In Case of a Uniform Civil Code, How Should Muslims Respond?
By Arshad Alam, New Age Islam
13 June 2023
Muslims Should Not Irrationally Reject The Uniform Civil
Code Draft
Main Points:
1.
A recent news report
in a Hindi daily stated that the Law Commission will very soon be ready with a
draft Uniform Civil Code (UCC)
2.
The Muslim clergy
has always been opposed to the UCC, dubbing it anti-Islamic
3.
But the
implementation of the UCC will lead to legal equality between men and women
within the Muslim community, which has never been addressed
4.
In the Muslim
personal law, women have subordinate status when it comes to marriage and
divorce, succession, and guardianship.
5.
Therefore, before
rejecting the UCC, Muslims would be well advised to discuss the draft and see
its benefits
-----
According to a news item in a Hindi daily published on 11th
June, the Law Commission has a detailed draft on how the Uniform Civil Code
(UCC) will be implemented in India. The report says that the Commission has
been working on it for the past eight months and the draft will be passed over
to the Law Ministry after a couple of more meetings. The news report did not
confirm when it will be presented in the form of a bill in Parliament but some
media reports indicate that it might come either in this year monsoon or winter
session.
One hopes that before the introduction of the bill, the
draft will be put up for a nationwide public debate so that all forums get a
chance to place their objections and suggestions. But given the suddenness and
stealth with which this government works, that remains a hope.
The country has been debating the issue of a UCC since it
attained freedom. It is mentioned in the Directive Principles of the
Constitution that the state shall endeavour to attain it. Also, there are
various court judgments which have mentioned the need to look into the issue.
The Shah Bano judgment of the Supreme Court also ended up with a plea that the
legislature should find ways to formulate a Uniform Civil Code.
India is a huge country and the idea of a UCC might appear
to militate against maintaining its diversity and pluralism. After all,
marriage patterns, rules regarding choice of spouses, laws relating to
property, etc. differ from region to region, often even within the same
religious community. Will the UCC be levelling such diverse practices? This is
practically impossible to do, again given the extraordinary cultural and
religious diversity of the country.
But what a UCC can do is to take away some of the
inequalities that exist within religious communities due to the application of
personal laws which are in direct contravention of our constitutional morality.
Muslim Opposition To The UCC
The Muslim clergy has always been opposed to the idea of a
UCC. Under their influence, Muslims have come to believe that the UCC is
patently anti-Islamic and that it will lead to the loss of their religious
identity. The clergy have argued that Article 25 of the Indian Constitution
guarantees the freedom of religion and hence the state cannot make any law
which is detrimental to it. However, they forget that the same Constitution
says that Article 25 is “subject to public order, morality, health and other
provisions”. The same Article has a further rider which states that “this
article shall not affect any existing law and shall not prevent the state from
making any law relating to social welfare and reform”. It becomes amply clear,
therefore, that the state can indeed intervene in the personal laws of a
community if it deems that the issue is one of social welfare and reform or
even if it feels that the issue is one which involves public morality. The very
same Article which gives all Indians the right to freedom of religion also
throws open temples to “all classes and sections of Hindus”. Thus, religious
communities cannot hide behind this Article and continue with practices which
are discriminatory or regressive. The freedom to practice and propagate a
religion does not automatically mean freedom to discriminate. The argument of
the Muslim clergy that the state cannot intervene does not hold any ground.
By all measures, the draft of the UCC will be guided by
various constitutional principles but non-discrimination on the basis of sex
would perhaps be the major one. That men and women should be treated equally,
that both of them should have equal rights is something that any modern society
takes for granted. However, it is the Muslim personal law which has
consistently refused to abide by this principle.
Four Contentious Issues
There would be four points on which the Muslim clergy have
always opposed a UCC and they will certainly do so this time too as and when
the draft comes out in the public domain.
The first of these relates to the issue of marriage and
divorce. In Muslim law, while the proposal for marriage can be initiated by
any of the sexes, the right of divorce rests solely on the man. In other words,
a Muslim woman, in order to escape an abusive marriage, has no recourse but to
request her husband to grant her a Khula, which he can refuse. While most
religious laws have been antediluvian, they have been able to reform themselves
but one can’t say the same about the Muslims. So, while a Hindu or a Christian
woman in this country can approach the court and ask for the dissolution of her
marriage, a Muslim woman cannot do the same.
