Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: While deciding the instant application seeking regular bail for offences under the provisions of Prohibition of Child Marriage Act, 2006* and Protection of Children from Sexual Offences Act, 2012 (POCSO), the Bench of Rajendra Badamikar, J., held that POCSO Act is a special legislation, and it overrides any personal law.

Facts and Contentions: The accused/petitioner is the husband of a 17-year-old Muslim girl, who came to know about her pregnancy when she visited a Primary Health Centre for a check-up. A complaint was thus lodged against the accused/petitioner by the Sub-Inspector of R.K. Puram Police Station, based on information furnished by the Medical Officer who examined the victim-wife. It was alleged that the victim’s marriage to the petitioner was solemnized when she was still a minor. Sexual intercourse with her husband resulted in her pregnancy.

The complaint was filed under Sections 9 and 10 of the Prohibition of Child Marriage Act and Sections 4 and 6 of the POCSO Act. The petitioner’s application for bail was rejected by the Sessions Judge, therefore, he approached the High Court in the instant petition.

The petitioner’s counsel argued that under Muslim Law, the consideration for marriage is puberty and the normal age of puberty is treated as 15 years; hence, it was contended that no offence was committed under the provisions of POCSO Act and Prohibition of Child Marriage Act, 2006.

  • Decision of the Court: Perusing the facts and contentions of the case, the Court held as follows: The Court held that POCSO, being a special law, will override any personal law and the age of consent for sexual activity is 18 years.

  • However, the Court noted that the victim-wife is 17 years old and capable of understanding things. Even though she asserted that the marriage with the accused/petitioner was solemnized without her consent, there is no evidence showing that the victim raised any objections. Hence, there was prima-facie evidence of the victim being a consenting party and that there is no dispute regarding the marriage between the accused/petitioner and the victim-wife. The Court also took into consideration that the victim now being pregnant required care and the petitioner if enlarged on bail could take care of herUnder these circumstances the Court granted bail with strict conditions.

[Aleem Pasha v. State of Karnataka, 2022 SCC OnLine Kar 1588, decided on 12-10-2022]


Advocates who appeared in this case :

Basavanna M.D., Advocate, for the Petitioner;

K. Nageshwarappa, HCGP, for the Respondent.


*Editorial Note: The text of the High Court’s Judgment mentions “Child Marriage Restraint Act”, however, the Statute involved in the petition is Prohibition of Child Marriage Act, 2006. The Child Marriage Restraint Act, 1929 has been repealed.

**Sucheta Sarkar, Editorial Assistant has prepared this brief.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: While adjudicating a divorce case, the Division Bench of A. Muhamed Mustaque and Sophy Thomas*, JJ., raised concern about the rise of live-in-relationships just to say goodbye when they fall apart. Expressing concern about the alarming increase of divorce cases in the State, the Court remarked,

“The wails and screams coming out of disturbed and destroyed families are liable to shake the conscience of the society as a whole. When warring couples, deserted children, and desperate divorcees occupy the majority of our population, no doubt it will adversely affect the tranquillity of our social life, and our society will have a stunted growth.”

A husband, who lost his case for divorce on the ground of matrimonial cruelties had approached the Court to assail the Family Court's order. The husband appellant contended that though they were leading a very cordial and smooth marital relationship till 2018, thereafter the respondent developed some behavioural abnormalities, and she often picked up quarrels with him for no reason. He further alleged that because of the indifferent, abusive, and violent behavior of his wife (the respondent herein), he became mentally stressed and physically ill.

Mental Cruelty

The Court, on analysing the facts and evidence, found that the appellant failed to prove the allegations of cruelty against the respondent so as to dissolve their marriage for the following reasons:

  • As a responsible husband, the appellant was bound to know the reason for such behavioural changes in his wife, whether it be physical, mental, or psychological. He has no case that he ever took his wife to a psychologist or psychiatrist to know the reason for her behavioural abnormalities.

  • The appellant did not disclose/admit that the couple had a love marriage, though his own mother and his own close relative admitted that fact before Court.

  • According to the respondent, her marital life with the appellant was so smooth till 2018 and thereafter, he was trying to avoid her and her children.

  • The mother and close relatives of the appellant categorically deposed that in the year 2017, the appellant developed some illicit intimacy with a lady named Anjali, and thereafter, he wanted to avoid his wife, children, and even his own mother.

  • In such a scenario, the normal human reactions or responses from a wife, on knowing that her husband was having illicit connection with another lady, could not be termed as behavioural abnormality or cruelty from the part of the wife, so as to dissolve their marriage.

  • The appellant was not hesitant, even to question the chastity of his own aged mother, as she was supporting the respondent.

In the light of the aforesaid, the Court opined that the appellant wanted to avoid the respondent and her children to continue his unholy alliance with another woman. The Court noted,

“When the wife had reasonable grounds to suspect the chastity or fidelity of her husband, and if she questions him, or expresses her deep pain and sorrow before him, it cannot be termed as a behavioural abnormality, as it is the natural human conduct of a normal wife.”

Hence, rejecting the appellant's case on the ground of mental cruelty, the Court said,

Courts cannot come to the aid of an erring person to legalise his activities, which are per se illegal. If the husband having unholy alliance with another woman wants to avoid his lawfully wedded wife and his three little children, he cannot seek the assistance of a court of law to get his present relationship legalised by dissolving his lawful marriage, without any valid reasons for the same.”

Non-Cohabitation as a Ground for Divorce

Similarly, considering the respondent's willingness to save the marriage and resume her marital life with her husband, the Court rejected the appellant's case on the ground of non-co-habitation for a long time. The Court relied on Uthara v. Dr.Sivapriyan, 2022 SCC OnLine Ker 921, to hold that non-co-habitation however long it may be, if it was due to deliberate avoidance or due to pendency of cases filed by one party, the other party cannot be found fault with, when that party is still ready to continue his/her matrimonial life, and no grounds recognized by law are established against that party to break their nuptial tie.

Verdict

Emphasizing on the present trend to break the nuptial tie on flimsy or selfish reasons, or for extra-marital relationships, even unmindful of their children, the Court said,

“Now-a-days, the younger generation thinks that marriage is an evil that could be avoided to enjoy free life without any liabilities or obligations. They would expand the word ‘WIFE' as ‘Worry Invited For Ever' substituting the old concept of ‘Wise Investment For Ever'.”

The Court noted that law and religion consider marriage as an institution by itself and parties to the marriage are not permitted to walk away from that relationship unilaterally, unless and until they satisfy the legal requirements to dissolve their marriage through a court of law or in accordance with the personal law which govern them.

Hence, considering that the respondent still wants to live with her husband and live together along with their children, the Court directed that if the appellant is ready to come back to his wife and children, they are ready to accept him, it could not be said that the chances of an amicable reunion are foreclosed forever.

Resultantly, the Court upheld the finding of the Family Court that the appellant is not entitled to a decree of divorce on the ground of matrimonial cruelties.

[Libin Varghese v. Rajani Anna Mathew, Mat. Appeal No. 456 of 2020, decided on 24-08-2022]

*Judgment by: Justice Sophy Thomas


Advocates who appeared in this case :

Mathew Kuriakose, J. Krishnakumar (Adoor), and Moni George, Advocates, Counsels for the Appellant;

B.J. John Prakash, P. Pramel, Nimmy Shaji, and Balasubramaniam R., Advocates, Counsels for the Respondent.


*Kamini Sharma, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: In a very important ruling, the bench of Dinesh Maheshwari and Krishna Murari*, JJ has held that the mother, who is the only natural/legal guardian of the child after the death of the biological father can decide the surname of the child. She can even give him the surname of her second husband whom she remarries after the death of her first husband and can she give the child for adoption to her husband.

The Court was deciding the dispute between the mother and the parents of the deceased father of the child (grandparents) over the surname given to the child.

The biological parents of the child got married on 18.12.2003. A Child was born out of the wedlock on 27.03.2006. However, unfortunately, the father died on 14.06.2006, when the child in the case was merely 2 ½ months old. After a little over an year, the mother married a Wing Commander in IAF. Out of this wedlock, the couple had a child and they live together. Presently, the child is still a minor aged 16 years and 4 months.

The grandparents sought to become the legal guardian of the child when he was 2 years old. The Trial Court, however, held that it would not be appropriate to separate the child from the love and affection of his mother. The grandparents did get visitations rights. This order was challenged before the High Court of Andhra Pradesh.

The mother, in the meantime, changed the child’s surname from Konda (biological father’s surname) to Akella (step father’s surname).

The High Court directed the mother to restore the surname and father’s surname of the child within a period of three months from the date of receipt of a copy of the order. It is interesting to note that both the Trial Court and the High Court had concurred that the mother is the natural guardian of the child after the demise of the father.

The Supreme Court, strongly disagreed with the High Court’s ruling and held that after the demise of her first husband, being the only natural guardian of the child, it was unfathomable how the mother can be lawfully restrained from including the child in her new family and deciding the surname of the child.

