Anahita Pathak

| @PathakAnahita | July 26,2018

The Muslim Personal Laws as prevalent in India have most often come under critical lenses because of its apparent gender-bias. This leads to a general discomfort against Muslim Law, which is presently understood as Shari’ah law. However, this is a common misconception, given the misnomer that “Muslim Personal Law” is.

In order to make the masses most adaptable to their rule, the British tried to keep the corpus of law as familiar to the people, as was possible. Since the procedure followed was of English Law and the substantive part was based on Hidayah, it came to be known as Anglo-Mohammedan Law, now called as Muslim Personal Law

During the colonial era, the British Courts would consult Hidayah, written by Mirghayani, a Hanafi Scholar, translated into English by Hamilton. This choice of Hanafi Law was rooted in the fact that the ruling class before the British were the Mughals, who were Hanafis (Fyzee, Asaf A.A., Outlines Of Muhammadan Law, 5th ed., p. 28, para 3). In order to make the masses most adaptable to their rule, the British tried to keep the corpus of law as familiar to the people, as was possible. Since the procedure followed was of English Law and the substantive part was based on Hidayah, it came to be known as Anglo-Mohammedan Law, now called as Muslim Personal Law.

It is sometimes suggested that the Muslim law in India should be codified by those who are eager to cut ties with the impact of laws which flourished years ago, given the changed socio-legal dynamics. But this comes with its own challenges. Partial codification, as in Egypt, and the Dissolution of Muslim Marriages Act 1939 in India, is arguably one kind of remedy. Another, a more feasible one, is permissive legislation which will gradually bring all communities under one uniform law.

Here, the aim is to analyse the benefits of codifying Muslim Personal Law, the challenges posed by this proposition and, formulation of a Uniform Civil Code, as an alternative to it.

Differences within Islam, a challenge to codification

On the death of Prophet Mohammad in 632 A.D., a great majority of Muslims suggested that there should be an election for the successor of the Prophet. This view was advocated by Ayesha Begum, the Prophet’s youngest wife. Accordingly, an election was held, in which Abu Bakr, the father of Ayesha Begum was elected and became the first Caliph. They called themselves Ahle-Sunnat-wal-Jamat which means “people of tradition and assembly”. They are what we now call the Sunnis. But the dissenting minority believed in a more spiritual headship of the Prophet, arguing for the succession to be maintained on bloodlines, and rejected the election. This group was represented by Fatima, the Prophet’s daughter. Consequently, Ali, who was the Prophet’s cousin and Fatima’s husband was elected as the first Imam by this group of Muslims. They disassociated from the majority sect and called themselves Shia which literally means “faction”.

Apart from their differing approach to the infallible truth, the two sects also vary in practical ways. Shias, besides having a different call to prayer, also tend to combine prayers, praying three times a day, instead of five, like the Sunnis

Apart from their differing approach to the infallible truth, the two sects also vary in practical ways. Shias, besides having a different call to prayer, also tend to combine prayers, praying three times a day, instead of five, like the Sunnis. Shia Islam also permits Muttah marriages — a fixed-term temporary marriage — which is now banned by the Sunnis (Fyzee, Asaf A.A., Outlines Of Muhammadan Law, 5th ed., p. 28, ¶3). Shias accept the authority of the Quran and the Sunna (traditions) of the Prophet. They accept no other tradition, unless it is related to an Imam descended from the Prophet. They do not accept the doctrines of Ijma and Qiyas (Fyzee, Asaf A.A., Outlines Of Muhammadan Law, 5th ed., p. 29, para 3).

These two different sects are only a very broad umbrella of division within the religion of Islam, and there exists many more intricate differences which find expression in the existence of further sub-divisions within the sects.

This is of relevance, because it makes formulating one codified law for Muslims a Herculean task, as the drafters would have to accommodate the variance of beliefs and differences within the religion itself. The Shia sect only believes Imams, or in their absence the Mujtahids, to be valid interpreters of law. Their response to a codification and consequent interpretation by courts of law is a matter of concern. Thus, theoretically, even if such codification were made possible, the reconciling of the faith of the various sects with regard to its interpretation is another hurdle.

Codified personal law versus Uniform Civil Code?

Male privileges are strongly entrenched under the rationale of Islamic sanction which is not self-evident. A reflection of this can be seen in the incident of Justice B Kemal Pasha, a sitting judge of the Kerala High Court, wherein, the said judge was met with hostility from the Muslim clergy in Kerala

The debate revolves around codified personal laws versus a uniform civil code without bothering about whose rights are being represented in either of these two alternatives and who should speak for change on behalf of whom. It is often argued, and, rightly so in certain context, that male privileges are strongly entrenched under the rationale of Islamic sanction which is not self-evident. A reflection of this can be seen in the incident of Justice B Kemal Pasha, a sitting judge of the Kerala High Court, wherein, the said judge was met with hostility from the Muslim clergy in Kerala recently for comments made at a seminar in Kozhikode organised by the Punarjani Charitable Trust, a women lawyers group, and Nisa, a progressive Muslim women’s forum. He called for the reform of Muslim personal law, spoke against dowry and asked rhetorically why a Muslim woman could not have four husbands.

