Download Muslim Personal Law

Muslim Personal Law,
Uniform Civil Code and Judicial
Activism- A Critical Study
SUMMARY
THESIS SUBMITTED TO THE
UNIVERSITY OF LUCKNOW
FOR THE AWARD OF DEGREE OF
DOCTOR OF PHILOSOPHY
Supervisor :
Dr. Mohd. Ahmad
Submitted By :
Prabodh Kumar Garg
Associate Professor
Faculty of Law,
University of Lucknow, Lucknow
Research Scholar
Faculty of Law,
University of Lucknow,
Lucknow
FACULTY OF LAW
UNIVERSITY OF LUCKNOW,
LUCKNOW, U.P. (INDIA)
2014
"Muslim Personal Law, Uniform Civil Code & Judicial
Activism: A Critical Study"
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
(citizen as well as non-citizen) irrespective of their religion, race,
caste, sex, place of birth or any of these. Article 44 of the
Constitution legislate a commitment to the gradual establishment of
legal uniformity in India, the aim being that the state "shall
endeavour to secure for the citizens a uniform civil code throughout
the territory of India." This directive is considered a threat by
elements of religious minority communities, who continue to be
governed by their own personal laws in family matters, as applied
within the superstructure of the India Legal System.
The question of Uniform Civil Code is a very-very sensitive as
well as subjective and diversified issue considering the fact that
India is a country which has a multifarious race, caste and
community. The law is relating to marriage, divorce, maintenance,
guardianship and succession governing the Hindus, Muslims and
Christians etc., is different and varies from one religion to other.
There are different laws like the Hindu Marriage Act; the Hindu
Succession Act; the Hindu Minority and Guardian ship Act, the
Hindu Adoption and Maintenance Act governing the personal
matters of Hindus. The Shariat Act, The Dissolution of Muslim
Marriage Act and the Muslim Women (protection of Rights on
Divorce) Act etc., which are based on the tenets of Holy Quran,
govern the personal matters of Muslims. Similarly the Indian
Christians are governed by the Indian Christian Marriage Act, the
Indian Divorce Act and the Cochin Christian Succession Act etc.
Parsis are governed by a different set of laws Thus it is clear that
there is no uniformity in all personal laws as they confer unequal
rights depending on the religion and the gender. The common areas
covered by a civil code include laws related to acquisitions and
administration of property, marriage, divorce and adoption. This
2
term is used in India where the Constitution of India attempts to set
a uniform civil code for its citizens as a Directive Principle, or a goal
to be achieved.1
In the early Hindu history, religion came to be closely
associated with the growth of law, for the simple reason that men
feared God before they gave authority to kings. Divine sanction,
rather than kingly edicts was more powerful in enforcing such laws.
The laws, the people followed could be called laws of nature being
based on custom, ascertained by experience as being the best for
community in the long run. In such circumstances it was natural to
believe that here existed some supernatural being be it God or a
deity at the back of it all. The early Hindu law was at the stage
when religion was the governing force and consequently the priest
class or the Brahmins enjoyed supremacy and expounded the
religion and law. The study of Hindu legal history shows that during
Hindu period there was no interference of the State with Hindu law.
They enjoyed complete immunity and the whole affairs were
regulated by their personal laws.
It is Muslim2jurisprudence which furnishes an examples of
complete union of law and religion. "In Islam", says James Bryce,
"Law is Religion and Religion is Law, because both have the same
source and equal authority being both contained in the same divine
revelation."3 Islam claims its jurisdiction over every aspect of a
Muslim's life. Its attitude towards non-Muslims or unbelievers was
that they must either be converted or subjugated or killed. Arab
pagans were given a choice only between conversion and death.4
The Indians, however, could not be given the same treatment. The
task of killing or converting the vast multitude of non-Muslim
1.
2
3
4
The Lex Loci Report on October 1840 emphasized the importance and necessity of
uniformity in codification of Indian law relating to crimes, evidences, contract etc.,
but it is recommended that personal law of Hindis and Muslims should be kept
outside such codification.
