All India Muslim Personal Law Board has submitted its response to the Law Commission’s public notice with respect to the Uniform Civil Code and said that it is reasonably apprehended by the Muslims in India that the raking of the topic of UCC is with the objective of putting the system of Muslim pesonal law in peril.
“Personal relationship of Muslims, guided by their personal laws, is directly derived from the Holy Quran and Sunnah (Islamic laws) and this aspect is linked with the identity of Muslims in India. Muslims in India will not be agreeable to lose this identity of which there is space within the constitutional framework of our country. National integrity, safety and security and fraternity is best preserved and maintained if we maintain the diversity of our country by permitting minorities and tribal communities to be governed by their own personal laws,” the Board said in its 37-page response.
Citing the example of instances of ban on the right to wear hijab in educational institutions, the Board said, “to start a debate putting the Muslim Personal Law into focus is perceived as an attack on their identity”. “These fears are compounded by the law commission following an utterly arbitrary and unfair procedure inviting the response on terms which are vague and within a unreasonably short span of 30 days,” it added.
Fundamentalist Right To Freedom Of Conscience
The Board said that Articles 25 and 26 guarantee freedom of conscience, the free profession, practice, and propagation of religion, as well as the right to manage religious affairs by every denomination or any section thereof. It said that Article 25 itself accommodates different religious practices for different classes of citizens.
Gender Equality Gaps Exists Not Only In Codified Personal Laws But also In ‘Uniform Matrimonial Law’
According to the Board, there is a presence of gender equality gaps not only in the existing codified community-based family laws, particularly of the majority community, but also in the “so-called uniform general matrimonial laws” that are often “portrayed as successful models of uniform matrimonial laws”, such as the family laws in Goa and the Special Marriage Act, 1954.
The Board cited instances of laws in Goa that provide for a Hindu husband to take a second wife in the absence of an issue if the wife has attained the age of 25, as per Article 3 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880. Furthermore, if the wife has reached the age of 30 without having a son, the same provision applies, it said.
Equality before law and Equal Protection Of Law Under Muslim Law
The Board said the Constitution of India guarantees ‘equality before law’ and ‘equal protection of law’ but it also establishes ‘reasonable classification’ based on ‘intelligible differentia’.
“Common law system has created these principles which we term as ‘constitutional principles’. In the same way believers of Islam believe in ‘equality before law’ and ‘equal protection of law’ which is a part of Quran and Sunnah. Like, inheritance and succession in Islam amongst the co-sharers is based upon ‘equity’ and not on abstract ‘equality’. This Islamic ‘equity’ in this regard is relatable to contemporary constitutional terms such as ‘reasonable classification’ and ‘intelligible differentia’,” it added.
Diversity Under Constitution Maintains National Integration
Referring to the special protections given under Article 371A, 371B, 371C and other similar articles of the Indian Constitution, the Board said that to maintain the diversity inherent in our federal polity, the scheme outlined in the Constitution of India to consolidate the nation is not, and cannot be ,uniform.
Pakistan Does Not Unify The Entire Civil Law Irrespective Of Majoritarian Religious Belief
The board has cited the example of Pakistan which has a separate legislation ‘Hindu Marriage Act, 2015’ to provide for special form of marriage and annulment among Hindus as per the customs and practices recognized within the Hindu community there. “The effort has not been made to unify the entire civil law irrespective of majoritarian religious belief,” it said.
Supreme Court Observations On UCC Is Not Relevant To Muslim Personal Law
Sarla Mudgal Case (1995) 3 SCC 635; Lily Thomas Case (2000) 6 SCC 224
The Board has argued that the facts of the Sarla Mudgal case had nothing to do with Muslims or Islamic Law. “Be it the Thomas case or the Mudgal case, the issue was of Hindu married men committing bigamy to avail a second marriage, without dissolving the first and just by converting from Hinduism to Islam,” it said. Perusing the part of Sarkar Mudgal Case, wherein it stated that, “Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians”, the Board said that the observation is “erroneous” with respect to Muslim law.
“Among Hindus and Christians, the concepts of divorce, succession of property of women, independent identity of women after marriage in the customary and religious texts, are either absent or not as developed as that under the Muslim law,” it said.
