~Dr Uzma Khatoon
The issue of the Uniform Civil Code (UCC) in India has long been intertwined with the quest for gender justice, particularly concerning Muslim women’s rights. Despite legislative efforts aimed at addressing concerns such as marriage, divorce, maintenance, and inheritance, the absence of a codified personal law perpetuates gender injustices within the Muslim community. This gap has fueled political debates and controversies, with UCC emerging as a central point of contention since the landmark Shah Bano case in 1986.
While the Constitution advocates for a UCC under the Directive Principles of State Policy, its implementation has remained elusive due to political sensitivities and opposition from certain quarters. This essay delves into the political dynamics surrounding Muslim personal law in India and also explores the understanding that personal laws are not divine and immutable, necessitating reform in response to contemporary circumstances and needs. We will examine the specific situations and requirements that highlight the urgency for personal law reform in today’s context.
Exploring Discrimination in Muslim Personal Laws
Let’s first understand which provisions or laws in Muslim personal law can be referred to as discriminatory against women.
1-Muslims can practice polygamy, while Hindus, Christians, and Parsees cannot
2-Muslim men can divorce extrajudicially; Hindu, Christian, and Parsee divorce requires court intervention.
3-Divorce for Muslim, Hindu, Christian, and Parsee women necessitates court approval on specified grounds.
4-Husband’s apostasy ends a Muslim marriage; spouse’s conversion allows divorce in Hindu, Christian, and Parsee laws.
5-Muslim divorced wives receive maintenance only during iddat; others receive it until remarriage or death.
6-Muslim divorced women must remarry before reuniting with previous husbands; others can remarry without conditions
7-Muslim daughters inherit half of what sons do.
8-Muslims can only dispose of 1/3 of their property by will; others have no such restrictions.
9-Muslims,didn’t recognize adoption; Hindus do.
Historical Background
Before British rule, the Mughal administration relied on Muslim Qazis for justice among Muslims, while Hindus lacked a similar assurance. Warren Hastings’s 1772 plan established uniform courts in Bengal, Bihar, and Orissa, applying personal laws to respective religious communities on civil matters and Muslim criminal law universally. By 1781, the Supreme Court in Calcutta applied Hindu and Muslim laws on civil matters and English law for others. Lord Cornwallis’s reforms in 1790 improved criminal justice, leading to the adoption of English common law by 1832 and the Indian Penal Code in 1860. British policy permitted personal laws under regulations, not religion, facilitating the introduction of a uniform civil code.
The Shariat Application Act of 1937
The Shariat Application Act of 1937 aimed to establish a unified Shariat law for Indian Muslims, replacing customary laws. However, its implementation has been inconsistent, failing to govern all Muslims uniformly. The act recognizes Muslims’ adherence to their personal law without specifying its content, leading to diverse interpretations. India’s Muslim population, divided into Sunni and Shia sects, further complicates matters with varying interpretations and codified laws. Cultural diversity among Muslims and historical influences have resulted in a plethora of customary practices within Muslim communities. Additionally, certain regions like Goa, Daman and Diu, Pondicherry, and Jammu & Kashmir operate under different legal frameworks, further fragmenting the application of the Shariat Act.
After independence, Nehru’s Congress government after Independence enacted progressive laws concerning marriage, divorce, adoption, and inheritance, aiming to secularize Hindu personal law and eventually establish a uniform civil code. Dr. Ambedkar initiated the codification of Hindu law, advocating for a comprehensive Hindu Code. Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956. Nehru, instead of a uniform civil code, introduced the Hindu Code Bill in 1954, citing timing issues. Despite Ambedkar’s resignation over opposition to a uniform code, no significant progress has been made since. In 1986, the Muslim Women (Protection of Rights on Divorce) Act was passed, superseding the Shah Bano case.
What Constitutes a Uniform Civil Code?
A Uniform Civil Code (UCC) embodies a singular legal framework applicable uniformly to all citizens within a nation, ensuring homogeneity across domains such as property rights, marriage, divorce, and inheritance. While criminal statutes maintain uniformity across the populace, civil laws exhibit variation contingent upon religious denominations in India. Presently, adherents of Hinduism, Islam, Christianity, Jainism, Buddhism, Sikhism, Parsi faith, and Judaism abide by distinct personal laws. Governed by the Shariah Application Act of 1937, Muslim personal affairs in India adhere to Islamic jurisprudence.
