Professional Documents
Culture Documents
Tajamul Husain, a member of the Constituent Assemble from Bihar not only
wanted to define the right to religion as a right to 'practise religion privately', but
also insisted that religious instruction was to be given only at home by one's
parents and not in any educational institutions. This implied an understanding of
secularism in which religion is a private affair between man and his god. It has no
concern with anyone else in the world. Secularism on this view meant the gradual
weakening of the bonds of religion and their replacement with nationalism. It
meant that the state must not recognise religion as a public institution. It was not
just a question of religious liberty but of the establishment of, the paramountcy of
the state.
The second position on secularism, exactly opposite to the first, was that no links
between the state and religion should be permitted, not because this would
weaken the state, but because it would demean religion.
Like the first, the third position - which we call the equal - respect theory of
secularism - also began with the principle of religious liberty, but held that in a
society like India where religion was such an important part of most people's
lives, this principle entailed not that the state stay away from all religions equally,
but that it respect all religions alike.
It is this conception of secularism which led certain members to define the right
to religion as a right to the practise of religion as opposed to the more narrow
right to religious worship.
Uniform Civil Code is one of the first articles taken up with reference to
citizenship in any secular state. The draft articles on justiciable rights by both Mr.
K.M. Munshi and Dr. B.R. Ambedkar contained clauses referring indirectly to a
uniform civil code, Munshi's proposal stated that: "No civil or criminal court shall,
in adjudicating any matter or executing any order recognise any custom or usage
imposing any civil disability on any person on the ground of his caste, status,
religion, race or language". Ambedkar wrote that the subjects of the Indian state
shall have the right "to claim full and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed by other subjects regardless of
any usage or custom based on religion and be subject to like punishment, pains
and penalties and to none other". By March 30, however, the Fundamental Rights
Sub-Committee had decided to make the uniform civil code a directive principle of
state policy.
In her letter of March 31, Rajkumari Amrit Kaur emphasised the importance of
the uniform civil code and called it "very vital to social progress". In a much more
strongly worded note of April 14, Amrit Kaur, along with Hansa Mehta and M. R.
Masani, wrote that "(o)ne of the factors that has kept India back from advancing
to nation-hood has been the existence of personal laws based on religion which
keep the nation divided into watertight compartments in many aspects of life",
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and demanded that the provision regarding the uniform civil code be transferred
from the chapter on directive principles to that on fundamental rights.
This position was opposed by other members of the Constituent Assembly, such
as Mohamed Ismail Saheb, supported by B Pocker Sahib, who wanted to include a
right to one's personal law in the fun-damental right to religion. Failing that, they
insisted that at least the directive principle enjoining the state to provide a
uniform civil code, should contain the following provison: "Provided any group,
section or community of people shall not be obliged to give up its own personal
law in case it has such a law". This must be done if the right to religious practice
was to have any reality because the "right to follow personal law is part of the
way of life of those people who are following such laws; it is part of their religion
and part of their culture". Mahboob Ali Baig Bahadur said, "People seem to think
that under a secular state, there must be a common law observed by its citizens in
all matters including matters of their daily life, their language, their culture, their
personal laws. This is not the correct way to look at the secular state. In a secular
state, citizens belonging to different communities must have the freedom to
practise their own religion, observe their own life and their personal laws should
be applied to them". These members were opposed to the setting up of a uniform
civil code.
Part IV of the Constitution of India lays down the Directive Principles of State
Policy. Though the Constitution does say that directive principles are not
enforceable by any court, it also makes it clear that the directive principles are
"fundamental in the governance of the country and it shall be the duty of the state
to apply these principles in making laws." Article 44 says, The State shall
endeavour to secure for the citizens a Uniform Civil Code throughout the territory
of India. The Constitution came into force in 1950. Since then, Article 44 has
been gathering dust with no government at the centre ever having any guts and
wisdom to touch it. This tragic situation does injustice with the spirit of the
Constitution.
"It is a matter of regret that article 44 of our constitution has remained a dead
letter... It provides that the state shall endeavor to secure a uniform civil code for
the citizens throughout the territory of India. There is no evidence of any official
activity for framing a uniform civil code for the country. A belief seems to have
gained ground that it is for the Muslim community to take a lead in the matter of
reforms of their personal law. A common Civil Code will help the cause of national
integration by removing disparate loyalties to laws, which have conflicting
ideologies. No community is likely to bell the cat by making gratuitous
concessions on this issue."
The Supreme Court reiterated the same in the famous Sarla Mudgal Case of 1995.
After this, on July 23, 2003, the Hon'ble Supreme Court suggested that
parliament has to frame a common civil code for the country as that would help
the cause of national integration. A three judge bench comprising the Chief
Justice V.N. Khare, Justice S.B. Sinha and Justice. A.R. Lakshmanan, made this
suggestion while declaring as unconstitutional section 118 of the Indian
Succession Act, 1925 (ISA) on the ground that it was arbitrary, irrational and
violated Article 14 of the constitution, which says that the state shall not deny to
any person equality before law or the equal protection of the laws within the
territory of India.
