Saturday, 31 May 2014

Uniform Civil Code


Uniform Civil Code

  -By Justice Markandey Katju

The issue of a uniform civil code has recently been raised. I am fully in support of a uniform civil code.
Article 44 of the Indian Constitution states : " The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India ". No doubt Article 44 is in the Directive Principles, and not the Fundamental Rights of our Constitution, but Article 37 states :
"The provisions contained in this Part shall not be enforceable in any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws " The Constitution was made in 1950, and 64 years have passed since it was promulgated, but Article 44 has till now been totally ignored, obviously for vote bank politics.
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 (I.P.C. and Cr. P.C.) for everybody, and the land laws (e.g. the U.P. 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 I.P.C.
The injustice in Muslim Law can be seen in the fact that a Muslim husband can divorce his wife by simply saying 'talaq, talaq, tqlaq', 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).In all modern countries there is usually one common law for everybody. In fact in India there is one common criminal law (I.P.C. and Cr. P.C.) for everybody, and the land laws (e.g. the U.P. 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 I.P.C.
Thus there is discrimination against the wife in two ways :
 (1) 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
(2) 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.
When the Supreme Court gave a progressive judgment in Shahbano's case many Muslims raised a hue and cry against it, saying it was against the shariat That judgment said that a Muslim husband has to give maintenance to his wife if he divorces her. This was a humanitarian judgment, because who will support a divorced woman (who may have children) except her husband ? All over the world a husband has to give maintenance to his wife if he divorces her. Why then should it be different for Muslims ? Muslims should have supported this judgment, but instead most of them raised big a hue and cry saying it is against the shariat and Rajiv Gandhi, afraid to lose his Muslim vote bank, legislatively repealed the ruling.
I may give another illustration of the backwardness of some of the Muslim laws. When I was a Judge in the Supreme Court a case came before my bench from Orissa. In some village in Orissa there was a young Muslim couple with 3 children. One night under the influence of liquor the husband had a quarrel with his wife and said to her 'talaq,talaq, talaq'. Nobody else was present at that time, and nobody came to know of it. However, about a month thereafter the wife was indiscrete, and told a friend of hers about this, and this friend told someone else, and so on, until the Maulana of the local mosque came to know of it. He then declared that the couple were no longer husband and wife, and so could not be allowed to live together. At this a mob of local Muslims reached the couple's house and told the wife to get out of her husband's house as she was no longer his wife. She protested that she had 3 small children, but the mob would not relent. A petition was filed before the Orissa High Court, which was dismissed, and against that order an appeal came before my bench in the Supreme Court.
I observed in court that everyone in this country has to behave in a civilized manner, whether Hindu or Muslim. If the couple wants to live together, how is it anyone's business ? I then directed the police to give protection to the couple.
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 upto 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.
Before ending I wish to say that I know that some Muslims may oppose my views, but that is wholly irrelevant fore me. I have always supported Muslims whenever I thought that injustice was being done to them, and my track record can be seen in this connection. In my opinion great injustice has been done to Muslims by not modernizing their personal law.

58 comments:

  1. Dear Sir - agree muslim personal law is nonsense today. but uniform civil code will ride roughshod over customary law in tribal societies..is it ok?

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    Replies
    1. There is no Tribal Civil or criminal code in India. There are Indian penal code and Muslim personal laws only .That is why Markandey Sir is elaborating the anomalies in Muslim personal law which owes its allegiance to Sharia law. There have been laws passed to remove anomalies if Hindu marriages act like Dowry act , laws against Sati and all such ancient rituals. Why should Muslims be held in shackles of miserable laws even if they chose to remain in them . When a person is shackled for ages ,he/she becomes slave of shackles and sometimes has to be forced to live free. Muslim clerics may be up in arms against these changes . So were the Hindu priests when British introduced Anti Dowry legislation. But Now they know, the good these changes has done for upliftment of women . Muslim women also deserve to be unshackled from ancient laws.

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    2. In diverse country like India their can be many tribal laws,religious laws ,regional laws. Surely they must be respected but not at the cost of "Basic structure of Constitution". Justice,Equality, Liberty are the fundamentals of Modern and rational world. How can some medieval law or customary practice be allowed to violate it??

