Chapter 4

NATIONAL POLICY ON PERSONAL LAW AND ITS SUBJECT-

MATTER

4.1 NATIONAL POLICY ON PERSONAL LAW: HISTORICAL PERSPECTIVE

The object behind stressing out the history of personal law is not to enter into the vast
galaxy of various personal laws that prevailed in India or to find out the philosophy
behind them. It has a limited purpose of looking into the status of and policy on personal
laws in India in a historical perspective. Oliver Wendel Holme in his “Common Law”
rightly states: “The law embodies the story of nation’s development through centuries
and to know what it is, one must know what it has been, and what it tends to become.” 1

4.1.1 Hindu India

Originally, the society, rather than the state, was the organizational unit. The society was
based on “Dharma”. Etymologically the word ‘Dharma’ is derived from the root ‘dhru’
means ‘to hold’. 2 Dharma, thus, was a principle of social cohesion, holding the society
together in a harmonious relationship. There are a number of definitions or rather
descriptions of the term Dharma. 3 But Medhatithi4 speaks about the characteristics of
Dharma. He states that, the characteristic feature of the word ‘Dharma’ is ‘duty’. The
duty imposed by Dharma is either positive (i.e., to do something) or negative (i.e., not to
do something). The rules prescribing positive duties are called Vidhi and those
prescribing negative duties are called Nishedha. These prescriptive patterns of behaviour
are the substance of Dharma.5 Thus, the term Dharma laid stress on the concept of duty.

1
Cited in, Saha, A.N., “Marriage and Divorce”, (1996), Eastern Law House, Calcutta, at p 1.
2
Pandit, M.S., “Outlines of Ancient Hindu Jurisprudence”, (1989), N.M. Tripathi Private Limited,
Bombay, at p 3.
3
It includes the right-duty relationship, justice and morality, religion, good work, the natural function and
characteristics of a thing.
4
Medhatithi was a learned commentator of Manusmriti in 9th century A.D. He was a great master of Pruva
Mimansa and Uttara Mimansa (Vedanta) and harmoniously interpreted the text.
5
Pandit, Supra note 2 at p 5.

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According to Sir Hari Singh Gour, one of the special features of archaic society was the
blending of laws with religion without there being a clear line of demarcation between
the two. And the first great step in the progress of law is when the distinction between the
acts that are harmful to human society and the acts that may not be so, but are hateful to
supernatural being, is thoroughly grasped….for this distinction lies at the root of all legal
development.6 Though early writings of the Hindu sages do not distinguish law and
religion but the latter treatises generally distinguished Dharma into – Achara (i.e.,
religious and moral observances) Vyavahara (i.e., positive law) and Prayaschitta (i.e.,
expiation).7

Initially, though, state was not the organizational unit, but in the latter part of the Hindu
India, especially in the Smriti period, state began to take shape. It consisted of Saptangas
(i.e., seven limbs 8) and the king was the head of it. Everybody including the king had to
yield to the law. No one was above the law. Law was king of kings. The king had very
little power to make laws and he was bound to rule in accordance with the Dharma. He
was subordinate to Dharma, to the rule of law. 9 As has been stated above, duty was the
essence of Dharma and therefore, the king had to follow Rajdharma that is to do his
function of justice delivery according to the norms of Dharmashastras and the well
established customs. He was the foundation of justice 10 but not the source of law. The
Vedas, the Smrities including commentaries and digests on them, and the Customs were
the sources of law.

What has been stated above makes it clear that the Dharma was the governing rule in the
Hindu India. It denotes aggregate of religious, moral, social and legal duties and
obligations. The king was bound to follow the Rajadharma and to do justice according to
the Dharmashastras and the well-established customs. Therefore, the Bhagavad-Gita

6
See, Gour, Sir Hari Singh, “The Hindu Code”, (1973), Law Publishers, Allahabad, Vol. I, at p 5.
7
Yajnavalkya Smriti is arranged in three Chapters: Achara, Vyavahara and Prayaschitta. The separation of
the civil from the religious law was carried further by Narada and Brihaspati who confine themselves
entirely to Vyavahara law. See, Kuppuswami, Justice Alladi, “Mayne’s Treatise on Hindu Law & Usage”,
(1996), Bharat Law House, New Delhi, pp 6 – 8.
8
Apart from the king, the other six limbs were king’s ministers, capital, realm, treasury, army and allies.
9
See, Avhad, Bhaskar E., “Vedic Jurisprudence”, (1998), Hind Law Publications, Pune, pp 135 - 136.
10
See, Kuppuswami, Supra note 7 at p 10.

108
guides “let the shastras (i.e., Dharmashastra) be your authority to tell you what you
should and should not do.”11 Shastras, on one hand, provided various rules for guidance
regarding what should be done or what should not be done. And, on the other hand, the
Shastras themselves, again and again, declared that customs must be enforced when they
either overrule or supplement the rules in the religious texts. Narada, for instance, stated:
“Custom decides everything and overrules the sacred law.” 12 Therefore, Privy Council, in
Collector of Madura v. Mootoo Ramalinga13, held that, “Under the Hindu system of law,
clear proof of usage will outweigh the written text of the law.” Implicit in this rule is
recognition two different systems of law, one based on the written text of Shastras
(religion) and another based on customs or usages of community.

Implicit to what is stated above is: Shastra (i.e., religious texts) was the governing rule—
the general law—in ancient India and customs, ‘being local variation14 of general law,’15
was undoubtedly ‘personal’ to certain communities or groups who were governed by
them. Thus, the clear existence of personal law—the law which governs certain aspects
of person’s status or relationships or rights or privileges in regard to certain matters such
as succession, marriage, etc. by virtue of his belonging to a particular community or
group—can be found in ancient India. However, the entire gamut of all the shastras and
the customs, is, now, known as the Hindu law.

4.1.2 Muslim India

The history of Muslim rule in India began in 711 A. D. and lasted till the Britishers took
effective control of India. Muslim rulers believed in a religion whose outlook on social
and political questions was different from that of the Hindus. Unlike the Scythians and
the Huns, they did not come simply for conquest. With them they brought a well defined

11
See, Avhad, Supra note 9 at p 18.
12
Cited in, Diwan, Dr. Paras, “Hindu Law”, (2005), Orient Publishing Company, Allahabad, at p 95.
13
(1868) 12 MIA 397.
14
Local variation, i.e., local custom, in India, may be divided into two classes – Geographical local
customs and personal local customs. These customs are law only for a particular locality, community, sect,
family, etc. Thus, these customs are personal law of such locality, communities, etc.
15
Citing Hur Prasad v. Sheo Dayal, 26 W.R. (55), Sir Hari Singh Gour stated, “Custom is an established
practice at variance with the general law.” See, Gour, Supra note 6 at p 156.

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religion, a highly developed civilization and a set of institutions to which they clung with
all their faith. 16 Muslim jurisprudence (Fiqh) is one among them.

The whole of the Muslim jurisprudence is based on Islam. It is a perfect example of

complete union of law and the religion. Islam claims its jurisdiction over every aspect of
a Muslim’s life. “In Islam”, says James Bryce, “Law is Religion and Religion is Law,
because both have the same source and equal authority, being both contained in the same
divine revelation.”17 Therefore, the sources of Muslim law have been confined to the
scripture (Koran), the traditions (Sunna), the juristic consensus (Ijma), and the analogy
(Qiyas). Custom have never been rated as a formal or independent source of law in
Muslim law. However, where the texts are silent and also no authentic rule has been
deducted therefrom, custom can be passed into a binding rule of law. 18 But, in Muslim
law, custom is void ab initio, if it contravenes any express text of the Koran or the Suna.
This is exactly the reverse position of the Hindu law, where custom overrides the texts of
the Shastras. However, like Hindu law, Muslim law also implicitly recognizes two
different systems of law, one based on the written text of Koran or the Sunna (i.e.,
religion) and another based on customs or usages of community. Islam is, thus, a general
law of all the Muslims and custom, being local variation of general law, is personal to
certain local or sectarian Muslim communities or groups. The aggregate of all the
religious rules and customs (which do not contravene express text of religion) are,
however, known as the Muslim law. The Muslim rulers (Sultans) referred to it as Tashrii
law, which is more popularly known as Shariah law.19

The Muslim populations, in the Muslim-ruled countries, were generally governed by the
Muslim Law. And there could be a little doubt that, in India, the Muslims in their social
and political affairs were governed exclusively by Muslim Law. Indeed, it was their
avowed principle to maintain the purity of their religion, the civilization and the

16
See generally, Tripathi, R.B., “Some Aspects of Muslim Administration”, (1972), Central Book Depot,
Allahabad.
17
Cited in, Srivastava, D. K., “Personal Law and Religious Freedom”, 18 J.I.L.I. (1976) p 551, at p 553.
18
See, Mahmood, Tahir, “Custom as a Source of Law in Islam”, 7 J.I.L.I. (1965) p 102, at p 106.
19
For more details see, Habibullah, A. B. M., “The Foundation of Muslim Rule in India”, (1971), Central
Book Depot, Allahabad, pp 271 – 277.

