LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


State of Bombay v. Narsu Appa Mali[1] was a landmark judgment on the constitutional conflict between personal law and fundamental rights. This paper does not limit itself to the case, judgment and analysis of the judgment. The paper basically highlights the issues of this case in a broader perspective and also analyzes the power of judiciary in interpreting the personal laws. Even though it is mentioned State of Bombay v. Narsu Appa Mali[2], the involvement of Sarla Mudgal (Smt.), President, Kalyani &ors. V. Union of India & ors[3] is quite inevitable. The way law is defined[4] and the way the term law is interpreted, is discussed with the help of famous judgments. The relevance of the case as far as the long awaited and still pending concept of UCC (Uniform Civil Code) is also dealt in detail in this project. This paper ends by finding an answer to the question, whether the personal laws that should prevail over the dream of a Unified nation.


Diverse cultures and diverse laws is one amongst the many important features of India. In a country like India, since the existence of diversity is to such grave extreme, the occurrence of conflicts cannot be a matter of surprise. When it comes to laws in India, other than the basic difference of statutory laws and procedural laws, there are personal laws as well. Personal laws are those laws which are governed explicitly in matters relating to family affairs, i.e., marriage, divorce, succession, etc.[1]. There is Christian Law, Muslim Law, Hindu Law and Parsi Law. Avoiding the most unavoidable exceptional differences, for example, Hindu marriage is not a contractual form of marriage when compared to Christian Law, Muslim law and Parsi law, even though there are certain elements of religious concurrence in the later, the most controversial difference when we compare Muslim Law with any other law is of polygamy. A Muslim man is allowed to marry 4 times, but no other laws permits bigamy or polygamy. Hence, Section 494 of the Indian Penal Code (IPC) that imposes punishment for bigamy is applicable to all, except Muslim men.

Two cases are dealt in detail in this paper; (1) Narsu Appa Mali V. State of Bombay[2] (from now Narsu Appa Mali) and (2) Sarla Mudgal (Smt.), President, Kalyani &ors. V. Union of India & ors [3] (from now Sarla Mudgal). In Narsu Appa Mali the question raised was with regard to the constitutional validity of Bombay Prevention of Hindu Bigamous Marriage Act, 1946, which according to one section is discriminating Hindus on the basis of their caste. And in Sarla Mudgal, the conversion of men into Muslim religion to re-marry or to have an additional spouse was challenged in the case. But in both these cases, the question of Uniform Civil Code was also raised. In Narsu Appa Mali, the appellant contented that according to Article44 of the Indian Constitution, Uniform law should be made applicable across the country and hence, special exceptions cannot be granted to Muslim community. In Sarla Mudgal, the court itself asked the legislature to ensure implementation of UCC (Uniform Civil Code).

In this project, after analyzing the cases, the issues highlighted in both the cases are dealt in a broader perspective. Whether personal laws are laws under Article13 (3), how essential is the implementation of UCC (Uniform Civil Code), how just were the judgments etc. will be answered through the project.        


This case was filed questioning the validity of the Bombay Prevention of Hindu Bigamous Marriage Act, 1946 and the act was challenged contenting that, this act is in violation of part III (fundamental rights)- Article14,15 and 25 in specific.

Article25 (i) ‘guarantees all persons the right to freedom of conscience and the right to freely profess, practice and propagate religion[4]’. However, this right is not an absolute right and is subjected to public order, morality and health and to other provisions of Part III of the constitution. Also restrictions are imposed under sub-clauses (a) and (b) of clause (2) of Article25. It says, ‘the state is empowered by law to;

(a) To regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice;

(b) To provide for social welfare and reform and to throw open Hindu religious institutions of a public character to all classes and sections of Hindus[5]

In this case it was contented that Hindu marriage is a sacramental union and marriage under Hindu religion is for the procreation of a male heir, which is basically a religious practice or belief, and restricting this practice by the Bombay Prevention of Hindu Bigamous Marriage Act, 1946 is violating ones freedom to profess, practice and propagate religion as per Article25 (i).    

The court held that, if a religious practice is against the public morality or public policy, the religious practice should subordinate the welfare or good of the people. That is, it is the welfare of the people that should prevail. The same notion was also held in the case of American Reports, viz. Davis v. Beason[6]. And also, the restrictions imposed under (b) of clause (2) of Article25 empower the state to provide for welfare and reform. Hence this contention was rejected.

Article14 guarantees equality before law and equal protection of law and Article15 (i) directs the state to not discriminate against a citizen on the grounds only of religion, race, sex or place of birth or any of them. 

