NATIONAL LAW UNIVERSITY ODISHA

Personal law II response paper on:

How Muslim Personal law can be reformed and why UCC is not the solution?

Submitted to:

Dr. Owais Hasan Khan

(Assistant Professor of Law)
Mr. Kanishka
(Research Associate cum Teaching Assistant)

Submitted by:

AYUSH AGRAWAL (17 / B.A.L.L.B. / 030)

JATIN YADAV (17/B.A.L.L.B./ 046)

Batch: 2017-2022

Introduction
The goal of Uniform Civil Code is to provide for a common law for our whole country, that
would be applicable to all religious communities in matters that are personal in nature such as
marriage, divorce, inheritance, adoption etc. Article 44 of the Constitution lays down that the
state shall endeavor to secure a Uniform Civil Code for the citizens throughout the territory
of India. A uniform code does apply to most of the Indian laws already in most civil matters –
Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act,
Partnership Act, Evidence Act etc. But this is only true in general aspect as hundreds of
amendments have been made to these so called “uniform laws” and therefore even under
these secular civil laws diversity is still present.
The idea of a uniform civil code was supported by many prominent personalities when the
debate on it was raised in the Constituent Assembly of India, such as K.M. Munshi and Sir A.
Krishnaswamy Iyer. Also, it shall be noted that the same was opposed rather strongly by
some other members of the constituent assembly, especially by those which belonged to
minority communities. It however took its place amongst the Directive Principles on the
assurance of Dr. Ambedkar who said and I quote “All that the State is claiming in this matter
is a power to legislate. There is no obligation upon the State to do away with personal laws.
Therefore, no one need be apprehensive of the fact that if the State has the power, the State
will immediately proceed to execute or enforce that power in a manner that may be found to
be objectionable by the Muslims or by the Christians or by any other community in India …
Sovereignty is always limited, no matter even if you assert that it is unlimited, because
sovereignty in the exercise of that power must reconcile itself to the sentiments of different
communities. No Government can exercise its powers in such manner as to provoke the
Muslim community to rise in rebellion. I think it would be a mad government if it did so”1
If the intention of the framers of the Constitution was to have a Uniform Civil Code, they
would have put it into Union List to give the Parliament exclusive jurisdiction in respect of
personal laws. But instead of that they put “personal laws” in the Concurrent List. On the
same point in 2018, the Law Commission concluded that a Uniform Civil Code is neither
feasible nor desirable.

