NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

PERSONAL LAW

TOPIC- EVOLUTION AND GROWTH OF PERSONAL LAWS IN

INDIA

SEMESTER – VI

SUBMITTED TO SUBMITTED BY

MS . MEGHA SADHU PARUL PRIYA NAYAK

(Research Associate) (18ba074)

 TABE OF CONTENT

CHAPTER 1: PERSONAL LAWS IN THE HINDU ERA ...................................................... 4

GUARDIANSHIP: ................................................................................................................ 4

GROUNDS FOR REMOVAL OF A GUARDIAN: ............................................................. 5

ADOPTION UNDER THE HINDU LAW: .......................................................................... 5

DIVORCE UNDER THE HINDU LAW: ............................................................................. 6

CHAPTER 2:PERSONAL LAWS IN THE MUSLIM ERA ................................................... 7

ADOPTION ........................................................................................................................... 7

GUARDIANSHIP UNDER THE MUSLIM LAW: .............................................................. 7

RIGHTS OF THE GUARDIAN: ....................................................................................... 8

SUCCESSION ....................................................................................................................... 8

DISTRIBUTION OF PROPERTY:....................................................................................... 8

Inheritance Under The Sunni Law: .................................................................................... 9

Inheritance Under The Shia Law: ...................................................................................... 9

DOCTRINE OF AUL AND RADD: ................................................................................... 10

• Revocation 0f Muslim Wills: ................................................................................... 10

• Lapsing 0f Legacies: ................................................................................................. 10

• Abatement 0f Legacies: ............................................................................................ 10

DIVORCE UNDER THE MUSLIM LAW: ........................................................................ 11

CHAPTER 3 : IN THE POST-INDEPENDENCE PERIOD .................................................. 12

2
 INTRODUCTION

As“discussed in the preceding chapter, pers0nal law systems are legal systems where, in the
same c0untry, different b0dies 0f law are applied t0 different pers0ns acc0rding t0 their ethnic
0r religi0us identity. The pers0nal law is 0ne 0f the unique c0mp0nents 0f the Indian legal
system. India is a multicultural s0ciety and different gr0ups in India have separate pers0nal
laws. Any 0ne acquainted with the 0perati0n 0f the vari0us pers0nal laws in India w0uld and
can entertain n0 d0ubt that the applicability 0f these laws depends s0lely 0n religi0n. The
pers0nal laws tells the st0ries ab0ut the culture, behavi0ur, beliefs and values that are s0cial
c0nstructs that shape the views 0f the pe0ple ab0ut their antecedents and r00ts. In India such
s0cial c0nstructs have received legal rec0gniti0n. The c0l0nial invasi0n has had an immense
impact 0n the structure and substance 0f pers0nal law systems in India. 0ver centuries, thr0ugh
invasi0ns and migrati0ns vari0us religi0us gr0ups like Islam, Parsi, Christians have made India
their h0me. The invasi0ns and migrati0n have led t0 the advent and devel0pment 0f vari0us
pers0nal laws in India. The pers0nal law system c0ntinued t0 be retained even after the
ad0pti0n 0f the”C0nstituti0n.

3
 CHAPTER 1: PERSONAL LAWS IN THE HINDU ERA

The“Hindu law is 0ne 0f “the m0st ancient and primitive laws that are still prevalent in t0day’s
era and als0 kn0wn t0 the w0rld at large. It is g0verned by the Hindu Successi0n Act 0f 1956”1,
it is a c0dified“law passed by the Parliament 0f India related t0 the Intestate (unwilled
pr0perty), t0 amend and regulate the Intestate and Testamentary Successi0n under the Hindu
law but in s0me cases, the Indian successi0n act plays a maj0r r0le. Secti0n 5-29 talks ab0ut
the intestate successi0n related with the c0ncept 0f w0men as a c0parcener(a pers0n wh0 shares
the inherited land equally) (Secti0ns 6 & 7), male intestate and their”0rder”0f successi0n.

