Final Thesis

Muslim Personal Law,
Uniform Civil Code and Judicial

Activism- A Critical Study
THESIS SUBMITTED TO THE

UNIVERSITY OF LUCKNOW
FOR THE AWARD OF DEGREE OF

DOCTOR OF PHILOSOPHY
Supervisor :
Dr. Mohd. Ahmad
Associate Professor
Faculty of Law,
University of Lucknow, Lucknow
Submitted By :
Prabodh Kumar Garg
Research Scholar
Faculty of Law,
University of Lucknow,
Lucknow
FACULTY OF LAW
UNIVERSITY OF LUCKNOW,
LUCKNOW, U.P. (INDIA)
ii
2014
Certificate
This is to certify that Mr. Prabodh Kumar Garg, Research
Scholar, Faculty of Law, University of Lucknow, Lucknow has
completed his thesis, titled "Muslim Personal Law, Uniform Civil
Code and Judicial Activism- A Critical Study" under my
supervision, for the award of degree of Ph.D. of University of
Lucknow, Lucknow. He is completed all formalities as required
under the ordinance and the thesis is forwarded for evaluation.
(Dr. Mohd. Ahmad)

Associate Professor
Faculty of Law,
University of Lucknow,
Lucknow
CONTENTS
PRELIMINARY
(i)
(ii)
(iii)
(iv)
(v)
Supervisor Certificate
Contents
Acknowledgment
Abbreviations
List of Cases
Chapter I
Introduction
Chapter II
Philosophy and Concept of Uniform Civil Code
(A)
(B)
(C)
Personal Laws and Hindu in India

Personal Laws and Muslims in India
British Period
(i)
Prelude
(ii)
Advent of Britishers
(iii)
British Policy towards Personal laws
(a)
Philosophy of Neutrality
(b)
Codification of law
(c)
Legislation on Personal law
(I)
Hindu Laws
(II)
Muslim Law
Chapter III
Legislative History of Personal Laws in India
(A)
(B)
Hindu Law and The Legislature

(i)
Pre Independence Legislation
(ii)
Post Independence Legislation
Muslim Law and The Legislature
(i)
Act Relating to recognition of Muslims Law
ii
(ii)
(C)
Act Affecting the Substantive Provisions of Muslim

Law
(iii)
Acts Regulating Procedural Aspects of Muslim Law
(a)
Pre Independence Era
(b)
Post Independence Era
Christian and Parsi Laws and The Legislature
Chapter IV
Personal law and the Constitution of India
(A)
(B)
(C)
(D)
Personal laws and the Indian Constituent Assembly

Personal Laws and Legislature Powers
Personal Laws and The Fundamental Rights
(i)
Personal Laws and Article 13
(ii)
Personal Laws and Article 14 & 15
(iii)
Personal Laws and Religious Cultural Freedom
(iv)
Fundamental Rights as the Strategy for attaining
Uniform Civil Code
Personal Laws and Directive Principles
(i)
Article 44
(ii) Family, Law, Religion and Social Justice
(iii)
Directive Principles, Social Change and Uniform
Civil Code
Chapter V
Judicial Response to the Philosophy of Uniform Civil Code
128-201
(A)
Prelude
(B)
Judicial Response to Polygamy
(C)
Judicial Response to Property and Succession
(D)
Judicial Response to Divorce and Maintenance
(E)
Some Celebrated Decisions
(i)
Narsu Appa Mali Case
(ii)
Shah Bano Case
(iii)
Jorden Diengdesh Case
(iv)
Sarla Mudgal Case
(v)
Ahmadabad Women Action Group Case
iii
Chapter VI
Conflict of Law and Uniform Civil Code
(A)
(B)
(C)
Conflict between Hindu Law and Christian Law

Conflict between Muslim Law and Hindu Law
Conflict between Christian Law and Muslim Law
Chapter VII
The Muslim Women (Protection of Rights on Divorce) Act,
1986: Parliament Initiative After Shah-Bano Case
Chapter VIII
Conclusion & Suggestion
Appendix
(I)
(II)
(III)
(IV)
(V)
(VI)
(VII)
The Muslim Personal Law (Shariat) Application Act, 1937

The Dissolution of Muslim Marriages Act, 1937
The Mussalman Wakf Validating Act, 1913
The Child Marriage Restraint Act, 1929
1986
The Muslim Women (Protection of Rights on Divorce)
Rule, 1986
The Parsi Marriage And Divorce Act, 1936
Bibliography
Acknowledgment
To the Almighty God, I bow my head in humility and reverence
for having gifted man with the faculty of reasoning and spirit of
discovery.
I wish to express my most sincere and profound gratitude to my
Supervisor Dr. Mohd. Ahamad
(Associate Professor) Faculty of
Law, University of Lucknow, Lucknow
for his cognate attitude,
skillful guidance and continued encouragement during the course of

this study, despite his extremely busy schedule. He was kind enough
to spare his valuable time, whenever I need his help.
I am thankful Prof. Dr. R.R. Lyall, Head/Dean, Faculty of Law,
University of Lucknow, Lucknow and Prof. Dr. O.N.Mishra, ExHead /Dean Faculty of Law, University of Lucknow and Dr. Kamal
Ahmad Khan, Associate Professor, Faculty of Law, University of
Lucknow, Lucknow for their cognate attitude, skillful guidance and
continued encouragement during the course of this study, despite his
extremely busy schedule. They were kind enough to spare his valuable
time, whenever I need his help.
I shall fail in my duty if we do not express my sincere thanks to
the teacher of the faculty of law, University of Lucknow, Lucknow for
this valuable suggestion, which helped us immensely to accomplish
this research work.
I would like to special thanks to my respected teacher Dr.

Lily Srivastava (Associate Professor, J.N.P.G. Collge, Lucknow) for her
cognate attitude, skillful guidance and continued encouragement
during the course of this study, despite her extremely busy schedule.
She was kind enough to spare her valuable time, whenever I need his
help.
I am thankful to all my friends for their valuable cooperation
and suggestion for the research work.
I
am
immensely
thankful
to
the
top
legal
luminaries,
academician and bureaucrats who came in my contact during the

course of this study which held me to develop an interest, and
understanding legal issue in depth.
I am also thankful to the staff of various libraries particularly
the Library of Indian Law Institute, New Delhi, Dr. R.U. Singh and
Tegore library, University of Lucknow, library of Delhi University and
library of Aligarh Muslim University for their assistance rendered to
locate the material to accomplish this research work.
Date
Place :
Prabodh Kumar Garg
Abbreviation
A.C.
Appeal Cases
A.E.L.R.
All England Law Reports
A.I.R.
All India Reporter
A.J.C.L.
Allahabad Journal of Company Law
A.L.J.
Allahabad Law Journal
A.L.J.J.S.
Allahabad Laws Journals, Journal Section
A.P.
Andhra Pradesh (A.I.R.)
A.P.H.
Ashish Publishing House
All.
Allahabad
Apas.
Apasthamba
B.C.
Before Christ
B.H.C.
Bombay High Courts Reports
Baud.
Baudhyan
Beng. L.R.
Bengal Law Reporter
Bom. L.R.J. :
Bombay Law Reporter Journal
Bom.
Bombay
Bom.
Bombay (A.I.R.)
Bomb. L.R.
Bombay Law Reporter
C.L.Q.
Comparative Law Quarterly
Cal. W.N.
Calcutta Weekly Notes
Cal.
Calcutta
Ch., Chap.
Chapter
Civ. L.J.
Criminal Law Journal
Cr.P.C.
Criminal Procedure Code
D.B.
Division Bench
vii
D.M.C.
Divorce and Matrimonial Cases
e.g.
Exampli Gratia
ed.
Edition
F.B.
Full Bench
Guj.
Gujarat
H.C.
High Court
H.L.R.
High Court Reports
H.P.
Himanchal Pradesh
I.A.
Indian Appeals
i.e.
That is
I.L.R.
Indian Law Reports
Ibid.
Ibidem
Id.
Idem
J.
Journal
J.I.L.I.
Journal of Indian Law Institute
J.T.
Judgment Today
Kant.
Karnataka
Ker. L.T.
Kerala Law Times
Ker.
Kerala
Ltd.
Limited
M.I.A.
Moore's Indian Appeals
M.L.J.
Madras Law Weekly
M.P.
Madhya Pradesh
Mad.
Madras
Mat. L.R.
Matrimonial Law Reports
N.O.C.
Note on Cases
Nag.
Nagpur
viii
op.cit
Opere Citato
Ori.
Orissa
P.& H.
Punjab Law Reports
P.C.
Privy Council
p.pp.
Page, pages
Pat.
Patna
Punj.
Punjab
Pvt.
Private
Raj.
Rajasthan
S.C.
Supreme Court Cases
S.C.J.
Supreme Court Journals
Sect.
Section
U.P.
Uttar Pradesh
U.S.
United States
Viz.
Videlicet
Vol.
Volume
vs.
Versus
W.L.R.
Weekly Law Reports
Yaj.
Yajnavalkya
List of Cases
Abdullah v. Chandni, AIR 1956 Bhobal 71
Ahmedabad Women Action Group v. Union of India, (1997) 3

SCC 573.
Badruddin v. Aisha, (1957) ALJ 300
Bal Tahir v. All Fissali, AIR 1980 SC 362
Begum Subanu Alias Saira Banu v. A.M.Abdul Gafoor, AIR

1987 SC 1103
Bhagwal Dutt v. Smt. Kamla Devi, 1975 SC 84
Bishnu Charan Mohanty v. Union of India, AIR 1993 Ori. 176
D.S. Nakara v. Union of India, AIR 1983 SC 130
F. N. Balsara v. State of Bombay, AIR 1959 SC 318
10
Fuzlundi v. Khadar Vali, AIR 1980 SC 1730
11
Gurdidal Kaur v. Mamgal Singh, AIR 1968 P & H
12
H.B. Singh v. Bhani, AIR 1959 Manipur 20
13
Hyde v. Hyde, 1986, P & D 130
14
Itwari v. Asghari, AIR 1960 All 684
15
Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1473
16
Khambatta vs. Khambatta, AIR 1935 Bomb. 5
17
M.H. Qureshi v. State of Bihar, 1959 SCR 629
18
Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125 p. 135
19
Mangila Bivi v. Noor Hossain, AIR 1992 Cal. 92
20
Marx Roy v. State of Kerala, AIR 1986 SC 1011
21
Menka Gandhi v. Union of India, 1978 1 (SCC) 248.
22
Mohd. Ahmad Khan v. Shah Bano, AIR 1985 SC 945
23
Moti Das v. S.P. Hahi , AIR 1959 SC 962
24
Mr. Jordan Dienghed v. S.S. Chopra, AIR 1985 SC 935
25
National Textile Works Union v. Rama Krishna, IR 1983 SC 75
26
Nurjahan vs. Tiscenco, AIR 1942 Cal 325
27
P.U.D.R.V. Union of India, AIR 1982 SC
28
Ram Prasad v. State of U.P., AIR 1957 All 411
29
Randhir Singh v. Union of India, AIR 1982 S.O. 879
30
Robaba Khanum v. Khodadar Bomanji Irani, ILR (1948)

Bomb. 223.
31
Sarla Mudgal v. Union of India, (1955) 3 SCC 635
32
Sooa v. Sankappa Rai, AIR 1963 Mrs. 245
33
Sri Nivas Iyer v. Saraswath Ammal, AIR 1952 Mad. 1993
34
State of Bombay v. Narsu App Mali, AIR 1952 Bomb. 84
35
State of Maharashtra v. Champakam Dorairajam, AIR 1951

SC 226
Chapter I
Introduction
India is a country which abounds in personal laws and
each community has its own personal law. 1 The Indian Legal
System is based in part on the English common law system,
with respect to Muslim personal Law as applied in India, the
sources of law are Hanafi Fiqh along with some resort to other
schools, legislation, precedent, certain Judicial texts (both
classical and modern) that are considered authoritative and
custom.
During the British Raj the colonial courts were directed
to apply "indigenous legal norms" in matters relating to family
law and religion, with "native law officers", advising the court on
the determination of those norms. A number of Hanafi sources
(notably Al-Hidaya and the Fatawa Alamgiri) were translated
into English. The advisory positions of legal experts on Hindu
and Muslim Law were abolished in 1864. Legal commentators
on the development of the indigenous system of "AngloMohammadan" law (now more commonly referred to as IndoMuslim law) attach verifying degrees of significance to the
subsequently authoritative position of these works (and the
quality of the translation), the absence of Judicial Expertise in
1
Dr. Paras Diwan, Peeyashi Diwan: Family Law; Third Ed. 2
Muslim Law, the introduction of principles of English Law and

Procedure through Judges trained in the English legal tradition
and through interpretation of the residual formula of "Justice
and right" or "Justice Equity and good conscience" to imply
mainly English law and to the position taken on customary law.
The status of the Personal Laws of minority communities
and the plurality of religious law in general is much debated in
India.
Article 44 of the Constitution legislates a commitment to
the gradual establishment of legal uniformity in India, the aim
being that the state "shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India." This
directive is considered a threat by elements of religious minority
communities, who continue to be governed by their own
personal laws in family matters, as applied with in the
superstructure of the India Legal System.
The Constitution of India, under its one of the directives,
provides for Uniform Civil Code directs the state to secure for
the citizens a Uniform Civil Code throughout the territory of
India.2 By implication, it can be made applicable to all citizens
irrespective of their caste, creed, religion, color, and place of
birth, which indeed remains source of controversy since its very
inception. Right from the process of the Constitution making till
2
Article 44 of The Constitution of India, 1950: "The state shall endeavour to

secure for the citizens a Uniform civil code throughout the territory of India."
date, voices for and against have surfaced from various

Quarters. In this process latter has been successful in pushing
the issue of imposition of the uniform civil code into oblivion
and limbo. However, the apex judiciary, time to time, has
responded
favorably
for
its
enforcement.
The
latest
pronouncement of the Supreme Court inSarala Mudgal, President, Kalyani
Vs.
Union of India 3
(hereinafter Sarala Mudgal case) is a pointer to unwarranted

and uncalled judicial Activism'.
The constitution of India ensures equality4 to all citizens
irrespective of their caste, sex, creed, religion, and place of
birth. freedom of religion, its practice and propagation, freedom
of culture, freedom to manage religious affairs and educational
rights are also guaranteed as Fundamental Rights to all citizens
including
minorities.
Despite
constitutional
safeguards
communal harmony are being disturbed on negative tenor like;

Muslim personal law,
(herein after referred as MPL) uniform
civil code, sanctity of religious places.

The Constituent assembly debates in the constitution
making process revealed that the constitution makers debated
the concept, relevance and utility of the Uniform Civil Code. The
Muslim members of the constituent assembly opposed the move
with
all
possible
intensity
at
their
command.
3
4
In
this
(1955) 3 SCC 635

Articles 14 & 15 of the Constitution of the India, 1950
background, the arguments for and a quest for the objective

evaluation of the Uniform Civil Code, will not be out place in
India which is known for its religious, cultural and lingual
diversities.
The constituent assembly debated the Uniform Civil
Code under article 35. Mohammad Ismail from Madras moved
the following proviso for addition to article 35, which provided
that any group, section or community of people shall not be
obliged to give up its own personal law in case it has such a law.
He advocated that the right to adhere to own personal Law was
one of the fundamental Rights. He asserted that Personal Laws
were the part of the way of life of the people. In his evaluation,
personal laws were the part and parcel of religion and culture.
Any interference with the personal laws, in his view, would
tantamount to interference with the very way of the life of those
who had been observing such laws for generation to generation.
He elucidated that India was emerging as a secular state and it
must not do anything which hindered the religious and cultural
ethos of the people. To strengthen his argument he cited
precedents of Yugoslavia, the kingdom of the serbe, Croats, and
Slovenes which were obliged under treaty obligations to
guarantee to Muslims being in Minority in the matter of family
Laws and personal status.
Mr. Naziruddin Ahmed, another noted member of the

constituent assembly, moved a proviso to Article 35 which
reads:
Provided that the personal law of any community which
has been guaranteed by the state shall not be changed except
with the previous approval of the community ascertained in
such a manner as the Union Legislature may determine by law.
Elaborating his proposed proviso, he remarked that the
Uniform Civil Code would not create inconvenience to Muslims
only, but to all religious communities who had religious oriented
laws and other laws which were inseparably interwoven with
their beliefs and practices. He argued that the very concept of
the Uniform Civil Code clashed with the religious and cultural
freedom guaranteed to every citizen as Fundamental Rights. He
pointed out that Article 35 draft was capable to encourage the
state to violate the guarantees sanctioned by the Constitution
for freedom of religious belief, practice and propagation.
Surveying the legal developments in the Indian
subcontinent, he pinpointed certain provisions of the civil
procedure code, 1908 which had already interfered with the
MPL. However, the British Administration, as he pointed out,
during its 175 year rule, did not interfere with the institution of
marriage, dower, divorce, maintenance, guardianship, paternity,
acknowledgement,
waqf,
wills,
gifts,
pre-emption,
administration of estate, and inheritance. Whatever laws were

enacted in the area of MPL during the British administration of
Justice, were mostly on the initiative of the Muslim community.5
He appealed that advocacy for protection of laws and
keeping them out of purview of the Uniform Civil Code must not
be taken as a proposition of idealism, but as a matter of stern
reality. The move of the Uniform Civil Code, he warned, would
lead to confusion, misunderstanding and resentment in various
section of the society. In this perspective his not of caution is
pertinent to be quoted:
"What British in 175 years failed to do or was afraid to do
what the Muslim rulers in the course of 500 years refrained
from doing, we should not give power to the state to do"
Dr.B.R.Ambedkar, tried his best to solace the Muslim
members on the issue of the Uniform Civil Code:
"I shall also like to point out that the state is claiming in
this matter power to legislate. There is no obligation upon
the state to do away with the personal laws. It is only
giving the power. Therefore no one need to be apprehensive
of the fact that if the state has the power, the state will
immediately proceed to execute or enforce that power in a
manner that may be found to be objectionable by the
5
Dargah Khawaja Sahib act 1936, Dissolution of Muslim Marriage Act 1939,
Kazi Act 1880, MPL (Shariat) Application Act 1931, Muslim Dower Act 1920,
Muslman waqf validating Act 1913
Muslims or Christians or by other community in India.

Sovereignty is always limited, no matter even if you assent
that is unlimited, because overeignty in the exercise of that
power must reconcile itself to the sentiments of different
communities. No government can exercise its power in such
a manner as to provoke the Muslim community to rise in
rebellion. I think it would be mad government if it did so."
Besides the above observation, Dr. Ambedkar persuaded
the Muslim members not to read too much into article 44. He
affirmed even if the Uniform Civil Code was implemented, it
would be applicable to those who would consent to be governed
by it.
MPL is pre-constitutional. It has been in operation
through out the territory of India. Since the Mughal regime
down to the British administration of the justice, the MPL was
duly protected and implemented. It is derived from Islam and
the Islamic way of life. It manifests the religious faith and
cultural ethos of the Muslim community. It is part and parcel of
Islamic
religion
and
culture.
The
constitution
of
India
guarantees the religious and cultural freedom. 6 Religion is the

matter of faith and conscience. The culture and civilization
incorporate the religious ethos. MPL being the very core of
6
Article 25(1) of the Indian Constitution

Article 26(a)(b) of the Indian Constitution
Article 29(1) of the Indian Constitution
Islamic religious faith amalgamates in itself belief, practice

and propagation.
The ambit of religious cultural freedom enshrined in part
III of the constitution as the fundamental Rights cover the MPL.
Thus, MPL being the part and parcel of the religion and
culture of the Muslim Community is duly protected by Part III of
the Constitution. In such Constitutional scenario if the state
enacts any Law which takes away or abridges the Personal Law
of the Muslim community, it shall attract Article 13(2) of the
Constitution which reads:
"The state shall not make any Law which takes away Or
abridges the Rights conferred by this part (III) And any Law
made in contravention of this clause shall to extent of the
contravention, be void."
Not only religious belief, but acts done in pursuance of
religious performance or practice: rituals, rites, ceremonies,
observances and modes of worship are protected under Article
25(1) and 26(B) of the Constitution. These Constitutional
provisions embody the principle of religious tolerance and serve
to secular nature of Indian democracy which the architects of
the Constitution considered the very basis of it.7
The Indian Judiciary, on the issue of the Uniform Civil
Code and the personal laws has not been consistent. It has
7
Sardar syedma Tahir Saifuddin Sahib Vs. state of Bombay, AIR 1962 SC 853
adopted diverse approaches on different occasions. The division

bench of the Calcutta High court In Naresh Chandra Bose Vs.
Sachindra Nath Deb,8 held that the expression Law in force
under article 372(2) of the constitution was not limited to
statutory laws, but it extended to cover customary laws and
personal laws like that of the Muslim community. Further,
observed that article 44 of the constitution itself recognized the
existence of different sets of personal Laws for different
communities.
The Supreme court in Krishna Singh Vs. Mathura9
opined that in process of applying the personal laws of the
parties, the judges of the High Court could not introduce their
own concept of modernity. In view of the Supreme Court, the
constitution maintained the position of personal laws status
qua. The Constitutional bench of five Judges In Mohd. Ahmad
Khan Vs. Shah Bano Begum10 Opined on the Uniform Civil Code
while it was not the issue before the Supreme Court for Judicial
treatment. The relevant observation held unanimously by the
five Judges is noted below:It is also a matter of regret that Article 44 of our
Constitution has remained a dead letter. It provides that the
state shall endeavour to secure for the citizens a Uniform civil
code throughout the territory of India. There is no evidence of
8
9
10
AIR 1956 Cal 224

AIR 1980 SC 707
AIR 1985 SC 945
10
any official activity for framing a common civil code for the
country. A belief seems to have gained ground that it is for the
Muslim community to take a lead in the matter of reforms of
their Personal Law.
The latest controversial verdict of the Supreme Court in
Sarla Mudgal Case11 wherein the Supreme Court, preferred to
deal with the Uniform Civil Code, while therein the issue was
not raised for judicial treatment. The following issues were
raised before the Supreme Court:
a-
Whether a Hindu male married according to Hindu rites

could
b-
Whether
Solemnize second marriage by embracing Islam?

such
dissolution of
c-
was
possible
without
the
first marriage?
Whether the first Hindu wife could continue with the

status of
d-
marriage
wife?
Whether the husband converted to Islam having married

with other female would be guilty of offence under section
494 of Indian penal code, 1860?
Out of four issues raised before the Supreme Court,
none of the issues was related to the Uniform Civil Code for
Judicial treatment. Nevertheless, for reason best known to
Justice Kuldip Singh and his companion Judge Mr. Justice R.M.
Sahai who suo-moto, picked up the Uniform Civil Code and
11
(1955) 3 SCC 635
11
expressed their opinion on it at length. Both expressed their

favour for the implementation of it, relying on Shah Bano case
with their approval.
Besides other key concept, secularism, religious and
cultural freedom under article 25 is not confined to freedom of
conscience but its ambit covers the right to profess, practice
and propagate the religion by the citizens. Indeed, religion is a
wide and pervasive concept. It is not confined to Faith only
because practice and propagation are the part and parcel of
the religion. Faith represents the inner aspect of religion, while
practice and propagation manifest the external aspect.
Marriage, dower, divorce, maintenance, guardianship,
paternity, acknowledgement, waqf, wills, gifts, pre-emption,
administration of estate, and inheritance and Conversion are
the integral part of the MPL. These are religious in nature and
content. All those come with in the purview of religious freedom
guaranteed under Article 25 of the Constitution of India. It is
not worthy a Constitutional guarantee but also it is the core
and crux of our culture.
The sensitivities of minorities are even endorsed by the
founding father of the constitution which is reflected in
constitution which accords protection to religious, cultural and
educational rights in favour of minorities including Muslims on
the footing of the fundamental rights. If Justice kuldip Singh
12
believes that adherence to personal laws by the Muslim

community in India weakens national unity and integration, he
is a victim of fallacious assumption. It negates reality and
legality of the existence of different religions and cultures of
different communities in India. The present study has been
made having the following objectives:
(a)
To emphasise and reiterate the importance and urgency

for adopting a Uniform Civil Code.
(b)
To remove the apprehensions and misgivings of the people

and particularly the minorities and to evolve a consensus.
(c)
To promote public demand for a Uniform Civil Code in

general and legislative opinion in particular.
(d)
To analyze the constraints to enact a Uniform Civil Code

and to suggest strategies to achieve the Uniform Civil
Code in India.
In order to study the relevance of Uniform Civil Code
under the Indian scenario the present study has been divided
under eight chapters.
Chapter I- Introduction.
Chapter II deals with it philosophy and concept of
Uniform Civil Code. This chapter
is further sub-divided into
three parts namely, personal law and Hindu in India, personal

law and Muslims in India and British period.
13
Chapter III, deals legislative history of personal law in

India. This chapters is further sub-divided into three parts
Hindu law and the legislature, Muslim law and the legislature
and Christian and Parsi law and the legislature.
Chapter IV, deals with the constitutional provision
relating to Uniform Civil Code. Here the relation of Uniform Civil
Code with the fundamental rights, directive principles has been
discussed.
Chapter V, deals with the Judicial response to the
philosophy of Uniform Civil Code. For the sake of analysis in
this chapter. Some well-known and celebrated cases have been
selected. These cases are critically analyzed in so far as they
touched the highly sensitive issue of personal laws and uniform
civil code.
Chapter VI, deals with the conflict of law and uniform
civil code. This chapter is further sub-divided into three parts,
Conflict between Hindu Law and Christian Law, Conflict
between Muslim Law and Hindu Law and Conflict between
Christian Law and Muslim Law.
Chapter VII, deals with The Muslim Women (Protection
of Rights on Divorce) Act, 1986: Parliament initiative after ShahBano Case.
14
Chapter VIII relates to the concluding observations. This

chapter not only summarizes the Broad conclusion of the
present study but also tries to advance few suggestions.
Chapter II
Philosophy and Concept of Uniform Civil Code
The question of Uniform Civil Code is a very-very sensitive
as well as subjective and diversified issue considering the fact
that India is a country which has a multifarious race, caste and
community.12 Article 44 of the Indian Constitution enshrines
that the state shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India. Uniform
Civil Code of India is a term referring to the concept of an
overarching Civil Law Code in India. A uniform civil code
administers the same set of secular civil laws to govern all
people (citizen as well as non-citizen) irrespective of their
religion, race, caste, sex, place of birth or any of these. 13 This
12
13
. The law is relating to marriage, divorce, maintenance, guardianship and

succession governing the Hindus, Muslims and Christians etc., is different and
varies from one religion to other. There are different laws like the Hindu Marriage
Act; the Hindu Succession Act; the Hindu Minority and Guardian ship Act, the
Hindu Adoption and Maintenance Act governing the personal matters of Hindus.
The Shariat Act, The Dissolution of Muslim Marriage Act and the Muslim Women
(protection of Rights on Divorce) Act etc., which are based on the tenets of Holy
Quran, govern the personal matters of Muslims. Similarly the Indian Christians are
governed by the Indian Christian Marriage Act, the Indian Divorce Act and the
Cochin Christian Succession Act etc. Parsis are governed by a different set of laws
Thus it is clear that there is no uniformity in all personal laws as they confer
unequal rights depending on the religion and the gender.
. Article 15 of the constitution of India lays down a guarantee to every citizen that
consists of No discrimination or any ground only of religion race, caste, sex, place
of birth or any of these. Article 15 (3) provides that for women and children special
provision can be made by the state, women empowerment enjoys constitutional
protection of this Article 15 (3). Article 39 (a) (d) and (e) lay down certain
principles of policy that are to be followed by State. Men and Women citizens shall
enjoy equal right to an adequate means of livelihood. There shall be equal pay for
equal work for both men and women and that the health and strength of workers
16
supersedes the right of citizens to be governed under different

personal laws based on their religion or caste or tribe. Such
codes are in place in most of the developed countries.
The common areas covered by a civil code include laws
related to acquisitions and administration of property, marriage,
divorce and adoption. This term is used in India where the
Constitution of India attempts to set a uniform civil code for its
citizens as a Directive Principle, or a goal to be achieved.14
In Hindu law there are two principal schools, Dayabhaga
and Mitakshara. Mitakshara is again subdivided into four minor
schools. Beside, the custom of sadachar also occupies import
position. Attempts to reform Hindu law by legislative processes
commenced during British period. Reforms such as The Caste
Disabilities Removal Act, 1850, the Hindu Widows' Re-marriage
Act, 1856, the Hindu Inheritance (Removal Disabilities) Act,
1928, the Hindu Law of Inheritance (Amendment) Act, 1929,
the Hindu Gains of Learning Act, 1930, the Hindu Women's
Right to Property Act, 1937, the Hindu Married Women's Right
to separate Residence and Maintenance Act, 1946 were all
enacted to give relief to those who are not content to abide by
ancient
14
Shastras.
The
Rau
Hindu
Law
Committee
was
men and women shall not be abused. Article 42 provides for just and humane
condition of work and maternity relief.
. The Lex Loci Report on October 1840 emphasized the importance and necessity
of uniformity in codification of Indian law relating to crimes, evidences, contract
etc., but it is recommended that personal law of Hindis and Muslims should be kept
outside such codification.
17
appointed in 1941 to look into a comprehensive legislation

covering all Hindu laws. This committee ceased to function after
sometime due to war. It was revived in 1944 under the
chairmanship of Sri B.N. Rau and recommendations of Rau
committee were given effect by a series of acts passed in 1955
and 1956, to regulate marriage succession, guardianship and
adoption. These were the Hindu Marriage Act, 1955, the Hindu
Succession Act, 1956, the Hindu Minority and Guardianship
Act, 1956, finally the Hindu Adoptions and Maintenance Act,
1956.15
Among
Muslims there
are
Sunnis, Shias,
Ismailis,
Bohars, Khojas and unorthodox Ahmadiyyas. There are four

different schools among Sunnies. There are also Kutchi
Memons, who retain to some extent the private law of the
Hindu. Most of the legislations were enacted mainly to override
judicial decisions and to restore Shariat law. The Wakf
15
. Till the codification of Hindu Law in 1955 and 1956 the Hindu Women did not
enjoy equal rights along with the
Hindu men. Before 1955 polygamy was prevalent among the Hindus. The Hindu
women could not hold any property as its absolute owner except in the case of
Stridhana. She had only limited estate which was passed on to the heirs of the last
full male owner called reversionary on her death. In the matter of adoption a Hindu
woman had no right to adopt a child on her own. She could not be the natural
guardian of her children during the life her husband. These examples are only
illustrative in nature and not exhaustive. Even though the Hindu law has been
codified, certain discriminatory provisions still exist even today. For example a
Hindu woman is not a coparcener in Hindu coparceners except in a few states like
Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu. Consequently she is not
entitled to claim a share in the coparcenary. Similarly she has no right to partition
of a dwelling house even though she is a legal heir. Thus it is obvious that the
codification of personal law of Hindus has not succeeded completely in eradicating
the gender inequality.
18
Validation Act, 1913 was passed to override the decision of

Privy Council. A number of Acts from the colonial period
specifically exempted Muslims in an effort to avoid resistance
from the community. The Indian Succession Act of 1925, which
dealt with inheritance and succession, specifically exempted
Muslims relying upon the fact that Muslims had a complicated
inheritance system based on the Quran. The original Indian
inheritance law had been enacted in 1865 and had exempted
Hindus as well. However, the Act was ultimately applied to
Hindus. The Special Marriage Act of 1872, which was
essentially a secular civil marriage law, also exempted Muslims.
Not all calls to exempt Muslims were accepted. The Indian
Evidence Act of 1872 included section 112, which concerned
the legitimacy of children. This section was later found to apply
to Muslims, despite its inconsistency with Muslim law. Shariat
Act, 1937 swept away any custom or usage contrary to the
Shariat in all questions regarding succession, special property
of
females,
marriages
and
dissolution
of
marriages,
guardianship, gifts, trust properties, wakfs etc. The Muslim

Dissolution of Marriage Act, 1939 granted women the right to
dissolution of marriage. In the case of Christians the then
Indian Christian Marriage Act, was not a comprehensive act.
Modern Indian society is the inheritor of three different and
distinct legal systems chronologically, Hindu, Muslim and
19
British, and is the meeting ground of the major religions of the

world.
A. Personal Laws and Hindu in India

In Hindu India16 there was no question of state neutrality
or intervention in matters of religion. Originally, the society,
rather than the state, was the organizational unit. The leaders
of the society were Hindu sages. The rules they laid down not
only concerned religious ceremonies and rites, but also acted as
a code of ethics and morality and governed social intercourse
and even matters of politics and government.17 Whilst in the
early writings of the sages, civil laws and religious and social
rules were not differentiated from each other and civil law was
found scattered all over the treaties, the later treatises devote
separate chapters to civil law and still later ones devoted their
entirety to the discussion of civil law.18
According to Hindu jurisprudence, both the king and his
subjects were equally subject to the rule of law formulated and
enunciated by the sages. He executed, but seldom, if ever,
16
. By Hindu in India is meant the period from the beginning of the Indian History
(i.e. 1000 B.C.) to the establishment of an effective Muslim rule the early 12th
century. Many Hindu dynasties and families ruled side by side with the Muslim and
the British rulers until 1849. Gajendragadkar Secularism and the Constitution of
India, 25-26 (1971)
17
U.C. Sarkar, Hindu Law : Its Character and Evolution, 6, J.I.L.I. 213-222 (1964)
of A.S. Altekar, State and Government in Ancient India 55 (3rd ed. 1958)
U.C. Sarkar, Epochs in Hindu Legal History 23 (1958). (This work is cited here
in after as Sarkar, Epochs).
18
formulated law.19 The king was no doubt divine, but the

established laws and customs were still more so. The king was
required to take a vow at his coronation that he would
scrupulously respect them. He has no power to change them at
his own sweet will.20 From these accounts it appears that in
Hindu India, the society was given primacy over the State and
religion. The Hindus regarded law as an integral part of their
religion.21 This claim is perhaps, founded on the basis that the
sages being Hindu law-givers, where regarded as divinely
inspired.22 In Rigveda, one king alone Purukutsa has been only
once described as Ardhadeva or semi-divine; and one solitary
and late passage of the Atharvaveda describes king Parikshit as
a god among men.23 The theory of the kings divinity was
confided to the imagination of a few grateful countries. When a
Samiti (popular assembly) could depose a king, the theory of
the latter's divinity was not likely to take root in society. 24 As
A.S. Altekar opines that laws, though regarded as divine, were
really based upon social customs and traditions.25
In the early Hindu history, religion came to be closely
associated with the growth of law, for the simple reason that
men feared God before they gave authority to kings. Divine
19
20
21
22
23
24
25
U.C. Sarkar, "Hindu Law : Its Character and Evolution."

A.S. Altekar, State and Government in Ancient India (1958).
A. Chakerbarti, Nehru His Democracy and India (1961) p. 213.
U.C. Sarkar, Epochs in Hindu Legal History (1958) p. 213.
U.C. Sarkar, Epochs in Hindu Legal History (1958), p. 89
U.C. Sarkar, Epochs in Hindu Legal History (1958), p. 89
U.C. Sarkar, Epochs in Hindu Legal History (1958), p. 55.
sanction, rather then kingly edicts was more powerful in

enforcing such laws. The laws, the people followed could be
called laws of nature being based on custom, ascertained by
experience as being the best for community in the long run. In
such circumstances it was natural to believe that here existed
some supernatural being be it God or a deity at the back of it
all. The early Hindu law was at the stage when religion was the
governing force and consequently the priest class or the
Brahmins enjoyed supremacy and expounded the religion and
law. This is how the Code of Manu came into being. It is a
compilation by the priestly class and it is ascribed to a mythical
sage Manu to give it a religious sanction.26
The history of Hindu laws open with an entirely personal
concept of law. Every man possessed only the rights and duties
with which laws of his own tribe, city or class invested him and
could not be judged by any other. Such a concept carried with it
the further, notion that when any such person moved from one
territory to another he carried his own laws with him as being
personal to him. This rule had necessarily to become subject to
modifications here it could not be recognized in the new
territory as being in conflict local interest or where public
interest ran counter to it.27
26
27
G.R. Rajgopal, "Uniform Civil Code or Dream ?" The Civil and Military Law
Journal (1985), Vol. 21. No. 1-2 p. 47
G.R. Rajgopal, "Uniform Civil Code or Dream ?" The Civil and Military Law
Journal (1985), Vol. 21. No. 1-2, pp. 46-47.
The study of Hindu legal history shows that during Hindu

period there was no interference of the State with Hindu law.
They enjoyed complete immunity and the whole affairs were
regulated by their personal laws. The State used to keep its
hands off personal law and it was considered as a welfare
organization dealing with any matter involving social interest. In
Hindu India, the society was an organizational unit. The leaders
of the society were Hindu sages. There were universal laws
which were laid down by the religious leaders of the society.
These rules not only concerned religious ceremonies and rites,
but acted as a code of ethics and morality and governed social
intercourse of their life. Civil laws and religious and social rules
were not differentiated from each other. Hindus regarded law as
an integral part of their religion. This claim was, perhaps
founded on the belief that the sages being the Hindu law-givers
were divinely inspired who had sufficient spiritual efficiency to
evolve practice to regulate the human conduct from time to
time.
The conspicuous feature of the Hindu law, was that it
governed its entire Hindu community on a uniform conviction
that law and religion have a common source of its growth which
owe its origin to a divinely inspired class called as Brahmins. 28
There is no difference of opinion about the fact that the entire
spectrum of social, political and economic life of the people was
28
U.C. Sarkar, "Hindu Law : Its character and Evolution", 6 JILI (1964), p. 213.
regulated on the basis of rules and regulations excavated by the

divinely inspired human agents like the sages and photospheres
of Manu's calibre who dominated the entire Hindu period. 29 The
ancient Hindu sages not only made new laws but also made
provisions for repealing certain existing laws in practice. 30 The
speculation of Hindu laws by these sages was undoubtedly the
result of their mature inspiration and supreme realisation.
Thus the entire Hindu Law in ancient India was almost
identical with the Hindu Conviction and since there were no
other religious communities. The conflict between personal law
did not attract much attention and with slight difference of
opinions about personal laws in the small Hindu communities
uniformity of law was a general rule than an exception.
According to Hindu jurisprudence, both the king and his
subjects were equally subjected to the rule of law formulated
and enunciated by the sages. The king executed, but the
seldom, if ever, formulated the law. 31 "Law was the king of the
king, the king could not set the law aside."32 Indeed, the king
was required to take a vow at his coronation that he would
scrupulously respect established law and custom.33 From these
accounts it appears that in Hindu India, the society was given
29
30
31
32
33
Saletore, Ancient Indian Political Though and institutions (1963)
Brihaspati Upanishad, cited by Altekar, State and Government in Ancient India
(1958).
Altekar, State and Government in Ancient India, Motilal Banarsidas, New Delhi
(1958). p. 106.
primacy
over
the
state
and
religion.
It
will
be
an
oversimplification to contend that Hindu regarded law as an

integral part of their religion. 34 This claim is, perhaps, founded
on the basis that the sage being the Hindu law-givers, were
regarded as divinely inspired.35 Divinity was attributed them
because they were highly enlightened men of encyclopedic
learning. Altekar says: "Laws, though regarded as divine, were
really based upon social customs and traditions. By sanctioning
their operation, the state did not become an instrument in the
hands of the Church or the priest it rather became the
mouthpiece of the social will."36
B. Personal laws and Muslim in India

It is Muslim,37jurisprudence which furnishes an examples
of complete union of law and religion. "In Islam", says James
Bryce, "Law is Religion and Religion is Law, because both have
the same source and equal authority being both contained in
the same divine revelation."38 Islam claims its jurisdiction over
every aspect of a Muslim's life. Its attitude towards nonMuslims or unbelievers was that they must either be converted
or subjugated or killed. Arab pagans were given a choice only
34
35
36
37
38
Chakrabati Nehru, His Democracy and India, Thaker's Press Calcutta (1961) p.
61.
U.C. Sarkar, Hindu Law : Its Character and Evolution, 6, J.I.L.I. p. 213.
Altekar, State and Government in Ancient India, Motilal Banarsidas, New Delhi
(1958). p. 55.
Asaf A. A. Fyzee, Outlines of Mohammedan law 1-2 (3rd., 1964).
James Bryce, 2 Studies in History and Jurisprudence 237 (1901), Said
Ramadau, Islamic Law. Its Scope and Equity 15-16, 27-30, 42-47 (1961).
between conversion and death.39 The Indians, however, could

not be given the same treatment. The task of killing or
converting the vast multitude of non-Muslim population of India
could not be achieved owing to its impossibility. 40 This is not to
say that they did not indulge in killing or forcible conversion.
Writing about the treatment given to Hindu under the
Muslim rule, Brown says: "From the Arab invasion in 711 to the
end of Emperor Aurangzeb's reign in 1707. Muslim periodically
plundered their homes, looted their cities, burnt their books,
demolished their temples, slew their priests, abducted their
women."41 The incidence of such atrocities, however, was
sporadic and irregular: and the Muslim rulers had to decide the
law they were to apply to govern the large number of nonMuslim inhabitants of India during the time of peace and
tranquility. The Holy Qur'an did not afford much guidance in
this regard. It relieved "non- Muslim subjects from any Islamic
prohibition relating to matters which are permitted in their
respective religions.42" Hence during the Muslim rule all nonMuslim were governed, in matters of their personal laws, by
their own traditional and customary laws. "Hindus",43 writes
39
40
41
42
43
Joseph Schacht, An Introduction to Islamic Law 130 (1964).

B.B. Mishra, The Judicial Administration of East India Company in Bengal
1765-1782, p. 50 (1961) : J. M. Shelat, Secularism Principles and Application 72
(1972).
Saletore, Ancient Indian Political Though and institutions (1963) p. 73.
Ramadan Islamic Laws : Its Scope and Equity, P. R. Macmillan, London (1961).
p. 143.
Islamic jurisdiction was, however, exercised over non-Muslim parties if they so
desired. Ramadan Islamic Laws : Its Scope and Equity, P. R. Macmillan, London
Grady,
"enjoyed under the Mussulman Government, a complete
indulgence with regard to the rites the ceremonies of their
religion, as well with respect to the various privileges and
immunities in matters of property and in all other
temporal concerns the Mussulman law gave the rule of
decision excepting where both parties were Hindus, in
which case the point was referred to the judgment of
Pundits of Hindu lawyers."44
Von Kremer expressed a similar view. "Non-Muslim
communities", he wrote, "enjoyed an almost complete autonomy,
for the government placed in their hands the independent
management of their internal affairs, and their religious leaders
exercised judicial functions in cases that concerned their coreligionists only."45
A recent researcher on Indian legal history
also arrives at a similar conclusion in the following words: The

purely Islamic Civil Code governing the laws of inheritance,
marriage and other analogous matters of the Muslim did not at
all apply to the Hindus. The Hindus were allowed to be governed
by their own laws on these topics of civil law.46
Islamic law interfered with non-Muslims only were they
were directly or indirectly involved with Muslims. A good
44
45
46
(1961). p. 143.
Hamilton and Grady (ed.), Hedaya cited in Sarkar, Epochs at 231.
Von Kremer, Culturgeschichte des Orients den Chalifen p. 183 (1875).
illustration is criminal law where Islamic principles applied

alike
to
Muslims
and
non-Muslims.47
Sarkar,
however,
attributes different reasons for the application of the Islamic

criminal law to Hindu also. He thinks that:
"The conception of crimes and the purposes and sometimes
the methods of punishments being virtually identical, there
could not be any very appreciable difference between the
two systems of law from the standpoints of wider interests
of the society and the state. The masses also could not
ordinarily perceive the differentiation and the transition
between the Hindu and Muslim principles of criminal
administration."48
The purpose of criminal justice in every state, no doubt, is
to preserve law and order, but it is difficult to accept that the
Hindu and the Muslim concept of crime and methods of
punishment were virtually identical.
To sum up, the effect to the judicial policy of the Muslim
rulers was the creation of two parallel systems of civil law- one
governed exclusively by the Hindu religion and the other by the
Muslim and the introduction of Islamic criminal law in place of
the Hindu system of crimes and punishment.
47
48
There were two exception viz., oaths and ordeals. The Muslims had to swear in
the name of God and the Hindus had to swear by the cow : Fatwa-a-Alamgiri,
Baillie's Digest 748.
C. British Period
(i) Prelude
In a multicultural society like India, there is a divergent
system of personal laws. When the British established their
hegemony over India, they more or less continued the Muslim
pattern of judicial administration. But in the course of time, the
Britishers consolidated their position and they completely
changed the criminal law. They introduced their own system to
deal with the various matters of civil law.49 Legislative immunity
was granted to certain specified topics of Hindus and Muslims
laws, which, they considered, were deeply interwoven with
religion.50 The Britishers did not want to hurt the religious
susceptibilities of the Indians. Interference in religious matters,
they considered, was not at all conducive to their friendly trade
with Hindus and Muslims or their political stability. 51 The
Second Law Commission of India, 1833, constituted under the
Presidentship of the Master of the Roll observed.52
"It is our opinion that no portion either of the Mohammedan
law or of Hindu law ought to be enacted as such in any
form by a British legislation.... The Hindu law and
Mohammedan law derived their authority respectively from
49
50
51
52
M.P. Jain, Outlines of Indian Legal History. (1990) pp. 581-90.

M.P. Jain, Outlines of Indian Legal History. (1990) pp. 581-91.
J.M. Shelat, Secularism, Principles and Application, (1973) p. 75.
Second Law Commission of India, (1833) in M.P. Jain, Indian Constitution Law,
N.M. Tripathi Pvt. Ltd. Bombay (1987), p. 649.
Hindu and Mohammedan religion. It follows that, as a

British legislature can not make Mohammedan or Hindu
religion, so neither can it make Mohammedan or Hindu
law."
(ii) Advent of Britishers
English people came to India in 1601 as a "body of trading
merchants."53 On December 31st, 1600, Queen Elizabeth I
granted a charter to the company which incorporated the
London East India Company "to trade into and from the EastIndias, in the countries and parts Asia and Africa...." 54 "The
story
of
the
company,
from
commercial
concerns
to
establishment of vast empire, reads more like romance than

history."55 During the first seventy years of its trade with India,
the company established a number of trading posts at various
coastal towns. By the end of this period the company had its
own army and naval forces and its own laws. However, during
the first century of the exercise of judicial powers, the company
applied only the law of England to its small settlements in
Madras, Bombay and Calcutta and for the most part only to
European subjects. The company obtained the grant of Diwani
in 1765 from the Mughal Emperor in respect to the province of
Bengal, Bihar and Orissa. The grant gave the company a
53
54
55
V.D. Kulshreshtha, p. 37.

V.D. Kulshreshtha, p. 37.
M.V. Pylee, Constitutional Government in India, (1960) p. 45
legitimate authority over the revenues and civil administration

of the three provinces with the result they go themselves
elevated to the status of the political sovereign in less than
hundred years from the grant of Diwani 56 and dominated the
entire scene until 1947.
(iii) British Policy towards Personal Laws

The British policy towards Hindu and Muslims law during
the period of their dominion over India may be discussed under
the following head, viz. (i) passing of laws to indicate their
neutrality towards Hindu and Muslims law; (ii) enacting of some
general laws to maintain law, order and good government and
introduce social reform and applying them to all communities
alike; and (iii) passing of legislation on matters falling within the
purview of Hindu and Muslim laws.
(a) Philosophy of Neutrality

The history of British India is self- evident that, the
Britishers for the first time tried to enact common laws for
Indians but they never interfered with their personal laws. 57
When the Mayor's courts58 were established at Calcutta, Madras
56
57
58
M.V. Pylee, op. cit. pp. 1-27.

B.P. Ojha, "Common civil Code and Its Probable Effect on Society", Link,
September 6, 1992 p. 33, Tahir Mohammood, Muslim Personal Law, (1977), p. 4.
The Charter of 1726 issued to East India Company by King George I on
September 24, 1726, established for the first time Mayor's Courts in the three
Presidency towns of Calcutta, Madras and Bombay. These courts derived their
authority from the king, and could therefore, be designated as Royal Court. E.J.
Rapson, The Cambridge History of India, (1922) Vol. V Chapter IV p. 113, M.P.
Jain, supra note 40, pp. 35-54 and also see V.D. Kulshreshtha. op. cit. p. 63.
and Bombay in 1726; the question arose in a Bombay case as to

the court competence to decide religious matters of the natives.
The Governor and Council of the company expressed the
opinion that Mayor's Court had no jurisdiction to determine
causes of religious nature or disputes concerning castes among
the
natives.
However
the
criminal
jurisdiction
in
each
Presidency town was vested in Governor and five senior

Members of the Council. The Governor and the Council also
acted as an appellate court from the Mayor's court. 59
The
Charter of 1753 went a step further. It expressly exempted the

Indians from jurisdiction of Mayor's Court and directed that
such suits and disputes should be determined by the Indian
themselves, unless both parties submitted themselves to the
jurisdiction of the court.
In order to reform the existing judicial system and to
introduce impartial and regular administration of justice,
Warren Hastings enacted certain schemes for the first time in
1772. Under this scheme it was provided that all the civil
matters, such as disputes relating to real and personal property,
inheritance,
marriage,
caste,
debt,
disputed
accounts,
partnership and demands for rent were to be decided by

Moffusil Diwani Adalat to each district headed by the collector
of that district as judge. Provisions were also made that in all
suits regarding inheritance, marriage, caste and other religious
59
M.P. Jain, supra note 40, pp. 38-39.
usage and institution, the laws of the Koran and Shastras were
to be applied, in respect
of the Muslims and Hindus
respectively.60 Since the Englishmen were used to be appointed

as collectors, they were not very much aware of the customs
regarding marriage, caste and usages of Hindus and Muslims.
Therefore, native law officers i.e. Kazis and Pandits, were
appointed to assist the collector. Not only did they lay down this
but also prepared a digest according to the customary laws of
Hindu and Muslims for the guidance of courts. 61 While the
administration of civil justice had been taken over the English
judges, the criminal was left over to Muslim judges. For this
purpose Mofussil Fauzdari Adalats were established in each
district to try all kinds of criminal offences. Muslim law officers
viz. Kazis, Muftis and Moulvies, were used to be appointed as
judge in these Adalats.
The rule regarding the application of the Hindu law to
Hindus and Muslim law to the Muslims was later extended to
His Majesty's courts of judicature the Supreme Court of
judicature at Calcutta, Madras and Bombay when these
established in 1774.62 On the recommendation of Sir Elijah
Impey,
60
61
62
the
word
"succession"
was
added
to
the
word
V.D. Kulshreshtha, Supra note 19 pp. 90-92, Tahir Mohammood, An Indian

Civil Code and Islamic Law, (1976), p. 53, also see supra note 48, p. 89.
Tahir Mohammood, An Indian Civil Code and Islamic Law, (1976), p. 91.
M. C. J. Kagzi, "Advisability of Legislating a Uniform Family Law Code"
(1965) in Jaipur Law Journal (No. 5, p. 193).
"inheritance" by Warren Hastings.63 The Act of Settlement, 1781

also provided:64
"And in order that regards should be had to civil and
religious usages of the said natives, be it enacted, that the
rights and authorities of fathers of families, and masters of
families, according as the same might have been exercised
by the Gentoo, or Mohammendan law, shall be preserved to
them respectively within their said families; nor shall any
acts done in consequence of rule and law of caste,
respecting the members of the said families only, be held
and adjudged a crime, although the same may not be held
justifiable by laws of England."
In 1793, Lord Cornwallis, in order to avoid confusion
arising by the use of the words, Koran and Shastras, rephrased
the Hastings rule as follows:65
That in suits regarding succession, inheritance, marriage
and
caste,
and
all
religious
usages
and
institutions,
Mohammedan Law with respect to Hindus, are to be considered

as general rules by which the judges are to form their decisions.
Warren Hasting's policy of preserving Hindu and Muslim
law was supported by the British as a whole. Sir Michel Jones
63
64
65
Tahir Mohammood, An Indian Civil Code and Islamic Law, (1976), p. 100.
Geo, II C. 70, Sec. 18.
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). p.
168.
was not only a learned judge of the Supreme Court at Calcutta

but also a scholar and linguist was against the participation of
native law officers in the administration of justice. These
officers used to be attached to the British Courts assist them in
the interpretation of the Hindu and Muslim religious scriptures.
He distrusted the native officers and desired that the Hindu and
the Muslims religious books should be accurately translated
into English and that the court should resort to them for the
interpretation of Hindu and Muslim law rather than rely on the
views of the native officers.66 He observed that nothing could be
more obviously just than to determine private contents
according to those laws which the parties themselves had ever
considered as the rules of their conduct and engagements in
civil life; nor could anything be wiser than, by a legislative act,
to ensure the Hindu and Musalman subjects of Great Britain
that the private laws which they severally hold sacred, and a
violation of which they would have thought the most grievous
oppression, should not be superseded by a new system of which
they have no knowledge, and which they must have considered
as imposed on them by a spirit of rigor and intolerance.67
In 1792, John published his translation of the Muslim
Law of succession and in 1794 his Institutes of the Hindu Law,
66
67
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). p.p.
582-83.
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987) p.
580.
or the Ordinances of Manu, was published. Many other

attempts were also made by the British to ascertain and define
the principles of the Hindu and the Muslim law.68
Some Acts, passed to ensure better administration of
justice, also provided for the application of personal law of
Hindu and Muslims with respect to certain matters. The 1797
provision was passed for the guidance of the courts in Bombay
and Madras, Section 112 of the Government of India, 1915,
provided that the High Courts of Calcutta, Madras and Bombay,
in exercise of their original jurisdiction in suits against
inhabitants of Calcutta, Madras or Bombay as the case may be,
shall, in matters of inheritance and succession of lands, rents
and goods, and in matters of contract and dealing between
party and party, when both parties are subject to the same
personal law or custom having the force of law, decide according
to that personal law or custom, and when the parties are
subject to different personal laws or customs having the force of
law, decide according to the law or custom to which the
defendant is subject.69
It is evident by foregoing discussion that the system of law
prevailing in the early 19th century in India was confusing and
chaotic. Due to different system of law for presidency towns and
Mofussils of the Presidency, uncertainty and doubts prevailed
68
69
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987) p.
587.
5 & 6 Geo. V.C. 61.
as to with regard to its territorial applicability. That is why the

legal system at that time was not helpful in the effective
administration of justice. Thus in the early 19 th century the
legal system was a heterogeneous mass of various legislations.
Due to the confusing state of applicability of law, it was
necessity to systematize and rationalize the legal system.
(b) Codification of Law

Though the British rulers had reserved the Hindu law for
Hindus and the Muslim law for Muslim in certain areas, they
realized that the general law of the country was under an
imperative need of change. The legal system of India in the early
nineteenth century was one of confusion and chaos. Different
laws were applied by village, district and provincial courts.
While in many matters of civil laws. Hindus and Muslims were
governed by their own laws, non-Hindus and non-Muslims were
governed by the other set of laws. The Muslims criminal law
which was applied to Muslims, Hindus and other natives had
become obsolete. The uncertain state of law in India demanded
suitable action by the British parliament, but the movement for
codification appears to have been hastened because of two other
factors. First was the creation of an All India Legislature and
the appointment of a Law Members as a Law Commission by
the Charter Act of 1833. Second was the far reaching influence
of Bentham.70
The purpose of codification appears to have been to
achieve certainty and uniformity. In 1832, Lord Macaulay was
appointed as Commissioner of the Board of Control for India.
Subsequently, he became the Secretary of the Board of Control.
Lord Macaulay was the members of the House of Commons
when the Charter Bill was being debated. During the course of
the second reading of the Charter Bill, he made a strong plea for
a codification of Indian laws. Perhaps as a result thereof, he was
made the law member and subsequently the Chairman of the
First Law Commission of India set up in 1833 Lord Macaulay
observed:
"We must know that respect must be paid to the feelings
generated by differences of religion, of nation and caste.
Much, I am persuaded, may be done to assimilate the
different system of laws without wounding those feelings.
But whether was assimilate those systems or not, let us
ascertain them, let us digest them. We propose no rash
innovation, we wish to give no shock to the prejudices of
any part of our subjects... Our principle is simply this
70
U.C. Sarkar, Epochs in Hindu Legal History, Visheshvarananda Vedic Research

Institute Hoshiarpur (1958). pp. 348-49.
Uniformity where you can have it- diversity where you must
have but in all cases certainty.71
By passing the Charter Act, 1853, the Second Law
Commission put forward polices and principles of future
codification in India. In 1861 another Law Commission was
appointed for the preparation of draft code regarding Civil Law
in India. On February 11, 1879, the Fourth Law Commission
was appointed with goal of codifying all the substantial law
prevailing in British India. By the efforts of various Law
Commissions criminal Laws were codified by 1898 and came
into force and are applicable to all India irrespective of their
religious belief. But, there was no Common Civil Code. 72 A
number of statues were passed to achieve the object underlined
by T.B. Macaulay. The caste Disabilities Removal Act, 1850, the
Indian Contract Act, 1872, the Transfer of the Property Act,
1882. The Indian Evidence Act, 1872, the Indian Succession
Act, 1865, and the Child Marriage Restraint Act, 1928 are some
of the more important legislations. These statues applied alike
to all the people irrespective of their religious belief. But the
effect of some of the provisions laid down by these statues was
to limit the operation of the Hindu and Muslim laws in the
matters governed by them.
71
72
B.B. Mishra. The administrative History of India General Administration

(1970) , pp. 527-28.
B.P. Ojha, "Common civil Code and Its Probable Effect on Society", Link,
September 6, 1992 p. 35.
The Caste Disabilities Removal Act, 1850 abrogated the

Hindu and Muslim Law of property in regard to apostates.
Before passing the Act, both under the Hindu law and Muslim
law73 if a Hindu or Muslim as the case may be, renounced his
religion or was excluded from the communion of the religion or
was
deprived
of
caste,
such
renunciation,
exclusion
or
deprivation resulted in the forfeiture or his right and properties.

