PERSONAL LEGISLATION RELATING TO PERSONAL RIGHTS
INTRODUCTION:- Individual law is characterized as a law that applies to a specific class
or gathering of individuals or a specific individual, in view of the religions, confidence, and
culture. In India, everybody has a place with various station, religion and have their own
confidence and conviction. Their conviction is chosen by the arrangements of laws. Also, these
laws are made by considering various traditions followed by that religion. Indians are observing
these laws since the frontier time frame. In this part, we will find out about the individual laws of
Hindu, Muslims and the Christain people group. Protection law is the group of law that
arrangements with the guideline, putting away, and utilizing of by and by recognizable data,
individual medical care data, and monetary data of people, which can be gathered by
governments, public or private associations, or others.
It additionally applies in the business area
to things like proprietary innovations and the obligation that chiefs, officials, and representatives
have while giving touchy data. Protection laws are considered inside the setting of a person’s
security rights or inside sensible assumption for security .The Universal Declaration of Human
Rights expresses that everybody has the privilege to security. The understanding of these rights
fluctuates by country and are not generally agreeable, 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.
Throughout the long term, the Supreme Court has taken varying perspectives while managing
individual laws. In various cases it hosts held that individual laws of gatherings are not
defenseless to Part III of the Constitution managing crucial rights. In this way they can’t be tested
as being disregarding essential rights particularly those ensured under Articles 14, 15 and 21 of
the Constitution of India. Then again, in various different cases the Supreme Court has tried
individual laws on the standard of crucial rights and read down these laws or deciphered them in
order to make them predictable with principal rights. There is nonetheless, no consistency of
choices regarding whether individual laws can be tested on the standard of basic rights for
example regardless of whether they are “laws” or “laws in power” under Article 13 of the
Constitution of India. The accompanying choices hold that they can’t be so tested:
PERSONAL LAWS AND THE CONSTITUTION IN INDIA:- Bombay court during this
case decided that: Personal laws don’t appear to be laws in power under Article 13 of the
Constitution as they are upheld strict statutes and standard practice; and. The standards revered
inside Part III of the Constitution can not be applied to the individual laws. The constitution of
India enables the assemblies to administer regarding family relations represented by the
individual laws of the different strict gatherings in India and furthermore guides the state to
supplant these individual laws by a typical common code. With the sanctioning of the Hindu
code to supplant critical portions of the standard Hindu law, the interest for a typical common
code from one perspective and for the change of the Muslim individual law on different, has
acquired energy. Authorization of a typical code is suggested for a wide assortment of reasons,
which incorporate repugnance of common mobs and speed increase of the interaction of public
mix. Also,a portion of the individuals who backer change of the Muslim family law, name or censure this law as cruel, out of date, self-assertive, etc. Promotion of change or substitution of
the Muslim law by a typical common code has incited exceptional resistance from a segment of
the Muslims. Not every one of the backers of the change or substitution of the Muslim family
law, nor every one of their adversaries, in India are researchers of Muslim law. They don’t direct
the discussion on strong and calm lines. Subsequently, the main problems are lost in a whirlpool
of non-issues.
PERSONAL LAWS ARE LAWS:- a) Article 13(3) as well as Article 372 of the Constitution define “law” to include “any Ordinance, order, by law, rule, regulation, notification, custom or usage having in the territory of India the force of law”. i.”Personal laws” include both codified and uncodified laws. To the extent that personal laws include codified laws there cannot be any dispute that such laws are “laws” under Articles 13 and 372 Whether before or after the Constitution, such laws have been enacted by the then existing sovereign and they continue to be in force even on the change of the sovereign unless they are repealed or treated as void under Articles 13 of the Constitution. b) In Bajya v. Gopikabai (AIR 1978 SC 793) the Supreme Court held that even the enacted Hindu Laws including the four laws passed during 1955-56 were part of the personal laws. c) Personal laws are laws as defined under Article 13 of the Constitution. In the case of Narsingh
Pratap Deo v. State of Orissa (AIR 1964 SC 1793) the Supreme Court has observed that “though
theorists may not find it easy to define a law” “the main features and characteristics of law are
well recognized” and that “stated broadly, a law generally is a body of rules which have been laid
down for determining legal rights and legal obligations which are recognized by courts.”
d) Even in respect of customary laws, in the case of Sant Ram v. Labh Singh (AIR 1965 SC 314)
a Constitutional Bench of this Court observed: “The reasons given by the Supreme Court to hold
statute law void apply equally to a custom. Custom as such is affected by Part III of the
Constitution dealing with fundamental rights…”
e) In the same case the court further observed: “Custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression “all laws in force.”
