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The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda

Published online by Cambridge University Press:  06 March 2019

Werner Menski

Extract

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Postcolonial India's modernist ambition to have a Uniform Civil Code, impressively written into Article 44 of the Indian Constitution of 1950 as a non-justiciable Directive Principle of State Policy, concerns not just an Indian problem but a universal predicament for lawyers and legal systems. What is the relationship between personal status laws and general state-made laws? To what extent should the formal law allow for, or seek to restrain, the legal implications of religious and socio-cultural diversity? To what extent does a state, whether secular or not, actually have power and legitimacy to decree and enforce legal uniformity? There are many more agendas at play here than simply the central issue of legal authority, focused on the power of the law, or simply “religion” v. “law”, or “culture” v. “law”, as we are often still led to believe.

Type
Research Article
Information
German Law Journal , Volume 9 , Issue 3: A Special Issue on India , 01 March 2008 , pp. 211 - 250
Copyright
Copyright © 2008 by German Law Journal GbR 

References

1 See Werner Menski, Comparative Law in a Global Context: The Legal Systems of Asia and Africa, 4 (2d ed. 2006).Google Scholar

2 See Menski, Werner, Asking for the Moon: Legal Uniformity in India from a Kerala Perspective, Kerala Law Times, 2006(2), at 52.Google Scholar

3 See generally Narmada Khodie, Readings in Uniform Civil Code (1975); Tahir Mahmood, An Indian Civil Code and Islamic Law (1976); Vasudha Dhagamwar, Towards the Uniform Civil Code (1989).Google Scholar

4 Shah Bano is an old Indian Muslim lady then in her seventies, now deceased, whose affluent lawyer husband famously deserted her for a younger woman and then sought to rely on traditional Muslim law to refuse any further responsibility for her welfare. See Khan, Mohd Ahmed v. Begum, Shah Bano, A.I.R. 1985 S.C. 945.Google Scholar

5 See Satvinder Juss, International Migration and Global Justice, 1 (2006) (discussing the idea that the world order today depends, to some extent, on freedom of movement).Google Scholar

6 New work from some family lawyers is beginning to reflect this concept. Compare Jon Murphy, Ethnic Minorities, Their Families and the Law (2000) and Jon Murphy, International Dimensions in Family Law, 2005) with Prakash Shah, Law and Ethnic Plurality: Socio-Legal Perspectives (2007).Google Scholar

7 See Menski, , supra note 1, at 58.Google Scholar

8 See Menski, Werner, Rethinking Legal Theory in Light of South-North Migration, in Migration, Diasporas and Legal Systems in Europe 13-28 (Prakash Shah & Werner Menski eds., 2006).Google Scholar

9 The voice of Buoaventura de Souza Santos has been particularly powerful in this respect. See Buoaventura de Souza Santos, Toward a New Legal Common Sense (2d ed. 2002); Masaji Chiba, Asian Indigenous Law in Interaction with Received Law (1986).Google Scholar

10 See Alan Watson, Legal Transplants: An Approach to Comparative Law (2d ed. 1993).Google Scholar

11 These laws are not officially recognised by a state, but exist in social reality. Compare Chiba, , supra note 9 (discussing the interaction of official law, unofficial law and “legal postulates”) with Menski, , supra note 1 (elaborating on the notion).Google Scholar

12 See Chiba, , supra note 9, at 5-6; Menski, , supra note 1, at 124.Google Scholar

13 Historians and other social scientists often have a far too limited and restrained, positivism-centric understanding of “law” and its possibilities of skilful intervention. See, e.g., Sufia Uddin, Constructing Bangladesh: Religion, Ethnicity and Language in an Islamic Nation (2006) (presenting an excellent recent discussion of such academic struggles).Google Scholar

14 See Griffiths, John, What is Legal Pluralism?, 24 Journal of Legal Pluralism and Unofficial Law 1-56 (1986).Google Scholar

15 Recent studies by Sanskrit-based scholars have brought this out well. Patrick Olivelle has beautifully encapsulated this:Google Scholar

The expert tradition of Dharma during the centuries immediately preceding the common era appears to have been vibrant and dynamic as shown by the numerous contradictory opinions of experts recorded in the extant Dharmasūtras. Such diversity of opinion belies the common assumption that ancient Indian society was uniform and stifling under an orthodoxy imposed by Brahmins. If even the experts recorded in these normative texts disagree so vehemently, the reality on the ground must have been even more chaotic and exhilarating.Google Scholar

Patrick Olivelle, Dharmasutras 18 (2000).Google Scholar

16 See Dhagamwar, , supra note 3, at 76 (highlighting the danger of widespread public unrest). Some more recent Indian legal writing, inspired from Canada, appears to dismiss such risks and pushes ahead with reformist human rights agenda even if it means suffering for some people. See Jaya Sagade, Child Marriage in India: Socio-legal and Human Rights Dimensions (2005).Google Scholar

