NATURE OF FAMILY LAWS IN

INDIA
 A BRIEF SYNOPSIS
• Understanding the nomenclature
• Multiplicity of Religions in India
• Subject Matter of Family Laws
• Codification within the Realm of Religion
• Confusion, Constitution and Codification
• Narasu Appa Mali case
• The Call for the Uniform Civil Code (UCC)
• The Problems with UCC
• The Future of Family Laws
• To Conclude
THE BASIS OF FAMILY LAWS-
ASPECTS OF NOMENCLATURE

• ….in all suits regarding inheritance, marriage,

caste and other religious usages or institutions,
the law of the Koran with respect to
Mahomedans, and those of the Shaster with
respect to Gentoos shall be invariably be
adhered to.
-Warren Hastings
Aug. 15, 1772
THE BASIS OF FAMILY LAWS-
ASPECTS OF NOMENCLATURE

• Personal Laws…??
• Religious Laws…??
• Family Laws…??
MULTIPLICITY OF RELIGIONS
IN INDIA
• Hindus
• Muslims
• Christians
• Parsis
• Jews
Within the broad religion, there are several
denominations with their unique set of
practices.
 SUBJECT MATTER COVERED
IN FAMILY LAWS
• Marriage
• Divorce
• Succession
• Adoption
• Guardianship
• Maintenance
 CODIFICATION WITHIN THE
REALM OF RELIGION
State of Bombay v. Narasu Appa Mali
AIR 1952 Bom 84

Justice Gajendragadkar
Justice Chagla

• The unanimous verdict stated personal laws

are immune from constitutional scheme.
 CONFUSION, CONSTITUTION
AND CODIFICATION
Article 13
• 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.
• “law” includes any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage having… the
force of law;
• “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and not previously repealed….
 Justice Gajendragadkar
laws passed or made by a Legislature or
“laws in
●

other competent authority in the territory

of India before the commencement of this
force” Constitution and not previously repealed.

The foundational sources of both

“Person
●

the Hindu and the Mahommedan

laws are their respective
al Laws” scriptural texts.
 Therefore….

• Personal Law does not fall

within the expression ‘laws
in force’ in Article 13(1).
 Justice Chagla

Custom and ●
Custom or usage is deviation from
Personal personal law and not personal law itself.
The difference between custom and
Law have a
●

personal law is clear and unambiguous.

difference

But Law Article

●
17 (Abolition of
recognizes untouchability), Article 25
(Freedom of Religion) and Article
such 372 (Power to Adapt and modify
laws).
difference
 Therefore….
• The implication being that the drafters
did not intend to subject personal laws
to Constitutional provisions, because
otherwise it would be ‘unnecessary to
specifically provide for them.’
So, basically….
“Laws in force”

Statutory Personal Laws

Uncodified Scriptural
Laws
Meanwhile….there was a call for
the UNIFORM CIVIL CODE
(UCC)
• Article 44 Uniform civil
code for the citizens The
State shall endeavour to
secure for the citizens a
uniform civil code
throughout the territory
of India
PROBLEMS WITH THE UCC
Unifor
m

Civil

Code
 THE SITUATION AS OF TODAY

Parallel set of laws existing

P erso na l Se cul ar

Hindu Marriage Act, Parsi Marriage and Dissolution of Muslim Special Marriages Act, Guardians and Wards
Indian Succession Act
1955 Divorce Act, 1936 Marriages Act, 1939 1954 Act, 1890
 THE FUTURE OF FAMILY
LAWS
• With the emerging trends in society there
is felt a need to upgrade the family laws to
accommodate the newer forms of family.
• Like Homosexual Families, Surrogate
Motherhood, Single Parentage and the
like…
 TO CONCLUDE
• Let us therefore embark upon this journey
of identifying the soul of this subject and
delve upon the nuances and layers that
this discipline offers.
• All the best…