PERSONAL AND FAMILY LAWS IN INDIA :

In India since Family Law is a blend of mainstream law for example law which
applies paying little heed to an individual's religion or local area, and individual laws
for example laws which apply dependent on an individual's religion or local area, it is
named 'Family and Personal Laws'.
The Constitution of India ensures to its residents the right to freedom of conscience
and free career, exercise, and propagation of religion, underneath Part III i.e. the
fundamental rights chapter of the Indian Constitution. The Part III of the Indian
Constitution also ensures to its residents the right to equality earlier than the law or
identical safety of the legal guidelines, the prohibition of discrimination on grounds of
religion, caste, intercourse, and so on, the freedom which has within itself the suitable
to degree with dignity and matched with to mention that even Article 25 which offers
the freedom of faith is moreover subjected to the opposite fundamental rights and thus
is not absolute.
So, the next question is What are Personal laws?
Personal legal guidelines are a fixed of legal guidelines that govern and regulate
members of the family bobbing up out of sure factors connecting two individuals or
over two persons. These elements are marriage, blood, and affinity. Moreover, non-
public law governs and regulates topics or regions of a private sphere along with
marriage, divorce, protection, succession, minority, and guardianship, and many
others. Barring few, most of the personal legal guidelines in India are supported
scriptural legal guidelines which are divided and supported by religions. They deliver
norms of governing private relations inside the family founded. Over time, these
norms were given statutory reputation with numerous enactments in the region of
marriage, divorce, protection, inheritance and succession, guardianship, and custody
subjects. Importance of personal law is regularly visible by using its very nature,
composition, and individual and relations to which it’s being carried out. Personal
laws occupy a unique position in these days’s age and it performs a large function to
hold the society in the metropolis bounds. There are few areas in some communities,
which are but to run a legislative shape. It is the political surroundings hampering the
reform in a few personal laws of the country.

India is a country that comprises of human beings following distinctive religions. It is

obvious that on the subject of governing them, spiritual ideals of the people can't be
left out, but the question is what all things must be taken into consideration as
regulation and what now not, now not best this which all sources ought to be looked
upon even as framing laws so that you can govern humans of different religions. The
essential religions in India are Islam and Hinduism. Apart from that, there is a large
amount of populace comprising of Sikhs, Buddhists, Jains, and Christian. Therefore
it's far essential to take a look at all of the sources which might be appeared upon
before framing legal guidelines affecting the lives of human beings specially their
personal subjects like divorce, marriages, inheritances, and so forth.

Hindu Law
Hindu regulation is nothing but the concept of dharma, the idea of dharma in Hindu
law isn't defined exactly but it has come to mean the way of life a person lives and
enjoys, which includes each component of his existence. Right from the start till the
demise of a person the whole lot is protected and ruled with the aid of dharma. In
different phrases, dharma is on occasion said to be the guiding force for all the
Hindus. It incorporates guidelines concerning the right behavior of people, it preaches
love for all people and includes the duties that every character has toward the society
as an entire. Dharma also become the most important regulation which the kings of
historic instances, particularly the Hindu kings used to manipulate the people. All the
laws which had been exceeded needed to be in conformity with the dharma, in easy
phrases the king was no longer above dharma and needed to rule according to dharma.

Scope of Hindu regulation-

Essentially Hindu law includes all the sports and the practices that people were
following every now and then and for this reason becoming customs, however
because the society stepped forward Hindu regulation become majorly used to set up
the brahmin dominance, the idea of caste gadget is likewise an instance of this
underneath which the Brahmins have been placed on the pinnacle and the kings who
had the real electricity below them. Sources of Hindu regulation
Hindu law is made up of various text and scriptures, the boom of Hindu regulation
become both natural and every now and then helped by using the regulation that
became enacted at some point of the British length. Sources of Hindu regulation can
be divided into historical sources and current sources.
Ancient sources encompass religious text including shrutis and the smritis, apart from
that there are numerous Upanishads which also have been part of Hindu regulation.