The Court also explained the importance of a surname and observed that a surname refers to the name a person shares with other members of that person’s family, distinguished from that person’s given name or names; a family name. Surname is not only indicative of lineage and should not be understood just in context of history, culture and lineage but more importantly the role it plays is with regard to the social reality along with a sense of being for children in their particular  environment. Homogeneity of surname emerges as a mode to create, sustain and display ‘family’.

Hence, direction of the High Court to include the name of the Appellant’s husband as step-father in documents is almost cruel and mindless of how it would impact the mental health and self-esteem of the child.

“A name is important as a child derives his identity from it and a difference in name from his family would act as a constant reminder of the factum of adoption and expose the child to unnecessary questions hindering a smooth, natural relationship between him and his parents. We, therefore, see nothing unusual in Appellant mother, upon remarriage having given the child the surname of her husband or even giving the child in adoption to her husband.”

It is also worth notice that the mother’s second husband had formally adopted the child by way of Registered adoption deed. This was done despite the fact that an adoption deed is not necessary to effect adoption and the same can be done even through established customs.

As per Section 12 of the Hindu Adoption & Maintenance Act, 1956, an adopted child is deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth are deemed to be severed and replaced by those created by the adoption in the adoptive family. Therefore, when a child takes on to be a kosher member of the adoptive family it is only logical that he takes the surname of the adoptive family and it is thus befuddling to see judicial intervention in such a matter.

The Court also made clear that it is not apathetic to the predicament of the grandparents, but it cannot lose sight of the fact that absolutely no relief was ever sought by them for the change of surname of the child to that of first husband/their son.

In the light of the settled law that relief not found on pleadings should not be granted, while directing for change of surname of the child, the High Court traversed beyond pleadings and such directions are liable to be set aside on this ground.

The Court, hence, concluded that the mother being the only natural guardian of the child has the right to decide the surname of the child. She also has the right to give the child in adoption.

[Akella Lalitha v. Konda Hanumantha Rao, 2022 SCC OnLine SC 928, decided on 28.07.2022]


*Judgment by: Justice Krishna Murari

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: A writ petition was filed seeking the relief of protection of life and liberty at the hands of family members after the petitioners got married against their will. Considering the competency of the petitioners to enter into a valid contract of marriage and addressing the apprehension raised by them, Jasjit Singh Bedi, J, directed the Senior Superintendent of Police to decide the representation of the petitioners regarding danger to their life and liberty.

In the present case, both the petitioners were Muslims. They fell in love and decided to get married. The boy was 21 years of age while the girl was of 16 years as per their Aadhaar Cards. Both the petitioners solemnized their marriage on 08.06.2022 as per Muslim rites and ceremonies.

The counsel for the petitioners while placing reliance on Kammu v. State of Haryana[1], Yunus Khan v. State of Haryana[2]  and Mohd Samim v State of Haryana[3]submitted that under Muslim law, puberty and majority are one and there is a presumption of majority at the age of 15 years and a Muslim boy or a Muslim girl who has attained puberty is at liberty to marry one he or she likes and the guardian has no right to interfere. The petitioners, however, limited their prayer to the issuance of direction for deciding the representation made to the superintendent of police for protection of their life and liberty which was not acted upon by him earlier. The counsel for respondents 1 to 4 accepted the notice of motion.

Placing reliance on the case of Yunus Khan (supra) and Article195 from the book ‘principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’ as was reproduced in the said case, the Court noted that the marriage of a Muslim girl is governed by the personal law of Muslims, which proposition has been made clear in the above mentioned various judgments. The Court addressed the issue of providing protection to the petitioners as envisaged under Article 21 and held that-

“…merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India.” and disposed off  the petition directing the senior superintendent of the police to decide the representation made by the petitioners.

[Gulam Deen v. State of Punjab, 2022 SCC OnLine P&H 1485, decided on 13.06.2022]


Appearnces:

For Petitioner: Advocate Sanjeev Kumar

For State: AAG Bhupender Beniwal


[1] 2010(4) RCR(Civil) 716]

[2] 2014(3) RCR(Criminal) 518]

[3] 2019(1) 1 RCR (Criminal) 685

Patiala House Courts, Delhi
Case BriefsDistrict Court

Patiala House Courts: In a matter for grant of custody parole, Dharmender Rana, ASJ-02, held that, merely because the accused is Muslim and governed by personal laws, he cannot be debarred from availing rights conferred upon him by Juvenile Justice (Care and Protection of Children) Act, 2000.

Applicant moved an application for grant of custody parole on the ground that he is required to visit the office of Tehsildar for signing adoption papers.

Additional PP for the State opposed the application stating that in Islam, adoption is not legally permissible and thus the very ground for custody parole is specious. Further, it was submitted that the personal laws are applicable in issues related to adoption and thus the application deserved to be dismissed.

Counsel for the defence relied upon the Supreme Court decision in Shabnam Hashmi v. Union of India, WP(Civil) No. 470 /2005, to contend that although under personal rules, adoption is not permissible in Islam but under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000, even a Muslim is entitled to adopt a child and the rights of the accused cannot be negated on the ground that he is facing trial.

Decision

Court concurred with the defence counsel that merely because the applicant/accused happens to be Muslim and governed by personal laws on various issues, he cannot be debarred from availing the rights conferred upon him by general and benevolent legislation like Juvenile Justice (Care and Protection of Children) Act, 2000.

In view of the above, the instant application was allowed.

Hence, the Jail Superintendent was requested to take the applicant on custody parole to the office of Tehsildar.[State v. Ashabuddin, FIR No. 55 of 2013, decided on 28-3-2022]


Advocates before the Court:

Sh. Irfan Ahmed, Ld. Addl. PP for State

Ms. Qausar Khan, Ld. Counsel for applicant/accused Ashabuddin.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., issued detailed guidelines for Family Courts for speedy disposal of petitions seeking the judicial endorsement of extra-judicial divorce.

The unilateral extrajudicial divorce under Muslim Personal law is complete when either of the spouse pronounce/declare talaq, talaq-e-tafweez or khula, as the case may be, in accordance with Muslim Personal Law. So also extrajudicial divorce by mubaarat mode is complete as and when both spouses enter into mutual agreement. The seal of the Court is not necessary to the validity of any of these modes of extra judicial divorce.

The instant petition questions the scope and nature of enquiry to be undertaken by the Family Court in a petition filed u/s 7(d) of the Family Courts Act, 1984 to endorse an extrajudicial divorce under the Muslim Personal Law and to declare the marital status of the parties to the marriage.

The petitioner was the wife of the respondent, and both the parties were Muslims. The respondent divorced the petitioner by pronouncing talaq in accordance with Muslim Personal Law. However, the petitioner disputed the legal validity of the pronouncement of talaq and filed a petition in the Family Court for restitution of conjugal rights.

Thereafter the respondent filed original petition at the Court below to declare the marital status of the petitioner and the respondent on the ground that the marriage had been dissolved by pronouncement of talaq. The petitioner appeared at the Court below on 13-09-2021. The court below adjourned the case to 10-11-2021. However, due to application filed by the respondent to advance hear the case and it was advanced to 25-09-2021 and was later adjourned to 28-09-2021. The case was taken for judgment to 30-09-2021. The grievance of the petitioner was that she was not given proper opportunity by the Court below to contest the original petition on merits.

Reliance was placed by the Court on the decision in X v. Y, 2021 (2) KHC 709 wherein it had been held that the Family Court in exercise of the jurisdiction under Explanation (d) of S.7 of the Act is competent to endorse an extrajudicial divorce to declare the marital status of a person. It was made clear in the said judgment that in the matter of unilateral dissolution of marriage invoking khula and talaq, the scope of enquiry before the Family Court is limited and in such proceedings, the Court shall record the khula or talaq to declare the marital status of the parties after due notice to other party. In the matter of mubaraat, the Family Court shall declare the marital status without further enquiry on being satisfied that the dissolution was affected on mutual consent. It was observed that such matter shall be disposed treating it as uncontested matter without any delay by passing a formal order declaring the marital status. It was further held that if any person wants to contest the effectiveness of khula or talaq, it is open for such person to contest the same in appropriate manner known under the law.

In the above backdrop, the Bench stated,

The endorsement of extrajudicial divorce and consequential declaration of the status of the parties by the Family Court invoking S.7(d) of the Act is contemplated only to have a public record of the extrajudicial divorce. Hence, detailed enquiry is neither essential nor desirable in a proceeding initiated by either of the parties to endorse an extrajudicial divorce and to declare the marital status.

Therefore, the Bench held that the Family Court has to simply ascertain whether a valid pronouncement/declaration of talaq or khula was made and it was preceded by effective attempt of conciliation. In the case of khula, it has to be further ascertained whether there was an offer by the wife to return the “dower”. No further enquiry as in the case of an adversarial litigation like chief examination and cross-examination of the parties are not at all contemplated in such proceedings.

