Analysis

Muslim Personal Law and Indian Constitution

People who are in favour of Uniform Civil Code (UCC) have made their mind on the following three basic assumptions:  

1. There should be one common law for all citizens of the country.

2. There is necessarily no connection between religion and personal law

3. Marriage, divorce, maintenance, inheritance, adoption, etc. are secular matters.

That all these assumptions are based on non-reasoning, unrealistic facts are proved here, one by one:

1. There should be one common law for all citizens of the country

Already there is one common law in the country, the most important one the criminal law.  Having common law in all the minute details of life, culture and customs for each and every caste, sections and regions of this vast diversified country is practically not possible. Even in Hinduism there are at least 2800 ethnic identities in addition to tribal and other communities diversified cultural socio-individual rules. More than 90% of them are not going to reconcile readily with the politically motivated desires of Hindutva lobby to give up their own cultures, customs, norms of life nurtured through thousands of years on the solid foundation of their sacred religions. The forces of Hindutva know this truth very much, but they make noise less out of any ideological convictions and more out of their desire to dominate the country by monopolizing political and economic powers in their own favour. When it comes to special privileges to Hindus, they forget the concept of equality and uniformity altogether and deny Muslims and Christians their genuine rights. Being in majority, they change the constitution the way they want and interpret it. Why they are mum on the gross inequality meted out to all non-Hindu poor citizens through the Presidential Order of 1950 which shamelessly declared that none other than Hindu will get their constitutional right of getting the reservation as Scheduled Caste (SC)? Thus all the deserving poor professing their religious belief other than Hinduism, as Muslim or Christian are barred from getting equal treatment from the State in respect of reservation. The present SCs will get the benefits of reservation till they remain Hindus but will lose the SC status as soon as they convert to Christianity or Islam! Thus, this is religion based reservation, in violation of the secular character of our Constitution. Why the proponents of equality are silent here?

Another gross inequality is being practiced in our country is the Undivided Hindu Family Act. Due to this Act the rich Hindu families are evading millions of rupees of Income Tax, causing a huge loss to the Govt. exchequer! Interestingly other citizens, whose religion is not Hinduism, do not get this golden benefit! This law of open religious biasness towards Hindus is in operation in our “secular” country and the proponents of UCC are silent on it!

There are different laws for different parts of this country, giving special privileges to the people of that part of the country. All such laws are duly guaranteed by the same Constitution. Such as – Article 371(A) for Nagaland, 371(B) for Assam, 371(C) for Manipur, 371(D) for Andhra Pradesh, 371(F) for Sikkim, 371(G) for Mizoram, 371(H) for Arunachal Pradesh and 371(I) for Goa. Why the advocates of “forced equality” are not taking up this issue to abolish all these differential legalized treatments meant for the citizens of this same country! No! They worm up only when the matter of Muslims or Christians is there.  

In the name of Astha, they have got the cow slaughter banned in most of the states depriving the 80% poor Indians of their cheap source of protein food. Ironically, where cow meat is a source of big business for Hindus, it remains legal. In the name of Astha again, they have demolished the Babri Masjid. On the one hand, they talk of “uniformity”, on the other hand they discriminate against the religions – particularly Christianity and Islam whose religio-cultural ethos does not suit them. While they will continue to expand the benefits on the ground of their Astha, they will not let Muslims and Christians to act according to their Astha, even where it does not affect anyone else.

2. There is necessarily no connection between religion and personal law

Islam is not merely a ritualistic religion, it is the complete code of life. So, there is no question of piece-meal adoption in this religion. The corporates who as part of the globalisation regards moral and family values enshrined in religions as big stumbling blocks in their plans of turning human beings into commercial items. The market-driven modernity legalises, promotes premarital sex but bans marriage before a certain age, promotes and legalises promiscuity and live-in relationships but bans polygamy and has problems with Hijab while glorifies nakedness, pornography, homosexuality. Its aims are not the development of healthy and peaceful family and social system but commercialisation of human weaknesses, commodification of women.

The leftist forces whose socio-economic ideology does not recognise religion altogether, failed to comprehend the big game-plan of the Capitalists to remove every hindrance in their way in commercializing human morals and weaknesses. Needless to mention that major contribution to human morality derives from religion. With the downfall of Communism in the world, this group has of course become almost non-existent, but in combination with the market forces, they often promote the same “liberal” values which the latter relish.

It will be seen in this discussion that none of these groups are concerned with either the dignity of human beings or in their peaceful existence as individuals, or their rights as males or females. Their only concern is their political and economic monopoly. Hindutva forces are for political monopoly while Capitalist forces are for economic monopoly.

3. Marriage, divorce, maintenance, inheritance, adoption, etc. are secular matters.

They focus on marriage, divorce etc. and tries to brand them as “secular matter”. Actually by focussing on these they want to malign Islam and Muslims. The community wise polygamy data from Govt. record is tabled here in order to unmask the conspiracy designed by the vested interests:

Census year

Adivasis

Buddhists

Jains

Hindus

Muslims

1961

15.25%

7.9%

6.72%

5.80%

5.70%

The rate is being continuously decreased in every community. [Ref.: Ram Puniyani, (2016), Indian Nationalism Versus Hindu Nationalism, p.127, New Delhi: Pharos Media Publication.]. So, the attempt to assault Islam and Indian Muslims on this matter is backfired to the Hindutva bridged that it is the Muslims who in spite of their religious sanction, opt for polygamy in least percentage in comparison to all other communities here. Even the Hindus do more polygamy than the Muslims.

