Beruflich Dokumente
Kultur Dokumente
Supervisor : Submitted By :
Dr. Mohd. Ahmad Prabodh Kumar Garg
Associate Professor Research Scholar
Faculty of Law, Faculty of Law,
University of Lucknow, Lucknow University of Lucknow,
Lucknow
FACULTY OF LAW
UNIVERSITY OF LUCKNOW,
LUCKNOW, U.P. (INDIA)
2014
Certificate
Chapter I
Introduction 1-12
Chapter II
Philosophy and Concept of Uniform Civil Code 13-41
(A) Personal Laws and Hindu in India
(B) Personal Laws and Muslims in India
(C) British Period
(i) Prelude
(ii) Advent of Britishers
(iii) British Policy towards Personal laws
(a) Philosophy of Neutrality
(b) Codification of law
(c) Legislation on Personal law
(I) Hindu Laws
(II) Muslim Law
Chapter III
Legislative History of Personal Laws in India 42-65
(A) Hindu Law and The Legislature
(i) Pre Independence Legislation
(ii) Post Independence Legislation
(B) Muslim Law and The Legislature
(i) Act Relating to recognition of Muslims Law
(ii) Act Affecting the Substantive Provisions of Muslim
Law
(iii) Acts Regulating Procedural Aspects of Muslim Law
(a) Pre Independence Era
(b) Post Independence Era
(C) Christian and Parsi Laws and The Legislature
ii
Chapter IV
Personal law and the Constitution of India 66-127
(A) Personal laws and the Indian Constituent Assembly
(B) Personal Laws and Legislature Powers
(C) Personal Laws and The Fundamental Rights
(i) Personal Laws and Article 13
(ii) Personal Laws and Article 14 & 15
(iii) Personal Laws and Religious Cultural Freedom
(iv) Fundamental Rights as the Strategy for attaining
Uniform Civil Code
(D) Personal Laws and Directive Principles
(i) Article 44
(ii) Family, Law, Religion and Social Justice
(iii) Directive Principles, Social Change and Uniform
Civil Code
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
Chapter VI
Conflict of Law and Uniform Civil Code 202-243
(A) Conflict between Hindu Law and Christian Law
(B) Conflict between Muslim Law and Hindu Law
(C) Conflict between Christian Law and Muslim Law
Chapter VII
The Muslim Women (Protection of Rights on Divorce) Act,
1986: Parliament Initiative After Shah-Bano Case 244-263
iii
Chapter VIII
Conclusion & Suggestion 264-271
Appendix 272-328
(I) The Muslim Personal Law (Shariat) Application Act, 1937
(II) The Dissolution of Muslim Marriages Act, 1937
(III) The Mussalman Wakf Validating Act, 1913
(IV) The Child Marriage Restraint Act, 1929
(V) The Muslim Women (Protection of Rights on Divorce) Act,
1986
(VI) The Muslim Women (Protection of Rights on Divorce)
Rule, 1986
(VII) The Parsi Marriage And Divorce Act, 1936
Bibliography 329-337
Acknowledgment
She was kind enough to spare her valuable time, whenever I need his
help.
Date
Guj. : Gujarat
H.C. : High Court
H.L.R. : High Court Reports
H.P. : Himanchal Pradesh
I.A. : Indian Appeals
i.e. : That is
I.L.R. : Indian Law Reports
Ibid. : Ibidem
Id. : Idem
J. : Journal
J.I.L.I. : Journal of Indian Law Institute
J.T. : Judgment Today
Kant. : Karnataka
Ker. L.T. : Kerala Law Times
Ker. : Kerala
Ltd. : Limited
M.I.A. : Moore's Indian Appeals
M.L.J. : Madras Law Weekly
M.P. : Madhya Pradesh
Mad. : Madras
Mat. L.R. : Matrimonial Law Reports
N.O.C. : Note on Cases
Nag. : Nagpur
op.cit : Opere Citato
Ori. : Orissa
P.& H. : Punjab Law Reports
P.C. : Privy Council
p.pp. : Page, pages
Pat. : Patna
Punj. : Punjab
Pvt. : Private
viii
Raj. : Rajasthan
S.C. : Supreme Court Cases
S.C.J. : Supreme Court Journals
Sect. : Section
U.P. : Uttar Pradesh
U.S. : United States
Viz. : Videlicet
Vol. : Volume
vs. : Versus
W.L.R. : Weekly Law Reports
Yaj. : Yajnavalkya
List of Cases
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.
1
Dr. Paras Diwan, Peeyashi Diwan: Family Law; Third Ed. 2
2
5
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
6
"I shall also like to point out that the state is claiming in
this matter power to legislate. There is no obligation upon
the state to do away with the personal laws. It is only
giving the power. Therefore no one need to be apprehensive
of the fact that if the state has the power, the state will
immediately proceed to execute or enforce that power in a
manner that may be found to be objectionable by the
Muslims or Christians or by other community in India.
Sovereignty is always limited, no matter even if you assent
that is unlimited, because overeignty in the exercise of that
power must reconcile itself to the sentiments of different
communities. No government can exercise its power in such
a manner as to provoke the Muslim community to rise in
rebellion. I think it would be mad government if it did so."
Thus, MPL being the part and parcel of the religion and
culture of the Muslim Community is duly protected by Part III of
the Constitution. In such Constitutional scenario if the state
enacts any Law which takes away or abridges the Personal Law
of the Muslim community, it shall attract Article 13(2) of the
Constitution which reads:
"The state shall not make any Law which takes away Or
abridges the Rights conferred by this part (III) And any Law
made in contravention of this clause shall to extent of the
contravention, be void."
6
Article 25(1) of the Indian Constitution
Article 26(a)(b) of the Indian Constitution
Article 29(1) of the Indian Constitution
8
7
Sardar syedma Tahir Saifuddin Sahib Vs. state of Bombay, AIR 1962 SC 853
8
AIR 1956 Cal 224
9
AIR 1980 SC 707
10
AIR 1985 SC 945
9
Chapter I- Introduction.
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
supersedes the right of citizens to be governed under different
12
. The law is relating to marriage, divorce, maintenance, guardianship and
succession governing the Hindus, Muslims and Christians etc., is different and
varies from one religion to other. There are different laws like the Hindu Marriage
Act; the Hindu Succession Act; the Hindu Minority and Guardian ship Act, the
Hindu Adoption and Maintenance Act governing the personal matters of Hindus.
The Shariat Act, The Dissolution of Muslim Marriage Act and the Muslim Women
(protection of Rights on Divorce) Act etc., which are based on the tenets of Holy
Quran, govern the personal matters of Muslims. Similarly the Indian Christians are
governed by the Indian Christian Marriage Act, the Indian Divorce Act and the
Cochin Christian Succession Act etc. Parsis are governed by a different set of laws
Thus it is clear that there is no uniformity in all personal laws as they confer
unequal rights depending on the religion and the gender.
13
. Article 15 of the constitution of India lays down a guarantee to every citizen that
consists of No discrimination or any ground only of religion race, caste, sex, place
of birth or any of these. Article 15 (3) provides that for women and children special
provision can be made by the state, women empowerment enjoys constitutional
protection of this Article 15 (3). Article 39 (a) (d) and (e) lay down certain
principles of policy that are to be followed by State. Men and Women citizens shall
enjoy equal right to an adequate means of livelihood. There shall be equal pay for
equal work for both men and women and that the health and strength of workers
men and women shall not be abused. Article 42 provides for just and humane
condition of work and maternity relief.
14
14
. 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.
15
15
. 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.
