Introduction
Currently, within the existing legal framework, there exists no uniform family-related law in a single statutory book for all Indians that is acceptable to all religious communities in India. The Uniform Civil Code (UCC) is an aspiration in that direction. It refers to a common civil law bringing a myriad of complex provisions of family laws under a single system. The Constitutional expression “We the People of India” in its dynamic unity integrally includes a national plurality of the people of India cutting across race, religion, caste. All its citizens need to seek a favourable solution that desiderates harmony and accommodative religious pluralism seeking a balance between right to religion and right to justice. The UCC reaffirms a commitment to a cardinal principle of equal rights in the legal sphere for all communities alike. Justice is the cornerstone that counts.
It is not simply one of minority protection but one of treating each human being with the equality and dignity safeguarding the foundational principle justice that is the Constitutional right of every Indian citizen. The UCC is in the best interest of religions. It does not negate religious sentiments but regressive dogmas that are not in consonance with harmony, justice, equity and good conscience.
In view of a fast-changing world, particularly after the post-partition period, drawing together as a global village, with science & technology expanding with lightning speed, new evolving circumstances in the crucial socio-economic sector have demanded a fresh balancing perspective in various fields, including the legal field. Family, as an integral part of society, needs a similar channelling. Though the exact outlines of such a code are yet to be spelled out, progressive modern aspects from all existing personal laws will need consideration while disregarding those that are regressive. Reform and the formulation of secular laws and the autonomy of communities need not be exclusive processes. One need not threaten the other. Consensus is part of the democratic process. Deliberations for the implementation of a UCC is a crucial step forward.
Uniform Civil Code (UCC)
Besieging the Indian political scenario for several decades, the history of the UCC has been ridden with polemics and controversy. Time has not blunted the edge of this debate. The very term is severely contested within the realm of identity and electoral politics as well as the range of interest among feminist groups and activists engaged in social change. To grapple with its complexities in its current context, the predominantly distressing factor is the shrinking area of democratic standards and secular space leading to a sharp divide in opinions in an increasingly communalised national context.
The quest towards a UCC serves as a testing point of the true nature of our democracy. Impressively written into Part IV Article 44 of the Indian Constitution as a Directive Principle of State Policy, its aim to achieve a far-reaching equality for all Indians alike in the realm of civil and personal laws as initially conceptualised by the makers of the Constitution, has simply remained a distant dream. Mired with ferocious debates fuelled with the cataclysm of religious angst, this vision of our founding fathers still remains an aspiration.
It was in 1947 that the idea of a Uniform Civil Code was seriously discussed in the Constituent Assembly. A committee formed for the fundamental rights held the proposal for the Uniform Civil Code to be part of the Directive Principles of State. Thus, Article 44 of the Constitution says that: “the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
Although Article 37 of the Constitution itself makes clear, that the Directive Principles “shall not be enforceable by any court,” they are, nonetheless, “fundamental in the governance of the country”. A compelling task in post-modern India is the conscious navigation for the required positive change a for a better future. Over the years various directions have been issued by the Apex Court for its implementation. Besides bringing a labyrinth of segregated laws that govern and regulate subjects on areas of a private sphere or family law such as marriage, divorce, maintenance, succession, minority, and guardianship, etc. under one umbrella, the objective of this law is to ensure that all human relationships and needs are non-differentiated.
In a democracy, welfare as well as the conceptualisation of social justice are inseparable constituents. Hence, in this debate, the lens of political parties, the clergy, feminists, the state and judiciary should crucially focus and strategise on this neglected long standing issue. Political representatives, often taking shelter behind “safer strategies tend to lessen this prodigious reality. Many of India’s citizens support reformist agenda for reforms. Particularly, feminist movements, within all communities challenge discrimination at all levels. Autonomous women’s groups in India have consistently raised demands for a UCC, staunchly contesting patriarchal, misogynistic attitudes.
