The Supreme Court’s recent reminder to the Union Government about inaction on moving towards a common civil code for all communities has reopened a debate that began soon after independent India declared itself to be a secular republic. Article 44 of the Constitution says the state shall move towards adopting a uniform civil code. The state, sadly, has lacked the courage to do so
What Jawaharlal Nehru told Parliament on the need for a uniform civil code way back in 1956 is still Government policy: “I should like a civil code which applies to everybody but ‘wisdom hinders’. If anybody else brings forward a Civil Code Bill, it will have my extreme sympathy.” This is apropos of the Supreme Court’s reminder to the Government on February 8 this year.
Nehru’s comment reflected more a lack of courage than the call of wisdom. In all the 47 years since Nehru’s death no one else has had the courage either. Goa, Daman and Diu continue to follow common family laws as listed in the two volumes on the subject authored by MS Usgaocar. The common civil code was enacted in 1867 by the Portuguese regime. It followed the Code Napoleon, as in Portugal.
In 1979, a widely attended conference was inaugurated by Chief Justice YB Chandrachud. It was unanimously resolved that the same family law should continue to uniformly apply to all communities of the Union Territory of Goa, Daman and Diu. In his foreword to volume II, Justice GF Couto of the Bombay High Court proudly stated that the Union Territory had the privilege of already having a uniform civil code recommended by Article 44 of the Constitution. The UCC was conducive as well as decisive for national integration, the judge went on to write.
If the Muslims of Goa, Daman and Diu find a uniform civil code acceptable, why not the community in the entire country? Is this not an indication that our politicians are unaware of the needs and aspirations of the citizens and are driven by their desire to appease maulanas? Another concrete example of the disconnect between Muslims and the Supreme Court was a recent judgement on Haj subsidy. The Ministry for Minority Affairs stated in September 2010 that the subsidy was un-Islamic. The All-India Mushawarat also believes that it should be gradually abolished. But the court stated that the subsidy was necessary to preserve the ‘secular state’ that Jawaharlal Nehru founded.
In his book, Impact of Secularism on Life and Law, 1973, Chief Justice MU Beg wrote that questions on personal law, such as marriage and succession, are not matters of religion. It would be against reason to urge that a rule of succession which is just for a Hindu or a Sikh family could be unjust in another family because it professes a different religion. Does this not imply that the preservation of sharia’h only for personal law and opposition to a uniform civil code are for ulterior reasons? In practice very few Muslims have more than one wife. Polygamy, however, hangs as a Damocles sword on the wife. Backed by triple talaaq, the freedom to almost instantly marry another woman must keep the wife under constant fear if she were to displease her husband. Justice MC Chagla regarded polygamy as an insult to womanhood and a discrimination between Hindu and Muslim women. Iran, Egypt, Morocco, Jordan, Syria, Tunisia and even Pakistan have abolished polygamy. In her work Resurgence of Indian Woman, Aruna Asaf Ali wrote that political parties have come to treat the minorities as vote-banks to be wooed through their priestly class. This class, she continued, has vested interest in keeping its flock backward. Triple talaaq, according to her, was disapproved by the Prophet.
Yet, Professor Tahir Mahmood, a former chairman of the National Minorities Commission, rejects the call of Article 44 of the Constitution for a uniform civil code for several reasons of his own. As quoted by MP Raju in his book Uniform Civil Code — A mirage, one reason was that it would be an imposition on unwilling Muslims of a wholly un-Islamic legal culture. Another reason was that the uniform civil code was being demanded by those prejudiced against Muslims. Yet another reason was that the mythology of a majority cannot be accepted as national history. Prof Mahmood has conveniently overlooked the fact that the law in India is mostly British given and not based on what he calls ‘Hindu mythology’.
Even if we were to accept his contention, then why does he happily accept the IPC and CrPC? Why does he not want the hands of a Muslim thief cut off? Usury is haraam according to the Quran, but neither the Kabuli money lenders nor the Turkadas of south Gujarat are expelled from Islam. Moreover, Prof Mahmood appears not to consider women to be Muslim. Surely, many, if not most, of them resent the triple talaaq or the possibility of being one of several wives? Or else, why should Shabana Azmi prefer a uniform civil code as the only way to free Muslim women from the clutches of these injustices?
This view was expressed over a century ago by eminent scholar of Islam. Prof Khuda Bakhsh, in whose name the famous library of Patna was established, wrote that there can be no two opinions as to the undesirability of polygamy. He was no less clear on the pernicious problem of Islamic divorce. He joined hands with poet Mohammed Iqbal in demanding a radical change in the treatment of women in this respect. He declared that in eastern Bengal divorce was the order of the day and wives were put away as we cast off our old clothes. No judicial inquiry, no positive proof, not a tittle of evidence of any sort was needed. Iqbal went on to assert that the only way in which a woman could get rid of a scapegrace of a husband was by becoming an apostate. (Quoted from Indian Islam by Murray T Titus.)