16
of the society were Hindu sages. The rules they laid down not
only concerned religious ceremonies and rites, but also acted as
a code of ethics and morality and governed social intercourse
and even matters of politics and government. 17 Whilst in the
early writings of the sages, civil laws and religious and social
rules were not differentiated from each other and civil law was
found scattered all over the treaties, the later treatises devote
separate chapters to civil law and still later ones devoted their
entirety to the discussion of civil law.18
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)
18
U.C. Sarkar, Epochs in Hindu Legal History 23 (1958). (This work is cited here
in after as Sarkar, Epochs).
19
U.C. Sarkar, "Hindu Law : Its Character and Evolution."
20
A.S. Altekar, State and Government in Ancient India (1958).
21
A. Chakerbarti, Nehru His Democracy and India (1961) p. 213.
22
U.C. Sarkar, Epochs in Hindu Legal History (1958) p. 213.
18
27
G.R. Rajgopal, "Uniform Civil Code or Dream ?" The Civil and Military Law
Journal (1985), Vol. 21. No. 1-2, pp. 46-47.
20
28
U.C. Sarkar, "Hindu Law : Its character and Evolution", 6 JILI (1964), p. 213.
29
U.C. Sarkar, "Hindu Law : Its character and Evolution", 6 JILI (1964), p. 214.
30
U.C. Sarkar, "Hindu Law : Its character and Evolution", 6 JILI (1964), p. 214.
31
Saletore, Ancient Indian Political Though and institutions (1963)
32
Brihaspati Upanishad, cited by Altekar, State and Government in Ancient India
(1958).
scrupulously respect established law and custom. 33 From these
accounts it appears that in Hindu India, the society was given
primacy over the state and religion. It will be an
oversimplification to contend that Hindu regarded law as an
integral part of their religion.34 This claim is, perhaps, founded
on the basis that the sage being the Hindu law-givers, were
regarded as divinely inspired.35 Divinity was attributed them
because they were highly enlightened men of encyclopedic
learning. Altekar says: "Laws, though regarded as divine, were
really based upon social customs and traditions. By sanctioning
their operation, the state did not become an instrument in the
hands of the Church or the priest it rather became the
mouthpiece of the social will."36
44
Hamilton and Grady (ed.), Hedaya cited in Sarkar, Epochs at 231.
45
Von Kremer, Culturgeschichte des Orients den Chalifen p. 183 (1875).
46
U.C. Sarkar, Hindu Law : Its Character and Evolution, 6, J.I.L.I. p. 209.
47
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.
24
C. British Period
(i) Prelude
49
M.P. Jain, Outlines of Indian Legal History. (1990) pp. 581-90.
50
M.P. Jain, Outlines of Indian Legal History. (1990) pp. 581-91.
51
J.M. Shelat, Secularism, Principles and Application, (1973) p. 75.
52
Second Law Commission of India, (1833) in M.P. Jain, Indian Constitution Law,
N.M. Tripathi Pvt. Ltd. Bombay (1987), p. 649.
53
V.D. Kulshreshtha, p. 37.
54
V.D. Kulshreshtha, p. 37.
26
55
M.V. Pylee, Constitutional Government in India, (1960) p. 45
56
M.V. Pylee, op. cit. pp. 1-27.
27
57
B.P. Ojha, "Common civil Code and Its Probable Effect on Society", Link,
September 6, 1992 p. 33, Tahir Mohammood, Muslim Personal Law, (1977), p. 4.
58
The Charter of 1726 issued to East India Company by King George I on
September 24, 1726, established for the first time Mayor's Courts in the three
Presidency towns of Calcutta, Madras and Bombay. These courts derived their
authority from the king, and could therefore, be designated as Royal Court. E.J.
Rapson, The Cambridge History of India, (1922) Vol. V Chapter IV p. 113, M.P.
Jain, supra note 40, pp. 35-54 and also see V.D. Kulshreshtha. op. cit. p. 63.
59
M.P. Jain, supra note 40, pp. 38-39.
28
1772. Under this scheme it was provided that all the civil
matters, such as disputes relating to real and personal
property, inheritance, marriage, caste, debt, disputed accounts,
partnership and demands for rent were to be decided by
Moffusil Diwani Adalat to each district headed by the collector
of that district as judge. Provisions were also made that in all
suits regarding inheritance, marriage, caste and other religious
usage and institution, the laws of the Koran and Shastras were
to be applied, in respect of the Muslims and Hindus
respectively.60 Since the Englishmen were used to be appointed
as collectors, they were not very much aware of the customs
regarding marriage, caste and usages of Hindus and Muslims.
Therefore, native law officers i.e. Kazis and Pandits, were
appointed to assist the collector. Not only did they lay down this
but also prepared a digest according to the customary laws of
Hindu and Muslims for the guidance of courts. 61 While the
administration of civil justice had been taken over the English
judges, the criminal was left over to Muslim judges. For this
purpose Mofussil Fauzdari Adalats were established in each
district to try all kinds of criminal offences. Muslim law officers
viz. Kazis, Muftis and Moulvies, were used to be appointed as
judge in these Adalats.
60
V.D. Kulshreshtha, Supra note 19 pp. 90-92, Tahir Mohammood, An Indian
Civil Code and Islamic Law, (1976), p. 53, also see supra note 48, p. 89.
61
Tahir Mohammood, An Indian Civil Code and Islamic Law, (1976), p. 91.
established in 1774.62 On the recommendation of Sir Elijah
Impey, the word "succession" was added to the word
"inheritance" by Warren Hastings.63 The Act of Settlement, 1781
also provided:64
62
M. C. J. Kagzi, "Advisability of Legislating a Uniform Family Law Code"
(1965) in Jaipur Law Journal (No. 5, p. 193).
63
Tahir Mohammood, An Indian Civil Code and Islamic Law, (1976), p. 100.
64
Geo, II C. 70, Sec. 18.
65
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). p.
168.
30
66
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). p.p.
582-83.
67
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987) p.
580.
31
Though the British rulers had reserved the Hindu law for
Hindus and the Muslim law for Muslim in certain areas, they
realized that the general law of the country was under an
imperative need of change. The legal system of India in the early
nineteenth century was one of confusion and chaos. Different
laws were applied by village, district and provincial courts.
While in many matters of civil laws. Hindus and Muslims were
governed by their own laws, non-Hindus and non-Muslims were
governed by their own laws, non-Hindus and non-Muslims were
governed by the other set of laws. The Muslims criminal law
which was applied to Muslims, Hindus and other natives had
become obsolete. The uncertain state of law in India demanded
suitable action by the British parliament, but the movement for
codification appears to have been hastened because of two
other factors. First was the creation of an All India Legislature
and the appointment of a Law Members as a Law Commission
by the Charter Act of 1833. Second was the far reaching
influence of Bentham.70
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:
71
B.B. Mishra. The administrative History of India General Administration
(1970) , pp. 527-28.
34
75
Ratan Lal Ranchhodas and Dhiraj Lal Keshav Lal Thakore, The Indian Penal
Code, (1954), p. viii.
76
Ratan Lal Ranchhodas and Dhiraj Lal Keshav Lal Thakore, The Indian Penal
Code, (1954), p. 252.
77
Ratan Lal Ranchhodas and Dhiraj Lal Keshav Lal Thakore, The Indian Penal
Code, (1954), Section 309.
36
81
U.C. Sarkar, Epochs in Hindu Legal History, Visheshvarananda Vedic Research
Institute Hoshiarpur (1958), p. 369.
82
Ratan Lal Ranchhodas and Dhiraj Lal Keshav Lal Thakore, The Indian Penal
Code, (1954), p. 352.
83
Ratan Lal Ranchhodas and Dhiraj Lal Keshav Lal Thakore, The Indian Penal
Code, (1954), p. 352.
