INTRODUCTION
The personal laws in force in India deal with marital matters like divorce, inheritance, and adoption in different communities and religions. These laws have been derived from customs and legislation. The Indian Constitution[1] has provided space for the co-existence of different personal laws and, in fact, has encouraged diversity in culture[2]. It has thus become important to carry out a comparative study of these laws and learn the similarities and differences, especially insofar as the matters related to marriage, inheritance, and maintenance are concerned. This has become especially important in recent years in view of the prevailing debates on the issues related to uniformity, gender justice, and secularism in the Indian constitutional framework.[3]
During the colonial regime, codified personal laws were based on religious texts and traditions, thereby establishing a plural legal system for India. Personal laws based on religious pluralism continued to remain a part of the Indian constitution even after independence, despite calls for uniformity.[4] Despite this debate over uniformity based on codification aimed at ensuring consistency for Hindus, Christians, Parsis, through enactments of the Hindu Marriage Acts[5], Christian Marriage Acts[6], Parsi Marriage and Divorce Acts[7], Muslims continue to have their personal laws uncodified for authority based on orthodox Islamic jurisprudence. Thus, their personal law is a unique aspect of pluralism of Indian law and an origin of discussion on secularism for current reformers.
The sources of Muslim law in India are the Qur’an, Sunnah (Hadith), Ijma (consensus), and Qiyas (analogical reasoning). There is limited statutory recognition, with respect to several enactments like the Muslim Personal Law (Shariat) Application Act, 1937[8]. Muslim marriage (Nikah) is essentially a contract that is based on free consent and agreed terms. There are primarily two schools of juristic interpretation: Sunni and Shia; the differences between the two schools are more obvious in issues pertaining to succession and divorce. There has been no significant statutory intervention so far, with uncodified principles remaining in force and judicial interpretation governing such matters. A comparative analysis of the said law with other personal laws in force in India specifically aims at convergence and divergence in language and implication for uniformity, gender justice, and legislative reform.
COMPARATIVE ANALYSIS OF MUSLIM LAW WITH OTHER PERSONAL LAW
When it comes to the nature and scope of marriage, Muslim law considers marriage or “Nikah” as purely a civil contract which has well-defined terms and conditions based upon the free will of the contracting parties, as well as adhering to enforceable contractual obligations[9]. In contrast, under Hindu law, marriage is generally considered a sacrament, representing a “sacred and indivisible union” which is accomplished by rituals like “saptapadi” and “homa”.[10] In India’s Christian community, marriage is a mixture of religious and statutory constructs, which implies following specific rituals and formalities for completion, thus melding both religious and statutory requirements. In parity, under Parsi laws too, there is a mix of statutory formalities and mandatory religious rituals for a valid marriage within India’s diverse legal system.
Similarly, when it comes to divorce, Muslim law allows for varied forms of divorce, which signify its contractual approach to the institution of marriage. These forms of divorce include Talaq, which is given by the husband, Khula, which is given by the wife and Mubarat, which is given based on mutual consent and agreement, and lastly, there is divorce through the Judicial Process provided for by the Dissolution of Muslim Marriages Act of 1939.[11] The Dissolution of Muslim Marriages Act of 1939 is especially important because it allows Muslim women to file for divorce in case of specific grounds like cruelty, desertion, failure to provide for them, and neglect.[12]
By contrast, the Indian system allows divorce under the Hindu Marriage Act, 1955,[13] which gives a full statutory regime. Both husbands and wives have equality before the Indian laws regarding seeking a divorce on similar grounds, like cruelty, adultery, desertion, conversion, and mental illness, introduced much later by case laws on irretrievable breakdown. In India, Christian divorces fall under the Indian Divorce Act, 1869, which allows divorces on grounds of either section 10 of the Indian Divorce Act, 1869[14] or mutual consent under formalities and registrations[15]. Again, Parsi divorces, under the Parsi Marriage and Divorce Act, 1936, require judicial interference on similar grounds like cruelty, desertion, and adultery[16]. A comparison highlights the gender implications across the four major personal laws. Muslim law was known to permit the practice of unilateral Talaq, whereas other personal laws are more reliant on court review for procedural fairness and gender parity within the Indian legal system.
In Muslim Law, “Nafaqah” or maintenance is a personal obligation on the part of the husband to support his wife[17] throughout the life of the matrimony or for the duration of the “iddat” period because “Mehr” or dower is a compulsory contract to ensure economic security for the wife. [18]As opposed to other laws regarding alimony, “Mehr” is an instinct of marriage and can never be referred to as a remedy for divorced couples.[19] However, interference by secular laws under section 125 CrPC (now section 144 BNSS)[20] remains uniform for divorced Muslim wives to claim support beyond the “iddat” period, provided that the divorced wife does not remarry.
