The Article has been written by Ms. Arushi, a B.A.LL.B.(2022-27) student of Lloyd School of Law, Greater Noida, U.P.

Personal law-

India is a diverse country which means people vary from one another in terms of their physical characteristics as well as their regional, cultural, and religious beliefs. Language and ritual variations are just a few examples of the differences. The lives of Indians are enriched by this variety. Due to the rich diversity of India is called the ‘land of diversity’. India is a nation where many various religions are practised. Hindus make up the majority of the people in India (82.41%), followed by Muslims (11.6%), Christians (2.32%), Sikhs (1.9%), Buddhists (0.77%), and Jains (0.41%). There are numerous groups within the Hindu religion, including the Vaishnavas, Shaivites, Shaktas, and Smartas. There are numerous Muslim groups as well, such as Shi’ites, Sunnis, Ahmadis, etc. For the various religious community in our country different personal laws are there to maintain the law and order in a society. Personal law is defined as a law that applies to a certain class or group of people or a particular person, based on the religions, faith, and culture. In India, everyone belongs to different caste, religion and have their own faith and belief. Their belief is decided by the sets of laws. And these laws are made by considering different customs followed by that religion. Indians are following these laws since the colonial period. 

Personal Law is the law by which an individual is governed in respect of various matters such as, principles relating to marriage, divorce, maintenance, adoption, inheritance, guardianship, succession, etc. 

Sources of Hindu Law

The ancient sources contain Shrutis, Smritis, Digest and Commentaries and customs and usages. The modern sources contain Judicial decisions and legislations and equity and good conscience.

In ancient time Shrutis were there which is Vedas and it is made by the God. We hear these Vedas from generation to generation after that Smritis came in which the knowledge retain by Rishi Muni were written in their own language. The Shruti and Smriti were compiled and make a law called Digest and Commentaries and the practices which followed for a long time it becomes customs and usages. When the Britishers came to India courts were form and the judgement of court is known as judicial decisions and legislations. 

Shrutis contains 4 Vedas- Rig Veda, Yajur Veda, Sama Veda and Atharva Veda. It also contains 6 Vedangas and 108 Upanishads. Currently more than 200 Upanishads mere discovered. Upanishad means Sanatan Dhrama which means “sitting down near” in which the Shishya seats near the Guru and take the spiritual knowledge. Upanishads are the concluding portion of the Vedas. The famous Upanishads are Vedangas which means “Limbs of the Vedas”. Vedangas help in “writing, reading and Enchanting mantras”. Vedas are always above the Vedangas each Ved has its own upavedas like Dhanur Veda (deals with art and warfare) (upaveda of Yajur Veda), Gandharva Veda (deals with art and music) (Up Veda of Sama Veda), Ayurveda (deals with medicine) (Upaveda of Rig Veda), Shilpa Veda (deals with architecture) (Upaveda of Atharva Veda). Brahma, Vishnu and Shiva the tridev in which the Brahma known as the creator, Vishnu is the protector and Shiva is the destroyer. It is believed that the Veds are formed by the Brahma or on the command of Bramha Rishi Muni create it that’s why it had no author. In the word Shrutis the word Shru means “to hear” the time when Shrutis came no written material were there the Sages at time communicate orally to spread their knowledge. The knowledge is transferred orally from generation to generation. Initially only the 3 Vedas were recognised Atharvaveda added later. Yajurveda and Samaveda are the offsprings of the Rigveda. In these Vedas Dharma is given there is no any discussion on laws. Dharma means “way of living” in this the basic structure of society is given that a family is “unit” and the head of the family is the oldest living ascendant called Grihapati. Smritis means “remembered’ the body of text is written by the Author. There are 3 Smritis –

1. Manu smriti – written by Manu which gave special status to Brahmins there was no rights given to the Shudras 
2. Yajnavalkyasmriti – this smriti came in the time period of Buddha and Vikram Aditya. This smriti is more concise and liberal in compare of Manu smriti. In this some rights are recognised for women like inheritance right, it also gave better status to the Shudras.
3. Narada Smriti – written by Nepali sage Narada. In this widow remarriage rights of women rights were recognised.

