NCERT Textbook: Family Justice System | NCERT Books & Solutions for Humanities - Humanities/Arts PDF Download

 Page 1


196
I. Introduction
Objectives:
1. To gain knowledge about laws pertaining to family / personal matters
2. To gain knowledge about the evolution of family laws in India
3. To understand the relevance of family laws
4. To understand their application
5. To apply the laws appropriately (case-studies)
6. To analyze the significance of these laws in the context of modern society
7. To speak and write fluently and coherently while expressing a point of view and 
justifying
Family law or personal law consists of family or personal matters like marriage, 
dowry, dissolution of marriage, guardianship, adoption, maintenance, gifts, wills, 
inheritance, succession, and so on. In India, religion and personal law are largely 
interlinked. So Hindus, Sikhs, Jains and Buddhists follow Hindu family law (Sikhs 
have their own marriage law but are covered under Hindu law for other family 
matters); Muslims, Christians, and Parsees have their own laws; and other 
traditional communities, like the tribal groups, follow their own customary 
practices or customary laws. The Hindu law, the Sikh marriage law, the Parsee law, 
and the Christian law are codified or passed by the Indian Parliament as acts or 
laws. The Muslim law is uncodified and is based on the Sharia, which is the moral 
and religious law primarily grounded on the principles of the Islamic religious text 
the holy Quran and examples laid down in the Sunnah by the Islamic prophet 
Muhammad. 
A. Nature of Family Law in India
UNIT 05: 
Family Justice System
Page 2


196
I. Introduction
Objectives:
1. To gain knowledge about laws pertaining to family / personal matters
2. To gain knowledge about the evolution of family laws in India
3. To understand the relevance of family laws
4. To understand their application
5. To apply the laws appropriately (case-studies)
6. To analyze the significance of these laws in the context of modern society
7. To speak and write fluently and coherently while expressing a point of view and 
justifying
Family law or personal law consists of family or personal matters like marriage, 
dowry, dissolution of marriage, guardianship, adoption, maintenance, gifts, wills, 
inheritance, succession, and so on. In India, religion and personal law are largely 
interlinked. So Hindus, Sikhs, Jains and Buddhists follow Hindu family law (Sikhs 
have their own marriage law but are covered under Hindu law for other family 
matters); Muslims, Christians, and Parsees have their own laws; and other 
traditional communities, like the tribal groups, follow their own customary 
practices or customary laws. The Hindu law, the Sikh marriage law, the Parsee law, 
and the Christian law are codified or passed by the Indian Parliament as acts or 
laws. The Muslim law is uncodified and is based on the Sharia, which is the moral 
and religious law primarily grounded on the principles of the Islamic religious text 
the holy Quran and examples laid down in the Sunnah by the Islamic prophet 
Muhammad. 
A. Nature of Family Law in India
UNIT 05: 
Family Justice System
A Bunt joint family in the early 1900s
The customary laws of the traditional communities are based 
on their customs and practices and are uncodified.
To this extent, India follows a peculiar conception of a secular state; although these 
varied communities are one nation, they co-exist as independent and distinct 
communities in the matters of family laws. As described herein, unlike other laws in 
force in India, such as criminal and civil laws, family laws are not uniform. However, 
the Constitution of India, in Article 44, provides for a goal or aspiration for 
achieving a uniform civil code in family and personal matters. This provision is 
merely a directive or aspirational and is not enforceable by a court of law. 
As has been described in the previous chapter, the Hindu legal system was based on 
the smriti literature and the Dharmashastra as well other later digests. Since the 
th
medieval period, starting from the 8 century, two major schools of personal laws 
have been followed. First, the eleventh century digest Mitakshara by 
Vijnaneshvara, an authority on issues of family law, was widely followed both in 
south and north India. It had further sub-schools in four areas, Dravida (south 
India), Mithila, Bombay, and Benaras. Second, in the region of Bengal, personal law 
of Dayabhaga was used. Dayabhaga was the personal law, a part of the thirteenth or 
fourteenth-century digest Dharmaratna written by Jimutavahana. 
