A Judicial Shift in Personal Law Paradigm in India

Journal of Critical Reviews ISSN- 2394-5125 Vol 6, Issue 6, 2019

Saloni Kabra Research Scholar (LL.M.), Symbiosis Law School, Pune, Symbiosis International (Deemed University)

Dr. Sapna Bansal, Assistant Professor, Symbiosis Law School, Pune, Symbiosis International (Deemed University)

Richa Dwivedi Assistant Professor, Symbiosis Law School, Pune, Symbiosis International (Deemed University)

Received: 26.08.2019 Revised: 25.09.2019 Accepted: 27.09.2019

ABSTRACT The Constitution of India is an organic and living document, which makes it a document alacritous to change and growth, according to the contemporary requirement and the needs of the present society. One such vital change that a society needs is regarding personal laws. Personal laws which are in force find its foundation in the recognition of very “right to practice” religion under Article 25 of the Constitution of India. The question which arises is how then some of personal laws being patriarchal, and on face discriminatory against the women and in violation of part III of the constitution can still exist and manage the scrutiny of fundamental rights? In the judgment delivered by the court in State of Bombay v. NarasuAppa Mali it was held that personal laws are not “laws in force” under the Article 13 of the Constitution of India as they are based on religious precepts and customary practices and the principles enshrined in the part III of the constitution cannot be applied. This research highlights how it is high time for the courts to revisit this judgments. The researcher focusing on the discriminatory matrimonial laws of different religion would like to discuss that personal laws should not fall outside the ambit of judicial scrutiny under article 13. For the purpose of this research problem researcher has adopted a doctrinal form of research and will be majorly analyzing the decisions rendered by the adjudicatory authorities and the relevant literature available on the said topic In this study after establishing the current position of law, the researcher will try to examine and scrutinize the legal reasoning and rationale behind the Bombay High Court decision in State of Bombay v. Narasu Appa Mali because of which even today, after 65 years of developed constitutional jurisprudence, some of the discriminatory personal laws continues to be in practice.

KEY WORDS: Personal Laws, Constitution of India, Article 13, Religion

INTRODUCTION Theoretically, there is no Constitutional restriction on the equal protection of laws culmination into the prohibition of legislative power of the State in respect of personal laws, the discrimination against any citizen on grounds only of policy of successive governments at the Centre has led to religion, race, caste, sex or place of birth [1] and (b) religious their continued exemption from direct interference. Thus, by and cultural freedom. “All laws in force” in India at the time virtue of the main provision of Article 372, those parts of of the commencement of the Constitution, if repugnant of to pre-Constitutional personal laws-both codified as well as these primary fundamental rights, have to cease to apply in uncodified and applicable to whichever community that any manner whatsoever. have not been touched by any “competent authority” remain Now, the questions that are raised are whether it is in force, as before. Apart from these laws, new personal laws permissible under the Constitution that the Muslims, Hindus, have been enacted by the Parliament for the majority Christians, Parsis, and Jews of India be governed by different community bringing the Hindus, Sikhs, Jain, and Buddhists sets of religion-based laws. Should personal laws not be under the umbrella of these new legislations. However, the tested on ground of being contrary tofundamental rights? traditional laws of all these communities not covered by The answer to these questions depends on whether the these new enactments are still applicable to them. phrase “all laws in force” used in Article 13(i) covers The moot question is whether the existence of various personal laws too or not. personal laws, full of conflicting features and applicable to Article 13 itself says that law “includes any Ordinance, order different religious communities, is in itself inconsistent with by-law, rule, regulation, notification, custom or usage having the fundamental rights enshrined in Part III of the in the territory of India the force of law”[2] It further Constitution. Or, are personal laws supra- fundamental mentions that “law in force” “includes laws passed made by a rights? The following discussion, in this section, throws light legislature or other competent authority in the territory of on these issues. Intended here is the