17 India's new Prohibition of Child Marriage Act of 2006 illustrates this interplay. It renders Indian child marriages voidable, not void ab initio after judges had warned that it would be “absolutely brutal” to render all child marriages void. Werner Menski, Hindu Law: Beyond Tradition and Modernity 368 (2003) (discussing Mallikarjunaiah, V. v. Gowramma, H.C., A.I.R. 1997 Kant. 77, at 81).Google Scholar

18 See Shah Bano, A.I.R. 1985 S.C. 945.Google Scholar

19 The Muslim Women (Protection of Rights in Divorce) Act, No. 25, Acts of Parliament, 1986.Google Scholar

20 See, e.g., Sufaira, Ali v., (1988) 2 K.L.T. 94; See also Werner Menski, Modern Indian Family Law 246-294 (2001) (discussing a large number of subsequent cases in that High Court and other Indian High Courts).Google Scholar

21 See Danial Latifi v. Union of India, (2001) 7 S.C.C. 740.Google Scholar

22 See The Muslim Women (Protection of Rights in Divorce) Act, No. 25, Acts of Parliament, 1986.Google Scholar

23 See Menski, , supra note 20.Google Scholar

24 See Menski, Werner, Introduction: The Democratisation of Justice in India to Gurjeet Singh, Law of Consumer Protection in India: Justice within Reach xxv-liv (1996).Google Scholar

25 This is cited with approval (but apparently insufficient impact on that scholar's subsequent thinking) in Jaya Sagade's, “Law and Social Reforms in Rural India with Special Reference to Child Marriages”. See Sagade, Jaya, Law and Social Reforms in Rural India with Special Reference to Child Marriages, 1 Sup. Ct. J. 27 (1981). See also Sagade, , supra note 16.Google Scholar

26 See generally M.P. Jain, Outlines of Indian Legal History (4th ed. 1981); J. Duncan M. Derrett, Hindu Law Past and Present (1957); J. Duncan. M. Derrett, Religion, Law and the State in India, Ch.10 (1968).Google Scholar

27 See Chiba, , supra note 9.Google Scholar

28 See William Twining, Globalisation and Legal Theory (2006).Google Scholar

29 See Peter Sack & Jonathan Aleck, Law and Anthropology (1992).Google Scholar

30 See Legrand, Pierre, How to Compare Now, 16 Legal Studies (No. 2) 232-242, 236 (1996) (discussing the particular mentalité of French law).Google Scholar

31 See Geoffrey A. Oddie, Imagined Hinduism (2006) (discussing various historical constructions of the image of Hinduism and Hindu law).Google Scholar

32 We should also remember that much of “colonial India” was not under direct British rule, but under what in Africa and elsewhere came to be called “indirect rule”, largely retaining local legal and political structures, not to speak of social norms and value systems.Google Scholar

33 See M.B. Hooker, Legal Pluralism (1975).Google Scholar

34 See Aquil, Raziuddin, Hazrat-i-Dehli: The Making of the Chishti Sufi Centre and the Stronghold of Islam, 28 South Asia Research (No. 1) 23-48 (2008).Google Scholar

35 See Menski, , supra note 17.Google Scholar

36 See Menski, , supra note 1, at 294-298.Google Scholar

37 Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law 51 (2004) (speaking of “a number of globalizations going on”).Google Scholar

38 See, e.g., Menski, , supra note 1, at 13.Google Scholar

39 See Lipner, Julius J., The Rise of “Hinduism”; or, How to Invent a World Religion with only Moderate Success, 10 International Journal of Hindu Studies (No. 1) 91-104 (2006).Google Scholar

40 See Glenn, , supra note 37.Google Scholar

41 While this has had some relevance for legal development in modern India, we cannot explore this further here.Google Scholar

42 Some old reported cases from India, however, show that Muslims sometimes defined Hindus as kitabiyya to justify marriage to a Hindu woman. After all, many Hindus also have religious texts and may treat such a text as a kind of holy book, especially the epic Ramayana.Google Scholar

43 See Jyotirmaya Sharma, Hindutva: Exploring the Idea of Hindu Nationalism (2003).Google Scholar

44 The predicament of comparability is hardly new: the seven volumes of the History of Dharmashastra, originally written towards the end of the colonial period, were partly designed to prove to the colonial powers that Hindus had “proper” law, even if it meant that Kane often overstated his case. See Pandurang Vaman Kane, History of Dharmashastra (1968) (1930-1962).Google Scholar

