There is no reason to impose a Uniform Civil Code
on Muslims, but a legal basis exists to abolish triple talaq.
There is absolutely no case for enacting a uniform
civil code. But there is an unanswerable case for abolition of the un-Islamic
triple talaq. Prime Minister Narendra Modi’s speech, at Mahoba
in UP on October 24, professing profuse and unprecedented concern for “my
Muslim sisters”, impressed none; UP goes to polls early in 2017.
For over half a century, the BJP, and the Jan Sangh
before it, made the code a vital part of their election manifesto. In 1989, it
was one of the three conditions that qualified its support to the National
Front government. It has no issue on Article 371A on Nagaland which bars
legislation by Parliament on “Naga Customary law and procedure” and
“administration of civil and criminal justice” involving that law in Mizoram
enjoys a similar “special status”.
Before Partition, Muslims were offered solemn
pledges of respect for their personal law; by Gandhi on October 28, 1931, the
Congress in October 1937 and by Nehru on April 6, 1937. Gandhi offered
“protection by specific provisions” in the Constitution. Instead, Article 44 of
the Constitution was enacted. “The state shall endeavour to secure for the
citizens a uniform civil code throughout the territory of India.”
B. R. Ambedkar told the Constituent Assembly that
this did not mandate legislation.
The BJP’s partner, the Shiv Sena, was candid. Its supremo Uddhav Thackeray
demanded on October 22, “They (the BJP) should first announce that this country
is a Hindu rashtra and impose the uniform civil code”. This is the nub of the
matter: Obliterate Muslim identity.
Hence, the Muslims’ opposition. It is the lust for
uniformity that alienates people. A small UK has two systems of criminal law.
Scottish law recognises the plea of “not proven”, English law does not. There
is no national bar; England has barristers, Scotland has advocates.
“National integration” is a red herring. Muslims
are well integrated in Sri Lanka where they have their own personal law which a
Supreme Court judge has praised. Quebec has its own legal system. Singapore and
Israel accept Muslim personal law. Aharon Layish wrote a paper in July 1973 on
“The Sharia in Israel”. The modern trend is for acceptance of diversity.
Article 27 of the International Covenant on Civil
and Political Rights, to which India is party, concerns minority rights.
Francisco Caportori’s report on its implementation (1977) says: “In Africa and
Asia, particularly in the countries in which customary law is an integral part
of the general legal system, various ethnic groups are still governed in
matters of personal status and other fields of private law by their own rules.
There cannot be any doubt that an effective and full protection of the culture
of minorities would require the preservation of their customs and legal
traditions, which form an integral part of their way of life.”
Sir Norman Anderson, an authority on Hindu and
Muslim law, wrote, “It is the family law that has always represented the very
heart of the Shariah for it is the part of the law that is regarded by Muslims
as entering into the very warp and woof of their religion.” It has been “basic
to Muslim society down the centuries”. A former vice-president of India and Law
Minister, G.S. Pathak told the Lok Sabha, on May 17, 1966, that he appreciated
that “personal laws are mixed up with religion” and that “we cannot coerce
people to accept our views about their religion and customs”.
However, the Muslim law in force in India is
Anglo-Muhammadan law based on English commentaries and translations. It is not
based on the Quran, the Shariah. English judges on the Privy Council, ignorant
of the Quran, held in 1897 that the courts in India should not “put their own
construction on the Quran in opposition to the express ruling of commentators”.
In 1971, Justice V. R. Krishna Iyer ruled in the
Kerala High Court that “the view that the Muslim husband enjoys an arbitrary,
unilateral power to inflict instant divorce does not accord with Islamic
injunctions… Indeed, a deeper study of the subject discloses a surprisingly
rational, realistic and modern law of divorce… It is a popular fallacy that a
Muslim male enjoys, under the Quranic law, unbridled authority to liquidate the
marriage… Commentators on the Quran have rightly observed — and this tallies
with the law now administered in some Muslim countries like Iraq — that the
husband must satisfy the court about the reasons for divorce. However, Muslim
law, as applied in India, has taken a course contrary to the spirit of what the
Prophet or the Holy Quran laid down and the same misconception vitiates the law
dealing with the wife’s right to divorce. After quoting from the Quran and the
Prophet, Galwash concludes that “divorce is permissible in Islam only in cases
of extreme emergency. When all efforts for effecting reconciliation have
failed, the parties may proceed to a dissolution of the marriage by ‘talaq’ or
by ‘khula’.”
Justice Baharal Islam of the Gauhati High Court
took the same view in 1978: “In my view the correct law of talaq as ordained by
the Holy Quran is that talaq must be for a reasonable cause and be preceded by
attempts at reconciliation between the husband and the wife by two arbiters —
one from the wife’s family, the other from the husband’s. If the attempts fail,
talaq may be effected.” Both judges were elevated to the Supreme Court.
In Shamim Ara’s case (2002), the Supreme Court
approved of the views of Justices Krishna Iyer and Baharal Islam. In Pakistan,
the courts discarded the Privy Council’s view and began creatively to interpret
the Quran on the triple talaq. Indian jurists and activists must not lay
behind. They must formulate at least three texts as alternatives to that talaq
and submit them to the Supreme Court.
They can adopt the rules in Pakistan’s Family Laws
Ordinance 1961. It provides for an Arbitration Council to bring about a
reconciliation and a 90-day period for retraction. Talaq must be pronounced by
a notice in writing and communicated to the Council’s chairman. The wife can
stipulate a right to divorce in the nikahnama (talaq tafuriz). She had
additionally the right to divorce (khula). She can even add stipulations in the
nikahnama on visits to her family, pocket money and a bar on a second wife.
(This article first appeared in the print edition
under the headline ‘The code vs the talaq’)
The writer is a constitutional expert and commentator
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