Constitutionality of Personal Laws

in India

By:
Bhavya Mishra
Symbiosis Law School NOIDA
Ph- +918750734602
Email- imishra907@gmail.com

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TABLE OF CONTENTS
Table of Cases
1. Introduction
2. What is Constitutionality
2.1

372

2.2

Article 13
2.2.1 Laws in force
2.2.2 Laws

3. Conflict of Personal Laws and certain provisions of the Constitution

3.1

Article 15 and 25

3.2

Article 21

4. Personal laws and Women in India

4.1

Triple Talaq in Muslims

4.2

Bigamy by Conversion

4.3

Get in Jews

5. Personal Laws and the Constitution

5.1

Personal laws are subject to JR

5.2

Personal laws are not subject to JR

5.2.1 Narsu Appa Mali
5.2.2 Post Narsu Appa Mali

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

7. Need of a Uniform Civil Code
8. Conclusion
9. Bibliography

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TABLE OF CASES
A
Ahmedabad Woman Action Group v Union of India, AIR 1997 SC 3614
Ammini E J and Another v Union, 1995(1) KLJ 624
D
Daniel Latifi V Union of India, (2001) 7 SCC 740
D.S. Nakara v. Union of India and Others, 1983 AIR 130
K
Khatoon Nisa v State of U.P., 2003(3) PLJR 126
L
Lily Thomas, Etc. Etc. v Union of India, AIR 2000 SC 1650
M
Madhu Kishwar v State of Bihar, (1996) 5 SCC 125
Mary Sonia Zachariah v. Union of India, ILR 1995(2) Kerala 431
Masilmani Mudaliar v Idol of Sri Swaminathaswami thirukoil, (1996)8 SCC
525
Mohammad Umar v Amir Mohammad, AIR 1958 MP 423
P
P E Mathew v Union of India, AIR 1999 Ker 345
S
Saroj Rani v Surdashan Chadda, AIR 1984 SC 1562

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Saumya Ann Thomas v Union of India, 2010(1) KLJ 449

Srinivasa Aiyar v Saraswati Ammal, AIR 1952 Mad. 193
State of Bombay v Narsu Appa Mali, ILR Bom 1951 775
T
T Sareetha v T Venkatubiah, (1983) AIR 5 AP 356

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1. Introduction
This is a court of law, young man, not a court of justice.
- Oliver Wendell Holmes, Jr.
India is a diverse country where people of various caste, religion and
creed reside. Keeping in mind this diversity the constituent assembly
opted for a detailed written Constitution; the essence of which is
Constitutionalism. This means that there is constitutional checks and
balance on the power of the legislature and executive. This has been
provided by Article 13 and 372. Thus, every law in India has to pass this
test of Constitutionality.
If we go by this simple phenomenon we may conclude that the same
would apply to Personal Laws also. But this is not the case in India. In
several circumstances the courts in India have turned futile in answering
this question. They have held that Personal Laws in India are not subject
to Judicial Review. The courts have clarified that these laws having their
origin from religious scriptures cannot be challenged on the grounds of
Fundamental Rights. This policy of the Courts has put forward many
questions.
The proposed study finds out the reasons which have provoked the
Courts to come to such a conclusion. It not only discusses how these
laws violate Article 14, 15 and 19 of the Constitution but also discusses
the scope of Article 25 in the same context. It finds out whether the
Courts in India are correct in saying that this is a matter for the
legislature to decide and legislate upon and justifying this statement in

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lieu of Article 44 by further saying that it signifies the intention of

Constitution makers.

2. What is Constitutionality?
Constitutionality of personal laws does not mean that the personal laws
are subject to the entire constitution. It means that the personal laws
are subject to Part III of the Constitution of India, 1950. This covers the
fundamental rights of the people. Article 13 provides that any law or law
in force in contravention of fundamental rights guaranteed in Part III
would be void to extent of contravention or inconsistency.

2.1 Article 372

Article 372 of the Indian Constitution provides that any law in force in
the territory of India of India prior to the commencement of this
constitution will continue to remain in force unless it has specifically
been repealed, altered or amended by the legislature or any other
competent authority. This principle has been applied in the case of
Mohammad Umar v Amir Mohammad1 wherein it has been held:
If the personal law applicable to persons of all religious faiths, of all sects, and
of all colours and of all races does not stand abrogated by the newly made
constitution - It would be futile to single out the Muslim customary law of preemption and put it to the test of reasonableness...

