Author: Sri Bipin Bihari Ratho,
Senior Advocate
Publication: Gaurav Ghosh
Date: September 2000
The founding father of our constitution
Dr. B. R. Ambedkar, Chairman of the Constitution Draft
Committee had favoured the enactment of a common civil code. Which
was highly supported by eminent nationalists like Gopal Swamy lyenger and
others, while it was strongly opposed by Muslim fundamentalists like Poker
Saheb and others. The Jamiat Ul-ulema-E-Hind an organisation of Muslim
theologists which opposed the formation of Pakistan and supported the concept
of composite nationalism, the Congress in turn had given an assurance that
it would allow Muslims to practice Islamic personal Law. The architects
of the Constitution, therefore, found a compromise by including the enactment
of an uniform civil code under the directive principles of state policy
in Article - 44. Distinguished members like Shri Minoo Masani, Smt.
Hansa Mehta and Rajkumari Amrit Kaur put in a note of dissent saying that
one of the factors that has kept India back from advancing to nationhood
has been existence of personal laws, based on religion, which keep the
Nation divided into watertight compartments in many aspects of life.
They were strongly of the view that uniform civil code should be guaranteed
to the Bhartiya people with in a period of five to ten years. But
even after forty-nine years, because of perverse secularism and perverted
communalism, uniform civil code has not come into being.
Under the Preamble to the Constitution
of India the people of India have solemnly resolved also to secure all
its citizens, besides, social, economic and political Justice equality
of status and opportunity, assuring the dignity of the, individual and
the unity and integrity of the nation. Article 14 (as a fundamental
right) guarantees equality before the laws and equal protection of laws.
Under the Article 15 it is guaranteed that the State shall not discriminate
against any citizen on grounds of religion, caste, sex etc. Article
13 provides that all laws in force in the territory of India immediately
before the commencement of the constitution, in so far as they are inconsistent
with the provisions of this part, shall, to the extent of such inconsistency
be void. And Article 44 of the Directive Principles of State Policy
provides that the State shall endeavour or secure for the citizens a uniform
civil code throughout the territory of Bharat. In view of the above
provisions the questions arise as to whether a Mohemmedan woman married/divorced
who is a citizen of India gets equality of status and dignity, treated
equally before the laws and not discriminated only on the ground of sex,
under the Muslim Personal Law (Shariat) Application Act, 1937 and whether
the same is not inconsistent with the fundamental rights guaranteed under
the Constitution and not void under Article 13 of the Constitution? If
so, how long should the country wait to enact an uniform civil code to
secure and protect all that and protect all that and the unity and the
integrity of the nation.
The need for uniform civil code
is being felt for more than a century. Under the criminal justice
system in British India, the British gradually superseded Muslim personal
Law in 1832 and it came to be governed by the English common law.
Finally the Indian penal code was enacted in 1860 making bigamy punishable
under section 494, I. P. C. Bigamous marriages have been
made punishable amongst Christians by Act XV of 1872, parsis by Act II
of 1936 and Hindus, Buddhists, Sikhs and Jains by Act XXV of 1955.
The Criminal Procedure Code, 1882 replaced by the cod e of Criminal Procedure
1898 provided for a uniform law of procedure for the whole of India which
also provided under section 125 (488 old) for maintenance to a wife, including
a divorced wife, unable to maintain herself. Most of the civil transactions
fall under laws uniformly applicable to Indian citizens. Law relating
to rent, transfer of property, contracts, sale of goods, F.E.R.A.
and Customs are applicable to all, irrespective of community. Criminal
law too is uniformly applicable to all in our country. It is only
a small part of Civil laws relating to marriage and family are not community
based. But unfortunately, the British, with intent to divide India
and rule, introduced the Muslim Personal Law (Shariat) Application Act,
1937 which protected the Muslim personal Law derived from Shariat.
Lack of common code adversely effects the Muslim women as personal law
marginalises them in various ways. While the Muslim personal Law
in India has not undergone any change with the change of lime, the growing
concept of dignity of individuals and human rights in a democratic country
like Bharat, the Hindu Law has undergone several changes right from Hindu
Widows' Re-marriage Act, 1854, Hindu Women's Right to Property Act, 1937
up to Dowry Prohibition Act, 1961. Case history reveals that in Ramkumari's
case (1891) 18 Calcutta 264 a Hindu wife embraced Islam and married a Mohammedan.
