Uniform civil code is a term which has originated from the concept of a civil law code. It envisages administering the same set of secular civil laws to govern different people belonging to different religions and regions. This supersedes the right of citizens to subject themselves to different personal laws based on their religion or ethnicity. The common areas covered by a civil code include:
- personal status
- rights related to acquisition and administration of property
- marriage, divorce and adoption
Usage of this term is prevalent in India where the Constitution of India lays down the administration of a uniform civil code for its citizens as a Directive Principle, but has not been implemented till now. The secular Uniform Civil Code is opposed by Muslims, Christians and parties like the Indian National Congress and the Communist Party of India (Marxist). This is a contradiction to these parties' commitment to secularism, and has led to claims that they are pseudosecularist. Those in favour of a secular Uniform Civil Code are the Bharatiya Janata Party , the Rashtriya Swayamsevak Sangh and the Vishwa Hindu Parishad. These are also referred to as "Communalists". Thus, in India, there exists a peculiar situation where the opponents of this law are called "Secularists" while those in favour of a secular law are termed "communalists" or "fascists"verification needed.
Most of family law in India is determined by the religion of the parties concerned. Hindus, Sikhs, Jains and Buddhists come under Hindu law, whereas Muslims and Christians have their own laws. The laws of all communities except the Muslims are codified by an act of parliament. Muslim law is based on the Shariat. There are other sets of laws to deal with criminal and civil cases like the CrPC and the IPC.
When the Indian government ratified CEDAW (Convention of the Elimination of all forms of Discrimination Against Women) in 1993, it inserted a reservation regarding the minimum marriage ages and compulsory registration of marriage stating that “it is not practical in a vast country like India with its variety of customs, religions and level of literacy.” This frank comment explains the root problem of India, namely its plethora of customs, diversity of faiths, and large numbers of people. The largest democracy in the world, India at the same time encompasses an almost incomprehensibly complicated history, one that to this day has made it impossible to reconcile certain problems in its secular legal system.
The modern state of India and its cumbersome legal system is rooted in its past history of a largely Hindu populace living under Muslim and British rule. The Indian constitution cannot escape this, and its framers did not intend that it would. Enshrined in its basic laws are references to “the wearing and carrying of Kirpans shall be deemed to be included in the profession of the Sikh religion” and others mentioned specific to the nature of India. These group-specific reservations are a result of the fear that the exclusion of any one group’s mention might mean the fragmentation of the subcontinent.
Nowhere is this more clear than in the struggle secular India has had to reconcile with its large and assertive Muslim community. The Congress party, which dominated Indian politics from independence through the 1990s, saw fit to placate Muslim voters through non-interference with Islamic Personal Law as it stood in India. This policy, which was in direct opposition to the Constitution's call for a “uniform civil code throughout the territory of India”, has led to much debate and some monumental court cases and legislation in the last 50 years of Indian history. With the passage of time, the Muslim Personal Law has been under assault from many directions, and it is important to examine how this legal principle of a separate religious law has survived in a country whose constitution is modeled after the secular liberal states of the west.
Muslim Personal Law 1100-1950
The Islamic Personal Law system of India has its roots in the past, primarily in British rule. Islam arrived in India in the 11th century and grew steadily until under the Mughals it encompassed most of the subcontinent. This was the situation the British found, and it was in this light that the English structured their Anglo-Muhammadan legal system, one intended not to offend or cause rebellion among the newly acquired Islamic subjects.
The downside of this was that “In their search for effective and inexpensive modalities of rule, the British came to rely upon the devices of translation, textbook, and codification, to adapt indigenous arrangements to the dictates of colonial control.” This had the result of codifying a law that hitherto in India had not been codified, and the result was a homogenization of the law not only along western lines but also among Muslims themselves.
In the 19th century, there were a plethora of different Muslim groups within India, many with their own customs. The Anglo-Muhammadan laws extended Hanafi Sunni law to much of the subcontinent, with exceptions made only for those areas where Shia law differed substantially from Sunni practice. Indian Muslim communities that relied heavily on costumes that were non-Islamic in origin were forcibly brought into the fold. This was the cause of the Mapilla Succession Act (1918) and the Cutchi Memons Act (1920). By law, the British authorities decided that “In order to bring about uniformity it is highly desirable that the entire Cutchi Memon Community be governed by Muhammadan law.” The Muslim community was also consulted and in many cases agreed wholeheartedly with extending Islamic law to these Muslim communities who were engaging in un-Islamic activities. The Jumiat al-Ulama explained in 1925 that it “regards as an insult to the Shari’a the adherence by certain Muslims to non-Islamic laws based on customs.” Other Muslim minority communities including the Shias—who in India included both Ismaili and Ithna Ashari legal practices—retained some of their specific practices such as the Muta(temporary) marriage.
