Personal Law: What It Is, and Why India Has Several

Christian law, in the Indian Christian Marriage Act 1872, the Divorce Act 1869 and the Indian Succession Act 1925.

Parsi law, in the Parsi Marriage and Divorce Act 1936 and the succession provisions of the Indian Succession Act 1925.

And the Special Marriage Act 1954, which is not a personal law at all but a secular alternative available to any two persons whatever their religion, dealt with in [Christian and Parsi Law, and the Special Marriage Act].

The codified and uncodified distinction, which decides everything

A codified personal law is contained in a statute. It can be challenged under Part III like any other statute, because a statute is plainly "law" within article 13. That is how section 118 of the Indian Succession Act was struck down in John Vallamattom v. Union of India, and how sections of the Hindu Acts have been tested.

An uncodified personal law is not in a statute. Whether it can be challenged at all depends on whether it is "law" within article 13(3)(a), which includes custom or usage having in the territory of India the force of law.

The argument that it is not. Personal law derives from a religious source, not from the State, and article 25 protects the freedom to practise a religion; reform of it is committed by article 25(2)(b) to the legislature and by article 44 to the State, not to the courts. This is the position argued in Shayara Bano and accepted by the minority there.

The argument that it is. Article 13(3)(a) includes custom or usage having the force of law; a rule that Indian courts enforce as binding has the force of law whatever its origin; and to hold otherwise leaves a category of enforceable rules permanently outside the Constitution.

Why the argument has never been finally settled. Because the cases that could have settled it have been decided on narrower grounds. In Shayara Bano, two of the majority judges held that talaq-e-biddat was recognised by section 2 of the Act of 1937 and was therefore STATUTORY law within article 13, which avoids the general question, and the third held that the practice was not essential to the religion, which also avoids it.

The examinable point. State the question, state both arguments, and state that it remains open. An answer that asserts either position as settled law is wrong.

Why several personal laws is said to divide

Because the same event has different legal consequences depending on the religion of the parties. A wife's right to maintenance, a daughter's share, the grounds of divorce and the age of marriage have all differed between systems at various times.

Because reform has been uneven. Hindu law was codified and repeatedly amended; Muslim law was not, and the two statutes passed for it, in 1986 and 2019, were both reactive. The majority experiences this as unequal treatment; the minorities experience the demand for uniformity as an attack on identity. Both readings are honest and MU's 2025 question asks for both.

Because the burden falls unevenly within communities. Almost every rule this paper criticises operates against women, which is why the reform argument and the gender-justice argument are the same argument.

And because the system makes religion a legal status. A person's religion determines which court applies which law to their family. That is a legal category the Constitution's equality provisions do not otherwise recognise.

The other side, which a critical answer needs

Personal law is also a protection. For a small community, the survival of its own law is part of the survival of its identity, which is what articles 25, 26, 29 and 30 exist to protect.

Uniformity is not the same as equality. A uniform code drafted from the majority's law would be uniform and not equal, which is the strongest objection to a uniform civil code and is dealt with in that chapter.

And reform from inside works better than reform imposed. The Hindu Code Bills were carried by a legislature in which the affected community was the overwhelming majority, and that is not a position any minority is in.

A worked example

Two neighbours in Nagpur die intestate on the same day, each leaving a widow, a son and a daughter.

If both families are Hindu. The Hindu Succession Act 1956 applies. The widow, son and daughter each take an equal share as Class I heirs, and since 2005 the daughter is a coparcener in the coparcenary property in her own right.

If both families are Muslim. The rule of decision is Muslim personal law under section 2 of the Act of 1937, under which the shares of the widow, son and daughter are fixed by the applicable school and the daughter takes a share half that of the son.

If one family is Christian. The Indian Succession Act 1925 applies, under which the widow takes one third and the children share the remainder equally without distinction of sex.

What the example shows. The legal consequences of the same event differ by religion, and they differ in ways that are not consistently more or less favourable to any one group. That is the fact MU's question is about, and any answer that treats one system as uniformly worse than another has misdescribed it.

What this does NOT mean

It does not mean personal law is religious law. It is State law administered by State courts, drawn from religious sources and modified by legislation and by precedent.

It does not mean personal law is immune from the Constitution. Codified personal law plainly is not, and the position of uncodified personal law is unsettled rather than settled in its favour.

And it does not mean a uniform civil code is the only answer. Reform within each system, and the strengthening of the secular option in the Special Marriage Act, are the two alternatives most often proposed.

Quick revision

Personal law: family and succession law applied by reason of religion. Origin: the Regulation of 1772, Koran for Mahomedans and Shaster for Gentoos, administered by English courts. Four systems plus the Special Marriage Act 1954. Section 2 of the Shariat Act 1937 APPLIES Muslim law without stating it, so most of it is uncodified. Codified personal law is "law" for article 13; whether uncodified personal law is turns on article 13(3)(a) and is unresolved, because Shayara Bano was decided on narrower grounds. Divides because consequences differ by religion, because reform has been uneven, and because the burden falls on women; protects because identity and reform from within.

Test yourself

1. Define personal law and name its subject matter. The body of rules applied to a person by reason of the religion they profess, governing marriage, divorce, maintenance, guardianship, adoption, succession and in some communities endowments and wakfs.

2. Where does the Indian system come from? From the Regulation of 1772, by which Warren Hastings directed that in suits regarding inheritance, marriage, caste and other religious usages the laws of the Koran should be applied to Mahomedans and those of the Shaster to Gentoos, administered thereafter by English courts through pandits and maulvis.

3. What does section 2 of the Shariat Act 1937 do, and what does it not do? It provides that notwithstanding any custom or usage to the contrary, the rule of decision in the listed matters where the parties are Muslims shall be Muslim Personal Law. It applies that law; it does not codify or state it, which is why Muslim personal law in India is largely uncodified.

4. State the article 13 question and both answers. Whether uncodified personal law is "law" within article 13(3)(a), which includes custom or usage having the force of law, and so subject to Part III. Against: it derives from a religious source protected by article 25, and reform is committed to the legislature by article 25(2)(b) and article 44. For: a rule that courts enforce as binding has the force of law whatever its origin, and the contrary view leaves enforceable rules permanently outside the Constitution.

5. Give one reason personal law divides and one reason it protects. It divides because the same event, such as an intestate death, produces different legal consequences according to the religion of the parties, and because reform has gone much further in one system than in others. It protects because for a small community the survival of its own law is part of the survival of its identity, which articles 25, 26, 29 and 30 exist to guarantee.