Any law that violates fundamental rights can be struck down by the Supreme
Court or any of the High Courts as far as the article 13 of the constitution is
concerned. This article clearly states the importance of the fundamental rights
over any other law in India. But the question that arises is that whether the
personal rights come under the purview of 'law' that has been talked about in
the article 13 of the constitution. It is very important to note the position of
supremacy of fundamental rights over the personal laws.
In particular, if personal laws are covered by Articles 13 of the Constitution,
they will be void to the extent that they are in contravention of Articles 14,
15 and 21 of the Constitution. Article 14 guarantees equality before law and
equal protection of laws. Article 15 prescribes that no law can discriminate
only on the grounds of sex, caste, etc. Article 21 is the fundamental right of
life and personal liberty.
So, having considered that, any personal law which discriminates against women
would by its very nature be unequal and discriminatory and be on the face of it
be in violation of Articles 14 and 15 of the Constitution. It would also be in
violation of the expanded meaning of right to life and personal liberty under
Article 21 of the Constitution of India and to that extent be void. Thus, any
personal law which is challenged, and if found discriminatory against women
should have been struck down by the Courts.
For example, women not being natural guardians, polygamy, absence of coparcenary
rights for women under Hindu undivided family, etc. should all have been
declared as void by now as they all discriminate against women. But surprisingly
that has not happened. Therefore, it becomes more important to note whether
personal laws hold more authority than fundamental rights in India.
Over the years, the Supreme Court has taken differing views while dealing with
personal laws. In a number of cases, it has held that personal laws of parties
are not susceptible to the fundamental rights mentioned in the Part III of the.
Therefore, they cannot be challenged as being in violation of fundamental rights
especially those guaranteed under Articles 14, 15 and 21 of the Constitution of
On the other hand, in a number of other cases the Supreme Court has tested
personal laws on the touchstone of fundamental rights and read down these laws
or interpreted them so as to make them consistent with fundamental rights. There
is however, no uniformity of decisions as to whether personal laws can be
challenged on the touchstone of fundamental rights.
Position Of Makers Of The Constitution And Courts
When we wish to know the position of Indian constitution on whether personal
laws can be amended if they are in violation of the fundamental rights, and that
whether the term 'law' and 'law in force' in the article 13 of the constitution
includes personal laws or not, in that scenario when the constitution itself
does not clarify such doubt, it becomes very important to note down what did the
framers of the constitution have in their mind regarding the aforementioned
Shayara Bano v. Union of India, 2017
,In the recent case of Shayara
Bano v. Union of India, the dispute between Part III of the Constitution and the
Religious Personal Laws was raised again. It was seen by many as a golden
opportunity for resolving the conflict between the religious Personal Laws and
Constitutional Rights. Although the Court held that triple talaq was
unconstitutional by examining it in accordance with Part III of the Constitution
and that the Narasu Appa Mali judgement needed reconsideration, the Supreme and
Fundamental dispute in law was left completely unresolved.
The State of Bombay v. Narasu Appa Mali.
 ,This judgment is a crucial
ruling that lays down the extent to which personal laws can be subject to
fundamental rights and what was the stand of framers of the constitution over
the matter. It also involves the question of whether personal laws can be
considered 'law' within the meaning of Article 13 of the Constitution.
The case was decided by a Bench of Chief Justice M C Chagla and Justice P B
Gajendragadkar, where the Bombay High Court held that 'personal law' is not
included in the expression 'laws in force' used in Article 13(1) of the
Constitution. While Chief Justice M C Chagla held that 'custom or usage' would
be included in the definition of 'laws in force' in Article 13(1) and could,
therefore, be tested for violation of fundamental rights, Justice Gajendragadkar
ruled that 'custom or usage' does not fall within the expression 'laws in force'
in Article 13(1).
For arriving at such a conclusion, Justice P B Gajendragadkar resorted to
article 17 of the Constitution which seeks to abolish the practice of
untouchability. The Judge opined that the practice of untouchability owed its
origins to custom and usage. If it was intended to include 'custom or usage' in
the definition of 'laws in force' in Article 13(3)(b), the custom of
untouchability would offend the non-discrimination guarantee under Article 15
and be void under Article 13(1).