Asaf A. A. Fyzee, Outlines of Mohammedan law 1-2 (3rd., 1964).
James Bryce, 2 Studies in History and Jurisprudence 237 (1901), Said Ramadau,
Islamic Law. Its Scope and Equity 15-16, 27-30, 42-47 (1961).
Joseph Schacht, An Introduction to Islamic Law 130 (1964).
3
population of India could not be achieved owing to its impossibility.5
Islamic law interfered with non-Muslims only were they were
directly or indirectly involved with Muslims. A good illustration is
criminal law where Islamic principles applied alike to Muslims and
non-Muslims.6
In a multicultural society like India, Britishers consolidated
their position and they completely changed the criminal law. They
introduced their own system to deal with the various matters of civil
law. They did not want to hurt the religious susceptibilities of the
Indians. Interference in religious matters, they considered, was not
at all conducive to their friendly trade with Hindus and Muslims or
their political stability. Warren Hastings enacted certain schemes
for the first time in 1772. Provisions were made that in all suits
regarding inheritance, marriage, caste and other religious usage
and institution, the laws of the Koran and Shastras were to be
applied, in respect of the Muslims and Hindus respectively.7 Warren
Hasting's policy of preserving Hindu and Muslim law was supported
by the British as a whole.
The legal system of India in the early nineteenth century was
one of confusion and chaos. Hindus and Muslims were governed by
their own laws, non-Hindus and non-Muslims were governed by the
other set of laws. The purpose of codification appears to have been
to achieve certainty and uniformity. Lord Macaulay was made the
law member and subsequently the Chairman of the First Law
Commission of India set up in 1833.
In 1856, the Hindu Widows' Remarriage Act legalizing
remarriage of Hindu widow was passed at the instance of a
5
6
7
B.B. Mishra, The Judicial Administration of East India Company in Bengal 17651782, p. 50 (1961) : J. M. Shelat, Secularism – Principles and Application 72
(1972).
There were two exception viz., oaths and ordeals. The Muslims had to swear in the
name of God and the Hindus had to swear by the cow : Fatwa-a-Alamgiri, Baillie's
Digest 748.
Tahir Mohammood, An Indian Civil Code and Islamic Law, (1976), p. 53.
4
reformist section of the Hindus.8Then came the Hindu Women's
Right to Property Act, 1937. In 1929 Child Marriage Restraint Act
was passed to discourage the practice of existing child marriages.
At this time three Acts which affected Muslim as well are the
Caste Disabilities Removal Act, 1850, the Child Marriage Restraint
Act, 1929, and Dowry Prohibition Act, 1961 were passed.
The three central statutes were also passed during the British
period, they are- The Wakf Act, 1913, the Muslim Personal Law
(Shariat) Application, 1937, and the Dissolution of Muslim Marriage
Act, 1939. In 1937, the Muslim Personal Law (Shari'at) Application
Act was passed with a view to abrogate these customs and bring
Muslim communities under the Muslim law.9
In the chapter legislative history of personal laws in India,
the discussion has been meticulously arranged into three heads,
namely-Hindu Law and the Legislature, Muslim Law and the
Legislature and Christian and Parsi Laws and the Legislature. The
Central Government however, passed the Hindu Code Bill which is
divided into different parts in the form of four different Acts, Hindu
Minority and Guardianship Act 1956, and Hindu Succession Act,
1956; Hindu Minority and Guardianship Act, 1956; and Hindu
Adoption and Maintenance Act, 1956.
In the realm of Muslim personal law, the legislative activity
appears to be extremely limited; and that too on the initiative or
demand of the Muslim community. In both pre and postIndependence era, the attitude to the legislature towards the
Muslim personal law was of ‘non-interference’. The Shariat Act,
1937, came into operation on 7th October, 1937, and is applicable
throughout India. It applies to every Muslim of whatever sect or
school. One provision of the Act lists those matters which among
Indian Muslims, shall invariably be governed by the Muslim
8
9
Krishna Bhagwan Agrawal, "Advisability of Legislating a Uniform Indian Marriage
Code," In Mohammad Iman, ed., Minorities and the Law, (1972). p. 443.