110
institutions and to establish them in the lands under their sway. But, for one or the other
reason they obviously realized that, the non-Muslims, living in India, could not be
subjected, at least in their social relations, to the Shariah Law. Jurists have accordingly
recognized a practical distinction between what they called tashrii and ghair tashrii law.
The policy followed by the Delhi Sultanate, at any rate, was of minimum interference in
the social affairs of the Zimmi (i.e., non-Muslims).20 The purely Muslim law governing
the laws of inheritance, marriage and other analogous matters of the Muslims did not at
all apply to the non-Muslims. The non-Muslims (Hindus), on these topics, were allowed
to be governed by their own civil law. According to Von Kremer, “Non-Muslim
communities enjoyed an almost complete autonomy, for the government 21 placed in their
hands the independent management of their internal affairs, and their religious leaders
exercised judicial functions in cases that concerned their co-religionists only.”22 In
matrimonial cases, for instance, the jurisdiction of the Muslim qazi was to be exercised
only when the parties asked for it; and even then, he was to recognize such practices as
are regarded valid in the party’s religion. 23

The Muslim rulers in India, thus, followed a policy of minimum interference in religious
matters and civil laws of the natives. The effect of such a policy was the creation of two
parallel systems of civil law – one governed exclusively by the Hindu religion and the
other by the Muslim religion. Thus, for the purpose of law, the history of Muslim India is
marked by the recognition of distinct personal laws in civil matters24 for the Hindus and
the Muslims, which was inevitable result of Muslim ruler’s policy of non-interference.

20
See, Habibullah, ibid, at p 271.
21
In Fatawa-i-Jahandari, Barani mentions a body of conventional and customary law, which he calls
zabitah, followed by the government in dealing with the Hindu subjects. See Habibullah, ibid, at p 272.
22
Cited in, Srivastava, Supra note 17 at p 554.
23
See, Habibullah, Supra note 19 at p 271.
24
The Criminal Law does not, however, remained personal law, for in criminal matters both the Hindus and
the Muslims were governed by the Muslim Penal Law only, though it is doubtful whether it was applied
with the same rigour and exactitude as is enjoined by the Koran.

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4.1.3 British India

4.1.3.1 Concept of personal law in British India

Broadly speaking, the discussion made above reveals two things. Firstly, during the
Muslim rule in India, the Muslim rulers has created two distinct systems of personal
law—the Hindu law and the Muslim law—based on religion. And policy of non-
interference was followed by the Muslim rulers. Secondly, in both, the Hindu and the
Muslim laws, internal classification based on religious texts and customary practices is
clearly made. And both the laws, taken independently, recognized customary practices as
personal law to certain local or sectarian communities or groups.

As regards British administrators in India, it is submitted that, the concept of “personal

law” is wrongly perceived by them, especially in the Indian social milieu. They presumed
that: “All personal laws are religiously ordained.”25 Therefore, the Second Law
Commission stated: “The Hindu and Mohammedan law derive their authority
respectively from the Hindu and Mohammedan religion.” 26 This may be because, the
early British administrators perhaps wrongly perceived that the native Indian comprised
only of two broad categories, Hindus and Muslims.27 And the religion based distinction
of personal laws made by the Muslim rulers might have influenced the British rulers in
drawing the presumption that ‘all personal laws are religiously ordained.’ Here, it is
submitted that, the important aspect of the Hindu as well as the Muslim law, which
implies that the religious texts are the general law and the customary practices are
personal laws, was not taken into consideration by the British rulers.

Though, both, the customs and the religious texts of the Hindus and Muslims were taken
into consideration in the administration of justice, but the British administrators treated

25
This presumption is not valid. Because, the personal law of Adivasis is not religiously ordained. Personal
law of Adivasis derives its authority from the customs and usages of the community.
26
Cited in, Srivastava, Supra note 17 at p. 556.
27
See, Jain, M.P., “Outlines of Indian Legal History”, (2005), Wadhwa and Company, Nagpur, at p. 454.

112
the customs and the texts differently. 28 Under Section 11229 of the Government of India
Act, 1915, while dealing with ‘law to be administered’, a clear distinction is made
between the terms Personal Law and Custom. Section 223 of the Government of India
Act, 1935 preserves intact the operation of Section 112 of the Government of India Act,
1915.30

4.1.3.2 Initial policy of neutrality

When the British established their hegemony over India, they more or less continued the
Muslim pattern of judicial administration. They followed a policy of neutrality in the
religious matters of the Hindus and the Muslims. Moreover, being Christians they
believed in the wall of separation between the state and the church. Their belief in the
‘doctrine of duality’ taught them ‘to give to God the things that are God’s and to Caesar
the things that are Caesar’s’.

Apart from the doctrine of duality, there were other considerations too which played a
vital role in their adoption of a neutral policy in religious matters. They were aware that
religious intolerance of the Portuguese, especially with the arrival of Franciscan
missionaries in A.D. 1517, was responsible for the doom of their fortune in India. 31 They
were also conscious of the fact that the policy of non-interference in matters of religion

28
In the British pattern of administration of justice, custom, in order to be valid, has to fulfill all the
essential requirements of a valid custom. But personal law based on religious texts was valid ex proprio
vigore.
29
Section 112. Law to be administered in cases of Inheritance and Succession, – The high courts at
Calcutta, Madrass and Bombay, in the exercise of their original jurisdiction in suits against inhabitants of
Calcutta, Madrass or Bombay, as the case may be, shall, in the matters of inheritance and succession to
lands, rents and goods, and in the matters of contract and dealing between party and party, when both the
parties are subject to the same personal law or custom having the force of law, decide according to that
personal law or custom, and when the parties are subject to different personal laws or customs having the
force of law, decide according to the law or custom to which the defendant is subject.
30
These provisions were model while framing Article 13 of the Constitution of India. In Article 13, the
distinction is impliedly recognized by including in the definition of law the term ‘custom and usage’ and
excluding the term ‘personal law’ from its operation. See, the State of Bombay v. Narasu Appa Mali, AIR
1952 Bom 84.
31
See, “India: Medieval History (A.D. 1206 – 1761)”, (1992), Publications Division, Ministry of
Information and Broadcasting, Government of India, New Delhi, at p. 115.

113
brought success to the Romans, who allowed their foreign subjects the free exercise of
their own religion and administration of their own laws.32

Initially, the British rulers, though, adopted the policy of neutrality; but in the course of
time, as they consolidated their position, they completely changed the criminal law and
introduced their own system to deal with the various matters of civil law.

4.1.3.3 British policy of neutrality in a historical perspective

The history of personal law in India, though, dates back to the ancient India, but the real
evolution of it is marked by the Charter of 1726.33 It introduced English Law in India. It
also established Mayor’s Courts at Madras, Bombay and Fort William. 34 With the
introduction of English law in India, one problem was posed regarding the extent and
applicability to, and competency of the courts over, the native inhabitants of India. The
courts extended English Law to the native inhabitants of India.35 The Governor and
Council of the company, however, expressed the opinion that the Mayor’s Court had no
jurisdiction to determine causes of religious nature or disputes concerning castes among
the natives. 36 The Charter of 1726 was replaced by the Charter of 1753. 37 The Charter of
1753 limited the jurisdiction of the Mayor’s Court to the Europeans only and the suits
between Indians could be entertained only by the consent of the parties.38

The character of the Charter of 1753 is doubtless personal since in civil matters the
British Courts had a personal jurisdiction over, and applied English Law to, British

32
See, Jain, “Legal History”, Supra note 27 at p. 580.
33
The Charter of 1726 issued to the East India Company by King George I on 24th September 1726. The
Charter of 1726 had a limited objective. It was intended for the benefit of British subjects who, because of
the impossibility or difficulty of complying with the local law, had been permitted by the Mogul emperor
of India to use their law within their factory settlements. This objective was achieved by the establishment
of courts of competent jurisdiction at Calcutta, Bombay and Madras.
34
See, Banerjee, Dr. Tapas Kumar, “Herbert Cowell’s History and Constitution of the Courts and
Legislative Authorities in India”, (2008), R. Cambray & Co. Private Ltd., Kolkata, at p. 12.
35
See, Tiar, Akolda M., “The Evolution of Personal Law in India and Sudan”, 26 J.I.L.I. (1984) p 445, at p.
446.
36
See, Srivastava, Supra note 17 at p 557.
37
Issued by King George II on 8th January 1753.
38
See, Pande, B.N., “The Introduction of English Law into India”, (1967), Asia Publishing House,
Bombay, at p 28.

114
subjects. In other words, the English law was conceived as binding upon British subjects
only and Indians could only be bound if they had submitted to it.