The Enigma of Uniform Civil Code

1
Constituent Assembly Debates, Vol. VII, 4 November 1948—8 January 1949: 779-
780,<www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-02.> accessed on 3
November 2020
Those who are in favour of UCC argue that by the implementation of UCC, discrimination on
the basis of religion of an individual will cease to exist whereas those who are against this
Uniform Code ague that it will rob our great nation of it’s religious diversity and would also
violate our fundamental rights as it will violate article 25 of the constitution which gives us
freedom to practice our religion. They also contend that the essence of our democracy would
be destroyed if the Centre tries to introduce UCC in our various personal laws, because a
secular state is, after all, an enabler of rights and not a forceful inhibitor in sensitive matters
such as personal laws and religion.
Even the respected Supreme Court has been in favor of the need of enactment of a UCC
without, in my opinion, realizing the ground realities. For instance, Justice Vikramajit Sen in
ABC v. State (2015)2 observed: “Our Directive Principles envision the existence of a uniform
civil code, but this remains an unaddressed constitutional expectation.” The problem with this
statement is that here the court wasn’t even dealing with the topic of religion or any personal
law but rather this case was in relation with the Guardians and Wards Act, 1890. Thus the
Court making such a reference to UCC was unneeded and unrequited. Similarly, In Sarla
Mudgal Case (1995),3 the Supreme Court made observations that those who stayed back after
Partition knew that India believes in one nation and therefore no community can claim
separate religious laws. Here the problem is that Loyalty to the nation and uniformity in laws
are not related to each other at all. Here too Court making these comments was unneeded.
Most of the customs and practices in our country is guided by their particular personal laws.
So, we can say that the people who follow these customs and practices gives them a sense of
identity. The issue with the Muslim personal law is closely linked with the fact that Muslims
in our country urge for an identity. The near unity between all the Muslims and many people
of liberal origin against the implementation of a uniform civil code is more of a call for this
urge of identity rather than of their opposition to the changes. Similarly, most of the talks of a
need of a uniform law by the Hindus is driven not for their desire to reform certain features of
Muslim Personal Law but by a desire of political and cultural uniformity. These talk of
reforms these features by them is to only make a case for the need of a Uniform Civil Code in
our country and not for the betterment of either the woman or any other person.
The Muslim community as a whole would be more welcoming to the changes if a Uniform
Civil Code is insisted on so often. Reform should be proposed to the community not on the
basis of uniformity but rather on the thought of modern era like equality among both genders.
It has been wrongly established in popular culture as a fact that Islamic Laws are rigid and
intangible. As observed by M. Hidayatullah in his book "Principles of Mohamedan Law"
(Bombay, 1969), "the invocation of the right of the Ruler (pr the State) to take public good
into account, to change an established rule, is not new. It was practised by the Khulafai-
Rashidin. Changes in Hadd (limit of punishment) were made from time to time as a part of
public policy, during the Prophet's own time and that of all the Caliphs". This was one of the
many instances of changes to the Mohamedan Law.
Equality of sexes is not in the conflict with the spirit of Islam as a religion. But some great
changes need to be made to the treatment of Muslim women in the Mohamedan Law. It
permits a Muslim man to have as many as four wives, but the reversal of roles does not work,

2
ABC v The State NCT of Delhi (2015) SCC SC 609
3
Sarla Mudgal v Union Of India (1995) AIR SC 1531
i.e., it does not permit a Muslim woman to have Many husbands. The provisions for the man
and woman are grossly different and biased in favour of one. Another instances of this bias
nature of the law is in terms of divorce as a man does not need any reason to divorce his wife
while if the wife wants to divorce her husband she has to go through judicial scrutiny and the
divorce is subject to proof. Another issue that concerns the more marginalized gender of the
two(woman) is that of maintenance. No provision is present for a divorcee or a widow,
although a divorcee do get some maintenance in some instances e.g. iddats. Which lasts
either 3 months or the period of pregnancy, whichever is longer. So, I am of the opinion that
instead of implementing a common law for all the religions, the government should try
bringing changes and reform to the existing laws itself.
The problem with UCC is it is not finalized and people are opposing it or hailing it as
something revolutionary. This gives both the ruling party call anyone who opposes it a
women hater and anti-national and the opposition a chance to call anyone who favors it anti-
minority and Hindutva agent. Unless the bill is presented in parliament, we don't know what
it's structure would be, will it be phrased in a way which makes most of the other minorities
marry and divorce just like Hindus or it would be something else, where instead of meddling
into the matter of personal choice govt would ask for equal treatment of certain things in the
rule of law, like alimony in case of divorce, divorce without fault.
Our country’s diversity does not only differ on the basis of sects but also on the basis of caste
and religion, by community, and this will not allow a proper implementation of Uniform
Civil Code. In my opinion the issue of Uniform Civil Code has been brought up by the BJP to
exploit this issue to gain the electoral votes from the Hindu voters and not for the reformatory
aspect of this Code.
No blueprint of a UCC has been prepared yet. No expert committees, like the Hindu Law
Committee of 1941, has been constituted so far. Several provisions of codified Hindu law
such as solemnisation of marriage, satpati, kanyadaan, the sacramental nature of marriage,
income tax benefits for the Hindu joint family, and absolute testamentary powers may not
find a place in the UCC. Provisions like dower (payment by husband)
or nikahnama (prenuptial contract) are to be incorporated in the UCC. Will Hindus accept
these changes?

