Family law by Palak Agarwal at LexCliq


The Indian Constitution’s preamble declared India to be a “sovereign socialist secular democratic republic.” The Forty-second Amendment Act of 1976 added the term “secular” to the Preamble. It requires that all religions be treated equally and that they be tolerated. India has no official state religion, but it does accept the freedom to practice, preach, and spread any religion. Government-supported schools do not have religious instruction. The Supreme Court of India held in S. R. Bommai vs. Union of India that secularism was an integral tenet of the Constitution.

According to the Indian Constitution, the right to freedom of religion is a fundamental right. As a Directive Principle, the Constitution recommends a uniform civil code for its citizens. However, since Directive Principles are unenforceable under the Constitution, this has not yet been applied. In Pannalal Bansilal v State of Andhra Pradesh, 1996, the Supreme Court further held that enacting a uniform civil code all at once could be detrimental to the nation’s unity, and that only a gradual, progressive reform should be enforced. The Supreme Court rejected a petition seeking a writ of mandamus against the government to enforce a common civil code in Maharishi Avadesh v Union of India (1994). Major religious groups continue to be regulated by their own personal rules. Hindus, Muslims, Christians, Zoroastrians, and Jews all have personal laws. Brahmoism is the only Indian religion that has been strictly protected by India’s secular (“civil”) law since Act III of 1872. Buddhists, Jains, and Sikhs are considered Hindus in legal terms and are subject to Hindu personal law.

Family law

In India, various religions have different family codes, and there is no uniform civil code. Warren Hastings established provisions prescribing Hindu law for Hindus and Islamic law for Muslims for personal matters litigation during the British Raj, and this scheme of separate laws for each religion started in 1772. Following independence, however, attempts were made to modernize different aspects of personal law and introduce religious uniformity.

Warren Hastings began the codification of these personal laws because they were mixed with morality and religious values, and their languages were foreign to Britishers.

Since each group was divided into separate sects and subsects, several issues arose during the codification of these rules. Jains, Sikhs, and Buddhists were the three types of Hindus. Muslims were split into two groups: Shia and Sunni. They were also divided into Schools of Law, which regulated them. For example, there are four schools of law in Muslim law: Hanafi, Shafi, Hanbali, and Maliki. The two schools of Hindu law are Mitakshara and Dayabhaga.

Ms. Jorden Diengdeh v. S.S. Chopra

The issue of uniformity in personal marriage laws was presented in Ms Jorden Diengdeh v S.S. Chopra, AIR 1985 SC 935. The Supreme Court noted that laws relating to marriage, such as judicial separation and divorce, are not universal. It also stressed the importance of applying uniform rules such as irreversible dissolution of marriage and mutual consent for divorce to all situations, regardless of religion. The Court mentioned the need for a Uniform Code for marriage and divorce when it ordered that a copy of its judgment be submitted to the Ministry of Law and Justice.

Custody and guardianship laws, adoption laws, succession laws, and laws related to domestic abuse and child marriage are all fields where change has recently occurred.

By Palak Agarwal at LexCliq


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