Phenomenon of Personal Laws in India: Some Lessons for South Africa

Abstract

India’s history, its people and the phenomenon of various personal laws make it an ideal legal system for comparison with South Africa. There is a generally applicable Indian law that applies to all Indians irrespective of their religion. In the personal law sphere, we find a system of concurrent personal laws that applies to members of the various communities in India. As part of this personal law system, is an optional secular system of personal law. On the other hand, the religious communities of South Africa are served by a national law (state law), which purports to be secular, and by the customs and usages of religious communities (non-state law). As South Africa is in the process of recognising Islamic marriages, a comparison between the South African situation and other jurisdictions grappling with similar issues, is apposite. In this contribution the following is investigated: the meaning of ‘personal law’ in India, the variety of personal law systems applicable in India and the circumstances surrounding the so-called Uniform Civil Code debate. Finally, a conclusion as to the suitability of the Indian model for South Africa is assessed.

Keywords: personal laws, comparative law, India, South Africa

JEL Classification: K1