Uniform civil code
Encyclopedia
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.
This term is used in India
where the Constitution of India
attempts to set out a uniform civil code for its citizens as a Directive Principle
, or a goal to be achieved.
, most family law
s are determined by the religion
of the parties concerned. Hindu
s, Sikh
s, 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.
The Lex Loci Report of October 1840 emphasized the importance and necessity of uniformity in codification of Indian law relating to crimes, evidences, contract etc., but it recommended that personal law of Hindu
s and Muslim
s 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 passes 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 Sunnies
, Shias, Ismailis, Bohras
, Khojas and unorthodox Ahmadiyas. There are four different schools among Sunnies. There are also Kutchi Memon
s, who retain to some extent the private laws of the Hindus. Most of the legislations of 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 christian
s there Indian Christian Marriage Act was enacted. But this was not a comprehensive act.
Personal Law of parsi
s is partly codified but the machinery for dealing with divorce and other matrimonial reliefs are not proper.
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." The feeling that India might disintegrate if not given a benign constitution was further accelerated by the dissolution of the princely states, some of which such as Hyderabad
had to be taken by force. It is only in this atmosphere that one can judge the Indian constitution and its views on minority rights.
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 recognizes 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 favors 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 recognized 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 secularizing 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 affect 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, 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 secularized 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.
in the 1970s and early 80s.
The rise of the Bharatiya Janata Party
(BJP), a right wing conglomerate that had allies in the Hindu Nationalist RSS
and Shiv Sena
organizations, has had a major impact on the question of a Uniform Civil Code
to replace the Personal Law. Its platform in 1999 regarding religion stated:
"36. We are committed to establishing a civilized, humane and just civil order; that which does not discriminate on grounds of caste, religion, class, colour, race or sex. We will truly and genuinely uphold and practice the concept of secularism consistent with the Indian tradition of 'Sarva panth samadara' (equal respect for all faiths) and on the basis of equality of all. We are committed to the economic, social and educational development of the minorities and will take effective steps in this regard."
The platform is a bit nebulous, and it is hard to pin down exactly what the intention is, but from an interview with Mukhtar Abbas, the party spokesman in Delhi, it is clear that the goal is the 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. With politics as a background, we can view the changes and attempted reforms of Muslim Personal Law in the period.
The case of Shah Bano vs. Mohammad Ahmad Khan led the Indian Supreme Court on April 23, 1985 to judge that the divorcee Shah Bano was entitled to maintenance under section 125 of the Code of Criminal Procedure. 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's (Protection of Rights in Divorce) 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 Criminal Code. The act was an improvement on the former divorce rights under the Shariat Act, or Muslim Personal Law that Ms. 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:
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 high courts 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 mobilized 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 defense.
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 Acts 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 reevaluation. 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 in order 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 solemnized 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." Justice Singh's ruling was quite fascinating in a number of respects. First, he 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."
In his rather lengthy ruling, he 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." Given that post colonial India has been governed by the Congress party of Nehru for much of its existence, and that his daughter and grandson have held the Prime Ministers post for 35 of India's 58 years of independence, it becomes easier to understand why the party of Nehru 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 overrides the Contract Act.
, 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 favor 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 organizations, 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 politicizing 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.http://www.accessmylibrary.com/coms2/summary_0286-20888777_ITM
, a pilgrimage to Makkah and subsidies for their religious schools (Madrassas). On one hand, Government of India provides subsidy to Muslim to perform Haj; on other hand, Government of India bound them to fly through government airlines and also gets subsidy from Saudi Arabia
for services providing to Indian Muslims, whereas Hindus claim they are accorded no similar privilege for their own pilgrimages or religious schools by the Government of India.
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.
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
Code
Code
A code is a rule for converting a piece of information into another form or representation , not necessarily of the same type....
in India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
. A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
, caste
Caste
Caste is an elaborate and complex social system that combines elements of endogamy, occupation, culture, social class, tribal affiliation and political power. It should not be confused with race or social class, e.g. members of different castes in one society may belong to the same race, as in India...
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.
This term is used in India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
where the Constitution of India
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
attempts to set out a uniform civil code for its citizens as a Directive Principle
Directive Principles in India
The Directive Principles of State Policy are guidelines to the central and state governments of India, to be kept in mind while framing laws and policies...
, or a goal to be achieved.
