While necessary for access to law, personal laws in India simultaneously present a challenge to fundamental rights, often leading to injustice. Especially in cases where the right of one minority is pitted against the other, further abrogating, for instance, women rights. Although all personal laws have merit to sustain themselves, they also infringe the fundamental rights of non-masculine figures. Kumar Aditya revisits the Constituent Assembly Debates and their conundrum over Uniform Civil Code and personal laws in India. Kumar follows from international conventions and treaties and presents a strong case for codifying personal laws in a way that’s voluntary and harmless to any religion.
By Kumar Aditya, a third-year BA-LLB (Hons.) student, School of Law, Bennet University.
Personal laws date to the pre-colonial era. In fact, hints of it were translated, reworked and anglicised by the British for domination. They usually govern inheritance, succession, marriage, divorce, etc., on religious lines. Since their authority comes from the religion itself, they are considered immutable. However, after independence, they became a point of contention during the Constituent Assembly Debates.
Second Law Commission report (1958-61) stated:
“A British legislature cannot make Hindu or Mohammedan religion, so neither they are morally competent to make Hindu or Mohammedan law.”
During the British regime, even the law of evidence and crimes were governed through Mohammedan law, which was ambiguous and unreasonable. For example, women were competent witnesses under Muslim Law, but their credibility was low. That is why the Britishers started codifying laws, which diluted the ambit of personal laws in India.
Even though Britishers initially refrained from interfering in personal laws, they eventually did. They formulated rules to bring uniformity to colonial rule-making.
Lord Macaulay, in his famous speech, stated:
“Our principle is simply this-uniformity where you can have it-diversity where you must have it- but in all cases certainty.”
However, even after seventy-four years of independence, India has not reformed personal laws to the extent that it can ensure equality and non-discrimination.
The main impediment is the non-inclusion of personal laws in the Constitution, as the same is often treated apart, sometimes forging and defeating fundamental rights.
Given the diversity in religion, personal laws do cause uncertainty and ambiguity. However, no matter how different they may be in statutory language, they are somewhat similar in discriminating or subjugating women.
Discriminatory practices against women in different personal laws violate the basic structure of the Constitution. Moreover, such discriminatory practices have been legitimised under the garb of religion.
Under Muslim laws, this discrimination arises from polygamous marriage and extra-judicial divorce. Under Hindu Laws, we see restitution of conjugal rights or pre-act polygamous marriages being prejudicial to women.
It is evident from these laws that women are treated as bounties of their husbands. Thus, the patriarchal setup of society further deteriorates the condition of women.
It is high time for us to extend the benefits of constitutional provisions to women in their true nature and spirit, often obstructed by personal laws.
This article posits that India should be governed by the Constitution and not by any discriminatory personal laws. Some natural rights of a human being are innate and inalienable despite one’s religion. Thus, we need to revisit the principle of non-interference in personal laws in India. These laws should be scrutinised reasonably from the standards of fundamental rights.
Jurisprudential Aspect of Personal Laws in India
To understand the broad applicability of fundamental rights over personal laws, we must look at Article 13(1) and the definition of ‘law’.
In this regard, Sir John Salmond had stated.
‘law is the body of principle which is applied by the state through enactment or recognition to administer justice’.
Hence, one could argue that the laws that were non-statutory but still enforced by the courts over time became ‘force of law’. Thus, even non-statutory personal laws can be considered as ‘law in force’. Hence they must conform to fundamental rights as well.
Eminent jurist, H.M. Seervai, opined that personal laws could be considered an ‘existing law’ or ‘law in force’ because of their applicability in the court proceedings. His assertion was based on Entry-5 (List-III).
Entry-5 gives power to respective governments to regulate matters of succession, inheritance, divorce, etc., covered by personal laws.
However, he also said that the personal laws, customs, and usage are inextricably mixed up, making it difficult to differentiate them according to need. Moreover, Article 44 and Directive Principles of State Policy (DPSP) cannot be ignored in totality.