After the passing of the Act, these consequences ceased to be
enforced as a law in the courts of British India. 74 The right of
the succession under the Hindu law in many cases exclusively
depended upon the right to perform funeral obligations. It is by
virtue of such a last rite, which could only be performed by
Hindu sons and near kinsmen became entitled to the property
of the deceased.
The codification of Criminal law had the effect of repeating
the then prevailing Hindu and Muslim law of crimes. When the
British took over the administration of justice from the
Muslims, they, to a large extent, continued to apply the Muslim
criminal law to the natives, in the provinces of Bengal and
Bihar. From 1823 onwards, the Muslim law, however, ceased to
apply compulsorily to non Muslims. In Bombay, until 1823 the
Hindu Criminal law was applied to Hindu and the Muslim
73
74
Asaf. A. A. Fyzee, Outlines of Muhammadan Law, (1964). pp. 169-70.

Institute Hoshiarpur (1958). pp. 367-68.
Criminal law was applied to Hindus. 75 The Indian Penal Code

made punishable certain inhuman practices which were sought
to be perpetuated in the name of religion. Sati was one of such
practice. Sati was a religious practice whereby a Hindu widow
burnt herself to death upon the funeral pyre of her dead
husband. By a regulation of 1828, Sati was made illegal and
punishable. This regulation applied only in Bengal. A year later
similar measures were passed by the Governments of Madras
and Bombay. The code considers an attempt to become Sati as
species of an attempt to commit suicide and makes it
punishable with up to one year imprisonment and or fine. 76
Persons who aid and abet the commission of Sati have been
punishable
as
abettors
of
suicide.77
Thugi
was
another
objectionable practice. It was also made punishable with life

imprisonment and fine. Thugs were organised gangs of persons
habitually associated for the purpose of in weighing and
murdering travellers or others in order to take their property
etc.78
The Indian Contract Act, 1872 abridged the Hindu and
Muslim law in respect of matters governed by the Act. Before
75
76
77
78
Ratan Lal Ranchhodas and Dhiraj

Code, (1954), p. viii.
Code, (1954), p. 252.
Code, (1954), Section 309.
Code, (1954), Sections 310-11.
Lal Keshav Lal Thakore, The Indian Penal

the passing of this Act, the Hindu law of Contract applied to

Hindus and Muslim Law of Contract applied to the Muslims.
Even today in the cases not provided for by the Act or any other
legislation, the Hindu law of contract applies to Hindu and the
Muslim law of contract applies to Muslim.79
(c) Legislations on Personal Law

(I) Hindu Law
In India, many laws were passed to introduce reforms in
the old Hindu law. The study of Hindu law discloses that in
most of the cases, the innovating Acts, has the support of the
enlightened sections of Hindus, but the conservative and
orthodox Hindus viewed the innovations as an invasion upon
their religious practices. It is thus crystal clear that the
legislation touched all topics, namely, marriage, succession,
caste, inheritance, etc. earlier considered sacrosanct and
beyond the legislative pale. In 1856, the Hindu Widows'
Remarriage Act legalizing remarriage of Hindu widow was
passed at the instance of a reformist section of the Hindus. 80
Legislation on widow remarriage was considered as being
against the injunction of Shastras. Although in ancient India
widow remarriage were permitted in special cases and were even
prevalent amongst certain classes of people of certain localities
79
80
J. H. Dalal, Mulla on the Indian Contract Act, (1972), pp. 1-2.

Krishna Bhagwan Agrawal, "Advisability of Legislating a Uniform Indian
Marriage Code," In Mohammad Iman, ed., Minorities and the Law, (1972). p. 443.
before the passing of the Act, they were opposed by the majority
of the Hindu on religious grounds.81 Then came the Hindu
Women's Right to Property Act, 1937 conferring on Hindu
Women better rights of property than they had previously. This
Act made revolutionary changes in the area of Hindu law of
joint family, coparcenary, partition, inheritance etc. The Indian
Majority Act, 1875, fixed the age of majority on completion of
the eighteenth year. It applied to Hindu in all matters except
marriage, divorce and adoption. In 1929 Child Marriage
Restraint Act was passed to discourage the practice of existing
child marriages. The minimum marriage age for male was fixed
eighteen years whereas for a female it was fifteen years.82 In
1946, the Hindu Married Women's Rights to Separate Residence
and Maintenance Act was enacted enabling a Hindu women to
claim separate residence and maintenance from the husband
under certain circumstances mentioned in the Act even without
dissolving the marriage.83 Many other Acts84 made considerable
inroads on the principles of succession and inheritance, which
were regarded as binding by the old Hindu Law.
81
82
83
84

Institute Hoshiarpur (1958), p. 369.
Ratan Lal Ranchhodas and Dhiraj Lal Keshav Lal Thakore, The Indian Penal
Code, (1954), p. 352.
Ratan Lal Ranchhodas and Dhiraj Lal Keshav Lal Thakore, The Indian Penal
Code, (1954), p. 352.
The Hindu Inheritance (Removal of Disabilities) Act, 1928 and The Hindu Law
of Inheritance (Amendment) Act, 1929.
(II) Muslim Law

The legislative activity concerning Muslim personal law in
India during the British regime was very little. The attitude of
non-interference adopted by the British administrators in the
case of Hindu law reflected much more tenaciously in the case
of Muslims law.
Changes made in the Hindu law were far
greater than those made in Muslim law. Only a few changes

through legislation were made in Muslim law because of a
wrong notion and misleading belief that Muslim law is totally
opposed to changes and is entirely devoid of flexibility and
dynamism. Muslim law as usual with other personal laws is
subjected to two forces pulling in opposite directions. 85 On the
one hand there are conservative forces trying to keep Muslim
law without any change strictly in accordance with the Koran
and the Hadih, and there are, on the other hand, forces trying
to modify the archaic law in accordance with the changing need
of the dynamic society.86 There are three Acts which affected
Muslim as well are the Caste Disabilities Removal Act, 1850, the
Child Marriage Restraint Act, 1929, and Dowry Prohibition Act,
1961.
The three central statutes passed during the British
period are; The Wakf Act, 1913; the Muslim Personal Law
85
86
of Inheritance (Amendment) Act, 1929, p. 293.
of Inheritance (Amendment) Act, 1929, p. 293.
(Shariat) Application, 1937, and the Dissolution of Muslim

Marriage Act, 1939. A change was effectuated in the Muslim
law in 1913 when the legislature enacted the Mussalman Wakf
(Validating) Act. This was to undo the effect of the Privy Council
ruling in the famous case Abdul Fata Mohammad Ishak v.
Rusomoy Dhur Chowdhary.87 The Muslims regarded his judicial
dicta as being inconsistant with the true view of the Shariat.
However, it went further and declared such a Wakf void ab
initio. This did appear to be invasion. The strong emotional
reaction of the Indian Muslims against this decision finally
obtained the enactment of the Mussalman Waqf Validating Act
of the 1913 which nullified the decision of Privy Council in Abul
Fata's case. This was a pyrrhic victory for Muslims; it's social
consequences were devastating. It blocked any initiative by the
Muslim upper class in the direction of industry. It perpetuated a
pathetic class of pensioners devoid of economic initiative who
were in the long run, bound to become a drag on the
community.88
The communities like Khojas, Vohars, Mensons had
become converts from Hinduism to the Muslim religion. Even
though they renounced the Hindu religion, they did not
renounce the Hindu customs completely and in the area of
inheritance and succession, they continued to observe the
87
88
(1894) 22 I.A. 76 at pp. 86-87.

Danial Latifi , "Change and the Muslim Law," in Tahir Mahmood, ed., Islamic
Law in Modern India, (1972) p. 106.
Hindu law as customary law.89 The orthodox Muslim opinion did

not relish this situation. Therefore, in 1937, the Muslim
Personal Law (Shari'at) Application Act was passed with a view
to abrogate these customs and bring these communities under
the Muslim law.90 Danial Latifi is of the view that Muslim
Personal Law (Shariat) Application Act was passed primarily to
improve the status of Muslim women by restoring the customeroded right due to them under the Muslim Law.91 As the
statement of objects and reasons point out:92
"The status of Muslim women under the so called
customary law is simply disgraceful. All the Muslim
women's organisations have therefore commended the
customary law as it adversely affects their rights. They
demand that the Muslim personal law (Shariat) be made
applicable to them".
Another legislation enacted in 1939 was the Dissolution of
the Muslim Marriage Act which gave the Muslim wife the right
of
judicial
separation
from
her
husband
in
certain
circumstances. Such as right had been denied to her earlier,

perhaps because the courts followed mainly the Hanifi School of
89
90
91
92
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). pp.
617-18.
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). pp.
617-18.
Danial Latifi , "Change and the Muslim Law," in Tahir Mahmood, ed., Islamic
Law in Modern India, (1972) pp. 106-07.
Sharifa Hamid Ali and Jahan Ara Shah Nawaz were among the leaders of the
Muslim women's movement for this Bill.
interpretation of the Muslim law. The Act was based on Islamic

law of the Maliki School which is comparatively more liberal
than the Hanifi School as far as the right of a Muslim women to
obtain a divorce is concerned.93 The Act is an important
landmark as a Muslim women was given right to obtain
dissolution of marriage on nine grounds. These are mainly the
grounds which a Maliki School recognizes for a Muslim women
to claim a divorce. This is the only legislative measure which
has introduced a substantive reform in the Muslim law over a
long period of time.94 But the Act does not in any way restrict
the arbitrary power of a Muslim husband to pronounce talaq. 95
The Act, though opposed by the followers of Hanifi School of
Muslims, was passed on the representation of other Muslims.
93
94
95
Tahir Mahmood, An Indian Civil Code (1976), pp. 59-61, H. A. Gani, Reform of
Muslim Personal Law, (1988) pp. 18-19.
Tahir Mahmood, Muslim Personal Law, (1977) pp. 54-57.
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). p.
606.
Chapter III
Legislative History of Personal Law in India
Personal laws have traditionally been regarded to be
beyond the purview of legislature because they are very much
identified with religion or religious beliefs. The very nature of
personal laws is such that the legislature intentionally hesitates
in interfering or parting with them. However, in different periods
legislative enactments have been made in this area also. Some
of these tend to modify and some endeavour to restore the
personal laws.
This chapter presents the legislative history of personal
laws in India. For the sake of convenience, the discussion has
been meticulously arranged into three heads, namely-Hindu
Law and the Legislature, Muslim Law and the Legislature and
Christian and Parsi Laws and the Legislature. But before that a
brief general discussion appears to be necessary.
In the early nineteenth century, the legal system of India
was comparatively full of chaos and confusion. Infact, different
laws were applied by village, district and provincial courts.
While in many matters of civil law, Hindus and Muslims were
governed by another set up laws.96
96
U.C. Sarkar, Epoch in Hindu Legal History, pp. 348-50 (Hoshiarpur:

Visheshvaranand Vedic Research Institute 1958).
48
Uniform civil Code of India is a term referring to the

concept of an overarching Civil Law Code in India. A uniform
civil code administers the same set of secular civil laws to
govern all people irrespective of their religion, caste and tribe.
This supersedes the right of citizens to be governed under
different personal laws based on their religion or caste or tribe.
Such codes are in place in most modern nations.
The common areas covered by a civil code include laws
related to acquisitions and administration of property, marriage,
divorce and adoption. The Muslim criminal law which was
applied to Muslims and, to a very great extent to Hindus and
other natives also, had become obsolete. 97Although the British
Parliament felt the need of suitable reform in Indian law, but the
process of codification seems to have been accelerated due to
two major factors, viz., the influence of Benthams idea of
codification of law and the passing of the Charter Act of 1833.
As a result of the work of different Law Commissions a
number of legislations were enacted which affected the personal
laws of two major communities viz., the Hindus and the
Muslims. Some of these important legislations were : the Caste
Removal Disabilities Act 1850, the Indian Penal Code 1860; the
Criminal Procedure Code 1861, 1882 and 1888; The Civil
Procedure Code 1859 and 1882; the Indian Contract Act 1872;
97
U.C. Sarkar, Epoch in Hindu Legal History, pp. 348 (Hoshiarpur:

49
the Transfer of Property Act 1882; the Indian Evidence Act

1872; the Indian Succession Act, 1865; the Child Marriage
Restraint, Act 1828, etc.
The purpose of these legislative steps was to brings about
uniformity and certainty, which is evident from Lord Macaulays
following words :
We must know that respect must be paid to the feeling
generated by differences of religion, of nation and caste.
And much, I am persuaded, may be done to assimilate the
different systems of law without wounding those feelings.
But whether we assimilate those system or net, us
ascertain them, let us digest them. We propose no rash
innovation, we wish to give no shock to the prejudices of
any part of our subjects. Our principles is simply this
uniformity where you can have it-diversity where you must
have-but in all cases certainty.98
This love of certainty and uniformity, which let to
codification, had its impact on those spheres of law also which
were, hitherto, governed by the respective personal law
exclusively. The succeeding pages will give a brief account of
this fact.
A. Hindu Law and the Legislature
98
XIX Hansards Debates, 3rd Series, pp. 531-533.
50
During ancient times, the Hindu law had a flexibility and

an inherent capacity to grow.99 The methods generally used for
the
purpose
interpretation
of
growth
and
of
law
assimilation
were
of
the
processes
customs.
After
of
the
introduction of British pattern of justice in India, these

traditional instrumentalities of the British pattern of justice in
India these traditional instrumentalities of legal change of
growth ceased to operate.100 During this period, the growth of
Hindi law was arrested and Hindu law came to be fossilized. 101
Under the circumstances, for the growth of Hindu law so that it
could respond to the changing pattern of life, legislation was the
only way out for the British administration.
The ancient Hindu legal system, based on Shruti, Smritis,
Commentaries and Digests, was developed according to the
economic condition, social environment and the state of
civilization which were very different from those modern times.
Some of the features of the traditional law are thus bound to be
out of harmony with the contemporary social conditions and
facts of life.102 Need has, thus, been felt to modify the law in
certain respect so as to adapt it to meet the modern exigencies
and circumstances. But in undertaking this task, the British
administrators functioned under a self-imposed discipline and
99
100
101
102
M.P. Jain, Outlines of Indian Legal History, p. 483. (4th ed. 1981).
Gajendragadkar, The Hindu Code Bill, p. 53 Bom. L.R. (1951).
M.P. Jain, Outlines of Indian Legal History, p. 484.
limitation. They hesitated to modify the personal law in

consonance with the modern as well as dynamic needs of the
society because of the view that the personal laws were too
much identified with religion. Nevertheless, some changes had
to be made in these systems by passing corrective and
ameliorative legislations during the last hundred years or so,
though generally, it may be said, that the legislature moved
mostly in response to strong public opinion in favor of the
proposed changes and when the initiative Acts had the support
of
enlightened
and
progressive
elements
of
the
Hindu
communities, but conservative and orthodox Hindu viewed

these
innovations
as
encroaching
upon
their
religious
practices.103
(i) Pre-Independence Legislations

Taking a board view of the legislative changes effected in
the area of Hindu law during the British period, the first and
the foremost place may be accorded to the body of legislations
which sought to improve the social status and legal position of
the
Hindu
women.
The
prejudices
of
some
of
the
Dharmashastra writers, along with some degenerate customs

which arose in the Hindu society in course of time, were
responsible for making the social position of Hindu women
rather weak and inequitable. They came of occupy an inferior
103
D.K. Srivastava, Religious Freedom in India, p. 235 (New Delhi 1982).
position in the eyes of law. Thus needed to be corrected and,

therefore, the legislature enacted a number of statutes designed
to improve the lot of the opposite sex in the Hindu society. The
custom of Sati was abolished in 1829.104 The Caste Removal
Disabilities Act, 1850, had the effect of abrogating both the
Hindu and Muslim laws of property in regard to apostates.105
The Hindu Widow Remarriage Act 1856, was the first
important measure in this series. This Act permitted a Hindu
widow to remarry. It was an enabling Act and was passed at the
instance of Hindu Womens Rights to Property Act, 1937, which
conferred on the Hindu Women better rights of property than
they had possessed previously. The Act effects revolutionary
changes in Hindu law, more particularly in Mitakshara School.
It affects the law of the coparcenaries, partition and alienation.
It also affects the topics of inheritance and adoption.106
The last statute in this series was the Hindu Married
Womens Rights to Separate Residence and Maintenance Act,
1946. The Act enabled a Hindu married woman, without
dissolving the marriage, to claim separate residence and
maintenance from her husband under certain circumstances
104
105
106
The difficulties faced by the British administrator in reaching and implementing

this decision are described in K. Ballhatchet, Social Policy and Social Change in
Western India, p.p. 275-91 & PP. 298-305.
D.K. Srivastava, Religious Freedom in India, p. 235 (New Delhi 1982, p. 234.
Maynes Hindu Law and Usage, p. 59 (12th Ed. 1986) Rev.by A Kuppuswami.
mentioned in the Act.107 This Act has now been repealed by the
Hindu Adoption and Maintenance Act, 1956 (Act 78 of 1956).108
Another set of statutes were enacted to eradicate some
highly objectionable practices which had come to have legal and
customary sanctions amongst the Hindus. The first step in this
regard was the abolition of the inhuman practices of Sati. To
discourage the practice of child marriage, the Child Marriage
Restraint Act was passed in 1929.
There are few other legislations passed by the British
administration which effected remarkable changes in the old
Hindu joint family law and the laws of inheritance. These Acts
made considerable inroads on the principles of succession and
inheritance previously regarded as binding by the old Hindu
law.109 The Hindu Inheritance (Removal of Disabilities) Act,
1928, laid down that no person, except one who had been
lunatic or idiot from birth, would be excluded from inheritance
by reason only of his disease, deformity, physical or mental
defect. The Act applies only of Mitakshara school and not to
Dayabhaga school. The Hindu Law of Inheritance (Amendment)
Act of 1929 altered the order of the intestate succession under
the Mitakshara law with a view to prefer certain near cognates
to agnates. Thus sons daughter, daughters daughter, sister and
107
108
109
The Hindu Married Womens Rights to Separate Residence and Maintenance

Act, 1946, Section 2.
Maynes Hindu Law and Usage, p. 57 (12th Ed. 1986) Rev.by A Kuppuswami..
U.C. Sarkar, Epoch in Hindu Legal History, p. 372 (Hoshiarpur:
sisters son were declared to be entitled to succeed next after

the paternal grand-father. This was the result of realization that
the Sastric law needed to be altered in order to bring the rules
of inheritance in congruence with the dictates of natural love
and affection. The Hindu Gains of Learning Act, 1930, declared
that all acquisitions of property made substantially by means of
learning shall be the exclusive and separate property of the
acquire.110
Before
the
passing
of
the
Act,
under
the
circumstances, such acquisitions could be regarded as joint

and liable to partition.111
The enactment of two other Acts, 112 dealt a severe blow to
Hindu religion. Since time immemorial the institution of caste
has been used to structure and perpetuate Hindu society. The
Hindu Wills Act of 1870 for the first time conferred a power of
testamentary disposition of Hindus. Wills were previously
unknown to Hindu law.
(ii) Post-Independence Legislations

Reform of Hindu law by the British was half-hearted and
peripheral.113 The changes effected by the legislations during
British period were sporadic, piece-meal and unplanned, and
were undertaken to meet to need here and a demand there
110
111
112
113
Sections 2(b) and 3 of the Act.

U.C. Sarkar, Epoch in Hindu Legal History, pp. 374 (Hoshiarpur:
Act III of 1872 and Arya Marriage Validation Act of 1937.
D.K. Srivastava, Religious Freedom in India, p. 246 (New Delhi 1982).
without much of a system.114 How, a change in law at one place,

would affect the rest of the law was not minutely examined.
This resulted in unforeseen difficulties. The Hindu law being an
integrated mass, a change at one place had its inevitable
repercussions at various other places. To avoid this confusion
and complexity, the only way out was to introduce reform in all
those places where reform was desired at once and in one piece
so that an integrated and more co-ordinated body of law could
emerge. There was, therefore, a strong demand for an over-all
reform and codification of Hindu law.115
In 1941 the British-Indian Government appointed a
committee under the chairmanship of Sir B.N. Rau to study the
question. It was not without a tremendous amount of courage
and under heavy criticism of not only traditionalists and
religious groups, but some of the well-meaning and intelligent
lawyers also, that the Rau Committee suggested the enactment
of Hindu Code.116 It was not however, so easy to touch the
sacred religious law of the Hindu, unwilling to accept the
codified enactments and unprepared to give up the divine law
propounded by their great sages. Even President Rajendra
Prasad was opposed to the enactment of the Hindu Code Bill. 117
The Central Government was, however, determined. The result
114
115
116
117
M.P. Jain, Outlines of Indian Legal History, pp. 489-90 (4th ed. 1981).
R.P. Anand, Hindu Law in Historical Perspective p. 32, (1966) II SCJ.
Setalvad, cited by M. P. Jain, Supra n. 4, p. 490.
was that the Hindu Code Bill came to be divided into different
parts and passed one by one in the form of four different Act,
1956; Hindu Minority and Guardianship Act 1956, and Hindu
Succession Act, 1956; Hindu Minority and Guardianship Act,
1956; and Hindu Adoption and Maintenance Act, 1956. Despite
strong protests of the orthodox and conservatives, 118 these
enactments struck down the old out-moded law and modified it
and changed it according to the changed spirit of the time. 119
Nevertheless, the present system has its roots in the past and
derives its mains principles from the age-old dharma law.120
The effect of these four legislations has been that they
have introduced considerable departure from the traditional
Hindu law. For example, in the area of marriage, monogamy and
divorce have been introduced. Both of these were unknown to
the
old
Hindu
law.
Such
western
concepts
as
judicial
separation, cruelty, desertion, nullity of marriage have been

introduced into the marriage law with the result that courts
freely cite English cases to expound the meaning of these
concepts and law has become Anglo-Hindu Law.121
These Acts govern a large section of Indian people as they
apply
118
119
120
121
to
Jains,
Sikhs,
Budhists
and
Hindus
of
all
Nanda, Marriage and Divorce in India : Conflicting Law 55 North Western

University Law Review, p. 632 (1960) and literature quoted therein.
Generally Derrett, The Codification of Personal Law in India : Hindu Law, 6
Indian year Book of International Affairs, p.p. 189-211 (1957).
M.P. Jain, Outlines of Indian Legal History, p. 490 (4th ed. 1981).
denominations and castes. A distinction, however, has been

maintained between Mitakshara and Dayabhaga schools by the
Hindu Succession Act. The most complicated area of the Joint
Hindu family, has been left untouched and for the present there
is no move to codify this branch of law.
The Hindu Adoption and Maintenance Act, has also
brought about some fundamental changes in the concept of
adoption under Hindu Law. Previously, the concept of adoption
was a purely religious one, but the present Act seeks to make it
a non-religious affairs, to a large extent. Even the laws, relating
to minority and guardianship, have been greatly modified by the
Minority and Guardianship Act.
B. Muslim Law and the Legislature

In the realm of Muslim personal law, the legislative
activity appears to be extremely limited; and that too on the
initiative or demand of the Muslim community. In both pre and
post-Independence era, the attitude to the legislature towards
the
Muslim
personal
law
was
of
non-interference.
The
subsequent pages sketch the brief history of legislations in the

area of Muslim law.
(a) Pre-Independence Era
The
legislations
concerning
Muslim
personal
law
promulgated in the India during British regime can be broadly

arranged into three distinct categories,122 viz;
(I)
Laws legating to recognition of Muslim personal law;
(II)
Law affecting substantive provisions of Muslim personal

law; and
(III) Law regulating procedural aspects of the institutions

governed by Muslim personal law.
This classification is based on the nature of the
legislations sidestepping their chronological order of enactment.
Here, only a glance through the enactment in their historical
perspective is intended and not an analysis of their provisions.
(i) Act Relating to Recognition of Muslims Law
During the six decades between 1827 and 1887, there
were several Acts regulating the laws to be applied by local civil
courts in numerous provinces, which recognized the supremacy
of custom and usage over the rules of personal laws. 123 Due to
this statutory recognition of custom and usage, certain sections
of Muslims of India,124 followed customary laws in matters
relating to succession or inheritance which were contrary to the
122
123
124
Tahir Mahmood, Legislation for the Muslims in British India in An Indian

Civil code and Islamic Law p. 52 (1976, Tripathi; Bom.).
The Madras Civil Court Act, 1873, S-16and the corresponding provisions
enacted for other provinces.
For example Maplla Muslims of South India and Cutchi Memons were governed
by their old customary law of succession and inheritance.
Islamic Jurisprudence. Religious leaders of Muslims all over the

country felt that the situation called for express legislation
superseding customs, conflicting with Islamic law.125
The Mopilla Muslims of South India were the first to make
efforts for securing compulsory application of Islamic law. They
succeeded in 1918 when the Mapilla Succession Act was passed
in Madras. The Act provided that, notwithstanding any custom
to the contrary, intestate property of a deceased Mapilla would
devolve in the order of inheritance under Muhammadan
Law.126 Ten years later the Mapilla Wills Act, 1928 was enacted
to deal with the cases of testamentary succession among the
Mapilla of South India.
Two years later, the Cutchi Memons also succeeded in
their efforts by getting Cutchi Memons Act, 1920, enacted. This
Act, however, made the application of Muhammadan Law of
succession and inheritance optional. Unsatisfied with the
provisions the Memons continued their efforts; and finally the
Cutchi Memons Act, 1938 was enacted. The Act provided that
all Cutchi Memons will be governed by Muhammadan Law.
The Act is now applicable in Tamil Nadu and Andhra Pradesh.
Mysore and Kerala have, also, similar Acts enacted by local
legislatures.127
125
126
127

Section 3 of the Act.
The Mysore Cutchi Memons Act, 1943; Cochin Cutchi Memons Act 1106F;
Tranvancore Cutchi Memons Act, 1117F.
The laws applicable to Mapillas and Cutchi Memons were

confined to inheritance and succession. But in some other parts
of the country, customs contrary to Islamic law were being
followed by Muslims in relation to other matters also. Against
such practices a movement began in the early thirties of the
present century in the frontier province, leading to the
enactment of an Act in 1935, by the provincial assembly. The
Act provided that in all cases of marriage, divorce, succession
and
other
family
affairs
Muslims
would
be
governed
Punjabi
Muslims
compulsorily by Muhammadan Law.

Inspired
by
this
legislation,
the
endeavoured to secure a similar law having a country-wide

application. They had been counseled in this regard by Maulana
Ashraf Ali Thanavi, Maulvi Abdul Karim Gumathalvi and other
luminaries of Jamiat-al-Ulema Hind. In 1935, one Hafiz
Abdullah Layalpuri drafted a Bill for the purpose. When moved
in the central legislature Mohammad Ali Jinnah proposed some
significant amendments in its provisions. Eventually a law was
enacted in 1937 under the title: The Muslim Personal Law
(Shariat) Application Act. The Act almost abolished the legal
authority of custom among the Muslims of British India 128 for
reasons best stated in the Statement of Objects and Reasons:
For several years it has been the cherished desire of the
Muslims of India that the Customary Law should in no
128
S. Khalid Rashid, Muslim Law, p. 34 (3rd ed. 1996).
case take the place of the Muslim Personal Law. The matter
has been repeatedly agitated in the press as well as on the
platform. The Jamiat-ul-Ulema-i-Hindu, the greatest Muslim
religious body has supported the demand and invited the
attention of all concerned to the urgent necessity of
introducing a measure to this effect. Customary Law is a
misnomer in as much as it has not any sound basis to
stand upon and is very much liable to frequent changes
and cannot be expected to attain at any time in future the
certainty and definiteness which must be the characteristic
of all laws. The status of the Muslim women under the socalled Customary Law is simply disgraceful. As the Muslim
Women Organisations have condemned the Customary
Law, as it adversely affected their rights, they demand
that the Muslim Personal law (Shariat) should be made
applicable to them. The introduction of the Muslim personal
Law will automatically raise them to the position which
they are naturally entitled. In addition to this, the present
measure, if enacted, would have very salutary effect on
society, because it would ensure certainty and definiteness
in the mutual rights and obligations of the public. Muslim
Personal Law (Shariat) exists in the form of a veritable code
and is too well known to admit of any doubt or to entail
any great labour in the shape of research, which is the

chief feature of customary Law.129
The Shariat Act, 1937, came into operation on 7th October,
1937, and is applicable throughout India. It applies to every
Muslim of whatever sect or school. One provision of the Act lists
those matters which among Indian Muslims, shall invariably be
governed by the Muslim personal law. 130 There are; (i) marriage,
(ii) dissolution of marriage in any form, (iii) guardianship, (iv)
dower, (v) maintenance, (vi) gifts, (vii) trusts, (viii) waqf and (ix)
intestate succession (excepting that concerning agricultural
lands).131
Another provision mentions those matters in regard to
which the application of Muslim personal law would depend on
the option of an individual; once exercised the option being
binding
also
on
the
makers
minor
children
and
their
descendants. These matter are: (i) adoption, (ii) wills and (iii)
legacies.132 Under the Shariat Bills as drafted by Abdullah
Layalpuri, application of Muslim personal law to adoption, will
and legacies, too, was to be obligatory. The present provision
relating to these was enacted on the basis of Jinnahs
amendments, which he had moved in support of the objections
129
130
131
132
Gazette of India, 1935, pt. V. 136.

Sec-2 of the Act.
Succession of agricultural lands, being a provincial subject under the
Government of India Act, 1935, fell outside the jurisdiction of the central
legislature which passed this Act.
raised against the Bill by certain sections of Muslims.133 In 1942

Muhammad Ahmed Kazimi had moved a new Bill seeking
changes in the Shariat Act in a way which would undo Jinnahs
amendments and restore the original draft of the law; but it
could not muster the necessary support in the legislature
because of the apathetic attitude of the Muslim League.134
Some of the legislations application to all Indian citizens
had some provisions which would normally affect certain areas
of Muslim personal law. To exempt Muslim legal institutions
from the application of such laws, protective provisions were
specifically included in them. For example Sections 2 and 129
of the Transfer of Property Act, 1882, section 1 of the Indian
Trusts Act and relevant provisions of the Indian Succession Act,
1925.
(ii)
Acts Affecting the Substantive Provisions of Muslim

Law
The Oudh Laws Act of 1876 was the first legislative step in
British India, which affected a substantive provision of Muslim

personal law. That was an Act of regional extension now
applicable in ten districts of Uttar Pradesh which constituted
the erstwhile Oudh State. Sec. 5 of the Act empowers the courts
133
134
Muslims Zamindars in some parts of India used to nominate one of their sons or
other relatives or an adopted son as the successor who would inherit the whole
property to the exclusion of all heirs. Such arrangement would be impossible if
Islamic law were to apply.
to make a reduction in the amount of dower, payable under a

marriage contract, in accordance with the husbands means
and wifes status, at the time of payment. In 1920 an identical
power was conferred on the courts in the State of Jammu and
Kashmir under the J&K State Muslim Dower Act, 1920.
The Dissolution of Muslim Marriage Act, 1939, happens
to be the most important legislation in British India, having
regard to the source and method of legislation. The genesis of
this Act is to be found in a book, Al Hilat al-Najiza, compiled by
Maulana Ashraf Ali Thanvi in 1351. A.H. in the background of
this book there was cases of apostasy by Muslim women,
reported from certain parts of the country, in order to get their
marriage dissolved. There is no provision in the classical Hanafi
law, which applies to a majority of Muslims in India, to enable a
married Muslim women to obtain a decree from the court
dissolving her marriage, in case the husband neglects to
maintain her, makes her life miserable, and under certain other
such circumstances.135 Since the Hanafi jurists clearly laid
down that if Hanafi law causes hardship, it is permissible to
apply to provision of the Maliki, Shafii or Hanbali law. Acting on
this principle, the Ulema have issued Fatawa to the effect that
in certain cases, a married Hanafi Muslim woman may obtain
from court a decree dissolving her marriage. 136 In this
135
136

perspective a Bill, approved by Jamiat-al-Ulema Hind, was

moved in the central legislature by Muhammad Ahmed Kazimi.
With certain changes the Bill took the shape of the Dissolution
of Muslim Marriage Act, 1939. The Ulema were, however, not
satisfied with the Act when passed, mainly because of the
deletion from the Bill the clause which assured that only a
Muslim judge could dissolve a marriage under the newly
enacted law. Demands of amendment in the Act to this effect
have not met, as yet. This Act empowers the court to dissolve a
marriage at the wifes request on the grounds enumerated
under Section 2. The Act also provides that renunciation of
Islam by a Muslim wife would not ipso facto dissolve her
marriage, except when a women converted to Islam ceases to be
Muslims by reverting to her former religion.137
Another significant legislation in British India on Muslim
personal law is a Mussalman Wakf Validating Act, 1913. This
Act was passed to undo the Privy Councils judgment in Abul
Fata v. Russomoy Dhur Chowdhury,138 which invalidated the
family waqf (or waqf-alal-auld) an institution recognized since
long under the traditionally established Islamic law of waqfs.
The Privy Council held that such waqf were created merely to
give a colour of piety to arrangement made for aggrandizement
of families. This decision led to forceful opposition by different
137
138

(1894) 22 I.A. 76.
sections of Muslims. Allama Shibi Nomani and Syed Amir Ali

demanded statutory restoration of the traditional law. In this
historical background the Act of 1913 was enacted; and it was
given retrospective effect by a supplementary Act enforced in
1930.
(iii) Acts Regulating Procedural Aspects of Muslim Law
This category of laws covers the maximum number of
legislations relating to Muslim personal law. In the foregone
pages those laws were discussed which either sought to
recognize and enforce the actual Muslim law or affected the
substantive provisions of Muslim Law. In the instant discussion
those legislations are the subject-matter, which only regulated
the procedural aspect of the institutions of Muslim law.
(a) Pre-Independence Era
The
Bengal
Muhammadan
Marriages
and
Divorces
Registration Act, 1876, now applicable in West Bengal, Orissa

and Bihar139, and the Assam Moslem Marriage and Divorce
Registration Act, 1935, were enacted to provide to the local
Muslims, the facility of registering their marriages and various
forms of divorce, with state officials. These Acts are of a
regulatory nature and do not affect any provision of Muslim
139
In Orissa this Act has been re-enacted as the Orissa Muhammadan Marriages and
Divorces Registration Act, 1949.
matrimonial law. Registration of marriages and divorces under

these Acts are discretionary and not obligatory.
The Bengal Protection of Muhammadan Pilgrims Act,
1896, was enacted in order to regulate licensing of Muslims
functioning
in
the
province.
Later
in
1932,
when
the
government at the centre took over the control of Haj affairs,

the central legislature passed the Post Haj Committees Act
establishing a network of Haj Committees stationed at all major
ports of India. After Independence it was replaced by the Haj
Committee Act, 1959, which provides for the centralized Haj
administration.140
With the breakdown of the Mughal administrative and
judicial machineries in India, there arose the need for
legislation regulating the management of waqf properties
involving
exorbitant
wealth.141
In
the
beginning
the
administrative control was imposed on managers of waqfs under

certain local laws of general application e.g., the Bengal Code of
1810 and the Madras Code of 1817.142 The Musslman Wakf Act,
1923 was the first enactment which specifically and exclusively
dealt with the administration of Muslim waqfs. This Act has the
approve of Jaimat-al-Ulema Hind. Likewise, the Bengal Wakf
Act, 1934; the U.P. Muslim Wakf Act, 1936 143 and the Bihar
140
141
142
143
The Haj Committee Act, 1959 (No. 51 of 1959).

Now replaced by U.P. Muslim Wakf Act, 1960.
Wakfs act, 1947, were enacted by provincial legislatures. All

these Acts were enacted by provincial legislatures to provide for
better governance or administration of the waqf properties,
without effecting any change in the substantive Muslim law
relating to waqf.
(b) Post- Independence Era
During the framing of the Constitution an effort was
made by the Muslim members of the Constituent Assembly to
crave out a guarantee in the provision dealing with the
fundamental right to religious freedom (Article 25) to the effect
the personal laws of any community would not be altered. 144
However, the final form of the words incorporated in Article
25(1) and (2) did not create any exception in favour of any
community. Constitution of India, nevertheless, recognizes, the
personal laws by vesting the legislative power in the Parliament
and the State legislation on all matters in respect of which the
parties in judicial proceedings were, immediately before the
commencement of this Constitution, subject to their personal
laws, including, inter alia matters like marriage and divorce
infants and minors adoption; will, intestacy and succession;
joint family and partition.145 But the most problematic and
controversial provision of the Indian Constitution with regard to
personal laws, is Article 44 which requires the state to
144
145
S. Khalid Rashid, Muslim Law, pp.37-38 (3rd ed. 1996).

Item 5, List III, Schedule VII of the Constitution of India.
endeavour to secure for the citizens a uniform civil code

throughout the territory of India. Inspite of being only a
directive and thus legally un-enforceable, this Article has
provoked serious debates both on the judicial platform and
elsewhere.
Keeping the constitutional provisions aside, the legislative
response to personal laws, particularly the Muslim personal
law in the Independent-India, has not undergone any significant
change from the British-India. The only significant legislation,
after Independence, in the era of substantive Muslim personal
law is the Muslim Women (Protection of Rights of Divorce) Act,
1986. This Act was enacted to do away with the controversy
created by the Supreme Courts judgment in Shah Bano case,146
relating to maintenance of divorced Muslim women. This
judgment was contrary to the provisions of Islamic Shariat. As a
reaction to the judgement the entire Muslim community, except
few so-called progressive Muslims, organized protest for weeks
throughout the country for the protection of Shariat. 147 The All
India Muslim Personal Law Board, drew the attention of the
then Government towards the flaws in the judgment and
demanded for the restoration of the Islamic law regarding
maintenance of divorced Muslim women. This and other
political developments, led to the introduction of Muslim
146
147
Mohd. Ahmad Khan v. Shah Bano, AIR 1985 SC 945.

Dr. Saleem Akhtar, Shah Bano Judgment in Islamic Perspective, p. 341 (1st ed.,
1994 Kitab Bhavan New Delhi.)
Womens Bill in the Lok Sabha during the last week of

February, 1986.148 The Bill ultimately took the shape of the
present Act.
Like British India, in Independent India also, laws
regulating the procedural aspect of the institutions under
Muslim personal law have been enacted by both Union and
State legislatures. Most of these enactments are concerned
with the Waqfs. These are procedural in nature and do not
affect the substantive provisions of Muslim law. Some such
enactments are The Waqf Act, 1954; The Durgha Khawaja
Sahib Act, 1955, The Durgah Khawaja Sahib (Emergency
Provision) Act, 1950; The Durgha Khawaja Sahib (Amendment)
Act,
1964;
The
Public
Waqfs
(Extension
of
Limitation)
Amendment Act, 1959; The U.P. Muslim Waqf Act, 1960; The
U.P.
Muslim
Waqf
(Amendment)
Act,
1964;
The
Waqf
(Amendment) Act, 1969; The Waqf (Maharashtra Amendment)

Act, 1965; The Madras Waqf (Supplementary) Act, 1961; The
Waqf Act, 1995.
The discussion so far clearly brings out the policy of the
government in Independent India has been that of noninterference towards Muslims personal law. The legislative
activity in this area favour of it. This is so because Muslims
148
Dr. Saleem Akhtar, Shah Bano Judgment in Islamic Perspective, p. 341 (1st ed.,
1994 Kitab Bhavan New Delhi.).
consider their personal law to be sacred one and they identify

it with their religion. Hence they regard it immutable.
(c) Christian and Parsi Laws and the Legislature
India, being a meeting ground of all the major religions of
the world, has a multiplicity of family laws. 149 Thus like Hindu
and Muslims, Christians, Parsis and Jews are also governed by
their personal laws in their family matters. The Christians have
their Christian Marriage Act, 1872, the Indian Divorce Act,
1869 and the Indian Succession Act, 1925. These Acts deal
with the laws of marriage, divorce and succession for the
Christians. The laws relating to marriage and divorce, being
very old, do not fulfil the requirement of the Christian
community in modern times. Keeping this fact in view a Bill, to
amend and codify this law, entitled the Christian Marriage and
Matrimonial Causes Bill, was pending before the Parliament in
1962. When that Parliament was dissolved that Bill lapsed.150
As far as Parsi community is concerned efforts were
made, as early as 1835, by the members of the Parsi
community to have laws suitable to their social requirements,
but these early efforts proved abortive. Ultimately, in 1855 the
Parsi Law Association was established for the purpose of
drafting special Bills for laws applicable to Parsi community
relating, inter alia, to the law of marriage and divorce. The Act
149
150
M.P.Jain, Matromonial Law in India, p. 71, 4 J.I.L.I. (1962).

Kumud Desai, Indian Law of Marriage and Divorce, p. 191 (4th ed., 1981).
that was passed as a result of this, was the Parsi Marriage and
Divorce Act, 1865.
This Parsi Marriage and Divorce Act, 1865, was based on
the Matrimonial Causes Act, 1857, of England and its principal
effect was to make Parsi marriage monogamous. Since then the
circumstances altered. Moreover the Parsi Marriage and Divorce
Act, 1865, was itself defective in many respects. Adultery by
itself or adultery coupled with some other offence, were the only
grounds for divorce under that Act. On no other ground could
marriage be dissolved under it. Again a section of the Act
empowered only the wife to ask for judicial separation on the
ground of cruelty, or because her husband brought a prostitute
in his house; the husband had no remedy by way of seeking
judicial separation. To remedy these defects the present Act, i.e.
the Parsi Marriage and Divorce Act, 1936, was enacted. In
addition to this Act, the Parsi have their own separate law of
inheritance contained in the Indian Succession Act, 1925,
which is somewhat different from the rest of the Succession
Act.151
There is also the Special Marriage Act, 1954, which is a
secular code of marriage law of a general nature under which
any two Indians irrespective of their religion may marry. A
151
couple married under this law comes to be governed by the

Indian Succession Act, 1925.152
It is evident from the foregone discussion that in the
British period most of the legislative ventures in the realm of
personal laws were sporadic and pieces-meal, and were
undertaken to meet a need here and a demand there. They were
careful not to injure the religious susceptibilities of the Indians.
They, however, passed corrective and reformative legislations,
mostly in response to strong public opinion in favour of those
changes. After independence, the Indian legislature took some
significant steps of codification of Hindu law. Since the opinion
of the Muslim masses is not in favour of the codification of
Muslim law, very few steps have been taken in this direction.
152
Chapter IV
Personal Law and the Constitution of India
The Constitution of India is the Supreme Law of the Land.
It is not a document which sets out the frame-work and the
principal functions of the organs of the Government of a State,
but it also lays down the basic principles on the touchstone of
which the legality and constitutionality of other laws are
determined in the prevailing socio-economic and political trends
or requirement. It is because of this, the relationship between
the Constitution of India and personal laws, becomes
pertinent to be discussed; the same has been attempted in the
instant chapter.
For the sake of clarity this chapter deals with the
Personal Laws and the Constituent Assembly, Personal Laws
and Legislative Powers, Personal Laws and the Fundamental
Rights and Personal Laws and Article 44.
A.
Personal
Laws
and
the
Indian
Constituent
Assembly
Right after independence the question of the position of
personal laws got entangled into the whirlpool of national
politics. On the floor of the Constituent Assembly, for about two
years, the issue suffered convulsions caused by the utterances
75
of progressive legislators, dissenting voices of their so-called

conservative brethren, apprehensions echoed by the spokesmen
of the minorities,
and bricks and bouquets thrown from
outside by laymen and law-men.153

The Constituent Assembly had its first meeting in
December, 1946. Speaking on the report on minority rights in
August 1947, Pocker Saheb insisted that as far as Muslims were
concerned election to the central and provincial legislatures
should be held on the basis of separate electorates. Spelling out
his reasons for the demand he said:
The legislature is intended to make laws for the whole
country and for all communities, and it is necessary that in
that legislature the needs of all communities should be
ventilated. I would submit that as matters stand at present
in this country, it will be very difficult for members of
particulars communities, say the non-Muslims, to realize
the actual needs and requirements of the Muslims
community. They will find it practically impossible to
know exactly what the needs are. There may be legislation
concerning wakfs, marriage, divorce, and so many other
things of social importance. Therefore I demand a
principle to the effect that the best main in the particular
community should represent the view of that community.154
153
154
Tahir Mahmood, Personal Laws in Crisis, p. 3 (1st Ed. New Delhi, 1986).
V Constituent Assembly Debates, p. 213 (1947).
76
This proposal regarding separate electorates for Muslims,

however, met stiff opposition and thus any such possibility was
ruled out by the Constituent Assembly. Among those who
vehemently opposed it were, Govind Ballabh Pant and Sardar
Patel. The later opined :
But in this unfortunate country if separate electorate is
going to be persisted in even after the division of the
country, woe betide the country; it is not worth living in.155
As far as the issue of personal laws is concerned, it
evoked considerable conflict of opinion amongst the members
of the Assembly. It is interesting to note that whilst all the
Muslim speakers favoured continuation of the British policy of
neutrality, the Hindu speakers emphasized that the guarantee
of religious freedom by draft article 19 did not exclude the
jurisdiction of the state in matters of personal law. 156 The
Muslim speakers argued that neither of the draft articles 19
and 35, empowered the state to legislate on personal laws. 157
They stated that the secular state of India should not be
endowed with the legislative powers of encroach upon the
beliefs and practices of any religious community. Hindu
speakers expressed contrary opinion.
155
156
157
V Constituent Assembly Debates, p. 225 (1947).

D.K. Srivastava, Religious Freedom in India, p. 240 (New Delhi, 1982).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 543, (1949).
77
While presenting the draft-Constitution to the Constituent

Assembly for discussion in November, 1948, Dr. Ambedkar
observed :
The Draft Constitution has sought to forge means and
methods whereby India will have a Federation and at the
same time will have uniformity in all the basic matters
which are essential to maintain the unity of the country158
Further, he pointed that the means adopted by the draft
Constitution was uniformity in fundamental laws, civil and
criminal.159 Accordingly, article 35 of the draft Constitution
provided that The State shall endavour to secure for citizens a
uniform civil code throughout the territory of India.
Article 35 of the draft Constitution generated heated
discussion in the Constituent Assembly when it debated the
provision with Vice President H.C. Mookerjee in the chair.
Among those who sought amendments to articles 35 so as to
exclude personal laws from the purview of the civil code were
Mohammad Ismail, Naziruddin Ahmed, Mahoob Ali Beg, Pocker
Saheb and Hussian Imam. On the other hand S.C. Majumdar,
K.M. Munshi, Alladi Krishnaswamy Ayyara and Dr. Ambedkar
opposed the desired amendments and insisted on the adoption
158
159
of article 35160 by the assembly without any exemption of

personal laws from the purview of the further civil code.
Following points were emphasized by Mohammad Ismail
in his speech161
(a) The right of every community to follow its personal law is
a part of the fundamental rights to religious freedom;
(b) Retention of personal laws is guaranteed
by treaties or
statutes in many countries, e.g., Yogoslavia; and

(c) For securing harmony through unity, it is not necessary
to regiment the civil law of the people.
Naziruddin Ahmed wanted a guarantee that the personal
law of the community would not be changed without the
previous approval of the community. He stressed the following
points162
(a) The provision of Article 35 clashed with the fundamental
right to religious freedom, a provision regarding which
had already been adopted by the Assembly; it would
encourage the state to break that guarantee.
(b) While
regulating
secular
activities
associated
with
religious practices in exercise of the right given to it by the

provision guaranteeing religious freedom, the state could
160
161
162
The present article 44.

Assembly Debates pp. 540-41, (1949).
Assembly Debates pp 541-43, (1949).
enact laws like the Transfer of Property Act and the

Sharda Act; it could make registration of all marriages
compulsory; but it should not enact any law, say relating
to the validity of marriages and divorces, since they were
regulated by religion; and
(c) Time was not ripe for effecting uniformity in civil laws;
the powers given to the state to make the Civil Code
uniform was in advance of time. The goal should be
towards a uniform civil code, but it should be gradual and
with the consent of the people concerned.
He concluded his speech saying :
What the British in 175 years failed to do or were afraid to
do; what the Muslim in the course of 500 years refrained
from doing; we should not give power to the state to do all
at once163
Mahoob Ali Beg emphasized that the civil code spoken of
in article 35 did not include family law and inheritance but
since some people had doubts about it, it should be made clear
by a proviso to the effect that the civil code would cover transfer
of property, contract, etc., but not matters regulated by personal
laws. He also claimed the secularism did not negative diversity
in personal laws.164
163
164
Assembly Debates pp 543, (1949).
Assembly Debates pp 543, (1949).
Pocker Saheb laid emphasis on the following points165:

(a) One of the secrets of the success of the British rulers
and the basis of their judicial administration was
retention of personal laws;
(b) If the civil code was intended to supersede the provisions
of the various civil courts laws guaranteeing application of
personal laws to cases of family law and inheritance etc.,
article 35 should be termed as a tyrannous provision;
and
(c) No
community
favoured
uniformity
of
civil
laws;
organizations both Hindu and Muslim questioned the

competence of the Constituent Assembly to interfere with
religious laws. Article 35 was, thus, antagonistic to
religious freedom.
Hussian Imam, too, expressed similar sentiments and
added that India was a country full of bewildering diversities
which could not be put an end to at that stage. For effecting
uniformity in civil laws, he said, time should be awaited when
people became advanced, their economic conditions improved
and mass illiteracy was removed.166
165
166
The above account of the opinions expressed by Muslim

members shows two materially different attitudes. While
Naziruddin Ahmed and Hussain Imam envisaged the possibility
of having uniform family laws in some distant future, the other
three speakers ruled out that possibility for all time to come.
Many Hindu members of the Assembly expressed opinions
contrary of the views of Muslim members. Opposing Mahbood
Ali Beg, M. Ananthasyanam Ayyangar said that marriage is
Islam was a contract and could, therefore, be regulated by the
State.167 K.M. Munshi expressed the following views.168
i.
Even in the absence of article 35 it would be lawful for

Parliament to enact a uniform civil code, since the article
guaranteeing religious freedom gave to the state power to
regulate secular activities associated with religion;
ii.
In some Muslim countries, e.g., Turkey and Egypt,

personal laws of religious minorities were not protected;
iii.
Certain communities amongst Muslims, e.g., Khojas and

Memons, did not want to follow the Shariat, but they were
made to do so under the Shariat Act, 1937;
iv.
European countries had uniform civil laws applied even to

minorities;
v.
167
168
Religion should be divorced from personal law; the Hindu

Assembly Debates p. 543, (1949). p. 543
Assembly Debates pp 543, 547-48, (1949).
Code Bill did not conform in its provisions to the precepts

of Manu and Yajnavalkya;
vi.
Personal laws discriminated between person and person

on he basis of sex, which was not permitted by the
constitution; and
vii.
People should outgrow the notion given by the British that

personal law was part of religion.
Alladi Krishnaswamay Ayyar169 joined K. M. Munshi and
restressed some of the points made by the latter.