Prior to 1900, the British contended themselves with finding an accommodation with the Islamic community, based on the principles of the Warren Hastings judicial plan of 1772 whereby “In suits regarding inheritance, marriage, caste and other religious usages and institutions, the laws of the Koran with respect to Mohammedans…will be adhered to.” However, the 19th century brought about the abolition of slavery (1843), and the British replaced Islamic criminal codes and brought the use of evidence in courts into line with British practice by the 1870s. In general, these reforms can be understood if one accepts that the British understood that large portions of the law Muslims had been using were not based in Quran or Hadith but rather based on the judgments handed down from civil Mughal courts. Ziauddin Barani accepted this fact in the 14th century when he conceded that “the king should have the power of making state laws(zawabit)”.
Thus, by the late 1800s we see the beginnings of the creation of the Muslim Personal Law system that remains alive in India today. Most of these areas reserved to Muslims after the reforms of the 19th century have not been significantly changed. These areas include marriage, Mahr (Dower), Divorce, Maintenance, Gifts, Wakf, Wills, and Inheritance. The lack of change during British rule can be principally tied to the growing independence movement and the fact that for Muslims the agitation towards freedom from British rule resulted from any attempts to disturb their Personal Law. We can see evidence for this in the acts passed by the British in the first half of the 20th century.
The Shari’at act (1937) was the first compiling of the various areas of Anglo-Muhammadan law into a single act, recognizing the importance of Islamic law to the Muslim community. For this reason, the act was also known as the Muslim Personal Law act and it included those areas mentioned in the previous paragraph. The Shariat act did not mention the various Sunni schools or question who would be regarded as a Muslim under the law. At the same time that the Shari’at act codified the body of laws regarding Muslims, other acts were passed directly challenging the Muslim community.
The first of these is the Child Marriage Restraint Act (1929 amended 1938). This act restrained the marriagible age of girls to 15 years and of boys to 18 years. Under Islamic law the age of marriage is puberty and under al-Hidaya, the Sunni text in use by the British, the age of puberty is 12 for boys and 9 for girls. Having dealt with the problem of Child Marriage, the British then realized that the question of divorce needed to be reformed. The problem in question was how a women could obtain a divorce. Since the Hanafi school adopted under the Muhammadan laws made it very hard for a woman to obtain a divorce, the British first debated whether it might not be more proper to encourage the Muslim community to adopt Maliki law on this subject.
Instead, the Dissolution of Muslim Marriages Act was adopted in 1939. Several items in the law allowed a woman to obtain a divorce for reasons not existing in Hanafi law. For instance, the law made grounds for divorce the non-maintenance of a wife, lack of cohabitation, cruelty, disappearance or imprisonment of the husband for a time, and other reasons. Within the law, despite its stated aim of giving Muslim women a secular way out of their marriages, a series of provisions are aimed directly at Muslims. For instance, Article 2, clause f, states that a ground for divorce is “if he (the husband) has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.” It is here we see a case where if this clause is challenged in a secular court the judges, trained in secular law, it would be forced to interpret the Quran as to the meaning of the injunction of equal treatment. The British use of injecting clauses such as this would later serve as a strange bases for a country professing itself to be secular but then being forced to tinker with the religion of its citizens.
The British tampering with Muslim Law, after having passed the Shariat Act, was protested by the Muslim community as if it were a conspiracy to destroy Muslim ‘culture’. Thus, we can see from the late British colonial administration the seeds of what would later become themes of the secular-Muslim divide after independence. These themes have remained basically the same to this day. On the one hand, one has a basic contradiction in ‘secular’ laws that include religious provisions. On the other hand there exists a Muslim community resistant to change and its claims that any change to its coveted personal law will result in the destruction of Muslim ‘culture’ in India. On this topic, Mushirul Hasan writes “The demand for reforms is interpreted as an attempt to destroy ‘Muslim identity’.”