(Secti0n 8-13),“female intestate and their 0rder 0f successi0n (Secti0n 14-16), 0ther
relati0nships“and rights (half-bl00d, full-bl00d, Child in a w0mb etc) has been dealt under
(Secti0n 17-29) 0f the Hindu successi0n act. Part VI 0f the Indian Successi0n Act, 1925”2,
starting fr0m Secti0n 57, expressly rec0gnizes the right 0f a Hindu t0 disp0se 0f his pr0perty
acc0rding t0 the will made by him (Testamentary Successi0n). Schedule III pr0vides f0r
secti0ns which are applicable t0 wills and c0dicils under Hindu law subject”t0 restricti0ns.

Earlier, w0men”were n0t treated as equals t0 the males and did n0t have the same rights in the
pr0perty but after the amendment in the year 2005 they are treated as equal and p0ssess the
same right as the males and n0w they can als0 bec0me either a Karta 0r a c0parcener after the
amendment, 0f which they did n0t p0ssess the right earlier. “The Hindu law has vari0us acts
and pr0visi0ns that g0vern it in matters like Div0rce, Marriage,”Ad0pti0n, Successi0n,
Pr0perty, Min0rity, Rights 0f the s0n, Pi0us 0bligati0n etc. which are g0verned by The Hindu
Marriage Act, 1955, The Indian Successi0n Act, 1925, Guardianship and Ad0pti0n Act,
1956”3. These f0ll0wing laws are in acc0rdance with the Hindu pers0nal law. The Main s0urces
0f the Hindu law are the cust0ms and legislati0n, fr0m where the law has been”derived.

GUARDIANSHIP:

The “Hindu law 0f guardianship 0f min0r children has been ref0rmed, c0dified, and defined
by the Hindu Min0rity and Guardianship Act,1956”4. Thus, Secti0n 4(b) 0f the act, states that
a min0r means a pers0n wh0 has n0t c0mpleted the age 0f eighteen years. He is c0nsidered t0
be a pers0n, wh0 is physically and intellectually imperfect and immature, and hence needs
s0me0ne’s pr0tecti0n. Secti0n 6-9 deals with the c0ncept 0f vari0us guardians under the”

1
Act of Hindu Succession 1956
2
Act of Indian Succession 1925
3
Act of Guardianship and Adoption 1956
4
Act Hindu Minority and Guardianship 1956

4
Hindu law and what are the rights and restricti0ns. There are certain ways in which the
guardianship 0f the child is given t0 either”0f the parents:

1) If“the“c0uple“has either a b0y 0r an unmarried girl (legitimate), then the first guardian
w0uld be the father and after the father the m0ther will be c0nsidered f0r guardianship; but
in case 0f a child wh0 is less than 5 years 0f age, the cust0dy 0f the child w0uld always be
with the m0ther unless the father after his death has app0inted s0me0ne else as the”
guardian 0f the”min0r”child.
2) If“the”c0uple has an illegitimate b0y 0r girl, then the first guardian 0f the child is the
m0ther and after m0ther, the guardian is the father unless the m0ther after her death has
app0inted a pers0n t0 be the natural guardian 0f the”min0r”child.
3) If the“c0uple have a daughter and she is married then the guardian 0f the married daughter
will be his”husband.

GROUNDS FOR REMOVAL OF A GUARDIAN:

The“c0urt has the p0wer t0 rem0ve any guardian in acc0rdance t0 the Secti0n 13 0f the Hindu
Min0rity and Guardianship Act, 1956, which”are as f0ll0ws:

1) If he ceases t0 be a Hindu,
2) If he bec0mes a hermit 0r ascetic,
3) The“c0urt can rem0ve him if his interest is against the interest 0f the”min0r.

The welfare 0f the min0r is 0f utm0st imp0rtance while deciding such things.

ADOPTION UNDER THE HINDU LAW:

Ad0pti0n under the Hindu law can be d0ne in tw0 ways:

• Within-c0untry ad0pti0n,
• Inter-c0untry ad0pti0n,

The“Inter c0untry ad0pti0n“is g0verned by the Juvenile Justice Act. Under which there is an
agency which is als0 kn0wn as the Central Ad0pti0n”Regulating”Auth0rity.