He concluded that this would render Article 17 obsolete and it was thus not
intended to include 'custom or usage' within the ambit of 'laws in force' in
Article 13(1) read with Article 13(3)(b). In the judgement, Justice
Gajendragadkar observed that the framers of the constitution want to leave the
personal laws outside the ambit of part-III of the constitution.
Further deducting what the framers of constitution had in mind, Justice
Gajendragadkar said that they also did not want personal laws to be challenged
with fundamental rights, so they did not include it under the purview of the
term 'law in force' in the article 13 of the constitution. They must be aware
that personal laws needed to be reformed and there is a need of uniform civil
code, yet, they did not wish personal laws to be challenged with fundamental
The judgment of the state of Bombay v Narasu Appa Mali
is yet to be
overruled and holds the field as far as protection of personal laws from the
test of Constitutionality is concerned.
In the case of Krishna Singh v. Mathura Ahir & ors.
, where a two judge
Bench of the Supreme Court was considering whether a person shudra caste could
become a sanyasi. While holding that if the custom and usage permitted, he could
so become, the Court held that in the absence of such usage or custom he could
not be so ordained. Earlier, the High Court had held that any handicap suffered
by a shudra according to the personal law would be in violation of Articles 14
and 15 of the Constitution.
It would be violative of the equality clause as also it would be discrimination
on the basis of caste. Frowning upon this observation the Supreme Court stated,
"In our opinion, the learned judge failed to appreciate that part III of the
Constitution does not touch upon the personal laws of the parties.
In applying the personal laws of the parties, he (the High Court judge) could
not introduce his own concepts of modern times but should have enforced the law
as derived from recognised and authoritative sources of Hindu laws, i.e. Smritis
and commentaries referred to, as interpreted in the judgments of various High
Courts, except where such law is altered by any usage or custom or abrogated by
In this case, there is no discussion whatsoever as to why Part III of the
Constitution does not touch upon the personal laws of the parties. Personal laws
are as much laws as any other laws. Just because they may be derived from some
religion or the other, they do not cease to be laws. In fact, much of what
passes as personal law does not even have any basis in religion.
In yet another case of Maharshi Avdhesh v. Union of India
, where the
Petition was filed under Article 32 of the Constitution seeking enactment of the
Uniform Civil Code, for a declaration that Muslim Women (Protection of Rights on
Divorce) Act, 1986 was void as being in violation of Articles 14 and 15 of the
Constitution and for a direction against the respondents from enforcing the
The Petition was dismissed by a two-judge Bench of the Supreme Court with an
observation that these are issues for the legislature. Yet again, there is no
detailed reasoning provided in this order. But effectively therefore the Supreme
Court held that even codified personal law cannot be tested on the touchstone of
Of course, subsequently in the case of Daniel Latifi & Anr. v Union of India,
the Supreme Court did test the Muslim Women (Protection of Rights on Divorce)
Act, 1986 on the touchstone of fundamental rights. Here, Daniel Latifi was the
lawyer of Shah Bano, who had won a maintenance case against her ex-husband in
the Supreme Court in the case of Mohd. Ahmed Khan v Shah Bano Begum & ors.
But the supreme court verdict was not welcomed by the conservative segment of
Muslim society. So, in order to pacify the swelling sentiment of the community,
the then Rajiv Gandhi government enacted the Muslim Women (Protection on Divorce
The new Act overturned the judgment of the Supreme Court providing that a man
was required to pay maintenance to his divorced wife only during the period of
Iddat. Danial Latifi challenged the constitutional validity of the Personal law.
