Professional Documents
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Hrishikesh Jaiswal HISTORY LEGAL PROJECT, NLIU BHOPAL, NATIONAL LAW SCHOOL, PROJECT
Hrishikesh Jaiswal HISTORY LEGAL PROJECT, NLIU BHOPAL, NATIONAL LAW SCHOOL, PROJECT
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DEVELOPMENT OF PERSONAL LAWS IN COLONIAL INDIA
In the partial fulfillment for the requirement of the project on the subject of History 2 of B.A.,
L.L.B (Hons.), Sixth Trimester.
Submitted to:
Submitted by :
Hrishikesh Jaiswal
(2018BALLB126)
HISTORY II Research Project
DEVELOPMENT OF PERSONAL LAWS IN COLONIAL INDIA
TABLE OF CONTENTS
Contents
ACKNOWLEDGEMENT...............................................................................................................2
RESEARCH METHODOLOGY....................................................................................................5
Statement of Purpose:..................................................................................................................5
Research Objectives.....................................................................................................................5
Research Questions......................................................................................................................5
Research Style.............................................................................................................................5
Overview of Literature................................................................................................................5
Other Sects.................................................................................................................................12
CONCLUSION..............................................................................................................................16
BIBLIOGRAPHY..........................................................................................................................17
ACKNOWLEDGEMENT
This paper has been made possible by the unconditional support of many people. I would like
to acknowledge and extend my heartfelt gratitude to Prof. (Dr.) UP Singh for guiding me
throughout the development of this paper into a coherent whole by providing helpful insights
and sharing her brilliant expertise. I would also like to thank the officials of Gyan Mandir,
NLIU, for providing material for this study. I am deeply indebted to my parents, seniors and
friends for all the moral support and encouragement.
HRISHIKESH JAISWAL 2018BALLB126
Personal Laws are set of laws which govern and regulate relations arising out of certain factors
connecting two persons or more than two persons. Those factors are: Marriage, Blood, and
Affinity. Moreover, personal law governs and regulates subjects or areas of personal sphere such
as: Marriage, Divorce, Maintenance, Succession, Minority & Guardianship etc. Barring few,
most of the personal laws in India are based on scriptural laws which are divided and based on
religions. They provide norms of governing personal relations in the family set up. With the
passage of time, these norms were given statutory recognition with several enactments in the
area of Marriage, Divorce, Maintenance, Inheritance & Succession, Guardianship and Custody
matters1 .PresentIndian society is theinheritor of threedifferent and distinct legal systems -
Hindu, Muslim and British2. Thepersonal laws of Hindus and Muslims find their source and
authority in their religious ancient texts. Since ancient time religion regulated almost every
aspect of human life both public and personal. Religion was the guiding force behind all laws
including personal matters as well as crime, evidence, procedure, contract, trade and commerce.
The area of applicability of laws has been reduced, and is only confined to such aspects of life as
marriage, dissolution of marriage, maintenance, minority, guardianship, adoption, successionand
inheritance.jndkh
It is through the history of India, which comprises of the growth, evolution and development of
the Indian legal system that we can understand the historical process whereby the personal laws
in India developed throughout the years.
1
Mr. Ashok Wadje, “JUDICIAL REVIEW OF PERSONAL LAWS VIS-À-VIS CONSTITUTIONALVALIDITYOF
PERSONAL LAWS”, South Asian Journal of Multidisciplinary Studies (SAJMS) ISSN:2349-7858:Volume 2 Issue
3.
2
D.K. Srivastava, Religious Freedom in India, p. 213(1982).
RESEARCH METHODOLOGY
Statement of Purpose:
The purpose of the law, be it sourced from a divine entity or be is a creation of man, is to ease
the quality of life and resolve conflicts. This paper aimed at analysing the development of Hindu
and Muslim Personal Law in the British times in India.
Research Objectives
Our primary aim is to delve into the concept of development of personal laws in the English rule
times. We analyse this my dividing the laws in Hindu and Muslim laws and also analysing the
changes that came after the arrival of Warren Hastings.
Research Questions
How did the personal laws work during the British India
Was the ancient personal law policy neutral in its nature?
How did the personal law frame work in India changed after coming of Warren Hastings?
