Family law or personal law consists of family or personal matters like
marriage, dowry, dissolution of marriage, guardianship, adoption, maintenance,
gifts, wills, inheritance, succession, and so on.
In India, religion and personal law are largely interlinked. So, Hindus, Sikhs,
Jains, and Buddhists follow Hindu family law (Sikhs have their marriage law but
are covered under Hindu law for other family matters); Muslims, Christians, and
Parsis have their laws; and other traditional communities, like the tribal
groups, follow their customary practices or customary laws. The Hindu law, the
Sikh marriage law, the Parsi law, and the Christian law are codified or passed
by the Indian Parliament as acts or laws.
The Muslim law is uncodified and is based on the Sharia, which is the moral and
religious law primarily grounded on the principles of the Islamic religious text
the holy Quran and examples laid down in the Sunnah by the Islamic prophet
There are various provisions in the Constitution of India that are specified for
gender equality. The preamble to the Indian Constitution resolves to secure
justice, liberty, equality, and dignity of all. Furthermore, Article
14 provides equal treatment before the law for every person; and Article
15 prohibits discrimination based on religion, race, caste, sex, or place of
birth. With the apparent purpose to effectuate these equality provisions,
Article 13 states that all “laws in force”
in India at the commencement
of the Constitution, “in so far as they are inconsistent with the provisions
of this Part, shall, to the extent of such inconsistency, be void
Thus, the idea of equality is strongly emphasized in the Constitution. However,
exceptions exist too, for example, Articles 25 and 26 of the Constitution
provide for freedom of religion that includes freedom of conscience and free
profession, practice and propagation of religion as well as freedom to manage
religious affairs. The religious communities have used these provisions to argue
that modifying their family laws would be interfering with their freedom of
The modern family laws were adopted by reconfiguring the traditional religious
laws and further based on modern constitutional values. However, complete gender
equity has not been achieved.
The instances of gender inequality existing in the present day include:
- Age of consent for Marriage:
Section 5(iii) of the Hindu Marriage Act, 1955 prescribes marriageable age
for the girl as eighteen and boy as twenty-one.
The Special Marriage Act, 1954 also prescribes eighteen years and twenty-one
years as the legal minimum for women and men respectively. However, under
sections 11 and 12 of the Act, 1955 marriages where one or more parties do not
meet the legal minimum age are neither void nor voidable and merely liable to
Muslim Law in India recognizes the marriage of minor who has attained puberty as
These differences between the age of consent for marriage simply contributes to
the stereotype that wives must be younger than their husbands. If a universal
age for the majority is recognized, and that grants all citizens the right to
choose their governments, surely, they must then be also considered capable of
choosing their spouses. For equality in the true sense, the insistence on
recognizing different ages of marriage between consenting adults must be
The age of majority must be recognized uniformly as the legal age for
marriage for men and women alike as is determined by the Majority Act, 1875,
i.e. eighteen years of age. The difference in age for husband and wife has no
basis in law as spouses entering into a marriage are by all means equals and
their partnership must also be of that between equals.
Rights of Differently-Abled Persons in Marriage:Leprosy is one in many ways that the laws may intentionally or unintentionally
discriminate against persons with disabilities. There have been multiple
occasions on which a parent with a disability is unable to negotiate custody of
The Personal Laws (Amendment) Bill, 2018, proposes to amend the Christian
Divorce Act, 1869, Section10 (iv); the Dissolution of Muslim Marriages Act,
1939, Section 2 (vi); the Hindu Marriage Act, 1955, Section 13 (iv) the Special
Marriage Act, 1954 Section 27 (g) and the Hindu Adoptions and Maintenance Act,
1956, Section 18 (2)(c) to remove leprosy as a ground for seeking a divorce or
as a ground to deny maintenance. Not only the disease is now curable but it is
also common, and maintaining such a provision amounts to discrimination against
individuals suffering from this condition.
Adultery:Adultery is a ground for divorce under Section 13(1) of the Hindu Marriage Act,
Under Christian law before the 2001 amendment in the Divorce Act, 1869,
for a woman to seek a decree of divorce on grounds of adultery was
insufficient until she also included cruelty as a ground for divorce. However, in 2001 this was
amended and both men and women were given the right to seek divorce on the
ground of adultery alone.
Under Muslim law, adultery is not recognized as a ground for divorce unless it
is committed with women of evil repute or leads an infamous life, which
is included under cruelty.
Under Section 32(d) of the Parsi Marriage and Divorce Act, 1936 a person can
apply for a divorce if the defendant after the marriage has committed the
offense of adultery, fornication bigamy, rape or an unnatural offense. However,
this ground of divorce is available only when the other spouse applies within
two years of discovery of the fact.
Thus, while all family laws include adultery as a ground for divorce it is
important to ensure that the provision is accessible to both spouses.
