Constitutionality of Personal Laws in India

By: Bhavya MishraSymbiosis Law School NOIDAPh- +918750734602Email- imishra907@gmail.com

TABLE OF CONTENTS Table of Cases1. Introduction 2. What is Constitutionality 2.1 372 2.2 Article 13 2.2.1 Laws in force 2.2.2 Laws 3. Conflict of Personal Laws and certain provisions of the Constitution 3.1 Article 15 and 25 3.2 Article 21 4. Personal laws and Women in India 4.1 Triple Talaq in Muslims 4.2 Bigamy by Conversion 4.3 Get in Jews 5. Personal Laws and the Constitution 5.1 Personal laws are subject to JR 5.2 Personal laws are not subject to JR 5.2.1 Narsu Appa Mali 5.2.2 Post Narsu Appa Mali 6. Whether choice of a particular law amounts to waiver of Fundamental Right 7. Need of a Uniform Civil Code 8. Conclusion 9. Bibliography

TABLE OF CASESA Ahmedabad Woman Action Group v Union of India, AIR 1997 SC 3614 Ammini E J and Another v Union, 1995(1) KLJ 624 D Daniel Latifi V Union of India, (2001) 7 SCC 740 D.S. Nakara v. Union of India and Others, 1983 AIR 130 K Khatoon Nisa v State of U.P., 2003(3) PLJR 126 L Lily Thomas, Etc. Etc. v Union of India, AIR 2000 SC 1650 M Madhu Kishwar v State of Bihar, (1996) 5 SCC 125 Mary Sonia Zachariah v. Union of India, ILR 1995(2) Kerala 431 Masilmani Mudaliar v Idol of Sri Swaminathaswami thirukoil, (1996)8 SCC 525 Mohammad Umar v Amir Mohammad, AIR 1958 MP 423 P P E Mathew v Union of India, AIR 1999 Ker 345 S Saroj Rani v Surdashan Chadda, AIR 1984 SC 1562 Saumya Ann Thomas v Union of India, 2010(1) KLJ 449 Srinivasa Aiyar v Saraswati Ammal, AIR 1952 Mad. 193 State of Bombay v Narsu Appa Mali, ILR Bom 1951 775 T T Sareetha v T Venkatubiah, (1983) AIR 5 AP 356

1. Introduction This is a court of law, young man, not a court of justice. - Oliver Wendell Holmes, Jr. India is a diverse country where people of various caste, religion and creed reside. Keeping in mind this diversity the constituent assembly opted for a detailed written Constitution; the essence of which is Constitutionalism. This means that there is constitutional checks and balance on the power of the legislature and executive. This has been provided by Article 13 and 372. Thus, every law in India has to pass this test of Constitutionality. If we go by this simple phenomenon we may conclude that the same would apply to Personal Laws also. But this is not the case in India. In several circumstances the courts in India have turned futile in answering this question. They have held that Personal Laws in India are not subject to Judicial Review. The courts have clarified that these laws having their origin from religious scriptures cannot be challenged on the grounds of Fundamental Rights. This policy of the Courts has put forward many questions. The proposed study finds out the reasons which have provoked the Courts to come to such a conclusion. It not only discusses how these laws violate Article 14, 15 and 19 of the Constitution but also discusses the scope of Article 25 in the same context. It finds out whether the Courts in India are correct in saying that this is a matter for the legislature to decide and legislate upon and justifying this statement in lieu of Article 44 by further saying that it signifies the intention of Constitution makers. 2. What is Constitutionality? Constitutionality of personal laws does not mean that the personal laws are subject to the entire constitution. It means that the personal laws are subject to Part III of the Constitution of India, 1950. This covers the fundamental rights of the people. Article 13 provides that any law or law in force in contravention of fundamental rights guaranteed in Part III would be void to extent of contravention or inconsistency. 2.1 Article 372 Article 372 of the Indian Constitution provides that any law in force in the territory of India of India prior to the commencement of this constitution will continue to remain in force unless it has specifically been repealed, altered or amended by the legislature or any other competent authority. This principle has been applied in the case of Mohammad Umar v Amir Mohammad[footnoteRef:1] wherein it has been held: [1: AIR 1958 MP 423 ]

