Islam is one of the oldest religions in the world. This religion originally originated from Arabic countries but now it is being followed by the people of most of the countries in the world. Unlike the personal laws of other religions, the Muslim law in India is largely uncodified.
This means that there is no law enacted by the legislature of the state to govern the Islamic religion in India. The Muslim law basically originates from the traditional sources which date back to several centuries. These sources can be classified into primary and secondary sources. The primary sources include 1. The Quran (the holy book which contains the direct revelations of Allah), 2. Sunna of Hadis (the practices of Prophet Mohammed), 3. Ijma (opinions of religious jurists) and 4.Qiya (analogical deduction from existing sources). The secondary sources include 1. Legislations, 2. Judicial decisions and 3. Customs. Since the Muslim law is not properly regulated, the Qur’anic principles are often misinterpreted. Thus there arises a need for the codification of Muslim law in India.
NEED FOR A CODIFIED LAW
Muslim women are often dominated by Muslim men in India. They are discriminated against in matters pertaining to inheritance, marriage etcetera. They are not treated equally to Muslim men and are subjected to cruelty. This kind of discrimination is happening because of the absence of codified law to govern these matters. The codification does not change the Shariah law itself but subjects it to certain regulations which bring it nearer to the spirit of justice. If we analyse the Qur’anic principles deeply, we can find that there is nothing which promotes gender inequality.
Apart from biological differences, women are no less than men and are capable of having rights equal to men according to the Qur’anic verse 2:228.
“..And they have rights similar to the rights against them in a just manner, and men have a degree above them,” (2:228)
This verse implies that the rights of men are the duties of women and the duties of men are the rights of women. This proves that there is no disparity between both the genders. However, the last part of the verse says, ‘men have a degree above them’. If we understand this verse as men having superiority over women, the verse would be contradictory as one gender cannot be superior to another if their rights and obligations are equal. The Qur’an actually refers to man’s superiority by virtue of his responsibility of protection and maintenance of women and fulfilment of their rights. Nature has made him stronger, more responsible and tolerant. So man is held superior to women in the grade of responsibility. The Qur’anic injunction for gender equality pronounced in verse 2:228 is very clear, but because of complex social situations, it was never applied in practice except during the brief period of Holy Prophet’s life.
There are various issues in which Muslim women are exploited. Firstly, let us take the issue of polygamy among Muslim men. Polygamy is not being regulated in India so far. This is taken as an advantage by Muslim men to marry up to four wives. It is thus injurious to the Qur’anic spirit. The Qur’anic verse (4:3) which talks about polygamy does not give general permission to marry up to 4 wives.
“And if you fear that you cannot act equitably towards orphans, then marry such women as seem good to you, two and three and four; but if you fear that you will not do justice (between them), then (marry) only one or what your right hands possess; this is more proper, that you may not deviate from the right course. “(4:3)
This verse was revealed during the Battle of Uhud in which many Muslim men were killed leaving behind many widows and orphans. This led to a gender imbalance. It should be noted that at that point of time women largely depended on men for their survival as men were the breadwinners. Therefore to protect these women Qur’an allowed taking up to 4 wives from these women to serve them justice. Thus the ultimate objective behind allowing the practice of polygamy is to do justice to women. But the situation has changed now as women are no longer dependent on men for their survival. However, even now polygamy continues to prevail among the Muslim community which is rather doing injustice than justice to women. Some countries like Morocco and Tunisia have abolished polygamy altogether. It is difficult to abolish polygamy completely in India but its regulation is certainly possible through codification. Regulations of that kind have already been introduced in almost all Islamic countries to ensure justice to women and no one can take a second wife without going through judicial or semi-judicial scrutiny. Today incidence of polygamy among Indian Muslims is not very high but nevertheless many men do marry more than one wife and first wife complaints of total neglect or humiliation. In some cases, men take the second wife to humiliate the first wife which is prohibited by Qur’an.
