Uniform Civil Code of India - Muslims and Uniform Civil Code - Personal Law Under Assault 1985-2005

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 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 Rashtriya Swayamsevak Sangh 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:

• 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 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 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... 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." Although, post colonial India has been governed by the Congress party for much of its period, and that his daughter and grandson have held the Prime Ministers post for 35 of India's 58 years of independence, the insensitivity of Nehru's successors did so little to tamper with India's Muslim Personal Law.

The continuing controversy of Article 44 of the Indian constitution and its calls for a Uniform Civil Code have not receded over time, nor has there been any attempt to amend the constitution. The basic question has been whether Article 25 of the same constitution which guarantees "right to freedom of conscience and free professions, practice and propagation of religion."

The Shiv Sena party, which governed the Indian state of Maharashtra in the mid-1990s, claimed it wanted to introduce a Uniform Civil Code in 1995 but did not pass such a bill. Some Muslim leaders viewed the attempt as an "attempt to destroy Muslim Identity." In the small state of Goa, a civil code based on the old Portuguese Family Laws exists, and Muslim Personal Law is prohibited. This is a result of the liberation of Goa in 1961 by India, when the Indian government promised the people that their laws would be left intact. A knowledgeable person on Goa law, Margaret Mascarenhas writes that "For the most part, the civil laws currently in force in Goa that pertain to marriage, divorce, protection of children and succession are non-discriminatory in terms of caste, ethnicity or gender." Despite calls in a 1979 conference for the extension of a Uniform Code based on the Goa law to the whole of India, the state of Goa has remained the exception to the rule. It is worth mentioning that in 1978 India amended the Child Marriage Restraint Act to prohibit marriage of a man who is less than 21 years of age and a woman who is younger than 18 years of age. The amended law creates a slight problem, for according to the Indian Contract act of 1972 a man may contract marriage at 18. The 1978 revision of the Child Marriage Law overrides the Contract Act.