The Ca4cutta High Court held that the earlier marriage was not dissolved
by conversion. She was charged and convicted Under Section 494, I.P.C.
The Madras High Court in the case of Budansa Rowther and another V.
Fatima Bi and others A.I.R. 1914 Mad. 192 came to hold that
a Hindu wife by embracing Islam, her earlier marriage does not get dissolved.
According to Mohammedan Law the marriage of a man with the wife of another
is void. In the case of Mt. Nandi v. Emperor (A.I.R.
1920 Lahore S79) the Lahore High Court held that a Hindu Married woman
converting to Islam the earlier marriage is not dissolved, by subsequent
marriage and offence U/s 494 I.P.C. is committed. Again in
another case a Christian wife denounced religion and married a Muslim,
the Lahore High Court held that according to Christian Marriage Law the
first marriage was not dissolved, subsequent marriage was bigamous and
therefore convicted and sentenced U/s 494 I.RC. In the case of Gul
Mahomed v. Emperor (A.I.R. 1947 Nagpur 121) where a Hindu wife
was fraudulently taken by a Muslim, converted to Islam and married, the
Nagpur High Court held that by such conversion the earlier marriage does
not ipso facto get dissolved. In the case of Sahulamudu v.
Subaida Beevi (1970 Ker. L.T. 4) a case for maintenance action
by a Muslim wife whose husband had married again. Krishna Iyer (J)
observed that it behoves the courts in India to enforce Section 488 (i)
Criminal Procedure Code in favour of Indian woman, Hindu, Muslim or other.
The case of Mohd. Ahmed Khan v. Saha Banu Begum (A.I.R.
1985 S.C. 945) arose out of an application under section 125, Cr.
P.C. for maintenance. The appellant an advocate was married
to respondent Saha Banu Begum in 1932, they had three sons and two daughters.
In 1975 she was driven out of the matrimonial house. In April 1978
the wife moved the court under section 125, Cr. P.C. for maintenance.
In November 1978 Ahmed Khan divorced her by irrevocable Talaq. As
her demand for maintenance was refused on the ground that she was paid
maintenance during the iddad period (interim pregnancy period) and under
Muslim Personal Law the husband is not obliged to maintain her. She
took shelter under the law court. Ultimately, the Supreme Court held
that Mahar payable at the time of marriage or on dissolution of marriage
cannot be justified to say to be a payment on divorce, the husband is obliged
to maintain a divorced wife under section 125 Cr. P.C. and
the Muslim Personal Law cannot stand as a bar. The Court suggested
that it is for the Muslim community to take a lead in the matter of reforms
of their personal Law. Common Civil Code will help the cause of national
integration by removing disparity. Decision in Saha Banu's case created
a commotion in the country. Some Muslim fundamentalist organisations
taking shelter under Muslim personal law (Shariat) Application Act, 1937
strongly protested. Late Rajiv Gandhi's Government yielded to the
pressure and brought into force the Muslim women (Protection of Rights
on Divorce) Act. 1986 to provide for some sort of maintenance to
Muslim divorcee and neutralised the effect of the Supreme Court judgement
and made it an option, subject to consent of both the parties, the application
under section 125 Cr PC. Thus the Muslim husband's right not to maintain
a divorced wife was protected. In Mrs. Jorden Diengdish V.S.S.
Chopra (A.I.R. 1985 S.C. 935) a Christian wife belonging to
the Indian Foreign Service and the husband a Sikh were married tinder the
Indian Christian Marriage Act. 1872. A petition for a declaration
of nullity of marriage was filed in 1980 on grounds of cruelty. A
decree for judicial separation was obtained under the Divorce Act, 1869.
And the prayer for divorce was rejected. The wife moved she Supreme
Court on the ground of impotency of the husband. The court examining
the provisions of law as applicable to Hindu-Christian-Mohammedans relating
to judicial separation, divorce and nullity of marriage, came to the conclusion
that it is far, far from uniform and observed surely time has now come
for a complete reform of the law of marriage and make an uniform law applicable
to all people irrespective of religion or caste. Therefore, directed
to send copy of the judgement to the Minister of law and justice for such
action as they deem fit to take. The court felt immediate and compulsive
need for an uniform civil code. Legislative competence is one thing
and political courage to use it is another thing, the court said.