When fundamental rights and DPSP are combined, the true nature and spirit of the Indian Constitution get visibility. Everyone acknowledges the importance of fundamental rights. However, DPSPs are considered at a lower pedestal than the former.
Jurists like B.N Rau and Granville Austin contended the revolutionary nature of DPSPs in Indian society.
Austin stated that DPSP under part-IV of the Constitution could bring revolutionary reforms. Thus, implementing the Uniform Civil Code will be a path-breaking shift from archaic religious regulations to prospective gender-neutral laws.
Several eminent personalities in the Indian legal system, like Justice A.P. Shah and Justice K.T. Thomas, clearly pointed out the need for UCC. However, they also posed that such reforms must not curtail individuals’ right to profess and propagate their religion enshrined under Art.25-28.
It is wrong to conclude that Indian courts ignored the applicability of common law in personal matters. In Re, Smt. Amina vs Unknown,the Supreme Court was asked to revisit its stand on personal laws and applicability of fundamental rights over them.
The SC puts customary laws under Art. 13 but not personal laws, which derive the force through customs of a particular community. Hence, in this case, the SC was recommended to determine the legislative intention behind Art.13.
In Pannalal Bansilal Pitti & Ors. ETC. Vs State of Andhra Pradesh & Anr, a single-judge bench recognised discrimination under different personal laws.
SC expressed the need for UCC but cautioned against its implementation in one go. It was decided that to bring UCC, we must first reform personal laws in India. However, this reformation must keep with the broad objectives of UCC.
In United Provinces vs Atiqua Begum,the court observed that the word ‘law in force’ under Section 292 of the Government of India Act includes personal law as well. So then, the question arises:
What’s restricting the Indian state to bring this change under Article 372(2) and entry-5 of List-III?
Although, to their credit, the Indian judiciary and legislative have made some progress in abolishing personal laws that are violative of the fundamental rights of women.
For instance, in Shah Bano Begum vs Mohd. Ahmad Khan, SC gave relief to Shah Bano by implementing Section 125 of the Criminal Procedure Code. This Section provided maintenance to her by superseding the Muslim personal law. This is just one example that shows that our judicial system is balancing and upholding fundamental rights.
“cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation.”
While the Law Commission’s Consultation Paper recognised the lapses of the personal laws, it also didn’t press for implementing UCC. Instead, it reasoned:
“By codification of different personal laws, one can arrive at certain universal principles that prioritise equity rather than imposition of a uniform code, which would discourage many from using the law altogether, given that matters of marriage and divorce can also be settled extra-judicially.”
Constituent Assembly Debates on Personal Laws in India
While framing the Constitution, the Constituent Assembly debated the state’s extent to legislate in personal laws.
This debate mainly focused on the draft of Article-35 (UCC).
Most members wanted to keep personal laws beyond the purview of fundamental rights.
It was even argued that the word ‘code’ does not include personal laws. One of the arguments was that a secular state like India must not indulge in controlling personal laws through codification.
Since personal laws are interwoven with religious affairs, many were against codification. They advocated that the personal laws must be left to the citizens themselves to practice.
After introducing the draft to Article 35, there was a sudden increase over UCC. A few favoured the implementation of UCC as they believed that territorial and cultural diversity would make the uniform implementation of personal laws harder. 
Because of such scepticisms, Art. 19 and Art. 35 got amended. A proviso was added, making UCC non-binding on the citizens and making Art.19 subject to personal laws.
One suggestion was to make an explicit provision in the Constitution.
This proviso would make the state obligated to seek approval from the religious community before including any substantial change in personal laws.However, this amendment ushered conflict over the state’s capacity on legislating personal laws. Hence it was rejected by the assembly.
Not all were against the idea of state legislating personal laws. On the contrary, several expressed their opinion in favour of formal legislation. For example, KM Munshi even said that personal affairs like inheritance, succession, divorce, etc., are not religious affairs. Hence the state should have control over personal laws to bring objectives of the Preamble into existence.