Of all the provisions made by Warren Hastings for the administration of justice, the most
enduring, and the most significant was that which prescribed the Hindu Law to Hindus
and the Muslim Law to Muslims, for certain heads of litigation. Section 23 of the Warren
Hastings’ Regulation 1772 prescribed application of Hindu and Mohammedan Laws to
Hindus and Muslims respectively in matters relating to inheritance, marriage, caste and
other religious usages or institutions. While the Charter of 1753 restricted the jurisdiction
of the courts to British subjects only; but the Regulation of 1772 diversified it. The
Regulation passed by Warren Hastings in 1772 is unquestionably, a historic landmark.
Here, for the first time, was a legislation which required the court to administer two or
more personal laws.

The policy of preserving Hindu and Muslim law was reiterated in the Act of Settlement,
1781. The purpose of the Act, as stated in the preamble, amongst other things, were, to
maintain and protect the inhabitants in the enjoyment of all their ancient laws, usages,
rights and privileges.39 Under Section 17 of the Act of 1781, ‘the Supreme Court was
empowered to determine all actions and suits against the inhabitants of the city of
Calcutta: provided that their succession and inheritance to lands, rents, and goods, and all
matter of contract and dealing between party to party, should be determined in the case of
Mahomedans by the laws and usage of Mahomedans, and in the case of Gentoo (Hindu)
by the laws and usages of Gentoos; and where only one of the parties should be a
Mahomedan or Gentoo by the laws and usages of the defendant.’40

Throughout his tenure of office, Hastings adhered very tenaciously to the policy of
applying the personal laws to the Hindus and Muslims. The policy of preserving personal
laws of the Hindus and Muslims in family matters was reiterated by Cornwallis as it was
specifically declared in the preamble of Regulation III of 1793 that the aim of the

39
See, Jain, “Legal History”, Supra note 27 at p 97. For early history or the Act of Settlement, 1781 see
Banergee, Supra note 34 pp 39 – 55.
40
See, Banergee, Supra note 34 at p 51.

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Government was to preserve to the Indians the laws of the Shastras and the Koran in the
matters to which they have been invariably applied.41

What has been stated above makes it clear that, the policy of the British was not to
interfere with the customs, faiths and beliefs of the people under their rule; and the same
is reflected in the report of the Second and Fourth Law Commission. The Second Law
Commission in its report stated that the personal laws ought not to be codified.42 The
Commission further stated that, ‘the Hindu and Mohammedan law derive their authority
respectively from the Hindu and Mohammedan religion. It follows that, as a British
legislature cannot make Mohammedan or Hindu religion, so neither can it make
Mohammedan or Hindu law.’43 It is evident from what has been stated above that the
British legislature characterised personal laws as religious in nature. Therefore, they
hesitated to interfere with and modify personal laws through legislation.

4.1.3.4 Subsequent policy of interference

Before the advent of the British, ancient Hindu law was flexible. While interpreting old
Hindu law, the methodology employed by the commentators was infusion of local
customs and usages of the people with the old texts of the Hindu law. Hindu law, thus,
was a growing law. After the introduction of British pattern of administration of justice in
India, these traditional instrumentalities of legal change and growth ceased to operate.
New customs could not be recognised by the courts because of the theory that a custom
could be enforceable only if it was ancient. Mayne appropriately described that “under
the British rule, Hindu law was in a state of arrested progress in which no voices were
heard unless they came from the tomb.”44 Hindu law, thus, lost its flexibility and became
static. In these circumstances, for the development of Hindu law, it became inevitable for
it to adopt the changing pattern of social life. As the courts were bound by the authority
of the dead Smritikaras and the Commentators and the theory of precedent; the only
instrumentality, for suitable change in Hindu law, remained with the legislation. Strong
41
See, Jain, “Legal History”, Supra note 27 at p 580.
42
See, Jain, “Legal History”, Supra note 27 at p 621.
43
Cited in, Srivastava, Supra note 17 at p 556.
44
Cited in, Jain, “Legal History”, Supra note 27 at p 621.

116
pressure for reform was exerted by the reformist section of Hindus on the British
legislator.45

Apart from the initiative for reform that came from the community concerned, there were
other compelling forces which compelled the British legislators to reconsider their policy
of non-interference in personal laws of the natives. The legal system of India in the early
nineteenth century was one of confusion and chaos. Generally speaking, different laws
were applied by village, district and provincial courts. In such circumstances bringing
certainty and uniformity in law became essential. 46 These and several other factors47 gave
impetuous for enactment of certain aspects of personal laws, especially of the Hindus.

Sati Prevention Act, 1829, Hindu Widows’ Remarriage Act, 1856, Guardians and Wards
Act, 1890, The Anand Marriage Act, 1909, Hindu Disposition of Property Act, 1916,
Hindu Inheritance (Removal of Disabilities) Act, 1928, Hindu Gains of Learning Act,
1930, Hindu Women’s Right to Property Act, 1937, Aryan Marriage Validation Act,
1937, Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946,
etc. are the important enactments made in British India.

Though the initiative for reform was taken by the Hindu society, at least a section of it;
the same is not the case with the Muslim Community. The Muslim community in India
did not approve any change or reform in their personal laws. In effect thereof, the British
legislators did not interfere in the personal laws of the Muslims. The enactments made for
the Muslims were with the objective of restoring the orthodox doctrine of Muslim law
and to undo the effect of liberalizing judicial decisions. Mussalman Wakf (Validating)

45
See generally, Jain, “Legal History”, Supra note 27 at p 621.
46
Lord Macaulay observed: ‘we must know that respect must be paid to the feelings generally by
differences of religion, of nation and caste. Much, I am persuaded, may be done to assimilate the different
systems of law without wounding those feelings. But whether we assimilate those systems or not, let us
ascertain them, let us digest them. We propose no rash innovation, we wish to give no shock to the
prejudices of any part of our subjects….Our principle is simply this – uniformity where you can have it –
diversity where you must have – but in all cases certainty.’ Cited in, Srivastava, Supra note 17 pp 560 – 61.
47
During those days Bentham’s theory of legislation gained profound influence and India. And according
to Smith, “India became the testing ground for the Benthamite principle of codification.” Cited in,
Srivastava, Supra note 17 560.

117
Act, 1913, Muslim Personal Law (Shariat) Application Act, 1937, Dissolution of Muslim
Marriage Act, 1939, etc. were enacted during the British rule in India.

Apart from the Hindus and Muslims, Indian Divorce Act, 1869, Indian Christian
Marriage Act, 1872, was passed for the Christians and for the Parsis, the Parsi Marriage
and Divorce Act, 1936, was enacted.

A number of other statutes were also passed which affected both, the Hindus and the
Muslims as well. Those are – Caste Disabilities Removal Act, 1850, India Penal Code,
1860, Indian Evidence Act, 1872, Indian Contract Act, 1872, Transfer of Property Act,
1882, Child Marriage Restraint Act, 1929, which is subsequently repealed by re-enacting
the Prohibition of Child Marriage Act, 2006, Indian Succession Act, 1865, which was
subsequently amended in 1925, Special Marriage Act, 1872, which was subsequently re-
enacted in 1954, etc. These statutes applied alike to all the people irrespective of their
religious affiliations. But the effect of some of the provisions laid down by the statutes
was to limit the operation of the Hindu and Muslim laws in the matters covered by them.
It is interesting to note that these legislations touched all topics of personal laws which
were formerly considered sacrosanct and beyond the legislative pale. All these
enactments, especially those relating to Hindu personal law, were in the form of
piecemeal reforms. But no attempt was made to codify the personal laws, except towards
the close of the British rule.

In pursuance of its undertaking, the Government of India, by a resolution dated January

25, 1941, appointed a committee consisting of B.N. Rau, Dwarka Nath Mitter, J.R.
Gharpure and Rajratna Vasudeo Vinayak Joshi for the purpose of formulating a Code of
Hindu Law. 48 The committee in its report dated June 8, 1941 expressed itself in favour of
the codification of the entire Hindu law retaining its distinctive character which can
satisfy the needs of the progressive society. One of the objectives of the Committee was
to evolve a uniform Code of Hindu Law which can be made applicable to all Hindus by
blending the most progressive elements in the various schools of law which prevail in

48
See, Rajagopaul, G.R., “The Story of the Hindu Code”, 17 J.I.L.I. (1975) p 537 at p 539.

118
different parts of the country. The Committee submitted its report on February 21, 1947,
with a final draft of the Hindu Code. This was a major shift from the policy of neutrality
to that of interference. But, whilst the Bill was pending, India was granted independence
and the Indian Constituent Assembly was vested with full powers to make laws for India.