Personal Laws
In IndiaIndia
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
, most family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
s are determined by the religion
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
of the parties concerned. Hindu
Hindu
Hindu refers to an identity associated with the philosophical, religious and cultural systems that are indigenous to the Indian subcontinent. As used in the Constitution of India, the word "Hindu" is also attributed to all persons professing any Indian religion...
s, Sikh
Sikh
A Sikh is a follower of Sikhism. It primarily originated in the 15th century in the Punjab region of South Asia. The term "Sikh" has its origin in Sanskrit term शिष्य , meaning "disciple, student" or शिक्ष , meaning "instruction"...
s, Jains and Buddhists come under Hindu law
Hindu law
Hindu law in its current usage refers to the system of personal laws applied to Hindus, especially in India...
, whereas Muslims and Christians have their own laws. Muslim law is based on the Sharia
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
. The personal laws of other religious communities were codified by an Act
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
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.
History
This debate on Uniform Civil Code dates back to the colonial period.The Lex Loci Report of October 1840 emphasized the importance and necessity of uniformity in codification of Indian law relating to crimes, evidences, contract etc., but it recommended that personal law of Hindu
Hindu
Hindu refers to an identity associated with the philosophical, religious and cultural systems that are indigenous to the Indian subcontinent. As used in the Constitution of India, the word "Hindu" is also attributed to all persons professing any Indian religion...
s and Muslim
Muslim
A Muslim, also spelled Moslem, is an adherent of Islam, a monotheistic, Abrahamic religion based on the Quran, which Muslims consider the verbatim word of God as revealed to prophet Muhammad. "Muslim" is the Arabic term for "submitter" .Muslims believe that God is one and incomparable...
s should be kept outside such codification.
In Hindu law there are two principal schools, Dayabhaga
Dayabhaga
The Dāyabhāga is a Hindu law treatise written by Jīmūtavāhana which primarily focuses on inheritance procedure. The digest is most notable for being based on Śāstric doctrines differing from those more commonly used in the , resulting in several basic contradictions between the texts...
and Mitakshara
Mitakshara
The ' is a on the Yajnavalkya Smriti best known for its theory of "inheritance by birth." It was written by Vijñāneśvara, a scholar in the Western Chalukya court in the late eleventh and early twelfth century. Along with the Dāyabhāga, it was considered one of the main authorities on Hindu Law...
. 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 Caste Disabilities Removal Act, 1850
The Caste Disabilities Removal Act, 1850, also Act XXI of 1850, was a legislation passed in British India under East India Company rule, that abolished all laws affecting the rights of persons converting to another religion or caste. Under ancient Hindu law a person converting from Hinduism to...
, 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 passes in 1955 and 1956, to regulate marriage succession, guardianship and adoption. These were the Hindu Marriage Act, 1955
Hindu Marriage Act
The Hindu Marriage Act was established in 1955 as part of the Hindu Code Bills. Three other important acts were also created during this time and they include the Hindu Succession Act , the Hindu Minority and Guardianship Act , and the Hindu Adoptions and Maintenance Act...
, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956
Hindu Minority and Guardianship Act
The Hindu Minority and Guardianship Act was established in 1956 as part of the Hindu Code Bills. Three other important acts were also created during this time and they include the Hindu Marriage Act , the Hindu Succession Act , and the Hindu Adoptions and Maintenance Act...
, finally the Hindu Adoptions and Maintenance Act, 1956
Hindu Adoptions and Maintenance Act (1956)
The Hindu Adoptions and Maintenance Act was enacted in India in 1956 as part of the Hindu Code Bills. The other legislations enacted during this time include the Hindu Marriage Act , the Hindu Succession Act , and the Hindu Minority and Guardianship Act...
.
Among Muslims there are Sunnies
Sunni Islam
Sunni Islam is the largest branch of Islam. Sunni Muslims are referred to in Arabic as ʾAhl ūs-Sunnah wa āl-Ǧamāʿah or ʾAhl ūs-Sunnah for short; in English, they are known as Sunni Muslims, Sunnis or Sunnites....
, Shias, Ismailis, Bohras
Mustaali
The Musta‘lī Ismā'īlī Muslims are so named because they accept Al-Musta'li as the nineteenth Fatimid caliph and legitimate successor to his father, al-Mustansir...
