Professional Documents
Culture Documents
Nitu Mittal PDF
Nitu Mittal PDF
Nitu Mittal PDF
Submitted By:
Nitu Mittal
BBA LL.B, Division B, Roll No- 4
1|Page
CERTIFICATE
The Project entitled Constitutionality of Personal Laws in India
submitted to the Symbiosis Law School, NOIDA for Family Law- I as part
of internal assessment is based on my original work carried out under the
guidance of Prof. Ashok Wadge. The research work has not been
submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the thesis
has been duly acknowledged. I understand that I myself could be held
responsible and accountable for plagiarism, if any, detected later on.
ACNOWLEDGEMENT
A special vote of thanks to Prof. Ashok Wadge (Associate Professor,
Symbiosis Law School, Noida; Symbiosis International University, Pune)
for guiding me about how to make the project. This project could not
have been a success without his guidance and support. However, the
entire responsibility of the content of the project lies on me.
3|Page
TABLE OF CONTENTS
Table of Cases.......5
1. Introduction.........6
2. What is Constitutionality...7
2.1
372...............................................................................7
2.2
Article 13.......................................................................7
3.2
Article 21.......................................................................9
4.2
Bigamy by Conversion....................................................11
4.3
Get in Jews...................................................................12
5.2
4|Page
TABLE OF CASES
A
Ahmedabad Woman Action Group v Union of India, AIR 1997 SC 3614
Ammini E J and Another v Union, 1995(1) KLJ 624
D
Daniel Latifi V Union of India, (2001) 7 SCC 740
D.S. Nakara v. Union of India and Others, 1983 AIR 130
K
Khatoon Nisa v State of U.P., 2003(3) PLJR 126
L
Lily Thomas, Etc. Etc. v Union of India, AIR 2000 SC 1650
M
Madhu Kishwar v State of Bihar, (1996) 5 SCC 125
Mary Sonia Zachariah v. Union of India, ILR 1995(2) Kerala 431
Masilmani Mudaliar v Idol of Sri Swaminathaswami thirukoil, (1996)8 SCC
525
Mohammad Umar v Amir Mohammad, AIR 1958 MP 423
P
P E Mathew v Union of India, AIR 1999 Ker 345
S
Saroj Rani v Surdashan Chadda, AIR 1984 SC 1562
Saumya Ann Thomas v Union of India, 2010(1) KLJ 449
Srinivasa Aiyar v Saraswati Ammal, AIR 1952 Mad. 193
State of Bombay v Narsu Appa Mali, ILR Bom 1951 775
T
T Sareetha v T Venkatubiah, (1983) AIR 5 AP 356
5|Page
1. Introduction
This is a court of law, young man, not a court of justice.
- Oliver Wendell Holmes, Jr.
India is a diverse country where people of various caste, religion and
creed reside. Keeping in mind this diversity the constituent assembly
opted for a detailed written Constitution; the essence of which is
Constitutionalism. This means that there is constitutional checks and
balance on the power of the legislature and executive. This has been
provided by Article 13 and 372. Thus, every law in India has to pass
this test of Constitutionality.
If we go by this simple phenomenon we may conclude that the same
would apply to Personal Laws also. But this is not the case in India. In
several circumstances the courts in India have turned futile in
answering this question. They have held that Personal Laws in India are
not subject to Judicial Review. The courts have clarified that these laws
having their origin from religious scriptures cannot be challenged on the
grounds of Fundamental Rights. This policy of the Courts has put
forward many questions.
The proposed study finds out the reasons which have provoked the
Courts to come to such a conclusion. It not only discusses how these
laws violate Article 14, 15 and 19 of the Constitution but also discusses
the scope of Article 25 in the same context. It finds out whether the
Courts in India are correct in saying that this is a matter for the
legislature to decide and legislate upon and justifying this statement in
lieu of Article 44 by further saying that it signifies the intention of
Constitution makers.
6|Page
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.
2.2 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
1
7|Page
or
any
other
competent
authority
prior
to
the
view point in several view point. They have held that Personal laws do
not come within the ambit of laws in force. This aspect was highlighted
in the case of P E Mathew v Union of India2.