If the personal law applicable to persons of all religious faiths, of all sects, and of all colours and of all races does not stand abrogated by the newly made constitution - It would be futile to single out the Muslim customary law of pre-emption and put it to the test of reasonableness... 2.2 Article 13 Article 13 of the constitution provides for laws and laws in force. It defines both laws and laws in force and further also provides when these laws and laws in force would be valid and when they will be liable to be struck down. It provides when they will be void and to what extent. 2.2.1 Laws in force Article 13(3) (b) defines laws in force as any law passed by the legislature or any other competent authority prior to the commencement of the constitution and which has not been repealed previously. It further adds that whether that law has been in operation at that point of time in one or all areas does not matter. The fact that it was made and not repealed is enough. Article 13(1) further elaborates on this point and mentions when the laws in force would be valid. It says that any law in force in the territory of India prior to the commencement of the constitution, if in contravention with the provisions of Part III would be to void to the extent of contravention. This means that Personal laws if considered to be laws have to necessarily pass the test of constitutionality. If any personal law whether codified or uncodified violates any provision of Part III, it would be ultra vires and thus, would be liable to be struck down. However, the courts in India have taken a different view point in several view point. They have held that Personal laws do not come within the ambit of laws in force. This aspect was highlighted in the case of P E Mathew v Union of India[footnoteRef:2]. [2: AIR 1999 Ker 345 ]

In this case the question which arose before the Kerala High court was whether personal laws come within the ambit of law as defined in Article 13. It held that personal laws are not laws as defined in Article 13 and therefore they are not subject to judicial review and they need not pass the test of constitutionality. Based on this assumption, the Section 17 of Divorce Act[footnoteRef:3] which was challenged was held not to be ultra vires the Constitution. [3: Central Act 4 of 1869 ]

2.2.2 Laws Article 13(3) (a) defines the term law. It says that law includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. Clause 2 of this article further elaborates that the state shall not make any law which takes away the fundamental rights of the people and any law made in contravention of this clause should be to the extent of contravention, void. This clause if elaborated means that if any personal law enacted by the parliament takes away the fundamental rights of the people, it would be to that extent void. 3. Conflict of personal laws and certain provisions of Constitution 3.1 Article 15 and 25 A very important question which has come before the courts several times is with respect to freedom of religion. The question has arisen in cases like Srinivasa Aiyar v saraswati Ammal[footnoteRef:4]. In the case, an act called the Hindu Bigamy Prevention and Divorce Act[footnoteRef:5] was passed by the state of Madras. The act was challenged on several grounds. One of this was that the act prohibited on the grounds of religion as it was made applicable only on the Hindus. [4: AIR 1952 Mad 193 ] [5: Madras Act VI of 1949 ]

It was further contended that the state could not discriminate only o the grounds of religion. The court rejected the plea and held that the act was not ultra vires. This was because article 25 provided that the state may discriminate on the basis of religion provided the ground for discrimination is reasonable. This reasonable discrimination includes public morality. Since monogamy is moral and is more preferred in a civilized society, the act was a valid one. 3.2 Article 21 Article 21 talks about right to life and personal liberty. This provides that a person shall not be deprived of his right to life and personal liberty except according to procedure established by law. This has been used by the courts in several instances to provide justice to the aggrieved women in India. The court in Ammini E J and Another v Union[footnoteRef:6] India said that personal laws are subject to Article 21 which talks about right to liberty of an individual. [6: 1995(1) KLJ 624 ]

The petition was filed by a Christian lady who challenged that Section 10 of Indian Divorce Act, 1869 violated her fundamental rights. The section provides for the grounds of divorce. It provided that for cruelty and desertion to be taken as a ground for divorce, adultery also had to be established. Divorce could not be granted unless adultery was proved on the part of the spouse. The court held this section ultra vires and subsequently elaborated that: For a Christian wife to be compelled to live least in name as a wife of a person, who has deserted her, cruelly treated her, who has no love and regard to her and who she hates and considers as a wrecker of her married life will be to live as a slave without dignity and personal liberty guaranteed to every person under Article 21 of the Constitution of India... 4. Personal Laws and Women in India In India the personal laws are broadly classified into Hindu Marriage Act, 1954; Indian Christian Marriage act, 1872; Parsi marriage and Divorce Act, 1936; Special Marriage act, 1954 and the codified and Uncodified version of Muslim Law. These laws have been created in a balance manner. But certain aspects of these laws and specially the uncodified version of Muslim law are discriminatory. 4.1 Triple Talaq in Muslims The Uncodified Muslim law provides for triple talaq. Under Sunni Law, the husband has a right to give a divorce to his wife by saying triple talaq. This does not require the presence of any witness. In talaq hasan, the husband successfully pronounces divorce three times during consecutive periods of purity (tuhr). No intercourse should have taken place during the period of purity in which a pronouncement has been made.[footnoteRef:7] [7: Doddawadmath, J. V., Personal Law relating to woman, Allabad Law Agency, Haryana, 2011. 8 2003(3) PLJR 126 ]