1 AIR 1958 MP 423

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2.2 Article 13
Article 13 of the constitution provides for laws and laws in force. It
defines both laws and laws in force and further also provides when these
laws and laws in force would be valid and when they will be liable to be
struck down. It provides when they will be void and to what extent.
2.2.1 Laws in force
Article 13(3) (b) defines laws in force as any law passed by the
legislature or any other competent authority prior to the commencement
of the constitution and which has not been repealed previously. It further
adds that whether that law has been in operation at that point of time in
one or all areas does not matter. The fact that it was made and not
repealed is enough.
Article 13(1) further elaborates on this point and mentions when the
laws in force would be valid. It says that any law in force in the territory
of

India

prior

to

the

commencement

of

the

constitution,

if

in

contravention with the provisions of Part III would be to void to the

extent of contravention. This means that Personal laws if considered to
be laws have to necessarily pass the test of constitutionality.
If any personal law whether codified or uncodified violates any provision
of Part III, it would be ultra vires and thus, would be liable to be struck
down. However, the courts in India have taken a different view point in
several view point. They have held that Personal laws do not come within

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the ambit of laws in force. This aspect was highlighted in the case of P E
Mathew v Union of India2.
In this case the question which arose before the Kerala High court was
whether personal laws come within the ambit of law as defined in Article
13. It held that personal laws are not laws as defined in Article 13 and
therefore they are not subject to judicial review and they need not pass
the test of constitutionality. Based on this assumption, the Section 17 of
Divorce Act3 which was challenged was held not to be ultra vires the
Constitution.
2.2.2 Laws
Article 13(3) (a) defines the term law. It says that law includes any
ordinance, order, bye-law, rule, regulation, notification, custom or usage
having in the territory of India the force of law. Clause 2 of this article
further elaborates that the state shall not make any law which takes
away the fundamental rights of the people and any law made in
contravention of this clause should be to the extent of contravention,
void. This clause if elaborated means that if any personal law enacted by
the parliament takes away the fundamental rights of the people, it would
be to that extent void.

3. Conflict of personal laws and certain

provisions of Constitution
2 AIR 1999 Ker 345

3 Central Act 4 of 1869

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3.1 Article 15 and 25

A very important question which has come before the courts several
times is with respect to freedom of religion. The question has arisen in
cases like Srinivasa Aiyar v saraswati Ammal4. In the case, an act
called the Hindu Bigamy Prevention and Divorce Act 5 was passed by the
state of Madras. The act was challenged on several grounds. One of this
was that the act prohibited on the grounds of religion as it was made
applicable only on the Hindus.
It was further contended that the state could not discriminate only o the
grounds of religion. The court rejected the plea and held that the act was
not ultra vires. This was because article 25 provided that the state may
discriminate

on

the

basis

of

religion

provided

the

ground

for

discrimination is reasonable. This reasonable discrimination includes

public morality. Since monogamy is moral and is more preferred in a
civilized society, the act was a valid one.

3.2 Article 21
Article 21 talks about right to life and personal liberty. This provides that
a person shall not be deprived of his right to life and personal liberty
except according to procedure established by law. This has been used by
the courts in several instances to provide justice to the aggrieved women

4 AIR 1952 Mad 193

5 Madras Act VI of 1949

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in India. The court in Ammini E J and Another v Union 6 India said

that personal laws are subject to Article 21 which talks about right to
liberty of an individual.
The petition was filed by a Christian lady who challenged that Section 10
of Indian Divorce Act, 1869 violated her fundamental rights. The section
provides for the grounds of divorce. It provided that for cruelty and
desertion to be taken as a ground for divorce, adultery also had to be
established. Divorce could not be granted unless adultery was proved on
the part of the spouse. The court held this section ultra vires and
subsequently elaborated that:
For a Christian wife to be compelled to live least in name as a wife of a
person, who has deserted her, cruelly treated her, who has no love and regard
to her and who she hates and considers as a wrecker of her married life will be
to live as a slave without dignity and personal liberty guaranteed to every
person under Article 21 of the Constitution of India...

4. Personal Laws and Women in India

In India the personal laws are broadly classified into Hindu Marriage
Act, 1954; Indian Christian Marriage act, 1872; Parsi marriage
and Divorce Act, 1936; Special Marriage act, 1954 and the
codified and Uncodified version of Muslim Law. These laws have
been created in a balance manner. But certain aspects of these laws and
specially the uncodified version of Muslim law are discriminatory.

6 1995(1) KLJ 624

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4.1 Triple Talaq in Muslims

The Uncodified Muslim law provides for triple talaq. Under Sunni Law,
the husband has a right to give a divorce to his wife by saying triple
talaq. This does not require the presence of any witness. In talaq hasan,
the husband successfully pronounces divorce three times during
consecutive periods of purity (tuhr). No intercourse should have taken
place during the period of purity in which a pronouncement has been
made.7
The constitutional validity of triple talaq has been challenged before the
courts several times. However, the Supreme Court has failed to say a
clear no on this issue. In the case of Khatoon Nisa v State of U.P. 8
wherein the high court held triple talaq to be unconstitutional; the
Supreme Court took a contrary view and said that such a view could not
become the law of the land unless it was declared by a higher bench.