The last piece of this puzzle is the issue of the women’s movement in India. Since the British, as noted, were not interested in a direct confrontation with the Muslim community in regards to Personal Law, and since the Personal Laws left to Muslims under the Shariat Act were mostly in regards to women’s issues, such as marriage, divorce, and maintenance, it was logical that a women’s movement would challenge these issues. The modern interpretation of the British rule is that it actually resulted in an ‘erosion’ of women’s rights. When the British had arrived in India, it has been shown that Muslim women actually possessed more rights than their Hindu counterparts. This is due in part to the regulations in the Quran regarding Mahr, divorce, and maintenance. The Hindu women, likewise, faced many of the inequalities of Muslim women and in some cases more like the practice of Sati—widow sacrifice on husband’s funeral fire. The Hindu community likewise practiced Polygamy. Thus, Shahida Lateef writes “Muslim women’s rights to divorce, inheritance, repudiation of marriage and dower had been eroded over time and their restitution was urged by all leaders of the women’s movement.” Likewise, the passing of the Shariat act is seen as a way to “enable Muslim women to regain their rights of inheritance, dower, and divorce under Muslim Personal Law.” The idea here is that by dismantling Muslim legal courts and restricting the power of Qadis, the British had actually caused Muslim Laws to degrade themselves upon individual communities where backwards customs quickly dispatched with women’s rights. In 1901, the census of India had claimed “the feeling among Muslim communities was, therefore, that due to the accretion of customary laws the rights of Muslim women had been eroded.” If one accepts this on its face, then it is reasonable to conclude that the Muslim women’s movement in the early part of the 20th century was very much in favor of the Shariat Act(1937), the Child Marriage restraint act(1938), and the Dissolution of Muslim Marriages Act(1939).
Two issues that grew up during the colonial period must be addressed in order to understand some of the problems resulting during independence. The first issue is the positions taken by the Jamiat al-Ulama. We have seen how the Ulama encouraged the British to extend a uniform law throughout India beginning with Hastings in 1772 and ending with the enactment of the Shariat act. However, this symbiotic relationship began to crumble with the enactment of the ‘secular’ laws on Muslim divorce and child marriage. In 1929, the Jumiat al-Ulama called for Muslims to participate in civil disobedience against the Child Marriage Restraint Act. The largest protest, however, was over the fact that under the Dissolution of Muslim Marriages Act, non-Muslim judges would be allowed to dissolve Muslim marriages. The Jumiyat al-Ulama declared that it “would like to make it clear that a marriage dissolved by a non-Muslim judge is not a void marriage in the eyes of the shariah.” One Muslim leader exclaimed “I hold it is the business off the Mussalmans themselves to make any changes in their religion they like.” The fears among the Muslim community reached fever pitch with claims that divorce was becoming a ‘craze’ in some communities, most likely the most educated Muslims of the cities.
The second issue that we have evidence of from the colonial period is the acts that specifically exempted Muslims in order to not inflame passions in that community. The Indian Succession Act of 1925, which dealt with inheritance and succession, specifically exempted Muslims. Originally, the law had been enacted in 1865 and had exempted Hindus as well, but the concept seems to have been that Hindus could accept ‘modernization’ and that, since Muslims had a very complicated inheritance system based in the Quran, therefore the law would be applied to Hindus. The Special Marriage Act of 1872, which was essentially a secular civil marriage law, also exempted Muslims from its purview and in fact a Muslim could not marry under the law without renouncing his faith, so strong had the Ulama’s opposition been. However, not all calls to exempt Muslims were accepted. The Evidence Act of 1872 included a section 112 that related to the legitimacy of children and was later found to apply to Muslims, regardless of the fact that it was not in line with Muslim law. This dual legal system whereby some laws applied to Muslims but others specifically did not served as a basis for later laws passed under the Indian government that would exempt Muslim Personal Law from their scope.
When issues of law affecting the Muslim Personal Law were later challenged under the Indian constitution, the question was frequently raised whether the government of India had the right to dismantle the Personal Law. Courts looked to the previous legislation in the colonial period to discern whether previous acts had allowed tampering with a system that had originally been envisioned by Hastings to protect Muslim Laws. The Shariat Act of 1937 had not made any reference to the government’s power to interfere with it, although one might assume that since the government passed it, the government could therefore amend it. However, the Government of India Act 1935 had “already empowered the legislatures to make laws on subjects regulated by personal laws.”
