Development of Personal Law in Indian Legal System

Legal History B.A. LL.B. 2NDSem By Dr. Rajnish Kumar Srivastava Asst. Professor Dept. of Law DDU Gorakhpur University, Gorakhpur

Development of Personal Law The most important feature of the system of justice established in Bengal by Warren Hastings in the Indian legal system was that it was provided for the disposal of cases in accordance with Hindu law and Muslim law for the Hindus and Muslims. Even now, after about 250 years, this system is in vogue. Even today, in matters like marriage, adoption, maintenance, partition, inheritance, etc. Hindu law for the Hindus and Muslim law is applied for the Muslims.

In 1772 when this arrangement was come into force, the British judges were not aware of Indian law or Indian languages, religion and practice. They could not even obtain help from books in this regard. Because most of the books were in Sanskrit and Arabic. Moreover, those books were not purely books of law, but were incorporated in them by law, morality, religion, and were difficult to decide that which rule was binding and which was not.

It was, therefore, provided for the removal of the difficulty that judges in the courts were provided the assistance of the Indian law officers means the qazi and the pundits. This system lasted for quite a long time .These officer spoke to the judge about the principles that were applicable in case of a suit.

But this system was not complete, because neither all the qazi and pundits were honest, nor were they fully aware of the law. Moreover, handing over of cases to them for interpretation made delay in disposal of the cases. These authorities were more religious and had less knowledge of law. As time passed, the English judges also gradually developed self - confidence and they began to lose their reliance on the religious authorities. Moreover, they had not faith on these religious authorities.

there was always a possibility that they might be corrupt. The British judges always had a feeling of suspicion about these religious authorities. Justice Jones was said that the pundits were interpreted the law according to themselves. The result of the feelings, against the religious law authorities was that gradually steps were taken to ensure Hindu and Muslim laws and it was felt that these private laws were necessary to be settled so that judges themselves could decide suits without any assistance from the religious authorities. To this end, the most effective solution was to get the Hindu and Muslim laws translated into the English language and to prepare books that explain the principles of these laws.

For this the first step was taken by warren Hastings and started the work of transforming and compiling Hindu and Muslim law into the English language. Ten Pundits were invited to Kolkata to form a code of Hindu law. The authentic and ancient texts on Hindu law were collected and with the help of them, the original text of Hindu law was prepared in Sanskrit.

It was then translated into Persian and later to be translated into English by Halheid, therefore the book is called Halheid 's "Code of Gentoo Laws". Similarly, an attempt was made to formulate a Code of Muslim law. Since the muslims do not accept any new code, the authentic texts of the Muslims "Hidaya" were translated into Persian language and since Hamilton translated it into English. Warren Hastings had prepared these two translations of Hindu and Muslim laws under his care. Both these translations were the first attempts by the British to secure private laws in India.

Subsequently, in 1788, Justice Jones, the judge of Calcutta Supreme Court, who had knowledge of 28 languages, sought financial assistance from the government for framing a code of personal laws, which was provided by the government. In 1792 he published the translation of the "Muslim Succession Law".

Thereafter, in 1794, a work on Hindu Law called "The Institute of Hindu Law" was being published and the "Gist of Hindu Law" was also being prepared, but in the meantime justice Jones died. "The Gist of Hindu Law" which was started by Justice Jones, after his death, finalized by Pundit Jagannatha, and translated into English by Colebrook.

In 1824, Justice Francis Macnaughtan, judge of Kolkata Supreme Court, published the book "Consideration upon Hindu law" after which "Principals and Presidency of The Hindu Law" book was published by Macnaughtan in 1829. "Treatise on Hindu Law and Usage" Was published in 1878. It was created by Mayne.

It was a highly certified book on Hindu law. The "Principal's and Presidents of Mohammedan law" composed by Macnaughtan in the area of Muslim law and published in 1825. Thus, several books relating to Hindu and Muslim laws were published, and making it possible to ensure these laws.

Personal Laws and Courts In the Hindu Shastras, laws and ethics are intermingled with each another, and it was not easy to distinguish between them. Courts tried to determine which rule was related only to religion and which related to law. Courts considered the law - related rules and only they were applicable in the courts of India which attached great importance fundamental legal principles of the Hindus. too to all

The influence of practices had been established by the courts in helping the Hindu law to develop into a definite system of law. In Muslim law also the judicial process extended its support and developed it. The courts not only laid down Muslim law but also incorporated to some extent of English law. But, from time to time, Muslim Jurist criticized such a decision. In Muslim law there was no possibility of changes, so courts in the British period had very little opportunities to innovate Muslim law.

Codification of Hindu Laws The process of development of Hindu law became obstructed due to judgments passed by courts. Because courts gave decisions on the basis of the same laws as existed before. To develop the Hindu law, it was necessary to start the work - related process of Hindu law which could remove the shortcomings of the Hindu law in view of the need of the hour. With this object, the Legislature has enacted some act to create new laws in Hindu society such as

Hindu Widow's Remarriage Act, 1856, Hindu Women's Rights of Property Act, 1937, Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, Child Marriage Restraint Act, 1929, The Hindu Inheritance (Removal of Disabilities Act), 1928, The Hindu law of Inheritance (Amendment) Act, 1929, The Cast Disabilities Removal Act, 1850, The Hindu Marriage Validity These are important Acts in this regard. Act, 1949

Codification of Muslim Law There was not much scope for tampering with Muslim Law; therefore, much work could not be done in Muslim Law. But even then, the first change in Muslim Law was made by passing "The Wakf Act" in 1916, and in 1939 "The Dissolution of Marriage Act" was passed. While another Hindu law was being reoriented in the prevailing situation, the Muslim law was without change.

This was because there was no demand for reforms from the Muslim public, and it was the policy of the government that it would not take steps to reform in its own discretion unless the Muslim people demand reforms.