International Research journal of Management Science and Technology

  ISSN 2250 - 1959 (online) ISSN 2348 - 9367 (Print) New DOI : 10.32804/IRJMST

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DEVELOPMENT OF PERSONAL LAWS IN INDIA: AN HISTORICAL ACCOUNT

    1 Author(s):  MS. DENKILA BHUTIA

Vol -  8, Issue- 8 ,         Page(s) : 288 - 296  (2017 ) DOI : https://doi.org/10.32804/IRJMST

Abstract

Abstract The personal law is one of the unique components of the Indian legal system. India is a multicultural society and different groups in India have separate personal laws. The personal laws tells the stories about the culture, behaviour, beliefs and values that are social constructs that shape the views of the people about their antecedents and roots. In India such social constructs has received legal recognition. Over centuries, through invasions and migrations various religious groups like Islam, Parsi, Christians have made India their home. The invasions and migration have led to the advent of various personal laws in India. The paper will focus into thestatus and policy on personal laws in India in a historical perspective. Thus, the paper will focus on the growth and development of various personal laws in India during different eratill the post independence period.

  1.  Hadas Tagari, Personal family law systems – a comparativeand international human rights analysis,CAMBRIDGE I.J.L. 231.
  2.  Personal Law would mean law relating to personal status, and the matters which are to a greater or lesser extent governed by the personal law are essential validity of marriage, mutual rights and obligations of husband and wife, parent and child, guardian and ward, the effect of marriage on property, divorce, annulment of marriage (though only to a limited degree), legitimation and adoption, certain aspects of capacity, testamentary and intestate succession to movables. See G.C. CHESHIRE, PRIVATE INTERNATIONAL LAW 150 (4d ed. Clarendon Press 1952).
  3.  A.M. BHATTACHARJEE, MATRIMONIAL LAWS AND THE CONSTITUTION 2 (Eastern Law House 1996).
  4.  TAGARI, supra note 2, at 231.
  5.  KIRAN DESHTA, UNIFORM CIVIL CODE IN RETROSPECT AND PROSPECT, 7 (Deep and Deep Publication 2002).
  6.  From the early ages, the advent of Aryan civilization the pantheon people were termed Hindus by the British as they lived on the banks of the river Sindhu. Hindu India is the period from the beginning of the Indian History (i.e. 1000 B.C.) to the establishment of an effective Muslim rule in the early 12th century. See, P.B.Gajendragadkar, Secularism and the Constitution, 20 The American Journal of Comparative Law 4, 25-26 (1972). 
  7.   A.S.ALTEKAR, STATE AND GOVERNMENT IN ANCIENT INDIA, 55 (3d ed. Motilal Banarsidass:Delhi 1958).
  8.   The word Dharma is derived from the root ‘dhru’ means ‘to hold’. Dharma, thus, was a principle of social cohesion, holding the society together in a harmonious relationship.See, M.S. PANDIT, OUTLINES OF ANCIENT HINDU JURISPRUDENCE 3 ( N.M. Tripathi Private Limited: Bombay 1989).
  9.  1 HARI SINGH GOUR, THE HINDU CODE 5 (Allahabad Law Publishers 1973). 
  10.  Saptangas (i.e., seven limbs). Apart from the king, the other six limbs were king’s ministers, capital, realm, treasury, army and allies.
  11.  The king had to follow Rajdharma that is to do his function of justice delivery according to the norms of Dharmashastras and the well established customs. He was the foundation of justice but not the source of law. The Vedas, the Smrities including commentaries and digests on them, and the Customs were the sources of law. 
  12.   (1868) 12 MIA 397.
  13.   U.C. Sarkar, Hindu Law:Its character and Evolution, 6 I.L.I 213 (1964).
  14.   A. CHAKERBARTI, NEHRU, HIS DEMOCRACY AND INDIA, 61 (1961).
  15.   A.B.M. HABIBULLAH, THE FOUNDATION OF MUSLIM RULE IN INDIA, (1945), quoted in V.D. KULSHRESHTHA, LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY, 16 (Eastern Book Company1989). 
  16.   U.N. GHOSHAL, STUDIES IN INDIAN HISTORY AND CULTURE 353-373 (1d. ed ).
  17.   V.A. SMITH, THE OXFORD HISTORY OF INDIA 371 (Oxford University Press 1923).
  18.  DESHTA, Supranote 3 at 13.
  19.  Muslim law is founded upon ‘Al-Quran’ which is believed by the musalmans to have existed from eternity, subsisting in the very essence of God. The Prophet Mohammad himself declared that it was revealed to him by the angel ‘Gabriel’ in various portions and at different times. Its texts are held by the Muslims to be decisive as being the words of God transmitted to man through the Prophet. Besides inculcating religion and theology, the Quran contains also passages which are applicable to jurisprudence, which form the principal basis of the ‘Sharia’. See, AQIL AHMAD, MOHAMMEDAN LAW 1-2 (23d ed. Central Law Agency 2009).
  20.  2 M. RAMA JOIS, LEGAL CONSTITUTIONAL HISTORY OF INDIA 4 (Universal Law 1990).
  21.  SARKAR, supra note 4, at 200.
  22.  DESHTA, supra note 3 at 13-14.
  23.  Note: The extent of the application of Islamic and secular  laws during the Muslim rule were as follows: (i). Civil law: a. The purely personal law of Islam relating to inheritance, succession, marital rights, guardianship, will, endow-ment, gift etc., was applied to Muslims only. b. The secular portion of the civil law relating to trade, barter, exchange, sale, contract, etc., was made applicable to muslims and non-muslims alike. (ii). The laws of the land: the system of taxation relating to land revenue, minerals, quarries, manufacture, agriculture, excise, merchandise, sea-borne trade, etc., were adopted from the people of this country by the muslim sovereigns of India with necessary modifications. These taxes and imports were levied on and realised from all races (including muslims) alike. (iii). the Religious and Personal laws of the non-muslims: suits involving points of personal law of the Hindus, were used to be decided with the aid of learned Hindu Pundits, in the case of other races, with the aid of their learned men. (iv). Criminal Law: The portion of the Islamic Canon law which deals with religious infringement, was applied to muslims only, such as drinking, marrying within prohibited degree, apostasy, etc. For such offences non-muslims were not liable to punishment under the laws of Shariat. (v). The Edicts and Ordinance: continued in the Farman’s and Dastur-ul-amal for the guidance of the officers of the state. They were the common law of the people of the country as opposed to the Canon law. These Qanuns were binding upon the judicial and executive officers and in compliance therewith the courts of common law were established in India. See WAHED HUSAIN, ADMINISTRATION OF JUSTICE DURING THE MUSLIM RULE IN INDIA 14-16 (Calcutta: University of Calcutta).
  24.  TAHIR MAHMOOD, UNIFORM CIVIL CODE: FICTIONS AND FACTS 43 (India and Islam Research Council 1995).
  25.  The Charter of 1726 issued to East India Company by King George I on September 24, 1726, established for the first time Mayor’s courts in the three Presidency towns of Calcutta, Madras and Bombay. These courts derived their authority from the king, and could therefore, be designated as Royal Courts. Thereafter, the Supreme Court of judicature was established at Calcutta, Madras and Bombay in 1774.  Subsequently by way of Indian High Courts Act, 1862, High Courts were established in Calcutta, Madras and Bombay. These High Courts so established became successors of the Supreme Court.
  26.   TAHIR MAHMOOD, MUSLIM PERSONAL LAW: ROLE OF THE STATE IN THE INDIAN SUBCONTINENT 2 (2d ed., All India Reporter 1983).
  27.  Id.

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