4.1.4 Independent India

19th Century was the century of Indian renaissance. After a long battle for freedom, India
got independence on 15th August 1947. A Constituent Assembly was appointed. It was
acting as the Provisional Parliament of independent India. While the Bill was pending in
the House, the then Minister of Law, Dr. B.R. Ambedkar, set up a small committee
consisting of himself as the chairman, K.Y. Bhandarkar, G.R. Rajagopaul from the
Ministry of law and S.V. Gupte of the Bombay Bar, to examine the Bill. A revised draft
was made with more logical fashion. The select committee presented its report to the
House on August 12, 1948.49

On August 31, 1948, Dr. B.R. Ambedkar moved for consideration of the Bill. In the
Constituent Assembly of India (Legislative), Dr. B.R. Ambedkar stated the aim of the
Bill as – “To codify the rules of Hindu Law which are scattered in innumerable decisions
of the High Courts and of the Privy Council, which form a bewildering motley to the
common man and give rise to constant litigation....”50 After a massive discussion and
opposition by the orthodox section of the Hindu Community the Bill failed in December
1950. G.R. Rajagopaul rightly observed: “In spite of the best efforts of Ambedkar, the
progress made in the consideration of the Hindu Code Bill was negligible. The debate on
clause 2 alone dragged on for three days with hundreds of amendments being moved and
having to be discussed, whether relevant or irrelevant.”51 In the meanwhile, Hindu
Marriages Validating Act, 1949 was being enacted.

49
Rajagopaul, ibid at p 543.
50
See, “Dr. Ambedkar and the Hindu Code Bill: General discussion on the Draft (17th November 1947 to
14th December 1950)”, in “Dr. Babasaheb Ambedkar Writings and Speeches”, (1995), Education
Department, Government of Maharashtra, Vol. 14, Part One, at p 5.
51
Rajagopaul, Supra note 48 at p 544.

119
In 1952, fresh elections had taken place and the provisional Parliament ceased to exist
giving place to the regular Parliament. On the dissolution of the provincial Parliament the
Hindu Code Bill stood lapsed. Jawaharlal Nehru, a man of liberal views and an ardent
supporter of codification, became the Prime Minister of India. He realized that it would
be a stupendous task to get the whole of the Hindu Code passed even if a special session
of Parliament were to be convened for the purpose. Therefore, the Hindu Code was
introduced in the instalments.

On December 11, 1952, the then Minister of Law, C.C. Biswas, introduced in the Council
of States (Rajya Sabha) a Bill viz., the Hindu Marriage and Divorce Bill, 1952, to amend
and codify the law relating to marriage and divorce among the Hindus. The title of the
Bill was changed to the Hindu Marriage Bill at the suggestion of the Prime Minister as
the accent was not on divorce but on the maintenance of marriage. 52 The Bill was passed
unanimously by the Rajya Sabha on December 16, 1954. H.V. Pataskar,53 in his eloquent
speech pointed out ‘how the Hindu law became stagnant during the long years of Muslim
as well as the British rule and how the time had come for some uniformity to be aimed
at.’ He further pointed out that, ‘Social reform had become necessary in the Hindu
society as a whole, but more particularly among women.’ So far as women were
concerned, he pointed out that, ‘Hindu Code was more a measure of social justice than
social reform.’54 The debate in the Lok Sabha lasted for six days and the Bill came to be
passed by the House on May 5, 1955.

The second instalment in the form of a draft Bill dealing with the law relating to intestate
succession (Hindu Succession Bill) was formally introduced in the Rajya Sabha on
December 22, 1954. After scrutinizing each clause carefully in the Rajya Sabha the Bill
was passed on November 30, 1955. Being the most important branch of the Hindu law to
be codified, the debate on this Bill was sufficiently long and each one of the clauses was
subjected to even greater scrutiny in the Lok Sabha, where the debate began on December

52
Rajagopaul, Supra note 48 at p 547.
53
Due to continuous ill-health of C.C. Biswas, H.V. Pataskar took over the charge of Law Ministry and the
Bills were piloted by him.
54
See Rajagopaul, Supra note 48 pp 547 – 548.

120
13, 1955. The debate lasted for eight days in the Lok Sabha and the Bill, as finally
passed, received the assent of the President on June 17, 1956 and came into force on that
date.

It is important to note that the daughter’s right to inherit and the share to be given to her,
if she were to inherit, had been the subject of bitter controversy from the days of the Rau
Committee’s report. At the time of the discussion of the Hindu Marriage Bill Mr.
Pataskar pointed out that, ‘without economic independence and property rights for
women the provision of divorce was not only not going to be of any use to them but
would operate against their interest.’55 After passing the Hindu Marriage Bill, he
observed that, “It would be the moral and legitimate duty of those gentlemen to see that
woman is restored to her natural rights in property and to take steps to ensure her
economic independence and that could only be done by removing the invidious
distinction between the son and the daughter in the matter of inheritance any by making
the woman the full owner of whatever property she acquires whether by inheritance or
otherwise.”56

The Hindu Succession Act, 1956 is, no doubt, a social measure which gives to the Hindu
women the right which they did not enjoy in the past in the form given in the Act. All the
changes made in the Hindu law of intestate succession were directed towards improving
the status of women.

The Hindu Minority and Guardianship Bill, 1954, was the third instalment of the Hindu
Code which was introduced in the Rajya Sabha on August 23, 1954.57 Comparatively,
this Bill happened to be the least controversial of the Hindu Code Bills. After being
passed by the Rajya Sabha, the Bill was passed by the Lok Sabha on August 2, 1956, and
came into force on August 25, 1956, when it was assented to by the President.

55
Rajagopaul, Supra note 48 at p 551.
56
Cited in, Rajagopaul, Supra note 48 at p 551.
57
Rajagopaul, Supra note 48 at p 547.

121
The Hindu Adoptions and Maintenance Bill, 1956—the last Bill in the series—was
introduced in the Rajya Sabha on August 23, 1956. In the Rajya Sabha this Bill was
passed on November 29, 1956 and it was passed by the Lok Sabha on December 14, 1956
and it came into force on December 21, 1956, when it received the assent of the
President.

In the matter relating to personal law, Hindus are now governed by the Hindu Marriage
Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act,
1956 and the Hindu Adoptions and Maintenance Act, 1956. Apart from Hindus, the
Buddhists, Jainas and Sikhs are also covered within the ambit of the above-stated
legislations, but the Adivasis are not included in it.

The Dowry Prohibition Act, 1961 is enacted to fight the evil of dowry. For better
protection and maintenance of divorced Muslim women, the Muslim Women (Protection
of Rights on Divorce) Act, 1986, is passed. The laws, as stated above, are doubtless
personal in the sense that they deal with individual religious communities.

Thus, in the matter of Personal Laws, the policy of Indian legislature is more positive
than the British legislators. But the policy of non-interference in religious matters and
therefore in personal laws is, more or less, adopted in independent India also, especially
in Muslim and Adivasi Personal Law. And thus the directive of Uniform Civil Code
which, in fact, is an ‘Instrument of Instruction’58 merely remained a dead letter.

58
In the Constituent Assembly, Dr. Ambedkar explained that “The Directive Principles are like the
Instruments of Instructions which were issued to the Governor-General and the Governors of Colonies, and
to those of India by the British Government under the 1935 Government of India Act. What is called
‘Directive Principles’ is merely another name of the Instrument of Instructions. The only difference is that
they are instructions to the legislature and the executive.” He further stated, “Whoever captures the power
will not be free to do what he likes with it. In the exercise of it he will have to respect these instruments of
instructions which are called Directive Principles.” See, Basu, Durga Das, “Commentary on the
Constitution of India”, (2008), LexisNexis, Butterworths Wadhwa, Nagpur, Vol. 3, at p. 4026.

122
4.2 STATUS OF PERSONAL LAW IN INDIA: WHAT IS?

Article 13(1) of the Constitution of India provides that “All laws in force in the territory
of India immediately before the commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part,59 shall, to the extent of such inconsistency,
be void.” In this background in The State of Bombay v. Narasu Appa Mali,60 an
interesting question of a considerable importance that was raised before the court is, – ‘if
at all, any Personal Law or any of its provision violates, any of the Fundamental Rights
guaranteed in Part III of the Constitution of India, whether such Personal Law or its
provision, to the extent of such inconsistency, is void?’ To put it in other words,
‘Whether the “Personal Laws” are included in the expression “laws in force” which is
incorporated under Article 13(1) and defined under Article 13(3)(b); or its status is
distinctly recognized and maintained?’

