Personal Laws became one of the quintessential factors that develops a society based on culture and religiously diverse equanimity towards the society. Personal laws refer to those codified laws of the land that have laid emphasis on the development of the cultural and religious practices which have been followed since time immemorial and have been given the approval of the law-making body in the country. The personal laws are different for each and every religion in the country due to the differences that have occurred in the past as well as the systems that have been laid down by their ancestors. The necessary factor that plays an important role for the implementation of these practices as they were tending to be introducing certain barbaric practices wherein the women were oppressed or the men were made to do the menial jobs which became a part of the degeneration aspect of the society and looking forward to preventing any other situations. The personal laws of each religion, since it is different from one another, will be based on the idea of the development of the stature which will help in the development of the boards and different aspects of the society. The religions are guided by the holy scriptures, texts and the books that have prevailed over the time with the idea of creating an identity which separates the idea of creating the environment of retaining the individuals their own identity.
Table of Contents
History
The personal laws in ancient medieval India did not have any formal recognition. In ancient times, the laws that had been established created an environment which helped in giving basic guidance to all the parties who had been participating and carrying out their functions, keeping intact a consolidated form of hegemony. The various guidelines or texts for the various religions in the country are as follows:
Hinduism
People who practice Hinduism in the past were guided by various books including Puranas, Shastras, Manu Smriti along with the customs and rituals that are ought to be taking place during the marriage or any other ceremony taking place. The Hindu laws for the first time were given proper recognition under the British regime wherein Lord Hastings in 1772 established the laws that were being implemented and emphasized the importance of having segregated practice laws which were to be putting up an idea of giving the identity of each religion. In future place, the personal laws were further codified in the Parliament when the Hindu Marriage Act, 1955 was brought into force which batted for the Hindu Personal Laws with the legal codifications which means that these laws could now be utilized to solve the disputes that exist. The act defined the importance of marriage and the process with which it could be carried out and the systematic way of understanding the various forms of marriages and divorces in the country. The law also speaks for the ambit which confines the limitation of the power of the court in the country. The religions such as Jainism, Buddhism, Sikhism and other smaller religions follow the same guidelines as to that of the Hindu Marriage Act, 1955.
Islamic Law
The Islamic laws all around the world have been given a lot of importance to put on with the purpose of serving the best for their followers. There are several schools of thought that exist in Islam such as Hanafi, Maliki, Shafi’i, Hanbali who have their own ways with dealing the issues and carrying out the process of a religious ceremony which is prescribed with their guidance. The school of thoughts interestingly hold the Holy Quran to be the centre of all guidance for carrying out the religious ceremony which will be the main reference. The Sunnis, a sect of Islam use the following texts for carrying out the process:
- Quran
- Sunna or Ahdis (Tradition of the Prophet)
- Ijma (Unanimous Decision of the Jurists)
- Qiyas (Analogical deduction)
The second sect of the Islam, the Shia’s follow the idea of developing the process of holding the Islamic traditions more conservatively but by not adapting to the prejudices of the situations rather understanding the situation and follow the customs. The Shia sect follows these books for carrying out their religious process:
The first category of Shia’s include the Usooli Shia:
- Quran
- Tradition (only those that have come from the family of the Prophet)
- Ijma (only those confirmed by Imams)
- Reasons
The Akhbari Shias are included as the second category of the Shia’s:
- Tradition (only those that have come from the family of the Prophet)
The idea behind the establishment of such rules and regulations comes in tandem with the rise in different cultures that were adopted in various parts of the world. The sole grounds on which it has been established is the fact that the subjective interpretations of the saints and the caliphates which were taken into considerations and formulated later on. The codification of Islamic laws took place in the British era which was mainly based on the ideals of what was laid down in the guides and in the due process. The main purpose of the laws that were established. The ideal situation of the Islamic practices was described by the Moroccan historian Ibn-battuta. The idea of codification of Islamic Personal laws in India did not take into the cognisance of establishing a perfected idea in the same process. The Islamic laws remain uncodified in the nation and are still guided in the form of literary work given and laid down in the past. However, there are certain countries around the world who have indulged themselves with the books of philosophy and the idea of cultural appropriation along with the same beliefs.
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Christianity
The laws of Christianity in India have been of utmost importance from the standpoint of minority representation. Christianity marriages follow the lines of the Bible that speak on the importance of carrying on the marriage forever. The Christian law of Succession and Divorce in India have undergone changes in recent years. The Indian Divorce (Amendment) Act of 2001 has brought in considerable changes in the grounds available for divorce. By now Christian law in India has emerged as a separate branch of law. It covers the entire spectrum of family law so far as it concerns Christians in India. Christian law, to a great extent, is based on English law but there are laws that originated on the strength of customary practices and precedents.
Christian family law has now distinct sub-branches like laws on marriage, divorce, restitution, judicial separation, succession, adoption, guardianship, maintenance, custody of minor children and relevance of canon law and all that regulates familial relationship.
The religions have been given a lot of importance in terms of the development of the society wherein there has been a lot of emphasis made on the development of the structure which will result in the introduction of peace and harmony in the society. The codification of the personal laws plays an important role in the development of the structure in such a way where they can solve the legal disputes in a much more secure manner and there remains a separated identity for each and every person in the society. The personal laws have been developing over the period of time wherein the people have been able to provide themselves with a certain amount of increase in the societal aspect and respect for another.
Conclusion
The personal laws have been developing over the period of time in the country and have been responsible for such a development that it has brought in for the up gradation and proper recognition of the ideals of the society. The personal laws, to a certain extent, have been able to provide for a smoother platform which will be helpful in providing such developments and will be responsible for bringing about the necessary changes in the society. Personal laws, as we know them, are the laws that vary from religion to religion but when we study them we understand that all the laws are almost similar to each other just it is the custom and practice which has been followed since a long time. Personal laws of every religion are slightly different from the others but are mostly the same but are treated with their own ways and policies. The question as to whether there should be a code which unifies the role for all is to a certain extent a difficult task as there lies an important view of taking cognisance of sentiments of other religions. The conclusive remark that needs to be noted is the fact that recognition of religion and respecting their personal laws must be done carefully and needs to be emphasised with utmost honesty and legally to codify any such.
REFERENCES
[1] Hindu Marriage Act, 1955
[2] The rise of Islam and Personal Laws, Dr. Mohammad Qazi, 1901
BY DIBYA PRAKASH LAHIRI | VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES