CONSTITUIONALITY OF PERSONAL LAWS IN INDIA- Shivanshi Gupta

1. BY- SHIVANSHI GUPTA

2. What are Personal Laws-
 Personal laws regulate Indian citizens’ marriage,
divorce, maintenance, inheritance and succession.
These laws are largely influenced by religious customs
of native communities.
 Every religion has its own set of codified personal laws
which regulates the aforementioned issues.

3. State of Bombay v NarasuAppaMali
 Hindu man convicted under Bombay Prevention of
Hindu Bigamous Marriages Act, 1946.
 Complainant argued on the following:
(i) Statute is violative of Article 25
(ii)The law violates Article 14 since the law prohibited
Hindu men from committing bigamy, but not
Muslim men.

4. Article 25
 Freedom of conscience and free profession, practice
and propagation of religion
(1)Subject to public order, morality and health and to
the other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely to
profess, practise and propagate religion
(2)(b)providing for social welfare and reform or the
throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus

5. Article 14
 Equality before law The State shall not deny to any
person equality before the law or the equal protection
of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex
or place of birth

6. Judgment of the Court- w.r.t A.25
• The court held that the present statute does not violate
A.25 of Hindus as-
• Marriage is a social institution where the State is
vitally interested.
• Monogamy is a very desirable and praiseworthy
institution
 If, the State of Bombay compels Hindus to become
monogamists, it is a measure of social reform, and if it
is a measure of social reform then the State is
empowered to legislate with regard to social reform
under Article 25(a)(b).

7. Judgment of the Court- w.r.t A.14
• The court held that the statute did not violated A.14
as-
 The two religions treat concept of marriage differently.
Hindus-sacrament; Muslims-contractual
 Thus, the fact that Act is applicable only to Hindus and
not to Muslims is not based only upon ground of
religion, but on reasonable grounds. As the
Educational development of the two communities-
One might be prepared to accept and work social
reform; another may not yet be prepared for it.

8. Whether Personal Law is included
in A.13-
 ARTICLE 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 law includes any
Ordinance, order, bye law, rule, regulation, notification, custom or usages
having in the territory of India the force of law; laws in force includes laws
passed or made by 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

9.  Whether ‘personal laws’ included in "all laws in force"
in Article 13(1)-
 It was held that the definition is inclusive and not an
exhaustive definition of “laws in force.”
 Definition of law includes ‘custom and usage’. Custom
and usage cannot be made by State as it is made by
people, thus A.13 does not include personal laws.

10.  It was held that Personal Law do not fall under the
definition of A.13
 Thus if any uncodified personal law violates
fundamental right, one cannot approach the court as
personal law are excluded from A.13 .

11. NEED OF REFORM-
 The judgment as laid down in State of Bombay v
NarasuAppaMali needs to be overruled-
 In the case where personal laws violate fundamental
right of people. They cannot approach the court to
seek redressal.
 In the garb of Customs and usages of the religion, the
violation of fundamental rights is not been considered
by this judgment.

12. THANK YOU !