Personal Law

1. Why this…..
As per Section 6(a) in The Hindu Minority and
Guardianship Act, 1956, in the case of a boy or
an unmarried girl—the father, and after , the
mother is natural Guardian.
Here the word ‘AFTER’ has to be underlined
After Gita hariharan case, the after is
interpreted as in the absence of father.

2. Personal Law and Article 15(3) of
Indian Constitution
An India, without gender
discrimination…! It’s a Myth…
why not…..??
Reality...
By Dr. Aishwarya Kadam

3. This is what expected…???

4. Analysis of Personal law- Position of
female

5. Position of Female under Hindu Law-
Marriage and matrimonial
Ground under HMA
Maintenance under
HAMA, HMA, Crpc
Domicile Adoption and
Guardianship under
HAMA
Property Rights
under HSA
For Divorce- Section 13(2)-
Wife has additional Ground.
Section 13(2),(4)- Only she
has right to repudiate
marriage- if below 15 years
Jurisdiction of the Court-
U/s 19 of the Act- the case
will be transferred as per her
connivance
U/s 8 – registration of
marriage – Duty on
Husband’s Shoulder- if he
fails- 1000 rs fine
Section 125 of
Crpc, DV Act,
Section 19 of
HAMA- Only wife
Gender Neutral
As per Private
International law
Wife is in
independent class
Wife has no capacity
to adopt even with the
consent of the
husband…”
After 2010, her
consent is material.
Single women can
take child in
adoption.
HAMA- In case of
Natural Guardian –
Father is first
Guardian. After him,
mother.
In case of Illegitimate
child- mother
In case Custody-
below 5, 0rdinary to
mother
HSA- After 2005-
Amendment in
section 6 of HSA-
She is considered as
a Coparcener.
In of self acquired
property, as per
Section 8 of HSA and
Section 15 of HSA-
legal heirs are
different. Eg.
Husband own
relatives. Heirs of
husband-source for
property- mother-in-
law over mother.

6. Position of Female under Muslim Law
Marriage and Matrimonial Relief Maintenance Adoption and
Guardian
Domicile Succession
Age of Puberty- 9 years-
Menstruation Cycle.
To chose partner in the hand of
Husband
Dower- Consideration of marriage-
prostitutes –CEDAW- personal beauty
of her.
4 wives
Iddat
Other Religion
Muslim male+ Non- Muslim Female =
Irregular marriage
If reverse situation- Void.
Witness- 1 male= 2 females.
Divorce – Customary powers in the
hand of Husband- ILA, Zihar,
Khula, Mubarat- She has pay
consideration, Triple Talak
As per 1939 act- she has power but
through court
No provision
under customary
law
section 3 of
PMWSA,
section 125 of
Crpc- only wife
by Wakf Board
Adoption Under
personal law-
Not possible.
Guardian- only
male. Custody-
below 2- mother
Gender Neutral
As per Private
International law
Wife is in independent
class
Female gets half
that male

7. Position of Female under Parsi and Christian
Marriage and
Divorce
Domicile Maintenance Succession
Parsi- Gender
Neutral same like
HMA
Christian- Gender
biased
She is in
independent
class as per
ISA-
Parsi under
marriage Act-
Gender Neutral.
In Christian –
only he has to
Do
Parsi laws of inheritance:
A non-Parsi woman who is
either a wife or widow of a
Parsi cannot inherit. Their
children still can.
But those born to a Parsi
woman married to a non-
Parsi man are not considered
part of the community.
In Christian- Gender Neutral

8. These all are examples of Gender
biased then….
Still we follow…??
Still, we don’t challenge…??
What about Article 14, 15 and 15 (3) of
Indian Constitution …???

9. Personal Law
and Indian
Constitution
Whether the state/
parliament has
right to interfere in
personal life..??
Is there any formal
procedure/ law…??
If yes, what will be
consequences if it
is not followed…??

10. Article 13(3) of Indian
constitution,
The word – custom is
used and not personal
laws
whether personal law
fall in the ambit of ‘Law
in Force, Part III of the
constitution
Status of
remedy
under
Indian
Constitution
Constitutional validity
Right to equality, life-dignity,
privacy, Article 15(1)

11. Thumb rule is:
•Laws are inconsistent with or in derogation of the fundamental
rights, shall be struck down….
•The validity of all the laws shall be checked with the provisions
of the Indian constitution…
Then why personal laws are not repealed….??
The existence of Article of 14 is in question….!!
Answers to this question is
•Lack of general will- public opinion
•We want to preserve patriarchy.
•Vote bank and Political reason.
•Court is supposed to act as a guardian of fundamental rights,
but still there is inconsistency in the Judgments…
I don’t know…..what is reason…..

12. constitutional Scrutiny of Personal law
The decision in Narasu Appa Mali, in restricting the definition of the term 'laws in force'
detracts from the transformative vision of the Constitution.
Here, Custom or usage is excluded from 'laws in force'.
The decision also opined that personal law is immune from constitutional scrutiny.
This also overlooks the wide ambit that was to be attributed to the term 'laws in force'
having regard to its inclusive definition and constitutional history.
Shabrimala Case- Not yet overruled.
It is high time, to take reasonable and stable Stand

13. What to do…??,
To have
Male= female

14. Suggestions
Please think that, we exist.
The court should take clear view.
It is right time,
The so called Government should come with proper codification
of law.
Then next question comes- UCC or codification of law.
As per my opinion if we are coming with UCC without any
religious belief. Then it is accepted. Otherwise, putting ceremony
which is followed under Hindu law and contract under Muslim
law are at polar end. And asking them to come under one
umbrella- it is next to impossible. So I feel
u5