Escolar Documentos
Profissional Documentos
Cultura Documentos
Supervisor :
Dr. Mohd. Ahmad
Associate Professor
Faculty of Law,
University of Lucknow, Lucknow
Submitted By :
Prabodh Kumar Garg
Research Scholar
Faculty of Law,
University of Lucknow,
Lucknow
FACULTY OF LAW
UNIVERSITY OF LUCKNOW,
LUCKNOW, U.P. (INDIA)
ii
2014
Certificate
This is to certify that Mr. Prabodh Kumar Garg, Research
Scholar, Faculty of Law, University of Lucknow, Lucknow has
completed his thesis, titled "Muslim Personal Law, Uniform Civil
Code and Judicial Activism- A Critical Study" under my
supervision, for the award of degree of Ph.D. of University of
Lucknow, Lucknow. He is completed all formalities as required
under the ordinance and the thesis is forwarded for evaluation.
CONTENTS
PRELIMINARY
(i)
(ii)
(iii)
(iv)
(v)
Supervisor Certificate
Contents
Acknowledgment
Abbreviations
List of Cases
Chapter I
Introduction
Chapter II
Philosophy and Concept of Uniform Civil Code
(A)
(B)
(C)
Chapter III
Legislative History of Personal Laws in India
(A)
(B)
ii
(ii)
(C)
Chapter IV
Personal law and the Constitution of India
(A)
(B)
(C)
(D)
Chapter V
Judicial Response to the Philosophy of Uniform Civil Code
128-201
(A)
Prelude
(B)
Judicial Response to Polygamy
(C)
Judicial Response to Property and Succession
(D)
Judicial Response to Divorce and Maintenance
(E)
Some Celebrated Decisions
(i)
Narsu Appa Mali Case
(ii)
Shah Bano Case
(iii)
Jorden Diengdesh Case
(iv)
Sarla Mudgal Case
(v)
Ahmadabad Women Action Group Case
iii
Chapter VI
Conflict of Law and Uniform Civil Code
(A)
(B)
(C)
Chapter VII
The Muslim Women (Protection of Rights on Divorce) Act,
1986: Parliament Initiative After Shah-Bano Case
Chapter VIII
Conclusion & Suggestion
Appendix
(I)
(II)
(III)
(IV)
(V)
(VI)
(VII)
Bibliography
Acknowledgment
To the Almighty God, I bow my head in humility and reverence
for having gifted man with the faculty of reasoning and spirit of
discovery.
I wish to express my most sincere and profound gratitude to my
Supervisor Dr. Mohd. Ahamad
am
immensely
thankful
to
the
top
legal
luminaries,
Date
Place :
Abbreviation
A.C.
Appeal Cases
A.E.L.R.
A.I.R.
A.J.C.L.
A.L.J.
A.L.J.J.S.
A.P.
A.P.H.
All.
Allahabad
Apas.
Apasthamba
B.C.
Before Christ
B.H.C.
Baud.
Baudhyan
Beng. L.R.
Bom. L.R.J. :
Bom.
Bombay
Bom.
Bombay (A.I.R.)
Bomb. L.R.
C.L.Q.
Cal. W.N.
Cal.
Calcutta
Ch., Chap.
Chapter
Civ. L.J.
Cr.P.C.
D.B.
Division Bench
vii
D.M.C.
e.g.
Exampli Gratia
ed.
Edition
F.B.
Full Bench
Guj.
Gujarat
H.C.
High Court
H.L.R.
H.P.
Himanchal Pradesh
I.A.
Indian Appeals
i.e.
That is
I.L.R.
Ibid.
Ibidem
Id.
Idem
J.
Journal
J.I.L.I.
J.T.
Judgment Today
Kant.
Karnataka
Ker. L.T.
Ker.
Kerala
Ltd.
Limited
M.I.A.
M.L.J.
M.P.
Madhya Pradesh
Mad.
Madras
Mat. L.R.
N.O.C.
Note on Cases
Nag.
Nagpur
viii
op.cit
Opere Citato
Ori.
Orissa
P.& H.
P.C.
Privy Council
p.pp.
Page, pages
Pat.
Patna
Punj.
Punjab
Pvt.
Private
Raj.
Rajasthan
S.C.
S.C.J.
Sect.
Section
U.P.
Uttar Pradesh
U.S.
United States
Viz.
Videlicet
Vol.
Volume
vs.
Versus
W.L.R.
Yaj.
Yajnavalkya
List of Cases
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
Chapter I
Introduction
India is a country which abounds in personal laws and
each community has its own personal law. 1 The Indian Legal
System is based in part on the English common law system,
with respect to Muslim personal Law as applied in India, the
sources of law are Hanafi Fiqh along with some resort to other
schools, legislation, precedent, certain Judicial texts (both
classical and modern) that are considered authoritative and
custom.
During the British Raj the colonial courts were directed
to apply "indigenous legal norms" in matters relating to family
law and religion, with "native law officers", advising the court on
the determination of those norms. A number of Hanafi sources
(notably Al-Hidaya and the Fatawa Alamgiri) were translated
into English. The advisory positions of legal experts on Hindu
and Muslim Law were abolished in 1864. Legal commentators
on the development of the indigenous system of "AngloMohammadan" law (now more commonly referred to as IndoMuslim law) attach verifying degrees of significance to the
subsequently authoritative position of these works (and the
quality of the translation), the absence of Judicial Expertise in
1
favorably
for
its
enforcement.
The
latest
Vs.
Union of India 3
minorities.
Despite
constitutional
safeguards
all
possible
intensity
at
their
command.
3
4
In
this
waqf,
wills,
gifts,
pre-emption,
Dargah Khawaja Sahib act 1936, Dissolution of Muslim Marriage Act 1939,
Kazi Act 1880, MPL (Shariat) Application Act 1931, Muslim Dower Act 1920,
Muslman waqf validating Act 1913
religion
and
culture.
The
constitution
of
India
Sardar syedma Tahir Saifuddin Sahib Vs. state of Bombay, AIR 1962 SC 853
10
any official activity for framing a common civil code for the
country. A belief seems to have gained ground that it is for the
Muslim community to take a lead in the matter of reforms of
their Personal Law.
The latest controversial verdict of the Supreme Court in
Sarla Mudgal Case11 wherein the Supreme Court, preferred to
deal with the Uniform Civil Code, while therein the issue was
not raised for judicial treatment. The following issues were
raised before the Supreme Court:
a-
b-
Whether
dissolution of
c-
was
possible
without
the
first marriage?
d-
marriage
wife?
none of the issues was related to the Uniform Civil Code for
Judicial treatment. Nevertheless, for reason best known to
Justice Kuldip Singh and his companion Judge Mr. Justice R.M.
Sahai who suo-moto, picked up the Uniform Civil Code and
11
11
12
(b)
(c)
(d)
under the Indian scenario the present study has been divided
under eight chapters.
Chapter I- Introduction.
Chapter II deals with it philosophy and concept of
Uniform Civil Code. This chapter
13
14
Chapter II
Philosophy and Concept of Uniform Civil Code
The question of Uniform Civil Code is a very-very sensitive
as well as subjective and diversified issue considering the fact
that India is a country which has a multifarious race, caste and
community.12 Article 44 of the Indian Constitution enshrines
that the state shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India. Uniform
Civil Code of India is a term referring to the concept of an
overarching Civil Law Code in India. A uniform civil code
administers the same set of secular civil laws to govern all
people (citizen as well as non-citizen) irrespective of their
religion, race, caste, sex, place of birth or any of these. 13 This
12
13
16
14
Shastras.
The
Rau
Hindu
Law
Committee
was
men and women shall not be abused. Article 42 provides for just and humane
condition of work and maternity relief.
. The Lex Loci Report on October 1840 emphasized the importance and necessity
of uniformity in codification of Indian law relating to crimes, evidences, contract
etc., but it is recommended that personal law of Hindis and Muslims should be kept
outside such codification.
17
Muslims there
are
Sunnis, Shias,
Ismailis,
. Till the codification of Hindu Law in 1955 and 1956 the Hindu Women did not
enjoy equal rights along with the
Hindu men. Before 1955 polygamy was prevalent among the Hindus. The Hindu
women could not hold any property as its absolute owner except in the case of
Stridhana. She had only limited estate which was passed on to the heirs of the last
full male owner called reversionary on her death. In the matter of adoption a Hindu
woman had no right to adopt a child on her own. She could not be the natural
guardian of her children during the life her husband. These examples are only
illustrative in nature and not exhaustive. Even though the Hindu law has been
codified, certain discriminatory provisions still exist even today. For example a
Hindu woman is not a coparcener in Hindu coparceners except in a few states like
Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu. Consequently she is not
entitled to claim a share in the coparcenary. Similarly she has no right to partition
of a dwelling house even though she is a legal heir. Thus it is obvious that the
codification of personal law of Hindus has not succeeded completely in eradicating
the gender inequality.
18
females,
marriages
and
dissolution
of
marriages,
19
16
. By Hindu in India is meant the period from the beginning of the Indian History
(i.e. 1000 B.C.) to the establishment of an effective Muslim rule the early 12th
century. Many Hindu dynasties and families ruled side by side with the Muslim and
the British rulers until 1849. Gajendragadkar Secularism and the Constitution of
India, 25-26 (1971)
17
U.C. Sarkar, Hindu Law : Its Character and Evolution, 6, J.I.L.I. 213-222 (1964)
of A.S. Altekar, State and Government in Ancient India 55 (3rd ed. 1958)
U.C. Sarkar, Epochs in Hindu Legal History 23 (1958). (This work is cited here
in after as Sarkar, Epochs).
18
27
G.R. Rajgopal, "Uniform Civil Code or Dream ?" The Civil and Military Law
Journal (1985), Vol. 21. No. 1-2 p. 47
G.R. Rajgopal, "Uniform Civil Code or Dream ?" The Civil and Military Law
Journal (1985), Vol. 21. No. 1-2, pp. 46-47.
U.C. Sarkar, "Hindu Law : Its character and Evolution", 6 JILI (1964), p. 213.
33
U.C. Sarkar, "Hindu Law : Its character and Evolution", 6 JILI (1964), p. 214.
U.C. Sarkar, "Hindu Law : Its character and Evolution", 6 JILI (1964), p. 214.
Saletore, Ancient Indian Political Though and institutions (1963)
Brihaspati Upanishad, cited by Altekar, State and Government in Ancient India
(1958).
Altekar, State and Government in Ancient India, Motilal Banarsidas, New Delhi
(1958). p. 106.
primacy
over
the
state
and
religion.
It
will
be
an
35
36
37
38
Chakrabati Nehru, His Democracy and India, Thaker's Press Calcutta (1961) p.
61.
U.C. Sarkar, Hindu Law : Its Character and Evolution, 6, J.I.L.I. p. 213.
Altekar, State and Government in Ancient India, Motilal Banarsidas, New Delhi
(1958). p. 55.
Asaf A. A. Fyzee, Outlines of Mohammedan law 1-2 (3rd., 1964).
James Bryce, 2 Studies in History and Jurisprudence 237 (1901), Said
Ramadau, Islamic Law. Its Scope and Equity 15-16, 27-30, 42-47 (1961).
41
42
43
Grady,
"enjoyed under the Mussulman Government, a complete
indulgence with regard to the rites the ceremonies of their
religion, as well with respect to the various privileges and
immunities in matters of property and in all other
temporal concerns the Mussulman law gave the rule of
decision excepting where both parties were Hindus, in
which case the point was referred to the judgment of
Pundits of Hindu lawyers."44
Von Kremer expressed a similar view. "Non-Muslim
communities", he wrote, "enjoyed an almost complete autonomy,
for the government placed in their hands the independent
management of their internal affairs, and their religious leaders
exercised judicial functions in cases that concerned their coreligionists only."45
(1961). p. 143.
Hamilton and Grady (ed.), Hedaya cited in Sarkar, Epochs at 231.
Von Kremer, Culturgeschichte des Orients den Chalifen p. 183 (1875).
U.C. Sarkar, Hindu Law : Its Character and Evolution, 6, J.I.L.I. p. 209.
to
Muslims
and
non-Muslims.47
Sarkar,
however,
47
48
There were two exception viz., oaths and ordeals. The Muslims had to swear in
the name of God and the Hindus had to swear by the cow : Fatwa-a-Alamgiri,
Baillie's Digest 748.
U.C. Sarkar, Hindu Law : Its Character and Evolution, 6, J.I.L.I. p. 209.