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). pp.
617-18.
5
personal law.10 There are; (i) marriage, (ii) dissolution of marriage in
any form, (iii) guardianship, (iv) dower, (v) maintenance, (vi) gifts,
(vii) trusts, (viii) waqf and (ix) intestate succession (excepting that
concerning agricultural lands).11
This Parsi Marriage and Divorce Act, 1865, was based on the
Matrimonial Causes Act, 1857, of England and its principal effect
was to make Parsi marriage monogamous.
There is also the Special Marriage Act, 1954, which is a
secular code of marriage law of a general nature under which any
two Indians irrespective of their religion may marry. A couple
married under this law comes to be governed by the Indian
Succession Act, 1925.12
As far as the issue of personal laws is concerned, it evoked
considerable conflict of opinion amongst the members of the
constituent Assembly. It is interesting to note that “whilst all the
Muslim speakers favoured continuation of the British policy of
neutrality, the Hindu speakers emphasized that the guarantee of
religious freedom by draft article 19 did not exclude the jurisdiction
of the state in matters of personal law”.13 The Muslim speakers
argued that neither of the draft articles 19 and 35 empowered the
state to legislate on personal laws.14 Accordingly, article 35 of the
draft Constitution provided that “The State shall endavour to
secure for citizens a uniform civil code throughout the territory of
India.”
On 26 January 1950 the Constitution was adopted,
incorporating a directive to the state to “Secure for the citizen a
uniform civil code throughout the territory of India” and specifying
10
11
12
13
14
Sec-2 of the Act.
Succession of agricultural lands, being a provincial subject under the Government of
India Act, 1935, fell outside the jurisdiction of the central legislature which passed
this Act.
M.P. Jain, Outlines of Indian Legal History, p. 491. (4th ed. 1981).
D.K. Srivastava, Religious Freedom in India, p. 240 (New Delhi, 1982).
M.A. Baig Sahib Bahadur’s Speech in the Constituent Assembly, VII Constituent
Assembly Debates p. 543, (1949).
6
under one or the other Legislative Lists matters traditionally
regulated by personal laws.
As far as the legislative powers on the matters relating to
personal laws, are concerned, Article 372 of the Constitution is the
most important article. The language of article 372 (1) is analogous
to section 292 of the Government of India Act, 1935, which also
recognized the continued application of “all law in force” then. The
Federal Court in United Provinces v. Atiqa,15 had held that the
phrase included also non-statutory law including personal laws.
Even after the commencement of the Constitution the High Courts
of Rajasthan,16 Hyderabad,17 Calcutta,18 Madhya Pradesh,19 and
Bombay20 have confirmed the applicability of article 372 to personal
laws. It is notable that all the three lists in Schedule VII of the
Constitution include even those subjects to which traditionally the
personal laws should apply. List III (mentioning subject on which
both Parliament and state legislatures can make laws) specifies the
following:
(a) Marriage and divorce; infants and minors; adoption; wills,
intestacy and succession; joint family and partition; all
matters in respect of which parties in judicial proceedings
were immediately before the commencement of this
Constitution subject toothier personal law.21
(b) Transfer of property other than agricultural land;
registration of deeds and documents.22
(c) Charities and charitable institutions, charitable and
religious endowments and religious institutions.23
15
16
17
18
19
20
21
22
23
AIR 1941 FC 16
Panch Gujar Kaur v. Amar Singh, AIR 1954 Raj. 100.
Motibai v. Chanayya, AIR 1954 Hyd. 161.
Naresh Bose v. S.N. Deb, AIR 1956 Cal. 222.
Rao Mote Singh v. Chandrebali, AIR 1956 M.P. 212.
Atmaram v. State, AIR 1965 Bom. 9.
Entry 5. List – III Schedule VII of the Constitution of India.
Entry 6. List – III Schedule VII of the Constitution of India.
Entry 28. List – III Schedule VII of the Constitution of India.
