ARTICLE 44 VS.

MUSLIM PERSONAL
LAW
IN COMPLIANCE TO PARTIAL FULFILLMENT OF THE
MARKING SCHEME, FOR TRIMESTER X OF 2017,

IN THE SUBJECT OF

FAMILY LAW

SUBMITTED TO FACULTY:

PROF. ISHNOOR ARORA

Made By:
Riddhi Tulshian
B.B.A LL.B (Hons.)
A056

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Introduction

India is a country of multi-religions and multi languages. Number of people is governed by

their personal laws. It leads to different treatment meted out to different classes of people in
their personal laws. There are different codes for different communities like Hindu Marriage
Act, Hindu Succession Act, Hindu Adoption and Maintenance Act, Hindu Guardianship Act.
Muslims and Christians are governed by their personal laws. There are also many different
sects and they are ruled by their customs, traditions etc. These codes are based on different
personal laws of different religious communities, but this classification based on religion
faces many difficulties, whenever the question arises on matter of succession, marriage,
divorce, inheritance, adoption, maintenance, guardianship, custody of children etc.

There is difficulty in distribution of justice; hence decisive steps were taken towards national
consolidation in form of idea of uniform civil code which was for the first time mooted
seriously in the Constituent Assembly in 1947.

The uniform civil code as envisaged in the Article 44 of the Constitution includes inter alia,
entire gambit of family laws. As far as the uniform legislation is concerned, we have almost
covered every aspect of law except matrimonial laws. There is no uniform civil code of law
applicable to the marital relation of all, irrespective of ethnic or religious affiliations. So
through Article 44, the modern State is called upon to perform its onerous responsibility of
giving uniform civil code on the above subject, applicable to all the citizens of India.

The Muslim members opined that the word civil code did not cover strictly personal law of a
citizen. Allowing the fears of the members who questioned the connotation of the word
uniform civil code and the object of having such a provision in the Constitution, Shri K.M.
Munshi said that the whole object of this Article is that as and when the Parliament thinks
proper or rather when the majority in Parliament thinks proper an attempt may be made to
unify the personal law of the country. The Chairman of the Drafting Committee, Mr. B.R.
Ambedkar while replying to the questions on the provision of the uniform civil code in the
Constituent by the minority community it was intended to have a code which provided for
uniformity of law in matters of marriages, divorce, succession etc. irrespective of religion,
community etc.

The Constitution of India in Article 44 enjoins, The State shall endeavor to secure for the
citizens a uniform civil code throughout the territory of India. It is 60 years or more, yet we
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have not able to attain that level of sophistication to accept and adopt the Constitutional
mandate.

The politics of diversity emphasises protection of personal laws and religious values and
restricts them within the private sphere of the community. This conception of private sphere
further nurtures the subordination of female members of the minority group. Besides, the
non-interventionist approach of the state in the private sphere of cultural groups impedes the
process of internal democratisation and progress of reformative measures. The policy of non-
interference in private affairs of a religious community viz. the Muslim community has
proved detrimental for the struggle of gender equality. It reinforces the role of conservative
leadership and paternalistic power structures, present within the community and
institutionalised the subjection and suppression of women and confines them to their
stereotypical roles.The Muslim women, focus of our study, face the similar situation at the
hands of their own community by imposing various gender-biased personal laws. These
personal laws violate the basic individual rights of women in the name of community values.
Therefore, a comprehensive assessment of these personal laws needs to be done.

