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Published : October 06, 2016 | Author : oza.khushali
Category : Constitutional Law | Total Views : 3719 | Rating :

Student B.A LLB GLS School of Law, Ahmedabad

Article 44 of Constitution: A Dead Letter to be Retrieved

Purpose:- The purpose of this article is to portray the problems which are faced by women due to different personal laws being applied for marriage, divorce, adoption, maintenance and succession.

Design/Methodology/Approach:- The article was drawn on observations made by various authors in their books, articles, blogs, Personal Laws of different countries , case studies and evolution of personal law time and again.

Findings:- The problems pose for need of Uniform or Common Civil Code as many countries have changed or modified the personal law , the implication of Sharia law according to the need of the society and implication of personal law is not rigid but it is subjective.

Originality:- The notion of “Uniform or Common Civil Code” is used as an analytical tool to assess changes in law, policy and its implementation and to suggest possibilities for reform in the personal law in India.

Paper Type: Conceptual Paper
The legal merits for desirability of Uniform or Common Civil Code for every Indian, regardless of his or her religious identity, are indubitable. In fact, it is one of the “Directives” to State as enshrined in Article 44 of the Constitution of India. This “Directive” does not come in conflict with Article 25 of the Constitution of India. Article 25(2) separates religion from secular laws that removes some regressive religious practices. It also clearly states that the freedom of religion shall not limit the State from making any law “providing for social welfare and reform.” We also have Article 14 of the Constitution, under which every Indian has equal rights; no one under this equality clause can be discriminated in the name caste, creed, religion, colour and sex.

It is a misbelief that Uniform Civil Code will disallow one practicing his or her own religion. UCC will codify certain issues like marriage, divorce, adoption and maintenance. The best aspect of every society, in every religion ought to be extracted. Marriage, divorce, inheritance and right to property ought to be common for all. Other things, such as the ways of worship and their practices should be left free to individuals to decide on their own. When Article 44 of the Indian Constitution uses the word “Uniform”, it is indeed debatable. If the word “Common” is used instead it shows the difference that clears many misconceptions.

When a diverse country like India where still the orthodox mindset against women prevails, it becomes need of an hour to understand the role of Common or Uniform Civil Code. There are many instances to highlight this and some of them are as follows. The Hindu law discriminated against women by depriving them of inheritance, remarriage and divorce. The conditions, especially of Hindu widows and daughters were poor as a result of many customs. Hindu personal law was codified later to give equal status to women in matters of succession, marriage, divorce, maintenance and inheritance.

Yet another instance through Muslim Personal Law. If a man utters the word Talaq thrice over a phone or in person, the marriage gets called cancelled. One wonders whether it is feasible? Does this give justice to Muslim women? To argue that Article 25, which confers right to religion goes against a common civil code is little incorrect. It is invalid and a spurious conflation. The right to worship or to practice religion ought not to be confused with individual rights relating to inheritance, marriage or divorce. The defining feature of a functioning democracy is its adherence to the theory and practice of the fundamental principles of equity, justice and inclusion for all without any distinction whatsoever. This inclusion means children, young, men, women, old people, differently abled and etc., without consideration of race, class, religion or sexual orientation.

One important example to show how vulnerable women can be is the recent debate over triple Talaq. The Times of India report says "over 50,000 Muslim women and men have signed a petition seeking a ban on triple talaq. The petition, spearheaded by the Bharatiya Muslim Mahila Andolan (BMMA), has sought intervention of the National Commission for Women's to end this practice. The report quotes a recent BMMA study which found that 92 per cent Muslim women supported an end to this practice where unilateral Talaq is being frequently given over phone, text message and even email with women mostly at the receiving end. The holy Quran accepted four marriages as the social scenario during that time was completely different than today.

Let us see one more example. In Christian personal law a woman can file divorce petition only after two years of her marriage. This provision is one reason for women’s pitiable condition in society. There are numerous instances such as these. What do all these show? Where is the inconsistency? Law ought to be dynamic with the changes and requirements of the society. Law is not a study and application of definitions, rather it is a study and application of descriptions”.