The Constitution Personal Law triumphant 1950-1985
The Constitution of India, passed on 26 January, 1950, contained in it a series of contradictions that have made it difficult for the government of India to reform or dismantle Islamic personal law. The framers of the Indian constitution, including men such as Nehru, were convinced of the need to protect Muslim Personal Law at the present out of a fear that any assault upon it would lead to civil war, wide-scale rioting, or perhaps the disintegration of India. This was a rational concern coming on the backs of the events of 1948 whereby Gandhi had been assassinated over the very issue of his work to prevent the Muslims from fleeing India to Pakistan. Syed Abdul Latif had envisioned this problem when he wrote in 1939 a model constitution for India that included a section “whereby the interests of Muslims, as well as other minorities, may adequately be safeguarded.” Under his article on the Judiciary, the lone comment was “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 Kashmir, and Hyderbad 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 exists article 13 which guarantees the “Fundamental Rights…(a) equality before law…prohibition of discrimination against any citizen on grounds only of religion, race, caste, sex or place of birth…(b) religious and cultural freedom…All laws in force in India at the time of the commencement of the constitution, if repugnant to these primary fundamental rights, have to cease to apply in any manner whatsoever.” Article 25 reiterates this protection in provisioning that “all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.” 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 13, 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 13 would seem to make personal law unconstitutional. Furthermore, article 13 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 that 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 legislations aimed at thoroughly secularizing the Hindu community and bringing its laws up to modern times, which in essence meant the abolishment of Hindu law and the enactment of laws based on western lines enshrining 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 negligible minority and Parsees are as well, and since Christians were governed under an already modern or progressive law, Muslims remained the only 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 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 governments’ legislation, it did succeed in stoning reforms.
Personal Law under assault 1985-2005
The life of the 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 would be more like 120 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 Gandhi 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 what exactly 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 abolishment 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 were proclaiming 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:
- Subsection(1)Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage.
- Subsection (2)… the Magistrate may, by order direct the State of Wakf Board established under Section 9 of the Wakf Act, 1954, or under any other law for the time being in force in a State functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1)
Minority Rights Group International commented on the law that it “highlighted the disjunction between constitutional law premised on the principle of sexual equality and religious laws which discriminate on the basis of this very category.” Shahida Lateef, in her Muslim Women in India, claimed that Muslim women’s “prospects were dealt a blow by the ever vigilant conservatives, to whom Islam represents not a system of overall justice, of carefully crafted women’s rights, but merely an opportunity to assert minority differentiation at the expense of women.”
The Shah Bano case is still seen as a turning point in the question of Muslim Personal Law in India, for it proved that despite the 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 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 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 the Muslim conservative groups have become more steadfast in its defense.
The 1986 law was tested in June of 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 not only common but an unjust divorce technique by women’s groups. 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 of 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 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 extra-judicial 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 in for change. 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 have 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. 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 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 occupation 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 women 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 Mahmood, both Muslim writers on Islamic Law in India, have pointed out the reforms meted out in Tunisia and Turkey where Polygamy was abolished. Iran, South Yemen, and Singapore all reformed their Muslim laws in the 1970s, although Iran appears to have backslid in this respect. In the end the argument is quite clear. If Muslim countries can reform Muslim Personal Law, and if western democracies have fully secular systems, then why are Indian Muslims living under laws passed in the 1930s?
Most writings on the subject point to the small number of Muslim intelligentsia such as Tahir Mahmood who are in 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 ‘extra-judicial’ 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 ‘extra-judicial’ 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 as young as 10. This is, after all, India where arranged marriages are still common and marriage 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 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 governments 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.”
Rather than following the timid approach of Dr. Ambedkar, scarred as he was by the communal fighting in 1948 that left 500,000 Indians dead, it might be worthwhile to analyze the feelings of Nehru, another curmudgeon when it came to implementing article 44. Looking at the idea of India as a ‘secular’ country, he opined “The word ‘secular’, perhaps is not a very happy one and yet for want of a better, we have used it. What exactly does it mean? It does not obviously mean a society where religion itself is discouraged. It means freedom of religion and conscience.” However, on the same token, the former President of India, Dr. S. Radhakrishnan, explained “We hold that no religion should be given preferential status or unique distinction.”
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—the calls by that community for special rights. In India, the experiment of personal laws has been a failure. The country legislated away all of them, 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 enforce equal rights for 50 million of its Muslim female citizens.
