2 - 02 - 27 - 53 - History of Personal Laws in India Papers - 1
2 - 02 - 27 - 53 - History of Personal Laws in India Papers - 1
2 - 02 - 27 - 53 - History of Personal Laws in India Papers - 1
History of
Personal Laws
in India
Lekshmi Parameswaran
3 History of Personal Laws in India
Published by:
India Policy Foundation
D-51, Hauz Khas,
New Delhi -110016 (India)
Tele: 011-26524018
Email: [email protected], [email protected]
Website: www.ipf.org.in
Edition:
First: April, 2020
4 History of Personal Laws in India
P
ersonal laws are a set of laws that applies to a certain class
or a group of people or a particular person, based on
religion, faith and culture. In India, personal laws that are
guided by religion are applicable in the civil realm which covers
aspects like marriage, divorce, guardianship, adoption and
succession. At present, Hindus, Muslims, Christians, Sikhs and
Parsis are governed by their set of personal laws in India.
Despite calls for a Uniform Civil Code from the time of the
drafting of the Constitution, personal laws have been largely
been left untouched by all the governments in power. The
reforms that have taken place so far in the personal laws have
been within the ambit of individual codes and the changes
proposed have come under the criticism of interfering with the
religious freedom guaranteed by the Constitution.
Historical Background of Personal Laws
In ancient India, religion and law were intertwined with the
wisdom imparted by ‘Shruti’ and ‘Smriti’ serving as the primary
sources1 codifying the ways of life. The ‘Shruti’ contained all
four Vedas, namely Rig Veda, Sama Veda, Yajur Veda, and
Atharva Veda. The Smritis’ were teachings and commentaries
handed down by sages of the Hindu religion.
Through these texts and learnings, the society functioned as a
well-structured unit. One of the major flaws that a system like
this had was that there was seldom any distinction made between
social, civil and religious laws. This was addressed in the later
years by treatises which came under ‘Smriti’ like Manu Smriti
that established clear difference between these laws and dealt at
length with each of them through the twelve chapters. The first
eight chapters deal with civil and criminal laws and the rest deal
with religion and morality. The personal laws were outside the
ambit of monarchy and were subject to the rules as laid down by
the ancient texts and the sages. The other two ‘smritis’ were
Yajnavalkya, and Narada.
1
Principle Sources of Indian Law, Business Law
5 History of Personal Laws in India
Wills Act of 1870 which for the first time conferred a power of
testamentary disposition on Hindus; The Indian Majority Act
1875 which fixed 18 as the age of majority; The Hindu
Inheritance (Removal of Disabilities) Act 1928; The Hindu Law
of Inheritance (Amendment) Act 1929; Child Marriage Act of
1929; Hindu Women's Right to Property 1937 etc.
When it comes to Muslim law, four central statues were enacted;
The Mussalman Validating Act, 1913; The Muslim Personal
Law (Shariat) Application Act of 1937; The Insurance Act of
1938 and The Dissolution of Muslim Marriage Act 1939.
The Indian Muslims had always followed a complex mix of local
customs and Islamic law, the Shariat. It needs to be noted that
the Shariat Act2 came into existence only in 1937 and since then
it has become mandatory for Muslims to follow Muslim personal
law. It was during the colonial period that stress was laid on the
Muslim identity and the divisions between Muslim and non-
Muslim became sharp. The British courts played a major role in
establishing a separate identity that went against the way society
functioned till then in India. The aim was to stop the intermixing
of traditions and customs that gave Indians a sense of unity.
In 1866, the first step was taken towards this end when the
Judicial Committee of the Privy Council, the highest court of
appeal in the British Empire, placed the Shariat above local
customary law. In situations where it allowed the use of local
customary law, it called for “proof of special usage”. In the years
that followed, the High Courts of Calcutta (1882) and Allahabad
(1900) disallowed the use of customary law for Muslims. But in
1913, the Judicial Committee of the Privy Council changed its
earlier stance and ruled that customary law played a major part
in Muslim life and allowed its use in the courts of the Raj.
The advent of modern nationalism and the founding of the
Muslim League had a lasting impact in the creation of a Muslim
2
Shoaib Daniyal, ‘A short history of Muslim personal law in India’,
Scroll.in
8 History of Personal Laws in India
3
Vibuti Patel, ‘All personal laws in India are discriminatory’, Livemint
11 History of Personal Laws in India
4
Sudhanshu Neema , Nayi Disha, ‘7 Indian Laws that Discriminate
Against Women’,
5
P Lakshmi, ‘Personal Laws and the rights of women’, Christ
University Journal
12 History of Personal Laws in India
6
Smt. Sarla Mudgal, President, ... vs Union Of India & Ors on 10 May,
1995
13 History of Personal Laws in India
7
‘Conceptual Analysis and Background of Uniform Civil Code’,
Shodhganga
14 History of Personal Laws in India
8
‘“The Wife is Obliged”: The French Civil Code (Napoleonic Code)
1800-1820’, Women in World History
9
Chernock (2010), pp. 18, 86
15 History of Personal Laws in India
10
Ministry of Justice, Egypt
11
Japan - The Civil Code, Equality Now
16 History of Personal Laws in India