By Tahir Mahmood, Oct 13, 2009
The month of September this year witnessed the beginning of two laudable efforts to prepare the ground for a proper codification of Muslim law, which remains the only community-specific family law in India that remains wholly uncodified. Family laws of Christians and Parsis had been codified under British rule. An extensive codification and reform of family laws applicable to Hindus, Buddhists, Jains and Sikhs was undertaken by Parliament during 1955-56.
In the area of Muslim family law, on the other hand, there are till this day just two brief acts of a few sections each — one of 1939, on women’s right to judicial divorce, and the other of 1986, on their post-divorce rights. Otherwise Muslim law courts are constrained to rely on English-language textbooks, quite a few of which are obsolete or otherwise flawed. Higher courts often diligently look for and read Muslim-law principles in their true perspective; but in the lower courts blind reliance on some outdated treatises leads to miscarriage of justice.
Muslim family law needs to be codified both to ensure justice to those who are governed by it — women especially — as also to free the courts from the awesome burden of ascertaining its true unadulterated principles. Codifying Muslim law would, of course, not mean abandoning its essential principles. Christian marriage and divorce laws of 1869-72 and the Parsi matrimonial law of 1936 have been amended in recent years without giving up their basic religion-based provisions, and the same is true also of modern Hindu law.
The Directive Principles in the Constitution do include one “to endeavour to secure a uniform civil code for citizens throughout the territory of India” (Article 44). But the opinion that this provision demands mechanical application of a single family law to the entire nation by one stroke of legislation goes against its rationale and ignores ground realities. Within five years of enforcement of the Constitution, Parliament had enacted, almost simultaneously, a religion-neutral Special Marriage Act and a separate Hindu Marriage Act. This amounted to a policy decision that the personal-law system would be retained in force along with an optional civil law — a wise decision indeed in the prevailing circumstances.
The apex court of the country has approved: “a uniform law, though it is highly desirable, enactment thereof in one go may be counter-productive to the unity and integrity of the nation,” observed the Supreme Court in its Pannalal Bansilal ruling of 1996, adding that “the mischief or defect which is most acute can be remedied by process of law in stages.” In the present circumstances, the foolproof codification of each of the community-specific laws, with essential reforms — and giving people a choice between such respective codes and the civil laws on family rights — seems to be the only pragmatic answer to the call of Article 44.
As all other communities now have a choice between the general civil law and their respective personal laws, duly codified and reformed wherever necessary; Muslims alone cannot be left to choose between the civil law and an outdated version of their personal law with all its distortions and misinterpretations intact. Turning the principles of Muslim law into a legislative enactment will, of course, be no novelty. Such an exercise has already been undertaken in a score of Muslim countries in West Asia and North Africa. (Non-Muslim countries too: look at the Philippines Code of Muslim Law 1977.) There is no justification for India lagging behind; especially since those countries’ efforts have made the job easier for India. Muslim law can be codified here simply by making an eclectic choice from amongst the statutory provisions of those countries in conformity with Indian social conditions.
It is in this context that I hail the initiatives recently taken in this direction by two different groups of concerned citizens. A score of young Muslim lawyers and other scholars met in Delhi on September 15 and resolved to establish an entity to carve out a draft code of Muslim laws of marriage, divorce and succession. Two weeks later, Asghar Ali Engineer’s Mumbai-based Institute of Islamic Studies conducted in Delhi a consultative session on the subject, attended among others by noted scholars of theology from Aligarh Muslim University. Ways and means must be explored for collaboration and interaction. In the last few years, bills for a proposed Muslim Marriage Act were separately drafted by the Muslim Mahila Andolan of Maharashtra and the State Law Commission of Kerala, neither of which could make any notable progress. Let us hope these new eminently promising initiatives will not fall flat.
The author is chairman of Amity University’s Institute of Advanced Legal Studies & a former chairman of the National Minorities Commission