The personal laws under Part III of the Indian Constitution

The personal laws under Part III of the Indian Constitution

Subject – Polity

Context – A Bill proposing to increase the age of marriage for women, and ensuring harmony in the age limit across religions, was introduced in Lok Sabha

Concept –

• Personal laws are a set of laws that govern and regulate relations arising out of certain factors connecting two persons or over two persons. These factors are marriage, blood, and affinity. Moreover, personal law governs and regulates subjects or areas of a private sphere such as marriage, divorce, maintenance, succession, minority, and guardianship, etc.
• Hindus, Muslims, Christians, Parsis, Jews are governed by their own Personal Laws, such as the Hindu law, Muslim Law, Christian Law, Parsi Law, and Jewish Law respectively.
• Article 13(1) of Indian Constitution – All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
• Article 13(3)(b) includes laws passed or made by the legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed. It means the same thing as ‘existing law’ defined in Article 372 of the Indian Constitution.
• Personal laws in marriage

The Prohibition of Child Marriage (Amendment) Bill, 2021proposes three changes –

• First, the law proposes to increase the minimum age of marriage for a woman. The Bill makes the minimum age of marriage same for both men and women. Currently, it is 18 years for women and 21 for men.
• Second, it also increases the window for a “child” to file a petition to declare a child marriage void.
  • Under the law, child marriages, although illegal, are not void but “voidable.”
  • A child marriage can be declared null and void by a court when either party to the marriage files a petition under Article 3(4) of the 2006 Prohibition of Child Marriage Act.
  • A “void” marriage, as opposed to a divorce, in legal terms, would be as if the marriage had never taken place in the first place.
  • The Bill proposes to extend this window for both the woman and the man to five years after attaining majority. Since the age of majority is 18 for both, this would mean that either the man or the woman can file a petition to declare the child marriage void before they turn 23, or until two years after reaching the new minimum age of marriage.
• Introduction of a “notwithstanding” clause – this essentially clears the decks for equal application of the Prohibition of Child Marriage Act across religions, notwithstanding any customs.

Who is a Child?

• The amendments proposed to the anti-child marriage law define a child as someone under the age of 21 and contradicts laws where the legal age of competence is recognised as 18.
• The Prohibition of Child Marriage (Amendment) Bill, 2021, which seeks to raise the age of marriage for women to 21, amends the definition of child to mean “a male or female who has not completed twenty-one years of age”.
• It overrides personal laws of Hindus, Christians, Muslims and Parsis, as well as the Special Marriage Act, 1954.
• Under the Indian Contract Act, 1872 a person should have attained the age of majority in order to be able to enter into a contract.
• The law to punish sexual crimes against children, the Protection of Children from Sexual Offences (POCSO) Act, 2012 too recognises a child as someone under the age of 18 years and thereby implies that the age of consent for sex is also 18 years.
• The law that deals with juvenile offenders (or children in conflict with law) and children who need care and protection, that is, the Juvenile Justice (Care and Protection) Act, 2015 does the same.

Hindu personal laws

• The Hindu personal laws (that apply also to the Sikhs, Jains and Buddhists) have been codified by the Parliament in 1956
• This Code Bill has been split into four parts:
  • The Hindu Marriage Act, 1955
  • The Hindu Succession Act, 1956
  • The Hindu Minority and Guardianship Act, 1956
  • The Hindu Adoption and Maintenance Act, 1956
• Hindu personal laws have been by and large secularized and modernized by statutory enactments

Muslim personal laws

• Muslim personal laws are still primarily unmodified and traditional in their content and approach.
• The Shariat law of 1937 governs the personal matters of all Indian Muslims in India.
• It clearly states that in matters of personal disputes, the State shall not interfere and a religious authority would pass a declaration based on his interpretations of the Quran and the Hadith.
• Since Muslim law recognises “attaining puberty”, which is legally assumed at 15 years, as the minimum age of marriage, it raises questions as to whether the child marriage law can apply to Muslims.