Why in news?
The Supreme Court has begun hearing arguments in Shayara Bano v. Union of India, the case in which the constitutional validity of certain practices of Muslim personal law such as triple talaq, polygamy, and nikah halala has been challenged. The All India Muslim Personal Law Board (AIMPLB) has asked secular authorities not to interfere with religious law.
What is triple talaq?
Triple Talaq is a procedure of divorce under the Sharia Law which is a body of Islamic law. Under this, a husband can divorce his wife by pronouncing ‘Talaq’ thrice.
What does the Quran tell about triple talaq?
Talaq is a right given to men by Islam to divorce his wife in case the marriage cannot be continued for some reason. In case of the talaq once given, the husband has to wait for three months. The triple talaq does not mean saying or messaging ‘talaq’ three times and ending marriage. Rather it means, the person has to wait for a period of three months. Within the stipulated time if there is a change in mind or the concerned problem is resolved mutually, they sure can continue the marriage.
For the second time (which takes place after a period of time) if the couple faces a difficult problem, talaq can be pronounced again with the same procedure. Divorce is twice. Then, Islamic law says, either keep her in an acceptable manner or release her with good treatment.
The third time will be the final chance given. One has to understand that many months or even years can pass between the pronouncement of each talaq.
After the third talaq, the marriage has really come to an end now. The three chances are exhausted by now. Now if the husband wishes to reunite it is not possible unless the wife who has entered into another marriage divorces her new husband, which is highly impossible.
Sharia law and the Islamic Nations:
Sharia law or Islamic law is the religious law that forms part of the Islamic tradition. It is derived from the religious precepts of Islam, particularly the Quran and the Hadith.
- Out of 50 odd Muslim majority countries, only six are Islamic Republic viz. Afghanistan, Mauritania, Pakistan, Yemen, Iran & Saudi Arabia.
- Strict Personal (Sharia) Laws are followed in only two of these republic viz. Iran (Shia) & Saudi Arabia (Sunni).
- In the remaining four, Sharia Laws are followed but not strictly. For example, minimum marriage age in Iran & Saudi Arabia has been fixed at puberty age as per Sharia Law whereas in the other four Islamic Republics it is fixed at 16 to 18 years as per international norms.
Why triple talaq should be abolished?
- According to a study, 92% of Muslim women in India want to end oral triple talaq. In spite of protests by Muslim women and activists worldwide the procedure is still prevalent in most countries.
- ‘Triple talaq’ has frequently empowered husbands to divorce their wives arbitrarily, without any substantial or valid reason.
- Oral talaq or ‘triple talaq’ delivered through new communication channels like Skype, text messages, WhatsApp and email have become worrying concerns for the community.
- These practices are against constitutional principles such as gender equality, secularism, and international laws.
- It must be noted that though still practiced and legal in India, the practice of ‘triple talaq’ has been abolished in 21countries including Pakistan.
- The government also argues that when these practices are banned in Islamic theocratic countries, the practices could have absolutely no base in religion and are only prevalent to permit the dominance of men over women.
Relying upon the Supreme Court’s own judgments, experts point out that only those features of a religion are constitutionally protected which are “integral” or “essential” parts of it. There is no confirmation that talaq-i-bidat forms an integral part of the Islamic faith and, consequently, it does not deserve constitutional protection. The case has brought the issue of Uniform Civil Code to the forefront yet again.
Notes on Uniform Civil Code
What is uniform civil code?
Uniform Civil Code means that all sections of society irrespective of their religion shall be treated equally according to a national civil code, which shall be applicable to all uniformly.
It is based on the belief that there is necessarily no connection between religion and personal law in a civilized society. Therefore, the uniform civil code is a proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set of governing laws for every citizen.
Is the demand for Uniform Civil Code of recent origin?
The debate for a uniform civil code dates back to the colonial rule in India.
Pre-Independence (colonial era):
- The Lex Loci Report of October 1840 – It stressed the importance and necessity of uniformity in codification of Indian law, relating to crimes, evidences and contract. But, among its recommendations was to keep the personal laws of Hindus and Muslims outside the purview of any such codification.
- Queen’s 1859 Proclamation – It promised absolute non-interference in religious matters.
- However, many laws were passed with respect to the Hindu community because of pressure from enlightened leaders and women’s rights groups, and these were highly beneficial to Hindu women. Some of the progressive laws were as follows:
- The Hindu Inheritance (Removal of Disabilities) Act
- 1928 Married Women’s Property Act of 1923
- The Hindu Widow Remarriage Act of 1856
- India’s first Prime Minister, Jawaharlal Nehru, dreaming of a socialist country along with a few of his supporters and women members wanted a uniform civil code to be implemented.
- However, they ended up proposing the uniform civil code into the directive principles of the state policy (article 44) mainly due to –
- Opposition from Muslim fundamentalists.
- Lack of awareness among the masses.
- The time for its imposition then was not proper.
- The Hindu Code prepared in this context had the stamp of Dr BR Ambedkar. Ambedkar had been a critic of many ancient Hindu laws which he saw as regressive and counter to the development of all sections of society. The draft bill’s provisions pertaining to monogamy, divorce, abolition of coparcenaries (women inheriting a shared title) and inheritance to daughters received a lot of criticism.