Before answering this question, it is necessary to clarify the legal position of Article 13.
Article 13(1) declares that, “All ‘laws in force’ in the territory of India immediately
before the commencement of this Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be void.” And Article
13(2) states that, “The State shall not make any ‘law’ which takes away or abridges the
rights conferred by this Part and any ‘law’ made in contravention of this clause shall, to
the extent of the contravention, be void.” The expressions “laws in force” and “law”
which are incorporated under Article 13(1) and 13(2) respectively are defined under
Article 13(3)(b) and 13(3)(a) respectively. According to Article 13(3)(b) “laws in force
includes laws passed or made by a Legislature or other competent authority in the
territory of India before the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof may not be then in
operation either at all or in particular areas.” And according to Article 13(3)(a) “law
includes any ordinance, order, by-law, rule, regulation, notification, custom or usage
having in the territory of India the force of law.” In this background, it is submitted that,
confusion generally is made by people in presuming that, Article 13(3)(b) which defines

59
That is, Part III, dealing with the Fundamental Rights.
60
AIR 1952 Bom 84.

123
the expression “laws in force” is related only to Article 13(1) only since it speaks about
“laws in force”. And the Article 13(3)(a) which defined the expression “law” is related to
Article 13(2) since it speaks about “law”. For instance, in the State of Bombay v. Narasu
Appa Mali,61 it was contended by the Solicitor General that, the definition of “law”
applies only to Article 13(2) and not to Article 13(1). According to him, it is only the
definition of “laws in force” under Article 13(3)(b) that applies to Article 13(1). This
contention, it is submitted, is wrong because, “custom and usage” which are included in
Article 13(3)(a) would have no meaning if it were applied to the expression “law” in
Article 13(2) only as the State cannot make any custom or usage. Therefore, that part of
the definition (i.e. part dealing with ‘custom or usage’) can only apply to the “law” in
Article 13(1). Hence, the definition of “law” as is given under Article 13(3)(a) applies to
Article 13(1) also. And, therefore, if there is any custom or usage which is inconsistent
with the fundamental rights, that custom or usage is void.62. “Laws in force” is separately
defined only because the legislators wanted to emphasis the fact that even though a ‘law
may not be in operation at all or may not be in operation in particular areas’, even so it
should be considered to be a ‘law in force’ for the purpose of Article 13(1). Therefore,
Chagla, CJ., in Narsu Appa’s case rightly rejected the contention of the Solicitor General.

Now the question naturally arises as to what is a status of the Personal Law, especially so
far as Article 13(1) is concerned, as it is totally based on the customs and usages which
can be judged on the touchstone of Article 13(1) and can be declared unconstitutional, if
they are inconsistent with part III of the Constitution of India. Here it becomes necessary
to deal with another question as to, – whether customs or usages are the integral and / or
inseparable part of the Personal Law? In Narasu Appa’s case, the question has been
answered by Chagla, C.J. that “custom and usage is deviation from personal law and not
personal itself.”63 According to Sir C.K. Allen, the elementary and unvarying

61
AIR 1952 Bom 84.
62
See for example, Justice Hidaytullah, in Sant Ram v. Labh Singh, AIR 1965 SC 314, has held that, the
customary law of pre-emption on the ground of vicinage imposes unreasonable restrictions on the right to
acquire, hold and to dispose of property guaranteed by Article 19(1)(f) of the Constitution and is void.
63
Custom at the most, is a source of personal law but not personal law itself. It is true, especially under
Hindu law; customs are kept on very high pedestal. It is also true what has been decided by the Privy
Council in Collector of Madura, Supra note 13, that, “under the Hindu system of law, clear proof of usage
will outweigh the written text of the law.” But it only mean – when Hindu Law recognizes the validity of

124
characteristic of custom is that, – “every custom is in some fundamental respect an
exception from the ordinary law of the land.”64 He further states, “Customs, then, are
local variations of the general law. But they must not be more than variations. They can
never be set up against a positive rule of statutory law.”65 Sir Hari Singh Gour states that,
“the term “custom” in legal parlance has been restricted in its use only to unwritten usage
confined to a peculiar class or locality, but when it becomes universal it passes out of the
region of custom.”66 What has been stated above makes it clear that, the personal law and
the custom or usages are two different things. This distinction has been recognised by
Article 13(3)(a), and therefore, while defining the term ‘law’ the expression ‘custom or
usage’ is incorporated in it but the word ‘personal law’ has deliberately been avoided.

Further, under Section 112 67 of the Government of India Act, 1915, while dealing with
‘law to be administered’, a clear distinction is made between the terms Personal Law and
Custom. The Government of India Act, 1915, amongst other things, was definitely a
model before the Constituent Assembly. Therefore, it can undoubtedly be presumed that,
while defining “Law” in Article 13 the expression “custom or usage” is purposefully
incorporated while the word “personal law” has deliberately been omitted from the
clutches of Article 13(1) and thus, the status of personal law is separately recognized and
maintained.

Apart from what has been stated above, there are other indicators as well, which confirms
the fact that the existence of personal laws has been separately recognized and not
included in the definition of ‘law’ as has been given it under Article 13(3)(a). For

custom, i.e., on proof of valid custom, departure from Hindu Law is permitted. And the tests of a valid
custom are well settled, as for example, the custom should be ancient, certain, reasonable, etc.
64
Allen, Sir Carleton Kemp, “Law in the Making”, (1964), Oxford University Press, Ely House, London
W.I., at p. 130.
65
Allen, ibid, at p. 131.
66
Gour, Supra note 6 at p. 49. Sir H.S. Gour further clarifies the point by giving the example of Greeks, he
stated that, the Greeks divided their laws into written (lex scripta), and unwritten (lex non scripta), the
former being well ascertained and authoritative laws, while the latter were customary which owed their
authority to popular acceptance.
67
Section 112. Law to be administered in cases of Inheritance and Succession, Supra note 29.

125
example, Article 1768, abolishes untouchability and forbids its practice in any from.
Article 25(2)(b)69 enables the State to make laws for the purpose of throwing open Hindu
religious institutions of a public character to all classes and sections of Hindus. Now, if
Hindu Personal Law became void by reason of Article 13 and by reason of any of its
provisions contravening any fundamental right, then it was unnecessary specifically to
provide in Article 17 and Article 25 (2)(b) for certain aspects of Hindu personal law
which contravened Articles 14 and 15. This clearly shows that only in certain respects
has the Constitution dealt with personal law.

Article 44 is an important evidence of the fact that the Constitution recognises and
maintains the separate existence of the personal laws. It says that “The State shall
endeavour to secure for the citizens a uniform civil code throughout the territory of
India.” In other words, this Article by necessary implication permits the continuance of
personal laws of various sections of the people ‘until the State succeeds in its endeavour
to secure for all citizens a uniform civil code.’

Apart from these implications there are direct evidences which make it clear that, the
Indian policy recognises and maintains separate existence of the personal laws. For
instance, with regard to Article 5(a)70 and 16(1)71 of the Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW), the government of India
declares that “it shall abide by and ensure these provisions in conformity with its policy
of non-interference in the personal affairs of any community without its initiative and
68
Article 17. Abolition of untouchability.—“Untouchability” is abolished and its practice in any form is
forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable
in accordance with law.
69
Article 25. Freedom of con science and free profession, practice and propagation of religion. –(1) … …
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making
any law—
(a) … …
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus.
70
According to Article 5(a) of the CEDAW, State Parties shall take all appropriate measures to modify the
social and cultural patterns of men and women with a view to achieving the elimination of prejudices and
customary and all other practices which are based on the idea of the inferiority and superiority of either of
the sexes…
71
Article 16 of the CEDAW deals with the issue of marriage and family relations. It asserts equal rights
and obligations of men and women with regard to choice of spouse, parenthood, personal rights and
command over property.

126
consent.”72 Kuldip Singh, J., in Sarala Mudgal73 requested the Government of India
through the Prime Minister of India to have a fresh look at Article 44 and “endeavour to
secure for the citizens a uniform civil code throughout the territory of India” and further
directed the Government of India through Secretary, Ministry of Law and Justice to file
an affidavit of a responsible officer in the Supreme Court indicating therein the steps
taken and efforts made, by the Government of India, towards securing a “uniform civil
code” for the citizens of India. Consequently, on behalf of the Government of India, it has
been reiterated that, “the Government would take steps to make a uniform civil code only
if the communities which desire such a Code approach the Government and take the
initiative themselves in the matter.”74

After taking into consideration of what has been stated above, it becomes easier to
answer the question from which the discussion initiated. And the answer can safely be
concluded as, “The status of the personal laws, at present, is separately recognized and
maintained by the Constitution.” Therefore, Chagla, C.J. and Gajendragadkar, J., in
Narasu Appa Mali, ruled that the personal laws are not ‘laws in force’ and hence they are
not void even when they come into conflict with the Fundamental Rights. 75 The view

72
See, “Baseline Report on Rights of Women in Relation to Marriage in India”, prepared by Association
for Advocacy and Legal Initiatives (AALI) and coordinated by International Women’s Right Action Watch
(IWRAW) Asia Pacific, Kuala Lumpur, Malaysia, (Advanced Unedited Version), at p 3.
73
Smt. Sarala Mudgal, President, Kalyani and others v. Union of India and others, AIR 1995 SC 1532,
Para 37 and 38, at p 1539.
74
See, Lily Thomas, etc. etc. v. Union of India and others, AIR 2000 SC 1650, Para 42, at p 1661.
75
However, at this juncture, it is most important to note that,— (1) The present status of personal law in
India is based on – (a) the ‘differential treatment’ given by the British Administrators to the personal law
and and customs, and (b) the British presumption that all ‘personal laws are religiously ordained.’ For
details, see, Concept of personal law in British India, Para 4.1.3.1, above, at p.112. (2) Nothing stated
above is applicable to Adivasi personal law, since it is not religiously ordained. Adivasi personal law
derives its authority from the customs and usages of the community. Hence, in case of Adivasis no
differentiation can be made between their customary law and personal law. Because their personal law by
itself is the customary law. Since Adivasi personal law is in the form of customs and usages therefore,
“law” within the meaning of Article 13. Therefore, unlike other personal laws, Adivasi personal law can be
declared unconstitutional to the extent it is inconsistent with Part III of the Constitution. For details, see
Personal law of Adivasis and its subject-matter, Para 4.5.2, below, at p 137.