The Supreme Court, in 2001 during the Atal Bihari Vajpayee government, held that
the Muslim Women (Protection on Divorce Act), 1986 did not violate the
Constitution or the fundamental rights. The Supreme Court maintained that the
personal laws need not be tested on the touchstone of the provisions of the
In the case of Ahmedabad Women Action Group & Ors. v. Union of India
where different organisations had challenged through various Petitions a number
of discriminatory aspects of personal laws - both codified and uncodified across
religions. The Court, relying on the earlier decisions held that the matters
pertained to legislative action and include question of state policy, with which
court does not have any concern. Thus, the Court could not interfere. Again,in
this case no independent reasons were given as to why personal laws could not be
susceptible to Part-III of the Constitution.
In the case of P E Mathew v Union of India
, where the section 17 of
the Indian Divorce Act, 1869, a central and a pre-constitutional law was
challenged before the Kerela High court as being arbitrary, discretionary, and
violative of article 14 of the constitution.
But the high court adopted the ratio of Supreme Court in the previous judgements,
and held that the Christian personal law lays outside the scope of fundamental
rights, even though court did agree that the section 17 was unjustified and
discriminatory in nature. They left the matter to the legislature to amend
adopting the plea that the personal laws do not fall under the purview of
fundamental rights. The court ruled that personal laws are outside the scope of
article 13(1) as they are not laws as defined on article 13(3).
But there have also been judgements where the supreme court has taken a
different stance. In the case of N. Adithyan v. Travancore Devaswom Board &
Ors. the Supreme Court was concerned with the issue whether in respect of
certain temple in Kerala only Brahmins could be ordained as priests.
Longstanding usage and custom were cited in support of this claim.
The Court negatived the plea and observed, "Any custom or usage irrespective of
even any proof of their existence in pre constitutional days cannot be
countenanced as a source of law to claim any rights when it is found to violate
human rights, dignity, social equality and the specific mandate of the
Constitution and law made by Parliament. No usage which is found to be
pernicious and considered to be in derogation of the law of the land or opposed
to public policy or social decency can be accepted or upheld by courts in the
In the case of John Vallamattom v. Union of India
,a three Judge Bench
of the Supreme Court was considering the Constitutional validity of article 118
of the Indian Succession Act, 1925, a pre-Constitutional personal law applicable
essentially to Christians and Parsis.
In light of Ahmedabad Women's Action Group judgement and other Judgments, the
Supreme Court could have very easily dismissed the matter by simply holding that
this law, being a personal law and being a pre-Constitutional law was not 'law
in force' as per article 13 of the Constitution of India and thus not
susceptible to challenges on grounds of violation of fundamental rights. But
instead, the Court went into its Constitutional validity and struck it down as
being violative of article 14 of the Constitution.
Special Case Study
The practice of Triple Talak in the Muslim Society
Triple Talaq is a form of divorce that was practised in Islam, whereby a Muslim
man could legally divorce his wife by pronouncing talaq three times. The
pronouncement could be oral or written, or, in recent times, delivered by
electronic means such as telephone, SMS, email or social media. The man did not
need to cite any cause for the divorce and the wife need not have been present
at the time of pronouncement.
After a period of iddat, during which it was ascertained whether the wife is
pregnant, the divorce became irrevocable. In the recommended practice, a waiting
period was required before each pronouncement of talaq, during which
reconciliation was attempted. However, it had become common to make all three
pronouncements in one sitting.
Triple talaq is not mentioned in the holy Quran, which is the supreme book for
followers of Islam. Moreover, it is also largely disapproved by Muslim legal
scholars and many Islamic nations have barred the practice, including Pakistan
and Bangladesh. Triple talaq, in Islamic law, is based upon the belief that the
husband has the right to reject or dismiss his wife with good grounds.
Muslim family affairs in India are governed by the Muslim Personal Law (Shariat)
Application Act, 1937, which is often called the 'Muslim Personal Law'. It was
one of the first acts to be passed after the Government of India Act, 1935,
became operational, introducing provincial autonomy. It also replaced the
so-called 'Anglo-Mohammedan Law' previously operating for Muslims, and became
binding on all of India's Muslims.