Shruti as a source of law-

Shruti means to hear, it is derived from the word “shur” which means that to pay
attention. Shrutis are taken into consideration to be the most important supply of
Hindu law. Another time period for Shruti is Veda. In line with Hindu law, there are 4
Vedas particularly, Rigveda, Samveda, Yajurveda, Atharveda. The brahmins used to
pronounce what's written in those Vedas to the human beings. Since brahmins had
been taken into consideration to be informed people something they said changed into
of superb significance and it changed into considered to be the law of the land,
consequently shrutis contain what's written and suggested through the brahmins.
Brahmins also inform us about the duties that the person has to comply with and how
to perform those obligations. The Upanishads include the essence of these
responsibilities. Smriti is derived from “smri” which means that to don't forget. Smrtis
are those parts of shrutis which the sages forgot to tell in their unique shape and
consequently wrote down in the language which they had been acquainted with,
consequently shrutis are taken into consideration to be the idea of smritis. There are 2
varieties of smritis first is Dharmasastras and the opposite is Dharmasutras.
Dharmasastras consists of the guidelines regarding the ethical code of behavior for
Hindus, whereas Dharmasutras consists of the policies regarding authorities, caste, the
relationship between humans, economic affairs, eating conduct, etc. There are many
smritis that one can't count number but the two famous smritis are Yajnavalkya smriti
and manusmriti. Manusmriti is also considered to the primary regulation e-book
written by using Manu.
Digests and Commentaries -
The 0.33 most vital supply of law is the digests and the commentaries written by
using numerous authors of Hindu law. Commentaries usually touch upon the smritis,
the region of commentaries is from the seventh century to 1800 AD. Commentaries
additionally laid the inspiration of numerous schools of Hindu regulation. Digests
contain the vital factors of all the smritis and mentioned their reconciling and
contradictions. Various digests and commentaries have been written via diverse
authors on the 2 maximum famous smritis this is manusmriti and yajnavalkya smriti
namely.

On manusmriti
Medhatithi has written Manubhasya.
Govind Raja has written Manuka.
On yajnavalkya
Vigneshwara has written the well-known statement on Mitakshara.
Arpaka has written Aparaditya.
Customs
Customs are the maximum vital and the oldest form of lawmaking, customs suggest
the traditions, practices, sports, that human beings have been following for
generations and beyond regular time diagnosed as law. The essence at the back of
thinking about customs as a main supply of law is that when you consider that
humans comply with customs and if a few customs are not harmful to society then the
nation has no problem recognizing it. In order, that a custom will become law there
are some essentials which it may fulfill such as a custom ought to be legitimate, it
ought to be in continuity, it ought to be followed with the aid of a massive quantity of
people and closing it have to no longer be discriminating and should now not be
against public coverage.
Indian law has recognized 3 types of custom namely:

1. Local customs- These are the customs that are prevalent in a particular local
area.
2. Class customs- These are the customs that are prevalent amongst a particular
class.
3. Family customs- These are the customs that are binding on the members of the
family.
Modern sources of Hindu law
After the arrival of British many changes were brought in the personal laws of Hindus
and many legislations were also passed, the modern sources of Hindu Law the
doctrine of justice equity good consciousness, legislation, and precedents

Justice Equity and Good Consciousness -

In instances wherein there was no right regulation to settle the disputes nor there was
an present regulation, then the judges used to offer judgments in step with the idea of
Justice Equity and Good Consciousness. This doctrine become primarily based at the
idea of fair play, this doctrine did no longer have a uniform software for the reason
that taking into consideration one judge may be distinct from the alternative, but, this
doctrine played a massive function in transforming the personal legal guidelines of the
Hindus.

Legislations
The regulation way the acts of the parliament, numerous Acts had been surpassed
through the legislature inclusive of the Child Marriage Restraint Act, 1929, Hindu
Successsion Act, 1956, Hindu Marriage Act, 1955, Hindu Minority and Guardianship
Act, 1956. The legislation passed is binding upon all of the other resources of
law.Law is codified this indicates it has been written in a proper way and it has to
everyday and accompanied through all the human beings governing it. In modern-day
times legislation is also referred to as because the lawmaking frame.