127
taken in Narasu Appa’s case has been confirmed by various High Courts76 and the
Supreme Court77 though not agreed upon by several authorities. 78

4.3 STATUS OF PERSONAL LAW IN INDIA: WHAT IS EXPECTED TO BE?

Article 44 is not only an evidence of the fact that all the Personal Laws are differently
recognized; but it is also a clear proof that the same should not be perpetuated. Article 44
illustrates that the personal laws are of ‘provisional nature’. Because, it was realized that
“one of the factors that has kept India back from advancing to nationhood has been the

76
Srinivasa Aiyer v. Saraswati Ammal, AIR 1952 Mad 192; Ram Prasad v. State of Uttar Pradesh, AIR
1957 All 411; P.E. Mathew v. Union of India, AIR 1999 Ker 345.
77
Krishna Singh v. Mathura Ahir, AIR 1980 SC 707; Ahmadabad Women Action Group (AWAG) & Ors. v.
Union of India, AIR 1997 SC 3614.
The line of thought which has been taken by various courts is adopted by the Supreme Court in Madhu
Kishwar v. State of Bihar, (1996) 5 SCC 125; wherein the discriminatory provisions of the Chota Nagpur
Tenancy Act, 1908 which disentitled the tribal woman from inheritance rights is upholded. (Though, K.
Ramaswami, J., in his dissenting judgement struck down the provisions as unconstitutional.)
78
In Sant Ram, Supra note 62, the Supreme Court stated that, by reason of the word ‘includes’ in Article
13(3)(a), the definition should not be treated ‘exhaustive’. The Calcutta High Court in Ezra v. The State,
AIR 1953 Cal 263, have held that ‘law includes personal law.’ The Supreme Court in, C. Masilamani
Mudaliar v. Idol of Sri Swaminathaswami, AIR 1996 SC 1697, at p 1700 has observed: “Personal laws are
derived not from the Constitution but from the religious scriptures. The laws thus derived must be
consistent with the Constitution lest they become void under Article 13 if they violate fundamental
rights….” The Supreme Court, in this case, while not referring specifically to the principle laid down in
Narasu Appa Mali, (Supra note 30), has impliedly overruled the same.
According to H.M. Seervai, “There is no difference between the expression “existing law” and “law in
force” and consequently, personal law would be “existing law” and “law in force”. This conclusion is
strengthen by the consideration that custom, usage and statutory law are so inextricably mixed up in
personal law that it would be difficult to ascertain the residue of personal law outside them; it was,
therefore, necessary to treat the whole of personal law as existing law or law in force under Article 372 and
to continue it subject to the provisions of the Constitution and subject to the legislative power of the
appropriate legislature. He further stated that, entry 5, List III, Sch. 7 clearly recognizes personal law, as
law which Parliament and State legislatures can enact, alter or repeal. Therefore, he submitted that, the
personal law of a community is “law”, and is “law in force” or “existing law”, within the meaning of the
Constitution.” Seervai, H. M., “Constitutional Law of India”, (2005), Vol. 1, Universal Law Publishing Co.
Pvt. Ltd., Delhi, at p. 677.
D.D. Basu opines that, the decision in Narasu Appa’s case, Supra note 30, that, the rule of Muslim Law
which permits polygamy for men but not for women does not offend against Article 15(1) or that “personal
laws are outside the ambit of Article 15 is ‘highly objectionable’, because enforcement of personal law by
the State involves ‘State action’ under Article 15, and the provision in question not being for the protection
or benefit of women, cannot escape from the bar under Cl. (1) of Article 15.” Basu, Supra note 58, Vol. 2,
at p 1777.
By not interfering in personal laws, says M.P. Jain, “the courts have adopted a policy approach rather
than a legalistic approach.” All this, according to him, is “because of the sensitivities of the people and the
delicate nature of the issue involved, the courts have thought it prudent not to interfere with these laws on
the touchstone of fundamental rights and leave it to the legislature to reform these laws so as to bring them
in conformity with the fundamental rights.” Jain, M.P., “Indian Constitutional Law”, (2005), Wadhwa and
Company, Nagpur, pp 846 – 847.

128
existence of personal laws based on religion which keep the nation divided into water-
tight compartments in many aspects of life.”79 Therefore, Mr. Masani, a member of the
Sub-Committee, suggested a common civil code to all citizens while discussing draft
Article XI.80 But the suggestion was overruled by majority, 81 saying that this was out of
the scope of fundamental rights.82 Nevertheless the provision for a uniform civil code was
included in the directive principles of state policy. 83

When the Draft Constitution was moved for consideration and approval in the
Constituent Assembly, draft Article 35 providing for a uniform civil code was opposed
by four Muslim members on the ground that it would interfere with the way of life and
the religion of the people. This argument was countered by Shri K. M. Munshi, Shri
Alladi Krishnaswami Ayyar and Dr. B. R. Ambedkar: who pointed out that personal law
was never in the purview of religion and as such there was no question of any danger to
the religion. Ultimately, the present Article 44 was adopted on 23rd November 1949,
without any amendment84 which says that, “The State shall endeavour to secure for the
citizens a uniform civil code throughout the territory of India.”

The short historical account, as stated above, makes it clear that the present ‘distinct and
separate status’ of personal laws ‘based on religion’ is not expected to be continued
perpetually. The object of Article 44 is to introduce a uniform personal law for the
purpose of national consolidation. It proceeds on the assumption that there is no
necessary connection between religion and personal law in a civilized society. 85 This fact

79
Minutes of Dissent to the draft report of Sub-Committee on Fundamental Rights: By M.R. Masani, Mrs.
Hansa Mehta and Rajkumari Amrit Kaur, dated April 14, 1947. See, B. Shiva Rao (Ed.), “The Framing of
India’s Constitution: Select Documents”, (2005), Universal Law Publishing Co. Pvt. Ltd., Delhi, Vol. 2, at
p. 162.
80
Draft Article XI: Right to Freedom of Family Relations: (1) Every Person has the right to be free from
interference in his family relations. (2) No marriage valid according to the law of the Union or a State, shall
be dissolved unless permitted by the law of the Union or the law of the State concerned and in accordance
with the forms and under the conditions of the State concerned. See, B. Shiva Rao, ibid, Vol. 2, at p 78.
81
The Minority consisted of Mr. Masani, Rajkumari Amrita Kaur, Mrs. Hansa Mehta and Dr. Ambedkar.
B. Shiva Rao, ibid, at p 128.
82
See, B. Shiva Rao ibid, Vol. 2, at p. 128.
83
B. Shiva Rao, ibid at p 136.
84
See, Meghe, Dinkar R., “Uniform Civil Code and Hindu Personal Law”, (1973), Pathik Prakashan,
Nagpur, at p. 5.
85
Sarala Mudgal, Supra note 73.

129
of separation of religion from personal laws is also clarified in the Constituent Assembly
by K.M. Munshi, member of the Draft Committee. He says, “We want to divorce religion
from personal law, from what may be called social relations, or from the rights of parties
as regards inheritance or succession. What have these things got to do with religion, I
really really fail to understand…… Religion must be restricted to spheres which
legitimately appertain to religion……”86 This is a paradigm shift from the ‘British policy
of duality’ and ‘plurality of personal laws’ to the ‘Indian policy of unification’ of
personal laws.

National policy of unification of personal laws in the form a common civil code is
expressly envisaged in Article 44. Apart from Article 44, there are many other policy
indicators which go on similar line of unification of personal laws and consolidation of
India into nationhood which was, and in fact is, the chief objective of the Uniform Civil
Code. Article 51-A, for example, prescribes the duty of every citizen of India to abide by
the Constitution and respect its ideals; to uphold and protect unity and integrity of India;
and to promote harmony and the spirit of common brotherhood amongst all the peoples
of India transcending religious diversities. The Preamble, which opens the minds of the
makers of the Constitution, evidently makes it clear that, “The people of India have
resolved to constitute ‘secular’ India; and have secured for themselves, amongst other
things, the fraternity assuring the dignity of the individual and the unity and integrity of
the nation.” All these indicators direct the legislature and the executive in what manner
they are to exercise the legislative and the executive power they have.

