FAMILY LAW- I

UNIT I- NATURE AND SCOPE OF PERSONAL LAWS

1.1 Sources and Schools of Personal Laws in India

Personal laws are a set of laws that govern and regulate relations arising out of certain factors
connecting two persons or over two persons. These factors are marriage, blood, and affinity.
Moreover, personal law governs and regulates subjects or areas of a private sphere such as
marriage, divorce, maintenance, succession, minority, and guardianship, etc. barring few,
most of the non-public laws in India are supported scriptural laws which are divided and
supported by religions.
They supply norms of governing personal relations within the family founded. Over time,
these norms got statutory recognition with several enactments within the area of marriage,
divorce, maintenance, inheritance and succession, guardianship, and custody matters.
Importance of non-public law is often seen by its very nature, composition, and person and
relations to which it is being applied. Personal laws occupy a novel position in today’s age,
and it plays a significant role to keep the society within the city bounds. There are few areas
in some communities, which are yet to run a legislative shape. It is the political environment
hampering the reform in a few personal laws of the country.
Sources
Hindu Law- Hindu law is nothing but the concept of dharma, the concept of dharma in
Hindu law is not defined precisely but it has come to mean the way of life a person lives and
enjoys, which includes every aspect of his life. Right from the birth till the death of a person
everything is included and governed by dharma. In other words, dharma is sometimes said to
be the guiding force for all the Hindus. It contains rules regarding the proper conduct of
people, it preaches love for everyone and contains the duties that every individual has
towards the society. Dharma also was the major law which the kings of ancient times,
especially the Hindu kings used to govern the people. All the laws which were passed had to
be in conformity with the dharma, in simple terms the king was not above dharma and had to
rule according to dharma.
Hindu law is made up of various text and scriptures, the growth of Hindu law was both
natural and sometimes helped by the legislation that was enacted during the British period.
Sources of Hindu law can be divided into ancient sources and modern sources. Ancient
sources include religious text such as shrutis and the smritis, apart from that there are various
Upanishads which also were a part of Hindu law.
Shruti means to hear, it is derived from the word “shur” which means to hear. Shrutis are the
major source of Hindu law. Another term for Shruti is Veda. according to Hindu law, there are
four Vedas namely, Rigveda, Samaveda, Yajurveda, Atharvaveda. The brahmins used to
pronounce what is written in these Vedas to the people.
Smriti is derived from “smri” which means to remember. Smrtis are those parts of shrutis
which the sages forgot to tell in their original form and therefore wrote down in the language
which they were familiar with, therefore shrutis are the basis of smritis. There are two kinds
of smritis first is Dharma sastras and the other is Dharma sutras. Dharma sastras contains
the rules regarding the moral code of conduct for Hindus, whereas Dharma sutras contains
the rules regarding government, caste, the relationship between people, economic affairs,
eating habits, etc. There are many smritis that one cannot count but the two famous smritis
are Yajnavalkya smriti and manusmriti. Manusmriti is also considered to the first law book
written by Manu.
Muslim Law- Islamic law is made up of various sources, Quran the holy text being the main
source, after Quran the main source of Islamic law is sunnah, both Quran and Sunnah are
considered to be the primary source of law, apart from the primary source the other sources of
Islamic law consists of ijma and qiyas.
Quran which is the holy book for Muslims and is the main source of Islamic law. Quran is
said to contain the direct sayings of Allah through his messenger Muhammad.Quran contains
the rules and regulations regarding the conduct of Muslim people and various socio-economic
laws. Quran was compiled soon after the death of Muhammad.
After the Quran the main source of Islamic law is the Sunnah, Sunnah contains the sayings
of Muhammad, his daily activities, his prayer and his way of life. Since Muhammad is the
perfect human being therefore whatever he says, does or advocates to perform becomes law
for the other people.
Ijma is the third most important source of Islamic law, ijma refers to the consensus among