84
The Hindu Inheritance (Removal of Disabilities) Act, 1928 and The Hindu Law
of Inheritance (Amendment) Act, 1929.
38
85
The Hindu Inheritance (Removal of Disabilities) Act, 1928 and The Hindu Law
of Inheritance (Amendment) Act, 1929, p. 293.
86
The Hindu Inheritance (Removal of Disabilities) Act, 1928 and The Hindu Law
of Inheritance (Amendment) Act, 1929, p. 293.
39
(Validating) Act. This was to undo the effect of the Privy Council
ruling in the famous case Abdul Fata Mohammad Ishak v.
Rusomoy Dhur Chowdhary.87 The Muslims regarded his judicial
dicta as being inconsistant with the true view of the Shariat.
However, it went further and declared such a Wakf void ab
initio. This did appear to be invasion. The strong emotional
reaction of the Indian Muslims against this decision finally
obtained the enactment of the Mussalman Waqf Validating Act
of the 1913 which nullified the decision of Privy Council in Abul
Fata's case. This was a pyrrhic victory for Muslims; it's social
consequences were devastating. It blocked any initiative by the
Muslim upper class in the direction of industry. It perpetuated
a pathetic class of pensioners devoid of economic initiative who
were in the long run, bound to become a drag on the
community.88
87
(1894) 22 I.A. 76 at pp. 86-87.
88
Danial Latifi , "Change and the Muslim Law," in Tahir Mahmood, ed., Islamic
Law in Modern India, (1972) p. 106.
89
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). pp.
617-18.
the Muslim law.90 Danial Latifi is of the view that Muslim
Personal Law (Shariat) Application Act was passed primarily to
improve the status of Muslim women by restoring the custom-
eroded right due to them under the Muslim Law. 91 As the
statement of objects and reasons point out:92
94
Tahir Mahmood, Muslim Personal Law, (1977) pp. 54-57.
95
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). p.
606.
Chapter III
97
U.C. Sarkar, Epoch in Hindu Legal History, pp. 348 (Hoshiarpur:
Visheshvaranand Vedic Research Institute 1958).
44
102
M.P. Jain, Outlines of Indian Legal History, p. 484.
103
D.K. Srivastava, Religious Freedom in India, p. 235 (New Delhi 1982).
46
104
The difficulties faced by the British administrator in reaching and implementing
this decision are described in K. Ballhatchet, Social Policy and Social Change in
Western India, p.p. 275-91 & PP. 298-305.
105
D.K. Srivastava, Religious Freedom in India, p. 235 (New Delhi 1982, p. 234.
47
110
Sections 2(b) and 3 of the Act.
111
U.C. Sarkar, Epoch in Hindu Legal History, pp. 374 (Hoshiarpur:
Visheshvaranand Vedic Research Institute 1958).
112
Act III of 1872 and Arya Marriage Validation Act of 1937.
113
D.K. Srivastava, Religious Freedom in India, p. 246 (New Delhi 1982).
49
114
M.P. Jain, Outlines of Indian Legal History, pp. 489-90 (4th ed. 1981).
115
R.P. Anand, Hindu Law in Historical Perspective p. 32, (1966) II SCJ.
116
R.P. Anand, Hindu Law in Historical Perspective p. 33, (1966) II SCJ.
117
Setalvad, cited by M. P. Jain, Supra n. 4, p. 490.
50
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
118
Nanda, Marriage and Divorce in India : Conflicting Law 55 North Western
University Law Review, p. 632 (1960) and literature quoted therein.
119
R.P. Anand, Hindu Law in Historical Perspective p. 33, (1966) II SCJ.
120
Generally Derrett, The Codification of Personal Law in India : Hindu Law, 6
Indian year Book of International Affairs, p.p. 189-211 (1957).
121
M.P. Jain, Outlines of Indian Legal History, p. 490 (4th ed. 1981).
51
Hindu family, has been left untouched and for the present there
is no move to codify this branch of law.
122
Tahir Mahmood, Legislation for the Muslims in British India in An Indian
Civil code and Islamic Law p. 52 (1976, Tripathi; Bom.).
52
123
The Madras Civil Court Act, 1873, S-16and the corresponding provisions
enacted for other provinces.
124
For example Maplla Muslims of South India and Cutchi Memons were governed
by their old customary law of succession and inheritance.
125
Tahir Mahmood, Legislation for the Muslims in British India in An Indian
Civil code and Islamic Law p. 53 (1976, Tripathi; Bom.).
53
Law.126 Ten years later the Mapilla Wills Act, 1928 was enacted
to deal with the cases of testamentary succession among the
Mapilla of South India.
126
Section 3 of the Act.
127
The Mysore Cutchi Memons Act, 1943; Cochin Cutchi Memons Act 1106F;
Tranvancore Cutchi Memons Act, 1117F.
54
128
S. Khalid Rashid, Muslim Law, p. 34 (3rd ed. 1996).
55
The Oudh Laws Act of 1876 was the first legislative step
in British India, which affected a substantive provision of
132
Section 3 of the Act.
133
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.
134
Tahir Mahmood, Legislation for the Muslims in British India in An Indian
Civil code and Islamic Law p. 58 (1976, Tripathi; Bom.).
57
139
In Orissa this Act has been re-enacted as the Orissa Muhammadan Marriages and
Divorces Registration Act, 1949.
60
140
The Haj Committee Act, 1959 (No. 51 of 1959).
141
S. Khalid Rashid, Muslim Law, p. 63 (3rd ed. 1996).
142
S. Khalid Rashid, Muslim Law, p. 63 (3rd ed. 1996).
143
Now replaced by U.P. Muslim Wakf Act, 1960.
144
S. Khalid Rashid, Muslim Law, pp.37-38 (3rd ed. 1996).
61
final form of the words incorporated in Article 25(1) and (2) did
not create any exception in favour of any community.
Constitution of India, nevertheless, recognizes, the personal
laws by vesting the legislative power in the Parliament and the
State legislation on all matters in respect of which the parties
in judicial proceedings were, immediately before the
commencement of this Constitution, subject to their personal
laws, including, inter alia matters like marriage and divorce
infants and minors adoption; will, intestacy and succession;
joint family and partition.145 But the most problematic and
controversial provision of the Indian Constitution with regard to
personal laws, is Article 44 which requires the state to
endeavour to secure for the citizens a uniform civil code
throughout the territory of India. Inspite of being only a
directive and thus legally un-enforceable, this Article has
provoked serious debates both on the judicial platform and
elsewhere.
147
Dr. Saleem Akhtar, Shah Bano Judgment in Islamic Perspective, p. 341 (1st ed.,
1994 Kitab Bhavan New Delhi.)
148
Dr. Saleem Akhtar, Shah Bano Judgment in Islamic Perspective, p. 341 (1st ed.,
1994 Kitab Bhavan New Delhi.).
63
151
M.P. Jain, Outlines of Indian Legal History, p. 491. (4th ed. 1981).
couple married under this law comes to be governed by the
Indian Succession Act, 1925.152
152
M.P. Jain, Outlines of Indian Legal History, p. 491. (4th ed. 1981).
Chapter IV
153
Tahir Mahmood, Personal Laws in Crisis, p. 3 (1st Ed. New Delhi, 1986).
154
V Constituent Assembly Debates, p. 213 (1947).
68
155
V Constituent Assembly Debates, p. 225 (1947).
156
D.K. Srivastava, Religious Freedom in India, p. 240 (New Delhi, 1982).
157
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 543, (1949).