Judicial view

We should see the Uniform or Common Civil code as a tool for judicial interpretation as there exists no personal law which is complete and just in itself.

There was a vociferous opposition by the Muslim and Christian community to a private uniform adoption law. When adoption was made possible through the Juvenile Justice Act 2000, the High Court of Madras and Bombay had adopted dynamic interpretations to hold that adoption under the said Act will be applicable to Christians as well. No sooner, even the Supreme Court of India ruled that Muslims could also adopt under this Act. One wonders whether any protest from any community took place or not?

Guardianship laws for Hindus and Muslims show favoritism for father as a natural guardian to a minor child. However, the pre-eminent importance of a mother as a guardian irrespective of the age of the child, even beyond five or seven years of age was pronounced based on the paramount consideration of welfare of child as seen in the case of Githa Hariharan (AIR 1999, 2 SCC 228).We also see certain ostensible inequities in the application of law regarding maintenance being restricted only for the period of Iddat for the women who has divorced and the ease of divorce through mere utterance of Talaq thrice have changed much through judicial decisions. Now, the Muslim woman is entitled for maintenance for lifetime or until she is married to another man, which shall be done within the period of Iddat according to Danial Latifi v. Union of India, 2001. Even the law for maintenance by the Muslim women has travelled a long journey since the Shah Bano’s Case (1985 SCR (3) 844) by the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986. The judgment given in Shamim Ara v. State of U.P., 2002 lays down that Talaq shall not be valid unless preceded by an effort at entente and strict rules of evidence about the pronouncement itself. Such judgments have dampened the injustice against capricious acts of husbands.

Comparing the different personal Laws:

The laws of different communities have precipitous superiority in some of their personal laws. Let’s take an example from The Hindu Succession Act, 1956. We see, prima facie it appears that the mother is Class I heir and the father has not been given place in presence of widow and children. Under the Indian Succession Act, 1856 applicable to Christians, in absence of lineal descendants, the father is an heir along with the widow and not the mother. Does this law show favoritism to father in one case and unfair to mother in another? While in the Muslim Law, both father and mother are primary heirs. Again the right to property by succession to a female was not accepted in Hindu Law till 1956, when section 14 gave such right. Before Islam, women all across the globe were deprived of inheritance and were themselves considered property to be inherited by men. Islam gave women the right to own property and inherit from relatives, which was a revolutionary concept in the seventh century.

Views from other legal systems:

There are countries which have no Sharia application in the Judicial System like Kazakhstan, Uzbekistan, Turkmenistan, Kyrgyzstan, Tajikistan, Turkey, Azerbaijan, Bosnia, Albania, Tunisia, Mali, Niger, Burkina Faso, Senegal, Guinea, Sierra Leone, Ivory Coast, Cameroon, Gabon, Mozambique, Guyana and Suriname. It is also important to mention that there are countries with regional variations in the application of Sharia namely Thailand, Indonesia, Philippines, Greece, Nigeria. India, which is a diversified country owing different religious customs, problems regarding personal laws show great concern which requires urgent attention. Judicial decisions given in some cases according to personal laws contravene other cases and thus creates problems in delivering justice especially to women. Thus, it is necessary to implement a Common or Uniform Civil Code.

There are some crimes specified in Sharia Law which are known as Hudood crimes, for which specific punishments are prescribed in Islam. According to certain interpretations, Adultery is punished by stoning and fornication, consumption of alcohol by lashing and theft by amputation of limbs. Many predominately Muslim countries have not adopted Hudood penalties in their criminal justice systems. Ali Mazrui stated that "most Muslim countries do not use traditional classical Islamic punishments". The harshest penalties are enforced with varying levels of consistency. The use of flogging is more common compared to punishments like amputations.

If these penalties and punishments as specified in Islam, even though the application of such penalties is subjective and is not followed in the same manner as prescribed in Islam, it shows considerable flexibility suiting social requirements. If Laws specified by Islam in Sharia law can be modified as shown above then why is not a diverse country like India to codify personal laws?