45 The storming and destruction of an old mosque in Ayodhya in December 1992 gave rise to huge debates, outrage, as well as communal riots all over India.Google Scholar

46 See Anuradha Dingwaney Needham & Rajeswari Sunder Rajan, The Crisis of Secularism in India (2007).Google Scholar

47 See India Const. art. 14 (protecting equality before law); India Const. art. 15 (prohibiting discrimination on the grounds of religion, race, caste, sex or place of birth). See also India Const. arts. 25-28 (concerning the right to freedom of religion); India Const. arts. 29-30 (concerning cultural and educational rights).Google Scholar

48 See Dhagamwar, , supra note 3, at 76.Google Scholar

49 See Sagade, , supra note 16.Google Scholar

50 The term “identity postulate” is explained by Chiba as a term focused on construction of identity of a particular people, a set of values and ethics rather than a body of rules. Masaji Chiba, Legal Pluralism; Towards a General Theory Through Japanese Legal Culture 180 (1989).Google Scholar

51 Notably, my learned predecessor, Derrett, J.D.M., still saw reservations in 1968 about the ability to make law through statutory intervention as an “apparently unpractical point of view”. See Derrett, , supra note 26, at 76.Google Scholar

52 See Menski, , supra note 17, at 94-107.Google Scholar

53 On Ambedkar's contribution, there is a huge literature. See Dhawan, S.K., Dr. Ambedkar, B.R.: A Select Profile (1891-1956) (1991); 1 & 2 K.L. Chanchreek, Dr. B.R. Ambedkar: Patriot, Philosopher, Statesman: Economic Writings (1991); Nazeer H. Khan, B.R. Ambedkar on Federalism, Ethnicity and Gender Justice (2001).Google Scholar

54 See Galanter, Marc & Krishnan, Jayanth, Personal Law Systems and Religious Conflict, in Religion and Personal Law in Secular India: A Call to Judgment 270-300 (G.J. Larson ed., 2001) (depicting a typical Anglo-centric statement).Google Scholar

55 See e.g., Granville Austin, The Indian Constitution: Cornerstone of a Nation ix (1999).Google Scholar

56 See supra note 53.Google Scholar

57 India Const. art. 44.Google Scholar

58 Antony Allott, The Limits of Law 216 (1980).Google Scholar

59 See Kumar, Virendra, Uniform Civil Code Revisited: A Juridical Analysis of John Vallamattom, 45 Journal of the Indian Law Institute 315-334 (2003).Google Scholar

60 See Menski, Werner, Jaina Law as an Unofficial Legal System, in Peter Fluegel, Disputes and Dialogues: Studies in Jaina History and Culture 417-435 (2006) (discussing the position of Jaina law).Google Scholar

61 In their own way, Pakistan and later Bangladesh did exactly the same for Muslim law, again without complete success in terms of legal unification and reform.Google Scholar

62 Under the Muslim personal law (shari'a), based on Quran'ic verses, up to four wives are allowed to Muslim husbands. In contrast, section 5(i) of the Hindu Marriage Act of 1955 prohibits polygamous marriage for Hindus and makes it a crime under section 17 of the same Act. See The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955.Google Scholar

63 See Menski, , supra note 20, at 139-230; Menski, , supra note 17, at ch. 10 (attempting to bring the various strands together).Google Scholar

64 See Shah Bano, A.I.R. 1985 S.C. 945.Google Scholar

65 See Latifi, Danial, (2001) 7 S.C.C. 740.Google Scholar

66 See supra note 26.Google Scholar

67 The Hindu Marriage (Amendment) Act, 1964, No. 44, Acts of Parliament, 1964 (adding two new grounds for divorce among Hindus).Google Scholar

68 See J. Duncan M. Derrett, A Critique of Modern Hindu Law (1970).Google Scholar

69 See J. Duncan M. Derrett, The Death of a Marriage Law (1978).Google Scholar

70 See, e.g., Singh, Bikkar v. Kaur, Mohinder, A.I.R. 1981 P&H 391; Kaur, Balbir v. Singh, Maghar, A.I.R. 1984 P&H 417.Google Scholar

71 See Menski, , supra note 20, at 72-138 (examining the relevant case law).Google Scholar

72 See Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004).Google Scholar

73 See Soundarammal v. Sundara Mahalinga Nadar, A.I.R. 1980 Mad. 294.Google Scholar

74 See Bano, Shah, A.I.R. 1985 S.C. 945. See also Jorden Diengdeh v. S.S. Chopra, A.I.R. 1985 S.C. 935, at 935-936, 940.Google Scholar

75 One of the most recent examples is John Vallamattom v. Union of India, where V. N. Khare, then Chief Justice of India stated that “[i]t is a matter of regret that Art. 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies”. Notably, this was two years after the uniformising legal developments analysed in the present article. John Vallamattom v. Union of India, 2003(3) KLT 66 (SC), at 80.Google Scholar

