INTRODUCTION

Uniform Civil Code towards Gender Justice

The implementation of a uniform civil code and the issue of gender justice, these two are
closely connected to each other in Indian socio legal perspective. Notwithstanding its need
and importance, the state’s politico-legal standpoint about its implementation attracts in-
depth legal inquiry . On the other dimension, the basic issue of ensuring justice and equality
to women is getting trapped in many other contemporary issues like religion, secularism,
and freedom. However, one cannot flounce the main issue under the disguise and harp on
other relatively connected issues day in and day out. Gender issues, in this regard need to
be addressed very seriously.

Women empowerment in core areas like social status, gender bias, health, security and
empowerment are of urgent necessity. Article 44 expects from the State to secure a
Uniform Civil Code for all citizens of India. There is no Uniform Civil Code in India but a
Uniform Criminal Code exists. The Criminal law is equally applicable to all citizens
irrespective of their religious affiliation. However in the case of civil law particularly in the
matter of personal laws there is no uniformity.

The law is relating to marriage, divorce, maintenance, guardianship and succession

governing the Hindus, Muslims and Christians etc., is different and varies from one religion
to other. This is the time to discuss all the personal law of every community with the various
judgments of the Supreme Court of India where the apex court has suggested to the Central
Government for the enactment of a Uniform Civil Code. A uniform civil code will help the
cause of national integration. It is the humble opinion that a Uniform or common civil code is
possible only when the governments consider the gender justice as the ultimate goal.

There are different laws like the Hindu Marriage Act 1955; the Hindu Succession Act 1956;
the Hindu Minority and Guardianship Act 1956 , the Hindu Adoption and Maintenance Act
1956; governing the personal matters of Hindus. The Shariat Act 1937, The Dissolution of
Muslim Marriage Act 1939 and the Muslim Women (protection of Rights on Divorce) Act
1986 etc., which are based on the tenets of Holy Quran, govern the personal matters of
Muslims.

Similarly the Indian Christians are governed by the Indian Christian Marriage Act 1989, the
Indian Divorce Act 1969 and the Cochin Christian Succession Act 1921 etc. Parsis are
governed by a different set of laws. Thus it is clear that there is no uniformity in all personal
laws as they confer unequal rights depending on the religion and the gender.

II. Personal Laws and Discrimination Against Women

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On a clear analysis of all these personal laws, it becomes obvious that the women have
been conferred on inferior status in most of the personal matters compared to the men. The
following examples justify the statement.

II.a. Hindu LawTill the codification of Hindu Law in 1955 and 1956 the Hindu Women did not
enjoy equal rights along with the Hindu men. Before 1955 polygamy was prevalent among
the Hindus. The Hindu women could not hold any property as its absolute owner exce0pt in
the case of Stridhana. She had only limited estate which was passed on to the heirs of the
last full male owner called reversionary on her death. In the matter of adoption a Hindu
woman had no right to adopt a child on her own. She could not be the natural guardian of
her children during the life her husband. Even though the Hindu law has been codified,
certain discriminatory provisions still exist even today. For example a Hindu woman is not a
coparcener in Hindu coparceners except in a few states like Andhra Pradesh, Maharashtra,
Karnataka and Tamil Nadu. Consequently she is not entitled to claim a share in the
coparcenary. Similarly she has no right to partition of a dwelling house even though she is a
legal heir. Thus it is obvious that the codification of personal law of Hindus has not
succeeded completely in eradicating the gender inequality.

II.b. Muslim Women

Pre-Islamic Arabia, the women enjoyed a secondary status in all respects when compared
to men. The advent of Islam has contributed much for the amelioration of In the Muslim
women and alleviation of their problems. The Holy Quran gives equal rights to men and
women and places women in a respectable position. However there are certain aspects in
Islam that render the position of Muslim women especially the wives insecure and inferior.

