डिजिटल अर्काईव्ह (2008 - 2021)

The experience falsifies the claim that the Muslim personal law, being of divine origin, is not subject to secular court. The ulema themselves sought the legislation. Secondly, when the Government stood firm on the issue on the Muslim Judges the vested interests climbed down.

Some advocates of a common civil code claim that the failure of successive governments to implement the directive principle (of the Constitution) about it is a glaring instance of "appeasement" of Muslims. It is a half-truth. While conservative Muslim leaders have opposed it, their Hindu counterparts are no more for it. The vested interest cuts across religion. A look at the chequered history of efforts to evolve a common civil code, spanning over fifty years, confirms it.

Paradoxically enough, the Hindu and Muslim opponents of social reform have been more successful alter independence than before. They let the British Government change the personal laws of people of both faiths not because the reform was pale faced but because they did not have the stomach to confront the foreign rulers. After independence, on the other hand, they have been taking advantage of the democratic rights guaranteed by the Constitution to thwart progress.

Thus, the ancestors of the so-called sadhus who are now active in our public life and their kinsmen could not prevent the Sati Regulation of 1829 and the Hindu Widow's Remarriage Act of 1856, among others, from being put on the statute book. So they turned their wrath on Hindu social reformers who not only paved the path for the changes but also facilitated and promoted their enforcement.

The same was the case with the Dissolution of Muslim Marriages Act of 1939, even if the ulema's reasons for sponsoring it were questionable. Although Koran permits dissolution of marriage by women incase of necessity, under the Hanifi law obtaining in India a Muslim woman seeking divorce would lose her faith. This was leading to conversion of women bent on getting out of unwanted alliances. To put an end to it, the ulema proposed enactment of a law empowering Muslim judges to dissolve Muslim marriages in specified circumstances.

But the British Government would not agree that only Muslim judges should dispose of Muslim divorce cases. The Muslim League, too, would not go along with the ulema. So they had to agree to judicial dissolution of marriages in particular cases.

The experience falsifies the claim that the Muslim personal law, being of divine origin, is not subject to secular court. The ulema themselves sought the legislation. Secondly, when the Government stood firm on the issue on the Muslim Judges the vested interests climbed down.

The Muslim Personal Law (Shariat) Act, enacted two years earlier in 1937, was also the outcome of the ulema seeking Government intervention to oust the operation of customary laws in force, especially, in undivided Punjab and the North-West Frontier Province and to bring all Muslims under a common Shariat umbrella. Under the customary laws in operation in these provinces the Muslim landlords were taking advantage of the then prevailing Hindu law to bequeath their entire property on their male heirs denying the daughters their share under the Islamic law. But the Goverment insisted on keeping agricultural property out of the purview of the law on the ground that it was a provincial (State) subject, while the Muslim League introduced a provision for optional application of the new law. Thus, in matters of adoption, will and legacy, Muslims could choose between the customary laws and the Shariat provisions.

It is significant that after independence the Indian Union Muslim League has been against a similar provision for Muslims to choose between a general law like the Special Marriages Act or even the Code of Criminal Procedure and the Shariat law. But for Nehru's firm stand, the Muslim orthodoxy would have got away with diluting the Special Marriages Act to restrict its application to non-Muslims.

While the orthodox Muslim resistance to special reform was open and unabashed, the role of their Hindu opposite numbers in resisting changes in the personal law was no less formidable. If the advanced Hindu community accounting for 80 per cent of the population has set the style in the matter keeping religion out of social reform the ground could have been created for a common civil code.

Initiatives for changes in Hindu succession and marriage laws originated from enlightened Hindu legislators in the British period itself. If the Congress had lent its moral and political weight to them they would have been brought into force before independence itself perhaps. But the Congress was too deeply involved in the freedom struggle to find time for it. Or, the Congress leaders might have thought that their involvement would needlessly politicise the issue and put the back up of the British Government.

The framework for comprehensive reform and codification of Hindu laws governing succession, inheritance, marriage, divorce, minority, guardianship and adoption was prepared by two expert committees headed by B. N. Rau. A bill based on their proposals was taken up by the provisional parliament in 1948 with Dr. B.R. Ambedkar piloting it.

Nehru's commitment to the reform was transparent and total but he was also aware of opposition to it among some of his own colleagues. So instead of going in for comprehensive legislation he agreed to a step-by-step approach by splitting it into three sections. Still the resistance persisted. Some of the Congress veterans shy of showing their hand put up a Muslim member, Nasiruddin Ahmed, to stage a fillibuster and stall consideration of the legislation. An ace parliamentarian, Ahmed moved hundreds of amendments, very often for improvements in punctuation and syntax. According to G. R. Rajagopal, a former Secretary of the Law Ministry who has written extensively on the subject, only three preliminary clauses of the Bill could be passed in seven days! The ploy worked and the legislation was shelved.

The mood of the ruling Congress party in the first Lok Sabha was different not because of fulfilment of Nehru's hope that adult franchise would change the social composition of M.P.s. The bulk of the members was landed interests but whatever be their personal predilections they stood by Nehru's resistance to orthodoxy and social conservatism. Although there was no opposition worth the name, the party spirit also was engendered in them.