The Muslims largely followed the Sunni (sectarian sect) and the Hanafite type of 
laws. Hanafite type of laws were based on the founder and Persian scholar Abu 
B. Medieval Period
197
Page 3


196
I. Introduction
Objectives:
1. To gain knowledge about laws pertaining to family / personal matters
2. To gain knowledge about the evolution of family laws in India
3. To understand the relevance of family laws
4. To understand their application
5. To apply the laws appropriately (case-studies)
6. To analyze the significance of these laws in the context of modern society
7. To speak and write fluently and coherently while expressing a point of view and 
justifying
Family law or personal law consists of family or personal matters like marriage, 
dowry, dissolution of marriage, guardianship, adoption, maintenance, gifts, wills, 
inheritance, succession, and so on. In India, religion and personal law are largely 
interlinked. So Hindus, Sikhs, Jains and Buddhists follow Hindu family law (Sikhs 
have their own marriage law but are covered under Hindu law for other family 
matters); Muslims, Christians, and Parsees have their own laws; and other 
traditional communities, like the tribal groups, follow their own customary 
practices or customary laws. The Hindu law, the Sikh marriage law, the Parsee law, 
and the Christian law are codified or passed by the Indian Parliament as acts or 
laws. The Muslim law is uncodified and is based on the Sharia, which is the moral 
and religious law primarily grounded on the principles of the Islamic religious text 
the holy Quran and examples laid down in the Sunnah by the Islamic prophet 
Muhammad. 
A. Nature of Family Law in India
UNIT 05: 
Family Justice System
A Bunt joint family in the early 1900s
The customary laws of the traditional communities are based 
on their customs and practices and are uncodified.
To this extent, India follows a peculiar conception of a secular state; although these 
varied communities are one nation, they co-exist as independent and distinct 
communities in the matters of family laws. As described herein, unlike other laws in 
force in India, such as criminal and civil laws, family laws are not uniform. However, 
the Constitution of India, in Article 44, provides for a goal or aspiration for 
achieving a uniform civil code in family and personal matters. This provision is 
merely a directive or aspirational and is not enforceable by a court of law. 
As has been described in the previous chapter, the Hindu legal system was based on 
the smriti literature and the Dharmashastra as well other later digests. Since the 
th
medieval period, starting from the 8 century, two major schools of personal laws 
have been followed. First, the eleventh century digest Mitakshara by 
Vijnaneshvara, an authority on issues of family law, was widely followed both in 
south and north India. It had further sub-schools in four areas, Dravida (south 
India), Mithila, Bombay, and Benaras. Second, in the region of Bengal, personal law 
of Dayabhaga was used. Dayabhaga was the personal law, a part of the thirteenth or 
fourteenth-century digest Dharmaratna written by Jimutavahana. 
The Muslims largely followed the Sunni (sectarian sect) and the Hanafite type of 
laws. Hanafite type of laws were based on the founder and Persian scholar Abu 
B. Medieval Period
197 198
Hanifa. For both Hindu and Muslim legal systems, there were other variances based 
on sectarian divisions (like the Sunni and Shi'a among Muslims), regional specifics, 
and the local customs and practices. The Hindu law and the Muslim Shari'at covered 
all aspects of life and did not differentiate much between moral, custom, and law. 
Even during the Mughal Empire in the Indian subcontinent, between the 16th and 
18th centuries, Hindus and Muslims were ruled largely by their own sets of local 
customs and personal laws. 
The British came to the Indian subcontinent in the early 
th
17 century. In the initial years, they were not concerned 
with the various regional and local laws practiced in the 
subcontinent. In 1772, when the East India Company 
established themselves as the civil administrators, 
Warren Hastings, the first Governor-General of Bengal, 
introduced the uniform criminal law with the idea of 
equality before the law for both Hindus and Muslims. 