A Muslim male is permitted conditionally to marry as many as four wives at a time. The Shia
Muslim male can contact muta marriages for an agreed period of time. There is no ceiling
on the number of muta marriages that may be contracted by a Muslim male. In the matter of
divorce the position of the Muslim women is the most inferior and insecure compared to
others. Particularly the method of divorcing the wife by the husband by pronouncing triple
‘Talak’ is highly discriminatory. This is in spite of the clear message of Holy Quran.

In the matter of succession, a Muslim woman is discriminated. The legal position is that
when two scholars or residuary of opposite sex but of the same degree inherit the property
of the deceased, the Muslim male gets twice the share of the female. For example if brother

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and sister inherit the property as successors, the brother gets two shares whereas the sister
gets only one share.

In the matter of maintenance also the divorced Muslim wife is not required to be maintained
beyond the ‘Iddat’ period. The Criminal Procedure Code which imposes an obligation on a
husband to maintain his wife including divorced wife until she maintains herself is a secular
law and is applicable to all. There is a controversy as to whether a Muslim husband can be
directed to maintain his divorced wife even beyond the Iddat period under the provisions of
Section 125 of Cr. P.C. in the famous case of the Supreme Court speaking through Y. V.
Chandrachud, the then Chief Justice held that Section 125 Cr. P.C. is applicable also to the
Muslims and that even a Muslim husband also is liable to maintain his divorced wife beyond
the Iddat period. Because of the controversy, the parliament has passed the Muslim
Women (Protection of Rights on Divorce) Act, 1986 to overrule the judgment in Shah Bano
case. The effect of this Act is that a Muslim husband is not liable to maintain his divorced
wife beyond the Iddat period, unless both the spouses submit to the court at the appropriate
time that they would like to be governed by Cr. P.C. However, in the case of Danial Latif Vs.
Union of India1, the Supreme Court Constitution Bench held that, “where the constitutional
validity of the Act of 1986 was challenged, and upheld that a Muslim husband is liable to
make reasonable and fair provision for the future of the divorced wife which obviously
includes her maintenance as well even beyond the Iddat period must be made within the
iddat period under section 3(1) (a) of the Act. It was therefore categorically held that the
liability of a Muslim husband to his divorced wife arising under section 3(1) (a) of the Act to
pay maintenance is not confined to the Iddat period.

Similarly, among the Christians and Parsi Women also, there is disparity in the rights of the
women as compared to the men.

III. Uniform Civil Code and The Constitution of India

The Indian Constitution, in its part IV, Article 44 directs the State to provide a Uniform Civil
Code throughout the territory of India. However, it is only a directive principle of state policy;
therefore it cannot be enforced in a court of law. It is the prerogative of the state to introduce
Uniform Civil Code. The Constituent Assembly Debates clearly shows that there was a wide
spread opposition to the incorporation of Article 44 (Article 35 in the Draft Constitution),
particularly from the Muslim members of the Assembly. Naziruddin Ahamed, Mohd. Ismile

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(2001) 7 SCC 740

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Sahib, Pocker Sahib Bahadur and Hussain Sahib etc., made a scathing attack on the idea
of having a Uniform Civil Code in India on the grounds that the right to follow personal law is
part of the way of life of those people who are following such laws, that it is part of their
religion and part of their culture, that it would lead to a considerable amount of
misunderstanding and resentment amongst the various sections of the country and that in a
country so diverse it is not possible to have uniformity of civil law. However, one of the most
illustrious members of the Assembly, K.M. Munshi strongly felt that if the personal law of
inheritance, succession etc is considered as a part of the religion, the equality of women
can never be achieved.

Some of the learned members however predicted that a stage would come when the Civil
Code would be Uniform and stated that power given to the state to make the Civil Code
uniform is in advance of the time. Dr. Ambedkar also opined that it is perfectly possible that
the future parliament may make a provision by way of making a beginning that the code
shall apply only to those who make a declaration that they are prepared to be bound by it,
so that in the initial stage, the application of the code may be purely voluntary.

