India, Republic of


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Legal Table
Legal Text

Legal System/History

The legal system is based in part on English common law. Sources of Muslim personal law as applied in India are Hanafi fiqh along with some resort to other schools, legislation, precedent, certain juridical texts (both classical and modern) that are considered authoritative, and custom. 

Under the British Raj, colonial courts were directed to apply "indigenous legal norms" in matters relating to family law and religion, with "native law officers" serving as expert advisers. A number of Hanafi sources were translated into English and the advisory positions of legal experts on Hindu and Muslim law were abolished in 1864. Legal commentators on the development of the indigenous system of "Anglo-Muhammadan" law attach varying degrees of significance to the subsequently authoritative position of these works (and the quality of the translations), the absence of judicial expertise in Muslim law, the introduction of English legal principles and procedures, and the position taken on customary law.

The status of minority communities’ personal laws has been the subject of great debate. Article 44 of the Constitution, a Directive Provision legislating the aim of establishing legal uniformity in India, particularly with reference to a uniform civil code, is considered a threat by some, as the norm is for all religious communities to be governed by their own personal laws in family matters.

School(s) of Fiqh

Hanafi majority, sizeable Shafi’i, Ja’fari and Isma’ili minorities; other than Muslims, Sikh, Jain, Buddhist, Zoroastrian, Christian and Jewish minorities

Constitutional Status of Islam(ic) Law

 

Constitution adopted 26th Nov. 1949, amended many times. The preamble affirms the secularity of the State. Article 26 guarantees freedom to manage religious affairs for every recognised religious denomination or sect. The difficulty in reconciling the constitutional protection of the rights of religious minorities and the Directive Provision of Article 44 has meant that legal uniformity is far from being achieved.

Court System

Muslim personal law applied by regular court system. Four levels of courts: civil courts, district courts in administrative subdivisions of each state, State High Courts in each of the 18 states and the Supreme Court. Courts of first instance in personal status cases are Family Courts, organised under Family Courts Act 1984. These Courts have same jurisdiction as any district or subordinate civil court, thus also have some criminal jurisdiction with relation to maintenance orders.

Relevant Legislation

Bihar & West Bengal Registration of Muhammedan Marriages Acts 1876

Guardians and Wards Act 1890

Child Marriage Restraint Act 1929

Muslim Personal Law (Shari’at) Application Act 1937

Dissolution of Muslim Marriages Act 1939

Special Marriage Act 1954

Family Courts Act 1984

Muslim Women (Protection of Rights on Divorce) Act 1986

Notable Features

Marriage Age: 21 for males and 18 for females; penal sanctions for contracting under-age marriages, though such unions remain valid

Marriage Guardianship: governed by classical law

Marriage Registration: registration is voluntary; other evidence may be supplied in order to prove the existence of an unregistered marriage

Polygamy: governed by classical law, however Indian Criminal Procedure Code provides that a woman refusing to live with her husband on just grounds is still entitled to maintenance, and just grounds expressly include the husband’s contracting of a polygamous marriage; in Itwari v. Asghari (AIR 1960 All 684) onus was put on husband to prove that his subsequent marriage did not constitute insult or cruelty to first wife, and court shouldn’t enforce restitution of conjugal rights under such circumstances

Obedience/Maintenance: governed by classical law

Talaq: governed by classical law

Judicial Divorce: grounds on which women may seek divorce include: desertion for four years, failure to maintain for two years, husband’s imprisonment for seven years, husband’s failure to perform marital obligations for three years, husband’s continued impotence from the time of the marriage, husband’s insanity for two years or his serious illness, wife’s exercise of her option of puberty if she was contracted into marriage by any guardian before age of 15 and repudiates the marriage before the age of 18 (as long as the marriage was not consummated), husband’s cruelty (including physical or other mistreatment, unequal treatment of co-wives), and any other ground recognised as valid for the dissolution of marriage under Muslim law

