CHAPTER of a son rather than for a second



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State of Bombay vs Narasuoppa Mali1 was first such case was in which modifications
in Hindu law were challenged on the grounds that they violate Articles 14, 15
and 25 of the Constitution of India. It was argued that marriage among Hindus
is a part of religion and having a son is regarded as spiritual benefit. Hence,
polygamy was justified but Gajendra Gadkar J rejected these arguments. The Court
opined in favour of adoption of a son rather than for a second marriage. Chagla
C.J. also upheld the validity of Bombay Act relying on Davis vs. 2
case. The court kept itself reserved and left the issue of Uniform Civil Code
to be decided by the Legislature.


Like Bombay Act, the
Madras Hindu (Bigamy and Divorce) Act of 1949 was also challanged on the same
grounds. The Court observed that while religious beliefs were protected by the
Constitution, the religious practices can be regulated by state. In the case of
Ram Prasad vs. State of U.P.3
also the Allahabad High Court upheld the statutory provisions prohibiting bigamy
among Hindus.


Much controversial Shah Bano case4
was filed under section 125 CrPC in 1978 at Indore. The case went up to the
Supreme Court and Chief Justice Chandrachud delivered the judgement on behalf
of five judges Bench. The learned judge made certain observations for Muslim
Personal Law and Uniform Civil Code. The court strongly criticized Government
of India for its complete inability in enacting Uniform Civil Code, to which
the All India Muslim Personal Law Board intervened and argued that interpretation
of Shariah and Quran by the Court is unjustifiable. The judgments provided
ammunition to Muslim bashers and communalized the atmosphere. Thus judicial
willpower is needed on such matters. Another case for discussion is related to
Christian Personal Law. Justice O. Chinappa Reddy delivered the judgment without
considering Christian Personal Law or the wishes of Christian community.


In Shah Bano case apart from observations
relating to the maintenance of Muslim divorcee the Supreme Court held that:

is no conflict between provisions of Section 125 of Criminal Procedure Code and
Muslim Personal Law in the matter of maintenance of divorcee; however, in case
of any conflict section 125 shall prevail over the Personal Law.

a Muslim divorcee has a right to obtain maintenance till her remarriage or death
under section 125 of the code and if she is unable to maintain herself, her
ex-husband has a duty to provide for her maintenance till her remarriage or

if a husband, even he was a Muslim, marries another women the wife has a right
to refuse to live with him and yet obtain maintenance from him.

the Supreme Court has strongly criticized the Government of India for its
reluctance to enact Uniform Civil Code in view of the sensitivity of the Muslim

In Sarla Mudgal case5
the personal laws of Hindus, Muslims and Uniform Civil Code were affected and
the judgment favored the enactment of Uniform Civil Code.

Once again a very
controversial judgment was handed down by the Supreme Court of India, which
once again raised the question of the enactment of a Uniform Civil Code.


Kuldeep Singh J.

concluded from various statutes and stated that, “It is thus seen that the
law relating to judicial separation, divorce and nullity of marriage is, far
from being uniform. Surely the time has now come for a complete reform of the
law of marriage and makes a uniform law applicable to all people irrespective
of religion and caste. We suggest that the time has come for the intervention
of the Legislature in these matters to provide for a Uniform Code of marriage
and Divorce and to provide by law for a way out of the unhappy situations in
which couples like the present have found themselves. We direct that a copy of
this order may be forwarded to the Ministry of Law and Justice for such actions
as they may deem fit to take.”



Ahmedabad Women Action Group Case6, after the Sarla Mudgal case7,
another case that caught up attention, It was filed through Public Interest
Litigation (PIL) and raised some issues about the Muslim Personal Law. Issues were
related to polygamy, unilateral Talaq, Muslim Women (Protection of Rights on
Divorce) Act 1986 and inheritance laws. This PIL was filed by Ahmedabad Action
Group and disposed off by Supreme Court along with two other petitions filed by
Lok Sevak Sang and young Women Christian Association. The court did not dispose
off any of the case and left them for legislature to decide. In this case, the
court tried to restore original constitutional position of Uniform Civil Code
that is only as a direction and nothing more than that.

The court dismissed the petition saying that,
these are all matters for Legislature and he court cannot legislate in these matters.


The Supreme Court in Krishna Singh Vs. Mathura8
opined that in process of applying the personal laws of the parties, the judges
of the high court ‘could not introduce their own concept of modernity’. In view
of the Supreme Court, the Constitution maintained the position of Personal laws
‘status quo’. In this case the Supreme Court, while considering the question
whether a ‘sudra’ could be ordaned to a religious order and become a ‘sanyasi’
or ‘yati^ and therefore installed as ‘MahanC of the Garwa Ghat Math according
to the tenets of the Sant Mat Sampradaya, observed:


Part III of the Constitution does not touch upon the personal laws of the
parties. In applying the personal laws of the parties He (Judge) could not introduce
his own concepts of modern times but should have enforced the law as derived
from the recognized and authoritative sources of Hindu law”

Thus, Part III of the
Constitution does not interfere with the personal laws of the parties and in
applying the Personal laws; a judge may not pioneer his own concepts of modern
times but implement the law as derived from recognized and trustworthy respected
sources of that law.

In Anil Kumar Mahsi9
case the court, in an illustrative way explained that the total uniformity
between the spouses might not be credible and refused to declare Section 10 of
the Indian Divorce Act as violative of the Article 14 of the Constitution of
India. The Court in this case did not look into the Constitutionality of the
Muslim Women (Protection of Rights on Divorce) Act, 1986 because that issue was
already incomplete before the Constitution Bench.

Thus, the Court did
not dispose off any of the issue involved in the case on merits. Instead
declared them as involving state policies, which fell within the ambit of the
Legislature. Justice Ahmadi in this case mentioned that the court should state the
‘self restraint’ of the judiciary particularly in a matter that are related to
extremely sensitive issue in India. The judgment of the Apex Court is a relaxed
decision and it should be appreciated because it shows the commitment of the
judiciary to the doctrine of “Separation of Power” which is the
backbone of any modern democratic state.


In S.R. Bommai v. Union of India10,
as per Justice Jeevan Reddy, it was held that religion is the matter of
individual faith and cannot be mixed with secular activities. Secular
activities can be regulated by the State by enacting a law. In India, there
exist a concept of “positive secularism” as distinguished from doctrine
of secularism accepted by America and some European states i.e. there is a wall
of separation between religion and State. In India, positive secularism
separates spiritualism with individual faith. The reason is that America and
the European countries went through the stages of renaissance, reformation and
enlightenment and thus they can enact a law stating that State shall not
interfere with religion. On the contrary, India has not gone through these
stages and thus the responsibility lies on the State to interfere in the
matters of religion so as to remove the impediments in the governance of the


In the case of Denial Latifi Vs. Union Of India11
the Court held that provision regarding maintenance should be fair and
reasonable and the constitutional validity of the Muslim Women’s Protection
Act, 1986 was also upheld in this case.

1 AIR 1952 Bom 84.


2 133
U.S. 333 (10 S.Ct. 299, 33 L.Ed. 637).


3 AIR 1957 All 411


4 Ahmed
Khan v. Shah Bano Begum (1985 SCR (3) 844.


5 1995
AIR 1531


Women Action Group Vs. Union of India

(1997) 3SCC 573

7 1995 AIR 1531

3 SCC 689)

9 1994 SCC (5) 704


(1994)3 SCC 1

11 (1985) 2 SCC 556