C. British Period
(i) Prelude
In a multicultural society like India, there is a divergent
system of personal laws. When the British established their
hegemony over India, they more or less continued the Muslim
pattern of judicial administration. But in the course of time, the
Britishers consolidated their position and they completely
changed the criminal law. They introduced their own system to
deal with the various matters of civil law.49 Legislative immunity
was granted to certain specified topics of Hindus and Muslims
laws, which, they considered, were deeply interwoven with
religion.50 The Britishers did not want to hurt the religious
susceptibilities of the Indians. Interference in religious matters,
they considered, was not at all conducive to their friendly trade
with Hindus and Muslims or their political stability. 51 The
Second Law Commission of India, 1833, constituted under the
Presidentship of the Master of the Roll observed.52
"It is our opinion that no portion either of the Mohammedan
law or of Hindu law ought to be enacted as such in any
form by a British legislation.... The Hindu law and
Mohammedan law derived their authority respectively from
49
50
51
52
of
the
company,
from
commercial
concerns
to
58
natives.
However
the
criminal
jurisdiction
in
each
The
marriage,
caste,
debt,
disputed
accounts,
usage and institution, the laws of the Koran and Shastras were
to be applied, in respect
60
61
62
the
word
"succession"
was
added
to
the
word
caste,
and
all
religious
usages
and
institutions,
63
64
65
Tahir Mohammood, An Indian Civil Code and Islamic Law, (1976), p. 100.
Geo, II C. 70, Sec. 18.
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). p.
168.
67
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). p.p.
582-83.
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987) p.
580.
69
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987) p.
587.
5 & 6 Geo. V.C. 61.
the Charter Act of 1833. Second was the far reaching influence
of Bentham.70
The purpose of codification appears to have been to
achieve certainty and uniformity. In 1832, Lord Macaulay was
appointed as Commissioner of the Board of Control for India.
Subsequently, he became the Secretary of the Board of Control.
Lord Macaulay was the members of the House of Commons
when the Charter Bill was being debated. During the course of
the second reading of the Charter Bill, he made a strong plea for
a codification of Indian laws. Perhaps as a result thereof, he was
made the law member and subsequently the Chairman of the
First Law Commission of India set up in 1833 Lord Macaulay
observed:
"We must know that respect must be paid to the feelings
generated by differences of religion, of nation and caste.
Much, I am persuaded, may be done to assimilate the
different system of laws without wounding those feelings.
But whether was assimilate those systems or not, let us
ascertain them, let us digest them. We propose no rash
innovation, we wish to give no shock to the prejudices of
any part of our subjects... Our principle is simply this
70
Uniformity where you can have it- diversity where you must
have but in all cases certainty.71
By passing the Charter Act, 1853, the Second Law
Commission put forward polices and principles of future
codification in India. In 1861 another Law Commission was
appointed for the preparation of draft code regarding Civil Law
in India. On February 11, 1879, the Fourth Law Commission
was appointed with goal of codifying all the substantial law
prevailing in British India. By the efforts of various Law
Commissions criminal Laws were codified by 1898 and came
into force and are applicable to all India irrespective of their
religious belief. But, there was no Common Civil Code. 72 A
number of statues were passed to achieve the object underlined
by T.B. Macaulay. The caste Disabilities Removal Act, 1850, the
Indian Contract Act, 1872, the Transfer of the Property Act,
1882. The Indian Evidence Act, 1872, the Indian Succession
Act, 1865, and the Child Marriage Restraint Act, 1928 are some
of the more important legislations. These statues applied alike
to all the people irrespective of their religious belief. But the
effect of some of the provisions laid down by these statues was
to limit the operation of the Hindu and Muslim laws in the
matters governed by them.
71
72
deprived
of
caste,
such
renunciation,
exclusion
or
73
74
as
abettors
of
suicide.77
Thugi
was
another
76
77
78
before the passing of the Act, they were opposed by the majority
of the Hindu on religious grounds.81 Then came the Hindu
Women's Right to Property Act, 1937 conferring on Hindu
Women better rights of property than they had previously. This
Act made revolutionary changes in the area of Hindu law of
joint family, coparcenary, partition, inheritance etc. The Indian
Majority Act, 1875, fixed the age of majority on completion of
the eighteenth year. It applied to Hindu in all matters except
marriage, divorce and adoption. In 1929 Child Marriage
Restraint Act was passed to discourage the practice of existing
child marriages. The minimum marriage age for male was fixed
eighteen years whereas for a female it was fifteen years.82 In
1946, the Hindu Married Women's Rights to Separate Residence
and Maintenance Act was enacted enabling a Hindu women to
claim separate residence and maintenance from the husband
under certain circumstances mentioned in the Act even without
dissolving the marriage.83 Many other Acts84 made considerable
inroads on the principles of succession and inheritance, which
were regarded as binding by the old Hindu Law.
81
82
83
84
86
The Hindu Inheritance (Removal of Disabilities) Act, 1928 and The Hindu Law
of Inheritance (Amendment) Act, 1929, p. 293.
The Hindu Inheritance (Removal of Disabilities) Act, 1928 and The Hindu Law
of Inheritance (Amendment) Act, 1929, p. 293.
judicial
separation
from
her
husband
in
certain
90
91
92
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). pp.
617-18.
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). pp.
617-18.
Danial Latifi , "Change and the Muslim Law," in Tahir Mahmood, ed., Islamic
Law in Modern India, (1972) pp. 106-07.
Sharifa Hamid Ali and Jahan Ara Shah Nawaz were among the leaders of the
Muslim women's movement for this Bill.
93
94
95
Tahir Mahmood, An Indian Civil Code (1976), pp. 59-61, H. A. Gani, Reform of
Muslim Personal Law, (1988) pp. 18-19.
Tahir Mahmood, Muslim Personal Law, (1977) pp. 54-57.
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). p.
606.
Chapter III
Legislative History of Personal Law in India
Personal laws have traditionally been regarded to be
beyond the purview of legislature because they are very much
identified with religion or religious beliefs. The very nature of
personal laws is such that the legislature intentionally hesitates
in interfering or parting with them. However, in different periods
legislative enactments have been made in this area also. Some
of these tend to modify and some endeavour to restore the
personal laws.
This chapter presents the legislative history of personal
laws in India. For the sake of convenience, the discussion has
been meticulously arranged into three heads, namely-Hindu
Law and the Legislature, Muslim Law and the Legislature and
Christian and Parsi Laws and the Legislature. But before that a
brief general discussion appears to be necessary.
In the early nineteenth century, the legal system of India
was comparatively full of chaos and confusion. Infact, different
laws were applied by village, district and provincial courts.
While in many matters of civil law, Hindus and Muslims were
governed by their own laws, non-Hindus and non-Muslims were
governed by another set up laws.96
96
48
49
98
50
purpose
interpretation
of
growth
and
of
law
assimilation
were
of
the
processes
customs.
After
of
the
M.P. Jain, Outlines of Indian Legal History, p. 483. (4th ed. 1981).
M.P. Jain, Outlines of Indian Legal History, p. 483. (4th ed. 1981).
Gajendragadkar, The Hindu Code Bill, p. 53 Bom. L.R. (1951).
M.P. Jain, Outlines of Indian Legal History, p. 484.
enlightened
and
progressive
elements
of
the
Hindu
innovations
as
encroaching
upon
their
religious
practices.103
Hindu
women.
The
prejudices
of
some
of
the
104
105
106
mentioned in the Act.107 This Act has now been repealed by the
Hindu Adoption and Maintenance Act, 1956 (Act 78 of 1956).108
Another set of statutes were enacted to eradicate some
highly objectionable practices which had come to have legal and
customary sanctions amongst the Hindus. The first step in this
regard was the abolition of the inhuman practices of Sati. To
discourage the practice of child marriage, the Child Marriage
Restraint Act was passed in 1929.
There are few other legislations passed by the British
administration which effected remarkable changes in the old
Hindu joint family law and the laws of inheritance. These Acts
made considerable inroads on the principles of succession and
inheritance previously regarded as binding by the old Hindu
law.109 The Hindu Inheritance (Removal of Disabilities) Act,
1928, laid down that no person, except one who had been
lunatic or idiot from birth, would be excluded from inheritance
by reason only of his disease, deformity, physical or mental
defect. The Act applies only of Mitakshara school and not to
Dayabhaga school. The Hindu Law of Inheritance (Amendment)
Act of 1929 altered the order of the intestate succession under
the Mitakshara law with a view to prefer certain near cognates
to agnates. Thus sons daughter, daughters daughter, sister and
107
108
109
Before
the
passing
of
the
Act,
under
the
112
113
M.P. Jain, Outlines of Indian Legal History, pp. 489-90 (4th ed. 1981).
R.P. Anand, Hindu Law in Historical Perspective p. 32, (1966) II SCJ.
R.P. Anand, Hindu Law in Historical Perspective p. 33, (1966) II SCJ.
Setalvad, cited by M. P. Jain, Supra n. 4, p. 490.
was that the Hindu Code Bill came to be divided into different
parts and passed one by one in the form of four different Act,
1956; Hindu Minority and Guardianship Act 1956, and Hindu
Succession Act, 1956; Hindu Minority and Guardianship Act,
1956; and Hindu Adoption and Maintenance Act, 1956. Despite
strong protests of the orthodox and conservatives, 118 these
enactments struck down the old out-moded law and modified it
and changed it according to the changed spirit of the time. 119
Nevertheless, the present system has its roots in the past and
derives its mains principles from the age-old dharma law.120
The effect of these four legislations has been that they
have introduced considerable departure from the traditional
Hindu law. For example, in the area of marriage, monogamy and
divorce have been introduced. Both of these were unknown to
the
old
Hindu
law.
Such
western
concepts
as
judicial
119
120
121
to
Jains,
Sikhs,
Budhists
and
Hindus
of
all
Muslim
personal
law
was
of
non-interference.
The
The
legislations
concerning
Muslim
personal
law
(II)
123
124
126
127
other
family
affairs
Muslims
would
be
governed
Punjabi
Muslims
by
this
legislation,
the
case take the place of the Muslim Personal Law. The matter
has been repeatedly agitated in the press as well as on the
platform. The Jamiat-ul-Ulema-i-Hindu, the greatest Muslim
religious body has supported the demand and invited the
attention of all concerned to the urgent necessity of
introducing a measure to this effect. Customary Law is a
misnomer in as much as it has not any sound basis to
stand upon and is very much liable to frequent changes
and cannot be expected to attain at any time in future the
certainty and definiteness which must be the characteristic
of all laws. The status of the Muslim women under the socalled Customary Law is simply disgraceful. As the Muslim
Women Organisations have condemned the Customary
Law, as it adversely affected their rights, they demand
that the Muslim Personal law (Shariat) should be made
applicable to them. The introduction of the Muslim personal
Law will automatically raise them to the position which
they are naturally entitled. In addition to this, the present
measure, if enacted, would have very salutary effect on
society, because it would ensure certainty and definiteness
in the mutual rights and obligations of the public. Muslim
Personal Law (Shariat) exists in the form of a veritable code
and is too well known to admit of any doubt or to entail
also
on
the
makers
minor
children
and
their
descendants. These matter are: (i) adoption, (ii) wills and (iii)
legacies.132 Under the Shariat Bills as drafted by Abdullah
Layalpuri, application of Muslim personal law to adoption, will
and legacies, too, was to be obligatory. The present provision
relating to these was enacted on the basis of Jinnahs
amendments, which he had moved in support of the objections
129
130
131
132
134
Muslims Zamindars in some parts of India used to nominate one of their sons or
other relatives or an adopted son as the successor who would inherit the whole
property to the exclusion of all heirs. Such arrangement would be impossible if
Islamic law were to apply.
Tahir Mahmood, Legislation for the Muslims in British India in An Indian
Civil code and Islamic Law p. 58 (1976, Tripathi; Bom.).
Bengal
Muhammadan
Marriages
and
Divorces
139
In Orissa this Act has been re-enacted as the Orissa Muhammadan Marriages and
Divorces Registration Act, 1949.
in
the
province.
Later
in
1932,
when
the
exorbitant
wealth.141
In
the
beginning
the
1964;
The
Public
Waqfs
(Extension
of
Limitation)
Amendment Act, 1959; The U.P. Muslim Waqf Act, 1960; The
U.P.
Muslim
Waqf
(Amendment)
Act,
1964;
The
Waqf
148
Dr. Saleem Akhtar, Shah Bano Judgment in Islamic Perspective, p. 341 (1st ed.,
1994 Kitab Bhavan New Delhi.).
that was passed as a result of this, was the Parsi Marriage and
Divorce Act, 1865.
