The issue of reforming Muslim family laws and moving towards implementing the Uniform Civil Code (UCC) are distinctly different and segregated issues.
The current dispensation led by the BJP, before the upcoming parliamentary elections, has proposed to go ahead with legislating and implementing the UCC. The 22nd Law Commission of India (LCI) has been constituted, and it has solicited proposals from the citizens, to be emailed to the Member Secretary of the LCI. Certain political-ideological forces have always been insisting upon the UCC.
Many segments of Muslims have been reacting to it in a manner as if the UCC is simply and exclusively an attack on their personal laws. As a result, responding to the 22nd LCI, many Muslim leaders and theologians looked upon it as referendum or plebiscite on the UCC. These theologians and leaders appealed to the community to reject the UCC.
Thus, both sides (the political proponents of the UCC, as well as the opponents belonging to various ideological persuasions) have pushed ahead the politics of communal polarisation.
The Muslim side is claiming that they have submitted several lakhs of emails to the LCI rejecting UCC. Announcements from masjids in the Friday prayers were made to facilitate this, besides using social media. Though, many of such speeches from Masjids also said that in the absence of any draft proposal from the government there is really no need to panic. Also, noteworthy fact is, in 2018, against the reform in the Instant Triple Talaq (ITT), they (ie the Muslim Personal Law Board-MLPB and allied organisations) did gather around 2 crores of signatures against the proposed reform. This time it confined only to several lakhs (the figures are unverified). This may indicate a declining support for the theologians among the Muslim populace.
Collective hypocrisy of both sides of the communal divide is apparent.
It is a relatively lesser known fact (despite Reba Som’s research, MAS, 1994) that in the 1950s, the UCC was brought to the fore by the Hindu Right across political parties, just to forestall the Nehruvian reforms in Hindu Personal Law. They didn’t have the conviction to support a UCC.
Just like the Muslim regressive forces, who oppose UCC not because they hate homogeneity and love heterogeneity within the religious communities, rather, they oppose UCC just to forestall any reform in Muslim Personal Law. These brand of Muslims think only Muslim rulers can interfere into Islam. Non-Muslim rulers cannot.
Nehru had excluded Muslims while legislating reforms in Hindu Laws using an argument that the reforms among the religious minorities would come from within themselves. That moment is yet to come, even after over seven decades. This is what has come to become one of the foremost components of allegations of Muslim appeasement by the Indian state.
In 1973, the All India Muslim Personal Law Board (AIMPLB) was established. The immediate reason was to oppose the law of child adoption amended in 1972. This amended law didn’t directly affect Muslims. Yet, they went ahead with a fierce street-level opposition. This was to demonstrate Muslim strength through identity politics and to warn the government of the day.
Let it be made clear that there is a sharp distinction between adoption and custody. In Indian secular law (Guardians and Wards Act 1890), the custody of the baby disputed between the biological and foster parents is determined keeping in mind the welfare of the baby and also the wish of the baby.
This is quite consistent with what Prophet Muhammad had done in the case of his adopted son, Zayd. The custody of Zayd continued with the Prophet as per the wishes of Zayd, despite his biological father, Harisa having come to claim him back. So far as adoption is concerned, the Quran instructs believers not to conceal the biological parentage of the adopted baby. This is often popularised as summary prohibition against adoption.
The AIMPLB refuses to issue any clarification. As a result, even the higher judiciary almost invariably adjudicates against Muslim foster parents, invoking this misinterpretation. There is no law to punish the biological parents, as to, if they, as afterthought, invoke Islamic prohibition against adoption, why did they give away their baby in adoption, to begin with?
Thus, in the case of Hindus, any signed document is accepted by the judiciary as proof of adoption, whereas, in the case of Muslims and Christians, adoption is invalidated despite such documents. Needless to say, upsetting the custody of the babies in this manner leads to psychological and overall ruination of the child’s life and career.
Fortunately, since January 2016, the Juvenile Justice Act has come into force which is of some assistance to Muslims as well. All adoptions prior to 2016 continue to be treated by the higher judiciary as per the misinterpreted Muslim law. Recently, the Supreme Court of Pakistan even went on to validate the concealing of biological paternity. Is the Indian judiciary then, more shariat-abiding than the Islamic countries, not just Pakistan?
Likewise, on the question of Un-Quranic Instant Triple Talaq (ITT; divorce), the AIMPLB refuses to institute or initiate necessary reforms. Most of the Islamic countries have reformed this practice. Even during the infamous the Shah Bano issue, in early 1986, the AIMPLB leader Ali Miyan Nadvi (1914-1999) misleadingly persuaded the then Prime Minister Rajiv Gandhi to ignore the reforms carried out in the Islamic countries. This is admitted by Nadvi in his memoir (1988).
This fact is known to very few people that Mohammad Ahmad Khan (a rich and influential advocate of Indore), had married a cousin of his wife Shah Bano (1916-1992). After that he threw Shah Bano out of their residence when she was 62 years old. Shah Bano went to the lower court in April 1978 for maintenance. The lower court issued an interim order for maintenance. Just to avoid paying maintenance, on November 6, 1978, inside the trial court, Mr Khan pronounced ITT. Subsequently, the issue reached High Court and eventually to the Supreme Court. It was the maintenance awarded by the Supreme Court, in 1985, which was upturned by the Parliament in 1986. In its exchange, the AIMPLB delegation to the PM had agreed to go ahead with unlocking the Ayodhya Masjid.