Muslim members moved that the following proviso be
added to draft article 35:
Provide that nay group, section or community of people
shall not be obliged to give up its own personal law in case
it has such a personal laws.170
One other proviso was also sought to be added to article
35. It reads as follows :
The
personal
laws
of
any
community
which
has
guaranteed by the statute shall not be changed except with

the previous approval of the community ascertained in such
manner as the Union legislature determine by law.171
169
170
171
Rejecting these amendments Dr. Ambedkar pointed out

that if India could have uniform laws of crimes, contract,
property, trade and commerce, it could have uniform laws of
marriage and succession as well. He concluded the debate by
saying that the Muslim members had read rather too much
into article 35 and gave assurance that the further parliament
might enact a uniform civil code but would apply it only to
those who voluntarily submitted to its provisions.172 Eventually
the Constituent Assembly rejected all the amendments173 and
adopted article 35 (now art. 44) directing the state to endeavour
to secular a uniform civil code.
Another effort to get Muslim law constitutionally protected
was made during the debate on the final draft. On 2 December
1948, while article 13 (relating to scope of fundamental rights)
was being finalized, Mohammad Ismail
sought to secure a
statutory right in favour of every citizen to follow his or her

personal law.174 C. Subramaniam opposed him saying that his
would amount to negating the provision directing the state to
endeavour to secure a uniform civil code, which the assembly
had already adopted.175 Ismail Saheb said that on the question
172
173
174
175
of cow slaughter the minority communities had agreed to

respect the feelings of Muslims regarding their personal laws. 176
He
was
strongly
supported
by
Syed
Kamaluddin
who
emphasized the religious origin and character of Muslim

personal law.177 Maulana Harsat Mohani, too, lent his support
to the amendment moved by Mohammad Ismail Saheb and
chose to declare in the House that Mussalmans will not submit
to any interference in their personal law and those who tried to
interfere will have to face an iron wall of determination by
Muslims to oppose them in every way.178
Opposing the proposed amendment, Dr. Ambedkar said
that such a clause saving personal laws would disable the
legislatures from enacting any social measures whatsoever 179.
He maintained that the personal law should be brought out of
the purview of religion, since if personal law was a religious
matter, every aspect of life from birth to death would be
covered by religious conceptions.180 Dr. Ambedkar, however,
pointed
176
177
178
179
180
out that the state was only claiming the power to
legislate and not an obligation to do away with the personal

laws. He concluded by saying :
[Sovereignty is always limited, no matter even if you
assert
that it is unlimited, because sovereignty in the
exercise of the power must reconcile itself to the sentiments

of different communities. No government can exercise its
power in such a manner as to provoke the Muslim
community to rise in rebellion. I think it would be a mad
Government if it did so. But that is a matter which related
to the exercise of the power and not to the power itself.181
On 6 December 1948, during the debate on article 19
(concerning religious freedom) Ismail Saheb made his last effort
to secure a constitutional right in favour of the citizens to follow
their personal law. He moved an amendment to article 19,
seeking to qualify the states powers to regulate by law activities
associated with religion by a safeguard that this power should
not be exercise so as to take away from a citizen his right to
adhere to his personal law.182 This time too the assembly did not
oblige Ismail Saheb and rejected his amendment. On 26
January 1950 the Constitution was adopted, incorporating a
directive to the state to Secure for the citizen a uniform civil
code throughout the territory
181
182
of India and specifying under
one or the other Legislative Lists matters traditionally regulated

by personal laws.
B. Personal Laws and Legislative Powers

As far as the legislative powers on the matters relating to
personal laws, are concerned, Article 372 of the Constitution is
the most important article. This article provides for the
continuance of the existing laws and their adaption. It runs as
follows :
(1) Notwithstanding
the repeal by this Constitution
of the
enactments referred to in article 395 but subject to the

other provisions of the Constitution, all the law in force in
the
territory
of
India
immediately
before
the
commencement of this Constitution shall continue inforce

therein until arrested or repealed or
amended by a
competent Legislature or other competent authority.

(2) For the purpose of bringing the provisions of any law in
force in the territory of India into accord with the
provisions of this Constitution, the President may by such
order make such adaptation and modifications of such law,
whether by way of repeal or amendment, as may be
necessary or expedient, and provide that the law shall, as
from such date as may be specified in the order, have effect
subject to the adaptations and modifications so made, and
any
such
adaptation
or
modification
shall
not
be
questioned in any court of law.

(3) Nothing in clause (2) shall be deemed:
(a) To empower the President to make any adaptation or
modification of any law after
the expiration of three
years from the commencement of this Constitution; or

(b) To prevent any competent Legislature or other competent
authority form repealing or amending any law adapted
or modified by the President under the said clause.
The expression law in force in this article shall include a
law passed or made by a Legislature or other competent
authority in the territory of India before the commencement of
this Constitution and not previously repealed, not withstanding
that it or parts of it may not be then in operation either at all or
in particular areas.
The phrase all the law in force in this article includes
statutory, customary and, it reasonably seems, also personal
laws.183 The language of article 372 (1) is analogous to section
292 of the Government of India Act, 1935, which also
recognized the continued application of all law in force then.
The Federal Court in United Provinces v. Atiqa,184 had held that
the phrase included also non-statutory law including personal
183
184
Tahir Mahood, Muslim Personal Law, Role of the State in the Subcontinent, p.
97 (1977).
AIR 1941 FC 16
laws. Even after the commencement of the Constitution the

High Courts of Rajasthan,185 Hyderabad,186 Calcutta,187 Madhya
Pradesh,188 and Bombay189 have confirmed the applicability of
article 372 to personal laws. This article, in any case, is the only
provision of the Constitution under which personal laws can be
claimed to have been recognized. If we do not apply it to
personal law, those laws are left without any constitutional
recognition.190
As regard the constitutional postulate of continuity and
change in the matter of pre 1950 laws, at the time of the
commencement of the Constitution a variety of personal lawsboth codified and un-codified was applied to various religious
and ethnic communities. By virtue of article 372 of the
Constitution all these laws, of every variety, got a statutory lease
for all such law extended till further action, if any, by a
competent authority. As specified in article 372 (1), this
further action could be taken in the form of alternation repeal,
amendment, or adaptation. The principal competent authority
that could take any such action would, of course be Parliament
or a State Legislature. An executive authority, however, could
also exercise the power of delegated legislation.
185
186
187
188
189
190
Panch Gujar Kaur v. Amar Singh, AIR 1954 Raj. 100.

Motibai v. Chanayya, AIR 1954 Hyd. 161.
Naresh Bose v. S.N. Deb, AIR 1956 Cal. 222.
Rao Mote Singh v. Chandrebali, AIR 1956 M.P. 212.
Atmaram v. State, AIR 1965 Bom. 9.
Tahir Mahood, Muslim Personal Law, Role of the State in the Subcontinent, p.
97 (1977).
The question if the power of adaption and modification of

the existing laws, conferred by article 372 (2) on the President of
the Republic, could be exercised by him also in respect of an
uncodified law or custom has not been free form difficulty.
However, since that power was not exercised by the President
within
the
stipulated
period
of
three
years
from
the
commencement of the Constitution, this question is now rather

redundant.
It is notable that all the three lists in Schedule VII of the
Constitution include even those subjects to which traditionally
the personal laws should apply. List III (mentioning subject on
which both Parliament and state legislatures can make laws)
specifies the following:
(a) Marriage and divorce; infants and minors; adoption;
wills, intestacy and succession; joint family and
partition; all matters in respect of which parties in
judicial
proceedings
were
immediately
before
the
commencement of this Constitution subject toothier

personal law.191
(b) Transfer of property other than agricultural land;
registration of deeds and documents.192
(c) Charities and charitable institutions, charitable and
191
192
Entry 5. List III Schedule VII of the Constitution of India.

religious endowments and religious institutions.193

List II (specifying the subjects on which state legislatures
can make law) includes burial and burial grounds,194 rights in
or over land195 (covering succession to agricultural lands) and
administration of justice and organization of courts at the
district level.196 In List I reveal to Muslim law is pilgrimage to
places outside India197 Under this Provision Parliament can
make laws regulating Haj and Ziyarat.
Thus,
nearly
the
entire
gamut
of
subjects
which
traditionally fall within the ambit of personal laws, has been

placed at the disposal of either the state legislatures or
Parliament.
C. Personal Laws and the Fundamental Rights

Although, in theory, there is no constitutional restriction
on the legislative power of the State in respect of personal laws,
the policy of successive governments at the Centre has lead to
their continued exemption from direct interference. Thus, by
virtue of the main provision of article 372, those part of preConstitution personal laws-both codified and unmodified and
applicable to whichever community that have not unit today
been touched by any competent authority remain in force, as
193
194
195
196
197

Entry 10.. List III Schedule VII of the Constitution of India,
Entry 5. List III Schedule VII of the Constitution of India,
before. Apart
from these laws, new personal laws have been
enacted by the Parliament for the majority community bringing

the Hindus, Sikhs, Jain and Buddhists under the umbrella of
these new legislations. However, the traditional laws of all these
communities not covered by these new enactments are still
applicable to them.
The question is whether the existence of various personal
laws, full of conflicting features and applicable to different
religious communities, is in itself inconsistent with the
fundamental rights enshrined in Part III of the Constitution. Or,
are personal laws supra-fundamental rights ? The following
discussion, in this section, throws light on these issues.
Intended here is the determination of the relationship between
fundamental rights and personal laws.
(i) Personal Laws and Article 13
Article 13 of
Part III of Constitution of India enunciated the
following general principle :

All laws in force in the territory of India immediately before
the commencement of this Constitution, in so far as they
are inconsistent with the provisions of this part shall, to the
extent of such inconsistency, be void.
Clause (2) of the same article restraints the State from
making
any
law
which
takes
away
or
abridges
the
Fundamental Rights.
The fundamental rights include, inter
alia, (a) equality before law and equal protection of laws

culmination into prohibition of discrimination against
any
citizen on grounds only of religion, race, caste, sex or place of

birth198 and (b) religious and cultural freedom. All laws in force
in India at the time of the commencement of the Constitution, if
repugnant of to these primary fundamental rights, have to
cease to apply in any manner whatsoever.
The questions is whether it is permissible under the
Constitution that the Muslims, Hindus, Christians, Parsis and
Jews of Indian be governed by different sets of religion-based
laws relating to marriage and inheritance, etc. Are the personal
laws not hit by fundamental rights? The answer to these
questions depends on whether the phrase all laws in force
used in article 13(i) covers personal laws too or not.
Article 13 itself says that law includes any ordinance,
order by-law, rule, regulation, notification, custom or usage
having in the territory of India the force of law 199 It further
mentions that law in force includes laws passed made by a
legislature or other competent authority in the territory of India
before the commencement
of this Constitution
and not
previously repealed, notwithstanding that any such laws or any

part therefore may not be then in operation either at all or in
198
199
Articles 14&15.
Clause 3(a).
particular area200
Personal law is not specified here in this
article. Are, then, the words used in article 13(3)(a)&(b) wide

enough to include personal laws; or was a reference to personal
laws deliberately omitted? The use of the word include shows
that the lists are not exhaustive and could extend to rules of
conduct not specified in them. The history of enactment of this
article and of some other constitutional provisions (article 19,
25, 44) shows that the Constituent Assembly did not intend to
exempt personal laws from the legislative competence the State.
Do then, the different personal laws becomes automatically void
in terms of article 13(1)? The answer to this question is not free
from difficulty.
In State of Bombay v. Narasu Appa Mali201 (a case under
the Bombay Prevention of Hindu Bigamous Marriage Act, 1946),
it was argued before the Bombay High Court that the rule of
Muslim personal law permitting bigamy had become void, after
the commencement of the Constitution, by virtue of article
13(1), since it allowed Muslim men to have more than one wife
while the Bombay Act of 1946 forced Hindus to stick to
monogamy. Chief Justice Chagla and Justice Gajendragadkar
(as they then were) thereupon examined in details if article 13
(1) was applicable to personal laws; and they arrived at the
200
201
Clause 3(b).
AIR 1952 Bom. 84
negative finding. The following points were stressed by the Chief

Justice.
i.
The words custom and usage used in article 13 do not

include personal laws. Custom or usage is deviation from
personal law and not personal law itself.
ii.
Relisting the difference between customary law and

personal law, The Constituent Assembly, in defining law
under article 13 has expressly and advisedly used only
the expression custom or usage and has omitted personal
law. This is a very clear pointer to the intention of the
Constitution making body to exclude personal law from
the purview of article 13.
iii.
There are other pointers as well. Article 17 abolishes

untouchability. Article 25(2)(b) enables the state to
make laws for the purpose of throwing open of Hindu
religious institutions of a public character of all classes
and sections of Hindus. Now, if Hindu personal laws
became void by reason of article 13 and by reason of its
provisions contravening any fundamental rights, then it
was necessary specifically to provide in article 17 and
article 25(2) for certain aspects of Hindu personal law
which contravened articles 14 and 15. This clearly shows
that only in certain respects the Constitution has dealt
with personal law.
iv.
The very presence of article 44
in the Constitution
recognizes the existence of separate personal laws. Entry

No. 5 in the Concurrent List gives power to the
legislatures to pass laws affecting personal laws.
v.
It is clear from the language of article 372 (1) and (2) that
the expression laws in force used in this article does not
include personal law, as article 372 entitles the President
to make adaptations and modifications to law in force by
way of rpeal or amendment, and it cannot be contended
that it was intended by this provision to authorize the
President to make alterations and adaptations in the
personal laws of any community.
The Chief Justice concluded his arguments observing
Although the point urged before us is not free from
difficulty on the whole, after a careful consideration of the
various provisions of the Constitution we have come to the
conclusion of personal law is not included in the expression
law in force used in article 13 (1)202
Justice Gajendradkar agreed with all arguments of Chief
Justice Chagla and added that article 13(1) applied to what

may compendiously be described as statutory
laws, that is
say, laws, passed or made by a legislature or other competent

authority203 He added
202
203
that the Muslim and Hindu personal
AIR 1952 Bom. 89, para 13.

AIR 1952 Bom. 90, para 13.
laws, whose foundations were their respective scriptural texts,

could not be said to have been passed or made by the
legislature or competent authority and therefore do not fall
within the purview of article 13 (1).204
Similar opinion were in later years expressed by the High
Courts
of
Madras,205
Punjab206,
Karnataka207,
Madhya
Pradesh208 and Manipur.209 Until this day, the court has said
that either the continued application of separate personal laws
is, or the exclusive reform of any one of them could be, ultra
virus part III of the Constitution. In 1959 the Supreme Court of
India of India expressed an opinion that application of different
endowment
administration
laws
of
different
religious
communities was not unconstitutional210. Before and after that

date in numerous cases the Supreme Court has taken the note
of the existence of separate personal laws and applied them to
respective communities without questioning the legality or the
constitutionality of the personal-law system.
The judicial opinion of the two great judges of the time
namely late M.C. Chagla and late P.B. Gajendragadkar in
Narasu Appas case,211 has been dissented from by the eminent
204
205
206
207
208
209
210
211
AIR 1952 Bom. 91, para 13.

Srinivas Iyer v. Saraswathi Ammal, AIR 1952 Mad. 1993.
Gurdial Kaur v. Mangal Singh, AIR 1968 P & H 396.
Suda v. Sankappa Rai, AIR 1963 Mys. 245.
Abdullah v. Chandni, AIR 1956 Bhopal 71.
H.B. Singh v. Bhani, AIR 1959 Manipur 20.
Moti Das v. S.P. Hahi, AIR 1959 SC 962.
State of Bombay v. Narasu Appa Mali , AIR 1952 Bom. 84.
scholars like D.D. Basu,212 H.M. Seervai213 and Mohammad

Ghause214, who are convinced that all personal laws including
their non-statutory parts are hit by article 13(1). The ChaglaGajendragadkar verdict pronounced in 1952 has, however, been
followed, though often silently and without specific reference,
by all the higher courts in the country.
In its recent decision in Krishan Singh v. Mathura Ahir215,
the Supreme Court has categorically ruled that :
Part III of the Constitution does not
touch upon the
personal laws.216
This judgment has been vehemently criticized by Justice
A.M. Bhattacharjee in his M.N. Bose Lectures of 1981 217. It is,
however, submitted
that this was the only way in which the
various provisions of the Constitution relating to personal laws,

apparently generating various kinds of tensions and conflicts,
could have been reconciled by the Supreme Court.
(ii) Personal Laws and Article 14 and 15
So far as the applicability of Part III of the Constitution to
non-statutory personal laws is concerned, the question that has
been particularly, raised is whether the religion and sex-based
212
213
214
215
216
217
Commentary on the Constitution of India, Vol. I, p. 155 (1965).

Constitutional Law of India, pp. 254-255 (1968).
Personal Law and the Constitution of India in T. Mahmood (ed.) Islamic Law
Modern India, pp. 57-58 (1972).
AIR 1980 SC 707
Krishan Singh v. Mathura Ahir , AIR 1980 SC 712.
A.M. Bhattacharjee, Hindu Law and Constitution (1983).
diversities found in the fabric of any such laws would be

affected by the equality-clauses of the Constitution contained
in articles 14 and 15. It is alleged and all classical personal laws
particularly those applicable to Hindus and Muslims abound
in discrimination between persons on the basis of religion or
sex. Much such alleged discrimination under various laws have
been brought to the notice of the courts; but the courts so-far
convinced that Part III of the Constitution does not hit nonstatutory personal laws-have generally left those laws intact.
For instance, in Nalini v. State of Bihar,218 the Patna High
Court held that rule that daughters cannot be coparceners is
not hit by the provisions of article 15 of the Constitution. In
Mukta v. Kamalaksha,219 the Karnataka High Court held that
the legitimate illegitimate distinction in the matter of childrens
maintenance rights under the conventional Hindu law does not
effect an unconstitutional discrimination. The Punjab High
Court once refused to test, on the touchstone of article 15, the
High Court curbs on the power to dispose of ancestral
property.220
It is interesting to note that recently, the Supreme Court
of India in Ahmedabad Women Action Group v. Union of India,221
dismissed
218
219
220
221
three
AIR 1977 Pat. 171.

AIR 1960 Mys, 182
1971 Cur. L.J. 660.
(1997) 3 SCC 573.
writ
petitions
which
challenged
the
constitutionally of various provisions of different personal laws

on the ground, inter-alia, of being violative of articles 14 and 15.
The Court observed that the questions involved in the case
were the issue of State policies with which the court will not
ordinarily have any concern. The same opinion was expressed
by the Apex Court in Maharshi Avadhesh v. Union of India.222
The judicial trend, so far, clearly indicates the reluctance of the
Courts to determine the constitutionality of various personal
laws on the touchstone of articles 14 and 15.
(iii) Personal Laws and Religious Cultural Freedom
Article 25 of the Constitution provides :
(1) Subject to public order, morality and health and to the
order provisions of this part, all persons are equally
entitled to freedom of conscience and right freely to
profess, practice and propagate religion.
(2) Nothing in this article shall affect the operation of any
existing law or prevent the State from making any law.
a. Regulating or restricting any economic, financial,
political or other
secular activity which may be
associated with religious practice;

b. Providing for social welfare and reform.
222
1994 Supp. (1) SCC 713.
Article 26 gives to every religious denomination or any

section thereof the right to establish and maintain institutions
for religious and charitable purposes and to make its own
affairs in matters of religion. Article 29 (1) says that any
section of the citizens which has, inter alia, a distinct culture
of its owns shall have a right to conserve the same. The
question before us is if the terms religion, affairs in matters
of religion or distinct culture include the religion-based
personal laws of any community. If that is not so personal law
will be a secular activity associated with religion which the
state can regulate.
A large number of Muslims have a firm conviction that
their personal law is a part of their religion and distinct
culture within the meaning of these terms as used in article
25 and 29 respectively and that since it is a matter of religion
within the meaning of article 26, their community should have
a right to manage it itself. An important question in this regard
is who will decide whether a particular thing is a part of
religion, culture or religious affairs? Will the conviction in that
behalf
of
particular
community
itself
be
given
any
consideration in determining that question?

In Ratilal Panchand v. State of Bombay,223 the Supreme
Court had held that subject to the restriction which Article 25
imposes, every person has a fundamental rights not merely to
223
(1954) SCR 1055
entertain such a religious belief as may be approved of by his

judgment or conscience but to exhibit his belief and ideas in
such overt acts as are enjoined or sanctioned by his religion
In another case224 the Supreme Court said that Religious
practices or performance of acts in pursuance of religious belief
are as much a part of religion as faith or belief in particular
doctrines. How would, then, religion, belief and practices be
distinguished from secular activity associated with religious
practices [art. 25(2) (a)]? Further, what is the scope of social
welfare and reform [art. 25(2)(b)] vis--vis religious beliefs and
practices?
In Mulla Tahir Saifuddian v. State of Bombay, 225 the
Supreme Court observed that for the application of Article 25(2)
(a) it is necessary to classify religious practices into such as are
essentially for a religious character and those which are not. In
Durgah Committee v. Hussain,226 it said that whether a religious
practice is an essential part of a religion is an objective question
to be determined by the court and that the view of a religious
denomination itself is not final.227 It is in the light of these
judicial decisions that we have to examine the place of personal
law as an essential part of Islamic religion, a Muslim will
ordinarily give an emphatic affirmative answer. There is no
224
225
226
227
Comm. H.R.E. v. Lakshmindra, (1954) SCR 1005.

AIR 1962 SC 853
AIR 1961 SC 1402
Durgah Committee v. Hussain , AIR 1961 SC 1415
dearth of statements made by Muslim Ulema, lawyers and

politicians, or of resolutions adopted at Muslim conferences,
asserting that the Muslims personal law is a part of Islamic
religion. But in view of Supreme Court decision in Durgah
Committee case, their conviction is not decisive in the matter
and is subject to judicial scrutiny.
As regards polygamy, the Allahabad High Court has held,
in two different cases, that contracting a bigamous marriage
cannot be said to be an integral part of either the Muslim or the
Hindu religion,228 It may be, said justice Oak in the first case,
that under the personal law of Muslims one may have as many
as four wives. But I do not think that having more than one wife
is a part of religion So a legislative requirement to the effect
that a Mussalman may not have more than one wife does not
amount
to
interference
with
freedom
of
conscience
or
interference with the right to profess, practice and propagate

religion.
In Narasu Appas case Justice Chagla had said:
If religious practices run counter to public order, morality or
health, or a policy of social welfare upon which the state
has embarked, then the religious practices must give
way. Marriage is undoubtedly a social institution, an
institution in which the state is vitally interested. Although
228
Badruddin v. Aisha (1957) , ALJ 300; Ram Prasad v. State of U.P., AIR 1957
All. 141.
there may not be universal recognition of the fact, still a

very large volume of opinion in the world today admits that
monogamy
is
very
desirable
and
praise
worthy
institution. If, therefore, the state of Bombay compels

Hindus to become monogamists, it is a measures of social
reform the state is empowered to legislate with regard to
social reform under Art. 25(2) (b) notwithstanding the fact
that it may interfere with the right of a citizen of process,
practice and propagate religion.229
The learned Chief Justice added :
It must not be forgotten that in a democracy the
Legislature is constituted by the chosen representatives of
people. They are responsible for the welfare of the State
and it is for them to lay down the policy that the state
should pursue. Therefore it is for them to determine what
legislation to put on the status book in order to advance the
welfare of the state. If the Legislature in its wisdom has
come to the conclusion that monogamy tends to the welfare
of the state, then it is not for the courts of law to sit in
judgment upon that decision.230
Thus, bigamy is not recognized by the courts either as an
essential part of any religion or as a religious practice. Most
probably the same will be the judicial attitude toward unilateral
229
230
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. pp. 86-87.
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. pp. 86-87.
divorce in Islamic law, since it cannot be proved by any strength

of arguments that Islam enjoins as husband to away with his
wife by a unilateral and arbitrary action. But how about the
shares of various heirs in the scheme of inheritance which are
specially the part of their personal laws to be an integral part
of their religion. It seems that, in regard to Muslim, marriage
and divorce can be more easily ascribed to realm of secular
activities
associated
with
religion
than
inheritance
and
succession. The matter will however, have to be decided by the

courts.
From the discussion so far it can be inferred that in spite
of the absence of a clear cut distinction between essentially
religious and secular activities, the judicial trend is such the
personal laws do not find the protection of Religious Freedom
guaranteed under article 25.
The place of the personal law system in the scheme of
article 26 guaranteeing to every religious denomination the
right to manage its own affairs in matters of religion will, of
course, be determined by how one interprets the various
provisions of article 25. If practice of religion does not include
adherence to personal laws and if matters now regulated by
personal laws are in fact secular activity associated with
religion, obviously Art 26 cannot apply to personal laws.231
231
But what is, or should be, the place of personal laws

under article 29 of the Constitution guaranteeing to all
sections of citizens the fundamental right to conserve their
distinct culture? Personal law may not be part of religion, but
is it part of culture? Personal law may not be part of religion,
but is it part of culture? Is it part of our culture how to from a
family and live our domestic life? Or, culture only means how we
dress up, sing and dance? Will it be wholly absurd if a
particular section of citizens claims that its age-old personal law
is a part of its distinct culture? Notably there is no clause in
article 29 enabling the state to regulate secular activity
associated with culture. Who will, then, have the authority to
adjudicate upon the assertion of a section of Indian citizenary
that its distinct culture is found in its personal law? And if it
accepted that personal law is a part of culture, will article 29
come into conflict with article 25 or with article 14 and 15? No
answers seem to have been given to these questions.232
(iv) Fundamental Rights as the strategy for attaining
Uniform Civil Code
In a normative constitutional system which guarantees
basic human rights to the subjects any of the actions of state
directly
or
indirectly
permitting,
assisting,
or
enforcing
discriminatory or unjust practices made by the people even in

232
their interpersonal relations is basically control legem. There is

no reason why the blessings of civil liberty should not percolate
to the levels of inter-personal relations. From the view point of
strict constitutionalism there cannot be a different conclusion,
especially in the Indian context. But unfortunately, the
development of law in this regard does not augur well. The
result is that the natural elasticity in fundamental rights could
not be made use of the full extent to incorporate the welfarist
goal of fair and just civil code.
Under
Article
13
of
the
constitution
every
law
contravening any of the provisions of Part III is declared to be

void. Under Article 14 it is ordained that the state shall not
deny to any person equality before law and equal protection of
the laws. When state agency is made use for implementing
customs, usages, and laws allowing discrimination in the
matter
of
matrimonial
rights,
succession,
partition,
maintenance and guardianship. There is clear violation of Art.

14.233 As per Art. 21 of the constitution everyone is entitled to
personal liberty and its deprival shall be in accordance with the
procedure established by Law. Recent decisions of the Supreme
Court have established that such procedure shall be just, fair
and reasonable.234 As family is a form of association it is
amenable only to reasonable restrictions by the laws on the
233
234
This is with the nation that judiciary is also state under Art. 12 of the
Constitution, a principle which is not well established.
Meneka Gandhi v. Union of India, 1978 1 (SCC) 248
ground of public order and morality. On the whole these

constitutional provisions insist on fair conditions even in the
sphere of personal law.
In addition, there are provisions enabling or directing the
state to bring about social reforms. According to Article 25(2)(b)
nothing in this article, (namely, Art. 25(1) guaranteeing
freedom of religion) shall affect the operation of any existing law
or prevent the state from "making any law providing for social
welfare and reform" Under Art. 15(3), State is empowered to
make laws creating special provisions for women and children.
Further the right to conserve religion under Art. 29(1) cannot
be interpreted to protect personal laws either for the reason that
personal law is not an essential matter of religion or for the
reason that state is enable to make a social reforms under art.
25(1).
The application of Part III of the Constitution as
touchstone to test the constitutional validity of personal laws
revolves around the issue whether personal law is law at all for
the purpose of Part III of the Constitution. Logically speaking
this is an unnecessary controversy because personal law either
based on custom or in the form of statutes is a set of legal
norms regulating the behavioural rights and obligations of
people and is enforced by court of law or by state power.
However, in State of Bombay v. Narasu Appa Mali,235 the Bombay

High Court in answering the question whether Hindu Bigamous
Marriage Act, 1946 which imposed prohibition upon bigamy
only upon Hindus and not upon Muslim, held that since
personal law was not law under Art. 13 the need of testing it
under Art. 14 did not arise at all. Chagla C. J. and
Gajendragadkar J. laid emphasis on omission of the term
personal law in Art. 13 and restrictive interpretation of the
phrase 'custom or usage' in Art. 13. They gathered support from
Art. 17, Art. 25(2) and Art. 44 for the view that the constitution
makers had assumed that different personal law were to prevail
subject to modification by the State for the purpose of social
reforms. According to the learned judges, if Hindu personal law
became void by reason of Art. 13 then it was unnecessary to
specifically provide for Art. 17 or Art. 25(2).
It is submitted with respect, the reasonings adapted by
the learned judges were fallacious. Firstly, the definition of the
term law in Art. 13(3) is an inclusive definition and hence the
logic of omission or restrictive interpretation of 'custom or
usages' cannot be sustained. The more relevant test for law
under Article 13(3) is whether the concerned norms is capable
of being enforced by the state poser.
235
AIR 1950 Bom. L. This is view is criticized by A.M. Bhattacharji "Personal Law
and State Action" AIR 1982 Jour, p. 113.
Articles 17 and 25 (2) are illustrative of abundant caution

and express thinking made by the Constitution makers for
reforming the social habits. There is no support to the
proposition that the State cannot interfere in the field of
personal
law
through
any
provision
of
Part
III
of
the
Constitution.
In fact, the challenged legislation was a measure of social
reform as the court correctly viewed, for equalizing of rights of
males and females in Hindu community. The comparison
between Hindu and Muslims could have been answered in this
way: as distinct social, cultural and historical reasons are
connected with personal law of each of the communities, large
scale reforms at one stroke affecting all communities cannot be
enacted, but piecemeal and gradual reforms will have to be
enacted reasonably choosing that community which is mature
and ready to receive the reforms. The Constituent Assembly
Debates on Art. 44, hint at the criterion that is to be adopted in
this matter. When the basis of classification is explicable with
convincing
reasons
from
the
sociological
and
cultural
perspective, the impugned legislation could have been upheld as

in accordance with Art. 14. This would have been the logical
solution to the question on the ground of right to equality. By
holding that personal law is not law for the purpose of Art. 13,
the decision came in the way of libertarian or egalitarian
influence upon personal law by judicial actions.
In Sri Krishna Singh v. Mathura Ahir,236 the Supreme

Court held the view that personal law is not law for the purpose
of Part III of the Constitution. This case also came in a peculiar
circumstance.
In
this
case
after
the
death
of
Swami
Atmavivekanand of 'Sant Math' Mathura Ahir, his closest

discipline was appointed as new Mahant by the 'Bhesh of Sant
Math' in the formal Bhandra ceremony according to the wishes
of
late
Atmavivekanda.
Srikrishna
Singh,
son
of
Atma
Vivekanand (in his purvahrama) was in possession of the

properties belonging to the math. When the new Mahant
claimed the property of Math, it was defend by Krishna Singh
that the rule that natural son served his relations with father
the moment the latter adopted sanyasa was discriminatory and
that the Shudra cannot become a Mahant of Sant math. About
the first point of defence the court viewed that the said rule
was not discriminatory and that even if it was discriminatory
since personal law was not law under Art. 13 it could not be
quashed. About the second point, the court elaborately dealt
with the conventions of devolution of Mahantship in Sant Math
Sampradaya and upheld the validity of the appointment. The
proposition that the personal law was not under Art. 13 was not
essential for the decision of the case. In both Narasu Appa and
Krishna Singh the impugned law or customs were in spirit not
voilative of Art. 14, 15 and 16. The Court has reasoned on the
236
AIR 1980 SC 707.
basis of right to equality itself, to arrive at similar conclusion.

Since judiciary was in ambivalence and since the elastic and
activist content of right to equality had not emerged as an
influencing for the judiciary traversed a narrow path.
In Gurdayal Kaur v. Mangal Singh,
237
the High Court of
Punjab observed, "if the argument of discrimination base on

caste or race could be valid, it would be impossible to have
different personal laws in this country and the court will have
to go the length of holding that creeds or communities can be
constitutional. To suggest such an argument is rejected." It is
submitted that the reasoning based on right to equality need
not have been stretched to such an extreme in spite of its
desirability.
Unjust,
discriminatory
and
anti-liberation
principles within each personal law can surely be tackled by

application of Part III. As Mohammad Ghouse observes the
existence of multifarious personal law cannot be valid defence
when a personal law violates fundamental rights.238He considers
the observation of Punjab High Court as obiter dicta.
Excepting the above three decisions, the approach of the
High Court and that the Supreme Court is generally to apply
part III of the Constitution to test the constitutional validity of
the impugned principles of personal laws. The High Court of
Madras in Srinivas Aiyar v. Saraswathi Ammal,239 held that the
237
238
239
AIR 1968 Punj. 396. at 398.

Gurdayal Kaur v. Mangal Singh , AIR 1968 Punj. 396. at 398.
AIR 1952 Mad. 193.
reference in the Entry 5 of the concurrent list to joint Family

and Partition (which are institutions of Hindu law and unknown
to Muslim Personal Law) prove that the Constitution did not
rule out the validity of the principles under which different
personal laws are applied to different religious communities.
The court observed, it is surely an indication that it recognizes
the classification already in existence that a section of the
people are subject to a system of law peculiar to them. The
reason of that classification is not their religion but that they
have all along been preventing their personal law peculiar to
them." Hence the court treated the whole of personal laws as
'existing law' or 'law in force' under Art. 372 and Article 13.
In Sheokaran Singh v. Daulatram,240 the High Court of
Rajasthan struck down the rule of Damdupat in Hindu law as
violative of Art. 14 of the Constitution. It reasoned that
Damdupat was a commercial custom and thus governed by Art.
13.
The Supreme Court was called to decide the question
whether personal law of Muslims relating to pre-emption as law
under Art. 13 and whether it was violative of Art. 19 (1) (f), for
the first time in Sant Ram v. Labh Singh 241 in 1965. The Court
answered that the definition of the phrase 'laws in force' is
dependent upon the definition of law' in Art. (3) (b) and that
240
241
AIR 1953 Raj.

AIR 1965 SC 314.
both the definitions control the meaning of Article 13 (1). As

principles relating to preemption where based on customs and
usages they was governed that it violated Article19 (1)(f) which
guaranteed right to acquire hold and dispose property.
Concerning the statutory personal laws enacted after the
commencement of the Constitution, the approach of the
judiciary in recent times is to scrutinize them under the light of
various provisions of Part III without delving into the technical
question whether personal law is law. In T. Sareetha v.
Venkatasubbaiah,242 the Andhra Pradesh High Court considered
Sec. 9 of the Hindu Marriage Act providing for retention of
conjugal rights to the spouses living separately without
reasonable justification as violative to personal liberty under
Art. 21 of the Constitution. The Court viewed that if unwilling
spouse is coerced by State power to cohabit with the other
spouse there is violation of right privacy. In Harvinder Kaur v.
Hermender
Singh,243
the
Delhi
High
Court
upheld
the
constitutional validity of Sec. 9 as a reasonable regulation

protecting the institution of marriage in accordance with Art.
21. In Saroj Rani,244 case the Supreme Court affirmed the view
of Delhi High Court and rejected the view of Chaudhary J. of
A.P. High Court. It is to be remembered that the issue of
242
243
244
AIR 1983 AP 357.

AIR 1984 Del. 66.
AIR 1984 SC 1562
personal law as law did not figure in these cases. The question
has become a non-issue in these cases.
About the desirability of applying Part III provision to
peruse the personal laws there can hardly be any meaningful
objection. The principle of equality, liberty and security have
great
relevance
in
sphere
where
exploitation
and
discrimination prevail and the persuasions of love and affection

are sometimes banished. The application of Part III will ensure
just and fair legal relations in different personal laws. This
much more desirable rather than quarrelling on the pedagogic
concept of uniform civil code. Once the concepts of justice and
liberty are instilled into the realm of personal law, Uniform Civil
Code will be easier to pursue. As Mohammed Ghouse has
observed: The Fundamental Rights available to a Muslim law to
save it from being condemned as unconstitutional. The Muslims
can have no objections to such adaptations as most of them
have discarded the license to polygamy and unilateral divorce
given to them"245
The judicial activism of purging the personal law under
the aegis of part III has certain advantages. Such an approach
is generally free from the defect of playing to the emotional and
religious
convictions
of
people.246
In
the
backdrop
of
unjustifiable legislative inertia and hesitation, the activist

245
246
Quran, sura 2, 226 and V 2285 and v. 237 p. 232.

Resentment by the Muslim community about Shah Bano decision (AIR 1985
SC 955) is unfortunately an exception.
approach of the judiciary is a ray of hope Secondly, as the

'purging' approach is from the view point of the policy
underlying Part III, the result is also excepted to be fair provided
that there is no substitution of arbitrariness in personal law by
judicial arbitrariness.
D. Personal Law and Directive Principles

(i) Article 44
After fundamental rights it is now the turn of the
directive principles of state policy, contained in Part IV of the
Indian Constitution. Article 44, placed in this part of the
Constitution,
happens
to
be
the
most
controversial,
misunderstood and misused provision. Although this article will

be discussed at length in Chapter V of this work, a brief
account of its mandate becomes necessary here. It lays down
that:
That state shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India.
Undoubtedly, the expression civil code used in this
article refers to a code of law relating to those matters which
are, at present being regulated or governed by different personal
laws. This inference is crystal clear from the debates in
Constituent Assembly discussed earlier is the instant chapter. It
is noteworthy take like all other directive principles specified in
the Constitution, the provision of article 44 too shall not be

enforceable by any court, but it is nevertheless fundamental
in the governance of the country and has to be applied by the
State in making laws.247
Despite its being legally non-enforceable, the Court at
times has raised the issue of the enactment of a uniform civil
code more often when the case did not require any such
incidental generated by the obiter dicta in Shah Banos Case, 248
Jordan Diengdeshs case249 and Sarla Mudgals case,250 will be
discussed in the succeeding chapters.
(ii) Family Law, Religion and Social Justice
The family law, by controlling the institutions of marriage
and property, determines the very course of human life.
Marriage is a substantial tie in the life process of human
being.251 Family property is
the source of substance and the
basis of freedom of actions for the family members. Child care

and maintenance are the important parental obligations.
Justice in these matters is necessary for a happy home and this
task is onerous when factors of love and morality do not
generate fair familial relations.252 It is for this reason that
247
248
249
250
251
252
Article 37 of the Constitution of India.

Mohd. Ahmad Khan v.Shah Bano,, AIR 1985 SC 945.
Ms. Jordan Dienghed v. S.S. Chopra, AIR 1985 SC 935.
Sarla Mudgal v. Union of India, (1955) 3 SCC 635.
T.M. Knox, Hegel's Philosophy of Right, p. 111 (1958).
Steven Vago, Law and Society, p. 265-67 (1931).
scholars have rightly observed that the test for a just social
order lies in a just and fair family law.
The secular power of the modern welfare state, among
other things, aims at establishing social relations within and
outside the family on the non-exploitative plane of social justice
and
quality.
The
ethical
considerations
of
familial
responsibilities and the overtones of equality, liberty and justice

in family life arising out of the guaranteed human rights have
common ground and aim at promoting social happiness.
However, application of state power becomes a must when the
norms governing interpersonal relations within the family do
not accord to guarantee human rights. The 'living law' of the
people namely, customary personal law, ought not to live in
contradiction to the avowed policies and values enshrined in the
Constitutional
or
against
the
well
intentioned,
reformist
legislations.253 It has to make way for attaining social justice

within the family.
In its essence, social justice means the quality of being
fair and just in social relations of human beings.254 This noble
253
254
Eugenue Ehrlich is advocated the idea of "living law of the people' which
outpace the state made law. He held the view that the centre of gravity of legal
development lies not in legislation nor in juristic science nor in judicial decisions
but in society itself. However his concept of 'living law' was one which
experienced permanent evolution, rather than embodiment of static rules. If
customary person law does not generate and consolidate the forces of change and
consequently becomes static and outmoded, the constitutional law and legislative
reforms can reform them and make them live upto the expectations of evolving
times. For a critical treatment of Ehrlich's idea see W. Friedmann, Legal Theory, p.
248-252 (Fifth ed. 1967).
K, Suibba Rao, Social Justice and Law, p. 1
quality is attained within the family by eschewing exploitation of

the vulnerable members like women and children by the
dominant members and by forbidding, the operation of
irrational notions and religious beliefs of blind nature, the
concept of social justice aims to attain a social arrangement
wherein
the
good
things
of
the
society,
amenities
and
responsibilities are justly distributed among the members of the

society.255
At the dawn of Indian independence, the isolated pockets
of different personal laws prevalent in India were not only
factors of communal disharmony and disunity but were
veritable instruments of injustice and exploitation. As Pandit
Jawaharlal Nehru observed, "our laws, our customs fall heavily
on the women folk... and men happen to enjoy the dominant
position."256
Permission for polygamy and child marriage, prohibition
on inter caste marriage and widow remarriage, absence of
divorce and other matrimonial remedies, denial of woman's
right to share in the family property 257 on in the property of the
deceased persons and male dominance in matter like custody,
guardianship and adoption of children caused unjust conditions
in the Hindu social order. According to Nehru, the Birth Policy
255
256
257
R.W.M. Dias, Jurisprudence pp. 81-82; Also see John Rawis, A Theory of
Justice pp., 3-4 (1972).
Nehru's Speeches Vol. III p. 444 Speech in Lok Sabha 16.09.1955 in the context
of supporting the concept of divorce.
Steven Vago, Law and Society, p. 265-67 (1931).
of
non-interference
with
personal
law
and
mechanical
interpretation or perpetuation of Hindu customs stopped the

natural growth of Hindu law and gave rise to petrified rules. 258
The Muslim Personal law has incorporated still more rigid and
unfair
usages
like
polygamy,
unilateral
divorce,
non-
maintenance of divorced wife and gender discrimination in

matters of succession. As Pandit Nehru wrote with thoughtful
perception, "Thus Hinduism and Islam, quite apart from their
religious teachings, lay down social codes and rules about
marriage,
inheritance,
civil
and
criminal
law,
political
organisation and indeed almost everything else. In other words,

they lay down a complete structure for society and try to
perpetuate this by giving it religious sanction and authority." 259
According to Nehru, the extreme religious misplaced.260
The
attempt to extend the sphere of religion to all of the minute and

changing situations of society would probably result in the
weakening of the basic fibre of that religion. Giving religious
sanctions to rigid social usages which increasingly comes into
conflict with changing modern conditions would ultimately
discredit that particular religion.261
258
259
260
261
Speech of Nehru as reported in The Hindu 10.12.1951 and in Lok Sabha

16.09.1954. Donald Eugene Smith, Nehru and Democracy p. 164 (1958); The
British Policy of non-interference in pointed out by several authors. M.P. Jain,
Outlines of Indian Legal History 472-74(4th Ed. 1981)
Jawaharlal Nehru, Glimpses of World History, p. 736.
Nehru's Speech as reported in Times of India, 16.09.1954.
Donaid Eugen Smith
Eminent scholars of personal law and sociology regard the

growth of different personal laws as mere byproducts of
specific cultural processes rather than as the inevitable results
of religious principles and practices. On the contrary in the
background of broad concept of Dharma 262 (justice) or the
egalitarian charter in the Shastrik writings 263 and the Quaranic
emphasis on human dignity and equality264 it is not possible for
any one to justify some of the unjust, discriminatory
and
exploitative usages of personal laws as in accordance with the

true ethos of the religions. Derret, observes, "whether the
sanction behind the law be the demands of religion or merely
those of age and unbroken acceptance, a careful distinction is
to be maintained boundary between the two is allowed to
become obscure provided that when the rules apparently
authorized by the ultimate sanction cease to serve the purpose
for which they were intended, there should be no obstacle to
their relegation to the legal historians museum, unsurvived by
their formal relations.
"Such is the outcome of the investigations whether the
claim that Hindu law is based on Hindu rules. Rules that have
religious foundation are, as we shall see in more detail, often
neglected and without public cry. Rules which have no
262
263
264
M. Rama Jois, Legal and Constitutional History of India, pp. 3-10. (Vol. 1,
1984).
M. Rama Jois, Legal and Constitutional History of India, pp 3-10 (Vol. 1, 1984).
Neil, B.E., Bailliee, Digest of Mohummudan Law pp. 62-65 (1957).
foundation are upheld on the formal ground that they are

sanctioned, by religion. The liasion between religion and law is
not close."265 Derret has arrived at similar conclusion about
Muslim personal law also.266
Even if religions have some influence on the broad outlook
upon the social institutions like marriage and family or about
interfamilial relations, the constitutions makers of free India
had the indomitable conviction that "Religion must be restricted
to spheres which legitimately appertain to religion and the rest
of life must be regulated, unified and modified in such manner
that we may evolve as clearly, as possible, a strong and
consolidated nation"267 Progress and clinging to the past,
according to them would not go together.268 Nehru viewed, "India
must break with much of her past and not allow it to dominate
the present. Our lives are encumbered with the deadwood of
this past, all that is dead and has served its purpose has to go.
We have go get out of traditional ways of thought and living
which, for all the good they have done in a past age, and there
265
266
267
268
Duncan J.M. Derret, Religion Law and the State in India, p. 117 (1968); Prof.
S.S. Nigam considers that the wide range of personal law is essentially of civil
nature and matter which are inseparable from religious beliefs and usages in G.S.
Sharma (ed.) Secularism; Its implications for law and life in India, p. 153 (1966).
It is only in the inspectional stage of Islamic law that what James Bryce viewed
becomes a correct explanation. Bryce had viewed , 'In Islam Law is Religion and
Religion is Law, Because both have the same source and equal authority, being
both contained in the same divine revelation.' James Bryce, Studies in History and
Jurisprudence, Vol. II, p. 237 (1901).
K.M. Munshi in Constituent Assembly Debates, Vol. VII, p. 548
Krishanaswamy Ayyar, On the Muslim (Protection of Rights on Divorce)
Act, 1986, Eastern Book Company, Lucknow (1987). p. 549.
was much good in them, have ceased to have significance

today.269 The only significant doctrines and values of the
modern age are republicanism, secularism and social justice
which move the generations and stir them to actions for social
happiness. "The whole concept of the secular state is based on
the elementary truth that the individual is the centre of social
organization and not groups-religions or otherwise and that
equal rights should be secured to the citizens through
democratic devices".270 Values promoting social justice are
always to be preferred over the irrational and baseless
traditional principle. Social change is necessary for this
purpose.
(iii) Directive Principles, Social Change and Uniform Civil
Code
"Social
change
means",
observes
Steven
Vago,
"modifications of the way people work, rear a family, educate

their children, govern themselves, and seek ultimate meaning in
life. It also refers to a restructuring of the basic ways in which
people in a society relate to each other with regards to
government,
economics,
education,
religion,
family
life,
recreation, language, and other activities" 271 The equation

whether law can and should lead, or whether, it should never do
269
270
271
Jawaharlal Nehru, The Discovery of India, p. 509 (1962).

K.T. Ramaswamy, The Hindu 14.7.1951 citied by Donaid Eugen Smith.
Steven Vago, Law and Society pp. 238-239 (1981); B.S. Sinha, Law and Society
Social Change p. 16-23 (1983).
more than cautiously follows changes in society, has been and

remains controversial. Despite the debate, modern welfare
states, make use of law as "instruments that set off, monitor, or
otherwise regulate the fact or pace of social change," 272 Law can
shape social institutions directly or indirectly. It can not lead
the society, in its own way, to the land of social justice provided
that factor resisting social change do not counter-balance the
effort of the law.273 Further, to be successful instrument of
social change, law should be free from technical defects and
loopholes and should be effective.274
Thus, when the ability of law in bringing about social
change is so much dependent upon its ability to neutralize the
factors cultural, social, psychological and economic which
resist social change, the role of constitutional morality 275 in the
social transformation cannot be so vital. To the thickets of
sentiments and emotions it can penetrate only minimally
especially because it lacks the teeth of coercive enforcement
mechanism. It is with this awareness that we have to assess the
relation between Directive Principles and social change.
272
273
274
275
Lawrence M. Friedman, Legal Culture and Social Development, Law and

Society Review 4 (1) p. 29 cited by Steven Vago.
For a detailed discussion of factors resisting social change.
The importance of technical perfection of the legal instrument and efficient
handling of it by administrators of law and justice is pointed out by W. Friedman
Legal Theory 177 (5th) Ed. 1967).
Because of the characteristic of non-enforceability, the Directive Principles of
State Policy re regarded as principles of constitutional morality. H.M. Seervai,
Constitutional Law of India, p. 1612 Vol. II (1984).
True to the aspiration of being a social document Indian

constitution has incorporated a set of directive principles
addressing the state authority to undertake to implement the
plans of social and economic progress of the people and nation.
The sincere effort to translate the tryst with destiny 276 into
actuality can be found in the wide coverage of Part IV of the
Constitution
which
includes
the
directives
for
economic
democracy, labour welfare, fair working conditions and wages,

right
to
work,
protection
against
moral
and
material
abandonment, amelioration of weaker sections, compulsory

education, uniform civil code, promotion of public health and
levels of nutrition, panchayat raj, upbreeding of livestock,
respect for international treaties, law and peace. Thus the
direction and content of social revolution and the contours of
planned pleas of State policy. It is to be remembered that these
are not dustbins of sentiments, or hobby horses of high
ideologies, or lip sympathy embellishments.277On the other hand
they are down to earth instructions to the power holder about
the inevitable goals of welfare state and also the means of
achieving them. All the forms of state power are to be geared up
276
277
On August 15, 1947 Nehru said, "Long years ago we made a Tryst with destiny,
and now the time comes when we shall redeem out pledge, not wholly or in full
measure, but very substantially . The achievement we celebrate today is but a
step, an opening of opportunity to the greater triumphs and achievement that await
us", J. Nehru, Independence and After" p. 3-6.
The criticisms by some of the members of constituent assembly as summarized
in K.C. Markandan, Directive Pirective, principle in the Indian Constitution, pp.
123-1125. (1966).
to this task and the legal system is to operate as a purposeful

enterprise towards these ends.
The high importance given to the Directive Principles of
States Policy can be understood in the language of Art. 37
which declares that Directive Principles of State Policy shall be
fundamental in the governance of the State and it shall be the
duty of the State to make legislations for giving effects to
Directive Principles. The non-enforceable character of the
Directive
is
counter
balanced
by
the
high
appeal
of
constitutional morality made to the State. They are substantive

sources of inspiration for various organs of government to brig
about
social
reforms.
The phrases "fundamental
in
the
governance of the state" and "it shall be the duty of the State" in
Art. 37 point out the normative character of the Directive
principles. This constitutional intention should not go waste for
the sole reason that courts of law cannot be resorted to for the
enforcement of Directive Principles.278 Because of the normative
character of Art. 37, at least it should be regarded that State
action
opposed
to
any
of
the
Directive
Principle
is
unconstitutional.279 When the supreme law of the land positively

shows particular direction towards which state shall move,
moving in opposite direction or withdrawal of any step taken
278
279
Upendra Baxi, "Directive Principles of Sociology of Indian Law: A reply to

Jagat Narain" 1 JILI p. 258.
T Daxidas , "Directive Principles; Sentiment of Sense?" 17 JILI (1975) 478 at
481.
towards the constitutionally intended direction is opposed to the

constitution.280 By holding them void, the judiciary is not
'enforcing' it for the purpose of Art. 37 but merely removing the
impediments in the path
Principles.
Thus,
the
of implementing
choice
for
the
state
the Directive
is
between
implementation of the Directives partly or fully, perfectly or

imperfectly a non-action. There cannot be a third alternative of
going against the Directives. In the backdrop of development
like passing of Muslim Women (Divorces and Maintenance)
Protection Act, 1986 such an approach salvages the importance
of the Directive Principle.281 ]
The constitution makers had no utopian idea that only by
the constitution and law social change could be attained. They
had the realistic approach of appreciating popular participation
in the process of social transformation. For example Dr. B. R.
Ambedkar viewed that Part IV of the constitution would be a
measuring rod to assess the that election result would be the
political
sanction
against
non
implementation
of
the
Directives.282 It is doubtful, except in one or two general

elections, whether voting behaviour of people in India really
made use of this measuring rod.
280
281
282
T Daxidas , "Directive Principles; Sentiment of Sense?" 17 JILI (1975) 478 at

481.
Dr. B. R. Ambedkar, in C.A. D. Vol. VII p. 476, 494.
Dr. B. R. Ambedkar, in C.A. D. Vol. VII p. 476, 494.
Pandit Jawaharlal Nehru viewed, "when you talk about

legislative chains in a democracy, you necessarily take into
consideration the fact that the people have been brought up to
the required level a very large section of the people must also
accept it or at any rate, actively or passively, be read to accept
it."283 Therefore, it is essential to create a background, a mental
climate in favour of the proposed law with the help of the means
of propaganda and percussion. Nehru advocated that along with
legislative influence, there must be another influence also, 'the
influence of the direct approach to the people, making them
accept changes.284 Law cannot achieve every change that is
desirable. According to Nehru, "through legislation on the one
hand, and through education of society on the other, we can
bring about charge."285 However, when the society showed deep
syndromes of social evil, 'surgical operation' through law was
necessary. According to Pandit Nehru, Hindu Code Bill and
agrarian reforms were such surgical operations.'
From the social change perspective, Directive Principle of
State Policy can be categorized into two classes. First, the
Directives which do not require mental climate created through
an active propaganda and persuasion in favour of the reform.
The directive principles relating to labour welfare, social
security measures, economic stability and equality through
283
284
285
Tibar Mende, Conversations, with Nehru p. 93.