Precedents
After the established order of British rule, courts had been mounted and the hierarchy
became added. Precedent method following the choice of the better courts with the aid
of the courts underneath it, if a selected case has already been determined, it seems
reasonable to observe the identical decision if the data of the case are just like the
determined case. In nowadays’s time, the decision of the ideal courtroom is binding
on all the made through different courts.
Schools of Hindu Law
There are two faculties of Hindu Law specifically:

A) Mitakshara faculty
B) Dayabhaga school
1. Mitakshara school
- Mitakshara school derives its name from the statement of
Vijyaneshwara named Mitakshara. Mitakshara college
incorporates policies concerning marriages, department of
society into 4 castes, apart from this it incorporates rites and
rituals which can be to be finished for the duration of
pregnancy, all these rites and rituals are taken into
consideration sacred. Mitakshara school prohibits the
marriage among a shudra and a brahmin, inter-caste
marriages are allowed amongst the higher caste simplest.
2. Dayabhaga School
- Dayabhaga school from Bengal and Assam. Dayabhaga
faculty professes gain for the governance of the regulations of
succession.The instantaneous impact of this faculty changed
into that there was an inclusion of many new human beings in
the list of hires for succession which became not cited in
Mitakshara school. Dayabhaga college preaches common
sense and reason as opposed to precepts and precedents. This
college advocate for extra practical and rational doctrines.
Sources of Islamic Law -
Islamic law is made from various sources Quran the holy text being the main source,
after Quran the primary supply of Islamic law is sunnah, each Quran and Sunnah are
taken into consideration to be the primary source of regulation, other than the number
one source the opposite resources of Islamic regulation consists of ijma and qiyas.

Primary source
Quran - Quran that is the holy e book for Muslims and is the principle supply of
Islamic law. Quran is said to include the direct sayings of Allah through his
messenger Muhammad.Quran incorporates the regulations and policies concerning
the behavior of Muslim human beings and numerous socio-monetary laws. Quran
became compiled quickly after the demise of Muhammad. Quran isn't always a legal
textbook because it best carries the regulations regulating man’s behavior with
himself and God.
Sunnah - After the Quran the principle source of Islamic law is the Sunnah, Sunnah
incorporates the sayings of Muhammad, his day by day sports, his prayer and his
manner of existence. Since Muhammad is considered to be the proper man or women
consequently anything he says, does or advocates to carry out turns into law for the
opposite people. Quran is essentially a religious e-book and consequently it does no
longer incorporate the prison and realistic policies and therefore Muslims refer to
sunnah on troubles wherein the Quran is silent or does not have proper law.
Secondary Sources
 Ijma - Ijma is taken into consideration to be the 0.33 maximum vital supply of
Islamic regulation, ijma refers back to the consensus most of the discovered
Muslim jurists on a particular prison issue. However, there has been a dialogue
amongst numerous jurists whether to do not forget Ijma as a primary source of
law or a secondary source of law. The Sunni jurists recall Ijma as an vital
source of law for making rules, while the Shia jurists consider it as a
secondary source.

 Qiyas- Qiyas is the analogical deduction and is a secondary source of Islamic

regulation. It method deciding cases in step with cause, many Islamic jurists
factor closer to the validity of Qiyas as a primary supply of regulation with the
aid of mentioning the Quran, as Muhammad in the Quran has said that if he is
not capable of solve the dispute through a right injunction then, in that case, he
shall use his reason to clear up it. The major principle behind the idea of Qiyas
is that on the grounds that every injunction is based on some gain of the
people, consequently if a purpose of injunction is taken from a number one
source then the analytical deduction may be applied to cases with similar
causes.

