Family Law I LW 3016

MODULE I: THE NATURE AND ORIGIN OF LAW:

1.1. FAMILY LAW: THE CONSTITUTIONALITY OF PERSONAL LAWS

INTRODUCTION: In India, personal laws deal with marriage and divorce, maintenance, guardianship
and succession, joint family and partition etc. These are broadly be characterised as ‘family laws. While
India is a secular country otherwise; in the context of its personal laws, it is essentially pluralistic. Thus,
while the Indian Constitution guarantees equality before the law, and equal protection of the law,
India’s personal laws apply to individuals differently because they are effectuated based on the
religion of such individual.1

THE NEED FOR ‘PERSONAL LAWS IN INDIA: Personal laws in India has a long history that stems from
the country’s colonial past. Personal laws, both Islam and Hindu, were introduced in the initial time of
the twentieth century to defend the personal province of the family from the colonial authority. Given
the current situation, various personal laws are being enacted to encourage the subjection of women
and other minorities. From a constitutional standpoint, ‘personal laws must come inside the concept
of “law” or a “law in effect” as specified in Article 13 of the Constitution.

SCOPE OF ‘PERSONAL LAW’ IN ‘ARTICLE 13’:

Article 13 - Article 13 of the “Indian constitution” allows for judicial review, which allows courts to
overturn legislation that violates “fundamental rights”.

Laws inconsistent with or in derogation of the fundamental rights:

13. (1) “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.”

(2) “The State shall not make any law which takes away or abridges the rights conferred by this Part
and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

(3) In this article, unless the context otherwise requires, —

(a) “Law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having
in the territory of India the force of law;

(b) ‘laws in force’ includes laws 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territory of India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation either at all or in
particular areas.”

THE NARASU APPA MALI CASE2:

Facts - This case centred on whether or not the “Bombay Prevention of Bigamous Hindu Marriages
Act, 19467” was constitutionally valid in the first place. The main dispute against the Act was that it
breached “Articles 148 (Right to Equality)” and “159 (Prohibition of Discrimination)” since it showed

1
State of Bombay v. Narasu Appa Mali, 1951
2
State of Bombay v Narasu Appa Mali AIR 1952 Bom 84
prejudice amongst Hindu and Muslim males based on their specific rights (or absence of) to perform
polygamy. Polygamy was cited as a violation of Article 2510 (Freedom to Practice One’s Religion),
which claimed that the Act impacted on Hindus' freedom to practise the practise, which was said to
be a part of Hindu tradition. It is specified in Part III of the Constitution that only a “law” or a “law in
effect” which is defined in Article 13 of the Constitution and which invalidates any laws that are not
consistent with the “fundamental rights”, may be subject to the protections afforded to those rights
under that section of the Constitution. Rather than delving into the before mentioned concerns, the
Court preferred to focus on the more basic question as to whether Personal Laws constitute as “laws”
or “laws in force” as defined by Article 13 of the Constitution. The Division Bench of the case
unanimously responded “no, with each judge providing slightly different reasons for their conclusion.
I'll look at both of them independently.

PERSONAL LAWS AS ‘LAWS IN FORCE’ OR NOT AS ‘LAWS IN FORCE’

The reasoning of Justice Gajendragadkar is based on two points. First, Article 13(1) only applies to
statutory laws, and second, personal laws are not statutory laws and so do not fall within the purview
of Article 13. To grasp the scope of Article 13(1) “laws in effect”, we should first look at Article 13(3)(b),
which explains the concept: “laws in force’ includes laws 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, notwithstanding that any such law or any part thereof may not be then in
operation either at all or in particular areas.”

When it comes to the interpretation of Article 13(3)(b) definition of “laws in force”, the ‘ordinary’ or
‘natural’ meaning of the phrase must be given weight. A “law in force”, according to the definition, is
any rule toward which parties are legally obliged and on which a Court may rely to solve conflicts. Even
if one accepts the argument that Article 13(1) only applies to statutory declarations, the Narasu dictum
must be supported by evidence that a clear separation exists between “law” under Article 13 and
personal laws. J. Gajendragadkar puts it this way:

“Personal laws are well-known for not having their legitimacy based on the fact that they were
enacted or made by a Legislature or other competent body in India's territory. Both Hindu and
Mahomedan laws have their foundations in their corresponding scriptural texts.” Personal laws,
according to this view, are founded on an unrestricted interpretation of the scripture’s standard
principles “to which they owe their allegiance”. This logic, on the other hand, neglects the contribution
made by the Judicial system and the Legislative branches in shaping holy texts in view of existing norms
of the constitution principles that have been approved by the schools in charge of their execution in a
variety of cases and which have been authorised by the schools in charge of their implementation in
a variety of cases. As a consequence, the High Court’s sole justification, which is the exclusion of
personal legislation from Article 13, is devoid of any significance.

India Young Lawyers Association v State of Kerala (“Sabrimala Temple case”):

Ayyappa's Sabarimala temple does not allow women between the ages of 10 and 50 to worship there,
due to a long-standing custom and usage. The majority of the court (Indu Malhotra, J., dissented) held
that this practise violates constitutional morality and the fundamental rights of women devotees, and
is in direct violation of the Preambular values of “dignity”, “liberty”, and “equality”, which run through
the entire temple. Justice D.Y. Chandrachud makes a point on the necessity of personal laws when it
comes to ‘fundamental rights’ - “Customs, usages, and personal laws have a significant impact on the
civil status of individuals. Those activities that are inherently connected with the civil status of
individuals cannot be granted constitutional immunity merely because they may have some
associational features which have a religious nature. To immunize them from constitutional scrutiny
is to deny the primacy of the Constitution.” Personal laws should be subjected to constitutional
analysis as a first step toward achieving a constitutional vision. As a result, the verdict in the Narasu
Appa Mali case, which included immunization, uncodified personal laws, and unique traditions and
use, must be reconsidered.

Shayara Bano v Union of India:

Shayara Bano v Union of India & Ors. was considered by a Supreme Court bench of five judges, who
questioned the ‘constitutionality’ of the talaq-e-bid’ a (Instant Triple Talaq), which empowers a
husband to divorce his wife abruptly and unilaterally. Earlier The Supreme Court has previously ruled
in Shamim Ara v State of Uttar Pradesh that a simple declaration of talaq in response to a maintenance
petition filed by a woman cannot be considered a declaration of talaq. In A. Yousuf Rawther v.
Sowramma, Krishna Iyer J. held that instant Triple Talaq is not a component of Muslim Law and thus
excluded from the Muslim Personal Law (Shariat) Application Act, 1937, and that “talaq must be
pronounced as per Quranic injunction, as such triple talaq is not an essential religious practise of Islam
and is invalid”. Because no other provision of the constitution affirms the creation of a constitution
bench when a court is required to determine a considerable question of law incorporating the
interpretation of constitutional law, it is possible that the Hon’ble Supreme Court will revisit the issue
of whether personal laws qualify as “laws” for the purposes of “Article 13” now that the matter has
been referred to a five-judge council. The apex court ruled in Shyra Bano that the practise of instant
triple talaq/talaq–ul–biddat is unlawful by 3:2 majorities. On the one hand, Justice R. F. Nariman
(writing for himself and Justice Lalit) and Justice Joseph backed the opinion that triple talaq is
unconstitutional, while Justice Nazeer and Chief Justice Kehar, supported the practise of triple talaq
and left it to the parliament to pass legislation.

Ultimately, they determined that the 1937 Act doesn’t really regulate the practise of triple talaq and
that the practice of triple talaq does not qualify as a significant religious practise for Islam under Article
25, and hence is prohibited under the law. The judgments of Nariman and Lalit JJ and Joseph J. were
silent on the fundamental issue as to whether personal laws are "laws in force" under article 13, a
concern that was crucial to fundamentally subject other unfair practices of personal laws to the
constitution; however, Kehar and Nazeer JJ held that “the same could not be tested against part iii of
the Constitution; and, regrettably, the elephant of Narasu Appa Mali continues to conquer the legal
landscape”. However, despite the fact that the All India Muslim Personal Law Board was victorious in
the case, the decisions of Justices Kehar and Nazeer, as well as the decision of Justice Joseph, elevated
the status of personal law to that of a “fundamental right” under Article 25 of the “Constitution of
India.”

GOVERNMENT OF INDIA ACT, 1915 ABOUT PERSONAL LAW SCOPE

The Court also focused on the Government of India Act, 1915, which used the phrase “Personal law
or custom having the force of law” to argue that personal laws did not have the force of law in and of
themselves and that this was a valid argument. The Government of India Act, 1915 utilised the terms
‘personal laws’ and ‘custom’ separately, and as article 13 is built on Section 112 of the GOI Act, it may
be concluded that the constituent assembly purposefully excluded the phrase “personal laws” from
the text of article 13.

However, the court overlooked the fact that the Government of India Act, 1935, which used the term
“all laws in force”, had been interpreted in United Provinces v Atiqua Begum AIR 1941 FC 16 as
“including not only statutory enactments then in force, but also all laws, including personal laws,
customary laws, and case laws”, which the court did not mention. Furthermore, where states have
been granted the authority to make legislation in connection to personal laws under entry 5 of List III,
there seems to be no reason why the same cannot be submitted to judicial review under part III. The
use of the word includes in article 372 (it talks about “Continuance in force of existing laws and their
adaptation”) – implies that the definition is not exhaustive and that the expression ‘all the laws in
force’ in article 372(1) is not limited and extends even to customary law, personal law such as Hindu
and Muslim law, thus being more thorough than the concept of existing law in article 366. (It states
that “Existing law means any law, ordinance, order, bye-law, rule, or regulation enacted or made
before the beginning of this Constitution by any Legislature, authority, or person with the power to
do so”).

CONCLUSION:

Concerning the personal laws of the law enacted after the enactment of the Constitution, the course
of justice in recent times is to examine them in the light of the various provisions of Part III without
going into the technical question of whether the personal law is the law. Concerning the desire to use
the provision of Part III to learn personal rules, there will be no reasonable argument. The goal of
equality, freedom, and security is paramount in an environment where exploitation and discrimination
persist and loving commendation is sometimes denied. The application of Part III will ensure a fair and
impartial legal relationship under different individual laws. This is more desirable than quarrelling the
concept of teaching with the same community code. Once the concepts of justice and freedom are
incorporated into the field of human law, the Uniform Civil Code will be easier to follow.

Wherever the laws of India admit operation of a personal law, the rights and obligations of a Hindu
are determined by Hindu law, i.e., his traditional law, sometimes called the law of his religion, subject
to the exception that any part of that law may be modified or abrogated by statute.” Law as
understood by Hindus is a branch of dharma.

