Uniform civil code of India
Uniform civil code of India is a term referring to the concept of an overarching civil law code in India. A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion, caste and tribe. This supersedes the right of citizens to be governed under different personal laws based on their religion or caste or tribe. Such codes are in place in most modern nations.
The common areas covered by a civil code include laws related to acquisition and administration of property, marriage, divorce and adoption.
In India, most family laws are determined by the religion of the parties concerned. Hindus, Sikhs, Jains and Buddhists come under Hindu law, whereas Muslims and Christians have their own laws. Muslim law is based on the Sharia. The personal laws of other religious communities were codified by an Act of the Indian parliament. Other sets of laws such as criminal laws and civil laws on contract, evidence, transfer of property, taxation were also codified in the forms legislation.
This debate on Uniform Civil Code dates back to the colonial period.
The Lex Loci Report of October 1840 emphasised the importance and necessity of uniformity in codification of Indian law relating to crimes, evidences, contract etc., but it recommended that personal law of Hindus and Muslims should be kept outside such codification.
In Hindu law there are two principal schools, Dayabhaga and Mitakshara. Mitakshara is again subdivided into four minor schools. Beside, the custom of sadachar also occupies important position. Attempts to reform Hindu law by legislative processes commenced during British period. Reforms such as The Caste Disabilities Removal Act, 1850, the Hindu Widows' Remarriage Act, 1856, the Hindu Inheritance(Removal of Disabilities) Act, 1928, the Hindu law of Inheritance(Amendment) Act, 1929, the Hindu Gains of Learning Act, 1930, the Hindu Women's Right to Property Act, 1937, the Hindu Married Women's Right to separate Residence and Maintenance Act, 1946 were all enacted to give relief to those who are not content to abide by ancient shastras. The Hindu Law Committee was appointed in 1941 to look into a comprehensive legislation covering all Hindu laws. This committee ceased to function after sometime due to war. It was revived in 1944 under the chairmanship of Sir B.N. Rau and recommendations of Rau committee were given effect by a series of acts passed in 1955 and 1956, to regulate marriage succession, guardianship and adoption. These were the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, finally the Hindu Adoptions and Maintenance Act, 1956.
Among Muslims there are Sunnis, Shias, Ismailis, Bohras, Khojas and unorthodox Ahmadiyyas. There are four different schools among Sunnies. There are also Kutchi Memons, who retain to some extent the private laws of the Hindus Most of the legislations were enacted mainly to override judicial decisions and to restore shariat law. The Wakf Validation Act, 1913 was passed to override the decision of Privy Council. A number of acts from the colonial period specifically exempted Muslims in an effort to avoid resistance from that community. The Indian Succession Act of 1925, which dealt with inheritance and succession, specifically exempted Muslims. Muslims had a complicated inheritance system based on the Quran. The original Indian inheritance law had been enacted in 1865 and had exempted Hindus as well. However, the act was ultimately applied to Hindus. The Special Marriage Act of 1872, which was essentially a secular civil marriage law, also exempted Muslims. Not all calls to exempt Muslims were accepted. The Indian Evidence Act of 1872 included section 112, which concerned the legitimacy of children. This section was later found to apply to Muslims, despite its inconsistency with Muslim law. Shariat Act, 1937 swept away any custom or usage contrary to the shariat in all questions regarding succession, special property of females, marriages and dissolution of marriages, guardianship, gifts, trust properties, wakfs etc. Muslim Dissolution of Marriage Act 1939 granted women the right to dissolution of marriage.
In the case of Christians there Indian Christian Marriage Act was enacted. But this was not a comprehensive act.
Personal Law of parsis is partly codified but the machinery for dealing with divorce and other matrimonial reliefs are not proper.