Tibar Mende, Conversations, with Nehru p. 93.
Jawaharlal Nehru, Socialism by Consent p. 12.
equitable distribution of material resources of production, equal

pay for equal work, legal aid, amelioration of weaker sections
and respect for international treaties and peace can be regarded
as belong to this category. In the post-constitution period it has
been experienced that without influencing and generating the
public opinion a number of laws have been made and enforced
in these spheres. Here law itself created public opinion in
support of it. People receive such law mainly because of the
economic advantages and security created by them. Even
though such legislations may go against the vested interests of
few of popular acceptance of the same leads them to success.
Further, they do not shake the traditional or sentimental
beliefs, psychic egoes or religious feelings.
The second category of Directives need a favourable
atmosphere welcoming their implementation. They require
popular participation in the process of change. The Directives
persuading for uniform civil code, compulsory education,
panchayat raj, prohibition of cow slaughter and prohibition of
alcoholism can be considered as belonging to this category.
Social morality, religious feelings, sentiments, ignorance and
traditions inhibit any change in these spheres. Imposition of
change through law without regard to the feelings of people
would be simply counter productive or futile in these matters. 286
286
The failure of prohibition law, compulsory education programmes and panchayat

raj can be traced to this reason.
As personal behavour, beliefs and group psychology are

interfered by such as laws, legislator should first win the
confidence of the legislative audience. However, religious
fundamentalism and obscurantism should be sternly tackled by
the State. The tendency of unduly wooing the favour of religious
communities would defeat the very welfarist goal and fan the
fanatic waves of communalism. In the post-constitution. In the
post-constitution period in this second category of directives,
social changes through law are meager.
Article 44 of the constitution declares, "the State shall
endeavour to secure for the citizen a uniform civil code
throughout the territory of India". The expression 'civil code'
connotes a code regulating civil matters including marriage,
divorce, inheritance and such other matters governed by
personal laws. Such a code shall be uniformly applicable to all
citizens irrespective of religion, race, caste and sex Art. 44 does
not hint at the features of future civil code. It also does not say
whether uniformity of civil law is to be attained at a stretch or
by piecemeal reforms. From the views of constitution makers at
the making of the constitution, it can be generated that uniform
civil code is aimed to solve the problem of diversity of gender
discrimination based on religion.287 In brief, its emphasis is on

uniformity with justice.
Soon after the commencement of the Constitution the
Government piloted the Hindu Code Bill to bring about large
scale changes in major area of Hindu law. Despite the stern
opposition from the orthodox, the law was enacted ultimately.
Under Hindu Marriage, Act, 1995 new concepts like monogamy,
divorce valid requirement of marriage, inter-caste marriage,
matrimonial remedies and alimony were introduced. Under
Hindu Succession Act, 1956 the concept like widow's absolute
right to property of her husband, equal shares among legal
representatives without gender discrimination, limitation on
rule of survivorship and principles governing devolution of
female's property and escheat were established. Under Hindu
Minorities and Guardianship Act, principles relating to equal
rights of mother and father in the custody and guardianship of
minor children, protection of interest of minor against the power
of guardians were recognized. Under Hindu Adoption and
Maintenance Act, certain benevolent principles relating to
287
Constituent Assembly Debates Vol. VII pp. 547-550. Different systems of Hindu
law in different parts of India also had posed the problem of diversity. As Derret
point out demand, for unity, certainty, equality of sexes and elimination of
restrictive and antique rules seemed to be the principal reasons for codification.
Derret, As Justice Tulzapurkar has put it "In the context of fighting the poison of
communalism the relevance of communalism the relevance of uniform civil code
cannot be disputed, in facts it will provide a juristic solution to the communal
problem by striking at its root cause. Nay, it will foster secular forces, so essential
in achieving social justice and common nationality. Tulzapurkar, J. ' Uniform Civil
Code' AIR Journal p. 17.
obligation to maintain any spouse, children and parents who

are unable to maintain themselves are recognized. Equal rights
of women to adopt children are also recognized. Inter-caste
adoption was newly introduced under the Act. Through recent
amendments in Hindu Marriage Act, new grounds for divorce
were introduced and the concept of divorce on mutual consent
has been established. It is a notable achievement for a nascent
democracy
that
major
segment
of
its
population
is
emancipated from orthodox, irrational and discriminatory

relations and in their place is governed by the principles of
justice, equality and liberty.288 The task of the law giver was not
one of much difficulty as the majority of the Hindu community
was ready to receive the reforms.
Regarding reforms of Muslim personal law in a large scale
manner, there was distrust and protest by the representative of
the Muslim
community in the Constituent Assembly. 289 They
had a sense of undue reverence of Quaranic prescription which

were considered as the basis of their personal law. With the
obsession of effacement of their cultural identity by the
majoritarian interference, suspicions loomed large about the
noble intention of uniform civil code and its 'imposition' upon
288
289
The socially progressive aspects of Hindu code bill convinced Nehru to regard
its as a symbol of progress inspite of the reactionary view in the social domain.
According to him the spirit of liberation underlying the code made the Hindu
people especially women folk free from out grown customs and shackles which
had bound them. See Donald Eugene Smith.
This is clear from the views of Mr. Naziruddin Ahmed, Mehboob Ali Baig,
Mohammad Ismail Saheb and Hussian Imam C.A.D. Vo. VII p. 540-550.
them,290 Nehru felt that Muslim s were not sufficiently educated

to accept and approve modern values. He observed, "Now, we do
not dare to touch the Muslims because they are in minority and
we do not wish Hindu majority to do it. These are personal law
and so they will remain for the Muslims unless they want to
change them."291 He completely ruled out imposition in this
matter. It is submitted, the tendency of overcare towards the
minorities conspired with the fundamentalist obsession and as
a consequence, the notion of social justice became the
scapegoat in this sphere unawaringly. Instead of overplaying the
sympathy factor, there should have been an organized state
propaganda for social justice in the area of family law.292
The argument for retaining status quo in Muslim personal
law with the reason that Muslim law is too sacrosanct to be
touched by legislature is not well-founded. 293 Enactments like
Shariat Act, 1973, Dissolution of Muslim Marriage Act, 1939
and Muslim Women (Protection of Rights) on Divorce Act, 1986,
show that legislations also have an important say in matters of
Muslim law. In fact, the Dissolution of Muslim Marriage Act,
1939 brought about considerable changes relating to right to
divorce by wife.
290
291
292
293
Refer the speech of Naziruddin Ahmed in CAD Vol. VII, p. 540.

Tibor Mende
Without moving the altruistic lever through emphasizing on factors of duty and
coercion, the much expected social action can never be attained, as per the view of
Rudolph van Ihering,
Mohammad Ghouse, Secularism, Society and law in India, p. 232 (1978),
Tulzapurkar, J. Union Civil code AIR 1987 Jour 17.
Except the Act of 1939 no other legislation provided for

reform in Muslim personal law. The archaic customary practices
usages and religious prescriptions still govern the Muslim
community.294 Because of the hesitation of judges and jurists to
adopt reformative approaches, the law became stagnant. Even
the perversions of religious teachings were not rectified.295 For
example, regarding polygamy, Quran stated that one can marry
more than one wife (upto four) only if he is able to treat all
equitably.296 Since such a treatment is impracticable, there is
virtual discardment of polygamy. About the duty to maintain
divorced wife also Quranic approach is liberal.297 Rigid usages
developed because of deliberate manipulation.
In pursuance of the policy of rendering social justice and
economic security to the dependents, Criminal procedure Code
(the earlier Act and the present one) provided for obligation of
all persons to maintain his/her spouse, minor, children,
unmarried daughter and parents who are unable to maintain
themselves. The duty of maintenance avoids the problem to
moral and material abandonment in the family life. It is purely a
secular measure. In Bai Tahira,298 and Shah Bano,299cases the
Supreme Court applied Sec. 125 of Cr.PC.
294
295
296
297
298
299
Talzapurkar.
V.R. Krishna Iyer, Social Mission of Law, p. 187 (1976)
Quran, sura 4:3
Quran, sura 2, 226 and V 2285 and v. 237.
AIR 1979 SC 362
AIR 1985 SC 955
providing for the
duty of maintenance and the argument that Sec.125 violated

the Muslim
Personal law and religious freedom of the
community were rejected. According to the Court, payment of

Mehr and maintenance during iddat period did not absolve the
husband from the duty to maintain. About the argument on the
basis of religious freedom, the court viewed that for purpose of
secular and welfarist provision like Sec. 125 of Cr.P.C.
application of religious principle was irrelevant. Even if the
religion provided for otherwise under Art. 24 of the Constitution
the State has power to make legislations for social reform in the
semi religious matters. However, the court viewed, after
elaborate reference to the Muslim religious writings, that
Muslim husband wife beyond the iddat period. The court laid
emphasis upon the objective of uniform civil Code under Art.
44.
Fundamentalists raised hue and cry against the Shah
Bano decision. Parliament adopted the policy of appearing the
minority and enacted Muslim Women (Protection of Rights) on
Divorce Act, 1986 amidst protest by the opposition. The Act
absolved the husband to pay the divorced wife beyond the iddat
period.300 The responsibility of paying the maintenance 301 was
imposed on the waqf Board also. The Act had the retrograde
policy of preferring an archaic principle and rejecting the
300
301
Sec. 4(1)
Sec. 4 (2)
humanitarian approach of assisting the divorced wife who is

facing social misery and economic impoverishment. 302 It is
submitted, the policy underlying the statute has betrayed the
constitutional intention of enacting uniform civil code and
attainment of social justice.303 The whole incident shows that
the temporary will of the parliamentary majority is sometimes
able to subvert the secular and egalitarian values. Such a
measure as we have observed earlier, is unconstitutional.
Since the legislature has proved time and again its
unreliable character and callous or partisan approach in the
matter of enacting uniform civil code, hope is to be pegged on
the judicial venture in this direction. Recent judicial approach
on Directive Principle is really conducive to this. At the
beginning of the constitution it was judicially viewed that
Directive Principles shall conform to and run subordinate to
Fundamental Rights.304 Subsequently, judiciary held that laws
implementing
the
directives
amount
to
reasonable
restrictions.305 Slowly an approach became established that Part

III and Part IV of the Constitution stand on equal footing,
mutually complementary to each other and have common
objectives of achieving social justice.306 Hence harmonious
302
303
304
305
306
Tulzapurkar, p.18
Generally V. Krishan Iyer, Muslim Women Protection Act (1987).
State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
F.N. Balsara v. State of Bombay, AIR 195 SC 318, M.H. Qureshi v. State of
Bihar, 1959 SCR 629.
Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1463, Chandrabhavan v.
State of Mysore, AIR 1970 SC 2042; Minerva Mills v. Union of India (1980) SCC
interpretation of Part III and Part IV is the only possible way of

subserving the values underlying these parts. Recently, going a
step further, the Indian Supreme Court has made use of
elasticity of fundamental Rights to incorporate in its fold the
value of Directive Principles of State Policy. For example, the
court made use of Art. 14 of the constitution to effectuate the
Directive Principle of 'Equal pay for Equal work' in a series of
cases.307
The
principle
of
avoiding
moral
and
material
abandonment of children was attained through application of

Art. 21 and Art. 23 of the Constitution. 308 The Directive
Principle relating to social security at old age was found to be
more fruitful under Art. 14.309 The Directive Principles for
worker's participation in management was given effect requiring
compliance with the duty to hear workers under Art. 14 before
winding up the company or closing down the industry. 310 This
process of activising the Directive Principles by injective their
spirit into the veins of Fundamental Rights is a high water mark
of judicial activism and achievement. In attaining the goal of
uniform
civil
code
this
approach
can
contributes
very
considerably.
307
308
309
310
625.
Randhir Singh v. Union of India, AIR 1982 S.C. 879.
Kaskmikant Pandey v. Union of India 1987 1 SCJ., P.U.D.R. v. Union of India
AIR 1982 SC
D.S. Nakara v. Union of India, AIR 1983 SC 130.
National Textile Workers Union v. Ramakrishna, AIR 1983 SC 75.
In India, personal laws are the distinct products of multicultural system evolved through generations. Even though the
relation between personal law and religious is considerable
remote, because of sentimental reverence of people to the 'living
law' of tradition, the task of attaining social justice in this
sphere is resisted by some orthodox sections of the society
directly or indirectly. However, the majority of the population
has favourably responded to the introduction of social reforms
in their personal law. But the experience of the law maker in the
direction of Uniform Civil Code is that effecting changes even in
an incremental manner is very difficult. In fact, Uniform Civil
Code in its strict sense may not be so much essential as
compared 'o the need of attaining social justice in each and
every enclave of personal law. The intention of the constitution
makers in enacting Art. 44 was to orient the state action
towards attaining social justice in the familial relations. As the
national social justice in its broad contours has the same
accentuation and insistence, ultimately social justice in each
and every sphere will lead to attain of Uniform Civil Code or a
situation nearer to it.
The disappointing factor in this area is the total neglect of
the goal by the legislature. In the area of reforming Muslim
Personal Law, no sincere effort is made by the State to adopt the
Nehruian two pronnged approach of implementing the law and
educating the public opinion in favour of it simultaneously. On
the other hand, the recent legislation i.e., Muslim Women

(Protection of Rights on )Divorce Act, 1986 has shown the
retrograde policy of preferring archaic notions to the secular
idea of social justice. It is true that in matter of social morality,
the power of the law to bring social changes is limited. 311 But if
the legislator positively obstructs the desirable social change it
is the betrayal of the confidence reposed in him to strive for
social justice.
The analysis made above shows that there is the snag of
non enforceability which hinders the Directive Principles of
State Policy in becoming a powerful instrument of social
engineering. The judicial process has been influenced to some
extent in recent times. Judiciary has demonstrated in several
cases that reading in Directive Principles into the elastic veins
of Fundamental Rights is the profitable approach in translating
the values goals in Part IV interstitially. However, the judicial
path of attaining social justice in personal laws by application of
the fundamental rights under Art. 14,15, 19, 21 and 25(2) (b) of
the Constitution is strewn with self-created pitfalls. The
unnecessary controversy on the question whether personal law
is law for the purpose of Part III diluted the efficacy of judge
made reform. However, recent pronouncements of the court (for
example, pertaining to the constitutionality of Sec. 9 of Hindu
311
Friedman W., Nehru's Speeches Vol. III p. 444 Speech in Lok Sabha 16.09.1955
in the context of supporting the concept of divorce.
Marriage Act) receive confidence in this regard.
The need of
judge made reform on the basis of Fundamental Rights is very

much felt to-day in the backdrop of legislative inertia and
agonizing injustice, exploitation and discrimination in some of
the uncodified personal law.
A blue print of the future in this area consists in a
multipronged effort through legislative activism, propaganda for
social
justice.312
in
personal
law
and
increased
judicial
application of Part III in relation to personal laws. There is no

need for amending any provision of Part III relating to religious
freedom to protect reforms in personal laws because the relation
between personal law and religion is remote and also because
no impediment on that ground is experienced by the judiciary
or the legislature.313 Further Art. 25(2) (b) is quite elastic.
The legal activism in the reform of personal laws should
not be a unilateral intrusion of one system to other.314 Some of
the just and egalitarian principles of Mohammedan law could
be introduced into Hindu and other personal laws and vice
312
313
314
In Muslim law it is recognized that Ijma i.e. consensus of the faithful is a source
of law. Since enlightened and collective opinion of the community has a
determining say in providing for adaptation and change, the role of educating
public opinion in favour just and fair principles in family law is essential Amir Ali,
Mohammadan Law.
Tulzapurkar, J. is of the opinion that there is the need for constitutional
amendment permitting reforms in personal law notwithstanding the guarantee of
freedom of religion. It is submitted, Art. 25(2) (b) is quite elastic to allow such
reforms even if it is considered that personal law is part of the religion. But it is
generally accepted that personal law is remotely connected with religion.
Prof. A.B. Shah is of this opinion in article as cited by Tulzapurkar J, Quran, sura
2, 226 and V 2285 and v. 237.
versa. For example, in Muslim law there is a principle that the

power of any Muslim individual to bequeath his or her property
through will is limited to one third of his/her property and two
thirds of the property through will is limited to one third of
his/her property and the two thirds of the property of the
deceased person should devolve according to the rules of
intestate succession.315 This rule has several advantages. First,
the kin of the deceased are assured of equal share and they will
be protected against the whims and fancies of the testator.
Secondly, the personal bequeathing can provide for additional
share by his will to any of his legal representative who has
assisted him/her during the old age or to a person whom he
thinks as deserving because of economic weakness of that
person. Third, the rule protects against bequests of whole
property to any person, institution or body affecting the interest
of the closest blood relatives of the testator. Finally, the impact
of undue influence in the process of making the testament will
be considerably limited. Since the rules of intestate succession
are based on humanitarian principles of protecting of interests
of dependents and the kith and kin the reasonable expectation
of the latter are also fulfilled. Total exclusion of intestate
succession by the will or the bequeath or may work as
arbitrary.316 The rule of limitation on testamentary succession
315
316
Neil B.B. Baillie, Digest of Mohummadan Law, p. 625 (1957).

According to Julius Stone, the rules of succession should aim towards protecting
the family from disintegration. Explaining the English legal developments in 1938
(Inheritance Family Provision Act 1938) which introduced limits on testamentary
can be adopted in other personal laws subject to modifications.

On the whole, the future personal laws code should incorporate
benevolent principles in various laws of the present. The
immediate attention of legal activism should be on reforming
the personal laws rather than hurrying for Uniform Civil Code.
If at all Uniform Civil Code is going to be enacted it should not
be on the basis of half-way-house approach of voluntary
Uniform Civil Code.317 This is for the reason that loopholes,
defects and ineffectiveness in social reform legislation not only
make the effort futile, but their failure even on technical ground
will be a source of discouragement and inhibits future efforts.
From the social change perspective, it is to be noted that
Directive Principle are not able to provide equal interest to all
the goal values enshrined in Part IV. Further, when popular
reception and participation are the important factors for making
the reform a success, a well-planned propaganda for educating
the public is an imperative need. Then only would it be possible
to attain social changes of desired magnitude, direction and
pace.
It is obvious from the discussions so far that inspite of the
best efforts of the Muslim members, the majority of the
317
disposition Prof. Stone observes, "Freedom of testation which favoured family

stability when rules intestacy have been made adequate. the discretion give by the
Act to make provision for certain members of the family despite the will, might
seen topromote, by restricting testation the same interests as had formerly to be
promoted by freedom of testation itself."
Tulzapurkar J, Quran, sura 2, 226 and V 2285 and v. 237. The idea of
introducing voluntary Uniform Civil Code was mooted in Parliament in 1986.
members of the Constituent Assembly, was unwilling to provide

a constitutional protection to the personal laws of different
communities for all time to come. Instead they introduced
article
44
which
envisages
uniform
civil
code.
The
Constitution, however, adopts the policy of continuity and

changes under article 372 as far as personal laws are
concerned.
As regards the conformity of personal laws with part III of
the Constitution, the judicial attitude shows that this part does
not touch upon the personal laws. The right to freedom of
religion guaranteed under article 25 of the Constitution has
been so interpreted by the courts that it provides little
protection to personal laws. But so far as the question of
recognition of personal laws is concerned, the Constitution does
acknowledge the existence of such laws under Entry 5, List III of
Seventh Schedule, together with article 372. The directive of
uniformity under article 44 itself is recognition of the exiting
variety of personal laws.
Chapter V
Judicial Response to the Philosophy of
Uniform Civil Code
A. Prelude
In democratic countries, the judiciary is given a place of
greater significance because the courts constitute a disputeresolving mechanism. And, in case of written constitution the
judiciary has more specific and special role to play. In the
countries having written constitution, courts are given power of
declaring any law or administrative action which may be
inconsistent with constitution as unconstitutional and hence
void. Like other democratic countries the constitution of India is
also a member of the family of written constitutions. It seeks to
establish a secular polity founded on social justice. But at the
same time it also guarantees to all persons equally freedom of
conscience and the right to profess, practice and propagate
religion and to religion denominations; the right to establish
and maintain religious and charitable institutions, manage
their religious affairs and own property and administer property
according to law. Although their rights are subject to reasonable
restrictions but if they come in the way of the government while
implementing the constitutional mandate contained in Article
144
44 of the Constitution, it is the judiciary who has empowered to

decide the dispute between the two. Though it is quite implicit
from the spirit of Article 44 that the State 318 is under
constitutional obligation to make earnest efforts towards the
establishment of one civil code for all persons yet if these
provisions come in direct conflict with related provisions in Part
III, then the judiciary has been given regulatory power under
Indian Constitution. The courts have not only regulatory power
but it has very wide powers to expound the provisions of the
Constitution and bring into practice the basic philosophy of the
Constitution and bring into practice the basic philosophy
underlying the provision.
The controversy between right to religion and provision
regarding Uniform Civil Code surfaces in the early days of the
working of the constitution. How judiciary has worked as a
balancing wheel to preserve the rights and promote the idea of
Uniform Civil Code is the subject matter of discussion here. The
emphasis is to examine the extent to which the judiciary has
been successful in promoting the spirit of uniform civil code as
intended to by the wise founding fathers of the Constitution.
B. Judicial Response to Polygamy

The first case which came to court regarding the conflict
between right to freedom of religion and directive towards one
318
Article 12 (Part III). Article 36 says that State in Part IV has the same meaning
as in Part III.
civil code was the State of Bomaby v.Narasu Appa Mali.319 In this
case the Bombay Prevention of Hindu Bigamous Marriages Act,
1946 was challenged and was held intra vires the Constitution.
The Act has imposed serve penalties on a Hindu for contracting
a bigamous marriage. In this case the validity of the abolition of
polygamy in particular communities only was challenged.
Former Chief Justice M.C. Chagla of the Bombay High Court
had observed:320
"One community might be prepared
to accept and work
social reform; another may not yet be prepared for it, and
Article 14 does not lay down that any legislation that the
State may embark upon must necessarily by of an all
embracing character. The State may right decide to bring
about social reform by stages and the stages may be
territorial or they may be community wise. From these
considerations it follow that there is a discrimination
against the Hindu in the applicability of the Hindu
Bigamous Marriage Act, the discrimination is not based
only upon ground of bigamous marriages is not uniform,
the difference and distinction is not arbitrary or capricious,
but is based upon reasonable grounds."
319
320
AIR 1952 Bom. 84

State of Bomaby v.Narasu Appa Mali ,AIR 1952 Bom. 86
146
He further observed;321 "It is impressed upon us that our

Constitution sets up a secular State, the Article 44 contains a
directive to the State to secular for the citizens a Uniform Civil
code throughout the territory of India, and still the State of
Bombay by this legislation has discriminated between Hindu
and Muslims only on the grounds of religion and has set up a
separate code of social reform for Hindu different from the
applicable to the Muslims. "While deciding the case Chagla C.J.,
relied
heavily
on
Davis v. Beason.322
In
this
case
the
constitutionality of an Idaho Statute of 1882, which outlawed

bigamy was challenged. It was contended that the impugned Act
infringed the religious freedom of the members of the Mormon
Church and violated the First Amendment of the U.S.
Constitution which provided the Congress shall not make any
law respecting the establishment of religion or forbidding the
free exercise thereof. The members of this church used to
practice polygamy as a part of their religious creed. Mr. Justice
Field, who delivered the opinion of the Supreme Court; however,
rejected the contention and observed: "However free the exercise
of religion may be, it may be subordinate to the criminal laws of
the country passed with reference to actions regarded by
general
consent
as
properly
the
subjects
of
punitive
legislation."323 Justice Gajendragadkar delivered his separate

321
322
323
State of Bomaby v.Narasu Appa Mali ,AIR 1952 Bom. 86.

(1989) 133 US 637.
Davis v. Beason, (1989) 133 US 640
147
judgment in this case, but in principle he agreed with C.J.

Chagla.
Justice Gajendragadkar opined that the classification
made between Hindu and Muslim for the purpose of legislation
was reasonable and did not violate the equality provisions the
Constitution contained in Article 14. He observed that the
validity of the Bombay Prevention of Hindu Bigamous Marriage
Act, XXV of 1946 has been challenged principally on two
grounds. It is first contended that the personal laws applicable
to Hindu and Mohammedans in the Union of India are subject
to the provisions contained in part III of the Constitution of
India and as such they would be void to the extent to which
their provisions are inconsistent with the fundamental rights
guaranteed by Part III. It is then argued that in so far as both
these personal law allow polygamy but not polyandry, they
discriminate against women only on the ground of sex. If that is
so, the provisions
of the personal law permitting polygamy
offended against the provisions contained in Article 15(1) and

as such are void to the extent under Article 13(1). In other
words, after the commencement of the Constitution bigamous
marriage amongst the Hindus as well as the Mohammedans
became void and the Hindus as well as the Mohammedans who
entered into such bigamous marriages became liable to be
punished under Section 494, Penal Code; and yet, the
impugned Act specially provides for the punishment of the
148
Hindus alone; that is how it discriminates against the Hindu

solely on the ground of religion.324
He further observed as follows :
"Article 44 of the Constitution is, in my opinion very
important in dealing with this question. This article says
that the State shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India. In other
words, this article by necessary implication recognizes the
existence of different codes applicable to the Hindus and
Mohammedans in matters of personal law and permits
their continuance until the State succeeds in its endeavour
to secure for all the citizens a uniform civil code. The
personal law prevailing in this country owe their origin to
scriptural texts. In several respects their provisions are
mixed up with and are based on consideration of religion
and culture; so that the task of evolving a uniform Civil
Code applicable to the different communities of this country
is not very easy. The farmers of the constitution were fully
conscious of these difficulties and so they deliberately
refrained from interfering with the provisions of the
personal laws at this stage and laid down a directive
principle that the endeavour must hereafter be a secure a
uniform civil code through the territory of India. It is not
324
State of Bomaby v.Narasu Appa Mali; AIR 1952 Bom. 84
149
difficult to imagine that some of the members of the

Constituent Assembly may have felt impatient to achieve
this ideal immediately; but as Article -44
shows this
impatience was tempered by considerations of
physical
difficulties in the way. That is why the Constitution

contents itself with laying down the directive principle in
this Article"325
Though examination of The State of Bombay v. Narasu
Appa Mali's326 case reveals that the High Court favoured the
introduction of the Uniform Civil Code and favoured
the
Introduction of the Uniform Civil Code and rightly held that the
institution of polygamy was not based on necessity. If there was
no son out of first marriage then instead of taking recourse to
second marriage the proper course was adoption of a son. As for
the contention regarding discrimination between Hindus and
Muslims, the court very clearly observed that the classification
was reasonable and did not violated Article 14 of the
Constitution.327 The court did not only uphold the validity of the
legislation but emphasized that the said legislation must be
enforced in its true sprit as an essential step to secure for the
citizens a Uniform Civil Code throughout the territory of
India.328
325
326
327
328
State of Bomaby v.Narasu Appa Mali, AIR 1952 Bom. pp. 91-92
AIR 1952 Bom. 84
State of Bomaby v.Narasu Appa Mali, AIR 1952 Bom. 87
State of Bomaby v.Narasu Appa Mali, AIR 1952 Bom.. 95
150
In 1952, the Madras High Court had to face the similar

problem when the Madras Hindu (Bigamy and Divorce) Act,
1949, was challenged in Srinvasa Aiyar v. Sarawathi Ammal,329
In this case Section 4 of the said Act was challenged which
provide:330 "Notwithstanding any rule of law, custom or usage to
the contrary, any marriage solemnized after the commencement
of this Act between a man and a woman either of whom has a
spouse living at the time of such solemnization shall be void."
Apart from this provision other grounds regarding the
constitutional validity of the Act were the same as in the case
decided by the Bombay High Court.331 While rejecting all the
arguments put before the court the Madras High Court through
Satyanarayan Rao and Rajgopalan JJ. Pointed out that the
abolition of polygamy did not interfere with religion because if a
man did not have a natural born son, he could adopt one. 332
Relying on the judgment of U.S. Supreme Court 333
if further
observed that whilst religious belief was protected by the

constitution,
religious
practices
were
subject
to
State
regulations. The court was the view that State was empowered
to regulate religious practices through appropriate legislation
whenever it was in the interest of social welfare and aimed at
the reforms intended to by the wise founding-fathers of the
329
330
331
332
333
AIR 1952 Mad. 193

Madras Hindu (Bigamy and Divorce) Act, 1949
AIR 1952 Bom. 84
Srinvasa Aiyar v. Sarawathi Ammal, AIR 1952 Mad. 194
Reynolds v. US (1870) 98 US 145
151
Constitution. Keeping
in
view constitutional philosophy of
Uniform Civil Code the Court upheld the Madras Hindu (Bigamy
and Divorce) Act, 1949 and declared it Constitutional.334
The Allahabad High Court came across the same issue in
Ram Prasad v. State of U.P.,335 In the case rule 27 of The Uttar
Pradesh Government Servant Conduct Rules, 1946 which
provided that "no government servant who has a wife shall
contact another marriage without first obtaining the permission
of the Government, notwithstanding that such subsequent
marriage is permissible under the personal law for the time
being applicable to him" was challenged. Section 5 (1) of Hindu
Marriage Act, 1955 was also challenged on the ground that the
provisions contained in this section were violative to Article 25
of the Constitution and hence unconstitutional. The petitioner
wanted to re-marry for the sake of a son. The petitioner
supported his case by citing the essential parts of the Hindu
religious books which permitted to marry a second wife, in the
presence of the first, if his first wife was incapable of bearing a
male child. Justice Mehrotra rejected the contention of the
petitioner and upheld the validity of Section 5(1) of Hindu
Marriage Act, 1955 and Rule 27 of Uttar Pradesh Government
Service Conduct Rules 1946. He held 336 "Hindu religion
permitted a second marriage in certain circumstances but it
334
335
336
The Spirit of Article 44.

AIR 1957 All 411
Ram Prasad v. State of U.P., AIR 1957 All pp. 414-15.
152
cannot be regarded as an integral part of Hindu Religion. The

presence of a son may be essential to achieve religious salvation
but that does not necessarily mean that in the presence of a
wife who has a living female child and there being right to
adopt, second marriage is so obligatory as to from a part of the
Hindu religion."
Another case which came to Allahabad High Court was
related to Muslim Personal Law. In the case337 a very important
issue was raised before the court. The petitioner in this case
prayed before the court to pass a decree for the restitution of
conjugal rights against his first wife. His main contention was
that Muslim Personal Law allows second marriage even while
first marriage subsists. He contended that he was, therefore,
entitled to the consortium of the respondent under his Muslim
personal law. The Court through Dhavan J. refused to grant a
decree of restitution of conjugal rights, and observed338 :
"Muslim law as enforced in India has considered polygamy
as an institution to be tolerated but not encouraged, and has
not conferred upon the husband any fundamental right
to
compel the first wife to share his consortium with another

woman in all circumstances. A Muslim husband has the legal
right to take a second wife even while the first marriage
subsists, but if he does so and then seeks the assistance of the
337
338

153
Civil Court to compel the first wife to live with him against her
wishes, in that case the circumstances in which his second
marriage took place are relevant and material in deciding
whether his conduct in taking a second wife was in itself an act
of cruelty to the first."
Coming one step ahead the learned Justice observed339:
"the onus today would be on the husband who takes a
second life to explain his action and prove that his taking a
second wife involved no insult or cruelty to the first ..
Under modern condition it would be inequitable for the
court to compel her against her wishes to live with such a
husband. There are no divergent forms of cruelty such as
Muslim cruelty, Hindu cruelty, Hindu cruelty or Christian
cruelty but the concept of cruelty is based on universal and
humanitarian standards."
In Shahulameedu v. Subaida Beevi,340 Krishna Iyer, J.
while upholding the rights of a Muslim wife to cohabit with her
husband who had taken a second wife yet held her entitled to
claim maintenance under section 488 of the (old) Criminal
Procedure Code. He said that the view that the Muslim
husband enjoyed an arbitrary, unilateral power to inflict divorce
did not accord with Islamic injunctions. He went on to plead for
monogamy among the Muslims. He referred
339
340

(1970) KLT 4
to the Muslim
154
scholarly opinion to show that the Koran enjoyed
monogamy
upon Muslims and departure thereform was only as exception.

That is why a number of Muslim countries 341 have prohibited
polygamy. He further observed that a keen perception of the
new frontiers of Indian law hinted at Article 44 of the
Constitution was now necessary on the part of Parliament and
the Judicature.
In B. Chandra Manil Kyamma v. B. Sudershan,342 the
Andhra Pradesh High Court had to decide a very unique case.
In this case a Hindu husband who had a Hindu wife contracted
second marriage during the first marriage. This marriage was
objected by the first wife. Thereafter to escape from the
objection of the first wife, they converted to Islam and then
remarried according
to Islamic customs. The court held that
this second marriage is void from its inception and conversion

to another religion cannot make it a valid one. The court
emphasized that strictly speaking both Hindu and Muslim
tenets were against the second marriage during the life time of
the first wife and therefore, this marriage is void.
Thus, the court in this case again stressed that second
marriage may strictly be prohibited during the subsistence of
first marriage. The court tried to give practical shape to the
basic tenets of Hindu and Muslim religion which has prohibited
341
342
Like Syria Tunisia, Morocco, Pakistan, Iran and Islamic Republic of the
erstwhile Soviet Union.
(1989) A.P. I HLR 183; (1989) 1 DMC 109
155
second marriage. In this way the judiciary was always in favour

of monogamy which is our cultural heritage.
C. Judicial Response to Property and Succession

In Smt. Gurdial Kuar v. Mangal Singh,343 the custom
against Jats in Patiala district and the Hindu Succession Act,
1956 were challenged
before the Punjab and Harayana high
Court. The facts of the case were that one Sandhu an

unmarried young man died on May 5, 1956 leaving behind
some land. Mangal Singh who was respondent in this case, a
distant collateral of the deceased took possession of the land.
Smt. Gurdial Kaur appellant, the widowed mother of the
deceased filed a suit on March 3, 1958 for possession of the
land left by her son as his sole heir. In order to exclude herself
from the prevailing custom and to take the benefit of Hindu
Succession Act of 1956, she contended that Sandhu had died in
June 1956. The court relying on the decision of the lower court
regarding the date of death of Sandhu refused to accept the
contention of Smt. Gurdial Kaur and affirmed the date of death
May 5, 1956. The judgement in this case was delivered by C.J.
Mehar Singh and Justice R.S. Narula. After hearing the
arguments from both the sides they observed:344
"The custom against Jats of Punjab prevailing prior to
enactment of Hindu Succession Act under which a mother
343
344
AIR 1968 Punj 396

Smt. Gurdial Kuar v. Mangal Singh, AIR 1968 Punj. pp. 398-99.
156
was disinherited on her remarriage was a valid custom. It

did not discriminate against Jats merely on the grounds of
castes or race as compared to other Hindu governed by
their personal law. Nor did the fact that it disinherited a
mother alone on remarriage and not the father who
continued to be an heir of estate of his pre-deceased son in
spite of remarrying render it as discriminatory merely on
the grounds of sex. This is so because right of succession
varying between heirs belonging to different sexes had to
be determined according to the personal law or the usages
by which a party is governed. Thus the prevailing customs
is not volatile of Article 15 of the Constitution."
The court going one step ahead held345 "if the argument of
discrimination based on caste, creed or race could be valid, it
would be impossible to have different personal laws in this
country relating to all matters and covering all cases, creeds
or communities to be constitutional."
In another case which came before Allahabad High Court
in Mohammad Abu Zafar Mohammad Ibrahim v. Israr Ahmad
and others,346 the main issue was that whether a person who is
a bhumidhar under the U.P. Zamindari Abolition and land
Reform Act, 1951 can make a valid Waqf of his bhumidhar
rights in the land. There was difference of opinion between S.N.
345
346
Smt. Gurdial Kuar v. Mangal Singh, AIR 1968 Punj. pp. 398-99. .
AIR 1917 All. 366.
157
Diwedi, J and Hari Swarup, J. on the issue and, therefore, this

case went in second appeal before Justice S.N. Singh. It was
argued in this case that the Waqf has been created in favour of
mosque first to save land from provisions of Zamindari Abolition
Act and it continued a fraud. Thus this transaction, therefore,
may be dealt with under the relevant provisions of Transfer of
Property Act in the light of Article 44 of the Indian Constitution.
In the course of arguments the plaintiff respondent contended
that Waqf not being a transfer inter vivos, is not governed by the
Transfer of Property Act and is governed by the tents of Muslim
Law. It was further argued that Waqf can be created according
to provisions of Mohammedan Law because Muslim Law made
applicable
in
India
before
the
commencement
of
the
Constitution of India by virtue of the Muslim Personal Law

(Shariat) Application Act, 1937. It was also contended that the
nations of Hindu law should not be imported in interpreting the
provisions of U.P. Zamindari abolition and Land Reform Act.
Section 152 of the Act under discussion also authorities
bhumidar to transfer the interests in the land but subject to the
provisions and conditions contained in the Act. The Learned
Judge after going through the judgment of his colleagues and
hearing
the
arguments
as
submitted
before
the
court
observed :347
347
Mohammad Abu Zafar Mohammad Ibrahim v. Israr Ahmad and others , AIR
1917 All. pp. 368-69.
158
"There is no prohibition in the entire U.P. Zamindari

Abolition and Land Reform Act from making a gift of one's
bhumidhari right in favour of almighty. In the absence of
any prohibition in the At in the view of the clear provisions
of Section 152 there does not appear to be any bear to be a
bhumidhar creating a Waqf of his bhumidhari rights in the
land."
Commenting upon the relevance of Article 44 of the
Constitution he further opined.
"What this provision (Article 44) has to do with the
interpretation U.P. Zamindari Land Reforms Act. This
provisions simply stats as how law will be made. Our
Constitution guarantees religious freedom to all the citizens
of India under Article 25. Every citizen is free to follow his
own religion and if in accordance with then tenets of a
religion a citizen proposes to transfer his agricultural or
non-agricultural property for purposes which are religious,
there is no bar to do so under the provisions of the
Constitution."
The outcome of this judicial verdict is that while
interpreting the provisions of Zamindari and Land Reform Laws,
one has not to be carried away by the notions of personal law
but allow the Transfer of Property in favour of mosque in the
shape of Waqf keeping in view the religious purpose of transfer
159
of land. It may however be pointed out this present case that

the court had failed to bring the case under the spirit of Article
44. The reason for this failure was that there was no provision
in U.P. Zamindari Abolition and Land Reform Act, 1951 which
could help the court to invalidate the transfer of Agricultural
land for religious purposes.
In 1972 a very complicated issue was raised before the
Kerala High Court in Makku Rawther's Chidren: Assan Rawther
and other v. Manahapara Charayil,348regarding Muslim Personal
Law and Article 44 of the Constitution. The main issue which
came up for discussion was regarding the hiba or gift under
Mohammedan Law. Under the Muslim law gift can be made by
an oral agreements between the parties and the same are
exempted for the registration under the Indian Registration Act,
1908. In this case an oral gift was made and the same was
challenged on the ground that Section 129 of the transfer of
Property which exclude the operation of Registration Act in case
of Hiba is violation of Articles, and 15 of the Constitution and,
therefore, it may be declared void under Article 13 of the
Constitution. Justice V.R. Krishna Iyer after gathering the
basics of different personal laws as prevalent in India and the
philosophy behind the concept of gift and thereby making a law
348
AIR 1972, Ker. 27
160
regarding registrations of gifts delivered a dynamic judgement

and observed:
349
"Whatever might have been the content of the gift in Section

129 of Transfer of property Act, when it was originally
enacted, its meaning has to be gathered today in the
Constitutional perspective of Article 14, 15, 25, and 44. The
application of Muslim Personal Law to gifts does not
preclude the application of other law which do not run
counter to the rules of Muslim Law. A Muslim gift may be
valid even without a registered deed and may be invalid
even with registered deed. The important thing is that the
old laws must be tuned up to the new law of the
Constitution and the spirit it of the times".
In other words, the judgment clearly mentioned that the
provisions of the personal laws must run in the accordance with
the provisions of the Constitution. It is the function of the
judiciary to construe the words in the personal laws with the
passage of time which is the need of the hour in the light of
constitutional mandate. Thus all kinds of gifts whether it
belongs to Hindu or Muslims must comply with the section
17(1), section 49 of the Registration Act, and Section 123 of the
Transfer of Property Act. The only exception to this general rule
according to this judicial pronouncement is that non-secular
349
Makku Rawther's Chidren: Assan Rawther and other v. Manahapara Charayil,

AIR 1972, Ker. 33.
161
gifts can be exempted from registration. In this way through this

decision the court emphasized that personal laws in respect of
gifts must be read in the light of Article 44 of the Constitution.
In R.M.K. Singh v. State of Bihar,
350
a writ application was
filed by the petitioner under Articles 226 and 227 of the

Constitution, claiming himself to be the convener of the
"Protection Board for Ancient and Sacred Hills Ram Shilla,
Pretshilla,and Brahmyoni and Barabar of Gaya (Bihar)" for
quashing a notification of the State of Bihar, dated June 8,
1974, imposing certain restriction on the grant of quarrying
permit to the lessess. The petitioner based his claim under the
provisions of Article 25 and 26 of the Constitution as, according
to him, quarrying operations on any part of the hill amounted
to an infringement of protection guaranteed to the Hindu public
of freedom of conscience and the right freely to profess, practice
and propagate their religion. There was a difference of opinion
on the issue between Nagendra Pradad Singh and Sarwar Ali
JJ. The judgment was delivered by third judge H.L. Agrawal J.
and held that the petitioner was entitled to the reliefs claimed
and the notification are vitiated in law and must be quashed
and
cancelled
and
the
respondents
be
restrained
from
quarrying or conduct any mining operation themselves or

through their agents on any part of Ram Shilla Hill.
350
AIR 1976 Pat. 198
162
In D. Chelliah Nadar v. G. Lalita Bai, the Madras High

Court came across the very controversial issue that whether the
Indian Christian regarding intestate succession would be
governed by the Christian Succession Act, Regulation II of 1092
(Travancore) or Indian Succession Act, 1925. The brief facts of
the case were that while the Indian Succession Act, 1865 was
enforced in British India, the Travancore Regulation II of 1092,
corresponding to 1916 was passed. The main object of this Act
was consolidate and amend the rules of law applicable to
intestate succession among the Indian Succession Act was
passed in the year 1925. The Act was passed with a purpose to
consolidate the law applicable to intestate and testamentary
succession. The main issue in the case before the High Court
was that whether with the coming into force of the Indian
Succession Act, 1925, the Indian Christina will be governed by
the Act of 1925 of Travancore Regulation II of 1092. The plaintiff
submitted before the trail court that he may be governed by the
State Law. But the trial court rejected the plea and held that
State law is no more in existence and stands repealed by the
Indian Succession Act of 1925. The reading of the Act makes it
crystal clear that the State Government under Section 3 of the
Act, by an official notification in the official gazettee can exempt
the operation of the said act. The reason being that subjectmatter lies in the act. The reason being that the subject-matter
lies in the concurrent list. Chief Justice Kailasam, while
163
delivering the judgment for the court held: 351 In the case before
us both the laws relate to intestate succession. Though the
Travancore Regulation is confined to Christians in that State
but the filed of the legislation succession. Though the
Travancore Regulation is confined to Christians in that State
but the field of the legislation is the same. The Indian
Succession Act has a universal application to the extent
provided for under the Act. In the light of Section 29(2) of the
Indian Succession Act neither the Travancore Regulation was
repealed nor its applications was made inapplicable to Indian
Christians in case of intestate succession. Thus taking into
account all the facts of the case of Travancore Regulation is a
law corresponding to the Indian Succession Act and therefore,
the plaintiff would be governed by the Travancore Regulation II
of 1092.
Thus in this case the judiciary tried to give full operation
to the law which was in existence and avoided the conflict
between the two which may not be helpful in the opinion of the
court towards achieving the purpose of one common law
governing matters regarding succession to the property of a
deceased person.
D. Judicial Response to Divorce and Maintenance
351
D. Chelliah Nadar v. G. Lalita Bai, p. 70
164
In A. Yousuf v. Sowramma,352 a case on the Muslim law of

divorce, Justice Krishna Iyer made a critical examination of the
traditional law on the subject. In this case a wife who had
deserted her husband without cause was not maintained by her
husband for a period of two years and the learned Judge held
that held that under Section 2(1) of the Dissolution of Muslim
Marriage Act, 1939 the wife was entitled to sue for dissolution
of her marriage on the score that she was not as a fact
maintained by her husband for two years even if there was a
good cause for husband's failure to maintain her. He held that
husband was not bound to maintain a wife who refused herself
to him, or was otherwise disobedient, unless the refusal or
disobedience was justified by non-payment of prompt dower, or
she left the husband's house on account of cruelty. If a wife who
deserted her husband without a good cause had no right to be
maintained by her husband, the plea of non-maintenance as a
ground for dissolution of marriage under Section 2 of the
Dissolution of Muslim Marriage Act, 1939 was not available to
her. To hold that a wife was entitled to sue for dissolution for
her marriage for non-maintenance under the provision of statue
when she had no right to be maintained by her husband under
Muslim law was not the same thing as holding that the wife was
entitled to obtain divorce as of right and without showing any
cause under the tradition Muslim law. The adjudication of wife's
352
AIR 1971 Ker 261
165
claim for Khula as of right under Muslim law, and, therefore,

under Section 2(ix) of the Dissolution of Muslim Marriage Act,
1939,
far
from
appropriately
being
supererogatory
was
directly
and
called for in this case. The learned judge did
maintain that the statement that the wife could buy a divorce
only with the consent of or as delegated by the commentaries
on Koranic Texts and Hadith dealing with divorce. Thus this
decision may undoubtedly be said a bulwark of liberalism of
Muslim wife in the field of marriage.
The next case on the judicial divorce came up for hearing
before the Hon'ble High Court of Kerala in Aboobaker Haji v.
Mamu Koyaa.353 The facts of the case were that a young woman
who, allegedly under instigation from an orthodox father, asked
for divorce from a heterodox husband on the ground that here
life with her husband for reasons of neglect and cruelty had
become insufferable and therefore she did not want to cohabit
with her husband. Krishna Iyer. J. not only decided that a
judicial divorce may be granted in India, under Section 2(ii) of
Dissolution of Muslim Marriage Act, on the grounds that a
husband has neglected or failed to provide maintenance for his
wife even in circumstances in which he is under no legal duty to
support her which seems to me, with respect, an wholly
unjustifiable interpretation of the statue but also that a wife is
entitled to divorce, unjustifiable interpretation of the statue
353
1971 K.L.T. 663
166
but also that a wife is entitled to divorce, under Section 2 (ix) of

the Act (i.e. "on any ground which is recognized as valid for the
dissolution of marriage under Muslim Law") if her marriage has
broken down. However, the neglected and cruelty not having
been proved the case was remanded to the court below to find
out, as a last resort, whether there was a total breakdown of the
marriage.
In Bhagwan Dutt v. Smt. Kamal Devi,354 an issue was
raised before three beach Judge of the Supreme Court regarding
the scope of Section 448 of Criminal Procedure Code 1898 and
Section 23 of Hindu Adoptions and Maintenance Act, 1956
section 23 of the Section 488 provides for the maintenance
which a wife can claim from her husband. In this case the main
issue for consideration was that whether the earnings and
income of wife should be taken into consideration while
deciding a case in favour of wife who wants maintenance from
her husband. There was a difference of opinion on the issue
between the District court and the High Court and resultantly
the case came to the Supreme Court by way of Special leave
Petition. While delivering the judgment on behalf of other two
judges Sarkaria J. observed:355
"Section 488 is intended to
serve a social purpose and to prevent vagrancy and destitution

and to find out as to what is required by the wife to maintain a
354
355
AIR 1975 SC 83
Bhagwan Dutt v. Smt. Kamal Devi, AIR 1975 SC 86
167
standard of living which is neither luxurious nor penurious, but

is modestly consistent with the status of the family. The needs
and requirements of the wife for such moderate living can be
fairly determined, only if her separate income, also is taken into
account together with the earnings of husband and his
commitments." Commenting on the relationship
between
Section 488 and Section 23 he further observe that the former

provides a machinery for the summary enforcement of the
moral obligation of a man towards his wife and children so that
they may not out of sheer destitution became a hazard to the
well-being of orderly society. As against this the latter provision,
provides for the fixation of rate of maintenance allowances, for
the enforcement the rights of Hindu wives of dependents under
their personal law. Thus the scope of two laws in different.
Section 488 is applicable to all persons belonging to all religious
and has no relationship with the personal laws of the parties. 356
In this case the Supreme Court has tried to narrow the gap
between the general provision of law regarding maintenance and
the provision under the personal law of the Hindus. Thus
through this decision the Supreme Court by ignoring the
personal law stressed that stressed that provisions under
Criminal procedure Coder should be made applicable to all
persons irrespective of their religion.
356
Bhagwan Dutt v. Smt. Kamal Devi, AIR 1975 SC 87.
168
In Bai Tahira v. Ali Fissalli,357 an issue was raised before

the Supreme Court that whether the compromise deed executed
by the husband and the wife can exclude the operation of
Section 125 of Criminal Procedure Code of 1973. The facts of
the case were that Bai Tahira had been divorced in 1962 and
thereafter the defendant married to a second wife. In the
compromise deed flat and Rs. 5,000 had been adjusted as a
mehr money and iddat money. It was also mentioned in the
deed that she had no further claim against her husband. But in
1973, the Criminal Procedure Code was amended. Thereafter,
Bai Tahira filed an application for maintenance under Section
125 in the trial court. Ultimately this case went to the Supreme
Court in appeal against the decision of Bombay High Court.
Justice Krishna Iyer delivered the judgement on behalf of
Tulzapurkr, J. and R.S. Pathak, J. and upheld Bai Tahira's right
to ask for maintenance despite the compromise. He opined:358
"A new statutory right was created as a projection of public
policy by the code of 1973, which could not have been in
the contemplation of the parties in 1962. No settlement of
claims which does not have the special statutory right of
the divorce under Section 125 can operate to negate the
claim."
Justice Iyer then continued :
357
358
AIR 1980 SC 362

Bai Tahira v. Ali Fissalli, AIR 1980 SC 365
169
"No can, under Section 127, rescue the respondent from his
obligation. Payment of mehr money as a customary
discharge is within the cognizance of that provision. But
what was the amount of mehr? Rs. 5000 interest from
which could not keep the woman's body and soul together
for a day .. unless she was prepared to sell her body
and give up soul! The point must be clearly understood that
the scheme of the complex of provisions in Chapter IX has a
social purpose. III-used wives and desperate divorcees
shall not be driven to material and moral dereliction to seek
sanctuary in the street. Where the husband, by adequately
provided for the divorce a subsequent series of doles is
contraindicated. This is the theological interpretation, the
sociological
decoding of text of the Section 127. The
Keynote thought is adequacy of payment which will take

reasonable care of her maintenance."
The learned Judge said :
"The payment of illusory amounts by way of customary or
personal law requirement will be considered in the
reduction of maintenance rate but cannot annihilate that
rate unless it is reasonable substitute. The legal sanctity of
the payment is certified by the fulfillment of the social
obligation, no by a ritual exercise rooted in custom. No
construction which leads to frustration of the statutory
170
project can secure validation if the court is to pay true

homage to constitution."359
He added further:
"The whole scheme of Section 173(3)(b)
is manifestly to
recognize the substitute maintenance arrangement by

lump-sum payment organized by the custom of the
community or the personal law of the parties the
proposition therefore is that no husband can claim under
Section 127 (3) (b) absolute from his obligation under
Section 125 towards a divorced wife except on proof of
payment of a sum stipulated by customary or personal law
whose quantum is more or less sufficient to do duty for
maintenance allowance."
360
The court came to the conclusion that the purpose of

payment of any kind of maintenance under any customary or
personal law must be to obviate destitution of the divorcee and
to provide her with wherewithal to maintain herself. There must
be rational relation between the sum so paid and its potential
as provisions for maintenance and to interpret it otherwise is to
defeat the basic objective of maintenance allowance. Thus
neither the compromise deed nor the lump sum payment made
by the husband can not release him liability for maintenance of
his wife until she has not remarried. Thus the court stressed
359
360
Bai Tahira v. Ali Fissalli, AIR 1980 SC pp. 365-66.