- Dr. Rajendra Prasad, Sardar Vallabhai Patel among others opposed this move.
- Finally, a diluted version of The Hindu Code was passed via four different legislations.
- The Hindu Marriage Act
- Succession Act
- Minority and Guardianship Act
- Adoptions and Maintenance Act
The common criminal laws and the separate personal laws continue to the present day.
The Role of Judiciary vis-à-vis Uniform Civil Code:
The cases in the past reflect the multi-religious nature and problems associated with these personal laws. The judiciary through the years has been nudging the Centre to take a stand on Uniform Civil Code.
Arguments in favour of Uniform Civil Code
- Integrated India – India is a country with many religions, customs and practices. A uniform civil code will help in integrating India more than it has ever been since independence. It will help in bringing every Indian, despite his caste, religion or tribe, under one national civil code of conduct.
- Tackling Vote Bank Politics-A uniform civil code will also help in reducing vote bank politics that most political parties indulge in during every election.
- Tackling the alternate judicial system-By allowing personal laws we have constituted an alternate judicial system that still operates on outdated values. A uniform civil code would change that.
- Sign of a modern progressive nation – While our economic growth has been significant in the world our social growth has lagged behind. A uniform civil code will help the society move forward and take India towards its goal of becoming a developed nation in the true sense. This will ensure that India moves away from caste and religious politics.
- More Rights to the Women-Our society is patriarchal and by allowing old religious rules to continue to govern family life we are condemning Indian women to subjugation and mistreatment. A uniform civil code will help in improving the condition of women in India.
- Equality of all citizens-All the laws related to marriage, inheritance, family, land, etc. should be equal for all Indians. Uniform civil code is the only way to ensure that all Indians are treated the same.
- True Secularism-Contrary to what many thin, a uniform civil code doesn’t mean that it will restrict the freedom of people to follow their religion, it just means that every person will be treated the same and all citizens of India have to follow the same laws whether they are Hindus or Muslims or Christians or Sikhs.
- Reducing Judicial Burden-The codification and unification of the various personal laws will produce a more coherent system of laws. This will reduce the existing confusion and enable easier and more efficient administration of laws by the judiciary.
Challenges in formulating a Uniform Civil Code
Socio-Cultural and Attitudinal Factors
- The task of actually devising a set of rules that will govern all communities is a very formidable and tedious one considering the vast range of interests and sentiments to be accounted for.
- Change of laws in favour of women like Hindu inheritance Act has neither brought about any change in the percentage of property held by women nor in their status due to patriarchal mindsets.
- Misinformation about UCC – The contours of UCC has not been spelt out leading minorities to believe that it is way of imposing majority views on them.
- Lack of political will due to the complexity and sensitivity of the issue.
- Different religious communities have different personal laws which lead to politicization.
- Opponents of UCC argue that personal laws are driven by and derived from religious beliefs, it may be prudent not to disturb them by enacting a common code, as this runs the risk of engendering a great deal of animosity and tension between various religious communities .
- Also India being a secular country guarantees its minorities the right to follow their own religion, culture and customs under Article 29 and 30. But implementing a Uniform Code will hamper India’s secularist credentials.
Due to these, UCC has become next to impossible. But all is not lost yet!
A Case Study of UCC: THE GOAN MODEL
Goa is the only Indian state to have a uniform civil code in the form of a common family law. The Portuguese Civil Code that remains in force even today was introduced in the 19th century in Goa and wasn’t replaced after its liberation.
However, the code has certain drawbacks and is not strictly a uniform civil code. For example: The Hindu men have the right to bigamy under specific circumstances.
In order to promote the spirit of uniformity of laws and accomplish the objectives enshrined in Article 44 of the Constitution, the following suggestions demand consideration:
- A progressive and broadminded outlook is needed among the people to understand the spirit of such code. For this, education, awareness and sensitisation programmes must be taken up.
- The Uniform Civil Code should act in the best interest of all the religions.
- A committee of eminent jurists should be considered to maintain uniformity and care must be taken not to hurt the sentiments of any particular community.
- The matter being sensitive in nature, it is always better if the initiative comes from the religious groups concerned and the society from within.
- Instead of using it as an emotive issue to gain political advantage political and religious leaders should try to evolve a consensus on the issue.
- The question of a Uniform Civil Code should not be one of minority protection or even of national unity, rather as one of treating each human with the dignity that he/she deserves.
The need of the hour is to preserve the religious and social identity of the communities in a pluralistic and multi-religious country like ours. It will take the skill of all the accomplished political and social leaders, duly supported by the religious communities to realise the dream of a Uniform Civil Code, balancing the interests of all stakeholders.
Keywords: Uniform Civil Code, TripleTalaq, Shayara Bano
Approach for the Civil Services Examination
General Studies Paper I
- Social empowerment, communalism, regionalism & secularism.
General Studies Paper II
- Indian Constitution – historical underpinnings, evolution, features, amendments, significant provisions and basic structure.
- Discuss the possible factors that inhibit India from enacting for its citizens a uniform civil code as provided for in the Directive Principles of State Policy. (UPSC Mains Examination 2015)
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