The foregoing discussion clearly establishes that the framers of the constitution were aware
of the gender injustice and sexual inequality of women and they incorporated Article 44 in
the constitution hoping that it would be introduced in future at the appropriate time.

IV. Judicial Opinion and Uniform Civil Code

The judiciary in India has taken note of the injustice done to the women in the matters of
many personal laws. It has been voicing its concern through a number of judgments
indicating the necessity to have uniformity in personal matters of all the citizens. In the case
of Mohd. Ahamed Khan vs. Shah Bano Begum2 pertaining to the liability of a Muslim
husband to maintain his divorced wife beyond iddat period, who is not able to maintain
herself, the Supreme Court held that Section 125 Cr. P. C which imposes such obligation on
all the husbands is secular in character and is applicable to all religions.

In Ms. Jordan Deigndeh vs. S.S. Chopra, D Chinappa Reddy, J. speaking for the court
referred to the observations of Chandrachud, C.J. in Shah Bano’s case and observed as
under: “The present case is yet another event which focuses on the immediate and

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AIR 1985 SC 945

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compulsive need for a uniform civil code. The totally unsatisfactory state of affairs
consequent on the lack of uniform civil code is exposed by the facts of the present case.

Again in Sarala Mudgal vs Union of India3, a division bench of the Supreme Court
consisting of Kuldip Singh and R.M. Sahai, JJ strongly advocated the introduction of a
Uniform Civil Code in India. In this case the Supreme Court held that conversion of a Hindu
male to Islam only for the purpose Of contracting bigamous circumvents Section 494 of
Indian Penal Code. Such marriages have been declared as bigamous and void by the court.
The court after referring to various precedents on the point, categorically held that till
uniform civil code is achieved for all the Indian Citizens, there would be an inducement to a
Hindu husband who wants to enter in to second marriage while the first marriage is
subsisting to become a Muslim. Here the Court was pointing out the injustice done to the
first wife, legally wedded.

the constitutional mandate under Article 44 of the constitution of India. It was suggested that
the personal laws of the minorities should be rationalized to develop religious and cultural
amity preferably by entrusting the responsibility to the Law Commission and Minorities
Commission. The Bench further The Bench noted the failure of successive governments till
date, to implement directed the Government of India to file an affidavit indicating the steps
taken and efforts made to have a fresh look at Article44 in August, 1996. However, the latter
direction was treated as “obiter dicta” by the court subsequently.

In a recent judgment, Lily Thomas vs. Union of India, 4, while dealing with the validity of the
second marriage contracted by a Hindu husband after his conversion to Islam, the Supreme
Court clarified that the court had not issued any directions for the codification of a common
Civil Code and that the judges constituting the different Benches had only expressed their
views in the Facts and circumstances under these cases. It appears that the Apex Court in
India, which showed great judicial activism initially with regard to uniform civil code, has
taken a backward step
Thus it is clear that, Article 44 states that the State shall endeavour to secure for the
citizens a uniform civil code throughout the territory of India. This provision was made to
promote unity and integrity which is the cherished goal enshrined in the preamble to our
constitution. Hindu laws of marriage, succession, etc., have been drastically changed in the
first decade of the commencement of the constitution but there has been resistance from
Muslim community in this respect and for avoiding any resentment on their part political
parties in power remained reluctant to enforce a Uniform Civil Code. The present situation is

3
AIR, 1995 1531
4
AIR 2000 SC 1650

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open to misuse and is inhuman and unjust for it permits inhuman and undignified treatment
to women by providing legal cover to polygamy. Justice Kuldeep Singh, in his leading
judgment in Sarala Mudgal vs. Union of India 5rightly observed that Article 44 is based on
the concept that there is no necessary connection between religion and personal laws.
Marriage, succession and the like matters of a secular character cannot be brought within
the guarantee of religious freedom in articles 25-28. Practice of polygamy has been treated
as injurious to public morals in USA and many Islamic countries have also abolished
polygamy. The Court, therefore, requested the Government of India to secure Uniform Civil
Code for all citizens of India. No gender justice could be rendered in its comprehensive
sense, unless we have a uniform civil code containing the best provisions taken from all the
religions, with the sole aim of doing gender justice. Unless the women, irrespective of their
religious affiliation have been conferred equal rights on par with men in personal matters,
the constitutional mandate of right to equality of status and opportunity cannot be
implemented. However, adequate care should be taken to see that only the rights are made
uniform and not the rituals which are inherent part of the culture and religion as otherwise it
would violate the basic structure of the constitution viz. secularism.