Post-Divorce Maintenance/Financial Arrangements: came under sections 125-128 of Criminal Procedure Code which provides that dependants (including divorcées) unable to support themselves are entitled to maintenance; after 1986 Muslim Women (Protection of Rights on Divorce) Act, Muslims do not necessarily come under the ambit of the Criminal Procedure Code (unless they choose to be governed by it), rather, under new Act, obligation of Muslim husband to provide his former wife with "reasonable and fair provision and maintenance to be made and paid to her within the ‘idda period by her former husband" is affirmed; in Muhammad Ahmad Khan v. Shah Bano (AIR 1985 SC 945) court held there is no conflict between classical Hanafi requirement of maintaining divorced wife during ‘idda period, and obligation of maintaining former wife unable to support herself so long as she remains a divorcée (status terminated by remarriage or death); ruling met with much agitation by certain Muslim groups arguing that it constituted undue interference in Islamic personal status laws; led to passage of Muslim Women (Protection of Rights on Divorce Act) 1986; in Ali v. Sufaira (1988 (2) KLT) Kerala High Court rejected a narrow interpretation of 1986 legislation that would confine former husband’s maintenance obligations to his ex-wife’s ‘idda period; ruling has since been confirmed by large number of judgements

Child Custody: general rule is that divorcée is entitled to custody of children until age of 7 for males (classical Hanafi position) and puberty for females, subject to classical conditions, though there is some flexibility as ward’s best interests are considered paramount under terms of Guardians and Wards Act 1890

Succession: governed by classical law although customary law may predominate under certain circumstances

Law/Case Reporting System

All India Reporter, Indian Law Reports, Supreme Court Reports, and state law reports (e.g., Kerala Law Times)

International Conventions (with Relevant Reservations) & Reports to Treaty Governing Bodies

ICCPR & ICESCR – accession 1979 with interpretative declarations regarding common Art. 1, Arts. 9 & 13 of ICCPR, and Arts. 4, 8 & 7(c) of ICESCR

CEDAW – signature 1980, ratification 1993 with declarations relating to Arts. 5(a), 16(1) & 16(2) and reservation to Art. 29(1)

CRC – accession 1992 with declaration relating to Art. 32, especially 32(2)(a)

Legal History:

The Indian legal system is based in part on the English common law system. With respect to Muslim personal law as applied in India, the sources of law are Hanafi fiqh along with some resort to other schools, legislation, precedent, certain juridical texts (both classical and modern) that are considered authoritative, and custom.

During the British Raj, the colonial courts were directed to apply "indigenous legal norms" in matters relating to family law and religion, with "native law officers" advising the courts on the determination of those norms. A number of Hanafi sources (notably al-Hidaya and the Fatawa Alamgiri) were translated into English. The advisory positions of legal experts on Hindu and Muslim law were abolished in 1864. Legal commentators on the development of the indigenous system of "Anglo-Muhammadan" law (now more commonly referred to as Indo-Muslim law) attach varying degrees of significance to the subsequently authoritative position of these works (and the quality of the translations), the absence of judicial expertise in Muslim law, the introduction of principles of English law and procedure through judges trained in the English legal tradition and through interpretation of the residual formula of ‘justice and right’ or ‘justice, equity and good conscience’ to imply mainly English law, and to the position taken on customary law.

The status of the personal laws of minority communities, and the plurality of religious laws in general, is much debated in India. Article 44 of the Constitution legislates a commitment to the gradual establishment of legal uniformity in India, the aim being that the state "shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." This directive is considered a threat by elements of religious minority communities, who continue to be governed by their own personal laws in family matters, as applied within the superstructure of the Indian legal system.

Schools of Fiqh: The predominant madhhab is the Hanafi, with sizeable Shafi’i, Ja’fari and Isma’ili minorities. India’s minority religious communities also include Sikhs, Jains, Buddhists, Christians and Jews.