, Khojas and unorthodox Ahmadiyas. There are four different schools among Sunnies. There are also Kutchi Memon
Kutchi Memon
Kutchi Memons or Cutchi Memons are a part of larger Memons, a Muslim community of Pakistan and India, who speak the Kutchi language and are original residents of Kutch region....
s, who retain to some extent the private laws of the Hindus. Most of the legislations of 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
Indian Evidence Act
The Indian Evidence Act, originally passed by the British parliament in 1872, contains a set of rules and allied issues governing admissibility of any evidence in the Indian courts of law. Before Indian Evidence Act,India was subjected to Personal Laws as correctly may be said that of Muslims and...
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 christian
Christian
A Christian is a person who adheres to Christianity, an Abrahamic, monotheistic religion based on the life and teachings of Jesus of Nazareth as recorded in the Canonical gospels and the letters of the New Testament...
s there Indian Christian Marriage Act was enacted. But this was not a comprehensive act.
Personal Law of parsi
Parsi
Parsi or Parsee refers to a member of the larger of the two Zoroastrian communities in South Asia, the other being the Irani community....
s is partly codified but the machinery for dealing with divorce and other matrimonial reliefs are not proper.
1950-1985
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. This was a rational concern coming on the backs of the events of 1948 whereby Gandhi had been assassinated over communal issues. Syed Abdul LatifAbdul Latif
Abdul Latif is a singer, musician, and lyricist of Bangladesh. He is the writer of songs like Ora Amar Mukher Kotha, Ami dam diye kinechi Bangla. He was the first arranger of an influential song of the Bengali language movement, "Amar Bhaier Rokte Rangano".-Biography:After matriculating from...
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." The feeling that India might disintegrate if not given a benign constitution was further accelerated by the dissolution of the princely states, some of which such as Hyderabad
Hyderabad State
-After Indian independence :When India gained independence in 1947 and Pakistan came into existence in 1947, the British left the local rulers of the princely states the choice of whether to join one of the new dominions or to remain independent...
had to be taken by force. It is only in this atmosphere that one can judge the Indian constitution and its views on minority rights.
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 recognizes 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 favors 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 recognized 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
Tahir Mahmood
Dr. Tahir Mahmood, Member, Law Commission of India, is a renowned jurist specializing in Islamic Law, Hindu Law, Religion and Law and Law Relating to Minorities. He has been Dean, Faculty of Law, University of Delhi, Chairman, National Commission for Minorities, Member, National Human Rights...
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
Hindu code bills
Following independence for India, the postcolonial government led by Jawaharlal Nehru completed the codification and reform of Hindu Personal law, a process that had been begun by the British. According to the British policy of noninterference, reform of personal law should have arisen from a...
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 secularizing 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
Hindu Marriage Act
The Hindu Marriage Act was established in 1955 as part of the Hindu Code Bills. Three other important acts were also created during this time and they include the Hindu Succession Act , the Hindu Minority and Guardianship Act , and the Hindu Adoptions and Maintenance Act...
of 1955 extended to the whole of India except the state of Jammu and Kashmir. The affect 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, 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
Dowry law in India
Payment of a dowry, gift—often financial, has a long history in many parts of the world. In India, the payment of a dowry was prohibited in 1961 under Indian civil law and subsequently by Sections 304B and 498a of the Indian Penal Code were enacted to make it easier for the wife to seek...
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 secularized 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 development of Muslim Personal Law did not take place in a vacuum. In order to comprehend how Article 44 of the Constitution and its mandate for a uniform code was ignored, it is necessary to grasp the developments in Indian politics. India is approximately 12% Muslim and has been since independence. Thus, in 1973, India had about 61 million Muslims. Today that figure is estimated to be 135 million. As the largest minority group, India's Muslims form an integral part of the political system in a democracy with many political parties. The government of India, which was dominated by the Congress party until the 1990s, has pursued a policy of appeasement towards India's Muslims , hoping to co-opt them in political support . Since the Congress Party is leftist and Muslims in India have identified leftist parties with their best interests, there has been a symbiotic relationship between India's Muslims and what for the most part has been India's ruling elite. The names of the Congress Party's leaders are familiar, Nehru in the 1950s and Indira GandhiIndira Gandhi
Indira Priyadarshini Gandhara was an Indian politician who served as the third Prime Minister of India for three consecutive terms and a fourth term . She was assassinated by Sikh extremists...
in the 1970s and early 80s.