The constitutional validity of triple talaq has been challenged before the courts several times. However, the Supreme Court has failed to say a clear no on this issue. In the case of Khatoon Nisa v State of U.P.8 wherein the high court held triple talaq to be unconstitutional; the Supreme Court took a contrary view and said that such a view could not become the law of the land unless it was declared by a higher bench. 4.2 Bigamy by Conversion Muslim law permits bigamy. The legislations in India are silent on the aspect of bigamy by conversion into Islamic religion. In order to gain advantage of the loophole in the legal system, bigamy was practiced by people of various religions after converting themselves into Islamic religion. In the absence of any law, the courts in India have come up with a positive view point. It has been held in the case of Lily Thomas, Etc. Etc. v Union of India[footnoteRef:8] that conversion into a particular religion does not break all the marital ties between two persons who have married previously according to different religion. It would be injustice if a person is allowed to practice bigamy by converting into a different religion. Therefore, this act cannot be permitted and the person will be charged under Section 494 of I.P.C. [8: AIR 2000 SC 1650 ]

4.3 Get in Jews In Jewish Law, marriage is a contract which is termed as the Ketubah and state has no role to play in it. Divorce is accomplished only by the male spouse and even if the divorce is done by mutual agreement, the Get is only written by man.[footnoteRef:9] A Get is a written document sanctioning the divorce and it is a rule that unless this document is given by a husband to his wife, she cannot remarry. [9: Liechter, Alexandra, The Effect of Jewish Divorce Law on Family Law Litigation. Retrieved from http://www.iaml.org/cms_media/files/the_effect_of_jewish_divorce_law_on_family_law_litigation.pdf ]

Previously, in most of the countries the courts were empowered to grant a divorce but when it came to force a husband to give his wife a get; the courts remained silent. Though the law has changed in many countries but there are still many places where the aggrieved women have no remedy. In these cases, Mediation is the only remedy left for resolving the problems which are likely to arise post divorce. 5. Personal laws and the Constitution 5.1 Personal laws are subject to judicial review In Saumya Ann Thomas v Union of India[footnoteRef:10]; the Kerala high court held that excluding Personal laws form the concept of judicial review would go against the core values of the constitution. Like all the others laws these laws also have to pass the test of constitutionality. The court said that there is no logic behind excluding personal laws from laws as defined in Article 13. [10: 2010(1) KLJ 449 ]

Just like all other statutory laws, they also bind the citizens and so, the mere fact that they are not derived from any statute cannot exclude them from passing the test of constitutionality. The same view point has been taken by the courts in cases like Masilmani Mudaliar v Idol of Sri Swaminathaswami thirukoil [footnoteRef:11] ; T Sareetha v T [11: (1996)8 SCC 525 ]

Venkatubiah[footnoteRef:12]; etc. [12: (1983) AIR 5 AP 356 ]

5.2 Personal Laws are not subject to Judicial Review The courts have taken a contrary view in some judgments. However, in most of the cases the court is of the opinion that personal laws are not subject to judicial review and that they are outside the ambit of fundamental rights guaranteed in Part III of the Indian Constitution. 5.2.1 Narsu Appa Mali The court for the first time talked about the constitutionality of personal laws in the case of State of Bombay v Narsu Appa Mali[footnoteRef:13]. In the present case, the constitutionality of Bombay Prohibition of Hindu Bigamous Marriage Act, 1946 was challenged. The act was challenged on the basis of Article 14, 15, 17 and 25 of the Constitution. The court upheld the validity of the said act. [13: ILR Bom 1951 775 ]

It justified itself by giving two grounds. The first was that personal laws are not subject to judicial review as dont come within the ambit of law and law in force as defined in Article 13. The second was on the basis of social reform. It held that monogamy was the idea and that the state could discriminate on the grounds of religion in guise of public order and morality. 5.2.2 Post Narsu Appa Mali The court has taken different opinions in different cases. In some cases it has held that personal laws are subject to review and in other it has refused. The court has held that personal laws are subject to judicial review in cases like Srinivasa Aiyar v Saraswati Ammal[footnoteRef:14]; Madhu Kishwar v State of Bihar[footnoteRef:15]; Saroj Rani v Surdashan Chadda[footnoteRef:16]; Daniel Latifi V Union of India[footnoteRef:17][footnoteRef:18], etc. [14: AIR 1952 Mad. 193 ] [15: (1996) 5 SCC 125 ] [16: AIR 1984 SC 1562 ] [17: (2001) 7 SCC 740 ] [18: AIR 130 ]