In the light of above, the Bench proceeded to formulate the following guidelines to be followed by the Family Court in a petition filed u/s 7(d) of the Act to endorse an extrajudicial divorce under Muslim Personal Law and to declare the marital status of the parties to the marriage:

  1. On receipt of the petition, the Family Court shall issue notice to the respondent.
  2. After service of summons or appearance of the respondent, the Family Court shall formally record the statement of both parties. The parties shall also be directed to produce talaq nama/khula nama (if pronouncement/declaration is in writing)/mubaarat agreement.
  3. On prima facie satisfaction that there was valid pronouncement of talaq, khula, talaq-e-tafweez, or valid execution of mubaarat agreement, the Family Court shall proceed to pass order endorsing the extrajudicial divorce and declaring the status of the parties without any further enquiry.
  4. The enquiry to be conducted by the Family Court shall be summary in nature treating it as an uncontested matter.
  5. The Family Court shall dispose of the petition within one month of the appearance of the respondent. The period can be extended for valid reasons.
  6. If any of the parties is unable to appear at the Court personally, the Family Court shall conduct enquiry using video conferencing facility.

Accordingly, the Bench directed the Court below to record the statement of the parties, and pass final orders in the light of the observations made in this judgment. [ASBI.K.N v. HASHIM.M.U, 2021 SCC OnLine Ker 3945, decided on 12-10-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Advocate C.Dilip Anushka Vijayakumar, Advocate P.N.Vijayan Nair and Advocate R.Pradeep

For the Respondent: Advocate Alexander Joseph Akhilasree Bhaskaran

Op EdsOP. ED.

A. Introduction: Treatment of personal law by the Colonial Courts

This article analyses the primacy of the Constitution of India vis-à-vis personal laws. To analyse this subject, the article has studied the treatment of personal laws by the courts of law over the years.

In order to develop some context, it would be pertinent to discuss the jurisprudence in relation to judicial review of personal law during the colonial era. It is relevant to note that with respect to personal law, the policy of the colonial courts was to govern the aspects of personal law according to local institutions/law of Hindus.[1] The said policy traces back to Warren Hastings’s Judicial Plan of 1772, which established that either community (Hindus or Muslims) was to be governed by its personal law in matters of inheritance, marriage, religious usage and institutions.[2]

Moving on, two cases from colonial era have been discussed to understand the application of personal law by colonial courts.

In one such case dealt by the Calcutta High Court in 1913, the issue revolved around the inheritance rights of a Shudra[3] ascetic.[4] The plaintiff in this case, who had filed a suit for possession, pleaded that he had purchased the property from a person A, who in turn had purchased it from another person B (who had had renounced all connection with worldly affairs and had become an ascetic).[5] The learned trial court held that since B had renounced the world, he was excluded from inheritance and had no title to the property which he sold. The learned trial court further held that since B had no lawful title to the property, he could not have sold the same to A (who sold it to the plaintiff) and hence dismissed the plaintiff’s suit for possession.[6]

The plaintiff decided to prefer a second appeal and the matter reached the Division Bench of the High Court of Calcutta. The High Court of Calcutta held that the trial court erred in its reasoning, as the principle, under Hindu personal law, of excluding a person from inheritance once he becomes an ascetic does not apply to a Shudra:

[A]ll authorities necessarily and clearly imply that a Sudra cannot enter the order of jati or sanyasi and that, therefore, a Sudra who becomes an ascetic is not excluded from inheritance to his family estate unless some usage is proved to the contrary….We are of opinion that the Hindu texts applicable to the disinheritance of ascetics do not apply to Sudras and, therefore, have no application in this case.[7]

Therefore, the Calcutta High Court held that, as per Hindu texts, a Shudra cannot enter the order of sanyasis, and hence consequently, it cannot be held B had renounced the world. This decision was based on the text of Hindu scriptures (personal law).

Moving on, in the second case[8], the plaintiff filed a suit for recovery of possession of certain properties (one of them being the Pandharinath Temple, situated at Chandansar in  Thane District of Bombay) by virtue of his title as Guru Bandhu (spiritual heir) of one Onkardas.[9] The chain of title had devolved in the following manner: (1) Pandharinath temple was gifted by one Tulsidas in his will to Onkardas (a Shudra);[10] (2) since Onkardas had no son, the property came to the management of his widow after his death, who allegedly disposed of a considerable portion of it;[11] and (3) the plaintiff set up an independent title to those properties on the basis that he was the Guru Bandhu (spiritual heir) of Onkardas, and, therefore, was entitled to succeed to the property.[12]

As per the law of inheritance governing ascetics in the Hindu scriptures, the property belonging to an ascetic devolved upon his spiritual heir. Therefore, if it were proved that Onkardas had become an ascetic prior to his death, the plaintiff would have succeeded in his claim as he was the spiritual heir to Onkardas.

However, noting that Onkardas was a Shudra, the Bombay High Court agreed with the position of law that as per Hindu scriptures, a Shudra could not enter the order of Yathi or Sanyasi; and hence, the devolution of property left by a deceased Shudra ascetic would be regulated by the ordinary law of inheritance, and not by the law of inheritance governing ascetics (unless a custom is proved to the contrary).[13]

Therefore, as far as the colonial courts were concerned, Shudras could not join the order of ascetics since it was an established position of law that citizens would be governed by their respective personal laws. In both the cases discussed above, the ascetics concerned were Shudras by birth and their rights were decided based on their status acquired by birth. By way of background, it is pertinent to note that the Hindu personal law largely prescribed different rules for members of different castes.

The rule of law was different for the three “twice-born varnas”[14] as compared to Shudras.[15] However, since the British had adopted the policy of non-interference in social and religious matters, no efforts were made by them to reform such discriminatory practices. The 1827 Bombay Regulations framed by the British clearly provided that the internal economy of a caste is not to be interfered with by the courts and the jurisdiction of civil courts over such questions was barred.[16] This policy was, with passage of time, extended throughout British India by the Civil Procedure Code in 1859.[17]

B. Constitution of Independent India – Do courts have the authority to judicially review religious scriptures

Did the aforesaid position taken by the colonial courts change after independence? Does the Constitution of independent India give courts the power to review personal law? The answer to this question has a huge bearing on the civil rights of different classes of citizens who may be discriminated under the tenets of personal law.

The issue whether personal law can be reviewed by a court of law cropped up in independent India in 1951 when a suit was filed by a Shudra sanyasi to recover the possession of a math[18] property in the capacity of being a mahant[19] of the said math property.[20]

As per the pleadings in the plaint, a certain Swami Sarupanand had set up a math in Banaras. Accordingly, the building in which the Swami stayed and other buildings and land adjacent thereto became part of the math property. On Swami Sarupanand’s death, Swami Atmavivekanand, the chief disciple of Swami Sarupanand became the mahant and, on the demise of the latter, the plaintiff, who was his chief disciple, became the mahant having been nominated to be the successor by Swami Atmavivekanand himself.[21]

The said position was vehemently opposed by Swami Atmavivekanand’s son as he claimed that the property in question was the private property of Swami Atmavivekanand, and not math property. In addition to the said defence, it was contended by the defendants that the plaintiff was a Shudra and hence, not entitled to become a sanyasi (which is a prerequisite to become mahant of a math).[22]

The matter reached the Allahabad High Court on appeal. It was held by the Allahabad High Court that the strict rule enjoined under the Hindu scriptures, as a result of which Shudras were considered to be incapable of entering the order of yati or sanyasi, has ceased to be valid after independence because of the fundamental rights guaranteed under Part III of the Constitution[23] (for example right to equality and right to not be discriminated based on birth).[24]

It was a revolutionary finding that marked a clear departure from the theory of non-interference followed during the colonial times with respect to matters governed by personal law. It was specifically held by the Allahabad High Court that any discrimination by virtue of birth in a particular caste stood abolished in light of enactment of the chapter on fundamental rights under Part III of the Indian Constitution.[25]

However, the aforesaid finding was overruled by a two-Judge Bench of the Supreme Court by stating that Part III of the Constitution does not govern aspects of personal law and the Allahabad High Court ought to have “enforced the law as derived from recognised and authoritative sources of Hindu law 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”.[26] However, in the peculiar facts of the case, the Supreme Court held that the plaintiff was entitled to become an ascetic/sanyasi according to the usage or custom of the particular sect or fraternity.[27]

A more detailed reasoning on this legal proposition whether personal law needs to adhere with the chapter on fundamental rights (Part III) was given by the Bombay High Court in State of Bombay v. Narasu Appa Mali[28].