The clergy will also be nervous about the fact that the UCC
might make the system of triple Talaq obsolete. It is worth recalling that the
present government has only outlawed the practice of “instant triple Talaq”
through which husbands could divorce their wives in one sitting, and at times
over a phone call or email. Some Muslim groups like the Shia and the Ahle Hadis
anyway never approved of this practice. But the large majority of Sunni
husbands are even today free to divorce their wives in three sittings which is
the Islamic way. It is expected that the UCC will outlaw this method of divorce
and like all husbands, Sunni Muslim husbands would also be obliged to seek such
a decree from a court of law. Moreover, like in other religious communities,
Muslim husbands would also be made liable to provide maintenance to a divorced
wife.
There is also the most inhumane problem of halala of Muslim
women. If a Muslim man divorces his wife but then regrets his actions and wants
to be in matrimony with her again, it is not easy for him. The ex-wife will
have to marry another man who will then divorce her in order that the first
husband marries her again. This must be a real ordeal for women but it is
something which exists in Muslim societies across the world. There are
“dealers” (many of them Mullahs) who marry such women for a night and ask money
for their “service”. Why should women (and men) go through such an ordeal when
it is a simple question of two consenting adults willing to stay together by
contracting their marriage again? The UCC may (and should) outlaw such
practices in any community whose sole purpose is to demean women for no fault
of hers.
The second issue will be that of succession and
inheritance. It is widely documented that the extant Muslim law in principle
discriminates against women. Daughters do not get equal share in the familial
property as compared to sons. It is for this reason that conscientious Muslim
parents have been registering their marriages under the Special Marriage Act,
so that they can bequeath their property to their children fairly. Almost all
religious communities have now resolved this problem and legally both sons and
daughters can inherit equally. But the Muslim law on succession and inheritance
has remained unchanged since 1937. If the state intervenes and ensures this
reform through the UCC, it will be a big win for all Muslim women, especially
those who are at the forefront of a struggle to change such outmoded personal
laws.
The third contentious issue will be that of
guardianship. In case of the death of the father, the guardianship of a minor
Muslim passes on to the grandfather but not the mother. As if the Islamic law
assumes that women are unable to handle anything and that they lack worldly
sense, it has deprived even a mother of executing decisions on behalf of her
children. This is patently absurd in today’s times when even Muslims
predominantly live in nuclear families. This needs to change and the UCC, which
is likely to address this question, will be doing nothing but to restore the
dignity to Muslim mothers.
The fourth issue likely to rile the Mullahs will be
the standardization of adoption. All religious communities can legally adopt,
pass on their property to the adopted heir, with the exception of Muslims. For
Muslim couples who want to adopt, this has always been a major problem.
Thankfully, they can now adopt under the Juvenile Justice Act 2015, but many
such parents still do not know about such a provision. Moreover, high courts in
recent years have pronounced varied judgments to the effect that prospective
Muslim couples have been hesitant to adopt. If all other religious communities
can have the right of adoption, there is no reason why Muslim couples should be
denied the same. The Mullahs have often cited the example of the Prophet
himself, who married his daughter-in-law, the wife of his adopted son. Hence,
they decree that there is a fundamental difference between a “natural” and an
“adopted” son or daughter. But then, should such standards be applicable to
Muslims today? The community and the clergy need to ask this question of
themselves.
To recap, most religious communities have already reformed
their personal laws and more or less there is gender parity in them. The Hindu
law, in particular, is hardly Hindu in terms of theology or orientation.
Similarly, Christianity never conceived of divorces as marriages were made in
heaven but today, they are able to do so. There is nothing extraordinary about
the Muslim religion; like all other religions, it has to change with the times.
To think otherwise is to live in a fool’s paradise.
In case a UCC draft is floated, it should not appear that it
is only the Muslim community which is opposing it. This will be used by those
who want to paint a regressive picture of Islam and Muslims. Unfortunately,
going by the tone and tenor of the Mullahs, who speak of opposing the UCC even
without context, it appears that those trying to malign the community will
eventually win.
It is, therefore, only pragmatic that Muslims should not
irrationally reject the UCC draft. Rather, they should study it carefully and
dispassionately, and see how changes in law can benefit their society
immensely.
-----
A regular
contributor to NewAgeIslam.com, Arshad Alam is a writer and researcher on Islam
and Muslims in South Asia.
URL: https://newageislam.com/islamic-society/uniform-civil-code-muslims-respond/d/129983