Dr B.R. Ambedkar’s speech regarding the state’s jurisdiction over personal laws shows that even during the finalisation of the Hindu Code Bill, several members accepted the concept of parliamentary sovereignty. Thus, while Ambedkar was in favour of UCC to some extent, he was simultaneously aware that India wasn’t ready. In this regard, he had said:
“No one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other community in India.”
Since the Constituent Assembly was divided at the time, UCC was included but under Art. 44 of the Directive Principle of State Policy in the present Constitution. Thus, making it voluntary.
Several members argued that religious notions governed earlier daily activities. When time passed, these religious notions became personal laws. But it is now high time to segregate personal law from religious affairs to make it apt for the present needs of society.
Gender Inequality and Personal Laws in India: India’s International Obligation Regarding Gender Equality
Customary international law makes the treaty rectified by a state enforceable in nature. Correspondingly, India has ratified the International Convention on Civil and Political Rights (1966) and the International Convention on the Elimination of All Forms of Discrimination Against Women (1979).
Thus, India is committed under these conventions to ensure equality and remove any discrimination based on race, religion, sex, etc. But, on the contrary, women are still subjugated in India because of religious dogmas that transpire through personal laws. And this is because the government and courts follow the principle of ‘non-interference’ in matters of religion.
But such policy violates the constitutional mandate and fundamental human rights, contradicting international conventions. Further, even in United Nations Committee Report, India accepted its policy of non-interference in personal laws of another religion. But it is vital to understand that such an approach does not always foster religious freedom. For example, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) commented on several reports submitted by India. One of these was:
“India has not taken any reformative measure regarding discriminatory nature of personal laws, which results in violation of basic human rights”.
While signing the treaty, India made a reservation under Article 5(a) and 16(1) of CEDAW. In addition, India mentioned that it would implement provisions of the treaty only if they do not violate India’s non-interference policy in personal laws.
However, non-interference negates the entire effect of India rectifying the treaty.
Another treaty of importance is International Covenant on Civil and Political Rights (ICCPR). This treaty explicitly talks about the prohibition on discrimination and equality before the law (Art. 27). Thus, personal laws that deprive women of marriage, divorce, succession, etc., breach international conventions and obligations.
Art. 51 and 253 of the Indian Constitution show that international treaties that don’t contradict municipal laws are not required to be passed by the parliament. However, any treaty violating municipal laws are needed to be passed by the parliament under Art. 253.
India follows a dualist approach to international treaties. This means that any international obligation cannot be imposed unless it has become a part of municipal laws through Art. 253.
The Supreme Court in Jolly George Varghese & Ors. Vs Bank of Cochinstated:
“positive commitment of the state parties ignites the legislative action at home but does not automatically make the alliance as an executive part of the corpus juris of India”.
Hence, in India, the concept of parliamentary sovereignty will prevail over international obligation. And any reservation made by the state while ratifying the treaty makes India not oblige to the extent of reservation.
The Indian state oscillates between two conflicting positions, trying to balance rights. But a non-interference policy must not inhibit justice.
Constitutional Provisions From Personal Law Perspective
Personal laws derive their power from religion, which comes under Art. 25-28 of the Constitution. That is why personal laws enjoy constitutional protection in two ways:
Firstly, the Constitution makes all pre-constitutional law void to the extent of non-conformity to the fundamental rights. Secondly, it also puts specific restrictions on the state from making laws that potentially infringes fundamental rights.
Hence the Constitution puts restrictions on the enjoyment of religious freedom under Art. 15(1). Religious freedom granted under Art. 25 and 26 are subject to other fundamental rights. The latter shall prevail over the former, preserving public order, morality and health in conflict.
Hence, logically, personal laws will also become limited by the interplay of other fundamental rights enshrined under Part-III of the Constitution.
List-III of the Constitution gives the parliament and respective state legislatures power to pass laws regarding inheritance, divorce, adoption, etc. Moreover, Art. 44 of DPSP directs the state to implement UCC and bring uniformity.