Muslims and Uniform Civil Code
The framers of the Indian constitution, including men such as Nehru, were convinced that a certain amount modernisation is required before a uniform civil code is imposed on citizens belonging to different religions including Muslims. It was also feared that any attempt to ignore personal laws of various religions might lead to civil war, wide-scale rioting and social unrest. Syed Abdul Latif had envisioned this problem when he wrote in 1939 a model constitution for India that included a section "whereby the interests of Muslims, as well as other minorities, may adequately be safeguarded." Under his article on the Judiciary, the lone comment he made was that "the personal law of the Muslims should be administered by Muslim judges.", where the private militia of nizam, the Razakars, were slaughtering Telangana Hindus, had to be taken by force.
Thus the forefathers of constitution who imposed several reforms upon the Hindu law were cowed down by the threats of Islamists and kept the sharia strictly unaltered . Hence . the Muslims and Christians had to be to be governed by their own set of laws. This transcends the notion of equality, which is the fundamental principle of secularism.
India's leaders at the time wanted a secular constitution on the model of a western democracy. However, what resulted was not secularism in the western sense of the word, but rather a 'secular' state with religious laws for its religious groups. Mushir ul-Haq points out that in India 'secular' means "non-intervening in the matter of religion." The religious groups in India are many, mainly consisting of a Hindu majority, a significant Muslim minority, and smaller amounts of Buddhists, Sikhs, Jains, Christians, Jews, and tribal peoples. On the side of creating a purely secular state, there is Article 44 which states "The State shall endeavor to secure for citizens a uniform civil code throughout the territory of India." However, in response to this, there exist Article 14 which guarantees the Fundamental Right of equality before law,Article 15 which prohibits discrimination against any citizen on grounds only of religion, race, caste, sex or place of birth and Articles 25-29 providing religious and cultural freedom...Article 13 of the Constitution says that all laws in force in India at the time of the commencement of the constitution, if repugnant to any of the fundamental rights, have to cease to apply in any manner whatsoever.Article 372 at the same time requires that "all the laws in force in the territory of India immediately before the commencement of this constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority."
There is a basic contradiction here. On the one hand, the constitution recognises the continued existence of Personal Law, which is why Article 44 expects that India at some later date will have a uniform civil code. On the other hand, there exist several articles, such as Article 14-19 which guarantee equal rights. Since personal laws for various groups are inherently unequal, since a divorcee in Muslim law is entitled to different things than in Hindu law, therefore Article 15 would seem to make personal law unconstitutional. Furthermore, Article 15 also requires non-discrimination based on "sex", whereas Muslim Personal Law favours the man in many cases, especially in the issue of divorce and in the issue of polygamy. Equality before the law would essentially mean that Muslim women could take up to four husbands. These issues remained unresolved in the constitution.
The High Courts of Bombay, Madras and Punjab all took a stab at understanding this contradiction during early rulings in 1952 and 1968. The conclusion in these cases, one of which involved polygamy, was quite convoluted. On the one hand the courts found that Muslim Personal Law was not included under Article 372 as a 'law in force today' since Muslim Personal Law had its roots in the Quran and therefore 'could not be said to been passed or made by a legislature'. This of course ignores the fact that Anglo-Mohammedan law, the great body of which remained in force after 1950, was not merely based on the Quran but rather the Shariat Act. Secondly, the justices found that Article 13 and its requirement of equality did not abolish personal laws, since if it had, then personal laws would not have been mentioned elsewhere. The conclusion was that the constitution recognised personal laws in Article 44, did not void them in Article 13, and that Article 372 did not apply to personal laws since they were inspired by religious texts, not created by legislation. Thus, personal laws remained outside the scope of any ruling on equality. This train of judicial thought would remain in force until the 1980s and the advent of the Shah Bano case.
Two further points must be made regarding the Constitution and its importance for Muslim Personal Law. The first is Article 25 which states "nothing in this article shall affect the operation of any existing law". Like Article 372, this was trying to get at the laws that had been passed under British rule, many of which would remain in force after the constitution was passed. Furthermore, Article 44 expressly mandates the government to introduce a uniform civil code, which would include such items as marriage, inheritance and divorce, which were the main protections granted to Muslims in their personal law. Tahir Mahmood in his excellent study, Muslim Personal Law, concludes that "Article 44 does not require the state to enforce a uniform civil code abruptly; it rather gives a latitude for the introduction of such a code in stages...since the Muslims and other minorities were not 'prepared to accept and work social reform,' enactment of an all embracing civil code could be lawfully deferred."