John Vallamattom v. Union of India, (2003) 6 SCC 61
“The facts of this case, yet again, had nothing to do with Muslims or Islamic Law. There, the issue was restriction against a Christian while making a will for religious and charitable purposes,” the Board said.
Legal Pluralism Is Important For Inclusivity
According to the Board, legal pluralism, which entails the existence of multiple parallel legal regimes, is globally recognized as an important symbol of inclusivity, tolerance, and civility. Such exemptions based on diversity are not limited to personal laws alone and even general laws vary across different states and regions, it said.
The Existing ‘Uniform’ Law Is Not Uniform
The board has further said that the Special Marriage Act (SMA), the closest and continuing model of a uniform matrimonial law in India, is not ‘uniform’.The SMA, not only has been designed as per the majoritarian morality but provides exceptions for customary laws, it added.
Nature Of Muslim Marriage Is Sacred Contract
A prospective UCC will have to settle with a particular nature of marriage; such a decision is bound to impact the consequences of marriage in Muslim Law, the Board said
Unlike the majority Hindu faith, the nature of a Muslim marriage is not sacramental but of a ‘sacred contract’, according to the Board “In a Muslim marriage, parties to the intended marriage i.e. wife and husband are free to stipulate and mutually agree to any terms and conditions that are not prima facie opposed to the basic doctrines of the Islamic law. The violation of these mutually settled will lead to consequences as mentioned in the matrimonial contract for instance a right to divorce or a special compensation in addition to meher (dower payable by the husband) and maintenance,” it has explained.
Prohibited Degrees Of Marriage Varies In Different Communities
The Board has submitted that the prohibited degree varies in different communities. Marriage between cousins (paternal, maternal, parallel, cross, first, remote) under the Muslim law is permitted whereas the same falls under the degree of prohibited relationship under the Hindu law (with exceptions such as of South Indian Hindu communities), according to the response.
The Board has said that Special Marriage Act, 1954 imbibes an interpretation that suits the majoritarian understanding of degrees of prohibited relationship. “Quite apparently, the provisions of SMA relating to prohibited degrees in marriage are taken from the Hindu Marriage Act of 1955 and thus are in conflict with Muslim personal law,” it said.
Age Of Majority
The Board has argued that Uniform Law will be in conflict when it comes prescribing the age of majority.
“The age of majority differs based on different religious personal laws and different statutes. In the absence of any minimum or maximum age of marriage, classical Islamic scholars reached consensus on the age of attainment of puberty as the minimum age of marriage,” according to the Board.
Polygamy Is Not Only Islamic Concept
The Board has said that the general matrimonial law of India, SMA, following the majoritarian morality, prohibits bigamy. However, Polygamy “is not only the Muslim law which has space for polygamy, as popularly believed,” it said.
“Polygamy is found among the Naga tribes, the Gonds, the Baiga, the Lushai among others while polyandry is prevalent in the Himalayan tract stretching from Kashmir to Assam,” the response reads Goa family law, which has been projected as the ideal blueprint for a Uniform Civil Code, permits polygamy for Hindus, it adds.
Concept of ‘Talaq’ under Muslim Law Varies From Divorce
The system of dissolution of marriage in Islam is an elaborate and meticulous system and talaq is only one of the methods among many recognized methods to dissolve a marriage in the Islamic tradition, with talaq itself having different forms, according to the Board
“A prospective UCC is bound to create a general law on divorce. Indian Muslims, who devotedly follow the Islamic injunctions on divorce, are bound to be left in the lurch in such a situation,” the Board said.
The tradition imbibes the idea of both extrajudicial and judicial methods for the dissolution of marriage, the board said.
Concluding the objections, the Board said Uniform Civil Code has remained an enigma since the day of its manifestation.
“The most crucial document of our nation, the Constitution of India, is itself not uniform in nature, prudently and with the intention to keep the country united. Different treatment, accommodation, adjustment is the nature of our Constitution. Different territories of the nation have been given different treatments. Different communities have been made entitled to different rights. Different religions have been given different accommodations,” it said.
source by : livelaw