Practice Of Polygamy
Hindu Law: Under Hindu law, bigamous marriages are void and punishable
offense under Section 11 & 17 of the Hindu Marriage Act, 1955 read with Section
494 & 495 of the Indian Penal Code, 1860.
Muslim Law: Practice of Polygamy is permitted in Islamic law but only
to the men and is frequently misused by persons of other religions who convert
as Muslims solely to solemnize another marriage rather than Muslims themselves.
Various committees like Law commission, Sachar committee in its
reports  acknowledged that polygamy should be made as a criminal offense
and section 494 of IPC should be applied to all communities. And this was not
recommended in a moral position but emanates from the fact that only a man is
permitted multiple wives which is unfair.
Custody And Guardianship
- Hindu Law:
In the matter of adoption, according to Section 8 of The
Hindu Adoptions and Maintenance Act, 1956, which requires women to take
consent of their living husband to adopt a child is discriminatory and does not
pass the constitutional standard of morality. Disallowing women to adopt without
the consent of the husband violates Article 14, Article 15, and Article 21 of
the Indian constitution.
There is an unreasonable classification based on gender
because a Hindu male adopts freely and no one’s permission is required. By
making women incapable enough to adopt just because of gender also undermines
the dignity of an individual.
Section 6 of the Hindu Minority and Guardianship Act, 1956 discusses who can
be the natural guardian of a minor’s person as well as their property. The
section appoints father and after him the mother as the natural guardian of a
boy and unmarried girl.
In the case of Githa Hariharan v. Reserve Bank of India, the court held
Whenever a dispute concerning the guardianship of a minor, between the
father and mother of the minor is raised in a court of law, the word ―after
in the section would have no significance, as the court is primarily
concerned with the best interests of the minor and his welfare in the widest
sense while determining the question as regards custody and guardianship of
The Law Commission in various reports  has already recommended that the
sub-clause (a) of the Hindu Minority and Guardianship Act, 1956 should be
amended and equal rights should be given.
- Muslim Law:
In the Muslim law the mother might have custody of the
child but the father has the guardianship. Entitling him for the right to take
any decision for the future of the child. He has the ultimate authority to
decide matters regarding the future of the child be it his/her education, or
If both the spouses are earning then the financial responsibility of the child
should also be shared. At the same time, the mother should also have the equal
right to decide the matter related to the welfare of the minor. She should not
only be there to take physical or emotional care of the child but also have
equal say in the matters deciding the future of the minor.
Whether or not personal law
are laws under Article 13 of the Constitution of
India or if indeed they are protected under Articles 25- 28, has been disputed
in various aspects. In the absence of any consensus on a uniform civil code
government should think to preserve the diversity of personal laws but at the
same time ensure that personal laws do not contradict fundamental rights
guaranteed under the constitution of India.
To achieve this, it is desirable
that all personal laws relating to matters of the family must first be codified
to the greatest extent possible, and the inequalities that have crept into
codified law, these should be remedied by amendment.
A series of cases from Sarla Mudgal to the minority judgment in Shayara
Bano, have urged the legislature to look into the inequalities within family
laws because a fair law would always be far more useful than a case by case
delivery of justice.
nation need not necessarily have ‘uniformity’ it is making diversity
reconcile with certain universal and indisputable arguments on human rights.
- India Const. art. 14
- India Const. art. 15.
- India Const. art. 13.
- India Const. art. 25.
- India Const. art. 26.
- The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India
- The Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954
- The Majority Act, 1875, No. 09, Acts of Parliament, 1875 (India)
- The Indian Divorce Act, 1869, No. 04, Acts of Parliament, 1869 (India)
- The Parsi Marriage and Divorce Act, 1936, No. 03, Acts of Parliament,
- The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
- The 18th Law Commission’s 18th Report on ‘Covert’s Marriage Dissolution
Act, 1866 (1961), http://lawcommissionofindia.nic.in/1-50/Report18.pdf
- Report No. 227, Law Commission of India, Preventing Bigamy via
Conversion to Islam – A Proposal for giving Statutory Effect to Supreme
Court Rulings, http://lawcommissionofindia.nic.in/reports/report227.pdf
- The Hindu Adoptions and Maintenance Act, 1956, No. 78, Acts of
Parliament, 1956 (India)
- The Hindu Minority and Guardianship Act, 1956, No. 32, Acts of
Parliament, 1956 (India).
- Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.
- The Law Commission of India in its 133rd report: ‘Removal of
Discrimination Against Women in Matters Relating to Guardianship and Custody
of Minor Children and Elaboration of The Welfare Principle’ (1989), http://lawcommissionofindia.nic.in/101-169/Report133.pdf
- The Law Commission of India in its 257th report: ‘Reforms in
Guardianship and Custody Laws in India’, (2015), http://lawcommissionofindia.nic.in/reports/Report%20No.257%20Custody%20Laws.pdf
- Sarla Mudgal v. Union of India, AIR 1995 SC 1531.
- Shayara Bano v. Union of India, (2017) 9 SCC 1.