This Parsi Marriage and Divorce Act, 1865, was based on
the Matrimonial Causes Act, 1857, of England and its principal
effect was to make Parsi marriage monogamous. Since then the
circumstances altered. Moreover the Parsi Marriage and Divorce
Act, 1865, was itself defective in many respects. Adultery by
itself or adultery coupled with some other offence, were the only
grounds for divorce under that Act. On no other ground could
marriage be dissolved under it. Again a section of the Act
empowered only the wife to ask for judicial separation on the
ground of cruelty, or because her husband brought a prostitute
in his house; the husband had no remedy by way of seeking
judicial separation. To remedy these defects the present Act, i.e.
the Parsi Marriage and Divorce Act, 1936, was enacted. In
addition to this Act, the Parsi have their own separate law of
inheritance contained in the Indian Succession Act, 1925,
which is somewhat different from the rest of the Succession
Act.151
There is also the Special Marriage Act, 1954, which is a
secular code of marriage law of a general nature under which
any two Indians irrespective of their religion may marry. A
151
M.P. Jain, Outlines of Indian Legal History, p. 491. (4th ed. 1981).
152
M.P. Jain, Outlines of Indian Legal History, p. 491. (4th ed. 1981).
Chapter IV
Personal Law and the Constitution of India
The Constitution of India is the Supreme Law of the Land.
It is not a document which sets out the frame-work and the
principal functions of the organs of the Government of a State,
but it also lays down the basic principles on the touchstone of
which the legality and constitutionality of other laws are
determined in the prevailing socio-economic and political trends
or requirement. It is because of this, the relationship between
the Constitution of India and personal laws, becomes
pertinent to be discussed; the same has been attempted in the
instant chapter.
For the sake of clarity this chapter deals with the
Personal Laws and the Constituent Assembly, Personal Laws
and Legislative Powers, Personal Laws and the Fundamental
Rights and Personal Laws and Article 44.
A.
Personal
Laws
and
the
Indian
Constituent
Assembly
Right after independence the question of the position of
personal laws got entangled into the whirlpool of national
politics. On the floor of the Constituent Assembly, for about two
years, the issue suffered convulsions caused by the utterances
75
Tahir Mahmood, Personal Laws in Crisis, p. 3 (1st Ed. New Delhi, 1986).
V Constituent Assembly Debates, p. 213 (1947).
76
155
156
157
77
158
159
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 111, (1949).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 111, (1949).
by treaties or
regulating
secular
activities
associated
with
162
164
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates pp 543, (1949).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates pp 543, (1949).
community
favoured
uniformity
of
civil
laws;
165
166
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates pp 544-46, (1949).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 546, (1949).
ii.
iii.
iv.
v.
167
168
vii.
personal
laws
of
any
community
which
has
169
170
171
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates pp 549-550, (1949).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 540, (1949).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 541, (1949).
sought to secure a
173
174
175
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates pp 550-52, (1949).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 552, (1949).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 721, (1949).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 721, (1949).
was
strongly
supported
by
Syed
Kamaluddin
who
176
177
178
179
180
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 721, (1949).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 721, (1949).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates pp. 761-62, (1949).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 781, (1949).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 781, (1949).
182
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates pp. 781-82, (1949).
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 830, (1949).
of the
territory
of
India
immediately
before
the
amended by a
any
such
adaptation
or
modification
shall
not
be
184
Tahir Mahood, Muslim Personal Law, Role of the State in the Subcontinent, p.
97 (1977).
AIR 1941 FC 16
the
stipulated
period
of
three
years
from
the
proceedings
were
immediately
before
the
191
192
nearly
the
entire
gamut
of
subjects
which
before. Apart
any
law
which
takes
away
or
abridges
the
Fundamental Rights.
any
of this Constitution
and not
Articles 14&15.
Clause 3(a).
particular area200
200
201
Clause 3(b).
AIR 1952 Bom. 84
ii.
iii.
iv.
in the Constitution
It is clear from the language of article 372 (1) and (2) that
the expression laws in force used in this article does not
include personal law, as article 372 entitles the President
to make adaptations and modifications to law in force by
way of rpeal or amendment, and it cannot be contended
that it was intended by this provision to authorize the
President to make alterations and adaptations in the
personal laws of any community.
The Chief Justice concluded his arguments observing
Although the point urged before us is not free from
difficulty on the whole, after a careful consideration of the
various provisions of the Constitution we have come to the
conclusion of personal law is not included in the expression
law in force used in article 13 (1)202
Justice Gajendradkar agreed with all arguments of Chief
laws, that is
of
Madras,205
Punjab206,
Karnataka207,
Madhya
Pradesh208 and Manipur.209 Until this day, the court has said
that either the continued application of separate personal laws
is, or the exclusive reform of any one of them could be, ultra
virus part III of the Constitution. In 1959 the Supreme Court of
India of India expressed an opinion that application of different
endowment
administration
laws
of
different
religious
personal laws.216
This judgment has been vehemently criticized by Justice
A.M. Bhattacharjee in his M.N. Bose Lectures of 1981 217. It is,
however, submitted
215
216
217
three
writ
petitions
which
challenged
the
222
of
particular
community
itself
be
given
any
to
interference
with
freedom
of
conscience
or
Badruddin v. Aisha (1957) , ALJ 300; Ram Prasad v. State of U.P., AIR 1957
All. 141.
is
very
desirable
and
praise
worthy
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. pp. 86-87.
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. pp. 86-87.
associated
with
religion
than
inheritance
and
231
Tahir Mahmood, Personal Laws in Crisis, p. 20 (1st Ed. New Delhi, 1986).
or
indirectly
permitting,
assisting,
or
enforcing
Tahir Mahmood, Personal Laws in Crisis, p. 20 (1st Ed. New Delhi, 1986).
Article
13
of
the
constitution
every
law
of
matrimonial
rights,
succession,
partition,
234
This is with the nation that judiciary is also state under Art. 12 of the
Constitution, a principle which is not well established.
Meneka Gandhi v. Union of India, 1978 1 (SCC) 248
235
AIR 1950 Bom. L. This is view is criticized by A.M. Bhattacharji "Personal Law
and State Action" AIR 1982 Jour, p. 113.
law
through
any
provision
of
Part
III
of
the
Constitution.
In fact, the challenged legislation was a measure of social
reform as the court correctly viewed, for equalizing of rights of
males and females in Hindu community. The comparison
between Hindu and Muslims could have been answered in this
way: as distinct social, cultural and historical reasons are
connected with personal law of each of the communities, large
scale reforms at one stroke affecting all communities cannot be
enacted, but piecemeal and gradual reforms will have to be
enacted reasonably choosing that community which is mature
and ready to receive the reforms. The Constituent Assembly
Debates on Art. 44, hint at the criterion that is to be adopted in
this matter. When the basis of classification is explicable with
convincing
reasons
from
the
sociological
and
cultural
In
this
case
after
the
death
of
Swami
late
Atmavivekanda.
Srikrishna
Singh,
son
of
Atma
237
Unjust,
discriminatory
and
anti-liberation
Singh,243
the
Delhi
High
Court
upheld
the
242
243
244
personal law as law did not figure in these cases. The question
has become a non-issue in these cases.
About the desirability of applying Part III provision to
peruse the personal laws there can hardly be any meaningful
objection. The principle of equality, liberty and security have
great
relevance
in
sphere
where
exploitation
and
convictions
of
people.246
In
the
backdrop
of
happens
to
be
the
most
controversial,
247
248
249
250
251
252
scholars have rightly observed that the test for a just social
order lies in a just and fair family law.
The secular power of the modern welfare state, among
other things, aims at establishing social relations within and
outside the family on the non-exploitative plane of social justice
and
quality.
The
ethical
considerations
of
familial
or
against
the
well
intentioned,
reformist
254
Eugenue Ehrlich is advocated the idea of "living law of the people' which
outpace the state made law. He held the view that the centre of gravity of legal
development lies not in legislation nor in juristic science nor in judicial decisions
but in society itself. However his concept of 'living law' was one which
experienced permanent evolution, rather than embodiment of static rules. If
customary person law does not generate and consolidate the forces of change and
consequently becomes static and outmoded, the constitutional law and legislative
reforms can reform them and make them live upto the expectations of evolving
times. For a critical treatment of Ehrlich's idea see W. Friedmann, Legal Theory, p.
248-252 (Fifth ed. 1967).
K, Suibba Rao, Social Justice and Law, p. 1
the
good
things
of
the
society,
amenities
and
256
257
R.W.M. Dias, Jurisprudence pp. 81-82; Also see John Rawis, A Theory of
Justice pp., 3-4 (1972).
Nehru's Speeches Vol. III p. 444 Speech in Lok Sabha 16.09.1955 in the context
of supporting the concept of divorce.
Steven Vago, Law and Society, p. 265-67 (1931).
of
non-interference
with
personal
law
and
mechanical
usages
like
polygamy,
unilateral
divorce,
non-
inheritance,
civil
and
criminal
law,
political
The
258
259
260
261
and
263
264
M. Rama Jois, Legal and Constitutional History of India, pp. 3-10. (Vol. 1,
1984).
M. Rama Jois, Legal and Constitutional History of India, pp 3-10 (Vol. 1, 1984).
Neil, B.E., Bailliee, Digest of Mohummudan Law pp. 62-65 (1957).
266
267
268
Duncan J.M. Derret, Religion Law and the State in India, p. 117 (1968); Prof.
S.S. Nigam considers that the wide range of personal law is essentially of civil
nature and matter which are inseparable from religious beliefs and usages in G.S.
Sharma (ed.) Secularism; Its implications for law and life in India, p. 153 (1966).
It is only in the inspectional stage of Islamic law that what James Bryce viewed
becomes a correct explanation. Bryce had viewed , 'In Islam Law is Religion and
Religion is Law, Because both have the same source and equal authority, being
both contained in the same divine revelation.' James Bryce, Studies in History and
Jurisprudence, Vol. II, p. 237 (1901).
K.M. Munshi in Constituent Assembly Debates, Vol. VII, p. 548
Krishanaswamy Ayyar, On the Muslim (Protection of Rights on Divorce)
Act, 1986, Eastern Book Company, Lucknow (1987). p. 549.
change
means",
observes
Steven
Vago,
economics,
education,
religion,
family
life,
272
273
274
275
which
includes
the
directives
for
economic
to
work,
protection
against
moral
and
material
276
277
On August 15, 1947 Nehru said, "Long years ago we made a Tryst with destiny,
and now the time comes when we shall redeem out pledge, not wholly or in full
measure, but very substantially . The achievement we celebrate today is but a
step, an opening of opportunity to the greater triumphs and achievement that await
us", J. Nehru, Independence and After" p. 3-6.
The criticisms by some of the members of constituent assembly as summarized
in K.C. Markandan, Directive Pirective, principle in the Indian Constitution, pp.
123-1125. (1966).
is
counter
balanced
by
the
high
appeal
of
social
reforms.
in
the
governance of the state" and "it shall be the duty of the State" in
Art. 37 point out the normative character of the Directive
principles. This constitutional intention should not go waste for
the sole reason that courts of law cannot be resorted to for the
enforcement of Directive Principles.278 Because of the normative
character of Art. 37, at least it should be regarded that State
action
opposed
to
any
of
the
Directive
Principle
is
279
Thus,
the
of implementing
choice
for
the
state
the Directive
is
between
sanction
against
non
implementation
of
the
280
281
282
Constituent Assembly Debates Vol. VII pp. 547-550. Different systems of Hindu
law in different parts of India also had posed the problem of diversity. As Derret
point out demand, for unity, certainty, equality of sexes and elimination of
restrictive and antique rules seemed to be the principal reasons for codification.
Derret, As Justice Tulzapurkar has put it "In the context of fighting the poison of
communalism the relevance of communalism the relevance of uniform civil code
cannot be disputed, in facts it will provide a juristic solution to the communal
problem by striking at its root cause. Nay, it will foster secular forces, so essential
in achieving social justice and common nationality. Tulzapurkar, J. ' Uniform Civil
Code' AIR Journal p. 17.
that
major
segment
of
its
population
is
289
The socially progressive aspects of Hindu code bill convinced Nehru to regard
its as a symbol of progress inspite of the reactionary view in the social domain.
