The main reason behind their miserable state of our innocent muslims is the absence of Uniform Civil Code and as there is no modernisation of their personal law, Muslims suffered due to absence of Uniform Civil Code as An archaic law cant apply to present times.
The opponents always speaks of implementing the Indian Costitution within the Indian territory. Then how is it that the Uniform Civil Code has still not be formed when the Indian Constitution itself demands it.
Article 44 of the Constitution of India reads: ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’. Implementation of a Uniform Civil Code does not mean that Hindu code would be imposed on all citizens of the country. I believe that there are several provisions in the Hindu Code which are irrelevant and they need reforms, Uniform civil code is necessary for our development as citizens. And the development of our country as a whole. The best, and the most strong reason to get this up and running should be the fact that we get rid of all gender discriminating laws, and send a blow to the patriarchal nature of our society.
Common Civil Code would infringe the fundamental right of freedom of religion. The first objection is misconceived because secular activity associated with religious practice is exempted from this guarantee and since personal laws (as argued from this point of view) pertains to secular activities they fail within the regulatory power of the state
If you will look to the countries in Europe which have a civil code, everyone who goes there from any part of the world and every minority has to the Civil Code. It is not felt to be tyrannical to the minority. Our first problem and the most important problem is to produce national unity in this country. We think we have got national unity, but there are many factors- and important factors- which still offer serious dangers to our national consolidation.
Until 1947 both India and Pakistan had governed Muslims under the Shariat Act of 1937. However, by 1961 Pakistan, a Muslim country, had actually reformed its Muslim Law more than India had and this remains true today. Iran, South Yemen, and Singapore all reformed their Muslim laws . In the end the argument is quite clear ,If Muslim countries can reform Muslim Personal Law, and if western democracies have fully secular systems, then why are Indian Muslims living under laws passed in the 1930s?
I have been raising my voice consistently whenever there was any atrocity on, or oppression of, Muslims, but on the issue of a uniform civil code I have firm views. In fact one of the reasons for Muslims in India remaining backward is that there was no modernization of their personal law.
In all modern countries there is usually one common law for everybody. In fact in India there is one common criminal law (IPC and Cr PC) for everybody, and the land laws (e.g. the UP Zamindari Abolition Act, 1951) for everyone. Nobody objected to that, though many of these laws are against the Muslim law. For instance, Muslim law provides for stoning to death for women committing adultery, but that would be illegal under the IPC.
The injustice in Muslim Law can be seen in the fact that a Muslim husband can divorce his wife by simply saying ‘Talaq, Talaq, Talaq’, without ascribing any reason, whereas a Muslim wife cannot do so. She has to file a petition in court, which usually takes years to decide, and she must make out a ground (e.g. cruelty, adultery, etc).
Thus there is discrimination against the wife in two ways:
- A Muslim husband can get a divorce immediately without going to court by immediately pronouncing a triple Talaq or even sending a letter mentioning the triple Talaq, whereas the wife who seeks divorce has to go to court and file a petition which usually takes years to decide.
- The Muslim husband need not give any ground for divorce, he can divorce his wife whimsically or merely because he has lost interest in her, whereas a Muslim wife has to plead some ground for divorce mentioned in section 2 of the Dissolution of Muslim Marriages Act, 1939, and she has to produce witnesses or documentary evidence in support of that ground, and prove it. This is not only very unjust to the wife; it is also violation of Articles 14, 15 and 21 of the Constitution.
Article 15(3) of the Constitution states that there can be no law against women, but there can be a law in their favour. The Muslim law of divorce is directly contrary to Article 15(3).
I know of a case where a Muslim girl was married to a Muslim young man who had come from England to marry her. It was an arranged marriage. After the wedding in India the young man went back to England alone, saying that he will arrange for his wife to come to England, but instead of doing so he sent a letter of Talaq within a month. The girl almost committed suicide.
The Muslim law is that if a husband divorces his wife he cannot straightaway thereafter remarry her. After the divorce the woman must marry some other man, and the marriage must be consummated, and only if thereafter the second husband divorces her can the first husband remarry her. Is this rational?