In 1971, first amendment was adopted in US judicial system for passing laws which adopt a State or favour one religion over others which was laid down in Everson V. Board of Education(USA Supreme Court) . As of 2014, more than 24 states in USA have considered measures to restrict judges from applying Sharia Law. The States in USA who have banned the application of Sharia Law are Arizona, Kansan, Louisiana, Tennessee, Alabama, South Dakota and Carolina. As of 2013, 16 States in USA states have considered such a law and banned Sharia Application. Similar situation is seen in Canada. Voters in Oklahoma voted overwhelmingly to approve a ballot measure to amend the State constitution to ban Sharia from state Courts, in November 2010.

Ontario Premier Dalton McGuinty stated, in 2005 (Canada), “There will be no sharia law in Ontario. There will be no religious arbitration in Ontario. There will be one law for all Ontarians.”

Also in the United Kingdom, Sharia has also become a political issue. The “One law for all” campaign seeks to ban Sharia councils and arguing this is "the only way to end discrimination suffered by Muslim women". Also many other countries like France, Germany, Greece are also concerned and are thoughtful to ban Sharia Law.

In India, the debate for Uniform or Common Civil Code is prevalent and the Judicial system and Supreme Court of India raised up at many occasions and tried to give justice to Muslim women , which can be aptly seen in Shah Bano Case, Sarla Mudgal Case, Jafar Abbas Rasool Mohammed Merchant case ( Gujarat HC 2015), Sunita Kumari Kashyap Case, Sujata Mukherjee Case, State of Bombay Vs. Narayana, Abdullah V Noorjahan Case, Amina Vs. Hassan Koye Case in all these cases the court has observed the women suffering due to the partial personal laws. It is important to note that due to such biasness of law, the need for Uniform or Common Civil Law is evident.

Taking these views into consideration the countries with Muslim majority has banned or they have stopped using traditional classical law laid in Islam, why then can’t India change and adopt a Common or Uniform Civil Code to stop the discrimination and other hardships faced by women due to personal laws? All Indians have a common criminal law, IPC and Cr. PC by which they are governed. As much as the common criminal law is important and indispensable part of Indian legal system, the need for the common code to govern personal laws becomes significant. A divorced Muslim woman ought to have equal maintenance rights under the law as those of other communities. In the same manner a woman coparcener can be a Karta in HUF. There is no need to have separate laws for Catholic or Protestant Christians with respect to marriage, divorce or inheritance. One may surmise that in a multi-ethnic, and multi-community society there cannot be any discrimination on the basis of caste, community or religion. This is the premise of our secular Constitution. Based on these views regarding sharia or Islamic law and the present Indian scenario, it is evident and necessary for a Common or Uniform Civil Code in India. The move is not to have a Common or Uniform Hindu Code. The move is to encompass the major personal elements relating to all Indians and that would be a Common code governing all personal laws equally for every Indian. This is a laudable objective, to be taken forward with sensitivity and due care, nevertheless firmly.

1. Daniel L. Driesbach, Thomas Jefferson and the Wall of Separation between Church and State NYU Press 2002, unpaginated.
2. Farmer, Liz (4 November 2014). "Alabama Joins Wave of States Banning Foreign Laws". governing.com. Retrieved 27 August 2015.
3. Elliott, Andrea (July 30, 2011). "The Man Behind the Anti-Shariah Movement". The New York Times. Retrieved August 9, 2011.
4. Ure, Laurie (November 1, 2010). "Oklahoma voters face question on Islamic law". CNN. Retrieved November 9, 2010.
5. "Sharia law banned: Oklahoma to become the first U.S. state to veto use of Islamic code". Daily Mail. London. November 2, 2010.
6. Daniel Luban Forget 'Ground Zero Mosque', It's the Great Sharia Conspiracy at Inter Press Service September 16, 2011.
7. Simmons, Harvey (14 September 2010). "'One law for all Ontarians' Editorial Opinion". Star.com. Retrieved 10 December 2015.