SUBJECTION OF MUSLIM WOMEN THROUGH PERSONAL LAWS

Muslim women in India come across a lot of concerns as a member of the Muslim
community. Their deplorable socio-economic position echoes their vulnerable status in the
society. As highlighted by Sachar Committee Report, Muslim women as a whole suffer
discrimination in every aspect of public domain like education, job opportunities and benefits
of welfare initiatives. Both Muslim women and the Muslim community altogether tend to be
identified through inviolable and immutable Islamic traditional values, resultantly Muslim
womens social status is defined by these inherent perpetual norms of the community.
Virtually all the initiatives for attaining gender justice, therefore, rest on the desirability of the
community to reform their personal law on their own way. Sometimes the situation is
exaggerated by the majority-minority politics and demands of a uniform civil code are raised
which would be applicable to all citizens irrespective of their religion. Thus, the core issue of
gender equality and socio-economic vulnerability of women more or less remains unattended.
The endeavour of reforms in Muslim Personal Law is considerably complicated by the
overall marginalisation and vulnerable position of the Muslim minority. Sachar Committee
Report illustrated this fact as Muslims are markedly impoverished, under-represented and
marginalised in public employment, education, and development. Muslims have been
constitutionally provided cultural and religious rights in addition to the unique personal laws
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in matter of marriage, inheritance, adoption, and succession etc. Accordingly for Muslim
women, their interest and articulations continue to be firmly regulated and expressed through
the notions of minority identity discourse. The conservative and orthodox members of the
Muslim society dominated the discourse of reforms in the Muslim Personal Law. These
patriarchal oriented dominant groups of the community stifle and curtail womens freedom
and equality in guise of religious traditions and values.
On the other hand, those who always insist that reforming in Muslim personal law is the only
available solution of gender justice and eventually will improve their condition substantially,
overlook the fact that it will essentialize and freeze womens identity within a cultural
framework. It ignores the fact of the multiple and diversified identity of Muslim women that
depends on various factors like language, caste together with regional attributes. This frame
of mind, generally, based on the premise of homogeneous structure of Muslim community
and did not acknowledge the different hierarchies present within the community. This
reinforces dominant conservative and gender-biased structures within the minority group and
further complicates the issue of reforms in Muslim Personal Law. The issue of personal law
is linked with religious identity of the Muslim minority community and, therefore, the whole
community resists the change as their religious leaders claim immutability of these codes.
Moreover, there are anxieties within Muslims that any change in their personal laws will
provide an impetus for imposing majoritarian norms on the community. Thus Muslim women
by and large become trapped in contestation between majority and minority groups.
Undoubtedly, the arrangement of specific personal laws of each community has caused social
and legal challenges before the state and society. It intensifies the debate further that whether
personal laws to be permitted or not in a democratic society. Would just by replacing the
personal law with uniform civil code address the issue of women subordination and provide
them equal rights?

CONSTITUTIONAL PROTECTIONS FOR THE PERSONAL LAWS

There were tremendous challenges at the time of independence for making a liberal,
democratic and integrated nation especially following the tragic incident of partition on
religious basis. The framers of the Indian Constitution adopted a pluralistic and multicultural
approach to accommodate such a colossal diversity along with reconciling the demands of
national unity and inter-group contestations. The Indian Constitution provided equal
fundamental rights to all its citizens irrespective of their caste, creed and religion. In addition

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to these rights, safeguards were provided to cultural and religious minorities by granting them
rights to preserve their specific cultural and religious practices.
The Indian Constitution acknowledged the importance of community rights and allowed
different religious communities to keep their separate personal laws governing the matters of
marriage, inheritance, succession etc. However, several members of the Constituent
Assembly, especially the women representatives, strongly opposed these personal laws as
they nurtured patriarchal dominance and undermined womens fundamental right of equality.
Despite such a considerable opposition, the Constituent Assembly allowed freedom of
religious practices to all communities. Personal laws of different religious communities were
left for them to decide. The provision for the uniform civil code was incorporated as an
article 44 in non-enforceable Directive Principles of State Policy as the State shall endeavour
to secure for the citizens a uniform civil code throughout the territory of India.
So, at the time of independence, a position of contradiction and ambiguity was present in
respect of a gender-just common civil code and community cultural rights. On one hand, the
Constitution granted freedom of religious and cultural rights as a fundamental right in part III
and on the other, it endorsed a provision of uniform civil code as Directive Principle of State
Policy in part IV. This duality of provisions comes in the way of reforms in personal laws of
different religious communities. More importantly, the identification of uniform civil codes
with the homogenisation process reinforces the demand for the continuation of community
personal laws. Also, the existence of specific personal laws of various religious communities
is regarded as an expression of cultural diversity and generally, defended on this basis.

