1
Muslim Personal Law,
Uniform Civil Code and Judicial Activism- A Critical Study
SUMMARY
THESIS SUBMITTED TO THE
UNIVERSITY OF LUCKNOW
FOR THE AWARD OF DEGREE OF
DOCTOR OF PHILOSOPHY
Supervisor :Dr. Mohd. Ahmad
Associate Professor
Faculty of Law,
University of Lucknow, Lucknow / Submitted By :
Prabodh Kumar Garg
Research Scholar
Faculty of Law,
University of Lucknow,
Lucknow
FACULTY OF LAW
UNIVERSITY OF LUCKNOW,
LUCKNOW, U.P. (INDIA)
2014
1
"Muslim Personal Law, Uniform Civil Code & Judicial Activism: A Critical Study"
Uniform Civil Code of India is a term referring to the concept of an overarching Civil Law Code in India. A uniform civil code administers the same set of secular civil laws to govern all people (citizen as well as non-citizen) irrespective of their religion, race, caste, sex, place of birth or any of these. Article 44 of the Constitution legislate a commitment to the gradual establishment of legal uniformity in India, the aim being that the state "shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." This directive is considered a threat by elements of religious minority communities, who continue to be governed by their own personal laws in family matters, as applied within the superstructure of the India Legal System.
The question of Uniform Civil Code is a very-very sensitive as well as subjective and diversified issue considering the fact that India is a country which has a multifarious race, caste and community. The law is relating to marriage, divorce, maintenance, guardianship and succession governing the Hindus, Muslims and Christians etc., is different and varies from one religion to other. There are different laws like the Hindu Marriage Act; the Hindu Succession Act; the Hindu Minority and Guardian ship Act, the Hindu Adoption and Maintenance Act governing the personal matters of Hindus. The Shariat Act, The Dissolution of Muslim Marriage Act and the Muslim Women (protection of Rights on Divorce) Act etc., which are based on the tenets of Holy Quran, govern the personal matters of Muslims. Similarly the Indian Christians are governed by the Indian Christian Marriage Act, the Indian Divorce Act and the Cochin Christian Succession Act etc. Parsis are governed by a different set of laws Thus it is clear that there is no uniformity in all personal laws as they confer unequal rights depending on the religion and the gender. The common areas covered by a civil code include laws related to acquisitions and administration of property, marriage, divorce and adoption. This term is used in India where the Constitution of India attempts to set a uniform civil code for its citizens as a Directive Principle, or a goal to be achieved.[1]
In the early Hindu history, religion came to be closely associated with the growth of law, for the simple reason that men feared God before they gave authority to kings. Divine sanction, rather than kingly edicts was more powerful in enforcing such laws. The laws, the people followed could be called laws of nature being based on custom, ascertained by experience as being the best for community in the long run. In such circumstances it was natural to believe that here existed some supernatural being be it God or a deity at the back of it all. The early Hindu law was at the stage when religion was the governing force and consequently the priest class or the Brahmins enjoyed supremacy and expounded the religion and law. The study of Hindu legal history shows that during Hindu period there was no interference of the State with Hindu law. They enjoyed complete immunity and the whole affairs were regulated by their personal laws.
It is Muslim[2]jurisprudence which furnishes an examples of complete union of law and religion. "In Islam", says James Bryce, "Law is Religion and Religion is Law, because both have the same source and equal authority being both contained in the same divine revelation."[3] Islam claims its jurisdiction over every aspect of a Muslim's life. Its attitude towards non-Muslims or unbelievers was that they must either be converted or subjugated or killed. Arab pagans were given a choice only between conversion and death.[4] The Indians, however, could not be given the same treatment. The task of killing or converting the vast multitude of non-Muslim population of India could not be achieved owing to its impossibility.[5] Islamic law interfered with non-Muslims only were they were directly or indirectly involved with Muslims. A good illustration is criminal law where Islamic principles applied alike to Muslims and non-Muslims.[6]
In a multicultural society like India, Britishers consolidated their position and they completely changed the criminal law. They introduced their own system to deal with the various matters of civil law. They did not want to hurt the religious susceptibilities of the Indians. Interference in religious matters, they considered, was not at all conducive to their friendly trade with Hindus and Muslims or their political stability. Warren Hastings enacted certain schemes for the first time in 1772. Provisions were made that in all suits regarding inheritance, marriage, caste and other religious usage and institution, the laws of the Koran and Shastras were to be applied, in respect of the Muslims and Hindus respectively.[7] Warren Hasting's policy of preserving Hindu and Muslim law was supported by the British as a whole.
The legal system of India in the early nineteenth century was one of confusion and chaos. Hindus and Muslims were governed by their own laws, non-Hindus and non-Muslims were governed by the other set of laws. The purpose of codification appears to have been to achieve certainty and uniformity. Lord Macaulay was made the law member and subsequently the Chairman of the First Law Commission of India set up in 1833.