Before the reasoning given in Narasu Appa Mali[29] is analysed, it must be noted that under the Constitution of independent India, only those laws can be struck down as being violative of the chapter on fundamental rights, which are covered within the definition of “laws” given in Article 13 of the Indian Constitution. Therefore, it would be helpful to first go through the bare text of Article 13:

13. Laws inconsistent with or in derogation of the fundamental rights.—(1) All laws in force in the territory of India immediately before the commencement of this Constitution, insofar as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b)“laws in force” includes laws passed or made by legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.[30]

(emphasis added)

Moving on, in Narasu Appa Mali[31], the Division Bench of the Bombay High Court held that personal laws are not susceptible to the Chapter on Fundamental Rights (Part III) for the following reasons:

I. Narasu Appa case – Chagla, J.’s reasoning

  1. Personal laws do not fall within the definition of “law” as defined in Article 13(3)(a)[32]. The contention that a personal law falls within the scope of a“custom or usage” is erroneous as a “custom or usage” is a deviation from personal law and not personal law itself. Hindu scriptures form the personal law and customs are deviations recognised from such scriptures.[33]
  2. In the definition of law in Article 13 – the expression “custom or usage” has been used while the term “personal law has been deliberately omitted.[34]
  3. If Hindu personal law became void by reason of Article 13, then it was unnecessary specifically to provide in Articles 17[35] and 25(2)(b)[36] for certain aspects of Hindu personal law which contravened Articles 14[37] and 15[38]. This clearly shows that only in certain respects has the Constitution dealt with personal law.[39] (Chagla, J. defined untouchability as an aspect of personal law whereas Gajendragadkar, J. defined untouchability as an aspect of custom.)
  4. Constitution drafters recognised and were aware about existence of separate personal laws but still chose to leave it unaffected and left the job to legislature to modify the personal law with time and to ultimately achieve the ideal of a common uniform civil code.[40]

II. Narasu Appa case – Gajendragadkar, J.’s reasoning

  1. Personal laws are not “laws in force” under Articles 13 of the Constitution as only statutory laws are covered within the scope of “laws in force”. Though personal laws are in force in a general sense; the expression ‘laws in force’ is not used in general sense and is intended to apply to statutory law only.[41]
  2. Secondly, the definition of “laws” [given in Article 13(3)(a)] does not apply to “laws in force”[given in Article 13(3)(b)]. The definition of “laws” will apply to prospective laws whereas the definition of “laws in force” will apply to existing laws. Personal laws, being existing laws, will be covered by the definition of “laws in force” only which does not include “customs” or “usages” within its scope.[42] (Chagla, J. gave a contrary opinion on this point and accepted that the definition of “laws” will apply to “laws in force” as well.)
  3. If “laws in force” included customs and usages, then it was unnecessary specifically to provide in Article 17 that untouchability is abolished, since untouchability is a social custom which would have stood automatically abrogated if “laws in force” includes customs.[43]
  4. Irrespective of the aforesaid reasoning, personal laws cannot be categorised as “customs” or “usages” as customs are only permitted departures from the general rules of Hindu law, and not personal law themselves. Therefore, both the Hindu and the Mohammadan Laws are not “laws in force” within the meaning of Article 13.[44]

The next section discusses the aforesaid reasoning based on debates in the Constituent Assembly and Drafting Committee during the drafting of the Constitution of India. It is a settled position of law that parliamentary material or Constituent Assembly Debates can be looked at for the purpose of ascertaining what was the object which the Constitution-makers had in view and what was the purpose which they intended to achieve.[45]

III. Drafting history of Article 13: Scope of “laws in force” and “laws”

It must be noted that the Constituent Assembly had begun its task of framing the Constitution of India in December 1946. After the first session of the Constituent Assembly, several committees were formed to prepare reports on various aspects of the Constitution. One of the said committees was the Advisory Committee on Fundamental Rights and Minority Rights. The said Committee was further divided into the Sub-Committee on Fundamental Rights and the Sub-Committee on Minority Rights.

The first step in the genesis of the chapter on fundamental rights was the draft produced by the Sub-Committee on Fundamental Rights. Three members of the said sub-committee, Dr B.R. Ambedkar, Mr K.M. Munshi, and Mr Harnam Singh, had provided their respective drafts of bill of rights for consideration by the sub-committee.[46]The sub-committee decided to use Mr K.M. Munshi’s draft as the base draft and examine it in conjunction with other drafts.[47]It will be worthwhile to first reproduce the original Clause 4 of Article 1 (which finally took the form of present-day Article 13) from the draft prepared by Mr K.M. Munshi:

  1. All the existing law or usage in force within the territories of the Union inconsistent with the fundamental rights and duties shall stand abrogated to the extent of such inconsistency, nor shall any such right or duty be taken away, abridged or modified save as provided in this chapter by legislative action of the Union or a State or otherwise.[48]

In a subsequent discussion, the phrase “modified save as provided in this chapter by legislative action of the Union or a State or otherwise” was deleted. On 29-3-1947, the clause was further revised, and the term “law” was used twice i.e. once for the existing laws and once for prospective laws:

  1. All existing laws or usages in force within the territories of the Union inconsistent with the rights guaranteed under this Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union or any unit make any law taking away or abridging any such right.[49]

(emphasis added)

It is imperative to note that the term “law” was used in the same sense, without any distinction as to their respective scopes, both for prospective law as well as existing law. This version was accepted as Clause 2 in the final draft which was submitted to the Advisory Committee by the Sub-Committee on Fundamental Rights.[50]

As is evident, the term “custom” was not yet part of this clause. It is necessary to analyse how this term came to be incorporated in Clause 2. In his draft on fundamental rights, Dr Ambedkar had a similar clause on abrogation of existing law in conflict with fundamental laws:

3. All citizens are equal before the law and possess equal civic rights. Any existing enactment, regulation, judgment, order, custom or interpretation of the law by which any penalty, disadvantage or disability is imposed upon or any discrimination is made against any citizen shall, as from the day on which this Constitution comes into operation, cease to have any effect.[51]

(emphasis added)

The said clause was considered by the Sub-Committee on Fundamental Rights and was added to the base draft of Mr K.M. Munshi in the draft report of the Sub-Committee on Fundamental Rights (as submitted to the Advisory Committee).[52] This clause was renumbered as Clause 6 and adopted with minor modifications in the final draft which was submitted to the Advisory Committee.[53]

When the Advisory Committee deliberated on the draft submitted by the Sub-Committee on Fundamental Rights, many objections were raised with respect to the language of Clauses 4, 5 and 6. In light of the said objections, a sub-committee was formed with the objective of redrafting these clauses and submitting them to the main committee.[54] Unfortunately, the deliberations of the said sub-committee are not available in public domain.

The said sub-committee redrafted these clauses and presented them to the Advisory Committee. In the said redrafting process, the original language of Clause 6 was lost. Eventually, it was decided by the Advisory Committee to delete Clause 6.[55]?? However, while doing so, it was decided to add the terms “regulations” and “customs” in Clause 2 (presumably from original clause 6).[56] The revised Clause 2 was adopted in the following manner by the Advisory Committee in its interim report:

  1. All existing laws, notifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union or any unit make any law taking away or abridging any such right.[57]

                                                                                                                  (emphasis added)

The addition of these terms in the first sentence seems to be have been done from the original Clause 6 (which was subsequently deleted). The said clause, drafted by Dr Ambedkar, was drafted in a broad manner indicating that all kinds of laws in force in India are intended to be abrogated if they conflict with fundamental rights. When it was decided to delete the said clause, the broad nature of the said clause was decided to be retained by importing the terms ‘regulations’ and ‘customs’ into Clause 2.

However, at the same time, the addition of the aforesaid terms in the first sentence cannot be construed to mean that the scope of the term “law”, as used in the last sentence with respect to prospective law, changed. This becomes evident from the next amendment in the aforesaid clause which was done when the draft prepared by the Advisory Committee reached the Constituent Assembly. An amendment was moved by Mr K. Santhanam in the Constituent Assembly to the following effect:

I move that in Clause 2 for the words “nor shall the Union or any unit make any law taking away or abridging any such right”, the following be substituted:

“Nor shall any such right be taken away or abridged except by an amendment of the Constitution.”

The only reason is that if the clause stands as it is then even by an amendment of the Constitution, we shall not be able to change any of these rights if found unsatisfactory or inconvenient.[58]

The aforesaid amendment was accepted by the Constituent Assembly.[59] As a result of the said amendment, the phrase “nor shall the Union or any unit make any law taking away any such right” became “nor shall any such right be taken away” and the term “law” was deleted from the last sentence of the clause. Thus, the definition of “law” as defined in the first sentence was left to govern both existing as well as prospective law. This is another indication of the fact that scope of existing and prospective law was always intended to be identical in Article 13.

The draft adopted by the Advisory Committee was then forwarded to the Constitutional Adviser, Mr B.N. Rau, who was given the task of drafting the constitutional text based on the principles accepted by the Advisory Committee. It is imperative to note one interesting point about the draft prepared by Mr B.N. Rau. In the said draft, a note was put by him specifying that the provisions that had not yet been adopted by the Constituent Assembly were italicised, whereas mere drafting changes to make the clauses more definite or to supplement them were not italicised.[60]

Now, it must be noted that the draft of Article 9 (which eventually became the current day Article 13) was not italicised.[61] This makes it evident that he had stuck to the principles already accepted by the Advisory Committee and had only done some drafting changes to make the provision more definite. Article 9, as drafted by Mr B.N. Rau, is reproduced below:

  1. (1) All laws in force immediately before the commencement of this Constitution in the territories included within the Federation, in so far as they are inconsistent with any of the provisions of Chapter II of this Part, shall, to the extent of such inconsistency, be void.

(2) Nothing in this Constitution shall be taken to empower the State to make any law which curtails or takes away or which has the effect of curtailing or taking away any of the rights conferred by Chapter II of this Part except by way of amendment of this Constitution under section 232 and any law made in contravention of this sub-section shall, to the extent of the contravention, be void.