However, in matters of personal law, he established that 
the laws of the holy Quran would be applicable to the 
Muslims, and the Shastras for the Hindus. As the British 
had no knowledge of the personal laws, they appointed 
the Hindu pandits and the Muslim jurists as consultants in 
their courts, and this led to the administration and 
development of the Anglo-Hindu and the Anglo-Islamic 
personal laws. After 1864, the system of 'court Hindu 
pandits' and Muslim jurists was abolished due to dissimilar interpretations and 
some suspicions of corruption; and the court judges interpreted the personal laws 
themselves. For the Bengal region, they largely used the Dayabhaga digest, while 
the Mitakshara digest with its four sub-categories was used for the other parts of 
India, along with other customs and usages. For the Anglo-Islamic personal law, the 
British judges used the sectarian Sunni and Shi'a, interpretations of the Shari'at as 
well as other sectarian traditions along with some local customs and usages. During 
the British rule, both the Anglo-Hindu personal law and the Anglo-Islamic personal 
law continued to develop through reforms, law commissions, and mainly through 
case laws.
C. British-India
Warren Hastings himself 
compiled a code known as the 
Vivadarnava Setu which 
consisted of assorted texts on 
various aspects of Hindu law. He 
seriously intended to make it a 
statutory source of law for 
Hindus until before its defects 
were discovered.
Page 4


196
I. Introduction
Objectives:
1. To gain knowledge about laws pertaining to family / personal matters
2. To gain knowledge about the evolution of family laws in India
3. To understand the relevance of family laws
4. To understand their application
5. To apply the laws appropriately (case-studies)
6. To analyze the significance of these laws in the context of modern society
7. To speak and write fluently and coherently while expressing a point of view and 
justifying
Family law or personal law consists of family or personal matters like marriage, 
dowry, dissolution of marriage, guardianship, adoption, maintenance, gifts, wills, 
inheritance, succession, and so on. In India, religion and personal law are largely 
interlinked. So Hindus, Sikhs, Jains and Buddhists follow Hindu family law (Sikhs 
have their own marriage law but are covered under Hindu law for other family 
matters); Muslims, Christians, and Parsees have their own laws; and other 
traditional communities, like the tribal groups, follow their own customary 
practices or customary laws. The Hindu law, the Sikh marriage law, the Parsee law, 
and the Christian law are codified or passed by the Indian Parliament as acts or 
laws. The Muslim law is uncodified and is based on the Sharia, which is the moral 
and religious law primarily grounded on the principles of the Islamic religious text 
the holy Quran and examples laid down in the Sunnah by the Islamic prophet 
Muhammad. 
A. Nature of Family Law in India
UNIT 05: 
Family Justice System
A Bunt joint family in the early 1900s
The customary laws of the traditional communities are based 
on their customs and practices and are uncodified.
To this extent, India follows a peculiar conception of a secular state; although these 
varied communities are one nation, they co-exist as independent and distinct 
communities in the matters of family laws. As described herein, unlike other laws in 
force in India, such as criminal and civil laws, family laws are not uniform. However, 
the Constitution of India, in Article 44, provides for a goal or aspiration for 
achieving a uniform civil code in family and personal matters. This provision is 
merely a directive or aspirational and is not enforceable by a court of law. 
As has been described in the previous chapter, the Hindu legal system was based on 
the smriti literature and the Dharmashastra as well other later digests. Since the 
th
medieval period, starting from the 8 century, two major schools of personal laws 
have been followed. First, the eleventh century digest Mitakshara by 
Vijnaneshvara, an authority on issues of family law, was widely followed both in 
south and north India. It had further sub-schools in four areas, Dravida (south 
India), Mithila, Bombay, and Benaras. Second, in the region of Bengal, personal law 
of Dayabhaga was used. Dayabhaga was the personal law, a part of the thirteenth or 
fourteenth-century digest Dharmaratna written by Jimutavahana. 
The Muslims largely followed the Sunni (sectarian sect) and the Hanafite type of 
laws. Hanafite type of laws were based on the founder and Persian scholar Abu 
B. Medieval Period
197 198
Hanifa. For both Hindu and Muslim legal systems, there were other variances based 
on sectarian divisions (like the Sunni and Shi'a among Muslims), regional specifics, 
and the local customs and practices. The Hindu law and the Muslim Shari'at covered 
all aspects of life and did not differentiate much between moral, custom, and law. 
Even during the Mughal Empire in the Indian subcontinent, between the 16th and 
18th centuries, Hindus and Muslims were ruled largely by their own sets of local 
customs and personal laws. 
