Personal Laws are set of laws which govern and regulate relations arising out of
certain factors connecting two persons or more than two persons. Those factors
are: Marriage, Blood, and Affinity. Moreover, personal law governs and regulates
subjects or areas of personal sphere such as: Marriage, Divorce, Maintenance,
Succession, Minority & Guardianship etc. Barring few, most of the personal laws
in India are based on scriptural laws which are divided and based on religions.
They provide norms of governing personal relations in the family set
up. With the passage of time, these norms were given statutory recognition with
several enactments in the area of Marriage, Divorce, Maintenance, Inheritance &
Succession, Guardianship and Custody matters.
PresentIndian society is
theinheritor of threedifferent and distinct legal systems - Hindu, Muslim and
British. Thepersonal laws of Hindus and Muslims find their source and
authority in their religious ancient texts. Since ancient time religion
regulated almost every aspect of human life both public and personal. Religion
was the guiding force behind all laws including personal matters as well as
crime, evidence, procedure, contract, trade and commerce.
The area of
applicability of laws has been reduced, and is only confined to such aspects of
life as marriage, dissolution of marriage, maintenance, minority, guardianship,
adoption, successionand inheritance.
It is through the history of India, which comprises of the growth, evolution and
development of the Indian legal system that we can understand the historical
process whereby the personal laws in India developed throughout the years.
Statement of Purpose:
The purpose of the law, be it sourced from a divine entity or be is a creation
of man, is to ease the quality of life and resolve conflicts. This paper aimed
at analysing the development of Hindu and Muslim Personal Law in the British
times in India.
Our primary aim is to delve into the concept of development of personal laws in
the English rule times. We analyse this my dividing the laws in Hindu and Muslim
laws and also analysing the changes that came after the arrival of Warren
- How did the personal laws work during the British India
- Was the ancient personal law policy neutral in its nature?
- How did the personal law frame work in India changed after coming of
- How were Muslim Personal Law different from the Muslim Personal Law
during the British times?
A combination of analytical and descriptive approach has been adopted by the
researcher. Case laws, precedents, etc. have been consulted wherever necessary.
It must be noted that only the criminal law domain in India has been considered
Personal Laws in British India
The Muslim rule came to an end with the disintegration of Mughal Empire. Towards
its end the Empire has already weakened to such an extent that the Governors of
different provinces had virtually usurped the whole power and became independent
functionaries. It is at this juncture that the Britishers came to India as
innocent traders, as they were, ultimately turned out to be the mercenaries and
became the forerunners of British rule in India.
The real evolution of
personal law in India was marked by the Charter of 1726.It introduced English
Law in India. It also established Mayor�s Courts at Madras, Bombay and Fort
William. With the introduction of English law in India, one problem was posed
regarding the extent and applicability to, and competency of the courts over,
the native inhabitants of India. The courts extended English Law to the native
inhabitants of India.
As regards British administrators in India, it is submitted
that, the concept of �personal law� is wrongly perceived by them, especially in
the Indian social milieu. They presumed that: �All personal laws are religiously
Therefore, the Second Law Commission stated: �The Hindu and
Mohammedan law derive their authority respectively from the Hindu and.Mohammedan
religion.�This may be because, the early British administrators perhaps
wrongly perceived that the native Indian comprised only of two broad categories,
Hindus and Muslims. And the religion based distinction of personal laws made by
the Muslim rulers might have influenced the British rulers in drawing the
presumption that �all personal laws are religiously ordained.�
Here, it is
submitted that, the important aspect of the Hindu as well as the Muslimlaw, which
implies that the religious texts are the general law and the customary practices
are personal laws, was not taken into consideration by the British rulers.
Though, both, the customs and the religious texts of the Hindus and Muslims were
taken into consideration in the administration of justice, but the British
administrators treated the customs and the texts differently.
The British initially came to India as trading merchants but with the passage of
time the British managed to establish their control over India. The British made
efforts to establish systematic and modern legal framework in India. One after
another various schemes for the administration of justice in different parts of
the country were framed and enforced. The judicial system set up in the major
part of India under the Mughals and in some places under local rulers, were
gradually replaced with courts constituted by the British.
powers and functions of judicial administration, the British faced the question
as to which law should in different kinds of cases be applicable by the
hierarchy of their courts. The legal system adhered to and followed by the
courts which had preceded them was based mainly on Hindu and Islamic religion.
