By Pranusha Kulkarni
Recently, the Prime Minister’s Office referred the matter of Uniform Civil Code (hereinafter “UCC”) to the Law Commission of India, asking it to look for the feasibility of implementing the same in India. Even as Article 44 of our Constitution urges the State to endeavour to implement a UCC applicable to all religious communities, governing matters related to marriage, divorce, inheritance, adoption, and maintenance, the buried hatchet has been unearthed, and the warring factions have resumed their acrimonious battle on political and religious lines. Whether or not a UCC would be workable in a country as diverse as India would depend on what exactly this “UCC” would consist of. Supporting the homogenization of diverse cultures and traditions would by no means testify to the true spirit of secularism and Rule of Law which we have envisaged for ourselves in our Constitution. Homogeneity and constitutionalism need not always go hand in hand. In fact, celebrating our diverse cultural heritage with the common underlying principle of protecting everyone’s human rights should be our goal as the world’s largest secular democracy.
In this background, it’s interesting to note that it’s the Muslim Personal Law which comes under the radar every time talks of UCC happen, mainly because of the fact that it’s the only branch of personal law in India that has been left uncodified. Personal laws of all other communities, like the Hindus, Christians, and Parsis, have already been codified, and the Jews in India are governed by secular laws.
The next obvious question which raises in our mind is: why is codification of Muslim law important? Can’t we continue with the status quo? The author humbly submits that the status quo with respect to the rights of Muslim women in India is in a precarious condition. Certain elements of Muslim law like triple talaq and nikah halala, though not Quranic, are in practice in India, which are adversely affecting Muslim women who many times have nowhere to go. Though the Supreme Court has pronounced in Shamim Ara v. State of U.P. ((2002) 7 SCC 518) that triple talaq is unconstitutional and has no legal validity whatsoever because it is not only un-Islamic but also un-Quranic, the practice still continues among Indian Muslims because of a lack of codification and certainty of the law pertaining to this issue.
A related issue is maintenance for Muslim women. Though Shah Bano was a breakthrough judgement granting the right to maintenance to a Muslim wife even beyond the iddat period, the Legislature yielded to the pressure of negativing the effects of this progressive judgement by enacting the Muslim Women (Protection of Rights on Divorce) Act, 1986. (Note: Given that 90 per cent of India’s workforce has no form of retirement savings… [fragmented text anomaly])
Clubbed with this is the misinterpretation of the polygamy provision in the Quran (polygamy is only conditional on the ability of the man to treat all his wives justly and equally); we have the perfect recipe for denying Muslim women their basic rights of justice and Rule of Law guaranteed to them by the Constitution of India. In the same vein, though we have the Prohibition of Child Marriage Act, 2006, which is purportedly secular and applies to all religious communities, it is contentious as to whether it is above the Muslim Personal Law too. As a result of this, children as young as 12 and 13 can be legally wedded off by their guardians, and on the other hand, in the name of religious freedom, gross violations of human rights of Muslim women and children are happening, even when we purportedly have a functional constitutional democracy!
As rightly remarked by Dr. Tahir Mahmood, a Muslim scholar on the subject, Muslim law is in dire need of reforms from within so that some elements of objectivity and gender-justice are introduced in it. It is hearty to note that the Bharatiya Muslim Mahila Andolan (BMMA) has been doing a commendable job of breaking the shackles of Muslim patriarchy from within, to an extent that they are getting their own Qazis trained to administer justice in the truest Quranic spirit!
Also, the right to divorce is unjustly tilted towards the Muslim male, and the Muslim female only has a delegated right to divorce under Muslim Personal Law. Though Muslim women have statutory grounds for divorce under the Dissolution of Muslim Marriages Act, 1939, seldom are they put to use by women due to entrenched patriarchal notions in society. Another ancillary matter regarding gender justice in Muslim law which deserves our attention is this: the number of witnesses required to be present at the time of marriage under Sunni law is two if both are male, but if there are female witnesses, there is a requirement of two female and one male witness. What is the rationale behind this gender-discriminatory legal requirement? Thus, on the one hand, we have eloquent ideals on justice, fairness, reasonableness, and equality writ large in national and international legislations, while on the other hand…
“O ye who believe! Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort justice or decline to do justice, verily Allah is well-acquainted with all that ye do.”
— Chapter 4, Verse 135, The Holy Quran
The author would like to conclude by noting that there are many elements within Muslim law as it is currently practised in India that are prima facie gender discriminatory and that need to be forthwith reformed, so that all the citizens of India equally enjoy the constitutional primordials of justice, equality, and equity. Thus, codification is a great way to pave the way for this internal reformation. A consultation with all the stakeholders from within the Muslim community should lead to a well-codified body of Muslim personal law that preserves the human rights of all. Hence, irrespective of whether or not we have a UCC, the author definitely vouches for the reformation of all personal laws from within, so that we, in all our majestic diversity, are connected by the common golden thread of Rule of Law and Equality!