4.2 Bigamy by Conversion

Muslim law permits bigamy. The legislations in India are silent on the
aspect of bigamy by conversion into Islamic religion. In order to gain
advantage of the loophole in the legal system, bigamy was practiced by
people of various religions after converting themselves into Islamic
religion. In the absence of any law, the courts in India have come up
with a positive view point.

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

Agency, Haryana, 2011. 8 2003(3) PLJR 126

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It has been held in the case of Lily Thomas, Etc. Etc. v Union of
India8 that conversion into a particular religion does not break all the
marital ties between two persons who have married previously
according to different religion. It would be injustice if a person is allowed
to practice bigamy by converting into a different religion. Therefore, this
act cannot be permitted and the person will be charged under Section
494 of I.P.C.

4.3 Get in Jews

In Jewish Law, marriage is a contract which is termed as the Ketubah
and state has no role to play in it. Divorce is accomplished only by the
male spouse and even if the divorce is done by mutual agreement, the
Get is only written by man.9 A Get is a written document sanctioning
the divorce and it is a rule that unless this document is given by a
husband to his wife, she cannot remarry.
Previously, in most of the countries the courts were empowered to grant
a divorce but when it came to force a husband to give his wife a get; the
courts remained silent. Though the law has changed in many countries
but there are still many places where the aggrieved women have no

8 AIR 2000 SC 1650

9 Liechter, Alexandra, The Effect of Jewish Divorce Law on Family Law

Litigation.

Retrieved

from

http://www.iaml.org/cms_media/files/the_effect_of_jewish_divorce_law_o
n_family_law_litigation.pdf

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remedy. In these cases, Mediation is the only remedy left for resolving
the problems which are likely to arise post divorce.

5. Personal laws and the Constitution

5.1 Personal laws are subject to judicial review
In Saumya Ann Thomas v Union of India 10; the Kerala high court
held that excluding Personal laws form the concept of judicial review
would go against the core values of the constitution. Like all the others
laws these laws also have to pass the test of constitutionality. The court
said that there is no logic behind excluding personal laws from laws as
defined in Article 13.
Just like all other statutory laws, they also bind the citizens and so, the
mere fact that they are not derived from any statute cannot exclude
them from passing the test of constitutionality. The same view point has
been taken by the courts in cases like Masilmani Mudaliar v Idol of
Sri Swaminathaswami thirukoil
Venkatubiah12; etc.

10 2010(1) KLJ 449

11 (1996)8 SCC 525

12 (1983) AIR 5 AP 356

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11

; T Sareetha v T

5.2 Personal Laws are not subject to Judicial Review

The courts have taken a contrary view in some judgments. However, in
most of the cases the court is of the opinion that personal laws are not
subject to judicial review and that they are outside the ambit of
fundamental rights guaranteed in Part III of the Indian Constitution.
5.2.1 Narsu Appa Mali
The court for the first time talked about the constitutionality of personal
laws in the case of State of Bombay v Narsu Appa Mali 13. In the
present case, the constitutionality of Bombay Prohibition of Hindu
Bigamous Marriage Act, 1946 was challenged. The act was challenged on
the basis of Article 14, 15, 17 and 25 of the Constitution. The court upheld
the validity of the said act.
It justified itself by giving two grounds. The first was that personal laws
are not subject to judicial review as dont come within the ambit of law
and law in force as defined in Article 13. The second was on the basis of
social reform. It held that monogamy was the idea and that the state
could discriminate on the grounds of religion in guise of public order and
morality.
5.2.2 Post Narsu Appa Mali
The court has taken different opinions in different cases. In some cases it
has held that personal laws are subject to review and in other it has
refused. The court has held that personal laws are subject to judicial

13 ILR Bom 1951 775

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review in cases like Srinivasa Aiyar v Saraswati Ammal 14; Madhu

Kishwar v State of Bihar15; Saroj Rani v Surdashan Chadda16;
Daniel Latifi V Union of India1718, etc.