76 See Kumar, , supra note 59.Google Scholar

77 See Komalakumari, Sivankutty v. S., A.I.R. 1989 Ker. 124 (holding that poverty is “a misfortune that has to be shared by the wife also”).Google Scholar

78 See Gladstone, v. Gladstone, Geetha, 2002(2) KLT SN 126 (Case No. 155) (holding that “[e]very Indian citizen is bound to maintain his wife and children. That is a tradition of the society”).Google Scholar

79 See The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955.Google Scholar

80 See Kamalendra, Kanchan v., A.I.R. 1992 Bom. 493.Google Scholar

81 In section 125 of the Criminal Procedure Code of 1973, it is provided under Explanation (b) that “‘wife’ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried”.Google Scholar

82 See Bano, Shah, A.I.R. 1985 S.C. 945.Google Scholar

83 See Tahira, Bai v. Chothia, Ali Hussain, A.I.R. 1979 S.C. 362 and (1979) 2 S.C.C. 316.Google Scholar

84 See Bano, Shah, A.I.R. 1985 S.C. 945, at 952 (holding that there is “no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less then justice to the teachings of the Quran”).Google Scholar

85 See Varshney, Ashutosh, The Great Indian Political Churning, India Today International, July 2, 2007, at 12-13 (claiming that “[c]aught in a Muslim furore and understanding it little, Rajiv Gandhi used his three-fourth majority in the Lok Sabha to overturn the court's judgment”). This is serious misrepresentation of legal facts by a political scientist, even in 2007, and one really has to wonder who understands little, the Indian politician with his ear to the ground, or the NRI academic.Google Scholar

86 See, e.g., S.P. Sathe, Judial Activism in India: Transgressing Borders and Enforcing Limits 19 (2002).Google Scholar

87 See The Muslim Women (Protection of Rights on Divorce) Act, 1986, No. 25, Acts of Parliament, 1986.Google Scholar

88 See Varshney, , supra note 85; Sathe, supra note 86.Google Scholar

89 See Secretary, Tamil Nadu Waqf Board v. Syed Fatima Nachi, A.I.R. 1996 S.C. 2423; Noor Saba Khatoon v. Mohd. Quasim (1997) 6 S.C.C. 233.Google Scholar

90 See, e.g., Sufaira, Ali v., (1988) 2 K.L.T. 94; See also Menski, , supra note 20, at 231-94 (discussing a large number of subsequent cases in that High Court and other Indian High Courts).Google Scholar

91 See Vatuk, Sylvia, Where Will She Go? What Will She Do? Paternalism Toward Women in the Administration of Muslim Personal Law in Contemporary India, in Religion and Personal Law in Secular India: A Call to Judgment 226-248 (G.J. Larson ed., 2001); Galanter, supra note 54.Google Scholar

92 See Menski, Werner, Double Benefits and Muslim Women's Postnuptial Rights, Kerala Law Times, 2007(2), at 21-34.Google Scholar

93 See Aysha, Ahammed v., 1990 (1) KLT 172.Google Scholar

94 See Latifi, Danial, (2001) 7 S.C.C. 740.Google Scholar

95 In 1976, the Marriage Laws (Amendment) Act inserted section 13(2)(iv) into the original Hindu Marriage Act, permitting a Hindu wife exit through divorce from a marriage into which she had been virtually forced, a rule taken from Muslim law. See the Marriage Laws (Amendment) Act, 1976, No. 68, Acts of Parliament, 1976.Google Scholar

96 See Agnes, Flavia, Interview with Tanu Thomas K., The Times of India, Aug. 29, 2003 (stressing that “the press has chosen to ignore it and the general public is unaware of it”).Google Scholar

97 See Menski, , supra note 92.Google Scholar

98 See Menski, Werner, Reluctant Legislative Activism, Kerala Law Times, 2004(1), at 35-41.Google Scholar

99 See Vatuk, , supra note 91.Google Scholar

100 See The Maintenance and Welfare of Parents and Senior Citizens Act of 2007.Google Scholar

101 See Mahmood, Tahir, Personal Laws in Crisis (1986) (discussing the early warnings).Google Scholar

102 But Indian Muslim women can, and apparently do, use the quite liberal provisions of the Dissolution of Muslim Marriages Act, 1939.Google Scholar

103 See Mary Sonia Zachariah v. Union of India, 1995(1) KLT 644 (FB).Google Scholar

104 The Indian Divorce (Amendment) Act, 2001, No. 51, Acts of Parliament, 2001, § 10(2).Google Scholar

105 See Menski, , supra note 7.Google Scholar