The passage of the Hindu Code Bills in the 1950s marked a turning point in the history of the Muslim Personal Law. Until this time, Muslim Personal Law had existed side by side with similar religious laws for Hindus and other religious groups. The Hindu Code Bills were a series of laws aimed at thoroughly secularising the Hindu community and bringing its laws up to modern times, which in essence meant the abolition of Hindu law and the enactment of laws based on western lines that enshrined the equality of men and women, and other progressive ideas. The Hindu Marriage Act of 1955 extended to the whole of India except the state of Jammu and Kashmir. The effect of the Hindu Marriage Act was to prohibit polygamy amongst Hindus and to increase the right of the divorced wife to maintenance or alimony. The act applied to everyone in India except Muslims, Christians, Parsees, and Jews. Since Jews are a very small minority and Parsees are as well, and since Christians were governed under an already modern or progressive law,[clarification needed] Muslims remained de facto the only large community with a distinct religious law that had not been reformed to reflect modern concepts.
The legal practice of excluding Muslims continued with the passage of the Dowry Prohibition Act of 1961 which specifically excluded "dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies". In 1973, on a debate over the revision of the Criminal Procedure Code, it was pointed out in regard to maintenance of divorced wives that in cases involving Muslims, the court should take note as to whether the woman had received maintenance under the Personal Law. For Muslims, this meant the period of idda or three months after the divorce. In essence, the parliament once again set aside Muslims, while the law would apply to other divorced women, giving them maintenance far in excess of three months. Shahida Lateed's comments on this period include the observation "after the passage of the Hindu Code Bill the legal inequality between the rights of Hindu men and women was eliminated, while the marginal inequality between the rights of Muslim women and men remained".
While the period 1950–1985 can be summed up as one where Muslim Personal Laws were exempted from legislation and they remained un-reformed, it can also be seen as a period where there were secular avenues opened to Muslims, the biggest of which was the passage of the Special Marriage Act, 1954. The idea behind this act was to give everyone in India the ability to marry outside the personal law, in what we would call a civil marriage. As usual the law applied to all of India, except Jammu and Kashmir. In many respects, the act was almost identical to the Hindu Marriage Act of 1955, which gives some idea as to how secularised the law regarding Hindus had become. The Special Marriage Act allowed Muslims to marry under it and thereby retain the protections, generally beneficial to Muslim women, that could not be found in the personal law. Under the act polygamy was illegal, and inheritance and succession would be governed by the Indian Succession Act, rather than the respective Muslim Personal Law. Divorce also would be governed by the secular law, and maintenance of a divorced wife would be along the lines set down in the civil law.
The Muslim leadership opposed this bill vehemently and the Jamiat al-Ulama claimed that "if a Muslim marries under the act of 1954, he commits a 'sin' and his marriage is unlawful in the eyes of Islam." By 1972, the community had gained enough political clout to cause a secular Adoption of Children Bill to be shelved permanently. For the Muslims, the period was one in which, although the religious leadership was not wholly satisfied with all the government's legislation, it did succeed in stalling reforms.
Personal Law under assault 1985-2005
The Shah Bano case led the Indian Supreme Court on 23 April 1985 to judge that the divorcee Shah Bano was entitled to maintenance under section 125 of the Criminal Procedure Code (CrPC). Bano was a 73-year old Muslim woman whose husband divorced her using the triple talaq whereby the husband has the right to unilaterally divorce his wife by saying "I divorce you" three times in three periods. When the husband stopped paying her maintenance after the time required by Muslim law, she petitioned the court claiming that the criminal code should apply to Muslims, and that she deserved more maintenance than she would be given under Muslim Personal Law. The court, perhaps anticipating a Muslim protest, then argued that even in the Quran a woman is entitled to maintenance due to Sura 2:241-242. In its judgment, the court claimed "These Ayats(verses) leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for, or to provide maintenance to, the divorced wife." The interesting point here is that the court not only felt it should rule that the criminal code applied to Muslims, but it also felt a need to interpret the Quran.