“And you will never be able to be equal [in feeling] between wives, even if you should strive [to do so]. So do not incline completely [toward one] and leave another hanging. And if you amend [your affairs] and fear Allah – then indeed, Allah is ever forgiving and merciful”. (4:129)
There are of course other issues which need to be attended through codification. i.e., Mehr, inheritance etcetera. Mehr refers to the gifts which may be money, gold etc. given to the bride by the bridegroom at the time of their marriage.
“And give the women [upon marriage] their [bridal] gifts graciously. But if they give up willingly to you anything of it, then take it in satisfaction and ease.”(4:4)
The verse 4:4 makes it clear that Mehr is mandatory in a Muslim marriage however there is no room for dowry. Dowry is a practice where the bride’s family is expected to give gifts mostly in the form of money to the bridegroom. Many Muslim women are being shut out of their husband’s homes for want of dowry, though it is prohibited by the Holy Qur’an.
With regard to inheritance, the verse 4:11 makes it clear that women do not inherit equally to men.
“Allah instructs you concerning your children: for the male, what is equal to the share of two females” [Quran 4: 11].
This happened because in earlier days women were totally dependent on men for their living. And hence men were given more wealth to support their women. However, things have changed now. Women can stand on their own feet now. And hence it is only right for both men and women to inherit their equal shares.
Thus, the only probable solution to all the issues in the Muslim community is the codification of Muslim law.
UNIFORM CIVIL CODE: A BETTER OPTION?
If Muslim law is to be codified then who has the power to do so? Does the parliament of India have the power to make laws touching the sensitive matters? The answer is positive. Article 246 of the Constitution of India and Entry 5 of the Concurrent List gives power to the Legislature to pass laws regulating personal law. Also, according to Article 13(1), any laws, customs or practices which were prevalent before the Constitution of India came into force, shall be void to the extent of their inconsistency with Part III of the Constitution. This makes personal laws amenable to writ jurisdiction thus giving the opportunity to the judiciary to decide on such sensitive matters and to bring the Muslim law practicable in modern society.
With regards to the criminal law, there is a codified common law for the whole of India irrespective of their religion, race, sex, etcetera. So can there not be a common personal law governing all the religions? This is the idea behind the Uniform Civil Code, which is enacting a single Act which governs all the religions in India. However, the enactment of a Uniform Civil Code may give rise to different kinds of issues.
Firstly, the Uniform Civil Code may violate Art. 25 of the Constitution which gives secular protection to its citizens. Art.25 of the Constitution of India provides for freedom of conscience and free profession, practice and propagation of religion. However, by imposing UCC on all the citizens of different religions, they may be forced to give up certain beliefs and practices which they were following for generations. Therefore, the UCC clearly violates the basic structure of the Indian Constitution.
Secondly, the fact that the code should harmonize and respect the beliefs of each religion would be a herculean task. Also, the enactment of the Citizenship Amendment Act has resulted in disbelief and mistrust among the Muslim community towards the BJP led Government. At such a delicate time, the formulation of UCC may be coloured by the political and ideological aspirations of the majority in the rule. This will result in violating the secular nature of our country.
The Constitution empowers both the legislature and the judiciary to have regulating powers over the personal laws. These powers if exercised in the right way can help in removing the disparities which are evident in the personal laws. Even though these powers should be exercised with the utmost caution, as it is no easy task, it is still a better option than wiping out their existence and imposing a Uniform Civil Code.
Muslim personal law was not formed overnight. Its creation is History. There are several sensitive issues which cannot be touched. If touched it may result in serious consequences. Given such a condition there is indeed a need for regulation. Because many are taking advantage of the situation and are using the law to stomp on the minority. And, of course, the only probable solution to this problem is CODIFICATION. Only through codification the Qur’anic injunctions of Allah can be followed to its truest sense thereby serving justice. Thus, the codification of Muslim Law can bring about a smooth transition from the era of separatism and traditionalism to that of secularism and uniformity.
- M.P.Jain, Indian Constitutional Law, 8th edition, LexisNexis.
BY- Rifa. N & Reema. N | TNDALU School of Excellence in Law, Chennai