Uniform Civil Code as Panacea to the Modern law Socio-

Religious Societal Problems: A Myth
Uniform Civil Code (further referred as UCC) is a mere illusion and not a social reality in the modern
law society especially for a country like India which is a habitat for heterogeneous people from
different caste, race, religion having different customary laws. India is admired for this unity and
diversity and a Uniform Civil law can’t take into account all the diversities prevailing all over the
country. India follows the principle of ‘MULTICULTURALISM’ i.e. a society where multiple
religion prevails and coexist peacefully respecting each other’s differences. Indian society does not
follow the principle of uniformity and every individual or group has its own identity derived from
religion. Therefore, it is a mere illusion to arrange the Indian society in a linear arrangement by a
uniform civil code without recognizing separate identities that is carried by an individual or a group of
individual. Hence, separate reforms should be taken to address the lacunaes.
Religion is a subject of both high reverence and deep criticism at the same time. Every human being
has a view point about religion; therefore, religion plays an important and unique part in moulding the
life of an individual. Personal laws are derived from holy texts and customs prevalent in different
religion through which an individual is governed. Though India was majorly ruled by foreign powers
and they changed over the period of time but the ruling class didn’t meddled with the personal laws.
For instance, when Britishers ruled India they introduced myriad number of legal reforms but were
hesitant in interfering with local customary personal laws, they only introduce little reforms that too
because of popular support. For e.g., Enactment of Child marriages restraint act in 1929 backed by
social reformist Ishwar Chand Vidyasagar.
The demand of Uniform civil code is based on two aspects;
1. Equality
2. Human Dignity
People have demanded UCC on the basis of equality to eradicate intra – inequality in the religious
groups. For eg. Banning of Entry of women in the shrine of Haji Ali in Bombay is a clear case of
discrimination on the basis of gender where women are the sufferers just because they follow a
religious group. Therefore, a group of people is demanding UCC to avoid such discrimination which
is carried under the curtain of religion. Another example can be taken is of the Sabarimala temple
where the women in the ages of 15 to 49 were not allowed to enter the Garbh-Griha of the temple.
Also on the basis of violation of human dignity, in the name or personal laws based on religion, it has
led to many social activist further raise their voice for the enactment of Uniform Civil Code. It would
be apt to point the gender discriminatory provisions which are a threat to the dignity of individuals in
Muslim Personal law regarding oral divorce, polygamy, divorce, and maintenance. These customs are
prima facie violative of women’s human right therefore, hurting their dignity. Hence, they are
vehemently criticised by liberal women activists. A petition was also filed in the Indian Supreme
Court by the Ahmedabad women 4 action group against union of India to made various provisions of
Muslim Personal Law, Hindu Succession Act, 1955 and Indian Succession act as void on the basis of
violation of Articles 13, 14 and 15 of the constitution but was dismissed by the Supreme court by
referring these issues to be wholly concerned with state policies and court having no concern with
them ordinarily. Also, the Hindu political parties are encashing this opportunity, they find these
provisions as special concessions for the Muslim men and demand UCC from this view point.
In my opinion, UCC which calls for universal personal laws all over the country without any separate
law for various religious community is not a viable option for a country like India which is rich in
diversity. Hence, separate laws should be retained and reforms should be taken to address the lacunae
as mentioned above. The stance to oppose the enactment of UCC is furthered and supported by
various arguments.

4
Ahmedabad Women Action Group v Union of India, (1997)3 SCC 573.
 1. In theory, our state machinery is neutral in nature. But in reality and in a pragmatic scenario
the state machinery is based on majoritarian principle. Therefore, if UCC is drafted and
enacted It will surely have the imprints of majority on the provisions it will carry. Hence, the
UCC will be biased and favour the majority. To further support this biasness in the state
machinery, It will be apt to discuss the 1992 incident of Babri – Masjid demolition when that
time UP Chief Minister, Mr. Kalyan Singh ask state authorities not to fire a single bullet on
any person demolishing Babri – Masjid as they were Karsevaks and let them do freely. This
clearly shows how a state machinery is biased on the basis of religion. Also, this idea is
strengthen by the fact that no major conviction was given in the decision given by the apex
court in the Babri – Masjid demolition case recently.