The response to the ruling in Muslim areas was prompt and reactionary. Protestors took to the streets, disturbances resulted, and Muslim leaders proclaimed that they would sacrifice 'everything' to protect their Personal Law. The government of Rajiv Gandhi, Indira's son, acted quickly, passing the Muslim Women Act in 1986, a law that essentially provided for maintenance for Muslim women outside the criminal code, thus ensuring that Muslim women were not protected under the constitutional right to equality, and that they could no longer have recourse to section 125 of the CrPC. The act was an improvement on the former divorce rights under the Shariat Act, or Muslim Personal Law that Shah Bano had found wanting. The Muslim Women's (Protection of Rights in Divorce) Act provided for the return of the mahr and the standard maintenance during the iddat period, and also provided that the:
- Subsection(1)Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage.
- Subsection (2)... the Magistrate may, by order direct the State of Wakf Board established under Section 9 of the Wakf Act, 1954, or under any other law for the time being in force in a State functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1).
Minority Rights Group International commented on the law that it "highlighted the disjunction between constitutional law premised on the principle of sexual equality and religious laws which discriminate on the basis of this very category." Shahida Lateef, in her Muslim Women in India, claimed that Muslim women's "prospects were dealt a blow by the ever vigilant conservatives, to whom Islam represents not a system of overall justice, of carefully crafted women's rights, but merely an opportunity to assert minority differentiation at the expense of women."
The Shah Bano case is still seen as a turning point in the question of Muslim Personal Law in India, for it proved that despite the Supreme Court's call for equality, the legislature would do everything in its power to keep the Personal Law off limits. The ideology behind this was one whereby non-Muslims claimed that Muslims must themselves change and reform their Personal Law and until the Muslim population of India and its spokesmen such as the All India Muslim Personal Law Board or the Jumiat al-Ulama called for change nothing would be done. At the same time, the Muslims saw their law as an essential part of their culture, a feeling which expressed itself during the colonial era. Any attempt to dismantle the personal law, the Muslims feared, would destroy Muslim culture on the subcontinent. The Bano case, however, also mobilised the right wing Hindu movements in their support, not necessarily of women's rights, but of a uniform civil code. Bipan Chandra comments in India After Independence that the issue was "complicated by the overall communal atmosphere in which issues of Muslim identity got entangled with the simpler issue of women's rights, and the Hindu communalist enthusiasm for Muslim women's rights often left women rights activists confused and helpless." Minority Rights Group International played the same theme when it claimed "The BJP appropriated the women's rights debate by aggressively campaigning for a Uniform Civil Code, which would replace Muslim Personal Law." The road from 1986 to the present has mirrored this basic struggle. The Right wing parties campaigning on behalf of Muslim Women has caused minority and women's groups to actually temper their anger over the discrimination of women in Muslim personal Law, and Muslim conservative groups have become more steadfast in its defence.
The 1986 law was tested in June 2000 when Shakila Parveen, whose husband divorced her using the triple talaq method: "One fine morning in 1993, he [my husband] came to me and pronounced talaq, talaq and talaq." Although Justice M.C. Manchanda in his 1973 text on Divorce Law in India had pronounced the use of the triple talaq as a "disapproved form", it was the same form used by the husband of Shah Bano and is considered an unjust divorce technique by women's groups, although it remains common. Manchanda comments "In this form, three pronouncements are made during a single period of purity, at one and the same or different times." Manchanda points out that the 'approved' form of Talaq includes "three successive pronouncements during three consecutive periods of purity." Shakila Parveen had been granted 800 rupees a month for her iddah (three Haydh/menstrual periods) in addition to her 2500rs mahr payment, which in many cases in India is not actually given to the wife at marriage, in violation of the intention of the Quran. Parveen petitioned the High Court of Calcutta under the Muslim Women's (Protection of Rights in Divorce) Act, 1986. In July 2000, Justice Basudev Panigrahi ruled that "A divorced Muslim woman is entitled to maintenance after contemplating her future needs and the maintenance is not limited only up to the iddat period. The phrase used in Section 3 (I) (A) of the Act, 1986 is reasonable and fair provision and maintenance to be made to see that the divorced woman get sufficient means of livelihood after divorce, and that she does not become destitute or is not thrown out on the street." The reasoning in this ruling has been applied in the courts of Bombay and Lucknow as well, and it appears as if the Muslim Women's Act, 1986 has in the long run accomplished what the supreme courts original ruling in 1985 had been, namely that Muslim women deserve maintenance outside their iddah period.