The 'One Country, One Law' demand, on the other hand, appeals to reason as well. Why
should a secular society have different laws for different segments of the population? The
Muslim insistence that the Union government change the law of the land to nullify the
Supreme Court judgement in the Shahbano case in 1986 and the All India Muslim Personal
Law Board's callous disregard of the demand for an end to the instant divorce (talq-talaq-
talaq) practice in the middle of 1993 has created a public perception are totally hostile to
any idea of social reform. This has only added emotional charge to what also appears to be
a fairly rational argument

But a dangerous, if unintended, result of this silence was the smug belief among large
sections of the society, including no communal people, that while the law-abiding, secular-
minded Hindus had peacefully accepted the codification of Hindu family laws in the '50s,
Muslim personal law was still thickly laden with gender inequities.

The lapse seems even more unforgivable because the ground level experience of women's
groups throughout the country has shown that women living under all the existing personal
laws- Hindu, Muslim, Christian – were victims of harassment and discrimination

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(1995) 3SCC 635,

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Undaunted by this, a large number of Muslim men and women publicly demanded an
immediate end of this anti-women and anti-Islamic practice. It was an opportunity for
women's ground and other secular-democratic minded people to intervene and to reinforce
the reformist voice would-it not have been pro: woman and secular to demand that the
talaaq-I-tafwid and khul, the corresponding right for the Muslim woman to unilaterally
divorce her husband must be in all fairness available to her?

Christian women in India have so far fought unsuccessfully for their right to divorce. Only
now, there are indications that they may succeed in seeing a long overdue amendment to
the Christian Marriage Act passed. The Hindu women's battle for a just and equitable share
in property still has a long way to go.

A gender bias does undoubtedly exist in Muslim personal law. But it is undeniable that
Hindu, Christian, Sikh, Buddhist. Jain and tribal women also carry the same unfair burden
because of the family/customary laws applicable to them.

Even less known is the fact that while an anti-woman bias pervade; all existing personal
laws a communal bias is evident not only in some of the provisions of Hindu family laws, but
even the supposedly-secular Special Marriages Act. To cite a few examples:

* Under the Hindu Succession Act, 1956, the female heirs (of Class 1) do have a right
to reside in a portion of the family home. But the right to claim partition is given exclusively
to male heirs.

* Under the Hindu Marriage Act, 1955, the post-marriage conversion by either spouse
furnishes to the other a ground for divorce. In other words, change of religion is treated
under this Act as an unpardonable matrimonial offence. But this right to divorce is given
only to the spouse who continues to remain a Hindu.

* Under the Hindu Succession Act, 1956, children born to a Hindu after she/he has
adopted another religion and the descendents of such children are disqualified from
inheriting the property of a Hindu relative.

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* Under the Hindu Minority and Guardianship Act, 1956, if either parent renounced
Hinduism, the person who has committed this “offence" is automatically deprived of the right
to remain the natural guardian of a minor child. There exists a gender bias too: the Hindu
mother cannot act as guardian of her child unless the father is dead or otherwise
disqualified.

Says Professor S. P. Sathe from Pune who has been working on drafting a Gender Equal
Family Code: “Personal laws were never considered a part of freedom of religion." In his
view, the freedom of religion, a fundamental right guaranteed under article 25 of the Indian
Constitution, is not absolute and has beer, carefully drafted to subject it to prevailing notions
of public order, morality and health.