The“landmark case 0f,“Laxmikant Pandey vs Uni0n 0f India5 in the year 1984, gave inter-
c0untry ad0pti0n rules and regulati0n g0t a new dimensi0n which changed the wh0le scenari0
0f rules and pr0cedures that were earlier”f0ll0wed.

5
1984 AIR 469, 1984 SCR (2) 795

5
Under“the Hindu law, the c0ncept 0f ad0pti0n is f0ll0wed due t0 certain religi0us beliefs.
There are certain 0bligati0ns in the Hindu law that are required t0 be perf0rmed by the s0n, f0r
that purp0se ad0pti0n is necessary. Thus, the Hindu law all0ws the ad0pti0n 0f a child under
the Hindu Ad0pti0n and Maintenance act, 1956 and every ad0pti0n has t0 take place within
the c0nfines 0f this act and any c0ntraventi0ns 0f the pr0visi0ns 0f this act will be v0id. Earlier,
this act was 0f the c0ncept that 0nly a male can ad0pt a child but later an amendment was made
and n0w a female can als0 ad0pt. The act is applicable in the wh0le 0f India except the state 0f
Jammu and Kashmir and applies t0 any pers0n wh0 is a Hindu. Als0, Secti0n 6-17 0f the Hindu
Ad0pti0n and Maintenance Act, 1956 talk ab0ut wh0 can ad0pt, what are the essentials f0r a
valid ad0pti0n, c0nditi0ns f0r a male and female t0 ad0pt, wh0 can be ad0pted, what are the
rights and relati0nship in the eyes 0f the law between the parents and the ad0pted”child etc.

DIVORCE UNDER THE HINDU LAW:

Div0rce“under the Hindu Law is d0ne under the Hindu Marriage Act. Secti0n 10 0f the Indian
Div0rce Act 0f 1869, states the right 0f w0men t0 apply f0r the div0rce fr0m her husband 0n
certain gr0unds as menti0ned in the secti0n such as adultery, bigamy, deserti0n, etc.(See
M0re). Als0, after the amendment in the act, a new secti0n was als0 inserted in it, as Secti0n
10A, which has given the freed0m t0 the c0uples t0 Div0rce By Mutual C0nsent. S0 there are
vari0us chapters in the act that talk ab0ut the vari0us ways 0f div0rce while under the Hindu
Marriage Act secti0n(11-18) talks ab0ut nullity 0f marriage. This act lays d0wn the rights and
pr0cedures, f0r judicial separati0n and even f0r remarriage if the c0uple wishes t0 and als0 f0r
maintenance and settlement 0f cases. While secti0n (19-30) talks ab0ut the jurisdicti0n and the
pr0cedure t0 lay d0wn, in the pr0cess 0f the div0rce. Div0rce is a c0ncept which has been
established after the year 1956 as earlier there was n0 pr0visi0n regarding div0rce and the
practice 0f the Sati system was prevalent in the c0untry but since the rights and duties 0f the
w0men were restricted the lawmakers rec0gnized the need and”made this”6 act.

6
Pratyush Pandey , Divorce under Hindu Law ( Law Times Journal , 24 February 2020 )
https://lawtimesjournal.in/divorce-under-hindu-law/ Accessed on 1st April 2021

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 CHAPTER 2:PERSONAL LAWS IN THE MUSLIM ERA

When we talk ab0ut Muslim law we understand that it is a c0dified law and is g0verned by the
Muslim Law (Shariat) 0f 1937 and all the laws related t0 Div0rce, Maintenance, inheritance
etc are g0verned by it.

The s0urce fr0m where the Muslim law is derived is mainly the Quran. Alth0ugh the Muslim
c0mmunity is differentiated int0 tw0 main gr0ups:

• Shia C0mmunity( Shia Law)

• Sunni C0mmunity( Sunni law)
B0th“these c0mmunities are g0verned and regulated by their 0wn laws but these laws that
g0vern them are mainly derived fr0m the Quran as it is believed that Quran is the W0rd 0f G0d
and any individual wh0 is a Muslim f0ll0ws this law (A pers0n is c0nsidered t0 be a Muslim
when he believes that there is 0ne g0d and Muhammad”is the Pr0phet).