A Muslim man can marry 4 wives, but a woman can, at a time, have only one husband. Now monogamy represents equality between man and woman, and this is the age of equality. So why should polygamy be permitted to Muslim males? It may be mentioned that up to 1955 a Hindu male could have unlimited number of wives, whereas a woman could have only one husband. This law was altered by the Hindu Marriage Act, 1955, which provides for monogamy.
It can be seen that much of the Muslim personal law is totally outdated and inhuman, but it is not allowed to be changed due to vote bank politics.I submit that those who have not allowed changes in the Muslim personal law have done a great disservice to Muslims. Retaining the outdated personal law has contributed to keeping Muslims backward.
Law has to change with changes in society. To insist that laws made 1500 years ago must continue in the 21st century is totally stupid and unrealistic.
Article 44 is base on the concept that there is no necessary connection between religion and personal law in a civilized society. Marriage, succession and like matters are of secular nature and, therefore, law can regulate them. No religion permits deliberate distortion. The UCC will not and shall not result in interference of one’s religious beliefs relating, mainly to maintenance, succession and inheritance. This means that under the UCC a Hindu will not be compelled to perform a nikah or a Muslim be forced to carry out saptapadi. But in matters of inheritance, right to property, maintenance and succession, there will be a common law.
If a Common Civil Code is enacted and enforced first It would help and accelerate national integration, second Sense of unity and the national spirit would be built, third most importantly the country would emerge with new force and power to face any odds finally defeating the communal and the divisionist forces.Israel, Japan, France and Russia are strong today because of their sense of oneness which we have yet to develop and propagate.
Its clear that the opponents has been criticising the code for their own motive of vote bank politics.India has set before itself the ideal of a secular society and in that context achievement of a uniform civil code becomes all the more desirable such a code will do away with diversity in matrimonial laws, simplify the Indian legal system and make Indian society more homogeneous. It will de-link law from religion which is a very desirable objective to achieve in a secular and socialist pattern of society. It will create a national identity and will help in containing fissiparous tendencies in the country .The uniform civil code will contain uniform provisions applicable to every one and based on social justice and gender equality in family matters.
According to the Committee on the Status of Women in India : The continuance of various personal laws which accept discrimination between men and women violate the fundamental rights and the Preamble to the Constitution which promises to secure to all citizens “equality of status, and is against the spirit of natural integration”. The Committee recommended expeditious implementation of the constitutional directive in Art 44 by adopting a Uniform Civil Code.
The Supreme Court for the first time, directed the Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum , popularly known as the Shah Bano case, In this case, a penurious Muslim women claimed for maintenance from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq from him.
After this decision, nationwide discussions, meetings, and agitation were held. The then Rajiv Gandhi led Government overturned the Shah Bano case decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of criminal Procedure. The explanation given for implementing this Act was that the Supreme Court had merely made an observation for enacting the UCC; not binding on the government or the Parliament and that there should be no interference with the personal laws unless the demand comes from within.
The four cases of, Shah Bano Begum , Mary Roy , National Anthem and Sarla Mudgal , expose the domination of religion over a community be it Muslim, Syrian Christian or Jehovites. It is a tyranny of the minority over majority. The unity of India would be at stake if religion is allowed to tighten its grip over Indian society. We have been a Sovereign Socialist Secular Democratic Republic and the State has no religion; it favours none and is a foe to none. Humanism is our creed and a Common Law for all Indian is our ideal. We believe and subscribe to rule of law and it is only a Common Civil Code that would help establish the rule of law. It is the panacea for all our ills.
I would like to say that citizens belonging to different religions and denominations follow different property and matrimonial laws which is not only affront to the nation’s unity, but also makes one wonder whether we are sovereign secular republic or loose confederation of feudal states, where people live at the whims and fancies of mullahs, bishops and pundits. I strongly support the crusade for the implementation of the UCC and homogenizing the personal laws. I support it, not because of any bias, but because it is the need of the hour. It is the high time that India had a uniform law dealing with marriage, divorce, succession, inheritance, and maintenance.