7
List II (specifying the subjects on which state legislatures can
make law) includes burial and burial grounds,24 “rights in or over
land”25 (covering succession to agricultural lands) and
administration of justice and organization of courts at the district
level.26 In List – I reveal to Muslim law is “pilgrimage to places
outside India”27 Under this Provision Parliament can make laws
regulating Haj and Ziyarat.
The questions is whether it is permissible under the
Constitution that the Muslims, Hindus, Christians, Parsis and Jews
of Indian be governed by different sets of religion-based laws
relating to marriage and inheritance, etc. Are the personal laws not
hit by fundamental rights? The answer to these questions depends
on whether the phrase “all laws in force” used in article 13(i) covers
personal laws too or not. The history of enactment of the article 13
and some other constitutional provisions (article 19, 25, 44) shows
that the Constituent Assembly did not intend to exempt personal
laws from the legislative competence the State. The judicial opinion
of the two great judges of the time namely late M.C. Chagla and late
P.B. Gajendragadkar in Narasu Appa’s case,28 has been dissented
from by the eminent scholars like D.D. Basu,29 H.M. Seervai30 and
Mohammad Ghause31, who are convinced that all personal laws
including their non-statutory parts are hit by article 13(1). The
Chagla-Gajendragadkar verdict pronounced in 1952 has, however,
been followed, though often silently and without specific reference,
by all the higher courts in the country. In its recent decision in
Krishan Singh v. Mathura Ahir32, the Supreme Court has
categorically ruled that :
24
25
26
27
28
29
30
31
32
Entry 10. List – III Schedule VII of the Constitution of India.
Entry 18. List – III Schedule VII of the Constitution of India.
Entry 5. List – III Schedule VII of the Constitution of India.
Entry 20. List – III Schedule VII of the Constitution of India.
State of Bombay v. Narasu Appa Mali , AIR 1952 Bom. 84.
Commentary on the Constitution of India, Vol. I, p. 155 (1965).
Constitutional Law of India, pp. 254-255 (1968).
‘Personal Law and the Constitution of India’ in T. Mahmood (ed.) Islamic Law
Modern India, pp. 57-58 (1972).
AIR 1980 SC 707
8
“Part III of the Constitution does not touch upon the personal
laws.”33
It is interesting to note that recently, the Supreme Court of
India in Ahmedabad Women Action Group v. Union of India,34
dismissed three writ petitions which challenged the constitutionally
of various provisions of different personal laws on the ground, interalia, of being violative of articles 14 and 15. The Court observed
that the “questions involved in the case were the issue of State
policies with which the court will not ordinarily have any concern.”
The same opinion was expressed by the Apex Court in Maharshi
Avadhesh v. Union of India.35 The judicial trend, so far, clearly
indicates the reluctance of the Courts to determine the
constitutionality of various personal laws on the touchstone of
articles 14 and 15.
In Ratilal Panchand v. State of Bombay,36 the Supreme Court
had held that subject to the restriction which Article 25 imposes,
every person has a fundamental rights “not merely to entertain
such a religious belief as may be approved of by his judgment or
conscience but to exhibit his belief and ideas in such overt acts as
are enjoined or sanctioned by his religion…” In another case.37
In Mulla Tahir Saifuddian v. State of Bombay,38 the Supreme
Court observed that for the application of Article 25(2)(a) it is
necessary to classify religious practices into such as are essentially
for a religious character and those which are not. In Durgah
Committee v. Hussain,39 it said that whether a religious practice is
an essential part of a religion is an objective question to be
determined by the court and that the view of religious denomination
itself is not final.40 It is in the light of these judicial decisions that
33
34
35
36
37
38
39
40
Krishan Singh v. Mathura Ahir , AIR 1980 SC 712.
(1997) 3 SCC 573.
1994 Supp. (1) SCC 713.
(1954) SCR 1055
Comm. H.R.E. v. Lakshmindra, (1954) SCR 1005.