According to him the spirit of liberation underlying the code made the Hindu
people especially women folk free from out grown customs and shackles which
had bound them. See Donald Eugene Smith.
This is clear from the views of Mr. Naziruddin Ahmed, Mehboob Ali Baig,
Mohammad Ismail Saheb and Hussian Imam C.A.D. Vo. VII p. 540-550.
293
Talzapurkar.
V.R. Krishna Iyer, Social Mission of Law, p. 187 (1976)
Quran, sura 4:3
Quran, sura 2, 226 and V 2285 and v. 237.
AIR 1979 SC 362
AIR 1985 SC 955
Sec. 4(1)
Sec. 4 (2)
the
directives
amount
to
reasonable
306
Tulzapurkar, p.18
Generally V. Krishan Iyer, Muslim Women Protection Act (1987).
State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
F.N. Balsara v. State of Bombay, AIR 195 SC 318, M.H. Qureshi v. State of
Bihar, 1959 SCR 629.
Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1463, Chandrabhavan v.
State of Mysore, AIR 1970 SC 2042; Minerva Mills v. Union of India (1980) SCC
The
principle
of
avoiding
moral
and
material
civil
code
this
approach
can
contributes
very
considerably.
307
308
309
310
625.
Randhir Singh v. Union of India, AIR 1982 S.C. 879.
Kaskmikant Pandey v. Union of India 1987 1 SCJ., P.U.D.R. v. Union of India
AIR 1982 SC
D.S. Nakara v. Union of India, AIR 1983 SC 130.
National Textile Workers Union v. Ramakrishna, AIR 1983 SC 75.
In India, personal laws are the distinct products of multicultural system evolved through generations. Even though the
relation between personal law and religious is considerable
remote, because of sentimental reverence of people to the 'living
law' of tradition, the task of attaining social justice in this
sphere is resisted by some orthodox sections of the society
directly or indirectly. However, the majority of the population
has favourably responded to the introduction of social reforms
in their personal law. But the experience of the law maker in the
direction of Uniform Civil Code is that effecting changes even in
an incremental manner is very difficult. In fact, Uniform Civil
Code in its strict sense may not be so much essential as
compared 'o the need of attaining social justice in each and
every enclave of personal law. The intention of the constitution
makers in enacting Art. 44 was to orient the state action
towards attaining social justice in the familial relations. As the
national social justice in its broad contours has the same
accentuation and insistence, ultimately social justice in each
and every sphere will lead to attain of Uniform Civil Code or a
situation nearer to it.
The disappointing factor in this area is the total neglect of
the goal by the legislature. In the area of reforming Muslim
Personal Law, no sincere effort is made by the State to adopt the
Nehruian two pronnged approach of implementing the law and
educating the public opinion in favour of it simultaneously. On
Friedman W., Nehru's Speeches Vol. III p. 444 Speech in Lok Sabha 16.09.1955
in the context of supporting the concept of divorce.
The need of
justice.312
in
personal
law
and
increased
judicial
313
314
In Muslim law it is recognized that Ijma i.e. consensus of the faithful is a source
of law. Since enlightened and collective opinion of the community has a
determining say in providing for adaptation and change, the role of educating
public opinion in favour just and fair principles in family law is essential Amir Ali,
Mohammadan Law.
Tulzapurkar, J. is of the opinion that there is the need for constitutional
amendment permitting reforms in personal law notwithstanding the guarantee of
freedom of religion. It is submitted, Art. 25(2) (b) is quite elastic to allow such
reforms even if it is considered that personal law is part of the religion. But it is
generally accepted that personal law is remotely connected with religion.
Prof. A.B. Shah is of this opinion in article as cited by Tulzapurkar J, Quran, sura
2, 226 and V 2285 and v. 237.
317
44
which
envisages
uniform
civil
code.
The
Chapter V
Judicial Response to the Philosophy of
Uniform Civil Code
A. Prelude
In democratic countries, the judiciary is given a place of
greater significance because the courts constitute a disputeresolving mechanism. And, in case of written constitution the
judiciary has more specific and special role to play. In the
countries having written constitution, courts are given power of
declaring any law or administrative action which may be
inconsistent with constitution as unconstitutional and hence
void. Like other democratic countries the constitution of India is
also a member of the family of written constitutions. It seeks to
establish a secular polity founded on social justice. But at the
same time it also guarantees to all persons equally freedom of
conscience and the right to profess, practice and propagate
religion and to religion denominations; the right to establish
and maintain religious and charitable institutions, manage
their religious affairs and own property and administer property
according to law. Although their rights are subject to reasonable
restrictions but if they come in the way of the government while
implementing the constitutional mandate contained in Article
144
Article 12 (Part III). Article 36 says that State in Part IV has the same meaning
as in Part III.
civil code was the State of Bomaby v.Narasu Appa Mali.319 In this
case the Bombay Prevention of Hindu Bigamous Marriages Act,
1946 was challenged and was held intra vires the Constitution.
The Act has imposed serve penalties on a Hindu for contracting
a bigamous marriage. In this case the validity of the abolition of
polygamy in particular communities only was challenged.
Former Chief Justice M.C. Chagla of the Bombay High Court
had observed:320
"One community might be prepared
social reform; another may not yet be prepared for it, and
Article 14 does not lay down that any legislation that the
State may embark upon must necessarily by of an all
embracing character. The State may right decide to bring
about social reform by stages and the stages may be
territorial or they may be community wise. From these
considerations it follow that there is a discrimination
against the Hindu in the applicability of the Hindu
Bigamous Marriage Act, the discrimination is not based
only upon ground of bigamous marriages is not uniform,
the difference and distinction is not arbitrary or capricious,
but is based upon reasonable grounds."
319
320
146
heavily
on
Davis v. Beason.322
In
this
case
the
consent
as
properly
the
subjects
of
punitive
147
148
149
shows this
physical
the
Introduction of the Uniform Civil Code and rightly held that the
institution of polygamy was not based on necessity. If there was
no son out of first marriage then instead of taking recourse to
second marriage the proper course was adoption of a son. As for
the contention regarding discrimination between Hindus and
Muslims, the court very clearly observed that the classification
was reasonable and did not violated Article 14 of the
Constitution.327 The court did not only uphold the validity of the
legislation but emphasized that the said legislation must be
enforced in its true sprit as an essential step to secure for the
citizens a Uniform Civil Code throughout the territory of
India.328
325
326
327
328
State of Bomaby v.Narasu Appa Mali, AIR 1952 Bom. pp. 91-92
AIR 1952 Bom. 84
State of Bomaby v.Narasu Appa Mali, AIR 1952 Bom. 87
State of Bomaby v.Narasu Appa Mali, AIR 1952 Bom.. 95
150
if further
religious
practices
were
subject
to
State
regulations. The court was the view that State was empowered
to regulate religious practices through appropriate legislation
whenever it was in the interest of social welfare and aimed at
the reforms intended to by the wise founding-fathers of the
329
330
331
332
333
151
Constitution. Keeping
in
Uniform Civil Code the Court upheld the Madras Hindu (Bigamy
and Divorce) Act, 1949 and declared it Constitutional.334
The Allahabad High Court came across the same issue in
Ram Prasad v. State of U.P.,335 In the case rule 27 of The Uttar
Pradesh Government Servant Conduct Rules, 1946 which
provided that "no government servant who has a wife shall
contact another marriage without first obtaining the permission
of the Government, notwithstanding that such subsequent
marriage is permissible under the personal law for the time
being applicable to him" was challenged. Section 5 (1) of Hindu
Marriage Act, 1955 was also challenged on the ground that the
provisions contained in this section were violative to Article 25
of the Constitution and hence unconstitutional. The petitioner
wanted to re-marry for the sake of a son. The petitioner
supported his case by citing the essential parts of the Hindu
religious books which permitted to marry a second wife, in the
presence of the first, if his first wife was incapable of bearing a
male child. Justice Mehrotra rejected the contention of the
petitioner and upheld the validity of Section 5(1) of Hindu
Marriage Act, 1955 and Rule 27 of Uttar Pradesh Government
Service Conduct Rules 1946. He held 336 "Hindu religion
permitted a second marriage in certain circumstances but it
334
335
336
152
to
153
Civil Court to compel the first wife to live with him against her
wishes, in that case the circumstances in which his second
marriage took place are relevant and material in deciding
whether his conduct in taking a second wife was in itself an act
of cruelty to the first."
Coming one step ahead the learned Justice observed339:
"the onus today would be on the husband who takes a
second life to explain his action and prove that his taking a
second wife involved no insult or cruelty to the first ..
Under modern condition it would be inequitable for the
court to compel her against her wishes to live with such a
husband. There are no divergent forms of cruelty such as
Muslim cruelty, Hindu cruelty, Hindu cruelty or Christian
cruelty but the concept of cruelty is based on universal and
humanitarian standards."
In Shahulameedu v. Subaida Beevi,340 Krishna Iyer, J.
while upholding the rights of a Muslim wife to cohabit with her
husband who had taken a second wife yet held her entitled to
claim maintenance under section 488 of the (old) Criminal
Procedure Code. He said that the view that the Muslim
husband enjoyed an arbitrary, unilateral power to inflict divorce
did not accord with Islamic injunctions. He went on to plead for
monogamy among the Muslims. He referred
339
340
to the Muslim
154
monogamy
342
Like Syria Tunisia, Morocco, Pakistan, Iran and Islamic Republic of the
erstwhile Soviet Union.
(1989) A.P. I HLR 183; (1989) 1 DMC 109
155
156
Smt. Gurdial Kuar v. Mangal Singh, AIR 1968 Punj. pp. 398-99. .
AIR 1917 All. 366.
157
in
India
before
the
commencement
of
the
the
arguments
as
submitted
before
the
court
observed :347
347
Mohammad Abu Zafar Mohammad Ibrahim v. Israr Ahmad and others , AIR
1917 All. pp. 368-69.
158
159
348
160
349
161
350
cancelled
and
the
respondents
be
restrained
from
350
162
163
delivering the judgment for the court held: 351 In the case before
us both the laws relate to intestate succession. Though the
Travancore Regulation is confined to Christians in that State
but the filed of the legislation succession. Though the
Travancore Regulation is confined to Christians in that State
but the field of the legislation is the same. The Indian
Succession Act has a universal application to the extent
provided for under the Act. In the light of Section 29(2) of the
Indian Succession Act neither the Travancore Regulation was
repealed nor its applications was made inapplicable to Indian
Christians in case of intestate succession. Thus taking into
account all the facts of the case of Travancore Regulation is a
law corresponding to the Indian Succession Act and therefore,
the plaintiff would be governed by the Travancore Regulation II
of 1092.
Thus in this case the judiciary tried to give full operation
to the law which was in existence and avoided the conflict
between the two which may not be helpful in the opinion of the
court towards achieving the purpose of one common law
governing matters regarding succession to the property of a
deceased person.
351
164
165
far
from
appropriately
being
supererogatory
was
directly
and
maintain that the statement that the wife could buy a divorce
only with the consent of or as delegated by the commentaries
on Koranic Texts and Hadith dealing with divorce. Thus this
decision may undoubtedly be said a bulwark of liberalism of
Muslim wife in the field of marriage.
The next case on the judicial divorce came up for hearing
before the Hon'ble High Court of Kerala in Aboobaker Haji v.
Mamu Koyaa.353 The facts of the case were that a young woman
who, allegedly under instigation from an orthodox father, asked
for divorce from a heterodox husband on the ground that here
life with her husband for reasons of neglect and cruelty had
become insufferable and therefore she did not want to cohabit
with her husband. Krishna Iyer. J. not only decided that a
judicial divorce may be granted in India, under Section 2(ii) of
Dissolution of Muslim Marriage Act, on the grounds that a
husband has neglected or failed to provide maintenance for his
wife even in circumstances in which he is under no legal duty to
support her which seems to me, with respect, an wholly
unjustifiable interpretation of the statue but also that a wife is
entitled to divorce, unjustifiable interpretation of the statue
353
166
AIR 1975 SC 83
Bhagwan Dutt v. Smt. Kamal Devi, AIR 1975 SC 86
167
between
356
168
169
"No can, under Section 127, rescue the respondent from his
obligation. Payment of mehr money as a customary
discharge is within the cognizance of that provision. But
what was the amount of mehr? Rs. 5000 interest from
which could not keep the woman's body and soul together
for a day .. unless she was prepared to sell her body
and give up soul! The point must be clearly understood that
the scheme of the complex of provisions in Chapter IX has a
social purpose. III-used wives and desperate divorcees
shall not be driven to material and moral dereliction to seek
sanctuary in the street. Where the husband, by adequately
provided for the divorce a subsequent series of doles is
contraindicated. This is the theological interpretation, the
sociological
170
is manifestly to
360
171
under
Section
125
Cr.