Bai Tahira v. Ali Fissalli, AIR 1980 SC 366
171
emphatically that the provision contained in Chapter IX of

Criminal Procedure Code read with Part IV of the Indian
Constitution and Article 15 (3) which provides for transforming
the values with the changing time should be given universal
application in India.
In Fuzlunbi v. Khader Vali,361 an issue of maintenance
under Criminal Procedure Code and payment of mehr money
and iddat allowance was again raised before the Supreme
Court. The facts which led to this appeal were that Fuzlunbi
was married to Khader Vali in 1966. Thereafter she was illtreated by her husband and ultimately she went to her parent's
abode along with child. Then she filed a petition before the
magistrate
under
Section
125
Cr.
P.C.
and
prayed
for
maintenance for herself and her son. The Magistrate granted

monthly maintenance allowance. Thereafter the husband went
to the High Court but the decision of Magistrate was upheld. To
save himself from the liability the husband restored to the
unilateral technique to talaq and tendered the sum of Rs. 500/by way of mehr and Rs. 750 towards
maintenance for the
period of Iddat. Thus on the request of respondent the

Magistrate cancelled the orders of maintenance on the ground
of divorce and payment of mehr and iddat. The appellant filed a
revision petition in the High Court but was of no use and
ultimately this case went up the Supreme Court. Justice
361
AIR 1980 SC 1730
172
Krishna Iyer while delivering the judgment of the beach for

himself and on behalf of Chinnappa Reddy and A.P. Sen
observed.362
"Whatever the facts of a particular case, the code, by
enacting section 125-127, charges the court with humane
obligation of enforcing maintenance or its just equivalent to
ill-used wives and cast away ex-wives, only if the woman
has received voluntarily a sum at the time of divorce
sufficient to keep her going according to the circumstances
of the parties."
He further observed:363
"Neither personal law nor other salvationary plea will hold
against the policy of public law pervading Section 127 (3)
(b) as much as it does Section 125. So a fathering is no
substitute for a fortune nor naive consent equivalent to
intelligent acceptance. The amount earlier awarded is the
minimum.
The Supreme Court concluded that there is no conflict
between the provisions regarding mehar and iddat of Muslim
law and provisions under Cr.P.C. regarding maintenance. The
Muslim husband is under obligation to maintain his wife even
after divorce is she is unable to maintain herself and, therefore,
362
363
Fuzlunbi v. Khader Vali , AIR 1980 SC 1736

Fuzlunbi v. Khader Vali , AIR 1980 SC pp 1736-37
173
the criminal law provisions have overriding effect over the

personal law of any religious community.
In the case Mst. Zohra Khatoon v. Mohd. Ibrahim,364 a
substantial question of laws raised before the Supreme Court.
The
High
Court
of
Allahabad
cancelled
the
orders
of
maintenance allowance passed by the magistrate on the ground

that when the divorce proceeds from the wife side under the
dissolution of Muslim Marriage Act, 1939, then wife cannot
claim maintenance from her husband, neither under the
Muslim law nor Criminal Procedure Code. Thus this was the
issue whether she can claim maintenance under Section 125
and 127 of Criminal Procedure Code or not. Before the court
text books of Muslim law were referred to support the argument
that the appellant is not entitled to maintenance according to
Muslim law. Justice Fazal Ali on behalf of the majority delivered
the judgement and held :365
"The view taken by the High Court is erroneous and is
based on a wrong interpretation of Cl. (1)(b) of the
Explanation to Section 125(1) of the Criminal Procedure
Code . Under Cl. (b) the wife continues to be a wife within
the meaning of the provisions of the code even though she
has been divorced by her husband or has otherwise
obtained a divorce and has not remarried."
364
365
AIR 1981 SC 1243

Mst. Zohra Khatoon v. Mohd. Ibrahim , AIR 1981 SC 1243 .
174
He further observed366 that the High Court therefore,

erred in quashing the order of the Magistrate, the appellant in
the eyes of law continues to be the wife of respondent, despite
the decree of dissolution of marriage and is entitle to
maintenance allowance awarded by the Magistrate.
The Supreme Court by ignoring the orthodox Muslim law
covered the case of appellant under the decision is a good effort
on part of the judiciary towards one civil law.
In 1985 the issue regarding the application of section 125
of Cr.P.C. in case of divorced Muslim woman was again raised
before the Supreme Court in Mohd. Ahmad Khan v. Shah Bano
Begam.367 In this case not only the application of the Section
125 was challenged but as also argued that earlier decision in
this regard were wrongly pronounced by the court and may be
considered by the larger bench of the court. The brief facts of
the case which led to this appeal in the Supreme Court were
that Shah Bano Bengum was married to Mohd. Ahmed Khan in
1932. In 1975, the appellant drove the respondent out the
matrimonial home. Thereafter in 1978, the respondent filed a
petition against the appellant under section 125 of the Cr. P.C.
before the judicial magistrate, Indore, for the maintenance Rs.
500 per month. But on November 6, 1978 the appellant
divorced the respondent by an irrevocable talaq. Thus the main
366
367
Mst. Zohra Khatoon v. Mohd. Ibrahim , AIR 1981 SC 1251

AIR 1985 SC 945
175
defence of the appellant was that after divorce she has ceased to
be his wife and, therefore, he was under no obligation to provide
maintenance for her. He further contended that he had been
paying maintenance of Rs. 200 per month for the last two years
and had deposited a sum of Rs. 3000 in the court by way of
dower for the period of iddat. But the trial court decreed the
suit in favour of respondent and directed the appellant to pay a
princely sum of Rs. 25 per month to the respondent. In July
1980, the High Court of Madhya Pradesh enhanced the
maintenance allowance from Rs. 25 to Rs. 179.20 per month in
revision. It is against this decision of the High Court that
present appeal by way of special appeal came before the
Supreme Court for the decision. The main issue before the
Supreme Court was that does the Muslim Personal Law impose
no obligation upon the husband to provide for the maintenance
of his divorced wife? The appellant to support his case that
under Muslim personal law he is not under obligation to provide
maintenance after divorce relied mainly on the text books and
contended that decision in Bai Tahira and Fuzlubi were not
correctly
given
by
this
court,
and
therefore,
may
be
reconsidered by the larger bench along with this case. He cited

the works of well-known authors of the subject in his defence.
Mentioning Mulla's Mohamedan Law "after divorce the wife is
entitled to maintenance during the period of iddat. If an order is
made for the maintenance of a wife under Cr.P.C. and the wife is
176
divorced afterwards, then the other ceases to operate on the

expiration of the period of iddat. Furhter, Tyabji's Mulsim
Laws368 contains that on the expiration of the iddat after talaq,
the wife's right to maintenance ceases, whether based on
Mulsim Law, or on an order under the Criminal Procedure
Code. Furthermore, Dr. Paras Diwan in his book 369 said, "when
a marriage is dissolved by divorce the wife is entitled to
maintenance during the period of iddat and on the expiration of
the period of iddat, the wife is not entitled to any maintenance
under any circumstances. Muslim law does not recognize any
obligation on the part of a man to maintain a wife whom he had
divorced."
Chief Justice Chandrachud delivered the judgment from
himself and on behalf of D.A. Deasi, O. Chinnappa Reddy, E.S.
Venkataramih and Rangnath Misra, JJ. hnd opined:370
"The
statements
in
the
text
books
viz.,
Mulla's
Mohamendan Law; Tyabji's Muslim Law and Dr. Paras

Diwan Modern Mulsim Law are inadequate to establish the
proportion that the Muslim husband is not under an
obligation to provide for the maintenance of his divorced
wife, who is unable to maintain herself. Section 125 deals
with ceases in which, a person who is possessed of
368
369
370
Tyabji's Muslim Law, (4th ed.), para 268-69

Paras Diwan, Mulsim Law in Modern India, (1982) p. 130
Mohd. Ahmad Khan v. Shah Bano Begam, AIR 1985 SC 945
177
sufficient means neglects or refuses to maintain, amongst

others, his wife who is unable to maintain herself. Since
the Muslim Personal Law, which limits the husband's
liability to provide for maintenance of the divorced wife to
the period of iddat, does not contemplate or countenance
the situation envisaged in section 125. it cannot be said
that the Muslim husband, according to his personal law, is
not under an obligation to provide maintenance, beyond the
period of iddat, to his divorce wife who is unable to
maintain herself. The true position is that if the divorced
wife is unable to maintain herself, the husband's liability to
provide maintenance for her ceases with the expiration of
the period of iddat. But if she is unable to maintain herself,
she is entitled to take recourse to section 125 of the
Criminal Procedure Code. Therefore there is no conflict
between section 125 and Muslim Personal Law on he
question of maintenance for a divorced wife who is unable
to maintain herself."
The outcome of this decision is that the Muslim husband
still enjoys the privilege of being able to discard his
wife
whenever he chooses to do so for reasons good, bad or

indifferent. Indeed, for no reason all. But after this decision in
which the appellant was an advocate by profession raised very
controversial issue which was already settled by the apex court
178
of the land, the situation became more clear than it was earlier.
In the present case by five judge bench reaffirmed its earlier
decision and held that there is no conflict between the
provisions of Sections 125 and those of the Muslim Personal
Law on the question of Muslim Husband's obligation to provide
maintenance
for
a divorced wife who is unable to maintain
herself. Thus the overriding operation was given to the general

law of the land by ignoring the texts of the personal law. Thus it
may be said to be welcome step of the judicial activism to
achieve and encourage the goal of one common code intended to
by the makers of our National Charter.
Just after the decision of Shah Bano Begum case the
Supreme Court was asked to render opinion regarding different
grounds under different personal laws. This issue was raised
before the Supreme Court in a famous Ms. Jorden Diengdeh v.
S.S. Chopra.371 The facts of the case was that the wife, who was
the petitioner belonged to Khasi Tribe of Meghalaya, but was
brought up a Christian. The husband who was respondent in
the case, was a Sikh. They were married in 1975 under the
Indian Christina Marriage Act, 1972. The petitioner sought
nullity of marriage on the ground of impotency of the husband.
It was submitted before the court on behalf of the petitioner
that the marriage had virtually broken down irretrievable.
However, the High Court rejected the plea for the nullity of
371
AIR 1985 SC 935
179
marriage and ordered for judicial separation. The appeal was

taken to the Supreme Court.372 After analyzing the various laws
viz., Indian Divorce Act, 1869; Hindu Marriage Act, 1955; Parsi
Marriage and Divorce Act, 1936; Special Marriage act, 1939 and
provisions therein regarding the dissolution of marriage, Justice
Chinnappa Reddy emphasized the need for one common code
relating to judicial separation, divorce and nullity of marriage
and opined:373
"The time has now come for a complete reform of the law of
marriage and to make a uniform law applicable to all
people irrespective of religion or caste. It is necessary to
introduce irretrievable breakdown of marriage and mutual
consent as ground of divorce in all cases."
The court stressed that now it so for the legislature to
taken initiative in this direction and ordered that a copy of the
decision must be supplied to Law Ministry. Because when two
persons cannot remain together then the better way is that they
must be separated by law. But if law is handicapped, then this
situation can make the life of both more miserable. It is thus
quite evident from the judicial trend that the legislatures are
under obligation to make uniform marriage laws in the light of
the spirit contained in Article 44 of the constitution.
372
373
Section 18, 19, and 22 of the Act .

Ms. Jorden Diengdeh v. S.S. Chopra, AIR 1985 SC 935.
180
In 1986 the Supreme Court 374was again asked to certify

the position that after the Part B States Law Act, 1951 the
member of the Indian Christina Community will be governed in
cases of intestate succession either by the Travancore Christian
Succession Act, 1092 or the Indian Succession Act, 1925. The
petitioner contended before the court that provisions of
Travancore Act, are violative of the Art. 14 of the Constitution
and therefore, with the coming into force the Part-B States Act,
her cases is covered under Indian Succession Act. But on the
other hand, it was argued by the respondent that Travancore
Act is corresponding law to the Indian Succession Act and the
case may be covered under former Act and hence petitioner is
not entitled to any share in property. But the court after hearing
the arguments of both side through
Chief Justice Bhagwati
held375 that on coming into force of Part B States (Laws) Act,

1951 the Travancore Christian Succession Act, 1092 stood
repealed, and case is covered under section 6 of the Indian
Succession Act,376 Thus so far as Indian Christians are
concerned, Chapter II and Part V contains rules relating to
intestate succession and fortiori on the extension of the Indian
Succession
Act,
would
be
applicable
equally
to
Indian
Christians in the territories of the former state of Travancore. It

374
375
376
Mary Roy v. State of Kerala, AIR 1986 SC 1011.

Section 6 reads that if immediately before the appointed day i.e. 1st April 1951,
there was in force in any Part B State any law corresponding to any of the Acts or
ordinances extended that State that law shall save as otherwise expressly provided
in Part- B States (Laws) Act, 1951 stand repealed.
181
was further observed377 that it was a legislative devices adopted

for the sake of convenience in order to avoid verbatim
reproduction of the provisions of an earlier statue in a latter
statue. Thus, the Supreme Court particular religion and made
applicable to the law which also applied to other communities in
case of intestate successions of property. This is again welcome
decision of the court and may be helpful to unify the personal
laws.
The issue which was decided by the Supreme Court in
Shah Bano Begum case was again raised before the Court in
Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor.378 In this
case the question that came up for consideration before the
Supreme Court was whether a Muslim wife whose husband has
married again in worse off under law than a Muslim wife whose
husband has taken a mistress to claim maintenance from her
husband is permitted by Muslim Law to take more than one
wife his second marriage cannot afford a legal ground to the
wife to live separately an claim maintenance. But the Supreme
Court reiterated379 that irrespective of the husband's right
under his personal law to take more than one wife, his first wife
would be entitled to claim maintenance and separate residence
if he takes a second wife. The Supreme Court went a step
further in analyzing the provision of Explanations to Sub377
378
379

AIR 1987 SC 1103
Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor , AIR 1987 SC 1107.
182
section (3) of section 125 and held380 that the explanation has to
be construed with reference to the two classes of injury 381
caused to the matrimonial rights of the wife and not with
reference to the husband's right to marry again. Thus the
women chosen by the husband to replace the wife is a legally
married wife or a mistress is immaterial. Therefore, the
respondent's contention that his taking another wife will not
entitle
the
maintenance
appellant
cannot
to
be
claim
separate
sustained.
The
residence
Supreme
and
Court
concluded by saying,382 that the Explanation of sub-section (3)

of section 125 is of uniform application to all wives (3) of section
125 is of uniform application to all wives including Muslim
wives whose husbands have either married another wife of
taken a mistress.
Thus the Supreme Court reaffirmed the decision of Shah
Bano Begum and laid down solid foundation for the uniform
civil code in spite of Muslim women (Protection of Rights on
Divorce) Act, 1986.
The decision of Shah Bano Begum Case attracted the
public interest and there was great criticism of this decision.
Resultantly, the Union Government enacted the Muslim Women
(Protection of Rights on Divorce) Act, 1986. Section 3 of this Act
380
381
382
Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor , AIR 1987 SC 1108
Namely taking of a second wife and by taking of a mistress as contemplated by
the Explanation to the sub-section (3) of section 125.
Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor, AIR 1987 SC 1103
183
was disputed before the Calcutta high Court in Mangila Bibi v.

Noor Hossain,383 the facts of the case which led to this appeal to
the High Court were that the petitioner were that the petitioner
Mangila Bibi was married to Noor Hussain on March 6, 1986.
At the time of marriage or just before marriage they excluded a
Kabinnama. In the Kabinnama the power to give divorce which
primarily belongs to husband, was delegated to his wife in
accordance with the personal law. The petitioner contended that
after marriage she was ill-treated at husband's place and
ultimately driven away. In this situation in guise of delegated
power she dissolved the marriage and communicated about this
to opposite party (her husband). She also informed in writing
about this to the Muslim Marriage Registrar and Kazi within
reasonable time. Thereafter the petitioner filed an application
under section 3 of the Act of 1986 before the competent
Magistrate that the opposite party did not pay an maintenance,
dower and other properties given to her at the time of marriage
as recorded in the Kabinnama. But the magistrate refused to
grant claim on the ground that the exercise or power by the
petitioner was not according to Kabinnama, and, therefore, the
valid marriage still subsist between the two. The High Court,
however, overruled the decision of the lower court and held:384
383
384
AIR 1992 Cal. p. 92.

Mangila Bibi v. Noor Hossain, AIR 1992 Cal. pp. 94-95.
184
"The power to give divorce which primarily belongs to the

husband may be delegated to his wife either absolutely or
conditionally. There is no authority which prohibits the wife
to exercise the power of divorce delegated to her by her
husband In the instant case, even though the Kabinnama
bears the signature of both the spouses, the groom of his
own will bound himself with the condition that his wife
would be in a position to give talaq ex parte and at her will.
Such a stipulation, cannot be regarded as a bilateral
delegation of the power to give talaq. Thus the husband
and unilaterally delegated to the wife a power to divorce
unconditionally and since it is not prohibited even by the
personal law of the parties."
Thus the petitioner may be considered as a divorce wife
and cannot be said that the marriage was subsisting between
the two. In this way the court interpreted Section 3 of the Act in
the light of sub-section 3 of 125 of the Criminal Procedure code
and afforded to give operation to the spirit of Section 125
despite the fact the Muslim Women (Protection of Rights of
Divorce) Act, 1986 had already come into existence. The
thorough examination of present cases makes it quite evident
that judiciary has always made earnest efforts to interpret
Section 125 with an intention cover all situations irrespective of
religions of litigants. The basic objective that has loomed large
185
in the mind of judiciary is to curtail the limit of personal law

with an intention to liberalize it in the interest of community at
large to use it as a balancing wheel of progress and dynamism.
An encouraging trend of the judiciary is further manifest
from the study of a recent case popularly known as P.
Jayalakashimi v. Revichandran.385 In this case the Andhra
Pradesh High Court had to face a peculiar situation. The fact of
the case was that a controversy arose regarding the jurisdiction
of Family Courts and Magistrate under section 125 of Criminal
Procedure Code. During the pendency of the suit for the
restoration of conjugal rights before the Family Court the
petitioner
filed
an
application
under
Section
125
for
maintenance. The defence of the opposite party was that the

matter was sub-judice before the competent authority and,
therefore, the present application under Section 125 was not
maintainable. The court rejected the plea of the respondent and
held:386
"Right to seek maintenance under section 125, Criminal
Procedure Code, is an independent right and the pendency
of the proceedings under the Hindu Marriage Act in Family
Court is no bar for its maintainability outside the
jurisdiction of Family Court is no bar for its maintainability
outside the jurisdiction of Family Court."
385
386
AIR 1992 AP 190

P. Jayalakashimi v. Revichandran , AIR 1992 AP pp. 191-92.
186
The decisions of the present case makes it abundantly

clear that the court has endeavoured to expand the jurisdiction
of Family Courts. The court despite taking into consideration
the fact that Family Courts are established in some parts of
India only under Hindu Marriage Act held that Family Court is
no bar for awarding maintenance outside the jurisdiction of the
Family Court and went to the extent of saying that maintenance
under Section 125 of the Criminal Procedure Code is an
independent right and the pendency of the suit under Hindu
Marriage Act in the Family Court cannot be treated as a bar for
its maintainability outside the jurisdiction of Family Court.
Further, the High Court of Kerala and Orissa in latest
pronouncements387 tired to give harmonious construction to
section 125 of Criminal Procedure code and Section 3 and 5 of
Muslim Women (Protection of Right on Divorce) Act, 1986. In
M. Alavi v. T.V. Safia, it was contended before the High Court
that the wife who was leading adulterous life after divorce was
not entitled to maintenance either under section 125 of the
Criminal Procedure Code or under Section 3 of the Act of 1986.
It was held388 by the court that a divorce Muslim woman can file
an application under section 3 claiming various relief's provided
therein the provisions of the Act do not say that she would not
be entitled to get the relief's if she had been living in adultery. It
387
388
M. Alavi v. T.V. Safia, AIR 1993 Ker. 21, Bishnu Charan Mohanty v. Union of
India, AIR 1993 Orissa 176.
AIR 1993 Ker. 21
187
is not possible to read something into the Act which is not

there. Regarding Section 125(4) the court observed:
389
"Section 125 (4) itself has no application to a woman who

has already been divorced by her husband. The simple
reason is that a divorced women can never be said to be
committing adultery even if she has got promiscuous
sexual relationship with other persons."
Thus, Section 125(4) does not apply to the present case
and the wife is entitled for maintenance under Section 125(3)
and Section 3 of the Act of 1986. The High Court was right in
giving harmonious construction to personal law provision and
the provisions under criminal law which applies to all
communities without any exemption and exception.
In Bishnu Charan Mohanty v. Union of India,390 the
Constitutional
validity
of
Section
of
Muslim
Women
(Protection of Rights on Divorce) Act, 1986 was challenged. The

main ground of attack was that this section provides provision
was violative to Article 14 and 15(1) of the Constitution of India
and hence it may be declared unconstitutional. Chief Justice
B.L. Hansaria pronounced the opinion of the court and
opined:391
389
390
391
M. Alavi v. T.V. Safia, AIR 1993 Ker. 21

AIR 1993 Ort. 176
Bishnu Charan Mohanty v. Union of India, AIR 1993 Ort. 177.
188
"Merely because the basis of classification made by the

legislation is based on religion would not ipso facto make the
legislation offensive of Article 15(1). The same has to be
discriminatory in the sense that it involves an element of
unfavourable basis. This apart, the classifications must have
been made only on the basis of religion which would not be so if
there exist historical, personal or other persons supporting the
classification. Thus, the provision of Section 5 of the Act
permitting Muslim husband of Section 5 of the Act permitting
Muslim husband to opt to be government by Section 135
Criminal Procedure code has no unfavourable bias."
Therefore, Section 5 of the Act is not violative of Article 15
of the Constitution. In this case the High Court against tried to
encourage Muslims that they must accept Section 125 as a
salutary provision for all kinds of maintenance and left the idea
to be governed only by their personal laws.
E. Some Celebrated Decisions

Judiciary happens to be one of the most important organs
in any modern democratic state. It is not only the interpreter of
law but also the guardian of rights of the people. Therefore the
determination of place of personal laws in the eyes of judiciary
becomes inevitable for the purpose of the present work. The
cases which are discussed in this chapter are those in which
either
the
constitutionality
of
some
personal
laws
was
189
challenged or the court, suo moto, discussed the desirability of

the enactment of a uniform civil code.
(i)
Narasu Appa Mali Case392 (1952)

This is one of those cases were the legislative provisions
modifying the old Hindu laws were challenged on the ground of

being violative of article 14, 15 and 25 of the Constitution. In
this case the Bombay High Court upheld the constitutionality of
Bombay Prevention of Hindu Bigamous Marriages Act, 1946393.
The Act imposed severe penalties on a Hindu for contracting a
bigamous marriage.394 The validity of this Act was challenged
on the ground
that it violated the freedom of religion
guaranteed by article 25, and permitted classification on

religious grounds only, forbidden by articles 14 and 15.
It was contended that among the Hindus the institution of
marriage is a sacrament and that marriage is a part of Hindu
religion which is regulated by what is laid down in the Shastras.
It was further argued that a Hindu marries not only for his
association with his mate but in order to perpetuate his family,
by the birth of sons. It is only when a son is born to Hindu male
that he secures spiritual benefit by having someone who can
offer oblation to his own spirit when he is dead and to the
392
393
394
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84.

Act XXV (25) of 1946.
Section provides that whoever not being a minor (a minor is a person who is
under sixteen years of age) contracts a bigamous marriage shall, on conviction, be
punishable with imprisonment, for a term which may extend to seven years and
shall also be liable for fine.
190
spirits of his ancestors and here is no heavenly region for a

sonless man.395 Therefore, the institution of polygamy is based
upon the necessity of a Hindu obtaining a son for the sake
religious efficacy.396
There arguments were rejected by, both, Chagla, C.J. and
Gajendragadkar, J., Gajendragadkar, J. did not agree with the
opinion that the legislative interference with the provisions as
to marriage constituted an infringement with Hindu religion or
religious practice. He asserted that a sonless man could obtain
a son not only a second marriage but by adoption as well.397
Chagla, C.J., while considering the validity of the Act in
question observed that :
There can be no doubt that the Muslim have been
excluded from the operation of the Act in question. Even
Section 494, Penal Code, which makes bigamy an offence
applies to Parsis, Chrisitans and others, but not to Muslims
because polygamy is recognized as a valid institution when
a Muslim male marries more than one wife. The question
that we have to consider is whether there is any
reasonable basis for creating the Muslims as a separate
class to which the law prohibiting polygamy should not
apply. Not it is an historic fact that both the Muslims and
395
396
397
Manu, IX, 10, 106.

State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84, 86.
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84.
191
the Hindus in this country have their own personal laws

which are based upon their respective religious texts and
which embody their own distinctive evolution and which
are coloured by their own distinctive backgrounds. Article
44 itself recognizes separate and distinctive personal laws
because it lays down as a directive to be achieved that
within a measurable time India should enjoy the privilege
of a common Uniform Civil Code applicable to all its citizens
irrespective
of
race
or
religion.
Therefore
what
the
Legislature has attempted to do by the Hindu Bigamous

Marriages Act is to introduce social reform in respect of a
particular community having its own personal law. The
institution of marriage is differently looked upon by the
Hindus and the Muslims. Whereas to the former it is a
sacrament, to the latter it is matter of sheer contract. That
is also the reason why the question of dissolution of
marriage is differently tackled by the two religions. While
the Muslim law admits of easy divorce, Hindu marriage is
considered to be indissoluble and it is only recently that the
state passed legislation permitting divorce among Hindu.
The state was also entitled to consider the educational
development of the two communities. One community might
be prepared accept and work social reform; another may
not yet be prepared for it; and Article 14 does not lay down
that any legislation that the state may embark upon must
192
necessarily be of an all embracing character. The state may

rightly decide to bring about social reform by stage and the
stages may be territorial or they may be community-wise.
From these considerations it follows that if there is a
discrimination against the Hindu in the applicability of the
Hindu Bigamous Marriage Act, that the discrimination is
not based only upon ground of religion. Equally so if the
law with regard to bigamous marriage is not uniform, the
difference and distinction is not arbitrary or capricious, but
is based upon reasonable ground.398
Gajendragadkar,
J.
expressed
similar
views
in
his
separate but concurrent judgment. He further observed that :

But it is argued that even as to this social reform, the State
Legislature should have made it all pervasive and should
not have left the Mahomedans outside its ambit. That, as I
have already said, is party a political, and partly a legal
argument.
Whether it was expedient to make this Act
applicable to the Mahomedans as well to the Hindu would

be a matter for the legislature to consider. It is not well
settled that the equality before the law which is guaranteed
by Article 14 is not offended by to the impugned Act if the
classification which the Act makes is based on reasonable
and retinal considerations. It is not obligatory for the State
398
Sate of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84.
193
Legislature always and in every case to provide for social

welfare and reform by one step. So long as the State
Legislature in taking gradual steps for social welfare and I
reform does not introduce distinction or classifications
which are unreasonable, irrational or oppressive, it cannot
be said that equality before law is offended. The State
Legislative may have thought that the Hindu community
was more ripe for the reform in question. Social reformers
amongst
the
Hindus
have
agitated
for
this
reform
vehemently may years post and the social conscience of

the Hindu, according to the Legislature, may have been
more in tune with the spirit of the proposed reform.
Besides, amongst the Mahomedans divorces have always
been permissible and marriage amongst them is a matter
of contract. If the State Legislature acting on such
consideration decided to enforce this reform in the first
instance amongst the Hindus, it would be impossible in my
opinion to hold that is confining the impugned Act to Hindu
as defined by the Act it has violated the equality before law
as argument that Article 14 is violated by the impugned Act
must fail.399
From the elaborate observations of the two learned
judges, in this case, the following main inference can be drawn :
399
194
(a) In a democracy the Legislature is constituted by the

chosen representative of the people. It is for them to lay
down the policy of the state and to determine what
legislation to put up on the statue book for the
advancement of the welfare of the State;
(b) Article 14 does not lay down that any legislation that the
State may embark upon must be of an all embracing
character. The state may rightly decide to bring about
social reform by stages, and these stages may be
territorial or community-wise.
The
Court,
thus,
submitting
to
the
wisdom
and
supremacy of Legislature in the democracy virtually kept its

hands off from interfering with the prerogative of the legislature.
Gajendragadkar, J., held that it is for the Legislature to take
into account the social customs and beliefs of the Hindus
another relevant considerations before deciding whether it was
necessary to provide for special provisions in dealing with
bigamous marriage among them. That clearly is the province of
the Legislature and with the propriety of the their views and
their wisdom courts are not concerned.400
So far as the question of infringement of religious freedom
guaranteed by Article 25 is concerned, Chagla, C.J., observed
that what the state protected was religious faith that belief, 401
400
401

Reynolds v. Union States (1870) 98 US 145, 166-67.
195
but not all religious practices. He also claimed that polygamy is

not an integral part of Hindu religion.402 These arguments of the
learned judges, however, provoke to raise two questions. First,
are the judges qualified to determine what is an integral part of
a religion?, and second, does the Constitution protect only the
essentials of a religion? The answer to both these questions is,
apparently, not in affirmative.
A similar issue raised before the Madras High Court
Srinivasa Aiyar v.Saraswathi Ammal403 where the validity of the
Madras Hindu (Bigamy and Divorce) Act of 1949, which also
abolished polygamy among Hindus, was challenged. Challenge
to the Act was made on substantially the same grounds on
which the Bombay law was attached. Like the Bombay High
Court, the Madras High Court also upheld the constitutionality
of the impugned Act, pointing out that the abolition of polygamy
did not interfere with the religion because if a man did not have
a natural born son, he could adopt one. 404 The High Court
observed that the religious practice may be controlled by
legislation if the sate thinks that in the interest of the social
welfare and reform it is necessary to do so.405
Again in Ram Prasad v. State of U.P.,406 almost identical is
sue was raised before the Allahabad High Court, which followed
402
403
404
405
406
Sate of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84, 86.
(1952) Madras 193.
Srinivasa Aiyar v.Saraswathi Ammal, (1952) Madras 196.
Srinivasa Aiyar v.Saraswathi Ammal, (1952) Madras 196.
AIR 1957 Allahabad 411.
196
the decisions of Bombay and Madras High Courts upholding the

validity of the statutory provisions prohibiting bigamy among
Hindus.
(ii) Shah Bano Case407 (1985)
This case happens to be one of the most controversial
judgments of the Apex Court in Independent India. It caused
ripples among all sections of the society, particularly by the
Muslim community which its extremely sensitive about its
personal law.
In this case the simple issue before the Court was
whether the provisions of the Criminal Procedure Code 1973,
providing a temporary relief to divorced women to be finally
adjusted in their actual entitlement under the personal law
applicable, was to apply Muslim women as well. 408 In arriving at
its decision that there is no escape from the conclusion that a
divorced Muslim wife is entitled to apply for maintenance under
section 125 (CrPC) 409 the court used inflammable obiter
dicta which judicial wisdom required to be avoided.
At the outset in his judgment Y.V. Chandrachud, C.J.,
speaking for the court, observed that:
It is alleged that the fatal point in Islam is degradation of
women. To the Prophet is ascribed the statement, hopefully
407
408
409
Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945.

Sections 125 to 127 of Cr. P.C. 1973
Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945, 954.
197
wrongly, that woman was made from a crooked rib and if

you bend it straight it will break; therefore threat your
wives kindly.410
Of course, the Chief Justice was quoting from a notorious
work produced in 1843 by Edward W. Lane, a biased orientalist.
Nevertheless, it showed of women in Islam. However, the most
objectionable part of the judgment is that in which the court
unnecessarily assumed the function to the interpret the Holy
Quran. According to Prof. Tahir Mahmood :
The Shah Bano judgment has caused great resentment in
many circles of the Muslim community in India. Though we
may not agree with the other opponents of the judgment on
many points that they have raised, we do strongly feel that
the assumption by the Supreme Court of the function to
interpret the Holy Quran was absolutely uncalled for. If
Justice Chandrachud was convinced (which he obviously
was) that in the wake of a conflict between the Cr.P.C. and
the Islamic law the former should prevail, he should have
simply so asserted. There was no need, nor justification,
for him to assume the role of an interpreter of the Quran, for
which extremely delicate and difficult task most certainly
he was unqualified.411
410
411
Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 946..

Tahir Mahmood, Shah Bano Judgement : Supreme Court Interprets the Quran
p. 110 ICLQ Vol. V (1985).
198
Infact, the fault does not lie with the court only. It was
Counsel Danial Latifi,412was saw nothing wrong in inviting the
Supreme Court to Interpret a certain verse of the Holy Quran,
and the court naively obliged him. Certainly it could have told
him that it was beyond
its jurisdiction to interpret or re-
interpret that basic religious scripture, especially, when there

were established Privy Council rulings warning the courts to
keep away from such an adventure.413
What made the things worse was that the learned judge
chose to close his judgement virtually declaring that the actual
and final solution of the problem he was tackling lay in an
immediate enactment of a uniform civil code. He observed that,
a common Civil Code will help the cause of national integration
by removing disparate loyalties to laws which have conflicting
ideologies.414
The judgement as a whole could thus be read like this:
Islam degrades women; Quran negates certain popular Muslim
briefs; therefore all Muslims must be subjected to a uniform
civil code by altogether scrapping their personal law. One may
legitimately ask, was it infact necessary to say all this to decide
that the Cr.PC Provision on divorced wives maintenance did not
412
413
414
Senior Advocate Supreme Court, supporting the appellant before the court.
Aga Mohomed Jafar v. Koolsum Bibi, (1897) 25 Cal. 9-18, Baqar Ali v. Anjuman
Ara, (102) 25 All 236, 254; 301 A, 94.
Mohd. Ahmad Khan v. Shah Bano Begaum, AIR 1985, SC 945..
199
exclude Muslims from its scope ? It is pertinent here to note

what an eminent scholar observed about this judgment:
The ideas expressed by the Supreme Court at the end of
the judgment in respect of the legendary uniform civil code
were as un-called for as the attempt to put a new gloss on
a Quranic verse. The enthusiastic support given by the
court to an extremely controversial issue in respect of which
the Muslim are awfully sensitive, and that to in a judgment
directly
concerning
the
Islamic
personal
law,
in
inexplicable. The obiter in the judgment could have been

easily avoided
without affecting
in the least its ratio
decidendi.415
It is a different story whether actually the law of Islam
leaves a divorced woman wholly unprotected and unprovided for
after the period of iddat. Those who have given an affirmative
answer to this query are indeed awfully ignorant of socio-legal
theories of Islam. The fact is that Islam does not leave any
woman, married, divorced, separated or widowed, without
adequate protection even for a day. The concept of marriage in
Islam is certainly very different from that subscribed by all the
indigenous faiths. Islam does not look at marriage as a
perpetual bondage; from the very beginning it treats it as
dissoluble union. After the dissolution of marriage, therefore, it
415
Mohd. Ahmad Khan v .Shah Bano Begaum, AIR 1985, SC 945..
200
would not keep former spouses tied down to each other for any
purpose. At the same time it would provide adequate protection,
financial and social, to the man and woman who were formerly
married. In a truly Islamic society divorced woman would infact
not remain unmarried for long after her iddat. Divorce itself
would, in that society, be exceptional and would be resorted to
only in the cases of marriages broken past repair. No husband
would divorce his wife if he knows that she can neither hope to
get married nor look around for any other source of fall back
upon for her maintenance. The facility of divorce is certainly not
given to men by Islam is order to drag women into destitution
and vagrancy.
However, it is a sad fact that the said Islamic concepts
and laws have been thrown into the dustbin by the common
Muslims in this country. Misuse of Islamic laws by the Muslims
themselves is, infact, the greatest factor responsible for its
misinterpretation by the courts.416
Coming back again to the ruling in the instant case it is
submitted
that
it
un-intentionally
provided
inflammatory
materials to Muslims-bashers to whom, there is no dearth in

this country. By mixing up the actual issue in the case with the
controversial question of a uniform civil code and by trying to
justify its ruling on the strength of certain Quranic verses, as
understood by the court, the judgment (opening with an
416
Mohd. Ahmad Khan v.Shah Bano Begaum, AIR 1985, SC 945.
201
uncalled for reference to the ill-founded western criticism of

Islams alleged anti-women stance) raised
an unhealthy
controversy which unfortunately assumed communal and

political overtones. This unpleasant chapter of the recent legal
history of India could have been easily avoided by showing
judicial self-restraint.
(iii) Jorden Diengdesh Case417 (1985)
Barely a fortnight later than the celebrated Shah Bano
case (decided on 23 April 1985), the special leave petition in
Jorden Diengdeh Case, relating to Christian personal law, was
decided by a Division Bench of the Supreme Court on 10 May,
1985. The judgment was delivered by Justice O. Chinappa
Reddy who sat also on Shah Bano Bench. The six-page
judgment
reads
as
supplement
to
Chief
Justice
Chandrachuds views on uniform civil code expressed in Shah

Bano, vigorously endorsing the same.
In this case a Sikh gentlemen married to a Christian
tribunal woman was not able to sexually satisfy his wife. She
went to the court for a decree of nullity of marriage under the
Indian Divorce Act 1969, since the marriage was solemnized by
Christian rites under the Christian Marriage Act 1872. Finding
that it was not possible for the court to give the desired relief
under the existing Christian laws the learned judge talked the
417
Jorden Diengdesh v. S.S. Chopra, AIR 1985 SC 935.
202
urgent need to enact a uniform civil code. He reproduced the

ground of divorce and nullity under various status (Indian
Divorce Act 1869); Parsi Marriage and Divorce Act 1936;l
Dissolution of Muslim Marriage Act 1939; Special Marriage Act
1954; Hindu Marriage Act 1955 and concluded :
It is thus seen that the laws relating to judicial separation
divorce and nullity of marriage is far, far from being
uniform. Surely the time has now come for the complete
reform of the law of marriage and make a uniform law
applicable to all people irrespective of religion and caste..
We suggest that the time has come for the intervention of
the legislature in these matters to provide for uniform code
of marriage and divorce We direct that a copy of this
order may be forwarded to the Ministry of Law and Justice
for such action as they may deem fit to take.418
While in the Ministrys office of the judgement must be
gathering dust, no one knows what finally happened to poor
tribal lady. The Delhi High Court had, while refusing a decree of
nullity,
allowed
her
judicial
separation
keeping
her
irretrievably broken marriage legally intact.

The learned judge, while reproducing provisions of the
Dissolution of Muslim Marriage Act, 1939 quoting from the
Statement of Objects and Reasons to state that it had to be
418
203
enacted in view of difficulties faced by women governed by the

Hanafi school of Islamic law, but without saying that its
provisos were drawn from another school to Islamic law itself,
i.e. the Maliki school (which fact also the Statement of Objects
and Reasons does explain at length) observed :
If the legislature could so after the Hanafi law we fail to
understand the hullabaloo about the recent judgment of
this court in the case of Shah Bano interpreting Sec. 125 of
the Cr PC and the Muslim law.419
Jorden Diengdehs appeal involved some very serious
issues, other than the uniform civil code and the popular
reaction of Shah Bano.420 Chinappa Reddy, J., did not, however,
make reference to those issues. Neither the issue of uniform
civil code nor that of the response of Shah Bano judgment was
in question in the case before the court. What does it mean?
Can the court speak suo moto only about a uniform civil code
and the Muslim Law, and never about any other factors even if
they are much more relevant than uniform civil code and
Muslim law in any case421?
Now lets analyse what possible could have been done by
the court in this case-instead of singing the old song about
419
420
421

Tahir Mahmood, Uniform Civil Code : Fictions and Facts p. 29. (1st ed.
1995, New Delhi).
Tahir Mahmood, Uniform Civil Code : Fictions and Facts p. 29. (1st ed.
1995, New Delhi).
204
uniform civil code and Muslim law. Jorden Diengdeh was a

Christian, who had married a Sikh man under the Christian
Marriage Act 1872. The Act required that every marriage
between a Christian and a non-Christian (besides all ChristinaChristian marriages) must also take place under its provisions
only.422 When
enacted, this provision
reflected
the high
handiness of the foreign rulers who regarded their own religion

as superior to all others. But nobody bothered. After all the Act
clashed only with Muslim law which allowed a MuslimChristian marriage according to its own principles relating to
kitabi faiths. Hindu law did not allow any inter-religious
marriage at all.
Legal position has, however, been very different since
1954. The Special Marriage Act, 1954 now permits interreligious marriages to take place. Therefore a non-Christina
may marry a Christian under this Act. But, then what about
the demand of section 4 of Christian marriage to a Christian
must also be solemnized to Christian rites only? The two Acts
are apparently in conflict. People are not sure of the correct
legal position and, therefore, want to pay safe- unmindful of the
possible consequence in future-by complying with section 4 of
the old Act of 1872.
The Indian Divorce Act 1869 applies if either party to a
marriage is a Christian (beside all cases where both parties are
422
Section 4 of the Christian Marriage Act, 1872.
205
Christians). Now a question arises as to whether a nonChristian married to a Christina, whose marriage is governed
by the Christian Marriage Act 1872, seek divorce under the
Special Marriage Act, 1954? Two High Courts have delivered
conflicting rulings. The Rajasthan High Court423 has answered it
in affirmative while the Allahabad High Court 424 says no. The
Act itself is not clear on the point, though the preamble An
Act to provide a special from a marriage in certain case for the
registration of such and certain other marriage and for
divorce.- titles in favour of the Rajasthan ruling. Was it not
imperative for the Supreme Court bench in Jorden Diengdesh
case to examine all these aspects of the law? Could it not
upheld the already available Rajasthan ruling an give the
desired relief to the poor tribal woman, paving the way for
salvaging in future other women
finding themselves
in a
similar mess?425
O. Chinapa Reddy, J. did nothing of this kind. Instead of
discussing these points and possibilities, or advertising the
government to make the Special Marriage Act, 1954 more
explicit, he simply wrote his judgement in the form of an
academic article on comparative family law 426 and sent it to the
423
424
425
426
AIR 1959 Raj. 133.

AIR 1974 All 278.
Mohammad Abu Zafar Mohammad Ibrahim v. Israr Ahmad and others ,
AIR 1917 All. pp. 368-69.
AIR 1917 All. pp. 368-69
206
government with a suggestion to enact an uniform civil code.

The only other thing he thought necessary to do was to
admonish, the Muslims frothier reportedly necessary to do was
to admonish, the Muslims for their reportedly unfavourable
reaction to the Shah Bano ruling signed by him along with four
other brother judges a fortnight earlier.
(iv)
Sarla Mudgal Case (1995)427

About a decade after the Shah Bano judgement, the
Supreme Court of India handed down another high-voltage

judgment in Sarla Mudgal v. Union of India (10 May, 1995),
which also become controversial due to its obiter dicta.
The issue before the court was that while the statutory
Hindu law did not and the Muslim personal law as in force in
India did allow bigamy, could a Hindu husband circumvent the
restriction by announcing s sham
conversion to Islam ? The
Court answering the question in negative observed :

We, therefore, hold that the second marriage of a Hindu
husband after his conversion to Islam (without getting his
first marriage dissolved) is a void marriage in terms of
section 494 IPC.428
This sensible ratio decidendi is a welcome part of the
judgement because the blatant abuse of the true Quranic law
427
428

207
on
bigamy-more
often
by
non-Muslim
than
by
Muslim
themselves is a growing social menace. 429 But what is puzzling

about the judgment is that part of the ruling where the court
ascribed the problem before it to the plurality of personal laws
in the country and stressed the need for a uniform civil code as
the remedy. Delivering the main judgment, Justice Kuldip Singh
observed:
Article 44 is based on the concept that there is no
necessary connection between religion and personal law in a
civilized
society.
Article
25
guarantees
religious
freedom
whereas Article 44 seeks to divest religion from social relations

and personal law. Marriage, succession and the like matter of
secular character cannot be bought within the guarantee
enshrined under Articles 25, 26 and 27. The personal law of the
Hindus, such as relating to marriage, succession and the like
have all a sacramental origin, in the same manner as in the
case of the Muslim or the Christians. The Hindu along with
Sikhs, Buddhists and Jains have forsaken their sentiments in
the case of the national unity and integration, some other
communities would not, though the Constitution enjoins the
establishment of a common civil code for the whole of
India.430
The learned judge further observed that :
429
430
Tahir Mahmood in The Times of India, 17 June 1995.

Sarla Mudgal v. Union of India, (1995) 3 SCC 635, 649-650.
208
Those who preferred to remain who preferred to remain in

India after the partition, fully knew that the India leaders
did not believe in two national or three- national theory
and that in the India Republic there was to be only one
national Indian national and no community could claim to
remain a separate entity on the basis of religion.431
These observations made by Justice Kuldip Singh needs
close security. How far his assertion that the Hindu along with
Sikhs Buddhists and Jains have forsaken their sentiments in
the cause of the national unity and integration, is closed to the
reality?
The
judgement
shows
that
certain
popular
misconceptions in respect of the present position of various

personal laws are shared by the court also. The mawkish
references to the majoritys supposed role in respect of a
uniform civil code and the admonition to the minorities for not
accepting the same both contained in the main judgement
make it too obvious a fact to be refuted that the court shares
with the masses the myth regarding the non-enactment of a
uniform civil code by way of appeasement of the minorities,
despite the majority communitys clear option and commitment
in its favour.432
431
432

1917 All. pp. 368-69.
209
The Directive Principle of State Policy contained in Article

44 of the Constitution asks the State endavour to secure a
uniform civil code for the citizens throughout the territory of
India. The directive has, however, been constantly ignored by
the State while legislating in the areas of the personal law of the
majority community. A Hindu Code Bill was inherited by
Independent India from the pre-Constitution regime. After the
introduction of Article 44 Parliament kept on debating it for over
four years. In 1954 it enacted a new general non-religious law of
marriage and divorce the Special Marriage Act, 1954 attaining
to it also the secular law of succession contained in Chapter 2
of Part III of the Indian Succession Act, 1925. Instead of
applying these secular laws compulsorily to the majority
community, within the next two years Parliament enacted two
special laws the Hindu Marriage act 1955 and the Hindu
Succession Act, 1956 both retaining many religion based
provisions. The already available secular laws of minority and
guardianship the Indian Majority Act, 1875, the Guardians
and Wards Act 1890, - were also not found fit for the majority
community. Instead a new Hindu Minority and Guardianship
Act were enacted in 1956. Moreover, clearly going against the
directive of Article 44, the vast population of Hindu tribes was
kept out of the Hindu law enactments of 1955-56 and left free to
follow their diverse customers.433
433
And for all those who were
Sections 2-3 of the four Hindu Acts of 1955-56.
210
brought within the fold of the newly enacted laws, local and
caste customs relating to many matters, including the system of
extra- judicial divorce and exclusion of women from certain
important property rights were specially protected. The new
Hindu personal law of 1955-56 was thus, neither uniform nor
free from religion-based and sex-based discriminations.
In 1976 the Indian Succession Act till then compulsorily
applicable to all those who voluntarily opted for the nonreligious marriage law of the Special Marriage Act, was made
wholly in applicable to the Hindu, Buddhists, Jains and Sikhs;
henceforth they would be governed by the religion-based Hindu
Succession Act even if they married within those four
communities- under the Special Marriage Act [While in the
same situation members of the other communities would be still
governed by the Indian Succession Act]. Adopted
on the
recommendation of the Law Commission [which as per the

courts judgement, should be now asked to draft a uniform civil
code], this measure had clearly put Article 44 in the reverse
gear.434
It is, thus, crystal clear that Justice Kuldip Singhs
observation that while the Hindu, along with Sikhs, Buddhists,
and
Jains
have
forsaken
their
sentiments,
some
other
communities would not seems to be oversimplifying the

434
1917 All. pp. 368-69.
211
situation.435 The codified Hindu law of 1955-56 was extended to

Buddhists, Jains and Sikhs not for the sake of national unity
and integration but since these three communities never had
my scripture-based personal law
of their own. Even before
1955-56 they were governed by Hindu law subject to some

contrary usages of their own; and there is still ample room for
the retention of those special usages under all the Hindu law
enactments of 1955-56.
Of course, the personal law of other communities are also
neither uniform nor free from other problems. However, the
personal law of any
minority can not be obliterated while a
separate Hindu law remains intact.

As regards the substantive issue which the court
confronted Justice R.M. Sahai correctly observed that, much
misapprehension prevails about bigamy in Islam. 436 Islam,
infact, makes monogamy as a rule and polygamy only as an
exception. The man marrying a second, third or fourth wife, is
burdened with the liability of doing justice among all of them.
This justice has to be both social and economic.
As far as the order the court, directing the Government of
India to file an affidavit within a stipulated time, indicating
therein the steps taken and the effort made by the Government
435
436

AIR 1917 All. pp. 368-69.
Sarla Mudgal v. Union of India, (1995) 3 SCC 635, 652.
212
of India towards securing, a uniform civil Code, is concerned,

it is nothing but the violation of judicial restraint envisaged by
the doctrine of separation of power which is an inherent
characteristic of the Constitution of India.
Though, the principle of uniformity, to be applied in
making civil laws is fundamental in the governance of the
country but if- for any valid and important reasons the State
can not apply the principle of uniformity while making civil
laws, no court in the country in any way have the principle
enforced. The Constitution leaves, it entirely and exclusively to
the wisdom of the State when, how, in what way, and to what
extent, it can and should apply the principle of uniformity in
making civil laws.
It is submitted that the solution to the problem of
unlawful bigamy lies in suitably amending the Hindu Marriage
Act, improving the now cumbersome and vexatious judicial
process for divorce, properly codifying the true principle of the
Muslim personal law. Constitutionally tenable, these steps will
surely bear fruit.
(iv) Ahmadabad Women Action Group Case437 (1997)
About two years after the mind-boggling judgment in
Sarla Mudgal case showing the courts unnecessary interference
in the realm of the functions of the legislature, came a sensible
437
Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573.
213
judgment in Ahmadabad Women Action Group (AWAG) v.

Union of India.
In the instant case three writ petitions were filed before
the Apex Court as public interest litigation under Article 32 of
the Indian Constitution. In the Writ Petition (C) No. 494 of
1996, it was prayed to declare Muslim Personal Law which
allows polygamy as void as offending Articles 14 & 15 of the
Constitution.438
In the second WP(C) No. 496 of 1996, it was inter alia
prayed to declare Section 2(2), 5(ii) and (iii), 6 and Explanation
of Section 30 of the Hindu Succession Act, 1956 as void
offending Articles 14 and 15 read with Article 13 of the
Constitution of India.439
In the third petition i.e. WP(C) No. 721 of 1996 the relief
prayed was as follows :
438
439
Other relief prayed were: to declare Muslim Personal Law, which enables a
Muslim male to give unilateral talaq to his wife without her consent and without
resort to judicial process of courts, as void , offending Articles 13, 14 & 15 of the
Constitution; to declare that the mere fact that a Muslim husband takes more than
one wife in an act of cruelty within the meaning of clause VIII(f) of Section 2, the
Dissolution of Muslim Marriage Act, 1939; to declare that Muslim Women
(Protection of Rights on Divorce) Act, 1986 is void as infringing Articles 14 & 15;
to further declare that the provisions of Sunni and Shia laws of inheritance which
discriminate against females in their shares as compared to the shares of males of
the same status, void as discriminatory against females only on the ground of sex.
. Other relief prayed were: To declare Section 2 of the Hindu Marriage Act, 1955,
as void offending Articles 14 & 15 of the Constitution of India; To declare Section
3(2), 6 and 9 of the Hindu Minority and Guardianship Act, read with section 6 of
the Guardians and Wards Act, void; To declare the unfettered and absolute
discretion allowed to a Hindu spouse to make testamentary disposition without
providing for an ascertained share of his, or her spouse and dependant, void.
214
(a) To declare Section 10 and 34 of the Indian Divorce Act

void and also to declare Sections 43 and 46 of the Indian
Succession Act void.
The court, in this case, - realizing the complexities
involved in the issues raised before it and also knowing fully its
powers and limitations- refused to oblige the petitioners by
observing, at the outset, that:
These writ petitions dont deserve disposal on merits in
as much as the arguments advanced by the learned Senior
Advocate before us wholly involve issues of State policies
with which the court will not ordinarily have any
concern440
The court supported its judgment in this case on the
basis of its observations in earlier decisions, where the court
had held that the remedy lies somewhere else and not by
knocking at the doors of the courts. The court quoted from a
number of significant judgment where similar issue came before
it from adjudication.
It will not be out of place to discuss some of those cases
(which were cited by the court in the instant case) briefly. In
Maharshi Avadhesh v. Union of India,441 the Supreme Court of
India dismissed a writ petition under Article 32 of the
Constitution. The reliefs prayed in this case were as follows:
440
441

1994 Supp. (1) SCC 713.
215
(a) To issue a writ of mandamus to the respondents to

consider the question of enacting a common Civil Code
for all citizens of India;
(b) To declare the Muslim Women (Protection of Rights on
Divorce) Act, 1986 as void being arbitrary and
discriminatory and in violation of Articles 14 and 15,
and Articles 44, 38, 39, and 39 A of the Constitution of
India; and
(c) To direct the respondents not to enact Shariat Act in
respect
of those adversely affecting the dignity and
rights of Muslims women and against their protection.

The court, again, while dismissing the writ petition
observed :
That these are all matters for legislature. The court can not
legislate in these matters.442
In Personal Bansilal Pitti v. State of A.P.,443 validity of
sections 15, 16, 17, 29 (5) and 144 of the A.P. Charitable Hindu
Religious and Endowments Act, 1987 were challenged. One of
the questions before the court was whether it is necessary that
the legislature should make law uniformly applicable to all
religious legislature should make law uniformly applicable to all
religious or charitable or public institutions and endowments
442
443

(1996) 2 SCC 498
216
established and maintained by people professing all religions.

The Court held :
A uniform law, though is highly desirable, enactment
thereof in one go perhaps may be counter-productive to
unity
and
integrity
of
the
nation.
Making
law
or
amendment to a law is a slow process and the legislature

attempts to remedy where the need is felt most acute. If
would, therefore be inexpedient and incorrect to think that
all law have to be made uniformly applicable to all people
in one go444
In State of Bombay v. Narasu Appa Mali,445 (this case has
been discussed at length in the beginning of this Chapter),
while upholding the validity of the Bombay prevention of Hindu
Bigamous Marriage Act, 1946, the Bombay High Court held
that:
in a democracy the Legislature is constituted by the
chosen representative of the people. They are responsible
for the welfare of the state and it is for them to lay down
the policy that the state should pursue. Therefore, it is for
them to determine what legislation to put up on the statute
book in order to advance the welfare of the state.
444
445
Personal Bansilal Pitti v. State of A.P, (1996) 2 SCC 510.

AIR 1952 Bombay 84.
217
The court also held that Article 14 does not lay down that
any legislation that the State may embark upon must
necessarily be of an all embracing character. So far as the
question of applicability of Part III of the Constitution to the
personal
laws,
is
concerned,
both
Chagla,
C.J.
and
Gajendragadkar, J., were of the opinion that the personal laws

do not fall within Article 13 (I) at all.
In Krishna Singh v. Mathura Ahir,446 the Supreme Court,
while considering the question whether a Sudra could be
obtained to a religious order and become a Sanyasi or Yati and,
therefore, installed as Mahant of the Garwaghat Math according
to the tenets of the Sant Mat Sampradaya, observed :
Part III of the Constitution does not touch upon the
personal laws of the parties. In applying the personal laws
of the parties, he (judge) could not introduce his own
concepts of modern time but should have enforced the law
as derived from the recognized and authoritative sources
of Hindu law.447
Thus on the basis of the observations made in its earlier
decisions viz., Maharshi Awadhesh, Pannalal, Narasu Appa
Mali, Mathura Ahir etc. cases the court came to the conclusion
that the issues raised in the instant case i.e. Ahmedabad
446
447
(1981) 3 SCC 689.

Krishna Singh v. Mathura Ahir , (1981) 3 SCC 699.
218
Women A Group v. Union of India,448 were the matters of state

policies with which the courts are not concerned. Hence the
writ petitions were dismissed.
However, the most sensible and appreciable part of the
judgment is that where the court held that the observations
made by Justice Kuldip Singh in Sarla Mudgal v. Union of
India,449 about the desirability of enacting a uniform civil code
(discussed earlier in this chapter) and which aroused a lot of
controversies, were incidentally made.450
It is, therefore, submitted that the judgment of the Apex
Court in Ahmadabad W.A. Group case is a welcome decision, in
so far as, it shows the self-restraint of the judiciary particularly
in a matter relating to personal laws which happens to be an
extremely sensitive issue, specially in India.
The decision is worth appreciating, also, because it shows
the commitment of the judiciary to the doctrine of separation
of power which is the back bone of any modern democratic
state. To sum up in the words of the Court itself;
However laudable, desirable and attractive the result may
seem, an activist court is not fully equipped to cope with
the details and intricacies of the legislative subject. For
in the whatever measure be the concern of the court, it
448
449
450
(1997) 3 SCC 573.

(1995) 3 SCC 635.
(1997) 3 SCC 573, p. 582.
219
compulsorily needs to apply, somewhere and at sometime,

brakes to itself motion, described in judicial parlance as
self restraint.451
The foregoing study reveals that the judicial response to
encourage the environment to uniform legislation for all
communities has been quite appreciative one. The courts in
India have sought to establish a secular polity founded on social
justice irrespective of the tenets of religion. A deep investigation
of the judicial trend discloses that it has always made earnest
efforts to ensure the implication of the mandate contained in
Article 44 of the Constitution Judiciary has carried out the
spirit of Article 44 and decided the controversy arising out of
the personal laws to the communities at large with a zeal to a
feeling of uniformity of law irrespective of religious emotions of
the people. The famous case of the State of Bombay v. Narasu
Appa Mali,452 is a maiden work of the Indian judiciary where
there appears a dawn of new era to promote the spirit of Article
44 of the Constitution. M.C. Chagla, CJ rightly observed that
every community must be prepared and work for social reform.
The court rightly indicated that State was empowered to bring
about the social reform by stages and even if the laws with
regard to bigamous marriages are not uniform, the difference
and distinction may not be called as arbitrary or capricious, it
451
452
Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125, p. 135.

AIR 1952 Bom. 84
220
may rather be deemed to have been based upon rationale

ground.453
The wisdom of the judiciary also lies in the fact that it has
relied heavily on the decisions of Davis v. Beason.454 The Court
has rightly held in this case that religion must be subordinated
to the laws of the country enacted with reference to actions by
general consent as properly the subjects of the primitive
legislations.455 Gajendragadkar, J. rightly opined that Article 44
of the Constitution is an important Article which recognizes the
existence
of
different
courts
applicable
to
Hindu
and
Mohammadans in the matters of personal law and permits their

continuance until the state succeeds in its endeavour to secure
for all the citizens a uniform civil code.456
The judiciary has gone to the extent of holding that the
institution of polygamy is not based on necessity. If there is son
out of the first marriage then instead of taking recourse to the
second marriage the proper course in adoption of a son. 457 The
same arguments have further been coined in Srinivasa Aiyer v.
Sarawathi Ammal,458 wherein the judiciary took the view that
evolution of polygamy does not interfere with religious because
if a man does not have a natural son, he can adopt one from the
453
454
455
456
457
458
State of Bombay v. Narasu Appa Mali , AIR 1952 Bom. 87

(1889) 133 US 637
Davis v. Beason (1889) 133 US 640
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 95
AIR 1952 Mad 193, Ram Prasad v. State of U.P., AIR 1957 All 411.
221
other family. The court bravely has held that religious practices
are always subject to the State Regulation and can be governed
through appropriate legislations irrespective of their religion
emotions.
While adjudicating upon the subject matter of the
restitution of conjugal rights the court 459 seems have been
earnestly committed to uproot the evils of polygamy in Muslim
community. The court rightly discouraged the existence of
polygamy in Muslim community by holding that it is no longer
an institution to be tolerated merely because the Muslim
religion sanctifies it on the basis of their scriptures. The status
of Muslim wife has further been elevated by the judiciary by
taking a strong stand to the wife against her wishes to live with
her husband who always administers cruelty on her. 460 The
judiciary has universalized the concept of cruelty on the basis
of universal and humanitarian standards. The Muslim husband
has stripped off his powers to inflict divorce on his innocent wife
which he uses to claim as a matter of right because it finds
support in the Muslim Scriptures.461Justice Krishna Iyer has
very clearly opined that the provision of personal laws must
always
run
in
accordance
with
the
provisions
of
the
Constitution. It is the function of the judiciary to construe the

words of personal laws with the passage of time which is the
459
460
461
Itwari v.Aasghari, AIR 1960 All 684

Itwari v.Aasghari, AIR 1960 All 687.
(1970) KLT p. 4
222
need of the hour in the light of Constitution mandate. It is

highly desirable to read the personal laws in the light of the
philosophy contained in the Article 44 of the Constitution. 462 It
is a quite manifest from the study of the judicial decision that
the judiciary has always tried to narrow the gap between the
general provision of law and provisions under the personal laws
of the community.463 The Supreme Court while ignoring the
personal law has stressed that the provision under general law
should be made applicable to all persons irrespective their
religion. The court has specifically stressed that the provision
contained in general law i.e. Chapter X of Criminal Procedure
Code read with Part IV of the Constitution and Article 15(3)
which provides for transforming the value with the changing
time should be given universal application in India. 464 The
personal law can never hold against the policy of public law
which is designed to achieve the objective of the welfare of
community at large.465 The court has touched the apex point in
a famous case of Mohd. Ahmad Khan v. Shah Bano Begum,466
where the court held, "the statements in the text book viz.
Mulla's Mohammadan Law, Tyabaji's Muslim Law and Dr. Paras
Diwan's Muslim Law are inadequate to establish the proposition
462
463
464
465
466
Makku Rawther's Children v. Manahapra Charayil, AIR 1972, Ker. 27 D.