Yet another case was decided by the Supreme Court (IA.I.R. 1987 S.C.
1103) where one Saira Banu a Mohammedan wife with a child moved the court
against her husband under section 125, Cr. P.C. for maintenance
for herself and the child, on the ground of flip husband first neglecting
and then taking another wife, Referring to the case of Shah Banu Begum,
the court ordered for maintenance, in the matter of child and the wife
and rejected the offer of the husband to take her back.
On may 10, 1995 a bench of the Supreme
Court presided over by, Mr. Justice Kuldip Singh and Mr. Justice
R.M. Sahai delivered a historic judgment (A.I.R. 1995 S.C.
1531). Four unfortunate Hindu wives separately moved the Supreme
Court against their husbands who converted to Islam to have a second wife.
The court held that under Hindu law conversion to another religion does
not dissolve the previous marriage and unless existing marriage is dissolved
re-marriage is void and punishable under Section 494, I.P.C. The
Judges held that marriage, divorce and religion are in nature as much a
matter of faith and conviction and not convenience. A Hindu converts
to Muslim by receiving kalma, a Muslim becomes Hindu by reciting mantras.
These are matters of belief and conviction and matters of faith, reason
and logic. Misuse of religion for one's sordid ends must stop.
Conversion should be out of conviction and not convenience. It has
serious sociopolitical implication. The Judges said that an uniform
civil code was imperative, both for protection of the oppressed and promotion
of national unity and solidarity. But religious practices, violative
of human rights and dignity and sacerdotal suffocation of essentially civil
and material freedom are not autonomy but oppression. The court further
said that those who preferred to remain in India after lice partition fully
knew that the Indian leaders did not believe in two Nations or three Nations
theory and that in the Indian Republic there was to be only one Nation,
the Indian Nation and no community can claim to remain a separate entity
on the basis of religion. Legislation and not religion being the
authority under which the Muslim personal Law was permitted to operate
and continued to operate and it could be superseded/supplemented by legislation
by introducing an uniform civil code. Supreme Court verdict covers
Hindu converts to Islam but not Muslims by birth. One Muslim can
still have four wives under the Muslim Personal Law (Shariat) Application
Act, 1937 which stabilise that the Muslims will be governed by personal
Law. In the Judgement the Prime Minister was asked to take a fresh
look at Article 44 of the Constitution which urges the state to secure
an uniform civil code for citizens of Bharat. The judgement directed
that Government should ask the Law Commission to draft a comprehensive
common code incorporating the present day concept of human rights for women.
In the interim period, to consider setting up a committee to enact a law
for checking misuse of the right to convert one's religion. The law
may provide as every citizen who changes his religion cannot marry another
woman unless he divorces his first wife. They also directed the Secretary,
Ministry of Law and Justice to file an affidavit of a responsible officer,
in the Apex Court, by August 1996, indicating the steps taken and efforts
made by the Centre towards securing an uniform civil code for the citizens
in terms of the court judgement, which has remained in the cold storage
for the last five decades. We have amended the Constitution in 1993
for providing reservations for women in Panchayats and Municipalities and
now we have already introduced a bill for further amendment to provide
for reservation for women in the assemblies and parliament, yet we honour
primitive Personal Laws and custom which lend support to inhuman and unsocial
treatment to women.
Muslim countries like Egypt, Turkey
and even Pakistan have reformed their laws. There is no reason why
India should continue with vastly discriminatory personal laws. Many
Islamic countries have codified and reformed Muslim personal Law to check
its misuse. Polygamy has been either banned or severely restricted
in Syria, Egypt, Turkey, Morocco, Iran and even in Pakistan. Besides
Muslims who live in U.S.A., Australia, U.K. and other parts of Europe
readily accepted the civil laws applicable uniformly to all citizens in
the respective countries but do not feel insecure on that account.
So, then, why, in India there should be such a feeling?
Religious fundamentalism must go,
social and economic justice must be made available to the Muslim women
and other women and their dignity and quality be ensured, basic Human rights
guaranteed and there should be an end to exploitation of Muslim women.