In traditional Islamic jurisprudence, triple talaq is considered to be a
particularly disapproved, but legally valid form of divorce. Changing social
conditions around the world have led to increasing dissatisfaction with
traditional Islamic law of divorce since the early 20th century and various
reforms have been undertaken in different countries. Contrary to practices
adopted in most Muslim-majority countries, Muslim couples in India are not
required to register their marriage with civil authorities.
Muslim marriages in India are considered to be a private matter, unless the
couple decided to register their marriage under the Special Marriage Act of
1954. Owing to these historical factors, the checks that have been placed on the
husband's unilateral right of divorce by governments of other countries and the
prohibition of triple talaq were not implemented in India.
Case In The Supreme Court
In the case of Mohd. Ahmed Khan v Shah Bano Begum & ors.
10, where in
April 1978, a 62- year-old Muslim woman, Shah Bano, filed a petition in court
demanding maintenance from her divorced husband Mohammed Ahmed Khan, a renowned
lawyer in Indore, Madhya Pradesh. The husband had granted her irrevocable talaq
later in November. The two were married in 1932 and had five children - three
sons and two daughters.
Shah Bano's husband had asked her to move to a separate residence three years
before, after a prolonged period of her living with Khan and his second wife.
Shah Bano went to court and filed a claim for maintenance for herself and her
five children under Section 123 of the Code of Criminal Procedure, 1973.
However, the husband contested the claim on the grounds that the Muslim Personal
Law in India required the husband to only provide maintenance for the iddat
period after divorce. The argument was supported by the All India Muslim
Personal Law Board which contended that courts cannot take the liberty of
interfering in those matters that are laid out under Muslim Personal Law, adding
it would violate The Muslim Personal Law (Shariat) Application Act, 1937.
The board said that according to the Act, the courts were to give decisions on
matters of divorce, maintenance and other family issues based on Shariat. After
detailed arguments, the decision was passed by the Supreme Court of India in
1985. On the question whether CrPC, 1973, which applies to all Indian citizens
regardless of their religion, could apply in this case. Then Chief Justice of
India Y.V. Chandrachud upheld the decision of the High Court that gave orders
for maintenance to Shah Bano under CrPC.
For its part, the apex court increased the maintenance sum. The case was
considered a milestone as it was a step ahead of the general practice of
deciding cases on the basis of interpretation of personal law and also dwelt on
the need to implement the Uniform Civil Code. While the Supreme Court upheld the
right to alimony in the case, the judgment set off a political battle as well as
a controversy about the extent to which courts can interfere in Muslim personal
law. The case laid the ground for Muslim women's fight for equal rights in
matters of marriage and divorce in regular courts.
The most recent example being the Shayara bano v Union of India
,case in which the Supreme Court invalidated the practice of instant triple
talaq. Here, Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he
divorced her through instantaneous triple talaq. She filed a Writ Petition in
the Supreme Court asking it to hold three practices - talaq-e-biddat, polygamy,
nikah-halala - unconstitutional as they violate Articles 14, 15, 21, 25 of the
On 16th February 2017, the Court asked Shayara Bano, the Union of India, various
women' rights bodies, and the All India Muslim Personal Law Board to give
written submissions on the issue of Talaq-E- Bidat, Nikah-Halala
polygamy. The Union of India and the women rights organizations like Bebaak
Collective and Bhartiya Muslim Mahila Andolan (BMMA) supported Shayara Bano's
plea that these practices are unconstitutional. The AIMPLB has argued that
uncodified Muslim personal law is not subject to constitutional judicial review
and that these are essential practices of the Islamic religion and protected
under Article 25 of the Constitution.
After accepting Shayara Bano's petition, the Apex Court formed a five-judge
constitutional bench on 30th March 2017. The first hearing was on 11th May 2017.
On 22nd August 2017, the five-Judge bench pronounced its decision in the Triple
Talaq Case, declaring that the practise was unconstitutional by a 3:2 majority.