MODULE 1.2: DHARMA AND POSITIVE LAW;

INTRODUCTION
The previous mentioned prayer in simple and short is the basis of highest ideal of human life i.e.
Dharma, evolution in Ancient India. Dharma, in concept deals with duty, religion and inseparable
quality of a thing or orders i.e. virtuous conduct of righteous man and dharma in literal sense
means ‘something which sustains or upholds’ and is a Sanskrit noun derived from root ‘dhr’.
Dharma is semantic equivalent to the Greek word ‘ethos’. Dharma is the Indian version of Natural
law, how Indians perceived it in ancient society but the vision of them was very far-fetched and is
praised by many imminent personalities like Max Muller.

Dharma in contradiction to general opinion does not mean religion nor supports any, but it is a
whole body of rules and believes including in itself the religious rights, rules of conduct and duties.
Here when we talk about religious rights or duties, it does no prefer anyone over the other but
describes it for all religions. Dharma as said by Jaimini is, “founded on the revelation which is
conducive to the welfare of the society, ordained by the great Vedas”. Dharma is primarily based
on the Vedas and has many indices such as Sruti, Smriti and moral laws (sadachar) and governed
the lives of people in the ancient time. Dharma was a duty based legal system that is every
individual owed a duty towards other member of the society as Duguit says “The only right which
 any man can possess is the right to do his duty, his theory of Social Solidarity states that even the
sovereign or the state does not stand in any special position or privilege and its existence is
justified only so long as it fulfils its duty.”3, which is in direct contrast to the present day legal
system which specifies rights rather than the duties. We will see in this research project the close
relation between Dharma and the current legal system.

MEANING OF DHARMA
Dharma is generally accepted to have been derived and supersede from the vedic concept of Rita,
which literally meant, ’the straight line’. Rita refers to the Law of Nature, it signifies moral laws,
and based on righteousness. When something is Rita it simply meant that thing is true, right and
nothing more. Dharma evolved side by side of Rita but eventually took over it as the old concept
of Rita was not able to cope and solve the issue emerging with increasing social complexities.
Dharma signifies Natural law.

Dhrama, as been said by Justice M. Rama Jois4 is, “Dharma is that which sustains and ensures
progress and welfare of all in this world and eternal bliss in the other world. The Dharma is
promulgated in the form of command”. Mahabhartha also contains a discussion on the issue of
defining dharma5. Dharma in words of Madhavacharya is, “It is most difficult to define Dharma.
Dharma has been explained to be that which helps the upliftment of living beings. Therefore, that
which ensures welfare (of living beings) is surely Dharma. The learned rishis have declared that
which sustains is Dhrama.”

Dharma is anything that is right, just and moral. Dharma aims for the welfare of state and mainly,
its people.

ORIGIN OF DHARMA

Dharma originated from Vedas which are Sruti (heard knowledge) and they are the supreme
source of knowledge for humans, as the narration of what is heard from the ancient priests that
is Sruti and they contains narration on everything possible ranging from military to politics to
common people’s life. Its other sources are Smriti, which are the interpretation of Vedas and four
sages have propounded the dharmasastras and are called Smritikars. They are:
o Manu
o Yagnavalkaya
o Brihaspati
o Narada

The other source has been Puranas which are eighteen in number and contains information about
the creation and dynasties of God, sages and kings and detailed description of yugas. All the
sources are on the same footstep and no one has supremacy over the other. Idea which made

3
Duguit, L., Law in the Modern State, Review by: W. W. Willoughby, The American Political Science Review,
Vol. 14, No. 3 (Aug., 1920), pp. 504-506, Published by: American Political Science Association, Article Stable
URL: http://www.jstor.org/stable/1946272.
4
Jois, M. Rama, Legal and Constitutional History of India (Vol. I), 2010, ISBN- 8175342064. Universal law
publishing co.
5
Mahabharta says “It (dharma) is most difficult to define Dharma. Dharma has been explained to be that
which helps the upliftment of living beings. Therefore that which ensures welfare (of living beings) is surely
Dharma. The learned rishis have declared that which sustains is Dhrama.”
 people adhere to the Dharma can be illustrated by one verse from Brihadaranyaka Upnishad
which is, “punyo vai punyena Karmana bhavati, Papah Papeneti”, meaning ‘everyone becomes
good by good deeds and bad by bad deeds’, in other words ‘every one reaps what he sows’ and
what’s good is defined by Dharma.

FUNCTIONING OF DHARMA
Dharma is sanatana, i.e. which has eternal values; one which is neither time-bound nor space
bound. The concept of Dharma is with us from time immemorial. Dharma is different from
religion6. However they are commonly misinterpreted to mean the same and thence used
interchangeably. As the above said was distinguished by Justice J. Hansaria in A.S. Narayana
Deekshitulu vs State Of Andhra Pradesh & Ors7 by quoting Swami Rama’s book ‘A Call to
Humanity’ by the following words:

“Religion is enriched by visionary methodology and theology, whereas dharma blooms in the
realm of direct experience. Religion contributes to the changing phases of a culture; dharma
enhances the beauty of spirituality. Religion may inspire one to build a fragile, mortal home for
God; dharma helps one to recognize the immortal shrine in the heart.”

The supremacy of Dharma can be understood from a simple point that the King was not above
Dharma, he was governed by it, and if he didn’t than the Dharmashastrakara give right to the
public to revolt against such an unjust, arbitrary and unrighteous king or government. The treaties
of Manu, Kautilya and others contains many rights and duties of both the king and the public, and
even recognised individual rights like right to private property, personal wealth etc., which were
bound by the law for interest of society at large.

DECLINE OF DHARMA AND ADVENT OF POSITIVE LAW:

With the advent of Muslim rule followed by British rule, Dharma (Hindu) started losing its gloss
and roots. During Muslim rule, the place of dharma was taken by koranic teachings, though many
practises remained, hence it remained mainly untouched. But, with the onset of British rule, and
their ignorance of the Indian laws had a devastating effect on the concept of Dharma as they found
no laws here to govern people and they started to fix the issue by either importing western law
or say natural law with the devices of equality, justice and good conscience or imposing western
laws by means of codification in fields where no law was offered by either the Hindu’s or Muslim’s
Natural law, teachings and customs. But the civil rights and liberties enjoyed by people were taken
away. Indians were treated ruthlessly and arbitrary suppressed in every sphere of life ranging from
political to social and economical. Indians fought back for the rights and liberties that they enjoyed
before under the Law of Dharma. During his famous champaran trial, Gandhiji remarked that he
disobeyed the law not to show disrespect to British law, ‘but in obedience to higher law of our
being the vice of conscience’, by which he meant Dharma.

POST-INDEPENDENCE ERA

6
Rajesh HimmatlalSolankiv Union of India, Through Secretary, GHC, 2011. It was held that Dharma and Religion
are two different things, is some practises are not prevalent in some religions it does not make them as adharma
and in the same manner Dharma embraces every religion. In other words, following of Dharma is secular and
not contradictory to Constitution.
7
A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors, 1996 AIR 1765, JT 1996 (3) 482.
 The struggle for independence was the struggle for basic rights and civil liberties that one as a
basic human being should enjoy and the same was kept in mind, while making The Constitution
of India. Hindu law (Dharma) started to been codified according to the changes in outlook and
lifestyles, as it was realised that ancient way should yield to realistic approach of life8. The
principles of natural law (Dharma) found its way into the constitution in the way of fundamental
rights. Dharma was codified Dharma as we all know was a duty based legal system but the current
legal system became a right based one. Of course, these rights come are not absolute that they
too have certain restrictions. Right to equality, freedom of movement and most cherish able right
to life are some of the fundamental rights provided. But there are ample evidences from the
history of the world as well from ours to show the misuse of power whether it been the Hitler’s
Nazi or the infamous Emergency imposed by Indira Gandhi and what followed is enough to
question the very spirit on which our constitution was founded.

The judiciary gave a decision in Habeas Corpus case9 on a day truly referred as ‘the black day of
Indian legal history”, which further deterred the belief of people in judiciary. In this decision the
personal liberties and fundamental rights were taken away arbitrarily and the Honourable
Supreme Court in not so Honourable decision justified it for personal gains, but, soon after the
mistakes were started to be corrected. The fundamental rights were made absolute in famous I.C.
Golaknath10 case, and later the doctrine of basic structure was propounded by the Honourable
Supreme Court in His Highness Keshvananda Bharti case11, the attitude changed from absolute to
relative but law can never be static hence absolute, otherwise it becomes vague and useless. The
doctrine thus founded can be said to have following features12:

o Supremacy of the Constitution;

o Republican and Democratic form of Government;
o Secular character of the Constitution;
o Separation of powers between the legislature, executive and the judiciary, and
o Federal character of the Constitution.

ARTICLE 21- RIGHT TO LIFE13

The article needs special mention as the Supreme Court has been interpreting this article
according to the cases and has widened the ambit many folds to cover right to livelihood14, life is
more than mere animal existence15, right to legal aid16, Rights to dignity of a convict17 and much
more but does not include Right to die18. Article 21 is ever growing not bound by time and place.
Like Dharma included every aspect and facet of human life whether internal or external and
provided a law to govern it and safe-guard; the same is been done by Article 21 with the help of

8
Ambujam vs T.S. Ramaswamy, AIR 1973 Delhi 46, 8 (1972) DLT 292. Codification of Hindu marriage related laws
into Hindu Marriage Act, 1955.
9
A.D.M. Jabalpur Vs Shiv Kant Shukla, AIR 1976 SC 1207.
10
Golak Nath v. State of Punjab, AIR 1967 S.C. 1643.
11
His Highness Keshvananda Bharti v. State of Kerla, AIR 1973 SC 1462-63.
12
Dhyani, S.N., “Fundamentals of Jurisprudence”, 2004. Allahabad: Central law Agency.
13
The Constitution of India, 1950, Part III, Article 21.
14
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
15
Kharak Singh v. State of U.P., AIR 1963 SC 1295.
16
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369.
17
Union of India v. Bhanudas, AIR 1978 S.C. 1027.
18
Gian Kaur v. State of Punjab, AIR 1967 SC 1257.
 other fundamental rights. Article 21 is large and wide and has a potential to confer every basic
human right that one needs to live a life of a dignified human.