In addition to the rulings under the Muslim Women's Act, women's groups have challenged the Act's constitutionality since it appears to contradict the promise of sexual equality found in the Indian constitution. These petitions have not been taken up by the Supreme Court, probably due to the fear of disturbances it would cause among the Muslim community. In fact, in 1997, when one such petition seemed like it would be heard by the court, an article appeared in the press claiming Muslim "religion in danger". On another occasion, in 1994, a judge in Allahabad found the entire principle of triple talaq divorce unconstitutional. However, the ruling was shelved due to extrajudicial issues. The ruling appears to have been reinforced by a separate ruling by the Bombay high court in the case of Rahim Bi, where the triple talaq was found to be illegal.
This has been a quick survey of the rulings pertaining to the Muslim Personal Law since the 1985 Shah Bano case. The basic message is that slowly but surely the courts have chipped away at the most blatantly discriminatory pieces of Islamic Law. The Talaq divorce and divorced Muslim women's rights have come under legal re-evaluation. However, one major issue remains unchanged although not unchallenged: the issue of polygamy. No part of Sharia law is more discriminatory in its nature to women than polygamy and at the same time it is the hardest to change since it is specifically spelled out in the Quran. In India, the law on polygamy is ruthlessly loose because it does not require the man to prove in any way that he can maintain more than one wife. Thus, there is unchecked access of even the poorest men to have more than one wife. The avenues of assault on Polygamy in India have been threefold. First, there are the relatively infrequent complaints by Muslim women petitioning the court over a specific problem with their husband's polygamous choices. Second, there are many groups and progressives who have argued that Muslim Personal Law should be reformed along the guidelines of Tunisia or Turkey. The last avenue of attack has been the calls for a Uniform Civil Code, and a doing away with the Muslim Personal Law, since it appears to be inflexible.
Under the headline "End Polygamy, Muslim woman pleas with SC (Supreme Court)" the Times of India reported in 2001 that the women's lawyer Lily Thomas had argued "The custom and usage of polygamy and extra-judicial divorce allowed to be practiced by Muslims is a denial of equality, personal liberty and human rights guaranteed to all citizens by Articles 14, 15 and 21 of the Constitution... [she asked the court to declare that] polygamy practiced by Muslim community is illegal, unconstitutional and void to be simultaneously substituted by monogamy." Despite the pleas, the court did not reverse the Muslim Personal Law and its acceptance of Polygamy.
In 1995, the Supreme Court of India was asked to review four cases where Hindu men had converted to Islam to marry a second wife. The case is Sarala Mudgal v. Union of India, AIR 1995 SC 153, In each case, the first marriage had been solemnised under the Hindu Marriage Act of 1954. Justice Kuldip Singh harkened back to a 1945 case where the court had declared "If this were an Islamic country, where the Mohammedan Law was applied to all cases where one party was a Mohammedan, it might be that Plaintiff would be entitled to the declaration prayed for. But this is not a Mohammedan country; and the Mohammedan Law is not the Law of the Land." First, Justice Singh pointed out that "In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties." Secondly, he mentioned "that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so." Concluding that "Since monogamy is the law for Hindus and the Muslim law permits as many as four wives in India, errant Hindu husband embraces Islam to circumvent the provisions of the Hindu law and to escape from penal consequences."