P.C.
and
prayed
for
172
362
363
173
High
Court
of
Allahabad
cancelled
the
orders
of
174
175
defence of the appellant was that after divorce she has ceased to
be his wife and, therefore, he was under no obligation to provide
maintenance for her. He further contended that he had been
paying maintenance of Rs. 200 per month for the last two years
and had deposited a sum of Rs. 3000 in the court by way of
dower for the period of iddat. But the trial court decreed the
suit in favour of respondent and directed the appellant to pay a
princely sum of Rs. 25 per month to the respondent. In July
1980, the High Court of Madhya Pradesh enhanced the
maintenance allowance from Rs. 25 to Rs. 179.20 per month in
revision. It is against this decision of the High Court that
present appeal by way of special appeal came before the
Supreme Court for the decision. The main issue before the
Supreme Court was that does the Muslim Personal Law impose
no obligation upon the husband to provide for the maintenance
of his divorced wife? The appellant to support his case that
under Muslim personal law he is not under obligation to provide
maintenance after divorce relied mainly on the text books and
contended that decision in Bai Tahira and Fuzlubi were not
correctly
given
by
this
court,
and
therefore,
may
be
176
statements
in
the
text
books
viz.,
Mulla's
368
369
370
177
wife
178
of the land, the situation became more clear than it was earlier.
In the present case by five judge bench reaffirmed its earlier
decision and held that there is no conflict between the
provisions of Sections 125 and those of the Muslim Personal
Law on the question of Muslim Husband's obligation to provide
maintenance
for
179
372
373
180
Act,
would
be
applicable
equally
to
Indian
181
182
section (3) of section 125 and held380 that the explanation has to
be construed with reference to the two classes of injury 381
caused to the matrimonial rights of the wife and not with
reference to the husband's right to marry again. Thus the
women chosen by the husband to replace the wife is a legally
married wife or a mistress is immaterial. Therefore, the
respondent's contention that his taking another wife will not
entitle
the
maintenance
appellant
cannot
to
be
claim
separate
sustained.
The
residence
Supreme
and
Court
382
Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor , AIR 1987 SC 1108
Namely taking of a second wife and by taking of a mistress as contemplated by
the Explanation to the sub-section (3) of section 125.
Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor, AIR 1987 SC 1103
183
383
384
184
185
filed
an
application
under
Section
125
for
186
388
M. Alavi v. T.V. Safia, AIR 1993 Ker. 21, Bishnu Charan Mohanty v. Union of
India, AIR 1993 Orissa 176.
AIR 1993 Ker. 21
187
389
validity
of
Section
of
Muslim
Women
389
390
391
188
the
constitutionality
of
some
personal
laws
was
189
190
191
of
race
or
religion.
Therefore
what
the
192
J.
expressed
similar
views
in
his
193
the
Hindus
have
agitated
for
this
reform
399
194
Court,
thus,
submitting
to
the
wisdom
and
195
Sate of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84, 86.
(1952) Madras 193.
Srinivasa Aiyar v.Saraswathi Ammal, (1952) Madras 196.
Srinivasa Aiyar v.Saraswathi Ammal, (1952) Madras 196.
AIR 1957 Allahabad 411.
196
197
198
Infact, the fault does not lie with the court only. It was
Counsel Danial Latifi,412was saw nothing wrong in inviting the
Supreme Court to Interpret a certain verse of the Holy Quran,
and the court naively obliged him. Certainly it could have told
him that it was beyond
412
413
414
Senior Advocate Supreme Court, supporting the appellant before the court.
Aga Mohomed Jafar v. Koolsum Bibi, (1897) 25 Cal. 9-18, Baqar Ali v. Anjuman
Ara, (102) 25 All 236, 254; 301 A, 94.
Mohd. Ahmad Khan v. Shah Bano Begaum, AIR 1985, SC 945..
199
concerning
the
Islamic
personal
law,
in
without affecting
decidendi.415
It is a different story whether actually the law of Islam
leaves a divorced woman wholly unprotected and unprovided for
after the period of iddat. Those who have given an affirmative
answer to this query are indeed awfully ignorant of socio-legal
theories of Islam. The fact is that Islam does not leave any
woman, married, divorced, separated or widowed, without
adequate protection even for a day. The concept of marriage in
Islam is certainly very different from that subscribed by all the
indigenous faiths. Islam does not look at marriage as a
perpetual bondage; from the very beginning it treats it as
dissoluble union. After the dissolution of marriage, therefore, it
415
200
would not keep former spouses tied down to each other for any
purpose. At the same time it would provide adequate protection,
financial and social, to the man and woman who were formerly
married. In a truly Islamic society divorced woman would infact
not remain unmarried for long after her iddat. Divorce itself
would, in that society, be exceptional and would be resorted to
only in the cases of marriages broken past repair. No husband
would divorce his wife if he knows that she can neither hope to
get married nor look around for any other source of fall back
upon for her maintenance. The facility of divorce is certainly not
given to men by Islam is order to drag women into destitution
and vagrancy.
However, it is a sad fact that the said Islamic concepts
and laws have been thrown into the dustbin by the common
Muslims in this country. Misuse of Islamic laws by the Muslims
themselves is, infact, the greatest factor responsible for its
misinterpretation by the courts.416
Coming back again to the ruling in the instant case it is
submitted
that
it
un-intentionally
provided
inflammatory
201
an unhealthy
reads
as
supplement
to
Chief
Justice
202
allowed
her
judicial
separation
keeping
her
203
421
204
reflected
the high
205
Christians). Now a question arises as to whether a nonChristian married to a Christina, whose marriage is governed
by the Christian Marriage Act 1872, seek divorce under the
Special Marriage Act, 1954? Two High Courts have delivered
conflicting rulings. The Rajasthan High Court423 has answered it
in affirmative while the Allahabad High Court 424 says no. The
Act itself is not clear on the point, though the preamble An
Act to provide a special from a marriage in certain case for the
registration of such and certain other marriage and for
divorce.- titles in favour of the Rajasthan ruling. Was it not
imperative for the Supreme Court bench in Jorden Diengdesh
case to examine all these aspects of the law? Could it not
upheld the already available Rajasthan ruling an give the
desired relief to the poor tribal woman, paving the way for
salvaging in future other women
finding themselves
in a
similar mess?425
O. Chinapa Reddy, J. did nothing of this kind. Instead of
discussing these points and possibilities, or advertising the
government to make the Special Marriage Act, 1954 more
explicit, he simply wrote his judgement in the form of an
academic article on comparative family law 426 and sent it to the
423
424
425
426
206
207
on
bigamy-more
often
by
non-Muslim
than
by
Muslim
society.
Article
25
guarantees
religious
freedom
208
judgement
shows
that
certain
popular
431
432
209
210
brought within the fold of the newly enacted laws, local and
caste customs relating to many matters, including the system of
extra- judicial divorce and exclusion of women from certain
important property rights were specially protected. The new
Hindu personal law of 1955-56 was thus, neither uniform nor
free from religion-based and sex-based discriminations.
In 1976 the Indian Succession Act till then compulsorily
applicable to all those who voluntarily opted for the nonreligious marriage law of the Special Marriage Act, was made
wholly in applicable to the Hindu, Buddhists, Jains and Sikhs;
henceforth they would be governed by the religion-based Hindu
Succession Act even if they married within those four
communities- under the Special Marriage Act [While in the
same situation members of the other communities would be still
governed by the Indian Succession Act]. Adopted
on the
Jains
have
forsaken
their
sentiments,
some
other
Mohammad Abu Zafar Mohammad Ibrahim v. Israr Ahmad and others , AIR
1917 All. pp. 368-69.
211
436
212
213
439
Other relief prayed were: to declare Muslim Personal Law, which enables a
Muslim male to give unilateral talaq to his wife without her consent and without
resort to judicial process of courts, as void , offending Articles 13, 14 & 15 of the
Constitution; to declare that the mere fact that a Muslim husband takes more than
one wife in an act of cruelty within the meaning of clause VIII(f) of Section 2, the
Dissolution of Muslim Marriage Act, 1939; to declare that Muslim Women
(Protection of Rights on Divorce) Act, 1986 is void as infringing Articles 14 & 15;
to further declare that the provisions of Sunni and Shia laws of inheritance which
discriminate against females in their shares as compared to the shares of males of
the same status, void as discriminatory against females only on the ground of sex.
. Other relief prayed were: To declare Section 2 of the Hindu Marriage Act, 1955,
as void offending Articles 14 & 15 of the Constitution of India; To declare Section
3(2), 6 and 9 of the Hindu Minority and Guardianship Act, read with section 6 of
the Guardians and Wards Act, void; To declare the unfettered and absolute
discretion allowed to a Hindu spouse to make testamentary disposition without
providing for an ascertained share of his, or her spouse and dependant, void.
214
215
216
and
integrity
of
the
nation.
Making
law
or
444
445
217
The court also held that Article 14 does not lay down that
any legislation that the State may embark upon must
necessarily be of an all embracing character. So far as the
question of applicability of Part III of the Constitution to the
personal
laws,
is
concerned,
both
Chagla,
C.J.
and
446
447
218
219
220
of
different
courts
applicable
to
Hindu
and
221
other family. The court bravely has held that religious practices
are always subject to the State Regulation and can be governed
through appropriate legislations irrespective of their religion
emotions.
While adjudicating upon the subject matter of the
restitution of conjugal rights the court 459 seems have been
earnestly committed to uproot the evils of polygamy in Muslim
community. The court rightly discouraged the existence of
polygamy in Muslim community by holding that it is no longer
an institution to be tolerated merely because the Muslim
religion sanctifies it on the basis of their scriptures. The status
of Muslim wife has further been elevated by the judiciary by
taking a strong stand to the wife against her wishes to live with
her husband who always administers cruelty on her. 460 The
judiciary has universalized the concept of cruelty on the basis
of universal and humanitarian standards. The Muslim husband
has stripped off his powers to inflict divorce on his innocent wife
which he uses to claim as a matter of right because it finds
support in the Muslim Scriptures.461Justice Krishna Iyer has
very clearly opined that the provision of personal laws must
always
run
in
accordance
with
the
provisions
of
the
222
463
464
465
466
223
for the
224
AIR 1993 Ker. 21; Bishnu Charan Mohanty v. Union of India, AIR 1993 Ori.
176.
225
Chapter VI
Conflicts of Law and Uniform Civil Code
In India, generally there is no possibility of direct conflict
arising between the laws of various communities. Every
community has its own personal law which ordinarily prohibits
inter-religious marriages.
227
1923. Between
permanently
(2)
the court
the marriage
was
which alone
have
228
solemnized
under
this
Act
is
essentially
Perhaps the court did not take into account the fact that a Muslim in India could
not contract marriage with a Kitabiya. Since a Christian is a Kitabiya so a marriage
between a Muslim male with a Christian Female is valid and such a marriage can
be dissolve by talaq.
229
thus held
under the
Perhaps the court did not take into account the fact that a Muslim in India could
not contract marriage with a Kitabiya. Since a Christian is a Kitabiya. Since a
Christian is a Kitabiya so a marriage between a Muslim male with a Christian
Female is valid and such a marriage can be dissolve by talaq..
230
231
478
232
the Hindu Marriage Act, 1955. The court was, thus, faced a
problem whether the said marriage was governed by the Hindu
Marriage Act, or the Indian Divorce Act.
The court in this case observed that the whole position
has been radically changed by the Hindu Marriage Act, 1955,
which by Section 2(a) applied to Arya Samaj. A Hindu Marriage
has now been rendered monogamous by that Act, as Section 5
makes it a condition that neither party has a spouse living at
the time of the marriage. The bar to relief emanating from
English law by virtue of Section 7 of the Indian Divorce Act, 480
no longer operates. Reliefs can now be had under the Act in
respect of Hindu marriage provided, of course, one of the
parties professes the Christian religion when the petition is
filed.
The court further observed that nowhere in the Act it
has been required that the marriage, in respect of which relief
is sought, should have been solemnized in any particular from.
It is sufficient that one of the parties is a Christian when the
petitions filed.481
The court thus reached the conclusion that in respect of
a Hindu marriage, relief can be hand under the Hindu Marriage
480
481
Indian Divorce Act, 1869, Section 7 para 2-. Nothing in this section shall deprive
courts of jurisdiction in a case where the parties to a marriage professed the
Christian religion at the time of the occurrence of the facts on which the claim to
relief is found.