69
(c) Time was not ripe for effecting uniformity in civil laws;
the powers given to the state to make the Civil Code
uniform was in advance of time. The goal should be
towards a uniform civil code, but it should be gradual and
with the consent of the people concerned.
(a) One of the secrets of the success of the British rulers and
the basis of their judicial administration was retention of
personal laws;
163
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates pp 543, (1949).
164
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates pp 543, (1949).
165
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates pp 544-46, (1949).
72
166
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 546, (1949).
167
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 543, (1949). p. 543
168
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates pp 543, 547-48, (1949).
73
vii. People should outgrow the notion given by the British that
personal law was part of religion.
169
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates pp 549-550, (1949).
170
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 540, (1949).
74
171
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 541, (1949).
172
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates pp 550-52, (1949).
173
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 552, (1949).
174
M.A. Baig Sahib Bahadurs Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 721, (1949).
had already adopted.175 Ismail Saheb said that on the question
of cow slaughter the minority communities had agreed to
respect the feelings of Muslims regarding their personal laws. 176
He was strongly supported by Syed Kamaluddin who
emphasized the religious origin and character of Muslim
personal law.177 Maulana Harsat Mohani, too, lent his support
to the amendment moved by Mohammad Ismail Saheb and
chose to declare in the House that Mussalmans will not submit
to any interference in their personal law and those who tried to
interfere will have to face an iron wall of determination by
Muslims to oppose them in every way.178
183
Tahir Mahood, Muslim Personal Law, Role of the State in the Subcontinent, p.
97 (1977).
184
AIR 1941 FC 16
185
Panch Gujar Kaur v. Amar Singh, AIR 1954 Raj. 100.
186
Motibai v. Chanayya, AIR 1954 Hyd. 161.
187
Naresh Bose v. S.N. Deb, AIR 1956 Cal. 222.
188
Rao Mote Singh v. Chandrebali, AIR 1956 M.P. 212.
189
Atmaram v. State, AIR 1965 Bom. 9.
79
190
Tahir Mahood, Muslim Personal Law, Role of the State in the Subcontinent, p.
97 (1977).
80
198
Articles 14&15.
199
Clause 3(a).
83
v. 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.
202
AIR 1952 Bom. 89, para 13.
203
AIR 1952 Bom. 90, para 13.
204
AIR 1952 Bom. 91, para 13.
86
205
Srinivas Iyer v. Saraswathi Ammal, AIR 1952 Mad. 1993.
206
Gurdial Kaur v. Mangal Singh, AIR 1968 P & H 396.
207
Suda v. Sankappa Rai, AIR 1963 Mys. 245.
208
Abdullah v. Chandni, AIR 1956 Bhopal 71.
209
H.B. Singh v. Bhani, AIR 1959 Manipur 20.
210
Moti Das v. S.P. Hahi, AIR 1959 SC 962.
211
State of Bombay v. Narasu Appa Mali , AIR 1952 Bom. 84.
212
Commentary on the Constitution of India, Vol. I, p. 155 (1965).
213
Constitutional Law of India, pp. 254-255 (1968).
214
Personal Law and the Constitution of India in T. Mahmood (ed.) Islamic Law
Modern India, pp. 57-58 (1972).
87
215
AIR 1980 SC 707
216
Krishan Singh v. Mathura Ahir , AIR 1980 SC 712.
217
A.M. Bhattacharjee, Hindu Law and Constitution (1983).
88
218
AIR 1977 Pat. 171.
219
AIR 1960 Mys, 182
220
1971 Cur. L.J. 660.
221
(1997) 3 SCC 573.
222
1994 Supp. (1) SCC 713.
89
223
(1954) SCR 1055
224
Comm. H.R.E. v. Lakshmindra, (1954) SCR 1005.
225
AIR 1962 SC 853
91
226
AIR 1961 SC 1402
227
Durgah Committee v. Hussain , AIR 1961 SC 1415
228
Badruddin v. Aisha (1957) , ALJ 300; Ram Prasad v. State of U.P., AIR 1957
All. 141.
92
229
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. pp. 86-87.
230
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. pp. 86-87.
93
231
Tahir Mahmood, Personal Laws in Crisis, p. 20 (1st Ed. New Delhi, 1986).
94
or prevent the state from "making any law providing for social
welfare and reform" Under Art. 15(3), State is empowered to
make laws creating special provisions for women and children.
Further the right to conserve religion under Art. 29(1) cannot be
interpreted to protect personal laws either for the reason that
personal law is not an essential matter of religion or for the
reason that state is enable to make a social reforms under art.
25(1).
236
AIR 1980 SC 707.
99
237
AIR 1968 Punj. 396. at 398.
238
Gurdayal Kaur v. Mangal Singh , AIR 1968 Punj. 396. at 398.
100
245
Quran, sura 2, 226 and V 2285 and v. 237 p. 232.
246
Resentment by the Muslim community about Shah Bano decision (AIR 1985
SC 955) is unfortunately an exception.
103
(i) Article 44
247
Article 37 of the Constitution of India.
104
248
Mohd. Ahmad Khan v.Shah Bano,, AIR 1985 SC 945.
249
Ms. Jordan Dienghed v. S.S. Chopra, AIR 1985 SC 935.
250
Sarla Mudgal v. Union of India, (1955) 3 SCC 635.
251
T.M. Knox, Hegel's Philosophy of Right, p. 111 (1958).
252
Steven Vago, Law and Society, p. 265-67 (1931).
105
253
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).
254
K, Suibba Rao, Social Justice and Law, p. 1
255
R.W.M. Dias, Jurisprudence pp. 81-82; Also see John Rawis, A Theory of
Justice pp., 3-4 (1972).
106
"India must break with much of her past and not allow it to
dominate the present. Our lives are encumbered with the
deadwood of this past, all that is dead and has served its
purpose has to go. We have go get out of traditional ways of
thought and living which, for all the good they have done in a
past age, and there was much good in them, have ceased to
have significance today.269 The only significant doctrines and
values of the modern age are republicanism, secularism and
social justice which move the generations and stir them to
actions for social happiness. "The whole concept of the secular
state is based on the elementary truth that the individual is the
centre of social organization and not groups-religions or
otherwise and that equal rights should be secured to the
citizens through democratic devices".270 Values promoting social
justice are always to be preferred over the irrational and
baseless traditional principle. Social change is necessary for
this purpose.
269
Jawaharlal Nehru, The Discovery of India, p. 509 (1962).
270
K.T. Ramaswamy, The Hindu 14.7.1951 citied by Donaid Eugen Smith.
recreation, language, and other activities"271 The equation
whether law can and should lead, or whether, it should never
do more than cautiously follows changes in society, has been
and remains controversial. Despite the debate, modern welfare
states, make use of law as "instruments that set off, monitor, or
otherwise regulate the fact or pace of social change," 272 Law can
shape social institutions directly or indirectly. It can not lead
the society, in its own way, to the land of social justice provided
that factor resisting social change do not counter-balance the
effort of the law.273 Further, to be successful instrument of
social change, law should be free from technical defects and
loopholes and should be effective.274
271
Steven Vago, Law and Society pp. 238-239 (1981); B.S. Sinha, Law and Society
Social Change p. 16-23 (1983).
272
Lawrence M. Friedman, Legal Culture and Social Development, Law and
Society Review 4 (1) p. 29 cited by Steven Vago.
273
For a detailed discussion of factors resisting social change.
274
The importance of technical perfection of the legal instrument and efficient
handling of it by administrators of law and justice is pointed out by W. Friedman
Legal Theory 177 (5th) Ed. 1967).
275
Because of the characteristic of non-enforceability, the Directive Principles of
State Policy re regarded as principles of constitutional morality. H.M. Seervai,
Constitutional Law of India, p. 1612 Vol. II (1984).