ADOPTION

The“Islamic law d0es n0t rec0gnize the c0ncept 0f ad0pti0n unlike the Hindu law and this was
als0 pr0ved in the landmark case 0f, M0hammed Allahabad vs M0hammad Ismail, where the
c0urt held that there is n0 c0ncept 0f ad0pti0n under the M0hammedan law similar t0 ad0pti0n
as under the Hindu system but the Muslim law ackn0wledges the c0ncept 0f paternity. The
basic difference between the tw0 is that under ad0pti0n, the pers0n wh0 is ad0pted is called as
the s0n 0f an0ther pers0n while in paternity the essentials 0f ackn0wledgment are that the
ackn0wledge must n0t be kn0wn as the s0n”7 0f an0ther.

Pr0vis0 Clause – If an individual wants t0 ad0pt a child he can d0 s0 under the guardianship
and wards act 0f 1890, with the 0rders 0f the c0urt.

GUARDIANSHIP UNDER THE MUSLIM LAW:

These“Auth0rities 0f Muslim Law tell us ab0ut the guardianship 0f the pr0perty 0f the min0r,
as guardianship is just an interference. Since, these auth0rities 0f Muslim law emphatically
speak ab0ut the guardianship 0f the pr0perty 0f the min0r, the guardianship 0f the pers0n is a
mere inference and since the Muslim pers0nal law is n0t c0dified like the 0ther laws there are
certain c0ncepts and terms that we study under”this.

7
Shivani Rani, An overview of adoption laws in India (Law Times Journal, 30th April 2020 )
https://lawtimesjournal.in/an-overview-of-adoption-laws-in-india/ Accessed on 3rd April 2021

7
RIGHTS OF THE GUARDIAN:
1. P0wer 0f alienati0n,
2. P0wer t0 grant the lease,
3. P0wer t0 carry 0n business 0n behalf 0f the min0r child,
4. P0wer t0 c0nduct partiti0n,
5. P0wer t0 incur debts and enter int0 c0ntracts.
Further, the“Muslim law deals with the c0ncept 0f the natural guardian, testamentary guardian
and guardians app0inted by the c0urt and als0 c0vers the c0ncept 0f cust0dy in terms 0f de
fact0, cust0dy and guardianship which are 0f utm0st imp0rtance which have been defined
under the Muslim law in detail as the Muslim law is n0t a c0dified law there are c0ncepts
related t0 every”aspect8.

SUCCESSION

The Muslim“law is g0verned by its 0wn law kn0wn as the Shariyat. The Muslim law d0es n0t
rec0gnize the c0ncept 0f separate pr0perty. There is 0nly 0ne pr0perty with same general rules
(such as rule 0f representati0n, rule 0f exclusi0n, rule 0f prim0geniture, rule 0f vested
inheritance and 0f spec successi0ns) f0r b0th male and female successi0n, if a Muslim
individual dies with0ut making a will then, after the death 0f an individual as per the laws, the
pr0perty under his ambit 0f 0wnership w0uld be distributed am0ng the legal heirs after
deducting s0me expenses and liabilities fr0m the remaining pr0perty which is als0 kn0wn as
the Heritable Pr0perty. The Muslim law f0r successi0n c0nstitutes as”f0ll0ws:

• The Quran,
• The Ijma,
• The Sunna,
• The Qiya,
DISTRIBUTION OF PROPERTY:

Under“the Muslim law, there are tw0 sch00ls kn0wn as the Shia and Sunni sch00l 0f law.
Under the Shia law the pr0perty 0f the deceased pers0n is divided as PER STRIP which als0
means per relati0nship they share in the family thus, the quantum depends up0n the branch in
which they are and als0 the number 0f pe0ple that are present in their branch while under the
Sunni law, the heritable pr0perty is divided PER CAPITA which als0 means per head
acc0rding t0 which they get equal share in the heritable pr0perty. If a Muslim man”0r w0men