In the end, the same people who should have been on the side of reform, namely the Western liberals, have turned on the idea of a Uniform Code because they fear that it is being peddled by the right wing. The Uniform Civil Code is seen as a "Hindu nationalist conspiracy" contrived to suppress the minority Muslim community. The idea that the supposedly chauvinist Hindu Nationalists care about Muslim women is seen as "disingenuous or comical". The Congress party and its appeasement of the Muslim community is directly at fault for allowing the issue to be taken up by the right wing. Had Congress acted in the 1970s or as late as 1985 to reform Muslim Personal Law, which even Dr. Ambedkar conceded the government had the power to do, the issue would not have become an election winner for Vajpayee and the BJP.
The BJP is now a major force in many parts of India, particularly the ‘Hindi Belt’ that runs across North and central India. Islamic Law thrived in India for 850 years. The advent of a Hindu Majority professing secular values should have ensured that Islamic law would be relegated to the Mosque and the ceremony. However, in its contradictory and in many places hypocritical attempts to assuage the minority, the Indian government enacted a constitution that at one time allowed discrimination in the Personal Law and at the same time upheld equality. It was only a matter of time before the courts and politics caught on. Today the Muslim community stubbornly rejects reform, and in essence its rejection may ensure that its privileged position is simply done away with.
Proponents of the Uniform Civil Code argue on two lines:
- The code creates equality. While other personal laws have undergone reform, the Muslim law has not. The Hindu Nationalists contend that it makes little sense to allow Muslims, for example, to marry more than once, but prosecute Hindus or Christians for doing the same. They demand a uniform civil code for all religions.
- Gender equality. Several liberals and women's groups have argued that the uniform civil code gives women more rights.
Muslims are also funded for the Hajj, a pilgrimage to Mecca 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. Not only are Hindus not accorded any special privileges despite being the majority, they are even made to pay for subsidies to Muslims and Christians pilgrimages and religious education. Christians are also given separate standards for divorce—which is more difficult for them than it is for Hindus. The amendment of the Indian constitution 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.
Each and every religion does not want to lose its right to practice religious laws. Here are a few quick facts for you to understand the problem:
- In Muslim personal law, they are allowed to have four wives, can give divorce by saying talaq three times, and after divorce the ex-husband is not responsible for ex-wife's maintanace.
- In Hindu inheritance rights, sons, and not daughters, can inherit the property. Or that a wife has fewer rights than her in-laws over her husband's property, but a husband has more rights than his in-laws over his wife's property.
- In Christian law; a husband can get a divorce on grounds of adultery, while a wife has to prove adultery and cruelty.
- Christians are not allowed from willing property for charitable and religious purposes (Section 118 of the Indian Succession Act).
- In Islam, polygamy is permissible but not in other religions. According to the government statistics, only 5.2% Muslim men are polygamous while 5.8% Hindus, 9% Scheduled Caste, and 14% tribals have more than one wife.
- In Punjab it is a common practice that all brothers marry one woman so that their property is not divided, and it is permissible by the Indian constitution.
- Currently, Hindus, themselves, have different Hindu Personal Laws in every state of India. It will be a good start if Hindus have a Hindu Personal Law that is uniform for all Hindus in every state across the country.
- A Sikh is allowed to carry a dagger (Kripan); if others carry it, they will be arrested by the police.
- There is separate tax system for Hindu undivided families not for non-Hindu undivided families (Hindu Undivided Family code).
All Indians are hyphenated citizens—they carry with themselves their linguistic, caste, and religious identities. It is important to remember that before the Hindu Civil Code of 1956, Hindus were subject to the Civil Code of 1898. Why did the Hindu's wish for a separate law? Because they wished for a structure in keeping with their practices. It is also true that obscurantist religious practises cannot be merely wished away. There is always an element of force in changing them. When William Bentinck abolished sati (burning widows with husband’s dead body), a number of Hindus opposed him for 'interfering' in Hindu customs. But Bentinck, with support from Raja Ram Mohan Roy prevailed. Emperor Akbar had first sought to ban sati but faced a massive backlash from his Hindu subjects, forcing him to give up his effort. Thus, any change in the law will be opposed by some, but laws have to be changed to keep up with the changing times. It is up to the rulers of the day to rally those who back such changes and implement laws that reflect the 21st century.
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