111
276
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.
277
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).
112
278
Upendra Baxi, "Directive Principles of Sociology of Indian Law: A reply to
Jagat Narain" 1 JILI p. 258.
279
T Daxidas , "Directive Principles; Sentiment of Sense?" 17 JILI (1975) 478 at
481.
280
T Daxidas , "Directive Principles; Sentiment of Sense?" 17 JILI (1975) 478 at
481.
113
288
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.
289
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.
290
Refer the speech of Naziruddin Ahmed in CAD Vol. VII, p. 540.
118
291
Tibor Mende
292
Without moving the altruistic lever through emphasizing on factors of duty and
coercion, the much expected social action can never be attained, as per the view of
Rudolph van Ihering,
293
Mohammad Ghouse, Secularism, Society and law in India, p. 232 (1978),
Tulzapurkar, J. Union Civil code AIR 1987 Jour 17.
Muslim community.294 Because of the hesitation of judges and
jurists to adopt reformative approaches, the law became
stagnant. Even the perversions of religious teachings were not
rectified.295 For example, regarding polygamy, Quran stated that
one can marry more than one wife (upto four) only if he is able
to treat all equitably.296 Since such a treatment is impracticable,
there is virtual discardment of polygamy. About the duty to
maintain divorced wife also Quranic approach is liberal. 297 Rigid
usages developed because of deliberate manipulation.
294
Talzapurkar.
295
V.R. Krishna Iyer, Social Mission of Law, p. 187 (1976)
296
Quran, sura 4:3
297
Quran, sura 2, 226 and V 2285 and v. 237.
298
AIR 1979 SC 362
299
AIR 1985 SC 955
120
300
Sec. 4(1)
301
Sec. 4 (2)
302
Tulzapurkar, p.18
303
Generally V. Krishan Iyer, Muslim Women Protection Act (1987).
121
311
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.
124
312
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.
313
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.
125
314
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.
315
Neil B.B. Baillie, Digest of Mohummadan Law, p. 625 (1957).
arbitrary.316 The rule of limitation on testamentary succession
can be adopted in other personal laws subject to modifications.
On the whole, the future personal laws code should incorporate
benevolent principles in various laws of the present. The
immediate attention of legal activism should be on reforming
the personal laws rather than hurrying for Uniform Civil Code.
If at all Uniform Civil Code is going to be enacted it should not
be on the basis of half-way-house approach of voluntary
Uniform Civil Code.317 This is for the reason that loopholes,
defects and ineffectiveness in social reform legislation not only
make the effort futile, but their failure even on technical ground
will be a source of discouragement and inhibits future efforts.
128
Chapter V
318
Article 12 (Part III). Article 36 says that State in Part IV has the same meaning
as in Part III.
319
AIR 1952 Bom. 84
130
323
Davis v. Beason, (1989) 133 US 640
132
325
State of Bomaby v.Narasu Appa Mali, AIR 1952 Bom. pp. 91-92
326
AIR 1952 Bom. 84
327
State of Bomaby v.Narasu Appa Mali, AIR 1952 Bom. 87
134
328
State of Bomaby v.Narasu Appa Mali, AIR 1952 Bom.. 95
329
AIR 1952 Mad. 193
330
Madras Hindu (Bigamy and Divorce) Act, 1949
331
AIR 1952 Bom. 84
332
Srinvasa Aiyar v. Sarawathi Ammal, AIR 1952 Mad. 194
333
Reynolds v. US (1870) 98 US 145
135
337
Itwari v. Asghari, AIR 1960 All 684
338
Itwari v. Asghari, AIR 1960 All 684
137
344
Smt. Gurdial Kuar v. Mangal Singh, AIR 1968 Punj. pp. 398-99.
140
The court going one step ahead held345 "if the argument of
discrimination based on caste, creed or race could be valid, it
would be impossible to have different personal laws in this
country relating to all matters and covering all cases, creeds
or communities to be constitutional."
347
Mohammad Abu Zafar Mohammad Ibrahim v. Israr Ahmad and others , AIR
1917 All. pp. 368-69.
The outcome of this judicial verdict is that while
interpreting the provisions of Zamindari and Land Reform Laws,
one has not to be carried away by the notions of personal law
but allow the Transfer of Property in favour of mosque in the
shape of Waqf keeping in view the religious purpose of transfer
of land. It may however be pointed out this present case that
the court had failed to bring the case under the spirit of Article
44. The reason for this failure was that there was no provision
in U.P. Zamindari Abolition and Land Reform Act, 1951 which
could help the court to invalidate the transfer of Agricultural
land for religious purposes.
348
AIR 1972, Ker. 27
143
349
Makku Rawther's Chidren: Assan Rawther and other v. Manahapara Charayil,
AIR 1972, Ker. 33.
144
the case were that while the Indian Succession Act, 1865 was
enforced in British India, the Travancore Regulation II of 1092,
corresponding to 1916 was passed. The main object of this Act
was consolidate and amend the rules of law applicable to
intestate succession among the Indian Succession Act was
passed in the year 1925. The Act was passed with a purpose to
consolidate the law applicable to intestate and testamentary
succession. The main issue in the case before the High Court
was that whether with the coming into force of the Indian
Succession Act, 1925, the Indian Christina will be governed by
the Act of 1925 of Travancore Regulation II of 1092. The
plaintiff submitted before the trail court that he may be
governed by the State Law. But the trial court rejected the plea
and held that State law is no more in existence and stands
repealed by the Indian Succession Act of 1925. The reading of
the Act makes it crystal clear that the State Government under
Section 3 of the Act, by an official notification in the official
gazettee can exempt the operation of the said act. The reason
being that subject-matter lies in the act. The reason being that
the subject-matter lies in the concurrent list. Chief Justice
Kailasam, while 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
351
D. Chelliah Nadar v. G. Lalita Bai, p. 70
146
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.
352
AIR 1971 Ker 261
147
353
1971 K.L.T. 663
148
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
but also that a wife is entitled to divorce, under Section 2 (ix) of
the Act (i.e. "on any ground which is recognized as valid for the
dissolution of marriage under Muslim Law") if her marriage has
broken down. However, the neglected and cruelty not having
been proved the case was remanded to the court below to find
out, as a last resort, whether there was a total breakdown of the
marriage.
354
AIR 1975 SC 83
149
between the District court and the High Court and resultantly
the case came to the Supreme Court by way of Special leave
Petition. While delivering the judgment on behalf of other two
judges Sarkaria J. observed:355 "Section 488 is intended to
serve a social purpose and to prevent vagrancy and destitution
and to find out as to what is required by the wife to maintain a
standard of living which is neither luxurious nor penurious, but
is modestly consistent with the status of the family. The needs
and requirements of the wife for such moderate living can be
fairly determined, only if her separate income, also is taken into
account together with the earnings of husband and his
commitments." Commenting on the relationship between
Section 488 and Section 23 he further observe that the former
provides a machinery for the summary enforcement of the
moral obligation of a man towards his wife and children so that
they may not out of sheer destitution became a hazard to the
well-being of orderly society. As against this the latter provision,
provides for the fixation of rate of maintenance allowances, for
the enforcement the rights of Hindu wives of dependents under
their personal law. Thus the scope of two laws in different.
Section 488 is applicable to all persons belonging to all religious
and has no relationship with the personal laws of the parties. 356
In this case the Supreme Court has tried to narrow the gap
between the general provision of law regarding maintenance
and the provision under the personal law of the Hindus. Thus
through this decision the Supreme Court by ignoring the
personal law stressed that stressed that provisions under
355
Bhagwan Dutt v. Smt. Kamal Devi, AIR 1975 SC 86
356
Bhagwan Dutt v. Smt. Kamal Devi, AIR 1975 SC 87.