6. Whether choice of a particular law amounts to waiver A very important question which has arose before the courts several times is to whether choice of a particular law amounts to waiver. What this means is that in certain cases parties decide to be governed by a specific law which may or may not be based on their religion. In these cases whether the test of constitutionality is applicable is a big question. Whether the mere fact that the parties have themselves decided to be governed by a particular law puts a bar on their right to challenge the constitutionality of that law? The answer to this question is no. Even if parties decide to be governed by a specific law, it does not mean that they cannot challenge the validity of that law if it violates their fundamental rights. The essence of this rule was seen in the case of D.S. Nakara v. Union of India and Others19 wherein it was stated that the choice of a date is not a relevant factor in determining whether a person may or may not file a suit for violation of his fundamental rights. This view has been highlighted in the case of Mary Sonia Zachariah v. Union of India[footnoteRef:19] wherein a Syrian Christian lady married a Christian man and decided to be governed by the Indian Divorce Act, 1869. [19: ILR 1995(2) Kerala 431 ]

The husband of this lady deserted from her and her child and went to jive with an English lady. There were several issues which came before the court. The major one was whether the Section 10 of the abovementioned act was violating the Fundamental Rights of the lady as it provided that desertion was not a ground for divorce. This violated the ladys right to equality, liberty and was also discrimination on the basis of religion as all other laws made desertion a ground for divorce. The court held that this provision is violating the FRs and thus accordingly amended it. This act though was outside the scope of authority of the court but is justified itself by saying that it was important in the light of justice and that if such act was not done, the entire section would be struck down. Even the plea that the provision was based on the personal law of the Christians was rejected and it was held that if personal laws are codified, they have to pass the test of constitutionality. 7. Need for a Uniform Civil Codes The question of Uniform Civil Code has arisen before the courts and legislature several times. The courts have the burden on the legislature and the legislature is not willing to take a step. The only reason behind this is vote bank. In the case of Ahmedabad Woman Action Group v Union of India[footnoteRef:20]; a PIL was filed before the SC for directing a writ of mandamus against the Defendants for enacting a UCC. [20: AIR 1997 SC 3614 ]

Another aspect was to invalidate the concept of bigamy and triple talaq. The court clearly held that this was a matter for the legislature to legislate upon and the court cannot interfere in a matter of policy making. In a democratic country like India where justice is the essence of the legal system, are the judiciary and the legislature satisfied in shifting the burden on each other. Where is justice and equity? 8. Conclusion Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. - Martin Luther King, Jr. Law in a society exists for the welfare of its citizens. If it fails in doing so, it is no law and there is no point having a legal system. A deep study of the constitution shows the shift of the judiciary from a strict interpreter of law to an activist one. There was a time when judgments like ADM Jabalpur were delivered, where the courts interpreted law in strict sense.Then we came to Maneka Gandhi wherein it was held that mere presence of law is not sufficient and that law should be just. The court transformed itself into an activist one and started delivering judgments in the light of justice, equity and good conscience. A question which certainly arises is that In India, where the courts have passed several judgments in light of justice and equality (Air India v. Nargeesh Misra; Mohammed Ahmed Khan v. Shah Bano Begum; Maneka Gandhi v. Union of India); why is it that in dealing with Personal Laws specifically they are shifting their duty of maintaining justice and fairness on the legislature. The most important aspect which is highlighted is the concept of Justice which has faded in this tussle between the legislature and judiciary. Are the courts in India merely Courts of law and not Justice? A mere reason that UCC is a matter for the legislature to legislate upon can never be sufficient. We cannot afford going back to the era of ADM Jabalpur. Why countries like Pakistan, Malaysia, etc which have huge Muslim population have banned divorce in one sitting, why cant we take a step ahead? 9. Bibliography Legislations Cited Bombay Prohibition of Hindu Bigamous Marriage Act, 1946 Hindu Marriage Act, 1954 Indian Christian Marriage act, 1872 Parsi marriage and Divorce Act, 1936 Special Marriage act, 1954 Codified and Uncodified version of Muslim Law Hindu Bigamy Prevention and Divorce Act, Madras Act VI of 1949 Indian Divorce Act, 1869 Books referred Doddawadmath, J. V., Personal Law relating to woman, Allahabad Law Agency, Haryana, 2011. Articles Cited Liechter, Alexandra, The Effect of Jewish Divorce Law on Family Law Litigation. Retrieved from http://www.iaml.org/cms_media/files/the_effect_of_jewish_divorce_law_on_family_law_litigation.pdf

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