Bombay High Court
Amina, In re
Versus
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Decided On:

Headnote:Articles 13, 14 and 372-Personal and customary laws-Are laws under Article 13 and not otherwise- Even same would be void if found inconsistent with any of fundamental rights guaranteed constitution.

       The Constitutional law is the Supreme law of the land. No law whether made by a legislature or Judge made, customary or otherwise, can be enforced by any Court in our country if it is inconsistent with or repugnant to guarantee of fundamental rights unless expressly saved under a specific provision of the Constitution itself, like Articles 31A, 31-B and 31-C.

       Personal laws are law and laws in force under Article 13 of the Constitution of India and are enforceable in Courts subject to provisions of the Constitution and not otherwise. Even customs and usages having the force of law are void if found inconsistent with any of the fundamental rights guaranteed by the Constitution. It could not be the intention of founding fathers of our Constitution to create any immunity in favour of personal laws.

       The Constitution is a living document. It (is impossible to ignore patent discrimination resulting from some of the provisions of personal laws sought to be enforced in our Courts. Some of these provisions appear to be clearly unjust as for example:

       (i) a Mohammedan male being entitled to marry four wives;

       (ii) a Mohammedan husband being entitled to divorce his wife unilaterally by pronouncing of the word "Talaq" thrice;

       (iii) gross inequality and inequity in matter of inheritance merely on ground of sex ;

       (iv) provisions of old Hindu law depriving of their right to inherit the property of their father if the demand left a widow and a son behind him.

       Personal laws are not made by the legislature but are enforced by Courts. The questions to be asked is as to whether the Court can be asked to enforce a provision of personal law which appears to be repugnant to the fundamental rights. Personal laws shall have to yield to fundamental rights and all laws, whether made by the legislature or otherwise, must necessarily conform to fundamental rights.

       For Citation : 1992 Bom 214 at 217,218,220.