In the majority views of Justices R.F Nariman and U.U Lalit, the bench held that
the practice of Triple talaq is arbitrary in nature by observing that, 'It is
clear that this form of Talaq is manifestly arbitrary in the sense that the
marital tie can be broken capriciously and whimsically by a Muslim man without
any attempt at reconciliation so as to save it. This form of Talaq must,
therefore, be held to be violative of the fundamental right contained under
Article 14 of the Constitution of India.
In our opinion, therefore, the 1937 Act (Muslim Personal Law Shariat Application
Act), insofar as it seeks to recognize and enforce Triple Talaq, is within the
meaning of the expression "laws in force" in Article 13(1) and must be struck
down as being void to the extent that it recognizes and enforces Triple Talaq
Since we have declared Section 2 of the 1937 Act to be void to the extent
indicated above on the narrower ground of it being manifestly arbitrary, we do
not find the need to go into the ground of discrimination in these cases, as was
argued by the learned Attorney General and those supporting him.'
Taking into consideration the arguments of various religious groups and
aggrieved petitioners, the Hon'ble Supreme Court with the majority ration of 3:2
set aside the practice of Triple Talaq or Talaq-e-Biddat by holding it
unconstitutional and arbitrary in nature. The Hon'ble Court further directed the
Government of Union of India to consider the views taken by the court in the
Judgment and lay down a proper legislature to regulate the practice of divorce
in Muslim community.
The Muslim Women (Protection of Rights on Marriage) Bill, 2017
Taking into consideration the views of the Hon'ble Supreme Court in the Judgment
of Shayara bano v Union of India12, the Hon'ble Law Minister Shri Ravi Shankar
Prasad took an initiative to present the Triple Talaq Bill before the Lower
House, Lok Sabha, which was passed by majority by the Lower house on December
28, 2017. The Statement of Objects and Reasons of the Bill notes that the
judgment has not worked as a deterrent in bringing down the number of instances
of triple talaq.
It explains, "It is, therefore, felt that there is a need for State action to
give effect to the order of the Supreme Court and to redress the grievances of
victims of illegal divorce. In order to prevent the continued harassment being
meted out to the hapless married Muslim women due to talaq-e-biddat, urgent
suitable legislation is necessary to give some relief to them.
The Union Government says that the legislation would help in ensuring the larger
Constitutional goals of gender justice and gender equality of married Muslim
women and help sub-serve their fundamental rights of non-discrimination and
Since very beginning, after the enactment of the constitution, the conflict
between personal laws and fundamental rights could be observed. The problem
arises at the purview of the term 'law' and 'law in force' used in the article
13 of the constitution. If personal laws come under the ambit of these terms in
article 13, then the fundamental rights shall have superiority over these
personal laws, but since ambit has not been made clear in the constitution, the
courts had resorted to what the framers of the constitution had in their mind
regarding the same.
It could be observed that the courts in various decisions had avoided to take
decisions on such matters as these are related to religion and are sensitive
issues. Nevertheless, there have been instances where courts have had set aside
the personal laws, where there was a strict injustice being done. One such case
is of triple talak in India, which was held unconstitutional by the supreme
court in India, looking at the kind of injustice it did to the Muslim women.
In a democratic nation, where the basic fundamental rights shall be of utmost
importance, it is necessary to give more importance to such rights than some
laws based on the ancient beliefs and practices. It shall also be important in
the sense that what is written in the supreme court shall be of more value than
what is mentioned the personal laws, because constitution is the supreme
legislation of the country.
- V N Shukla's Constitution of India (13th edn, Eastern Book Company 2017)
- Shayara Bano v. Union of India, 2017,
- The State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84
- Krishna Singh v. Mathura Ahir & ors.
- Maharshi Avdhesh v. Union of India
- Daniel Latifi & Anr. v Union of India
- Mohd. Ahmed Khan v Shah Bano Begum & ors.
- Ahmedabad Women Action Group & Ors. v. Union of India
- P E Mathew v Union of India
- N. Adithyan v. Travancore Devaswom Board & Ors.
- John Vallamattom v. Union of India
- Shayara bano v Union of India
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