Schools of Islamic law

There are 4 schools of Islamic law namely:

1. The Hanifa School by Abu Hanifa.

2. The Maliki School by Malik ibn Anas.

3. The Hanbali School (teachings of Ahmed ibn Hanbal).

4. The Shafi School founded by Muhammad ibn Idris-ash Shafi.

Scriptures

The Holy Bible is made up of books that had been written over a length of 1000 years.
It carries letters, records, genres, and poetry. The Bible can be divided into two
sections: the first is the old testament and the second one is the new testament which
contains the lifestyles of Jesus and the life of early Christian society. Some Christian
don't forget each word of the Bible accurate while a few bear in mind the literature
because the most important floor for a ethical basis.
Traditions

Initially, traditions have been interpreted as the teachings of Jesus Christ to his
followers and then the followers recited the teachings to the Christian humans,
nowadays it has turn out to be related to the tactics that guide the of various Christian
organizations. Orthodox Christians gave high significance to traditions.

Reasons

Reasons like lifestyle have very excessive significance a few of the Christians, it is
now and again used to get an understanding of the Bible, there might occur conditions
while Bible and Traditions would possibly are available in warfare with motives but
for that reason could be left out.

Experiences

Some human beings also take into account reviews as an essential supply to
understand Christian theology. Experience consists of humans’s wondering, their
mind, and their 5 senses. The purpose behind which include experience as a source of
Christian Theology is that some thing occurs with the man or woman in his life is
actual, it became felt that Christianity must include these reviews in it as properly.

Conclusion

In India, when you consider that there are such a lot of religions it isn't always viable
to have a not unusual supply for the private legal guidelines of various communities
and consequently extraordinary assets ought to be approached whilst making laws for
folks who follow different traditions. Although my personal opinion is a bit specific.
When you have got unique laws governing human beings of the identical nation it
ends in nonuniformity. For a kingdom to increase you want uniformity and
considering the various laws of different countries we find our law is plenty perfect to
the social situations of India.

One of the predominant goals of law is to command obedience and there's no better
manner to demand obedience by making humans observe their own traditions which
they were following for centuries.

The UCC Debate:

Uniform Civil Code (IAST: Samāna Nāgrika Saṃhitā) is an offer in India to
formulate and put into effect secular personal laws of residents which apply on all
citizens equally no matter their faith. Currently, personal legal guidelines of numerous
communities are governed through their religious scriptures. Implementation of a
uniform civil code throughout the nation is one of the contentious promises pursued
by means of India's ruling Bharatiya Janata Party. It is an vital difficulty concerning
secularism in Indian politics and maintains to remain disputed with the aid of India's
Muslim businesses and different conservative religious agencies and sects in defence
of sharia and non secular customs. Personal legal guidelines are distinguished from
public regulation and cover marriage, divorce, inheritance, adoption and preservation.
Meanwhile, article 25-28 of Indian constitution guarantee non secular freedom to
Indian residents and allows non secular groups to keep their own affairs, article forty
four of the constitution expects the Indian country to use directive principles and
common law for all Indian citizens even as formulating country wide rules.

Personal legal guidelines had been first framed for the duration of the British Raj,
mainly for Hindu and Muslim citizens. The British feared competition from network
leaders and refrained from similarly interfering inside this domestic sphere. Indian
country of Goa was separated from British India because of colonial rule inside the
erstwhile Portuguese Goa and Damaon, retained a common own family law called the
Goa civil code and therefore being simplest kingdom in India with a uniform civil
code till date. Following India's independence, Hindu code payments were brought
which in large part codified and reformed private laws in various sects among Indian
religions like Buddhists, Hindus, Jains and Sikhs even as exempted Christians, Jewish
people, Muslims and Parsis, being diagnosed as awesome groups from Hindus.

UCC emerged as a important topic of interest in Indian politics following the Shah
Bano case in 1985. The debate arose whilst the question of creating positive legal
guidelines relevant to all citizens with out abridging the essential proper of proper to
exercise spiritual features. The debate then centered at the Muslim Personal Law,
that's partially primarily based at the Sharia regulation, allowing unilateral divorce,
polygamy and putting it a number of the legally making use of the Sharia law. UCC
was proposed twice, in November 2019 and March 2020 however was withdrawn
quickly each of the instances without creation in parliament. The bill is mentioned to
be being contemplated because of differences between BJP and RSS.