Have emanated from the need to bring about a gender-just legal framework and not from desire to impose or force anything on different communities. They insist that such judicial pronouncements to be read as such and not as encouragement for Hinduization of all laws and social practices

The Bharatiya Muslim Mahila Andolan (BMMA) has been highly opposed to the idea of a UCC and is strongly in favour of codifications and reform within the existing Muslim Personal Law. The BMMA are of the view that the Supreme Court’s observations (The Supreme Court has exhibited a favourable attitude towards a UCC in a few notable judgments, namely, Sarla Mudgal v. Union of India, [AIR 1995 SC 1531]; Mohd. Ahmed Khan v. Shah Bano Begum, [1985 SCR (3) 844] and John Vallamattom v. Union of India, AIR 2003 SC 2902.) have emanated from the need to bring about a gender-just legal framework and not from desire to impose or force anything on different communities. They insist that such judicial pronouncements to be read as such and not as encouragement for Hinduization of all laws and social practices.

Article 246 of the Constitution of India and Entry 5 of the Concurrent List gives power to the Legislatures to pass laws regulating personal law. Article 13(1) of the Constitution of India provides that all pre-constitution laws, so far as they are inconsistent with the Part III, shall, to the extent of inconsistency, be void

Additionally, there already exists a judicial and legislative framework which would facilitate the reform of Muslim Personal Laws. Article 246 of the Constitution of India and Entry 5 of the Concurrent List gives power to the Legislatures to pass laws regulating personal law. Article 13(1) of the Constitution of India provides that all pre-constitution laws, so far as they are inconsistent with the Part III, shall, to the extent of inconsistency, be void.

If the expression “all laws in force” and the term “law” is construed to mean personal laws as well, it would make such personal laws amenable to writ jurisdiction. There is ample opportunity for the courts to decide on such sensitive matters, and thus, bring Muslim Personal Laws up to speed with the times. This negates the need for an all imposing Uniform Civil Law.

Gender inequity and political turbulence

It has been seen that the Muslim women community, finding expression through the BMMA, leans towards the codification and reform of existing Muslim Law, and denounces the imposition of a UCC. While the Courts have been very proactively assertive about the need of a uniform code, the possible negative repercussions cannot be neglected. This is due to three factors, primarily.

Imposition of a UCC will be operating in grey areas, given the protection extended by Article 25 of the Indian Constitution. A UCC would indeed be a more secular option being made available, but it should be just that, “an option”, and not an all pervasive compulsory Code

The first being that imposition of a UCC will be operating in grey areas, given the protection extended by Article 25 of the Indian Constitution. A UCC would indeed be a more secular option being made available, but it should be just that, “an option”, and not an all pervasive compulsory Code. Cue can be taken from the Special Marriage Act, 1954, which is a secular option available to the governed, while co-existing with the personal laws governing marriages in India.

At such a delicate time, the formulation of a UCC maybe coloured by the political and ideological aspirations of the majority in rule. This consequently will result in a Code which will be looked upon with mistrust and apprehension by marginalised communities

The second factor is the present sensitive political situation. With the BJP having the stronghold at the Centre, the rise of communal tensions in the country has resulted in a sense of fear and mistrust amongst the Muslims residing within our boundaries. At such a delicate time, the formulation of a UCC maybe coloured by the political and ideological aspirations of the majority in rule. This consequently will result in a Code which will be looked upon with mistrust and apprehension by marginalised communities.

The third factor is that the formulators would but of course, consult with the leaders of Islam, and they have predominantly seen to be males. Most Imams, Fakirs et al, are male and their interpretation may leave the women community at a disadvantageous or neglected position. Further, the Code would have to take into consideration all the beliefs of the various sects within a religion. A Code harmonising all the religions would be a Herculean task, a Code harmonizing all the beliefs of all the sects within the various religions would be nothing short of a miracle.

To add to all the apprehensions of a UCC, the available options to codification and reform to the existing personal laws are overwhelming. The Constitution empowers both the legislature and the judiciary to have regulating powers over the personal laws. These powers, while being delicately exercised, can help updating the personal laws to bring them up to speed with the times. While it is with great dexterity that such powers should be exercised, as it is no easy task, it is still a better option than wiping out their existence and imposing a UCC, which arguably comes too close to violation of Article 25, for comfort.

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