Constitutional Status of Islam(ic Law): The Indian Constitution was adopted on 26th November 1949 and has been amended many times. The preamble of the Constitution affirms that India is a "sovereign socialist secular democratic republic". India’s secularity is framed in terms of neither favouring nor officially adopting any particular religion, and Article 26 guarantees the freedom to manage religious affairs (subject to constraints imposed by the requirements of public order, morality and health) for every recognised religious denomination or sect. The aforementioned Article 44 of the Constitution contains the Directive Provision stating that Indian legislators shall aim to establish a uniform civil code throughout India. For the time-being, religious communities continue to be governed by their own personal laws (apart from Muslims, this applies to Christians, Zoroastrians, Jews and Hindus, as well as Buddhists and Sikhs who, for legal purposes, are classified as Hindus). Although the option of civil marriage exists, it is not often the only regime under which Indians marry. The difficulty of reconciling the secularity of the Republic and the objective of establishing legal uniformity with the protection of minority rights (also enshrined in the Constitution) has meant that, almost fifty years since the adoption of the Constitution, the goal of the directive principle in Article 44 is still far from being realised.

Court System: Muslim personal law is applied by the regular court system. As the majority of Muslims are Hanafi, courts presume that litigants are Hanafi unless the contrary is established.

There are four levels of courts in the judiciary. The first are civil courts with jurisdiction over arbitration, marriage and divorce, guardianship, probate, etc. The next level of courts is established in the subdivisions of each state, at the district level. Each district comes under the jurisdiction of a principal district civil court presided over by a district judge. There are State High Courts in each of the 18 states of the federation. The Supreme Court is constituted by one Chief Justice and not more than 17 judges.

The courts of first instance for personal status are generally the Family Courts, organised under the Family Courts Act of 1984. The Family Courts are deemed to be the equivalent of any district or subordinate civil court. Their jurisdiction is enumerated in the Act and covers suits for decrees of nullity, restitution of conjugal rights, judicial separation or dissolution, validity of marriage, matrimonial property, orders or injunctions arising out of the circumstances of marriage, legitimacy, maintenance, guardianship, custody, and access to minors. These courts have some criminal jurisdiction in terms of maintenance orders. Suits in these courts may be held in camera if the Family Court so desires or at the request of the parties to the case.

Notable Features:* With the exception of some enactments, most of the personal law applicable to Indian Muslims is uncodified and administered by state courts on the basis of Indo-Muslim judicial precedents. With one exception, the legislation regulating Islamic family law dates from the period of British colonial rule.

The Muslim Personal Law (Shari’at) Application Act 1937 directs the application of Muslim Personal Law to Muslims in a number of different areas mainly related to family law. The Act also directs the application of Muslim personal law in matters relating to intestate succession among Muslims. On the matter of Islamic inheritance law, as the Qur’an provides a systematic scheme for intestate succession, there has been no particular legislation in that area. The courts generally apply the classical rules relating to intestate succession.

The Child Marriage Restraint Act 1929 introduced under the British provided penal sanctions for contracting marriages below the specified minimum age, originally established at 18 and 15 years. As the Act currently stands in India (amended by Act 2 of 1978), the minimum marriage age is 21 for men and 18 for women. However, as registration is not compulsory in India, and as the Act does not instruct the dissolution of under-age marriages, such unions are not rendered invalid.

The Registration of Muhammedan Marriages and Divorces Act 1876 is still in operation in Bihar and West Bengal. Other states of the federation also have similar Acts, and there are facilities for voluntary registration. However, registration is not a requirement in India. The option of registering a marriage under the Special Marriage Act 1954 (under which all inter-religious marriages must be registered) also exists, in which case a different set of secular marriage and divorce laws would apply; it does not, however, appear to be very common to do so in practice. Registration may prove useful if recourse is had to the courts, but because it is not compulsory, other evidence may be used to prove the existence of an unregistered marriage. Upon signature to the CEDAW, India submitted a declaration affirming the government’s commitment to the principle of obligatory registration of marriage, but stating that, for the present, the diversity and size of India’s population make strict adherence to this principle impractical.