In 1856, the Hindu Widows' Remarriage Act legalizing remarriage of Hindu widow was passed at the instance of a reformist section of the Hindus.[8]Then came the Hindu Women's Right to Property Act, 1937. In 1929 Child Marriage Restraint Act was passed to discourage the practice of existing child marriages.
At this time three Acts which affected Muslim as well are the Caste Disabilities Removal Act, 1850, the Child Marriage Restraint Act, 1929, and Dowry Prohibition Act, 1961 were passed.
The three central statutes were also passed during the British period, they are- The Wakf Act, 1913, the Muslim Personal Law (Shariat) Application, 1937, and the Dissolution of Muslim Marriage Act, 1939. In 1937, the Muslim Personal Law (Shari'at) Application Act was passed with a view to abrogate these customs and bring Muslim communities under the Muslim law.[9]
In the chapter legislative history of personal laws in India, the discussion has been meticulously arranged into three heads, namely-Hindu Law and the Legislature, Muslim Law and the Legislature and Christian and Parsi Laws and the Legislature. The Central Government however, passed the Hindu Code Bill which is divided into different parts in the form of four different Acts, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act, 1956; Hindu Minority and Guardianship Act, 1956; and Hindu Adoption and Maintenance Act, 1956.
In the realm of Muslim personal law, the legislative activity appears to be extremely limited; and that too on the initiative or demand of the Muslim community. In both pre and post-Independence era, the attitude to the legislature towards the Muslim personal law was of ‘non-interference’. The Shariat Act, 1937, came into operation on 7th October, 1937, and is applicable throughout India. It applies to every Muslim of whatever sect or school. One provision of the Act lists those matters which among Indian Muslims, shall invariably be governed by the Muslim personal law.[10] There are; (i) marriage, (ii) dissolution of marriage in any form, (iii) guardianship, (iv) dower, (v) maintenance, (vi) gifts, (vii) trusts, (viii) waqf and (ix) intestate succession (excepting that concerning agricultural lands).[11]
This Parsi Marriage and Divorce Act, 1865, was based on the Matrimonial Causes Act, 1857, of England and its principal effect was to make Parsi marriage monogamous.
There is also the Special Marriage Act, 1954, which is a secular code of marriage law of a general nature under which any two Indians irrespective of their religion may marry. A couple married under this law comes to be governed by the Indian Succession Act, 1925.[12]
As far as the issue of personal laws is concerned, it evoked considerable conflict of opinion amongst the members of the constituent Assembly. It is interesting to note that “whilst all the Muslim speakers favoured continuation of the British policy of neutrality, the Hindu speakers emphasized that the guarantee of religious freedom by draft article 19 did not exclude the jurisdiction of the state in matters of personal law”.[13] The Muslim speakers argued that neither of the draft articles 19 and 35 empowered the state to legislate on personal laws.[14] Accordingly, article 35 of the draft Constitution provided that “The State shall endavour to secure for citizens a uniform civil code throughout the territory of India.”
On 26 January 1950 the Constitution was adopted, incorporating a directive to the state to “Secure for the citizen a uniform civil code throughout the territory of India” and specifying under one or the other Legislative Lists matters traditionally regulated by personal laws.
As far as the legislative powers on the matters relating to personal laws, are concerned, Article 372 of the Constitution is the most important article. The language of article 372 (1) is analogous to section 292 of the Government of India Act, 1935, which also recognized the continued application of “all law in force” then. The Federal Court in United Provinces v. Atiqa,[15] had held that the phrase included also non-statutory law including personal laws. Even after the commencement of the Constitution the High Courts of Rajasthan,[16]Hyderabad,[17]Calcutta,[18] Madhya Pradesh,[19] and Bombay[20] have confirmed the applicability of article 372 to personal laws. It is notable that all the three lists in Schedule VII of the Constitution include even those subjects to which traditionally the personal laws should apply. List III (mentioning subject on which both Parliament and state legislatures can make laws) specifies the following:
(a)Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject toothier personal law.[21]
(b)Transfer of property other than agricultural land; registration of deeds and documents.[22]
(c)Charities and charitable institutions, charitable and religious endowments and religious institutions.[23]
List II (specifying the subjects on which state legislatures can make law) includes burial and burial grounds,[24] “rights in or over land”[25] (covering succession to agricultural lands) and administration of justice and organization of courts at the district level.[26] In List – I reveal to Muslim law is “pilgrimage to places outside India”[27] Under this Provision Parliament can make laws regulating Haj and Ziyarat.