How were Muslim Personal Law different from the Muslim Personal Law during the
British times?
Research Style
A combination of analytical and descriptive approach has been adopted by the researcher.
Case laws, precedents, etc. have been consulted wherever necessary. It must be noted that
only the criminal law domain in India has been considered for thiscase.
Overview of Literature
The Muslim rule came to an end with the disintegration of Mughal Empire. Towards its end the
Empire has already weakened to such an extent that the Governors of different provinces had
virtually usurped the whole power and became independent functionaries. It is at this juncture
that the Britishers came to India as innocent traders, as they were, ultimately turned out to be the
mercenaries and became the forerunners of British rule in India. 3 The real evolution of personal
law in India was marked by the Charter of 1726.4It introduced English Law in India. It also
established Mayor’s Courts at Madras, Bombay and Fort William. With the introduction of
English law in India, one problem was posed regarding the extent and applicability to, and
competency of the courts over, the native inhabitants of India. The courts extended English Law
to the native inhabitants of India.As regards British administrators in India, it is submitted that,
the concept of “personal law” is wrongly perceived by them, especially in the Indian social
milieu. They presumed that: “All personal laws are religiously ordained.” Therefore, the Second
Law Commission stated: “The Hindu and Mohammedan law derive their authority respectively
from the Hindu and.Mohammedan religion.”5This may be because, the early British
administrators perhaps wrongly perceived that the native Indian comprised only of two broad
categories, Hindus and Muslims. And the religion based distinction of personal laws made by the
Muslim rulers might have influenced the British rulers in drawing the presumption that ‘all
personal laws are religiously ordained.’ Here, it is submitted that, the important aspect of the
Hindu as well as the Muslimlaw, which implies that the religious texts are the general law and
the customary practices are personal laws, was not taken into consideration by the British rulers.
Though, both, the customs and the religious texts of the Hindus and Muslims were taken into
consideration in the administration of justice, but the British administrators treated the customs
3
M.P. Jain, Outlines of Indian Legal History p. 5 (1981).
4
th
The Charter of 1726 issued to the East India Company by King George I on 24 September 1726. The Charter of
1726 had a limited objective. It was intended for the benefit of British subjects who, because of the impossibility or
difficulty of complying with the local law, had been permitted by the Mogul emperor of India to use their law within
their factory settlements. This objective was achieved by the establishment of courts of competent jurisdiction at
Calcutta, Bombay and Madras.
5
Cited in, Srivastava, Supra note 17 at p. 556.
The British initially came to India as trading merchants but with the passage of time the
British managed to establish their control over India. The British made efforts to establish
systematic and modern legal framework in India. One after another various schemes for the
administration of justice in different parts of the country were framed and enforced. The
judicial system set up in the major part of India under the Mughals and in some places under
local rulers, were gradually replaced with courts constituted by the British. 6 While assuming
powers and functions of judicial administration, the British faced the question as to which law
should in different kinds of cases be applicable by the hierarchy of their courts. The legal
system adhered to and followed by the courts which had preceded them was based mainly on
Hindu and Islamic religion. Civil, criminal, commercial and procedural laws were all religion
based. The dominant element in that legal system was the traditional law of Islam. The courts
in the regions ruled by the Mughals applied Islamic law relating to crimes, evidence and court
procedure. Ancient Indian laws and custom relating to the same were applied by the courts in
those places where the local rulers were not Muslim. In civil matters religious and customary
laws were invariably adhered to in almost all parts of thecountry.7
Contractual transactions, commercial affairs, family relations and transfer of and succession to
property were all regulated by religious laws and customs of the parties approaching the court.
The law or custom of one or the other religion, thus, formed the rule of decision in every case.
To the British the system appeared complicated and anachronistic. This they set out to
change.8 The religion based criminal laws of India were reformed piece meal, eventually
culminating in the enactment of the Penal Code and the Criminal Procedure Code, both of a
secular nature and divorced from religion. On the similar lines were enacted the Evidence Act
and the Civil Procedure Code. All religious and customary laws in these areas were repealed
6
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 Courts. Thereafter, the Supreme Court of
judicature was established at Calcutta, Madras and Bombay in 1774. Subsequently by way of Indian High Courts
Act, 1862, High Courts were established in Calcutta, Madras and Bombay. These High Courts so established
became successors of the SupremeCourt.