Civil, criminal, commercial and procedural laws were all religion based.
dominant element in that legal system was the traditional law of Islam. The
courts in the regions ruled by the Mughals applied Islamic law relating to
crimes, evidence and court procedure. Ancient Indian laws and custom relating to
the same were applied by the courts in those places where the local rulers were
not Muslim. In civil matters religious and customary laws were invariably
adhered to in almost all parts of thecountry.
Contractual transactions, commercial affairs, family relations and transfer of
and succession to property were all regulated by religious laws and customs of
the parties approaching the court. The law or custom of one or the other
religion, thus, formed the rule of decision in every case. To the British the
system appeared complicated and anachronistic.
This they set out to
change. The religion based criminal laws of India were reformed piece meal,
eventually culminating in the enactment of the Penal Code and the Criminal
Procedure Code, both of a secular nature and divorced from religion. On the
similar lines were enacted the Evidence Act and the Civil Procedure Code. All
religious and customary laws in these areas were repealed and replaced with
new codes. Likewise the British could also have given to the country a civil
code. Their policies in regard to civil laws gave birth to the system of
communal personal laws. This system has survived in the entire subcontinent
till the present day.
A civil code, in the modern sense of the term would include laws relating to
contract, transfer of property, intestate and testamentary succession, marriage,
divorce, adoption and all other family relations. Since in pre-British period
all these matters were regulated by religious and customary laws, enforcement of
secular and uniform laws in these areas would be viewed by the natives as
displacement of religion.
The British were conscious of the possibility of
such repercussions and therefore refrained from enacting a comprehensive civil
code on the lines of the penal and procedural codes. These codes too had
replaced religion and custom, but only in areas which were not regarded by the
natives as vital to religion as civil matters. In the latter areas the British
came forward with piece meal legislation.In regard to other subjects which a
civil code should ordinarily include they adopted a cautious approach.
decided to leave religious and customary laws intact in those areas at the same
time they did not want to abjure them altogether. To begin with they just
overlook those areas without making a commitment as to where they stood in their
plans for legal reform and codification. They could not however maintain their
silence for long. Cases involving civil matters were being frequently received
in the civil courts which they had set up and they had to make known the laws
which the courts would apply in such cases.
With regard to the application of Hindu and Muhammadan laws in the higher courts
of the Presidency towns of Calcutta, Madras and Bombay, the Judicial Charter of
1753 had barred the jurisdiction of the Mayor�s courts which were courts of
English law to try cases between the Indians, unless asked to do so by the
parties to a particular case.
The Act of Settlement enacted in the year 1781
reconstituted the powers and jurisdiction of the Calcutta Supreme Court and also
gave recognition to laws and usages� of Hindus and Muslims. Later the rule
regarding the applicationof laws and usages of Hindus and Muslims became
applicable to the Supreme courts of Bombay and Madras.
The High Courts Act enacted by the British in 1861 replaced the Supreme courts
functioning in the three Presidency towns of Calcutta, Madras and Bombay. The
High Courts Act laid down that in exercise of its appellate jurisdiction, the
court would apply Hindu and Mohammadan laws and usages.
The lower court sought to have applied in a particular case. Thus, it was clear
the British did not interfere in the religious matters and granted autonomy to
the natives in respect of personal laws. Moreover the British as discussed above
secured the religious laws of the Indians.
Despite the colonial authorities distancing from the religious usages and
personal laws of the natives, history is witness to the fact that there were
interventions with the same. Generally speaking, different laws were applied by
village, district and provincial courts. This led to confusion and chaos.On the
other hand there were many Hindu reformist who were exerting pressure upon the
British to bring changes in some aspect of their religious law.
initiative for reform was taken by the Hindu society, at least a section of it;
the same is not the case with the Muslim Community. However, the British did not
intrude in matters of personal laws of the Muslims and the reforms the British
brought in the Muslim personal law was done with an intention to safeguard
them. The British enacted Indian Divorce Act, 1869 and Indian Christian
Marriage Act, 1872 for the Christians and the Parsi Marriage and Divorce Act,
1936 for the Parsis.
A number of other statuteswere also passed which affected
both, the Hindus and the Muslims as well and they were applied to all the people
irrespective of their religious affiliations. There was nothing restraining the
government in British India for making laws in the areas traditionally regulated
by personal laws. The British were hopeful that with the passage of time a
common civil code can beadopted.
Initial policy of neutrality
When the British established their hegemony over India, they more or less
continued the Muslim pattern of judicial administration. They followed a policy
of neutrality in the religious matters of the Hindus and the Muslims. Moreover,
being Christians they believed in the wall of separation between the state and
the church. Their belief in the �doctrine of duality� taught them �to give to
God the things that are God�s and to Caesar the things that are Caesar�s�.