During the pre-independence colonial era, the Lex Loci report of October 1840 emphasised the need and necessity of uniformity in the codification of Indian law, particularly in the areas of crimes, proof, and contract. Hence, over a period of time, laws like the criminal, civil laws having a direct bearing on human relationships fruitfully evolved gaining due recognition without a storm. However, as the Proclamation of the Queen of 1859 pledging complete non-interference in religious affairs, personal laws maintained status quo.[1] Although distinguished leaders like Jawaharlal Nehru and Dr. B.R. Ambedkar campaigned for a standard civil code during the Constitution’s development, but due to religious sensitivities, and perhaps a lack of public understanding at the time, the Uniform Civil Code was not codified, but was only included in the Directive Principles of State Policy (DPSP, Article 44).
After the first post-colonial agenda envisaging legal uniformity in criminal laws was established, the elusive question of the methodology to be employed in skilfully using an altered harmonised model of uniformity of family laws as a viable option that could be turned into the official legal reality in India today, has been fiercely argued, especially by clerics. If, in the introduction of criminal laws, no religious leader insisted on retaining particular religious laws whereby all citizens use these laws equally, what interest would be served to differentiate the applicability of a common personal law to all Indian citizens without obscuration?
Unfortunately, misunderstandings accompanied by misinformation regarding the objectives as well as the implementation regarding the Uniform Civil Code abound. Some Muslims see this as part of an onslaught of Hindu domination over minorities. In view of the recent controversies and the silence emanating from the top leadership on these controversies, minorities’ insecurities intensify.
Nevertheless, the points of consideration are several. Signs of a modern progressive nation—a nation moving away from caste and religious politics with a provision of equal status to all citizens, promotion of gender parity and national integration will bring every Indian, regardless of caste, religion, tribe or ethnicity, under one law. This, besides halting vote bank politics indulged in during every election, will take India forward towards its goal of transformation and development.
While viewing personal laws in the Indian context, it must be stated that it is not Muslim personal laws only that are in need of urgent reform in several areas besides those relating to gender equity. All communities are structured in a manner where male supremacy dominates within the family and outside. There can be variations in degrees of patriarchy or gender discrimination, but there is little doubt that in the overall context, women’s relegation reinforces itself, generally leaving little space for egalitarianism. A survey conducted by the Census authorities in 1961 on polygamy reveal this fact.[2]
Muslim Personal Law in the Indian Context
Those from the Muslim community contesting the enactment of a UCC, argue that as the source of personal laws are religion based, their fundamental right to religion under the Constitution are violated. Hence, implementing of UCC would be in contravention to Articles 14, 25, 29 and 30 that permit them the practice and propagation of their religion. However, the valid question here would be whether the practice of the triple talaq may be considered within the purview of religious activity despite the fact that it is not sanctioned by the primary religious text of the Quran?
The existence of the reprehensible instantaneous,”sinful” Talak-i-bidat, a remanent of the customary patriarchal and misogynistic practice of pre-Islamic Arabia, an innovative, heretical irrevocable form of divorce as its name suggests, whereby the husband was given the unwarranted right of a pronouncement of the word talaq thrice in one sitting making the divorce irrevocable was duly practised.
Further, in the expression “Muhammadan law” itself with its variations of spelling, popularly used to describe “Shariah Law” in India, was popularly given currency in India by the British regime. The law is therefore sometimes referred to as the Anglo-Muhammadan Law. “The British rulers in India did, in the exercise of its legislative powers, curtail the scope of Islamic laws in this country. Within the scope of those portions of Islamic Law which survived this process of gradual curtailment, their legislative contribution, however, remained negligible”[3] Moreover, a critical examination the contours of “Muhammadan Law” as practised in India, establishes the need to move away from the stereotypical colonial interpretations of Islam, reaffirms the vast possibilities of rights of Muslim women otherwise denied to them as a consequence of patriarchal interpretations.