PERSONAL LAWS AS LAWS IN FORCE:- When individual laws are perceived as “laws”
under Article 13 of the Constitution of India essentially those classified laws which have
appeared after 1950 would in any capacity be dependent upon basic rights like some other law.
The solitary other inquiry would respect those individual laws which have existed preceding the
coming into power of the Constitution. On the off chance that individual laws will be ‘laws’ as
usually characterized there is no defense for regarding them as not “laws in power” simply in
light of the fact that they were in presence at the hour of coming into power of the Constitution.
Preceding the sanctioning of the Constitution Hindus were administered by their very own law as
was the situation with Muslims, Christians , Parsis and certain different networks. These laws
were basically founded on traditions and use and were perceived as such by the courts in India as having power of law. The rights and commitments enforceable in Court of law were gotten from these individual laws and in issue of family debates the court basically took cognisance of just the individual laws of the gatherings. Accordingly for all functional purposes these laws were
laws in power in the region of India preceding the beginning of this constitution. Thusly to the
degree that they were conflicting with the arrangements of Part III of the Constitution they were
to be treated as void.
The law was well known in the Case of Shah Bano where Mohammad Ahmed Khan v. Shah Bano Begum is mainly known as Shah Bano Case. Shah Bano, 62 year old
Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband
in 1978. The Muslim family law (marriage, gifts, inheritance, adoption and a few other civil laws
are under the purview of personal laws in India – they are different for Christianity, Islam and
Hinduism) allowed the husband to do so without his wife’s consent: since under Muslim law, the
husband just needs to speak the word Talaaq before witnesses for a valid divorce. In the year
1985, Shah Bano moved to Supreme Court for seeking maintenance under section 125 of the
Code of Criminal Procedure when her husband divorced her after 40 years of marriage by giving
triple talaq and denied her regular maintenance. The Supreme Court gave verdict in favour of
Shah Bano by applying section 125 of Indian Criminal Code and it is applied to all citizens
irrespective of religion.
Then Chief Justice, Y.V Chandrachud, observed that a Common Civil
Code would help the cause of national integration by removing disparate loyalties to law. And
so, the court directed Parliament to frame a UCC. On the other hand Rajiv Gandhi Government
was not satisfied from the court decision; instead of supporting it the government enacted the
Muslim Women (Protection of Rights on Divorce) Act, 1986 to nullify the Supreme Court
judgement in Shah Bano Case and let the Muslim Personal Law prevails in divorce matter. In
this act it was mentioned that Muslim woman has right for maintenance only for three months
after the divorce i.e. iddat and then shifted her maintenance to her relatives or Wakif Board.
CONCLUSION:- Concerning the individual laws of the law established after the authorization
of the Constitution, the course of equity lately is to look at them in the light of the different
arrangements of Part III without going into the specialized inquiry of whether the individual law
is the law. Concerning the longing to utilize the arrangement of Part III to learn individual
guidelines, there will be no sensible contention. The objective of uniformity, opportunity, and
security is principal in a climate where abuse and separation persevere and adoring honor is here and there denied. The utilization of Part III will guarantee a reasonable and unbiased lawful
relationship under various individual laws.
This is more alluring than quarreling the idea of
instructing with a similar local area code. When the ideas of equity and opportunity are joined
into the field of human law, the Uniform Civil Code will be simpler to follow. It is obvious from
the former conversation. that the Constituent Assembly would not make the Muslim law
permanent and invoilable and that in its assessment the state could institute laws to change or
supplant the individual laws by a typical common code, under article 25(2), as a proportion of
social government assistance and change. The High Courts have maintained its view by saying
that cancelation of polygamy among the Hindus is a proportion of social government assistance
and change. Furthermore, change of the Muslim law, as well, disregards neither strict opportunity nor the social privileges of the Muslims. Actually, the handicap and segregation to
which the Muslim law subjects the Muslim spouse contaminates that piece of it with illegality.
Aishwarya Says:
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
Do follow me on Facebook, Twitter Youtube and Instagram.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.
We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge