Codification of Personal Law: Understanding the Friction between Religious Freedom and Codification of Personal Laws in India

I. Introduction

In January 2025, Uttarakhand became the first Indian state since Independence to bring a Uniform Civil Code into effect. It was not without flaws, be it criminalising the cohabitation of couples or having an ulterior communal agenda, but by all regards it was a historic occasion because it challenged the centuries-long tradition of using religious customs as civil law.

The issue that has been pestering India’s legislature and courts ever since Independence is the balancing of religious aspirations with a holistic framework for governing the personal lives of citizens. Natural inequalities arise out of using ancient and historical frameworks as law. For example, even today India uses the Shariat as the grundnorm for the personal law of Muslims.¹ While progress has been made in Hindu civil law, injustices remain, such as different rules of intestate succession for men and women,² adoption limitations³ and the exclusion of transgender rights, among others.

This article aims to demonstrate that the current approach to personal laws is not enough to dispense justice equitably among the populace, by looking at the issue through the lens of the two largest religious groups in India, namely Hindus and Muslims. The article proceeds as follows: Section II focuses on Muslim Personal Law, Section III focuses on Hindu Personal Law, Section IV analyses how foreign countries tackle the issue, and Section V concludes the article.

II. Muslim Personal Law

Section 2 of the Muslim Personal Law (Shariat) Application Act 1937 empowers the Shariat to be the grundnorm for the governance of Muslim personal laws. In practice, a pre-independence law administers the day-to-day lives of about 20 crore people, based on a legal system that originated over a thousand years ago. It thus comes as no surprise that the provisions of the Shariat system have proved inconsistent with the current framework of Indian laws.

A. Child Marriage

Although child marriage exists in India as a largely gender-neutral problem, the codification of Hindu law has prescribed a minimum age for marriage, at least in statute, whereas no such protection exists in Muslim Personal Law. Earlier laws such as the Sarda Act⁴ treated child marriage as a minor offence, readily remedied by paying a fine rather than prohibiting it outright. In effect, it was utterly toothless. It was not until the Prohibition of Child Marriage Act 2006 (PCMA 2006) that statutory powers were granted to the executive and the courts to effectively prohibit child marriages across religious and community lines.⁵ However, the Act failed to specify whether it had the authority to supersede personal laws, even though section 1(2) states that it extends to the whole of India. The question that arises is whether citizenship is above religion.

Although several High Courts have opined that the Act applies to all citizens irrespective of religion, most notably the Kerala High Court in Moidutty Musliyar v. Sub-Inspector, Vadakkencherry Police Station (2024),⁶ it is to be noted that the Supreme Court and the Legislature have deliberately been deferring the issue to one another, perhaps so as not to bear the backlash of the Act being declared supreme over personal laws.⁷ Thus, we arrive at a legal conundrum: whereas the judgments of the High Courts hold authority across the whole of India, that authority is questioned when the Supreme Court and Parliament themselves avoid remedying the situation conclusively.

Another issue is the declaration of child marriages as voidable at the option of the minor⁸ rather than void ab initio under the PCMA 2006. Essentially, if the minor lacks the means to avail legal recourse, the marriage can continue as is, defeating the purpose of criminalising child marriage entirely. Since section 3 of the PCMA 2006 fails to explicitly nullify child marriage, while section 4 of the Protection of Children from Sexual Offences (POCSO) Act 2012 criminalises penetrative sexual assault on a minor, a contradiction arises: the marriage is legal under civil law, but the relation is illegal under criminal law. Karnataka, on the other hand, has been successful in making child marriages void ab initio by inserting sub-section (1A) into section 3 of the Act,⁹ proving that it is not an insurmountable problem to solve.

B. Intestate Succession by Women

According to Islamic law, a man’s share is twice that of a woman’s.¹⁰ The concept of Nafaqah,¹¹ which refers to a man’s duty to care for his wife and female relatives, is often cited as justification for this provision. While there is no doubt that such rules were revolutionary during their era, it must be recognised that times have changed since, and it is the need of the hour to reform them.

Similar to the case of child marriage, the response of the judiciary as well as of the legislature has been deficient in remedying the situation. The Kerala High Court in 2015 dismissed a PIL¹² that sought to reform the inequality in inheritance law, stating that it was the legislature’s job to do so, thereby maintaining its position of non-interference in the personal laws of minorities.¹³ Although the case has since been appealed, past trends indicate that the Supreme Court’s judgment may mirror the High Court’s reasoning.

III. Hindu Personal Law

Hindu Personal Law, unlike Muslim Personal Law, has undergone extensive codification since Independence. As a result, it is fair to say that Hindu laws do not generally suffer from a lack of substantive safeguards, but rather from gaps in the substantive legislation and technical inconsistencies, which can be resolved by a Uniform Civil Code. Furthermore, Hindu law has no exact parallel to section 2 of the Shariat Act. Thus, in practice, it has been easier to pass socially positive, welfare-based amendments to the already codified statutes. In contrast, this is not possible in Muslim personal law, because there is no codified law to amend to begin with.