Case Studies:shah bano case

In the late 1980’s, an old and penurious woman, Shah Bano had knocked on the courts for
justice after she felt she was wronged in the way her husband divorced her. She demanded
alimony from her husband, who had abandoned her for another woman. According to
Muslim law, Shah Bano was entitled to three months' maintenance after over 40 years of
marriage. Years later the Supreme Court heard the matter and upheld her right to
maintenance. While doing so, the court also referred to the need to enact a uniform civil
code. An open and shut case, it should seem, but for the Bench's reference to the need for
enacting a Uniform Civil Code since after all it was part of the Directive Principles enshrined
in the Constitution which the nation was duty-bound to implement -- in due course. This
seemingly innocuous event was a crucial moment in the nation's history. It sparked off a
huge protest among Muslim leaders who accused the judiciary of interfering in their
personal laws In the face of a communal revolt, the Congress government brought
legislation overturning the Supreme Court.

Under the Preamble to the Constitution of India the people of India have solemnly resolved
to secure all its citizens, besides, social, economic and political justice; equality of status
and opportunity, assuring the dignity of the individual and the unity and integrity of the
nation. Article 14 (as a fundamental right) guarantees equality before the laws and equal
protection of laws. Under the Article 15 it is guaranteed that the State shall not discriminate
against any citizen on grounds of religion, caste, sex etc. Article 13 provides that all laws in
force in the territory of India before the commencement of the constitution, so far as they
are inconsistent with the provisions of this part, shall, to the extent of such inconsistency be
void. In view of the above provisions the questions arise as to whether a Mohammedan
woman married or divorced who is a citizen of India gets equality of status and dignity,
treated equally before the laws and not discriminated only on the ground of sex, under the
Muslim Personal Law (Shariat) Application Act, 1937 and whether the same is not

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inconsistent with the fundamental rights guaranteed under the Constitution and not void
under Article 13 of the Constitution? The hesitance to bring personal laws within the
purview of fundamental rights,was pioneered way back in 1951 by the Bombay High Court
in State of Bombay v. Narasu Appa Mali. While deciding on the validity of the Bombay
Prevention of Hindu Bigamous Marriages Act, 1946, the Court was of the conclusion that
the framers of the Constitution did not wish that the provisions of the personal laws should
be challenged by reason of the Fundamental Rights. This view continued to be reiterated by
the various High Courts as well as the Supreme Court of India. Later on, in Ahmedabad
Women Action Group v. Union of India, a writ petition to challenge the Muslim Personal Law
which allows polygamy as offending Articles 14 and 15 was refused cognizance by the
Supreme Court on the ground that it was a matter of state policy, which ordinarily falls
outside the Court’s domain. On similar lines, the Kerala High Court in P.E.Mathew v. Union
of India held the Christian personal law to be outside the scope of Fundamental Rights,
falling back on the principle of ‘judicial hands-off’ over such matters. However there have
been contrary views as well, worth mentioning would beJohn Vallamattom v. Union of India
(2003), wherein the Court has ventured to strike down S.118 of the Indian Succession Act,
1925 as violative of Article 14.

Uniform civil code towards secularism

The need for uniform civil code has been felt for more than a century. The country has
already suffered a lot in the absence of a uniform code for all. It is rather a pity that the
longest and most elaborately written constitution in the history of mankind, the Indian
constitution is responsible for creation of erosion in society. The society has been
fragmented in the name of religions, sects and sex. Even at present, in India, there are
different laws governing rights related to personal matters or laws like marriage, divorce,
maintenance, adoption and inheritance for different communities. The laws governing
inheritance or divorce among Hindus are thus, very different from those pertaining to
Muslims or Christians and so on. In India, most family law is determined by the religion of
the parties concerned Hindus, Sikhs, Jains and Buddhists come under Hindu law, whereas
Muslims and Christians have their own laws. Muslim law is based on the Shariat; in all other
communities, laws are codified by an Act of the Indian parliament. There are other sets of
laws to deal with criminal and civil cases, such as the Criminal Procedure Code (CrPC) and
the Indian penal code. The multifarious castes and creeds and their sets of beliefs or
practices are bewilderingly confusing and nowhere is a scenario like in India, of various
personal laws jostling together, allowed.