AIR 1962 SC 853
AIR 1961 SC 1402
Durgah Committee v. Hussain , AIR 1961 SC 1415
9
we have to examine the place of personal law as an essential part of
Islamic religion, a
Muslim will ordinarily give an emphatic
affirmative answer. In Sri Krishna Singh v. Mathura Ahir,41 the
Supreme Court held the view that personal law is not law for the
purpose of Part III of the Constitution. In T. Sareetha v.
Venkatasubbaiah,42 the Andhra Pradesh High Court considered
Sec. 9 of the Hindu Marriage Act providing for retention of conjugal
rights to the spouses living separately without reasonable
justification as violative to personal liberty under Art. 21 of the
Constitution. The Court viewed that if unwilling spouse is coerced
by State power to cohabit with the other spouse there is violation of
right privacy. In Harvinder Kaur v. Hermender Singh,43 the Delhi
High Court upheld the constitutional validity of Sec. 9 as a
reasonable regulation protecting the institution of marriage in
accordance with Art. 21. In Saroj Rani,44 case the Supreme Court
affirmed the view of Delhi High Court and rejected the view of
Chaudhary J. of A.P. High Court. It is to be remembered that the
issue of personal law as law did not figure in these cases.
Social justice means the quality of being fair and just in
social relations of human beings.45 This noble quality is attained
within the family by eschewing exploitation of the vulnerable
members like women and children by the dominant members and
by forbidding, the operation of irrational notions and religious
beliefs of blind nature, the concept of social justice aims to attain a
social arrangement wherein the good things of the society,
amenities and responsibilities are justly distributed among the
members of the society.46
"Social change means", observes Steven Vago, "modifications
of the way people work, rear a family, educate their children, govern
themselves, and seek ultimate meaning in life. It also refers to a
41
42
43
44
45
46
AIR 1980 SC 707.
AIR 1983 AP 357.
AIR 1984 Del. 66.
AIR 1984 SC 1562
K, Suibba Rao, Social Justice and Law, p. 1
R.W.M. Dias, Jurisprudence pp. 81-82; Also see John Rawis, A Theory of Justice
pp., 3-4 (1972).
10
restructuring of the basic ways in which people in a society relate to
each other with regards to government, economics, education,
religion, family life, recreation, language, and other activities"47 The
equation whether law can and should lead, or whether, it should
never do more than cautiously follows changes in society, has been
and remains controversial. Despite the debate, modern welfare
states, make use of law as "instruments that set off, monitor, or
otherwise regulate the fact or pace of social change,"48 Law can
shape social institutions directly or indirectly. It can not lead the
society, in its own way, to the land of social justice provided that
factor resisting social change do not counter-balance the effort of
the law. Further, to be successful instrument of social change, law
should be free from technical defects and loopholes and should be
effective.49
In pursuance of the policy of rendering social justice and
economic security to the dependents, Criminal procedure Code
provided for obligation of all persons to maintain his/her spouse,
minor, children, unmarried daughter and parents who are unable
to maintain themselves. The duty of maintenance avoids the
problem to moral and material abandonment in the family life. It is
purely a secular measure. In Bai Tahira,50 and Shah Bano,51cases
the Supreme Court applied Sec. 125 of Cr.PC. providing for the
duty of maintenance and the argument that Sec.125 violated the
Muslim Personal law and religious freedom of the community were
rejected. According to the Court, payment of Mehr and maintenance
during iddat period did not absolve the husband from the duty to
maintain. About the argument on the basis of religious freedom, the
court viewed that for purpose of secular and welfarist provision like
Sec. 125 of Cr.P.C. application of religious principle was irrelevant.
47
48
49
50
51
Steven Vago, Law and Society pp. 238-239 (1981); Also see B.S. Sinha, Law and
Society Social Change p. 16-23 (1983).
Lawrence M. Friedman, Legal Culture and Social Development, Law and Society
Review 4 (1) p. 29 cited by Steven Vago.
The importance of technical perfection of the legal instrument and efficient handling
of it by administrators of law and justice is pointed out by W. Friedman Legal
Theory 177 (5th) Ed. 1967).
AIR 1979 SC 362
AIR 1985 SC 955
11
Even if the religion provided for otherwise under Art. 24 of the
Constitution the State has power to make legislations for social
reform in the semi religious matters. However, the court viewed,
after elaborate reference to the Muslim religious writings, that
Muslim husband wife beyond the iddat period. The court laid
emphasis upon the objective of uniform civil Code under Art. 44.
In 1952, the Madras High Court had to face the similar
problem when the Madras Hindu (Bigamy and Divorce) Act, 1949,
was challenged in Srinvasa Aiyar v. Sarawathi Ammal,52 In this case
Section 4 of the said Act was challenged which provide:53
"Notwithstanding any rule of law, custom or usage to the contrary,
any marriage solemnized after the commencement of this Act
between a man and a woman either of whom has a spouse living at
the time of such solemnization shall be void."
In Ayesha Bibi vs. Suboth Chandra Chakravarty,54the Court
after considering the position under Mohammadan law, examined if
the Hindu law could be administrated in this case.
In Robaba Khanum vs. K. B. Irani,55,Mr. Justice Blagden
rejected the alternative plea. He observed :
“The law of India is not Mohammadan law nay more that it is
Hindu law or Christian ecclesiastical law, but the Mohammadan
law is by virtue of the general law of India the personal law of the
minority of Indians, regulating their relations with one another it
differs in degree but not in kind, from (say) by the law of the
Willingdon Club.”56
In another case of Vilayat Raj vs. Sunila,57 the Delhi High
Court held that the marriage sought to be dissolved under the Act
has to be a Hindu marriage. It can be dissolved only in accordance
52
53
54
55
56
57
AIR 1952 Mad. 193
Madras Hindu (Bigamy and Divorce) Act, 1949
ILR (1945) 2 Cal. 405.
I.I.R, (1948), Bomb. 223.
I.I.R, (1948), Bomb. 232.
AIR 1983, Delhi 51
12
with the provisions of the Act. It would, therefore, appear that
Section 2 of the Hindu Marriage act, 1955 says that this Act applies
to any person who is a Hindu.
In Sarla Mudgal vs. Union of India,58 the apex court has
adopted a different attitude of the problem relating to interpersonal conflict between Muslim and Hindu. In this case there
were four petitions under Article - 32 of the Constitution of India.
In Lily Thomas vs. Union of India,59 there was a lady Sushmita
Ghosh, who was the wife of Shri G.C. Ghosh (Mhod. Karim Ghazi)
filed a writ petition stating that she was married of shri G.C. Ghosh
in accordance’s with the Hindu rites in 1984 and since then they
were happily living at Delhi. In 1992,the husband told he wife that
she should in her own interest agreement as he had converted to
Islam and therefore he would remarry. In fact the husband had
embraced Islam and fixed a date to marry – Miss Vaneeta Gupta.
The court in this case observed that for the past several years
it has become very common amongst the Hindu male who cannot
get a divorce from their first wife, they convert to Muslim religion
solely for the purpose of marriage. This practice is invariably
adopted by those erring husband who embrace Islam for the
purpose of second marriage but again became reconvert so as to
retain their rights in the properties etc. and continue their services
and all other business in their old name and religion.
Upholding the decision in Saral Mudgal Court Case, the
Supreme Court has held that the second marriage of a Hindu
husband after conversion to Islam without having his first marriage
dissolved under law would be invalid, the second marriage would be
void in the terms of provisions of Section 494 IPC and the apostate
husband would be guilty 7 of the offence under Sec 494 IPC doses
not lay down any new law. It cannot be said that the second
marriage by a convert male Muslim has been made offence only by
judicial
pronouncement. The court has only intercepted the
58
59
(1995) 3 SCC 635
AIR 2000 SC 1650
13
existing law which was in force. It is settled principal that of a
provision of law vela’s back to the date of law itself and cannot be
prospective from the date of the judgment because concededly the
court does not legislate but only five an interpretation to an existing
law. It cannot therefore be said the decision in Sarla Mudgal case,60
has to be given prospective operation and that the decision cannot
be applied to persons who have solemnized marriages violation of
the mandate of law prior to the date of judgement.