The British came to the Indian subcontinent in the early 
th
17 century. In the initial years, they were not concerned 
with the various regional and local laws practiced in the 
subcontinent. In 1772, when the East India Company 
established themselves as the civil administrators, 
Warren Hastings, the first Governor-General of Bengal, 
introduced the uniform criminal law with the idea of 
equality before the law for both Hindus and Muslims. 
However, in matters of personal law, he established that 
the laws of the holy Quran would be applicable to the 
Muslims, and the Shastras for the Hindus. As the British 
had no knowledge of the personal laws, they appointed 
the Hindu pandits and the Muslim jurists as consultants in 
their courts, and this led to the administration and 
development of the Anglo-Hindu and the Anglo-Islamic 
personal laws. After 1864, the system of 'court Hindu 
pandits' and Muslim jurists was abolished due to dissimilar interpretations and 
some suspicions of corruption; and the court judges interpreted the personal laws 
themselves. For the Bengal region, they largely used the Dayabhaga digest, while 
the Mitakshara digest with its four sub-categories was used for the other parts of 
India, along with other customs and usages. For the Anglo-Islamic personal law, the 
British judges used the sectarian Sunni and Shi'a, interpretations of the Shari'at as 
well as other sectarian traditions along with some local customs and usages. During 
the British rule, both the Anglo-Hindu personal law and the Anglo-Islamic personal 
law continued to develop through reforms, law commissions, and mainly through 
case laws.
C. British-India
Warren Hastings himself 
compiled a code known as the 
Vivadarnava Setu which 
consisted of assorted texts on 
various aspects of Hindu law. He 
seriously intended to make it a 
statutory source of law for 
Hindus until before its defects 
were discovered.
199
D. Post-Independence
E. Human Rights and Gender Perspectives
F. Case story 01. Equity in Education : 
After India's independence in 1947, efforts were made to develop a uniform civil 
code for dealing with matters of personal law. It started with the uniform Hindu 
Code Bill, which attempted to combine the varied regional customs and usages. In 
1951, it was shelved due to much opposition. Since the Indian Constitution had 
adopted the word 'secular' as an important feature of the Indian republic, the 
uniform family law was seen as biased in favor of the Hindu majority community 
and unsecular. In a similar manner, in 1955-56, the parliament adopted and codified 
the four different major legislations governing the family and personal law matters 
of the Hindu community: Hindu Marriage Act (1955), Hindu Succession Act (1956), 
Hindu Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance 
Act (1956).  Accordingly, Christians, Parsees, and Sikhs have their own codified 
Marriage Acts; Muslims are governed by the Sharia; and the traditional communities 
continue to practice their uncodified customary laws. As mentioned earlier, 
although the Indian Constitution, in Article 44, provides for a goal or aspiration for 
achieving a uniform civil code, this has never been taken up seriously for the fear of 
widespread communal violence. 
There are various provisions in the Constitution of India that are specified for 
gender equality. The preamble (or the introduction) to the Indian Constitution 
resolves to secure justice, liberty, equality, and dignity of all. Furthermore, Article 
14 provides equal treatment before the law for every person; and Article 15 
prohibits discriminations based on religion, race, caste, sex or place of birth. Thus, 
the idea of equality is strongly emphasized in the Constitution. However, 
exceptions exist too, for example,Articles 25 and 26 of the Constitution provide for 
freedom of religion that includes freedom of conscience and free profession, 
practice and propagation of religion as well as freedom to manage religious affairs. 
The religious communities have used these provisions to argue that modifying their 
family laws would be interfering with their freedom of religion.
My village in Shiyunzu has a high  illiteracy level. Only a small  number get 
educated and the most affected is the girl child, The community previously didn't 
see the importance of educating the girl child, but this has changed since a 
Page 5


196
I. Introduction
Objectives:
1. To gain knowledge about laws pertaining to family / personal matters
2. To gain knowledge about the evolution of family laws in India
3. To understand the relevance of family laws
4. To understand their application
5. To apply the laws appropriately (case-studies)
6. To analyze the significance of these laws in the context of modern society
7. To speak and write fluently and coherently while expressing a point of view and 
justifying
Family law or personal law consists of family or personal matters like marriage, 
dowry, dissolution of marriage, guardianship, adoption, maintenance, gifts, wills, 
inheritance, succession, and so on. In India, religion and personal law are largely 
interlinked. So Hindus, Sikhs, Jains and Buddhists follow Hindu family law (Sikhs 
have their own marriage law but are covered under Hindu law for other family 
matters); Muslims, Christians, and Parsees have their own laws; and other 
traditional communities, like the tribal groups, follow their own customary 
practices or customary laws. The Hindu law, the Sikh marriage law, the Parsee law, 
and the Christian law are codified or passed by the Indian Parliament as acts or 
laws. The Muslim law is uncodified and is based on the Sharia, which is the moral 
and religious law primarily grounded on the principles of the Islamic religious text 
the holy Quran and examples laid down in the Sunnah by the Islamic prophet 
Muhammad. 