7
TAHIR MAHMOOD, MUSLIM PERSONAL LAW: ROLE OF THE STATE IN THE INDIAN
SUBCONTINENT 2 (2d ed., All India Reporter 1983).
8
Ibid
and replaced with new codes. Likewise the British could also have given to the country a
civil code.9 Their policies in regard to civil laws gave birth to the system of communal
personal laws.10 This system has survived in the entire subcontinent till the present day.
A civil code, in the modern sense of the term would include laws relating to contract, transfer
of property, intestate and testamentary succession, marriage, divorce, adoption and all other
family relations. Since in pre-British period all these matters were regulated by religious and
customary laws, enforcement of secular and uniform laws in these areas would be viewed by
the natives as displacement of religion.11 The British were conscious of the possibility of such
repercussions and therefore refrained from enacting a comprehensive civil code on the lines of
the penal and procedural codes.12 These codes too had replaced religion and custom, but only
in areas which were not regarded by the natives as vital to religion as civil matters. In the
latter areas the British came forward with piece meal legislation.In regard to other subjects
which a civil code should ordinarily include they adopted a cautious approach. They decided
to leave religious and customary laws intact in those areas at the same time they did not want
to abjure them altogether. To begin with they just overlook those areas without making a
commitment as to where they stood in their plans for legal reform and codification. They
could not however maintain their silence for long. Cases involving civil matters were being
frequently received in the civil courts which they had set up and they had to make known the
laws which the courts would apply in suchcases.
With regard to the application of Hindu and Muhammadan laws in the higher courts of the
Presidency towns of Calcutta, Madras and Bombay, the Judicial Charter of 1753 had barred
the jurisdiction of the Mayor‘s courts which were courts of English law to try cases between
the Indians, unless asked to do so by the parties to a particular case. The Act of Settlement
enacted in the year 1781 reconstituted the powers and jurisdiction of the Calcutta Supreme
9
Ibid
10
The Britishers enacted common laws for the Indians but with regard to personal laws the British did not interfere.
When the Mayor‘s courts were established in the three Presidency towns the question arose as to the courts
competence to decide the religious matters of the natives. The Governor and council of the company expressed the
opinion that the Mayor‘s court had no jurisdiction to determine causes of religious nature or disputes concerning
castes among the natives, unless both parties submitted themselves to the jurisdiction of the court. See SARKAR,
supra note 4.
11
A.M. BHATTACHARJEE, MATRIMONIAL LAWS AND THE CONSTITUTION 2 (Eastern Law House 1996).
12
E.g: The British enacted a Contract Act in 1872 and a Transfer of Property Act in 1882.
Court and also gave recognition to ‗laws and usages‘ of Hindus and Muslims. 13 Later the rule
regarding the applicationof laws and usages of Hindus and Muslims became applicable to the
Supreme courts of Bombay and Madras.
The High Courts Act enacted by the British in 1861 replaced the Supreme courts functioning
in the three Presidency towns of Calcutta, Madras and Bombay. The High Courts Act laid
down that in exercise of its appellate jurisdiction, the court would apply Hindu and
Mohammadan laws and usages.
The lower court sought to have applied in a particular case.Thus,it was clear that
the British did not interfere in the religious matters and granted autonomy to the natives in
respect of personal laws. Moreover the British as discussed above secured the religious laws
of the Indians.
Despite the colonial authorities distancing from the religious usages and personal laws of the
natives, history is witness to the fact that there were interventions with the same. Generally
speaking, different laws were applied by village, district and provincial courts. This led to
confusion and chaos.On the other hand there were many Hindu reformist who were exerting
pressure upon the British to bring changes in some aspect of their religious law.Though the
initiative for reform was taken by the Hindu society, at least a section of it; the same is not the
case with the Muslim Community. However, the British did not intrude in matters of personal
laws of the Muslims and the reforms the British brought in the Muslim personal law was done
with an intention to safeguard them. 14 The British enacted Indian Divorce Act, 1869 and
Indian Christian Marriage Act, 1872 for the Christians and the Parsi Marriage and Divorce
Act, 1936 for the Parsis. A number of other statuteswere also passed which affected both, the
Hindus and the Muslims as well and they were applied to all the people irrespective of their
religious affiliations. There was nothing restraining the government in British India for
making laws in the areas traditionally regulated by personal laws. The British were hopeful
13
Sec 17 of Act of Settlement provided: All matters arising out of succession to lands, rents and goods and all
matters of contract and dealings between party and party shall be determined in case of Muhammadans by the laws
and usages of the Muhammadans and in the case of Gentoos (Hindu) by the laws and usages ofGentoos‘.