150
357
AIR 1980 SC 362
358
Bai Tahira v. Ali Fissalli, AIR 1980 SC 365
151
"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 decoding of text of the Section 127. The
Keynote thought is adequacy of payment which will take
reasonable care of her maintenance."
He added further:
359
Bai Tahira v. Ali Fissalli, AIR 1980 SC pp. 365-66.
152
360
Bai Tahira v. Ali Fissalli, AIR 1980 SC 366
153
He further observed:363
365
Mst. Zohra Khatoon v. Mohd. Ibrahim , AIR 1981 SC 1243 .
366
Mst. Zohra Khatoon v. Mohd. Ibrahim , AIR 1981 SC 1251
367
AIR 1985 SC 945
156
"The time has now come for a complete reform of the law of
marriage and to make a uniform law applicable to all
people irrespective of religion or caste. It is necessary to
introduce irretrievable breakdown of marriage and mutual
consent as ground of divorce in all cases."
373
Ms. Jorden Diengdeh v. S.S. Chopra, AIR 1985 SC 935.
374
Mary Roy v. State of Kerala, AIR 1986 SC 1011.
161
379
Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor , AIR 1987 SC 1107.
380
Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor , AIR 1987 SC 1108
381
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.
382
Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor, AIR 1987 SC 1103
163
385
AIR 1992 AP 190
386
P. Jayalakashimi v. Revichandran , AIR 1992 AP pp. 191-92.
166
387
M. Alavi v. T.V. Safia, AIR 1993 Ker. 21, Bishnu Charan Mohanty v. Union of
India, AIR 1993 Orissa 176.
388
AIR 1993 Ker. 21
389
M. Alavi v. T.V. Safia, AIR 1993 Ker. 21
167
390
AIR 1993 Ort. 176
391
Bishnu Charan Mohanty v. Union of India, AIR 1993 Ort. 177.
168
392
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84.
393
Act XXV (25) of 1946.
169
394
Section provides that whoever not being a minor (a minor is a person who is
under sixteen years of age) contracts a bigamous marriage shall, on conviction, be
punishable with imprisonment, for a term which may extend to seven years and
shall also be liable for fine.
395
Manu, IX, 10, 106.
396
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84, 86.
397
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84.
170
399
Sate of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84.
173
(b) Article 14 does not lay down that any legislation that the
State may embark upon must be of an all embracing
character. The state may rightly decide to bring about
social reform by stages, and these stages may be
territorial or community-wise.
402
Sate of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84, 86.
403
(1952) Madras 193.
404
Srinivasa Aiyar v.Saraswathi Ammal, (1952) Madras 196.
405
Srinivasa Aiyar v.Saraswathi Ammal, (1952) Madras 196.
406
AIR 1957 Allahabad 411.
175
407
Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945.
408
Sections 125 to 127 of Cr. P.C. 1973
409
Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945, 954.
410
Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 946..
176
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 its jurisdiction to interpret or re-
interpret that basic religious scripture, especially, when there
were established Privy Council rulings warning the courts to
keep away from such an adventure.413
411
Tahir Mahmood, Shah Bano Judgement : Supreme Court Interprets the Quran
p. 110 ICLQ Vol. V (1985).
412
Senior Advocate Supreme Court, supporting the appellant before the court.
413
Aga Mohomed Jafar v. Koolsum Bibi, (1897) 25 Cal. 9-18, Baqar Ali v. Anjuman
Ara, (102) 25 All 236, 254; 301 A, 94.
177
What made the things worse was that the learned judge
chose to close his judgement virtually declaring that the actual
and final solution of the problem he was tackling lay in an
immediate enactment of a uniform civil code. He observed that,
a common Civil Code will help the cause of national integration
by removing disparate loyalties to laws which have conflicting
ideologies.414
414
Mohd. Ahmad Khan v. Shah Bano Begaum, AIR 1985, SC 945..
415
Mohd. Ahmad Khan v .Shah Bano Begaum, AIR 1985, SC 945..
178
416
Mohd. Ahmad Khan v.Shah Bano Begaum, AIR 1985, SC 945.
417
Jorden Diengdesh v. S.S. Chopra, AIR 1985 SC 935.
180
419
Jorden Diengdesh v. S.S. Chopra, AIR 1985 SC 940.
420
Tahir Mahmood, Uniform Civil Code : Fictions and Facts p. 29. (1st ed.
1995, New Delhi).
421
Tahir Mahmood, Uniform Civil Code : Fictions and Facts p. 29. (1st ed.
1995, New Delhi).
182
423
AIR 1959 Raj. 133.
424
AIR 1974 All 278.
425
Mohammad Abu Zafar Mohammad Ibrahim v. Israr Ahmad and others ,
AIR 1917 All. pp. 368-69.
426
Mohammad Abu Zafar Mohammad Ibrahim v. Israr Ahmad and others ,
AIR 1917 All. pp. 368-69
184
The issue before the court was that while the statutory
Hindu law did not and the Muslim personal law as in force in
India did allow bigamy, could a Hindu husband circumvent the
restriction by announcing s sham conversion to Islam ? The
Court answering the question in negative observed :
430
Sarla Mudgal v. Union of India, (1995) 3 SCC 635, 649-650.
431
Sarla Mudgal v. Union of India, (1995) 3 SCC 650.
186
433
Sections 2-3 of the four Hindu Acts of 1955-56.
188
434
Mohammad Abu Zafar Mohammad Ibrahim v. Israr Ahmad and others , AIR
1917 All. pp. 368-69.
435
Mohammad Abu Zafar Mohammad Ibrahim v. Israr Ahmad and others ,
AIR 1917 All. pp. 368-69.
436
Sarla Mudgal v. Union of India, (1995) 3 SCC 635, 652.
189
437
Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573.
190
438
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.
439
. 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.
191
In the third petition i.e. WP(C) No. 721 of 1996 the relief
prayed was as follows :
440
Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 575.
441
1994 Supp. (1) SCC 713.
192
That these are all matters for legislature. The court can not
legislate in these matters.442
442
Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 714.
443
(1996) 2 SCC 498
193
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
Gajendragadkar, J., were of the opinion that the personal laws
do not fall within Article 13 (I) at all.
444
Personal Bansilal Pitti v. State of A.P, (1996) 2 SCC 510.
445
AIR 1952 Bombay 84.
194
446
(1981) 3 SCC 689.
447
Krishna Singh v. Mathura Ahir , (1981) 3 SCC 699.
448
(1997) 3 SCC 573.
449
(1995) 3 SCC 635.
450
(1997) 3 SCC 573, p. 582.
It is, therefore, submitted that the judgment of the Apex
Court in Ahmadabad W.A. Group case is a welcome decision, in
so far as, it shows the self-restraint of the judiciary particularly
in a matter relating to personal laws which happens to be an
extremely sensitive issue, specially in India.
The wisdom of the judiciary also lies in the fact that it has
relied heavily on the decisions of Davis v. Beason.454 The Court
has rightly held in this case that religion must be subordinated
to the laws of the country enacted with reference to actions by
general consent as properly the subjects of the primitive
legislations.455 Gajendragadkar, J. rightly opined that Article 44
of the Constitution is an important Article which recognizes the
existence of different courts applicable to Hindu and
Mohammadans in the matters of personal law and permits their
continuance until the state succeeds in its endeavour to secure
for all the citizens a uniform civil code.456
462
Makku Rawther's Children v. Manahapra Charayil, AIR 1972, Ker. 27 D.
