Introduction: What Is Personal Law?
Before the colonial rule in the subcontinent, both Hindu and Muslim local rulers had adopted a community-specific and religion-based system of law to be applied in the matter of religious rites, personal status, family relations and succession — in the Muslim-ruled areas Hindus were governed by Hindu law and vice versa.
Early British rule, in accordance with Warren Hasting’s Judicial Plan of 1772, termed Hindus as ‘Gentoos’ and Muslims as ‘Muhammadans with their laws being ‘Laws of the Saster’ and ‘Laws of the Koran’ respectively.2 The Regulating Act of 1773, rectified by the Act of Settlement of 1781, directed the Supreme Court at Calcutta to decide ‘matters arising out of inheritance and succession to land and goods’ and matters of ‘contract and dealing between party and party’, ‘by the laws and usages of Muhammadans’ in the case of Muhammadans and ‘by the laws and usages of the Gentoos’ in the case of Gentoos. Beyond the presidencies, the Adalat system introduced by Warren Hastings in 1772 in Bengal, Bihar and Orissa was directed to decide all cases of inheritance, marriage, caste and other religious usages and institutions according to the laws of the Koran with respect to the Muhammadans and the laws of the Shaster with respect to the Hindus. However, in 1781, this provision was supplemented by a provision to the effect that in all cases for which no specific directions were given, the adalats were to act in accordance to justice, equity and good conscience.3
These very religion-based and community-specific laws governing the interpersonal relations of religions and communities came to be known as “personal laws”.4 However, given the dual family law regime in force, people who are governed by these personal laws can avail parallel “general laws” too for these respective interpersonal issues.5 Moreover, besides these communities’ specific personal laws, general laws attracting criminality in human behavior and procedure governing the court system are applicable across communities.6 Under these legislations there are no exemptions on the ground of religion7 as these legislations are stated to be general or uniform in nature.
However, I will refute this understanding later in this chapter.The British laid the foundation of the present-day criminal law jurisprudence in India. By and large it is uniform for all, be it substantive law or procedural. British onwards, the conviction and sentencing have been non-negotiable except for the petty offences. However, post 2005, India has adopted a situationist approach for certain classes of cases by introducing the concept of ‘plea bargain’6 at the stage pendency of a criminal trial.9 In a plea bargain, the accused and the victim can work out mutually satisfactory terms of disposition, and then the judge exercises his or her power to dispose of the case as the court deems appropriate. Resultantly, even in rape cases, with consent, sometimes parties resolve the issues and proceed in their life10 or decide to live together.11 The issue here is that world over, nations have sought to introduce measures of reform and this goes in consonance with the pre-British era, when Islamic criminal law and customary laws permitted such resolutions. Between 1790 and 1807, the British transformed Islamic criminal law totally and beyond recognition12 and replaced all customary methods of punishment.
Likewise in matrimonial matters, there is a plea pending13 before a constitution bench of the Supreme Court for declaring the Nikah-Muta14 and Nikah- Misyar15 as ‘unconstitutional’. These practices have almost disappeared in Islam but the concepts are very well practiced by non-religious persons and well accepted by the legal system under the term ‘live-in relationship’. Urban society of India has almost accepted it. However, the fact remains that be it ‘live-in relationship’ or Nikah-Muta and Nikah-Misyar, all are based on the consent of the couple. The Supreme Court accepts the ‘live-in relationship’ as part of the fundamental freedom of an individual. Today, there is no justifiable reason to question these practices.
Nonetheless, these petitions challenging Nikah-Muta and Misyar have created the desired Islamophobic contents for consumption of vocal electronic and print media and fodder for a set of political parties. In public debates, nobody pointed out the positive aspect of it by saying that a 1400-year-old concept is accepted worldwide as a part of basic fundamental freedom. To ensure this right, our courts have made lots of efforts and invested precious judicial time in an overburdened judiciary. Now the same right (though under challenge) is available as a constitutional right, drawing its legitimacy through the route of ‘constitutional morality’ of the present times. While giving this judgment, a five-judge bench of the Supreme Court has gone to the extent of saying that ‘procreation is not the only reason for which people choose to come together, have live- in relationships, perform coitus or even marry. They do so for a whole lot of reasons including emotional companionship’16 and the ‘Society cannot dictate the expression of sexuality between consenting adults. That is a private affair. Constitutional morality will supersede any culture or tradition’.17 This view of the Supreme Court has come during the pendency of the cases relating to Muta and Misyar. We need to wait and see how these two concepts are decided by the Supreme Court. Interestingly, the same judges referred the issue of Nikah-Muta and Nikah-Misyar to a larger bench of five judges prior to deciding the case of Navtej Singh Johar.18II.