Khambatta vs. Khambatta , AIR 1935 Bom. 5.
233
Act and the Indian Divorce act as well if one of the parties is a
Christian when proceedings are commenced.
In this case the court suo moto raised doubt about the
possible consequences
husband may go to the court for the relief under the Indian
Divorce Act and on the other hand the wife may go for relief
under Hindu Marriage Act. The court here suggested that the
solution lies with the legislature.
A pertinent question was raised by one Research fellow 482
i.e. whether a valid marriage could take place where one party
was a Hindu and other a Christina? Because Section 5 of the
Act,483 requires
482
483
Parsher Archana : Conflict of Laws Hindu vs. Christian Law, 1982, 1 &
CLQ, Vol. II, p. 302.
Hindu Marriage Act, Section -5A marriage may be solemnized between any two
Hindu.
to contract a civil
marriage
484
The Hindu Marriage Act, 1955, Section 13(1) (ii) Any marriage solemnized
whether before of after the commencement of this Act, may on a petition presented
by either the husband or the wife. Be dissolved by a decree of divorce on the
ground that the other party has ceased to be Hindu by conversion to another
religion.
the
important
question
that
requires
little
485
A Muslim may renounce Islam, this is known as apostasy (ridda); or a nonMuslim embrace Islam, this is called conversion.
a women converted
490
491
Now the dissolution of Muslim marriage Act, 1939, provides that apostasy by
itself does not dissolve the marriage, unless it be that a women re-embraces her
former faith.
According to Islamic law, conversion to Islam on the part of the man following
a scriptural religion , such as Christianity or Judaism, does not dissolve his
marriage with a woman belonging to his old creed. But if the couple belong to a
non-scriptural faith the Muslim husband cannot lawfully retain a non-Kitabiyya
wife; wherefore Islam is to be offered to her and, on her refusal, a decree for
dissolution will be passed.
Robaba Khanum vs. Khodadad Bomanji Irani, ILR (1948) Bomb. 223.
rites. Two sons were born of the Union. She embraced Islam
and offered Islam to her Zoroastrian husband. On his refusal,
she filed a suit for a declaration that held by the court that a
Zoroastrian (or Christian)
492
239
in
holding
between
conflicting
substantially)
amends
the
traditional
law
by
240
for divorce on the grounds that the other spouse has converted
to another religion.495 Regardless of the personal law rules
applicable to the newly converted spouse, the other spouse may
petition for a divorce under Section 13(1)(ii) on the ground that
the respondent has ceased to be a Hindu by conversion to
another religion.496 An interpersonal conflict of law rule is laid
down : when a spouse to a Hindu marriage converts to another
religion, on an application for divorce by the unconverted
spouse, the court applies the reformed Hindu law.
As in the Dissolution of Muslim Marriage Act, 1939, the
Hindu Marriage Act, 1955 does not state whether the Hindu law
is to be applied as lex celebration is or as lex personal of the
parties at the time of the marriage, or indeed as the lex
personam of the petitioner at the time of the suit. It may be
remarked that under the Hindu Marriage Act, 1955 a divorce
may be granted by the court to the petitioner who is the
unconverted partner and whose personal law is still the law
under
which
the
marriage
was
celebrated.
Under
the
496
The Hindu Marriage Act, 1955, Section 13(I)(ii) Any marriage solemnized,
whether before or after the commencement of this Act, may on a petition presented
either by the husband or the wife, be dissolved by a decree of divorce on the
ground that the other part II, has ceased to be a Hindu by conversion to another
religion.
Apostasy from Hinduism without a conversion, to another religion does not
provide the ground for a divorce petition by the other spouse, at least because in
law the apostate is still a Hindu governed by Hindu law.
241
498
242
(a)
(b)
(c)
converts to
243
another religion.500
6. Finally, there are two further possibilities, First, in a
marriage celebrated in Hindu from, the husband
may
is the Act
the marriage, is
244
503
504
the ground that, since the solemnization thereon, he husband has exchanged his
profession of Christianity for the profession of some other religion, and gone
through a form of marriage with another woman.
The Parsi Marriage a Divorce Act, 1936, Section 32 (j) Any married person may
sue for divorce on any one or more of the following grounds, namely(j) that the defendant has ceased to be Parsi.
The Special Marriage Act, 1954, Section -15. Any marriage celebrated, whether
before on after the commencement of this Act, other than a marriage solemnized
under the Special Marriage Act, 1872, or under this Act, may be registered under
this Chapter by Marriage officer in a territory to which this Act extends.
245
Act. The Hindus who marry under this Act, are now governed
by Hindu Succession Act, 1956 with regard to succession of the
property.505 Section 21-A of the Special Marriage Act, 1954 (as
amended by the Act of 1976) excludes Hindu from the effect of
Section 19 and Section 21 of the Act. Section 19 affects a
severance of any member of an undivided family who professes
Hindu, Buddhist, Sikh or Jain religion. Cumulative effect of
these sections are where two Hindus inter marry, Section 19
will not be applicable. Subject to Section 19 however, a marriage
under the Special marriage Act, 1954, does not affect any
vested rights of inheritance under the particular personal laws
of the parties to the marriage.
Concluding the above discussion it may be noticed that
any of the above statue on book does not provide any
satisfactory accepted choice of law rule which can be applied in
the conflicting situation. In any event, the law of the celebration
of the marriage and the personal law of the parties at the time
of the marriage will usually be identical so a choice of law
governing the dissolution of the marriage qua lex celebration or
qua lex personae will not be necessary.506
505
506
The Special Marriage Act, 1954 Section 21(a) Where the marriage is
solemnized under this Act or any person who professes the Hindu, Buddhist, Sikh
or Jain religion with a person who profess the Hindu, Buddhist, Sikh, Jain religion,
Section 19 and Section 21 shall not apply and so much of section 20 and creates a
disability shall also not apply.
Pearl, David, op. cit
246
offered
507
247
direction the court would have to make its own choice of law in
accordance with the general juristic principles as best as it can.
The court, therefore, after considering the implication of
both the Mohammadan law and Hindu law, chose to administer
Mohammad law in this case and granted
plaintiff
a decree to the
this freedom
cannot be
Article 25 of the Indian Constitution : (1) Subject to public morality and health
and to the other provision, practice and propagate religion.
248
of
religion.
Their
marriage
should
have
been
who
refused to accept it. She filed a suit in the Bombay High Court
509
510
Article 44, The state shall endeavor to secure for the citizens a uniform civil
code throughout the territory of India.
I.I.R, (1948), Bomb. 223.
249
511
250
appropriate to his old one. But why should this apply to the
wife or husband of the convert.512
Having held Muslim law to be inapplicable to the case,
Mr. Justice Blagden decided the case according
equity and good conscience. According
to justice,
251
or her
Rakeya Bibi vs. Anil Kumar Mukherji, ILR (1948) 2, Cal. pp. 129-30.
252
prove to the satisfaction of the Bench that there was any law in
force in India which brought the rule of Muslim law into
prominence as the law governing the dissolution of the
marriage. It was not just nor right to apply the rule of Muslim
law to the case.516
The Bench decided that the extra-judicial Muslim law
cannot apply to the case, because there are two parties to a
marriage, and therefore, the marriage still subsists until
judicially dissolved or dissolved by some rule of law recognized
by the courts other than Muslim law. No choice of law was
made, although it can be argued that the formula was used in
negative sense; the refusal to recognize an alleged accomplished
act.
This formula of justice, equity and good conscience or
justice and right was again applied to solve the problem of
the interpersonal conflict of laws in Sayeda Khatoon vs. M.
Obadih. In this two Jews domiciled
marriage
Rakeya Bibi vs. Anil Kumar Mukherji, ILR (1948) 2, Cal. pp. 129-30.
253
to some other
on the that
254
of Marriage
Act,
the
255
not have a uniform family law, such a solution of the intercommunal conflict of laws is necessary.518
With due respect to the suggestions of the learned
Professor, it is humbly submitted
that a more
desirable
not be
law.
More
ever
it
cannot
be
forgotten
that
the
518
Diwan Paras India and English private international Law- A Comparatives study,
1st Ed. P. 213.
256
257
be dissolved only in
258
Hindu
ceremonies
and
rites
must
be
dissolved
in
by mutual consent in
terms of Section 13(B), the fact that since marriage they have
both converted to some other religion should not stand in their
way.
The court further observed that the concept of marriage
as between Hindu and Muslim is very different. A Muslim
marriage is a matter of contract. A Hindu marriage was in the
past primarily and essentially a sacrament. Prior to the present
Act, 1955, the Hindu marriage was indissoluble. The Hindu
marriage solemnized
in accordance
259
to
260
embraced Islam and there after got married. A son was borne
to her. She further stated that
Mathur under
the Influence
261
262
between
two
communities.
The
result
of
the
laws each other. Since it is not the object of Islam nor is the
intention of the enlightened
263
264
The court has only intercepted the existing law which was in
force. It is settled principal that of a provision of law velas back
to the date of law itself and cannot be prospective from the date
of the judgment because concededly the court does not legislate
but only five an interpretation to an existing law. It cannot
therefore be said the decision in Sarla Mudgal case,525 has to be
given prospective operation and that the decision cannot be
applied to persons who have solemnized marriages violation of
the mandate of law prior to the date of judgement.
The court has further observed
Hindu who has taken
prosecution under Sec. 494 of the IPC is not against Islam. The
concept of Muslim law is based upon the edifices of shariat.
Muslim law as traditionally interpreted and applied in India
permits more than one marriage during the subsistence of one
and another though capacity to do justice between co-wives in
law in condition precedent. Even under the Muslim law plurality
of marriage is not unconditionally conferred upon the husband.
It would, therefore, be doing in justice bigamy notwithstanding
the continuance of his marriage under the law which he
belonged before conversion. The violators of laws who have
contracted the second marriage cannot be permitted to urge
that such marriage should not be made subject-matter of
525
265
the above
may be
country and
266
notwithstanding
527
The Christian Marriage Act, 1872, Section 4 says Every Marriage between
persons, one or both of whom is (or are) a Christian or Christians , shall be
solemnized in accordance with the provisions of the next following section; any
such marriage solemnized otherwise than in accordance with such provisions shall
be void.
(1918), ILR 40 All 393
267
528
268
domiciled
married
in Spain, and
London. The marriage was not a happy one and within a year
the husband returned to Pakistan. The wife and their newly
born son remain in London. In March, 1961, Jatoi married a
second wife, a Swedish girl, who had converted to Islam. The
marriage ceremony was celebrated in a mosque in Karachi in
Muslim form. Meanwhile, Marina applied to the Magistrates
Court in London for maintenance under the Matrimonial
Proceedings (Magistrates Courts) Act, 1960. In 1963, Marina
obtained a maintenance order which was then registered in
Pakistan and confirm by the Karachi District Magistrates
Court. The husband failed to remit maintenance and thus, in
1965, the wife traveled to Karachi with the intention of seeking
enforcement. Whilst she was in the city, Jatoi repudiated his
wife by talaq, and sent a copy of the talaq to Chairman of the
local Union Council as required by the Muslim Family Law
Ordinance (1961).530 After 90 days Jatoi applied to the District
Court for revision of the English maintenance order on the
ground that he was no longer marked to Marina. According to
Muslim law, the husband is not obliged to maintain an ex-wife
529
530
269
270
the wife was at all times a Christina), the curt chooses to apply
the Muslim law. According to the The languages. has
therefore be constructed in the sense that if one of the parties
to the marriage professed in the Christian faith, the marriage
can be dissolved only by decree of the court under the Act and
not otherwise. A contrary view would lead to court there is no
provision in the Divorce Act, 1869 or the Christian Marriage
Act, 1872 whish in express terms, prevents a Muslim husband
of a Christian woman from having resort to this personal law for
the purpose of the dissolution of the marriage. But Mr. Justice
Yaqub Ali, dissenting rejected the argument accepted by the
majority that the Divorce Act, 1869, Section 2 is n enabling
Act.533 He said, anomalous result such as, if a Muslim husband
petitions to court under the Divorce Act, 1869 for his
dissolution of marriage with a Christian wife, he shall have to
private to the satisfaction of the curt that she has been guilty of
adultery and shall also be obliged to pay her alimony pendent
lite and costs of the suit as well as permanent alimony on
obtaining a decree for dissolution. On the contrary if the
Muslim law applies he can avoid all these obligations by
pronouncing talaq and bringing to an end the marriage by his
533
The Indian Divorce Act, 1869, Section 2 Nothing hereinafter contained shall
authorized any court to grant any relief under this Act except where the petitioner
or the respondent professes the Christian religion.