determination of the India before the commencement of this Constitution and not relationship between fundamental rights and personal laws. previously repealed, notwithstanding that any such laws or any part, therefore, may not be then in operation either at all Testing Personal Laws under Article 13 or in particular area”[3] Personal law is not specified herein Article 13 of Part III of Constitution of India enunciated the this Article. Are, then, the words used in Article 13(3)(a)&(b) following general principle: wide enough to include personal laws; or was a reference to “All laws in force in the territory of India immediately before personal laws deliberately omitted? The use of the word the commencement of this Constitution, in so far as they are "includes" shows that the lists are not exhaustive and could inconsistent with the provisions of this part shall, to the extent extend to rules of conduct not specified in them. The history of such inconsistency, be void.” Clause (2) of the same Article of the enactment of this Article and of some other restraints the State from making any law which “takes away Constitutional provisions (Article 19, 25, 44) shows that the or abridges the Fundamental Rights”. The fundamental Constituent Assembly did not intend to exempt personal rights include, inter alia, (a) equality before the law and laws from the legislative competence of the State. So then,

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the different personal laws become automatically void in existence of separate personal laws and applied them to terms of Article 13(1)? The answer to this question is not respective communities without questioning the legality or free from difficulty. the Constitutionality of the personal-law system. In the case of State of Bombay v. Narasu Appa Mali [5] a case The judicial opinion of the two great judges of the time under the Bombay Prevention of Hindu Bigamous Marriage namely late Justice M.C. Chagla and late Justice P.B. Act, 1946, it was argued before the Bombay High Court that Gajendragadkar in Narasu Appa‟s case, [14]has been the rule of Muslim personal law permitting bigamy had dissented from by the eminent scholars like D.D. Basu, [15] become void, after the commencement Constitution, by H.M. Seervai [16] and Mohammad Ghause [17], who are virtue of Articlei13(1), since it allowed Muslim men to have convinced that all personal laws including their non- more than one wife while the Bombay Act of 1946 forced statutory parts are hit by Article 13(1). The Chagla- Hindus to stick to monogamy. Chief Justice Chagla and Gajendragadkar verdict pronounced in 1952 has, however, Justice Gajendragadkar thereupon examined in detail if been followed, though often silently and without specific Article 13 (1) was applicable to personal laws, and they reference, by all the higher courts in the country. arrived at the negative finding. The following points were In its recent decision in Krishan Singh v. Mathura Ahir [18], stressed by the Chief Justice. the Supreme Court has categorically ruled that:“Part III of i. The words “custom and usage” used in Article 13 do the Constitution does not touch upon the personal laws.” [19] not include personal laws. “Custom or usage is a deviation This judgment has been vehemently criticized by Justice A.M. from personal law and not personal law itself”. Bhattacharjee in hisM.N. Bose Lectures of 1981[20]. It is, ii. Relisting the difference between customary law and however, submitted that this was the only way in which the personal law, The Constituent Assembly, in defining “law” various provisions of the Constitution relating to personal under Article 13 has expressly and advisedly used only the laws, apparently generating various kinds of tensions and expression custom or usage and has omitted personal law. conflicts, could have been reconciled by the Supreme Court. This is a “very clear pointer” to the intention of the Constitution-making body to exclude personal law from the Scrutiny of Personal Laws under Article 14 and 15 purview of Article 13. So far as the applicability of Part III of the Constitution to iii. There are other “pointers” as well. Article 17 abolishes non-statutory personal laws is concerned, the question that untouchability. Article 25(2)(b) enables the state to make has been particularly, raised is whether the religion and sex- laws for the purpose of throwing open of Hindu religious based diversities found in the fabric of any such laws would institutions of a public character of all classes and sections of be affected by the equality- clauses of the Constitution Hindus. Now, if Hindu personal laws became void by reason contained in Articles 14 and 15. It is alleged and all classical of Article 13 and by reason of its provisions contravening