A Judicial Shift in Personal Law Paradigm in India

The Constitution of India is an organic and living document, which makes it a document alacritous to change and growth, according to the contemporary requirement and the needs of the present society. One such vital change that a society needs is regarding personal laws. Personal laws which are in force find its foundation in the recognition of very “right to practice” religion under Article 25 of the Constitution of India. The question which arises is how then some of personal laws being patriarchal, and on face discriminatory against the women and in violation of part III of the constitution can still exist and manage the scrutiny of fundamental rights? In the judgment delivered by the court in State of Bombay v. NarasuAppa Mali it was held that personal laws are not “laws in force” under the Article 13 of the Constitution of India as they are based on religious precepts and customary practices and the principles enshrined in the part III of the constitution cannot be applied. This research highlights how it is high time for the courts to revisit this judgments. The researcher focusing on the discriminatory matrimonial laws of different religion would like to discuss that personal laws should not fall outside the ambit of judicial scrutiny under article 13. For the purpose of this research problem researcher has adopted a doctrinal form of research and will be majorly analyzing the decisions rendered by the adjudicatory authorities and the relevant literature available on the said topic In this study after establishing the current position of law, the researcher will try to examine and scrutinize the legal reasoning and rationale behind the Bombay High Court decision in State of Bombay v. Narasu Appa Mali because of which even today, after 65 years of developed constitutional jurisprudence, some of the discriminatory personal laws continues to be in practice.