EVOLVING ‘CONCEPT OF DHARMA’

The concept of dharma or simply dharma has been used by various courts in helping them to arrive
at decisions even by the Honourable Supreme Court in many cases. One of the important cases is
Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors19, which elaborately discusses
the questions related to Dharma, ‘what is dharma?’, ‘Is Dharma same as Religion?’ And every
answered each and every doubt. Dharma as said above is distinct from religion. Dharma even
regulates the law today, by means of morality in and outside the courts as in the Secretary,
Ministry of Information & Broadcasting v. Cricket Association of Bengal & ANR.20.

In Dattatraya Govind Mahajan vs. State of Maharashtra21, the court talks about the Dharma of the
Constitution, and the karma of adjudication. Dharma thought to be an orthodox area is used in
the cases much unorthodox prime facie such as rights to transgenders22. Dharma has been used
by the courts as prestigious as Constitutional benches and used in place and equivalent of duty
and truth and even the flag contains the dharma chakra of Ashoka. The courts have interpreted
articles 25 and 26, in line with Dharma, they have said when the articles are read and religion
means Dharma that is co-existence with welfare of others, not an orthodox view. The concept of
dharma as said earlier is fully explored in Narayana Deekshitulu vs State Of Andhra Pradesh &
Ors23, there is a comparison between the constitutional laws and Raja Dharma, the definition of
dharma is tried to be clarified by using different verses from everywhere, ‘Dharma in context of
Rajya only means law’ and Dharma is secular or maybe the most secular. The same view is held
until now, by all the courts and is not disputed that Dharma is an eternal bliss, which has seen
many parts and parcels of human life, mortals, but remained immortal.

A COMPARSION
Dharma signifies regularity of order universally accepted, it includes religion, duty, and
inseperable of a quality or an order, whereas present day law is based on reasons and does include
religious aspects. Dharma is duty-based concept. However, the present law focuses on rights
rather than duties. Dharma in itself included morals, ethics and righteous conduct of a man but
the present system does not recognise the moral or ethical values and rather than conduct or
motive, it now focuses on the act and the consequences. Dharma pre-supposes a supernatural
and binds together by the fear of the same supernatural but on the other hand the law is based
on reasonableness and binds through legal sanctions given by courts (human). Law in modern
sense is confined to rights, legal duties etc. And not with righteous conduct and hence, is particular
in nature whereas Dharma is all pervasive and universal. The law pre-supposes man’s idea of ‘what
ought to be’ and is based on reasonableness. The concept of welfare state, which is the nature of
state today, is found to have roots in Dharma. The Human Rights and fundamental rights have
spurred from Dharma and Rigveda clearly shows ample evidences24.

19
Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors, 1996 AIR 1765, JT 1996 (3) 482.
20
Secretary, Ministry Of Information & Broadcasting v. Cricket Association of Bengal & ANR., 1995 AIR 1236,
1995 SCC (2) 161.
21
Dattatraya Govind Mahajan vs. State of Maharashtra, AIR 1977 SC 915 1977 Indlaw SC 157.
22
National Legal Services Authority v. Union of India and others, 2014 Indlaw SC 250.
23
Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors, 1996 AIR 1765, JT 1996 (3) 482.
24
Maneka Gandhi v. Union of India, 1978 1 SCC 248. The Supreme Court pointed out, “These fundamental rights
represents the basic values cherished by the people of this country since the Vedic times and they are calculated
 CONCLUSION: Dharma and law as seen above may seem to be in contrast, but the ideology behind
them is same. At large, law is a part of Dharma without disharmony and they constitute single
integrated whole. Dharma on one hand is taken to be religious, but it is not so and the same has
been approved by the Honourable Supreme Court in many cases as pointed in above sections.
Dharma has been and is guiding our conduct, morals and laws in varying degree. One may not find
any relation between the two on the face but on a deep analysis both are interrelated integrated
whole. ‘Dharma’ is one of the many sources of modern law and is shaping society. Hence, it can
be said that ‘dharma’ and law are closely related and interwoven. Dharma by passing the test of
time has shown its eternal character.

MODULE 1.3: APPLICATION OF HINDU MUSLIM CHRISTIAN AND PARSI LAW

APPLICATION OF HINDU LAW

As stated by Article 44 of the Indian Constitution, India is a secular state that strives towards legal
uniformity. Many argue that the commitment of the Indian government towards this gradual
uniformity of the legal system threatens the minority religious groups that utilize the plurality of the
law to maintain traditions and implement their religious laws. Before discussing the modern
application and sources of Hindu law it is important to outline whom these laws govern. In the case of
Hindu personal and family laws, as outlined by the Acts of Parliament discussed below, those that are
followers the Hindu religion, as well as those who are not Christian, Jewish or Muslim, are held
accountable to these laws.[2] Therefore, it is assumed that all Indians who are not Muslim, Jewish or
Christian are Hindu, disregarding personal religious laws of followers of Buddhist, Jain, Sikh and other
religions, creating controversy within these communities. The Indian legal system does recognize
Muslim, Jewish and Christian family courts as well as secular family courts.

Hindu law as a historical term refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs
in British India. It is modified through centuries.

According to Magne, “Hindu law has an oldest pedigree of known system of Jurisprudence and even
now it shows no signs of Decrepitude.”

Historical Background of Hindus: Before 1955, a person who was Hindu by religion was a Hindu, but
the converse was not true, there were some persons who could hardly be called Hindus by religion
yet Hindu law applied to them they were called Hindus. Thus, at a particular time we reached a stage
where it was necessary to Indicate Who are Hindus?

Who are Hindus?

The term Hindus denotes all those persons who profess Hindu religion either by birth or by conversion
to Hindu Faith.

Case Law: Yagnapurus Dasji V. Muldas [AIR 1966 SC 1119]

to protect the dignity of the individual and create conditions in which every human being can develop his
personality to the fullest extent.”
Judgement: The SC accepted the working formula evolved by Tilak regarding Hindu religion that
‘Acceptance of Vedas’ with reverence recognition of fact that the number of Gods to be worshiped at
large, that indeed is distinguishing feature of Hindu.

To whom Hindu law applies:

Hindu By Religion (Section 2 (1) clause a and b):

A person who is Hindu, Jain, Buddhist or Sikh by religion originally are known as Hindu.

Case law: Shastri V. Muldas SC AIR 1961

Judgement: SC held that various sub sects of Hindu such as Swaminarayan, satsangis, Arya samajis are
also Hindu by religion because they follow the same basic concepts of Hindu Philosophy.

Converts and reconverts of Hinduism (Section 2(1) clause c to explanation:

Any person who is convert and reconvert into Hinduism, Sikhism, Buddhism and Jainism is Hindu. The
usual mode of conversion is by undergoing the ceremonies of conversion prescribed by the religion to
conversion is sought. Hinduism has not been a proselytising religion. Among Hindus, it is only the
Aryasamjis who prescribe the ceremony of ‘Sudhi’ by undergoing which one may become Arya Samaji
Hindu.

Case Law: Peerumal V. Poonuswami [AIR 1971 SC 2352]

Judgement: SC held that a person can be Hindu if after expressing the intention of becoming a Hindu,
follows the custom of caste tribe, or community and the community accepts him.

Hindu by Birth: (section 2(1) clause a and b to explanation):

When both the parents are Hindu:(section 2(1) clause a to explanation): Under the modern Hindu law,
the children of Hindu parents are Hindu. Under this clause, it is necessary that the both the parents
should be Hindu. Whether that child is Legitimate or Illegitimate that doesn’t matter. However, it also
not necessary that child should take the religion of his father after his birth.

For example: If the Parents convert into Non-Hindu before the birth of the child, the child will be Non-
Hindu. Whereas if parents convert into Non-Hindu after the birth of a child, the child will be a Hindu.

When the one of the parents is Hindu: A person will be a Hindu if:

1.If one of his parents at the time of his birth was a Hindu

2.And he was brought up as a member of tribe community, group, or family to which Hindu parent
belonged at the time of birth of child.

Case law: Sapna Jacob, Minor V. State of Kerala [AIR 1993 Ker.75]

Judgement: SC held that the daughter of Christian father and Hindu mother brought up as a Christian
is not a Hindu, she is held to be a Christian.

Person who are not Muslim, Christian, Parsis or Jews (section 2 (3):

Any person who is not Muslim, Christian, Parsis or Jews (and who is not known to be a Hindu, Sikh,
Jain, or Buddhist)

1.Who domiciled in India

2.Unless it is proved that Hindu law is not applicable to them

Is a Hindu. This is known as a residuary clause. A person who believes in common wealth of all religions
has also to belongs to one or other community. In India unless a person converts to another religion,
he continues to belong to his community of origin or birth, whatever he may do with his religion.

Case law: Rajkumar V. Barbara [AIR 1939 Cal. 165]

Facts: Child was born of Hindu father and Christian mother; it was not shown that the child was
brought up as a Hindu.

Judgement: It was held that the child was a Hindu. Under section 2 (3)

Section 2 clause 2: According to this section Hindu Marriage Act does not applies to the schedule tribe
coming under the meaning of clause 25 of Article 366 of constitution of India. Unless the Central
Government, by the notification in the official Gazette, directs that the act will apply to any of the
schedule tribes. Most of the scheduled tribes are still Governed by custom.

Section 2 clause 3: According to this section all the persons whom Hindu law applies are known as
Hindu.

APPLICATION OF MUSLIM LAW

Section 2 of the Muslim Personal Law (Shariat) Act, 1937 talks about the application of Personal Law
to Muslims. The provision reads as “Notwithstanding any customs 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, illa, zihar, 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).” The provision thus
covers ten subject matters within its umbrella which are:

1. Intestate succession;

2. Dissolution of marriage that also includes all kinds of divorce as well namely talaq, illa, zihar,
lian, khula, and mubarat;

3. Maintenance;

4. Dower;

5. The special property of the females;

6. Marriage;

7. Guardianship;

8. Gift;

9. Trust, and its associated properties; and

10. Wakf.

In order to interpret this provision, two essential phrases present in this Section needs to be
highlighted, which are:
 1. “Notwithstanding any customs or usage to the contrary”, and

2. “Shall be the Muslim Personal Law (Shariat)”.

