At present in India, Personal laws are applicable to the personal matters of parties like succession, inheritance, marriage, guardianship, divorce and on other custom and usages. Hindu personal law has been codified at great extent but care has been taken to codify personal laws excluding some customs like bigamy etc. which are in opposition to modern values.
The personal law of other religions like muslims, is also codifying gradually through parliament and courts also doing great work in regulating customs which are in rival to modern time’s necessities.
Other religions such as Christians, Jews, Parsis also have freedom to apply personal laws in their personal matters but their matters such as divorce, and succession also codified by Indian legislatures. Most of the work has been done before independence.
Thus, Religions in India enjoys the freedom to apply personal laws in their personal matters. But, question arises when was personal laws started to apply first? How old this custom is?
The history of the recognition of this principle has been accurately traced by a learned Judge of the Indian Bench, Mr. Justice Field, at pages 169–171 of his valuable work on the Regulations of the Bengal Code.
The legislation there described began with the Regulation of the 21st August 1772, which laid down the exact scope of the application of the Hindu and Muhammadan Laws, and the omission to provide for cases which did not fall within the rule was supplied by the Regulation of the 5th July 1781, which directed that “in all cases for which no specific directions are hereby given, the Judges do act according to justice, equity, and good conscience.”
The latter part of the rule was reproduced in Section 21 of Regulation III of 1793, and the former part of the rule was re-enacted in Section 15 of Regulation IV of 1793, which laid down that “in suits regarding succession, inheritance, marriage, and caste, and all religious usages and institutions, the Muhammadan laws with respect to Muhammadans, and the Hindu laws with regard to Hindus, are to be considered as the general rules by which the Judges are to form their decisions.“
To the two-fold rule so laid down, addition was soon after made by Regulation VIII of 1795, which enacted that “in cases in which the plaintiff shall be of a different religious persuasion from the defendant, the decision is to be regulated by the law of the religion of the latter, excepting where Europeans or other persons, not being either Muhammadans or Hindus, shall be defendants, in which cases the law of the plaintiff is to be made the rule of decision in all plaints and actions of a civil nature.”
The principle of applying the native laws according to the religious persuasions of the parties to the suit, and, with reference to the accident of their being arrayed as parties-plaintiffs or parties-defendants in the litigation, is an illustration of the simplicity which marks some of our oldest legislative enactments.
The possible path of injustice
The principle must have given rise, not only to confusion, but in some cases to positive injustice; whilst in eases where every one of the persons arrayed as parties to the suit belonged to a different persuasion, the application of the rule must have been impracticable. The experience of some years seems to have brought this difficulty into prominence, for we find that the next important piece of legislation on the subject was Regulation VII of 1832, Section 9 of which, while affirming the rules to which reference has already been made, added a new proposition as an injunction to the Courts administering justice under the East India Company.
The section ran thus:
“It is hereby declared, however, that the above rules are intended and shall be held to apply to such persons only as shall be bona fide professors of those religions at the time of the application of the law of the case, and were designed for the protection of the rights of such persons–not for the deprivation of the rights of others.
Whenever, therefore, in any civil suit, the parties to such suit may be of different persuasions, when one party shall be of the Hindu and the other of the Muhammadan persuasion; or where one or more of the parties to the suit shall not be either of the Muhammadan or the Hindu persuasion, the laws of those religions shall not be permitted to operate to deprive such party or parties of any property to which, but for the operation of those laws, they would have been entitled.”
In all such cases, the decision shall be governed by the principles of justice, equity and good conscience, it being clearly understood, however, that this provision shall not be considered as justifying the introduction of the English or any foreign law, or the application to such cases of any rules not sanctioned by those principles.
Sheikh Kudratulla v. Mahini Mohan Shaha
Such was the law at the time when the celebrated case of Sheikh Kudratulla v. Mahini Mohan Shaha 4 B.L.R. 134 was decided by the Full Bench of the Calcutta High Court. Since that time, however, the provisions which have referred to have been repealed by the Bengal Civil Courts Act (VI of 1871), and the question was then governed by Section 24 of that Act, which provides that
“where in any suit or proceeding it is necessary for any Court under this Act to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution, the Muhammadan Law in cases where the parties are Muhammadans, and the Hindu Law in cases where the parties are Hindus, shall form the rule of decision, except in so far as such law has, by legislative enactment, been altered or abolished.
In cases not provided for by the former part of this section, or by any other law for the time being in force, the Court shall act according to justice, equity, and good conscience.”
Inayatullah vs Gobind Dayal: (1885) ILR 7 All 775