It is high time that India had a uniform law dealing with marriage, divorce, succession,
inheritance and maintenance. But, it must be realized that the scenario in India is extremely
complex. India has a long history of personal laws and it cannot be given up easily. Unless
a broad consensus is drawn among different communities, the Uniform Civil Code can’t do

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much good to the country. The reality in India is much more complex than Western societies
which have been totally secularised. The need is to work on the existing laws in such a way
that they don’t go against any particular faith or religion.

A Uniform Civil Code administers the same set of secular civil laws to govern different
people belonging to different religions and regions. The common areas covered by a civil
code include:

# Personal Status

# Rights related to acquisition and administration of property

# Marriage, divorce and adoption

Uniform Civil Code will in the long run ensure Equality. While other personal laws have
undergone reform, the Muslim law has not. It perhaps makes little sense to allow Muslims,
for example, to marry more than once, but prosecute Hindus or Christians for doing the
same. Therefore, there is the demand for a uniform civil code for all religions.

Also, UCC will help to promote Gender equality. Several liberals and women’s groups have
argued that the uniform civil code gives women more rights.

However, the opponents of UCC argue that this law is poking into their religious practices.
They feel that this code will affect the religious freedom of minorities. The claim that the
sentiments of the minorities are not considered while implementing a common law is thus
beyond comprehension. UCC does not insist people from one religion to start practicing
rituals of other religions. All it says is, with changing living styles along with the time, there
should be a Uniform Civil code irrespective of all religions as far s social ethics are
concerned.

The crusade for the implementation of the Uniform Civil Code and homogenizing the
personal laws is justified and should receive the support of all progressive thinking Indians,
not because of any bias, but because it is the need of the hour. But it needs to come on the
heels of a political consensus and that is what needs to be evolved. It is rightly believed that
the Uniform Civil Code is necessary to effect an integration of India by bringing all

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communities into a common platform which at present is governed by personal laws which
do not form the essence of any religion. India as a nation will not be truly secular unless
uniformity is established in the form of rational non-religious codified laws.

Politics apart, the case for a Uniform Civil Code - which will cover the entire gamut of laws
governing rights relating to property, marriage, divorce, maintenance, adoption and
inheritance - has been most argued on behalf of women. There is universal agreement that
personal laws, regardless of the community, are skewed against women. In the long sittings
of the Constituent Assembly, it seems none had a notion about the injustice that was being
done to women in the name of religion as also to the majority community by retaining
certain customs among the minority communities and by giving them certain privileges. A
uniform code provides equal rights to men and women. The absence of a uniform code is
thus responsible for one calamitous vicissitude in the nation — the subjugation of women in
almost all the faiths.

One reason why personalized laws based on religion is not favoured is because religious
laws tend to be highly gender biased. Most major religions developed, over time, a bias
towards women - treating them as somewhat inferior. In Christianity, Eve was meant to be
the root cause of all evil. In Hinduism, Sati was practiced in some communities for ages till
the British formally put a stop to it. The practice of dowry and the ill treatment of widows
continue till today in many regions. In Islam, the staunchest Muslims don’t let women travel
alone, wear something revealing or go to work. These are just a few examples of the deep
underlying biases that lie within faiths. Such practices are justified via religious texts or
customs that simply “must not be broken”. It has taken generations of rebellion to inculcate
any change within these religions. Also, religious laws cannot be viewed objectively. They
are created from sentiments regarding what is correct according to conceptions of God.
Thus to alter such a law one also has to change perceptions regarding core religious
fundamentals. As a result, true progress in terms of equality can be hindered by many
years.

Let us take a look into the case of Imrana – a 28 years old woman, and the mother of five
children. On June 6, 2005, Imrana, was raped by her 69 year-old father in-law Ali
Mohammad. Soon after she was raped, a local Muslim panchayat (council of elders) asked
her to treat her husband Nur Ilahi as her son and declared their marriage null and void! Can
any law of the land justify this?