These two phrases complement each other, and one loses its meaning in the absence of the other.
This is because a harmonious construction between the prevalent custom, and the law of the land
have been adopted by this legislation so as to provide necessary importance to both of them. Before
delving into the objective of this provision it is necessary to point out the reason behind the existence
of such a Section in the Act. As has been discussed previously, the underlying principle of this Act is to
eliminate the governing role of religious and customary laws by means of legislative enactments in
order to avoid a rise in discriminatory laws. Thus, with the introduction of the Muslim Personal Law
(Shariat) Act, 1937, such goals have been aimed to be achieved. Section 2 incorporates this reason
behind the formulation of the Act thereby mandating the application of the Muslim Personal Law
(Shariat). This mandating nature will thus bound the Indian courts to administer only Muslim Law
whenever disputes arise in the case of the subject matters provided in this provision. It is to be noted
that Section 2 does not talk about adoption, legacies, and wills. This, therefore, does not bound the
courts to apply Muslim Law in such cases.

But this provision comes with its own detriment which is included in the provision itself. Section 2
expressly excludes the domain of agricultural land from its ambit and from the scope of the entire Act
thereby reinforcing the inheritance customs that categorically excluded women from being entitled
to inherited agricultural land and therefore, women continued to be deprived of their legitimate share
on agricultural lands as was provided under the Islamic Law. While the male heirs continued to enjoy
their inherited share of agricultural land, the female heirs remained shadowed. The exclusion of
agricultural land from the scope of the Act obstructs the Act from achieving its purpose. With the
purpose of the Act getting nullified, replacing customs with legislative enactments has no role to play.

Section 3: Power to make a declaration

Section 3 just like Section 2 of the Act categorically excludes females to make a declaration regarding
obtaining benefits from agricultural land. The provision reads as,

“(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
(9 of 1872), and

(c) that he is a resident of [the territories to which this Act extends],

may by a 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 to make the same may appeal to such officer as the State Government may, by general or
special order, appoint in this behalf, and such officer may, if he is satisfied that the appellant is entitled
to make the declaration, order the prescribed authority to accept the same.”

Section 3 of the Act talks about the power to make a declaration. Now, in order to use this power, a
person should satisfy three criteria provided by this provision, which are;
 1. The person has to be a Muslim;

2. The person is competent (under the meaning of the term provided in Section 11 of the Indian
Contract Act, 1872) to enter into a contract; and

3. The person is a resident of India.

The point to be noted in this provision is that all the provided parameters need to be abided by in
order to exercise the power vested under Section 3 of the Muslim Personal Law (Shariat) Act, 1937.
As we have discussed as to who can avail the power, it is important to understand the consequence
that comes with the usage of this power. Section 3 acts as a tool for ensuring mobility of Section 2 of
this Act. The Section provides that an individual after abiding by the prerequisites of the provision can
declare his desire to acquire the benefit of the provision followed by which Section 2 will be applicable
to the declarant of such benefit along with all his minor children and their descendants.

Section 3 also covers a few subjects that Section 2 has not talked about. They include wills, legacies,
and adoption. By doing so, the provision provides discretion for the courts to apply Muslim Law in
such subjects only if a Muslim declares that he wants to be ruled by the provisions of the Shariat Act,
1937 as he will be for the rest of the ten subjected provided under Section 2 of the Act. Such a
declaration should be made in a prescribed form before the prescribed authority and will be governed
by the procedure provided under Section 3(2), and Section 4 of the Shariat Act, 1937. As Section 3
provides the power to make a declaration, to a Muslim to be governed by the Muslim Law, in absence
of such declaration, the provision provides an implied power to the courts to not be bound by such
law while deciding a matter ruled by Section 2, and 3 in dispute.

The rule-making power of the State Governments under the Act of 1937

Section 4 of the Muslim Personal Law (Shariat) Act, 1937 vests the rule-making power in accordance
with the provisions and the purpose of the Act on the State governments. The Section reads as,

“(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 matters, 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 declarations 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.

(4) [Every rule made by the State Government under this Act shall be laid, as soon as it is made, before
the State Legislature].”

This provision along with Section 3 of the Act of 1937 governs the procedure for a declaration by a
Muslim as provided under Section 3 (1). The prescribing authority and the fees that need to be
submitted before such authority for filing of declaration need to be decided by the State governments.
It is to be noted that the Act of 1937 is Central legislation and at the time of its promulgation, it could
not have been made specifically for the states. Because of this, the Act appears to be flexible enough
to incorporate the rule-making power of the state government in accordance with the needs of the
Muslims of that state, provided the purpose of the Act should be no way stand defeated.

Repeals under the Muslim Personal Law (Shariat) Act, 1937

Section 6 of the Shariat Act of 1937 talks about repealing certain provisions of a few statutes which
appears to be inconsistent with the provisions of the Shariat Act of 1937. These Acts vested authorities
on the courts of India to implement Muslim Law before the Shariat Act of 1937 was promulgated.
These Acts were:

1. Section 26 of the Bombay Regulation 4 of 1827.

2. Section 16 of the Madras Civil Courts Act, 1873 (3 of 1873).

3. Section 3 of the Oudh Laws Act, 1876 (18 of 1876).

4. Section 5 of the Punjab Laws Act, 1872 (5 of 1872).

5. Section 5 of the Central Provinces Laws Act, 1875 (20 of 1875) and

6. Section 4 of the Ajmer Laws Regulation, 1877 (Regn. 3 of 1877).

Conclusion

The Muslim Personal Law (Shariat) Act, 1937 being a Central legislature enactment could not consider
making state laws as the same existed beyond its legislative competence. Therefore, relevant subject
matters such as agricultural land, charities, and charitable endowments were left alone. This has three
implications which are:

1. The Act failed to achieve its purpose of ensuring equal rights to both males and females which
were restricted on the application of customary laws.

2. When there arise disputes concerning these three subjects of agricultural land, charitable
endowments, and charities, courts will not be able to apply Muslim Law under the authority
provided by the Shariat Act, 1937.

3. Because of the absence of provincial laws in these three subjects, State legislatures have the
authority to formulate laws on these matters. For example, in the State of Tamil Nadu,
Muslims are regulated by Muslim personal law in subject-matters of agricultural land because
there has been an amendment of Section 2 of the Act of 1937 to include these subject matters
which are not governed by the Act in general.

APPLICATION OF CHRISTIAN LAW

One of the questions agitated before us is, whether the provisions of the proposed Act should govern
marriages even when only one of the parties belongs to the Christian faith at the time of the marriage.
Under section 4 of the Indian Christian Marriage Act, 1872, the marriage has to be solemnised in
accordance with the provisions of the Act even when only one of the persons is a Christian. It has been
suggested before us that the law in this respect requires modification. Section 5 of the Hindu Marriage
Act, 1955, expressly provides that the Act applies to marriages between Hindus.

Section 2(6) of the Parsi Marriage Act, 1936, defines a marriage as one between Parsis. Conformably
to this, "husband" and "wife" are defined in section 2(5) and section 2(9) respectively as meaning a
Parsi husband and a Parsi wife. Thus, the scheme of legislation has latterly, been that laws governing
marriages in a particular religious denomination should have application only when both the parties
to the marriage belong to that religious denomination.

The witnesses, who pressed for applying the Act to marriages even if one of the parties thereto was a
Christian while the other was not, maintained that if the non-Christian party was willing to have the
marriage solemnised in a Church in accordance with the rites and ceremonies of that Church, there
was no reason why the law should refuse to recognise it.

But clearly such a marriage cannot, in any sense, be regarded as sacramental. In this connection,
reference should be made to the Special Marriage Act, 1954, which is applicable to marriages between
persons belonging to different faiths, and it would be quite logical if marriages between persons both
of whom are Christians are alone brought within the purview of the Act, while marriages in which only
one of the parties is a Christian are left to.be solemnised under the provisions of the Special Marriage
Act, 1954. Further, if a marriage between persons belonging to different faiths is allowed to be
solemnised under the provisions of the proposed Act that would lead to various complications.

If, for example, a Christian male marries a Hindu female, the succession to their properties would be
governed as regards the husband by the Succession Act, and as regards the wife by the Hindu Law.
The result would be anomalous and inequitable. Difficulties might arise as regards the rights of the
parents to the custody of children in case of dispute. The normal law awarding to the father the right
of guardianship over children after a particular age might work hardship on the mother. We consider
that the proposed legislation should apply only when both the parties thereto are Christians. This view
has also the support of a considerable body of Christians.

APPLICATION OF PARSI LAW

Application of Parsi Laws:

 Persons who have descended from the original Persian emigrants, who are or were born of
Zoroastrian parents and profess Zoroastrian faith.
 Persons whose father is or was a Parsi and whose mother an alien but has been admitted to
Zoroastrian faith
 Zoroastrians those who are from Iran but who are either temporarily or permanently residing
in India.

Five conditions laid down by the Indian ruler for Parsis were: -

 “They should adopt the local language.

 They should translate their holy teats into the local language.
 Their women should wear saree and not their attire.
 They should follow the local rites of marriage.
 They should surrender their arms.” (Cabinetmaker 1991: 2-3)

Thus, on agreeing to the above five conditions the king allowed them to build their fire temples. During
the rule of East India Company in India, the British charters explicitly saved the customs and usages of
Hindus and Muslims in civil matters as they were deemed religious, unlike the Paris’s, Jews, Americans
etc. In exercise of the discretionary powers granted to the Judges, on the English principles of Justice,
Equity & Good conscience, the residuary communities of Jews, Parsis etc. were operated under these
English Laws. Later the English Common laws were applied to the Parsis and their proper descendants
subject to certain exceptions relating to marriage and bigamy. In Sec. 50 & 56 of the Indian Succession
Act, 1925 there are special rules for Parsi Intestacy. Arsis are also governed by the Parsi Marriage and
Divorce Act of 1936.There’s no legal adoption been followed to amongst the Parsis and therefore if a
Parsi couple adopts a child, such child won’t be able to enjoy the automatic rights of inheritance. Being
one of the most progressive communities Parsis have always been into such conflicts between
liberal & orthodox viewpoints.

However,In my opinion the old traditions and cultures should be preserved since India is a country
of rich heritage but some sensitization efforts should be made to reform the current personal laws
and creating new codified laws in order to preserve such small communities like Parsis, Christians
etc. and their rich cultural heritage as well.

Marriage Under Parsi Law:

Marriages under Parsis are being governed under “THE PARSI MARRIAGE AND DIVORCE ACT,
1936 (ACT 3 OF 1936) (23rd April, 1936)” in India.

Parsis or the Zorastrians are generally opposed to inter-caste marriages and most practice
endogamy (marrying within their own community or like groups namely, Yazidis, Druze, Mandaeans
etc.)A Parsi most likely marries a fellow Parsi because they believe being an ethno religious group, so
that one can only become a Parsi if one is born out of such a marriage.T he requisites foe a valid Parsi
marriage are: “(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(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.(2) Notwithstanding that a marriage is
invalid under any of the provisions of sub-section (1), any child of such marriage who would have been
legitimate if the marriage had been valid, shall be legitimate.” In cases where the father is a Parsi but
the mother is not a Parsi, in those cases the child will be accepted in the religion only if the father
applies for the child to be admitted into the religion through proper ceremony and steps as prescribed
in their laws and customs.