Because the main object of the East India Company, namely trade, commerce and
exploitation on the natural resources of the country, their primary motive was
with law relating to trade and commerce. The Britishers thought that anything
could not be wiser than to assure by legislative Act, the Hindus and Muslims of
India that the private laws, which they reversely hold sacred and a violation of
which they would have thought the most grievous oppression, would not be
superseded by anew system of which they must have considered as imposed on them
a spirit of vigour and intolerance. The earliest trace of the acceptance of
this policy is found in the Charter of George II, granted in 1753.
Act of 1753 expressly exempted the Indians from the jurisdictions of Mayor'scourt and directed that such suits and disputes should be determined by
the Indians themselves, unless both parties submitted themselves to the
jurisdiction of the court.
Warren Hasting And Personal Laws in British India
Hindu Law and the Courts
In the beginning the courts found the principles of Hindu Law very uncertain.
They had to undergo an arduous, painstaking exercise to ascertain these
principles to decide cases before them. Even when the courts had the services of
the Pandits at their disposal, the did not always depend of the advice of their
own Pandits as to what the law on a particular point was, but the courts at
times adopted a wider consultative procedure to ascertain the law.
A few cases
may be mentioned here to illustrate the procedure adopted by the Supreme Courts
in this respect. In Doe Den Munnoolal v. Gopee Dutt
, a case decided by the
Calcutta Supreme Court in 1786, when the two Pandits attached to the Court
differed on the law point in dispute, the court asked its interpreter to take
the help of other Pandits. The matter when then referred to Justice Jones who
held a discussion with several Pandits and himself consulted original Sanskrit
In 1834, in Gourbullub v. J. Persaud,
Sir Francis Macnaghten, the
deciding judge, consulted 51 Pandits because there was difference of opinion
between the Court Pandits on a question of the Sadar Diwani Adalat on problems
of Hindu Law. The Privy Council developed and formulated a number of norms to be
observed by the Courts in the task of ascertaining the principles of Hindu Law.
The Privy Council handled the Hindu Law with some sensitivity. However, the
courts were face with a number of problems in their task of expounding and
applying the law. The amount of literature on Hindu Law is vast and often
conflicting as it represents different strata of civilization and social growth.
Thus the development of the Hindu Personal Law was a herculean task.
Muslim Law and the Courts
The judicial process in the sphere of Mohammedan law has been no less
significant than in the case of Hindu law. The Courts not only ascertained the
Muslim Law from the ancient sources to the best of their ability, but at times
also sought to introduce, though to a much lesser extent than in the ease of
Hindu law, notions derived from the English equity and law. But any such attempt
was always frowned upon by the orthodox opinion and the Muslim Jurists
criticized such judicial pronouncements.
The Privy Council, in dealing with the
Muslim Law, warned of the danger of relying upon ancient texts of the Mohammedan
law and even precept of the Prophet himself, of taking them literally, and
echoing from them new rules of law, �especially when such proposed rules do not
conduce to substantial justice.�
The Privy Council again warned of such danger
in Baker Ali Khan v. Anjuman Ara Begum.To illustrate the judicial progress
in the area of Muslim Law, reference may be made here to a few landmark cases. A
majority of Muslims in India belong to the Sunni class. The question thus arose
early in the day whether the Shias were entitled to their own law, or were they
to be governed by the doctrine of the Sunni School?
The rule in the Warren Hasting�s Plan of 1772, or the Cornwallis�s Plan of 1973,
did not clarify the position as the former used the expression Law of the Quran
, and the latter used the
expression �Mohammedan Law.� Till 1810, the courts in Bengal were practically
ignoring the Shia law and generally applying the Sunni Law to all Muslims.
Privy Council mentioned the prevailing situation in the early part of the 19th
century as follows:
The only course of succession recognized by the native
courts was that of the Sunnis, which had been the general law of the country
from the time when it first came under the Mohmmedan rule, and it is by no means
certain that the Sadar Court, or litigants before it, always pains regard to, or
understood their rights under the Shia Law.
In the important case of Rajah Deedar Hossein v. Renee Zuhooroon Nissa,the
Privy Council decided, on an appeal from the Sadar Diwani Adalat at Calcutta,
that the Shias were entitledto their own ShiaLaw.
It was believed erroneously at the time that the whole population of India could
be classified into two big classes, Hindus and Muslims. No one perhaps was fully
aware of the sectarian differences within each of these generic classes. In the
process of time, it came to be known that the Hindus and Muslims were divided
into several sects and sub-sects.