In shrutis and smritis laws were not given. India needs law to regulate the society so these two were combined and law formed called Digest and commentaries. 

Digest & commentaries were divided into 2 parts Mitakshara and Dayabhaga. The Mitakshara were the short compendium given by Vijnaneshwara at the time of 11th century based on Yajnavalkyasmriti in which women rights were less recognised. Dayabhaga was written by Jimutvahana. This was not based on a specific Shruti or Smriti. In this women’s rights were more recognised. At the time of 11th & 12th century when Mitakshara and Dayabhaga in India different states were formed in these states Hindus follow there own custom and laws. They form their own school.

There are 5 schools of Hindu law-

1. Mithila school 
2. Banaras school
3. Dravida school
4. Maharashtra school
5. Bengal school

The 1st four schools follow the Mitakshara & the Bengal school follow the Dayabhaga.

Customs and usages are recognised as a source of Hindu law. Customs means “crystallized practices followed for considerable time period”. Usages are the repetitive Acts when it becomes crystallized practices then it becomes customs and when these customs passed from generation to generation then it becomes traditions. 

 In modern sources judicial decisions and legislation were there which was introduced by the Britishers in India. legislations introduced so that a uniform law form for everyone.

Present modern Hindu Law

1. Hindu Marriage Act, 1955
2. Hindu Succession Act, 1956
3. Hindu Minority and Guardianship Act, 1956
4. Hindu Adoptions and maintenance Act, 1956

Sources of Muslim law

There are 2 sources of Muslim law the primary and the secondary sources.

Primary sources were directed by prophet himself. They are given the most importance. The whole Muslim personal law is based upon it. When the primary sources were modified and further explained over a period of time then it becomes secondary sources.

Primary sources of Muslim law-

1. Quran
2. Sunna or Ahadis
3. Ijma
4. Qiyas

Secondary sources of Muslim law-

1. Custom
2. Judicial decisions
3. Legislation
4. Equity, justice & conscience

Primary source

• Quran is the most important and foremost source of Muslim law. It is a direct word of God and it was revealed to Prophet Mohammad through the messenger of God whose name is Gabriel and the words of Quran revealed in Mecca and Medina. Verses of Mecca talked about philosophical & theological issues. Verses of Medina talked about socio-economic laws. It was written and preserved during life of Prophet and compiled after his death. Its not entirely a legal code it regulates the relationship of mam to man and man to God. It talks about the way of life in Islam.

• Sunna or Ahadis- in this the traditions or customs of Prophet were given. It includes everyday sayings, utterances, his acts, tacit consent, acknowledgement of statements and activities. It further categories in 3 parts-

Sunnat-ul-Qual – saying of Prophet 

Sunnat-ul-Faul – behaviour of Prophet 

Sunnat-ul-Tahrir – silence of prophet taken as his implied approval

• Ijma – the things which were not discussed in Quran and Sunna were included under ijma. It was a consensus of Jurist opinion. The jurist was known Mujtahids. If the opinion of these jurists were approved then it become law and it becomes words of Quran. The Ijma were of three types-

Ijma of Companions – the opinion given by the companion of Prophet and they were given the more importance and it will be binding.

 Ijma of Jurists – the opinions given by the Mujtahids

 Ijma of People or masses – the opinion of common Muslim people or masses lied under this

• Qiyas was an Arabic term which means “measurement accord” or “equality”. It means measuring or comparing a thing to a certain standard. It’s a process of deduction means discover law and not to establish a new law.