(3) In this section, the expression “law” includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territories of the Federation.[62]                                                                                                                                                                                                                                                     (emphasis added)

It has already been established that in all the earlier drafts, the term “law” was used in the same sense and without any distinction for both prospective law as well as existing law. Therefore, in the draft prepared by Mr B.N. Rau also, the term “laws in force” used in sub-clause (1) and “law” used in sub-clause (2) clearly had the same meaning and scope as his draft was a mere redrafting without introduction of any new principle or concept in this clause (since this clause was not italicised in his draft signifying that he had merely redrafted the clause without changing any broad principles agreed upon by the Advisory Committee).

The aforesaid clause drafted by Mr B.N. Rau in the Draft Constitution became the current day Article 13 with some minor modifications.

Lastly, if at all any doubt remained with respect to the definition of “law” applying to both prospective as well as existing law, the said doubt was cleared by Dr Ambedkar during the Constituent Assembly Debates. Dr Ambedkar, as the Chairman of Drafting Committee, specifically clarified that the definition of law applied to the whole of Article 8 (which eventually became present day Article 13). This should lay to rest any doubt with respect to whether the term “custom” is included within the definition of “laws in force”:

… [s]ub-clause (3) of Article 8 applies to the whole of Article 8, and does not merely apply to sub-clause (2) of Article 8. That being so, the only proper construction that one can put or its possible to put would be to read the word “law” distributively, so that so far as Article 8, sub-clause (1) was concerned, law would include custom, while so far as sub-clause (2) was concerned, “law” would not include custom. That would be, in my judgment, the proper reading….[63]

The aforesaid clarification with respect to custom not applying to sub-clause (2) was given by him in the context that State cannot possibly make custom and hence the term “custom” should not be read in the definition of “laws” which are enacted by State. However, he clarified it in no uncertain terms that the definition of “law” would otherwise apply equally to both existing and prospective laws.

In conclusion, the following points emerge from the aforesaid analysis:

  • The terms “notifications, regulations, and customs” were added to the term “existing laws” in the first sentence to clarify that the term “law” is used in a broad sense.
  • The aforesaid broad definition of “law” was intended to apply equally to both existing as well as prospective law.
  • Therefore, the term “laws in force” used in sub-clause (1) and “law” used in sub-clause (2) of Article 13 clearly have the same meaning and scope.
  • Most importantly, the term “customs” was added to the term “existing laws” making it evident that existing customs were also intended to be abrogated if they conflict with existing law.

In light of the aforesaid analysis, the next section discusses the judgment of Narasu Appa[64].

IV. Analysis of the reasoning given by Gajendragadkar, J.

 a. Reasoning 1: The definition of “laws” [given in Article 13(3)(a)] does not apply to “laws in force” [given in Article 13(3)(b)].

In the aforesaid analysis of the drafting history of Article 13, it has been established that the definition of “law” was always intended to apply equally to both existing as well as prospective law. Therefore, the term “laws in force” used in “sub-clause (1)” and “law” used in “sub-clause (2)” clearly have the same meaning and scope. Accordingly, the definition of “laws” which includes customs and usages will apply with equal force to the definition of “laws in force”.[65]

b. Reasoning 2: Since the definition of “laws” does not apply to “laws in force”, the term “customs” is not covered in the definition of “laws in force”

To further substantiate this point, Gajendragadkar, J.  gave the example of the inclusion of Article 17 (abolishing untouchability) as a separate article in the Constitution.

Firstly, he observed that untouchability owed its origin to custom and usage.[66] Secondly, it was observed that since untouchability was a discrimination “based on birth”, it clearly offended the provisions of Article 15(1).[67] Based on the aforesaid two assertions, Gajendragadkar, J. opined that if customs were included within the scope of “laws in force” in Article 13, the practice of untouchability would have been deemed to be a “law in force” and it would have become void under Article 13(1) for being in conflict with a fundamental right (i.e. Article 15 which prohibited any discrimination based on birth).[68] It was observed that the fact that Article 17 was enacted separately to illegalise untouchability is a clear indication that customs were not included with the definition of “laws in force”.[69]

The aforesaid reasoning has been analysed below.

To begin with, as discussed above, the term “customs” was specifically added after the term “existing law” in the interim draft report of the Advisory Committee.[70] The specific addition of the term “customs” after “existing laws” by the Advisory Committee leaves no scope for any other interpretation apart from the fact that “customs” were supposed to be covered within the scope of existing laws. The aforesaid addition was not objected in principle in any subsequent discussions and only drafting changes were made to this clause as far as the definition of “law” is concerned (without any intention to change the broad nature of the scope of existing laws).

Secondly, based on the drafting history of Article 13, it has been established that the definition of “law” was always intended to apply equally to both existing as well as prospective law.[71] Therefore, even if the clause adopted by the Advisory Committee is disregarded and only the final adopted clause is considered, it is evident that the term “laws in force” used in sub-clause (1) and “law” used in sub-clause (2), were intended to have the same meaning and scope. Consequently, since the term “customs” is covered in the definition of “law”, it must also be deemed to be covered in the definition of “laws in force” (existing laws).

Thirdly, it is essential to discuss the example of untouchability given by Gajendragadkar, J. to establish that customs are not covered within the scope of “laws in force”. The original clause on “abolition of untouchability” did not contain any definition of untouchability.[72] Subsequently, in the draft accepted by the Sub-Committee on Fundamental Rights as well as Advisory Committee, a small modification was done to this clause and untouchability was used in inverted commas[73] in the accepted draft.[74]

Thereafter, this clause was debated in the Constituent Assembly and an amendment was moved by Srijut Rohini Kumar Chaudhury to provide for the following definition of untouchability: “Untouchability means any act committed in exercise of discrimination on grounds of religion, caste or lawful vocation of life mentioned in Clause 4.”[75] It will be useful to note that Clause 4, which was mentioned in the aforesaid proposed amendment, was the “no discrimination” clause which provided that no person shall be discriminated on the grounds of religion, race, caste, language or sex. This Clause 4 eventually took the shape of present-day Article 15 in the Constitution of India. The response given to the proposed amendment is extremely crucial. The following response was given by Mr K.M. Munshi to the aforesaid proposed amendment:

Mr K. Munshi: [C]lause 4 does not deal with untouchability at all. It deals with discrimination regarding services and various other things. It may mean discrimination even between touchables and untouchables, between people of one province and another. The word “untouchability” is mentioned in Clause 6. The word “untouchability” is put purposely within inverted commas in order to indicate that the Union legislature when it defines ‘untouchability’ will be able to deal with it in the sense in which it is normally understood.[76]

Before the impact of the aforesaid statement is discussed, it is important to remember that Mr K.M. Munshi is the same person who had introduced the clause on “abolition of untouchability” as a separate clause in his draft of fundamental rights (the same draft which was used as the base draft by the Sub-Committee on Fundamental Rights)[77]. Now, it is a settled position of law that speeches made by the mover of the Bill or Minister may be referred to for the purpose of finding out the object and purpose for which the legislation is enacted.[78] Therefore, the response/clarification given by Mr Munshi assumes a greater significance since he was the one who moved/introduced the clause on untouchability in the draft chapter on fundamental rights.

Based on the statement made by Mr Munshi, as captured above, it is evident that he introduced a separate clause on untouchability because he was of the opinion that Clause 4 did not cover within its scope the practice of untouchability since Clause 4 was only concerned with specific kinds of discrimination regarding services and a few other things. Thus, the following points emerge from the aforesaid response given by Mr K.M. Munshi:

  • The idea behind introducing a separate clause on abolition of untouchability was based on the understanding that the “no discrimination” clause (present day Article 15) did not deal with the practice of untouchability as it dealt with a separate subject-matter altogether.
  • The aforesaid reasoning goes against the reasoning given by Gajendragadkar, J. as the original inclusion of untouchability as a separate clause was not based on the premise that there is a need to introduce a separate clause on untouchability since “customs” are not included within the scope of existing laws/laws in force. In fact, the said clause was inserted because the draftsman viewed the scope of clause on untouchability (Article 17) as different from the scope of clause on “no discrimination” (Article 15).
  • Though it seems to be an erroneous understanding that untouchability is not covered within the scope of Article 15 (as untouchability is nothing but a discrimination based on birth or caste), nevertheless it leads to a clear conclusion that while introducing a separate clause on untouchability, there was no such understanding that ‘customs” are not included with the term “existing laws/laws in force”. There was a completely different consideration for introducing a separate clause on untouchability and hence, the presence of Article 17 in the Constitution of India cannot be used as an indication for the proposition that the term “customs” is not included within the scope of “laws in force” in Article 13.

Lastly, it must not be lost sight of that certain provisions were inserted in the Constitution as a matter of abundant caution.[79]The inclusion of untouchability as a separate clause must also be understood to be an insertion based on abundant caution considering the social importance of this issue. This aspect was also noted during the Constituent Assembly Debates that a clear message needs to be sent to the society against this vile practice.[80]

c. Reasoning 3: Even if “customs” is covered within the scope of “laws in force”, there is a clear distinction between “customs” and “personal law”, and “personal law” is not covered within the scope of “customs”

The aforesaid reasoning has been analysed below.