The Muslims have two major divisions: Shias
and Sunnis. The Hindus have become divided into various groups mainly on the
basis of differences of religion. Some of the conspicuous examples of this
mainly on the basis of differences of religion. Some of the conspicuous examples
of this division are Sikhs, Jains, Buddhists, etc.
Hindu Personal Law in British India
After the introduction of British pattern of administration of justice in India,
these traditional instrumentalities of legal change and growth ceased to
operate. New customs could not be recognised by the courts because of the theory
that a custom could be enforceable only if it was ancient. Mayne appropriately
under the British rule, Hindu law was in a state of arrested progress in which
no voices were heard unless they came from the tomb.
law, thus, lost its flexibility and became static. In these circumstances, for
the development of Hindu law, it became inevitable for it to adopt the changing
pattern of social life.
As the courts were bound by the authority of the dead Smritikaras and the Commentators and the theory of precedent; the only
instrumentality, for suitable change in Hindu law, remained with the
legislation. Strong pressure for reform was exerted by the reformist section of
Hindus on the British legislator.
The legal system of India in the early
nineteenth century was one of confusion and chaos. Generally speaking, different
laws were applied by village, district and provincial courts. In such
circumstances bringing certainty and uniformity in law became essential. These
and several other factors gave impetuous for enactment of certain aspects of
personal laws, especially of the Hindus. Sati Prevention Act, 1829, Hindu
Widows� Remarriage Act, 1856, Guardians and Wards Act, 1890, The Anand Marriage
Act, 1909, Hindu Disposition of Property Act, 1916, Hindu Inheritance (Removal
of Disabilities) Act, 1928, Hindu Gains of Learning Act, 1930, Hindu Women�s
Right to Property Act, 1937, Aryan Marriage Validation Act, 1937, Hindu Married
Women�s Right to Separate Residence and Maintenance Act, 1946, etc. are the
important enactments made in British India.
Muslim Personal Law in British India
Though the initiative for reform was taken by the Hindu society, at least a
section of it; the same is not the case with the Muslim Community. The Muslim
community in India did not approve any change or reform in their personal laws.
In effect thereof, the British legislators did not interfere in the personal
laws of the Muslims. The enactments made for the Muslims were with the objective
of restoring the orthodox doctrine of Muslim law and to undo the effect of
liberalizing judicial decisions. Mussalman Wakf (Validating) Act, 1913, Muslim
Personal Law (Shariat) Application Act, 1937, Dissolution of Muslim Marriage
Act, 1939, etc. were enacted during the British rule in India.
Apart from the
Hindus and Muslims, Indian Divorce Act, 1869, Indian Christian Marriage Act,
1872, was passed for the Christians and for the Parsis, the Parsi Marriage and
Divorce Act, 1936, was enacted. A number of other statutes were also passed
which affected both, the Hindus and the Muslims as well.
Those are � Caste
Disabilities Removal Act, 1850, India Penal Code, 1860, Indian Evidence Act,
1872, Indian Contract Act, 1872, Transfer of Property Act, 1882, Child Marriage
Restraint Act, 1929, which is subsequently repealed by re-enacting the
Prohibition of Child Marriage Act, 2006, Indian Succession Act, 1865, which was
subsequently amended in 1925, Special Marriage Act, 1872, which was subsequently
re- enacted in 1954, etc. These statutes applied alike to all the people
irrespective of their religious affiliations.
But the effect of some of the
provisions laid down by the statutes was to limit the operation of the Hindu and
Muslim laws in the matters covered by them. It is interesting to note that these
legislations touched all topics of personal laws which were formerly considered
sacrosanct and beyond the legislative pale.
All these enactments, especially
those relating to Hindu personal law, were in the form of piecemeal reforms. But
no attempt was made to codify the personal laws, except towards the close of the
The societies in the beginning were rudimentary and so were the laws of the
societies. Laws have grown with the growth of society. In the peculiar case of
the Indian society, in which ever since ancient time, the people held tight to
their religious roots and continued practicing laws, rituals and norms the way
it had been laid down in their religious scriptures. But the interesting feature
about the personal laws in India is that they never remained static.
with the progress of time, the personal laws were reformed, amended, given
shape, edited and omitted. This was a slow process which picked up pace with the
onset of the British rule in India. Conscious efforts to remove the defects in
personal laws were made by developing a coherent body of law. But the coherent
system of law was developed only after the process of codification.
became more territorial and resulted in the abridgment of the differences of law
between the resulted in the application of uniform law throughout
the country. The independence of the judiciary is fairly well assured by the
constitution itself and adequate precautions have been taken to help the
judiciary to discharge their functions effectively.