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    3. Aditya Arora is factually wrong.. ever heard customary law in tribal societies?
      Rashmi Singh - If we are violating basic structure today..courts could anyday declare those specific laws as ultravires..dont u think?

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  2. I am a modern Muslim and I cannot agree with you any more. Uniform civil code would instead unite people. I completely agree with Justice Katju that uniform civil code can bring more justice to people. Actually I am surprise to see the way Muslims follow law in this country. They bring bad name to this community. I am more firm believer in seeing a successful country than failed state. Singapore is not only a role model country but also model in religious pluralism. There is common civil code of conduct where people have followed their religion better than region such as Pakistan, Afghanistan where they have brought bad name to the community by following their own mixed version of Islam. Muslims are more respected, follow proper religion in Singapore than these failed states along with education. Unless there is uniform civil code, law would not take its own course

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    Replies
    1. Point of fact: there is no common personal law in Singapore either. Muslim personal law is different there too, albeit significantly more progressive than what we have in India: http://www.alhuda.sg/amla.html

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  3. SIR but do you expect people to accept this change in a positive way......sir you are right in all senses but there will be hue and cry everywhere, though I also think that its a welcoming change

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    Replies
    1. Change is always not pleasant for some, but change is the only eternal truth. People will accept it slowly.

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  4. Very good Sir and I hope you will continue your support to UCC. Due to vote bank politics these people have made this a communal vs secular issue.

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  5. Sir, I completely agree with you, the resistance of uniform civil code from the political society comes from the patronage of maulvis and maulanas by politicians, these political parties are fed by this very hand and thats why they have not been taken off the shelf till date. A strong government at the center might take this bold step where people are not seen in light of there beliefs/religion but as One common citizens.

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  6. Sir my 2 cents... state has an absolute right to interfere and enforce the code if any of the affected party seeks its intervention. .. in case all the parties effected are willing to be adjudged under Shariah; the state should allow the same... if it doesn't and mandates a uniform code then it stepping over an individual's right to practice his/her belief.. Also it is not for state to comment or write off any rule or religious belief as being archaic unless it causes hindrance to governance, safety and peace.. religion is personal and should be left that ways... state should interfere if a citizen (any of the effected party) comes to it for justive..

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  7. Evils like quotas, secularism, allowing Muslim personal laws are all cutting the roots of India's unity and integrity. India has become a morally criplled nation.

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  8. A civil committee comprising of religious scholars and human rights activist should be formed to look at the intricacies of forming a UCC in a country like india,where corruption in life is at every stage be it social,political,religious & economical .
    Any law which derides a individual of its safety,security,and religious freedom must be curtailed and all ppl of all religions must accept and follow the law of the land,which is binding on them as per constitution.

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  9. Saudi Arabia & various Gulf nations and some Far East nations are applying Shariah but they are not backward. So the view of Mr. Katju that Indian Muslims are backward since there was no modernization of their personal law is dismissed in limine.

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    Replies
    1. Backwardness is defined by denying the rights. Having modern buildings is not defined as NOT backward. Muslim women are denied the same rights as muslim men. For example, men can marry four women, women can't do the same. Men can get a divorce by just uttering the word talak, women can't. There are numerous examples, but I guess these are enough to make my point. Women (any religion) are NOT inferior to men. Hindu personal laws (if not practices - which take time) have given equality to Hindu women in inheritance, marriage, etc. The Muslim woman is denied the same (both by law & practice - which need change in mindset). A progressive society is one where women are treated at par with men, not inferior. We can't continue to cite primitive rules and justify them in the name of religion. Remember Sati & child marriages are banned in the country.

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    2. India is not Saudi Arabia not other Gulf Countries, you want to follow their law go and live there permanently. India does not need to follow another country

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  10. Katju Sir i have great respect for you & and your intellect. On this issue lets listen to the Muslims Intelligentsia first. Whole argument of badness & stupidity is a pure sign of Muslims not sticking to there religious code of conduct & teachings. Had muslims been loyal to their book the cases mentioned by you would have never come to reality. Its a sensitive issue wherein not only faith but whole subject will come under objection. I will definitely read more into this and come back to your discussion.

