Written By: Bhanu Pant.
Edited By: Christo Sabu.
Introduction
Personal law refers to a set of laws that basically apply to a particular person or a certain class or group of people based on their religion, faith, and culture. It arises out of different factors like marriage, blood, and affinity. In our Indian legal system, these are very unique components. India boasts of a society that has different cultures and religious groups and people have their own faith and beliefs. Their faith and beliefs are decided by these set of laws and these laws follow different religious customs. Thus, we can say that in India, the customs and practices belonging to a particular religious group lay the foundation stone for separate personal laws.
In modern society, personal laws describe the person’s cultural behavior and values that are considered a social construct. It further, saves the views of the people of the concerned group regarding their incidents and roots.
Source Of Hindu Personal Law
Among Hindus, personal law is basically found under ‘Shruti’ which consists of four Vedas namely Rig Veda, Sama Veda, Yajurveda Veda, and Atharva Veda. The Rishi’s and holy men of Hindu religion consist of their teachings which were mentioned under the smritis.
There are three types of smritis namely;
- Code of Manu
- Yajnavalkya
- Narda
The customs and personal laws are recognized by the statutory law which regulates the Hindus. This law is applicable to the legal issues related to the matter of marriage, succession, adoption, and inheritance, etc.
Source of Hindu Muslim personal laws are in India
Muslim personal law basically comes from
- The Holy Quran
- The sayings and teachings of Prophet Muhammad that have been passed down by the holy men from generation to generation.
- As per the discipline of Prophet Mohammed on the matters of religion the agreement of Muslim scholars in companions
- Kiyas are basically an analysis of the Quran and sayings of Prophet Muhammad which were made by the Scholars
- The Muslim scholar’s digest and commentaries on Muslim law
Personal laws and customs governing the Muslims are applied to all matters relating to doubt marriage, succession, inheritance, and guardianship.
Source Of Christian Personal Law
In 1972, the Christian Marriage Act was enacted which deals particularly with matters related to marriage. The Indian Divorce act enacted in the year 1969 deals with matters related to divorce.
Under the Indian Divorce Act, the husband can appeal for divorce on the grounds of adultery by the wife. Similarly, the wife can appeal for divorce on different grounds such as the husband getting converted from one religion to another for marrying another woman belonging to a different religion or if he is found guilty. There are basically different laws created by the Christian personal law.
Codification Of Personal Law
India is a developing country and the process of development poses numerous problems. India has a stable legal system and a parliament which is the strength of India but certain changes in the law are required. The legal jurisprudence needs planned development which is only possible through the codification of the personal law. A country where people are left to regulate their relations in different and divergent ways can’t be said to have developed in the desired way through modification of the personal law.
Uniformity and development are the key aspects. India has a very grave problem which unfortunately is with respect to national unity and integrity. It can be solved only through the codification of personal laws. This objective was kept in view under article 44 of the Indian Constitution that is the directive principle of State Policy. It states that,
“The state shall endeavor to secure for the children’s a uniform Civil Code throughout the territory of India”.
In India, there has been much development towards codification but there needs to be more towards the codification of the personal laws. The certainty can be bought through codification and then vague and uncertain laws in India and customs will cease to exist.
Codification makes laws simple and makes them accessible to everyone. Laws will be logically arranged in a coherent form and there will be no chance of conflict between the existing laws and the personal laws. There are different provisions and numerous petitions filed before the court regarding the personal laws and their implementation. Codification would be vital in preserving the time of the court.
There may be some demerits to the codification of law but the positives may outnumber the same. Codification ensures the planned development of law and it will further enable the law for which it is meant to be to achieve the purpose it has. There have been many views of the people that codification means the complete abolition of case law and customary law but if case law and personal law both function hand in hand there would not be any problem.
Shah Bano Case[1]
The Supreme Court of India in Md. Ahmed Khan v. Shah Bano Begum, ruled against the beliefs of Muslim personal laws by granting maintenance appeal to a Muslim divorced lady under Section 125 of Cr.P.C, despite refusal under Muslim personal law. Shah Bano, a Muslim woman, had been divorced by her husband. She had then filed a suit for maintenance under Section 125 of Cr.P.C. When the case was brought before the Magistrate Court, the issue raised was regarding the right of a divorced Muslim woman to assert maintenance from her husband under the secular legal provision, Section 125 of Cr.P.C. The court here had passed an order for maintenance of a sum not surpassing Rs. 500/-. But when the matter was transferred to the Supreme Court of India, the case involved a considerable question of law. By supporting the appeal of Shah Bano, who refused the identity under Muslim personal law, as forbidden under Article 44 of the Constitution of India, the Supreme Court declared that Parliament would take steps to establish UCC. The Muslim fundamentalists were disturbed by that call.
Uniform Civil Code[2]
Uniform Civil Code means that a rule applied on one individual will apply to every citizen of the country. The Uniform Civil Code is mentioned in Part 4 Article 44 of the Indian Constitution which states that a Uniform Civil Code shall be applied throughout the territory of India. After the triple talaq, demand for the Uniform Civil Code was raised which demanded the Muslim personal law to be amended. Suggestions were put forth that the Hindu and Muslim personal law created disproportionality, thus a Union Civil Code shall be established in favor of Muslims for the betterment of the society. Many people in society argued that the opinion regarding the personal laws of Muslims favoring them is incorrect. In a similar way, the Hindu law favors their own customary laws.
Personal Law under Special Marriage act 1934
For a very long time, the third-gender community has been suffering due to the non-existence of law in society. Personal law is also an important factor for the non-recognition of the third gender in society. The personal law doesn’t consider the marriage between heterosexuals valid as it only describes the legality of marriage between a male and a female in society. Under personal laws, there exists no concept of same-sex marriage.
Many other countries have already legalized same-sex marriage. The Special Marriage Act 1954, allows the special type of marriage between parties irrespective of their faith, religion, or custom since they don’t wish to be bound by their personal law. Personal law creates a great impact on society. Emphasis needs to be placed on the idea of the non-existence of any kind of discrimination between males and females. Also, the personal laws created do not recognize the third gender in the society which is also an issue under the existing personal laws.
Conclusion
A Uniform Civil code should be established so that they must interconnect with each other and support each other for the betterment of society. Uniform Civil Code means the Law which is meant for everyone and personal Law is for a particular sect of the society. It should be enforced in such way that Personal law will be treated as a species of the Uniform Civil code so that it can be regulated for all religious communities. Personal law basically connects with the sentiments of the people. The codified personal law will maintain stability in the Indian system and will not conflict with any other laws. It will ensure a fair and impartial legal relationship under individual laws. Once the concept of personal law will be incorporated into the other laws it will maintain stability with the Uniform Civil Code which is much easier to follow. The Personal Law needs to be stricter because it is followed by a large set of people and there shouldn’t exist any scope of misuse. The court also follows the Personal laws in cases where they find statutory law to be not applicable. Personal laws today have undoubtedly created an impact on society.
[1] Aviral Saxena, Codified law versus Personal Law, GofortheLaw (Oct. 02, 2021, 10:55 AM)
[2] Ashish Rawat, Uniform Civil Code, LawTeacher (Oct. 02, 2021, 10:55 AM)