Law in Independent India is
now mostly codified and is uniform throughout the country and the objective is
now to update, reform and bring the law in conformity with the new social
conditions prevailing in the country. In conclusion, we may say that the Indian
legal system provides all the machinery for the expansion and preservation of
the personal law.
- M.P. Jain, India Legal and Constitutional History, 7th Edition
- M.P. Jain, Outlines of Indian Legal History.
- The Charter of 1726 by King George I on 24th September1726.
- Tahir Mahmood, Uniform Civil Code, Fictions andFacts.
- U.C. Sarkar, Epoch in Hindu Legal History, Visheshvaranand Vedic ResearchInstitute.
- Mr. Ashok Wadje, Judicial Review Of Personal Lawsvis-�-Vis
Constitutional Validity Of Personal laws.
- D.K. Srivastava, Religious Freedom in India
Overview of Literature
- Mr. Ashok Wadje, �Judicial Review Of Personal Laws Vis-�-Vis
Constitutionalvalidityof Personal Laws�, South Asian Journal of
Multidisciplinary Studies (SAJMS) ISSN:2349-7858:Volume 2 Issue 3
- D.K. Srivastava, Religious Freedom in India, p. 213(1982).
- M.P. Jain, Outlines of Indian Legal History p. 5 (1981).
- The Charter of 1726 issued to the East India Company by King George I on
24th September 1726. The Charter of 1726 had a limited objective. It was
intended for the benefit of British subjects who, because of the
impossibility or difficulty of complying with the local law, had been
permitted by the Mogul emperor of India to use their law within their
factory settlements. This objective was achieved by the establishment of
courts of competent jurisdiction at Calcutta, Bombay and Madras.
- Cited in, Srivastava, Supra note 17 at p. 556.
- The Charter of 1726 issued to East India Company by King George I on
September 24, 1726, established for the first time Mayor�s courts in the
three Presidency towns of Calcutta, Madras and Bombay. These courts derived
their authority from the king, and could therefore, be designated as Royal
Courts. Thereafter, the Supreme Court of judicature was established at
Calcutta, Madras and Bombay in 1774. Subsequently by way of Indian High
Courts Act, 1862, High Courts were established in Calcutta, Madras and
Bombay. These High Courts so established became successors of the
- Tahir Mahmood, Muslim Personal Law: Role Of The State In The Indian
Subcontinent2 (2d ed., All India Reporter 1983).
- The Britishers enacted common laws for the Indians but with regard to
personal laws the British did not interfere. When the Mayor�s courts were
established in the three Presidency towns the question arose as to the
courts competence to decide the religious matters of the natives. The
Governor and council of the company expressed the opinion that the Mayor�s
court had no jurisdiction to determine causes of religious nature or
disputes concerning castes among the natives, unless both parties submitted
themselves to the jurisdiction of the court. See SARKAR, supra note 4.
- A.M. Bhattacharjee, Matrimonial Laws And The Constitution2 (Eastern Law
- E.g: The British enacted a Contract Act in 1872 and a Transfer of
Property Act in 1882.
- Sec 17 of Act of Settlement provided: All matters arising out of
succession to lands, rents and goods and all matters of contract and
dealings between party and party shall be determined in case of Muhammadans
by the laws and usages of the Muhammadans and in the case of Gentoos (Hindu)
by the laws and usages of Gentoos
- The enactments made for the Muslims were with the objective of restoring
the orthodox doctrine of Muslim law and to undo the effect of liberalizing
judicial decisions. Mussalman Wakf (Validating Act, 1913, Muslim Personal
Law (Shariat) Application Act, 1937, Dissolution of Muslim Marriage Act,
1939, etc. were enacted during the British rule in India
- Mahmood, Personal Law In Crisis 3 (Metropolitan Book Co. New Delhi
- M.H. Morley, Administration of Justice in British India, p. 193(1858).
- Ind. Dec. (O.S.). I. 174.
- See Chapter XXVIII, M.P. Jain, India Legal and Constitutional History,
- See Chapter XX, M.P. Jain, India Legal and Constitutional History, 7th
- 30 IA 94, 111-112; Fyzee, Cases, 4.
- Must. Hayat-un-Nissa v. Sayyid Muhammad Ali Khan, 17 IA 73, 78.
- 2 MIA 441 (1841); Fyzee, Cases, 490.
- M.P. Jain, India Legal and Constitutional History, 7thEdition
- M.P. Jain, Outlines of Indian LegalHistory.
- The Charter of 1726 by King George I on 24th September1726