It was argued before the court that by allowing Muslims to practice polygamy (a Muslim man can marry 4 times), the state is discriminating the Hindus on the basis of religion through Bombay Prevention of Hindu Bigamous Marriage Act, 1946. In Hindu law, to have a male heir is a part of the religion and hence marriages for that purpose should not be restricted. Also, it was contented that Article44 of the Directive Principles of the State Policy (DPSP’s) requires the state to secure for the citizens a Uniform Civil Code (UCC) throughout the territory of India, and the state of Bombay has discriminated on the basis of religion. Even section 494 of IPC (Punishment for bigamy) is applicable to all except Muslims. The council also asked to add personal laws as laws under Article13 (3) and held that personal laws comes under ‘laws in force’ under Article372 (3). 

The state contented that under Muslim law and in Hindu law, women are only allowed to marry once and men are allowed to practice polygamy. Hence it is discriminating women on the basis of sex.

The court held that, there can be reasonable discrimination and here the Hindu community is discriminated for a social reform and hence cannot claim violation of Article14 or Article15 (i) under part III and even though Article 44 calls for Uniform Civil Code Article44 can never be asked to be implemented, because DPSP’s (Directive Principles of the State Policy) cannot be enforced. Even though Article14 and 15 (i) calls for equality, reasonable restrictions are allowed for the betterment of the society. Hindu law and Muslim law have different origins and hence it can’t be forced to be brought under UCC (Uniform Civil Code). But as to serve the purpose of DPSP’s, a reform is initially made in the Hindu law and it is expected to spread to other laws as well.

The contention of the council to add personal laws as laws under Article13 (2) is also not possible because the source of each and every personal law is different and the laws are made upon customs, religion and practices and not on the basis of legislations. Article13 (3) says ‘In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas’[7]. So, personal laws, are not laws under Article13 (3). Gajendcagadkar, J. in this case held that if personal laws are brought under the ambit of Article13 (3), then abolition of untouchability as per Article17 will be void basically because Hindu religion recognizes Untouchability. Hence personal laws can’t be brought under the ambit of Article13 (3).

Since personal laws are not laws under the ambit of Article13 (3) it doesn’t come under the ‘laws in force’ saved by Article 372 (3)[8].

 Hence the judgment pronounced by the court, upholding the constitutional validity of the Bombay Prevention of Hindu Bigamous Marriage Act, 1946 is just and fair enough.

Sarla Mudgal (Smt.), President, Kalyani &ors. v. Union of India & ors.

In this landmark judgment, the question of the validity of the marriage was challenged, where the husband converts to some other religion, just for the sake of marriage. The court held that, such a marriage will be a void marriage and the husband will be punishable for bigamy under section 494 of IPC (Indian Penal Code), but the first marriage will still remain a valid marriage. The judge also asked the government to go through Article44 of the Indian Constitution (Uniform Civil Code), which basically calls for uniformity of law throughout the nation. The Supreme Court has directed the Prime Minister to take fresh look at Article44 of the constitution which enjoins the state to secure a uniform civil code, which according to the court is imperative for both the protection of the oppressed and promotion of national unity and integrity[9].

This case can be considered as the biggest example where the personal laws are so against the morals of the society that in order to satisfy their need, mere conversion to another religion is necessary. The court in this case rightly identified the necessity of a uniform law basically because; people can do socially unaccepted activities and get away with it standing behind the back of Article 25 (1).

Both Narsu Appa Mali and Sarla Mudgal expected a social reform and personal laws are in one way or the other standing against achieving it.


The question of what a personal law is cannot be explained in a single sentence. Even through personal law are generalized to be laws that have a spiritual origin, there are laws that came as a result of legislation, and there are also laws which doesn’t have a proper legislation till date. Under this heading of personal laws, the question raised is whether personal laws are laws under the ambit of Article 13 (3). Even though our Indian judiciary is burdened with cases that are expecting the intervention of judiciary, in certain cases judiciary is playing the role of an activist and in certain cases judiciary is restraining itself. The cases where judiciary has took the shape of an activist and also cases where judiciary restraint itself will be dealt in detail later on in this paper.

Personal laws can be traced to the time immemorial[10], and most of the personal laws evolved because of its religious implications. Hence Article25 (1) can be closely related to personal law. So whenever a question of repealing a personal law comes, it is in one way or the other affecting Article25 (1) (part III of the Constitution), and hence judiciary itself restricts its involvement in such sensitive areas where religious sentiments are involved. But in certain crucial cases judiciary has shown its involvement also.  The conflict of personal laws and fundamental rights is quiet visible, basically because of difference in personals laws, which might in one way or the other affect Article14 (equality before law and equal protection of law), and the judicial involvement is also not possible, basically because personal laws are related to one’s own religion and according to Article25 (1), the citizens of the country has the right to practice, profess and propagate their religion. The most sensitive issue, also held in Narsu Appa Mali, is the conflict between Muslim personal law that assents to polygamy and Hindu personal law that prohibits the practice of bigamy. When we compare both the laws, one thing that can be noticed is that, both the laws are discriminatory to women. In Muslim women is only supposed to have one husband, whereas a husband can have a maximum of 4 wives.