The following arguments provide a strong case for introduction of a common code:
1. The Common Civil Code will bring all the personal laws governing matters
like marriage, divorce, adoption, inheritance, succession to property etc.
under a single roof and create a space for the practices of all communities
in a just manner.
(b) providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of Hindus.
6. One of the advantages of a uniform civil code will be a proper notice period
and registration of the marriage. The ceremonies will become optional -
parties can have ceremonies of their choice as a ritual, (i.e., Hindu
Saptapadi; MuslimNikah; ChristianChurch blessing, etc.) But the proof
of the marriage will be the registration and compliance with what is
required of notice, etc., as set out in the uniform civil code. Monogamy will
be mandatory and the laws of divorce will be the same for men and women
While, the following arguments show that the imposition of a common code can
pose a seious threat to the secular social fabric of the country in general and the
minority communities in particular:
1. The minority community fears the imposition of the religious customs and
rituals of the majority community under the garb of a common civil code.
4. Most religious practices have been carried out in conformity with these
personal laws since times immemorial and any attempt to alter them can
hurt religious sentiments and sow the seeds of mistrust among
communities.
While the Hindu male is granted a clear advantage, the disadvantage is suffered by
two sets of women. The first wife stands the risk of invalidating her own marriage
in a prosecution for bigamy. If she cannot prove the valid ceremonies of her
marriage, the court will validate the second marriage and thus she will not only
lose out in the bigamy proceedings but will lose her economic rights in
matrimonial proceedings. A notion still prevails amongst Hindus that a bigamous
marriage can be contracted if the first wife consents to it. Since only a first wife
can initiate the complaint the belief is not without any legal base. With the
consent of the first wife the husband need not fear conviction for bigamy. But
since the consent of the wife will not validate the second marriage, the husband
will be redeemed of all economic liabilities of the second marriage. The
disadvantages suffered by the second wife have not received any attention by the
advocates of monogamy. When a woman approaches the court for maintenance,
a routine ploy adopted by husbands is to question the validity of her marriage, by
stating that he either has an earlier marriage subsisting or that the woman is a
concubine or in popular parlance a mistress or keep. Then it is left to her to prove
the validity of her marriage both in terms of ceremonies as well as its
monogamous character. If the husband can prove that he has an earlier marriage
subsisting the second wife will have no legal recourse left.
In relation to marriage, Muslims are allowed to marry more than one wife but
there is an upper limit of four as promulgated by the Quran (4:3), Marry a
woman of your choice in two, three or four but if you can't do justice, marry only
one.
The consent of both the spouses in the marriage contract is essential for the
validation of a marriage under Muslim personal laws.
Divorce is another aspect of personal laws and the Prophet conceded that of all
the things, divorce is most tasteful to God, however it was allowed with certain
restrictions, The Quran says in Chapter 4, verse 35, If you fear a breach among
them, then appoint two arbitrators, one from his family and one from hers. If
they seek to set things alright, Allah will call their reconciliation.
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This conception of divorce however does not seem consistent with the triple
divorce that is being practised by the Muslims with immunity in this part of the
subcontinent.
Regarding guardianship, there are specific rules, both in Hindu law as well as in
Muslim law. The details may differ but the substantive principle that the interests
of the child should be a supreme consideration has been accepted by all systems.
Shah Bano, an old Muslim lady of about 60 years of age, was married to Md.
Ahmed Khan, a senior advocate of Indore some time in 1932. During the wedlock,
three sons and two daughters were born to this couple. In 1975, the appellant Md.
Ahmed Khan drove Shah Bano out of the matrimonial home. She waited for
about three years and ultimately in April 1978 she filed a petition against the
appellant under Section 125 of the Code of Criminal Procedure in the court of
Judicial Magistrate Class I, Indore asking for a maintenance of Rs. 500 per month.
On 6th November, 1978 the appellant divorced Shah Bano. His defence before the
court was that the petitioner seized to be his wife due to dicorce, and he was,
therefore, under no obligation to provide her with any maintenance. He had
already paid her the maintenance at the rate of Rs. 200 per month for about two
years and in addition a sum of Rs. 3000 by way of dower. The case was heard by
the Magistrate who directed the husband to pay a paltry sum of Rs. 25 per month
to Shah Bano by way of maintenance. It was alleged that the appellant was
earning more than Rs. 60,000 a year and had the lucrative practise at the bar.
Inspite of that, the maintenance granted by the Court was Rs. 25 per month.
