Note: Here the Term ‘Hindu’ includes religions Hindu, Jains, Buddhists, and Sikhs
In ancient Hindu societies, caste and family played a predominant role in maintaining social order. Caste and families rendered a structural framework to society that provided for hierarchy, occupation, rights, limitations, patriarchy, etc. In order to make this framework functional and enforceable society needed rules, regulations, and laws. These laws can be classified into civil laws and criminal laws. These laws used to base on Vedas, Smritis, Dharma doctrine, Customs, etc., and usually were defined very comprehensively. These laws were not always in written form and not easily understood by common people hence they were highly prone to misinterpretation and misuse. During this period King was the ultimate authority in delivering justice who had a team of learned Brahmins who use to guide him regarding what is right and wrong. But as King and his council cannot be present everywhere, there were district courts and village councils to deal with local and simple criminal and civil cases. Hindu personal laws which were based on smritis like Manu-smriti and Yajnavalkya Smriti broadly continued until Britisher started introducing English laws during the colonial period. In between Mughal rulers also introduced their own laws, but these were mostly constraint to criminal matters.
When Mughal came to India, they brought their own legal and administrative framework. Shariat which means ‘Divine Law’ became the primary law of land governing the public and private affairs of an individual. When the first Muslim community came into existence under the leadership of Prophet Muhammad, Quran laid down a basic standard of conduct for Muslims. But only some parts of the Quran dealt with legal issues. In addition to this, during the lifetime of Prophet Muhammad, as supreme leader of the community, he resolved several legal problems as they arose. Apart from this, he also communicated his thoughts and ideas regarding what one should do if so and so situation arises. These sayings and deeds of Prophet Muhammad collectively known as ‘Hadith’ which apart from the Quran is a major source of guidance to Muslims in criminal and civil matters. Therefore, Shariat drives its powers not only from Quran but from Hadith as well.
In the 17th century, Mughal Emperor Aurangzeb issued a book called ‘Fatwa Alamgiri’ which was basically a compilation of several scattered Shariat laws. These Shariat laws were applicable to every individual in criminal cases (for Muslims in civil cases also) irrespective of religion. But in civil matters concerning other religions, it was not clearly defined which law is to follow. Therefore, in civil matters of Hindus, Jains, and Buddhists their respective personal laws were continued.
During the Mughal period, no such major effort was made to interfere in personal matters of other religions. But Britishers did not restrain themselves. Britishers felt the need to understand local customs, laws, beliefs, culture in order to make their grip over India tighter. From 14th to 18th Europe witnessed a period of enlightenment, renaissance, and reformation. During this period feudalism was abolished, church dominance reduced significantly, democracy spread, nations industrialized, science was promoted, old and harsh laws/punishments were abolished on humanitarian grounds, basic human rights were recognized, etc. Basically, western European countries had more liberal, reasoned, logical, less harsh criminal as well as personal laws by this time.
Britisher influenced Hindu personal law greatly. In 1765, the British East India company got the first Diwani rights (revenue collection rights) of Bengal, Bihar, and Orrisa. In 1772 first Governor-General of Bengal Lord Warren Hasting introduced a judicial plan under which the supreme court was set up in Calcutta. This court continued to follow Shariat law in criminal cases and respective personal laws of various religions in civil cases (as was the case during the Mughal regime). In 1781, an Amending act was introduced in British parliament which had a provision to progressively introduced English laws in criminal cases. Britisher chose to interfere in criminal laws first because criminal laws don’t have much impact on the day-to-day life of individuals, unlike civil laws. However, Shariat law still was very much prevalent.
In 1828, when Lord William Bentick (1828-1835) became the first Governor-General of India, he introduced major changes in Hindu laws and customs with the assistance of social reformist Raja Ram Mohan Roy (who founded Brahmo Samaj). One such reform came in the form of ‘Bengal Sati Regulation’ in 1829 and made Sati practice illegal in Hindu Society. In 1834, First Law Commission was established under the Charter Act,1833 under the chairmanship of Lord Macaulay which was tasked with Codification of Penal code and Criminal Procedural Code. Moreover, the first commission was asked to look into matters of civil laws of non-Hindu and non-Muslims residing in mofussil areas (areas out of Calcutta, Bombay, and Madras). But none of these became reality except the enactment of the Caste Disabilities Removal Act, 1950 which protected a Hindu person’s rights of property and inheritance in case he converts to another religion.
In 1853, Second Law Commission was established under Charter Act, 1853 whose task was to analyze the recommendation of the previous law commission. Therefore, as per its recommendations, the Civil Procedure Code (CPC) 1859, Indian Penal Code (IPC) 1860, Criminal Procedural Code (CrPC) 1861 came into existence. It implied that henceforth, all criminal matters irrespective of religion will be dealt with as per these English laws. It is strange that no communities majorly opposed these new English Criminal Laws. Probably because they were less harsh compared to earlier laws. Apart from this, Second Law Commission also suggested that no attempt should be made to codify the personal laws of Hindus and Muslims.
In 1856, Lord Canning introduced the Hindu Widow Remarriage Act which (as the name suggests) legalized remarriage of Hindu Widows which was not the case earlier. Later on, the British government introduced Female Infanticide Prevention Act 1871 under pressure from Christian Missionaries to abolish female infanticide in the Indian subcontinent. It is also true that just making laws is not enough, it takes efforts and many decades to make such social reforms a reality. For example, Sati practice was made illegal in 1829 but the latest incident of Sati happened in 1987 in Deorala village, Rajasthan.