SHAH BANO CASE CONTROVERSY

Not only did the Shah Bano case1 challenge Muslim personal (Sharia) law, it triggered a
debate and paved the way for Muslim womens fight for justice. Shah Bano, a 62 year old
woman from Indore, was divorced by her husband in 1978. Unable to support herself and her
five children, she moved the courts to be granted maintenance from her ex-husband. Seven
years and several judgments later, the Supreme Court ruled in favour of granting Shah Bano
alimony. Largely seen as a threat to Sharia law by some Muslims, what followed a debate
over the constitutionality of including different marriage and personal laws for different
religion, and resulted in the passing of the Muslim Women (Protection of Rights on Divorce)
Act, 1986, by the government.

1
1985 AIR 945, 1985 SCC (2) 556
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The case was significant for several reasons. In giving its judgment, the Court ordered
maintenance with an upper limit of Rs. 500 monthly, under Section 125 of the Code of
Criminal Procedure, 1973, which applies to all citizens regardless of caste or religion.
Although seen by many as a secular judgment, it invoked a strong reaction from the Muslim
community, which felt that the judgment was an encroachment on Muslim Sharia law. It led
to the formation of the All India Muslim Personal Law Board in 1973, an organization that
sought to preserve and protect the applicability of the Muslim Personal Law (Shariat)
Application Act, 1937. The backlash from the Muslim community prompted the government
to begin parliamentary procedures that, in essence, overturned the Supreme Courts decision.
The Muslim Women Act (Protection of Rights on Divorce), 1986, was passed amidst great
controversy and debate. Many argued that it was a way to appease the minority group that
was threatening agitation.

The Act states that the husband must pay alimony during the period of iddat (3 months
following the divorce). In case the woman has no means to support herself, or has no relatives
that can look after her, a magistrate can order the state WAKF board to provide sustainable
maintenance to the woman and any dependent children. It does not define an upper limit to
the maintenance. It states that women may seek reasonable and fair compensation during the
iddat, and that any children borne of the marriage are entitled to a further maintenance as
well. Because there is no upper limit to the compensation, it is not unusual for Muslim
divorcees to receive large lump-sums from their former husbands. (In 2009, the courts ruled
that Section 125 of the CPC (1973) applies to Muslim women as well,, and that alimony can
be sought after the period of iddat ends as long as the woman does not remarry.)

The Act gave women a chance to claim fair and rightful compensation, but it also drew
criticism from various groups. Minority Rights Group International, an NGO based in the
U.K., denounced the law, commenting that it highlighted the disjunction between
constitutional law premised on the principle of sexual equality and religious laws which
discriminate on the basis of this very category.

Shah Banos case brought the need for a secular Uniform Civil Code into the limelight again.
To date, however, individual Personal Laws based on religion are still in effect. The case
remains a ground-breaking one in Indian divorce law and is often used as a benchmark by the
courts.

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PERSONAL LAWS OR UNIFORM CIVIL CODE: A VEXED MATTER
The controversy of Shah Bano and Muslim Women Act 1986 highlighted the fact that,
instead of resisting the state interference or involvement in the private sphere of the Muslim
minority, the orthodox Muslim community members, in fact, get the states support in
regulating and restraining women rights. The opposition to granting equal rights to the
women was not due to religious beliefs rather it entailed the change in status, proprieties and
reduction in paternal dominance. Therefore, in reality, it was a matter of sacrificing of
privileges instead of anything else which was carried out by means of collective identity
politics coupled with reluctant democratic set up of the country which always remained
biased towards women and their rights. Political parties and leadership generally come into
the pressure of orthodox patriarchal voices of the communities due to their vested interest and
vote bank politics. These institutionalized paternalistic structures always resisted granting
equal status greater freedom to women in the guise of traditional and customary practices.
The manipulation of these institutional structures along with orthodox religious traditions
impaired the process of progressive reforms within personal laws. Consequently, these
personal laws, by and large, remains discriminated against women and advantaged male
members. In the same perspective, the Supreme Court realised: Freedom of religion is the
core of our culture ... But religious practices, violative of human rights and dignity and
sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but
oppression. Therefore, a uniform civil code is imperative both for the protection of the
oppressed and promotion of national unity and solidarity2.
A uniform civil code in a real sense is a matter of providing equal basic rights to women in
the society. Its main concern is to render gender-justice and not to disregard collective
identities and religious beliefs. In fact, serious deliberations and the inter-community
consensus are required to achieve a uniform base for equal basic rights to all individuals
irrespective of their religion or culture. In this way, we will able to retain the diversity of all
cultural values as well as can overcome discriminatory traditional customary personal laws of
all communities. The Shah Bano judgment was a little step in this direction and with the help
of substantive efforts of the state in this direction, an amicable solution could have been
achieved. But the inherent fallacy present within Indian liberal democracy together with
majority-minority framework hindered the genuine attempt for providing gender-just laws for
all citizens of the nation. It is true that a democratically chosen government would not stifle

