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Constitutionality of Personal Laws in India

Submitted By:

Nitu Mittal

BBA LL.B, Division B, Roll No- 4

Symbiosis Law School, NOIDA

Symbiosis International University, PUNE

On

13 September, 2013

Under the guidance of

Prof. Ashok Wadge

Symbiosis law School, NOIDA

Symbiosis International University, PUNE

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CERTIFICATE

The Project entitled Constitutionality of Personal Laws in India

submitted to the Symbiosis Law School, NOIDA for Family Law- I as part

of internal assessment is based on my original work carried out under the

guidance of Prof. Ashok Wadge. The research work has not been

submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the thesis

has been duly acknowledged. I understand that I myself could be held

responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate

Date

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ACNOWLEDGEMENT

A special vote of thanks to Prof. Ashok Wadge (Associate Professor,

Symbiosis Law School, Noida; Symbiosis International University, Pune)

for guiding me about how to make the project. This project could not

have been a success without his guidance and support. However, the

entire responsibility of the content of the project lies on me.

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TABLE OF CONTENTS

Table of Cases.......5

1. Introduction.........6

2. What is Constitutionality...7

2.1 372...............................................................................7

2.2 Article 13.......................................................................7

2.2.1 Laws in force..............................................................7

2.2.2 Laws..........................................................................8

3. Conflict of Personal Laws and certain provisions of the

Constitution..........................................................................9

3.1 Article 15 and 25.............................................................9

3.2 Article 21.......................................................................9

4. Personal laws and Women in India.................10

4.1 Triple Talaq in Muslims..........................10

4.2 Bigamy by Conversion....................................................11

4.3 Get in Jews...................................................................12

5. Personal Laws and the Constitution..........12

5.1 Personal laws are subject to JR........................................12

5.2 Personal laws are not subject to JR..................................13

5.2.1 Narsu Appa Mali........................................................13

5.2.2 Post Narsu Appa Mali.................................................13

6. Whether choice of a particular law amounts to waiver of

Fundamental Right..............................................................14

7. Need of a Uniform Civil Code...............................................15

8. Conclusion.........................................................16

9. Bibliography............................17

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TABLE OF CASES

A

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

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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.

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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 Mohammad1 wherein it has been held:

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 1 AIR 1958 MP 423

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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 India2.

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 Act3 which was challenged was held not to be

ultra vires the Constitution.

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

2 AIR 1999 Ker 345

3 Central Act 4 of 1869

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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 Ammal4. In the case, an act

called the Hindu Bigamy Prevention and Divorce Act5 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.

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

4 AIR 1952 Mad 193

5 Madras Act VI of 1949

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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

Union6 India said that personal laws are subject to Article 21 which

talks about right to liberty of an individual.

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

6 1995(1) KLJ 624

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consecutive periods of purity (tuhr). No intercourse should have taken

place during the period of purity in which a pronouncement has been

made.7

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

India9 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.

7 Doddawadmath, J. V., Personal Law relating to woman, Allabad Law Agency, Haryana, 2011.

8 2003(3) PLJR 126

9 AIR 2000 SC 1650

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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.10 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.

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 India11; 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.

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

10

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 11

2010(1) KLJ 449

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of Sri Swaminathaswami thirukoil 12 ; T Sareetha v T

Venkatubiah13; etc.

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 Mali14. 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.

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 Ammal15; Madhu

12

(1996)8 SCC 525 13

(1983) AIR 5 AP 356 14

ILR Bom 1951 775 15

AIR 1952 Mad. 193

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Kishwar v State of Bihar 16; Saroj Rani v Surdashan Chadda17;

Daniel Latifi V Union of India18, etc.

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

India20 wherein a Syrian Christian lady married a Christian man and

decided to be governed by the Indian Divorce Act, 1869.

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

16

(1996) 5 SCC 125 17

AIR 1984 SC 1562 18

(2001) 7 SCC 740 19

1983 AIR 130 20

ILR 1995(2) Kerala 431

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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 India21; a PIL was filed before the SC for directing a writ of

mandamus against the Defendants for enacting a UCC.

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?

21

AIR 1997 SC 3614

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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?

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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