The questions is whether it is permissible under the Constitution that the Muslims, Hindus, Christians, Parsis and Jews of Indian be governed by different sets of religion-based laws relating to marriage and inheritance, etc. Are the personal laws not hit by fundamental rights? The answer to these questions depends on whether the phrase “all laws in force” used in article 13(i) covers personal laws too or not. The history of enactment of the article 13 and some other constitutional provisions (article 19, 25, 44) shows that the Constituent Assembly did not intend to exempt personal laws from the legislative competence the State. The judicial opinion of the two great judges of the time namely late M.C. Chagla and late P.B. Gajendragadkar in Narasu Appa’s case,[28] has been dissented from by the eminent scholars like D.D. Basu,[29] H.M. Seervai[30] and Mohammad Ghause[31], who are convinced that all personal laws including their non-statutory parts are hit by article 13(1). The Chagla-Gajendragadkar verdict pronounced in 1952 has, however, been followed, though often silently and without specific reference, by all the higher courts in the country. In its recent decision in Krishan Singh v. Mathura Ahir[32], the Supreme Court has categorically ruled that :
“Part III of the Constitution does not touch upon the personal laws.”[33]
It is interesting to note that recently, the Supreme Court of India in Ahmedabad Women Action Group v. Union of India,[34] dismissed three writ petitions which challenged the constitutionally of various provisions of different personal laws on the ground, inter-alia, of being violative of articles 14 and 15. The Court observed that the “questions involved in the case were the issue of State policies with which the court will not ordinarily have any concern.” The same opinion was expressed by the Apex Court in Maharshi Avadhesh v. Union of India.[35] The judicial trend, so far, clearly indicates the reluctance of the Courts to determine the constitutionality of various personal laws on the touchstone of articles 14 and 15.
In Ratilal Panchand v. State of Bombay,[36] the Supreme Court had held that subject to the restriction which Article 25 imposes, every person has a fundamental rights “not merely to entertain such a religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion…” In another case.[37]
In Mulla Tahir Saifuddian v. State of Bombay,[38]the Supreme Court observed that for the application of Article 25(2)(a) it is necessary to classify religious practices into such as are essentially for a religious character and those which are not. In Durgah Committee v. Hussain,[39] it said that whether a religious practice is an essential part of a religion is an objective question to be determined by the court and that the view of religiousdenomination itself is not final.[40] It is in the light of these judicial decisions that we have to examine the place of personal law as an essential part of Islamic religion, a Muslim will ordinarily give an emphatic affirmative answer.In Sri Krishna Singh v. Mathura Ahir,[41] the Supreme Court held the view that personal law is not law for the purpose of Part III of the Constitution. In T. Sareetha v. Venkatasubbaiah,[42] the Andhra Pradesh High Court considered Sec. 9 of the Hindu Marriage Act providing for retention of conjugal rights to the spouses living separately without reasonable justification as violative to personal liberty under Art. 21 of the Constitution. The Court viewed that if unwilling spouse is coerced by State power to cohabit with the other spouse there is violation of right privacy. In Harvinder Kaur v. Hermender Singh,[43] the Delhi High Court upheld the constitutional validity of Sec. 9 as a reasonable regulation protecting the institution of marriage in accordance with Art. 21. In Saroj Rani,[44] case the Supreme Court affirmed the view of Delhi High Court and rejected the view of Chaudhary J. of A.P. High Court. It is to be remembered that the issue of personal law as law did not figure in these cases.
Social justice means the quality of being fair and just in social relations of human beings.[45] This noble quality is attained within the family by eschewing exploitation of the vulnerable members like women and children by the dominant members and by forbidding, the operation of irrational notions and religious beliefs of blind nature, the concept of social justice aims to attain a social arrangement wherein the good things of the society, amenities and responsibilities are justly distributed among the members of the society.[46]
"Social change means", observes Steven Vago, "modifications of the way people work, rear a family, educate their children, govern themselves, and seek ultimate meaning in life. It also refers to a restructuring of the basic ways in which people in a society relate to each other with regards to government, economics, education, religion, family life, recreation, language, and other activities"[47] The equation whether law can and should lead, or whether, it should never do more than cautiously follows changes in society, has been and remains controversial. Despite the debate, modern welfare states, make use of law as "instruments that set off, monitor, or otherwise regulate the fact or pace of social change,"[48] Law can shape social institutions directly or indirectly. It can not lead the society, in its own way, to the land of social justice provided that factor resisting social change do not counter-balance the effort of the law. Further, to be successful instrument of social change, law should be free from technical defects and loopholes and should be effective.[49]
In pursuance of the policy of rendering social justice and economic security to the dependents, Criminal procedure Code provided for obligation of all persons to maintain his/her spouse, minor, children, unmarried daughter and parents who are unable to maintain themselves. The duty of maintenance avoids the problem to moral and material abandonment in the family life. It is purely a secular measure. In Bai Tahira,[50] and Shah Bano,[51]cases the Supreme Court applied Sec. 125 of Cr.PC. providing for the duty of maintenance and the argument that Sec.125 violated the Muslim Personal law and religious freedom of the community were rejected. According to the Court, payment of Mehr and maintenance during iddat period did not absolve the husband from the duty to maintain. About the argument on the basis of religious freedom, the court viewed that for purpose of secular and welfarist provision like Sec. 125 of Cr.P.C. application of religious principle was irrelevant. Even if the religion provided for otherwise under Art. 24 of the Constitution the State has power to make legislations for social reform in the semi religious matters. However, the court viewed, after elaborate reference to the Muslim religious writings, that Muslim husband wife beyond the iddat period. The court laid emphasis upon the objective of uniform civil Code under Art. 44.