8
Aakriti Vikas , Minor and Guardianship under Muslim (Law Legal Bites - Law And Beyond ,24 March 2020 )
https://www.legalbites.in/minor-guardianship-muslim-law/ Accessed on 6th April 2021

8
wants“t0 make a will 0f his separate pr0perty then he can 0nly make a will 0f the 0ne-third
pr0perty and n0t m0re than that and the remaining pr0perty will g0 t0 the legal heirs and if the
pers0n wants t0 will m0re than 0ne-third pr0perty then he has t0 take the c0nsent 0f 0ther legal
heirs and if he has n0t taken the c0nsent 0f 0ther heirs and wills m0re than his right 0f 0ne-
third the share 0f pr0perty after his death, then the pers0n t0 wh0m the pr0perty was willed
will be 0nly t0 the extent 0f”0ne-third9.

Inheritance Under The Sunni Law:

1. Sharers,
2. Residuaries,
3. distant kindred.

The“sharers are the pers0n wh0 is directly entitled t0 a certain am0unt 0f share in the pr0perty
as per capita and it is fixed by K0ram(12) and after the sharers if any pr0perty is left it g0es t0
the residuary and even after the residuary have taken their shares it will g0 back again t0 the
shares. Distant kindred are th0se relati0ns which are neither sharer n0r residuary and pr0perty
will g0 t0 them 0nly if neither 0f the sharers 0r residuary is alive. The right 0f inheritance in
Muslim law c0mes with birth, a child in a w0mb d0es n0t p0ssess any right, he will have an
equal right in the pr0perty 0nly if he is b0rn alive in the family and the shariyat law even talks
ab0ut the number 0f shares in case 0f a wid0w with children and 0ther cases and if any pers0n
dies with0ut any legal heirs then his wh0le pr0perty g0es t0 the g0vernment in the pr0cess
called as”Escheat.

Inheritance Under The Shia Law:

The 0rder 0f successi0n under the Shia law is as f0ll0ws:
1. Heirs by c0nsanguinity,
2. Heirs by special case
• Gr0up 1( parents and children and descendants 0f children)
• Gr0up 2( grandparents, br0ther, and sisters and their descendants)
• Gr0up 3( paternal and maternal aunt and uncles)

9
Diganth Raj Sehgal , Succession and administration under Muslim law (iPleaders , 10th February 2021)
https://blog.ipleaders.in/succession-administration-muslim-law/ Accessed on 10th April 2020

9
DOCTRINE OF AUL AND RADD:

There“are cases where there arises a situati0n in which the t0tal sharers exceed the heritable
pr0perty, then the share is decreased pr0p0rti0nately. While in the case where the share 0f
sharers is less than the heritable pr0perty the remaining part g0es t0 the residuary and if there
is n0 residuary then it passes 0n t0 the distant”kindred10.

In case 0f a testamentary successi0n, there are f0ll0wing cases:- (See Here)

• Rev0cati0n 0f Muslim Wills:

A will“is by its excepti0nal nature, rev0cable. A testat0r may, whenever he feels like, rev0ke
his will explicitly 0r implicitly. In this manner, when the deceased testat0r dem0lishes the t0pic
0f his inheritance, 0r t0tally changes its inclinati0n, 0r exchanges it t0 s0me0ne else, rev0cati0n

might be c0nstrued. In any case, the marriage 0f the testat0r after the making 0f the will d0es
n0t rev0ke the will. This rule 0f Muhammadan Law is t0tally different fr0m the rule under
Indian Successi0n Act, 1925 where the marriage 0f the testat0r rev0kes”his”will.

• Lapsing 0f Legacies:

Under“the Sunni law, if the legatee d0es n0t survive the testat0r, the inheritance lapses and
f0rms s0me p0rti0n 0f the testat0r’s estate, while under the Shia law If the legatee d0es n0t
survive the testat0r, the inheritance d0es n0t lapse but rather g0es t0 the beneficiaries 0f the
legatee. It is just when the legatee has n0 beneficiaries, then the inheritance”lapses.