personal laws particularly those applicable to Hindus and any fundamental rights, then it was necessary specifically to Muslims – abound in discrimination between persons on the provide in Article 17 and Article 25(2) for certain aspects of basis of religion or sex. Much such alleged discrimination Hindu personal law which contravened Articles 14 and 15. under various laws has been brought to the notice of the This clearly shows that only in certain respects the courts; but the courts –so-far convinced that Part III of the Constitution has dealt with personal law. Constitution does not hit non-statutory personal laws-have iv. The very presence of Article 44 in the Constitution generally left those laws intact.For instance, in Nalini v. State “recognizes” the existence of separate personal laws. Entry of Bihar, [21] the Patna High Court held that rule that No. 5 in the Concurrent List gives power to the legislatures daughters cannot be coparceners is not hit by the provisions to pass laws affecting personal laws. of Article 15 of the Constitution. In Mukta v. v. It is clear from the language of Article 372 (1) and (2) Kamalaksha,[22] the Karnataka High Court held that the that the expression „laws in force‟ used in this Article does legitimate illegitimate distinction in the matter of children’s not include personal law, as Article 372 entitles the maintenance rights under the conventional Hindu law does President to make adaptations and modifications to law in not affect unconstitutional discrimination. The Punjab High force by way of repeal or amendment, and it cannot be Court once refused to test, on the touchstone of Article 15, contended that it was intended by this provision to the High Court curbs on the power to dispose of ancestral authorize the President to make alterations and adaptations property.[23] in the personal laws of any community. It is interesting to note that recently, the Supreme Court of The Chief Justice concluded his arguments observing India in Ahmedabad Women Action Group v. Union of “Although the point urged before us is not free from India,[24] dismissed three writ petitions which challenged difficulty on the whole, after a careful consideration of the the Constitutionally of various provisions of different various provisions of the Constitution we have come to the personal laws on the ground, inter-alia, of being violative of conclusion that personal laws are not included under the Articles 14 and 15. The Court observed that the “questions expression “law in force” used in Article13 (1)” [5] involved in the case were the issue of State policies with Justice Gajendradkar agreed with all arguments of Chief which the court will not ordinarily have any concern.” The Justice Chagla and added that Article 13(1) applied to “what same opinion was expressed by the Apex Court in Maharshi may compendiously be described as statutory laws”, that Avadhesh v. Union of India.[25] The judicial trend, so far, says, laws, “passed or made by a legislature or other clearly indicates the reluctance of the Courts to determine competent authority”[6] He added that the Muslim and the Constitutionality of various personal laws on the Hindu personal laws, whose foundations were their touchstone of Articles 14 and 15. respective “scriptural texts”, could not be said to have been Personal Laws and Religious – Cultural Freedom passed or made by the legislature or competent authority and therefore “do not fall within the purview” of Article 13 Article 25 of the Constitution provides: (1).[7]A similar opinion was in later years expressed by the (1) Subject to public order, morality, and health and to High Courts of Madras, [8] Punjab [9], Karnataka, [10] the order provisions of this part, all persons are equally Madhya Pradesh [11]and Manipur [12]. Until this day, the entitled to freedom of conscience and right freely to profess, court has said that either the continued application of practice and propagate religion. separate personal laws is, or the exclusive reform of any one (2) Nothing in this Article shall affect the operation of any of them could be, ultra-virus part III of the Constitution. In existing law or prevent the State from making any law. 1959 the Supreme Court of India of India expressed an a. Regulating or restricting any economic, financial, opinion that the application of different endowment political or other secular activity which may be associated administration laws of different religious communities was with religious practice; not unconstitutional. [13] Before and after that date, in numerous cases, the Supreme Court has taken note of the