Chelliah Nagar v. G. Lalita Bal, AIR 1978 Mad. 66
463
Bhagwan Dutt v. Smt. Kamla Devi, 1975, SC 84, A. Yousuf v. Sowramma, AIR
1971 Ker. 261; Abboobakar Haji v. Mamu Koya, 1971 KLT 663, Bai Tahira v. Ali
Fissali AIR 1980 SC 362.
464
Bal Tahira v. Ali Fissali, AIR 1980 SC 1730
465
Fuzlunbi v. Khadar Vali, AIR 1980 SC 1730
466
AIR 1985 SC 945
199
"The time has now come for a complete reform of the law of
marriage and make a uniform law applicable to all people
irrespective of religion or caste. Now it is time for the
legislature to take initiative in this direction."
Chapter VI
governed by the lex domicile, that is, the law of the country in
which the parties were domiciled. The rights and obligations of
the parties relating to the dissolution of the marriage did not
from a part of the marriage contract, but arose out of, and were
incidental to, such a contract and were governed by lex
domicile. As soon as the plaintiff (petitioner) got converted to
Islam the law applicable to a Christian creased to apply to her,
and she become subject to Mohammadan law. Consequently,
that law entitled her husband to divorce her by talaq. The court
thus applied the personal law of the parties at the institution of
the suit.
475
AIR 1942, Cal. 325.
205
476
Under Muslim Law in a Muslim spouse offers to his non-Muslim spouse Islam
thrice and if the latter refuse to accept it, then the marriage stands terminated.
477
Nurjahan vs. Tiscenco , AIR 1942, Cal. 326.
206
478
Khosla vs. Rajnish Kumar Khosla, In this case the parties
got married according to Arya Samaj rites. Subsequently the
wife petitioned for judicial seperatioon on the ground of cruelty
under the Indian Divorce Act, 1869 on the basis that she
professed Christina religion and the Act required only one party
to be a Christina for its applicability. 479 The husband contested
the petition on the ground that Theirs was a Hindu marriage
performed in a Hindu form and should therefore be governed by
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.
478
AIR 1978 Delhi 78.
479
Section 2, Indian Divorce Act, 1869
480
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.
207
In this case the court suo moto raised doubt about the
possible consequences that might follow, for instance, the
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.
481
Khambatta vs. Khambatta , AIR 1935 Bom. 5.
482
Parsher Archana : Conflict of Laws Hindu vs. Christian Law, 1982, 1 &
CLQ, Vol. II, p. 302.
483
Hindu Marriage Act, Section -5A marriage may be solemnized between any two
Hindu.
208
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.
209
485
A Muslim may renounce Islam, this is known as apostasy (ridda); or a non-
Muslim embrace Islam, this is called conversion.
210
wife may renounce Islam these are the two commonest from of
apostasy. Thirdly a non-Muslim husband and fourthly, a non-
Muslim wife may embrace Islam; these are two commonest
cases of conversion.486
486
Fazee, A.A.A. : Outlines of Mohammadan Law, 4th Ed. P. 178.
487
Ali, Amir, Mohammadan Law, 4th Ed. Vol. 1, 390
488
Ali, Amir, Mohammadan Law, 4th Ed. Vol. 1, 394.
489
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.
211
490
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.
491
Robaba Khanum vs. Khodadad Bomanji Irani, ILR (1948) Bomb. 223.
212
492
Fazee, A.A.A. : Outlines of Mohammadan Law, 4th Ed. p. 178.
493
Fazee, A.A.A. : Outlines of Mohammadan Law, 4th Ed. p. 178.
494
Fazee, A.A.A. : Outlines of Mohammadan Law, 4th Ed. p. 178.
213
another religion.500
6. Finally, there are two further possibilities, First, in a
marriage celebrated in Hindu from, the husband may
convert to Islam and purports to divorce his wife by talaq.
It is submitted that the talaq should not be recognized in
this situation. Second, in a marriage celebrated in Muslim
form, the husband may convert to Hinduism and allege
that the court has jurisdiction to grant a divorce under
the terms of the Hindu Marriage Act. It is submitted that
the attempt should fall, although it is submitted that
the attempt would fall, although it is admitted that there
is nothing is the Act to bar jurisdiction in these
circumstance either on the ground that the respondent is
a non-Hindu or alternatively that the marriage was
celebrated in a non-Hindu from. In any event, it is
contended that the government law in this situation in
Muslim law, and under this law, the marriage, is
dissolved ispo facto on the conversion of the husband.501
500
Abdul Ghani vs. Aziz- ul-Haq. 1912, ILR 39 Cal 409
501
Hindu Marriage Act, Section -5A.
502
Indian Divorce Act, 1896, Section -10 Any wife present a petition to the
District Court or to the High Court, praying that her marriage may be dissolved on
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.
217
Section 19 and Section 21 shall not apply and so much of section 20 and creates a
disability shall also not apply.
506
Pearl, David, op. cit
507
ILR (1945) 2 Cal. 405.
219
510
I.I.R, (1948), Bomb. 223.
222
515
Rakeya Bibi vs. Anil Kumar Mukherji, ILR (1948) 2, Cal. pp. 129-30.
224
(a) If both the parties change their religion, then they will be
governed by the new personal law:
But what appears from the judicial work that has been
done by Indian courts in the cases cited above relating to the
matrimonial causes and relief thereof is that the Indian courts
are not unanimous in applying either the principle of lex loci
celebrations or lex domicile or the lex personnam. Further they
are not unanimous in giving effect to the change of status or
change of religion while determining the issues in question. The
judicial approach seems to be uncertain and not guided by any
well established principle of law. However, the judicial approach
apart from being humanitarian should also be guided by the
principles of law.
519
(1984) DMC 249 (Delhi)
228
520
AIR 1983, Delhi 51
521
Khambatta vs. Khambatta , AIR 1935 Bom. 5..
229
The court in this case observed that for the past several
years it has become very common amongst the Hindu male who
cannot get a divorce from their first wife, they convert to Muslim
religion solely for the purpose of marriage. This practice is
invariably adopted by those erring husband who embrace Islam
for the purpose of second marriage but again became reconvert
so as to retain their rights in the properties etc. and continue
524
AIR 2000 SC 1650
234
their services and all other business in their old name and
religion.
528
Emperor vs. Maha Ram, (1918), ILR 40 All 404.
529
(1967) PLD SC 580, Pearl, David op. cit. pp. 71-72.
238
530
(1967) PLD SC 580, Pearl, David op. cit. pp. 71-72..
239
531
(1967) PLD SC 580,
532
(1967) PLD SC 592..
240
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.
534
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.
241
535
ILR (1939) 2 Cal 12
536
John Jiban Chandra Dutta vs. Abinash Chandra Sen , ILR (1939) 2 Cal 16.
537
(1965) 1 All ER 812
Chapter VII
538
Kunhi Moyin v. Pathumma, 1976 KLT 87 at 92 (per v. Khalid J.)
244
539
AIR 1985 SC 945
245
541
Bai Tahira v. Ali Hussain Fidalli Chothia, AIR 1979 SC 362; and Fazlubi v. K.
Khader Vali, AIR 1980 SC 1730.
542
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 in terms confers one or both o these rights on her. Muta
Marriage is not recognized by Sunnis.
249
543
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.
544
In Islamic law, of course, the father of an illegitimate child would be subject to
server criminal penalties which however are not enforced in India. It could be
suggested that the "trade off", substituting liability for maintenance of the child for
the harsh criminal sanctions liability for maintenance of the child for the harsh
criminal sanctions of Muslim law, in such that no man should reasonably complain.
545
Km. Nafees Ara v. Asif Saadat Ali Khan, AIR 1963 All 143
250
children?