Perhaps the most controversial of these challenges was the well-known case of ‘Shah Bano’ and the ensuing chaos that led to the passing of the Bill entitled “The Muslim Women (Protection of Rights on Divorce Act)”[4] that overruled the judgement. It was the Supreme Court that came to the rescue of Muslim women through its decision in the Danial Latifi case.[5] More recently, in ‘Shayara Bano’,[6] the Supreme Court once again restored our faith in the ideals of equality and justice that it seeks to uphold by abolishing the highly contentious provision of talaq-e-bidat, paving the way for the Muslim Women (Protection Of Rights On Divorce) Bill, 2019, that criminalises the practice.[7]
The other argument forwarded by the Muslim minorities is that the enactment for the UCC must come from within the community. However, as the above instances demonstrate, every opportunity at their disposal was lost to codify the personal law and re-establish the justice given to them by the religion. Such implementation was ultimately left to the secular courts. Most Muslim personal laws yet remain uncodified and traditional in their content and approach. This is so despite the fact that over the years, several countries with a Muslim majority population like Turkey, Cyprus, Tunisia, Algeria, Pakistan (orthodox and conservative), Bangladesh, Malaysia, Indonesia, Jordon, Egypt, Iran, Iraq, Brunei, the UAE, Indonesia, Libya, Sudan, Lebanon, Saudi Arabia, Morocco and others either outlawed it, declared it illegal or used legal instruments and devices to bring about strictures in laws to reform it. In India, it remained a static practised law with no effort on the part of Muslims towards reform.
The contrasting responses to the Shah Bano and the Sharaya Bano case encapsulated the evolution of Indian society and polity seen in the past three decades. The verdict of the Court underlined the changing social and political dynamics in India that enabled a group of Muslim women to successfully overcome the conformist elements within the community. The liberal intelligentsia and even the sceptics and cynics supported the cause of gender justice.
Khula
Again, with reference to Khula, the recent landmark judgment of the division bench of the Kerala High Court of Justice Muhamed Mustaque and Justice C.S Dias, ruled that Islamic law recognises a Muslim woman’s right to demand termination of a marriage (Khula). “A Muslim woman has the absolute right to terminate her marriage at will and does not need her husband’s consent for it, while dismissing a review petition filed by a man challenging the divorce granted to his wife, under the Dissolution of Muslim Marriages Act,1939. “We declared that the right to terminate the marriage at the instance of a Muslim wife is an absolute right, conferred on her by the holy Quran and is not subject to the acceptance or the will of her husband,” said the division bench of Justice A. Muhamed Mustaque and C.D. Dias, of the Kerala High Court.[8] The court noted that Muslim women have the extra-judicial option of calling off the marriage “unilaterally” and went on to observe that the husband’s petition against the divorce was not “innocuous” and appeared to have been filed at the behest of “Muslim clergies and hegemonic masculinity”.
This judgment of the Kerala High Court is precisely celebrated for resurrecting the authentic position under Muslim Law reiterating the legal position that is holding the ground since more than 1400 years on the Muslim woman’s right to obtain divorce without Court’s intervention. In perfect consonance with Islam where the famous examples of Jamila and Bariah whose marriages were dissolved by the Prophet at their instance, in spite of the fact that the husbands of both were anxious to continue the marital tie bears testimony to this fact. The right of the wife to initiate the proceeding cannot be denied.[9] Muslims did not again seize the golden opportunity offered to effect transformation.
The greatest progress in law reform has been achieved by governments who stood firm, despite hostility of the clergy. Women achieved something approximating legal equality with men under the forceful leadership of the charismatic nationalist leaders like Kemal Ataturk (in Turkey in the 1920s) and Habib Bourguiba (in Tunisia in the 1950s), under the Shah of Iran in the 1960s, and in the Marxist states of the Peoples’ Democratic Republic of South Yemen and Somalia in the 1970s.[10]
Polygamy
It is crucial to state that polygamy in Islam is a restrictive rather than a permissive ordinance. Evidence for this is apparent in the only Quranic verse dealing with polygamy which occurs only in connection with the protection and rights of orphans in Sura Nisa (4:3). Its restrictive intention regarding the subject is underpinned in 4:129 “You are never able to be fair and just as between women, even if it your ardent desire.” The legislation introduced in the Quran on this aspect was a great improvement over unlimited polygamy and accepted sexual mores, thus clearing the way for monogamy. Its revelation occurred during the battle of Uhud when destitution and hardship left women in a vulnerable position, subject to manipulation and exploitation.