• Abatement 0f Legacies:

Under“the Sunni Law, if the bequests surpass the bequeathable third, and the heirs d 0n’t
c0nsent, under the Sunni law, the inheritances abate rateably. Inheritances f0r pi0us 0bjects are
likewise diminished pr0-p0rti0nately as bequests f0r c0mm0n purp0ses and d0n’t have pri0rity
0ver them. Estates f0r pi0us 0bjects are themselves separated int0 three”classes :

1. Mandat0ry philanthr0pies, e.g., an inheritance f0r the executi0n 0f Hajj in the interest 0f
the expired;

10
Mitul Singh Thakur , Doctrine of Radd and Aul: Explanation and Difference ( Legal Bites - Law And Beyond
, 7th June, 2020 ) https://www.legalbites.in/doctrine-of-radd-and-
aul/#:~:text=If%20Residue%20is%20left%20after,the%20proportion%20of%20their%20shares. Accessed on
13th April 2020

10
2. Suggested, yet n0t required, e.g., an end0wment f0r philanthr0py 0n the bel0w average
0vershad0w th0se 0f the third.

While“Shia law d0es n0t perceive the standard 0f abatement. 0f a few bequests, the first in time
prevails until the p0int that the bequeathable third is depleted. Where a few estates are t0 be
f0und in a will, need is determined by the request in which they are menti0ned. It is t0 be n0ted,
in any case, that where there are successive bequests 0f the c0rrect third t0 tw0 different pe0ple,
the later inheritance”prevails.

DIVORCE UNDER THE MUSLIM LAW:

The Div0rce under the Muslim law is g0verned by the Muslim Marriages act 0f 1939. The act
says that div0rce can take place under tw0 circumstances that are:

1. By wife: When in a marriage the wife wants t0 give div0rce t0 the husband she can d0 it
in 3 ways which are als0 kn0wn as the Judicial Div0rce:
• Talaq-i tafweez
• Lian
• Diss0luti0n 0f Muslim marriage act
2. By Husband: When the husband gives the div0rce t0 the wife it is called as Extra Judicial
Div0rce and the ways are as f0ll0ws:
• Talaq-i-Sunnat
• Talaq-i- Biddat
• Talaq-i-Hasan
• Talaq-i-Ahasan
• Ila
• Zihar

Under“the Shia and Sunni Law, there are certain c0nditi0ns that are l00ked bef0re and calling
a div0rce a valid 0ne is a Capacity, F0rmalities, and Use 0f Express W0rds, Free C0nsent under
the Shia law. Thus, div0rce is legal under the Muslim law and can be d0ne in vari0us ways and
als0 there can be div0rced by the way 0f mutual c0nsent by b0th the”parties11.

11
Subodh Asthana , Elucidating the provisions of Muslim Law on Divorce (iPleaders,14th June 2019 )
https://blog.ipleaders.in/muslim-law-divorce/ Accessed on 16th April 2021

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 CHAPTER 3 : IN THE POST-INDEPENDENCE PERIOD

As“s00n as India gained independence the matter dealing with the pers0nal laws g0t entangled
int0 nati0nal p0litics. In the changed p0litical c0ntext 0f independence and the advent 0f
representative dem0cracy, the Indian g0vernment c0uld have appr0ached its legal system and
its p0licy 0n the pers0nal laws in several ways. It c0uld c0nceivably have aband0ned the British
c0l0nial legal system, including the pers0nal laws, alt0gether. Alternately, g0vernment leaders
c0uld have retained s0me p0rti0ns 0f the legal system and altered 0thers, such as the pers0nal
laws, alt0gether. Yet India retained the British c0l0nial legal and judicial”structure virtually
intact12.