This makes sense since daily affairs like marriage, divorce, adoption, succession, etc., are more social than religious. Therefore, social and religious affairs need to be bifurcated to eradicate inequality, arbitrariness, and discrimination. The same can be done through the ‘test of essential religious practices’. Under this test, any practice not conforming to religion’s true nature and spirit must be regulated to bring uniformity. The test also adheres to social, political, and economic justice objectives without bias against anybody.
However, an impediment in bringing reform under personal law is interpreting the word ‘law’ under Art. 13(1). In Narasu Appa Malli vs State of Bombay, the SC decided that personal laws are not laws under the meaning of Art.13(1). That is why it is out of the purview of fundamental rights.
But at the same time, several judgements like C. Masilamani Mudalia vs Idol of Sri Swaminathaswami, Thirukoli and Githa Hariharan vs RBI tested personal laws based on fundamental rights to check their validity. It was even decided that ‘personal laws conferring inferior status to women are anathema to equality’.
Thus, it is required for us to revisit the fundamental rights and see whether personal laws are ‘laws’ under Art.13(1). It should be noted that Art.13 has an inclusive definition and the list made under it is not exhaustive in itself.
Comparative analysis between different Personal Laws in India
Polygamy has not been approved in any personal law except in Muslim Laws and some tribal communities. This is because polygamy violates the right of the first wife under Muslim law as her condition worsens after her husband’s subsequent marriages. Usually, the husband’s income is not enough to maintain all his wives equally. In the case of consummation, this affects the rearing of children.
Supreme Court in Khursheed Ahmad Khan vs State of UP & Ors, decided that polygamy is not an essential practice of Islam. Hence the state can bring reform under Art.25. Also, according to Holy Quran:
“Muslim husband can only marry to more than once if he can maintain justice with all of them”.
Muslim law recognises two types of divorces: judicial and extra-judicial. Extra-judicial divorces consist of Ila, Zihar and Talaq-i-tafweez. Under these divorces, a Muslim husband can unreasonably give irrevocable divorce to his wife. Examples of irrevocable divorces are:
- When a husband compares his wife with his mother or sister,
- When a husband takes an oath of not having sexual intercourse with his wife for four months.
All these cases result in the automatic pronouncement of irrevocable divorce after the completion of the mandatory period. Even the forms of divorce where wives have rights like talaq-i-tafweez are required to be delegated by the husband.
But in Hindu law, there is no recognition of extra-judicial divorce. This brings clarity and ensures justice under the judicial form of divorces through the court.
Thus, extra-judicial divorces under Muslim Personal law need to be abolished. In Shayara Bano vs UOI & Ors,the SC abolished one form of extra-judicial divorce, talaq-i-biddat.
Neither Muslim nor Christian personal laws recognise the adoption of a child. Thus, they can adopt a child under the Guardians and Wards Act, 1890.
Under this Act, they can adopt a child after getting the court’s permission. However, the adopted child has no right of inheritance and can separate themself from the adopter family after attaining 21 years of age.
In Mohammed Allahabad Khan vs Mohammed Ismail Khan, the court explicitly held that Muslim law does not recognise adoption as Hindu law. Thus, the right of inheritance of an adopted child under Muslims and Christians are severely restricted. The same goes against the set international standards concerning adoption.
But under Hindu law, adoption has been recognised. It treats the adopted child’s rights similar to that of a biological child. However, there are a few problems. For instance, a single male parent cannot adopt a girl child, but a single female parent can adopt a male child.
Under Muslim law, male heirs inherit double the property compared to female counterparts since after getting married, females receive Mehr, and their husbands are obliged to ‘maintain’ them.
But on the other hand, male members have to maintain their family, and the only source is their ancestral property. Also, if a husband dies of illness before consummation of marriage, then his widow has no right in her husband’s ancestral property.
But in Hindu law, everyone has the equal right in inheriting ancestral property. Moreover, the deceased’s widow has an equal right as that of other heirs in ancestral property.