Till now, it has been established that “customs” are included within the definition of “laws in force” in Article 13. Next, it is necessary to compare ‘customs” with “personal law’.

Firstly, it needs to be noted that customs are not merely departures from personal law but are one of the sources of personal law. The following verse from Manusmriti, one of the Holy scriptures of Hinduism, leaves no scope for any other interpretation:

“The whole Veda is the (first) source of the sacred law, next the tradition and the virtuous conduct of those who know the (Veda further), also the customs of holy men, and (finally) self-satisfaction.[81]

(emphasis added)

According to this division, custom holds third place in the category of sources of law, after Vedas and Smritis. Therefore, excluding personal law from the purview of fundamental rights (but retaining customs at the same time) would mean excluding two sources of personal law from the purview of Part III but retaining the third source of personal law within the purview of Part III. It does not appear to be a logical conclusion.

Secondly, what could be the possible reason for leaving out personal law from the purview of Chapter III? The answer can only be the need to not hurt religious sentiments of the people. There has always been a strong social resistance to any proposed change in relation to religious practices. However, if the intention was to exclude personal laws, then the drafters would have also excluded customs from the purview of Part III for the simple reason that religious customs have an equivalent religious force. Abolition of a religious custom is likely to face the same resistance from the religious community as abolition of any personal law. Historically, Hindus have been governed by Hindu scriptures and customs in an equal measure.

The case of temple entry restrictions, one of the most sensitive issues with respect to Hindu religious practices, may be discussed to highlight the aforesaid point. In Anandrav Bhikaji Phadke v. Shankar Daji Charya[82], an exclusive right of worship in the temple was set up by the Chitpavan Brahmins against other communities on the basis of an established custom (though the said claim had no basis in the Hindu scriptures). The following observation of the Bombay High Court clearly establishes that the exclusive right of worship was based on an established custom:

  1. … Now the rights connected with the religious foundation, in the absence of any code of rules laid down by the founder or the sovereign power, have to be sought in the practice of the institution. What has long been done is presumed to have been rightly done. The evidence on that subject has led the Assistant Judge to the conclusion that the right of exclusive worship set up, as against the defendants, by the plaintiffs has been proved, and that the contradictory right set up by the defendants has not.[83]

                                                                                                                  (emphasis added)

Now, if Chitpavan Brahmins would have been informed that they could not enforce their customary right of exclusive worship in the temple concerned because it violates fundamental rights of other citizens, it would have surely created an uproar because religious customs are considered equally sacred by religious communities as any other source of personal law. Further, it should be kept in mind that under colonial rule, customs were given due weightage vis-à-vis written scriptures. While as per Manusmriti, customs rank below Vedas and Smritis as a source of law and in a situation of conflict between them, the Vedas and Smritis are supposed to prevail; in colonial courts, a different principle was followed. Marc Galanter points out in his article “Law and Caste in Modern India” that in colonial courts, clear proof of usage outweighed the written text of the law.[84] However, this doctrine must not be understood to mean that customs were a departure from personal law. Customs were only a departure from written texts – not personal law itself.

Though it was extremely difficult to establish clear proof of usage, it cannot be disputed that customs applied with equal (if not greater) force as written texts in India. Therefore, there cannot be any dispute that religious customs had deep binding value on Hindus.

In light of the aforesaid discussion, it can be safely concluded that if personal law was not intended to be covered within the purview of Part III in order to not hurt religious sentiments, the constitution drafters would have surely kept customs also outside the purview of Part III.

d. Reasoning 4: In the definition of “law” in Article 13 – the expression “custom or usage” has been used while “personal law” has been deliberately omitted

The Government of India Act, 1915, in which a clear distinction was recognised between personal law and customs, was referred to in order to substantiate this point.[85]It was observed that the same Government of India Act was used as a model by the Constituent Assembly. However, the drafters chose to use the term “customs” but did not include “personal law” in the draft, which according to Gajendragadkar, J. (as well as  Chagla, J.), is a clear pointer to the intention of the Constitution-making body to exclude personal law from the purview of Article 13.[86]

The aforesaid reasoning has been analysed below.

Firstly, as noted by Chagla, J. as well, the definition of “law” in Article 13 is an inclusive definition. It is a settled principle of statutory interpretation that where a definition starts with the word “includes”, the definition is prima facie extensive.[87] Therefore, the broad nature of the definition of “laws” is evident from usage of the word “includes”. The broad nature of “laws”, evident from the drafting history of Article 13, has already been discussed above in the previous section of this article. The prima facie import of the definition of “law”, therefore, seems to be to include every legal principle which has force/is considered binding by the society. The same proposition is accepted by Gajendragadkar, J. as well when he states that there can be no doubt that the personal laws are in force in a general sense.

However, both  the Judges refused to accept that personal law falls within the definition of “law” on the basis of their conclusion that the term personal law has been deliberately omitted from the definition of law after comparing this definition with Section 112 of the Government of India Act, 1915[88] (which included both “custom” and “personal law”). It appears that the Bombay High Court applied the principle of interpretation of expressio unius est exclusio alterius (what is expressly provided for by the Constitution must necessarily exclude what is not so provided for).

This principle has been held by courts to have an extremely limited application. As far back as in the 19th century itself, this principle was described as a “useful servant but a dangerous master to follow in the construction of statutes” by Lopes L.J. in Colquhoun v. Brooks[89]. It was further held in the same case that the maxim ought not to be applied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.[90] This case has been cited with approval by Supreme Court in many cases.[91]

This article has earlier discussed how excluding personal law from the purview of Part III (but retaining customs at the same time) would mean excluding two sources of personal law from the purview of Part III but retaining the third source of personal law within the purview of Part III, which does not seem to be a logical conclusion and will create absurd inconsistencies. Therefore, the aforesaid principle of interpretation must not be applied to exclude personal law from the purview of Article 13.

 V. Analysis of the reasoning given by Chagla, J.

Just like Gajendragadkar, J.  Chagla, J. also stated that a custom or usage is a deviation from personal law and not personal law itself.[92] Accordingly, he held that only customs are covered within the scope of Part III, and not personal law.[93] This reasoning has already been discussed above and hence, there is no need to discuss it again.

The main difference in the reasoning of Chagla, J. and  Gajendragadkar, J. is that  Chagla, J. as opposed to Gajendragadkar, J. had held that the term “customs” is included within the scope of “laws in force” in Article 13.[94] Accordingly, he accepts the position of law that if there is any custom or usage in force in India, which is inconsistent with the fundamental rights, that custom or usage is void. To that extent, this article has also reached the same conclusion.

The next section discusses the reasoning of Chagla, J. which is different from that of Gajendragadkar, J.

a. Reasoning: The Constitution has dealt with personal law only in certain respects and except for those specific provisions, personal law is not covered within the purview of Part III

 Chagla, J. also gave the example of untouchability to buttress his view that personal law is not covered within the definition of “law in Article 13. However, there is a difference in the way  Chagla, J. dealt with the example of untouchability, as compared to  Gajendragadkar, J.

As discussed already,  Gajendragadkar, J. had recognised and classified untouchability as a custom in order to support his view that the term “customs” is not covered within the definition of “laws in force” in Article 13. He had done that because he was of the view that neither customs nor personal law is covered within the definition of “laws in force” in Article 13.

J Chagla, J. on the other hand, had held that the term “customs” is included within the scope of “laws in force” in Article 13.[95] However, he did not accept the proposition that personal law is covered within the scope of Article 13. To support his view, he classified untouchability as part of Hindu personal law (and not as a custom) to opine that only in certain respects, the Constitution has dealt with personal law and except for those specific provisions, personal law is not covered within the purview of Part III:

  1. … Article 17 abolishes untouchability and forbids its practice in any form…. Now, if Hindu personal law became void by reason of Art. 13 and by reason of any of its provisions contravening any fundamental right, then it was unnecessary specifically to provide in Article 17 …. for certain aspects of Hindu personal law which contravened Articles 14 and 15. This clearly shows that only in certain respects has the Constitution dealt with personal law.[96]

Even if the definition of personal law is accepted to be distinct from custom, as understood by Chagla, J. it is evident from the drafting history of the Constitution that untouchability was not intended to be abolished as a part of Hindu personal law and it was, in fact, abolished as a custom or a social practice which was not confined to/emanating from Hindu personal law. Therefore, the clause on untouchability cannot be used as an example for the proposition that the Constitution drafters have selectively dealt with personal law, wherever considered necessary.

To substantiate the aforesaid point, the broad phraseology used in this clause may be looked at. In the report submitted to the Advisory Committee, the phrase used by the Sub-Committee on Fundamental Rights was “untouchability in any form”.[97] In the deliberation meetings of the Advisory Committee, questions were raised with respect to the vagueness of this phrase and it was even suggested that this clause should clarify that untouchability is abolished with respect to Hindus as the said practice was confined to Hindus.[98] However, such suggestions were met with huge criticism and it was reminded to the House that untouchability is not confined to Hindus only and there are many depressed classes who have to deal with the disability of untouchability despite having converted to Christianity.[99] It was opined by Dr Sardar Patel, Chairman of the Sub-Committee on Fundamental Rights, that the intention is to abolish untouchability in all forms as per his understanding.[100] In light of the aforesaid discussions, no restriction was placed on the broad nature of this clause.[101]

This clearly shows that untouchability was not intended to be abolished as a part of Hindu personal law (as understood by Chagla, J.) since, for example, the stigma of untouchability faced by depressed classes which converted to Christianity was not prescribed by Hindu scriptures and was a clear result of customary practices in the society.