What has been discussed in the foregoing paragraphs reveals that, though the status of
personal laws, at present, is separately recognized and maintained, but the same is not
expected to be perpetuated. Article 44 directs the State that it shall endeavour to secure
for the citizens a uniform civil code throughout the territory of India. In a joint note of
dissent, Mr. Masani, Mrs. Hansa Mehta and Rajkumari Amrit Kaur stated: “We are of the
view that a uniform civil code should be guaranteed to the Indian people within a period
of 5 or 10 years….” Thus, Uniform Civil Code is not only due, but it is overdue.

86
Cited in, Basu, Supra note 58 Vol. 3, at p. 4136.

130
4.4 GOVERNMENT’S LIP SERVICES VIS-À-VIS JUDICIARY’S LAMENT

Article 37 provides that the principles enshrined in the Directive Principles of State
Policy are not justiciable, but they are nevertheless fundamental in the governance of the
country. It is a ‘moral duty’ of the State to apply these principles in making laws. Dr.
Ambedkar in the Constituent Assembly stated that “the legislature and the executive
should not merely pay lip services to these principles but they should be made the basis
of all legislative and executive action that they may be taking hereafter in the matter of
the governance of the country.”87

A period of more than six decades has elapsed since India got independence.
Unfortunately, the government is merely paying lip services to the principle of uniform
civil code. “The command of Article 44 is yet to be realized.”88 Being dissatisfied with
this attitude of the Government, the Supreme Court many times expressed regret.

The Supreme Court in John Vallamatton89 observed that, “It is a matter of regret that
Article 44 of the Constitution have not been given effect to. Parliament is still to step in
for framing a common civil code in the country.” It reminded that, “A common civil code
will help the cause of national integration by removing the contradictions based on
ideologies.”

In Ms. Jorden Diengdeh v. S.S. Chopra90 the Supreme Court suggested that “the time has
come for the intervention of the legislature in these (judicial separation, divorce and
nullity of marriage) matters to provide for a uniform code of marriage divorce and to
provide by law for a way out of the unhappy situations…”

87
Cited in, Basu, Supra note 58 Vol. 3, at p. 4026.
88
See, S.R. Bommai v. Union of India, AIR 1994 SC 1918, at p 2066.
89
John Vallamatton v. Union of India, AIR 2003 SC 2903 at p. 2913.
90
AIR 1985 SC 935 pp. 940 – 41.

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Chandrachud, C.J., in Shah Bano Begum91 expressed his regret on behalf of the five-
judge Bench of the Supreme Court that, “Article 44 of our Constitution has remained a
dead letter … … There is no evidence of any official activity for framing a common civil
code for the country … … A common civil code will help the cause of national
integration by removing disparate loyalties to laws which have conflicting ideologies. No
community is likely to bell the cat by making gratuitous concessions on this issue. It is
the State which is charged with the duty of securing a uniform civil code for the citizens
of the country and, unquestionably; it has the legislative competence to do so. A counsel
in the case whispered, somewhat audibly, that legislative competence is one thing, the
political courage to use that competence is quite another. We understand the difficulties
involved in bringing persons of different faiths and persuasions on a common platform.
But, a beginning has to be made if the Constitution is to have any meaning. Inevitably,
the role of the reformer has to be assumed by the courts because, it is beyond the
endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But
piecemeal attempts of courts to bridge the gap between personal laws cannot take the
place of a common civil code. Justice to all is a far more satisfactory way of dispensing
justice than justice from case to case.”92

Since rulers of the day are not in mood to retrieve Article 44 from the cold storage where
it is lying since 1949, Kuldip Singh, J., in Sarala Mudgal93 expressed his agony: “One
wonders how long it will take for the Government of the day to implement the mandate
of the framers of the Constitution under Article 44 of the Constitution of India.” 94

4.5 SCOPE AND SUBJECT-MATTER OF PERSONAL LAW IN INDIA

It has already been stated that the term ‘Personal Law’ means the law that governs a
person’s family matters.95 Though, the meaning of the term personal law sheds some
light on its nature and scope, but it does not help to understand its subject-matter. The

91
Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1989 SC 945.
92
Mohd. Ahmed Khan, ibid, Para 32.
93
Sarala Mudgal, Supra note 73.
94
Sarala Mudgal, Supra note 73, Para 32, at p 1538.
95
See, Personal Law, Para 1.7.2, above, at p 29.

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Constitution of India, though, does not define the term personal law, but Entry 5 of List
III of the VII Schedule throws much light on its subject-matter. It says that: “Marriage
and divorce; infants and minors; adoption; wills, intestacy and succession; joint family
and partition; all matters in respect of which parties in judicial proceedings were
immediately before the commencement of this Constitution subject to their personal
law.” What has been stated in Entry 5 of List III of the VII Schedule makes it clear that,
Marriage, divorce, infants, minors, adoption, wills, intestacy, succession, joint family and
partition are the subject-matter of personal law. Apart from these subject-matters of
personal law which are expressly provided, the residuary clause of the Entry further
provides that – “all matters in respect of which parties in judicial proceedings were
immediately before the commencement of this Constitution subject to their personal law.”
The residuary clause, thus, makes it necessary to enter into the pre-constitutional position
of personal laws to ascertain their subject-matter, if any, apart from those specified in the
Entry 5 of List III of the VII Schedule.

4.5.1 Subject-matter of Personal Law: Pre-Constitutional Scenario

It has already been discussed that the initial policy of British rulers in India was of non-
interference in the religious matters and personal laws of the natives. Consonant with this
policy, Warren Hastings expressly prescribed Hindu law for Hindus and Muslim law for
Muslims. 96 The policy of Warren Hastings was given expression in the Act of Settlement,
1781.97 But there is a fundamental difference between Article XXIII of the Warren
Hastings Plan of 1772 and Section 17 of the Act of Settlement, 1781. The scope of
personal law in Warren Hastings plan of 1772 was wider as compared to section 17 of the
Act of Settlement, 1781. The plan of 1772 included matters like inheritance, marriage,

96
Article XXIII of the Warren Hestings Plan of 1772 provides that, “in suits regarding inheritance,
marriage, caste and other religious usages and institutions, the laws of the Koran, with respects to the
Mohammedans, and those of the Shaster with respect to Gentoos, shall be invariable adhered to.” See, Jain,
“Legal History”, Supra note 27 at p. 420.
97
Section 17 of the Act of 1781 provides that, “the Supreme Court was empowered to determine all actions
and suits against the inhabitants of the city of Calcutta: provided that their succession and inheritance to
lands, rents, and goods and all matter of contract and dealing between party to party, should be determined
in the case of Mahomedans by the laws and usage of Mahomedans, and in the case of Gentoo by the laws
and usages of Gentoos; and where only one of the parties should be a Mahomedan or Gantoo by the laws
and usages of the defendant.” See, Jain, “Legal History”, Supra note 27 at p. 411.

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caste and other religious usages or institutions, though it did not include ‘contract and
dealing between party to party.’ Whereas, Section 17 of 1781 Act, reserved indigenous
personal laws to the Hindus and Muslims only in the matters of ‘inheritance and
contract.’

However, so far as personal law of Hindu and Muslims are concerned, the Supreme Court
interpreted section 17 liberally and not literally. It did not restrict application of personal
laws of Hindu and Muslims only in the matters of inheritance and contract, but gave the
benefit of these laws to these communities to all family and religious matters. As Rankin
points out, “We may say with confidence that the family law and religious usages of the
Hindus and Mohammedans have been on the whole as fully respected by courts of law
within Calcutta as elsewhere.”98

Hastings’s policy of preserving the personal law of Hindus and Muslims was reiterated
by Cornwallis. The Cornwallis Code of 1793 says that, “In suits regarding succession,
inheritance, marriage and caste, and all religious usages and institutions, Mohammedan
Law with respect to Mohammedans, and Hindu Law with regard to Hindus, are to be
considered as the general rule by which judges are to form their decisions.” 99

4.5.1.1 Subject-matter of Hindu and Muslim personal laws

In Bengal, the Lord Cornwallis Regulation of 1793 was superseded by the Bengal Civil
Courts Act, 1871, section 24 of which laid down identical subject-matter. This section is
now section 37100 of the Bengal, Agra and Assam Civil Courts Act, 1887. Identical
provisions in regard to Muslim and Hindu laws are provided in section 16101 of the

98
Cited in, Jain, “Legal History”, Supra note 27 at p 411.
99
Jain, “Legal History”, Supra note 27 at p 601.
100
Section 37(1) reads, “Where in any suit or other proceeding it is necessary for a Civil Court to decide
any question regarding succession, inheritance, marriage, or caste, or any religious usage or institution, the
Muhammedan law in cases where the parties are Muhammedans, and the Hindu law in cases where the
parties are Hindus, shall form the rule of decision except in so far as such law has, by legislative enactment
altered or abolished.”
101
“Where, in suit or proceeding, it is necessary for any court under the Act to decide any questions
regarding succession, inheritance, marriage, or caste, or any religious usage, or institution (a) the
Muhammadan law in cases where the parties are Muhammadans and the Hindu law in cases where the