The debate for a uniform civil code dates back to the colonial period in India. Prior to
the British rule, under the East India Company (1757-1858), they tried to reform local
social and religious customs. Lord William Bentinck, the Governor-General of India,
tried to suppress sati, the prescribed death of a widow on her husband's funeral pyre,
and passed the Bengal Sati Regulation, 1829. This was later extended outside Bengal
to all English territories in India.
The Lex Loci Report of October 1840 emphasised the importance and necessity of
uniformity in codification of Indian law, relating to crimes, evidences and contract but
it recommended that personal laws of Hindus and Muslims should be kept outside
such codification. According to their understanding of religious divisions in India, the
British separated this sphere which would be governed by religious scriptures and
customs of the various communities (Hindus, Muslims, Christians and later Parsis).
These laws were applied by the local courts or panchayats when dealing with regular
cases involving civil disputes between people of the same religion; the State would
only intervene in exceptional cases. Thus, the British let the Indian public have the
benefit of self-government in their own domestic matters with the Queen's 1859
Proclamation promising absolute non-interference in religious matters. The personal
laws involved inheritance, succession, marriage and religious ceremonies. The public
sphere was governed by the British and Anglo-Indian law in terms of crime, land
relations, laws of contract and evidence—all this applied equally to every citizen
irrespective of religion.

Throughout the country, there was a variation in preference for scriptural or

customary laws because in many Hindu and Muslim communities, these were
sometimes at conflict; such instances were present in communities like the Jats and
the Dravidians. The Shudras, for instance, allowed widow remarriage—completely
contrary to the scriptural Hindu law. The Hindu laws got preference because of their
relative ease in implementation, preference for such a Brahminical system by both
British and Indian judges and their fear of opposition from the high caste Hindus. The
difficulty in investigating each specific practice of any community, case-by-case,
made customary laws harder to implement. Towards the end of the nineteenth
century, favouring local opinion, the recognition of individual customs and traditions
increased.[9]

The Muslim Personal law (based on Sharia law), was not strictly enforced as
compared to the Hindu law. It had no uniformity in its application at lower courts and
was severely restricted because of bureaucratic procedures. This led to the customary
law, which was often more discriminatory against women, to be applied over it.
Women, mainly in northern and western India, often were restrained from property
inheritance and dowry settlements, both of which the Sharia provides. Due to pressure
from the Muslim elite, the Shariat law of 1937 was passed which stipulated that all
Indian Muslims would be governed by Islamic laws on marriage, divorce,
maintenance, adoption, succession and inheritance.

Common law
The term “common law” was used by english canonists to signify the common law of
church contrary to the usages prevailed or modified the common law of Christianity.
Though the term common law is readily comprehensible its exact meaning is
unknown to many. Codification of common laws made the law uniform throughout
the country and fostered a kind of legal unity in fundamental laws. The Codes apply
uniformly throughout the nation.
 Common law is the judge made precedent opposed to the written statutory laws.
Statutory law is defined as the written law made by a legislative body. The body of
law derived from case laws i.e. judicial decisions instead of statutes is common law.
Common law system originated with several other reforms after the Norman conquest
in 1066 A.D.1 England . The judicial system of England shifter from country courts
that exercised both civil and criminal jurisdiction to system of Eyre, introduced by
William II , wherein the king appointed four judges to review actions of the country
courts and hear cases of appeals. This provided as a basis for development of common
law in England as it centralised control over local courts. Henry II created a system of
law common to the whole England . The common law system consists of those rules
of law which derive their authority from the statements made by decisions of courts. It
is the incarnation of comprehensive unwritten principles derived from natural
reasoning. Several stages of research and analysis is required to determine the
common law system. Contrary to codified law common law follows the judgment
rather than preceding it. Carefully ascertained facts, relevant cases and statutes are to
be identified, and the principle, ideas by various courts need to be understood and
applied in order to determine how they would help in understanding the point of law
in question within that specific case.
Common law system in India
The advent of English East India company in the 1600s for trading interest later on
shaped the foundation of modern Indian society. Amongst the various transformations
most relevant was setting up a new type of judicial system. By the seventeenth-
century admiralty courts were set up in the three presidency towns of the British i.e.
Bombay, Madras, Calcutta ,which courts derived jurisdiction directly from the
company and not the crown . This changed in eighteenth century when royal charter
mayors where established who derived their authority directly from the crown. A
system of appeals to the privy council from such courts was also laid down. The
mayor’s court was replaced by Supreme Court in eighteenth century , where the
chief justice and puisne judges where to be appointed by the king. Later by the letter
patents act of 1862 high court replaced the Supreme Courts in presidency towns and
other provinces2. Coding of law began with the establishment of the law commission
to review the Indian legal system. For criminal matters Indian Penal Code of 1860
was codified under the supervision of Lord Thomas Babington Macaulay3. The
Evidence Act of 1872 and The Contracts Act of 1872 were planned by the same
commission. All these developments till the nineteenth century lead to the
establishment of an Indian judicial system, predominantly based on the common law
system of English.
It took two centuries for British to set down common law in Indian legal system
pointing out that one can not allocate an individual identity of Indian Jurisprudence.
As both english and Indian society has different composition and needs the
1
https://blog.ipleaders.in/common-law-apply-india/?amp=1
2
https://www.mondaq.com/india/patent/783120/clause-xii-of-letters-patent-and-original-
jurisdiction-of-the-high-court-established-under-letters-patent
3
https://en.m.wikipedia.org/wiki/Indian_Penal_Code
application of common laws has been different. Majority of laws we have today
where derived from common law principles and they have stood against time with
minimal amendments. Indian penal code 1860, Indian Evidence Act 1872, the Code
of Criminal procedure 1973 and Code of Civil procedure 1908 are the basic statutes
governing civil and criminal justice in India. The codification of laws made laws
uniform throughout the country leading to legal unity in fundamental laws, codes
being applied uniforms throughout the country.