A. Nature of Family Law in India
UNIT 05: 
Family Justice System
A Bunt joint family in the early 1900s
The customary laws of the traditional communities are based 
on their customs and practices and are uncodified.
To this extent, India follows a peculiar conception of a secular state; although these 
varied communities are one nation, they co-exist as independent and distinct 
communities in the matters of family laws. As described herein, unlike other laws in 
force in India, such as criminal and civil laws, family laws are not uniform. However, 
the Constitution of India, in Article 44, provides for a goal or aspiration for 
achieving a uniform civil code in family and personal matters. This provision is 
merely a directive or aspirational and is not enforceable by a court of law. 
As has been described in the previous chapter, the Hindu legal system was based on 
the smriti literature and the Dharmashastra as well other later digests. Since the 
th
medieval period, starting from the 8 century, two major schools of personal laws 
have been followed. First, the eleventh century digest Mitakshara by 
Vijnaneshvara, an authority on issues of family law, was widely followed both in 
south and north India. It had further sub-schools in four areas, Dravida (south 
India), Mithila, Bombay, and Benaras. Second, in the region of Bengal, personal law 
of Dayabhaga was used. Dayabhaga was the personal law, a part of the thirteenth or 
fourteenth-century digest Dharmaratna written by Jimutavahana. 
The Muslims largely followed the Sunni (sectarian sect) and the Hanafite type of 
laws. Hanafite type of laws were based on the founder and Persian scholar Abu 
B. Medieval Period
197 198
Hanifa. For both Hindu and Muslim legal systems, there were other variances based 
on sectarian divisions (like the Sunni and Shi'a among Muslims), regional specifics, 
and the local customs and practices. The Hindu law and the Muslim Shari'at covered 
all aspects of life and did not differentiate much between moral, custom, and law. 
Even during the Mughal Empire in the Indian subcontinent, between the 16th and 
18th centuries, Hindus and Muslims were ruled largely by their own sets of local 
customs and personal laws. 
The British came to the Indian subcontinent in the early 
th
17 century. In the initial years, they were not concerned 
with the various regional and local laws practiced in the 
subcontinent. In 1772, when the East India Company 
established themselves as the civil administrators, 
Warren Hastings, the first Governor-General of Bengal, 
introduced the uniform criminal law with the idea of 
equality before the law for both Hindus and Muslims. 
However, in matters of personal law, he established that 
the laws of the holy Quran would be applicable to the 
Muslims, and the Shastras for the Hindus. As the British 
had no knowledge of the personal laws, they appointed 
the Hindu pandits and the Muslim jurists as consultants in 
their courts, and this led to the administration and 
development of the Anglo-Hindu and the Anglo-Islamic 
personal laws. After 1864, the system of 'court Hindu 
pandits' and Muslim jurists was abolished due to dissimilar interpretations and 
some suspicions of corruption; and the court judges interpreted the personal laws 
themselves. For the Bengal region, they largely used the Dayabhaga digest, while 
the Mitakshara digest with its four sub-categories was used for the other parts of 
India, along with other customs and usages. For the Anglo-Islamic personal law, the 
British judges used the sectarian Sunni and Shi'a, interpretations of the Shari'at as 
well as other sectarian traditions along with some local customs and usages. During 
the British rule, both the Anglo-Hindu personal law and the Anglo-Islamic personal 
law continued to develop through reforms, law commissions, and mainly through 
case laws.