Chinnappa Reddy, J. in Jorden Diengdeh v. S.S. Chopra observed: “that the law relating to judicial
separation, divorce and nullity of marriage is far from being uniform. Surely time has now come for a
complete reform of the law of marriage and to make it a uniform law applicable to all the people
irrespective of religion caste and creed.”

Divorce Under Parsi Law: Under the Parsi Marriage And Divorce Act 1936 the grounds of divorce has
been stated under section32 as follows: “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 willful 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 form the date of the marriage;
(bb) that the defendant has been 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.”

Under section 32A the proviso relating to “Non-resumption of cohabitation or restitution of

conjugal rights within one year in pursuance of a decree to be ground for divorce” have been stated
as:“

(1) either parties can sue for divorce under these following grounds:

(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 to the plaintiff if he has failed or neglected to comply
with any order for maintenance passed against him under section 40 of this Act or under section
488 of the Code of Criminal Procedure 1898 or section 125 of the Code of Criminal Procedure 1973.”

Under Section 32B of Parsi Marriage and Divorce Act 1936 the proviso for Divorce by mutual
consent have been stated as:“

(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.”

Claim For Maintenance by Parsis:

Parsis can claim from their partners for maintenance through criminal/civil proceedings or if
interested they can even pursue for both the procedures simultaneously. However, the religion
matters in case of Civil Proceedings but not in case of the criminal proceedings. In cases where the
husband refuses to pay maintenance the wife can inform about the same to the court as it would be
treated as contempt of court. Such husband can be sentenced to imprisonment and may be detained
unless he pays. Under the Parsi Marriage And Divorce Act 1936 both alimony pendente and
permanent alimony has been recognized.

JOINT FAMILY AND COPARCENARY;

A joint and undivided Hindu family is the normal condition of Hindu society. A joint Hindu family
consists of all persons who are lineally descended from a common ancestor, and includes their wives
and unmarried daughters. On marriage, a daughter ceases to be a member of her father8s family, and
becomes a member of her husband8s family. Thus, if A has two sons, X and У, and an unmarried
daughter Z, all of them (i.e., A, X, Y and Z) would constitute the joint family. On her marriage, Z would
cease to be a member of this joint family, and would become a member of the joint family of her
husband. However, the existence of joint estate is not absolutely necessary to constitute a joint family,
and it is possible to have a joint Hindu family which does not own any estate. But, if joint estate exists,
and the members of that family become separate in estate, the family ceases to be joint. Mere
severance in food and worship does not, however, operate as a separation. (Chowdhry Ganesh Dutt
v. Jewach, 1904 31 I.A. 10) Thus, although a Hindu family is presumed to be joint (in food, worship and
estate), there is no presumption that it possesses joint property or any property at all. This would have
to be proved by producing affirmative evidence to that effect. (Ram Narain Chand v. Purnea Banking
Corporation Ltd., A.I.R. 1953, 110) Thus, a joint Hindu family does not consist of male members only.
It may consist, for instance, of a single male member and widows of the deceased male members.
Likewise, it may consist of one male and one female member, e.g., a brother and his unmarried sister,
or a son and his mother (provided the female member is entitled to a share or to maintenance), or it
may consist even of two or more surviving females, as for instance, two or more widows, or an
unmarried daughter and her mother, and so on.

A joint Hindu family, as such, has no legal entity which is distinct and separate from that of the
members who constitute such a family. In this sense, it is different from a corporation or a company
which is considered to be a distinct legal person in the eyes of law. A joint Hindu family is a unit to
which no outsider can be admitted by consent of the parties concerned. It is a status which can be
acquired only by birth or by adoption, and in the case of women, by marriage. Such a joint family may
be broken up by separation of individual members or by a partition amongst all the members. Such a
separating member would then form a new family with his descendants, and a new joint family would
come into existence.

MODULE II:
SOURCES AND SCHOOLS OF LAW:
Sources of Hindu Law can be divided into two parts - Ancient and Modern.

1. Ancient Sources

Before the codification of Hindu Law, the ancient literature was the only source of the

law. These sources can be divided into four categories:

SHRUTI

Shruti means "what is heard". It is believed that the rishis and munis had reached the height of
spirituality where they were revealed the knowledge of Vedas. Thus, shrutis include the four vedas -
rig, yajur, sam, and athrava along with their brahmanas. The brahmanas are like the apendices to the
Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs. Some people believe
that Vedas contain no specific laws, while some believe that the laws have to be inferred from the
complete text of the Vedas. Vedas do refer to certain rights and duties, forms of marriage,
requirement of a son, exclusion of women from inheritance, and partition but these are not very
clearcut laws.

During the vedic period, the society was divided into varns and life was divided into ashramas. The
concept of karma came into existence during this time. A person will get rewarded as per his karma.
He can attain salvation through "knowledge". During this period the varna system became quite
strong. Since vedas had a divine origin, the society was governed as per the theories given in vedas
and they are considered to be the fundamental source of Hindu law. Shrutis basically describe the life
of the Vedic people.

The vedic period is assumed to be between 4000 to 1000 BC. During this time, several presmriti sutras
and gathas were composed. However, not much is known about them today. It is believed that various
rishis and munis incorporated local customs into Dharma and thus multiple "shakhas" came into
existence.

SMRITI

Smrit means "what is remembered". With smritis, a systematic study and teaching of Vedas started.
Many sages, from time to time, have written down the concepts given in Vedas. So, it can be said that
Smritis are a written memoir of the knowledge of the sages. Immediately after the Vedic period, a
need for the regulation of the society arose. Thus, the study of vedas and the incorporation of local
culture and customs became important. It is believed that many smritis were composed in this period
and some were reduced into writing, however, not all are known. The smritis can be divided into two

o Early smritis (Dharmasutras) and

o Later smritis (Dharmashastras).

a. Dharmasutras

The Dharmansutras were written during 800 to 200 BC. They were mostly written in prose form but
also contain verses. It is clear that they were meant to be training manuals of sages for teaching
students. They incorporate the teachings of Vedas with local customs. They generally bear the names
of their authors and sometime also indicate the shakhas to which they belong. Some of the important
sages whose dharmasutras are known are: Gautama, Baudhayan, Apastamba, Harita, Vashistha, and
Vishnu. They explain the duties of men in various relationships. They do not pretend to be anything
other than the work of mortals based on the teachings of Vedas, and the legal decisions given by those
who were acquainted with Vedas and local customs.

Gautama - He belonged to Sam veda school and deals exclusively with legal and religious matter. He
talks about inheritance, partition, and stridhan.

Baudhayan - He belonged to the Krishna Yajurveda School and was probably from Andhra Pradesh. He
talks about marriage, sonship, and inheritance. He also refers to various customs of his region such as
marriage to maternal uncle's daughter.

Apastamba - His sutra is most preserved. He also belonged to Krishna Yajurveda school from Andhra
Pradesh. His language is very clear and forceful. He rejected prajapatya marriage.

Vashistha - He was from North India and followed the Rigveda school. He recognized remarriage of
virgin widows.

b. Dharmashastras

Dharmashastras were mostly in metrical verses and were based of Dharmasutras. However, they were
a lot more systematic and clearer. They dealt with the subject matter in three parts

Aachara: This includes the theories of religious observances,

Vyavahar: This includes the civil law.

Prayaschitta: This deals with penance and expiation.

While early smrutis deal mainly with Aachara and Prayaschitta, later smrutis mainly dealt with
Vyavahar. Out of may dharmashastras, three are most important.

MANUSMRITI

This is the earliest and most important of all. It is not only defined the way of life in India but is also
well known in Java, Bali, and Sumatra. The name of the real author is not known because the author
has written it under the mythical name of Manu, who is considered to the the first human. This was
probably done to increase its importance due to divine origin. Manusmriti compiles all the laws that
were scattered in presmriti sutras and gathas. It gives importance to the principle of 'danda' which
forces everybody to follow the law. Manusmriti was composed in 200 BC.

YAJNAVALKYA SMRITI:

Though written after Manusmriti, this is a very important smriti. Its language is very direct and clear.
It is also a lot more logical. He also gives a lot of importance to customs but hold the king to be below
the law. He considers law to be the king of kings and the king to be only an enforcer of the law. He did
not deal much with religion and morality but mostly with civil law. It includes most of the points given
in Manusmriti but also differs on many points such as position of women and sudras. He was more
liberal than Manu. This was composed in around 0 BC. Vijnaneshwar's commentary 'Mitakshara' on
this smruti, is the most important legal treatise followed almost everywhere in India except in West
Bengal and Orissa.

NARADA SMRITI:

Narada was from Nepal and this smriti is well preserved and its complete text is available. This is the
only smriti that does not deal with religion and morality at all but concentrates only on civil law. This
is very logical and precise. In general, it is based on Manusmriti and Yajnavalkya smriti but differ on
many points due to changes in social structure. He also gives a lot of importance to customs. This was
composed in 200 AD.

COMMENTARIES AND DIGEST:

After 200 AD, most of the work was done only on the existing material given in Smritis. The work done
to explain a particular smriti is called a commentary. Commentaries were composed in the period
immediately after 200 AD. Digests were mainly written after that and incorporated and explained
material from all the smritis. As noted earlier, some of the commentaries were manubhashya,
manutika, and Jimutvahan's Dayabhag. The most important digest is Mitakshara that is applicable in
the areas other than Bengal and Orissa.

CUSTOMS:

Most of the Hindu law is based on customs and practices followed by the people all across the country.
Even Smritis have given importance to customs. They have held customs as transcendent law and have
advised the Kings to give decisions based on customs after due religious consideration. Customs are
of four types:

1. Local Customs - These are the customs that are followed in a given geographical area. A custom gets
it force due to the fact that due to its observation for a long time in a locality, it has obtained the force
of law.
2. Family Customs - These are the customs that are followed by a family from a long time. These are
applicable to families where ever they live. They can be more easily abandoned than other customs.

3. Caste and Community Customs - These are the customs that are followed by a particular cast or
community. It is binding on the members of that community or caste. Custom to marry brother's
widow among the Jats is also of this type.

