Personal Law

Know your law

According to our Constitutional scheme, any law enacted by the Parliament or the State legislature can be struck down if it violates the fundamental rights. This can be done not just by the Supreme Court but by any of the High Courts. Thus any law that has been in force at the time of forming of the Constitution of India or which has been enacted after its’ formation, will be void if it is in conflict with the fundamental rights framed by the constitution.

Personal laws and fundamental rights

Personal laws which are contrary to the Fundamental rights of the Constitution shall be declared void. Particularly, those personal laws can be declared void it they are contrary to the Articles 14, 15 and 21 of the Constitution. Article 14 guarantees equality before law and equal protection of laws. Article 15 prescribes that no law can discriminate only on the grounds of sex, caste, etc. Article 21 is the fundamental right of life and personal liberty.

Personal laws discriminating women

Any personal law which tries to discriminate women is therefore by its nature unequal and discriminatory. Not only does it blatantly violates Articles 14 and 15 of the Constitution, but also in an extended manner it violates the right of life and personal liberty under Article 21 of the Constitution of India. Hence such personal laws could be declared void.

Religious laws as personal laws

The principle of personal law is simple and self explanatory. Any law which discriminates women must be automatically struck down by court. Thus, the laws which deny women being natural guardians, Talaq, polygamy, absence of coparcenary rights for women under Hindu undivided family, etc, should all have been declared void as they discriminate against women. But, surprisingly that has not happened.

Attitude of supreme court

Over the years, the Supreme Court seems to have adopted a pick and choose method while dealing with personal laws. In some cases it has held that personal laws are not susceptible to Part III of the constitution dealing with fundamental rights. Hence, it has declared that such personal laws cannot be challenged as the violation of Articles 14, 15 and 21 of the fundamental rights. On the other hand, it has tested many personal laws on the touchstone of the fundamental rights by reading down these laws or interpreting them so as to make them consistent with the fundamental rights. But the bottom line is that there has been no uniformity of decision as to whether personal laws can be challenged by comparing it to fundamental rights.

Hindu minority and guardianship act

The following case of Githa Hariharan v. Reserve Bank of India (1999 2 SCC 228) is one such case where Personal law was tested in the light of the fundamental rights. A three judge Bench of Supreme Court was considering the constitutional validity of S.6 of the Hindu Minority and Guardianship Act. The section was challenged on the basis that it discriminates against women, by declaring the father as the general guardian of a minor and not the mother. The petition was not rejected by the court on the ground that it could not comment on the constitutional validity of the personal law. Instead it read down S.6 so as to bring it in consonance with Articles 14 and 15.

The Court questioned the usage of the word ‘after’ in the section as to whether it means only ‘after the lifetime?’ of man. If so, then the section has to be struck down as unconstitutional as it violates gender equality, which is undoubtedly one of the basic principles of our Constitution. Since the Hindu Minority and Guardianship Act came into force only in 1956, about six years after the Constitution, the Parliament would not have approved the Act if it transgressed the constitutional limits and ignored the fundamental rights. Our constitution prohibits any discrimination on the grounds of sex, and hence the Supreme Court judgment has favored that irrespective of whether the father was unfit or not the mother should also be given equal rights as a natural guardian.