9. "One Law for All Campaign against Sharia law in Britain". onelawforall.org.uk. Retrieved 3 September 2015. http://www.whyislam.org/on-faith/status-of-women/)
10.Francois-Cerrah, Myriam (17 Jul 2014). "Why banning Sharia courts would harm British Muslim women". The Telegraph. Retrieved 31 August 2015.
11. [https:// petition.parliament.uk/archived/petitions/48352 (url forbidden by wikipedia) "UK Government and Parliament. Ban all sharia law in the u.k"] Check |url= value (help). petition.parliament.uk. Retrieved 6 September 2015.
12. Volokh, Eugene (April 13, 2015). "The Volokh Conspiracy Muslim woman fighting Sharia law in Europe". Washington Post. Retrieved 4 September 2015.
13. Webster, Donald Everett (1939). The Turkey of Atatürk: social process in the Turkish reformation. Philadelphia: The American Academy of Political and Social Science. pp. 107, 127. Retrieved 31 August 2015.
14. Group, Oxford Business. The Report: Tunisia 2010. p. 54. ISBN 9781907065187.
15. http://shodhganga.inflibnet.ac.in/bitstream/10603/54472/11/11_chapter 4.pdf
16. http://www.firstpost.com/politics/lets-debate-uniform-civil code-because-weve-long-ignored-real-minorities-2866988.html

17. Library of Congress Country Studies: Sudan:. "The factors that provoked the military coup, primarily the closely intertwined issues of Islamic law and of the civil war in the south, remained unresolved in 1991. The September 1983 implementation of the sharia throughout the country had been controversial and provoked widespread resistance in the predominantly non-Muslim south ... Opposition to the sharia, especially to the application of hudud (sing., hadd), or Islamic penalties, such as the public amputation of hands for theft, was not confined to the south and had been a principal factor leading to the popular uprising of April 1985 that overthrew the government of Jaafar an Nimeiri".

18.Marchal, R. (2013), Islamic political dynamics in the Somali civil war. Islam in Africa South of the Sahara: Essays in Gender Relations and Political Reform, pp. 331–52
19. "Civil war was sparked in 1983 when the military regime tried to impose sharia law as part of its overall policy to 'Islamicize' all of Sudan.". Frontline: Pbs.org. Retrieved 4 April 2012.
20. Tibi, Bassam (2008). Political Islam, World Politics and Europe. Routledge. p. 33. "The shari’a was imposed on non-Muslim Sudanese peoples in September 1983, and since that time Muslims in the north have been fighting a jihad against the non-Muslims in the south."
21. Chavan, Nandini; Kidwai, Qutub Jehan (2006). Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code. Hope India Publications. ISBN 978-81-7871-079-2. Retrieved 17 January 2014.
23.Article From the Hindu, Nov 23, 2014
24.Sarla Mudgal, & others. v. Union of India,AIR 1995 SC 1531
26.. Jafar Abbas Rassol Mohammad Merchant Vs State of Gujarat and Anr. 2016 (2) 57 (2) GLR 1529.
27.Sunita Kumari Kashyap V State of Bihar ,AIR 2011 Sc 1674.
28. Sujata Mukherjee V Prashant Kumar Mukherjee, 1997 (5) SCC 30: AIR 1997 SC 2465.
29.State of Bombay V Narayana, AIR 1952 Bom. 84
30. Abdullah V Noorjahan ,1987 KLJ 787
31. Amina V Hassan Koye, 1985 Cri.LJ 1996
32.Asaf A. A. Fyzee ,Outlines of Mohammadan Law, Para 212.
33.Mullah’s Principle of Mohameedan law, Paras 260 to 264.

Although Turkey is a Muslim-majority country, since Kemal Atatürk's reforms and the creation of the Republic of Turkey, Sharia law was banned in 1924 and new westernized civil and penal codes were adopted in 1926 some forms of Sharia Law were banned before 2011 uprising.


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