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  11. This should explain something to some people:
    [quote]
    Akbaruddin Owaisi during his public meeting at Zafar road, shunned the debate around development and asked the huge crowd, “Do you elect us for repairing ‘Mohri’ (drainage) and supply ‘Peene ka pani’ (drinking water) or to represent the voice and cause of Muslim community in the assembly.”
    [/quote]

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  12. first it should be checked that whether any muslim does something it should be matched with quran because some muslims who dosent know about quran asks from the elder people but what anybody says dosent matter it matters that what the quran and authentic hadeeth says

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  13. According to me civil uniform code should not be there the media is creating a bad image of islam in the world there is no where written in the quran about that a person who will say talaq talaq talaq will get divorce the media of our country have not read tje quran and they are not the scholar of islam so who have given them right to say all these things about islam

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  14. The indian constitution says that every indian have right to preach or practise notice the word practice so nobody can stop us by practising our religion not only on the basis of our feelings but also our constitution

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  15. Mr. Katju,

    I suggest you to stop worrying about Muslims and revisit your dumb man-made laws that have made India infamous throughout the world for its extreme corruption and unimaginable crimes against women!

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    Replies
    1. And you should stop speaking for all Indians law must be same your not living in any Islamic Country if you want better you go and stay there

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  16. "Saudi Arabia & various Gulf nations and some Far East nations are applying Shariah but they are not backward. So the view of Mr. Katju that Indian Muslims are backward since there was no modernization of their personal law is dismissed in islam."
    Firstly the afore observation made in the comment is naïve. Having super express highways and gold plated toilet faucets and knobs all borne out of the inflation of petro dollars is not development. And Saudi Arabia is one of the most obscurantists, bigoted and barbaric countries in the world.
    As for the Common Civil Code I’m of the strong opinion that the CCC must prevail over all personal laws.
    To uphold Sharia laws that are mostly from an era about which the less said, the better is contrary to what Indian constitution stands for.
    This vote bank politics must be jettisoned.

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    Replies
    1. Sir, I doubt whether you understand difference between development and growth when you call saudi as not backward. Women there are not allowed to drive car , they were burkhas .One day I read one article which says that a handsome male celebrity was thrown out of Saudi because he was too handsome.
      You can see tall buiding there but that is because of petro dollars not because of there social development .They still follow monarchy.

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  17. Divorce in Islam not uttering verbal Talaq three times at a time. When all arbitration fails, incompatibility exists, husband could pronounce first talaq (Arabic word for "Repudiate") in the presence of his wife while she is free from her period. Husband has to wait for reconciliation one more month, and should utter the second talaq in the presence of his wife while she should be free from menstruation, Even after these two months cooling period, if there is no hope, husband has to pronounce the final third talaq in the presence of his wife, and she should be free from period.
    Once she becomes alien, as a stranger, a forbidden woman,disowned from all the rights from her husband, she is not eligible to claim any thing from ex-husband and both cannot revoke a remarriage (2) As long as marriage exists as husband and wife, she cannot marry another man unless her husband annuls the marriage.She is entitle to annul the marriage with the knowledge of her husband.Islam does not restrict woman to get away from a cruel man.
    Polygamy was in practice long ago.If a man is healthy,wealthy and is capable of showing in EQUITY IN LOVE he can marry. In present scenario how many Muslim men have more than one wife? If a man fails to establish equity in LOVE he is not eligible for multiple marriage. The strict law that a non-Muslim cannot marry more than one, has resulted in few men maintaining concubines, thus the broken houses. Muslims are backward purely lack of education, and not understanding Islam fully well.

    A woman of any faith cannot have more than one husband at time (Polyandry) issues arising such who is the father of which child, and confusion of so many legal establishment.

    Uniform Civil Code cannot go well, even in Hindu marriage systems rituals are considered sacred, and varies from within the Hindu marriage systems.

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