Justice Kuldip Singh also touched on the importance of a Uniform Civil Code for India 20 times. Singh was clear in his call for a Uniform Civil Code when he remarked that "The successive Governments till date have been wholly remiss in their duty of implementing the constitutional mandate under Article 44." In 2003, the Supreme Court in John Vallamattam V. Union of India, AIR 2003 SC 2902, under Chief Justice V.N. Khare made a similar call in his remark "We would like to state that Article 44 provides that the State shall endeavor to secure for all citizens a uniform civil code throughout the territory of India. It is a matter of great regrets that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies." The reason that Article 44 had not been enacted can best be summed up by Indian Prime Minister Jawaharlal Nehru who declared in 1954 "I do not think that at the present moment the time is ripe in India for me to try to push it through." Although, post colonial India has been governed by the Congress party for much of its period, and that his daughter and grandson have held the Prime Ministers post for 35 of India's 58 years of independence, the insensitivity of Nehru's successors did so little to tamper with India's Muslim Personal Law.
The continuing controversy of Article 44 of the Indian constitution and its calls for a Uniform Civil Code have not receded over time, nor has there been any attempt to amend the constitution. The basic question has been whether Article 25 of the same constitution which guarantees "right to freedom of conscience and free professions, practice and propagation of religion."
The Shiv Sena party, which governed the Indian state of Maharashtra in the mid-1990s, claimed it wanted to introduce a Uniform Civil Code in 1995 but did not pass such a bill. Some Muslim leaders viewed the attempt as an "attempt to destroy Muslim Identity." In the small state of Goa, a civil code based on the old Portuguese Family Laws exists, and Muslim Personal Law is prohibited. This is a result of the liberation of Goa in 1961 by India, when the Indian government promised the people that their laws would be left intact. A knowledgeable person on Goa law, Margaret Mascarenhas writes that "For the most part, the civil laws currently in force in Goa that pertain to marriage, divorce, protection of children and succession are non-discriminatory in terms of caste, ethnicity or gender." Despite calls in a 1979 conference for the extension of a Uniform Code based on the Goa law to the whole of India, the state of Goa has remained the exception to the rule. It is worth mentioning that in 1978 India amended the Child Marriage Restraint Act to prohibit marriage of a man who is less than 21 years of age and a woman who is younger than 18 years of age. The amended law creates a slight problem, for according to the Indian Contract act of 1972 a man may contract marriage at 18. The 1978 revision of the Child Marriage Law over-rides the Contract Act.
In 1998 BJP and associated partied took up Uniform Civil Code as a plank, and while it is hard to pin down exactly what the intention was, an interview with Mukhtar Abbas, the party spokesman in Delhi, it became clear that the desire was to overhaul or abolition of Muslim Personal Law. Most likely, this would take the form of following through with Article 44's mandate to create a uniform civil code. The BJP has seen a steady increase in its share of the vote and held the Prime Minister post in 1996 and again from 1998–2004.
Towards a Uniform Civil Code
Those wishing to reform the Muslim Personal Law have often cited Muslim countries as examples that such reform is possible. Terence Farias, in his chapter The Development of Islamic Law points out that the 1961 Muslim Family Law Ordinance of Pakistan "makes it obligatory for a man who desires to take a second wife to obtain a written permission from a government appointed Arbitration Council." The interesting point regarding Pakistan is that until 1947 both India and Pakistan had governed Muslims under the Shariat Act of 1937. However, by 1961 Pakistan, a Muslim country, had actually reformed its Muslim Law more than India had and this remains true today. Mushir Al-Huq and Tahir Mahmood, both Muslim writers on Islamic Law in India, have pointed out the reforms meted out in Tunisia and Turkey where Polygamy was abolished. Iran, South Yemen, and Singapore all reformed their Muslim laws in the 1970s, although Iran appears to have backslid in this respect. In the end the argument is quite clear. If Muslim countries can reform Muslim Personal Law, and if western democracies have fully secular systems, then why are Indian Muslims living under laws passed in the 1930s?