the learned Muslim jurists on a particular legal issue. The Sunni jurists consider Ijma as an
important source of law for making legislation, whereas the Shia jurists consider it as a
secondary source.
Qiyas is the analogical deduction and is a secondary source of Islamic law. It means deciding
cases according to reason, many Islamic jurists point towards the validity of Qiyas as a
primary source of law by citing the Quran, as Muhammad in the Quran has said that if he is
not able to resolve the dispute through a proper injunction then, in that case, he shall use his
reason to solve it. The main principle behind the concept of Qiyas is that since every
injunction is based on some benefit of the people, thus if a cause of injunction is taken from a
primary source, then the analytical deduction can be applied to cases with similar causes.
Schools
Hindu Law- There are two Schools of Hindu Law: -
a) Mitakshara
b) Dayabhaga.
Mitakshara School prevails throughout India except in Bengal. It is a running commentary on
the code of Yajnavalkya (Yajnavalkya Smriti).
Mitakshara is an orthodox School whereas the Dayabhaga is Reformist School.
The Mitakshara and Dayabhaga Schools differed on important issues as regards the rules of
inheritance. However, this branch of the law is now codified by the Hindu Succession Act,
1956, which has dissolved the differences between the two. Now, the main difference
between them is on joint family system.
Mitakshara- Rights in the joint family property is acquired by birth, and as a rule, females
have no right of succession to the family property. The right to property passes by
survivorship to the other male members of the family.
Mitakshara school is based on the code of Yagnavalkya commented by Vijnaneshwara, a
great thinker and a law maker from Gulbarga, Karnataka. The Inheritance is based on the
principle or propinquity i.e., the nearest in blood relationship will get the property. Sapinda
relationship is of blood. The right to Hindu joint family property is by birth. So, a son
immediately after birth gets a right to the property. A woman could never become a co-
parcener. But the Hindu Succession (amendment) Act of 2005 empowered the women to
become a co-parcener like a male in ancestral property. A major change enacted due to
western influence.
Sub-schools:
i) Dravidian School of Thought- It exists in South India. In the case of adoption by
a widow it has a peculiar custom that the consent of the sapindas was necessary
for a valid adoption. (Sapindas – blood relation). The main authority accepted by
this school is Smriti Chandrika authored by Devananda Bhatta.
ii) Maharashtra School: (Bombay School of Thought)- It exists in Bombay
(Mumbai) and Gujarat. The Bombay school has an entire work of religious and
Civil laws. The main authority accepted by this school is Vyavahara Mayukha
authored by Nilakantha.
iii) Banaras School of Thought: It extends of whole of northern India except in
Punjab where its authority is modified by customary law in rural areas. The main
authority accepted by this school is Viramitrodaya authored by Mitra Mishra.
iv) Mithila School of Thought: It exists in Tirhut, North Bihar and Uttar Pradesh
near the Jamuna (Yamuna) river areas. The main authority accepted by this school
is Vivad Chintamani authored by Vachaspati Mishra and Vivad Ratnakara
authored by Chandeshwar Thakur.
v) Punjab School: It prevails in the part of the country called East Punjab. This
School is chiefly governed by local customs. The main authority accepted by this
school is Viramitrodaya authored by Mitra Mishra and local customs of Punjab.
Dayabhaga- Rights in the joint family property are acquired by inheritance or by will, and
the share of a deceased male member goes to his widow in default of a closed heir. It exists in
Bengal and Assam only. The Yagna Valkya smriti and some other Smrities are commented on
by Jimutavahana under the title Dayabhaga. It has no sub-school. It differs from Mistakshara
School in many respects. Dayabhaga School is based on the code of yagnavalkya commented
by Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It arises by pinda
offering i.e., rice ball offering to deceased ancestors.
The main features of this School are as follows:
 Sapinda relation is by pinda offerings.
 The right to Hindu joint family property is not by birth but only on the death of the
father.
 The system of devolution of property is by inheritance. The legal heirs (sons) have
definite shares after the death of the father.
  Each brother has ownership over a definite fraction of the joint family property and so
can transfer his share.