Chelliah Nagar v. G. Lalita Bal, AIR 1978 Mad. 66
Bhagwan Dutt v. Smt. Kamla Devi, 1975, SC 84, A. Yousuf v. Sowramma, AIR
1971 Ker. 261; Abboobakar Haji v. Mamu Koya, 1971 KLT 663, Bai Tahira v. Ali
Fissali AIR 1980 SC 362.
Bal Tahira v. Ali Fissali, AIR 1980 SC 1730
Fuzlunbi v. Khadar Vali, AIR 1980 SC 1730
AIR 1985 SC 945
223
that Muslim husband is not under obligation to provide for the

maintenance of his divorced wife, who is unable to maintain
herself. "While showing a gesture of great regret the court was
compelled to state, "it is also matter of great regret that Article
44 of our Constitution has remained a dead letter. There is no
evidence of official activity for framing a common civil code for
the community. "The Court has shown the courage to declare
the text of the personal laws should be ignored if it overrides
the operation of general law and is injurious and equitable to
the community at large.467 The Indian judiciary has also
emphasized the need for one common code relating to judicial
separation, divorce and nullity of marriage. The quote Justice
Chinnappa Reddy:468
"The time has now come for a complete reform of the law of
marriage and make a uniform law applicable to all people
irrespective of religion or caste. Now it is time
for the
legislature to take initiative in this direction."

The same view has been reiterated in a subsequent case
Begum Subanu alis Saira Banu v. A.M. Abdul Gafoor,469 wherein
the court held that the explanation of sub section 3 of Section
125 if of uniform application to all wives including Muslim wives
whose husband have either married another wife or taken a
mistress. The recent decision of the court in M. Alvai v. T.V.
467
468
469
Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 950

Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 940.
AIR 1987 SC 1103, Mangila Bivi v. Noor Hossain, AIR 1992 Cal. 92.
224
Safia,470 also is a strong testimony to the fact that the ambit of

personal law should be curtailed if it comes in conflict with the
general law of the land designed to promote the welfare of the
community at large.
To conclude, the forgoing discussion disclose that the
judicial response to encourage the constitutional philosophy of
uniform civil code has always been quite praise worthy. But
unfortunately the efforts on the part of the legislature shows
that nothing has so far been done by this august body to
promote the philosophy of Article 44. The objective of uniform
civil code can be achieved only if the three organs of the State
endeavour to take imitative to put this philosophy into action.
Thus, it is clearly from the discussion in this chapter, that
whenever the constitutionality of any provision(s) of any
personal laws was challenged on the ground of being violative of
fundamental rights, the court exercised self-restraint and left
the matter for the wisdom of the legislature saying that it is
matter of state policies, with which the court is not, ordinarily,
concerned.
However, it is equally true that on many occasion the
court unnecessarily stepped into the shoes of an activist,
emphasizing the desirability of the enactment of a uniform civil
code. This happened mostly when the issued involved in the
470
AIR 1993 Ker. 21; Bishnu Charan Mohanty v. Union of India, AIR 1993 Ori.
176.
225
cases did not at all require such incidental observations.

Sometimes, even side-stepping the issues involved in the case,
the court made un-called for remarks about uniform civil code.
Chapter VI
Conflicts of Law and Uniform Civil Code
In India, generally there is no possibility of direct conflict
arising between the laws of various communities. Every
community has its own personal law which ordinarily prohibits
inter-religious marriages.
However, such conflict of inter
communal law may raise indirectly. For instance, when one of

the spouses of marriage converts to another religion then the
question that arias is : whether the marital relations between
the parties will be governed by the law as applicable at the time
of marriage or the law applicable after conversion. In the later
cases, whether it would be the law of the spouse who has
converted or the law of the non-converted spouse. This question
has come before our courts in several cases discussed ahead.
Almost in all cases one of the spouses has embraced Islam.
For the first time a question relating to inter-personal
conflict of laws arose in Khambatta vs. Khambatta,471 where on
4th December, 1906, the petitioner, who was domiciled in
Scotland, married at the General Register Office in Edinburgh,
Gulam Mohammad Ebrahim, who was a Sunni Mohammadan
domiciled in India. In 1912, the petitioner embraced Islam and
continued to profess that religion up to the middle of April
471
AIR 1935, Bomb. 5.
227
1923. Between
permanently
the years 1914 and 1932 G.M. Ebrahim
resided at Seconderabad. On 27 th June, 1922,
Ebrahim pronounced talaq against the petitioner in accordance

with Mohammadan Law. On 10th April, 1923, the petitioner
obtained a declaration from the District Court at Seconderabad
that she was no longer the wife of Ebrahim. On 24th April, 1923,
the petitioner was married to the respondent, Khambatta under
the Special Marriage Act, 1872, After ten years of marriage, the
wife petitioned on the averments that since her Scottish
marriage, has not been dissolved
by any court of law, her
second marriage begin bigamous hence was void.

The court was called upon to decide two points, namely,
(1)
Whether the husband could have divorced his wife by

talaq while she marriage under the Christian law, and
(2)
Whether he could do so after she became a convert to

Mohammadanism.
As far as the first question was concerned
the court
observed that this was a Christian marriage, which is a

voluntary union for life of one man to one women to the
exclusion of all others.472 Because
solemnized
the marriage
was
in England therefore, the court would refuse to
recognize talaq as applicable to Christian marriage. The court

in India where the husband is domiciled
which alone
have
jurisdiction over the rights and obligation arising out of the

472
Hyde v. Hyde, 1986, P&D 130.
228
marriage, will apply the same principle to the Christian

Marriage. If this marriage has been solemnized in India, it
would have been void unless solemnized in accordance with the
provisions of the Indian Christian Marriage Act, 1873. 473 A
marriage
solemnized
under
this
Act
is
essentially
monogamous marriage, involving an implied obligation not to

marry another women while that marriage subsists, and
although a Mohammadan under his personal law is allowed
four wives, he must be deemed to have abandoned his rights
under that law by contracting a marriage with a Christian, and
would be guilty of bigamy if he married again while the first
marriage subsisted. In any event a marriage solemnized under
the Act of 15 of
1872 is not a Mohammadan Marriage, and
cannot be dissolved by talaq at the instance of the Husband.

The grounds upon which a Christian wife in India may divorce
or be divorced are regulated by the Indian Divorce Act, 1869.
As regards the second question the court held that after
conversion the husband can divorce his wife by talaq. Therefore,
the marriage was validly dissolved. Blackwell, J. observed that
if a Christian wife renounces Christianity by adopting another
religion, as the petitioner did in this case, these grounds and
the procedure eases to apply as between her and her
Mohammadan husband and I can see no reason why his
473
Perhaps the court did not take into account the fact that a Muslim in India could
not contract marriage with a Kitabiya. Since a Christian is a Kitabiya so a marriage
between a Muslim male with a Christian Female is valid and such a marriage can
be dissolve by talaq.
229
personal law should not then apply to the marriage. Otherwise,

no system of law would apply as regards divorce, and the
marriage tie would remain indissoluble. He further observed
that the change of domicile can effect a change in status then
there is no reason why the change of religion should not do the
same thing.474
The court
thus held
the divorce valid
under the
Mohammadan law as both the parties were Mohammadans,

and observed that the status under the marriage contract was
governed by the lex domicile, that is, the law of the country in
which the parties were domiciled. The rights and obligations of
the parties relating to the dissolution of the marriage did not
from a part of the marriage contract, but arose out of, and were
incidental to, such a contract and were governed by lex
domicile. As soon as the plaintiff (petitioner) got converted to
Islam the law applicable to a Christian creased to apply to her,
and she become subject to Mohammadan law. Consequently,
that law entitled her husband to divorce her by talaq. The court
thus applied the personal law of the parties at the institution of
the suit.
It is, therefore, clear from this case that in India where
parties have Indian domicile, in additional to the general law, if
474
not contract marriage with a Kitabiya. Since a Christian is a Kitabiya. Since a
Christian is a Kitabiya so a marriage between a Muslim male with a Christian
Female is valid and such a marriage can be dissolve by talaq..
230
any, the court will be entitled to apply the personal law of

parties, when that is applicable to the case, at the time of the
institution of the suit in adjudicating the dissolution of
marriage.
Now the question is : If only one party is resident in India,
can the personal law of the converted spouse be applicable?
This problem was decided in Nurjahan vs. Tiscenco,475 where two
Russians got married in Berlin according to Civil rights. At the
time of marriage both the parties were Christian. After marriage
they lived together in several European countries till 1933 when
the wife came to India and husband went to Scotland. In 1940
the wife converted
to Islam and assumed the name of
Nurjahan. She then thrice offered Islam to her husband. 476 On

the husbands refusal to accept Islam as his religion, the wife
instituted proceedings in an Indian court for dissolution of
marriage.
The court dismissed the petition on the ground that since
the parties were not domiciled in India, the court has no
jurisdiction. The court observed that the question of cause or
ground for divorce must be distinguished from the question of
jurisdiction. The English court recognize a decree of a foreign
court, with jurisdiction, made upon a ground not recognized by
English law. The English court might recognize as good for India
475
476
AIR 1942, Cal. 325.

Under Muslim Law in a Muslim spouse offers to his non-Muslim spouse Islam
thrice and if the latter refuse to accept it, then the marriage stands terminated.
231
a divorce granted in India with our jurisdiction according to

English principles, but where the Indian courts have assumed
jurisdiction.477 However, the court observed that no spouse can,
on converting to another religion, impose his / her new religion
on the other spouse.
It is submitted in this case that the court could have
assumed jurisdiction to decide this case because the party has
been residing in India for the last two years. In this case her
marriage remained undissolved. This was great injustice with
the spouse.
A. Conflict between Hindu Law and Christian Law

Now the question is, if there is conflict of Hindu law vs.
Christina Law, which law will decide that particular problem?
The Indian court was confronted with such problem in Parmial
Khosla vs. Rajnish Kumar Khosla,
478
In this case the parties
got married according to Arya Samaj rites. Subsequently the

wife petitioned for judicial seperatioon on the ground of cruelty
under the Indian Divorce Act, 1869 on the basis that she
professed Christina religion and the Act required only one party
to be a Christina for its applicability. 479 The husband contested
the petition on the ground that Theirs was a Hindu marriage
performed in a Hindu form and should therefore be governed by
477
478
479
Nurjahan vs. Tiscenco , AIR 1942, Cal. 326.

AIR 1978 Delhi 78.
Section 2, Indian Divorce Act, 1869
232
the Hindu Marriage Act, 1955. The court was, thus, faced a
problem whether the said marriage was governed by the Hindu
Marriage Act, or the Indian Divorce Act.
The court in this case observed that the whole position
has been radically changed by the Hindu Marriage Act, 1955,
which by Section 2(a) applied to Arya Samaj. A Hindu Marriage
has now been rendered monogamous by that Act, as Section 5
makes it a condition that neither party has a spouse living at
the time of the marriage. The bar to relief emanating from
English law by virtue of Section 7 of the Indian Divorce Act, 480
no longer operates. Reliefs can now be had under the Act in
respect of Hindu marriage provided, of course, one of the
parties professes the Christian religion when the petition is
filed.
The court further observed that nowhere in the Act it
has been required that the marriage, in respect of which relief
is sought, should have been solemnized in any particular from.
It is sufficient that one of the parties is a Christian when the
petitions filed.481
The court thus reached the conclusion that in respect of
a Hindu marriage, relief can be hand under the Hindu Marriage
480
481
Indian Divorce Act, 1869, Section 7 para 2-. Nothing in this section shall deprive
courts of jurisdiction in a case where the parties to a marriage professed the
Christian religion at the time of the occurrence of the facts on which the claim to
relief is found.
Khambatta vs. Khambatta , AIR 1935 Bom. 5.
233
Act and the Indian Divorce act as well if one of the parties is a
Christian when proceedings are commenced.
In this case the court suo moto raised doubt about the
possible consequences
that might follow, for instance, the
husband may go to the court for the relief under the Indian
Divorce Act and on the other hand the wife may go for relief
under Hindu Marriage Act. The court here suggested that the
solution lies with the legislature.
A pertinent question was raised by one Research fellow 482
i.e. whether a valid marriage could take place where one party
was a Hindu and other a Christina? Because Section 5 of the
Act,483 requires
that both parties to the marriage must be
Hindus. The averments of both the parties to the marriage were

ambiguous as to whether wife was a Christian at the time of the
marriage or hand then converted
to Hinduism but was later
reconverted to Christianity. Here the court mentioned that

presumption of validity was granted to every marriage, which in
this case would only mean that both parties were competent to
marry according to Hindu rites as they were Hindus. Thus, if
the wife now professed to be a Christian, it can only mean that
482
483
Parsher Archana : Conflict of Laws Hindu vs. Christian Law, 1982, 1 &
CLQ, Vol. II, p. 302.
Hindu Marriage Act, Section -5A marriage may be solemnized between any two
Hindu.
she later converted (on reconverted) to Christianity. If so, the

case will be governed by the Hindu Marriage Act, 1955.484
It is submitted that though ordinarily conflict between
different religious laws does not arise in India, as all personal
laws purport to govern their own followers. Personas following
different religions are permitted
to contract a civil
marriage
under the Special Marriage Act, 1954. In this modern era

particularly in India where persons of different religious faith
live in a society, inter-caste
and inter-religious marriages
cannot be ruled out. The parties may opt to undergo a marriage

in a religious form instead of having a civil marriage. For this
they may temporarily change their religion in love or emotion
and after that when / they face the music of marital reality
they claim to be governed by their own law (as seems to have
happened in this case). In such a case it will be in the interest
of justice that the marriage should not be declared null and
void but the validity of marriage should be determined by lex
loci celebrations. And because the divorce is the incidence of
marriage, therefore, it may be governed by a different law. As I
have already submitted that their mistake, that they should
solemnize their marriage under the Special Marriage Act,
484
The Hindu Marriage Act, 1955, Section 13(1) (ii) Any marriage solemnized
whether before of after the commencement of this Act, may on a petition presented
by either the husband or the wife. Be dissolved by a decree of divorce on the
ground that the other party has ceased to be Hindu by conversion to another
religion.
should be rectified at a later stage by applying the Special

Marriage Act, 1954.
B. Conflict between Muslim Law and Hindu Law

Now
the
important
question
that
requires
little
stipulation is : when one party at the time of the institution of

the suit of dissolution of marriage is a Hindu and the other is a
Muslim, which personal law, whether Hindu or Muslim is to be
administrative by the court. This involves the obvious question
of a apostasy and conversion485 for which we have to first
consider the case of Mohammadan law, the application of which
differs in a county under Islamic rule as compared to one under
non-Islamic rule. The former Dar-ul-Islam and the latter is Darul-Harb. As India is a non-Muslim State, Mohammadan law of
Dar-ul-Harab will apply, the position under this law is that
Islam is to be offered by the court three times to the non
convert spouse, and if he does not accept Islam the court can
dissolve the marriages. In the case Dar-ul-Islam, after the
conversion of the wife, the marriage is dissolved automatically,
unless of the wife, the marriage is dissolved automatically,
unless the husband adopts Islam within the expiration of three
menstruation periods of wife or alternatively three months in
the circumstances.
485
A Muslim may renounce Islam, this is known as apostasy (ridda); or a nonMuslim embrace Islam, this is called conversion.
According to the general principles of Mohammadan law,

a person who embraces Islam is immediately governed by Islam
law. In order to understand the principles underlying the body
of rules relating to the matrimonial status of person renouncing
or embracing Islam, we shall consider four classes of cases: first
a Muslim husband may become a apostate, secondly a Muslim
wife may renounce Islam these are the two commonest from of
apostasy. Thirdly a non-Muslim husband and fourthly, a nonMuslim wife may embrace Islam; these are two commonest
cases of conversion.486
Apostasy may either be express, as we hereby renounce
Islam; or we do not believe in God and the Prophet
Mohammad; or it may be by conduct, for instance, by using
grossly disrespectful or abusive language towards the prophet,
conversion to another faith is also tantamount to apostasy.
A Muslim husband who renounce Islam is an apostate
and as such his marriage with his Muslim wife is dissolved ipso
facto,487 when a Muslim married couple abandon Islam and
adopt another faith, their marriage is not dissolved but remains
intact.488
The mere renunciation of Islam by a Muslim wife does not
by itself dissolve his marriage. But this rule is not applicable to
486
487
488
Fazee, A.A.A. : Outlines of Mohammadan Law, 4th Ed. P. 178.

Ali, Amir, Mohammadan Law, 4th Ed. Vol. 1, 390
Ali, Amir, Mohammadan Law, 4th Ed. Vol. 1, 394.
a women converted
to Islam for some other faith who re-
embraces her former faith, his marriage will be dissolved ipso

facto.489
According to modern view all religions are equal in the eye
of law and the court judicially administrating the law, cannot
say that one religion is better than another. Here a non-Muslim,
lawfully married in accordance with his own law, cannot be
mere conversion to Islam dissolve his own marriage.490
The conversion of a non-Muslim wife to Islam does not
ipso facto dissolve her marriage with her husband, and the
ancient procedure of offering Islam to the husband and, on
his refusal, obtaining a dissolution of marriage cannot be
followed in India. By this procedure wife cannot get rid of her
husband.
Many deliberations took place on this point in a Bombay
case,491 decided by Blagden J. in December 1945, and
confirmed by a Division Bench on Appeal. Robaba, an Iranian
woman, Zoroastrian by religion, who was domiciled in India,
was married to Khodadad in Persta according to Zoroastrian
489
490
491
Now the dissolution of Muslim marriage Act, 1939, provides that apostasy by
itself does not dissolve the marriage, unless it be that a women re-embraces her
former faith.
According to Islamic law, conversion to Islam on the part of the man following
a scriptural religion , such as Christianity or Judaism, does not dissolve his
marriage with a woman belonging to his old creed. But if the couple belong to a
non-scriptural faith the Muslim husband cannot lawfully retain a non-Kitabiyya
wife; wherefore Islam is to be offered to her and, on her refusal, a decree for
dissolution will be passed.
Robaba Khanum vs. Khodadad Bomanji Irani, ILR (1948) Bomb. 223.
rites. Two sons were born of the Union. She embraced Islam
and offered Islam to her Zoroastrian husband. On his refusal,
she filed a suit for a declaration that held by the court that a
Zoroastrian (or Christian)
wife cannot do away with her
marriage by a mere profession of Islam. Fyzee, rightly makes

the following observations:
a. When a court of law has to decide a case involving change
of marital status due to conversion or apostasy, it must
never be overlooked that since the rules were formulated
in Islamic jurisprudence, social conditions have changed
so completely that a blind adherence to some of the rules,
torn out of their proper context, would lead neither to
justice nor to a fair appraisal of the system under which
they were promulgated.492
b. In all such cases the court is entitled to ask : who is the
person that seeks relief ? If the husband change his
religion, it is understandable that the wife should
complain and sue for dissolution; a vice-versa. But it is
right and just that one spouse should declare himself a
convert and then ask the court ot declare the marriage
dissolved ? The result would be that by these means a
party to a marriage would be able to evade legal
492
Fazee, A.A.A. : Outlines of Mohammadan Law, 4th Ed. p. 178.
239
obligations of marriage entered into at a prior time and in

accordance with a different system of personal law.493
c. The third matter of serious concerns would be: can one
spouse by changing his/her religion alter the status of
another person who has not changed his faith? A man
may be, and is, permitted to change his religion at his
own choice, but why should such an act be allowed
completely to alter the legal status of another spouse who
has not changed his religion?494
On a keen perusal of the above observation define that
these are some of complex legal and social problems raised by
the law in modern society; and while it has so far been found
impossible to formulate a law of marriage and divorce which
would be satisfactory in all respect, it is therefore, submitted
that
in
holding
the balance equally
between
conflicting
principle, it is the duty of the court to decide the case on the

basis of equity, justice and good conscience.
Now to consider the matter under the Hindu law, it is
observed that in India, the Hindu Marriage Act, 1955 (as
amended
substantially)
amends
the
traditional
law
by
permitting a right of divorce for Hindus, the act contains an

interpersonal conflict of Law rule in section 13(1) (ii) which
provides the Hindu spouse with the means to bring a petition
493
494

240
for divorce on the grounds that the other spouse has converted
to another religion.495 Regardless of the personal law rules
applicable to the newly converted spouse, the other spouse may
petition for a divorce under Section 13(1)(ii) on the ground that
the respondent has ceased to be a Hindu by conversion to
another religion.496 An interpersonal conflict of law rule is laid
down : when a spouse to a Hindu marriage converts to another
religion, on an application for divorce by the unconverted
spouse, the court applies the reformed Hindu law.
As in the Dissolution of Muslim Marriage Act, 1939, the
Hindu Marriage Act, 1955 does not state whether the Hindu law
is to be applied as lex celebration is or as lex personal of the
parties at the time of the marriage, or indeed as the lex
personam of the petitioner at the time of the suit. It may be
remarked that under the Hindu Marriage Act, 1955 a divorce
may be granted by the court to the petitioner who is the
unconverted partner and whose personal law is still the law
under
which
the
marriage
was
celebrated.
Under
the
Dissolution of Muslim Marriage Act, 1939, by contrast, a

divorce may be granted by the court under Section 2 of the Act
495
496
The Hindu Marriage Act, 1955, Section 13(I)(ii) Any marriage solemnized,
whether before or after the commencement of this Act, may on a petition presented
either by the husband or the wife, be dissolved by a decree of divorce on the
ground that the other part II, has ceased to be a Hindu by conversion to another
religion.
Apostasy from Hinduism without a conversion, to another religion does not
provide the ground for a divorce petition by the other spouse, at least because in
law the apostate is still a Hindu governed by Hindu law.
241
of the wife, whose personal law no longer corresponds with the

law under which the marriage was celebrated. Presumably the
difference lies in the fact that in Muslim law, the husband can
divorce his wife by talaq. In traditional Hindu law the spouse
who remain a Hindu has no remedy, the Section 13(1) (ii) is
introduced to alleviate the plight of such person.497
Though the courts does not possess jurisdiction to try a
suit brought by a non- Hindu spouse for divorce under Section
13 (1)(ii) of the Hindu Marriage Act, because under Section 2(1)
of the Act, it is expressly stated that the his wife by talaq. 498 Act
shall apply to a Hindu who converts to Islam or Christianity is
no longer a Hindu for the purpose of the Act. Put on analogy it
may be constructed
that the non-Hindu spouse should be
permitted to petition on any grounds under Section 13 of the

Hindu Marriage Act, 1955, 13 a because this section state that
the court may grant a divorce on a petition presented by either
the husband or the wife.
The relationship between the Hindu Marriage Act and the
Dissolution of the Muslim Marriage Act has been expressed in a
serious of proposition by David Pearl
1. If either spouse of the marriage which was celebrated in
Hindu for converts to Islam, the Hindu partner can
petition for a divorce for this reason under section 13 (I)
497
498
Peral David, Interpersonal conflict of Laws India, Pakistan and Bangladesh, p.

66-67.
Jatio vs. Jatio, 1967, P.L.D. SC 580
242
(ii) of the Hindu Marriage Act, 1955.

2. If the wife of a marriage which was celebrated in Muslim
from a converts to Hinduism, then the wife can petition
for a divorce on any of the ground mentioned in Section 2
of the Dissolution of Muslim Marriage Act, 1939. The
renunciation of Islam by itself, however, does not provide
any ground for a divorce to such wife.
3. If either spouse of a marriage celebrated in Hindu from
converts to Islam, it is submitted that the Hindu apostate
is barred from instituting a petition for a divorce under
Section 13(1) of the Hindu Marriage Act, 1955.
4. If a wife of a marriage celebrated in Muslim form converts
to Hinduism, then the marriage will not be automatically
dissolved but the husband can divorce.
5. If the husband of a marriage celebrated in Muslim from
converts to Hinduism, then the wife may have cause to
petition for divorce, but not for this reason alone, under
Section 2(viii) (a) or Section 2(viii) (e) of the Dissolution of
Muslim Marriage Act, 1939.499 Though the traditional
Muslim doctrine of apostasy provides that the marriage
is dissolved ipso facto when the husband
499
(a)
(b)
(c)
converts to
The Dissolution of Muslim Act, 1939, Section 2: A woman married under

Muslim law shall be entitled to obtained a decree for the dissolution or her
marriage on any once or more of the following grounds :
viii- that her thousand threat her with cruelty, that is to sayHabitually assault her or makes her life miserable by cruelty of conduct even if
such conduct does not amount to physical ill treatment.
Obstructs; he in the observance of her religious profession or practice.
On any ground which is recognized a valid for the dissolution of marriages under
Muslim law.
243
another religion.500
6. Finally, there are two further possibilities, First, in a
marriage celebrated in Hindu from, the husband
may
convert to Islam and purports to divorce his wife by talaq.

It is submitted that the talaq should not be recognized in
this situation. Second, in a marriage celebrated in Muslim
form, the husband may convert to Hinduism and allege
that the court has jurisdiction to grant a divorce under
the terms of the Hindu Marriage Act. It is submitted that
the attempt should fall, although it is submitted that
the attempt would fall, although it is admitted that there
is nothing
is the Act
to bar jurisdiction in these
circumstance either on the ground that the respondent is

a non-Hindu or alternatively
that the marriage was
celebrated in a non-Hindu from. In any event, it is

contended that the government law in this situation in
Muslim law, and under this law,
the marriage, is
dissolved ispo facto on the conversion of the husband.501

It will be appropriate to have a look at the other provisions
with regard to conversion under different statues. Section 10 of
the Indian Divorce Act, 1869 provides a Christian wife with a
ground for divorce if the husband converts to another religion
and goes through a form of marriage with some other woman. 502
500
501
502
Abdul Ghani vs. Aziz- ul-Haq. 1912, ILR 39 Cal 409

Hindu Marriage Act, Section -5A.
Indian Divorce Act, 1896, Section -10 Any wife present a petition to the
District Court or to the High Court, praying that her marriage may be dissolved on
244
In other words, we may say that a non-Christian spouse may

petition for divorce, so long as the respondent professes the
Christian faith. Similarly, Section 32 (J) 503 The Parsi Marriage
and Divorce Act, 1936 provides that either the husband or the
wife may petition for divorce on the grounds that he other party
has ceased to be a Parsi. On procedural requirement under this
section is that no divorce shall be granted on this ground if the
suit has been filed for more than two years after the plaintiff
has come to know of the fact.
The Special Marriage Act, 1954 permit couples to opt for a
civil marriage ceremony, or to register their existing marriage
under the Act which has been celebrated in a religious form. 504
Irrespective of the personal laws of the parties at the time of
marriage or at any time in future , a marriage celebrated or
registered under this Act is regulated by the provisions of this
Act in relation to any possible matrimonial relief. Except in the
case of marriage between two Hindu, the Indian Succession Act,
1925 regulates the succession to the property of any person
whose marriage has been solemnized or registered under this
503
504
the ground that, since the solemnization thereon, he husband has exchanged his
profession of Christianity for the profession of some other religion, and gone
through a form of marriage with another woman.
The Parsi Marriage a Divorce Act, 1936, Section 32 (j) Any married person may
sue for divorce on any one or more of the following grounds, namely(j) that the defendant has ceased to be Parsi.
The Special Marriage Act, 1954, Section -15. Any marriage celebrated, whether
before on after the commencement of this Act, other than a marriage solemnized
under the Special Marriage Act, 1872, or under this Act, may be registered under
this Chapter by Marriage officer in a territory to which this Act extends.
245
Act. The Hindus who marry under this Act, are now governed
by Hindu Succession Act, 1956 with regard to succession of the
property.505 Section 21-A of the Special Marriage Act, 1954 (as
amended by the Act of 1976) excludes Hindu from the effect of
Section 19 and Section 21 of the Act. Section 19 affects a
severance of any member of an undivided family who professes
Hindu, Buddhist, Sikh or Jain religion. Cumulative effect of
these sections are where two Hindus inter marry, Section 19
will not be applicable. Subject to Section 19 however, a marriage
under the Special marriage Act, 1954, does not affect any
vested rights of inheritance under the particular personal laws
of the parties to the marriage.
Concluding the above discussion it may be noticed that
any of the above statue on book does not provide any
satisfactory accepted choice of law rule which can be applied in
the conflicting situation. In any event, the law of the celebration
of the marriage and the personal law of the parties at the time
of the marriage will usually be identical so a choice of law
governing the dissolution of the marriage qua lex celebration or
qua lex personae will not be necessary.506
505
506
The Special Marriage Act, 1954 Section 21(a) Where the marriage is
solemnized under this Act or any person who professes the Hindu, Buddhist, Sikh
or Jain religion with a person who profess the Hindu, Buddhist, Sikh, Jain religion,
Section 19 and Section 21 shall not apply and so much of section 20 and creates a
disability shall also not apply.
Pearl, David, op. cit
246
Now we fare to see the outlook of the court when they

have to face such type of cases. In Ayesha Bibi vs. Suboth
Chandra Chakravarty,507 the plaintiff and the defendant were
Hindu Brahmins married in 1941, In 1943 the plaintiff was
converted to Islam, and then offered Islam to defendant, her
husband. As he refused
conversion to Islam, the plain tiff
brought the suit for dissolution of marriage converted to Islam,

and then
offered
Islam to defendant, her husband. As he
refused conversion to Islam, the plaintiff brought the suit for

dissolution of marriage. The Court after considering the
position under Mohammadan law, examined if the Hindu law
could be administrated in this case. Since there was no Hindu
marriage 4 Act, 1955, it came to the conclusion that the Hindu
law neither provided that after one spouse forsaking the
religion, the marriage was dissolved, nor did it lay down that it
was not dissolved. The court also considered the fact that if the
marriage was not dissolved. The court also considered the fact
that if the marriage was not dissolved, the defendant could not
have control over his Mohammadan wife. The court observed
that, in the absence of any general law, to be administered in
this case, and since the court had assumed jurisdiction, it was
for the court to make a choice of law, to be applied by it to such
a case of conflict
507
of personal laws. If there are no statutory
ILR (1945) 2 Cal. 405.
247
direction the court would have to make its own choice of law in
accordance with the general juristic principles as best as it can.
The court, therefore, after considering the implication of
both the Mohammadan law and Hindu law, chose to administer
Mohammad law in this case and granted
plaintiff
a decree to the
dissolving her marriage with the defendant as the
court considered that its decision was in no case contrary to

the public policy.
With due respect to the decision of court, it is submitted
that the decision of the court is against the rule of justice and
contrary to public policy. The decision cannot be followed in the
present time. Though in our constitution freedom of religion is
guaranteed to every person,508 but
this freedom
cannot be
practiced to the prejudice of another person. As in the present

case, since the Hindu wife could not get divorce from her
husband under the Hindu law so she, with the intention to get
rid of her husband, renounced, her faith and embraced Islam.
Here the wife should have been punished for her misconduct
but she was rewarded to impose her fait on the husband and in
case of dissent claimed dissolution of marriage. Even under the
Hindu Marriage Act, 1955 the converted spouse has not been
given any right to claim divorce on this ground. Here the proper
course would have been that the converted spouse should not
508
Article 25 of the Indian Constitution : (1) Subject to public morality and health
and to the other provision, practice and propagate religion.
248
be given any right to dissolve her marriage on the ground of

difference
of
religion.
Their
marriage
should
have
been
immediately and automatically converted to a civil marriage and

civil law should be applied i.e. the special marriage Act, 1872
-1954. It will be in the real spirit of Article 44 of our
Constitution.509 These are the appropriate cases where the
uniform Civil Code should be applied. This will serve at least
two purpose : First, the children of such union will continue to
get affection of the parents, for there is no ground to get divorce
on the ground of change of religion under the Special Marriage
Act, and; second, if the spouse think that the charm of the
matrimonial life has gone and no use of keeping empty shells
together
then they may go the court to seek divorce on the
ground of mental cruelty (because a change of religion amounts

to mental cruelty).
As the defendant did not contest this case, the courts
decision in the circumstances of the case might be correct from
the practical point of view. But as it has been observed that this
decision was against the rule of justice and right. In Robaba
Khanum vs. K. B. Irani,510 two Zoroastrian married in 1927 in
Iran in accordance to Zoroastrian rites. Thereafter the wife got
converted to Islam
and offered Islam to her husband
who
refused to accept it. She filed a suit in the Bombay High Court
509
510
Article 44, The state shall endeavor to secure for the citizens a uniform civil
code throughout the territory of India.
I.I.R, (1948), Bomb. 223.
249
for a declaration that their marriage stood dissolved it will be

recalled that that in classical Islamic law, a marriage cerebrated
in non-Muslim from between two non-Muslim in a non-Muslim
country is usually brought to an end three months after the
wife conversion to Islam, without
any intervention form the
court. If, however, the conversion takes place in Duriul-Islam,

and the other spouse in resident there, a Muslim judge offers
the Islamic faith to the non-Muslim spouse and if the faith is
refused three times, the judges separates the particles. The wife
in this case pleaded for the Muslim law. After her conversion
she became a Muslim governed by Muslim personal law. She
claimed that either of the two rules of Muslim law should
govern the case. Mr. Justice Blagden rejected the alternative
plea. He observed :
The law of India is not Mohammadan law nay more that it
is Hindu law or Christian ecclesiastical law, but the
Mohammadan law is by virtue of the general law of India
the personal law of the minority of Indians, regulating their
relations with one another it differs in degree but not in
kind, from (say) by the law of the Willingdon Club.511
It is true that a convert is generally subject to the
personal law appropriate to his new religion as against that
511
Robaba Khanum vs. K. B. Irani , I.I.R, (1948), Bomb. 232.
250
appropriate to his old one. But why should this apply to the
wife or husband of the convert.512
Having held Muslim law to be inapplicable to the case,
Mr. Justice Blagden decided the case according
equity and good conscience. According
to justice,
to this criterion, the
wife contention was so monstrous and absurd that it carried its

own refutation with it. On appeal, Blagden Js decision was
upheld. The Muslim personal law was held inapplicable, and
therefore the Appeal Court decided
the case in accordance
with justice and right. And it is not in accordance with justice

and right. And it is not in accordance with justice and right that
on the conversion of one of the parties to the marriage to Islam
it should be held that the marriage stands dissolved.513
The same view was taken by the Calcutta High Court in
Rakeya Bibi vs. Anil Kumar Mukherji,514 wherein the parties were
Hindu at the time of marriage. The wife embraced Islam. The
marriage was never consummated . She offered Islam to her
husband who refused to accept it. She then petitioned the court
for a declaration that her marriage was dissolved. Ormand J.
submitted the case of Special Bench. The Bench examined the
relevant rule to Muslim law relied
upon by the plaintiff. In
Chakravortti Js opinion, the rule of possibly may have been

irrelevant to the type of case before the Bench. In our opinion,
512
513
514
Robaba Khanum vs. K. B. Irani , I.I.R, (1948), Bomb. 233..

Robaba Khanum vs. K. B. Irani , I.I.R, (1948), Bomb. 263.
ILR (1948) 2, Cal. 119.
251
the rule is intended to apply to only to a case where both the

parties to the marriage are subjects of an Islamic country, both
go abroad, one of them embraces Islam is in the foreign
country,
and return to his or her native land, but the other
remains in the foreign country. In such a case, the Islamic law

relieves one of its followers, i.e. the convert, of his
marriage with an unbeliever by providing
or her
for its automatic
dissolution, because the Islamic State, under the protection of

which the convert lives and which has a responsibility toward
him or her as of one of its Muslim subjects, cannot act in or her
as of one of the Muslim subjects, cannot act in personam
against the other spouse and tender Islam to that person.515
Chakravortti J. admits that there is no authority for this
view, and does not base the courts decision on this suggested
interpretation
of the Muslim law. The problem, as the judge
formulated it, was whether or not to apply the personal law of

the plaintiff to the case before the Bench. If one of the parties to
a marriage brings about a conflict of personal law by forsaking
their common religion and adopting another, can the new
personal law of the converted spouse prevail over the old
personal law retained by the unconverted spouse, under which
the marriage was celebrated. Chakravortti J. answered this
question by deciding that the personal law of the converted
spouse die not govern the case. The Plaintiff was unable to
515
Rakeya Bibi vs. Anil Kumar Mukherji, ILR (1948) 2, Cal. pp. 129-30.
252
prove to the satisfaction of the Bench that there was any law in
force in India which brought the rule of Muslim law into
prominence as the law governing the dissolution of the
marriage. It was not just nor right to apply the rule of Muslim
law to the case.516
The Bench decided that the extra-judicial Muslim law
cannot apply to the case, because there are two parties to a
marriage, and therefore, the marriage still subsists until
judicially dissolved or dissolved by some rule of law recognized
by the courts other than Muslim law. No choice of law was
made, although it can be argued that the formula was used in
negative sense; the refusal to recognize an alleged accomplished
act.
This formula of justice, equity and good conscience or
justice and right was again applied to solve the problem of
the interpersonal conflict of laws in Sayeda Khatoon vs. M.
Obadih. In this two Jews domiciled
marriage
in India performed their
in India in 1943 by Jewish ceremony. In 1945 she
embraced Islam and offered it to her husband. On his refusal to

accept it, she launched divorce proceedings. Why should
Islamic law be preferred
to the Jewish law is a matrimonial
dispute between a Mohammadan and a jew, particularly when

the relationship was created under the jewish law? Queried Mr.
Justice Lodge. Dismissing the petition he held that Muslim law
516
Rakeya Bibi vs. Anil Kumar Mukherji, ILR (1948) 2, Cal. pp. 129-30.
253
should not govern the dispute, and that he was bound by

justice and right to conclude that the marriage still subsisted.
On the basis of the above decision two proposition may be
formulated:
(a) If both the parties change their religion, then they will be
governed by the new personal law:
(b) If one of the spouses alone changes his / her religion,
then no matrimonial relief can be granted to the
converted spouse on the basis of his/ her new personal
law and the matter will be decided by the principle of
justice, equity and good conscience.
The first view appears to just but there is a possibility of
its abuse. A couple, to whom no matrimonial relief is available
under its personal law, may conveniently convert to a religion
under which desired matrimonial relief can be obtained. The
second proposition does not provide a solution to the problem:
it is merely its negative disposal. Now, does it mean that parties
can claim only that matrimonial relief which is available to
them under their original personal law? As is evident from
Section 13(1) (ii) of the Hindu Marriage Act, 1955, 517 if one of
the spouse ceases to be Hindu by converting
faith, then the other spouse can seek divorce
to some other
on the that
ground. Under Muslim law apostasy from Islam operates as a

517
Khambatta vs. Khambatta , AIR 1935 Bom. 5.
254
complete and immediate dissolution of marriage. But, again it is

one sided solution of the problem. The question still remain :
should the convert spouse not be entitled to any relief?
The solution of the above problem may be found in the
provision of the Native Convert Dissolution
of Marriage
Act,
1886- a master piece missionary legislation by the British

rulers of India. Under the Act, if one of the native spouse
converts to Christianity and or account of this if other spouse
abandons him or deserts him for six months or more, than a
divorce can be passed on the petition of the convert spouse. If
the respondent is wife, then the court would postpone
the
consideration of the petition for one year to enable her to accept

the religion and to cohabit with him. If she does not do during
that period, then the decree of divorce would be pronounced.
Prof. Paras Diwan is of the opinion that if a similar law is made
available to the people
of all communities in India it would
provide a socially desirable solution to a problem which arises

on account of the change of religion by one spouse and nonaccommodation by the other spouse to this changed situation.
He further suggests that provision applicable to the members of
all communities should also enacted
on the lines of Section
13(1)(ii) of the Hindu Marriage Act, 1955. So long as India do
255
not have a uniform family law, such a solution of the intercommunal conflict of laws is necessary.518
With due respect to the suggestions of the learned
Professor, it is humbly submitted
that a more
desirable
solution may be found to this problem. As I have already

submitted , that in such situation the provisions of the Special
Marriage Act is in reality an Indian Marriage Act, which applies
to all Indian Communities irrespective of caste, creed or
religions. The persons who converts to another religion is guilty
of matrimonial misconduct
therefore she/ he should
not be
given any privilege to dissolve the marriage. Moreover, the

Special Marriage Act, 1954 is not affected by the change of
religion and therefore the marriage can be protected from being
dissolved. It is further submitted that all marriages where one
spouse changes his/her
religion should be considered as a
secular marriages governed by the Speical Marriage Act, 1954.

I think that this will not be a wrong interpretation because in
India two persons cannot marry if they belong to different
religions except under the Special Marriage Act, 1954. There is
no harm if pre and post marriage situations are governed by the
same
law.
More
ever
it
cannot
be
forgotten
that
the
establishment of a secular society is the aim and goal of our
518
Diwan Paras India and English private international Law- A Comparatives study,
1st Ed. P. 213.
256
Constitution and such an interpretations will be in tune to

Article 44 as well as the preamble of the Constitution.
But what appears from the judicial work that has been
done by Indian courts in the cases cited above relating to the
matrimonial causes and relief thereof is that the Indian courts
are not unanimous in applying either the principle of lex loci
celebrations or lex domicile or the lex personnam. Further they
are not unanimous in giving effect to the change of status or
change of religion while determining the issues in question. The
judicial approach seems to be uncertain and not guided by any
well established principle of law. However, the judicial approach
apart from being humanitarian should also be guided by the
principles of law.
Recently Delhi High Court in Madan Mohan Behl vs.
Veena Rani,519 got an opportunity to decide a case with regard to
conversion under Section 13(1) (ii) of the Hindu Marriage Act,
1955. In this case the court held that till the decree of divorce
on the ground of apostasy is passed the marriage of the
husband with the wife is not dissolved.
Conversion of a Hindu wife to Islam does not ipso facto
dissolve the marriage tie with her husband. She continues to be
his wife in spite of her conversion until and unless the court
passes the decree of divorce.
519
(1984) DMC 249 (Delhi)
257
In another case of Vilayat Raj vs. Sunila,520 the Delhi High

Court held that the marriage sought to be dissolved under the
Act has to be a Hindu marriage. It can
be dissolved only in
accordance with the provisions of the Act. It would, therefore,

appear that Section 2 of the Hindu Marriage act, 1955 says that
this Act applies to any person who is a Hindu, it also
contemplates a person who was a Hindu at the time of marriage
but has since ceased to be a Hindu at the time when the
petition presented. The relevant date on which both the parties
are required to be Hindus in order for the Act to apply is the
date of the marriage. The court further held that religion is a
matter of ones conscience and freedom
of religion has been
guaranteed under our Constitution. A party who has married

under this Act cannot be debarred from changing his religion.
Of course, if he changes his religion, he must be prepared for
the consequence there of i.e. a likelihood of a petition under
Section 13(1) (ii) of the Act.521 But if no such petition is moved
and he is able to establish that he has been treated with
cruelty, he is surely entitled to relief, unless, there are order
reasons for not granting relief.
The Court further held that even if both the parties of a
Hindu Marriage get converted to a religion other than Hindu,
their earlier Hindu Marriage can be dissolved only under the
520
521
AIR 1983, Delhi 51

Khambatta vs. Khambatta , AIR 1935 Bom. 5..
258
provision of this Act. To hold otherwise, would lead to very

unsettling situation for society. The Court further held that a
marriage
the
solemnized between two Hindu in accordance with
Hindu
ceremonies
and
rites
must
be
dissolved
in
accordance with the Act, and a petitioner or a respondent or

both who have since ceased to be Hindu can approach the court
for this purpose. For, if both the parties to the marriage
together present a petition for divorce
by mutual consent in
terms of Section 13(B), the fact that since marriage they have
both converted to some other religion should not stand in their
way.
The court further observed that the concept of marriage
as between Hindu and Muslim is very different. A Muslim
marriage is a matter of contract. A Hindu marriage was in the
past primarily and essentially a sacrament. Prior to the present
Act, 1955, the Hindu marriage was indissoluble. The Hindu
marriage solemnized
in accordance
with the conditions and
provisions of the Act, is a voluntary union between one man

and one women to the exclusion of all others. The dissolution of
such a marriage
can only be in accordance with the statue.
The change of religion by one of the parties does not

automatically dissolve the marriage but provides a ground to
the other party for dissolution Conversion also does not pre se
operate to deprive the party of rights which maybe otherwise
available to him under the Act.
259
It is submitted that this decision of the Delhi High Court

is contrary to the established principle of conflict of laws. This
may be criticized on the following ground: First it is an
established principle of conflict of laws that when both the
parties to a marriage convert to another religion then they will
be governed by their new faith and not by the law which was at
the time of the solemnization of marriage; second lex loci
celebration is useful only for determining
the validity of the
marriage contract and rights and obligations arising out of the

marriage are governed by the lex domincilii,522 according
to
conflict of laws and third, application of such principle will not

provide a satisfactory solution for the parties in cases of interpersonal conflict of laws. It is, therefore, earnestly submitted
that such cases of inter-personal law should be decided by a law
which is secular and does not favour any particular personal
law. Fortunately we have such a law, that is the Special
Marriage Act, 1954.
In Sarla Mudgal vs. Union of India,523 the apex court has
adopted
a different attitude of the problem relating to inter-
personal conflict between Muslim and Hindu. In this case there

were four petitions under Article - 32 of the Constitution of
India. In first petition, there was one Meena Mathur who was
married to Jitendera Mathur in 1978. Three children were born
522
523
AIR 1935 Bomb. 5

(1995) 3 SCC 635.
260
out of the wedlock. In 1988 the petitioner came to know that

her husband had solemnized second marriage with one Sunita
(Fatima). The marriage
was solemnized after they converted
themselves to Islam and adopted Muslim religion. According to

the petitioner conversion of her husband to Islam was only for
the purpose of marrying Sunita and circumventing the
provisions of Sec. 494 IPC. On the other hand Jitendra Mathur
asserts that having embraced Islam, he can have four wives
irrespective of the fact that his first wife continues to be a
Hindu. In a second petition, interesting Sunita alias Fatmia was
the petitioner. She contended that she
Mathur who had earlier being married
along with Jitendra

to Neena Mathur
embraced Islam and there after got married. A son was borne
to her. She further stated that
after marrying her, Jitendra
Mathur under
of his first Hindu wife had
the Influence
reverted back to Hinduism and had agreed to maintain his first

wife and three children. Her grievance is that she continues to
be a Muslim, and is not being maintained by her husband and
has no protection under either of the personal law.
The Supreme Court in this case has held that Hindu
Marriage Act strictly enforces monogamy. A marriage preformed
under this Act, can not be dissolved except on the grounds
available under Section 13 of the Act. In that situation parties
who have solemnized the marriage under this Act remain
married even when the husband embraces Islam is pursuit of
261
another wife. Till the time of Hindu Marriage is dissolved under

the Hindu Marriage Act, none of spouses can contract a second
marriage. Conversion to Islam marrying again would not, by
itself, dissolve the Hindu Marriage. A second marriage by an
apostate under the shelter of conversion to Islam would
nevertheless be a marriage involution of the provisions of Hindu
Marriage Act by which he would be continuing to be governed
so far as his first marriage under that Act is concerned despite
his conversion to Islam. The second marriage of an apostate
would, therefore, be illegal marriage qua his wife who married
him under the Hindu Marriage Act and continues to be a
Hindu. Though the marriage solemnized by a Hindu husband
after embracing Islam may not strictly be a void marriage under
the Hindu Marriage Act because he is not longer a Hindu but
between the apostate and his Hindu wife. The second marriage
is in volution of the provision of the Hindu. Marriage Act and
as such would be non est.
The court has further observed that the expression void
defined under Section 11 of the Hindu Marriage Act has a
limited meaning within the scope of the definition under the
section. On the other hand the same expression has different
purpose under section 494 IPC and has been used in wider
sense. A marriage which is in violation of any provisions of law
would be void in terms of the expression used under Section
494 IPC. The real reason for the voidness of the second
262
marriage is the subsistence of the first marriage which is not

dissolved even by the conversion of the husband. The second
marriage by a convert, therefore, being in violation of the Hindu
Marriage Act would be void in terms of section 494 IPC. Any act
which is in violation of mandatory provisions of law is pre se
void.
The above interpretation of section 494 would advance the
interest of justice. It is necessary that there would be harmony
between the two systems of law just as there should be
harmony
between
two
communities.
The
result
of
the
interpretation, would be that the Hindu law on the one hand

and the Muslim law on the other hand would operate within
their respective ambits without
trespassing on the personal
laws each other. Since it is not the object of Islam nor is the
intention of the enlightened
even Muslim community that
Hindu husband should be encourage to become Muslim merely

for purpose of evading their own personal laws by marrying
again, the courts can be persuaded to adopt a construction of
the law resulting in denying the Hindu husband converted to
Islam the right to marry again without having his existing
marriage dissolved in accordance with law.
In Lily Thomas vs. Union of India,524 there was a lady
Sushmita Ghosh, who was the wife of Shri G.C. Ghosh (Mhod.
Karim Ghazi) filed a writ petition stating that she was married
524
AIR 2000 SC 1650
263
of shri G.C. Ghosh in accordances with the Hindu rites in 1984

and since then they were happily living at Delhi. In 1992,the
husband told he wife that she should in her own interest
agreement as he had converted to Islam and therefore he would
remarry. In fact the husband had embraced Islam and fixed a
date to marry Miss Vaneeta Gupta.
The court in this case observed that for the past several
years it has become very common amongst the Hindu male who
cannot get a divorce from their first wife, they convert to Muslim
religion solely for the purpose of marriage. This practice is
invariably adopted
by those erring husband who embrace
Islam for the purpose of second marriage but again became

reconvert so as to retain their rights in the properties etc. and
continue their services and all other business in their old name
and religion.
Upholding the decision in Saral Mudgal Court Case, the
Supreme Court has held that the second marriage of a Hindu
husband after conversion to Islam without having his first
marriage dissolved under law would be invalid, the second
marriage would be void in the terms of provisions of Section
494 IPC and the apostate husband would be guilty 7 of the
offence under Sec 494 IPC doses not lay down any new law. It
cannot be said that the second marriage by a convert male
Muslim has been made offence only by judicial pronouncement.
264
The court has only intercepted the existing law which was in
force. It is settled principal that of a provision of law velas back
to the date of law itself and cannot be prospective from the date
of the judgment because concededly the court does not legislate
but only five an interpretation to an existing law. It cannot
therefore be said the decision in Sarla Mudgal case,525 has to be
given prospective operation and that the decision cannot be
applied to persons who have solemnized marriages violation of
the mandate of law prior to the date of judgement.
The court has further observed
Hindu who has taken
that making convert
second wife offer conversion liable for
prosecution under Sec. 494 of the IPC is not against Islam. The
concept of Muslim law is based upon the edifices of shariat.
Muslim law as traditionally interpreted and applied in India
permits more than one marriage during the subsistence of one
and another though capacity to do justice between co-wives in
law in condition precedent. Even under the Muslim law plurality
of marriage is not unconditionally conferred upon the husband.
It would, therefore, be doing in justice bigamy notwithstanding
the continuance of his marriage under the law which he
belonged before conversion. The violators of laws who have
contracted the second marriage cannot be permitted to urge
that such marriage should not be made subject-matter of
525
1995 AIR SCW 2326
265
prosecution under the general penal law prevalent in the

country.
Marriage is the very foundation of the civilized society.
The relation ones formed, the law steps in and binds the parties
various obligations and liabilities there under. Marriage is an
Institution of which the friable at large is deeply interested. It is
the foundation of the family and in turn of the society without
which no-civilization can exist. Past several years, it has became
very common amongst the Hindu males who not get a divorce
from their first wife, they convert to Muslim religion solely for
the purpose of the marriage. This proactive is invariably
adopted by those erring husband who embraced Islam for the
purpose of second marriage but again reconvert so as to retain
their rights in the properties etc. and continue their service and
all other business in their old name and religion. Of course
Islam never encourage Conversion for the purpose of second
marriage so those persons who get convert for
the above
purpose should be dealt with accordingly. View from this angle

the foregoing two decisions of the Supreme Court
may be
appreciated. But the sweeping remarks by the Apex Court,

pleading for uniform civil code applying to all irrespective of
their religion is not tenable. India is a secular
country and
every citizen has a freedom of religion (which includes right to

propagate and rights to profess) therefore, if a person converts
to Islam in its spirit and conscience (otherwise than the
266
purpose of having a second wife) should be governed by his

new personal law. Infact the conflict a common civil code and
not uniform civil code may be enacted.
C. Conflict between Christian Law and Muslim Law

Now coming to next complex problem of Muslim Christian
marriage where the lex celebrations and the lex personam are
different. According to law a Muslim male can marry with any
Kitabiyya women. In a situation where a Muslim male marry
with a Christian female in Muslim form it would appear that
such
a marriage would be recognized by the general law
notwithstanding
Section 4 of the Christian marriage Act,
1872.526 Here it is submitted that the section 4 of the Christian

marriage and Divorce Act 1872 should be interpreted in such a
way as to harmonies with the general Muslim law. It should,
therefore, be read as every marriage purporting to be Christina
marriage shall be solemnized
This interpretation found from the court in Emperor vs.
Maha Ram,527 Where Walsh J. said that obiter In my opinion it
deals with Christian marriage, and with Christina marriage
alone The Act does not prohibit even a professing Christina
from marrying otherwise than under the act if he wishes to do
526
527
The Christian Marriage Act, 1872, Section 4 says Every Marriage between
persons, one or both of whom is (or are) a Christian or Christians , shall be
solemnized in accordance with the provisions of the next following section; any
such marriage solemnized otherwise than in accordance with such provisions shall
be void.
(1918), ILR 40 All 393
267
so.528 If such a construction is correct then it should be an

acceptable proposition that he Muslim husband of a Christian
girls married in Muslim form has the capacity to divorce his
wife by talaq. In such situation it is doubtful whether the court
would assume jurisdiction to grant a divorce to the wife under
the provision of Indian Divorce Act, 1869. Though there is no
statutory prohibition in the Indian Divorce Act, 1862 against
the assumption of jurisdiction in a case where the marriage was
celebrated in a non-Christian form. The court may possibly
acquire jurisdiction under the Dissolution of Muslim Marriage
Act, 1939 because the marriage is celebrated under Muslim law.
It may, therefore, be suggested that the law which governs
the dissolution of a marriage
between a Muslim male and a
Christian female celebrated in Muslim form is the law which is

the law
of the celebration and of the personal law of the
husband both at the time of the dissolution and at the time of

the marriage.
The parallel to this rule should be that in the case where
a Muslim male marries a Christian girl in non Muslim form
(for instance in English register office) then the law governing
the dissolution should be the law which is both the lex
celebrations and the personal law of the wife.
528
Emperor vs. Maha Ram, (1918), ILR 40 All 404.
268
A dispute of the type last referred to was before the

Pakistan Supreme Court
in Jatoi vs. Jatoi,529 where in May
1959 Marina, a Christian girl domiciled

Nuruddin Jatoi, a Muslim
domiciled
student in London, were
married
in Spain, and
in Pakistan and a Bar

at a registrar office in
London. The marriage was not a happy one and within a year
the husband returned to Pakistan. The wife and their newly
born son remain in London. In March, 1961, Jatoi married a
second wife, a Swedish girl, who had converted to Islam. The
marriage ceremony was celebrated in a mosque in Karachi in
Muslim form. Meanwhile, Marina applied to the Magistrates
Court in London for maintenance under the Matrimonial
Proceedings (Magistrates Courts) Act, 1960. In 1963, Marina
obtained a maintenance order which was then registered in
Pakistan and confirm by the Karachi District Magistrates
Court. The husband failed to remit maintenance and thus, in
1965, the wife traveled to Karachi with the intention of seeking
enforcement. Whilst she was in the city, Jatoi repudiated his
wife by talaq, and sent a copy of the talaq to Chairman of the
local Union Council as required by the Muslim Family Law
Ordinance (1961).530 After 90 days Jatoi applied to the District
Court for revision of the English maintenance order on the
ground that he was no longer marked to Marina. According to
Muslim law, the husband is not obliged to maintain an ex-wife
529
530
(1967) PLD SC 580, Pearl, David op. cit. pp. 71-72.