546
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).
547
Syed Ahmad v. Naghath Praveen Taj Begum, AIR 1958, Mys. 128;
Shahulameedu v. Subaida Beevi, 1970 KLT 4.
548
AIR 1981 SC 1972
251
549
Biro v. Behari Lal, AIR 1958 J & K 47 at 49 (Emphasis added) Quoted in id at
1979.
550
Abdul Ghaffar v. Bibi Hafiza Khatoon, AIR 1968 Pat. 307.
551
Mohorunnissa v. Abdul Salam, 1974 Cri LJ 78; Syed Ahmad, supra note 12.
552
Hafijjabi v. Abdul Aziz Kadirkha, 1983 Cri LJ 931 (Bom.): Tejabai v.
Shankarrao, AIR 1966 Bom 48.
252
The Shariat Act did not codify the Muslim personal law
and certainly did not place permanent embargo on reform or
alternation in the uncodified the law as defined and applied by
the courts of fifty years ago. The Act is of no assistance in
555
Bai Tahira v. Ali Hussain Fidalli Chothia, AIR 1979 SC 362; and Fazlubi v. K.
Khader Vali, AIR 1980 SC 1730.
556
Mohd. Ahmed Khan v. Shah Bano Begum. AIR 1985 SC 945
557
Gazettee of India, 1935, pt. V, p. 136
255
cause" for the wife to refuse to live within the meaning of this
section, although under Muslim Law is would not be a valid
ground. It cannot be said that this amendment is inconsistent
with the original section.
559
Syed Mushaf Husain Shah v. Mst. Hamida Begum, PLD 1957 Lahore 220 at 223-
224, Isak Chanda Palkar v. Nyamatbi, 1980 Cri LJ 1180.
257
564
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.
565
Srinivas Aiyar, Narasu Appa Mali, H.B. Singh, G. Sambireddy cases..
259
566
Abdur Rohoman v. Sakhina, ILR 5 Cal. 558 at 562 (1879) (Emphasis added).
567
Sirajmohmedkhan v. Hafizunnisa Yasinkhan, AIR 1981 SC 1972
262
568
Kunhi Moyin v. Pathumma, 1976 KLT 87 at 92 .
Chapter VIII
(v) to educate the people on the need for family law reform
and unification through the use of audio-visual aids and other
media of mass communication;
APPENDIX- I
The Muslim Personal Law (Shariat) Application Act, 1937569
(1) This Act may be called the Muslim Personal Law (Shariat)
Application Act, 1937.
569
Source : Para Diwan, Muslim Law in Modern India (1933) pp. 297-98.
272
4. Rule-Making Power
6. Repeals
(3) Repealed;
(viii) that the husband treats her with cruelty, that is to say,
Provided that-
(a) the names and addresses of the persons who would have
been the heirs of the husband under Muslim law if he had
died on the date of the filing of the plaint shall be stated
in the plaint,
(c) such persons shall have the right to be heard in the suit:
have under Muslim law to her dower or any part thereof on the
dissolution of her marriage.
(1) This Act may be called the Child Marriage Restraint Act,
1929
(3) It shall come into force on the 1st day of April, 1930.
3. Service of summons.
may, from time to time, direct, and shall bear the seal of
the Court.
FORM OF AFFIDAVIT
(See rule 7)
Deponent/Deponents.
Deponent/Deponents.
300
Form B
FORM OF DECLARATION
(See rule 8)
I/weson/wife of..aged.years,
resident of ............. and. son/wife of
aged.years, resident ofhereby declare as
follows :-
Deponent/Deponents.
Deponent/Deponents.
APPENDIX VII
I.-PRELIMINARY
INDIA CODE, VOL-VIA.
2. Definitions.
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;
(a) emasculation ;
(8) " priest " means a Parsi priest and includes Dastur and
Mobed ; and
2*[(c) in the case of any parsi (whether such Parsi has changed
his or her religion or domicile or not) who, if a male, has not
completed twenty-one years of age, and if a female, has not
completed eighteen years of age.]
5. Punishment of bigamy.
7. Appointment of Registrar.
(d) all matters and proceedings other than the regular hearing
of cases
(2) When the defendant shall at such time have left 3*[the terri-
tories to which this Act extends] such suit shall be brought in
the Court at the place where the plaintiff and defendant last
resided together.
IV.-MATRIMONIAL SUITS
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 ;
(2) the suit has been filed within two years of the date of
marriage, and
(e) that the defendant has since the marriage voluntarily cause
grievous hurt to the plaintiff or has infected the plaintiff with
314
(h) that 2*** an order has been passed against the defendant by
a Magistrate awarding separate maintenance to the plaintiff,
and the parties have not had marital intercourse for 1[one year]
or more since such decree or order;
(1) Subject to the provisions of this Act, a suit for divorce may
be filed by both the parties to a marriage together, whether
such marriage was solemnized before or after the
commencement of the Parsi Marriage and Divorce (Amendment)
Act, 1988, on the ground that they have been living separately
for a period of one year or more, that they have not been able to
live together and that they have mutually agreed that the
marriage should be dissolved:
(2) The Court shall, on being satisfied, after hearing the parties
and after making such inquiry as it thinks fit, that a marriage
has been solemnized under this Act and the averments in the
plaint are true and that the consent of either party to the suit
was not obtained by force or fraud, pass a decree declaring the
marriage to be dissolved with effect from the date of the decree.]
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. 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;
2[39. Alimony pendente lite. Where in any suit under this Act, it
appears to the Court that either the wife or the husband, as the
case may be, has no independent income sufficient for her or
his support and the necessary expenses of the suit, it may, on
the application of the wife or the husband, order the defendant
to pay to the plaintiff, the expenses of the suit, and such weekly
or monthly sum, during the suit, as, having regard to the
plaintiffs own income and the income of the defendant, it may
seem to the Court to be reasonable.
(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
318
42. Disposal of joint property. In any suit under this Act the
Court may make such provisions in the final decree as it may
deem just and proper with respect to property presented at or
319
about the time of marriage which may belong jointly to both the
husband and wife.
47. Appeal to High Court. 5[(i)] An appeal shall lie to the High
Court from- (a) the decision of any Court established under this
Act, whether a Chief Matrimonial Court or District Matrimonial
Court, on the ground of the decision being contrary to some law
or usage having the force of law, or of a substantial error or
defect in the procedure or investigation of the case which may
have produced error or defect in the decision of the case upon
the merits, and on no other ground ; and
48. Liberty to parties to marry again. When the time 2*** limited
for appealing against any decree granting a divorce or annulling
or dissolving a marriage shall have expired, and no appeal shall
have been presented against such decree, or when any such
appeal shall have been dismissed, or when in the result of any
appeal a divorce has been granted or a marriage has been
declared to be annulled or dissolved, but not sooner, it shall be
lawful for the respective parties thereto to marry again 2* * *.
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.
VI.-MISCELLANEOUS
53. Repeal.
323
SCHEDULE 1.
(See section 3)
5. Paternal grand-mother.
7. Maternal grand-mother.
9. Mother or step-mother.
5. Paternal grand-father.
9. Father or step-father.
SCHEDULE II
Certificate of Marriage
SCHEDULE II
(See section 6)
Certificate of
Marriage-------------------------------------------------------Date and
place of marriage.----------------------------------
Names of 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 of
the contracting
parties.---------------------------------------------------------------------
Signatures of the fathers or guardians of the contracting parties
under 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.
Bibliography
Books
Lal, Rattan and Lal : The Indian Penal Code, N.M. Tripathi
Dhiraj Pvt. Ltd. Bombay (1954).
Article
Constitution of India.