However, this was not the situation earlier under Mitakshra School. Under the Mitakshra school, daughters had no right to inherit ancestral property. Thus, after the codification, Hindu personal law became more gender-neutral and adhered to the right to equality.
Inheritance right of an ‘illegitimate’ child
Under Hindu Personal law, a child born to an ‘illegitimate’ relationship has the right to their parents’ property. However, they are devoid of the right over ancestral property under section-16(3) under the Hindu Marriage Act.
However, this changed after the case Revansidappa vs Malikarjun. In this case, the SC held that the child has right over the parents’ self-acquired property and their ancestral property. Further, even children born out of the void or voidable marriages are considered ‘legitimate’ under section-16 of the HMA.It is to be noted that this judgment is currently not enforceable as it has been referred to a higher judge of the Supreme Court.
The inheritance right of a child born out of an ‘illegitimate’ relationship under Muslim Personal Law is relatively constrained. However, different schools follow different practices concerning inheritance rights. For instance, under the Hanafi School, a child born out of an ‘illegitimate’ relationship cannot inherit from their father, but they could from their mother. The child can even claim inheritance rights from the relatives of the mother.
Under Shia law, an ‘illegitimate’ child cannot claim any right of inheritance over the property belonging to both the parents, as the former is considered a son of ‘zina’. This means “son of nobody”.
Personal laws discriminate between persons of a different religion and make an unreasonable distinction based on gender.
We can often see that the Courts tested the validity of codified personal laws based on their non-conformity with Part-III of the Constitution. Like in T. Sareetha vs Venkata Subbaiah, the Andhra Pradesh High Court checked the validity of Section 9 of The Hindu Marriage Actwith Art.21.
Even though the Supreme Court subsequently overruled the judgement, it asserts that post-constitutional codification of customary personal law is subject to the constitutional mandate under Part-III.
So, the whole debate is centred towards making personal laws subject to fundamental rights. We should look at the sources of personal laws where customs were judicially recognised as a significant source of development in the field of customary personal laws. We need to question when customs and usages are considered as ‘law’ under Art.13(1), then why aren’t personal laws too.
The plain reading of Art. 25-28 also states that religious freedom is subject to fundamental rights. So then, how can personal laws be considered absolute and out of the purview of fundamental rights?
Even constitutional framers intended to regulate affairs like inheritance, succession, divorce, adoption, etc. This is evident from Entry-5 of List-III and Art.44 of DPSP.
Indeed, personal laws are not explicitly mentioned as ‘laws’ under Art.13(1). But after reading the provisions of the Constitution, it can be argued that such personal laws are implied. Hence they are subject to fundamental rights.
The government’s Act of not codifying other personal laws violates the equality clause under the Constitution. These personal laws are unreasonably discriminatory, especially against the woman. For example, the right to give extra-judicial divorce under Muslim personal laws reflects gender bias.
The distinction between social affairs and religious affairs are required so that secular reforms can be introduced. This is why the test of ‘essential religious practice’ is crucial. Moreover, it can potentially ensure gender justice and equality in terms of religion in diversified Indian society.
Introducing reforms uniformly in personal laws in India can be ground-breaking for a uniform civil code. First, however, the state needs to keep Ambedkar’s view expressed in the constituent assembly.
He mentioned that the enforcement of a uniform civil code should be voluntary. One interpretation of the same could be that people from different religions can decide amongst themselves. However, it’s hard to say if the same will work when anti-minority sentiments are constantly raging in the current polarised environment.
 Cited by Donald Eugene Smith, India as a secular state, pg.275 (1965).
 XIX Hansard’s Debates, 3rd series, p.531-533.
 K.S. Puttaswamy vs UOI, AIR 2017 SC 4161.
 Sangari, K. (1999). Gender Lines: Personal Laws, Uniform laws, Conversion. Social Scientist, 27(5/6), 187-61. doi:10.2307/3518142.