With regard to polygamy, the Criminal Procedure Code establishes that a woman who refuses to live with her husband on just grounds will still be entitled to maintenance and those just grounds, as defined in the Code, include the contracting of a polygamous marriage by the husband, even if the personal law applicable to the parties permits polygamy. This proviso only actually applies to Muslims as polygamy has been abolished for all other communities. In Itwari v. Asghari (AIR 1960 All 684), a suit for the restitution of conjugal rights by a Muslim husband against his first wife, the Allahabad Court stated that the onus was on the husband to prove that his second marriage did not constitute any insult or cruelty to the first wife. Although the Muslim husband has the right to contract a polygamous marriage, the Court held that it does not necessarily follow that the first wife should be forced to live with him under threat of severe penalties after the husband has taken a second wife. Even in the absence of proof of cruelty, the Court would not pass a decree for restitution of conjugal rights if it appeared that it would be unjust and inequitable to compel her to return to her husband under the circumstances of the case.

The Dissolution of Muslim Marriages Act 1939 introduced changes to the extremely restricted Hanafi rules on judicial divorce at the petition of the wife by the adoption and adaptation of certain Maliki principles. The nine grounds upon which a woman is entitled to obtain a decree of dissolution of her marriage under the Act are as follows: if the husband’s whereabouts have not been known for four years; if the husband neglects to maintain the wife for two years; if the husband has been sentenced to seven or more years’ imprisonment; if the husband has failed to perform his marital obligations for three years; if the husband was impotent at the time of marriage and continues to be so; if the husband has been insane for a period of two years or suffers from a serious illness harmful to the wife; if the wife was contracted into marriage by her father or other guardian before the age of 15 and repudiates the marriage before she becomes 18 (provided the marriage has not been consummated); if the husband treats her with cruelty (including physical or other ill-treatment or unequal treatment of co-wives); and any other ground which is recognised as valid for the dissolution of marriage under Muslim law. On the other hand, apostasy by the Muslim wife, including conversion to another religion, does not in and of itself dissolve her marriage. The Act expressly extends the option of puberty to women who were contracted into marriage as minors by their fathers or paternal grandfathers, broadening the classical Hanafi rules. There has, however, been no substantial reform of the classical law relating to talaq. The Muslim husband retains the right to repudiate his wife extra-judicially, and from the available sources it appears that the most common form of divorce is the triple talaq. The stance of the pre- and post-independence courts has generally been to accept extra-judicial repudiation as "good in law, bad in theology". A major issue of concern is the determination of the time from which maintenance becomes due in cases where the talaq has not been communicated to the wife, but the validity of such repudiations has not been called into serious question. Pearl and Menski also note that the scarcity of case law reflects the fact that, in actual practice, the exercise of talaq doesn’t often involve the courts.

With regard to maintenance upon divorce, classical Hanafi law has been modified in India by the Muslim Women (Protection of Rights on Divorce) Act 1986, passed following fierce protest by sectors of the Muslim community that viewed the Supreme Court’s ruling in the Shah Bano case as a gross interference in matters of Muslim personal status. In Mohammad Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945), the Supreme Court ruled that there was no conflict between classical Hanafi law, which only specifies the obligation to maintain a wife during her ‘idda period, and the requirement to support a former wife unable to maintain herself established by state legislation. During the aftermath of the controversial judgement, the Congress government passed the Muslim Women (Protection of Rights on Divorce) Act. The Act entitles the divorced Muslim woman to "a reasonable and fair provision and maintenance to be made and paid to her within the ‘idda period by her former husband." Although the Act itself provoked differing reactions as to what its effect would be, court practice allows the Muslim divorcée to appeal to the courts if her former husband has not provided her with a reasonable sum for maintenance during her ‘idda period. As in classical law, the ‘idda period is defined as three menstrual cycles after the divorce; three lunar months if the wife is not subject to menstruation; or until delivery of the child or termination of pregnancy if the woman is enceinte. The Act also stipulates that the divorced wife is entitled to any outstanding dower, any property given her before or during marriage, and maintenance for children in her custody born before or after the finalisation of the divorce. There appears to be some modification to classical Hanafi law in the definition of a divorcée entitled to claim such support, as the Act specifies that its application pertains to marriages conducted according to Muslim law where a Muslim woman has obtained a divorce from or has been divorced by her husband in accordance with Muslim law. The Act directs that if neither the former wife or husband has the means to provide for her support, the responsibility of maintenance of the divorcée falls on her relations, that is, those relatives that would stand to inherit from her. If she has no close relations or they are unable to support her, liability falls to the State Waqf Board. Section 5 of the Act also allows for a divorced Muslim woman and her former husband to declare to the Court their willingness to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure relating to the maintenance of dependants unable to support themselves. In the first reported case relating to the Act (Ali v. Sufaira 1988 (2) KLT), the Kerala High Court rejected a narrow interpretation of the legislation as only requiring Muslim men to support their divorced wives during the ‘idda period. Rather, the Court stated that the appropriate interpretation of section 3(1)(a), "…a divorced women shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the ‘idda period by her former husband", was that maintenance during the waiting period and reasonable and fair provision were two separate issues. Thus, the Court ruled that the Muslim divorcée is entitled not only to maintenance for her waiting period, but also to a reasonable and fair provision to provide "for her future livelihood, from her former husband." This has since been confirmed by a large number of judgements.

