State of Bombay v. Narasu Appa Mali

DATE OF JUDGEMENT – 24^th July, 1951

COURT – High Court of Bombay

JUDGES – Justice M.C. Chagla and Justice Gajedragadkar Chagla

CITATION – AIR 1952 Bom 84

SUBJECT: The scope of the application of personal laws under the term “laws in force” under Article 13 of the Constitution.

PARTIES – State of Bombay (Appellant) Narasu Appa Mali (Respondent)

FACTS – The accused, Narasu Appa was convicted under Section 5 of the Hindu Bigamous Marriage Act and was sentenced to six months rigorous punishment by the Mebsana Magistrate with a fine of Rs. 100. The Sessions Judge of Mebsana dismissed the appeal on the same matter. The Act prevents bigamous marriages among Hindus who include Sikhs, Jains, Buddhists by definition and Section 5 under the same provides that if a non-minor contracts bigamous marriage then he shall be liable to a punishment of upto 7 years. This Act was hence challenged as being ultra-vires to the Constitution vide Articles 14, 25 and 15.

Whether personal laws are subject to Fundamental Rights guaranteed under the Constitution (Article 13) and what is the constitutional validity of the Bombay Prevention of Hindu Bigamous Marriage Act, 1957 in view of article 14, 15 and 25?

CONTENTIIONS –

Appellant – It was contended that with reference to Article 25 of the Constitution, Muslims and Hindu laws where women are allowed to marry once and the men are allowed to practice polygamy are both discriminating women on the basis of sex which is in violation of their right under Article 14 of the Constitution. The contention with reference to Article 13 was that personal laws cannot be included within the purview of the said article as the source of each custom and religion is different and therefore cannot be guided by the same law, i.e.

Article 13 which provides that certain laws shall be void if they are inconsistent with the fundamental rights under Part III. The said law cannot be held void as it is in light of social reform and hence cannot be within the purview of Article 13 of the Constitution.

Defendant – It was contended that a Hindu Marriage is a sacramental union of two people for the procreation of a male heir – which is the basic religious practice and belief of the community. Therefore, restricting a person’s right of second marriage, the Act is against Article 25 of the Indian Constitution. Further, since Muslims can marry upto 4 times (polygamy), the state is discriminating against Hindus on the basis of religion with the Act and is hence violative of Article 14 and 15 as the later directs the State to not discriminate.

As per Article 13, it was argued that personal laws be added within its purview as laws in force as a term include “all laws” including personal laws. It was contended that the efficacy of fundamental rights does not vary in its application for personal laws and statutory laws and must come within its framework.

JUDGEMENT – The court held that if a religious practice is against the public morality, such a religious practice should subordinate the welfare of the society at large upon which it operates. With reference to equality, the Court held that there can be reasonable discrimination in this case the Hindus, which is social reform and hence the Act is not violative of Articles 14 and 15. Justice Gajedragadkar Chagla with reference to Article 13 held that if personal laws are bought within the purview of Article 13, then the abolition of untouchability would also be void. Therefore, personal laws are not laws under the ambit of Article 13(3) and do not come within the purview of ‘laws in force’ as under Article 372. The validity of the Act was therefore, upheld.