The rise of the Bharatiya Janata Party
Bharatiya Janata Party
The Bharatiya Janata Party ,; translation: Indian People's Party) is one of the two major political parties in India, the other being the Indian National Congress. Established in 1980, it is India's second largest political party in terms of representation in the parliament...
(BJP), a right wing conglomerate that had allies in the Hindu Nationalist RSS
RSS
-Mathematics:* Root-sum-square, the square root of the sum of the squares of the elements of a data set* Residual sum of squares in statistics-Technology:* RSS , "Really Simple Syndication" or "Rich Site Summary", a family of web feed formats...
and Shiv Sena
Shiv Sena
Shiv Sena , is a political party in India founded on 19 June 1966 by Balasaheb Thackeray. It is currently headed by Thackeray's son, Uddhav Thackeray...
organizations, has had a major impact on the question of a Uniform Civil Code
Uniform civil code
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...
to replace the Personal Law. Its platform in 1999 regarding religion stated:
"36. We are committed to establishing a civilized, humane and just civil order; that which does not discriminate on grounds of caste, religion, class, colour, race or sex. We will truly and genuinely uphold and practice the concept of secularism consistent with the Indian tradition of 'Sarva panth samadara' (equal respect for all faiths) and on the basis of equality of all. We are committed to the economic, social and educational development of the minorities and will take effective steps in this regard."
The platform is a bit nebulous, and it is hard to pin down exactly what the intention is, but from an interview with Mukhtar Abbas, the party spokesman in Delhi, it is clear that the goal is the 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. With politics as a background, we can view the changes and attempted reforms of Muslim Personal Law in the period.
The case of Shah Bano vs. Mohammad Ahmad Khan led the Indian Supreme Court on April 23, 1985 to judge that the divorcee Shah Bano was entitled to maintenance under section 125 of the Code of Criminal Procedure. 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
Ayats
Ayats is the trading name of Carrocerías Ayats SA, a Spain-based coachbuilder. The company constructs a range of coach bodies on a variety of chassis, and also manufacture their own integral products. Their products are used throughout Europe. The company was established in 1905 by Mr...
(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
Rajiv Gandhi
Rajiv Ratna Gandhi was the sixth Prime Minister of India . He took office after his mother's assassination on 31 October 1984; he himself was assassinated on 21 May 1991. He became the youngest Prime Minister of India when he took office at the age of 40.Rajiv Gandhi was the elder son of Indira...
, Indira's son, acted quickly, passing the Muslim Women's (Protection of Rights in Divorce) 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 Criminal Code. The act was an improvement on the former divorce rights under the Shariat Act, or Muslim Personal Law that Ms. Bano had found wanting. The Muslim Women's (Protection of Rights in Divorce) Act provided for the return of the mahr
Mahr
In Islam, mahr is an amount of money paid by the groom to the bride at the time of marriage which she can spend as she wishes. The English concept of "dower", the gift of funds to the wife in the event she becomes widowed, closely approximates mahr. The terms "dowry" and "bride price" are...
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
Minority Rights Group International
Minority Rights Group International is an organisation founded with the objective of promoting respect for the human rights of ethnic, religious and linguistic minorities and indigenous peoples around the world...
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 high courts 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 mobilized 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 defense.
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 Acts 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 reevaluation. 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
Tunisia
Tunisia , officially the Tunisian RepublicThe long name of Tunisia in other languages used in the country is: , is the northernmost country in Africa. It is a Maghreb country and is bordered by Algeria to the west, Libya to the southeast, and the Mediterranean Sea to the north and east. Its area...
or Turkey
Turkey
Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...
. 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
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
was asked to review four cases where Hindu men had converted to Islam in order 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 solemnized 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." Justice Singh's ruling was quite fascinating in a number of respects. First, he 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."
In his rather lengthy ruling, he 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
Jawaharlal Nehru
Jawaharlal Nehru , often referred to with the epithet of Panditji, was an Indian statesman who became the first Prime Minister of independent India and became noted for his “neutralist” policies in foreign affairs. He was also one of the principal leaders of India’s independence movement in the...