Muslim Law- There are 4 schools of Muslim law namely:

 The Hanifa School founded by Abu Hanifa.
 The Maliki School founded by Malik ibn Anas.
 The Hanbali School based on the teachings of Ahmed ibn Hanbal.
 The Shafi School founded by Muhammad ibn Idris-ash Shafi.

The Hanifa School is the most popular school of thought among the other four schools of
thought. It is majorly followed in North India, out of the four schools of thought Hanifa
school of thought is much more liberal towards the non muslims, the Hanifa school of
thought gives greater importance to the rational deduction.
The Maliki school of thought is the second largest school of Islamic jurisprudence when it
comes to the percentage of its followers. This school is followed by at least 25% of the
Muslim population. This school of thought is predominantly different from other schools of
thought when it comes to sources to derive its sayings, however like other schools, the Maliki
school of thought also Quran as the major source of Islamic law.
The Hanbali school of thought does not have great followership, still, it is an important
school of Islamic jurisprudence. It is considered to be the most orthodox schools of Islamic
jurisprudence as it wants to the strict implementation of the Quran and the sayings of
Muhammad, however it is considered to be one of the most liberal schools when it comes to
trade or for commercial purposes. The current set of individuals who believe in Wahabism is
influenced by this school.
The Shafi school of thought is mostly followed in Yemen, Sri Lanka, Indonesia, and
Palestine. It considers the Quran, Ijma, Sunnah, and Qiyas as the major source of Islamic law,
however, it relies less on qiyas while trying to construct its sayings. Apart from this it also
considers the sayings of Muhammad’s close companionship as a source of Islamic law.

1.2 Personal Laws and the Indian Constitution- Change in approach and view
In State of Bombay v. Narasu Appa Mali,1952, the petitioner challenged the validity of the
Bombay Prevention of Bigamous Hindu Marriages Act, 1946, which states that bigamous
marriages void and criminalize bigamy among Hindus. The judgement was pronounced by
the rationale of the two-judge bench which stated that personal law is beyond the scope of
Part III of the Constitution. While deciding the case the court had to look into various issues
below-mention:

1. Whether personal law comes into the ambit of Article 13 of the constitution of
India?
 2. Whether there is any reasonable basis for creating the Muslims as a separate class
to which the State law is not applicable?
3. Whether it is for the Legislature to decide what constitutes social reform?

While determining the fact that Muslim polygamy is valid, the court applied the principle of
‘Expressio Unius Exclusio Alterius’ which states that the expression of one excludes the
other, and its present application. The court relied on Article 112, which states that personal
laws cannot be defined as laws under Article 13, and also various State-regulated provisions
in the Constitution that relate to personal law as under Article 17 which abolishes
untouchability, Article 25 which guarantee freedom of religion to its citizen the constitution
drafters where redundant to include personal laws within the definition of under Article 13.
Further Article 44, which implements the state to build a Uniform Civil Code and Entry V of
the Concurrent list suggest that the drafter intent was to give the power to different personal
laws to the legislation and not the judiciary.

It is a historic fact that both the Muslims and Hindus’ personal laws are derived from their
respective religious texts embodied with their own distinctiveness and backgrounds.
However, Article 44 of the Constitution recognises separate and distinctive personal laws
irrespective of race or religion consequently the legislature has the power to introduce a
social reform in respect of a particular community having its own personal law, in this case,
the Hindus Bigamous Marriages Act.