Most writings on the subject point to the small number of Muslim intelligentsia such as Tahir Mahmood who are in favour of either doing away with the Personal Law or reforming it. However, the vast majority of Muslims led by the Jumiat al-Ulama and other orthodox Muslim groups have fought tooth and nail against any change to the Personal Law. Mushir Ul-Haq in his treatise Islam in Secular India identifies three groups, the fundamentalist, Moderate, and Radical. In the Radical camp are those who would do away with the Personal Law in total, and replace it with a Uniform Code. Farias describes them as "a very small minority of Muslims...mostly western trained." In the Modernist camp, we find men, such as A.A. Fyzee, who believe that Sharia law is malleable and can be changed, given the consent of the community or ijma. The Fundamentalists or 'Orthodox', as previously mentioned, rely on the arguments of Mushir Ul-Huq who argues in Islam in Secular India that the Laws of countries such as Tunisia and Turkey or Iraq were "thrust down their throats by authoritarian rulers" and that "there is hardly any Muslim country which has so far denied the authority of the sources of Shariah."
Despite these reasoned arguments, the writing on the subject dates mostly from the 1970s. Mahmood published his work Muslim Personal Law in 1977 while Ul-Huq wrote his in 1972. The more modern sources are mostly collections of articles, such as The Musulmaans of the Subcontinent published in 1980 or The Muslims of India published in 1988. The debate in India itself seems to have gone the way of the secularists in this respect and the recent rulings by the Supreme Court. Calls for a Uniform Code have not witnessed the protests and alarms that took place following the Shah Bano case in 1985. It is quite possible that the Muslim community sees a Uniform code as a fait accompli after almost 60 years of Indian independence.
Personal Law has three options open to it. It may stay as it is, intact and dating primarily from the Shariat Act of 1937, but in many respects resembling the Anglo-Muhammadan law of the 19th century. The law may be reformed but since this would require activism from the conservative Muslim organisations, it is unlikely, as they have expressed little willingness to do so, and in fact have fought reforms by claiming that Muslim culture in India will be destroyed by them. The last option, that a Uniform Code will be passed seems increasingly likely. However, given that people in the 1970s were saying the same thing and Shah Bano got their hopes up in 1985, it may be decades away. The major legal themes of the reformists focus around polygamy, women's rights to Divorce and women's rights to maintenance upon divorce. The feeling is that polygamy should be banned outright, that women should have an easier time petitioning for a divorce, that husbands should not be able to use the triple talaq method of divorce, and that maintenance be granted as it is with non-Muslims. Basically, what they are arguing is for the application of the Special Marriage Act of 1954 to be applied to Muslims, rather than it being optional for people to marry under the act.
In the case argued by Lily Thomas before the Supreme Court, she drew attention to the many 'extrajudicial' methods of divorce allowed Muslims under the Personal Law. These include the previously mentioned talaq form which only men may perform. The ila form takes place when the Muslim man vows to abstain from intercourse for four months. Zihar takes its name from the word 'back' and literally means when the husband decides that his wife's back is comparable to the back of his mother thus making it a prohibited relationship. The divorce by mutual consent or Khula takes place when the wife pays an agreed upon sum of money to the husband in exchange for his releasing her from marriage. As noted, all these methods are at the behest of the husband, and they are 'extrajudicial' because they do not involve the court system the way a petition by a Muslim woman under the Dissolution of Muslim Marriages Act of 1939 would. It is worth pointing out that despite all the legal wrangling many Muslim women in India are not even aware of their rights, and many Muslim marriages that take place are done in direct violation not only of Indian law but of Sharia law as well. In the book Divorce and Muslim Women the author did several studies, focusing on the practices in West Bengal.