(1967) PLD SC 580, Pearl, David op. cit. pp. 71-72..
269
beyond a three month period (Known as Iddat Period) after the

talaq has become irrevocable. The District Court refused to
rescind the registration on the order, but on appeal to the High
Court of West Pakistan the ruling of the lower courts was
reversed. Marina appealed to the Supreme Court of Pakistan.
Her appeal was rejected by the majority (Yaqub Ali J.
dissenting). The majority took the view that the talaq was
effective to dissolve the marriage between Marina and Jatoi.
Pakistani law was applied as the lex domicilii : under the
rules Of Private International Law, the lex loci celebration is
such has nothing to do with the question of divorce which is a
matter solely for the law that happens to be lex domicnillii of the
parties, at the time of the suit. This may well be different from
the law that governed the solemnization of the marriage.531
According to S.A. Rahman J. If the Muslim husband is
married to a Christian woman in a form recognized by Muslim
law, or to a non-Christina woman, there is no reason why
Section 7 b of Muslim Family Law Ordinance would not
apply.532
It is, therefore, clear that whenever there is an internal
conflict between the Muslim law (the personal law of the
husband) and the provision of the Indian Divorce Act, 1869 (the
marriage was celebrated under the British Marriage Act, and
531
532
(1967) PLD SC 580,

(1967) PLD SC 592..
270
the wife was at all times a Christina), the curt chooses to apply
the Muslim law. According to the The languages. has
therefore be constructed in the sense that if one of the parties
to the marriage professed in the Christian faith, the marriage
can be dissolved only by decree of the court under the Act and
not otherwise. A contrary view would lead to court there is no
provision in the Divorce Act, 1869 or the Christian Marriage
Act, 1872 whish in express terms, prevents a Muslim husband
of a Christian woman from having resort to this personal law for
the purpose of the dissolution of the marriage. But Mr. Justice
Yaqub Ali, dissenting rejected the argument accepted by the
majority that the Divorce Act, 1869, Section 2 is n enabling
Act.533 He said, anomalous result such as, if a Muslim husband
petitions to court under the Divorce Act, 1869 for his
dissolution of marriage with a Christian wife, he shall have to
private to the satisfaction of the curt that she has been guilty of
adultery and shall also be obliged to pay her alimony pendent
lite and costs of the suit as well as permanent alimony on
obtaining a decree for dissolution. On the contrary if the
Muslim law applies he can avoid all these obligations by
pronouncing talaq and bringing to an end the marriage by his
533
The Indian Divorce Act, 1869, Section 2 Nothing hereinafter contained shall
authorized any court to grant any relief under this Act except where the petitioner
or the respondent professes the Christian religion.
271
unilateral act. No husband would, therefore, ever make resort to

a court for dissolution of marriage.534
On the other hand, if Marina had petitioned for a divorce
in Pakistan, presumably, the courts would have assumed
jurisdiction under the Divorce Act, 1869, and not under the
Dissolution of Muslim Marriage Act, 1939, because Marian was
not married according to the rites of Muslim law. It will,
therefore, be slightly inequitable to permit the husband the
choice between Muslim law and the Divorce Act, and to deny
this choice to the poor wife.
It is submitted that the dissenting Judge has interpreted
the relevant statutes in a more positive way. If this case would
have arisen in Indian then I would submit that such case must
be decided by the Special Marriage Act, 1954. In this case
because of foreign element is involved therefore the court, first,
has to see whether it has jurisdiction to try this case. Since the
husband id domiciled and resident of India therefore the court
has jurisdiction to decide this case. After deciding the
jurisdictional issue, the court has to choose the law to apply. In
India there is no specific statue to govern such cases. If we
accept the view of the Pakistan Supreme Court
that if the
marriage has been solemnized in Muslim form or not (where

one party is a Muslim and domiciled in Pakistan) Muslim law
534
not contract marriage with a Kitabiya. Since a Christian is a Kitabiya. Since a
Christian is a Kitabiya so a marriage between a Muslim male with a Christian
Female is valid and such a marriage can be dissolve by talaq.
272
will be applied or if it is so solemnized in Christian form, Indian

Divorce Act 1869 will be applied (as opined by Justice Yaqub,
dissenting) then the decision will not be consistent with the
principle of equity, justice and good conscience. Here ultimately
we have to give overriding effect of one law over the other. It is
therefore, humbly submitted that in such circumstances a
secular law should be applied i.e. The Special Marriage Act,
1954. One may question that the marriage is not registered or
there is no relevant provisions in the Act to deal with such
problems then how this will be governed by the aforesaid Act.
True but a suitable amendment may be made in the Act
according to the line that all marriages solemnized under any
form shall, if interpersonal conflict arises, be governed by the
Special Marriage Act, 1954.
In an Indian case of John Jiban Chandra Dutta vs.
Abinash Chandra Sen.535 Dukhiram an Indian Christian married
an Indian Christian woman Sudakshina. He was subsequently
converted to Mohammedanism and contracted a marriage with
a Muslim woman Alfatenessa in a Mosque. The court had to
decide whether the second marriage was valid but in course of
his judgment. Mr. Justice Henderson said : It might be difficult
to say whether Dukhiram could have divorced Sudakshina by
talaq.536
535
536
ILR (1939) 2 Cal 12

John Jiban Chandra Dutta vs. Abinash Chandra Sen , ILR (1939) 2 Cal 16.
273
The House of Lords in Attorney General of Ceylon vs.

Reid,537 has held that the conduct of spouse who converts to
Islam has to be judged on the basis of the roof of justice, equity
and conscience. A matrimonial dispute between a convert to
Islam and his or her non-Muslim Spouse is not a dispute
where the parties are Muslim and, therefore, the rule of
decision is such a case was or is not required to be the Muslim
Personal Law. In such cases the Court shall decide the
contents of the disputes under the personal laws according to
justice equity and good conscience.
537
(1965) 1 All ER 812
Chapter VII
The Muslim Women (Protection of Rights of
Divorce) Act 1986: Parliament Initiative
after Shah-Bano Case
The Indian society is peculiar in its nature particularly, in
its
treatment
of
women
where
women
suffer
manifold
disabilities while mean have always an upper hand. 538 A divorce

carries with her many disqualifications. A girls in her teens
divorced by her husband, can thereafter accept only a man in
his mid fifties as husband or will have to remain unmarried
throughout
her life, while a husband who has divorced his
wife, can get a girl of sweet-seventeen, the next day. It will not be
far from truth to say that in the case of marriage and divorce,
this society continues to be a man's society. We can take judicial
notice of the fact, of several young girls suffering the agony of
life with all its privations and penury for no fault of theirs, after
they are divorced by their husbands and it is such hard cases
that perhaps induced and impelled the supreme law making
body of this country
to enact the provisions contained in
section 125 of the New Code (of Criminal Procedure, 1973).

The Muslim Women (Protection of Right on Divorce) Act,
538
Kunhi Moyin v. Pathumma, 1976 KLT 87 at 92 (per v. Khalid J.)
275
1986 drafted hastily with little consultation and rushed through

Parliament with little debate and a three-line Whip, was
designed
to pacify a segment of Muslim opinion which had
expressed dissent from the decision of the Supreme Court in

Mohd. Ahmed Khan v. Shah Bano Begum.539 The Act is open to
criticism on at least five grounds- fails to embody accurately
Muslim law, fails to provide a realistic and practical alternative
solution to the genuine hardships faced by divorced Muslim
women, is ambiguously and ineptly drafted, opens a Pandora's
box, is prima facie unconstitutional. Here the focus shall be
made on the latter three of these five points.
Shorn of its arbitrary and prejudicial terms depriving
Muslim divorcees of the protection to which they have, equally
with all other divorced Indian women, heretofore been entitled
under section 125 of the Code of Criminal Procedure 1973, the
1986 Act could possibly be seen as a small step towards
codification of Muslim personal law, the first such step in nearly
half a century after passing of the Dissolution of Muslim
Marriage Act, 1939. In this light, the 1986 Act might have
constituted a welcome move, were it not for the inept and
ambiguous manner in which it has been drafted.
The preoccupation with the question of maintenance for
divorced wives resulting from the Shah Bano controversy must
not be permitted to obscure the fact that the 1986 Act appears
539
AIR 1985 SC 945
276
to affect the maintenance rights of children. The curiously

drafted section 3 (1) (b) of the Act reads:
"Notwithstanding anything contained in any other law for
the time being in force, a divorce woman shall be entitled to
"Where she herself maintains the children born to her
before or after divorce, a reasonable and fair provision and
maintenance to be made and paid by her former husband
for a period of two years from the respective dates of birth
of such children."
Under Muslim law, the mother, irrespective of the fact that
she and the children's father may be divorced, has a preferential
right to the custody of the infant children of marriage. The
Hanafi law this right continues until a son reaches the age of
seven years and a daughter the age of puberty. The father is
responsible for the maintenance of his children during their
minority, irrespective of the fact that they are in the custody of
their mother. Sub-section (b) of section 3(1) of the At would
more appropriately have read as follows :
Where she has custody of infant children of marriage,
reasonable and fair remuneration for herself (in addition to
maintenance for each of the children as long as that child
remains a minor in her custody) during the period that the
children or any one of them below the age of two years. Had it
been so drafted, the sub-section would have reflected not only
277
Muslim law of maintenance of children, but also its provision to

the effect that infants should be nursed for two years and the
mother be paid by her husband for rendering this service. This
payment is clearly in addition to both the wife's right to be
maintained by her husband and the maintenance provision for
divorced wives.540
Given the obvious intention of the 1986 Act to oust the
provisions of section 125 of the code, section 3(1) (b) raises the
questions of what will happen to infants in the custody of their
divorced mother after they reach the age of two years? The Act
requires the father to give the mother something as long as the
child is below two years of age and if she herself maintains the
child, but it does not even require that this sum be equivalent to
the women's expenditure on the child's maintenance. Do the
sponsors of the Act really intend to "reform" Muslim personal
law so as to absolve a Muslim man from financial responsibility
not only for his divorces wife but also minor children in her
custody? Or to force the woman to lengthy and protracted civil
proceeding in order to realize maintenance for the children,
denying her the more expeditious route afforded by the code?
The wording of section 3(1)(a) is even more ambiguous : "a
reasonable and fair provision and maintenance to be made and
paid to her within
the iddat period by her former husband."
This appears to imply that the husband has two separate and
540
Enjoined by sura II, vers 241 of the Quran.
278
distinct obligations, viz.,
(i)
to make a "reasonable and fair
provision" for his divorced wife; and (ii) to provide "main nature
of
any
such
"provision"
and
"maintenance"
should
be
concluded, i.e., "within the iddat period".

On this reading, the Act only excuses from liability for
post-iddat maintenance a man who has already discharge his
obligations
of
"reasonable
and
fair
provisions"
and
"maintenance" by paying these amounts in a lump sum to his

wife, in addition to having paid his wife's mahr, etc. as per
section 3(1) (c) and 3 (1) (d). The whole point of Shah Bano was
precisely that the husband had not provided "a reasonable and
fair provision" and "maintenance" for his divorced wife; he was
therefore, ordered to pay Rs. 179.20 a month to her under
section 125 of the code.
Nevertheless, it is clear that the draftsmen of the 1986
Act intend it to overrule Shah Bano and bar a Muslim divorce
from proceeding under section 125 of the code, unless her
husband agrees that her rights shall be determined under it
instead of the 1986 Act. No other divorced woman's right to
proceed under section 125 is dependent upon the consent of
her ex-husband.
Section 125 of the code provides, inter alia, that a divorce
woman may apply to the magistrate for a divorce woman may
apply to the magistrate for a maintenance order against her
279
former husband if she is unable to maintain herself and he is

possessed of sufficient means. The husband in Shah Bano
sought to escape the application of the section of the ground
the provision of maintenance to a divorced wife beyond the
Iddat period was contrary to Muslim law. He failed in the
Supreme Court but succeeded in Parliament : the explicit
purpose of the (grossly mistitled) Muslim Women (Protection of
Rights on Divorce) Muslim Women (Protection of Rights on
Divorce ) Act is to exclude divorce Muslim women from the
protection afforded to women of all other religions, and to
exempt Muslim men form the obligations imposed on men of all
other religions, by section 125 of the code. This ill-advised
legislation constitutes a precedent, the repercussions of which
have not been fully appreciated.
Shah Bano is not only the first case involving a Muslim
divorce claiming maintenance under section 125 of the code, 541
but it is further not the first time that tenets of Muslim personal
law have been pleaded in an attempt to exempt Muslim from the
anti-vagrancy provisions of the Criminal Procedure Code. More
than a century ago, in a case involving an application under
section 536 of the Code of Criminal Procedure 1872 by a
muta,542 wife for a maintenance order against her husband, the
541
542
Bai Tahira v. Ali Hussain Fidalli Chothia, AIR 1979 SC 362; and Fazlubi v. K.
Khader Vali, AIR 1980 SC 1730.
Muta marriage is contracted for a specific period on payment of a specified
mahr. During the subsistence of the contract, the muta wife has neither a right to
maintenance from her husband nor a right to succeed to his property on his death,
Calcutta High Court held :

"There is no dispute that, according to the Shia law, a
mutta wife is not entitled to maintenance. But it is
contended by Mr. Ameer Ali appearing is counsel for the
wife that this provision of the Shia law cannot interfere with
the statutory right to maintenance give by s. 536 of the
Code of Criminal Procedure.
We think that this contention is correct. A right to
maintenance depending on the personal law of the
individual, is a right capable of being enforced, and
properly forms the subjects of a suit in a Civil Court. But
we think that this right, depending on the personal law of
the individual, is altogether different from the statutory
right to maintenance given by S. 536 in every case in which
a person, having sufficient means, neglects or refuses to
maintain his wife."543
Given the precedent of the 1986, shall we not look
forward to a (mistitled) 'Muslim Muta Wives (Protection of
Rights) Act', exempting Shia husbands from any liability under
the code for maintenance of wives married in muta form during
543
unless the contract itself in terms confers one or both o these rights on her. Muta
Marriage is not recognized by Sunnis.
Muta marriage is contracted for a specific period on payment of a specified
mahr, during the subsistence of the contract, the muta wife has neither a right to
maintenance from her husband nor a right to succeed to his property on his death,
unless the contract itself confers one or both of these right on her. Muta marriage is
not recognized by Sunnis.
the subsistence of the marriage?

Section 125 of the present code, like its predecessors,
obliges a father to maintain his illegitimate child. Muslim law
places no responsibility on a man for the maintenance of his
illegitimate off-spring.544 Yet this liability has been part of the
code and is as applicable to Muslims as to any other section of
the population for over a century. There have been cases where
Muslims men attempted to argue that this provision of the code
would not apply to them because it was contrary to Muslim
law.545 In no case has such an argument been accepted.
Given the precedent of the Muslim Women (Protection of
Rights on Divorce) Act shall we now look forward to an outcry
from the same section of the Muslim community when the next
decision ordering a Muslim father to maintain his illegitimate
child is handed down ? And to a (mistitled) 'Muslim Illegitimate
Children (Protection of Right) Act', exempting Muslim men from
any liability under the code for maintenance of their illegitimate
children?
Further, since 1949 the Criminal Procedure Code has
entitled a wife to claim maintenance from her husband while
refusing to live with him if he has married another wife or keeps
544
545
In Islamic law, of course, the father of an illegitimate child would be subject to

server criminal penalties which however are not enforced in India. It could be
suggested that the "trade off", substituting liability for maintenance of the child for
the harsh criminal sanctions liability for maintenance of the child for the harsh
criminal sanctions of Muslim law, in such that no man should reasonably complain.
Km. Nafees Ara v. Asif Saadat Ali Khan, AIR 1963 All 143
a mistress. Muslim law does not recognize the mere fact of the
husband's remarriage as a legal ground on which the first wife
can refuse to live with him.546
Again there have been cases
where Muslim husbands have argued that this provision of the

code could not apply to them because it was contrary to Muslim
law.547 Again the courts have declined to accept this argument.
Delivering judgment for the Supreme Court in a 1981
case,
Sirajmohmedkhan
v.
Hafizunnisa
Yasinkhan,548
and
surveying the case law on section 488/125 of the Criminal

Procedure Code, Murtaza Ali J. quoted the following passage
from a decision he had given in 1958 as a judge of the Jammu
and Kashmir High Court:
"Before
the 1949 amendment, the fact of the husband's
marrying a second wife or keeping a mistress was not by

some High Courts considered a just ground for the first
wife's refusal to live with him, although it was taken into
account in considering whether the husband's offer to
maintain his first wife was really 'bona fide' or not.
The amendment is clearly intended to put an end to an
546
547
548
Muslim law demands that a man treat co-wives equally. This is so patently
impossible that many modern scholars have concluded that the Quranic verse, in
fact enjoin monogamy. "The conviction is gradually forcing itself on all sides, in
advanced Moslem communities, that polygamy is as much opposed to the
teachings of Mohammed as it is to the general progress of civilized society and
true culture" (Ameer Ali, The Spirit of Islam 230 (11th impression, 1978).
Syed Ahmad v. Naghath Praveen Taj Begum, AIR 1958, Mys. 128;
Shahulameedu v. Subaida Beevi, 1970 KLT 4.
AIR 1981 SC 1972
unsatisfactory state of law utterly inconsistent with the

progressive ideas of the status and emancipation of
women, in which women were subjected to a mental
cruelty of living with a husband who had taken a second
wife or a mistress on the pain of being deprived of any
maintenance if they chose to live separately from such a
husband."549
Contentions that the second marriage took place with the
consent of the first wife550 or because of her refusal to live with
her husband551 have not saved a Muslim husband from
maintenance order under sections 488/125 in favour of his
wife. Shall we now look forward to an outcry from a section of
the Muslim community when the next decision ordering a
Muslim husband to maintain his first wife 552 who refuses to
share her husband's attentions and her matrimonial home with
a co-wife is handed down? And to a (mistitled) 'Muslim
Co-
Wives (Protection of Rights) Act', exempting Muslim men from

the
provisions
of
section
125
of
the
code,
concerning
maintenance for a wife who refuses to cohabit with her husband

and his other wife?
Examples can also be found in other statutes. It is not
549
550
551
552
Biro v. Behari Lal, AIR 1958 J & K 47 at 49 (Emphasis added) Quoted in id at

1979.
Abdul Ghaffar v. Bibi Hafiza Khatoon, AIR 1968 Pat. 307.
Mohorunnissa v. Abdul Salam, 1974 Cri LJ 78; Syed Ahmad, supra note 12.
Hafijjabi v. Abdul Aziz Kadirkha, 1983 Cri LJ 931 (Bom.): Tejabai v.
Shankarrao, AIR 1966 Bom 48.
inconceivable, for instance, that a section of Muslim
opinion
could take exception to the Child Marriage Restraint Act, 1929,

which presently imposes criminal penalties on those who
marry, as well as on those who arrange the marriage of, a girl
under eighteen years of age. Shall we look forward to a
(mistitled) 'Muslim Girls (Protection of Rights) Act,' excluding
the Muslim
child from the protection of the Child Marriage
Restraint Act, asserting her "right" to be married at the age of

the nine, and absolving her "husband" and guardians from
criminal charges?
Even a statue specifically dealing with and codifying
Muslim personal law could come under attack if Muslim
personal law is conceived of as having been unalterably defined
for all time in the tenets of the un-codified Hanafi law applied by
the South Asian courts in the 19 th century Does not the
Dissolution of the Muslim Marriage Act overrule the textbook
interpretations of Hanafi law? To quote from the statement of
objects and reasons issue with the bill which subsequently
became the 1939 Act:
"There is no provision in the Hanafi Code of Muslim law
enabling a married Muslim woman to obtain a decree from
the Court dissolving her marriage in case the husband
neglects to maintain her, makers her life miserable by
deserting or persistently maltreating her or absconds
leaving her unprovided for and under certain other

circumstances. The absence of such a provision has
entailed unspeakable misery to innumerable women"553
The Dissolution of Muslim Marriage Act unquestionably
constituted a departure from the Hanfi law as laid down in the
texts which the courts of the day considered authoritative. Will
it now fall under the scrutiny of Muslim reactionaries?
It is very difficult to argue that the 1986 Act is not a
precedent for these and similar retrogressive moves, relegating
Muslims girls and women Citizens of the Socialist Secular
Democratic Republic of India to a legal position of the Socialist
Secular Democratic Republic of India to a legal position inferior
not only to that of other Indian women, but also of Muslim
women in other countries, including the neighboring Islamic
Republic of Pakistan. It is equally difficult to suggest that all or
any of these moves would enjoy the support of Muslim public
opinion in India. Indeed, it is clear that such opinion is very far
from being unanimously in favour of the 1986 Act.
Further,
the
precedent
of
the
success
by
Muslim
reactionaries in achieving the enactment of the 1986 Act will

scarcely be lost on the corresponding sections of other
communities. A section of the Sikh community has apparently
been demanding recognition of their own personal law. At
553
Gazette of India, 1936, pt. v. p. 154
present, Sikhs are classified as Hindu for the purpose of the

Hindu code legislation. According to a report 554 Sikh personal
law, as defined by the Akalis, permits the husband plural wives
and prohibits divorce, just as did the unreformed Brahmanical
Hindu law.
In their referring opinion in Shah Bano, Murtaza Fazal Ali
and A. Varadarajah JJ suggested that the earlier decisions of
the Supreme Court on the same point 555 were contrary to "the
fundamental concept of divorce of the husband and its
consequences under the Muslim law which has been expressly
protected by S. 2 of the Muslim Personal Law (Shariat)
Application Act, 1937 an Act which was not noticed by the
aforesaid decisions."556
This question may be easily answered. The Shariat Act
deals with conflict between customary law and Muslim law and
lay down a choice of law rule for the courts in civil cases
involving Muslim parties in circumstances where no statutory
provision is applicable. The Act was designed to secure to
Muslim women the rights which Muslim law conferred upon
them but which customary law negated. The statement of
objects and reasons accompanying the bill which became the
Act of 1937. arrested:
554
555
556
Manushi, Aug. Sept. 1983, p. 45

Bai Tahira v. Ali Hussain Fidalli Chothia, AIR 1979 SC 362; and Fazlubi v. K.
Khader Vali, AIR 1980 SC 1730.
Mohd. Ahmed Khan v. Shah Bano Begum. AIR 1985 SC 945
"The
status
of
Muslim
women
under
the
so-called
Customary law is simply disgraceful. All the Muslim

Women
Organizations
have
therefore
condemned
Customary Law as it adversely affects their rights. They

demand that the Muslim Personal Law (Shariat) should be
made applicable to them. The introduction of Muslim
Personal Law will automatically raise them to the position
to which they are naturally entitled."557
The Shariat Act did not codify the Muslim personal law
and certainly did not place permanent embargo on reform or
alternation in the uncodified the law as defined and applied by
the courts of fifty years ago. The Act is of no assistance in
elucidating the phrase used in section 127(3) (b) of the Code
("the sum which, under any customary or personal law
applicable to the parties, was payable on such divorce") and
offers no guidance whatsoever in the interpretation of section
125 and 127 of the code. Reference to the Act in this context is
unhelpful and irrelevant.
It is interesting to note that the question concerning the
Shariat Act raised by Murtaza Fazal Ali J. was discussed thirty
year agon in a Pakistan case. The judgment of B. Z. Kaikasu J
was worth extracting at some length. He observed :
"As pointed out by Mahmood J. In the matter of the
557
Gazettee of India, 1935, pt. V, p. 136
288
petition of Din Muhammad"558 this section (i.e. s. 488 of the code

of 1988) creates a statutory right to maintenance irrespective of
nationality or creed. As the personal law of adherents of various
religions do not contain uniform provisions as to maintenance
of wives and children the right created by this section will
obviously not coincide with the right given by personal law in all
cases. If we compare this section with Muslim Law will be found
that while in some cases it confers a right which the Muslim
Law does not recognize, in other it refuse to recognize a right to
maintenance where Muslim
Law will grant. One It will be
observed that the section gives even an illegitimate child a right

to maintenance. Under Muslim Law an illegitimate child has no
right of maintenance against its natural father. I may also, in
this connection refer to a recent amendment of the Criminal
P.C. in India, whereby it has been provided that the fact that a
husband has contracted a second marriage would be "sufficient
cause" for the wife to refuse to live within the meaning of this
section, although under Muslim Law is would not be a valid
ground. It cannot be said that this amendment is inconsistent
with the original section.
The argument that it is only where under the Muslim
Law a right of maintenance exists that section 488 will apply is
really an impossible one.
A subsidiary argument has been raised that if section 488
558
ILR 5 All 226 (1883)
289
gives a right to maintenance even cases where the Muslim Law

disentitles a person to maintenance, section 488 is overridden
by section 2 of the Muslim Personal Law (Shariat) Application
Act, 1948, as amended in 1951, because by virtue of that
section the personal law has
relating
to
maintenance.
to be applied in all questions
The
argument
is
based
on
misapprehension. The object of the Muslim Personal Law

(Shariat) Application Act was not to override any statute but to
abrogate custom where there was a clash between custom and
personal law as it stands, the provisions of Muslim Law do not
override any statue. If I were to accept the argument of the
learned counsel a large number of statues, in which I might
include the Punjab Colonization of Government Land Act, the
Punjab Tenancy Act, and the Punjab Jagirs act, would be ultra
vires and no longer law.559
While the Shariat Act did not guarantee that Muslim
personal law as interpreted and applied at the time of its
enactment would continue unaltered (if it had done so, the
Dissolution of Muslim Marriage Act, passed two years later
would have been ultra vires), the Indian Constitution which
takes precedence over statutory law and control legislative
powers560 - clearly envisages reform of all personal laws. The
Constitution is solicitous in its regards for the weaker sections
559
560
Syed Mushaf Husain Shah v. Mst. Hamida Begum, PLD 1957 Lahore 220 at 223224, Isak Chanda Palkar v. Nyamatbi, 1980 Cri LJ 1180.
Art. 13
290
of society, inter alia, specifically subjecting the fundamental

rights guaranteed by article 15 and 25 to the right of the state
to make "special provision for women and children", 561 and to
provide "for social welfare and reform"562
The extension of section 125 of the code to include divorce
women cannot be challenged by reference to the Shariat Act; the
more immediate question is whether the 1986 Act can survive a
challenge on constitutional grounds ?
We can submit that a classification which excludes
divorced Muslim
women alone from the protection which all
divorced women heretofore enjoyed under section 125, is an

arbitrary and unreasonable differentiation and violates the
equality before the law guaranteed by article 14. Further, it can
argued that it is a classification based solely on religion, and
thus violative of article 15(1). Three is neither any real and
substantial difference between the situation faced by indigent
women, both Hindu and Muslim, following a divorce, nor any
justification for differentiating women in such a situation on the
basis of religion.563 It certainly cannot be contended that
Muslim women are any less in need of the protection afforded
that Muslim women are less in need of the protection afforded
by section 125 that are Hindu women, or women, or women of
561
562
563
Art. 15 (3).
Art. 25(2)(b).
State of Bombay v. F.N. Balsara, AIR 1951 SC 318; Chiranjit Lal v. Union of
India, (1950) SCR 869.
291
any other religion or of no religion at all.

Various
statutes
reforming
Hindu
law
have
been
challenged on constitutional grounds, the allegation being that

they violated
article 15 by discriminating against Hindus on
the basis of religion and / or violated article 25 interfering with

the practice of the Hindu religion. 564 These challenges were
rejected, inter alia on the ground that the discrimination was
not solely on the basis of religion, that also involved was the fat
that Hindus were subject to a distinctive system of personal law
peculiar to them before the reforming Act. The reforming Act
only recognized a classification already in existence and
reformed this distinctive personal law.565 The argument is not
available in the present situation. Prior to the Muslim Women
(Protection of Rights on Divorce) Act, all divorced Indian women
were subject to a single national law embodied in section 125 of
the code, irrespective of what additional or different right (if
any) might be available under their respective personal laws. To
exclude a section of women, identified by religion and by religion
only, from the scope of the national law to which they were
previously subjects is, we may submit, to discriminate against
them on the ground of religion contrary to article 15(1).
Another argument used to uphold the Hindu Acts was
564
565
Srinivasa Aiyar v. Saraswathi Ammal, AIR 1952 Med. (Madras Hindu (Bigamy
Prevention and Divorcee) Act, 1949; State of Bombay v. Narasu Appa Mali, AIR
1952 Bom. 84.
Srinivas Aiyar, Narasu Appa Mali, H.B. Singh, G. Sambireddy cases..
292
that the legislation was intended for the benefit of the class of
persons to which the Act in question was applicable. "It will be a
travesty of the truth to say that it is directed against that class
and discriminates against them against them" asserted the
Andhra Pradesh High Court in repelling a constitutional
challenge levied against the Hindu Marriage Act. Again this
argument is not available to support the 1986 Act, which
severely penalizes, rather than benefits, Muslim
women. To
paraphrase the Andhra Court, it would be a travesty of truth to

say that the Act is not directed against Muslim
women as a
class and that it does not discriminate against them.

A third argument used in favour of the Hindu reform
legislation was that in imposing monogamy on Hindu and thus
bringing them into line with groups already subject to a rule of
monogamy, the legislation constituted "a step towards the
establishment of a uniform Civil Code, the cherished goal of
Article 44 of the Constitution" Again this argument is not
available is support of the 1986 Act, which is step in the
opposite all Indians; the 1986 Act seeks to exclude Muslim
women from the protection of the code and to subject them to
an alternative statue which in spite of its pretentious title, offers
them a lesser degree of protection and relegates them to an
inferior position vis--vis their non Muslim sisters with whom
they have been, in this respect, of terms of equality.
293
On the other hand, a supposed "right of a Muslim man to

discard
his
wife
with
impunity
and
that
no
financial
responsibility toward her, even if the divorce leaves her in

desperate straits, can no more be defended as an integral part
of the Muslim
religion or the practice of that religion, that
could the right formerly enjoyed by Hindu men to marry again

in the presence of the first wife be defended as an integral part
of the Hindu religion. Indeed, given the sacramental nature of
Hindu marriage and the religious necessity of a son, the Hindu
husbands objecting to a rule of monogamy were able to muster
much stronger arguments than the Muslim husband, objecting
to a rule enjoying a minimal degree of financial responsibility for
discarded wives, can possibly put forward. The Hindu husbands
failed in their contentions.
The founders of the nation had a vision of a society free
from (i) the disabilities of castes ; (ii) exploitation ; and (iii)
discrimination on the basis of sex, race, religion, place of birth,
language. The vision of social development and progress which
permeates the Constitution is forward toward unity, equality
and a uniform civil code. There is no constitutional women by
section 125 of the code cannot now be denied to a class of
Indian women identified solely by religion. To the extent that the
1986 Act purports to do exactly this, it is squarely and surely
caught by section 13(2) of the Constitution.
294
The salutary extension in 1973 of the anti-vagrancy

provisions of the Criminal Procedure Code to cover indigent
divorced women, including Muslims, fulfilled a need long felt
and dealt with a social problem long apartment. More than a
century ago the Calcutta High Court observed :
"The fact that the power of divorce, given by the
Mohomedan law, may be so exercised as to defeat the
intention of the legislature as expressed in Section 234 Act
4 of 1877 (i.e. Presidency Magistrates Act], and other
similar enactments, may go to show that future legislation
is required, but it cannot affect the law as it stands."566
Nothing has occurred in the intervening century to render
such "further legislation" any less necessary than it was in
1879. What has distinguished the period since the 1879
Calcutta decision has been the growth of "progressive ideas of
the status and emancipation of women" 567 ideas enshrined in
the Indian Constitution and endorsed by the distinguished
jurist, Justice Fazal Ali. To quote again from his judgment, in
Sirajmohmedkhan v. Hafizunnisa Yasinkhan:
"The outmoded and antiquated view (was) that the object of
section 488 was to provide an effective and summary
remedy to provide for appropriate food, clothing and lodging
for a wife. This concept as now become completely
566
567
Abdur Rohoman v. Sakhina, ILR 5 Cal. 558 at 562 (1879) (Emphasis added).
Sirajmohmedkhan v. Hafizunnisa Yasinkhan, AIR 1981 SC 1972
295
outdated and absolutely archaic. After the International

Year of women when all the important countries of the
world are trying to give the fair sex their rightful place in
society and are working for the complete emancipation of
women by breaking the old shackles and bondage in which
they are involved, it is difficult to accept a contention that
the salutary provisions of hte code are merely meant to
provide a wife merely with food, clothing and lodging as if
she is only a chattel and has to depend on the sweet will
and mercy of the husband."
Although
that
particular case was
concerned
with
separate maintenance for a wife who refused to live with her

husband on the ground that he was impotent, the sentiments
expressed are no less applicable to the situation of a divorced
woman, particularly a woman divorced unilaterally and extrajudicially "at the sweet will.... of her husband" as if she were
"only a chattel". Not even the staunchest supporter of the 1986
Act "only a chattel". Not even the staunchest supporter of the
1986 Act could possibly contend that the talaq as practiced in
India conforms with the injunctions of Quranic law. It is indeed
a manifestation of the "peculiar" nature of Indian Society,
reflected upon by V. Khalid J. that the Shah Bano controversy
led, not to an Act reforming talaq, but to an Act further
enhancing the rights of men and depriving Muslim women of
296
the minimal succour available to them under Section 125 of the

code. As he observed :
"Ours is peculiar society, where women suffer manifold
disabilities while men have always an upper hand."568
568
Kunhi Moyin v. Pathumma, 1976 KLT 87 at 92 .
Chapter VIII
Conclusion and Suggestion
Before concluding my study by presenting practical and
viable
suggestion
for
the
solution
of
various
problems
highlighted earlier. It is interesting to observe that during the

sixty seven years of our Constitution, Article 44 relating to
Uniform Civil Code attracted very little attention from the
legislators, lawyers, judges and legal academics. In fact, it
remained a pious wish of the framers of the Constitution which
was occasionally echoed in various form. In a nation grappling
with stupendous problems (perhaps unheard of in any other
parts
of
the
world),
combating
with
fissiparous
forces
threatening its very existence, Article 44 was thought of as a

panacea to all problems, an ideal that could put an end to the
great communal divide which was becoming more strident with
the passage of time. However, during the last two decades,
Article 44 has stirred up a flurry of activities in a various fields
leading to political agitations, judicial decisions, legislative
debates
and
academic
outpourings
all
highlighting
this
provision with participants taking sides of the issue.

The family life of Indians is, rightly or wrongly, guided by
their respective religious and customary beliefs Religions more
or less survive only through the ceremonies and social customs
298
enforced upon its members if they are negated, soon enough

religions will lose their eminence in social sphere.
On the other hand, if a different set of rules that violated
the religious precepts are enforced upon individuals that would
negate the fundamental rights of 'Freedom of conscience and
free profession, practice and propagation of religion guaranteed
under Article 25 of the Constitution of India.
The debate on Uniform Civil Code must be widened
beyond four wives and three talaqs. Look at the honour killings
and Khap Panchayant verdicts. They all want to enforce their
religious and customary beliefs on the members of their family
and community. If a system other than what conforms to their
faith is forced upon them, it invariably ideas to social unrest.
India is a country of million customs and communities.
Everyone thinks that his/her faith and customs are the best.
No one wants to consider reforming own system yet wants to
worry about others system. Uniform Civil Code is used more
often than not as a tool for minority bashing rather than
genuine social reforms. Such minority bashing will only make
the members of those communities more possessive about their
alleged identity and customs thereby further reducing any
scope of nurturing Uniform Civil Code in its embryonic stage.
The unfortunate interference and mixing of religions with
politics has further complicated the social atmosphere. The
299
political stakes will ensure that no one can enforce a Uniform

Civil Code over the multicultural society of India. Instead,
interested politicians will only keep the issue of Uniform Civil
Code burning to bash their opponents and please their vote
banks.
The supporters of Uniform Civil Code and abrogation of
the personal laws put forth an argument that such an
abrogation of personal laws and imposition of the said code
would promote the cause of national integrity. Would they like
to explain how the different sets of personals laws have
obstructed the process of national integration? Hindu code is
existing in the form of the Hindu Marriage Act, 1955, Hindu
Succession Act, 1956, Hindu Adoptions and Marriage Act 1956
and is applicable to all Hindus including Sikhs, Jains,
Budhists, Lingayats, Aryasmaj is etc, but we find this code has
not unified Hindus and the case of national integration could
not be promoted to a desired extent during last Sixty seven
years.
The idea of a uniform Civil Code for India advocated in
Article 44 of the Constitution has assumed the colour of a
nightmare in the eyes of a vast majority of Muslims citizens.
Answerable for this situation are two distinct anthropogenic
forces in the society. Firstly, there are the super-traditionalists
who would leave no stone unturned to enshrine the Islamic
300
personal law as applicable in the country, inclusive of its each

and every principle, as "revealed" or "inspired" laws not liable to
any reconsideration by man. And secondly, there are those
pseudo-secularist members of the majority community whose
cherish and propagate the belief that the proposed civil code
will
be
stuffed
with
the
concepts
of
ancient
Indian
jurisprudence only and have in its provisions nothing derived

from Islamic legal doctrines. The combined activity of these two
forces in the society, though both are sadly mistaken, have
gradually indulged the Muslim community into a massive revolt
against the proposed civil code. The result is that it has become
a fashion among the Muslims of India in general vituperate
against anybody who talks either of the reform of Muslim
personal law or of a uniform civil code. In order to mitigate the
influences of these forces it is expedient to concretize provisions
of the proposed civil code, to concretize provisions of the
proposed civil code, not abstract, and analyze the extent to
which those provisions would be opposed to or in conformity
with, the Islamic jurisprudence.
In my opinion, there is no urgent need to force any
Uniform Civil Code on unwilling population. Most people be it
Hindu, Christian, Muslim or any other community are not ready
to adopt truly secular laws separated from religious customs.
Also, it is not right to force the customs of one group, however
dominant it may be, upon other groups. So we can try to solve
301
thousands of other less contentious problems that our society is

facing and are more public in nature than personal laws.
As for the social obligations or protection of human rights
etc are concerned, we can ensure certain bottom line rules
through general laws. For example, Prohibition of Civil marriage
Act, 2006 is a general law that prevails over all personal laws.
Any
conditions
that
are
considered
appropriate
can
be
incorporated in that Act so as to ensure no child marriage takes

place even if personal laws permit it.
Another such example is Section 125
of the Code of
Criminal Procedure (CrPC). This section provides a system by

which courts are permitted to pass orders for maintenance of
wives, children and parents, under criminal procedures,
irrespective of person's religious status.
As far as personal laws are concerned what we need is
bring reform in each of them to make them relevant in the
prevailing socio-economic and political trends for the changing
time. Instead of external enforcement, let these changes be
internal reforms. That is better for the preservation of social
fabric of the national people. Let us not quote example
insensible systems like those in religious countries. We don't
cut our noses to spite others.
Much is to be done by various organs of the state towards
"endeavouring" to "secure" a uniform civil code for the citizens.
302
The above of the progress so far made in that behalf and of the
current trends indicates how disappointingly little has been
achieved and how very much stupendous a task is still ahead.
The import, scope and nature of Article 44 has been
wholly misunderstood, so far. This Article dose not envisage a
'single common' civil code rather it takes of a 'uniform civil code'
which may be a set of various 'civil codes' meant for different
communities each applied 'uniformly' to all the members of a
particular community;
The reasons for the ineffectiveness of the existing family
legislation should be investigated. The Child Marriage Restraint
Act, 1929, a social worker complained, is unknown to the
masses in rural India.
The actual working of this Act, the
Dowry Prohibition Act, 1961, the Hindu Code of 1955-56, the

Dissolution of Muslim Marriages Act, 1939, etc. must be
studied and the defects in their Provisions examined. Effective
machineries should be set up to ensure the implementation of
all these laws by giving them widest publicity and by adopting
other necessary measures.
So far as the legislative steps are concerned, the Uniform
legislature i.e. Parliament itself went against the mandate of
Article 44 by enacting for Hindu Acts in 1955 -56. Through
this action the Parliament fortified and protected the personal
laws of the majority community. Even these acts are not
303
'internally' uniform since they preserve a large number of

customs applied to different groups of Hindu communities viz.
Muslims, Christians, Parsis etc. can be forced to give up their
respective personal laws?;
A comparative study of the various personal laws should
be made with a view of ascertaining the similarities as well the
dissimilarities between their provisions. A law of personal status
based on those principles which are almost identical under all
the personal laws can, then, be enacted and enforced without
delay. There is, it may be noted, no dearth of identical of similar
provisions in the various personal laws, specially in the laws of
the two major communities of India.
Article 44, lays down only a 'principle of uniformity' which
is though fundamental in the governance of the country, 'not
judicially enforceable'. Therefore the judiciary must exercise
utmost self-restraint on commenting on this Article. Further, it
is not the only 'directive' which is significant but every article in
Part IV of the Constitution, is fundamental in the governance of
the country. Why, then, the court does not try to get all of them
enforced?
A family law board should be set up in the Union Law
Ministry on the pattern of the Company Law Board working
under the Ministry of Industrial Affairs. It should be a statutory
304
body having an all-India network of regional branches. It duties

should include :
(i) to produce periodical and other literature pointing out
the drawbacks in the existing family laws, highlighting the
complications resulting from the plurality of personal laws, and
explaining the need for the features oft he uniform civil code:
(ii) to set up committees of experts in family law and
sociologists to study the working of the existing legislation and
report thereon;
(iii)
to arrange periodical opinion polls on the issue of
reform of family law and uniform civil code;

(iv) to secure co-operation of trusted leaders of various
communities theologians, politicians and others and of
various institution of learning, politicians and others and of
various institution of learning, in order to prepare the people to
appreciate the changes in social conditions and the changes in
family law which they have necessitated;
(v) to educate the people on the need for family law reform
and unification through the use of audio-visual aids and other
media of mass communication;
(vi) to encourage empirical research of a socio legal
nature in the problems of family law in various parts of the
country; and
305
(viii) to prepare and submit to the government periodical

reports on its activities.
APPENDIX- I
The Muslim Personal Law (Shariat) Application Act, 1937569
(Act No. XXVI of 1937)
(Dated 7th. October, 1937)
An Act to make provision for the application of the Muslim
Personal Law (Shariat) to Muslims.
WHEREAS it is expedient to make provision for the
application of the Muslim Personal Law (Shariat) to Muslims; It
is hereby enacted as follows: 1. Short Title and Extent
(1)
This Act may be called the Muslim Personal Law (Shariat)

Application Act, 1937.
(2)
It extends to 3[the whole of India except the State of

Jammu and Kashmir.
2. Application of Personal Law to Muslims

Notwithstanding any custom or usage to the contrary, in
all questions (save questions relating to agricultural land)
regarding intestate succession, special property of females,
including personal
property inherited or obtained under
contract or gift or any other provision of Personal Law,

marriage, dissolution of marriage, including talaq, ila, zihar,
569
Source : Para Diwan, Muslim Law in Modern India (1933) pp. 297-98.
307
lian, khula and mubaraat, maintenance, dower guardianship,

gifts, trusts and trust properties, and wakfs (other than
charities
and
charitable
institutions
and
charitable
and
religious endowments) the rule of decision in cases where the

parties are Muslims shall be the Muslim Personal law (Shariat).
3. Power to make a Declaration
(1) Any person who satisfies the prescribed authority(a) that he is a Muslim, and
(b) that he is competent to contract within the
meaning of section 11 of the Indian Contract Act,
1872, and
(c) that he is a resident of the territories to which
this Act extends may by declaration in the
prescribed form and filed before the prescribed
authority, declare that he desires to obtain the
benefit of the provisions of this section], and
thereafter the provisions of section 2 shall apply
to the declarant and all his minor children and
their descendants as if in addition to the matters
enumerated therein adoption, wills and legacies
were also specified.
(2) Where the prescribed authority refuses to accept a
declaration under sub-section (1), the person desiring
308
to make the same may appeal to such officer as the

[State] Government may, if he is satisfied that the
appellant is entitled to make the declaration, order the
prescribed authority to accept the same.
4. Rule-Making Power
(1) The State Government may make rules to carry into
effect the purposes of this Act.
(2) In particular and without prejudice to the generality
of the foregoing powers, such rules may provide for all
or any of the following maters, namely:(a)
for prescribing the authority before whom and

the form in which declarations under this Act
shall be made;
(b)
for prescribing the fees to be paid for the filing of

declaration and for the attendance at private
residences of any person in the discharge of his
duties under this Act; and for prescribing the
times at which such fees shall be payable and the
manner in which they shall be levied
(3) Rules made under the provisions of this section shall

be published in the Official Gazette and shall
thereupon have effect as if enacted in this Act.
309
5.
Dissolution
of
marriage
by
Court
in
certain
circumstancesRepealed by the Dissolution of Muslim Marriages Act,

1939 (VIII of 1939) section 6 (17-3-1939).
6. Repeals
The
under
mentioned
provisions
of
the
Acts
and
Regulations mentioned below shall be repealed in so far as they

are inconsistent with the provisions of this Act, namely:(1) Section 26 of the Bombay Regulation IV of 1827;
(2) Section 16 of the Madras Civil Courts Act, 1873;
(3) Repealed;
(4) Section 3 of the Oudh Laws Act, 1876;
(5) Section 5 of the Punjab Laws Act, 1872;
(6) Section 5 of the Central Provinces Laws Act, 1875; and
(7) Section 4 of the Ajmer Laws Regulation, 1877.
APPENDIX II
THE DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939
(Act VII of 1939)
(Passed by the Indian Legislation)
Received the assent
of the Governor General on the 17 th
March, 1939.
An Act to consolidate and clarify the provisions of Muslim
law relating to suits for dissolution of marriage by women
married under Muslim law and to remove doubts as to the
effect of the renunciation of Islam by a married Muslim woman
on her marriage tie.
Whereas it is expedient to consolidate and clarify the
provisions of Muslim law relating to suit for dissolution of
marriage by women married under Muslim law and to remove
doubts as to the effect of the renunciation of Islam by a married
Muslim woman on her marriage tie; It is hereby enacted as
follows:
1.
Short title and extent.

(1) This Act may be called the Dissolution of Muslim
Marriages Act, 1939.
(2) It extends to the whole of India except the State of Jammu
and Kashmir.
311
2.
Grounds for decree for dissolution of marriage. A
woman married under Muslim law shall be entitled to obtain a

decree for the dissolution of her marriage on any one or more of
the following grounds, namely:
(i) that the whereabouts of the husband have not been
known for a period of four years;
(ii) that the husband has neglected or has failed to provide
for her maintenance for a period of two years;
(iii) that the husband has been sentenced to imprisonment
for a period of seven years or upwards;
(iv)that
the
husband
has
failed
to
perform,
without
reasonable cause, his marital obligations for a period of

three years;
(v) that the husband was impotent at the time of the
marriage and continues to be so;
(vi)that the husband has been insane for a period of two
years or is suffering from leprosy or a virulent venereal
disease;
(vii) that she, having been given in marriage by her father or
other guardian before she attained the age of fifteen
years, repudiated the marriage before attaining the age
of eighteen years:
Provided that the marriage has not been consummated;
312
(viii) that the husband treats her with cruelty, that is to say,
a. habitually assaults her or makes her life miserable
by cruelty of conduct even if such conduct does not
amount to physical ill-treatment, or
b. associates with women of evil repute or leads an
infamous life, or
c. attempts to force her to lead an immoral life, or
d. disposes of her property or prevents her exercising
her legal rights over it, or
e. obstructs her in the observance of her religious
profession or practice, or
f. if he has more wives than one, does not treat her
equitably in accordance with the injunctions of the
Qoran;
(ix)on any other ground which is recognised as valid for the
dissolution of marriages under Muslim law:
Provided thata. no decree shall be passed on ground (iii) until the
sentence has become final;
b. a decree passed on ground (i) shall not take effect
for a period of six months from the date of such
decree, and if the husband appears either in person
313
or through an authorised agent within that period

and satisfied the Court that he is prepared to
perform his conjugal duties, the Court shall set
aside the said decree; and
c. before passing a decree on ground (v) the Court
shall, on application by the husband, made an order
requiring the husband to satisfy the Court within a
period of one year from the date of such order that
he has ceased to be impotent, and if the husband so
satisfies the Court within such period, no decree
shall be passed on the said ground.
3.
Notice to be served on heirs of the husband, when the
husband's whereabouts are not known. - In a suit to which

clause (i) of Section 2 applies(a) the names and addresses of the persons who would have
been the heirs of the husband under Muslim law if he had
died on the date of the filing of the plaint shall be stated
in the plaint,
(b) notice of the suit shall be served on such persons, and
(c) such persons shall have the right to be heard in the suit:
Provided that paternal uncle and brother of the husband,
if any, shall be cited as party even if he or they are not heirs.
314
Effect of conversion to another faith. The renunciation of

Islam by a married Muslim woman or her conversion to a faith
other than Islam shall not be itself operate to dissolve her
marriage:
Provided that after such renunciation, or conversion, the
woman shall be entitled to obtain a decree for the dissolution of
her marriage on any of the grounds mentioned in Section 2:
Provided further that the provisions of this section shall
not apply to a woman converted to Islam from some other faith
who re-embraces her former faith.
4.
Rights to dower not to be affected. Nothing contained
in this Act shall affect any right which a married woman may
have under Muslim law to her dower or any part thereof on the
dissolution of her marriage.
5.
Repeal of Section 5 of Act XXVI of 1937. Section 5 of
the Muslim Personal Law (Shariat) Application Act, 1937, is

hereby repealed (Repealed by Act XXV of 1942).
APPENDIX III
THE MUSSALMAN WAKF VALIDATING ACT, 1913
[ 7th March, 1913]
An Act to declare the rights of Mussalmans to make
settlements of property by way of" wakf" in favour of their
families, children and descendants.
WHEREAS doubts have arisen regarding the validity of
wakfs created by persons professing the Mussalman faith in
favour of themselves, their families, children and descendants
and ultimately for the benefit of the poor or for other religious,
pious or charitable purposes;
and whereas it is expedient to remove such doubts;
It is hereby enacted as follows:1.
Short title and extent.1) This Act may be called the Mussalman Wakf Validating
Act, 1913.
2) It extends to the whole of India except state of Jammu
and Kashmir
2.
Definitions.- In this Act, unless there is anything
repugnant in the subject or context,
316
(a) " Wakf" means the permanent dedication by a person

professing the Mussalman faith of any property for
any purpose recognized by the Mussalman law as
religious, pious or charitable.
(b) "
Hanafi
Mussalman"
means a
follower of the
Mussalman faith who conforms to the tenets and

doctrines of the Hanafi school of Mussalman law.
3.
Power of Mussalmans to create certain wokfs.- It shall
be lawful for any person professing the Mussalman faith to

create a wakf which in all other respects is in accordance with
the provision of Mussalman law, for the following, among other,
purposes;
(a) for the maintenance and support wholly or partially of his
family, children or descendants, and
(b) where the person creating a wakf is a Hanafi Mussalman,
also for his own maintenance and support during his
lifetime or for the payment of his debts out of the rents
and profits of the property dedicated:
Provided that the ultimate benefit is in such cases
expressly or impliedly reserved for the poor or for any other
purpose recognised by the Mussalman law as a religious, pious
or charitable purpose of a permanent character.
317
4.
Wakfs not to be invalid by reason of remoteness of
benefit to poor, etc.- No such wakf shall be deemed to be

invalid merely because the benefit reserved therein for the poor
or other religious, pious or charitable purpose of a permanent
nature is postponed until after the extinction of the family,
children or descendants of the person creating the wakf.
5.
Saving of local and sectarian custom.- Nothing in this
Act shall affect any custom or usage whether local or prevalent

among Mussalmans of any particular class or sect.
APPENDIX IV
THE CHILD MARRIAGE RESTRAINT ACT, 1929
(As amended in 1978)
(Act No. XIX of 1929)
[1st October, 1929]
An Act to restrain the solemnization of child marriages; it
is hereby enacted as follows:
1.
Short title, extent and commencement.