271
that if the
Perhaps the court did not take into account the fact that a Muslim in India could
not contract marriage with a Kitabiya. Since a Christian is a Kitabiya. Since a
Christian is a Kitabiya so a marriage between a Muslim male with a Christian
Female is valid and such a marriage can be dissolve by talaq.
272
535
536
273
537
Chapter VII
The Muslim Women (Protection of Rights of
Divorce) Act 1986: Parliament Initiative
after Shah-Bano Case
The Indian society is peculiar in its nature particularly, in
its
treatment
of
women
where
women
suffer
manifold
wife, can get a girl of sweet-seventeen, the next day. It will not be
far from truth to say that in the case of marriage and divorce,
this society continues to be a man's society. We can take judicial
notice of the fact, of several young girls suffering the agony of
life with all its privations and penury for no fault of theirs, after
they are divorced by their husbands and it is such hard cases
that perhaps induced and impelled the supreme law making
body of this country
275
276
277
This appears to imply that the husband has two separate and
540
278
(i)
provision" for his divorced wife; and (ii) to provide "main nature
of
any
such
"provision"
and
"maintenance"
should
be
of
"reasonable
and
fair
provisions"
and
279
542
Bai Tahira v. Ali Hussain Fidalli Chothia, AIR 1979 SC 362; and Fazlubi v. K.
Khader Vali, AIR 1980 SC 1730.
Muta marriage is contracted for a specific period on payment of a specified
mahr. During the subsistence of the contract, the muta wife has neither a right to
maintenance from her husband nor a right to succeed to his property on his death,
543
unless the contract itself in terms confers one or both o these rights on her. Muta
Marriage is not recognized by Sunnis.
Muta marriage is contracted for a specific period on payment of a specified
mahr, during the subsistence of the contract, the muta wife has neither a right to
maintenance from her husband nor a right to succeed to his property on his death,
unless the contract itself confers one or both of these right on her. Muta marriage is
not recognized by Sunnis.
545
a mistress. Muslim law does not recognize the mere fact of the
husband's remarriage as a legal ground on which the first wife
can refuse to live with him.546
Sirajmohmedkhan
v.
Hafizunnisa
Yasinkhan,548
and
547
548
Muslim law demands that a man treat co-wives equally. This is so patently
impossible that many modern scholars have concluded that the Quranic verse, in
fact enjoin monogamy. "The conviction is gradually forcing itself on all sides, in
advanced Moslem communities, that polygamy is as much opposed to the
teachings of Mohammed as it is to the general progress of civilized society and
true culture" (Ameer Ali, The Spirit of Islam 230 (11th impression, 1978).
Syed Ahmad v. Naghath Praveen Taj Begum, AIR 1958, Mys. 128;
Shahulameedu v. Subaida Beevi, 1970 KLT 4.
AIR 1981 SC 1972
Co-
provisions
of
section
125
of
the
code,
concerning
550
551
552
opinion
the
precedent
of
the
success
by
Muslim
556
"The
status
of
Muslim
women
under
the
so-called
Organizations
have
therefore
condemned
288
289
to
maintenance.
The
argument
is
based
on
560
Syed Mushaf Husain Shah v. Mst. Hamida Begum, PLD 1957 Lahore 220 at 223224, Isak Chanda Palkar v. Nyamatbi, 1980 Cri LJ 1180.
Art. 13
290
Art. 15 (3).
Art. 25(2)(b).
State of Bombay v. F.N. Balsara, AIR 1951 SC 318; Chiranjit Lal v. Union of
India, (1950) SCR 869.
291
statutes
reforming
Hindu
law
have
been
565
Srinivasa Aiyar v. Saraswathi Ammal, AIR 1952 Med. (Madras Hindu (Bigamy
Prevention and Divorcee) Act, 1949; State of Bombay v. Narasu Appa Mali, AIR
1952 Bom. 84.
Srinivas Aiyar, Narasu Appa Mali, H.B. Singh, G. Sambireddy cases..
292
that the legislation was intended for the benefit of the class of
persons to which the Act in question was applicable. "It will be a
travesty of the truth to say that it is directed against that class
and discriminates against them against them" asserted the
Andhra Pradesh High Court in repelling a constitutional
challenge levied against the Hindu Marriage Act. Again this
argument is not available to support the 1986 Act, which
severely penalizes, rather than benefits, Muslim
women. To
women as a
293
his
wife
with
impunity
and
that
no
financial
294
Abdur Rohoman v. Sakhina, ILR 5 Cal. 558 at 562 (1879) (Emphasis added).
Sirajmohmedkhan v. Hafizunnisa Yasinkhan, AIR 1981 SC 1972
295
that
concerned
with
296
568
Chapter VIII
Conclusion and Suggestion
Before concluding my study by presenting practical and
viable
suggestion
for
the
solution
of
various
problems
of
the
world),
combating
with
fissiparous
forces
and
academic
outpourings
all
highlighting
this
298
299
300
be
stuffed
with
the
concepts
of
ancient
Indian
301
conditions
that
are
considered
appropriate
can
be
of the Code of
302
The above of the progress so far made in that behalf and of the
current trends indicates how disappointingly little has been
achieved and how very much stupendous a task is still ahead.
The import, scope and nature of Article 44 has been
wholly misunderstood, so far. This Article dose not envisage a
'single common' civil code rather it takes of a 'uniform civil code'
which may be a set of various 'civil codes' meant for different
communities each applied 'uniformly' to all the members of a
particular community;
The reasons for the ineffectiveness of the existing family
legislation should be investigated. The Child Marriage Restraint
Act, 1929, a social worker complained, is unknown to the
masses in rural India.
303
304
305
APPENDIX- I
The Muslim Personal Law (Shariat) Application Act, 1937569
(Act No. XXVI of 1937)
(Dated 7th. October, 1937)
An Act to make provision for the application of the Muslim
Personal Law (Shariat) to Muslims.
WHEREAS it is expedient to make provision for the
application of the Muslim Personal Law (Shariat) to Muslims; It
is hereby enacted as follows: 1. Short Title and Extent
(1)
(2)
Source : Para Diwan, Muslim Law in Modern India (1933) pp. 297-98.
307
and
charitable
institutions
and
charitable
and
308
(b)
309
5.
Dissolution
of
marriage
by
Court
in
certain
under
mentioned
provisions
of
the
Acts
and
APPENDIX II
THE DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939
(Act VII of 1939)
(Passed by the Indian Legislation)
Received the assent
March, 1939.
An Act to consolidate and clarify the provisions of Muslim
law relating to suits for dissolution of marriage by women
married under Muslim law and to remove doubts as to the
effect of the renunciation of Islam by a married Muslim woman
on her marriage tie.
Whereas it is expedient to consolidate and clarify the
provisions of Muslim law relating to suit for dissolution of
marriage by women married under Muslim law and to remove
doubts as to the effect of the renunciation of Islam by a married
Muslim woman on her marriage tie; It is hereby enacted as
follows:
1.
311
2.
the
husband
has
failed
to
perform,
without
312
(viii) that the husband treats her with cruelty, that is to say,
a. habitually assaults her or makes her life miserable
by cruelty of conduct even if such conduct does not
amount to physical ill-treatment, or
b. associates with women of evil repute or leads an
infamous life, or
c. attempts to force her to lead an immoral life, or
d. disposes of her property or prevents her exercising
her legal rights over it, or
e. obstructs her in the observance of her religious
profession or practice, or
f. if he has more wives than one, does not treat her
equitably in accordance with the injunctions of the
Qoran;
(ix)on any other ground which is recognised as valid for the
dissolution of marriages under Muslim law:
Provided thata. no decree shall be passed on ground (iii) until the
sentence has become final;
b. a decree passed on ground (i) shall not take effect
for a period of six months from the date of such
decree, and if the husband appears either in person
313
314
in this Act shall affect any right which a married woman may
have under Muslim law to her dower or any part thereof on the
dissolution of her marriage.
5.
APPENDIX III
THE MUSSALMAN WAKF VALIDATING ACT, 1913
[ 7th March, 1913]
An Act to declare the rights of Mussalmans to make
settlements of property by way of" wakf" in favour of their
families, children and descendants.
WHEREAS doubts have arisen regarding the validity of
wakfs created by persons professing the Mussalman faith in
favour of themselves, their families, children and descendants
and ultimately for the benefit of the poor or for other religious,
pious or charitable purposes;
and whereas it is expedient to remove such doubts;
It is hereby enacted as follows:1.
Short title and extent.1) This Act may be called the Mussalman Wakf Validating
Act, 1913.
2) It extends to the whole of India except state of Jammu
and Kashmir
2.
316
Hanafi
Mussalman"
means a
follower of the
317
4.
APPENDIX IV
THE CHILD MARRIAGE RESTRAINT ACT, 1929
(As amended in 1978)
(Act No. XIX of 1929)
[1st October, 1929]
An Act to restrain the solemnization of child marriages; it
is hereby enacted as follows:
1.
2.
Definitions.-In
this
Act,
unless
there
is
anything
repugnant in the subject or context,(a) child means a person who, if a male, has not
completed twenty-one years of age, and if a female,
has not completed eighteen years of age;
(b) child marriage means a marriage to which either
of the contracting parties is a child;
319
320
6.
child marriage.
a) Where a minor contracts a child marriage, any person
having charge of the minor, whether as parent or guardian
or in any other capacity, lawful or solemnized, or
negligently fails to prevent it from being solemnized, shall
be punishable with simple imprisonment which may
extend to three months and shall also be liable to fine:
Provided that no woman shall be punishable with
imprisonment.
b) For the purposes of this section, it shall be presumed,
unless and until the contrary is proved, that where a
minor has contracted a child marriage, the person having
charge of such minor has negligently failed to prevent the
marriage from being solemnized.
7.
321
8.
take cognizance of any offence under this Act after the expiry of
one year from the date on which the offence is alleged to have
been committed.
10.
322
323
APPENDIX V
The Muslim Women (Protection of Rights on Divorce) Act,
1986
(ACT NO. 25 OF 1986)
(First published in the Gazette of India (Extraordinary).
Part II, section 1 dated the 19th May 1986)
An Act to protect the right of Muslim women who have
been divorced by, or have obtained divorce from, their husbands
and to provide for matters connected therewith or incidental
thereto.
Be it enacted by Parliament in the Thirty -seventh year of
the Republic of India as follows:1. Short title and extent.(1) This Act may be called the Muslim Women (Protection of
Rights on Divorce) Act, 1986.
(2) It extends to the whole of India except the State of
Jammu and Kashmir.
2.
325
ii.
iii.
326
an
order
for
payment
of
such
provision
and
327
328
329
330
(2)
which
the
woman
resides,
to
pay
such
maintenance as determined by him under subsection (1) or, as the case may be, to pay the shares
of such of the relatives who are unable to pay, at
such periods as he may specify in his order.
5.
331
332
Transitional
provisions.
Every
application
by
APPENDIX VI
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON
DIVORCE) RULES, 1986
Ministry
of
Law
and
Justice
(Legislative
Department)
Short title and commencement. 1. These rules may be called the Muslim Women (Protection
of Rights on Divorce) Rules, 1986.
2. They shall come into force at once.
334
3. Service of summons.
1) Every summons issued by a Magistrate on an application
made under the Act, shall be in writing, in duplicate,
signed by the Magistrate or by such other officer as he
may, from time to time, direct, and shall bear the seal of
the Court.
2) Every such summons shall be accompanied by a true
copy of the application.
3) Every such summons issued under sub-rule (1) shall
specify the date of the first hearing of the application
which shall not be later than seven days from the date on
which the summons is issued.
4) Every summons shall be served by a police officer or by
an officer of the Court issuing it.
5) The summons shall, if practicable, be served personally
on the respondent, by delivering or tendering to him one
of the duplicates of the summons.
6) Every respondent on whom the summons is so served
shall, if so required by the serving officer, sign a receipt
on the back of other duplicate.
7) Where the respondent cannot, by the exercise of due
diligence, be found, the summons may be served by
leaving one of the duplicates for him with some adult
male member of his family residing with him, and the
335
within
whose
local
jurisdiction,
the
336
337
expeditiously
as
possible
and
in
particular,
when
the
the Act shall have power to make such order as to cost as may
be just.
