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The Tussle Between Personal Laws And Fundamental Rights

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 India.

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 conflict.

Shayara Bano v. Union of India, 2017,[1]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.[2] ,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 rights.

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.[3], 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 statute."

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 [4], 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 Sharia Act.

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 fundamental rights.

Of course, subsequently in the case of Daniel Latifi & Anr. v Union of India[5], 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.[6]. 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 Act), 1986.

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 fundamental rights.

In the case of Ahmedabad Women Action Group & Ors. v. Union of India[7], 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[8], 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.[9] 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 country."

In the case of John Vallamattom v. Union of India[10],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 [11] ,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 Constitution.

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 and 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 empowerment.

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)
  1. Shayara Bano v. Union of India, 2017,
  2. The State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84
  3. Krishna Singh v. Mathura Ahir & ors.
  4. Maharshi Avdhesh v. Union of India
  5. Daniel Latifi & Anr. v Union of India
  6. Mohd. Ahmed Khan v Shah Bano Begum & ors.
  7. Ahmedabad Women Action Group & Ors. v. Union of India
  8. P E Mathew v Union of India
  9. N. Adithyan v. Travancore Devaswom Board & Ors.
  10. John Vallamattom v. Union of India
  11. Shayara bano v Union of India

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