(1) This Act may be called the Child Marriage Restraint Act,
1929
(2) It extends to the whole of India except the State of Jammu
and Kashmir and it applies as also to all citizens of India
without and beyond India
(3) It shall come into force on the 1st day of April, 1930.
2.
Definitions.-In
this
Act,
unless
there
is
anything
repugnant in the subject or context,(a) child means a person who, if a male, has not
completed twenty-one years of age, and if a female,
has not completed eighteen years of age;
(b) child marriage means a marriage to which either
of the contracting parties is a child;
319
(c) contracting party to a marriage means either of

the parties whose marriage is or is about to be
thereby solemnized; and
(d) minor means a person of either sex who is under
eighteen years of age.
3.
Punishment for male adult below twenty-one years of
age marrying a child.-Whoever, being a male above eighteen

years of age and below twenty-one, contracts a child marriage
shall be punishable with simple imprisonment which may
extend to fifteen days, or with fine which may extend to one
thousand rupees, or with both.
4.
Punishment for male adult above twenty-one years of
age marrying a child.-Whoever, being a male above twenty-one

years of age, contracts a child marriage shall be punishable
with simple imprisonment which may extend to three months
and shall also be liable to fine.
5.
Punishment for solemnizing a child marriage.-Whoever
performs, conducts or directs any child marriage shall be

punishable with simple imprisonment which may extend to
three months and also be liable to fine, unless he proves that he
had reason to believe that the marriage was not a child
marriage.
320
6.
Punishment for parent or guardian concerned in a
child marriage.
a) Where a minor contracts a child marriage, any person
having charge of the minor, whether as parent or guardian
or in any other capacity, lawful or solemnized, or
negligently fails to prevent it from being solemnized, shall
be punishable with simple imprisonment which may
extend to three months and shall also be liable to fine:
Provided that no woman shall be punishable with
imprisonment.
b) For the purposes of this section, it shall be presumed,
unless and until the contrary is proved, that where a
minor has contracted a child marriage, the person having
charge of such minor has negligently failed to prevent the
marriage from being solemnized.
7.
Offences to be cognizable for certain purposes. The
Code of Criminal Procedure, 1973 (2 of 1974), shall apply to

offences under this Act as if they were cognizable offencesa) for the purpose of investigation of such offences; and
b) for the purpose of matters other than (i) matters referred
to in Sec. 42 of that Code, and (ii) the arrest of a person
without a warrant or without an order of a Magistrate.
321
8.
Jurisdiction under this Act. Notwithstanding anything
contained in Sec. 190 of the Code of Criminal Procedure, 1973,

no court other than that of a Metropolitan Magistrate or a
Judicial Magistrate of the first class shall take cognizance of, or
try, any offence under this Act.
9.
Mode of taking cognizance of offences. No Court shall
take cognizance of any offence under this Act after the expiry of
one year from the date on which the offence is alleged to have
been committed.
10.
Preliminary inquiries into offences. Any Court, on
receipt of a complaint of an offence of which it is authorized to

take cognizance, shall, unless it dismisses the complaint under
Sec. 203 of the Code of Criminal Procedure, 1973, either itself
make an inquiry under Sec. 202 of that Code or direct a
Magistrate subordinate to it to make such inquiry.
11. (Omitted by Act XLI of 1949)
12. Power to issue injunction prohibiting marriage in
contravention of this Act.
(1) Notwithstanding anything to the contrary contained
in this Act, the Court may, if satisfied, from
information laid before it through a complaint or
otherwise that a child marriage in contravention of
this Act has been arranged or is about to be
322
solemnized, issue an injunction against any of the

persons mentioned in Sections 3, 4, 5 and 6 of this
Act prohibiting such marriage.
(2) No injunction under sub-section (1) shall be issued
against any person unless the Court has previously
given notice to such person, and has afforded him
an opportunity to show cause against the issue of
the injunction.
(3) The Court may either on its own motion or on the
application of any person aggrieved, rescind or alter
any order made under sub-section (1).
(4) Where such an application is received, the Court
shall afford the applicant an early opportunity of
appearing before it either in person or by pleader;
and if the Court rejects the application wholly or in
part, it shall record in writing its reasons, for so
doing.
(5) Whoever knowing that an injunction has been
issued against him under sub-section (1) of this
section disobeys such injunction shall be punished
with imprisonment of either description for a term
which may extend to three months, or with fine
which may extend to one thousand rupees, or with
both:
323
Provided that no woman shall be punishable with

imprisonment.
APPENDIX V
1986
(ACT NO. 25 OF 1986)
(First published in the Gazette of India (Extraordinary).
Part II, section 1 dated the 19th May 1986)
An Act to protect the right of Muslim women who have
been divorced by, or have obtained divorce from, their husbands
and to provide for matters connected therewith or incidental
thereto.
Be it enacted by Parliament in the Thirty -seventh year of
the Republic of India as follows:1. Short title and extent.(1) This Act may be called the Muslim Women (Protection of
Rights on Divorce) Act, 1986.
(2) It extends to the whole of India except the State of
Jammu and Kashmir.
2.
Definition.-In this Act, unless the context otherwise
requires,(a) "divorced woman" means a Muslim woman who was

married according to Muslim law, and has been divorced
325
by, or has obtained divorce from her husband in

accordance with Muslim law;
(b) "ideate period" means, in the case of a divorced woman,i.
three menstrual courses after the date of divorce, if

she is subject to menstruation;
ii.
three lunar months after her divorce, if she is not

subject to menstruation;
iii.
if she is enceinte at the time of her divorce, the

period between the divorce and the delivery of her
child or the termination of her pregnancy whichever
is earlier;
(c) "Magistrate" means a Magistrate of the First Class

exercising jurisdiction under the Code of Criminal
Procedure, 1973 in the area where the divorced woman
resides.
(d) "prescribed" means prescribed by rules made under this
Act.
3.
Mahr or other properties of Muslim woman to be given
to her at the time of divorce. Notwithstanding anything

contained in any other law for the time being in force, a divorced
woman shall be entitled to-
326
(a) a reasonable and fair provision and maintenance to be

made and paid to her within the iddat period by her
former husband;
(b) where she herself maintains the children born to before or
after he divorce, a reasonable and fair provision and
maintenance to be made and paid by her former husband
for a period of two years from the respective date of birth
of such children;
(c) an amount equal to the sume of mahr or dower agreed to
be paid to her at the time or her marriage or at any time
thereafter according to Muslim Law; and
(d) all the properties given to her before or at the time or
marriage or after the marriage by her relatives or friends
or the husband or any relatives of the husband or his
friends.
(2) Where a reasonable and fiar provision and maintenance
or the amount of mahr or dower due had not been made
or apid or the properties referred to in clause (d) of subsection (1) have not been delivered to a divorced woman
on her divorce, she or any one duly authorised by her
may, on her behalf, make an application to a Magistrate
for
an
order
for
payment
of
such
provision
and
maintenance, mahr or dower or the delivery of properties,

as the case may be.
327
(3) Where an application has been made under sub-section

(2) by a divorced woman, the Magistrate may, if he is
satisfied thata. her husband having sufficient means, has failed or
neglected to make or pay her within the iddat period
a reasonable and fair provisions and maintenance
for her and the children; or
b. (b) the amount equal to the sum of mahr or dower
has not been paid or that the properties referred to
in clause (d) of sub-section (1) have not been
delivered to her,
make an order, within one month of the date of the
filing of the application, directing her former husband to
pay such reasonable and fair provision and maintenance
to the divorced woman as he may determine as fit and
proper having regard to the needs of the divorced woman,
the standard of life enjoyed by her during her marriage
and the means of her former husband or, as the case may
be, for the payment of such mahr or dower or the delivery
of such properties referred to in clause (d) of sub-section
(1) to the divorced woman:
Provided that if the Magistrate finds it impracticable to
dispose of the application within the said period, he may,
328
for reasons to be recorded by him, dispose of the

application after the said period.
(4) If any person against whom an order has been made
under sub-section (3) fails without sufficient cause to
comply with the order, the Magistrate may issue a
warrant for levying the amount of maintenance or mahr
or dower due in the manner provided for levying fines
under the Code of Criminal Procedure, 1973, and may
sentence such person, for the whole or part of any
amount remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to
one year or until payment if sooner made, subject to such
person being heard in defence and the said sentence
being imposed according to the provisions of the said
Code.
4. Order for payment of maintenance.
(1)
Notwithstanding anything contained in the foregoing

provisions of this Act or in any other law for the time
being in force, where a Magistrate is satisfied that a
divorced woman has not remarried and is not able to
maintain herself after the iddat period, he may make
an order directing such of her relatives as would be
entitled to inherit her property on her death
according to Muslim law to pay such reasonable and
329
fair maintenance to her as he may determine fit and

proper, having regard to the needs of the divorced
woman, the standard of life enjoyed by her during
her marriage and the means of such relatives and
such maintenance shall be payable by such relatives
in the proportions in which they would inherit her
property and at such periods as he may specify in
his order:
Provided that where such divorced woman has
children, the Magistrate shall order only such
children to pay maintenance to her, and in the event
of any such children being unable to pay such
maintenance, the Magistrate shall order the parents
of such divorced woman to pay maintenance to her:
Provided further that if any of the parents is
unable to pay his or her share of the maintenance
ordered by the Magistrate on the ground of his or her
not having the means to pay the same, the
Magistrate, on proof of such inability being furnished
to him, order that the share of such relatives in the
maintenance ordered by him be paid by such of the
other relatives as may appear to the Magistrate to
have the means of paying the same in such
proportions as the Magistrate may thin fit to order.
330
(2)
Where a divorced woman is unable to maintain

herself and she has no relatives as mentioned in subsection (1) or such relatives or any one of them have
not enough means to pay the maintenance ordered
the Magistrate or the other relatives have not the
means to pay the shares of those relatives whose
shares have been ordered by the Magistrate to be
paid by such other relatives under the second proviso
to sub-section(1), the Magistrate may, by order direct
the State of Wakf Board established under Section 9
of the Wakf Act, 1954, or under any other law for the
time being in force in a State functioning in the area
in
which
the
woman
resides,
to
pay
such
maintenance as determined by him under subsection (1) or, as the case may be, to pay the shares
of such of the relatives who are unable to pay, at
such periods as he may specify in his order.
5.
Opinion to be governed by the provisions of Section
125 to 128 of Act 2 of 1974.- It, on the date of the first

hearing of the application under sub-section (2) of Section 3, a
divorced woman and her former husband declare, by affidavit or
any other declaration in writing in such form as may be
prescribed, either jointly or separately, that they would prefer to
be governed by the provisions of Section 125 to 128 of the Code
331
of Criminal Procedure, 1973, and file such affidavit or

declaration in the Court hearing the application, the Magistrate
shall dispose of such application accordingly.
Explanation. - For the purposes of this section, "date of
the first hearing of the application" means the date fixed in the
summons for the attendance of the respondent to the
application.
6. Power to make rules.
1) The Central Government may, by notification in the
Official Gazette, make rules for carrying out the purposes
of this Ac.
2) In particular and without prejudice to the foregoing power,
such rules may provide fora. The form of the affidavit or other declaration in
writing to be filed under Section 5;
b. The procedure to be followed by the Magistrate in
disposing of applications under the Act, including
the serving of notices to the parties to such
applications date of hearing of such applications
and other matters;
c. Any other matter which is required to be or may be
prescribed.
332
3) Every rule made under this Act shall be laid as soon as

may be after it is made, before each House of Parliament,
while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more
successive session, and if, before the expiry of the session
immediately following the session or the successive
sessions aforesaid, both House agree in making any
modification in the rule or both Houses agree that the
rule should not be made, the rule shall thereafter have
effect only in such modified form or be no effect, as the
case may be; so however, that any such modification or
annulment shall be without prejudice to the validity of
anything previously done under that rule.
7.
Transitional
provisions.
Every
application
by
divorced woman under Section 125 or under Section 127 of the

Code of Criminal Procedure, 1973 pending before a Magistrate
on the commencement of this Act, shall notwithstanding
anything contained in that Code and subjected to the provisions
of Section 5 of this Act, be disposed of by such Magistrate in
accordance with the provisions of this Act.
APPENDIX VI
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON
DIVORCE) RULES, 1986
Ministry
of
Law
and
Justice
(Legislative
Department)
Notification No. G.S.R- 776 (E), dated 19 th May, 1986 published

the Gazettee of India, Extraordinary, part II, Section 3(i) dated
19.05.1986
In exercise of the powers conferred by Section 6 of the
Muslim Women (Protection of Rights on Divorce) Act, 1986 (25
of 1986), the Central Government hereby makes the following
rules for carrying out the purposes of the said Act, namely:
1.
Short title and commencement. 1. These rules may be called the Muslim Women (Protection
of Rights on Divorce) Rules, 1986.
2. They shall come into force at once.
2. Definitions. -In these rules, unless the context otherwise

requires,
(a) Act means the Muslim Women (Protection of Rights on
Divorce) Act, 1986 (25 of 1986);
(b) Code means the Code of Criminal Procedure, 1973 (2 of
1974); and
(c) Form means form annexed to these rules.
334
3. Service of summons.
1) Every summons issued by a Magistrate on an application
made under the Act, shall be in writing, in duplicate,
signed by the Magistrate or by such other officer as he
may, from time to time, direct, and shall bear the seal of
the Court.
2) Every such summons shall be accompanied by a true
copy of the application.
3) Every such summons issued under sub-rule (1) shall
specify the date of the first hearing of the application
which shall not be later than seven days from the date on
which the summons is issued.
4) Every summons shall be served by a police officer or by
an officer of the Court issuing it.
5) The summons shall, if practicable, be served personally
on the respondent, by delivering or tendering to him one
of the duplicates of the summons.
6) Every respondent on whom the summons is so served
shall, if so required by the serving officer, sign a receipt
on the back of other duplicate.
7) Where the respondent cannot, by the exercise of due
diligence, be found, the summons may be served by
leaving one of the duplicates for him with some adult
male member of his family residing with him, and the
335
person with whom the summons is so left shall, if so

required by the serving officer, sign a receipt therefor on
the back of the other duplicate.
8) If the service cannot, by the exercise of due diligence, be
effected as provided in sub-rule (6), or sub-rule (7), the
serving officer shall affix one of the duplicates of the
summons to some conspicuous part of the house or
homestead in which the respondent ordinarily resides;
and thereupon the Court, after making such inquiries as
it thinks fit, may either declare that the summons has
been duly served 1 or 2 order fresh summons in such
manner as it considers proper.
9) When a Court desires that a summons issued by it shall
be served at any place outside its local jurisdiction, it
shall ordinarily send such summons in duplicate to a
Magistrate
within
whose
local
jurisdiction,
the
respondent resides, or is, to be there served.

10) When a summons issued by a Court is served outside its
local jurisdiction and in any case when an officer who
served the summons is not present at the hearing of the
case, an affidavit purporting to be made before a
Magistrate that such summons has been served and a
duplicate of summons purporting to be enforsed in the
manner provided by sub-rule (6) or sub-rule (7) by the
336
person to whom it was delivered or tendered or with

whom it was left shall be admissible in evidence and the
statements made therein shall be deemed to be correct
unless and until the contrary is proved.
11) The affidavit mentioned in sub-rule (10) may be attached
to the duplicates of the summons and returned to the
Court.
4.
Evidence. -All evidence in the proceedings under the Act
shall be taken in the presence of the respondent against whom

an order for the payment of provision and maintenance, Mahr
or dower or the delivery of property is proposed to be made or,
when his personal attendance is dispensed with, in presence of
his pleader, and shall be recorded in the manner specified for
summary trial under the Code:
Provided that if the Magistrate is satisfied that the
respondent is wilfully avoiding service or wilfully neglecting to
attend the Court, the Magistrate may proceed to hear and
determine the case ex parte and any order so made may be set
aside for good cause shown on application made within seven
days from the date thereof subject to such terms as to payment
of cost to the opposite party as the Magistrate may think just
and proper.
5.
Power to postpone or adjourn proceedings. In every
application under the Act, the proceedings shall be held as
337
expeditiously
as
possible
and
in
particular,
when
the
examination of witnesses has once begun, the same shall be

continued from day to day until all the witnesses in attendance
have been examined unless the Court finds adjournment of the
same beyond the following day to be necessary for reasons to be
recorded.
6.
Costs. -The Court in dealing with the applications under
the Act shall have power to make such order as to cost as may
be just.
7.
Affidavit under Section 5. -An affidavit filed under
Section 5 of the Act shall be in Form A.

8.
Declaration under Section 5. -A declaration in [writing]
1 filed under Section 5 shall be in Form B.
Form A
FORM OF AFFIDAVIT
(See rule 7)
I/We son/wife of . aged .. years,
resident
of.......
and.
son/wife
of
..
Aged. years, resident of.hereby state on oath as

follows: 1.
That
I/we
have
informed
myself/ourselves
of
the
provisions of section 5 of the Muslim Women (Protection of

Rights on Divorce) Act, 1986 and of the provisions of
Sections 125 to 128 of the Code of Criminal Procedure,
1973.
2.
That I/we .desire to be governed by the provisions

of Section 125 to 128 of the Code of Criminal Procedure,
1973 in preference to the provisions of the Muslim Women
(Protection of Rights on Divorce) Act, 1986.
3.
That the contents of the above affidavit are true.
Deponent/Deponents.
Signed and verified at this the.. day of
19..
339
Deponent/Deponents.
340
Form B
FORM OF DECLARATION
(See rule 8)
I/weson/wife
of..aged.years,
resident of ............. and. son/wife of

aged.years, resident ofhereby declare as
follows :1.
That
I/we
have
informed
myself/ourselves
of
the
provisions of Section 5 of the Muslim Women (Protection

of Rights on Divorce) Act, 1986 and the provisions of
Sections 125 to 128 of the Code of Criminal Procedure,
1973.
2.
That I/we desire to be governed by the provisions

of Sections 125 to 128 of the Code of Criminal Procedure,
1973 in preference to the provisions of the Muslim Women
(Protection of Rights on Divorce) Act, 1986.
3.
That the contents of the above declaration are true.

Deponent/Deponents.
Signed and verified at. this the. day of..

19..
Deponent/Deponents.
APPENDIX VII
THE PARSI MARRIAGE AND DIVORCE
ACT, 1936
ACT No. 3 OF 1936
An Act to amend the law relating to marriage and divorce
among Parsis.
WHEREAS it is expedient to amend the law relating to marriage
and divorce among Parsis; It is hereby enacted as follows:[23rd April, 1936.]
I.-PRELIMINARY
INDIA CODE, VOL-VIA.
1. Short title extent and commencement.
1. (1)Short title extent and commencement. This Act may be
called the Parsi Marriage and Divorce Act, 1936.(2) 1*[It extends
to the whole of India except the State of Jammu and Kashmir]:
Provided that the Central Government may, in respect of
2*[territories which, immediately before the 1st November,
1956, were comprised in Part B States] by notification in the
Official Gazette, direct that the provisions of this Act relating to
the constitution and powers of Parsi Matrimonial Courts and to
appeals from the decisions and orders of such Courts shall
apply with such modifications as may be specified in the
notification.3*
(3) It shall come into force on such 4 date as the Central
Government may, by notification in the Official Gazette, appoint.
342
2. Definitions.
2. Definitions. In this Act, unless there is anything repugnant in
the subject or context,- (1) "Chief Justice" includes senior
Judge; (2) " Court " means a Court constituted under this Act;
(3) to " desert ", together with its grammatical variations and
cognate expressions, means to desert the other party to a
marriage without reasonable cause and without the consent, or
against the will, of such party;
1 Subs. by Act 3 of 1951. s. 3 and Sch., for certain words.
2 Subs. by the Adaptation of Laws (No. 3) Order, 1956, for "Part
B States."
3 In its application to Pondicherry, in section 1, in sub-section
(2), after the proviso, the following shall be inserted at the end"Provided further that nothing contained in this Act shall apply
to the Renoncants of the Union territory of Pondicherry."-(Vide
Act 26 of 1968). The Act has been extended to Dadra and Nagar
Haveli by Reg. 6. of 1963, s. 2 and Sch. I.
4 22nd June, 1936: see Gazette of India, 1936, Pt. I, p. 621---220.(4) "grievous hurt" means(a) emasculation ;
(b) permanent privation of the sight of either eye;
(c) permanent privation of the hearing of either ear;
(d) privation of any member or joint;
(e) destruction or permanent impairing of the powers of
any member or joint;
(f) permanent disfiguration of the head or face ; or
343
(g) any hurt which endangers life;

(5) "husband" means a Parsi husband;
(6) " marriage " means a marriage between Parsis whether
contracted before or after the commencement of this Act;
(7) a " Parsi " means a Parsi Zoroastrian ;
(8) " priest " means a Parsi priest and includes Dastur and
Mobed ; and
(9) "wife" means a Parsi wife.
II.-MARRIAGES BETWEEN PARSIS

3. Requisites to validity of Parsi marriages.
3. Requisites to validity of Parsi marriages.
1*[(1) No marriage shall be valid if(a) the contracting parties are related to each other in any
of the degrees of consanguinity or affinity set forth in
Schedule 1; or
(b) such marriage is not solemnized according to the Parsi
form of ceremony called " Ashirvad " by a priest in the
presence of two Parsi witnesses other than such priest ; or
2*[(c) in the case of any parsi (whether such Parsi has changed
his or her religion or domicile or not) who, if a male, has not
completed twenty-one years of age, and if a female, has not
completed eighteen years of age.]
3*[(2) Notwithstanding that a marriage is invalid under any of
the provisions of sub-section (1) any child of such marriage who
344
would have been legitimate if the marriage had been valid, shall
be legitimate.]
4. Remarriage when unlawful.
4.*(1)Remarriage when unlawful. No Parsi (whether such Parsi
has changed his or her religion or domicile or not) shall contract
any marriage under this Act or any other law in the lifetime of
his or her wife or husband, whether a Parsi or not, except after
his or her lawful divorce from such wife or husband or after his
or her marriage with such wife or husband has lawfully been
declared null and void or dissolved, and, if the marriage was
contracted with such wife or husband under the Parsi Marriage
and Divorce Act 18654 (15 of 1865),or under this Act, except
after a divorce, declaration or dissolution as aforesaid under
either of the said Acts.
5. Punishment of bigamy.
5. Punishment of bigamy. Every Parsi who during the lifetime of
his or her wife or husband, whether a Parsi or not, contracts a
marriage without having been lawfully divorced from such wife
or husband, or without his or her marriage with such wife or
husband having legally been declared null and void or
dissolved, shall be subject to the penalties provided in sections
494
and
495
of
the
Indian Penal Code (45 of 1860) for the offence of marrying again
during the lifetime of a husband or wife.
6. Certificate and registry of marriage.
6.
Certificate
contracted
and
under
registry
this
Act
of
marriage.
shall,
Every
immediately
marriage
on
the
solemnization thereof, be certified by the officiating priest in the

form
contained
in
Schedule
345
II. The certificate shall be signed by the said priest, the

contracting parties 1*** and two witnesses present at the
marriage;and the said priest shall thereupon send such
certificate together with a fee of two rupees to be paid by the
husband to the Registrar of the place at which such marriage is
solemnized. The Registrar on receipt of the certificate and fee
shall enter the certificate in a register to be kept by him for that
purpose and shall be entitled to retain the fee.
7. Appointment of Registrar.
7. Appointment of Registrar. For the purposes of this Act a
Registrar shall be appointed. Within the local limits of the
ordinary original civil jurisdiction of a High Court, the Registrar
shall be appointed by the Chief Justice of such Court, and
without such limits, by the State Government. Every Registrar
so appointed may be removed by the Chief Justice or State
Government appointing him.
8. Marriage register to be open for public inspection.
8. Marriage register to be open for public inspection. The
register of marriages mentioned in section 6 shall, at all
reasonable times, be open for inspection, and certified extracts
therefrom shall, on application, be given by the Registrar on
payment to him by the applicant of two rupees for each such
extract. Every such register shall be evidence of the truth of the
statements therein contained.
9. Copy of certificate to be sent to Registrar- General of
Births, Deaths and Marriages.
9. Copy of certificate to be sent to Registrar- General of Births,
Deaths and Marriages. Every Registrar, except the Registrar
appointed by the Chief Justice of the High Court of Judicature
346
at Bombay, shall, at such intervals as the State Government by

which he was appointed from time to time directs, send to the
Registrar-General of Births, Deaths and Marriages for the
territories administered by such State Government a true copy
certified by him in such form as such State Government from
time to time prescribes, of all certificates entered by him in the
said register of marriages since the last of such intervals.
10. Registration of divorces.
10. Registration of divorces. When a Court passes a decree for
divorce, nullity or dissolution, the Court shall send a copy of
the decree for registration to the Registrar of Marriages within
its jurisdiction appointed under section 7 ; the Registrar shall
enter the same in a register to be kept by him for the purpose,
and the provisions of Part II applicable to the Registrars and
registers of marriages shall be applicable, so far as may be, to
the Registrars and registers of divorces and decrees of nullity
and dissolution.
11. Penalty for solemnizing marriage contrary to section
4.11. Penalty for solemnizing marriage contrary to section 4.
Any priest knowingly and wilfully solemnizing any marriage
contrary to and in violation of section 4 shall, on conviction
thereof, be punished with simple imprisonment for a term
which may extend to six months, or with fine which may extend
to two hundred rupees, or with both.
12. Penalty for priests neglect of requirements of section
6.12. Penalty for priests neglect of requirements of section 6.
Any priest neglecting to comply with any of the requisitions
affecting him contained in section 6 shall, on conviction thereof,
be punished for every such offence with simple imprisonment
347
for a term which may extend to three months, or with fine

which may extend to one hundred rupees, or with both.
13. Penalty for omitting to subscribe and attest certificate.
13. Penalty for omitting to subscribe and attest certificate.
Every other person required by section 6 to subscribe or attest
the said certificate who shall wilfully omit or neglect so to do,
shall, on conviction thereof, be punished for every such offence
with a fine not exceeding one hundred rupees.
14. Penalty for making, etc., false certificate.
14. Penalty for making etc., false certificate. Every person
making or signing or attesting any such certificate containing a
statement which is false, and which he either knows or believes
to be false, shall be punished with simple imprisonment for a
term which may extend to three months, or with fine which may
extend to one hundred rupees, or with both ; and if the act
amounts to forgery as defined in the Indian Penal Code,(45 of
1860), then such person shall also be liable, on conviction
thereof, to the penalties provided in section 466 of the said
Code.
15. Penalty for failing to register certificate.
15. Penalty for failing to register certificate. Any Registrar failing
to enter the said certificate pursuant to section 6 shall be
punished
with
simple
imprisonment
for
term
which
223. may extend to one year, or with fine which may extend to
one thousand rupees, or with both.
16. Penalty for secreting, destroying or altering register.
16. Penalty for secreting, destroying or altering register. Any
person secreting, destroying, or dishonestly or fraudulently
348
altering the said register in any part thereof, shall be punished

with imprisonment of either description as defined in the Indian
Penal Code (45 of 1860) for a term which may extend to two
years, or if he be a Registrar, for a term which may extend to five
years and shall also be liable to fine which may extend to five
hundred rupees.
17.
Formal
irregularity
not
to
invalidate
marriage.
17. Formal irregularity not to invalidate marriage. No marriage

contracted under this Act shall be deemed to be invalid solely
by reason of the fact that it was not certified under section 6, or
that the certificate was not sent to the Registrar, or that the
certificate was defective, irregular or incorrect.
III.- PARSI MATRIMONIAL COURTS
18. Constitution of Special Courts under the Act.
18. Constitution of Special Courts under the Act. For the
purpose of hearing suits under this Act, a Special Court shall
be constituted in each of the Presidency-towns of Calcutta,
Madras and Bombay, and in such other places in the territories
of the several State Governments as such Governments
respectively shall think fit.
19. Parsi Chief Matrimonial Courts.
19. Parsi Chief Matrimonial Courts. The Court so constituted in
each of the Presidency-towns shall be entitled the Parsi Chief
Matrimonial Court of Calcutta, Madras or Bombay, as the case
may be. The local limits of the jurisdiction of a Parsi Chief
Matrimonial Court shall be conterminous with the local limits
of the ordinary original civil jurisdiction of the High Court. The
Chief Justice of the High Court, or such other Judge of the
349
same Court as the Chief Justice shall from time to time appoint
shall be the Judge of such Matrimonial Court, and, in the trial
of cases under this Act, he shall be aided 1[ by five delegates,
except in regard to
(a) interlocutory applications and proceedings;
(b) alimony and maintenance both permanent as well as
pendente lite;
(c) custody maintenance and education of children; and
(d) all matters and proceedings other than the regular hearing
of cases.]
20. Parsi District Matrimonial Courts.
20.
Parsi
District
Matrimonial
Courts.
Every
Court
so
constituted at a place other than a Presidency town shall be

entitled the Parsi District Matrimonial Court of such place.
Subject to the provisions contained in section 21, the local
limits of the jurisdiction of such Court shall be conterminous
with the limits of the district in which it is held. The Judge of
the principal Court of original civil jurisdiction at such place
shall be the Judge of such Matrimonial Court, and in the trial
of cases under this Act he shall be aided 1[by five delegates,
except
in
regard
to--
(a)
interlocutory
applications
and
proceedings;
(b) alimony and maintenance, both permanent as well as
pendente lite;
(c) custody maintenance and education of children; and
(d) all matters and proceedings other than the regular hearing
of cases
350
21. Power to alter territorial jurisdiction of District Courts.

21. Power to alter territorial jurisdiction of District Courts.
The State Government may from time to time alter the local
limits of the jurisdiction of any Parsi District Matrimonial
Court, and may include within such limits any number of
districts under its government.
22. Certain districts to be within jurisdiction of the Chief
Matrimonial Court.
22. Certain districts to be within jurisdiction of the Chief
Matrimonial Court.Any district which the State Government, on
account of the fewness of its Parsi inhabitants, shall deem it
inexpedient to include within the jurisdiction of any District
Matrimonial Court, shall be included within the jurisdiction of
the Parsi Chief Matrimonial Court for the territories under such
State Government where there is such a Court.
23. Court seals.
23. Court seals. A seal shall be made for every Court
constituted under this Act, and all decrees and orders and
copies of decrees and orders of such Court shall be sealed with
such seal, which shall be kept in the custody of the presiding
Judge.
24. Appointment of delegates.
24. Appointment of delegates. (1) The State Government, shall,
in the Presidency-towns and districts subject to their respective
governments, respectively appoint persons to be delegates to aid
in the adjudication of cases arising under this Act, after giving
the local Parsis an opportunity of expressing their opinion in
such manner as the respective Governments may think fit.
351
(2) The persons so appointed shall be Parsis, their names shall

be published in the Official Gazette and their number shall,
within the local limits of the ordinary original civil jurisdiction
of a High Court, be not more than thirty, and in districts beyond
such limits, not more than twenty,
25. Power to appoint new delegates.
25. Power to appoint new delegates. The appointment of a
delegate shall be for ten years ; but he shall be eligible for
reappointment for the like term or terms. Whenever a delegate
shall die, or have completed his term of office, or be desirous of
relinquishing his office, or refuse or become incapable or unfit
to act, or cease to be a Parsi, or be convicted of an offence
under the Indian Penal Code (45 of 1860) or other law for the
time being 1[in force involving moral turpitude] or be adjudged
insolvent, then and so often the State Government may appoint
any person being a Parsi to be a delegate in his stead ; and the
name of the person so appointed shall be published in the
Official Gazette.
26. Delegates to be deemed public servants.
26. Delegates to be deemed public servants. All delegates
appointed under this Act shall be considered to be public
servants within the meaning of the Indian Penal Code. (45 of
1860)
27. Selection of delegates under sections 19 and 20 to be
from those appointed under section 24.27. Selection of
delegates under sections 19 and 20 to be from those appointed
under section 24. The delegates selected under sections 19 and
20 to aid in the adjudication of suits under this Act, shall be
taken under the orders of the presiding Judge of the Court in
352
due rotation from the delegates appointed by the State

Government under section 24:Provided that each party to the
suit may, without cause assigned, challenge any 1[two] of the
delegates attending the Court before such delegates are selected
and no delegate so challenged shall be selected.
28. Practitioners in Matrimonial Courts.
28. Practitioners in Matrimonial Courts. All legal practitioners
entitled to practise in a High Court shall be entitled to practise
in any Court constituted under this Act, and all legal
practitioners entitled to practise in a District Court shall be
entitled to practise in any Parsi District Matrimonial Court
constituted under this Act.
29. Court in which suits to be brought.
29. Court in which suits to be brought. (1) All suits instituted
under this Act shall be brought in the Court within the limits of
whose jurisdiction the defendant resides at the time of the
institution of the suit 2[ or where the marriage under this Act
was solemnized.]
(2) When the defendant shall at such time have left 3*[the territories to which this Act extends] such suit shall be brought in
the Court at the place where the plaintiff and defendant last
resided together.
(3) In any case, whether the defendant resides in 3[the
territories to which this Act extends] or not, such suit may be
brought in the Court at the place where the plaintiff resides or
at the place where the plaintiff and the defendant last resided
together, if such Court, after recording its reasons in writing,
grants leave so to do.
353
IV.-MATRIMONIAL SUITS
30. Suits for nullity.
30. Suits for nullity. In any case in which consummation of the
marriage is from natural causes impossible, such marriage may,
at the instance of either party thereto, be declared to be null
and void.
31. Suits for dissolution.
31. Suits for dissolution. If a husband or wife shall have been
continually absent from his or her wife or husband for the
space of seven years, and shall not have been heard of as being
alive within that time by those persons who would have
naturally heard of him or her, had he or she been alive, the
marriage of such husband or wife may, at the instance of either
party thereto, be dissolved.
32. Grounds for divorce.
32. Grounds for divorce. Any married person may sue for
divorce on any one or more of the following grounds, namely:(a) that the marriage has not been consummated within one
year after its solemnization owing to the wilful refusal of the
defendant to consummate it ;
(b) that the defendant at the time of the marriage was of
unsound mind and has been habitually so up to the date of the
suit:
Provided that divorce shall not be granted on this ground,
unless the plaintiff (1) was ignorant of the fact at the time of the
marriage, and (2) has filed the suit within three years from the
date of the marriage 1[(bb) that the defendant has been
354
incurably of unsound mind for a period of two years or upwards

immediately preceding the filing of the suit or has been
suffering continuously or intermittently from mental disorder of
such kind and to such an extent that the plaintiff cannot
reasonably be expected to live with the defendant.
Explanation.-In this clause,(a) the expression "mental disorder" means mental illness,
arrested or incomplete development of mind, psychopathic
disorder or any other disorder or disability of mind and includes
schizophrenia;
(b) the expression "psychopathic disorder" means a persistent
disorder or disability of mind (whether or not including sub
normality of intelligence) which results in abnormally aggressive
or seriously irresponsible conduct on the part of the defendant,
and whether or not it requires or is susceptible to medical
treatment;]
(c) that the defendant was at the time of marriage pregnant by
some person other than the plaintiff:
unless
1) the plaintiff was at the time of the marriage ignorant of
the fact alleged,
(2) the suit has been filed within two years of the date of
marriage, and
(3) marital intercourse has not taken place after the
plaintiff came to know of the fact ;
355
(d) that the defendant has since the marriage committed

adultery or fornication or bigamy or rape or an unnatural
offence:
Provided that divorce shall not be granted on this ground if the
suit has been filed more than two years after the plaintiff came
to know of the fact ;
1*[(dd) that the defendant has since the solemnization of the
marriage treated the plaintiff with cruelty or has behaved In
such a way as to render it in the judgment of the Court
improper to compel the plaintiff to live with the defendant:
Provided that in every suit for divorce on this ground it shall be
in the discretion of the Court whether it should grant a decree
for divorce or for judicial separation only;]
(e) that the defendant has since the marriage voluntarily cause
grievous hurt to the plaintiff or has infected the plaintiff with
venereal disease or, where the defendant is the husband, has
compelled the wife to submit herself to prostitution:
Provided that divorce shall not be granted on this ground if the
suit has been filed more than two years (i) after the infliction of
the grievous hurt, or (ii) after
(f) that the defendant is undergoing a sentence of imprisonment
for seven years or more for an offence as defined in the Indian
Penal Code (45 of 1860):
unless the defendant has prior to the filing of the suit
undergone at least one years imprisonment out of the said
period ;
356
(g ) that the defendant has deserted the plaintiff for at least

1[two years].
(h) that 2*** an order has been passed against the defendant by
a Magistrate awarding separate maintenance to the plaintiff,
and the parties have not had marital intercourse for 1[one year]
or more since such decree or order;
(j) that the defendant has ceased to be a Parsi 3[by conversion
to another religion]; Provided that divorce shall not be granted
on this ground if the suit has been filed more than two years
after the plaintiff came to know of the fact. 4[32A. Nonresumption of cohabitation or restitution of conjugal rights
within one year in pursuance of a decree to be ground for
divorce. (1) Either party to marriage, whether solemnized before
or after the commencement of the Parsi Marriage and Divorce
(Amendment) Act, 1988, may sue for divorce also on the
ground,(i) that there has been no resumption of cohabitation as
between the parties to the marriage for a period of one
year or upwards after the passing, of a decree for judicial
separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as
between the parties to the marriage for a period of one
year or upwards after the passing of a decree for
restitution of conjugal rights in a proceeding to which
they were parties. (2) No decree for divorce shall be
granted under sub-section (1) if the plaintiff has failed or
neglected to comply with an order for maintenance passed
against him under section 40 of this Act or section 488 of
the Code of Criminal Procedure, 1898 (5 of 1898) or
357
section 125 of the Code of Criminal Procedure, 1973 (2 of

1974).
32B. Divorce by mutual consent.
(1) Subject to the provisions of this Act, a suit for divorce may
be filed by both the parties to a marriage together, whether such
marriage was solemnized before or after the commencement of
the Parsi Marriage and Divorce (Amendment) Act, 1988, on the
ground that they have been living separately for a period of one
year or more, that they have not been able to live together and
that they have mutually agreed that the marriage should be
dissolved:
Provided that no suit under this sub-section shall be filed
unless at the date of the filing of the suit one year has lapsed
since the date of the marriage.
(2) The Court shall, on being satisfied, after hearing the parties
and after making such inquiry as it thinks fit, that a marriage
has been solemnized under this Act and the averments in the
plaint are true and that the consent of either party to the suit
was not obtained by force or fraud, pass a decree declaring the
marriage to be dissolved with effect from the date of the decree.]
33. Joining of co-defendant.
33. Joining of co-defendant. In every such suit for divorce on
the ground of adultery, the plaintiff shall, unless the Court
shall otherwise order, make the person with whom the adultery
is alleged to have been committed a co-defendant, and in any
such suit by the husband the Court may order the adulterer to
pay the whole or any part of the costs of the proceedings.
358
34. Suits for judicial separation. Any married person may sue
for judicial separation on any of the grounds for which such
person could have filed a suit for divorce 5* * *.
35. Decrees in certain suits.
35. Decrees in certain suits. In any suit under section 30, 31,
32, 6*[32A] or 34, whether defended or not, if the Court be
satisfied that any of the grounds set forth in those sections for
granting relief exist, that none of the grounds therein set forth
for withholding relief exist and that(a) the act or omission set forth in the plaint has not been
condoned;
(b) the husband and wife are not colluding together;
(c) the plaintiff has not connived at or been accessory to the
said act or omission;
(d) (save where a definite period of limitation is provided by this
Act) there has been no unnecessary or improper delay in
instituting the suit ; and
(e) there is no other legal ground why relief should not be
granted
then and in such case, but not otherwise, the Court shall
decree such relief accordingly.
36. Suit for restitution of conjugal rights.
36. Suit for restitution of conjugal rights. Where a husband
shall have deserted or without lawful cause ceased to cohabit
with his wife, or where a wife shall have deserted or without
lawful cause ceased to cohabit with her husband, the party so
deserted or with whom cohabitation shall have so ceased may
359
sue for the restitution of his or her conjugal rights and the
Court, if satisfied of the truth of the allegations contained in the
plaint, and that there is no just ground why relief should not be
granted, may proceed to decree such restitution of conjugal
rights accordingly.
37. Counter-claim by defendant for any relief.
37. Counter-claim by defendant for any relief. In any suit under
this Act, the defendant may make a counterclaim for any relief
he or she may be entitled to under this Act.
38. Documentary evidence.
1[38.
Documentary
evidence.
Notwithstanding
anything
contained in any other law for the time being in force, no

document shall be inadmissible in evidence in any proceeding
at the trial of a suit under this Act on the ground that It is not
duly stamped or registered.]
39. Alimony pendente lite.
2[39. Alimony pendente lite. Where in any suit under this Act, it
appears to the Court that either the wife or the husband, as the
case may be, has no independent income sufficient for her or
his support and the necessary expenses of the suit, it may, on
the application of the wife or the husband, order the defendant
to pay to the plaintiff, the expenses of the suit, and such weekly
or monthly sum, during the suit, as, having regard to the
plaintiffs own income and the income of the defendant, it may
seem to the Court to be reasonable.
40. Permanent alimony and maintenance.
40. Permanent alimony and maintenance.
360
(1) Any Court exercising jurisdiction under this Act may, at the
time of passing any decree or at any time subsequent thereto,
on an application made to it for the purpose by either the wife
or the husband, order that the defendant shall pay to the
plaintiff for her or his maintenance and support, such gross
sum or such monthly or periodical sum, for a term not
exceeding the life of the plaintiff as having regard to the
defendants own income and other property, if any, the income
and other property of the plaintiff, the conduct of the parties
and other circumstances of the case, it may seem to the Court
to be just, and any such payment may be secured, if necessary,
by a charge on the movable or immovable property of the
defendant.
(2)The Court if it is satisfied that there is change in the
circumstances of either party at any time after it has made an
order under sub-section (1), it may, at the instance of either
party, vary, modify or rescind any such order in such manner as
the Court may deem just.
(3)The Court if it is satisfied that the party in whose favour an
order has been made under this section has remarried or, if
such party is the wife, that she has not remained chaste, or, if
such party is the husband, that he had sexual intercourse with
any woman outside wedlock, it may, at the instance of the other
party, vary, modify or rescind any such order in such manner as
the Court may deem just.
41.
Payment
of alimony
to
wife
or
to
her
trustee.
41. Payment of alimony to wife or to her trustee. In all cases in

which the Court shall make any decree or order for alimony it
may direct the same to be paid either to the wife herself, or to
any trustee on her behalf to be approved by the Court 1[or to a
361
guardian appointed by the court,]and may impose any terms or

restrictions which to the Court may seem expedient, and may
from time to time appoint a new trustee, 1[or guardians] if for
any reason it shall appear to the Court expedient so to do.
42. Disposal of joint property.
42. Disposal of joint property. In any suit under this Act the
Court may make such provisions in the final decree as it may
deem just and proper with respect to property presented at or
about the time of marriage which may belong jointly to both the
husband and wife.
43. Suits to be heard in camera and may not be printed or
published.
43. Suits to be heard in camera and may not be printed or
published. (1) Every suit filed under this Act shall be tried in
camera and it shall not be lawful for any person to print or
publish any matter in relation to any such case except a
judgment of the Court printed or published with the previous
permission of the Court.
(2) If any person prints or publishes any matter in contravention
of the provisions contained in sub-section (1), he shall be
punishable with fine which may extend to one thousand
rupees.]
44. Validity of trial.
44. Validity of trial. Notwithstanding anything contained in
section 19 or section 20 where in the case of a trial in a Parsi
Matrimonial Court not less than 3[three] delegates have
attended throughout the proceedings, the trial shall not be
362
invalid by reason of the absence during any part thereof of the

other delegates.
45. Provisions of Civil Procedure code to apply to suits
under the Act.
45. Provisions of Civil Procedure code to apply to suits under
the Act. The provisions of the Code of Civil Procedure, 1908 (5
of 1908), shall, so far as the same may be applicable, apply to
proceedings in suits instituted under this Act including
proceedings in execution and orders subsequent to decree:
4[Provided that the presiding Judge shall read out to the
delegates the relevant sections of this Act, and may, if he
consider it necessary so to do, explain the same:
Provided further that a verbatim record shall be made of what
the pesiding Judge reads out or explains to the delegates.]
46. Determination of question of law and procedure and of
fact.
46. Determination of question of law and procedure and of fact.
In suits under this Act all questions of law and procedure shall
be determined by the presiding Judge ; but the decision on the
facts shall be the decision of the majority of the delegates before
whom the case is tried:
Provided that, where such delegates are equally divided in
opinion, the decision on the facts shall be the decision of the
presiding Judge.
47. Appeal to High Court.
47. Appeal to High Court. 5[(i)] An appeal shall lie to the High
Court from- (a) the decision of any Court established under this
363
Act, whether a Chief Matrimonial Court or District Matrimonial

Court, on the ground of the decision being contrary to some law
or usage having the force of law, or of a substantial error or
defect in the procedure or investigation of the case which may
have produced error or defect in the decision of the case upon
the merits, and on no other ground ; and
(b) the granting of leave by any such Court under subsection (3) of section 29 :
Provided that such appeal shall be instituted within three
calendar months after the decision appealed from shall have
been pronounced.
1[(2) Every appeal under sub-section (1) shall be heard by a
Bench of two judges of the High Court.]
48. Liberty to parties to marry again.
48. Liberty to parties to marry again. When the time 2***
limited for appealing against any decree granting a divorce or
annulling or dissolving a marriage shall have expired, and no
appeal shall have been presented against such decree, or when
any such appeal shall have been dismissed, or when in the
result of any appeal a divorce has been granted or a marriage
has been declared to be annulled or dissolved, but not sooner, it
shall be lawful for the respective parties thereto to marry again
2* * *.
V.-CHILDREN OF THE PARTIES

49. Custody of children.
364
49. Custody of children. In any suit under this Act, the Court
may from time to time pass such interim orders and make such
provisions in the final decree as it may deem just and proper
with respect to the custody, maintenance and education of the
children under the age of 3[eighteen years] the marriage of
whose parents is the subject of such suit, and may, after the
final decree upon application, by petition for this purpose,
make, revoke, suspend or vary from time to time all such orders
and provisions with respect to the custody, maintenance and
education of such children as might have been made by such
final decree or by interim orders in case the suit for obtaining
such decree were still pending.
50. Settlement of wifes property for benefit of children.
50. Settlement of wifes property for benefit of children. In any
case in which the Court shall pronounce a decree of divorce or
judicial separation for adultery of the wife, if it shall be made to
appear to the Court that the wife is entitled to any property
either in possession or reversion, the Court may order such
settlement as it shall think reasonable to be made of any part of
such property, not exceeding one-half thereof, for the benefit of
the children of the marriage or any of them.
VI.-MISCELLANEOUS
51. Superintendence of High Court.
51. Superintendence of High Court. The High Court shall have
superintendence over all Courts constituted under this Act
subject to its appellate jurisdiction in the same manner as it
has over other Courts under 1[article 227 of the Constitution]
and all the provisions of 2[that article] shall apply to such
Courts.
365
52. Applicability of provisions of the Act.

52. Applicability of provisions of the Act. (1) The provisions of
this Act shall apply to all suits to which the same are applicable
whether the circumstances relied on occurred before or after
the passing of this Act, and whether any decree or order
referred to was passed under this Act or under the law in force
before the passing of this Act, and where any proceedings are
pending in any Court at the time of the commencement of this
Act, the Court shall allow such amendment of the pleadings as
may be necessary as the result of the coming into operation of
this Act.
(2) A Parsi who has contracted a marriage under the Parsi
Marriage and Divorce Act, 1865,3 (15 of 1865) or under this
Act, even though such Parsi may change his or her religion or
domicile, so long as his or her wife or husband is alive and so
long as such Parsi has not been lawfully divorced from such
wife or husband or such marriage has not lawfully been
declared null and void or dissolved under the decree of a
competent Court under either of the said Acts, shall remain
bound by the provisions of this Act.
53. Repeal.
53. [ Repeal.] Rep. by the Repealing and Amending Act, 1937
(20.of 1937), s. 3 and Sch. II.
SCHEDULE 1.
(See section 3)
Table of prohibited degrees of consanguinity and affinity
A man shall not marry his-
366
1. Paternal grand-fathers mother.

2. Paternal grand-mothers mother.
3. Maternal grand-fathers mother.
4. Maternal grand-mothers mother.
5. Paternal grand-mother.
6. Paternal grand-fathers wife.
7. Maternal grand-mother.
8. Maternal grand-fathers wife.
9. Mother or step-mother.
10. Fathers sister or step-sister.
11. Mothers sister or step-sister.
12. Sister or step-sister.
13. Brothers daughter or step-brothers daughter, or any direct
lineal descendant of a brother or step-brother.
14. Sisters daughter or step-sisters daughter, or any direct
lineal descendant of a sister or step-sister.
15. Daughter or step-daughter, or any direct lineal descendant
of either.
16. Sons daughter or step-sons daughter, or any direct lineal
descendant of a son or step-son.
17. Wife of son or step-son, or of any direct lineal descendant of
a son or step-son.
367
18. Wife of daughters son or of step-daughters son, or of any

direct lineal descendant of a daughter or step-daughter.
19. Mother of daughters husband.
20. Mother of sons wife.
21. Mother of wifes paternal grand-father.
22. Mother of wifes paternal grand-mother.
23. Mother of wifes maternal grand-father.
24. Mother of wifes maternal grand-mother.
25. Wifes paternal grand-mother.
26. Wifes maternal grand-mother.
27. Wifes mother or step-mother.
28. Wifes fathers sister.
29. Wifes mothers sister.
30. Fathers brothers wife.
31. Mothers brothers wife.
32. Brothers sons wife.
33. Sisters sons wife.
A woman shall not marry her--1. Paternal grand-fathers father.
2. Paternal grand-mothers father.
3. Maternal grand-fathers father.
4. Maternal grand-mothers father.
368
5. Paternal grand-father.
6. Paternal grand-mothers husband.
7. Maternal grand father.
8. Maternal grand-mothers husband.
9. Father or step-father.
10. Fathers brother or step-brother.
11. Mothers brother or step-brother.
12. Brother or step-brother.
13. Brothers son or step-brothers son, or any direct lineal
descendant of a brother or step-brother.
14. Sisters son or step-sisters son, or any direct lineal
descendant of a sister or step-sister.
15. Son or step-son, or any direct lineal descendant of either.
16. Daughters son or step-daughters son, or any direct lineal
descendant of a daughter or step-daughter.
17. Husband of daughter or of step-daughter, or of any direct
lineal descendant of a daughter or step-daughter
18. Husband of sons daughter or of step-sons daughter, or of
:any direct lineal descendant of a son or step-son.
19. Father of daughters husband.
20. Father of sons wife.
21. Father of husbands paternal grand-father.
22. Father of husbands paternal grand-mother.
369
23. Father of husbands maternal grand-father.

24. Father of husbands maternal grand-mother.
25. Husbands paternal grand-father.
26. Husbands maternal grand-father.
27. Husbands father or step-father.
28. Brother of husbands father.
29. Brother of husbands mother.
30. Husbands brothers son, or his direct lineal descendant.
31. Husbands sisters son, or his direct lineal descendant.
32. Brothers daughters husband.
33. Sisters daughters husband.
370
SCHEDULE II
Certificate of Marriage
SCHEDULE II
(See section 6)
Certificate
of
Marriage-------------------------------------------------------Date
place
of
Names
of
and
marriage.---------------------------------the
husband
and
wife
--------------------------------------------------------------------Conditio
n
at
the
time
of
marriage.
---------------------------------------------------------------------Rank
or
profession--------------------------------------------------------------------Age.---------------------------------------------------------Residence.
----------------------------------------------------------Names
of
the
fathers or guardians.-------------------------------------------Rank or
profession.---------------------------------------------------Signatures
of
the
officiating
priest.-----------------------------------------------------Signature
the
of
contracting
parties.--------------------------------------------------------------------Signatures of the fathers or guardians of the contracting parties

under
21
years
of
age.--------------------------------------------------------------------Signatures
of
witnesses.--------------------------------------------------------------NOTE.-In the above table the words " brother " and "sister"
denote brother and sister of the whole as well as half blood.
Relationship by step means relationship by marriages.
371
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: Uniform Civil Code, A myth? Cochin

University Law Review, 1988 Sept. 12.
Shabbir,
Mohammad
: Muslim Personal Law Uniform Civil Code

and Judicial Activism : A Critique,
Aligarh Law Journal, 1997.
Shekhawat, S.P.S.
: Article 44 of the Constitution of India

(Its public and academic response)
Journal of Legal Studies , 2003-2004.
Acts and Bills

The Commission of Sati (Prevention) Act, 1987.
Constitution of India.
Criminal Procedure Code, 1973.
Dissolution of Muslim Marriage Act, 1939
Muslim Personal Law(Shariat) Application Act, 1937.
Muslims Women's (Protection of Right on Divorce) Act, 1986.
Parsi Marriage and Divorce Act, 1936.
The Adoption of Children Bill, 1980.
The Child Marriage Restraint Act 1929.
381
The Hindu Marriage Act, 1955.

The Indian Christian Marriage, 1872
The Indian Divorce Act, 1969.
The Special Marriage Act, 1872.
The Special Marriage Act, 1954 as amended in 1963 and 1976.

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Muslim Personal Law,

Uniform Civil Code and Judicial

THESIS SUBMITTED TO THE

FOR THE AWARD OF DEGREE OF

(Dr. Mohd. Ahmad)

Personal Laws and Hindu in India

Hindu Law and The Legislature

Act Affecting the Substantive Provisions of Muslim

Personal laws and the Indian Constituent Assembly

Conflict between Hindu Law and Christian Law

The Muslim Personal Law (Shariat) Application Act, 1937

(Associate Professor) Faculty of

Law, University of Lucknow, Lucknow

for his cognate attitude,

skillful guidance and continued encouragement during the course of

I would like to special thanks to my respected teacher Dr.

academician and bureaucrats who came in my contact during the

Prabodh Kumar Garg

All England Law Reports

All India Reporter

Allahabad Journal of Company Law

Allahabad Law Journal

Allahabad Laws Journals, Journal Section

Andhra Pradesh (A.I.R.)

Ashish Publishing House

Bombay High Courts Reports

Bengal Law Reporter

Bombay Law Reporter Journal

Bombay Law Reporter

Comparative Law Quarterly

Calcutta Weekly Notes

Criminal Law Journal

Criminal Procedure Code

Divorce and Matrimonial Cases

High Court Reports

Indian Law Reports

Journal of Indian Law Institute

Kerala Law Times

Moore's Indian Appeals

Madras Law Weekly

Matrimonial Law Reports

Punjab Law Reports

Supreme Court Cases

Supreme Court Journals

Weekly Law Reports

Abdullah v. Chandni, AIR 1956 Bhobal 71

Ahmedabad Women Action Group v. Union of India, (1997) 3

Badruddin v. Aisha, (1957) ALJ 300

Bal Tahir v. All Fissali, AIR 1980 SC 362

Begum Subanu Alias Saira Banu v. A.M.Abdul Gafoor, AIR

Bhagwal Dutt v. Smt. Kamla Devi, 1975 SC 84

Bishnu Charan Mohanty v. Union of India, AIR 1993 Ori. 176

D.S. Nakara v. Union of India, AIR 1983 SC 130

F. N. Balsara v. State of Bombay, AIR 1959 SC 318

Fuzlundi v. Khadar Vali, AIR 1980 SC 1730

Gurdidal Kaur v. Mamgal Singh, AIR 1968 P & H

H.B. Singh v. Bhani, AIR 1959 Manipur 20

Hyde v. Hyde, 1986, P & D 130

Itwari v. Asghari, AIR 1960 All 684

Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1473

Khambatta vs. Khambatta, AIR 1935 Bomb. 5

M.H. Qureshi v. State of Bihar, 1959 SCR 629

Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125 p. 135

Mangila Bivi v. Noor Hossain, AIR 1992 Cal. 92