Their next issue is divorce. ‘Highlighting triple talaq at one go, they want to project Islam in bad light. It is true that this is not the Islamic method of giving divorce to one’s wife by simply uttering “Talaq, talaq, talaq” at one go. Although, it is a fact that some people are in practice of this un-Quranic method. Muslims should follow Allah’s book (The Holy Qur’an and beloved Prophet’s acts and sayings (The Sahi Hadits) where triple talaq in one go is non-existent. Even the word, “triple talaq” is not there. The method of talaq is clearly mentioned in the Holy Qur’an, Surah Al Baqarah, Verses 227 – 233 and in Surah Talaq. It is the matter of the Muslim Ummah to mend their houses without taking unwanted interference or dominance from those who does not believe Allah, Prophet (s) and their path. But, the people who are shedding crocodile’s tear on the “poor” plight of the Muslim divorced women have their different real agenda, as stated above. It is ironical that in a world where there is so much emphasis on personal freedom that even an unhealthy relationship between two consenting individuals (whether married / unmarried / of the same sex) is regarded as a good index of freedom, a community is targeted for following its own set of norms, religio-cultural practices in their personal matters. Still more ironical is that this is being done in the name of the rights of women despite the fact that the modernity has allowed every such practice, which is extremely dangerous for the well-being of almost everybody, especially the lives of women and children.

Right-now the Muslim Personal Laws are operational in other Muslim minority countries as also – Britain, Israel, Srilanka, Thailand, Singapore, Uganda, Ethiopia, Eritrea, Ghana, Kenya, Tanzania. Even in U.S.A. although there is no separate Islamic court, but the Judges consider the Islamic law in their decision. But in our country with about 19 crore strong Muslim population, who happens to be the single largest cultural community and having a secular Constitution – some vested interested, time and again, rise the matter of Common Civil Code as a weapon to target the Indian Muslims, which generally evokes emotional reactions from the community.

The govt. claims that there is provision in the Indian Constitution to impose such UCC. In reality, Article 44 of our Constitution proposes the govt. to frame UCC. It is not obligatory but a proposal. But at the same time, the same Constitution empowers every citizens of India (Article 15 & 25) to have faith, practice and propagate any religion of his /her choice. This is the fundamental right of the Indian citizens. No law anywhere in the world can override the fundamental rights of anybody. Moreover, Article 44 is not any law, it is a mere proposal, which must not be in violation to Article 15 & 25 of the same Constitution.  

What should be the ultimate objective of such a UCC? A Civil Code cannot be just limited to laws related to marriage, divorce and inheritance. It must encompass all aspects of civil life including a well-defined healthy family system, the permissibility or non-permissibility of the practices that threat the family system as a whole and the rights and duties of the individual family members and that of the family as a unit. In order to achieve the above objectives of our society and family, the said UCC must put a ban on the following things /practices which come as hindrance:

a) A comprehensive and effective ban on abortions. Ever year, 5 - 7 crore children are denied their birth right worldwide.

b) A comprehensive and effective ban on alcohol and drugs. Alcohol kills more than 30 lakh people annually. In India too, the death due to alcohol is rising. It is also a major factor in almost all social crimes as - rapes, other crimes, domestic violence and suicides.

c) In order to have a healthy and peaceful family; a comprehensive and effective ban on premarital as well as extra-marital sex, promiscuity, prostitution, homosexuality, etc. must be imposed.  More than 40 million people have died of AIDS so far.

d) Ban on gambling.

Human life has many dimensions, such as - individual life, family life, social life, national life and spiritual life. They want to lead their life as per the set ‘dos and don’ts’ framed in consistence with the material, moral and spiritual requirements within the above dimensions of one’s life. The ‘dos and don’ts’ are called social laws. On the other hand the ruler of that society (country) tries to form laws as per his/her convenience of ruling the masses. These are termed as State /Govt. laws. If the social laws are consistent with the State laws, then it is a good governance, happy society; otherwise not. In dictatorial rule, State laws suppress social laws, this situation is termed as tyrannical rule. Democracy is reverse to tyranny, here the social members, i.e., the citizens are the real rulers. So there is zero probability of tyranny and cent per cent probability of conformity between the social and State’s laws. Ours is the world’s largest democracy. So, the govt. must form laws in consistence with the social opinions.

So, a national debate on the above mentioned things / practices [listed as (a) to (d)], not in peace-meal system, but in comprehensive manner is needed to have a good, healthy, peaceful and prosperous human society – as all sound-thinker human beings aspire to achieve. But the condition is that the outcome of that debate must be based on scientific reasoning, no majoritarian ego (democracy) or religious biasness should come in the way. 

Dr. Md. Afsar Ali is Assistant Professor at A.J.C. Bose College, Kolkata and can be reached at ali.mdafsar09#gmail.com

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