REQUIREMENTS FOR A VALID CUSTOM:

1. Ancient: Ideally, a custom is valid if it has been followed from hundreds of years.

There is no definition of ancientness, however, 40yrs has been determined to be ancient enough. A
custom cannot come into existence by agreement. It has to be existed from long before. Thus, a new
custom cannot be recognized. Therefore, a new form of Hindu marriage was not recognized in Tamil
Nadu.

2. Continuous: It is important that the custom is being followed continuously and has not been
abandoned. Thus, a custom may be 400 yrs. old but once abandoned, it cannot be revived.

3. Certain: The custom should be very clear in terms of what it entails. Any amount of vagueness will
cause confusion and thus the custom will be invalid. The one alleging a custom must prove exactly
what it is.

4. Reasonable: There must be some reasonableness and fairness in the custom. Though what is
reasonable depends on the current time and social values.

5. Not against morality: It should not be morally wrong or repugnant. For example, a custom to marry
one's granddaughter has been held invalid.

6. Not against public policy: If a custom is against the general good of the society, it is held invalid. For
example, A custom among dancing women permitting them to adopt one or more girls was held to be
void because it was against public policy.

7. Not against any law: If a custom is against any statutory law, it is invalid. Codification of Hindu law
has abrogated most of the customs except the ones that are expressly saved.

Proof of Custom

The burden of proving a custom is on the person who alleges it. Usually, customs are proved by
instances. Existence of a custom can also be proved through documentary evidence such as in Riwaz-
i-Aam. Several treaties exist that detail customary laws of Punjab.

Usage and Custom

The term custom and usage is commonly used in commercial law, but "custom" and "usage" can be
distinguished. A usage is a repetition of acts whereas custom is the law or general rule that arises from
such repetition. A usage may exist without a custom, but a custom cannot arise without a usage
accompanying it or preceding it. Usage derives its authority from the assent of the parties to a
transaction and is applicable only to consensual arrangements. Custom derives its authority from its
adoption into the law and is binding regardless of any acts of assent by the parties. In modern law,
however, the two principles are often merged into one by the courts.

Modern Sources
Hindu law has been greatly influenced by the British rule. While it might seem that the British brought
with them the modern concepts of equity and justice, these concepts existed even in dharamashastras
albeit in a different form. Narada and Katyayana have mentioned the importance of dharma
(righteousness) in delivering justice. However, we did not have a practice of recording the cases and
judgments delivered. So, it was not possible to apply stare decisis’. This process started from the
British rule.

Modern sources of Hindu law:

1. Equity, Justice, and good conscience

Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True justice
can only be delivered through equity and good conscience. In a situation where no rule is given, a
sense of 'reasonableness' must prevail. According to Gautama, in such situation, the decision should
be given that is acceptable to at least ten people who are knowledgeable in shastras. Yagyavalkya has
said that where ever there are conflicting rules, the decision must be based on 'Nyaya'. This principle
has been followed by the Privy Council while deciding cases.

2. Precedent

The doctrine of „stare decisis’ started in India from the British rule. All cases are now recorded and
new cases are decided based on existing case laws. Today, the judgment of SC is binding on all courts
across India and the judgment of HC is binding on all courts in that state.

3. Legislation

In modern society, this is the only way to bring in new laws. The parliament, in accordance with the
need’s society, constitutes new laws. For example, a new way of performing Hindu marriages in Tamil
Nadu that got rid of rituals and priests was rejected by the SC on the basis that new customs cannot
be invented. However, Tamil Nadu later passed an act that recognized these marriages.

Also, most of the Hindu laws have now been codified as mentioned in the beginning. In the past, due
to the vast size of the country, various kinds of customs prevailed. Further, due to lack of effective
communication, there were several contradictions among the practices and the judgment delivered.
Thus, the country went on the way to being divided. Instead of becoming the law of the land (lex-loci),
Hindu Law became the law of a person. However, this can only be an excuse for the past.

Today, because of media and communication, judgement delivered in one place is felt in another. A
practice or custom followed in a village can be repugnant to people in cities.

SOURCES OF MOHAMADAN LAW

Muslim law is a personal law which is applied only on Muslims. It is applied by courts in India to
mohamedans not in all, but in some matters only. Muslin law in India means that portion of Islamic
civil law which is applied to Muslims as a personal law. Muslim law is the body of law which is derived
from the Quran and other recorded saying of the Muslims prophet Muhammad. However Islamic law
talked about man's duties rather than his rights. In the religious sense Islam means submission to the
will of god' & in secular sense Islam means the establishment of peace.

The origin of Muslim law is Arabia where Mohammad enunciated Islam. The object of Islam is to create
a sense of obedience and submission to Allah. His ordinances and thereby to walk on right path. Those
who follow this path are Muslim. According to Amir Ali Muslim is any person who professes the religion
of Islam, in other words accepts the unity of God and prophetic character of Mohammad. Thus, to be
a Muslim only two things is required- one is that Allah is one and the second is the prophet hood of
Mohammad. Islamic law is a branch of Muslim theology, giving practical expression to the faith, which
lays down how Muslim should conduct himself through his religion, both towards god and towards
other men.

Muslim law consists of the injunction of Quran, of the traditions introduced by the practice of the
prophet (sunna), of the common opinion of the jurists (ijma), of the analogical deductions of these
three (qiyas). Further, it has been supplemented by the juristic preference (Istihsan), public policy
(Istislah), precedent (Taqlid) and independent interpretation (Iltihad).

SOURCES
Sources of Muslim law is classified into two categories that is primary sources and secondary sources.

PRIMARY SOURCES

Primary sources are those on which Muslim law relied on. These sources are the foundation of Muslim
law. Primary sources of Muslim law are:

 Quran

 Sunnat

 Ijma

 Qiyas

1. Quran

Muslim law is founded upon Al-Quran which is believed by the muslamans to have existed from
eternity, subsisting in very essence of God. The word Quran has been derived from the Arabic word
Quarra which means to read. The Quran is, Al-furqan i.e., one showing truth from falsehood and right
from wrong. The word Quran which is the ‘divine communication' and revelation to the prophet of
Islam is the first source of Muslim law.

Quran is a primary source of Muslim law, in point of time as well as in importance. The Islamic religion
and Islamic society owe its birth to the word of Quran. It is a paramount source of Muslim law in point
of importance because it contains the very word of God and it is foundation upon which the very
structure of Islam rests Quran regulates individual; social, secular, and spiritual life of Muslims.

It contains the very words of God as communicated to prophet Mohammad through angel Gabriel. It
was given to the world in fragmentary forms, extending over a period of 23 years. It originally had for
its objects repealing objectionable customs, such as, usury, unlimited polygamy and gambling, etc.,
and effecting social reforms, such as raising the legal status of women and equitable division of the
matters of inheritance and succession.

The Quran can be no way altered or changed, thus, even the courts of law have no authority to change
the apparent meaning of the verses as it does have an earthly origin. This view was held in Aga
Mohammad Jaffer v. koolsom Beebee (1895). But whenever the Quran was silent on any particular
matter, guidance was taken from the ‘sunnat'.
2. Sunnat

The word sunna means the trodden path & as this meaning shows it denotes some kind of practices
and precedent. It is belief of Muslim that revelations were two kinds- manifest (zahir) and internal
(batin). Manifest revelation is communication which is made by angel Gabriel under the direction of
god to Mohammad in the very words of god. Quran is composed of manifest revelations.

Internal revelation is opinions of the prophet which is delivered from time to time on questions that
happened to be raised before him. Sunna means the model behavior of the prophet. The narrations
of what the prophet said, did or tacitly allowed is called hadis or traditions. The traditions, however,
were not reduced to writing during lifetime of Mohammad. They have been preserved as traditions
handed down from generation to generation by authorized persons. The importance of hadith as an
important source of Muslim law has been laid down in the Quran itself.

Kinds Of Traditions: The Traditions Are of Two Kinds:

1. Sunnat
2. Ahadis

These two have been classified into the following three classes on the basis of mode or manner in
which it has actually originated:

 Sunnat-ul-fail i.e., Traditions about which prophet did himself.

 Sunnat-ul-qaul i.e., Traditions about which he enjoined by words.

 Sunnat –ul-tuqrir i.e., The things done in his presence without his disapproval.

The three class of Ahadisare:

 Alhadis -i-mutwair i.e., Traditions that are of public and universal propriety and are held as
absolutely authentic. In such hadis the chain is complete.

 Ahadis -i-mashhoor i.e., Traditions which known to a majority of people, do not possess the
character of universal propriety.

 Ahadis-i-wahid i.e., Traditions which depend on isolated individuals.

Thus two sources, namely, the Quran and Sunna may thus be said to form the fundamental roots of
Islamic law.

3. Ijma

It was equally binding on the people to act on a principle (not contrary to the Quran or hadis ) which
had been established by agreement among highly qualified legal scholars of any generations.

Ijma has been defined by Sir Abdul Rahim as agreement of the jurists among the followers of Prophet
Mohammad in a particular question of law. The validity of ijma, as containing a binding precedent, is
based upon a hadis of the prophet which says that god will not allow His people to agree on an error.
Ijma thus become a source of law. According to the classical theory, failing Quran and traditions, and
consensus of opinion amongst the companions of the prophet is recognized as the best guide of law.
Thus it is the third source of law, both in point of time and importance.
The authority of ijma as a source of Muslim law is also founded on Quranand Hadith. The law is
something living & changing. The aim of law is to fulfill the needs of the society. The principle of ijma
is based upon the text i.e. god will not allow His people to agree on an error and whatever Muslims
hold to be good is good before god. Muslims religion does not admit the possibility of further
revelation after the death of the prophet, the principle of ijma is the only authority for legislation in
the present Muslims system.

Kinds Of Ijma

Ijma is of three kinds:

 Ijma of the companions of the prophet – is the consensual opinion of companion which is
universally acceptable, throughout the Muslim world and is unrepealable.

 Ijma of jurists- is the consensual opinion of jurists which is believed that its best ijma after ijma
of companions. All the jurists should sit together and discussed the reasoning, and majority of
the jurists is of the view that unanimity to form ijma.

 Ijma of the people – is the opinion of Muslim population as a whole may have any importance
but in actual practice ijma of Muslim public had no value with regard to legal matters but in
matters related to religion, prayer and other observances have more value attached to it.

Ijma cannot be confined to any particular period or country. It is completed when the jurists, after due
deliberation, come to a finding .it cannot be questioned or challenged by any individual jurist. Ijma of
one age may be reversed or modified by the ijma of the same or subsequent age.
The ijma’, or consensus amongst Muslim jurists on a particular legal issue, constitutes the third source
of Islamic law. Muslim jurists provide many verses of the Qur'an that legitimize ijma' as a source of
legislation. Muhammad himself said:

o "My followers will never agree upon an error or what is wrong",

o "God's hand is with the entire community".

