When Europe entered the age of “enlightenment” in the 18th century (1715-1789), the age-old rule of “State-Religion” or “Religion-State” was annulled at the altar of ‘liberalism’. A new concept of State-people relationship ushered in. Till then directives of the church and the dictates of the king were the final word to fix what to do or not to do in the individual, social, religious and family life of the people. In India, priests played the same role. Their dictates were undeniable from the King’s Palace to the poor’s shelter. In contrast to this despotism, the political philosophy of liberalism advocated equality and liberty to the citizens irrespective of caste, creed, faith, state, status or sex. It called for unhindered freedom from physical, emotional or moral slavery; urged freedom of thought, conscience, and religion; called for protection from torture or threat to life; promoting freedom of speech without fear; freedom of movement and safety from the unfair trial. In the following years, these ideas became the cornerstone of Modern Democratic States and replaced dictatorial norms. The same values were adopted in independent India by the framers of our Constitution.
The Constitution of India, by virtue of liberal philosophy, guarantees freedom of adopting/propagating any religion of individual choice, to eat or drink of his like, don the clothes of his choice and follow favoured cultural values. The liberal ideology grants space to each culture to flourish without threat from the state of non-state actors. India is a bouquet of multicolour cultures and traditions. The Constitution protects this beauty. But the nation at present is facing a push to reverse the wheel and create uni-cultural State. That is evident in the ill-intentioned sloganeering of uniformity in the purely socio-religious institution of marriage. At one hand ‘live-in relationship’, the immorality of extramarital relationship between consenting adults, is made permissible; while on the other hand the Government wants to regulate the family life of minorities. While no concern is shown for widows, driven out of their houses and made to languish in Ashrams, the share of Muslim women in inheritance is questionable. Our Hindu sisters abandoned without divorce are nowhere in discussion but scattered cases of divorce among Muslims are allowed to make a national issue.
It is an established rule in our country that family affairs, including inheritance, care of children and maintenance, etc. are governed under customary laws and norms. Most of them unwritten, which vary from community to community, clan to clan, region to region and sect to sect. In north India, some clans of Hindus prohibit marriage of a boy with the girl of the same village, belonging to the same family or even between descendants of the same male ancestor that is called ‘gotra-consideration’. In south India, the best choice for a niece is her maternal uncle. In tribal India, polygyny (marrying more than one woman at a time) is normal, while in others ‘polyandry’ (having more than one husband at a time) is permissible. As Law Commission of India noted (Report 227) neither tradition nor any text of the Hindu religion prohibits these practices. But a law of the 1950s prohibits second marriage in the presence of the first wife, though it allows co-habitations with other women without marriage. But Islamic concept of ‘fornication’ (sex without legal marriage) prohibits a Muslim to enter into the intimate relationship outside marriage.
However, many social practices also have different shades in Indian Muslims. Though Islam permits marriage with cousins, many neo-Muslim communities follow the Hindu tradition of not marrying in blood relations. In general, Muslims disapprove of bigamy and follow monogamy but in regions like the former princely state of Hyderabad, one can have the second wife without any hitch up. In this scenario, the Chairman of Law Commission of India Justice (Retd) B S Chauhan rightly felt that “in India, there is no possibility of a common civil code.” This was revealed by Maulana Syed Jalaluddin Umari, Vice President of AIMPLB after a meeting with the chairmen.
UCC a Political Agenda
Bringing a UCC has been one of the core issues of the BJP. So the Union Government directed the Law Commission on 30 June 2016, to examine the issue of Uniform Civil Code (UCC). In the process, the commission took views of many organisations and individuals. UCC seeks to replace all personal laws of various religions with a common and uniform set of rules governing family life of every community without consideration of its respective religious and cultural values. The delegation of AIMPL Board, led by Maulana Umari, rightly termed the proposal as “unconstitutional” and “interference in the religious matters”.
Since the Commission has rightly concluded that UCC is not feasible, it started another unwanted exercise of examining the bunch of different acts called Muslim Personal Law and to make a suggestion for amendments therein. As a rule, the Government should not interfere in such matters save and except there is a popular demand and broad unanimity within. During the second meeting with AIMPLB delegation on 31st July, Mr. Chauhan indicated that soon there would be a step forward for making a proposal to reform civil laws in the background of religious principles taken from different religions which the Law Commission considers “good and appropriate”.
Earlier in this process, the Law Commission sought the views of Muslim groups on seven issues including custody of children, inheritance, and adoption. The Commission wanted to know why a Muslim mother is a natural guardian of a child in Islamic Shari’ah. The panel sought detailed information on the differences in the interpretation of different Masaliks. It sought opinions on daughters inheriting half the share of what sons inherit. The Commission has also asked for a model Nikahnama and Talaqnama that can be implemented uniformly across India.
The AIMPL Board has made a written submission in this meeting. Reportedly the Commission proposed a personal law draft carrying “good values” of all religions. For example, monogamy of the Hindu Law, which he considers a good value. The suggestion raises the question, “What is the meter to measure good or bad values?” Monogamy was introduced in the Hindu Code Bill as a good value, though no Hindu tradition of religious text prohibits polygamy. The Law Commission had itself examined the merits of monogamy in the Hindu Law and monogamy with conditions as the Qur’an permits (Report 227- August 2009).
While discussing polygyny in Islam, the Commission underlined its virtues and also indicated sufferings under un-restricted monogamy in the Hindu law. The report pointed out several conditions, in which not taking the second wife creates the hardship. For example, severe illness or permanent physical or mental disability necessitates a second marriage without the cruelty of throwing out a destitute who gave comfort in her youth. So what is considered “good” may become a curse in changed scenario.
The argument that ‘Hindu family laws had been modified in the 1950s but the Christian and Muslim personal laws continue as were enacted in colonial-era so must be modified’ is also lame. The Muslim Personal Law Board had rightly said to the Commission, “The way of life of other religious groups in India, their cultures and customs are not based upon their religious texts. On the other hand, Muslims have the basis of their personal relationship, traditions and cultures in Qur’anic rules and further the way shown by the Prophet (peace and blessings of Allah be to him). Qur’anic rules as well as other rules flowing from the Quran and the Prophet’s traditions have their own authority and have been followed for over more than 1,400 years. Muslims believe that these rules/values are part of the religion and they cannot deviate (therefrom).”
The AIMPL Board had also made it clear that “The determination of religious principles, traditions, and cultures does not fall within the scope of the functioning of the government and accordingly the said issues should not be made part of the law-making process. Therefore, the Government should neither interfere nor be advised to interfere in such areas.”
This may also be known that all laws, contained in the basket of “Muslim Personal Laws” were enacted as proposed by Islamic Scholars after wide consultation within authorities of various masaliks. The community at large has no problem with these laws. And the spirit of Indian Constitution and the policy of Indian Government do not warrant interference in personal laws of any community. The good lies in unity in spite of diversity.
However, the intention of the present regime looks to be against the liberal values and prefers the hegemony of a particular bunch of faulty, outdated values. It is apprehended that the Government may hastily introduce some bills to destroy some features of Muslim Personal Law in the name of granting rights to Muslim women. The main cause of concern must be the promoting of hegemony and Majoritarianism through protecting the cult of violence which is usurping basic freedoms of the people. The basic freedoms are also dear to us as Muslims as these are the basics of the doctrine established since the first Islamic State came into existence under the leadership of Prophet Muhammad (peace and blessings of Allah be to him) after he migrated to Medina from Makah in June 622. The guidance of Allah had arrived even before.
[The writer is a Journalist and Civil Rights Activist. [email protected]]