Secondary source

• Custom- before emergence of Islam in Arabia, custom was regarded as basis of social life, religion, morality. Its not recognised as source under Islam.  Prophet never repealed the whole of pre-Islamic customary law of Arabia. After Shariat Act,1937, customs were applicable on matters not falling under section 2. Adoption, will & legacies were governed by customs.
• Judicial decisions – the judgements given by the honourable supreme court and the high courts are binding and becomes source of law. e.g. Shayara Bano v. UOI (2017) in this case the honourable supreme court held triple talak unconstitutional.
• Legislation – legislations passed by parliament & state legislatures to modify rules of Muslim law according to present needs. E.g. dissolution of Muslim marriages Act,1939
• Equity, justice and good conscience- when law is silent on certain point the principles of equity come to supplement it. First time the concept of equity, justice and good conscience was applies by Abu Hanafi who was the founder of Hanafi sect of Sunni, he expounded the rule of law based on analogy it could be set aside to meet requirements of particular case. 

Schools of Muslim law 

Two main sects-

1. Sunni 
2. Shia

Sunni was further classified-

1. Hanafi school
2. Maliki school
3. Shafei school
4. Hanbali school

Shia was further classified under

1. Ithna Asharia school
2. Ismailia school
3. Zayadia school

Sunni schools-

• Hanafi school – it derives its name from Abu Hanafi. Whenever Quran did not explain anything, this school relied on Prophet traditions. It relies on the customs and precedents of Muslim community as traditions of Prophet. The most important book of the school is Hedaya in which Muslim law of inheritance and succession were discussed.
• Maliki school – the founder of this school was Malik-bin-Anas. It mostly flourished in Madina. They relied on the Sunna. 
• Shafei school – founder of this school was Muhammad ibn Idris Shafi. He was the student of both Imam Malik & Imam Hanafi. it was a combination of both the schools (Hanafi and Maliki school). They gave more importance to the Ijma. The main contribution of this school was Qiyas(analogy).
• Hanbali school – founder of this school was Ahmed bin Hanbal. He rejected Qiyas as a source of law & he relied on Sunna. He compiled a called Musnath. 

Shia schools-

Ithna Asharia school – This school is also known as Imamia School Majority of Shias are Ithna Asharia. The supporters of this school believe that starting from Ali there were twelve Imams who held transcendental powers. Everything that flows from the Imam is taken to be a law. It is maintained that the twelfth Imam, who vanished when he was still a child, would reappear in the future. A characteristic aspect of Ithna Asharia School is that this is the only school in the Muslim world that recognizes “Muta” or temporary marriage. This school is further divided into two sub-sects, (1) Akhbari and the (2) Usuli. Akhbaris are very conservative because they follow rigidly the customs of Imams. Usulis, to the contrary, interpret and expound the texts of the Quran in relation to the real problems of day-to-day life. Shari-ul- Islam is a well-founded book of this school

Ismailia School-

According to Ismailis school, in India there are two groups, the Khojas or Western Ismailis represents the followers of the present Aga Khan, who they considered as the 49th Imam in this line of Prophet, and the Bohoras i.e. the Western Ismailis are divided into Daudis and Sulaymanis.

The Bohoras and Khojas of Mumbai are considered as the followers of this school. It is considered that the follower of these schools has special knowledge of religious doctrine.

Zaidy

The followers of this school are not found in India but are maximum in number in South Arabia. This sect. of the Shia school is the most dominant among all in Yemen. The followers of these schools are considered as political activism. They often reject the twelver Shia school philosophies.

References-

1. https://www.studyiq.com/articles/diversity-of-india/
2. https://www.toppr.com/guides/business-laws-cs/introduction-to-law/principle-sources-of-indian-law-personal-law/#:~:text=Personal%20law%20is%20defined%20as,by%20the%20sets%20of%20laws
3. https://uollb.com/blog/law/what-is-personal-law
4. https://www.jstor.org/stable/43950450
5. https://blog.ipleaders.in/schools-of-muslim-law/
6. https://blog.ipleaders.in/sources-of-family-law/