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Hindu India (Mullaly 2004: 677). The debate on the UCC came
before the Constituent Assembly in 1948 after partition had
occurred and hence it took place in the shadow of the horrific
communal killings. Muslim members invoked the religious
source of personal laws and argued against state intervention.
K M Munshi, Alladi Krishnaswamy Iyer and B R Ambedkar in
response argued for its place in the Directive Principles so that
it would serve as a beacon for social reform. Ambedkar was
firm in the view that it was permissible for the state to intervene in the religious domain by formulating laws especially
when this intervention promoted the cause of social justice.
For him, if this non-interference was conceded then no progress was possible.
Coming to the question of saving personal law . I should like to say
this, that if such a saving clause was introduced into the Constitution,
it would disable the legislatures in India from enacting any social
measures whatsoever. The religious conceptions of this country are
so vast that they cover every aspect of life, from birth to death. There
is nothing which is not religion and if personal law is to be saved I am
sure about it that in personal matters we will come to a standstill.
After all what are we having this liberty for? We are having this liberty
in order to reform our social system which is full of inequities, so full
of inequalites, discriminations and other things, which conflict with
our fundamental rights. Having said that, I should also like to point out
that all that the State is claiming in this matter is a power to legislate
(Ambedkar 1949: 80).
A hundred years after the Rukhmabai case, the Shah Bano case
acquired intense public attention and produced similar arguments
pertaining to the jurisdiction of the secular law and its institutions. In 1985, the Indian Supreme Court ruled that Shah Bano,
a 68-year-old woman, was eligible for maintenance under Section
125 of the Code of Criminal Procedure. Her husband Mohammed Khan, an advocate, divorced her after 43 years of marriage
when she had asked for maintenance. Her ex-husband had
argued that after divorce his liability to maintain his wife was
governed by the Muslim Personal Law which limited
his responsibility to the three-month iddat period of three
menstrual cycles and to mahr which was committed at the
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time of marriage. After fulfilling these commitments maintenance was the responsibility of the divorced womans natal
family and of the community through its Waqf income. The
Court ruled otherwise and held that Section 125(3)(b) applied
to the case and in its judgment noted that mahr was a sum
payable by the husband to the wife on divorce an obligation
imposed on the husband as a mark of respect and therefore
not an excuse for non-fulfilment of the responsibilities under
Section 125. In delivering the judgment the honourable justices
went beyond the statute and sought to give additional legitimacy to their judgment by offering an interpretation of sura
2:241 of the Holy Quran.
The judgment produced a massive political outrage in the
Muslim community who, mobilised by their political leaders,
objected to the secular law overriding the Muslim personal
law, and worse to the Court interpreting the Holy Quran
which, they argued, only a Muslim alim can do (Engineer
1999: 1488). The Court in its judgment had clearly defined the
position that in the case of a conflict of laws, for example,
between religious and secular laws (even though in the Shah
Bano case there was no such conflict), the secular law would
prevail and that was why responsibilities under Section 125
were being imposed (Rahman 1990; Sunder Rajan 2000). The
political mobilisation among the Muslim community conducted
by several Muslim organisations, such as the All India Muslim
Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, Jamaate-Islami and Muslim League argued that the Supreme Court
had transgressed its jurisdiction since the Muslim personal
law was based on the Shariah, which is divine and immutable, hence no legislative or executive authority could amend or
alter its provisions (Hasan 2014).1
In the face of these protests the Rajiv Gandhi government
lost its nerve and sought to assuage the community by hurriedly
reversing the many gains of the judgment by enacting the Muslim
Women (Protection of Rights on Divorce) Bill 1985. This was
done to appease what it perceived to be Muslim anger as had
been conveyed to it by the dominant section of the Muslim
leadership. It is pertinent to note that other voices in the Muslim
community, albeit a minority, favoured the judgment as an advance in Muslim womens rights but these were not heard. Vote
bank politics played an important part in this reversal since in
the recent past the Congress had lost several elections that had
been held soon after the judgment. The regime needed to do
something to avoid the danger of alienating the crucial Muslim
vote (Hasan 2014).2 Let us disregard, for the moment, the issue of
whether the Supreme Court can interpret a religious text, if
that text prescribes punishment on an individual in an area of
social life which is also within the Courts jurisdictiona complex and relevant question that comes up in the Shah Bano case
and only focus on the judgment. We then need, at this point in
the argument, to illuminate two issues: (i) the provisions of
the secular and religious laws and whether they are in conflict,
and (ii) the political compulsions of the government.