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Providing for social welfare and reform. universal recognition of the fact, still a very large volume of Article 26 gives to “every religious denomination or any opinion in the world today admits that monogamy is a very section thereof” the right “to establish and maintain desirable and praiseworthy institution. If therefore, the state institutions for religious and charitable purposes” and “to of Bombay compels Hindus to become monogamists, it is a make its own affairs in matters of religion”. Article 29 (1) measure of social reform the state is empowered to legislate says that any section of the citizens which has, inter alia, a with regard to social reform under Art. 25(2) (b) “distinct culture of its owns” shall have a right “to conserve notwithstanding the fact that it may interfere with the right of the same”. The question before us is if the terms “religion”, a citizen of process, practice and propagate religion.”[32] “affairs in matters of religion” or “distinct culture” include the religion-based personal laws of any community. If that is The learned Chief Justice added: not so personal law will be a “secular activity associated “It must not be forgotten that ina democracy the Legislature with religion” which the state can regulate. is constituted by the chosen representatives of people. They A large number of Muslims have a firm conviction that their are responsible for the welfare of the State and it is for them to personal law is a part of their “religion” and “distinct lay down the policy that the state should pursue. Therefore, it culture” within the meaning of these terms as used in Article is for them to determine what legislation to put on the status 25 and 29 respectively and that since it is a “matter of book in order to advance the welfare of the state. If the religion” within the meaning of Article 26, their community Legislature in its wisdom has come to the conclusion that should have a right to manage it itself. An important monogamy tends to the welfare of the state, then it is not for question in this regard is who will decide whether a the courts of law to sit in judgment upon that decision.”[33] particular thing is a part of religion, culture or religious Thus, bigamy is not recognized by the courts either as “an affairs? Will the conviction in that behalf of a particular essential part” of any religion or as a “religious practice.” community itself be given any consideration in determining Most probably the same will be the judicial attitude toward that question? unilateral divorce in Islamic law, since it cannot be proved In Ratilal Panchand v. State of Bombay,[26] the Supreme by any strength of arguments that Islam enjoins as a Court had held that subject to the restriction which Article husband to away with his wife by unilateral and arbitrary 25 imposes, every person has a fundamental rights “not action. But how about the shares of various heirs in the merely to entertain such a religious belief as may be scheme of inheritance which are especially the part of their approved of by his judgment or conscience but to exhibit his personal laws to be an “integral part” of their religion. It belief and ideas in such overt acts as are enjoined or seems that in regard to Muslims, marriage, and divorce can sanctioned by his religion…” In another case [27] the be more easily ascribed to the realm of “secular activities Supreme Court said that “Religious practices or performance associated with religion” than inheritance and succession. of acts in pursuance of religious belief are as much a part of The matter will, however, have to be decided by the courts. religion as faith or belief in particular doctrines.” How From the discussion so far it can be inferred that in spite of would, then, religion, belief, and practices be distinguished the absence of a clear cut distinction between “essentially from “secular activity associated with religious practices” religious” and “secular” activities, the judicial trend is such [art. 25(2) (a)]? Further, what is the scope of “social welfare the personal laws do not find the protection of Religious and reform” [art. 25(2)(b)] vis-à-vis religious beliefs and Freedom guaranteed under Article 25. practices? The place of the personal law system in the scheme of Article In Mulla Tahir Saifuddin v. the State of Bombay, [28] the 26 guaranteeing to every “religious denomination” the right Supreme Court observed that for the application of Article to manage its own “affairs in matters of religion” will, of 25(2) (a) it is necessary to classify religious practices into course, be determined by how one interprets the various such as are essential for a religious character and those provisions of Article 25. If “practice of religion” does not which are not. In Durgah Committeev. Hussain, [29] it said include adherence to personal laws and if matters now that whether a religious practice is an essential part of a regulated by personal laws are in fact “secular activity religion is an objective question to be determined by the associated with religion”, obviously Art 26 cannot apply to court and that the view of a religious denomination itself is personal laws.