C. British-India
Warren Hastings himself 
compiled a code known as the 
Vivadarnava Setu which 
consisted of assorted texts on 
various aspects of Hindu law. He 
seriously intended to make it a 
statutory source of law for 
Hindus until before its defects 
were discovered.
199
D. Post-Independence
E. Human Rights and Gender Perspectives
F. Case story 01. Equity in Education : 
After India's independence in 1947, efforts were made to develop a uniform civil 
code for dealing with matters of personal law. It started with the uniform Hindu 
Code Bill, which attempted to combine the varied regional customs and usages. In 
1951, it was shelved due to much opposition. Since the Indian Constitution had 
adopted the word 'secular' as an important feature of the Indian republic, the 
uniform family law was seen as biased in favor of the Hindu majority community 
and unsecular. In a similar manner, in 1955-56, the parliament adopted and codified 
the four different major legislations governing the family and personal law matters 
of the Hindu community: Hindu Marriage Act (1955), Hindu Succession Act (1956), 
Hindu Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance 
Act (1956).  Accordingly, Christians, Parsees, and Sikhs have their own codified 
Marriage Acts; Muslims are governed by the Sharia; and the traditional communities 
continue to practice their uncodified customary laws. As mentioned earlier, 
although the Indian Constitution, in Article 44, provides for a goal or aspiration for 
achieving a uniform civil code, this has never been taken up seriously for the fear of 
widespread communal violence. 
There are various provisions in the Constitution of India that are specified for 
gender equality. The preamble (or the introduction) to the Indian Constitution 
resolves to secure justice, liberty, equality, and dignity of all. Furthermore, Article 
14 provides equal treatment before the law for every person; and Article 15 
prohibits discriminations based on religion, race, caste, sex or place of birth. Thus, 
the idea of equality is strongly emphasized in the Constitution. However, 
exceptions exist too, for example,Articles 25 and 26 of the Constitution provide for 
freedom of religion that includes freedom of conscience and free profession, 
practice and propagation of religion as well as freedom to manage religious affairs. 
The religious communities have used these provisions to argue that modifying their 
family laws would be interfering with their freedom of religion.
My village in Shiyunzu has a high  illiteracy level. Only a small  number get 
educated and the most affected is the girl child, The community previously didn't 
see the importance of educating the girl child, but this has changed since a 
200
Women's Association together with a local administrator 
sent a team to educate us on the importance of education 
especially for the girl child. I am happy since then my 
parents don't want to be left behind in the quest of taking 
the girl child to school. My parents have since seen the 
importance of education and taking me and my siblings to 
school, without discrimination of us being girls. 
Counselors engaged the community with teaching them that a girl will always 
come back and help her people.
For those who promote the traditional religious values, the above gender equity 
provisions are contrary to their customary methods of law. For example, the 
traditional Hindu religious legal methods found in The Laws of Manu provide for 
unequal treatment of law and punishment based on gender as well as caste. Gender 
inequalities also exist within the Islamic legal traditions. Such competing gender 
inequalities of the two communities in particular, also prevented the adoption of a 
uniform civil code, which has continued to remain an unrealised aspirational 
provision in the Constitution. 
The modern Hindu family laws were adopted by reconfiguring the traditional 
religious laws and further based on modern constitutional values. However, 
complete gender equity has not been achieved. The instances of gender inequality 
existing in the present day Hindu family law include: 1) the Hindu Marriage Act 
(section 5.iii) prescribes marriageable age for girl as eighteen and boy as twenty-
one; 2) the Hindu Succession Act provides different methods of intestate (without a 
will) succession of property for male and female intestates; 3) the Hindu Minority 
and Guardianship Act (section 6) prohibits a mother to act as a child's natural 
guardian unless the father is dead or otherwise disqualified; and 4) the Hindu 
Adoptions and Maintenance Act (section 6) prohibits a mother to give her child in 
adoption unless the father is dead or otherwise disqualified.
Some examples believed to promote gender inequities in the Islamic family laws 
include: 1) the practice of polygamy is permitted in Islamic law; 2) the common 
view that a husband can divorce his wife by the triple talaq, which is the 
pronouncement of divorce three times in one breath; and 3) a Muslim husband is 
required to pay maintenance to a divorced wife only during the iddat period of 
three months.