In the city of Murshidabad, it was found that in one survey only 44.83% of parents got their daughters consent to marriage. In the majority of these cases, the daughters were in their teens or sometimes, as young as 10. This is, after all, India where arranged marriages are still common and marriages of underage girls is not uncommon. We can see in these cases that the old problem of local custom is simply trumping Islamic law, a problem that had led to the passing of the Shariat law of 1938 in the first place. In the case of dowry, not mahr, it was found that a majority of the Muslims are also paying dowry, in direct violation of the Muslim law. In the case of mahr, it was usually fixed at such a high price that the men were not paying much if any to the wife at time of marriage. Rather, it was kept as 'security' by the husband. Should divorce take place, the wife could demand the return of her mahr. In the case of divorce, it was found that not only were men not waiting the required three months after pronouncing talaq, but that the majority of divorces were taking place in front of 'local people' not Qazis (Muslim judges) or before the courts. Dr. Syed Abdul Hafiz Moinuddin concluded his study of West Bengali Muslims by writing "Divorced/separated Muslim women in West Bengal are living a miserable life...The gap between theory and practice is also very evident...local people usually are not aware of the Quranic principles of talaq."
Shahida Lateef, in her own study of Muslim women, made the same point, stressing that Muslim women in many cases were not aware of their rights. Liberal minded groups such as Minority Rights Group International (MRGI) have actually done Muslim women a disservice by blaming the discrimination first on the Indian government, then blaming the right wing parties for politicising the debate. MRGI claims "the Indian government's rejection of the CEDAW clauses with reference to personal laws highlights its lack of commitment to promoting women rights in the family and society, and a violation of women's constitutional rights to equality." Always afraid of appearing too 'racist', the same publication concludes "Nor can their[Muslim women] status be ascribed to some essential Islamic feature."
Therefore, according to groups such as this, it is the BJP that is to blame for "its inherent link between politics and religion has threatened India's secular fabric." Furthermore, "Right wing ascendancy with its authoritarianism...and its views on women, bodes ill for all Indian women." The position of women's rights activists, especially those from The West is clear. The right wing parties, who campaign for equal rights, are unacceptable whereas the Congress party which has done little in 50 years of leadership to reform Muslim Law is called upon to "adhere to international human rights standards and its own constitutional provisions safeguarding the interests of women."
The 'father of the Indian constitution', Dr. Ambedkar, speaking about Article 44 and its calls for a uniform code, observed "It is perfectly possible that the future Parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary." Dr. Ambedkar was clear in his feeling that the state had the power to legislate over the Personal Law but he also cautioned "No government can exercise its power in such a manner as to provoke the Muslim community to rise in rebellion."
There is an inherent contradiction in India, a problem that has not been solved. Among all the problems of the vast diverse, overcrowded country lies the inherent problem any country deals with when it has a significant Muslim minority, namely calls by that community for special rights. In India, the experiment of personal laws for various groups has been a failure in achieving equal treatment for all citizens. The country legislated away all of the personal laws, with the exception of laws applying to one of its minority groups. Other minorities were brought into line along Western standards of secular and equal rights. However, out of fears of creating widespread rioting and rebellion, the government shelved any reforms for the Muslim community, leaving it in a state of coagulation dating from the 1930s. The British had done the opposite. In implementing the Mohammedan law, the British were actually raising the standards of many of the customary laws of Indian Muslims. The Indian post-colonial government has done the opposite. It has refused to find a legal route that would enforce equal rights for 50 million of its Muslim female citizens.
Contrary to the claims made by Islamists, the Uniform Civil code is supported by many people outside the Hindu Nationalist wing, such as rationalists and humanists like the Federation of Indian Rationalist Associations, who are opposed to Hindu Nationalism.
Proponents of the Uniform Civil Code argue on two lines:
- The code creates equality. While other personal laws have undergone reform, the Muslim law has not. The Hindu Nationalists contend that it makes little sense to allow Muslims, for example, to marry more than once, but prosecute Hindus or Christians for doing the same. They demand a uniform civil code for all religions.
- Gender equality. Several[which?] liberals and women's groups have argued that the uniform civil code gives women more rights[how?].
Shah Bano case
The amendment of the Indian law by Rajiv Gandhi to overturn a Supreme Court judgment under pressure from the conservative Muslims incensed the Hindutva supporters. The amended laws, more in tune with the Shariat, reduced the rights that divorced Muslim women previously had.
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