Turkey was the first to introduce reform of family laws, issuing the Ottoman Law of Family Rights (Qanun al Huquq qarar al-‘Â’ilah al-‘Usmâniyyah—a Civil Law) in 1917. It was the first Muslim-majority country to legally ban polygyny in 1926. This decision was not based on religious reasons, but rather was an entirely secular ban deeming modern day socio-economic conditions for polygamy as “unrealisable”.[11],[12]
Tunisia was the next country to ban polygyny through legislation passed in 1956 and restated in 1964. Unlike Turkey, Tunisia banned polygyny on religious grounds, citing two main reasons. First, the Quran limited the practice of polygyny, thus it did not support the practice and clearly intended for the practice to be eliminated over time (4:3). Second, the Quran demands equal treatment of all wives in a polygynous marriage, which was deemed impossible, thus making the practice illegal and punishable by law (4:129).[13]
Several other countries introduced strict laws to regulate and restrict polygamy. Algeria’s considerably amended Code de la Famille (Family Code) and Morocco’s new Moudawana (Family Law) (Articles 40-46) have both introduced greater regulation, extremely strict in the case of Morocco. Egypt (1920; Sudan (1929); Algeria (2005); Jordan (1951); Syria (1953) Morocco (1958); Pakistan 1961; Iraq (1959); Iran (1967, 1975); Kuwait, Lebanon, Bangladesh, 1971. Noel Coulson; Doreen Hinchcliffe (1978).[14] New or amended family codes are awaiting formal introduction in some francophone West African countries (Benin, Guinea, Mali, Niger).[15]
In India, voices for the demand to outlaw polygamy are rising. Inundated with a sense of misery, gloom, a lack dignity, deprivation, self-respect such a demand is increasing. Despite the trauma and suffering Muslim women undergo in India, despite their pleas, Muslim Personal Laws on polygamy yet retain this practice remaining uncodified and traditional in their content and approach. A study released by Bhartiya Muslim Mahila Andolan (BMMA) revealed “nearly 300 women were interviewed, among which 84 per cent of wives said that polygamy should be outlawed.”[16] [17]
Conclusion
Undoubtedly, the task of actually devising a set of rules that will govern all communities in family law, is both formidable as well as cumbersome, both in view of the legal procedure as well as vast range of interests and sentiments involved. Considering the complexities involved, including compiling and envisaging a comprehensive variegated range of interests to be addressed including minority fears of the imposition of majority’s preferences to override their interests, the task is challenging. It should be noted however, that democracies and developed countries like USA, Canada, Australia, UK, Russia, Turkey and others have adopted the Uniform Civil Code to eliminate discrimination amongst the communities. The status of a Uniform Civil Code is a guarantee of equal rights, regardless of caste, creed and colour, and is essential to prohibit discrimination based on creed or religious persuasion.
The Goa model needs special mention, especially in the light of the Supreme Court Judgement where the court praised the State’s unique position of being the only province with Uniform Civil Code, albeit its concession. While mentioning the fact off its being the only state to where verbal divorce and polygamy cannot be practised, it likewise highlighted the Governments failure of fulfilling the expectations of our Founding Fathers.
Notwithstanding the plethora of challenges, it must also be duly recognised that reform or formulation of a Uniform Civil Code can no longer be skimmed over by avaricious dialectics. The denial of discussion, dialogue and debate towards attainment of goals and legal dictums halt advancement and progress, and can be counter-productive. Strategies can be formulated through the democratic process of consultation and consensus. The undertaking needs to be pursued with consistency and vigour.
To become a legal reality, the mandate of the State accompanied by high-minded statesmen and legal experts, to promulgate laws with a creative vision, diminishing disparity, affirming cohesion with social sensitivity, and with a visualisation of fusion and plurality, both in the majority community and the minority communities, can be constructively generated. Since it involves a change in laws, an obvious prerequisite is sufficient support for the move within Parliament.
Postponement or delay getting caught up in dispute and strife is an old tactic. It will stake the vision, the perspective, and the aspiration for social change. In our struggle for implementation of equality, cognisance of justice, incapacitating gender discrimination, rectification, and reform are the key. One might wonder, for how long the citizens of this country will have to bear the law’s delay and the apathy of political offices, in failing to secure for them the ideals of our own Constitution. The possible way is for the Courts to urge the Government for its implementation.
Author Brief Bio: Zeenat Shaukat Ali is the Director General, Wisdom Foundation (World Institute of Islamic Studies for Dialogue, Non-violence, Gender Justice and Peace).