14
The enactments made for the Muslims were with the objective of restoring the orthodox doctrine of Muslim law
and to undo the effect of liberalizing judicial decisions. Mussalman Wakf (Validating Act, 1913, Muslim Personal
Law (Shariat) Application Act, 1937, Dissolution of Muslim Marriage Act, 1939, etc. were enacted during the
British rule in India
that with the passage of time a common civil code can beadopted.15
15
MAHMOOD, PERSONAL LAW IN CRISIS 3 (Metropolitan Book Co. New Delhi 1986).
16
M.H. Morley, Administration of Justice in British India, p. 193(1858).
attempt was always frowned upon by the orthodox opinion and the Muslim Jurists criticized
such judicial pronouncements. The Privy Council, in dealing with the Muslim Law, warned of
the danger of relying upon ancient texts of the Mohammedan law and even precept of the
Prophet himself, of taking them literally, and echoing from them new rules of law, “especially
when such proposed rules do not conduce to substantial justice.” The Privy Council again
warned of such danger in Baker Ali Khan v. Anjuman Ara Begum. 20To illustrate the judicial
progress in the area of Muslim Law, reference may be made here to a few landmark cases. A
majority of Muslims in India belong to the Sunni class. The question thus arose early in the day
whether the Shias were entitled to their own law, or were they to be governed by the doctrine of
the Sunni School? The rule in the Warren Hasting’s Plan of 1772, or the Cornwallis’s Plan of
1973, did not clarify the position as the former used the expression “Law of the Quran,” and the
latter used the expression “Mohammedan Law.” Till 1810, the courts in Bengal were practically
ignoring the Shia law and generally applying the Sunni Law to all Muslims. The Privy Council
mentioned the prevailing situation in the early part of the 19th century as follows “The only
course of succession recognized by the native courts was that of the Sunnis, which had been the
general law of the country from the time when it first came under the Mohmmedan rule, and it
is by no means certain that the Sadar Court, or litigants before it, always pains regard to, or
understood their rights under the Shia Law.”21
In the important case of Rajah Deedar Hossein v. Renee Zuhooroon Nissa,22the Privy
Council decided, on an appeal from the Sadar Diwani Adalat at Calcutta, that the Shias
were entitledto their own ShiaLaw.
Other Sects
It was believed erroneously at the time that the whole population of India could be classified
into two big classes, Hindus and Muslims. No one perhaps was fully aware of the sectarian
differences within each of these generic classes. In the process of time, it came to be known
that the Hindus and Muslims were divided into several sects and sub-sects. The Muslims have
two major divisions: Shias and Sunnis. The Hindus have become divided into various groups
mainly on the basis of differences of religion. Some of the conspicuous examples of this mainly
20
30 IA 94, 111-112; Fyzee, Cases, 4.
21
Must. Hayat-un-Nissa v. Sayyid Muhammad Ali Khan, 17 IA 73, 78.
22
2 MIA 441 (1841); Fyzee, Cases, 490.
on the basis of differences of religion. Some of the conspicuous examples of this division are
Sikhs, Jains, Buddhists, etc.
After the introduction of British pattern of administration of justice in India, these traditional
instrumentalities of legal change and growth ceased to operate. New customs could not be
recognised by the courts because of the theory that a custom could be enforceable only if it
was ancient. Mayne appropriately described that “under the British rule, Hindu law was in a
state of arrested progress in which no voices were heard unless they came from the tomb.”