Therefore, there cannot be any doubt that untouchability was abolished as a customary practice, and not as a part of personal law. Accordingly, the presence of Article 17 in the Constitution of India cannot be used to support the proposition that personal law is not included within the scope of “laws in force” in Article 13 on the premise that the Constitution has dealt with personal law only in certain respects and except for those specific provisions, personal law is not covered within the purview of Part III.

 VI. Recent trends with respect to inclusion of personal law within the scope of Article 13

 The correctness of the view taken in Narasu Appa Mali[102] has been doubted by the Supreme Court twice in recent times. Firstly, Nariman, J. doubted the correctness of Narasu Appa Mali[103] by way of the following observation in the triple talaq judgment[104]:

  1. … However, in a suitable case, it may be necessary to have a re-look at this judgment in that the definition of “law and “laws in force” are both inclusive definitions, and that at least one part of the judgment of P.B. Gajendragadkar, J., (para 26) in which the learned Judge opines that the expression “law” cannot be read into the expression “laws in force” in Article 13(3) is itself no longer good law.[105]

Similarly, Chandrachud, J. has also strongly criticised the view taken in Narasu Appa Mali[106] by way of the following observation in the Sabarimala Temple entry judgment[107]:

  1. The decision in Narasu[108], in restricting the definition of the term “laws in force” detracts from the transformative vision of the Constitution. Carving out “custom or usage” from constitutional scrutiny, denies the constitutional vision of ensuring the primacy of individual dignity. The decision in Narasu[109], is based on flawed premises. Custom or usage cannot be excluded from “laws in force”. The decision in Narasu[110] also opined that personal law is immune from constitutional scrutiny. This detracts from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality. This also overlooks the wide ambit that was to be attributed to the term “laws in force” having regard to its inclusive definition and constitutional history.[111]

However, in both the aforesaid cases, the legality of a personal law was not strictly in question and hence, this issue could not be decided in these cases.

Conclusion

In conclusion, based on the aforesaid discussion, it is submitted that personal law is indeed covered within the scope of Part III of Constitution and accordingly, any discriminatory practices under the personal laws ought to be reviewed under Part III.

The scrutiny of personal law on the anvil of rights guaranteed under Part III will also help fulfil the lifelong dream of Dr Ambedkar who wished for a society based on “liberty, equality and fraternity”.[112] In order to attain the said goal and destroy caste-based discrimination, Dr Ambedkar was of the strong opinion that the belief in the sanctity of scriptures was needed to be destroyed.[113] Therefore, scrutiny of personal law under Part III will help in delegitimising those parts of scriptures which are inherently discriminatory and hence will help in fulfilling the vision of Dr Ambedkar.

We must not forget that the nation owes a great debt to the Constituent Assembly for giving us the notion of equality and dignity. We have seen in this article that colonial courts were not concerned with these notions and were merely focused on maintaining status quo. The colonial courts were completely oblivious to the human rights of an individual. However, in independent India, the courts are duty-bound to ensure human rights of the individual. Therefore, any set of principles which have authoritative force over the citizens must be subject to judicial review. Citizens must not be denied important rights in independent India, for example the right to practice a profession of their choice (for instance, the right to become a priest), just because the personal laws prohibit such a choice.

It must not be forgotten that the individual is at the centre of Indian Constitution and individual dignity is considered paramount under the principles of Indian Constitution. Therefore, individual dignity, snatched away by a personal law, cannot be argued to be outside the subject of judicial review on the ground of religious sentiments of the society. The Preamble to our Constitution mentions “dignity” in the following manner:

“Fraternity assuring the dignity of the individual and the unity and integrity of the nation.”[114]

It is imperative to note that the Preamble assures the dignity of a person before ensuring the unity of the nation, thereby establishing a romantic ideal that dignity must trump over every other goal of the society. This is a beautiful idea because for any nation or a democratic society, nothing should trump the ideal of ensuring the inherent worth/dignity of its people. The same thought was echoed by Dr Ambedkar as well in his speech in the Constituent Assembly in November 1948:

“I am glad that the draft Constitution has…adopted the individual as its unit.”[115]


*Metropolitan Magistrate/Civil Judge, Delhi Judicial Services. BA LLB (Hons.), National Law University, Delhi.  Author can be reached at devanshu.sajlan26@gmail.com

[1] Ludo Rocher, Studies in Hindu Law and Dharmaśāstra (Anthem Press 2012) 633; Patrick Olivelle and Donald Richard Davis, Hindu Law: A New History of Dharmaśāstra (Oxford History of Hinduism)(OUP 2018) 173.

[2]Ludo Rocher, Studies in Hindu Law and Dharmaśāstra (Anthem Press 2012) 633; Patrick Olivelle and Donald Richard Davis, Hindu Law: A New History of Dharmaśāstra (Oxford History of Hinduism)(OUP 2018) 173. See also, Sarla Mudgal v. Union of India, (1995) 3 SCC 635, 650.

[3]In the ancient Hindu society, Shudras belonged to the lowest rung of the social order (varna system) and were meant to serve the rest of the upper class population. For a discussion on the ancient varna system, see Brian K. Smith, Classifying the Universe: The Ancient Indian Varna System and The Origins of Caste (Oxford University Press 1994) 46-47. For an understanding of social order created by Hindu scriptures, see e.g. George Bühler, The Laws of Manu (Vol. 25 of The Sacred Books of the East) (Oxford: Clarendon Press 1886) 192 [“(The pursuit of sacred) knowledge is the austerity of a Brahmana, protecting (the people) is the austerity of a Kshatriya, (the pursuit of) his daily business is the austerity of a Vaisya, and service the austerity of a Sudra.”]

[4]Harish Chandra Roy v. Sk. Atir Mahmud, 1913 SCC OnLine Cal 30.

[5]Harish Chandra Roy v. Sk. Atir Mahmud, 1913 SCC OnLine Cal 30.

[6]Harish Chandra Roy v. Sk. Atir Mahmud, 1913 SCC OnLine Cal 30.

[7]Harish Chandra Roy v. Sk. Atir Mahmud, 1913 SCC OnLine Cal 30.

[8]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi,1922 SCC OnLine Bom 114.

[9]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, para 1.

[10]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, para 7.

[11]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, para 7.

[12]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, para 8.

[13]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, paras 9-10.

[14] For the meaning of twice-born varnas, see Patrick Olivelle and Donald Richard Davis, Hindu Law: A New History of Dharmaśāstra (Oxford History of Hinduism)(OUP 2018) 9. The first three varnas are called dvija or twice-born as only they are entitled to don the sacred thread at the ceremony of upanayana (janeu ceremony) which is interpreted as a second birth. This ceremony marks a Hindu male child’s entrance into the life of a student and his acceptance as a full member of his religious community.

[15]Marc Galanter, Law and Caste in Modern India, (1963) 3 (11) Asian Survey 544, 545.

[16]Marc Galanter, Law and Caste in Modern India, (1963) 3 (11) Asian Survey 544, 545. See also Anandrav Bhikaji v. Shankar Daji, (1883) ILR 7 Bom 323, 328-329.

[17]Marc Galanter, Law and Caste in Modern India (1963) 3 (11) Asian Survey 546.

[18]“Math” is a Sanskrit word which signifies a Hindu monastery set up by ascetics to study and teach religion.

[19]“Mahant” is the religious head/chief priest of a particular temple.

[20]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231.

[21]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231, para 2.

[22]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231, para 7.

[23]http://www.scconline.com/DocumentLink/Uei3bEDC.

[24]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231, 166-167.

[25]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231, 166-167.

[26]Shri Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689, 699.

[27]Shri Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689, 717.

[28]1951 SCC OnLine Bom 72.

[29]1951 SCC OnLine Bom 72.

[30] Constitution of India, Art. 13.

[31]1951 SCC OnLine Bom 72.

[32] It is important to note that only those laws can be struck down as being violative of Part III which are covered within the definition of “laws” given in Art.13 of the Indian Constitution.

[33]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 15.

[34]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 16.

[35]http://www.scconline.com/DocumentLink/GMP63muX.

[36]http://www.scconline.com/DocumentLink/k4viekQA.

[37]http://www.scconline.com/DocumentLink/h7G5KbD4.

[38]http://www.scconline.com/DocumentLink/9etOajU7.

[39]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 16.

[40]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 16.

[41]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 23.

[42]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[43]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[44]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[45] See e.g. State of Mysore v. R.V. Bidap, (1974) 3 SCC 337; Fagu Shaw v. State of W.B., (1974) 4 SCC 152; S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126.

[46]For a complete version of all the three drafts, see B.S. Rao et al., The Framing of India’s Constitution: A Study Select Documents, Vol. 2 (1st Edn., Indian Institute of Public Administration 1967) 69-114.