In history, it has been the most important factor in defining the meaning of the other sources and thus
in formulating the doctrine and practice of the Muslim community. This is so because ijma' represents
the unanimous agreement of Muslims on a regulation or law at any given time. There are various
views on ijma' among Muslims. Sunni jurists consider ijma' as a source, in matters of legislation, as
important as the Qur'an and Sunnah. Shiite jurists, however, consider ijma' as source of secondary
importance, and a source that is, unlike the Qur'an and Sunnah, not free from error. Ijma' was always
used to refer to agreement reached in the past, either remote or near. Amongst the Sunni jurists there
is diversity on who is eligible to participate in ijma' , as shown in the following table:

School of
Formation of ijma' Rationale
jurisprudence

jurists the jurists are experts on legal

Hanafi through public agreement of Islamic
matters

through agreement of the entire the people cannot agree on anything

Shafi'i
community and public at large erroneous

through agreement amongst the residents
Maliki
of Medina, the first Islamic capital
Islamic tradition says "Medina expels bad
people like the furnace expels impurities
from iron"

through agreement and practice of they were the most knowledgeable on

Hanbali
Muhammad's Companions religious matters and rightly guided

only the consensus of the ulama of the consensus is not genuinely binding in its
Usuli same period as the Prophet or Shia Imams own right, rather it is binding in as much as
is binding. it is a means of discovering the Sunnah.

In modern Muslim usage it is no longer associated with traditional authority and appears as
democratic institution and an instrument of reform.

4) Qiyas

This is a last primary source of Muslim law. Qiyas means reasoning by analogy from above 3 sources
i.e., Quran, Sunna and Ijma. In Qiyas rules are deduced by the exercise of reason.
Qiyas may be defined as a process of deduction by which the law of the text is applied to cases, which
though not covered by the languages are governed by reason of text. Thus, it should be noted that
Qiyas does not purport to create a new law, but merely to apply old established principles to new
circumstances.

Conditions of Validity of Qiyas:

 The original source from which Qiyas is deduced must be capable of being extended, that is it
should not be of any special nature.

 The original order of the Quran or hadith to which the process of Qiyas is applied should not
have been abrogated or repealed.

 The result of Qiyas should not be inconsistent with any other verse of Quran or any established
Sunna.

 Qiyas should be applied to ascertain a point of law and not to determine the meanings of
words used.

 The deduction must not be such as to involve a change in the law embodied in the text.

Thus, it can be said that Qiyas is weak source of law and rules analogically deduced do not rank so high
as authority, as those laid down by Quran and Hadith or by consensus of opinion (ijma). the reason is
that with respect to analogical deductions one cannot be certain that they are what the law giver
intended.

Secondary Sources

These sources are not basic sources of Muslim law but the supplementary sources of Muslim law. The
secondary sources of Muslim law are:

 Urf or Custom

 Judicial decision
  Legislation

 Equity, Justice, & Good conscience

Urf or Custom

Before the emergence of Islam in Arabia , customs were the basis of entire social life, religion, morality,
trade and commerce. Custom has not been recognized as a source of law in a Muslim law. However,
it cannot be denied that custom has always been given a place under Muslim law, if it is in conformity
with Muslim law. For example, prophet mohammad never repeal the whole of the pre-Islamic
customary law of Arabia. In various matter of Muslim law, custom play a significant role when the
matter is relating to their:

a. agricultural land;

b. testamentary succession among certain communities; and

c. charities other than wakf, because these matters have not been included in the section 2 of
Shariat Act,1937.

Custom influenced the growth and formation of shariah in several ways:

a. A number of texts, particularly traditions are based upon usages.

b. A part of the shariah based upon tacit or silent approval of the prophet comprises many of
Arab customs.

c. Imam malik says that the customary conduct of the citizen of medina was a sufficient ijma to
be relied upon in the absence of other texts.

Pre- Condition of Valid Custom

 Custom must be territorial.

 It must be existing from memorable time i.e., ancient.

 It must be continuous and certain and invariable.

 Custom should not oppose the public policies.

 Custom must not in contravention of Quran and Ijma.

Judicial Decision

These includes the decisions of privy council, the supreme court & high court of India, Judges explain
what law is. These decisions are regarded as precedents for future cases. Judicial decision is one of
the distinguish characteristic of English law. In India, the plan of Warren Hastings of 1772 made
provision that it was only judiciary which introduced new set rules in personal laws of Hindus and
Muslims.

There are number of judicial decisions which have given new dimension to Muslim law:

 In Maini Bibi v. Choudhry Vakil Ahmad, the privy council held that a widow possesses the
right to retain the property of her husband till her dower money was paid
  In Bai Tahira v. Ali Hussain, the Supreme Court gave a new line of approach to the law of
maintenance. The Supreme Court held that a woman will be entitled for maintenance under
section 125 of criminal procedure code even though she has received a lump-sum amount
under her customary law. A similar view also taken in Shah Bano's case.

It may be concluded therefore, that to some extent, the courts in India have tried to modify the rules
of Muslim personal law as applied in India. Unless overruled or negative by some legislative
enactment, these rules through the decisions, continue to be a source of Muslim law.

Justice, equity and good conscience

The doctrine of equity, justice & good conscience is regarded as one of the source of Muslim law. Abu
Hanifa, the founder of hanafi sect of Sunni, expounded the principle that rule of law based on analogy
could be set aside at the option of the judge on a liberal construction or juristic preference to meet
the requirements of a particular case. These principles of Muslim law are known as Istihsan or juristic
equity. Istihsan literally means approbation and may be translated as liberal construction or juristic
preference.

This term was used by great jurist Abu Hanifa to express the libert that he assumed of laying down the
law, which in his discretion, the special circumstances required, rather than law which analogy
indicated. Several areas of Muslim were modified so as to meet the changing conditions in India.

Legislation

In India, Muslims are also governed by the various legislation passed either by the parliament or by
state legislature. The following are the examples of legislation in India.

 The usurious loans act, 1918

 Religious toleration act

 Freedom of religion act, 1850

 The mussalman wakf validating act, 1930

 The shariat act, 1937

 Dissolution of Muslim marriage act, 1939

These acts have considerably affected, supplemented and modified the Muslim law. In 1986 an act i.e.
Muslim Woman (Protection of Rights on Divorce) Act, 1986 to provide separate law in respect of
divorced Muslim women was enacted by Indian parliament. According to the need of time and
circumstances Indian legislature enacted the law to fulfil the need.

Conclusion
These four sources namely Quran, Sunna, Ijma and Qiyas are the primary sources of law. Muslim law
mainly based on verses of Quran and practices of hadith. There is secondary source of Muslim law
which subsequent of it. Sects of Shias does not accept the Qiyas as source of Muslim law. It is due to
the contribution of all that an orderly and systematic theory of personal laws of Islam came into
existence which governs the Muslim community.
SCHOOLS OF ISLAMIC LAW
There are 4 schools of Islamic law namely:

1. The Hanifa School founded by Abu Hanifa.

2. The Maliki School founded by Malik ibn Anas.

3. The Hanbali School based on the teachings of Ahmed ibn Hanbal.

4. The Shafi School founded by Muhammad ibn Idris-ash Shafi.

Hanifa School of Thought

The Hanifa School is the most popular school of thought among the other four schools of thought. It
is majorly followed in North India, out of the four schools of thought Hanifa school of thought is much
more liberal towards the non muslims, the Hanifa school of thought gives greater importance to the
rational deduction.

The Maliki School of Thought

The Maliki school of thought is the second largest school of Islamic jurisprudence when it comes to
the percentage of its followers. This school is followed by at least 25% of the Muslim population. This
school of thought is predominantly different from other schools of thought when it comes to sources
to derive its sayings, however like other schools, the Maliki school of thought also Quran as the major
source of Islamic law. The only thing which differs this school from the other school of thoughts is that,
it also considers the practises followed the people of Medina as an important source of Islamic law as
Muhammad was born in Medina, lived there, formed a government there and died there Another
major difference between Malki and other schools is in the way people offer prayer, according to the
of Maliki school during prayer the hands should be kept at side but this is not same in the other
schools.

The Hanbali School of Thought

The Hanbali school of thought does not have great followership, still, it is an important school of
Islamic jurisprudence. It is considered to be the most orthodox schools of Islamic jurisprudence as it
wants to the strict implementation of the Quran and the sayings of Muhammad, however it is
considered to be one of the most liberal schools when it comes to trade or for commercial purposes.
The current set of individuals who believe in Wahabism is influenced by this school.

The Shafi school of Thought

The Shafi school of thought is mostly followed in Yemen, Sri Lanka, Indonesia, and Palestine. It
considers the Quran, Ijma, Sunnah, and Qiyas as the major source of Islamic law, however, it relies
less on qiyas while trying to construct its sayings. Apart from this it also considers the sayings of
Muhammad’s close companionship as a source of Islamic law.

SOURCES OF PARSI LAWS: Refer to this article

 Origin of Parisian Laws and Regulations in India:
“Fons et origo of Zoroastrianism”
Shyamantak Misra1, Prof. (Dr.) Prafulla Chandra Mishra2
1
Research Scholar, 2Dean, School of Law, KIIT, Bhubaneswar, Odisha, India

Abstract: The present article is elucidation of Parsi’s and their personal laws to make it a less confused
and more comprehensible study matter. The title “Fons et origo of Zoroastrianism” means the source
or the origin of Zoroastrianism. Those who believed that there’s only one Supreme God namely “Ahura
Mazda” are known as Zoroastrians. The researcher has discussed the status of Parsis from its inception
till date. This piece of work starts with a detailed study of their origin, simplifying their upbringing and
tracing their movements and further stressing on the enactment & application of their laws in India.
This piece of literature, emphasizing on the origin of the Zoroastrians further focuses on the legal
provisions relating to Parsi marriages, divorce and maintenance as well. In Toto it’s a compilation of
the most needed information and majorly required provisos relating to Parsis.

