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Development of Personal Laws in Colonial India

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[1].

PresentIndian society is theinheritor of threedifferent and distinct legal systems - Hindu, Muslim and British[2]. 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.

Research Methodology
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.

Research Objectives
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 Hastings.

Research Questions
  • 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 Warren Hastings?
  • How were Muslim Personal Law different from the Muslim Personal Law during the British times?
Research Style
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 for thiscase.

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.[3]

The real evolution of personal law in India was marked by the Charter of 1726.[4]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 ordained.”

Therefore, the Second Law Commission stated: “The Hindu and Mohammedan law derive their authority respectively from the Hindu and.Mohammedan religion.”[5]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.[6]

While assuming 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.

The 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.[7]

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.[8] 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.[9] Their policies in regard to civil laws gave birth to the system of communal personal laws.[10] 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.[11]

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.[12] 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.

They 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.[13] 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 that:
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.

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. 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.[14] 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.[15]

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.[16] The earliest trace of the acceptance of this policy is found in the Charter of George II, granted in 1753.

The Charter 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[17], 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 texts.[18]

In 1834, in Gourbullub v. J. Persaud,[19]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.[20]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.

The 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.[21]

In the important case of Rajah Deedar Hossein v. Renee Zuhooroon Nissa,[22]the Privy Council decided, on an appeal from the Sadar Diwani Adalat at Calcutta, that the Shias were entitledto their own ShiaLaw.

Other Sects
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 described that:
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.

Hindu 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 British rule.

Conclusion
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.

Gradually, 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.

Law then 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.

Bibliography
Works Cited:
  • 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-À-Vis Constitutional Validity Of Personal laws.
  • D.K. Srivastava, Religious Freedom in India
End-Notes:
  1. Mr. Ashok Wadje, “Judicial Review Of Personal Laws Vis-À-Vis Constitutionalvalidityof Personal Laws”, South Asian Journal of Multidisciplinary Studies (SAJMS) ISSN:2349-7858:Volume 2 Issue 3
  2. D.K. Srivastava, Religious Freedom in India, p. 213(1982).
  3. M.P. Jain, Outlines of Indian Legal History p. 5 (1981).
  4. 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.
  5. Cited in, Srivastava, Supra note 17 at p. 556.
  6. 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 SupremeCourt
  7. Tahir Mahmood, Muslim Personal Law: Role Of The State In The Indian Subcontinent2 (2d ed., All India Reporter 1983).
  8. Ibid
  9. Ibid
  10. 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.
  11. A.M. Bhattacharjee, Matrimonial Laws And The Constitution2 (Eastern Law House 1996).
  12. E.g: The British enacted a Contract Act in 1872 and a Transfer of Property Act in 1882.
  13. 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
  14. 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
  15. Mahmood, Personal Law In Crisis 3 (Metropolitan Book Co. New Delhi 1986).
  16. M.H. Morley, Administration of Justice in British India, p. 193(1858).
  17. Ind. Dec. (O.S.). I. 174.
  18. See Chapter XXVIII, M.P. Jain, India Legal and Constitutional History, 7th Edition.
  19. See Chapter XX, M.P. Jain, India Legal and Constitutional History, 7th Edition
  20. 30 IA 94, 111-112; Fyzee, Cases, 4.
  21. Must. Hayat-un-Nissa v. Sayyid Muhammad Ali Khan, 17 IA 73, 78.
  22. 2 MIA 441 (1841); Fyzee, Cases, 490.
Overview of Literature
  • 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

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