[47]B.S. Rao, Vol. 2, 116.

[48] B.S. Rao, Vol. 2, 73.

[49] B.S. Rao, Vol. 2, 33.

[50]B.S. Rao, Vol. 2, 171.

[51] B.S. Rao, Vol. 2, 86.

[52]B.S. Rao, Vol. 2, 132, 138.

[53] B.S. Rao, Vol. 2, 172.

[54] B.S. Rao, Vol. 2, 223, 226.

[55] B.S. Rao, Vol. 2, 290.

[56] B.S. Rao, Vol. 2, 290.

[57] B.S. Rao, Vol. 2, 296.

[58]Constituent Assembly of India Debates, Vol. III http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html (https://perma.cc/CJ7H-ZV49)(CAD).

[59]Constituent Assembly of India Debates, Vol. III http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html (https://perma.cc/CJ7H-ZV49)(CAD).

[60]B.S. Rao, The Framing of India’s Constitution: Select Documents, Vol. 3 (The Indian Institute of Public Administration, 1967), (n 39) Vol. 3, 4.

[61] B.S. Rao (n 39) Vol. 3, 7.

[62] B.S. Rao (n 39) Vol. 3, 7.

[63] CAD, Vol. VII <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29111948.html>(https://perma.cc/FT6N-P7BU).

[64]1951 SCC OnLine Bom 72.

[65] On the discussion of the scope of “laws” and “laws in force”, see the section with the heading “Drafting history of Article 13: Scope of “Laws in Force” and “Laws”.

[66]State of Bombay v.Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[67]State of Bombay v.Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[68]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[69]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[70]B.S. Rao (n 39) 290.

[71] On the discussion of the scope of “laws”, see the section with the heading “Drafting History of Article 13: Scope of “Laws in Force” and “Laws”.

[72]B.S. Rao (n 39) 74.

[73] The reason for using “untouchability” in inverted commas was to indicate that “untouchability” is used in this clause in the sense in which it is normally understood by the society. See CAD, Vol. III <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html>(https://perma.cc/CJ7H-ZV49).

[74]B.S. Rao (n 39) 297.

[75]CAD, Vol. III <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html>(https://perma.cc/CJ7H-ZV49).

[76]CAD, Vol. III <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html>(https://perma.cc/CJ7H-ZV49).

[77]B. S. Rao (n 39) 116.

[78] See e.g. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130; P.V. Narasimha Rao v. State, (1998) 4 SCC 626.

[79] See A.K. Gopalan v. State of Madras, 1950 SCR 88, where it was held that the inclusion of Articles 13(1) and (2) in the Constitution appears to be a matter of abundant caution.

[80]See CAD, Vol. III <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html>(https://perma.cc/CJ7H-ZV49) (“Dr S.C. Banerjee:  … It is incumbent on us that we should be very clear as to make it explicit that in the future independent India, there should be no distinction between man and man in the social field. In other words, caste distinction must be abolished.”)

[81]George Bühler, The Laws of Manu (Vol. 25 of The Sacred Books of the East) (Oxford: Clarendon Press 1886) 192 , 11.

[82](1883) ILR 7 Bom 323.

[83](1883) ILR 7 Bom 323, 329.

[84]Marc Galanter, Law and Caste in Modern India (1963) 3 (11) Asian Survey 544, 545.

[85]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 29.

[86]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 7292, 7293.

[87] See e.g. Feroze N. Dotivala v. P.M. Wadhwani, (2003) 1 SCC 433, 442.

[88]http://www.scconline.com/DocumentLink/Nra5hpH9.

[89](1888) 21 QBD 52, 65 (CA).

[90](1888) 21 QBD 52, 65 (CA).

[91] See e.g. State of Karnataka v. Union of India, (1977) 4 SCC 608; CCE v. National Tobacco Co. of India Ltd. (1972) 2 SCC 560; Union of India v. Pfizer Ltd., (2018) 2 SCC 39.

[92]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 15.

[93]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 7288, 7289.

[94]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 15.

[95]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 15.

[96]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72.

[97]B. S. Rao (n 39) 172.

[98]B.S. Rao (n 39)  226.

[99]B.S. Rao (n 39) 226 .

[100] B.S. Rao (n 39)  226.

[101]See Constitution of India, Art 17.

[102]1951 SCC OnLine Bom 72.

[103]1951 SCC OnLine Bom 72.

[104]Shayara Bano v. Union of India, (2017) 9 SCC 1.

[105]ShayaraBano v. Union of India, (2017) 9 SCC 1, 66-67.

[106]1951 SCC OnLine Bom 72.

[107]Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1.

[108]1951 SCC OnLine Bom 72.

[109]1951 SCC OnLine Bom 72.

[110]1951 SCC OnLine Bom 72.

[111]Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1, 233.

[112]Bhimrao Ramji Ambedkar and Vasant Moon, Dr Babasaheb Ambedkar, Writings and Speeches, Vol. 1 (1st Edn., Education Department, Government of Maharashtra 1979) 57.

[113]Bhimrao Ramji Ambedkar and Vasant Moon, Dr Babasaheb Ambedkar, Writings and Speeches, Vol. 1 (1st Edn., Education Department, Government of Maharashtra 1979)  68.

[114]Constitution of India, Preamble.

[115]CAD, Vol. VII http://164.100.47.194/Loksabha/Debates/cadebatefiles/C04111948.html (https://perma.cc/EL42-VKUW).

Hot Off The PressNews

Supreme Court: The bench of NV Ramana and Ajay Rastogi, JJ has agreed to examine the validity of a newly enacted law which makes the practice of instant divorce through triple talaq among Muslims a punishable offence entailing imprisonment of up to three years. It issued notice to the Centre on a batch of petitions seeking to declare The Muslim Women (Protection of Rights on Marriage) Act 2019 as “unconstitutional” on grounds that it allegedly violates the provisions of the Constitution.

Senior advocate Salman Khurshid said there were many dimensions, including making the practice a punishable offence and jail term of up to three years, which need to be examined by the top court. He said the petitioners were concerned about making the practice of triple talaq among Muslims an offence as the apex court had already declared it to be null and void. Referring to a five-judge Constitution bench verdict which had declared the practice of triple talaq among Muslims as null and void,

“If there is no such thing as triple talaq then what are they making an offence,”

To this the bench asked, suppose if a religious practice is declared as null and void and it is declared as an offence like dowry and child marriage, but if it still goes on then what is the remedy. Responding to the query, Khurshid said several aspects have to be examined and in the triple talaq matter the Constitution bench had already said the practice is void. He said it has to be examined whether the religious practice denies the rights to the woman.

The bench, while agreeing to examine the validity of the 2019 Act, observed that petitioners have also raised the issue of punishment of up to three years and grant of bail to the husband only after the woman is heard by the court.

In the plea filed through advocate Ejaz Maqbool, Jamiat Ulama-I-Hind has claimed that since the pronouncement of talaq by a Muslim husband upon his wife had already been declared “void and illegal”, there was no requirement to enact the law.

“However, the impugned Act criminalises the act of pronouncement of talaq by a Muslim husband and makes it a cognizable offence, without appreciating that such pronouncement had already been declared unconstitutional and amounted to nullity in the eyes of law,”

Referring to the provision of the Act which stipulates punishment of up to three years jail along with fine, the plea said it is an “ill-conceived provision which imposes excessive and disproportionate punishment.”

It claimed that “criminalising a mode of divorce in one particular religion while keeping the subject of marriage and divorce in other religions only within the purview of civil law, also leads to discrimination, which is not in conformity with the mandate of Article 15”.

Article 15 of the Constitution deals with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

(Source: PTI)


Also read:

Triple Talaq void & illegal | Parliament passes the Muslim Women (Protection of Rights on Marriage) Bill, 2019!

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority

Case BriefsHigh Courts

Madras High Court: While examining the validity of certificates issued by the Kazis in the country in general and in Tamil Nadu in particular in respect of Talaq, the Division Bench of Sanjay Kishan Kaul, C.J., and M.M. Sundresh, J., held that for purposes of the courts and legal proceedings, the certificate in respect of Talaq issued by Chief Kazi is only an opinion and has no legal sanctity in view Section 4 of the Kazis Act, 1880 according to which the office of Kazi does not confer on the person any judicial or administrative power.

The Court further allowed the Muslim Personal Law Board to take some time to clarify the format in which these certificates are to be issued and asked Board to submit before it a new format which may remove the ambiguity before ant legal forum and which would be made open to stakeholders for suggestions. In the meantime no Talaq certificate by Muslim Personal Law Board can be issued as an opinion of Chief Kazi.

The instant writ petition was  supported by the Women Lawyers Association. It was prayed before the Court to forbear the Kazis from issuing Talaq certificates and other documents certifying or approving Talaq. It was also contended that the certificates so issued are causing immense confusion in the matrimonial proceedings and also in the understanding by the spouses as to the effect of such a certificate being issued by the Chief Kazi. [Bader Sayeed v. Union Of India, 2017 SCC OnLine Mad 74, decided on 10/01/2017]