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The fact that such a verdict could take place in India in the year 2015 is insulting to our legal
system. Had she been a Hindu or Christian, such a verdict would not have occurred, further
highlighting the inequality of the situation. In India, secularism has come to mean “non-
intervening in the matter of religion.” This needs to be relooked and debated as there
cannot be any discrimination in the guise of secularism.

The freedom to adopt any religion is enshrined in the Constitution. It seems quite an
innocent and logical right. But from it springs the natural corollary of preaching and
propagating a religion. In an educated society, it has no serious bearings but, in an illiterate
and uneducated society, it has very grave consequences, especially when the whole game
is politicized. The politicization results in appeasing the minority by giving them certain
rights ultimately to catch their votes or to gain their sympathy. Secular India has upheld the
freedom of religion at the cost of national unity. The interpretation of laws, in the absence of
a uniform code for all religious communities debars other religious communities from
becoming a party to the case in the court in which an appeal is made to restrain the
religious heads from harassing the members of that community. A friend, an organization,
even a brother is not accepted a party against injustice if he/she/it does not belong to that
faith. The absence of a common code has thus, deprived the people of having a common
cause and is responsible for the subjugation of reformers in the name of religion in the
biggest so-called secular nation.

Furthermore, the perception that a uniform civil code would change only Muslim personal
law is wrong, and probably came about because the BJP is the only political party that
actively supports it. Orthodox practices in Hindu personal law or Christian personal law will
also have to undergo changes. For instance, the law pertaining to succession among
Hindus is unequal in the way it treats men and women. The concept of the “Hindu undivided
family”, with respect to succession, would be changed under a Uniform Civil Code. Christian
personal law does not allow the succession of wealth to charitable organizations. Under a
Uniform Civil Code, this law may very well be altered. This also explains why historically
changes in personal law have been resisted not just by one community, but by the ruling
orthodoxy in all of them.

Moreover, many Islamic countries have codified and reformed Muslim personal Law to
check its misuse. Muslim countries like Egypt, Turkey and even Pakistan have reformed
their laws. Terence Farias, in his chapter The Development of Islamic Law points out that
the 1961 Muslim Family Law Ordinance of Pakistan "makes it obligatory for a man who
desires to take a second wife to obtain a written permission from a government appointed
Arbitration Council." The interesting point regarding Pakistan is that until 1947 both India

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and Pakistan had governed Muslims under the Shariat Act of 1937. However, by 1961
Pakistan, a Muslim country had actually reformed its Muslim Law more than India had and
this remains true today. There is no reason why India should continue with vastly
discriminatory personal laws. In fact, the reforms meted out in Tunisia and Turkey helped
abolish Polygamy. Polygamy has also been either banned or severely restricted in Syria,
Egypt, Turkey, Morocco, Iran and even in Pakistan. Besides Muslims who live in U.S.A.,
Australia, U.K. and other parts of Europe readily accepted the civil laws applicable uniformly
to all citizens in the respective countries but do not feel insecure on that account.

Conclusion
If Muslim countries can reform Muslim Personal Law, and if western democracies have fully
secular systems, then why are Indian Muslims living under laws passed in the 1930s?

The real social opposition each time has come from the Muslim community that sees any
attempt to bring a UCC as an attack on its religious rights. The debate in India seems to
have gone the way of the secularists in this respect and the recent rulings by the Supreme
Court calling for a Uniform Code has not witnessed the protests and alarms that took place
following the Shah Bano case in 1985. It is quite possible that the Muslim community sees a
Uniform code as a fait accompli after almost 60 years of Indian independence. The matter is
far more political than legal. Every time the issue has come up there have been angry
words from both sides of the debate.

Religious fundamentalism must go, social and economic justice must be made available to
the Muslim women and other women and their dignity and quality be ensured, basic human
rights guaranteed and there should be an end to exploitation of Muslim women.

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