There are four Sunni schools of Lawthe Hanafi, Shafi, Malaki
and Hanbali. The jurists in these schools have developed fine
distinctions on the obligations of the husband to his divorced
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wife with respect to the three payments of iddat, mahr and mataa.
While there are different but largely overlapping interpretations
on the first two obligations there is wide disagreement on the
third, mataa.
Mataa, a third, more controversial claim, may also be made. Mataa,
based on Ayat 241 of the Holy Quran, requires that an ex-husband
make a reasonable provision for his divorced wife. Opponents of
mataa, including the majority of Islamic scholars from all Sunni
schools, declare that Ayats exhortation is directed at the more pious
and orthodox Muslims. This view implies that sinners are free to avoid
the obligation of providing maintenance for their ex-wives. Supporters
of mataa, a minority of Sunni Muslim Theologians, declare that this
Ayat is addressed to all Muslimsit is not merely limited to the pious.
However, the mataa claim, which is favorable to women is not usually
enforced in secular courts (Rahman 1990: 476).
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In such a situation, a conflict of interpretation would necessarily emerge. The parties to the conflict must concede that it will
be the secular judicial system under the Constitution that is
the institutional site for the resolution of these differences of
interpretation. Its authority must be accepted and to argue, as
some have done, that the Supreme Court has exceeded its
jurisdiction, or is a colonial construct, is to adopt a position
that is plainly unacceptable since it steps on the slippery slope
of ethicallegal relativism. Pluralism of laws is not anarchy of
laws. It is a concession to the diversity of cultural life in India,
a recognition that communities have worked out the rules that
are to govern their daily lives and that provide meaning to
their members. Interference with these rules is unnecessary
unless they violate core principles of the Constitution. It is an
acceptance that all aspects of social life need not be governed
by a uniform set of rules. To argue for limits on the jurisdiction
of the Supreme Court, especially when issues of gender justice
are involved in personal law cases, is to claim a degree of
autonomy which is unacceptable. There may be a plurality of
personal laws but we must be clear that in a situation of a conflict
of laws, a single authority has the overriding authority of interpretation. There can be no fudging on this issue as is sometimes
seen to be the case. It is not enough to espouse the plurality
position without also taking a position on what happens when
a conflict of laws occurs. The question on who has the authority
to adjudicate in such a conflict situation, the secular authority or
the religious authority, cannot be side-stepped.
This is the case in Goa. The civil code in Goa, which had its
genesis in the colonial period of Portuguese rule, is a secular
code that is often referred to as a model for the whole country
since it is a common code for all communities and has been
accepted by them, although there are some exceptions for the
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Catholics. All Goans, that is, those born to Goan parents, can chose
to marry under the Common Civil Code. I shall not go into its
genealogy here or how it varies from the code in Portugal
today (which was the basis for its original formulation but
which has since undergone changes while the Goa code has
not) but shall limit myself to listing some of its key features
and offer an occasional comment on some of them. In the Goa
civil code, all areas of civil law, such as civil capacity, citizenship, contracts, succession, matrimony, property, etc, are
interwoven together and interlinked by a single formula of
systematisation (Noronha 2008).
The key features are registration of marriages, communion
of assets, equal treatment of sons and daughters, legitime
which implies 50% of assets to children, inventory, deed of succession, relinquishment of rights, registration of wills, etc. The
aspects which can be regarded as an advance, over the existing
laws, in terms of gender justice are in the main three: (i) The
requirement of registration of marriage before the civil authorities which must precede a religious ceremony. This protects the
women from bigamy since the state is now a witness to the
marriage contract and since bigamy is unlawful, a second
marriage cannot be entered into. It also places a responsibility
on the state to provide the documentation of the marriage.