Custody is governed by the Guardians and Wards Act 1890 applicable to all religious communities in India. The Act stipulates that courts are to be guided by the personal law to which the minor is subject. The courts are also directed to consider the age, gender and religion of the minor and the character and capacity of the proposed guardian, and the minor’s own opinion if s/he is old enough to form an intelligent preference. If the minor is very young or is female, the courts are directed to give preference to the mother. In all cases, the interests of the ward are paramount. In custody cases involving Muslims, courts tend to follow the general rule that the divorced mother is entitled to custody till 7 years for boys (classical Hanafi position) and puberty for girls.

Law/Case Reporting System: Law reports are published in Supreme Court Reports (SCR), All India Reporter (AIR), Indian Law Reports (ILR), and a large number of state law reports.

International Conventions & Reports to Treaty Governing Bodies: India acceded to the ICESCR and the ICCPR in 1979 with a number of declarations, including one to the effect that ‘the right of self-determination’ mentioned in common Article 1 is interpreted by India as applying only to peoples under foreign domination and not to sovereign independent states or a section of a people or nation.

India became a signatory to the CEDAW in 1980 and ratified it in 1993. India submitted a declaration regarding Articles 5(a) and 16(1) that reiterates India’s commitment to abiding by the provisions "in conformity with its policy of non-interference in the personal affairs of any Community without its initiative and consent." India also registered a declaration regarding Article 16(2) on minimum marriage ages and compulsory registration; although India fully supports the principle, "it is not practical in a vast country like India with its variety of customs, religions and level of literacy."

India acceded to the CRC in 1992, with a declaration regarding the progressive implementation of Article 32 thereof on child labour, particularly with reference to paragraph 2(a) on the provision of a minimum employment age.

Background and Sources: Baxi, "People’s Law in India," in Asian Indigenous Law in Interaction with Received Law, Chiba, ed. London, 1986; Diwan & Diwan, Women and Legal Protection, New Delhi, 1995; Engineer, The Shah Bano Controversy, Hyderabad, 1987; Anderson, "Islamic Law and the Colonial Encounter in British India," & Menski "The Reform of Family Law and a Uniform Civil Code for India," in Islamic Family Law, Mallat & Connors, eds. London, 1990; Mahmood, "India" in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Malik, "Once Again Shah Bano: Maintenance and the Scope for Marriage Contracts," Dhaka Law Reports Journal Section, vol. 42 (1990): 34-40; Pearl & Menski, Muslim Family Law, 3rd ed., London, 1998; Redden, "India" in Modern Legal Systems Cyclopedia, vol. 9, Buffalo, NY, 1990; Robinson, ed. The Cambridge Encyclopaedia of India, Pakistan, Bangladesh, Sri Lanka, Nepal, Bhutan and the Maldives, Cambridge, 1989.