A. Adoption Restrictions

Section 11(i) of the Hindu Adoptions and Maintenance Act 1956 (HAMA 1956) restricts the adoption of a son by a Hindu couple if they already have a living son, grandson or great-grandson. The issue arises out of the concept of Pinda Daan¹⁴ in Hindu philosophy, under which, if a man already has a son, his path to the afterlife is secured and adopting a second son serves no special purpose. Thus, in Hindu philosophy, adoption is treated as a strict necessity only for an issueless person, to ensure that a qualified male descendant is available to help the dead attain moksha. No such necessity arises if a son already exists, and adoption is then considered an unnecessary disruption of the natural order.

Section 11(ii) of HAMA 1956, on the other hand, stipulates that the adoption of a daughter by a Hindu couple is restricted only if the adoptive parents have a living daughter or a son’s daughter. The reason for the distinction between the restrictions for the two sexes is ambiguous, but it could be attributed to the concept of patrilineal lineage in Hindu family and inheritance law, even though ancient Hindu law did not explicitly recognise the adoption of a daughter,¹⁵ since it served no purpose or duty.

Therefore, the issue is that adoption rights in the Act are legislated only through the lens of the patriarch’s desire to preserve and continue his lineage, and are incognizant of a person who merely wishes to expand their family. Furthermore, to Parliament’s credit, parallel secular legislation such as the Juvenile Justice (Care and Protection of Children) Act 2015 (JJ Act 2015) does exist, which has eliminated all the issues stated above. Nevertheless, the current approach appears to be a compromise rather than a plan by the government to actually eliminate the discriminatory provisions of HAMA 1956 or, better yet, repeal the Act entirely. This is because, if HAMA 1956 were reformed to modern standards, it would mimic the adoption provisions of the JJ Act 2015, which would in theory render the former redundant.

B. Intestate Succession from a Woman

Section 15(1)(b) of the Hindu Succession Act 1956 (HSA 1956) stipulates that the property of a woman dying intestate shall be inherited by the heirs of the husband once the list of inheritors in clause (a) of the section is exhausted. The clause therefore places the heirs of the husband above the parents and siblings of the woman.¹⁶ Furthermore, section 15(2) of the Act takes the nature of acquisition of property as a deciding factor for succession. If a female Hindu inherited property from her father or mother, the rules of succession skip over everyone except any living children of the woman, failing which the property is inherited by the heirs of the father under section 15(2)(a). Similarly, the property is inherited by the heirs of the husband if it was inherited by the female Hindu from her husband, under section 15(2)(b).

Section 15 stands in strong contrast to the provisions for intestate succession from a Hindu male, which are based on a comprehensive class of heirs.¹⁷ There is no equivalent to the two discriminatory sub-sections in the intestate succession from a Hindu male. Despite the recommendations of the 18th Law Commission to amend section 15,¹⁸ the government has taken no initiative. Meanwhile, the judiciary has more or less declined to strike down or amend section 15, as seen in Omprakash v. Radhacharan (2009), where the Supreme Court strictly upheld section 15(1) and rejected the role of sentimentality in law.¹⁹

IV. Civil Laws in Other Countries

A. France

France has adopted a civil law legal system to administer its laws. That is to say, the law is shaped predominantly by the legislature, and judicial decisions do not formally contribute to the making of law, in contrast to a common law system such as that of India and the UK.

The central civil law legislation in the country is the Napoleonic Code of 1804, amended and modernised over the two centuries since. The Code is momentous in size, spanning 2534 articles across rules for marriage, divorce, succession and inheritance, property, citizenship and several other topics of personal and civil law. The French civil law framework does not differentiate on the basis of religion or custom, as is prevalent in the Indian system. Although the French framework may appear overwhelmingly uniform, exceptions exist, such as the special status of Alsace-Moselle,²⁰ where certain historic religious law arrangements still prevail.

B. United Kingdom

Scotland and, to some extent, Northern Ireland aside, England and Wales are massively reliant on common law. The aversion to codified law is so strong that the UK lacks a codified constitution. Yet even in such circumstances, the country has codified personal laws because they are of an extremely sensitive and complex nature.

The UK, like France, does not differentiate on the basis of religion, but governs the personal lives of its citizens through several Acts of Parliament such as the Marriage Act 1949, the Children Act 1989 and the Divorce, Dissolution and Separation Act 2020, among others. Furthermore, laws in the UK differ from region to region, as its sub-divisions enjoy a considerable amount of autonomy.

C. Turkey

When the Republic of Turkey was founded in 1923, its leader Mustafa Kemal Atatürk completely abolished Sharia courts and religious personal laws. Moreover, the Swiss Civil Code was copied almost in its entirety and translated into Turkish to form the new Turkish Civil Code in 1926. It was not until 2002 that Turkey created a new civil code, although it too borrowed some sections from Swiss civil law, which had by then evolved over the previous 80 years.

Turkey stands as an example of a country which rose above its religious dogma and aimed to secularise its legal framework. Its success is a stark reminder that the failure to codify Indian personal laws is due to the current nature of Indian politics, which has reached its hostile status through decades of communal politics by our leaders, and not because of some incompatibility between codified laws and religious beliefs.

