PERSONAL LAWS AND CRIMINAL LAWS
PERSONAL LAWS AND CRIMINAL LAWS.
The term “law” denotes different rules and principles which govern human conduct or behaviour. According to Article 12(3)(a) of India Constitution “law” includes any Ordinance, order, byelaw, rule, regulation, notification, custom or usage having in the territory of India the force of law.
The term law has a different meaning for different societies, communities, places.
E.g., Personal laws differ for each religious group of people I.e., Hindu law governs Hindus (Sikhs, Buddhist, Jain), Muslim law governs Muslims etc.
Criminal law of India differs from that of other countries.
PERSONAL LAWS: -
These laws are also known by family or matrimonial laws.
They are applicable to a specific class or group of people and such a classification is made on the basis of faith, religion and culture.
TYPES OF PERSONAL LAWS:
India is a secular country. Personal laws are not uniform in India, and it follows a pluralistic legal system with regard to personal laws which means that religious groups are governed by a particular legislation,
HINDU PERSONAL LAW: -
Hindu law is an amalgamation of 5 Acts. These acts are:
These laws govern Hindu, Sikhs, Buddhists and Jains.
MUSLIM PERSONAL LAW: -
This particular law is largely derived from Quran. It isn’t codified comprehensively but does covers events like Nikah(marriage), Dower, Talaq(divorce) and inheritance of Sunni as well as Shia category of Muslim religion.
CHRISTIAN AND PARSI PERSONAL LAW: -
Christians are governed by the regulation such as Christian Marriage Act,1872, Indian Divorce Act,1869. The personal laws of Christians also recognise the laws of Catholic Church. Goa is the state which does not recognises Christian personal laws but is governed by Uniform Civil Code (UCC).
The Parsi community in India are governed by the Parsi Marriage and Divorce Act,1936. The Parsi people incorporate the Zoroastrian faith within their personal laws.
DRAWBACKS OF PERSONAL LAWS:
There are various challenges faced by the people practising a religion. Some of them are:
GENDER INEQUALITY: Personal laws originate from customs and thereby accustomed with inherent gender bias. One of such examples is that women under Hindu law did not have a birthright to ancestral property before 2005 amendment. Also, prior to the judgement of Shayara Bano V. UOI, the Muslim women were at the mercy of their husbands. The S.C. held the practice of triple talaq to be unconstitutional and quoted “what is held to be bad in the Holy Quran cannot be good in Shariat and, what is bad in theology is bad in law as well”.
LACK OF UNIFORMITY: The further division between the religious communities leads to confusion and unequal treatment before the law. For e.g., the ‘hanafi law’, allows for a separation period of two years, and the ‘Shaifi law’ of four years as customary. Meanwhile, the Hindu, Christian, and Parsi laws consider a separation period of 270-280 days for determining the legitimacy of a child. According to Sec.109 of Bhartiya Sakshya Adhiniyam, birth of a child during a valid marriage or within 280 days after its dissolution, while the mother remains unmarried, is considered to be a conclusive proof of legitimacy.
” Contemporary Indian society is becoming more homogenous and youngsters from various tribal groups, religious backgrounds, and castes should not be forced to cope with issues that come as a consequence of conflicts between personal laws.”
CRIMINAL LAWS IN INDIA
The criminal laws in India are enacted in order to protect the society as the offences or criminal acts are considered “offences in rem” i.e., against society. Also, the state acts as the prosecuting party in the court. The aim of these laws is to maintain law and order within the country.
There are three main criminal statutes which deal with criminal offences, outlines procedure and relevancy of evidence. The following statutes are:
BHARTIYA NYAYA SANHITA, 2023: This is the substantive criminal law in India. It defines offences and prescribes punishment for that offence. Two fundamental requirements for prescribing penal liabilities under the Act are: Actus Reus i.e., Act prohibited by law and Mens rea i.e., Guilty mind
BHARTIYA NAGARIK SURAKSHA SANHITA, 2023: It is a procedural law which outlines the procedure of a criminal case. Some of the steps followed during criminal cases are Investigation, Prosecution, Determination of guilt by the courts and Correction through the prison system.
BHARTIYA SAKSHYA ADHINIYAM, 2023: This Act establishes the fundamental principles which lays the foundation for the interpretation of the evidence presented to the court in a legal proceeding.
CHALLENGES FACED BY THE CRIMINAL LEGAL SYSTEM:
VIOLATION OF HUMAN RIGHTS IN PRISON: In the name of extracting confessions and investigating crimes, authorities use physical force upon the prisoners. Tukaram And Anr. V. State of Maharashtra is a judgement of custodial rape which led to the reform of sexual assault laws.
PENDENCY OF CASES: Acc.to the data of Supreme Court Observer, as of January 2025, pendency increased by over 2600 compared to the last January.
KEY DIFFERENCES BETWEEN PERSONAL AND CRIMINAL LAWS
Personal laws and criminal laws are an essential part of the legal system of India. Personal laws represent the secular nature and criminal laws represent a system of rules and regulations.
Closing Credits
Author - SIMRANPREET KAUR
Affiliation - SRI GURU GRANTH SAHIB WORLD UNIVERSITY, FATEHGARH SAHIB
"The views expressed are personal. This article is intended for educational purposes and public discourse. Feedback and constructive criticism are welcome!"
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