines then they would not be covered under article 13. Second exception is the personal laws which are not being covered under article 13.
Article 13(4) statesthat any of the amendment made in article 368 of the Indian constitution would not be challenged under article 13 moreover if the amendment so made would be against the fundamental rights then also it would not be challenged under article 13.
Firstly, Article 13 states that laws that are inconsistent with fundamental rights are void.
In the case of State of Bombay v. Narasu Appa Mali,  the Hindu Bigamous Marriages Act, was challenged for violating Articles 14, 15, 25 of the Constitution. The court held that the definition of law and law in force of sections 13(3) and 13(1) excludes personal laws and makes them immune to judicial review. Both the Judges, Justice Chagla J. and Justice Gajendragadkar J. had varying opinions but concluded that personal laws are not laws under Article 13 of the Constitution. It was further stated that the Act is not violative of Article 14 and the State has the power to bring about social reforms bit by bit. Hence, the principles enshrined under Part III are not applicable to personal laws.
J. Gajendragadkar’s interpretation contradicts the language of 13(3) (b), which uses the phrase “includes” in the meaning of the term “laws in force,” thus broadening the scope of the provision. Relying on the judgment of J. Agarwal, in the case of P. Kasilingam v. PSG College of Technology, who stated that the word ‘includes’ enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import, but also the things as the clause says they shall include. The case of Bharat Cooperative Bank (Mumbai) v. Employees Union  agreed with the dictum of Kasilingam, and held that the term ‘includes’ makes the definition enumerative, in that the term defined will retain its ordinary meaning but its scope will be extended to bring within it matters, which in its ordinary meaning may or may not comprise.
Justice Gajendragadkar gave the following definition in the general sense for the term ‘law in force ‘ and stated that it includes laws passed or made by a Legislature or other competent authority in the territory of India, before the commencement of the Constitution and not previously repealed and there is no doubt that the personal laws are in force in the general sense.
In conclusion, J. Gajendragadkar also stated thatit is a well-known fact that the personal laws do not derive their validity on the grounds that they have been passed or made by a Legislature or other competent authority in the territory of India as the foundational sources for both the Hindu and the Mahomedan laws are their respective scriptural texts.
In the recent times, a transformative approach is being adopted by the courts and there has been a considerable change in the judicial decisions.
Recent contrary cases
The Narssu Appa Mali judgment has acted as the shield for the discriminatory personal laws for more than 60 years. Personal laws were never questioned or challenged in courts, but as time passed there has been a different approach used by courts while dealing with cases related to personal laws and fundamental rights.
A three-judge Bench of the Supreme Court in the case of Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, has taken a contrary view and has held that personal laws, to the extent that they are in violation of the fundamental rights are void.
The Supreme Court ruled in India Young Lawyers Association v. State of Kerala (“Sabrimala Temple case”) that the Sabarimala Temple’s practice of barring women in their menstruating years from entering was unconstitutional and violated female worshippers’ right to equality under Article 14 of the Constitution and their freedom of religion under Article 25 of the Constitution.
In the case of Lata Singh vs. State of Uttar Pradesh, it was held that the right to marry is integral rights under Article 21 and people have the freedom to choose their spouses without being forced. It was also stated that “This is a free and democratic country, and once an individual becomes a major, he or she can marry whomever he or she wants,” If the boy or girl’s parents do not approve of such an inter-caste or inter-religious marriage, the most they can do is cut off social ties with their child, but they cannot threaten, commit, or instigate acts of abuse, or harass the individual who undergoes such an inter-caste or inter-religious marriage.
In the case of Shayara Bano v. Union of India, 2017, a Constitutional Bench ruled in a 3:2 decision that talaq-ul-biddat, or triple talaq, is not legally valid. It was also stated that the Muslim Personal Law (Shariat) Application Act, 1937, is a law enacted prior to the commencement of the Constitution, and it falls under the term “laws in force” under Article 13(3)(b), and therefore is be subject to the provisions of Article 13(1). Furthermore, even though there is some overlap in the Articles of the Constitution, it was concluded that the rights guaranteed under Part III of the Constitution have a common thread of individual integrity and security, and these Articles of the Constitution must be read in the broadest sense possible to recognize fundamental human freedom.
The Supreme Court of India in Md. Ahmed Khan v. Shah Bano Begum, ruled against the beliefs of Muslim personal laws, by granting maintenance appeal to a Muslim divorced lady under Section 125 of Cr.P.C, despite refusal under Muslim personal law. When Shah Bano filed a case in the magistrate court, the court ordered for maintenance of a sum not surpassing Rs. 500 However, when the case was moved to the Supreme Court of India, it raised a significant legal issue.
Though the courts do not consider personal laws within the ambit of Article 13 of the Constitution, through these recent decisions, it is observed that personal laws that are violative of fundamental rights, can be declared unconstitutional.
A combined reading of Articles 14, 15 and 21 of the Constitution of India categorically provides that no law can be made or can be applied which discriminates against women in context of marriage, divorce or even maintenance etc.
Women are discriminated against in a substantial number of clauses in both codified and uncodified personal laws. The majority of them are not religiously sanctified. Even if they are, the fundamental right to religion guaranteed by Part III does not cover them, according to Article 25, which guarantees freedom to practise religion. As a result, the discriminatory measures must be declared unconstitutional from any perspective.
However Because of India’s history personal laws and them being discriminatory is inevitable but there can be an alternative, since Indian constitution is felixible and recently there are many laws which are being amended to catch up with the change or adapting to the change the government can implement laws where everyone is treated equally saving Indian constitutions nature that is via, the Uniform Civil Code( UCC) can be an attempt to wave personal laws and to bring a common law for all, one law should be there which is applicable to all, which would be different from public law and would deal with marriage, divorce, maintenance and adoption.
Merits of Uniform Civil Code
- Over lapping provision of law will get avoided
- All people will get equal status and there would be no discrimination.
- The nation would speak together.
- The country would emerge with new force and power.
- Simplify Indian legal system.
- Burden on judiciary would decrease.
- Speedy justice
An extra load is put on the judiciary when distinct groups are governed by various laws which is the main cause of delay in justice. Having a Uniform Civil Code will help to solve the issue swiftly and offer justice and also help simplify a number of tactics that make confusions which are related to present scenario. As a result, the flaws in existing personal laws are addressed, and a new method of dealing with complex offences is introduced.
CREDITS: Amrutha Bawgi, Presidency University, Bangalore
Krishna Singh v. Mathura Ahir AIR 1980 SC 707
 Maharshi Avdhesh v. Union of India 1994 Supp (1) SCC 713
 Ahmedabad Women Action Group & Ors. v. Union of India 1997 3 SCC 573
 State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84
 Kasilingam v. PSG College of Technology AIR 1995 1395
 Bharat Cooperative Bank (Mumbai) v. Employees Union 2007 Insc 318
 Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil 1996 8 SCC 525
 India Young Lawyers Association v. State of Kerala 2017) 10 SCC 689.
 Lata Singh vs. State of Uttar Pradesh (2006) 5 SCC 475.
 Shayara Bano v. Union of India AIR 2017 9 SCC 1 (SC)
 Md. Ahmed Khan v. Shah Bano Begum 1985 AIR 945