Now coming to the law related to inheritance of parent’s assets.
In the 1930s, when the Shariat law was being codified, a daughter of the landed, powerful family of Sikandar Hayat Khan Tiwana, the Premier of the undivided Punjab asked for her right in landed properties as per the Sharia law. Tiwana, in order to find ways of denying this demand to the woman, approached Jinnah to shelve the Shariat codification. Jinnah came out with outrageously manipulative and dishonest arguments: Firstly, the local customs are laws, hence, the custom of not letting daughters inherit the landed property would continue, despite the Shariat law; Secondly, agriculture and land are provincial subjects whereas the Shariat Act would be a subject of central legislature.
In 1937, M A Jinnah piloted the Shariat Act, seeing in this an opportunity to forge an all India Muslim political constituency to pursue his separatist politics. We are yet to know, if Maulana Azad, Maulana Husain Madani of the Muttahidah Qaumiyat fame, and even Maulana Maududi really said anything on the Shariat Act 1937.
In 1962, Jinnah’s Pakistan introduced some reforms in the family laws, such as: ITT was prohibited; justifiable and proportionate to the economic status of the husband, amount of alimony had to be paid to the divorced woman; polygamy was restricted to the extent of almost prohibition. Without a written consent of the existing wife, another wife cannot be brought into marriage; minimum marriageable age was also raised, etc. Yet, in 1986, in India, the Ulema and other leaders went on to ruin the likes of Shah Bano. They still continue to do so quite shamelessly.
The latest criminalisation of the ITT by the current dispensation, in 2019, is acting as very good deterrence against ITT. But, the issue of maintenance to the separated woman, and adequate or proportionate alimony to the divorced women still remain unresolved.
The Union government should therefore make it explicit and categorical that the Cr PC Section 125 shall remain enforceable for the divorced Muslim women while seeking maintenance and alimony. Let it be known that, in early 1986, while negotiating with the Prime Minister, the delegation led by Ali Miyan Nadvi had promised that they will make some institutional arrangement to extend financial help to the divorced women having been denied maintenance ad alimony. This promise is recorded very clearly in the Urdu memoir (1988), Karwan-e-Zindagi, vol. three, chapter four. This promise has been chosen to be forgotten by the Ulema, intelligentsia and the community. Already, Muslim men have found a way around the restriction on ITT —torture wife to give khula.
In 2018, the spokesperson of the AIMPLB issued a statement that they will issue a model nikahnama inserting a column for pledge from the bridegroom not to go for ITT (Times of India, Lucknow, February 3, 2018). Within a week’s time, in the 26th Plenary Session of the AIMPLB (in Hyderabad, 9-11 February, 2018), the AIMPLB conveniently chose to shelve the idea. Both the governments and intelligentsia need to expose the abovementioned duplicities of the segments of Muslim leadership.
It is distressing that even the modern institutions funded by the secular state of India, such as the AMU, Jamia Millia Islamia (New Delhi), MANU University (Hyderabad), and their departments of studies such gender and women studies, Islamic studies, theology, law, social sciences, etc., have not been able to pursue a reformist agenda. Quite a lot of them have either maintained a dishonest silence or have endorsed the regressive positions. Both ways, they are on the regressive side. This is extremely disgusting, to say the least.
There has to be a compulsory registration of marriages, divorces, besides the registration of birth and death.
While the grandfather is alive, if someone loses his/her father, then s/he forfeits his/her right to inherit the grandfather’s assets. This law also needs to be done away with by the Indian legislature.
Muslim parents who have only daughters — if don’t transfer their assets while they are alive—stand to pass down only a portion of the father’s assets to the daughter/s. Even a will registered in a court of law to the contrary will not enable this inheritance, as per existing Indian Muslim personal law. Owing to this discriminatory law, some Muslims have begun to re-register their marriages under the Special Marriages Act.
Also, some Muslim daughters have begun to challenge this discrimination in the Supreme Court.
Muslim parents having no kids, cannot even register a will in the court of law bequeathing all their assets. As per the Muslim law, they can bequeath only a third of their own assets to anyone.
The Supreme Court, despite Hindu Law having contrarian provisions, has given verdicts ensuring equal rights to inherit parental assets by daughters and sons. This right to gender justice must be made to prevail in the case of Muslims as well.
By way of conclusion, historically speaking, without the state’s backing, hardly has any reform taken place or allowed to prevail. During colonial period as well, reforms on abolition of Sati (1829), Widow Remarriage (1856), law against child marriage, etc., happened only with state-backing.
People need to tell the current dispensation that it needs to go beyond electoral gimmicks, and implement the abovementioned seven aspects of family law reforms (including gender-just laws). Meanwhile, a draft UCC should be prepared for wider debate. (Sadly, at the moment, they too, are shelving family law reforms, in the name of opposing the UCC). The personal law reforms cannot wait. The UCC can and should await proper and participative deliberations. This is something even the Liberal-Left should also try to understand. That is the way ahead and the only way to avoid competitive communal polarization.
Related:
IMSD supports a religion-neutral, gender-just UCC
The call for Uniform Civil Code is politically motivated: Flavia Agnes
The Implementation of a Uniform Civil Code
Uniform Civil Code Or Codified Personal Law?
In Case of a Uniform Civil Code, How Should Muslims Respond?