Those people who asks for allowing bigamy in the Hindu law is claiming this stating that, the law is in violation of Article25 (1) which gives them the right to practice their religion, then on the basis of Article14, which is gives them equality. But again, in a developing country like India social reform is inevitable and religious beliefs that are against the societal norms should give way for the benefit of the society. The codification of all the laws has not yet happened in our country, and hence it is difficult to give proper judgments in alarming cases.

Judicial Interpretation    

There was similar case like Narsu Appa Mali, Srinivasa Iyer V. Saraswathi Ammal[11], and the question was whether Madras Hindu Bigamous (Prevention and Divorce) Act, 1949 was in violation of Article15 and Article25. The same as Narsu Appa Mali was held in this case also. The court held that such legislations are for the public good and are not discriminatory.

Md. Ahmed Khan v. Shah Bano Begum[12], was a landmark case where judiciary actually intervened in the Muslim Personal law to deliver justice to women who are discriminated, based on their gender. The court held that, divorced women should be granted maintenance as per Section 125 of Cr.P.C Criminal Procedure Code. the act of the government to defeat this judgment was the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1985. The court in this case also expressed its hope that Parliament would take steps to enact UCC as enjoined under Article44[13]. Muslim Women (Protection of Rights on Divorce) Act, 1985 was challenged in Danial Latif V. Union of India[14], but the court upheld the validity of the act and said that Muslim women including her parents and children are entitled to get maintenance. Also, in Noor Saba Khatoon V. Mohd. Quasim[15] the court held that a divorced Muslim women is entitled to get maintenance both under the Muslim Women (Protection of Rights on Divorce) Act, 1985 and under section 125 of Cr.P.C Criminal Procedure Code (Criminal Procedure Code).

But in Ahmedabad Women’s Action Group (AWAG) v. Union of India[16], the judiciary restraint itself from deciding a question related to personal law. The question is still a question even after 19 years, triple talaq, whether it violates Article14. Again as the case of polygamy for Muslim men, in one way or the other it is discriminating women, but cannot be scrapped or repealed since it a personal law and any change to it might affect the religious sentiments of people.

The question of whether personal laws are laws under Article13 (3) has another dimension. This was well elaborated by the judges in Narsu Appa Mali. In Krishna Singh V. Mathur Ahir[17], it was held that Part III does not touch upon the personal laws of the parties and in Bhan Ram v. Baijinath[18], the court pronounced that, though the term “law” includes all ‘laws in force’ i.e., custom[19], usage, etc. having the force of law, personal laws of Hindus, Muslims and Christians are excluded from the definition of “law” for the purpose of this Article. If personal laws are added to the ambit of Article13 (3), the religious proceedings, which are discriminatory, will be in conflict with the Part III. For example, in certain sub-castes in Hindu religion, in temples, only people from Brahmin community can do the pooja ceremonies. This if is brought under the ambit of Article13 (3), will be discriminatory because it will be in violation of Article14, 15 (1) 19 etc. In Narsu Appa Mali, the court said that, certain religious norms calls for untouchability. if personal laws are laws under Article13 (3), then the legislation prohibiting discriminatory practices will be void and the purpose of the whole act will be defeated. Hence personal laws cannot be laws under Article13 (3).

ARTICLE44- Uniform Civil Code (UCC)

Article44 of the Indian constitution calls for a uniform civil code, which means a uniform law across the nation. The intention of the framers of the constitution in putting this under DPSP’s (Directive Principles of State Policy) is much obvious, as it is a dream that India hopes to achieve in the far future. But it is still an unaccomplished mission, and something that might never happen in our country. Diversity of culture, differences in religious beliefs are some of the reasons why this is not possible. People in India are more religious and culture oriented rather than a broad minded to accept changes. In India, the biggest division is when it comes to Article370 and personal laws. Article370, even though is one of the most controversial topic, is one of the few things that divide India. Special status to Jammu and Kashmir is a sizzling and highly debated issue that our country faced is and keeping on facing. But personal laws are something that divides the people throughout the country (between states, within states etc.). Even though India is a secular state (the country has no religion of its own), religion and religious beliefs play a very crucial role in determining laws. Personal laws have its origin from religious manuscripts that govern attributes like marriage, adoption, maintenance, guardianship etc. So to bring each and every person under another law, which is uniform and is applicable to all, by force is not an easy task. Since UCC (Uniform Civil Code) is a part of DPSP’s (Directive Principles of State Policy) they cannot be enforced also. But judges, in their judgments, have asked legislature to implement this Article since it is highly essential for a social good.