References:
[1] Muslim and Hindu personal laws be left out of such codification; The Proclamation of the Queen of 1859 pledged complete non-interference in religious affairs.
[2] The incidence of polygamous marriages was highest among Tribal communities 15.25%; Buddhists 7.97%, Jains 6.72%, Hindus 5.8%, Muslims 5.7%. Scroll In; “It may be allowed by Muslim personal law, but the incidence rate is not that high,” said Ritu Menon, a feminist publisher and independent scholar, who worked on the subject as co-author of the book Unequal Citizens: A Study of Muslim Women in India. “This is true particularly in relation to Hindus, but across all communities, polygamy is not that common. Bigamy, on the other hand, is fairly common and that’s true across religions.” Monday, December 19th 2022.
[3] Dr. Tahir Mahmood, “The Muslim Law of India” Law Book Company, Allahabad, U.P. 1980; Dr. Tahir Mahmood is a former member of the Law Commission and ex-Chairman, National Commission for Minorities.
[4] Mohd. Ahmed Khan v. Shah Bano Begum and Ors, AIR 1985 SC 94 Muslim Women (Protection of Rights on Divorce) Act, 1986 hereinafter written as the Act.
[5] Danial Latifi & Anr v. Union of India (2001) 7 SCC 740
[6] Shayara Bano v. Union of India, (2017) 9 SCC 1.S.4,
[7] “Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal;– Any Muslim husband who pronounces talaq upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.”
[8] The offence is recognized as cognizable i.e., the arrest can be made without a warrant on a report of the same by the wife. Shaukat Ali, Zeenat; ‘The Empowerment of Women in Islam; 1997, Simon and Feffer; pp 336-338
[9] ‘Khula absolute, not subject to husband’s will’ — Kerala HC on Muslim woman’s right to divorce, Story by Rewati Karan •The Print, 3 Nov 2022
[10] Ann Elizabeth Mayer; “Law and Women in the Middle East” Women in a Changing World; February 17th 2010.
[11] Tahir Mahmood, Family Law Reform in the Muslim World (Bombay: N. M. TRIPATHI PVT. LTD,1972), p. 17
[12] Muslim Countries introduced reform in family law by means of regulations and legal instruments through the application of a number of legal devices like ijtehad, (creative reinterpretation); maslahah mursalah (public interest); tadwin (codification); tashri (legislation; mudawwanat al-aḥwāl al-ousaria-shakhṣiyyah (personal status code); qanun (statute); marsum (ordinance); manshur (publications); qarar (ruling, regulation)
[13] DYNAMICS OF TUNISIAN POLYGAMY LAW IN GENDER PERSPECTIVE Ayyus Sahidatul Chusnayaini Fakultas Syari’ah UIN Maulana Malik Ibrahim Malang; Tunisian Family Laws, British Embassy Tunis.
[14] Noel Coulson; Doreen Hinchcliffe (1978). Louis Beck and Nikki Keddie (ed.). Women in the Muslim World. Cambridge, Massachusetts: Harvard University Press. p. 40.
[15] Kusha, Hamid R. “Polygyny”. The Oxford Encyclopedia of the Modern Islamic World. Oxford Islamic Studies Online.
[16] Mirror Now, 84% Muslim women want polygamy outlawed, says study curated by: Aditya Paul Mumbai: Updated Dec 22, 2022 | A nationwide study released by Bhartiya Muslim Mahila Andolan (BMMA) on Tuesday revealed that being in a polygamous marriage causes enormous emotional trauma to the woman. During the research, nearly 300 women were interviewed, among which 84 per cent of wives said that polygamy should be outlawed. The questionnaires were distributed to women in polygamous marriages in West Bengal, Uttar Pradesh, Odisha, Telangana, Tamil Nadu, Karnataka, Maharashtra, Gujarat, Madhya Pradesh, Rajasthan and Delhi.
[17] Protect Our Dignity, Ban Polygamy, Say Indian Muslim Women to PM; Cited a national research by BMMA which claims that out of 4710 Muslim women from 10 states, 92.1 percent women want a complete ban on oral divorce while 91.7 percent are opposed to polygamy. THE QUINT; Updated: 28 Nov 2015, 6:36 PM IST
This article was first published by the India Foundation on January 5, 2023.