V. Conclusion

It is sufficient to conclude that India is in dire need of codification of its personal laws, to ensure that justice can be dispensed equally and equitably across religious lines. The current legal framework is outdated, arbitrary and incompatible with the 21st century. Furthermore, codification should be based on the principles of justice and fairness rather than being a mere official restatement of pre-existing religious customs and rules, an issue which has plagued the codified Hindu personal laws.

This article has argued that religious freedom cannot be an excuse for allowing discriminatory and harmful laws to persist, the ruinous effects of which are faced by the already historically marginalised, as religious laws often mirror the social realities of their era.

The question of a UCC raises a separate and interesting question, but as this article has demonstrated, the issue can simply be resolved through the codification of current laws and the elimination of problematic provisions, which is also reflected in the opinion of the 21st Law Commission in its consultation paper on Reform of Family Law.²¹ The scope of this article is not to impose an egalitarian framework, but rather to emancipate the genuinely burdened, the plight of whom is easily crushed under the weight of our privilege.

Footnote(S):

¹ The Muslim Personal Law (Shariat) Application Act 1937, s 2

² the Hindu Succession Act 1956, ss 8,15

³ Hindu Adoptions and Maintenance Act 1956, s 11(i-ii)

⁴ Child Marriage Restraint Act, 1929.

⁵ Prohibition of Child Marriage Act 2006 (PCMA 2006), ss 13,16.

⁶ Moidutty Musliyar v Sub-Inspector, Vadakkencherry Police Station 2024:KER:56284, [21].

⁷ Society for Enlightenment and Voluntary Action v Union of India 2024 INSC 790, [212]–[214].

⁸ PCMA 2006 (n 5), s 3.

⁹ Prohibition of Child Marriage (Karnataka Amendment) Act, 2016. (1A) “Notwithstanding anything contained in sub-section (1) every child marriage solemnized on or after the date of coming into force of the Prohibition of Child Marriage (Karnataka Amendment) Act, 2016 shall be void ab initio”.

¹⁰ Qur’an, Surah An-Nisa 4:11.

¹¹ Ibid 4:34. The statutory text uses the word ‘Anfaqu’ meaning “they spend”, meanwhile Nafaqah is a jurisprudential invention to name the concept of duty owed to wives and female relatives by a man.

¹² Khuran Sunnath Society v Union of India WP(C) No 31299 of 2008 (Ker HC 2 July 2015).

¹³ Ibid, [10]

¹⁴ Manusmriti, 3.215–223.

¹⁵ Sandhya alias Supriya Kulkarni v Union of India, Writ Petition No 1980 of 1994 (Bom HC 9 September 1997) [4]

¹⁶ Hindu Succession Act 1956, s 15(1)(c)-(e)

¹⁷ Ibid s 8.

¹⁸ Law Commission of India, Proposal to Amend Section 15 of the Hindu Succession Act, 1956 in Case a Female Dies Intestate Leaving Her Self-Acquired Property with No Heirs (Law Com No 207, 2008).

¹⁹ Omprakash v Radhacharan CA No 3241 of 2009 (SC 5 May 2009), [10].

²⁰ Loi du 1er juin 1924.

²¹ Law Commission of India, Consultation Paper on Reform of Family Law (2018) [1.15].

Table of Cases

1. Khuran Sunnath Society v. Union of India (2015), High Court of Kerala
2. Moidutty Musliyar v. Sub-Inspector, Vadakkencherry Police Station (2024), High Court of Kerala
3. Omprakash v. Radhacharan (2009), Supreme Court of India
4. Sandhya alias Supriya Kulkarni v. Union of India (1997), Bombay High Court
5. Society for Enlightenment and Voluntary Action v. Union of India (2024), Supreme Court of India

Legislations

India

• • Child Marriage Restraint Act, 1929 (commonly known as the Sarda Act)
  • Hindu Adoptions and Maintenance Act, 1956 (HAMA 1956)
  • Hindu Succession Act, 1956 (HSA 1956)
  • Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act 2015)
  • Muslim Personal Law (Shariat) Application Act, 1937
  • Protection of Children from Sexual Offences (POCSO) Act, 2012
  • Prohibition of Child Marriage Act, 2006 (PCMA 2006)
  • Prohibition of Child Marriage (Karnataka Amendment) Act, 2016

France

• • French Civil Code / Napoleonic Code of 1804
  • Loi du 1er juin 1924 (Act maintaining local civil status in Alsace-Moselle)

Switzerland

• • Swiss Civil Code 1907 (cited as the foundational source model for Turkish civil reforms)

Turkey

• • Turkish Civil Code of 1926
  • Turkish Civil Code of 2002

United Kingdom

• • Children Act 1989
  • Divorce, Dissolution and Separation Act 2020
  • Marriage Act 1949

Secondary Sources

• 18th Law Commission of India, Report No. 207
• 21st Law Commission of India, Consultation Paper on Reform of Family Law