[34] not final. [30] It is in the light of these judicial decisions that But what is, or should be, the place of personal laws under we have to examine the place of personal law as an essential Article 29 of the Constitution – guaranteeing to all sections part of Islamic religion, a Muslim will ordinarily give an of citizens the fundamental right to “conserve” their “distinct emphatic affirmative answer. There is no dearth of culture”? Personal law may not be part of religion, but is it statements made by Muslim Ulema, lawyers and politicians, part of a culture? Personal law may not be part of religion, or of resolutions adopted at Muslim conferences, asserting but is it part of a culture? Is it part of our culture? how to that the Muslim personal law is a part of the Islamic religion. form a family and live our domestic life? Or, culture only But in view of the Supreme Court decision in the Durga means how we dress up, sing and dance? Will it be wholly Committee case, their conviction is not decisive in the matter absurd if a particular section of citizens claims that its age- and is subject to judicial scrutiny. old personal law is a part of its “distinct culture”? Notably, As regards polygamy, the Allahabad High Court has held, in there is no clause in Article 29 enabling the state to regulate two different cases, that contracting a bigamous marriage “secular activity associated with culture.” Who will, then, cannot be said to be an integral part of either the Muslim or have the authority to adjudicate upon the assertion of a the Hindu religion,[31] “It may be”, said justice Oak in the section of Indian citizenry that its distinct culture is found in first case, “that under the personal law of Muslims one may its personal law? And if it accepted that personal law is a have as many as four wives. But I do not think that having part of the culture, will Article 29 come into conflict with more than one wife is a part of religion… So a legislative Article 25 or with Article 14 and 15? No answers seem to requirement to the effect that a Mussalmanmay not have have been given to these questions.[35] more than one wife does not amount to interference with freedom of conscience or interference with the right to Fundamental Rights as a strategy for attaining Uniform profess, practice and propagate religion.” Civil Code Ina normative Constitutional system which guarantees basic In Narasu Appa‟s case Justice Chagla had said: human rights to the subjects any of the actions of state “If religious practices run counter to public order, morality or directly or indirectly permitting, assisting, or enforcing health, or a policy of social welfare upon which the state has discriminatory or unjust practices made by the people even embarked, then the religious practices must give way…. in their interpersonal relations is basically controlled legem. Marriage is undoubtedly a social institution, an institution in There is no reason why the blessings of civil liberty should which the state is vitally interested. Although there may not be not percolate to the levels of interpersonal relations. From

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the viewpoint of strict Constitutionalism, there cannot be a reform as the court correctly viewed, for equalizing of rights different conclusion, especially in the Indian context. But of males and females in the Hindu community. The unfortunately, the development of law in this regard does comparison between Hindu and Muslims could have been not augur well. The result is that the natural elasticity in answered in this way: as distinct social, cultural and fundamental rights could not be made use of the full extent historical reasons are connected with personal law of each of to incorporate the welfarist goal of fair and just civil code. the communities, large scale reforms at one stroke affecting Under Article 13 of the Constitution, every law contravening all communities cannot be enacted, but piecemeal and any of the provisions of Part III is declared to be void. Under gradual reforms will have to be enacted reasonably choosing Article 14 it is ordained that the state shall not deny to any that community which is mature and ready to receive the person equality before the law and equal protection of the reforms. The Constituent Assembly Debates on Art. 44, hint laws. When state agency is made use of implementing at the criterion that is to be adopted in this matter. When the customs, usages, and laws allowing discrimination in the basis of classification is explicable with convincing reasons matter of matrimonial rights, succession, partition, from the sociological and cultural perspective, the impugned maintenance, and guardianship. There is a clear violation of legislation could have been upheld as in accordance with Art. Art. 14.