On November 26, 1949 the Constituent Assembly adopted, enacted and gave to ourselves the Constitution of India. Under its Preamble the people of India have solemnly resolved to secure to all its citizens?justice, social, economic and political equality of status, and equal opportunity, assuring the dignity of the individual and the unity and integrity of the nation. Under Part III ?Fundamental Rights? Article 14 guarantees equality before the law or equal protection of the laws. Under Article 15 the state shall not discriminate any citizen only 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, insofar as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency be void. And Article 44 of Part IV ?Directive Principles of State Policy? provides that the State shall endeavour to secure for the citizens a ?Uniform Civil Code? throughout the territory of India.
The above being the mandates of the Constitution, during the past 58 years, after adopting and enacting of the Constitution, successive national governments have ruled the country, but Uniform Civil Code to uniformly govern all the citizens of India still awaits enactment. The founding father of the Constitution, Dr B.R. Ambedkar, who was the Chairman of the Constitution Draft Committee, had favoured the enactment of a Common Civil Code at that stage itself which was highly supported by Gopal Swamy Iyenger and several others, while it was opposed by Muslim members like Poker Saheb and some others, who were strongly opposed to the formation of Pakistan and supporting the concept of composite nationalism. The Congress in turn had given them an assurance that it would allow Muslims to practise Islamic Personal Law. The architects of the Constitution, therefore, found a compromise by including the enactment of a Uniform Civil Code in the Directive Principles of State Policy under Article 44. Distinguished members like Shri Minoo Masni, 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 the existence of personal laws, based on religion, which keeps 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 Indian people within a period of five to ten years. But, even after 58 years, because of perverse secularism and perverted communalism Uniform Civil Code has not come into being.
The need for Uniform Civil Code is nothing new. So far as the criminal justice system in British India was concerned, 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, IPC Bigamous marriages have been made punishable amongst Christians by Act XV of l872, Parsis by Act III of 1936 and Hindus, Buddhists, Sikhs and Jains by the Hindu Marriage Act, 1955. Before the Hindu Marriage Act, 1955, the Hindu Law allowed a Hindu male to marry as many wives as he liked. It was more lax than the Mohammedan Law which restrict the number of living wives to only four. The Criminal Procedure Code, 1882 replaced by the Code of Criminal Procedure 1898 as amended in 1973 provided for a uniform law of procedure for the whole of India which also provides under Section 125 (488 old) for maintenance to a wife including a divorced wife, unable to maintain herself. Eighty per cent civil transactions are of laws uniformly applicable to Indian citizens. Law relating to rent, transfer of property, contracts, sale of goods, FERA and customs are applicable to all irrespective of religion/community. Criminal law too is uniformly applicable. 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 affects 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 time, the concept of dignity of individuals in a democratic country and the growing concept of human rights, the Hindu Law has undergone several changes right from Hindu Widows Remarriage Act 1856 upto Dowry Prohibition Act, 1961.
Mohd. Ahmed Khan v. Saha Bano Begum and others (A.I.R. 1985 S.C. 945) arose out of an application under section 125 Cr. P.C. The appellant, an advocate, was married to respondent Saha Bano Begum in 1932, three sons and two daughters were born. In 1975 she was driven from 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 the maintenance during the iddad period (interim pregnancy period) and under Muslim Personal Law he was not obliged to maintain her.
Ultimately, the Supreme Court of India held that Mahar payable at the time of marriage or on dissolution of marriage could not be justified to say to be a payment on divorce. The husband was obliged to maintain a divorced wife under Section 125, Cr. P.C. and the Muslim Personal Law could not stand as a bar. The court suggested that it was 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 Bano'scase created a commotion in the country. Some Muslim fundamentalist organisations, taking shelter under Muslim Personal Law and Shariat Act, 1937 strongly protested. Shri Rajiv Gandhi, the then Prime Minister, yielded to the pressure and brought into force the Muslim Women (Protection of Rights on Divorce) Act, 1986 providing sum funds by the Government of India to provide for some sort of maintenance to Muslim woman divorced, freed the husband from any liability and thus neutralised the effect of the Supreme Court judgment and made it an option, subject to consent of both the parties, the application under Section 125, Cr. P.C..
In Mrs. Jorden Diengdeh 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 under 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 the Supreme Court on the ground of impotency of the husband. The court examining the provisions of law as applicable to Hindu, Christian, Mohammedan relating to judicial separation, divorce and nullity of marriage came to the conclusion that it was far, far from uniform. Surely time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste. Therefore, directed to send copy of the judgment to the Ministry 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 decided by the Supreme Court in 1987, (A.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 the husband first neglecting and then taking another wife. Referring to the case of Shah Bano 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 11, 1995 a division bench of the Supreme Court delivered a historic judgment. 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 the 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, IPC. 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 Islam 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'ssordid ends must stop. Conversion should be out of conviction and not convenience. It has serious socio-political implication. The judges said that a 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 sacridotal 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 the Partition fully knew that the Indian leaders did not believe in two nation 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 a Uniform Civil Code. Supreme Court verdict covers Hindu converts to Islam but not Muslim by birth. One Muslim can still have four wives under the Shariat Act, 1937 which stabilises that Muslims will be governed by Personal Law. In the judgment the Prime Minister has been asked to take fresh look at Article 44 of the Constitution which urges the State to secure a Uniform Civil Code for citizens of India. The judgment 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 change one'sreligion. 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 a Uniform Civil Code for the citizens in terms of the Court Judgment, which has remained in the cold storage for over last four decades.
Muslim countries like Egypt, Turkey and even Pakistan have reformed their laws. There is no reason why India should continue with discriminatory personal laws. Many Islamic countries have codified and reformed Muslim Personal Law to check its misuse. Polygamy has been banned in Syria, Egypt, Turkey, Morocco, Iran and even in Pakistan. Besides, Muslims who live in USA, Australia, UK and other parts of Europe readily accept the civil laws applicable uniformly to all citizens in respective countries, but do not feel insecure on that account. So, then why in India should there 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 equality be ensured. Supreme Court has afforded an opportunity to the Prime Minister to undo the default of several decades and initiate the process for evolving a uniform civil code.
It is high time that in the larger interest of assuring the dignity of the Muslim women and protecting their basic human rights which in turn would help unity and integrity of the nation as well as equality before the laws and equal protection of the laws and thus give a good bye to those provisions of the pre-constitution Muslim personal laws, insofar as those provisions are inconsistent with the provisions of Part III of the Constitution and hence void under Article 13, as have been done in the case of certain provisions of the Hindu Law through new legislations. It is most unfortunate that in the garb of vote bank politics the nation has waited for last about six decades for enacting a Common Civil Code. God alone knows how long it has to wait for the same?
(The writer is senior advocate and former president of High Court Bar Association, Orissa & All Orissa Lawyers? Association.)