Introduction:

“In all religions we hear of the seven planetary genii: The Hindu tells of seven Rishi, The Parsi of seven
Ameskaspentas, The Mohammedan of seven Archangels & The Christian religion has its seven spirits
before the throne” Max Hoindel As per my style of upbringing i.e a “typical Hindu”, I was always
thought that “God is one” and “All religions are path to the same God” but as I grew to learn the
upbringing of every religion, I find differences in origin source, style and words but the essence of a
“common truth” remaining constant. Zoroastrianism being a uniquely different on drew my attention
first the Parsi people who may also be addressed as the “Tajiks of Afghanistan”, or Tajikistan and
Uzbekistan” or the “Tats of Eastern Caucasus (Republic of Azerbaijan)” were a major nomadic branch
of the Iranian population that entered Iran during the 10th century B.C. Varieties of terms were
derived from the Greek word “Persis (e.g. Persia) to refer to such people who occupied the major
portion of the Pars Province (or Fars), cultural capital of Iran The term “Persia” soon become an official
name for all of Iran for many years. Soon the western world became familiar to the term “Persian” to
refer the Inhabitants of Iran.

However, it is essential to know who a Parsi is? It is a fairly, well known that the Parsis came from
Persian Province of ‘Pers’or“Pars’ from which the word Parsi’, has been originally derived. The Parsis
are said to follow “Zoroastrian” religion. The words “Zoroastrian” & “Parsi” are used interchangeably.
Although their original faith does allow conversion amongst Parsis but Zoroastrian religion is a non-
convertible religion. In India it was held that: “conversion to Zoroastrian religion is against usage and
customs”.

Thus, Parsi means those Persons who are descendants of original Persian emigrants or Person whose
father is or was a Parsi and mother an alien but admitted to Zoroastrian faith or Zoroastrians from Iran
who are or have been residing in India. Rise of Persian Empire: However according to the “Black
Obelisk of Shalmaneser III and Merriam Webster online dictionary, the first Persian empire was
founded by Cyrus the great in 550 BC which was a small collection of semi nomadic tribes that raised
sheep’s, goats & chattel on the Iranian Plateau but by defeating the nearby kingdoms of Media, Lydia
& Babylon & so on and bringing them under a single rule, he soon established the world’s first super
power uniting: Mesopotamian civilization, Egypt’s Nile Valley Civilization and the Indus Valley
Civilization” known as Achaemenid Empire or Persian Empire. The above-mentioned empire stretches
from Europe’s Balkan Peninsula (in parts of Bulgaria, Romania, Ukraine) to the Indus River Valley in
Northeast India and South of Egypt. The Persian people were highly talented. Their works includes
architecture, weaving, painting calligraphy, metalworking, painting, sculpture, stone masonry,
literature, music etc. Their art is considered to be one of the richest art heritages in world history.
They were the people who developed the various means and routes of communication between
Africa, Asia and Europe, and the world’s first portal services as well. The Persian Empire witnessed the
dominance of Islamic religion after the Arab conquests and early Islamic conquests.

Thereafter Zoroastrianism prevailed as a religion in the first Persian empirs under the beliefs of
monotheistic faith of the founder of Zoroastrianism, Prophet Zoroaster (Zarathrustra in ancient
Persian) Paris are followers of Zoroastrianism in India. A group of these above-mentioned Zoroastrian
emigrated from Persia to prevent themselves from the Islamic religious persecution by the Muslim
majority after the early Muslim conquests. The symbol of Zoroastrians was fire purity symbols for
Persians were that of fire &water. They worshipped in “fire temples”. Each temple had an altar with
an eternal flame that burnt continuously or never extinguished. These were said to have come dulcetly
from “Ahura Mazda” (Zoroastrian God). The most unique feature of Zoroastrian religion being the “sky
burial” of the dead. The dead were exposed to the local vultures by putting them on flat, circular toped
towers called “dakhmas” or the towers of silence. Their corpses had to follow this procedure until the
bones were picked clean & bleached and further collected and placed in ossuaries (lime pits).

In the present time Zoroastrians bury their dead under concert slabs in Iran because of the declaration
that “Dakhmas” are illegal in Iran since 1970s. The last “dakhma” in operation is located near Mumbai,
India. The 19th century novel by the German philosopher Friedrich Nietzsche named “Thus spoke
Zarathustra” made the Zoroastrian founder famous amongst the Europeans. In the mentioned novel
Nietzsche follows Zaurastra in his travels.

In a similar way Zoroastrianism became known to the western culture through the works of the
famous British musician Freddie Mercury who was a Parsi descent and even his funeral was performed
by a Zoroastrian priest in London. Even the American novelist George R.R. Morlin creator of the fantasy
series “A song of ice and fire” played a vital role in spreading the concept of Zoroastrianism. Since this
novel was later adapted into HBO series “Game of Thrones, developed the legend of “AzorAhai” form
Zoroastrianism, where AzorAhai was a warrior demigod who defeated darkness with the help of a fire
God “R’hllor”. Here “R’hllor” s’ concept is said to be derived from the Zoroastrian fire God “Ahura
Mazda”.

After the doom of the invasion of Greece by Xerxes I IN 480 B.C the Persian Empire entered a period
of decline due to the depletion of the funds of the empire leading to a heavier taxation amongst the
Persian subjects. Finally, the Achaemenid dynasty was captured by the invading armies of Alexander
the great. Subsequently the rulers tried to restore the Persian empire to its original boundaries but
could not succeed to regain the boundaries, that it had achieved under Cyrus the Great. Thus, the
Indian Parsis belong to the Zoroastrian faith, whose foundation is the belief in one God and on the
basic tenets of good thoughts, good words and good deeds. The Indian Zoroastrians enjoy a non-
proselytizing faith. In Sir Denshaw M. Patel V. Sir Jamsetji Jiji Bhai4 it was stated that it is against the
usage and customs of the Paris of India. (i.e., conversion to the Zoroastrian religion).

Hindu ruler at the time of immigration of Parsis to Indian had a condition imposed on them that “they
would adopt Hindu customs of marriage. However later Parsis were greatly influenced by the customs
which were followed by Hindus.

Application of Parsi Laws

In modern times Parsi laws apply to:

 o Persons who have descended from the original Persian emigrants,
o who are or were born of Zoroastrian parents and profess Zoroastrian faith.
o Persons whose father is or was a Parsi and whose mother an alien but has been admitted to
Zoroastrian faith
o Zoroastrians those who are from Iran but who are either temporarily or permanently
residing in India.

Five conditions laid down by the Indian ruler for Parsis25 were: -

o “They should adopt the local language.

o They should translate their holy teats into the local language.
o Their women should wear saree and not their attire.
o They should follow the local rites of marriage.
o They should surrender their arms.” (Cabinetmaker 1991: 2-3)

Thus, on agreeing to the above five conditions the king allowed them to build their fire temples.

During the rule of East India Company in India, the British charters explicitly saved the customs and
usages of Hindus and Muslims in civil matters as they were deemed religious, unlike the Paris’s, Jews,
Americans etc. In exercise of the discretionary powers granted to the Judges, on the English principles
of Justice, Equity & Good conscience, the residuary communities of Jews, Parsis etc. were operated
under these English Laws.

Later the English Common laws were applied to the Parsis and their proper descendants subject to
certain exceptions relating to marriage and bigamy. In Sec. 50 & 56 of the Indian Succession Act, 1925
there are special rules for Parsi Intestacy. Arsis are also governed by the Parsi Marriage and Divorce
Act of 1936.

There’s no legal adoption been followed to amongst the Parsis and therefore if a Parsi couple adopts
a child, such child won’t be able to enjoy the automatic rights of inheritance. Being one of the most
progressive communities Parsis have always into such conflicts between liberal & orthodox
viewpoints. However, in my opinion the old traditions and cultures should be preserved since India is
a country of rich heritage but some sensitization efforts should be made to reform the current
personal laws and creating new codified laws in order to preserve such small communities like Parsis,
Christians etc. and their rich cultural heritage as well.

SOURCES OF CHRISTIANS LAWS

Introduction
In India, there are individuals of all religious backgrounds living together in harmony. The fact that
religious beliefs of the people cannot be ignored when it comes to governing them is self-evident;
however, the question is what should be considered law and what should not be, and which sources
should be considered when framing laws in order to govern people of various religious beliefs. Islam
and Hinduism are the two most important religions in India. Aside from that, there is a sizable number
of Sikhs, Buddhists, Jains, and Christians, among other religious groups. In order to create laws that
influence people’s lives, including personal problems such as divorce, marriage, inheritance, and other

25
Origin of Parisian Laws and Regulations in India: “Fons et origo of Zoroastrianism” Shyamantak Misra 1 &
Prafulla Chandra Mishra 2. 1Research Scholar, 2Dean, School of Law, KIIT, Bhubaneswar, Odisha, India.
family matters, it is required to analyse all of the sources that are considered before drafting
legislation.

Christian Law’s Origins and Sources

The four most important sources of Christian law are as follows:

o Scriptures i.e. the Holy Bible

o Traditions
o Reasons
o Experience

Scriptures
The Holy Bible is made up of volumes that were written over a period of 1000 years, and it is the most
ancient book on the planet. It includes letters, history, genres, and poetry, among other things. The
Bible is divided into two sections: the first is the Old Testament, and the second is the New Testament,
which contains the life of Jesus as well as the history of early Christian society. The Old Testament is
divided into two sections: the first is the Old Testament and the second is the New Testament. Some
Christians believe that every word of the Bible is accurate, but others believe that literature is the
most important source for establishing a moral basis.

Traditionally

Originating as the teachings of Jesus Christ to his disciples, and then the disciples reciting the teachings
to all of Christian society, traditions have now come to be identified with the methodologies that lead
the many Christian denominations. Orthodox Christians placed a high value on tradition in their lives.

Reasons
Tradition, for example, is highly valued by Christians, and it is sometimes used to gain a better
knowledge of the Bible. However, there may be instances in which the Bible and Traditions are in
conflict with reasons, and in those cases, the reasons would be ignored.

Experiences
Some people believe that personal experiences can be a valuable source of information for
understanding Christian theology. People’s thinking, their thoughts, and their five senses all contribute
to their whole experience. As a result of the belief that whatever happens to an individual in his or her
life is true, it was believed that Christianity should incorporate these experiences into its teachings as
well.

Conclusion
As a result of the large number of religious traditions in India, it is not possible to have a single source
for the personal laws of diverse communities, and as a result, different sources must be consulted
when drafting laws for people who adhere to different traditions. Despite the fact that my personal
opinion is a little different. When separate laws control persons living in the same country, this is
referred to as nonuniformity in law. When it comes to developing a nation, uniformity is essential, and
after examining the laws of numerous countries, we have discovered that our legislation is particularly
well adapted to the social conditions of India.

One of the primary goals of law is to command obedience, and there is no greater way to command
obedience than by requiring people to follow their own traditions, which they have been following for
centuries, as they have done for millennia.