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Madras Civil Courts Act of 1873.102 Section 5103 of the Punjab Laws Act, 1872, and
section 3(b) 104 of the Oudh Laws Act, 1876, defined the subject-matter of personal laws
of Hindus and Muslims in more detail. Thus, the subject-matter of Muslim and Hindu law
can be stated as – succession, special property of females, betrothal, marriage, divorce,
dower,105 adoption, guardianship, minority, bastardy, family relations, wills, legacies,
gifts, partition, or any religious usages or institutions. The subject-matter under Section
5106 of the Central Provinces Laws Act, 1875, is identical in all respects, except that the
word ‘inheritance’ is used instead of ‘succession’; and ‘divorce’ is not mentioned.

parties are Hindus, or any custom (if such be) having the force of law and governing the parties or party
concerned.”
Section 16 must be read subject to Section 6 of the Muslim Personal Law (Shariat) Application Act,
1937, which abolishes, with regard to Muslims, application of ‘custom’ inconsistent with the Mohammedan
law.
102
See, Tiar, Supra note 35 at p. 457.
103
“In questions regarding succession, special property of females, betrothal, marriage, divorce, dower,
adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any
religious usage or institution, the rule of decision shall be – (a) any custom applicable to the parties
concerned, which is not contrary to justice, equity and good conscience, and has not been by this or any
other enactment, altered or abolished, and has not been declared to be void by any competent authority; (b)
the Muhammadan law in cases where the parties are Muhammadans, and the Hindu law, in cases where the
parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is
opposed to the provisions of this Act, or has been modified by any such custom as is above referred to.”
Section 6 of the Muslim Personal Law (Shariat) Application Act, 1937, abolished Muslim customs
which are inconsistent with provisions of Mohammedan law.
104
“In Questions regarding succession, special property of females, betrothal, marriage, divorce, dower,
adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any
religious usage or institution, the rule of decision shall be – (1) any custom applicable to the parties
concerned which is not contrary to justice, equity and good conscience, and has not been, by this or any
other enactment, altered or abolished, and has not been declared to be void by any competent authority; (2)
the Muhammedan law in cases where the parties are Muhammadans, and the Hindu law in cases where the
parties are Hindus, except in so far as such law has been, by this or any other enactment, altered or
abolished, or has been modified by any such custom as is above referred to.”
Section 6 of the Muslim Personal Law (Shariat) Application Act, 1937, abolished Muslim customs
which are inconsistent with provisions of Mohammedan law.
105
Abolished, except in Mohammedan law, by the Dowry Prohibition Act 1961.
106
“In questions regarding inheritance, special property of females, betrothal, marriage, dower, adoption,
guardianship, minority, bastardy, family relations, wills, legacies, gifts, partition, or any religious usage or
institution, the rule of decision shall be Muhammedan law in cases where the parties are Muhammedans,
and Hindu law in cases where the parties are Hindus, except in so far as such law has been by legislative
enactment altered or modified, or is opposed to the provisions of this Act:
Provided that when among any class or body of persons or among members of any family any custom
prevails which is inconsistent with the law applicable between such persons under this section, and which,
if not inconsistent with such law, would have been given effect to as legally binding, such custom shall,
notwithstanding anything herein contained, be given effect to.”

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So far as Muslims are concerned, the subject-matter of their Personal law is defined in
detail in section 2 of the Muslim Personal Law (Shariat) Application Act, 1937.
According to it, the subject-matter of Muslim Personal law is – intestate succession,
special property of females, including personal property inherited or obtained under
contract of gift or any other provision of Personal Law, marriage, dissolution of marriage,
including talaq, ila, zihar, lian, khula, and Mubaraat, maintenance, dower, guardianship,
gifts, trusts and trust properties and wakfs (other than charities and charitable institutions
and charitable and religious endowments). However, questions relating to agricultural
lands are not covered in the subject-matter of Muslim Personal law.

Out of the vast galaxy of personal law and its subject-matter, in the post-constitution
period, few aspects of Hindu personal law are codified. Thus the subject-matter of
codified Hindu Law consists of – marriage and divorce,107 succession,108 minority and
guardianship, 109 adoption and maintenance.110

4.5.1.2 Subject-matter of Christian and Parsi personal laws

As far as Christians are concerned, the Indian Christian Marriage Act, 1872 and the
Indian Divorce Act, 1869 provides marriage and divorce as the subject-matter of their
personal law.

Subject-matter of Parsi personal law is marriage, 111 divorce112 and intestate succession.113

107
The Hindu Marriage Act, 1955.
108
The Hindu Succession Act, 1956.
109
The Hindu Minority and Guardianship Act, 1956.
110
The Hindu Adoptions and Maintenance Act, 1956.
111
The Parsi Marriage and Divorce Act of 1936, repealing and re-enacting the Parsi Marriage and Divorce
Act, 1865.
112
Ibid.
113
The Indian Succession Act 1925, sections 50 – 56, repealing and re-enacting the Parsi Intestate
Succession Act, 1865.

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4.5.2 Personal Law of Adivasis and its Subject-matter

“Personal Law”, as has already been defined, is “the law which governs certain aspects of
a person’s status or relationships or rights or privileges in regard to certain matters such
as succession, marriage, etc by virtue of his belonging to a particular community or
group.”114 Here it becomes essential to see the source from which the personal law
derives its force—the force of law. On this aspect, at least in India, it is submitted, that no
proper attention has been given so far. Till today it is believed that “all personal laws are
religiously ordained”. Therefore, the source of personal laws is religion. The Second Law
Commission stated that, “The Hindu and Mohammedan law derive their authority
respectively from the Hindu and Mohammedan religion.”115 Even the Supreme Court in,
C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami 116 has observed: “Personal laws
are derived not from the Constitution but from the religious scriptures.” It is thus
believed that, personal law derived its force from the religion and that the customs and
usages are but exceptions to it. Chagla, C.J., in The State of Bombay v. Narasu Appa
Mali117, stated in explicit terms that, those who hold a view that “Personal law is nothing
else than custom or usage” hold an “erroneous view”. He further stated that: “Custom or
usage is deviation from personal law and not personal law itself. The law recognizes
certain institutions which are not in accordance with religious texts or are even opposed
to them because they have been sanctified by custom or usage, but the difference between
personal law and custom or usage is clear and unambiguous.”118 It is submitted that, this
view is “half-truth” and is based solely on the presumption that, “all personal laws are
religiously ordained”. The view of Chagla, C.J. is true in case of communities like
Hindus or Muslims having their religious scriptures. But it is wrong in case of
communities having no religious scriptures, for example, Adivasis. The personal law of
Adivasis does not derive its force from religion. On the contrary, the personal law of
Adivasis derives its force from the customs or usages of community. Therefore, customs
or usages of Adivasis are not, as Chagla, C.J., calls, “deviations” from personal law but

114
See, Personal Law, Para 1.7.2, above, at p 29.
115
Cited in, Srivastava, Supra note 17 at p. 556.
116
AIR 1996 SC 1697, at p 1700.
117
AIR 1952 Bom 84.
118
Ibid .

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they themselves constitutes ‘Personal law’. And for argument sake, even if it is accepted
that the customs and usages of Adivasis are deviations from their personal law, then the
question naturally arises: ‘Which is that personal law of which their customs or usages
are deviations?’ It is submitted that, there is no answer to this question except to accept
the fact that their customs and usages are not deviations from the personal law but that
these customs or usages by themselves constitute the personal law of the Adivasis. Since
Adivasi personal law is in the form of customs and usages therefore, “law” within the
meaning of Article 13. Therefore, unlike other personal laws, Adivasi personal law can
be declared unconstitutional to the extent it is inconsistent with Part III of the
Constitution.

Though Article 13 of the Constitution elevated the customs of Adivasis to the status of
law, but it is to be noted that all of their customs, such as the customs relating to the
criminal law and the customs regarding the entire civil law, for example, land resource
rights, have not been elevated to the status of law. It is only those customs which fall
within the realm of ‘personal law’119 that have been given such effect of the law. And in
order to ascertain the subject-matter of Adivasi personal law it is necessary to ascertain
which are those customs that fall within the realm of personal law. Entry 5 of List III of
the VII Schedule to the Constitution makes the picture much clear. Accordingly, Adivasi
customs relating to marriage and divorce; infants and minors, adoption; wills 120, intestacy
and succession; joint family and partition are those customs which come within the realm
of their personal law.

119
Here the word Personal Law is used as equivalent to term Family Law which can generally be defined
as the body of laws relating to the organization of the family.
120
Customary personal law of Adivasis do not recognises right of a person to dispose off his property by
way of will or any other instrument adversely affecting the rights of the heirs. Therefore, ‘will’ does not
form its subject-matter.

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