HVK Archives: Part of the same parcel
Part of the same parcel - The Telegraph
B. P. Singhal
()
24 April 1997
Title : Part of the same parcel
Author : B. P. Singhal
Publication : The Telegraph
Date : April 24, 1997
The proposed uniform civil code has been resisted by political parties as well as
the minority community. Shrewd political calculations and fear of reprisals from
the minority community have deterred politicians. For the concerned community
itself, there is a single argument. Muslim marriage acid divorce being governed
by the shariat, the state is not constitutionally qualified to bring the community
under the ambit of a common civil code.
The argument is partly valid. The Muslim Personal Law Application Act, 1937 made
it clear the shariat was statutorily applicable to Muslims in India. Shariat was
applied by the courts even prior to this modification. But it differed from case
to case or from judge to judge. And often decisions went against the tenets of
the shariat.
The act was passed with the object of bringing certainty in mutual rights and
improving the miserable plight of Muslim women. It was noted that "the status of
Muslim women under the so called customary law is simply disgraceful ... the
introduction of Muslim personal law will automatically raise them to the position
to which they are naturally entitled". It was also said that the shariat existed
in the form of a veritable code and it was too well known to admit any doubt or
require further research.
Despite the act, there was little improvement in the plight of Muslim women.
Within 18 months the Dissolution of Muslim Marriage Act, 1939 was passed. While
passing the act it was noted the Hanafi code of Muslim law did not allow a Muslim
woman to obtain a decree from court dissolving her marriage in case the husband
failed to maintain her, deserted her, maltreated her, absconded, left her
unprovided for or under similar circumstances. The act sought to bring together
and consolidate all laws relating to the dissolution of marriage in order to help
Muslim women.
It has to be remembered, the law governing Muslim marriage is statutory and can be
amended by the legislature if the need arises. The concurrent list in schedule VII
of the Constitution confers legislative powers to the state to enact laws, amend,
alter or repeal personal laws in whole or in part. This is also pointed out by
Tahir Mahmood in The Muslim Law of India: "Though adherence to the personal law is
not a part of the right to religion freedom, even if it is presumed to be said
right is specifically subjected by the Constitution to the power of the state to
regulate any activity 'traditionally associated with religion' as to promulgate
social reform legislation."
Even under the raj amendments from time to time controlled the application of
Muslim personal law. The Kazis Act, 1880, for example, abolished the institution
of the kazi and the exercise of its judicial powers. Instead, cases were tried in
ordinary civil courts.
A division bench of the Bombay high court in 1952 further pointed out that Article
25(1), which guaranteed among others the right to freely profess, practise and
propagate religion, was not absolute or unlimited. First, it was subject to
public order, morality and health. Second, it could be exercised only if it did
not contravene any of the other fundamental rights embodied in part III of the
Constitution. Third, the right was subject to the right of the state to make any
law regulating or restricting any economic, financial, political or other secular
activity which may be associated with religious practice, and the right of the
state to provide for social welfare and reform.
Mahmood points out, "Islam does not regard marriage as a sacrament (sanskar) in
the Hindu religious sense of the term ... it is contractual and non-ceremonial".
Mahmood also says Muslim law does not require "ceremonial solemnization of
marriage". Being contractual in nature, Muslim marriages require only witnesses.
Muslim marriage is a contract which is amenable to laws of the land governing
contracts.
Marriage however is a social institution in which the state is vitally interested.
Society is built upon it, and from it spring the fruits of social relations,
social obligations and duties with which the government is supposed to deal.
The intervention of the state in Muslim marriages is held as particularly
controversial since many feel Muslim matrimonial law cannot be said to be in
strict accordance with certain fundamental rights of the Constitution.
For one, the value of female evidence in a marriage contract is half that of the
male. This is against the provision of equality before law. There are other
instances of the negation of this provision. For example, Islam permits polygamy,
but not polyandry. A Muslim male enjoys unfettered and unilateral right of instant
talaq without giving any explanation. In case of remarriage to the same person,
even if the talaq takes place for no fault of the woman's, the last has to marry
another person and then get a divorce after consummation of that marriage
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