The first bill to be enacted was the Hindu Marriage and Divorce Bill - far from controversial because it only sought to put Hindu women on par with their Muslim sisters in respect of the right to judicial dissolution of marriage. Lower caste women in most parts of the country had that option under the customary law. So it helped only the upper caste spouses. But it took three to four decades for the stigma of divorce to be overcome among the higher castes in the rural areas, if at all.

With the Special Marriages Act having already been passed, the draft provision in the Hindu Marriage Act for civil marriages was dropped. This also pleased the conformists because all marriages among Hindus had to be dharmic. Meanwhile, the draft bill on intestate succession among Hindus was published. Like the first one on marriage and divorce, it was also referred to a joint select committee which elicited public opinion on a representative scale. In fact, the entire legislation was thoroughly vetted by the concerned people before enactment.

The third was the Hindu succession Bill, which could have been a model for a uniform civil code if the conservatives had not their way in vital respects. Thus, the Mitakshara joint family was left out of its applicability with the result that nearly 80 percent of Hindus are not affected. While the male heirs inherit ancestral property by birth, the daughters do not. Their right to live in an ancestral "dwelling house" after marriage is also not recognised. Only unmarried and widowed daughters have the right.

Nor can the daughters claim partition of the dwelling house. In other words, their claims to ancestral property are based more on compassionate grounds (that an unmarried or widowed woman should not be left destitute and homeless) than on social or economic justice. There will, however, be equal sharing by sons and daughters of other types of property.

The Telugu Desam Government in Andhra Pradesh has changed the law in respect of ancestral agricultural property putting the daughter on par with the son, or making her coparcener. It is not known how the change is working, especially since the agricultural proper was already disposed of to beat the land celling laws. Many legal experts think the Andhra Pradesh law in unworkable.

In States like Kerala where the matriarchal system prevails under the Marumakkattayam and Aliyansantans laws the daughter is entitled to inherit joint family property including a dwelling house. The third section, the Hindu Adoptions and Maintenance Bill, was the least controversial and easily passed muster. It ensures a mother's right to adopt a child as well as for consenting to her husband adopting a child. Also a girl can be adopted.

In other words, even in the relatively more enlightened Hindu community with a record of more than a hundred years of consistent social reform the higher caste vested interests do not countenance change. For instance, will the abolition of the concept of Hindu undivided family under a uniform civil code be acceptable to those who claim tax benefits under the rubric?

Against this background, a common civil code has to be seen and promoted as social reform for the amelioration of women of all communities and not as a means of integrating them at thio perceived cost of their identity. By needlessly politicising it, the BJP and its supporters have made it more difficult of realisation. As Rajkumari Amrit Kaur, a doughty champion of women's uplift, once asked how would a uniform civil code be conducive to national unity when uniform laws for crimes, contracts, torts and constitutional rights could not promote it all these years. So the argument that the absence of such a code is responsible for the distrust and worse of the minorities among militant Hindus is nothing but rationalisation of an ugly phenomenon.

Justice M. C. Chagla, whom the BJP used to acclaim once, interpreted Article 44 of the Constitution (on a common civil code) not as requiring legislation of an all-embracing character. "The State may decide to bring about social reform by stages and the stages may be territorial or they may be community wise", he said, because "one community might be prepared to accept and work social reform, another may not yet be prepared for it."

Further, besides the Muslims, the Scheduled Tribes also have reservations about some aspects of a uniform civil code. When the Indian Adoption Bill was sought to be enacted as a uniform law the representatives of the Scheduled Tribes pointed out "practical difficulties" in the way of accepting it because it could be a source of intrusion into their lives and might also lead to property going outside the tribes. In the context of the uneven social development of different sections of our people, such apprehensions are natural and need to be got over tactfully.

In sum, it in better not to think in terms of national level social reform covering different aspects of community living. Laws like the Andhra Pradesh legislation on women's property rights and those obtaining in Kerala can be adopted by other States. The Kerala inheritance laws are followed by Christians and Muslims unless the latter opt for the Islamic code under the Shariat Act. Similarly, Hindus in Goa follow the Portuguese code in operation there in many matters. It has several wholesome features.

At the national level, social reform can be promoted by legislation which will not be seen as impinging on personal laws. The Special Marriages Act and the Medical Termination of Pregnancy Act are instances in point. Many of their provisions would be seen as violative of religious principles of different communities but they have been accepted because they are problem-specific. Polygamy can also be tackled in a similar way so that even if it remains theoretically valid for Muslim men it will practically disappear. Where it is not possible, decentralisation of the power to bring about social changes to the States and if necessary to the lower organs of administration like the district councils will be a way out.

Above all, an selective approach in the matter is necessary. The architects of the Hindu Code are pathfinders in this respect. They had the genius and catholicity to borrow from common law in respect of marriages, and the Muslim law in the matter of a woman's right to divorce and a share in ancestral property. In the process, they fostered a spirit of mutual tolerance and willingness to give and take from other faiths and systems. Such an approach is more necessary today when even eminent politicians preach and practise sectarian hatred.

Tags: Rajkumari Amrit Kaur Marumakkattayam Kerala Andhrapradesh Telugu G. R. Rajagopal Nasiruddin Ahmed B. N. Rau Shariat ulema sadhus G. S. Bhargava weeklysadhana Sadhanasaptahik Sadhana विकलीसाधना साधना साधनासाप्ताहिक


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