India is a country of million customs and communities.
Everyone thinks that his/her faith and customs are the best. No
one wants to consider reforming own system yet wants to worry
about others system. UCC is used more often than not as a tool for
minority bashing rather than genuine social reforms. Such minority
bashing will only make the members of those communities more
possessive about their alleged identity and customs thereby further
reducing any scope of nurturing UCC in its embryonic stage.
The unfortunate interference and mixing of religions with
politics has further complicated the social atmosphere. The political
stakes will ensure that no one can enforce a UCC over the
multicultural society of India. Instead, interested politicians will
only keep the issue of UCC burning to bash their opponents and
please their vote banks.
The supporters of Uniform Civil Code and abrogation of the
personal laws put forth an argument that such an abrogation of
personal laws and imposition of the said code would promote the
cause of national integrity. Would they like to explain how the
different sets of personals laws have obstructed the process of
national integration? Hindu code is existing in the form of the
Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu
Adoptions and Marriage Act 1956 and is applicable to all Hindus
including Sikhs, Jains, Budhists, Lingayats, Aryasmaj is etc, but
we find this code has not unified Hindus and the case of national
60
1995 AIR SCW 2326
14
integration could not be promoted to a desired extent during last
Sixty seven years.
The idea of a uniform Civil Code for India advocated in Article
44 of the Constitution has assumed the colour of a nightmare in the
eyes of a vast majority of Muslims citizens. Answerable for this
situation are two distinct anthropogenic forces in the society.
Firstly, there are the super-traditionalists who would leave no
stone unturned to enshrine the Islamic personal law as applicable
in the country, inclusive of its each and every principle, as
"revealed" or "inspired" laws not liable to any reconsideration by
man. And secondly, there are those pseudo-secularist members of
the majority community whose cherish and propagate the belief
that the proposed civil code will be stuffed with the concepts of
ancient Indian jurisprudence only and have in its provisions
nothing derived from Islamic legal doctrines. The combined activity
of these two forces in the society, though both are sadly mistaken,
have gradually indulged the Muslim community into a massive
revolt against the proposed civil code. The result is that it has
become a fashion among the Muslims of India in general vituperate
against anybody who talks either of the reform of Muslim personal
law or of a uniform civil code. In order to mitigate the influences of
these forces it is expedient to concretize provisions of the proposed
civil code, to concretize provisions of the proposed civil code, not
abstract, and analyze the extent to which those provisions would be
opposed to or in conformity with, the Islamic jurisprudence.
In my opinion, there is no urgent need to force any UCC on
unwilling population. Most people be it Hindu, Christian, Muslim or
any other community are not ready to adopt truly secular laws
separated from religious customs. Also, it is not right to force the
customs of one group, however dominant it may be, upon other
groups. So we can try to solve thousands of other less contentious
problems that our society is facing and are more public in nature
than personal laws.
A family law board should be set up in the Union Law
Ministry on the pattern of the Company Law Board working under
15
the Ministry of Industrial Affairs. It should be a statutory body
having an all-India network of regional branches. It duties should
include :
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
to produce periodical and other literature pointing out
the drawbacks in the existing family laws, highlighting
the complications resulting from the plurality of
personal laws, and explaining the need for the features
oft he uniform civil code:
to set up committees of experts in family law and
sociologists to study the working of the existing
legislation and report thereon;
to arrange periodical opinion polls on the issue of
reform of family law and uniform civil code;
to secure co-operation of trusted leaders of various
communities – theologians, politicians and others – and
of various institution of learning, politicians and others
– and of various institution of learning, in order to
prepare the people to appreciate the changes in social
conditions and the changes in family law which they
have necessitated;
to educate the people on the need for family law reform
and unification through the use of audio-visual aids
and other media of mass communication;
to encourage empirical research of a socio –legal nature
in the problems of family law in various parts of the
country; and
to prepare and submit to the government periodical
reports on its activities.
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