In Sarla Mudgal & ors v. Union of India[20] and in Md. Ahmed Khan v. Shah Bano Begum[21] the court asked the legislature to implement UCC (Uniform Civil Code). Political favoritism can be considered as one of the reasons why this is not yet implemented, and this case is the landmark in showing that. In Shah Bano case, the Supreme Court ordered for granting maintenance for Muslim women under Section 125 of Cr.P.C (Criminal Procedure Code), and the parliament, in order to defeat the judgment enacted another law specifically for Muslim making it another personal law.

Kuldip Singh, J., said in John Vallamatton V. Union of India[22] that Article44 is based on the premise that there is no necessary connection between religion and personal laws in a civilized society[23]. Necessity of a uniform law was not just observed in cases that involves personal laws. In Seema V. Ashwani Kumar[24], the Supreme Court has held that marriages should be registered compulsorily, irrespective of the religion, even though it was just a directory judgment in application.

By satisfying the interests of some section of people, who are backward in time and who are orthodox, the whole welfare of the nation is at stake. Secularism is only is books in India. For it to be in practice, Uniform Civil Code should be implemented. It is not the religion that should govern the people; it should be the laws.


This project is an attempt to understand the role played by personal laws in the country by standing parallel to social and societal development. Personal laws are in one way creating disparity amongst the individuals of the same state. Marriage, adoption, custody, maintenance etc. are governed under separate laws in the country. A uniform law is always good and will give a sense of uniformity amongst the citizen. The project started with the analysis of two cases, State of Bombay V. Narsu Appa Mali and Sarla Mudgal (Smt.), President, Kalyani &ors. V. Union of India & ors and then gave an elaborate study of the two concepts that always created debate across the nation. Ancient India was built on the principles of religious beliefs and practices. Even though the constitution guarantees freedom to practice, profess and propagate once religion, those practices does not stand as a pioneer when it comes to the welfare of the nation. India being a welfare state should give proper protection to everyone and should ensure uniformity amongst all. Personal laws, which are different for each and every community, in one way is standing as an obstacle in achieving unity. When one community is having something more than the other, or when one community is allowed to something that the other community is refrained from doing, it will create a sense of distress in the nation and for a growing country like India; we can say it is a hindrance for development.   

In my opinion, it is high time that the legislature implements Uniform Civil Code and social reformation should always be the primary concern for the state. Governments have been changing since we got freedom, but this change, which is essential for the betterment of the nation, has never became any government priority. Uniform Civil Code across the country will be the best initiative by the legislature in unifying the nation and in guaranteeing Equality to its citizens.


  • State of Bombay v. Narsu Appa Mali
  • Sarla Mudgal (Smt.), President, Kalyani &ors. V. Union of India & ors.
  • John Vallamatton V. Union of India
  • Seema V. Ashwani Kumar
  • Md. Ahmed Khan v. Shah Bano Begum
  • Krishna Singh V. Mathur Ahir
  • Bhan Ram v. Baijinath
  • Md. Ahmed Khan v. Shah Bano Begum
  • Danial Latif V. Union of India
  • Noor Saba Khatoon V. Mohd. Quasim
  • Ahmedabad Women’s Action Group (AWAG) v. Union of India
  • Srinivasa Iyer V. Saraswathi Ammal
  • American Reports, viz. Davis v. Beason

[1], last visited 25/9/2016

[2] AIR 1952 Bom 84

[3] AIR 1995 3 SCC 635

[4] Constitution of India

[5] ibdi

[6] (1889) 133 U. S. 637

[7], last visited 24/9/16

[8] Supra footnote 12

[9] J.N.Pandey, CONSTITUTIONAL LAW OF INDIA, p.453, 53rd edition

[10] Mr. Ashko Wadje, Judicial review of personal laws vis-à-vis constitutional validity of persona laws, south Asian journal of multidisciplinary studies (SAJMS) ISSN: 2349-7858: volume 2 issue 3, p.99-100

[11] (1953) Mad, 78, (52) A.M.193

[12] (1985) AIR SC 945

[13] Supra footnote 12

[14] AIR 2001 SC 3262

[15] AIR 1997 SC 3280

[16] (1997) AIR SC 3614

[17] AIR 1980 SC 707

[18] AIR 1962 SC 1476

[19] D.b.m.Patnaik v. state of A.P, AIR 1974 SC 2092

[20] Supra footnote 7

[21] Supra footnote 15

[22] AIR 2001 SC 3262

[23] Supra footnote 13

[24] AIT 2006 SC 1158

  • [1] AIR 1952 Bom 84
  • [2] ibid
  • [3] AIR 1995 SC 1531
  • [4] Article13

"Loved reading this piece by Parvathi N?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Tags :

Category Family Law, Other Articles by - Parvathi N