In this case the question which arose before the Kerala High court was
whether personal laws come within the ambit of law as defined in
Article 13. It held that personal laws are not laws as defined in Article
13 and therefore they are not subject to judicial review and they need
not pass the test of constitutionality. Based on this assumption, the
Section 17 of Divorce Act 3 which was challenged was held not to be
ultra vires the Constitution.
2.2.2 Laws
Article 13(3) (a) defines the term law. It says that law includes any
ordinance, order, bye-law, rule, regulation, notification, custom or
usage having in the territory of India the force of law. Clause 2 of this
article further elaborates that the state shall not make any law which
2
3
8|Page
takes away the fundamental rights of the people and any law made in
contravention of this clause should be to the extent of contravention,
void. This clause if elaborated means that if any personal law enacted
by the parliament takes away the fundamental rights of the people, it
would be to that extent void.
3.
Conflict
of
personal
laws
and
certain
provisions of Constitution
3.1 Article 15 and 25
A very important question which has come before the courts several
times is with respect to freedom of religion. The question has arisen in
cases like Srinivasa Aiyar v saraswati Ammal4. In the case, an act
called the Hindu Bigamy Prevention and Divorce Act5 was passed by the
state of Madras. The act was challenged on several grounds. One of this
was that the act prohibited on the grounds of religion as it was made
applicable only on the Hindus.
It was further contended that the state could not discriminate only o
the grounds of religion. The court rejected the plea and held that the
act was not ultra vires. This was because article 25 provided that the
state may discriminate on the basis of religion provided the ground for
discrimination is reasonable. This reasonable discrimination includes
public morality. Since monogamy is moral and is more preferred in a
civilized society, the act was a valid one.
3.2 Article 21
Article 21 talks about right to life and personal liberty. This provides
that a person shall not be deprived of his right to life and personal
liberty except according to procedure established by law. This has been
4
5
9|Page
10 | P a g e
Doddawadmath, J. V., Personal Law relating to woman, Allabad Law Agency, Haryana, 2011.
2003(3) PLJR 126
9
AIR 2000 SC 1650
8
11 | P a g e
10
Liechter, Alexandra, The Effect of Jewish Divorce Law on Family Law Litigation. Retrieved from
http://www.iaml.org/cms_media/files/the_effect_of_jewish_divorce_law_on_family_law_litigation.pdf
11
2010(1) KLJ 449
12 | P a g e
of
Sri
Swaminathaswami
thirukoil
12
Sareetha
Venkatubiah13; etc.
12
13 | P a g e
16
14 | P a g e
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.
21
15 | P a g e
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.
-
Law in a society exists for the welfare of its citizens. If it fails in doing
so, it is no law and there is no point having a legal system. A deep
study of the constitution shows the shift of the judiciary from a strict
interpreter of law to an activist one. There was a time when judgments
like ADM Jabalpur were delivered, where the courts interpreted law in
strict sense.Then we came to Maneka Gandhi wherein it was held that
mere presence of law is not sufficient and that law should be just.
The court transformed itself into an activist one and started delivering
judgments in the light of justice, equity and good conscience. A
question which certainly arises is that In India, where the courts have
passed several judgments in light of justice and equality (Air India v.
Nargeesh Misra; Mohammed Ahmed Khan v. Shah Bano Begum;
Maneka Gandhi v. Union of India); why is it that in dealing with
Personal Laws specifically they are shifting their duty of maintaining
justice and fairness on the legislature.
The most important aspect which is highlighted is the concept of Justice
which has faded in this tussle between the legislature and judiciary. Are
the courts in India merely Courts of law and not Justice? A mere reason
that UCC is a matter for the legislature to legislate upon can never be
sufficient. We cannot afford going back to the era of ADM Jabalpur.
Why countries like Pakistan, Malaysia, etc which have huge Muslim
population have banned divorce in one sitting, why cant we take a step
ahead?
16 | P a g e
9. Bibliography
Legislations Cited
Books referred
Articles Cited
17 | P a g e