Personal Law Distinguished From Territorial Law:
At the present day law is generally territorial in nature. It applies to people by virtue of their connection with the territory of a particular State. The Indian Penal Code, for instance, is a territorial law. When A has committed a crime in India he is punished under this Code.
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Whether A is a foreigner or an Indian, whether A is a Hindu or a Mahomedan or a Christian. This is because the law in question is a territorial law. The area over which a territorial law operates may be the entire State or a part of it. In the latter case the law is usually described as a local law.
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In India we have also system of personal law. A personal law applies for instance to those who profess a particular religion, eg. Hindu Law applicable to Hindus; Mahomedan Law applicable to Mahomedans.
Scope of Personal Law:
Originally Hindu Law and Mahomedan Law were comprehensive systems. They dealt with all branches of law. For example Hindu law had a system of criminal law, legal procedure and law of Evidence. So did Mahomedan law. On the advent of the British power, these provisions of the Hindu and Mahomedan systems of law were superseded.
Thus, the Indian Penal Code, the Indian Evidence Act, the Civil Procedure Code and the Criminal Procedure Code have superseded the Personal Laws of the Indian people in regard to these subjects. Territorial law has superseded personal law in all these fields.
Personal Law operates only in that narrow field which has not yet been covered by a corresponding territorial law. In 1772 Warren Hastings enacted that in all suits regarding “inheritance, marriage, caste and other religious usages or institutions, the law of the Koran with respect to Mahomedans and the law of the Shastras with respect to Gentoos shall be invariably adhered to”. (Plan of Warren Hastings, 1772 : Rule 23). This policy was rigidly adhered to and this provision was reiterated in later regulations.
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As a result of this policy at the present day Hindus are governed by the Hindu Personal Law and Mohammedans are governed by their own personal law in regard to the following topics. In regard to Mahomedans, the Shariat Act, 1937, expressly mentions in s. 2 the subjects as to which the Shariat i.e., Mahomedan Personal Law, should be applied.
Topics of Personal Law:
Hindus:
1. Successions (Inheritance)
2. Marriage and Divorce
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3. Guardianship
4. Maintenance
5. Joint Family and Partition
6. Adoption
7. Religious Institutions
Mohammadans:
1. Marriage, Divorce and Dower
2. Succession (Inheritance)
3. Guardianship
4. Maintenance
5. Gifts and Wills
6. Wakfs (As regards 1 to 6 see Sec. 2, Shariat Act, 1937)
7. Pre-emption (On the basis of justice equity and good conscience).
Towards a Civil Code:
Under the British rule, the legislature rarely legislated in the sphere of personal law. To remove some obnoxious customs legislation was occasionally undertaken, e.g., Abolition of Sati (Reg. XVII of 1829); Hindu Widow’s Remarriage Act (XV of 1856). After independence, legislative interference in the field of Hindu Personal Law is more pronounced. Comprehensive codification has been effected in relation to the Hindu Law of Succession, Marriage, Guardianship, Maintenance and Adoption.
Central Acts have covered this field. In regard to Hindu Religious institutions there are various State Legislative enactments. Mahomedan Wakfs (Public Trusts) are governed by the Mussalman Wakf Act, 1923. This Act was passed for making provision for the better management of wakf property and for ensuring the keeping and publication of proper accounts.
A comprehensive legislation applicable to all public trusts whether Hindu or Mahomedan is proposed to be introduced by the Indian Parliament. The question of a Uniform Civil Code, i.e., a territorial law in the field of Marriage, Succession, Guardianship and Maintenance — is raised in Parliament from time to time. Such a Civil Code continues to be the goal of governmental policy for there is a Directive Principle of State Policy to the following effect in the Constitution of India:
“The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.”
(Art. 44: Constitution of India)
Codification of Hindu Law:
A comprehensive Hindu Code was drafted by the Rau Committee. It was introduced in the Legislative Assembly in 1947. It was discussed in the provisional Parliament but could not be passed before its dissolution and consequently the Bill lapsed.
The Code was then split into separate parts for facilitating discussion and passage in Parliament. The first of these dealt with Hindu Marriage and became law as the Hindu Marriage Act of 1955 (with effect from 18-5-1955). This did not deal with civil marriage as that subject was dealt within the Special Marriage Act (43 of 1954) which came into force on 9-10-54. The Hindu Marriage Act, 1955 has been extensively amended by Act 63 of 1976, which received the assent of the President on 27-5-1976.
The Hindu Succession Act, 1956 (w.e.f, 17-6-56) was the next instalment of the Code to be passed. It treats sons and daughters as equals in the matter of succession. The Hindu Minority and Guardianship Act, 1956 (w.e.f. 25-1-56) was the third instalment of the Hindu Code.
This Act is supplemental to the Guardians and Wards Act, 1890. Besides the guardians appointed under the Act of 1890, the Hindu Minority and Guardianship Act, 1956 deals also with natural guardians and Testamentary guardians under Hindu law. It has abolished “de facto” guardianship. The fourth instalment of the Code deals with Adoptions and Maintenance. The law of adoption could be simplified considerably because of equality between daughters and sons introduced by the Hindu Succession Act.
The Hindu Adoptions and Maintenance Act, 1956 (w.e.f. 21-12-1956) provides for the adoption of boys as well as of girls. A husband can no longer forbid his wife from making any adoption after his death. A Hindu widow’s adoption will hereafter be not to her deceased husband but in her own individual right. Adoption will not hereafter divest anyone of property which had vested in him prior to the adoption.
The rule of divestment, which was the cause of much ruinous litigation under the old law, has now been abandoned. The latter part of this Act deals with the subject of maintenance. It is based on the existing law as codified in the Bills of the Rau Committee.