Personal Laws and Customs are integral to societal behaviour and norms. Invalidating them vide avenues of Legal Fiction often results in intruding into the lives of citizens, thereby eroding their faith in the system. Certain customs seem to be exemplary of alleged inequality; however, they are not always detrimental, especially when the said inequality may be a derivation of a religious sanction or historically accepted tradition. In this regard, would it not be appropriate to state that ‘To erode a man’s faith is perhaps a crime, even when facilitated by an institution of Justice.’

In Narasu Appa Mali v. State of Bombay[1], the Bombay High Court held that Personal Laws are not a part of Article 13, nor they are outside the ambit of Judicial Scrutiny. Justice Chandrachud in the Indian Young Lawyers Association v. The State of Kerala[2] overruled, by implication, the celebrated judgement, and presented refuting arguments on the same. The article presented herewith attempts to include additional arguments in the said matter, in addition to those stated in Narasu Appa.

Firstly, MP Jain emphasized that Personal Laws are not covered under Article 13. Courts deemed it prudent not to interfere with these laws on the touchstone of fundamental rights.[3] In the case of Krishna Singh v. Mathura Ahir[4] the Apex Court while considering the question whether a Sudra could be a Sanyasi or Yati held that Part III of the Constitution is not applicable to Personal Laws, and if the constitutional validity of such Personal Laws is to be verified, then the trail of study, research and application must be carried out with reference to all sources of the laws being considered. The same was upheld by the Hon’ble Supreme Court in the case of Madhu Kishwar & Ors v. State Of Bihar & Ors.[5] On the issue of constitutional validity, Chief Justice Khehar and Abdul Nazir J. held that Triple Talaq cannot be challenged as it had been in practice for over 1400 years, continues to be an accepted norm, and is also included in Sharia Law. They further held that Triple Talaq is not open to challenge on the grounds of violation of Fundamental Rights as it was a Personal Law.[6]

In the case of Harvinder Kaur v. Harmendar Singh[7], the Delhi High Court was required to decide as to whether the provisions of Section 9 of the Hindu Marriage Act,1955 providing for restitution of conjugal rights is in violation of Article 14 and Article 21 of the Constitution. The court upheld the validity of the section and also held that ‘the introduction of Constitutional Law in the home is most inappropriate, and it could be a ruthless destroyer of the marriage institution and all that it stands for’. It was also held that in the privacy of the home, and in married life, neither Article 21 nor Article 14 are appropriate for application. Marriage is an integral part of every religion and hence in the case Sardar Sydena Taher Saifuddin Sahed v. State of Bombay[8] it was stated that the exception to the Freedom of Religion as provided in Article 25(2) enabling the state to frame laws for ‘social welfare and reform’ cannot permit the legislature to ‘reform’ a religion and transform its orignal existence or identity.  In this case, the Court elucidated that the intention of Article 25 (2) (b) is to cover only those laws that do not contravene the essentials of a religion, and a law which infringes such right cannot be permitted in the name of social reform because such action would place a religion out of existence. The expression ‘social reform’ doesn’t extend to the basic and essential practices of religion, which is guaranteed by Article 25(1) itself. In fact, it sanctions ‘social’ reform and not ‘religious’ reform.  It has been observed by H.M. Seervai in the case of Inayatullah v. Gobins Dayal[9] that, Hindu and Mohammedan Laws are so intimately connected with religion that they cannot readily be dissevered from it. Personal Law is intrinsic to Religion, and it should hence be the prerogative of the doctrines of religion, to decide what is a part of that particular religion.

In case of a conflict between religious practice and the need for social reform, religion must be the dominant force. [10]A similar viewpoint was observed in the Constitutional Assembly debate, where Naziruddin Ahmed pleaded that the abrogation of a Personal Law should not be treated as a regulation of secular affairs surrounding a religion or as a measure of social welfare and reform.[11]

Additionally, in the early years of British rule in India, there was a policy of non-interference in religion and laws of Muslims. A manifestation of such non-interference is The Hastings Plan of 1772 and Article xxiii of Regulation II of 1772 that established a hierarchy of civil and criminal courts that applied laws of Quran to Muslims in all suits regarding inheritance, marriage, caste and other religious circumstances or institutions’. The Hastings Plan of 1772 provided for Maulvis (Muslim Priests) to help and advise the courts on matters of Muslim Personal Laws. Muslims continued to follow their un-codified personal laws in matters such as succession of property, marriage and divorce. There was no interference from the courts in the Personal Laws of people.