 In Re, Smt. Amina vs Unknown, AIR 1992 Bom 214.
 Hereinafter DPSP.
 State of Madras vs. Srimath Champakam Dorairajan, AIR 1951 Mad 120.
 Granville Austin, “The Indian Constitution Cornerstone of a Nation”, (Oxford,1966).
 Hereinafter UCC.
A. Subramani, “Panel of eminent jurists reopens debate on uniform civil code” The Times of India, Nov.2, 2014.
 AIR 1992 Bom 214.
 1996 AIR 1023.
 AIR 1941 FC 116.
 The Government of India Act, 1935, s.292.
 1985 SCR 844.
 The Code of Criminal Procedure, 1973, (Act 2 of 1974), s.125.
 Law Commission of India, 71st Report on Reform of Family Law, (August 2018).
 The Portuguese Civil Code, 1867.
 Naziruddin Ahmed’s speech (1948) 7 CAD at 541-543.
 See the speech of Poker Sahib Bahadur Id. at 544.
 See the speech of Hussain Imam Id. at 546.
 Id. at 540.
 Id. at 541.
 Id. at 552, 839.
 See the speech of KM Munshi Id. at 547.
 Hereinafter ICCPR.
 Hereinafter CEDAW.
 Rattan, Jyoti. “UNIFORM CIVIL CODE IN INDIA: A BINDING OBLIGATION UNDER INTERNATIONAL AND DOMESTIC LAW.” Journal of the Indian Law Institute, vol. 46, no. 4, 2004, pp. 577–587, www.jstor.org/stable/43951938. Accessed 13 July 2021.
 The International Convention on Civil and Political Right, 1966, Art.26.
 Gramophone Co. of India vs Birendra Bahadur Pandey, 1984 AIR 667.
 1980 AIR 470.
 Entry-5 List-III, The Constitution of India, 1949.
 Ameerunnissa v. Mehboob, AIR 1953 SC 91
Samanwaya Rautray, “Supreme Court bench to examine personal laws clashing with gender justice” The Economic Times, Jan. 08, 2020.
 AIR 1952 Bom 84.
 JT 1996 (3) 98.
 1996 8 SCC 525.
 Herklotz, T. (2017). Shayara Bano versus Union of India and Others. The Indian Supreme Court’s Ban on Triple Talaq and the Debate around Muslim Personal Law and Gender Justice. Law and Politics in Africa, Asia, and Latin America, 50(3), 300-311. Retrieved April 16, 2021, from http://www.jstor.org/stable/26429244.
 SLP (C) No.5097 of 2012.
 The Holy Quran, (Surah-An-Nisa [4:3]).
 Lydia Suzanne Thomas, “Breaking: Muslim Woman Has the Right to invoke Extra-Judicial Divorce, Rules Kerala High Court, Overrules About half-century Old Precedent” Live Law, Apr. 12, 2021.
 Sir Dinshaw Fardunji Mulla, “Mulla’s Principles of Mahomedan Law”, Lexis Nexis, Ch. XVI, 22nd Ed.
 Md. Khan vs. Shahamai, AIR 1972 J&K 8.
 Writ Petition (c) No.118 of 2016.
 (1886) ILR 8 AII 234.
 The Hindu Adoption and Maintenance Act, 1956 (Act 78 of 1956).
 The Hindu Succession Act, 1956, (Act 30 of 1956), s.10.
 Lata Mittal vs. UOI, JT 1987 (1) SC 339.
 The Hindu Marriage Act, 1955, (Act 25 of 1955), s.16(3).
 (2011) 11 SCC 1.
 Supra note 42 at 11.
 AIR 1983 AP 356. Contra. Saroj Rani vs. Sudarshan Kumar Chadha 1984 AIR 1562.
 Supra note 49 at 12, s.9.
 Editorial, “Personal laws cannot conflict with Constitution: Law Commission” Business Standard, Aug. 31, 2018.
 Ambedkar’s speech (1948) 7 CAD at 551.