2. By tracking the recent developments like 2005 amendment and recent judgement on triple
talaq and daughters having equal coparcenary rights, it can be interpreted that two major
personal laws of this country that is Hindu personal law and Muslim personal law are
converging and on reform mode with carrying the sentimental and emotional character of the
groups and individuals. Therefore, the state should not unbalance this fine-tuned equilibrium
achieved by the legal machinery over a long period of time and continue with separate
reforms definitive for personal law rather than enacting UCC.

3. Also, UCC enactment is motivated by the Majority due to the desire for Cultural and Political
Uniformity and not because they want any reform in Muslim and other personal laws for the
betterment of the women or any bona fide cause. Hence, separate reforms should be taken
because such uniform enactment will snatch identity of various individuals and groups
causing social unrest and deep disappointment among the various individuals and harmony
and may result into communal disharmony and aggravated into riots easily.

4. Coming forth, the demand of UCC is arising only from some groups in the society and not
from the minorities. Therefore, we have to wait till the right time is ripened when the society
is ready for UCC and segments including minority groups demand for UCC enactment. Till
the time, we have to take reforms that specifically solves the issue and maintains the
heterogeneity of the society and respects pluralism.

5. It is significant to note here that the strive endeavour to reform Hindu law during the time of
Nehru was an effort in vain because women have been the worst sufferers. Since, the law
recognizes monogamous marriages, the women in polygamous relationship are denied their
rights. A Hindu man uses the loopholes in the law and denies maintenance and marriages
because there is no essential condition to officially record these rituals. Therefore, this
provision was more detrimental than the previous customary law which also recognized rights
of wives in polygamy marriage. Therefore, it can be elucidated that due to societal non-
acceptance, unification of Hindu law is a clear fiasco. Though the law is codified in terms of
legal reality but in social reality the Hindu law went underground and the prevalence of
unofficial law is increased5. It can be inferred from this that mere enactment of UCC will not
suffice a major behavioural change is required and which cannot be achieve overnight.

Conclusion

The decision to enact Uniform Civil Code is not feasible for India as it does not recognise the issue of
‘identity’ and did not take into account the importance given to it by people in India. Also, as we

5
Werner Menski, Hindu Law: Beyond Tradition and modernity (3edn., Oxford University Press 2003) p.24-5
have discussed previously Hindu and Muslim personal laws are converging. Hence, it can be inferred
that the desire of UCC can be survived by various personal laws. This type of convergence is not copy
of the original western ideas based UCC but it is a carefully engineered a mirrored image of western
UCC achieved by the contemporary India which is an integrated and harmonised system of laws that
maintains separate personal laws and yet achieves a measure of legal universality. This type of
structure has maintained the uniformity and left spaces to let diversity fit in it. Hence, it has
upholded the principle of “Unity in Diversity”. It has taken very hard efforts of legal engineering to
achieve such fine tune equilibrium between the personal and state laws and UCC might disturb it.

Thus, there is no urgent need of UCC till the society is enough mature to understand its
consequences. Gradual harmonization of laws by way of specific reforms in modern personal will
suffice the purpose as defined above. Also, in my opinion, it is important to make present personal
laws better as possible in socio-legal reality because the future is all about reverence for diversity in
legal uniformity. And if in future, UCC is needed to be enacted it has to be with gradual behavioural
changes over a period of time as defined by Shimon Shetreet in her 4 guidelines. 6

6
Shimon Shetreet, Academic Blueprint for the Implementation of a Uniform Civil Code for India, UTAH REV 97
(2011).