However, it is important to note that the regulations under the Hindu Marriage Act of 1955 and the Hindu Adoption & Maintenance Act of 1956[21] are extensive. The laws of Christians and Parsis equally have structured married or spousal support or maintenance by virtue of court-arranged provisions. In comparison to other laws, the absence of integration under Nafaqah and Mehr, Muslims demand more judicial integration regarding gender justice or preventing destitution. As demands under modern society change, modifications within religious laws to align with modern times must be undertaken. However, modifications must not degrade religious rituals.
CONSTITUTIONAL PERSPECTIVE
Personal laws in India operate under the domain where freedom of religion and fundamental rights co-exist, which requires a subtle integration of the Constitution on the provisions related to group rights versus individual dignity. Whereas Articles 14, 15, and 21 of the Constitution offer provisions on equality, prevention of discrimination, and recognition of life and liberty to live with dignity, respectively, “the right to profess, practice, and propagate religion” is governed under Article 25.[22] Such provisions have, under interpretations by the Supreme Court, reached a harmonious integration, especially under Muslim Personal Laws. From Mohd. Ahmed Khan v. Shah Bano Begum[23], where the SC upheld the right to maintenance under Section 125 of the Code of Criminal Procedure [24] on grounds attributed to ‘social justice’ under secular mandate, followed by Shayara Bano v. Union of India[25], where triple talaq was declared unconstitutional due to its arbitrariness.[26] The SC continues to promote “constitutional morality”, which undermines the separateness of Personal laws. Cases like Jose Paulo Coutinho v. Maria Luiza Valentina Pereira again reiterated the ‘Desire of the Constitution’ regarding ‘Uniform Civil Laws’.
Article 44 of the Constitution, therefore, envisions the formulation of a Uniform Civil Code[27], which will herald a new era of legal uniformity and gender equity. Those in support of a UCC can logically argue that a UCC will provide a Fillip to both the ideals of equality and secularism, whereas the opposition will argue that such a move will hurt cultural/religious pluralism, guaranteed by Article 25 of the Constitution[28]. Through a comparative analysis of the respective personal laws, one will be able to note how, comparatively, the Muslim personal law, being less codified, will provide room for reform on a community-by-community level, as against the highly codified Hindu and Christian personal laws.
CONCLUSION
In conclusion, it can be said that the comparative study of the personal laws prevalent in India reveals convergences and divergences with regard to marriage, divorce, and maintenance. While the basic objective underlying every personal law is similar, that is, focusing on the maintenance and preservation of family and social morals, the underlying philosophy is different. This means that it is namely contractual for Muslim law, sacramental for Hindu law, and the rest are based on statutory as well as religious law models. The judiciary has played a contributory and crucial part in harmonising the impact and applicability of these personal laws with the constitutional provisions and ideals, especially about the principles of equality and gender justice being made possible through the application of secular law. From the legislative side, the progress is patchy, which means that while advancement has been possible through the code being introduced or implemented for certain communities, only been through judicialization for others.
Author’s Name: Saesha Mishra (Symbiosis Law School, Hyderabad)
[1] The Constitution of India 1950
[2] Article 25, Constitution of India 1950
[3] Article 44, Constitution of India 1950
[4] Archana Parashar, ‘Religious Personal Laws as Non-State Laws: Implications for Gender Justice’ (2013) 27(1) International Journal of Law, Policy and the Family
[5] Hindu Marriage Act 1955
[6] Indian Christian Marriage Act 1872
[7] Parsi Marriage and Divorce Act 1936
[8] Muslim Personal Law (Shariat) Application Act, 1937
[9] Prasoon Shekhar and Prashant Prasad, ‘Essentials of Valid Marriage Under Muslim Law’ (iPleaders, 22 August 2024)
[10] Section 7(2), Hindu Marriage Act 1955
[11] Section 2, Dissolution of Muslim Marriages Act 1939
[12] Section 2, Dissolution of Muslim Marriages Act 1939
[13] Section 13, Hindu Marriage Act 1955
[14] Section 10, Indian Divorce Act 1869
[15] Section 10A, Indian Divorce Act 1869
[16] Section 32, Parsi Marriage and Divorce Act 1936
[17] Muslim Law: Maintenance (Nafaqah) (Vidhi Judicial Academy)
[18] Section 5, Dissolution of Muslim Marriages Act 1939
[19] Khaledur Rahman v State of Kerala 2022 SCC OnLine Ker 5833, decided 18 November 2022.
[20] Section 125, Code of Criminal Procedure 1973 (now s 144 BNSS)
[21] Hindu Adoption and Maintenance Act 1956
[22] Article 25, Constitution of India 1950
[23] Mohd Ahmed Khan v Shah Bano Begum (1985) 2 SCC 556
[24] Section 125, Code of Criminal Procedure 1973 (now s 144 BNSS)
[25] Shayara Bano v Union of India (2017) 9 SCC 1
[26] Jose Paulo Coutinho v Maria Luiza Valentina Pereira (2019) 20 SCC 85
[27] Article 44, Constitution of India 1950
[28] Article 25, Constitution of India 1950