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." Given that post colonial India has been governed by the Congress party of Nehru for much of its existence, and that his daughter and grandson have held the Prime Ministers post for 35 of India's 58 years of independence, it becomes easier to understand why the party of Nehru 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
Goa
Goa , a former Portuguese colony, is India's smallest state by area and the fourth smallest by population. Located in South West India in the region known as the Konkan, it is bounded by the state of Maharashtra to the north, and by Karnataka to the east and south, while the Arabian Sea forms its...
, a civil code
Goa civil code
The Goa Civil Code, also called the Goa Family Law, is the set of civil laws that governs the residents of the Indian state of Goa. In India, as a whole, there are religion-specific civil codes that separately govern adherents of different religions...
based on the old Portuguese
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
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 overrides the Contract Act.
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 MahmoodTahir Mahmood
Dr. Tahir Mahmood, Member, Law Commission of India, is a renowned jurist specializing in Islamic Law, Hindu Law, Religion and Law and Law Relating to Minorities. He has been Dean, Faculty of Law, University of Delhi, Chairman, National Commission for Minorities, Member, National Human Rights...
, both Muslim writers on Islamic Law in India, have pointed out the reforms meted out in Tunisia and Turkey where Polygamy was abolished. Iran
Iran
Iran , officially the Islamic Republic of Iran , is a country in Southern and Western Asia. The name "Iran" has been in use natively since the Sassanian era and came into use internationally in 1935, before which the country was known to the Western world as Persia...
, South Yemen, and Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
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 favor 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
Iraq
Iraq ; officially the Republic of Iraq is a country in Western Asia spanning most of the northwestern end of the Zagros mountain range, the eastern part of the Syrian Desert and the northern part of the Arabian Desert....
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 organizations, 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
West Bengal
West Bengal is a state in the eastern region of India and is the nation's fourth-most populous. It is also the seventh-most populous sub-national entity in the world, with over 91 million inhabitants. A major agricultural producer, West Bengal is the sixth-largest contributor to India's GDP...
.
In the city of Murshidabad
Murshidabad
Murshidabad is a city in Murshidabad district of West Bengal state in India. The city of Murshidabad is located on the southern bank of the Bhagirathi, a distributary of the Ganges River. It was the capital of undivided Bengal during the Mughal rule. Nawabs of Bengal used to rule Bengal from this...
, 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
Minority Rights Group International
Minority Rights Group International is an organisation founded with the objective of promoting respect for the human rights of ethnic, religious and linguistic minorities and indigenous peoples around the world...
(MRGI) have actually done Muslim women a disservice by blaming the discrimination first on the Indian government, then blaming the right wing parties for politicizing 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
Federation of Indian Rationalist Associations
Federation of Indian Rationalist Associations is an umbrella body of more than 75 rationalist, atheist, skeptic, secularist and science organisations in India...
, who are opposed to Hindu Nationalism.http://www.accessmylibrary.com/coms2/summary_0286-20888777_ITM
Controversy
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 equalityGender equalityGender equality is the goal of the equality of the genders, stemming from a belief in the injustice of myriad forms of gender inequality.- Concept :...
. Several liberals and women's groups have argued that the uniform civil code gives women more rights.
Subsidies
Muslims are also funded for the HajjHajj
The Hajj is the pilgrimage to Mecca, Saudi Arabia. It is one of the largest pilgrimages in the world, and is the fifth pillar of Islam, a religious duty that must be carried out at least once in their lifetime by every able-bodied Muslim who can afford to do so...
, a pilgrimage to Makkah and subsidies for their religious schools (Madrassas). On one hand, Government of India provides subsidy to Muslim to perform Haj; on other hand, Government of India bound them to fly through government airlines and also gets subsidy from Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
for services providing to Indian Muslims, whereas Hindus claim they are accorded no similar privilege for their own pilgrimages or religious schools by the Government of India.
Shah Bano caseShah Bano caseThe Shah Bano case was a controversial divorce lawsuit in India, in which Shah Bano, a 62 year old Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978 and was subsequently denied alimony...
The amendment of the Indian law by Rajiv GandhiRajiv Gandhi
Rajiv Ratna Gandhi was the sixth Prime Minister of India . He took office after his mother's assassination on 31 October 1984; he himself was assassinated on 21 May 1991. He became the youngest Prime Minister of India when he took office at the age of 40.Rajiv Gandhi was the elder son of Indira...
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.