Introduction
Laws that are particular to a person and their religion are personal laws. It can be based on legislation or customary laws. Hindu personal laws are one of the most ancient laws that are prevalent in today’s era. On the other hand, the Muslim Personal Law 1937 Act in India passed in 1937. This Act deals with marriage, succession, and inheritance issues in Islam, but after the demarcation of Pakistan and India, both countries make their own personal laws. Pakistan makes its personal laws according to his religion and custom, while India practises the common civil code irrespective of its religion. Later, India makes drastic amendments to Hindu personal law and also extends its application to the followers of other religions too. The deep comparative analysis of personal laws among these is discussed below.
Historical background of personal laws in pre and post demarcation
At first, through the Charter of 1753, the British gave both Hindus and Muslims freedom to practise their personal laws. It was clearly mentioned that there would be no interference from the British unless the two parties in a dispute willingly submitted to the jurisdiction of the court. In 1772, the Governor General of India, Warren Hastings, laid down that the laws of the Quran would be applied to Muslims and those of the Shastras to Hindus. After independence, Pakistan made the West Pakistan Muslim Personal Law (Shariah) Act, 1962, which deals with all questions regarding succession, marriage, property, divorce, dowry, guardianship, legitimacy, and many more, applicable only where the parties are Muslims. Under Hindu law, marriage is considered a sacrament. The Hindu Marriage Act of 1955 introduced the concepts of separation and divorce. Marriage was considered a sacrament. Further, in 1976, the Marriage Law Amendment Act expanded the grounds for divorce in Hindu marriage, extended the meaning of desertion, and gave minor girls the right to refuse their marriage. In 1956, the Hindu Succession Act was passed; the Hindu Minority and Guardianship Act and the Hindu Adoptions and Maintenance Act were enacted to cover other areas.[1]
Sources of personal laws in Hindus, Muslims and others
Hindus personal laws are mainly found in: The “Shruti” contains all four Vedas, such as the Rig Veda, the Sama Veda, the Yajurva Veda, and the Athrva Veda. The “Smritis” are of three types: codes of Mnau, Yajnavalkya, and Narada personal laws and customs as recognised by statutory law by Hindus. These are applicable to legal issues related to matters of inheritance, succession, marriage, adoption, co-parenting, the partition of family property, the obligations of sons to pay their father’s debts, guardianship, maintenance, and religious and charitable donations.
Sources of Muslim personal laws are
- The Holy Quran
- The sayings and teachings of the Prophet Muhammad carefully preserved in tradition and handed down from generation to generation by holy men.
- Ijma, the agreement of Muslim scholars, companions, and disciples of the Prophet Muhammad on matters of religion.
- Kiyas, an analysis made using the Quran, the sayings of the Prophet Muhammad and the Ijma when any of them do not apply to a particular case.
- Surveys and commentaries on Muslim law, written by ancient Muslim scholars. Among the most famous are the Hedaya (composed in the 12th century) and the Fatawa Alamgiri, compiled under the instructions of the Mughal emperor Aurangzeb Alamgiri.
These personal laws and customs are applied to all matters related to inheritance, wills, succession, dowry, legacies, divorce gifts, wakfs, guardianship, and preemption.
Christian personal laws
The Christian Marriage Act was enacted in 1972 in order to deal with different matters related to marriage. The Indian Divorce Act, enacted in 1869, contains matters related to divorce. Under the guidelines of this act, the husband can appeal for divorce on the grounds of adultery by the wife. Similarly, the wife has the right to appeal for divorce if her husband converted to another religion, married another woman, or was found guilty.
Recent amendments in personal laws of India and Pakistan
In Pakistan, a recent amendment regarding personal laws of minorities has been passed in 2020, namely “The Protection of the Rights of Religious Minorities Act, 2020.” In this act, the protection of minorities from forced conversion to religion, changes in their education curriculum, places of worship, and many other important rights are to be ensured. In India, the personal law amendment bill introduced in August 2018 regarding the amendments in personal laws related to the divorce act of 1869, the dissolution of Muslim marriage act of 1939, the special marriage act of 1954, the Hindu marriage act of 1955, and the Hindu adoptions and maintenance act of 1956, in which leprosy is no longer valid for separation, divorce, and maintenance.
In Pakistan, a recent amendment regarding personal laws of minorities has been passed in 2020, namely “The Protection of the Rights of Religious Minorities Act, 2020.” In this act, the protection of minorities from forced conversion to religion, changes in their education curriculum, places of worship, and many other important rights are to be ensured. In India, the personal law amendment bill introduced in August 2018 regarding the amendments in personal laws related to the divorce act of 1869, the dissolution of Muslim marriage act of 1939, the special marriage act of 1954, the Hindu marriage act of 1955, and the Hindu adoptions and maintenance act of 1956, in which leprosy is no longer valid for separation, divorce, and maintenance.
In Pakistan, a recent amendment regarding personal laws of minorities has been passed in 2020, namely “The Protection of the Rights of Religious Minorities Act, 2020.” In this act, the protection of minorities from forced conversion to religion, changes in their education curriculum, places of worship, and many other important rights are to be ensured. In India, the personal law amendment bill introduced in August 2018 regarding the amendments in personal laws related to the divorce act of 1869, the dissolution of Muslim marriage act of 1939, the special marriage act of 1954, the Hindu marriage act of 1955, and the Hindu adoptions and maintenance act of 1956, in which leprosy is no longer valid for separation, divorce, and maintenance,
Difference between Hindu and Muslim law
Hindu laws |
Muslim laws |
Under the Hindu law, the practice of polygamy is abolished |
In Muslim law, the practice of polygamy is present under the law |
Adoption is there under the Hindu law |
Adoption is not there under the Muslim law |
Under the Hindu law, there is concept of separate and ancestral property |
under the Muslim law, there is joint and single property |
Hindu law is governed by the Hindu succession act, 1956 |
Muslim law is governed by Muslim shariat act, 1937[2] |
Conclusion
In conclusion, personal laws play an important role in differentiating people according to their religious and customary rights. Every country and its people have their own personal laws. The most important personal laws in Hinduism are the Hindu Marriage Act of 1955 and the Hindu Adoptions and Maintenance Act of 1956, and in Muslimism, the Muslim Personal Law is the most important personal law.
[1] https://www.ipf.org.in/encyc/2020/11/13/2_02_27_53_History-of-Personal-Laws-in-India-Papers_1.pdf
[2] https://blog.ipleaders.in/comparative-analysis-personal-laws-reference-india-pakistan-bangladesh/
Authored by Yasir Gill, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.