[36] As per Art. 21 of the Constitution everyone is 14. This would have been the logical solution to the question entitled to personal liberty and its deprival shall be in on the ground of the right to equality. By holding that accordance with the procedure established by Law. Recent personal law is not law for the purpose of Art. 13, the decisions of the Supreme Court have established that such decision came in the way of libertarian or egalitarian procedure shall be just, fair and reasonable.[37] As the influence upon personal law by judicial actions. family is a form of association it is amenable only to In Sri Krishna Singhi v. Mathura Ahir,[39] the Supreme Court reasonable restrictions by the laws on the ground of public held the view that personal law is not law for the purpose of order and morality. On the whole, these Constitutional Part III of the Constitution. This case also came in a peculiar provisions insist on fair conditions even in the sphere of circumstance. In this case, after the death of Swami personal law. Atmavivekanand of 'Sant Math' Mathura Ahir, his closest In addition, there are provisions enabling or directing the discipline was appointed as new Mahant by the 'Bhesh of state to bring about social reforms. According to Article Sant Math' in the formal Bhandara ceremony according to 25(2)(b) nothing in this Article, (namely, Art. 25(1) the wishes of late Atmavivekanda. Srikrishna Singh, son of guaranteeing freedom of religion) shall affect the operation Atma Vivekanand (in his purvahrama) was in possession of of any existing law or prevent the state from "making any the properties belonging to the math. When the new Mahant law providing for social welfare and reform" Under Art. claimed the property of Math, it was defended by Krishna 15(3), State is empowered to make laws creating special Singh that the rule that natural son served his relations with provisions for women and children. Further the right to father the moment the latter adopted sanyasa was conserve religion under Art. 29(1) cannot be interpreted to discriminatory and that the Shudra cannot become a Mahant protect personal laws either for the reason that personal law of Sant math. About the first point of defense, the court is not an essential matter of religion or for the reason that viewed that the said rule was not discriminatory and that the state is unable to make social reforms under art. 25(1). even if it was discriminatory since personal law was not a The application of Part III of the Constitution as a touchstone law under Art. 13 and therefore it could not be quashed. to test the Constitutional validity of personal laws revolves About the second point, the court elaborately dealt with the around the issue of whether personal law is law at all for the conventions of devolution of Mahantship in Sant Math purpose of Part III of the Constitution. Logically speaking Sampradaya and upheld the validity of the appointment. The this is an unnecessary controversy because personal law proposition that the personal law was not under Art. 13 was either based on custom or in the form of statutes is a set of not essential for the decision of the case. In both Narasu legal norms regulating the behavioral rights and obligations Appa and Krishna Singh, the impugned law or customs were of people and is enforced by a court of law or by state power. in spirit not violative of Art. 14, 15 and 16. The Court has However, in State of Bombay v. Narasu Appa Mali, [38] the reasoned on the basis of the right to equality itself, to arrive Bombay High Court in answering the question whether at a similar conclusion. Since the judiciary was in Hindu Bigamous Marriage Act, 1946 which imposed ambivalence and since the elastic and activist content of the prohibition upon bigamy only upon Hindus and not upon right to equality had not emerged as influencing the Muslim, held that since personal law was not law under Art. judiciary traversed a narrow path. 13 the need of testing it under Art. 14 did not arise at all. In Gurdayal Kaur v. Mangal Singh,[40] the High Court of Chagla C. J. and Gajendragadkar J. laid emphasis on the Punjab observed, "if the argument of discrimination based omission of the term personal law in Art. 13 and restrictive on caste or race could be valid, it would be impossible to interpretation of the phrase 'custom or usage' in Art. 13. have different personal laws in this country and the court They gathered support from Art. 17, Art. 25(2) and Art. 44 will have to go the length