The State plays an important role in considering the institution of marriage, divorce and
educational reforms of the two communities. As per Article 14, the State may rightly bring
social reform at different stages, territorial or community-wise. Hence, the Hindus Bigamous
Marriages Act does not follow any discrimination against the Hindus on the ground of
religion or race. Although the act is not uniform it is not arbitrary or capricious, there is a
reasonable basis for creating a separate class for Muslims.
Marriage is a social institution and the State of Bombay is vitally interested to compel Hindus
to become monogamists as a measure of social reform for the welfare of the state. The State
inherits this power under Article 25(2)(b) which states the right of a citizen to freedom of
religion. In a democracy, the legislature is constituted by the will of the people and
responsible for the welfare of the state and lays down the policy to achieve the objective
inherent in it. Hence, the legislation in its wisdom decides the social reform and not the court
of law.
Transformative approach towards personal laws
The ratio of Narasu Appa Mali case has never been challenged in the Supreme Court as it
extends to uncodified religious law which has not been modified by either customs or usage.
However, the previous decision by the Supreme Court in Sant Ram v. Labh Singh, where it
was held that customs are subject to fundamental rights and the decision in John Vallamottam
v. Union of India, subjecting personal laws to fundamental rights only dealt with codified
personal law.
While re-evaluating the Narasu Appa Mali case, some literature provide contrary views such
as Article 13(3)(a) does not use the word “common law” yet it is subjected to fundamental
rights. While drafting Article 17 the constituent drafter considering the pervasive nature of
caste discrimination prevailing in the society incorporate a specific article prohibiting
untouchability to leave no stone unturned. Further, the scope of Article 25 is broader than
personal laws as it protects an individual’s right to practice her religion rather than protecting
norms or rules. Article 44 comes as stated in Part IV of the Constitution casting no positive
obligation on the citizen as it is non-enforceable in the court of law.
However, it should be read as a transformative document to value constitutional morality
over societal morality. The observation on the importance of personal laws is subjected to
fundamental rights is made by Justice D.Y Chandrachud in the Sabrimala Temple Case.
“Customs, usages and personal laws have a significant impact on the civil status of
individuals. Those activities that are inherently connected with the civil status of individuals
cannot be granted constitutional immunity merely because they may have some associational
features which have a religious nature. To immunize them from constitutional scrutiny is to
deny the primacy of the Constitution.”
Subjecting personal laws to constitutional scrutiny is an important step in the direction of
constitutional vision. Hence, the decision in Narasu Appa Mali case, concerning
immunisation uncodified personal laws and distinctive customs and usage should be
reconsidered in an appropriate case in the future.
In India Young Lawyers Association v. State of Kerala (“Sabrimala Temple case”), the
Supreme Court held the Sabarimala Temple’s custom of prohibiting women in their
menstruating years from entering to be unconstitutional and violative of female worshippers
right to equality under Article 14 of the Constitution and freedom of religion under Article 25
of the Constitution. However, the learned judges, in this case, differs from the Narasu case on
whether the expression “laws in force” in Article 13(1) read with Article 13(3)(b) includes
“custom or usages” by taking a closer look on the dissent adopted by Justice Rohinton Fazi
Nariman in the case of A.K. Gopalan v. State of Madras, 1950, which dealt with the
constitutionality of the Preventive Detention Act, 1950. The fundamental rights are not
isolated, and separate but they are protected by a common thread of liberty and freedom.
Hence, Article 19,20, 21 and 20 do not overlap each other.
In the case of Shayara Bano v. Union of India, 2017, a Constitutional Bench in a 3:2 verdict
ruled that talaq-ul-biddat or triple talaq is not legally valid and the Muslim Personal Law
(Shariat) Application Act, 1937 is a law made by the legislation before the Constitution and it
falls within the expression “laws in force” in Article 13(3)(b) and would be hit by Article
13(1) as the practice of triple talaq is against the provision of Part III of the Constitution.