By this time Britisher had taken several reforms towards caste and gender discrimination in Hindu communities. Some of these initiatives were pushed by Hindu social reformists like Raja Ram Mohan Roy, Joytirao Phule (who worked for Shudras and Untouchability), etc. and some were taken by top British leadership on humanitarian grounds. Unfortunately, such little towards social reforms were not taken regarding the Muslim community. However, there are some Muslim reformists like Sir Syed Ahmed who established Aligarh Muslim University to modernize Indian Muslims, or Mirza Ghulam Ahmed who founded the Ahmadiya Movement to liberalize tenets of Islam in the context of modern enlightenment but the influence of orthodox religious Muslim leaders opposed these initiatives with equal force.
After the mutiny of 1857 British government became more reluctant in interfering in personal laws.
Apart from Hindus, in 1869 and 1872, the Indian Divorce Act and the Indian Christian Marriage Act were introduced respectively which dealt with marriage and divorce in the Christian community. These Indian Christians were mostly converted from Hindu and Muslim religions as a result their personal laws were not explicitly defined. This made it difficult for the court to decide which personal law should be used to delivering verdicts. Therefore, to remove this hurdle these laws were introduced, and henceforth Christians had their own personal law which was liberal, aligned with current societal needs, and is presently in use.
In 1872, ACT III was introduced also known as the Special marriage act 1872 which regulated civil matters of people who did inter-caste or inter-religion marriage. This provided legal protection and recognized such marriages which society in practice discarded. So, people who were rebellious and did not want to follow Hindu or Muslim personal Law now had an option to do court marriage.
In 1891, an Age of Consent Act was introduced to raise the age of consent for sexual intercourse for all girls, married or unmarried, from ten to twelve years in all jurisdictions, its violation subjected to criminal prosecution as rape. This legislation was opposed by many Hindu Orthodox but also find substantial support to bring it into practice.
In 1928, the Hindu Inheritance (removal of disabilities) Act was enacted to abolish the exclusion from the inheritance of certain classes of heirs, and to remove certain doubts regarding their ability to inherit property. The Act specifies that persons who are diseased, deformed, or physically or mentally handicapped cannot be disqualified from their right to own or share joint-family property.
In 1929, Child Marriage Restraint Act was passed and fixed the marriage age of Boys and Girls as 18 years and 14 years respectively. It was a result of social reform movements. However, this act was a failure as the British government did not put much effort to implement it.
The Hindu Women’s Right to Properties Act 1937 came into existence. Under this Act, the widow of a deceased got equal rights which her husband had while he was alive in the inheritance of undivided property.
In 1936, Parsi Marriage and Divorce Act were enacted in order to regulate the Paris community’s civil matter concerning marriage and divorce. This act is presently in use.
The objective behind making you aware of all these acts and laws is that Britisher introduced English laws in criminal matter slowly and progressively and completed the process by 1860 through IPC, 1860. Henceforth, IPC was applicable to all people irrespective of their religion. However, they restricted themselves in indulging very explicitly with personal laws of Hindus and Muslims as they had fear of revolt.
Despite this willingly or unwillingly Britisher brought several social reforms in Hindu personal laws for example women were given property rights, minimum marriage age increased, Sati practice was made illegal, etc. All these initiatives had their own limitations but were adequate in order to ignite further significant social reforms. By the 1900s British started following a policy of divide and rule aggressively and through Indian Council Act, 1909 Britishers introduced a separate electorate for Muslims (which meant only a Muslim can vote for a Muslim candidate). This gap kept on widening over years and ultimately there was a demand for a separate country for Muslims.
Just to make the Muslim community happy and to pursue divide and rule policy Muslim personal laws (Shariat) were largely untouched.
Further, in 1937, Muslim Personal Law (Shariat) Application Act was enacted which is followed in matters related to marriage, divorce, and succession among Muslims. This will be a huge mistake to assume that this Shariat law is the same as Prophet Muhammad gave to the Islamic community. Over the centuries Shariat has been prone to several misinterpretations and has adopted several practices of human rights violation. Moreover, what was liberal and tolerant in the 7th century may not necessarily be right in the 21st century. As this law is presently in use Muslim civil cases go to Sharia court where a local Judge ‘Qazi’ delivers verdicts whereas in other religions they go to constitutional civil courts. Although their judgments are not binding to parties concerned they are widely accepted in the Muslim community maybe because of faith or societal pressure.
When India got independence Christian and Paris had their own personal laws that were at par with modern personal law where women are given equal rights in property and marriage. In 1955-56, the Hindu Code Bill was also passed which dealt with marriage, succession, guardianship, adoption, etc in Hindus, Sikhs, Jains, and Buddhists. This code removed several bad practices like bigamy, promoted gender equality in property inheritance, etc. There is no doubt these laws need further rectification but they were significant steps towards the betterment of society.
Unfortunately, the first government of independent India also restraint itself in rectifying Muslim personal laws. One very prominent explanation given for this is the partition which exponentially increased communal riots thus to gain the confidence of the vulnerable-feeling Muslim community government restrained itself from intervening in their Personal laws. Whatever explanation we may provide, amid all this one significant community of India was left behind which led to several prominent cases in Supreme Court like Shah Bano Case, Shayara Bano Case, Shabina Begum Case, Shabana Hashmi Case, etc.