of holding that creeds or for the view that the Constitution makers had assumed that communities can be Constitutional. To suggest such an different personal law was to prevail subject to modification argument is rejected." It is submitted that the reasoning by the State for the purpose of social reforms. According to based on the right to equality need not have been stretched the learned judges, if Hindu personal law became void by to such an extreme in spite of its desirability. Unjust, reason of Art. 13 then it was unnecessary to specifically discriminatory and anti-liberation principles within each provide for Art. 17 or Art. 25(2). personal law can surely be tackled by application of Part III. It is submitted with respect, the reasoning’s adapted by the As Mohammad Ghouse observes the existence of learned judges were fallacious. Firstly, the definition of the multifarious personal law cannot be a valid defense when a term law in Art. 13(3) is an inclusive definition and hence personal law violates fundamental rights.[41] He considers the logic of omission or restrictive interpretation of 'custom the observation of Punjab High Court as obiter dicta. or usages' cannot be sustained. The more relevant test for Excepting the above three decisions, the approach of the the law under Article 13(3) is whether the concerned norms High Court and that the Supreme Court is generally to apply are capable of being enforced by the state poser. part III of the Constitution to test the Constitutional validity Articles 17 and 25 (2) are illustrative of abundant caution of the impugned principles of personal laws. The High Court and express thinking made by the Constitution makers for of Madras in Srinivas Aiyar v. Saraswathi Ammal,[42] held reforming the social habits. There is no support to the that the reference in the Entry 5 of the concurrent list to proposition that the State cannot interfere in the field of joint Family and Partition (which are institutions of Hindu personal law through any provision of Part III of the law and unknown to Muslim Personal Law) prove that the Constitution. Constitution did not rule out the validity of the principles In fact, the challenged legislation was a measure of social under which different personal laws are applied to different

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religious communities. The court observed, it is surely an REFERENCES indication that it recognizes the classification already in 1. Prohibition of discrimination on grounds of religion, race, existence that a section of the people… are subject to a caste, sex or place of birth system of law peculiar to them. The reason for that 2. The State shall not discriminate against any citizen on classification is not their religion but that they have all along grounds only of religion, race, caste, sex, place of birth or any been preventing their personal law peculiar to them." Hence of them the court treated the whole of personal laws as 'existing law' 3. No citizen shall, on grounds only of religion, race, caste, sex, or 'law in force' under Art. 372 and Article 13. place of birth or any of them, be subject to any disability, In Sheokaran Singh v. Daulatram,[43] the High Court of liability, restriction or condition with regard to Rajasthan struck down the rule of Damdupat in Hindu law as a. access to shops, public restaurants, hotels and palaces of violative of Art. 14 of the Constitution. It reasoned that public entertainment; or Damdupat was a commercial custom and thus governed by b. the use of wells, tanks, bathing ghats, roads, and places of Art. 13. public resort maintained wholly or partly out of State funds The Supreme Court was called to decide the question of or dedicated to the use of the general public whether personal law of Muslims relating to pre-emption as c. Nothing in this Article shall prevent the State from making law under Art. 13 and whether it was violative of Art. 19 (1) any special provision for women and children (f), for the first time in Sant Ram v. Labh Singh [44] in 1965. 4. Nothing in this article or in clause ( 2 ) of Article 29 shall The Court answered that the definition of the phrase 'laws in prevent the State from making any special provision for the force' is dependent upon the definition of law' in Art. (3) (b) advancement of any socially and educationally backward and that both the definitions control the meaning of Article classes of citizens or for the Scheduled Castes and the 13 (1). As principles relating to preemption were based on Scheduled Tribes customs and usages that were governed that it violated 5. Constitution of India, Art 13, cl a. Article19 (1)(f) which guaranteed the right to acquire hold 6. Constitution of India, Art 13, cl b. and dispose of the property. 