It is also said that Personal Laws form the immutable element of religion. This is because there is always, even above the constitutional law or a written transnational law, an immutable unwritten higher law rooted in nature or reason which is more precious and deserves to be zealously guarded against a passing law written by a particular legislature at a given time. Religious personal laws are divine and inviolable because such laws are deemed to be an ordinance by God or the Prophets. Law cannot become a fulcrum of change, if society is unwilling to accept them.[12] Similarly, Gudrun Kramer asserts that justice can be realized by various means, as long as they do not conflict with the immutable elements of divine law.[13] Now, if it is possible to amend Sharia law, the problem remains ‘who has the right to reform these laws?’[14]This is because what constitutes essential parts of religion, is determined in respect of the doctrines of that religion itself.[15] Any institution of state should not be given unchecked authority to decide upon the essence of religious denomination and the (un)essential practices thereof.[16] It is also submitted that in the exercise of the power to regulate, authorities cannot sit in judgment over the professed views of the adherents of the religion to determine whether the practice is warranted by the religion or not. This is not considered to be their function.[17]

For instance, as stated by the court in the Shirur Mutt case, if the tenets of any religious sect of the Hindus prescribe that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be recital of sacred texts in terms of marriage, all these would be regarded as parts of religion. Under the Hindu religion, marriage as a sacramental union implies that it is a sacrosanct union; such a marriage then cannot take place without rituals and ceremonies.[18] Under the Muslim law, however, accordance of marriage is not a sacrament but a civil contract hence consent of the parties is integral to a Muslim marriage.[19] Under the Parsi[20] and the Jew[21] laws their respective religious ceremonies, ashirbad and katuba are considered to be essential to the religions. It is important that all these different observations are respectively respected and not placed in a hierarchy, thereby pitting one religious approach against another.

Thirdly, the acclaimed jurist H.M. Seervai has observed that it is not uncommon in a Constitution to make express provisions for matters to which its makers attach great importance, instead of leaving them to the dilatory and hazardous process of litigation.[22] Hence, if personal laws are not mentioned specifically in Article 13 of the Constitution one cannot presume the fact the personal laws come under the ambit of laws under Article 13.

Fourthly, bringing Personal Laws under the wide umbrella of Judicial Scrutiny goes against Art. 29 of the Indian Constitution. Article 29 protects the interests of minorities by making a provision that any citizen/section of citizens having a distinct language, script or culture have the right to conserve the same.[23] While framing a law it has to be borne in mind that cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for a threat to the territorial integrity of the nation.^[24] The Supreme Court in T.M.A Pai Foundation v. State of Karnataka and Ors.^[25] reiterated that: The essence of secularism in India is recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole united India.

Therefore, a harmonious construction is very much required between Religion and Society, by delving deep again into this issue. Law would never be able to become the Fulcrum of Change, if it is not accepted by society.

[1] State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Bom. 84.

[2] Indian Young Lawyers Association v. The State of Kerala 2018 SCC OnLine SC 1690.

[3] 1 MP Jain, Indian Constitutional Law 990 (5th ed. 2003).

[4] Krishna Singh v. Mathura Ahir, (1981) 4 S.C.C. 421

[5] Madhu Kishwar  v. State Of Bihar, (1996) 5 S.C.C.  125.

[6] Shayara Bano v. Union of India, A.I.R. 2017 S.C. 4609

[7] Harvinder Kaur v. Harmendar Singh, A.I.R. 1984 Del. 66.

[8] Sardar Sydena Taher Saifuddin Sahed v. State of Bombay 1962 AIR 853.

[9] Inayatullah v. Gobins Dayal, (1885) I.L.R. 7 ALL. 775.

[10] Khursheed Ahmad Khan v. State of Uttar Pradesh, A.I.R. 2015 S.C. 1429.

[11] VII Constitutional Assembly Debates, 540-41 (1948)

[12] Justice D.M. Dharmadhikari, Law: Fulcrum of Change?,(2013) 4 SCC J-44

[13] Rudolph C. Barnes, Jr., Religion, Law and Conflicting Concepts of Legitimacy (2016).

[14] Myriam Sfeir, Round Table Personal Status Laws 21 (2006).

[15] The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others (1983) 4 SCC 522

[16] Mohammad Ghouse, Freedom of Religion and Judicial Review: A Critique of the Canon of Adjudication,  The Indian  Law Institute (Dec. 22, 2016), http://14.139.60.114:8080/jspui/bitstream/123456789/712/31/Freedom%20of%20Religion%20and%20Judicia l%20Review%20.pdf.

[17] Jesse Cantwell v. State of Connecticut J., 310 U.S. 296 (1940)

[18] Paras Diwan, Law of Marriage and Divorce 18 (7th ed. Universal Law Publishing)

[19] Ghulam Kubra v. M. Shaf, A.I.R. 1941 Oudh. 284.

[20] Parsi Marriage and Divorce Act, 1936 § 3 cl. b

[21] Benjamin v. Benjamin, I.L.R. 50 Bom. 359.

[22] 1 H.M. Seervai, Constitutional Law of India  (4th  ed. Universal Law Publishers 1991)

[23] Indian Const. art. 29

[24] Law commission of India Consultation Paper on reform of family law, 9 (31 Aug. 2018)

[25] T.M.A. Pai Foundation v. State of Karnataka, (1994) 2 S.C.C. 195

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ABOUT THE AUTHOR

Deeksha Sharma

Deeksha Sharma is currently a second-year student at Dr. Ram Manohar Lohiya National University, Lucknow. Her areas of interest are Constitutional Law, Arbitration Law and Criminal Law. She has written many papers, especially areas covering women and her rights. She has won “Best Memorial” (Petitioner) at M.C Chagla Memorial Moot, GLC Mumbai.