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[Note from the Hindu Vivek Kendra: This is six year old article.]
Amendments to a community's personal law with a view to bringing about changes for betterment is one thing, but to tinker with the enactments with the sole purpose of introducing 'uniformity' is another. The former may be an act of reform while the latter would be an arbitrary action that could attract the disapproval of the community.
The Union government has already expressed its helplessness in enacting a Uniform Civil Code (UCC) applicable to all the religious communities. It feels that such a piece of legislation would be against its policy not to interfere with the personal laws of minority communities. The government has revealed its stand in response to the then supreme court Judge Kuldip Singh's directive asking it to explain the steps it had taken for securing uniformity in the personal laws, particularly those of the Muslims.
The government maintains that unless the initiative for change comes from the community, it cannot interfere with its personal laws.
In 1952, the court had had occasion to consider the issue while deciding the validity of the Bombay Prevention of Hindu Bigamous Marriages Act. The issue of whether it was for the legislature to decide what constitutes social reform had then been argued before the court. It must not be forgotten that in a democracy the legislature is constituted by the chosen representatives of the people. "They are responsible for the welfare of the state and it is for them to lay down the policy that the state should pursue," observed the court while declining to entertain the petition.
It was contended in the petition that the legislation discriminated against the Hindus insofar as it subjected them alone to severe provisions for punishment. Another point was whether the act should have been made applicable to the Muslim citizens of Mumbai as it was a social reform measure.
Against this backdrop, it was said that there was no reason why the Muslim community was not given the benefit of this social reform. lie petitioner's argument sought to achieve indirectly what was perhaps hot possible to achieve indirectly. The court was conscious of the implications as it noted: "In part this argument is political and as such we are not concerned with it."
However, part of the argument was based on the provisions of Article 14 of the Constitution. Whether it was expedient to make this act applicable to the Muslims as well as the Hindus of the city would be a matter for the legislature to consider. It is not obligatory for the legislature always and in every case to provide for sweeping social changes and reform at one go. So long as the legislature, in taking gradual steps for social welfare and reform, does not introduce distinctions or classifications that are unreasonable, irrational or oppressive, it cannot be said that the principle of equality before the law is offended. Thus the Maharashtra legislature might have thought that the Hindu community was more ripe for the reform.
'Besides, in the Muslim community divorce has always been permissible and marriage is a matter of contract. Under these circumstances, it could not have been said that the reform was discriminatory against the Hindus.
Noted jurist and late judge P.B. Gajendragadkar then observed that the Constitution itself recognises the existence of personal laws relating to marriage, divorce, adoption, wills and so on. Therefore, the framers of the Constitution left personal laws outside Part III of the Constitution relating to fundamental rights. The Constitution makers may have been conscious of the fact that these personal laws needed to he reformed but they did not want to abolish them or include them in Part III to make them amenable to legal challenge.
Even while making bigamy a penal
offence, Muslims have been excluded from its ambit. Section 494 of the
Indian Penal Code deals with bigamy. A Hindu or Parsi or Christian husband
can be convicted for bigamy. Exclusion of Muslims from this law is because
polygamy is recognised as a valid institution in the Muslim community.
Though both Muslims and Hindus have their personal laws, the bigamy law,
is not enforceable on Muslims. The, supreme court said in 1952 that Article
44 itself recognises separate and distinctive personal laws and lays down
a directive to be achieved within a measurable time that "the state shall
endeavour to secure for the citizens a uniform civil code throughout the
territory of India."
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