1.3 Need for Unification of Personal Laws (UCC)

The personal laws of India are relatively complex because each religion only follows its laws.
In many states, registration of marriage and divorce is not necessary. Different laws are
prevalent for Sikhs and Hindus, Buddhists, Christians, and Muslims.
Personal laws are different in each religion regarding divorce, succession, guardianship,
marriage, maintenance, and adoption. There is no Uniform Civil Code relating to personal
matters, but there is some uniformity in criminal laws in India.
Uniform Civil Code means unifying the personal laws into a single set of laws that will apply
to all Indians irrespective of their religion, caste, and sex. The application of UCC is crucial
for protecting the oppressed and promoting unity and national integrity. UCC will protect the
rights of women, i.e. the right to justice in courts and the right to equality in matters relating
to divorce, custody of children, adoption, marriage, maintenance, etc
Uniform Civil Code (UCC), defined in Indian Constitution under Article 44 of the Directive
Principles of the State Policy states that it is the duty of the state to secure Uniform Civil
Code for the residents throughout the region of India. In other words, it stands for “One
Nation- One Law”, irrespective of any religion. Uniform Civil Code mainly aims to replace
personal laws dependent on the scriptures and customs of each significant religious
community in India with typical arrangements of rules governing every citizen. Personal
laws are distinguished from public law and it basically covers marriage, divorce,
inheritance, adoption and maintenance.
ISSUES RELATED TO UCC
1. Legitimacy It can be argued that it was probably wise in 1858 for a foreign colonial
power to stay away from areas related to religion and personal custom in the overall
interest of maintaining peace. But in independent India, where sovereignty rests with
the people, there is no external constraint that can prevent the Indian Government
duly and successively elected to power on the principle of universal suffrage for seven
decades to legislate on a common uniform personal code.
2. Majority viz. Minority It is not only non-Hindus who may have severe objections to
the promulgation of a law that will govern their most inherent beliefs and faith as well
as customs and practices. There has been opposition to the principle in question
amongst sections of the Hindus as well because of wide variations in customs
amongst its many castes and communities.
3. Gender Equality It is also well known that the Hindu law for a long time
discriminated against women by depriving them of inheritance, remarriage and
divorce. Their condition, particularly those of Hindu widows and daughters, was poor
due to this and other predominant traditions.
EFFORTS TOWARDS UNIFORM CIVIL CODE
Many efforts were made towards the implementation of Uniform Civil Code.
1. Special Marriage Act, 1954 The Special Marriage Act of 1954 provides for civil
marriage for any citizen irrespective of religion, thus, permitting any Indian to have their
marriage outside the boundaries of any religious personal law.
2. Shah Bano Case of 1985- In this case, Shah Bano was refused her claim for maintenance.
The Supreme Court ruled in her favour under Section 125 of Code of Criminal Procedure
(CrPC), which applied to all citizens the order for maintenance of wives, children and
parents. The Supreme Court further recommended that the long pending Uniform Civil Code
finally enacted.
CONTEMPORARY DEVELOPMENTS
1. “Neither necessary nor desirable”: 21st Law Commission Most nations are currently
moving towards acknowledgement of distinction, and the simple presence of contrast doesn’t
suggest discrimination however is characteristic of hearty majority rule government.
2. “Rise of the Right”: BJP Hindu nationalists view this issue in the light of concepts
enshrined in the Hindu Code, which they say, is secular and equal to both sexes. The Bhartiya
Janta Party (BJP) was the first party in the country to promise the implementation of Uniform
Civil Code if it were to be elected into power.
3. “Gender Equality”: Women’s Movement UCC’s importance for gender equality cannot
be denied and in a country like India, where women’s rights are daily contested and often
denied, this is of special significance.
ADVANTAGES
1. Provide Equal Status to all Citizens- A secular democratic republic in order to provide
equal status to its citizens must have a common civil and personal law irrespective of their
religion, class, caste, gender, etc.
2. Promote Gender Parity- It is generally observed that in almost all religions men are granted
top preferential status in the matters of succession and inheritance which results in
discrimination towards women. Thus, the Uniform Civil Code will promote gender equality
and will bring both men and woman at par.
3. Accommodate the aspirations of the young population- The social attitude and aspiration of
the young population is shaped by universal and global principles of equality, humanity and
modernity. Thus, the enactment of Uniform Civil Code will help in utilizing their full
potential towards nation building.
With repeated exhortations by the judiciary, a strong women’s movement and a majoritarian
government there is a better chance of it getting through now. All India Muslim Personal Law
Board (AIMPLB) is clear that it shall oppose any attempts to adopt a Uniform Civil Code,
yet, the recent Triple Talaq Act found approval in most places, including Muslim Women,
through clerics still protest. Thus, in an age when citizen’s rights are of paramount
significance, and the admitted position is to move towards a society which respects human
rights irrespective of caste, religion, region and gender, an imperative to legislate on a
Uniform Civil Code cannot be denied.
The implementation of Uniform Civil Code is a challenging process but is not impossible. Dr.
B.R. Ambedkar’s Council propounded a middle path which stated that it is perfectly possible
that the future Parliament may make a provision by way of making a beginning that the Code
shall apply only to those who make a declaration that they are prepared to be bound by it, so
that in the initial stage the application of the Code may be purely voluntary.