(ii) The communion of assets gives the woman a legal and
equal share into the husbands assets and so, in a situation of a
contested divorce, similar to the Shah Bano case, the woman
has an equal portfolio of assets to that of the man and would
not have to face destitution if the family has assets. (iii) The
aspect of legitime which ensures security to the children, male
and female in equal measure, since they too have rights to half
the assets. In the civil code in Goa, the state undertakes the obligation to extend protection since the marriage is registered and
all transactions such as wills, etc, also have to be registered.
These aspects of the common civil law are an advance over
many of the other personal laws prevalent in India, especially
when seen from the viewpoint of gender justice.
While the law may be progressive, feminist activists view its
operation as being hamstrung by the patriarchal character of
Goan society. In practice this translates to the woman being
compelled, at the time of marriage, to sign away her rights
after receiving a token compensation (dowry) from her brothers
the designated heirs of family property (Almeida 2013). Further,
although the civil code in Goa guarantees the rights to ownership of property, feminists argue, because it has not been
updated for the modern age, it does not give rights to the new
forms of property that have emerged such as the membership
of housing societies, tenanted properties, digital products, etc.
It is also worth noting the conundrum of the legal system in
Goa that the judiciary has the burden of interpreting a law that
was designed for a civil law system while being trained only in
and for a common law system.
The foregoing brief discussion of the civil code in Goa raises
several issues. It illustrates the existence of plural systems of
personal law in India and shows that all communities accept
this common code which was imposed on them in 1910 by the
colonial state. Imposition, it seems, over time as a society
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Let me now return to the discussion of the other normative issues that can be culled from the UCC literature. Moving on
from the tension between legal pluralism and the situation of a
conflict of laws, let me now turn to the situation of conflict
between the secular and the religious law. While the same
principle of granting overriding authority to the Indian higher
judiciary applies here as well, in cases where both the secular and
religious laws apply, the variation comes from the procedure
that must be adopted by the judiciary in such disputes. This
procedure must be religion and culture sensitive.5 It must
listen to the cultural meanings behind practices and find a way
to move these practices in a gender-just direction. The judicial
system must publicly consult, as part of the legal process, with
religious scholars on the range of juridical positions that are
part of the religious interpretations. These must then be used
to arrive at a judgment that is gender-just and consistent with
the principles of the Constitution. The religious scholarship must
aid the secular judgment. Even when such a sensitive procedure
is followed there will be protests, since the political interests of
dominant groups will be at risk, but these protests have to be
met by support from within the community.
Another normative issue on which a position needs to be
taken is the tension between individual rights and group
rights. While the comfort zone in the argument is to say that
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gender-just framework of rights covering not just areas covered by personal laws but also the public domain of work
(creches, equal wages, maternity benefits, etc) (Menon 2014: 4).
The second strategy is reform through juridification. Since
it is obvious at this stage (the National Democratic Alliance
government of 2014 with a Bharatiya Janata Party majority) in
the politics of India that an initiative to prepare a comprehensive
common code for all communities is politically unfeasible,
because of the lack of trust in the intentions of the regime,
gender justice is being pursued through a number of court cases
across the country and as a result the judiciary is creating
laws, through interpretation of MWPRDA, which the legislature
did not. This process of juridification can be seen in the increasing number of cases in states such as Kerala where courts
have given compensation and maintenance decisions favourable to the divorced women. Paradoxically the law that was
considered a compromise with the Muslim orthodoxy, the
MWPRDA 1986, is being used by litigants and the courts to advance
the cause. Clause 3(1)(a), especially the words reasonable and
fair maintenance, is being interpreted by courts in different
parts of India to give women awards that are considerably
higher than what they would have got under Section 125.
Flavia Agnes has provided a list of cases from Gujarat, Kerala,
Madras (Chennai) and Bombay (Mumbai) where this provision
has been interpreted to benefit women.
In 2000 a Full Bench of the Bombay High Court further explained
that the words maintenance and reasonable and fair provision carry
distinct meaning. The word provision has a future content. It is an
amount kept aside to meet future liability. The husband must make a
reasonable and fair provision for her, which should take care of her
future needs. It cannot be substituted by the word for. The amount of
maintenance and reasonable and fair provision cannot be confused
with mehr. Mehr is a liability which does not get absolved by any other
payment or consequences (Agnes 2006: 5).
Notes
References
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