7. State of Bombay v. Narasu Appa Mali,1952 8. State of Bombay v. Narasu Appa Mali,1952 CONCLUSION 9. State of Bombay v. Narasu Appa Mali,1952 Concerning the statutory personal laws enacted after the 10. State of Bombay v. Narasu Appa Mali, 1952 commencement of the Constitution, the approach of the 11. Srinivas Iyer v. Saraswathi Ammal,1952 judiciary in recent times is to scrutinize them under the light 12. Gurdial Kaur v. Mangal Singh, 1968 of various provisions of Part III without delving into the 13. Suda v. Sankappa Rai, 1963 technical question of whether personal law is law. In T. 14. Abdullah v. Chandni, 1956 Sareetha v. Venkatasubbaiah, [45] the Andhra Pradesh High 15. H.B. Singh v. Bhani, 1959 Court considered Sec. 9 of the Hindu Marriage Act provides 16. Moti Das v. S.P. Hahi, 1959 for retention of conjugal rights to the spouses living 17. State of Bombay v. Narasu Appa Mali, 1952 separately without reasonable justification as violative to 18. Constitutional Law of India personal liberty under Art. 21 of the Constitution. The Court 19. Mahmood T, 1972, Personal Law and the Constitution of viewed that if the unwilling spouse is coerced by State India, New Delhi power to cohabit with the other spouse there is a violation of 20. Krishan Singh v. Mathura Ahir, 1980 the right privacy. Harvinder Kaur v. Hermender Singh,[46] 21. Krishan Singh v. Mathura Ahir, 1980 the Delhi High Court upheld the Constitutional validity of 22. A.M. Bhattacharjee, Hindu Law, and Constitution (1983). Sec. 9 as a reasonable regulation protecting the institution of 23. Nalini v. the State of Bihar, 1977 marriage in accordance with Art. 21. In Saroj Rani, [47] case 24. Mukta v. Kamalaksha,1960 the Supreme Court affirmed the view of Delhi High Court and 25. 1971 Cur. L.J. 660. rejected the view of Chaudhary J. of A.P. High Court. It is to 26. Ahmedabad Women Action Group v. Union of India, 1997 be remembered that the issue of personal law as the law did 27. Maharshi Avadhesh v. Union of India, 1994 not figure in these cases. The question has become a non- 28. Ratilal Panchandi v.State of Bombay, 1954 issue in these cases. 29. Comm. H.R.E. v. Lakshmindra, 1954 About the desirability of applying Part III provision to 30. Mulla Tahir Saifuddin v. State of Bombay,1962 peruse the personal laws, there can hardly be any 31. Durgah Committee v. Hussain,1961 meaningful objection. The principle of equality, liberty, and 32. Durgah Committee v. Hussain, 1961 security have great relevance in a sphere where exploitation 33. Badruddin v. Aisha (1957); Ram Prasad v. the State of U.P., and discrimination prevail and the persuasions of love and 1957 affection are sometimes banished. The application of Part III 34. State of Bombay v. Narasu Appa Mali, 1952 will ensure just and fair legal relations in different personal 35. Ibid. laws. This much more desirable rather than quarreling on 36. Mahmood T., 1986, Personal Laws in Crisis, New Delhi. the pedagogic concept of uniform civil code. Once the 37. Ibid. concepts of justice and liberty are instilled into the realm of 38. This is with the nation that the judiciary is also a state under personal law, the Uniform Civil Code will be easier to pursue. Art. 12 of the Constitution, a principle which is not well As Mohammed Ghouse has observed: “ The Fundamental established. Rights available to a Muslim law to save it from being 39. Maneka Gandhi v. Union of India, 1978 condemned as unConstitutional. The Muslims can have no 40. State of Bombay v. Narasu Appa Mali,1950 objections to such adaptations as most of them have 41. A.M. Bhattacharji "Personal Law and State Action" discarded the license to polygamy and unilateral divorce 42. Sri Krishna Singh v. Mathura Ahir,1980 given to them"[48] 43. Gurdayal Kauri. Mangal Singh,1968. The judicial activism of purging the personal law under the 44. Gurdayal Kaur v. Mangal Singh, 1968 aegis of part III has certain advantages. Such an approach is 45. Srinivas Aiyar v. Saraswathi Ammal,1952 generally free from the defect of playing to the emotional 46. Sheokaran Singh v. Daulatram, 1953 and religious convictions of people.[49] In the backdrop of 47. Sant Ram v. Labh Singh, 1965 unjustifiable legislative inertia and hesitation, the activist 48. T. Sareetha v. Venkatasubbaiah, 1983 approach of the judiciary is a ray of hope. Secondly, as the 49. Harvinder Kaur v. Hermender Singh,1984 'purging' approach is from the viewpoint of the policy 50. Saroj Rani v. Sudarshan Kumar Chaddha,1984 underlying Part III, the result is also excepted to be fair 51. Quran, sura 2, 226 and V 2285 and v. 237 provided that there is no substitution of arbitrariness in Resentment by the Muslim community about Shah Bano's personal law by judicial arbitrariness. decision (AIR 1985 SC 955)

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