Hindu law, thus, lost its flexibility and became static. In these circumstances, for the
development of Hindu law, it became inevitable for it to adopt the changing pattern of social
life. As the courts were bound by the authority of the dead Smritikaras and the Commentators
and the theory of precedent; the only instrumentality, for suitable change in Hindu law,
remained with the legislation. Strong pressure for reform was exerted by the reformist section
of Hindus on the British legislator.The legal system of India in the early nineteenth century
was one of confusion and chaos. Generally speaking, different laws were applied by village,
district and provincial courts. In such circumstances bringing certainty and uniformity in law
became essential. These and several other factors gave impetuous for enactment of certain
aspects of personal laws, especially of the Hindus. Sati Prevention Act, 1829, Hindu
Widows’ Remarriage Act, 1856, Guardians and Wards Act, 1890, The Anand Marriage
Act, 1909, Hindu Disposition of Property Act, 1916, Hindu Inheritance (Removal of
Disabilities) Act, 1928, Hindu Gains of Learning Act, 1930, Hindu Women’s Right to
Property Act, 1937, Aryan Marriage Validation Act, 1937, Hindu Married Women’s
Right to Separate Residence and Maintenance Act, 1946, etc. are the important enactments
made in British India.
Though the initiative for reform was taken by the Hindu society, at least a section of it; the
same is not the case with the Muslim Community. The Muslim community in India did not
approve any change or reform in their personal laws. In effect thereof, the British legislators did
not interfere in the personal laws of the Muslims. The enactments made for the Muslims were
with the objective of restoring the orthodox doctrine of Muslim law and to undo the effect of
liberalizing judicial decisions. Mussalman Wakf (Validating) Act, 1913, Muslim Personal Law
(Shariat) Application Act, 1937, Dissolution of Muslim Marriage Act, 1939, etc. were enacted
during the British rule in India. Apart from the Hindus and Muslims, Indian Divorce Act, 1869,
Indian Christian Marriage Act, 1872, was passed for the Christians and for the Parsis, the Parsi
Marriage and Divorce Act, 1936, was enacted. A number of other statutes were also passed
which affected both, the Hindus and the Muslims as well. Those are – Caste Disabilities
Removal Act, 1850, India Penal Code, 1860, Indian Evidence Act, 1872, Indian Contract Act,
1872, Transfer of Property Act, 1882, Child Marriage Restraint Act, 1929, which is
subsequently repealed by re-enacting the Prohibition of Child Marriage Act, 2006, Indian
Succession Act, 1865, which was subsequently amended in 1925, Special Marriage Act, 1872,
which was subsequently re- enacted in 1954, etc. These statutes applied alike to all the people
irrespective of their religious affiliations. But the effect of some of the provisions laid down by
the statutes was to limit the operation of the Hindu and Muslim laws in the matters covered by
them. It is interesting to note that these legislations touched all topics of personal laws which
were formerly considered sacrosanct and beyond the legislative pale. All these enactments,
especially those relating to Hindu personal law, were in the form of piecemeal reforms. But no
attempt was made to codify the personal laws, except towards the close of the British rule.
CONCLUSION
The societies in the beginning were rudimentary and so were the laws of the societies. Laws
have grown with the growth of society. In the peculiar case of the Indian society, in which ever
since ancient time, the people held tight to their religious roots and continued practicing laws,
rituals and norms the way it had been laid down in their religious scriptures. But the interesting
feature about the personal laws in India is that they never remained static. Gradually, with the
progress of time, the personal laws were reformed, amended, given shape, edited and omitted.
This was a slow process which picked up pace with the onset of the British rule in India.
Conscious efforts to remove the defects in personal laws were made by developing a coherent
body of law. But the coherent system of law was developed only after the process of
codification. Law then became more territorial and resulted in the abridgment of the differences
of law between the resulted in the application of uniform law throughout the country. The
independence of the judiciary is fairly well assured by the constitution itself and adequate
precautions have been taken to help the judiciary to discharge their functions effectively. Law
in Independent India is now mostly codified and is uniform throughout the country and the
objective is now to update, reform and bring the law in conformity with the new social
conditions prevailing in the country. In conclusion, we may say that the Indian legal system
provides all the machinery for the expansion and preservation of the personal law.
BIBLIOGRAPHY
WEBSITES
www.legalindia.com
dharmaramjournals.in
www.realityviews.in
www.webindia123.com
www.thehindu.com
WORKS CITED