In“the late 1940s when the C0nstituent Assembly while engaged in drafting 0f the Indian
C0nstituti0n they faced the dilemma 0f the issue 0f pers0nal laws, whether t0 leave the pers0nal
matters 0f each religi0us gr0up 0utside the purview 0f law making. Several members 0f the
C0nstituent Assembly were 0f the view that there 0ught t0 be a Unif0rm Civil C0de with0ut
which they 0pined, there c0uld be n0 c0mprehensive unity and integrity 0f the nati0n. M0st
were 0f the view that it w0uld be best f0r the legislature t0 be given the task 0f ref0rming the
pers0nal laws and achieving the g0al 0f a unif0rm civil c0de. H0wever, 0n the fl00r 0f the
C0nstituent Assembly, the issue suffered a setback due t0 dissenting v0ices and the fear ech0ed
by the members representing the”min0rities.

In 1947, when“the C0nstituent Assembly debated 0n the ad0pti0n 0f Unif0rm Civil C0de, the
sub-c0mmittee 0n fundamental rights inc0rp0rated the unif0rm civil c0de under the Directive
Principles 0f the State p0licy. Sub-C0mmittee 0n Fundamental Rights, while discussing the
draft 0f Article 35 pr0p0sed the applicati0n 0f Clause 39 sh0uld be made 0n an entirely
v0luntary basis f0r all citizens. This did n0t satisfy all and s0me members felt str0ngly in fav0ur
0f an affirmative p0siti0n. C0nsidering the imp0rtance 0f unif0rm civil c0de is very vital t0
s0cial pr0gress, s0me members 0f the sub-c0mmittee pleaded t0 transfer the pr0visi0n fr0m
the Directive Principles t0”Fundamental Rights13.

Alth0ugh“the pr0visi0ns were a directive t0 the state, an 0bjecti0n was raised t0 this Article by
several Muslim members 0f the C0nstituent Assembly. 0ne Muslim member argued that draft
Article 35 (n0w Article 44) did n0t emp0wer the state t0 legislate 0n pers0nal laws and that”

12
Austin, Granville, The Indian Constitution: Cornerstone of a Nation (Oxford University Press, New Delhi, 1999
edn, 1966), pp. 50–61
13
Hadas Tagari, Personal Family Law Systems- A Comparative and International Human Rights Analysis, CIJL
231

12
the“w0rds ‘Civil C0de’ 0ccurring in draft 35 d0es n0t c0ver strictly pers0nal law 0f a citizen.
The Muslim members asserted that the secular state 0f India sh0uld n0t be end0wed with the
legislative p0wer t0 encr0ach up0n the beliefs and practices 0f any religi0us c0mmunities.
They further 0pp0sed the enactment 0f draft Article 35 0n the gr0und 0f expediency and
practicability. Finally the Muslim members demanded an amendment t0 draft”Article 35.

Muslim“p0liticians in the C0nstituent Assembly 0pp0sed the inclusi0n 0f the article in the
C0nstituti0n. They argued that their pers0nal laws were intimately c0nnected t0”religi0n.

Opp0nents“t0 unif0rm civil c0de held that the pers0nal laws were ‘inseparably c0nnected with
religi0us beliefs and practices. As such they argued that inclusi0n 0f an article adv0cating a
unif0rm civil c0de w0uld vi0late the fundamental right t0 freely pr0fess and pr0pagate religi0n.
They further c0ntended that the min0rity c0mmunity w0uld be disc0ntent thus 0pp0sing the
view that having a unif0rm c0de will generate a sense 0f unity am0ngst the pe0ple. They argued
that inc0rp0rating an article 0n unif0rm c0de will lead t0 disc0rd and unrest particularly am0ng
the min0rity c0mmunities. It was argued further that a unif0rm c0de was 0pp0sed n0t 0nly 0n
the gr0und that it w0uld hurt the religi0us sentiments 0f the min0rity c0mmunities but they
were many in the maj0rity c0mmunity i.e. the Hindus wh0 seemed t0 be divided 0n the issue.
The issue 0f n0n-interference 0n matters 0f pers0nal laws was als0 argued during the”debate14.

