August 4, 2019
Diversity in India requires diverse personal laws.

ON JULY 30, the Parliament passed the Muslim Women (Protection of Rights on Marriage) Bill making instant triple talaq as illegal and cognizable offence with maximum three years imprisonment and fine.

This has again put the focus on system of Muslim personal law in India. Various religions in India have their own personal laws while certain regions like scheduled areas in north east have certain customary laws specific to their culture. Most personal laws were, however, discriminatory to women. With incremental changes, there is now greater parity.

This system of personal law is something that has been a long drawn process to build a united identity for political and social benefits or to codify certain practices. Hindu law is the most ancient but its formal codification begain under British rule.

Similarly, Muslim law, Shariat, came around 13th century and is an intermix of Quran and teachings of Prophet Mohammad. The law governing Christians in India was similar to English law. Here are the changes that these personal laws have undergone since the British time.

1829: Bengal Sati Regulation abolished practice of Sati (burning of widows on their husband’s pyres) in India. 

1856: Hindu Widows Remarriage Act legalised widow remarriage which was earlier prohibited under social customs. A woman was also allowed right to property of her new husband but her claim over property of deceased husband was withdrawn. The right was given back in 1956 with Hindu Succession Act.

1872: The Indian Christian Marriage Act applying only to the Christians domiciled in India, except from that applicable to the Goan Christians, was passed. Goans were governed by the local Portuguese law. This Act provided essential requirements for a valid marriage, documents required, registrar conditions, place and time of marriage, performance of marriage and some basic other requirements. The Indian Divorce Act, 1869 provides grounds for divorce, mutual consent for divorce, nullity of marriage and providing the wife some rights to file petition against husband for divorce. 

1909: The Anand Marriage Act came into force to mark the validity of Sikh marriage but registration under the Act was allowed only with amendments in 2012. 

1929: The Child Marriage Restraint Act set the minimum age of marriage for men as 18, and women as 15. That law was questioned by Muslims and the Muslim Personal Law (Shariat) Application Act of 1937 was passed that had no minimum limit and allowed parental or guardian consent in case of Muslim marriages. The Prohibition of Child Marriage Act, 2006, finally fixed the marriageable age at 21 for boys and 18 for girls for all communities. 

1937:  Muslim Personal Law ( Shariat ) Application Act was passed. Before that, Indian Muslims followed a complex mix of local customs and Islamic law, the Shariat. British clarified that the text of Quran will of foremost importance. Muslim League lobbied for this Act to create a pan-India Muslim identity.

1939: Dissolution of Muslim Marriages Act deals with the circumstances in which Muslim women can obtain divorce and rights of Muslim women who have been divorced by their husbands. 

1954: The Special Marriage Act was passed allowing civil marriage, also commonly called court marriage, between two individuals belonging to same or different religions, countries (30 days prior residence is required). 

1955 The Hindu Marriage Act was passed to codify law relating to marriage among those Indians who were not Christians, Muslims, Jews and Zorastrians.  It brought uniformity of law and also introduced separation and divorce, which did not exist in more prevalent religious, customary laws. 

1956: Hindu Succession Act, Hindu Minority and Guardianship Act and Hindu Adoptions and Maintenance Act were enacted to further codify Hindu law.

1973: In K. Kumar v. Leena case ,court mentioned that Christian marriage act have no provision for maintenance, but such right is available under the common law. Wife and children are dependents under section 9 of Civil Procedure Code, 1908 (CPC). 

1976 The Marriage Law Amendment Act 1976 broadened the grounds for divorce of a Hindu marriage, widened meaning of desertion and gave minor girls right to repudiate their marriage besides other provisions. 

1985 Supreme Court gave a decision in favour of 62-year-old Shah Bano seeking alimony from her former husband. The decision led to widespread protests by Muslim leaders calling it interference in their personal matter. Then Congress govt. passed Muslim Women ( Protection of Rights on Divorce) Act in response enabling Muslim women to get alimony but only during the period of 90 days post divorce (Iddat).

2005 The Hindu Succession (Amendment) Act was passed giving equal rights in property to daughters of Hindu Sikh, Jain and Buddhists. Christians and Muslims have their own customary laws of succession.

2012 The Anand Marriage (Amendment) Act was passed to allow for registration of Sikh marriages under this Act. Earlier Sikhs were required to register under Hindu Marriage Act.

2016 35-year-old Shayara Bano challenged the practice of instant triple talaq among Muslims by filling a petition. On August 22, 2017, the Supreme Court of India deemed instant triple talaq unconstitutional and on July 30, 2019, the Indian parliament made triple talaq a criminal offence. 

2019  The Personal Law Amendment Bill 2019 removed leprosy as a ground for dissolution of marriage from the Hindu Marriage Act 1955, Dissolution of Muslim Marriages Act 1939, Divorce Act (for Christians) 1869, Special Marriage Act 1954 and the Hindu Adoptions and Maintenance Act 1956. The amendment was made since leprosy is now a curable disease. 

2019: The Muslim Women (Protection of Rights on Marriage) Bill was passed making instant triple talaq as illegal and cognizable offence with maximum three years imprisonment and fine. The wife is also enttiled to subsistence allowance.

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