The concept of a UCC finds expression in Article 44 of the Constitution, striving for the implementation of standardized civil laws nationwide. It merits mention that personal laws fall within the purview of state jurisdiction rather than centralized governance. Christian legal statutes are less influenced by the UCC, given that British-era legislation tailored to India’s socio-religious milieu considers Christian customs and practices. For example, enactments such as the Indian Christian Marriage Act 18722 and the Indian Divorce Act 18699 specifically address legal aspects pertinent to Christians. The Supreme Court’s landmark verdict favouring Mary Roy in 1986 heralded substantive reforms within Christian law, challenging archaic inheritance norms.
What is Sharia Law?
Contrary to popular belief, Sharia law is not divine scripture but rather derived from four main sources: the Quran, Sunnah, Ijma, and Qiyas. While Sunni Muslims follow Ijma and Qiyas, Shia Muslims rely on their own interpretations (Aql). Sharia is essentially the interpretation of scholars based on these sources. This explains the variation in Sharia across Muslim countries despite the Quran being consistent.
In India, Muslim law draws from these sources:
- The Quran: Serving as the foundational text, it addresses various legal matters such as marriage, divorce, and inheritance, albeit not in a structured legal code.
- Ahadis and Sunnas: Narrations of Prophet Muhammad’s actions and sayings supplement Quranic teachings, especially in areas lacking direct guidance.
- Ijma: Consensus among jurists addresses issues not explicitly covered by the Quran or Ahadis.
- The Qiyas: When traditional sources are inadequate, Muslim jurists employ analogical reasoning guided by Quranic principles.
Historically, the Prophet advocated for the use of reason alongside scripture and tradition, emphasizing its importance in decision-making. This holistic approach remains central to Muslim legal interpretation.
Why We Need UCC
Muslim personal law in India has remained unchanged since independence, with resistance to codification based on its perceived divine origin and fears of it leading to a Uniform Civil Code. The Muslim Personal Law (MPL) in India faces criticism for its provisions, such as oral divorce, polygamy, and maintenance after divorce, which are perceived as discriminatory against women. Secular and women’s rights activists oppose these practices, while Hindu nationalists view them as special concessions to Muslims. There are two main perspectives on personal laws: one advocates for a Uniform Civil Code (UCC) to replace separate laws for Muslims, emphasizing secular principles of equality; the other supports retaining separate laws but with reforms to address gender inequalities.
However, implementing a UCC remains challenging due to political resistance and the entrenched politics of personal laws. Some reformists within the Muslim community advocate for interpreting religious scriptures in progressive terms to promote gender equality. Despite efforts like nikahnama, and voluntary declarations of women’s rights in marriage contracts, legal reforms are seen as essential for providing substantive rights and protections to Muslim women. The debate on reforms within the Muslim community continues, with varying perspectives on the nature and scope of necessary changes.
The Ashrafia Muslim elite resist changes to preserve their dominance, using personal law to uphold caste superiority and purity. They control law formulation, with minimal representation of marginalized groups, especially women, in bodies like the All India Muslim Personal Law Board. By emotionally tethering the community, they thwart rational discourse, fearing any reform as a challenge to their authority. Consequently, they interpret Islam to serve their interests, denying individual freedoms. The slogan “Islam is in danger” conceals their power retention agenda. Community traditions cannot override individual rights, necessitating opposition to oppressive laws or customs, regardless of cultural or legal justifications.
The lack of reform in the Muslim community highlights the urgent need to recognize Muslim women not just as part of their society but also as Indian citizens. It’s the state’s responsibility to end the injustices they face. Unlike in history, where societal reforms often arise internally, the Indian Muslim community’s progress is hindered by Ashraf politics suppressing dissenting voices.
Governments still don’t recognize marginalized bodies like the Bharatiya Muslim Mahila Andolan and All India Pasmanda Muslim Mahaz as legitimate. Prime Minister Narendra Modi’s recent call for a Uniform Civil Code in Bhopal has sparked concern among the Ashraf community, diverting focus from pressing issues. Criticizing those in power shouldn’t detract from the primary goal of liberation from oppression. We must approach upcoming drafts of laws with openness and embrace potential improvements. Codification is seen as crucial for achieving gender equality and justice for Muslim women. Without parliamentary enactment, Muslim women’s rights will remain unfulfilled, emphasizing the need for legislative action to ensure equality and empowerment.
Department of Islamic Studies, Aligarh Muslim University, Aligarh
Email: uzmaalig@yahoo.com