Source: The Pioneer
What Jawaharlal Nehru told Parliament on the need for a uniform civil code way back in 1956 is still Government policy: “I should like a civil code which applies to everybody but ‘wisdom hinders’. If anybody else brings forward a Civil Code Bill, it will have my extreme sympathy.” This is apropos of the Supreme Court’s reminder to the Government on February 8 this year.
Nehru’s comment reflected more a lack of courage than the call of wisdom. In all the 47 years since Nehru’s death no one else has had the courage either. Goa, Daman and Diu continue to follow common family laws as listed in the two volumes on the subject authored by MS Usgaocar. The common civil code was enacted in 1867 by the Portuguese regime. It followed the Code Napoleon, as in Portugal.
In 1979, a widely attended conference was inaugurated by Chief Justice YB Chandrachud. It was unanimously resolved that the same family law should continue to uniformly apply to all communities of the Union Territory of Goa, Daman and Diu. In his foreword to volume II, Justice GF Couto of the Bombay High Court proudly stated that the Union Territory had the privilege of already having a uniform civil code recommended by Article 44 of the Constitution. The UCC was conducive as well as decisive for national integration, the judge went on to write.
If the Muslims of Goa, Daman and Diu find a uniform civil code acceptable, why not the community in the entire country? Is this not an indication that our politicians are unaware of the needs and aspirations of the citizens and are driven by their desire to appease maulanas? Another concrete example of the disconnect between Muslims and the Supreme Court was a recent judgement on Haj subsidy. The Ministry for Minority Affairs stated in September 2010 that the subsidy was un-Islamic. The All-India Mushawarat also believes that it should be gradually abolished. But the court stated that the subsidy was necessary to preserve the ‘secular state’ that Jawaharlal Nehru founded.
In his book, Impact of Secularism on Life and Law, 1973, Chief Justice MU Beg wrote that questions on personal law, such as marriage and succession, are not matters of religion. It would be against reason to urge that a rule of succession which is just for a Hindu or a Sikh family could be unjust in another family because it professes a different religion. Does this not imply that the preservation of sharia’h only for personal law and opposition to a uniform civil code are for ulterior reasons? In practice very few Muslims have more than one wife. Polygamy, however, hangs as a Damocles sword on the wife. Backed by triple talaaq, the freedom to almost instantly marry another woman must keep the wife under constant fear if she were to displease her husband. Justice MC Chagla regarded polygamy as an insult to womanhood and a discrimination between Hindu and Muslim women. Iran, Egypt, Morocco, Jordan, Syria, Tunisia and even Pakistan have abolished polygamy. In her work Resurgence of Indian Woman, Aruna Asaf Ali wrote that political parties have come to treat the minorities as vote-banks to be wooed through their priestly class. This class, she continued, has vested interest in keeping its flock backward. Triple talaaq, according to her, was disapproved by the Prophet.
Yet, Professor Tahir Mahmood, a former chairman of the National Minorities Commission, rejects the call of Article 44 of the Constitution for a uniform civil code for several reasons of his own. As quoted by MP Raju in his book Uniform Civil Code — A mirage, one reason was that it would be an imposition on unwilling Muslims of a wholly un-Islamic legal culture. Another reason was that the uniform civil code was being demanded by those prejudiced against Muslims. Yet another reason was that the mythology of a majority cannot be accepted as national history. Prof Mahmood has conveniently overlooked the fact that the law in India is mostly British given and not based on what he calls ‘Hindu mythology’.
Even if we were to accept his contention, then why does he happily accept the IPC and CrPC? Why does he not want the hands of a Muslim thief cut off? Usury is haraam according to the Quran, but neither the Kabuli money lenders nor the Turkadas of south Gujarat are expelled from Islam. Moreover, Prof Mahmood appears not to consider women to be Muslim. Surely, many, if not most, of them resent the triple talaaq or the possibility of being one of several wives? Or else, why should Shabana Azmi prefer a uniform civil code as the only way to free Muslim women from the clutches of these injustices?
This view was expressed over a century ago by eminent scholar of Islam. Prof Khuda Bakhsh, in whose name the famous library of Patna was established, wrote that there can be no two opinions as to the undesirability of polygamy. He was no less clear on the pernicious problem of Islamic divorce. He joined hands with poet Mohammed Iqbal in demanding a radical change in the treatment of women in this respect. He declared that in eastern Bengal divorce was the order of the day and wives were put away as we cast off our old clothes. No judicial inquiry, no positive proof, not a tittle of evidence of any sort was needed. Iqbal went on to assert that the only way in which a woman could get rid of a scapegrace of a husband was by becoming an apostate. (Quoted from Indian Islam by Murray T Titus.)
Source: The Pioneer