6. Whether choice of a particular law amounts to

waiver
A very important question which has arose before the courts several
times is to whether choice of a particular law amounts to waiver. What
this means is that in certain cases parties decide to be governed by a
specific law which may or may not be based on their religion. In these
cases whether the test of constitutionality is applicable is a big question.
Whether the mere fact that the parties have themselves decided to be
governed by a particular law puts a bar on their right to challenge the
constitutionality of that law? The answer to this question is no. Even if
parties decide to be governed by a specific law, it does not mean that

14 AIR 1952 Mad. 193

15 (1996) 5 SCC 125

16 AIR 1984 SC 1562

17 (2001) 7 SCC 740

18 AIR 130

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they cannot challenge the validity of that law if it violates their

fundamental rights.
The essence of this rule was seen in the case of D.S. Nakara v. Union
of India and Others19 wherein it was stated that the choice of a date is
not a relevant factor in determining whether a person may or may not
file a suit for violation of his fundamental rights.

This view has been

highlighted in the case of Mary Sonia Zachariah v. Union of India19

wherein a Syrian Christian lady married a Christian man and decided to
be governed by the Indian Divorce Act, 1869.
The husband of this lady deserted from her and her child and went to jive
with an English lady. There were several issues which came before the
court. The major one was whether the Section 10 of the abovementioned
act was violating the Fundamental Rights of the lady as it provided that
desertion was not a ground for divorce. This violated the ladys right to
equality, liberty and was also discrimination on the basis of religion as all
other laws made desertion a ground for divorce.
The court held that this provision is violating the FRs and thus
accordingly amended it. This act though was outside the scope of
authority of the court but is justified itself by saying that it was
important in the light of justice and that if such act was not done, the
entire section would be struck down. Even the plea that the provision
was based on the personal law of the Christians was rejected and it was
held that if personal laws are codified, they have to pass the test of
constitutionality.

19 ILR 1995(2) Kerala 431

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7. Need for a Uniform Civil Codes

The question of Uniform Civil Code has arisen before the courts and
legislature several times. The courts have the burden on the legislature
and the legislature is not willing to take a step. The only reason behind
this is vote bank. In the case of Ahmedabad Woman Action Group v
Union of India20; a PIL was filed before the SC for directing a writ of
mandamus against the Defendants for enacting a UCC.
Another aspect was to invalidate the concept of bigamy and triple talaq.
The court clearly held that this was a matter for the legislature to
legislate upon and the court cannot interfere in a matter of policy
making. In a democratic country like India where justice is the essence
of the legal system, are the judiciary and the legislature satisfied in
shifting the burden on each other. Where is justice and equity?

8. Conclusion
Law and order exist for the purpose of establishing justice and
when they fail in this purpose they become the dangerously
structured dams that block the flow of social progress.
- Martin Luther King, Jr.
Law in a society exists for the welfare of its citizens. If it fails in doing
so, it is no law and there is no point having a legal system. A deep study
of the constitution shows the shift of the judiciary from a strict
interpreter of law to an activist one. There was a time when judgments
like ADM Jabalpur were delivered, where the courts interpreted law in
20 AIR 1997 SC 3614

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strict sense.Then we came to Maneka Gandhi wherein it was held that

mere presence of law is not sufficient and that law should be just.
The court transformed itself into an activist one and started delivering
judgments in the light of justice, equity and good conscience. A question
which certainly arises is that In India, where the courts have passed
several judgments in light of justice and equality (Air India v. Nargeesh
Misra; Mohammed Ahmed Khan v. Shah Bano Begum; Maneka Gandhi v.
Union of India); why is it that in dealing with Personal Laws specifically
they are shifting their duty of maintaining justice and fairness on the
legislature.
The most important aspect which is highlighted is the concept of Justice
which has faded in this tussle between the legislature and judiciary. Are
the courts in India merely Courts of law and not Justice? A mere reason
that UCC is a matter for the legislature to legislate upon can never be
sufficient. We cannot afford going back to the era of ADM Jabalpur. Why
countries like Pakistan, Malaysia, etc which have huge Muslim population
have banned divorce in one sitting, why cant we take a step ahead?

9. Bibliography
Legislations Cited

Bombay Prohibition of Hindu Bigamous Marriage Act, 1946

Hindu Marriage Act, 1954

Indian Christian Marriage act, 1872

Parsi marriage and Divorce Act, 1936

Special Marriage act, 1954

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Codified and Uncodified version of Muslim Law

Hindu Bigamy Prevention and Divorce Act, Madras Act VI of 1949

Indian Divorce Act, 1869

Books referred

Doddawadmath, J. V., Personal Law relating to woman, Allahabad Law

Agency, Haryana, 2011.
Articles Cited

Liechter, Alexandra, The Effect of Jewish Divorce Law on Family Law

Litigation. Retrieved from
http://www.iaml.org/cms_media/files/the_effect_of_jewish_divorce
_law_on_family_law_litigation.pdf

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