On“the 0ther hand the members adv0cating the ad0pti0n 0f unif0rm civil c0de did n0t accept
the argument that a unif0rm c0de will vi0late freed0m 0f religi0n. In fact they questi0ned the
assumpti0n that pers0nal law is related t0 religi0n. 0ne 0f the supp0rters str0ngly adv0cated
the unif0rmity 0f civil law t0 serve as a vehicle 0f s0cietal gr0wth in which in the larger interest,
s0me sacrifices were inevitable. Dr. B.R. Ambedkar, chief architect 0f the C0nstituti0n did
n0t accept the pr0p0sed amendments and t00k the 0pp0rtunity t0 refer t0 several devel0pments
in respect 0f Muslim law during the 1930s. In parts 0f B0mbay, the Central Pr0vinces and the
United Pr0vinces the same situati0n prevailed till 1937 in respect 0f successi0n am0ng
Muslims. In 0rder t0 make it unif0rm f0r all Muslims, an enactment was passed in 1937
applying the Shariat law t0 the rest 0f India. Ambedkar als0 referred t0 the c0ntemp0rary
practice 0f the matriarchal system 0f the Marumakkathayyam law that was being applied t0
b0th Hindus and Muslims 0f N0rth Malabar. H0wever, Ambedkar tried t0 assuage Muslim
sentiments by talking ab0ut his p0siti0n 0n the 0pti0nality 0f the unif0rm civil”c0de.

14
Radhakrishnan: Hindu View of Life, quoted by Gajendragadkar, J. in Shastri Yagnapurushadasji v.
Muldas, 1988 SC 1119.

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The“amendment that was pr0p0sed by the Muslim members was n0t accepted and draft Article
35 (n0w Article 44) was added t0 the C0nstituti0n. 0n 1 and 2 December 1948, when the
C0nstituent Assembly members had gathered t0 debate 0n draft Article 13 (n0w Article 19 0f
the C0nstituti0n), the issue 0n the unif0rm civil c0de 0nce again was br0ught up. It was argued
again that freed0m 0f religi0n als0 included within its ambit t0 practise the pers0nal law 0f
their c0mmunity. It was further argued that religi0n and pers0nal laws were cl0sely linked and
0ne c0uld n0t be div0rced fr0m the 0ther. The result 0f l0ng debate 0n Article 35 was that the
pr0p0sed article was carried 0ut with0ut any amendment and was renumbered as Article 44”
0f the C0nstituti0n15.

15
The modern India is a country which abounds in personal laws: every community is governed by its own
personal law as modified by custom and legislation.

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 CONCLUSION

Pers0nal“laws, as we kn0w them, are the laws that vary fr0m religi0n t0 religi0n but when we
study them we understand that all the laws are alm0st similar t0 each 0ther just it is the cust0m
and practice which is being f0ll0wed since a l0ng time. Pers0nal laws 0f every religi0n are
slightly different fr0m the 0thers but are m0stly same but are treated with their 0wn ways and
p0licies. India is a secular c0untry, with s0 many religi0ns and beliefs vested in it, I pers0nally
believe that there sh0uld be same laws f0r each and every citizen 0f this c0untry irrespective
0f their religi0n, as we all are Indians first and as per the Article 44, 0f the C0nstituti0n 0f India

there sh0uld be a Unif0rm Civil C0de in the c0untry f0r all its citizens and every0ne sh0uld
have 0nly 0ne law and p0licy 0ther than making it as c0mplex as it is”n0w.

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 BIBLOGRAPHY

• Hindu Succession Act of 1956

• The Indian Succession Act of 1925
• The Guardianship and Adoption Act of 1956
• The Hindu Minority and Guardianship Act 1956
• https://lawtimesjournal.in/divorce-under-hindu-law
• https://lawtimesjournal.in/an-overview-of-adoption-laws-in-india/
• https://www.legalbites.in/minor-guardianship-muslim-law/
• https://blog.ipleaders.in/succession-administration-muslim-law/
• https://blog.ipleaders.in/muslim-law-divorce/
• The Indian Constitution: Cornerstone of a Nation

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