7.
Form A
FORM OF AFFIDAVIT
(See rule 7)
I/We son/wife of . aged .. years,
resident
of.......
and.
son/wife
of
..
That
I/we
have
informed
myself/ourselves
of
the
3.
Deponent/Deponents.
Signed and verified at this the.. day of
19..
339
Deponent/Deponents.
340
Form B
FORM OF DECLARATION
(See rule 8)
I/weson/wife
of..aged.years,
That
I/we
have
informed
myself/ourselves
of
the
3.
APPENDIX VII
THE PARSI MARRIAGE AND DIVORCE
ACT, 1936
ACT No. 3 OF 1936
An Act to amend the law relating to marriage and divorce
among Parsis.
WHEREAS it is expedient to amend the law relating to marriage
and divorce among Parsis; It is hereby enacted as follows:[23rd April, 1936.]
I.-PRELIMINARY
INDIA CODE, VOL-VIA.
1. Short title extent and commencement.
1. (1)Short title extent and commencement. This Act may be
called the Parsi Marriage and Divorce Act, 1936.(2) 1*[It extends
to the whole of India except the State of Jammu and Kashmir]:
Provided that the Central Government may, in respect of
2*[territories which, immediately before the 1st November,
1956, were comprised in Part B States] by notification in the
Official Gazette, direct that the provisions of this Act relating to
the constitution and powers of Parsi Matrimonial Courts and to
appeals from the decisions and orders of such Courts shall
apply with such modifications as may be specified in the
notification.3*
(3) It shall come into force on such 4 date as the Central
Government may, by notification in the Official Gazette, appoint.
342
2. Definitions.
2. Definitions. In this Act, unless there is anything repugnant in
the subject or context,- (1) "Chief Justice" includes senior
Judge; (2) " Court " means a Court constituted under this Act;
(3) to " desert ", together with its grammatical variations and
cognate expressions, means to desert the other party to a
marriage without reasonable cause and without the consent, or
against the will, of such party;
1 Subs. by Act 3 of 1951. s. 3 and Sch., for certain words.
2 Subs. by the Adaptation of Laws (No. 3) Order, 1956, for "Part
B States."
3 In its application to Pondicherry, in section 1, in sub-section
(2), after the proviso, the following shall be inserted at the end"Provided further that nothing contained in this Act shall apply
to the Renoncants of the Union territory of Pondicherry."-(Vide
Act 26 of 1968). The Act has been extended to Dadra and Nagar
Haveli by Reg. 6. of 1963, s. 2 and Sch. I.
4 22nd June, 1936: see Gazette of India, 1936, Pt. I, p. 621---220.(4) "grievous hurt" means(a) emasculation ;
(b) permanent privation of the sight of either eye;
(c) permanent privation of the hearing of either ear;
(d) privation of any member or joint;
(e) destruction or permanent impairing of the powers of
any member or joint;
(f) permanent disfiguration of the head or face ; or
343
344
would have been legitimate if the marriage had been valid, shall
be legitimate.]
4. Remarriage when unlawful.
4.*(1)Remarriage when unlawful. No Parsi (whether such Parsi
has changed his or her religion or domicile or not) shall contract
any marriage under this Act or any other law in the lifetime of
his or her wife or husband, whether a Parsi or not, except after
his or her lawful divorce from such wife or husband or after his
or her marriage with such wife or husband has lawfully been
declared null and void or dissolved, and, if the marriage was
contracted with such wife or husband under the Parsi Marriage
and Divorce Act 18654 (15 of 1865),or under this Act, except
after a divorce, declaration or dissolution as aforesaid under
either of the said Acts.
5. Punishment of bigamy.
5. Punishment of bigamy. Every Parsi who during the lifetime of
his or her wife or husband, whether a Parsi or not, contracts a
marriage without having been lawfully divorced from such wife
or husband, or without his or her marriage with such wife or
husband having legally been declared null and void or
dissolved, shall be subject to the penalties provided in sections
494
and
495
of
the
Indian Penal Code (45 of 1860) for the offence of marrying again
during the lifetime of a husband or wife.
6. Certificate and registry of marriage.
6.
Certificate
contracted
and
under
registry
this
Act
of
marriage.
shall,
Every
immediately
marriage
on
the
contained
in
Schedule
345
346
347
with
simple
imprisonment
for
term
which
223. may extend to one year, or with fine which may extend to
one thousand rupees, or with both.
16. Penalty for secreting, destroying or altering register.
16. Penalty for secreting, destroying or altering register. Any
person secreting, destroying, or dishonestly or fraudulently
348
Formal
irregularity
not
to
invalidate
marriage.
349
same Court as the Chief Justice shall from time to time appoint
shall be the Judge of such Matrimonial Court, and, in the trial
of cases under this Act, he shall be aided 1[ by five delegates,
except in regard to
(a) interlocutory applications and proceedings;
(b) alimony and maintenance both permanent as well as
pendente lite;
(c) custody maintenance and education of children; and
(d) all matters and proceedings other than the regular hearing
of cases.]
20. Parsi District Matrimonial Courts.
20.
Parsi
District
Matrimonial
Courts.
Every
Court
so
in
regard
to--
(a)
interlocutory
applications
and
proceedings;
(b) alimony and maintenance, both permanent as well as
pendente lite;
(c) custody maintenance and education of children; and
(d) all matters and proceedings other than the regular hearing
of cases
350
351
352
353
IV.-MATRIMONIAL SUITS
30. Suits for nullity.
30. Suits for nullity. In any case in which consummation of the
marriage is from natural causes impossible, such marriage may,
at the instance of either party thereto, be declared to be null
and void.
31. Suits for dissolution.
31. Suits for dissolution. If a husband or wife shall have been
continually absent from his or her wife or husband for the
space of seven years, and shall not have been heard of as being
alive within that time by those persons who would have
naturally heard of him or her, had he or she been alive, the
marriage of such husband or wife may, at the instance of either
party thereto, be dissolved.
32. Grounds for divorce.
32. Grounds for divorce. Any married person may sue for
divorce on any one or more of the following grounds, namely:(a) that the marriage has not been consummated within one
year after its solemnization owing to the wilful refusal of the
defendant to consummate it ;
(b) that the defendant at the time of the marriage was of
unsound mind and has been habitually so up to the date of the
suit:
Provided that divorce shall not be granted on this ground,
unless the plaintiff (1) was ignorant of the fact at the time of the
marriage, and (2) has filed the suit within three years from the
date of the marriage 1[(bb) that the defendant has been
354
355
356
357
358
34. Suits for judicial separation. Any married person may sue
for judicial separation on any of the grounds for which such
person could have filed a suit for divorce 5* * *.
35. Decrees in certain suits.
35. Decrees in certain suits. In any suit under section 30, 31,
32, 6*[32A] or 34, whether defended or not, if the Court be
satisfied that any of the grounds set forth in those sections for
granting relief exist, that none of the grounds therein set forth
for withholding relief exist and that(a) the act or omission set forth in the plaint has not been
condoned;
(b) the husband and wife are not colluding together;
(c) the plaintiff has not connived at or been accessory to the
said act or omission;
(d) (save where a definite period of limitation is provided by this
Act) there has been no unnecessary or improper delay in
instituting the suit ; and
(e) there is no other legal ground why relief should not be
granted
then and in such case, but not otherwise, the Court shall
decree such relief accordingly.
36. Suit for restitution of conjugal rights.
36. Suit for restitution of conjugal rights. Where a husband
shall have deserted or without lawful cause ceased to cohabit
with his wife, or where a wife shall have deserted or without
lawful cause ceased to cohabit with her husband, the party so
deserted or with whom cohabitation shall have so ceased may
359
sue for the restitution of his or her conjugal rights and the
Court, if satisfied of the truth of the allegations contained in the
plaint, and that there is no just ground why relief should not be
granted, may proceed to decree such restitution of conjugal
rights accordingly.
37. Counter-claim by defendant for any relief.
37. Counter-claim by defendant for any relief. In any suit under
this Act, the defendant may make a counterclaim for any relief
he or she may be entitled to under this Act.
38. Documentary evidence.
1[38.
Documentary
evidence.
Notwithstanding
anything
360
(1) Any Court exercising jurisdiction under this Act may, at the
time of passing any decree or at any time subsequent thereto,
on an application made to it for the purpose by either the wife
or the husband, order that the defendant shall pay to the
plaintiff for her or his maintenance and support, such gross
sum or such monthly or periodical sum, for a term not
exceeding the life of the plaintiff as having regard to the
defendants own income and other property, if any, the income
and other property of the plaintiff, the conduct of the parties
and other circumstances of the case, it may seem to the Court
to be just, and any such payment may be secured, if necessary,
by a charge on the movable or immovable property of the
defendant.
(2)The Court if it is satisfied that there is change in the
circumstances of either party at any time after it has made an
order under sub-section (1), it may, at the instance of either
party, vary, modify or rescind any such order in such manner as
the Court may deem just.
(3)The Court if it is satisfied that the party in whose favour an
order has been made under this section has remarried or, if
such party is the wife, that she has not remained chaste, or, if
such party is the husband, that he had sexual intercourse with
any woman outside wedlock, it may, at the instance of the other
party, vary, modify or rescind any such order in such manner as
the Court may deem just.
41.
Payment
of alimony
to
wife
or
to
her
trustee.
361
362
363
364
49. Custody of children. In any suit under this Act, the Court
may from time to time pass such interim orders and make such
provisions in the final decree as it may deem just and proper
with respect to the custody, maintenance and education of the
children under the age of 3[eighteen years] the marriage of
whose parents is the subject of such suit, and may, after the
final decree upon application, by petition for this purpose,
make, revoke, suspend or vary from time to time all such orders
and provisions with respect to the custody, maintenance and
education of such children as might have been made by such
final decree or by interim orders in case the suit for obtaining
such decree were still pending.
50. Settlement of wifes property for benefit of children.
50. Settlement of wifes property for benefit of children. In any
case in which the Court shall pronounce a decree of divorce or
judicial separation for adultery of the wife, if it shall be made to
appear to the Court that the wife is entitled to any property
either in possession or reversion, the Court may order such
settlement as it shall think reasonable to be made of any part of
such property, not exceeding one-half thereof, for the benefit of
the children of the marriage or any of them.
VI.-MISCELLANEOUS
51. Superintendence of High Court.
51. Superintendence of High Court. The High Court shall have
superintendence over all Courts constituted under this Act
subject to its appellate jurisdiction in the same manner as it
has over other Courts under 1[article 227 of the Constitution]
and all the provisions of 2[that article] shall apply to such
Courts.
365
366
367
368
5. Paternal grand-father.
6. Paternal grand-mothers husband.
7. Maternal grand father.
8. Maternal grand-mothers husband.
9. Father or step-father.
10. Fathers brother or step-brother.
11. Mothers brother or step-brother.
12. Brother or step-brother.
13. Brothers son or step-brothers son, or any direct lineal
descendant of a brother or step-brother.
14. Sisters son or step-sisters son, or any direct lineal
descendant of a sister or step-sister.
15. Son or step-son, or any direct lineal descendant of either.
16. Daughters son or step-daughters son, or any direct lineal
descendant of a daughter or step-daughter.
17. Husband of daughter or of step-daughter, or of any direct
lineal descendant of a daughter or step-daughter
18. Husband of sons daughter or of step-sons daughter, or of
:any direct lineal descendant of a son or step-son.
19. Father of daughters husband.
20. Father of sons wife.
21. Father of husbands paternal grand-father.
22. Father of husbands paternal grand-mother.
369
370
SCHEDULE II
Certificate of Marriage
SCHEDULE II
(See section 6)
Certificate
of
Marriage-------------------------------------------------------Date
place
of
Names
of
and
marriage.---------------------------------the
husband
and
wife
--------------------------------------------------------------------Conditio
n
at
the
time
of
marriage.
---------------------------------------------------------------------Rank
or
profession--------------------------------------------------------------------Age.---------------------------------------------------------Residence.
----------------------------------------------------------Names
of
the
fathers or guardians.-------------------------------------------Rank or
profession.---------------------------------------------------Signatures
of
the
officiating
priest.-----------------------------------------------------Signature
the
of
contracting
21
years
of
age.--------------------------------------------------------------------Signatures
of
witnesses.--------------------------------------------------------------NOTE.-In the above table the words " brother " and "sister"
denote brother and sister of the whole as well as half blood.
Relationship by step means relationship by marriages.
371
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