2
A.I.R. 1995, S.C. p. 1540
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the religious feelings of its citizens but this cannot absolve it to perform the constitutional
obligation of social justice and equality.

Conclusion
Muslim community vis--vis majority community seeks justice, equality and freedom. They
are absolutely justified in their demands. Similarly Muslim women demand gender justice
from their own community and they are also fully justified. Patriarchal structures are
abominable for both majority and minority communities. It is the long demand of women
groups that they should be given equal gender rights. However, the Muslim Personal Law
does not fully address this issue. In fact, the way Muslim community experiences a kind of
alienation and marginalisation in the hands of the majority community, similarly Muslim
women within their own community are passing through the same experiences. In the name
of protecting personal laws, an internal minorityism is being practised by the Muslim
community. Muslim women are its obvious victim. The multicultural conception of collective
rights is not justified when the cultural practices of minority communities violate basic
human rights of the individuals. If such a case, when these community rights suppress or
deny equal rights to their members in this instance the Muslim women, then it is imperative
on the state not to allow such illiberal practices and facilitates towards gender-just common
laws. No civilized society can justify such illiberal and inhumane practices like female genital
mutilation, dowry deaths, female infanticide, the caste systems etc. Such unjust practices
ought to be eradicated from the society by joint efforts of the state and the communities.

Hence, gender justice is one of the formidable challenges before the identity politics in
general and Muslim society in particular. Certainly, the womens issue can no longer be
evaded. The above analysis addresses this issue in its entirety. However, the purpose of this
analysis is neither to create a binary between individual and group rights (universal and
particular rights) nor to undermine the significance of identity/community politics. The
argument is simple and straight, that the basis on which religious identity seeks recognition,
equality and freedom from the state and the wider society, on the same basis women demand
recognition and equality within the community. Moreover, it is recognised that democratic
transition is not a one-day affair; it takes the time to grow, mature and ultimately bear the
fruits. However, its goals, direction and the realisation of specified goals are clearly marked
from the very outset in any transitory movement. The Muslim Personal Law which signifies
the distinct identity of the community is valuable only when it recognises its transitory

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nature. The issue of gender justice for Muslim women lies in this transitory and evolutionary
nature of community personal laws. Both the Muslim community as a whole and women as
its vital part must come to terms with an accord that realisation of justice and equality for the
community would simultaneously lead to the realisation of gender equality. Empirically, as
well as normatively, this is the core component of multiculturalism that cherishes diversities
by countering all kinds of exclusion and inequality. The challenges before the politics of
Muslim identity should be viewed in this light.

BIBLIOGRAPHY

1. Arabani, B. I., Commentaries on the Code of Muslim Personal Laws of the

Philippines with Jurisprudence and Special Procedure. Manila, Philippines: Rex
Book Store, 1990
2. legalbites.in
3. blog.ipleaders.in
4. Government of India : Constitution Assembly Debates, Vol. VII, pp. 779-780.
5. Engineer, Asghar Ali (1987), The Shah Bano Controversy, New Delhi: Orient
Longman, p. 209.
6. Government of India :LokSabha Debates, 5 May 1986, p. 390.

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