Indian Penal code, 1860 (IPC)

IPC,1860 is defined as the official principle criminal code of India that defines ‘crimes’
and provides punishments for crimes and ‘actionable wrongs’. This comprehensive
code intended to cover all substantive aspects of Criminal law. IPC was laid down in
1860 on the recommendations of first law commission of India which was
established under the Charter Act of 1833. IPC lays down the objective to provide a
‘General Penal Code’ for India which came into force in British India in 1862.section 2
of Indian Penal Code says that “Every person shall be liable to punishment under
this Code and not otherwise for every act or omission contrary to the provisions
thereof, of which he shall be guilty within..” 4 . Thus it can be inferred that every
person irrespective of his/her rank, nationality, cast or creed shall be liable for an
offense committed in India. This General Penal Code eliminates any classification on
any basis .

Code of Criminal Procedure, 1973 (CrPC)

Criminal procedure code is defined as the primary legislation regarding the
procedural aspect of Criminal law. The law was enacted in 1973 and was enforced on
1 April, 1974.5 The procedural law provides the machinery for the investigation
of crimes(as defined by IPC), apprehension of suspected criminals, collection
of evidence, determination of guilt or innocence of the accused person and the
determination of punishment of the guilty. CrPC established a uniform procedure for
enactment of criminal law.

Code of Civil procedure, 1908 (CPC)

Code of civil Procedure regulates the law concerned with practices and procedures
to be followed in civil courts. This systematic collection of statues avoids overlapping
and inconsistency in civil procedure. CPC regulates each and every action from the
initial stages of a case to its degree leading to a uniform proceeding in civil matters.
Till 1859, in India,, there was no uniform codified law for the procedures to be
referred by the Civil Courts . The Civil code passed initially had to be replaced several
times as it didn’t meet the requirements of the time. Though the Civil procedure

4
https://indiankanoon.org/doc/915147/
5
https://en.m.wikipedia.org/wiki/Code_of_Criminal_Procedure_(India)
code of 1908 had to go through various amendments, still it withstood the test of
time and is in force till date.

Indian Evidence Act, 1872

Evidence Act, 1872 consists of the methodology by which the cases have to be
conducted in the matter of production of relevant oral, documentary and material
evidence and the examination of witnesses. The Law of Evidence is an important
part of any branch of the judicial system irrespective of any nation, which means the
role of evidence is very important statute in every country.This law applies to the
whole of judiciary.