Shah Bano went in revision against that order and the Madhya Pradesh High
Court enhanced the maintenance to Rs. 179.20 per month. This order came to be
challenged before the Supreme Court. A five member bench of the Supreme
Court headed by Justice Y.V. Chandrachud in their unanimous judgement held that
Section 125 of the Code of Criminal Procedure cuts across the religions, castes
and creeds because the ultimate objective of this provision is the prevention of
vagrancy and destitution. Regarding the point that Section 125(3)(b) [which
excluded the application of this provision to Muslim divorced women] was a bar
Additionally, the Supreme Court concluded that "there is no conflict between the
provisions of section 125 and those of the Muslim Personal Law on the question
of the Muslim husband's obligation to provide maintenance for a divorced wife
who is unable to maintain herself." After referring to Holy Quran, holding it to the
greatest authority on the subject, it held that there was no doubt that the Quran
imposes an obligation on the Muslim husband to make provision for or to
provide maintenance to the divorced wife.
On the point of adoption, the Christians want full adoption to be legalised. Now
there is a prohibition in Christian law; they cannot adopt and hence Christians
are sent abroad for adoption. All of them are of the uniform view that all aspects
of Christian personal law are negotiable. On the point of succession, they believe
that though the Indian Succession Act is quite satisfactory, in case of intestacy,
the Christian customary laws, that are discriminatory must go. According to
them, the widow must get full rights in a husband's property to be divided
between the children, as and when she likes.
In the John Vallamattom And Anr vs Union Of India case 2003, the Supreme Court
declared Section 118 of the Indian Succession Act to be void as it found the
provision to be discriminatory and violative of articles 14, 15, 25 and 26 of
Constitution. The Section stated that No man having a nephew or niece or any
nearer relative shall have power to bequeath any property to religious or
charitable uses, except by a Will executed not less than twelve months before his
death, and deposited within six months from its execution in some place provided
by law for the safe custody of the Wills of living persons. The Christians found
this to be an infringement upon their religious right to practise charities to attain
spiritual salvation.
The Sikh, Jain and Buddhist communities in India are governed by the same civil
laws as those for the Hindus.
Goa is the only state in India which continues to be governed by Portuguese Laws
with respect to Family Laws relating to marriage and Succession Laws. The
corresponding laws of India are not extended to the state of Goa. Portuguese law
is however applicable only to a Goan. A Goan citizenship under Article 18 of the
Portuguese Civil Code, is acquired by
i) birth in Goa, or whose father is born in Goa or whose grandfather is born
in Goa, or
ii) a woman by virtue of marraige, or
iii) by naturalisation
Many jurists have expressed their anxiety regarding the upheavals that might
follow the introduction of a uniform civil code. They have promulgated an
intermediate position, that is, the establishment of the uniform civil code must be
done slowly, with the consent of all communities. In the Constituent Assembly, K.
M. Munsh wanted to narrow the definition of religious practice. He pointed out
that the personal law of Hindus was discriminatory against women and
contravened an Indian citizen's right to equality. Therefore, "religion must be
restricted to spheres which legitimately appertain to religion, and the rest of life
must be regulated, unified and modified in such a manner that we may evolve, as
early as possible, a strong and consolidated nation."
Ambedkar can also be put in this group since he supported the inclusion of the
uniform civil code in the directive principles but said that the code would only
apply to those who wanted it to apply to them.
From the outset the problem with the uniform civil code debate was its gratuitous
emphasis on uniformity. Both judicial pronouncements and public debate
justified it as essential for national integrity. For a long time it was rarely
articulated in the public consciousness as a feminist issue. It became a debate
about uniformity versus minority rights, secularism versus religious laws and
modernisation versus tradition in the context of the new nation state. As Tahir
Mahmood, an expert in personal law, points out, the ultimate object of Article 44
(which enjoins the state to move forward towards a uniform civil code) is
secularity in family law: the call for uniformity is merely the means.
Over the years, consensus has emerged among the feminists that all religious
personal laws are discriminatory and must therefore change. There are, however,
disagreements over the means to achieve this objective, whether through a state-
sponsored civil code or internal reform. Aware that legal change cannot be
isolated from wider political conflicts and majoritarian politics, womens groups
made an attempt to distance feminist positions from the Hindu rights demand for
a uniform civil code. The womens movement has since moved to a more nuanced
position which combines the options of reform from within personal laws, with
the formulation of gender-just laws deriving from the concept of a common civil
code.
The All India Democratic Women's Association, which has a leftist leaning
supports a two-pronged strategy to achieve reconciliation between gender-just
laws as well as reforms from within. It has actively engaged in mobilising Muslim
women and encouraging community initiatives for legal reform, codification of
personal laws, and at the same time demanding legislation with regard to
matrimonial property and the custody of children, among other issues.
Replacing the system of personal laws with a uniform civil code right after
independence could have nipped the bud; the problem, however, was that, in the
immediate aftermath of Partition it would have given a signal of inferior status to
the Muslim community, which was already reeling under a sense of insecurity.
Now, more than six decades past independence, it will be difficult to accomplish
the goal of reforming these personal laws even with the best intentions and will,
and even with the considerable involvement of Muslim women.
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